EXECUTION COPY
PROJECT ACCOUNT AGREEMENT
(OFFSHORE).
DATED FEBRUARY 25, 2000
AMONG
CITIBANK, N.A.,
AS THE ACCOUNT BANK.
N M ROTHSCHILD & SONS LIMITED.
AS THE AGENT.
AND
SOCIETE DES MINES DE MORILA S.A.,
AS THE BORROWER.
OPERATING ACCOUNT AND
DEBT SERVICE RESERVE ACCOUNT
XXXXX
XXXXX
& XXXXX
BUCKLERSBURY HOUSE
0 XXXXX XXXXXXXX XXXXXX
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TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINED TERMS .................................................. 1
SECTION 2. INTERPRETATION ................................................. 2
SECTION 3. APPOINTMENT AND ACCEPTANCE ..................................... 2
SECTION 4. INSTRUCTIONS AS TO PAYMENTS INTO PROJECT ACCOUNTS .............. 3
SECTION 5. PAYMENTS FROM PROJECT ACCOUNTS: CASH EQUIVALENT INVESTMENTS .... 4
SECTION 6. APPLICATION OF ACCOUNT BALANCES AND CASH
EQUIVALENT INVESTMENTS ......................................... 5
SECTION 7. AUTHORISATION OF ACCOUNT BANK .................................. 6
SECTION 8. ROLE OF ACCOUNT BANK ........................................... 6
SECTION 9. ACCOUNT BANK'S ACKNOWLEDGEMENTS AGREEMENTS AND REPRESENTATIONS
AS TO CASH EQUIVALENT INVESTMENTS .............................. 7
SECTION 10. STANDARD OF CARE: INDEMNIFICATION .............................. 8
SECTION 11. INFORMATION .................................................... 9
SECTION 12. LIMITED SET-OFF ................................................ 9
SECTION 13. FEES AND EXPENSES .............................................. 9
SECTION 14. NO WAIVER ...................................................... 10
SECTION 15. LIENS .......................................................... 10
SECTION 16. REMOVAL AND RESIGNATION OF THE ACCOUNT BANK: CLOSURE OF PROJECT
ACCOUNTS ....................................................... 10
SECTION 17. SUCCESSORS AND ASSIGNS ......................................... 12
SECTION 18. INSTRUCTIONS: FUND TRANSFERS: AUTHORISED SIGNATURES ............ 12
SECTION 19. NOTICES ........................................................ 14
SECTION 20. WAIVERS, AMENDMENTS, ETC ....................................... 14
SECTION 21. COUNTERPARTS ................................................... 14
SECTION 22. GOVERNING LAW: JURISDICTION: WAIVER OF IMMUNITY ................ 14
SECTION 23. ADDITIONAL DOCUMENTATION ....................................... 15
SECTION 24. FURTHER ASSURANCES ............................................. 16
SECTION 25. POWER OF ATTORNEY .............................................. 16
PROJECT ACCOUNT AGREEMENT (OFFSHORE)
THIS PROJECT ACCOUNT AGREEMENT, dated February 25, 2000 (as the same may
be amended, modified or supplemented from time to time, this "Agreement"), is
made among SOCIETE DES MINES DE MORILA S.A., a company (societe anonyme)
organized and existing under the laws of the Republic of Mali (the "Borrower").
CITIBANK, N.A., a bank organised and existing under the laws of Delaware (the
"Account Bank") and N M ROTHSCHILD & SONS LIMITED, a bank organised and existing
under the laws of England ("Rothschild") in its capacity as the Agent for the
Lender Parties (in such capacity, the "Agent").
W I T N E S S E S:
A. WHEREAS, pursuant to a Loan Agreement, dated December 21, 1999,
(as amended, modified or supplemented from time to time, the "Loan
Agreement"), among (1) the Borrower, (2) Randgold Resources Limited, Randgold &
Exploration Company Limited and Randgold Resources (Morila) Limited, as the
Completion Guarantors. (3) various banks and financial institutions, as the
Lenders and the Co-Arrangers. (4) Rothschild and Standard Bank London Limited,
as the Arrangers, and (5) Rothschild, as the Agent for the Lenders, the Lenders
have agreed to extend Commitments to make Loans to the Borrower:
B. WHEREAS, as contemplated by the Loan Agreement, each of the
Borrower and the Lender Parties wishes the Account Bank to act in the capacity
of Account Bank pursuant to the terms of this Agreement and the Account Bank is
willing to act in such capacity:
C. WHEREAS, this Agreement is the Project Account Agreement
(Offshore) referred to in the Loan Agreement, and it is a condition precedent to
the obligation of the Lenders to make the initial Loans that the Borrower and
the Account Bank execute and deliver this Agreement
NOW THEREFORE for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by the Borrower and the Account Bank,
the parties undertake and agree with the Agent, as follows:
SECTION 1. DEFINED TERMS.
Capitalised terms used but not defined in this Agreement (including the
preamble and recitals hereto) have the same meanings as in the Loan Agreement.
The following capitalised terms when used in this Agreement (including its
preamble and recitals) have the following meanings:
"Account Balance" is defined in clause (b) of Section 4.
"Account Bank" is defined in the preamble.
"Agent" is defined in the preamble.
"Agreement" is defined in the preamble.
"Authorised Officer" is defined in clause (a) of Section 18.
"Borrower" is defined in the preamble.
"Default Notice" means a notice of an Authorised Officer of the Agent to
the effect that a Default under the Loan Agreement has occurred substantially in
the form of Exhibit A attached hereto.
"Enforcement Notice" means a notice of an Authorised Officer of the
Agent to the effect that an Event of Default has occurred substantially in the
form of Exhibit B attached hereto.
"Fee Schedule" is defined in clause (a) of Section 13.
"Instructions" is defined in clauses (a) and (b) of Section 18.
"Loan Agreement" is defined in recital A.
"Project Accounts" means, collectively, the Operating Account and the
Debt Service Reserve Account.
"Related Property" is defined in clause (b)(ii) of Section 9.
"Rothschild" is defined in the preamble.
"Transfer Instructions" is defined in clause (f) of Section 18.
SECTION 2. INTERPRETATION.
This Agreement is a Loan Document and shall be interpreted and construed
in accordance with Sections 1.2 to 1.5 of the Loan Agreement thereof, which
provisions are hereby incorporated in this Agreement.
SECTION 3. APPOINTMENT AND ACCEPTANCE.
(a) Pursuant to Article 4 of the Loan Agreement, each of the
Borrower and the Agent hereby requests, and the Account Bank hereby
agrees to open and maintain accounts in the name of the Borrower as set
out below, each such account being a Project Account and to hold
therein, subject to the terms and conditions of this Agreement (and,
without limitation of the foregoing, subject to the liens in favour of
the Agent granted in respect of the Project Accounts pursuant to the
Borrower Security Agreement (Offshore Assets) and subject also to clause
(b) of this Section 3), all such property described in Section 4 as
shall be received by the Account Bank for each such Project Account.
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(b) The parties hereto agree that the Project Accounts shall be
cash accounts only, in accordance with the Global Accounts Mandate dated
9 September, 1999 between Citibank, N.A. and Societe des Mines de
Morila S.A., until such time as the parties hereto agree that the
Account Bank should hold Cash Equivalent Investments in accordance with
the terms of this Agreement.
1. Operating Account: Account No: 000 000 000 USD CALL
Branch: Global Corporate Banking, Jersey
00 Xxxxxxxxx
Xx. Xxxxxx
Xxxxxx
Xxxxxxx Xxxxxxx
XX0 0XX
Currency: United States Dollars
2. Debt Service Reserve Account: Account No: 000 000 000 USD CALL
Branch: Global Corporate Banking, Jersey
00 Xxxxxxxxx
Xx. Xxxxxx
Xxxxxx
Xxxxxxx Xxxxxxx
XX0 0XX
Currency United States Dollars
SECTION 4. INSTRUCTIONS AS TO PAYMENTS INTO PROJECT ACCOUNTS.
(1) TYPE OF PAYMENTS.
The Account Bank is subject to Section 6, hereby authorised and directed
to receive and hold in the Project Accounts the following funds, moneys and
other property, in each case pursuant to Instructions from the Borrower (and the
Borrower shall simultaneously deliver a copy of such Instructions to the Agent):
(i) OPERATING ACCOUNT: subject to clause (c) of Section
4.2 of the Loan Agreement, all amounts received by the Borrower (u)
to the extent required pursuant to clause (c) of Section 8.1.7 of
the Loan Agreement, in respect of proceeds under policies of
insurance maintained by the Borrower, (w) in relation to all
proceeds of the sale of Project Output, (x) in relation to all
proceeds derived from the exercise of any Hedging Agreement, (y) in
relation to the proceeds of all Loans, Capital Contributions and
Approved Subordinated Indebtedness, and (z) in connection with the
Project:
(ii) DEBT SERVICE RESERVE ACCOUNT: amounts in respect of
the Required Debt Service Reserve Balance, as required to be
deposited to the Debt
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Service Reserve Account pursuant to clause (b) of Section 4.3 of
the Loan Agreement:
(iii) CASH EQUIVALENT INVESTMENTS: all Cash Equivalent
Investments acquired by the Account Bank for or in connection with
the Project Accounts at the direction of the Borrower and/or the
Agent (as appropriate) pursuant to clause (a)(ii) of Section 5,
together with all proceeds thereof and other income earned thereon:
and
(iv) INTEREST: pursuant to clause (h) of Section 4.4 of
the Loan Agreement, interest accrued in respect of each of the
foregoing amounts.
(b) ACCOUNT BALANCES. All of the items from time to time
standing to the credit of any Project Account are collectively referred
to as the "Account Balance" of such Project Account, which term shall
include (for the avoidance of doubt and unless otherwise indicated) Cash
Equivalent Investments purchased with funds standing to the credit of
such Project Account.
(c) IDENTIFYING PROJECT ACCOUNTS. If any person (other than the
Borrower) shall deposit or attempt to deposit any funds, moneys or other
property into any Project Account and the Account Bank has not
previously been advised by the Borrower (or, after receipt by the
Account Bank of an Enforcement Notice, by the Agent) as to the making of
such deposit or attempted deposit together with the relevant particulars
thereof, the Account Bank will promptly seek confirmation from the
Borrower (or, after receipt by the Account Bank of an Enforcement
Notice, the Agent) so as to determine the appropriate Project Account
into which such amount is to be deposited. If, before the Account Bank's
receipt from the Agent of an Enforcement Notice, the Borrower fails to
confirm promptly the identity of the appropriate Project Account as
aforesaid, or it the Borrower fails to designate the relevant Project
Account for any fund, money or other property to be deposited by it or
to be deposited on its behalf, then, in either such case, the Account
Bank is authorised and directed to accept Instructions from the Agent in
determining the appropriate Project Account into which any relevant
amount is to be deposited.
(d) INVESTING FUNDS. The Account Bank will not be required to
invest any funds held under this Agreement except as it may be directed
to hold Cash Equivalent Investments pursuant to clause(a)(ii) of Section
5.
SECTION 5. PAYMENTS FROM PROJECT ACCOUNTS; CASH EQUIVALENT
INVESTMENTS.
(a) PAYMENTS. Subject to Section 6, the Account Bank is hereby
authorised and directed (and the Account Bank hereby agrees) to take the
following actions with respect to the Account Balances as directed
(prior to receipt from the Agent of a Default Notice or an Enforcement
Notice) pursuant to Instructions from the Borrower (and the Borrower
shall simultaneously deliver a copy of such Instructions to the Agent):
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(i) PAYMENTS UNDER LOAN AGREEMENT: prior to receipt
from the Agent of a Default Notice, to transfer or pay funds from
the Project Accounts for the purposes described in and subject to
the requirements of clause (b) of Section 4.1 of the Loan
Agreement and clause (c) of Section 4.3 of the Loan Agreement:
(ii) INVESTING IN CASH EQUIVALENT INVESTMENTS: prior to
receipt from the Agent of a Default Notice and provided that the
Account Bank's account terms governing the Project Accounts from
time to time permit the investment of balances standing to the
credit thereof in Cash Equivalent Investments, to invest the
balances standing to the credit of the Project Accounts in, or to
sell, transfer or otherwise dispose of, Cash Equivalent
Investments (subject to the restrictions contained in clause (f)
of Section 4.4 of the Loan Agreement), together with all proceeds
thereof and other income earned thereon and all interest and
other amounts accruing in respect of the foregoing, and
(iii) ACTION FOLLOWING DEFAULT NOTICE: upon receipt from
the Agent of a Default Notice but prior to receipt from the Agent
of an Enforcement Notice to transfer or pay funds from the
Project Accounts, if and only if the relevant Instructions from
the Borrower have been countersigned by the Agent and only for
the purposes described in clause (e) of Section 4.4 of the Loan
Agreement.
SECTION 6. APPLICATION OF ACCOUNT BALANCES AND CASH EQUIVALENT
INVESTMENTS.
Notwithstanding any prior Instructions received pursuant to Section 5.
and subject only to the requirements of Applicable Law, the Account Bank is
hereby authorised and directed (and the Account Bank hereby agrees) to take the
following actions with respect to all Account Balances (including all Cash
Equivalent investments held in any Project Account) as the Agent shall in each
case direct:
(a) GENERAL: upon receipt from the Agent of an Enforcement
Notice, to act with respect to the Project Accounts only in accordance
with Instructions given by the Agent and from no other person.
(b) CASH: upon receipt from the Agent of an Enforcement Notice
and without prejudice to the provisions of clause (c), withdraw and
remit to the Agent or its order (in accordance with directions contained
in an Instruction issued by the Agent) all the Account Balances for
application by the Agent of the Account Balances against the Borrower's
Obligations as contemplated in the Loan Agreement; and
(c) CASH EQUIVALENTS: upon receipt from the Agent of an
Enforcement Notice, sell, liquidate, transfer or otherwise dispose of
any Cash Equivalent Investments held in the Project Accounts and to
withdraw and remit to the Agent or its order (in accordance with
directions contained in an Instruction issued by the Agent) the credit
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balance and the proceeds resulting therefrom for application by the
Agent of such credit balance and proceeds against the Borrower's
Obligations as the Agent shall direct (it being understood that any
breakage or other costs arising from such sale, etc. shall be solely for
the account of the Borrower).
SECTION 7. AUTHORISATION OF ACCOUNT BANK.
For the purpose of enabling the Account Bank to comply with and perform
its obligations under this Agreement, each of the Borrower and the Agent hereby
irrevocably authorises and empowers the Account Bank to accept Instructions from
the Borrower and/or the Agent (all in accordance with the terms and subject to
the conditions of this Agreement) in order to: (a) acquire, hold, sell,
liquidate, transfer and invest Cash Equivalent Investments hereunder for and on
behalf of the Borrower, and hold the same subject to the security granted in
favour of the Agent pursuant to the Borrower Security Agreement (Offshore
Assets) and (b) endorse, cancel, collect and execute such instruments which may
be necessary or advisable to carry out its obligations hereunder and the
Borrower agrees to issue such additional Instructions or authorisations or
powers and to take all such other actions as may be necessary in furtherance of
the provisions of this Agreement.
SECTION 8. ROLE OF ACCOUNT BANK.
(a) SOLE CONTROL: It is understood and hereby accepted and
agreed by the Account Bank and the Borrower that, without prejudice to
the provisions of Section 6, the Project Accounts shall at all times be
operated pursuant to the Instructions of the Borrower and or, as the
case may be, the Agent, as provided herein.
(b) ACCOUNT BANK HAS NO INTEREST: The Account Bank hereby
expressly acknowledges and agrees that the Project Accounts and all
balances and Cash Equivalent Investments standing to the credit thereof
are subject to the security granted by the Borrower in favour of the
Agent pursuant to the Borrower Security Agreement (Offshore Assets). The
Account Bank further acknowledges that it has no interest in any Project
Account or any Account Balance or Cash Equivalent Investment standing to
the credit thereof (except as expressly provided in this Agreement) but
is merely acting as a holder (and, for the avoidance of doubt, not as a
trustee) thereof and (subject to the provisions of Section 12)
unconditionally and irrevocably waives any right of set-off, any lien or
any other right, express or implied, which it might have in connection
with any Project Account or any Cash. Cash Equivalent Investment or
other asset standing to the credit of any thereof.
(c) AFTER DISCHARGE OF OBLIGATIONS: At such time as the Agent
shall have delivered Instructions to the Account Bank to the effect that
all the Obligations have been paid and performed in full (which
Instructions shall be provided promptly by the Agent upon such payment
and performance), the Instructions described in Section 5 and 6 and all
other Instructions received by the Account Bank from the Agent hereunder
shall thereafter be inoperative and of no further force or effect and
the Project Accounts shall be maintained and operated (or, at the
Borrower's option, closed) solely pursuant to the Instructions of the
Borrower.
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(d) RIGHT TO OBTAIN ADVICE: The Account Bank may consult with
legal advisers with respect to any matter relating to this Agreement and
shall not be liable for any action taken or omitted in accordance with
such advice except if, and to the extent that, the Account Bank shall
have been grossly negligent or shall have acted in a manner constituting
wilful misconduct, in either case in connection with any such action
taken or omitted.
(e) BORROWER TO REIMBURSE: Upon the request of the Account
Bank, the Borrower shall pay to or reimburse the Account Bank for any
amounts relating to any transfer taxes or other taxes relating to the
Account Balances incurred in connection with this Agreement and shall
indemnify and hold the Account Bank harmless from any amounts it is
obliged to pay with respect to such taxes.
(f) CASH EQUIVALENTS: The Account Bank shall not be required to
advise any party as to the selling or retaining or taking or omitting
any action with respect to any Cash Equivalent Investment or other
property deposited hereunder and in any event acts on an "execution
only" basis in connection therewith.
(g) DISPUTES AS TO PAYMENT: In the event of any disagreement
between the Borrower and the Agent resulting in adverse claims or
demands made on the Account Bank in connection with the Account
Balances, or in the event that the Account Bank, acting in good faith,
is uncertain as to what action it should take hereunder, the Account
Bank shall act on the instructions of the Agent without further question
and shall have no further liability to any party when it acts in
accordance with such Instructions.
SECTION 9. ACCOUNT BANK'S ACKNOWLEDGEMENTS, AGREEMENTS AND
REPRESENTATIONS AS TO CASH EQUIVALENT INVESTMENTS.
(a) ACKNOWLEDGMENT: The Account Bank acknowledges that it has
received an executed copy of the Borrower Security Agreement (Offshore
Assets).
(b) CASH EQUIVALENT INVESTMENTS: The Account Bank agrees that
for so long as this Agreement is in effect:
(i) all Cash Equivalent Investments purchased using any
portion of the Account Balances shall be identified by the Account
Bank in its books and records (by book-entry or otherwise) as being
subject to the security interest of the Agent granted pursuant to
the Borrower Security Agreement (Offshore Assets).
(ii) except for substitutions and withdrawals pursuant
to Instructions given by the Borrower and/or the Agent in
accordance with this Agreement, the Account Bank will hold to the
Agent's order all Cash Equivalent Investments (including all
proceeds thereof and all interest, dividends, options and other
rights and benefits arising therefrom or attaching thereto
(collectively, the "Related Property")) and for such purposes will
act (and will cause each of its
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nominees holding Cash Equivalent Investments to act) as bailee in
possession of the Cash Equivalent Investments and the Related
Property for and on behalf of the Agent:
(iii) other than as provided in clause (b)(ii), the
Account Bank will not dispose of or part with possession or control
of any of the Cash Equivalent Investments or the Related Property
except to the Agent or to one or more persons specified by the
Agent, or any other person with the Agent's prior written consent:
(iv) the Account Bank will cause all Cash Equivalent
Investments to be maintained in a book-entry account of the Account
Bank (containing only customers' assets), and
(v) the Account Bank will cause all Cash Equivalent
Investments constituting negotiable certificates of deposit or
commercial paper notes to be registered in the name of the Account
Bank or a nominee thereof.
SECTION 10. STANDARD OF CARE; INDEMNIFICATION.
(a) STANDARD OF CARE: The Account Bank undertakes and agrees to
use the same care with respect to the safekeeping and handling of the
Account Balances (including any Cash Equivalent Investments and Related
Property) as the Account Bank uses in respect of property held for its
own sole benefit. Subject to the preceding sentence, neither the Account
Bank nor any of its affiliates, directors, officers, or employees shall
be liable for any action taken or omitted to be taken by it or them
hereunder except for its or their own gross negligence or wilful
misconduct.
(b) INDEMNITY: The Borrower shall hold the Account Bank
harmless from, and fully indemnify and reimburse the Account Bank for,
all claims, liabilities, losses and expenses including reasonable
out-of-pocket expenses and legal fees) incurred by the Account Bank in
connection with this Agreement, provided that the Account Bank has not
acted with gross negligence or wilful misconduct with respect to the
events resulting in such claims, liability, loss and expenses. Without
limiting the foregoing sentence (and subject to the proviso thereof),
the Account Bank shall in no event be liable in connection with the
good-faith investment or reinvestment of any moneys held by it hereunder
in accordance with this Agreement.
(c) VERIFICATION: The Account Bank shall not (i) be under any
duty to verify (except as expressly set forth herein) that any
Instructions received from the Borrower or the Agent are in accordance
with the terms of the Borrower Security Agreement (Offshore Assets), the
Loan Agreement or any other Loan Document (and any references thereto
are solely for the convenience of the Lender Parties and the Borrower),
(ii) have any responsibility for the intended or eventual purpose or use
of any Account Balances (including any Cash Equivalent Investments or
Related Property) or any moneys released therefrom, or (iii) have any
responsibility for any provision of the Borrower Security Agreement
(Offshore Assets) or any other Loan
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Document (except for this Agreement and Instructions and other writings
delivered in connection with this Agreement). The Account Bank shall,
subject to the provisions of Section 18, be entitled to rely upon any
signature or any document, order, judgment, certification, demand
notice, instrument or other writing reasonably believed by it to be
genuine, and may assume that any person purporting to deliver any
writing in connection with the provisions hereof has been duly
authorised to do so, whether or not pursuant to the agency provisions of
the Loan Agreement or otherwise.
(d) ENTIRE AGREEMENT: This Agreement expressly sets forth all
the duties of the Account Bank with respect to any and all matters
pertinent hereto.
SECTION 11. INFORMATION.
The Account Bank agrees that it will, prior to the date which is five
(5) Business Days after the end of each calendar month, deliver to the Borrower
and to the Agent a statement (in such detail as the Agent may reasonably
request) showing:
(a) the aggregate amount of all deposits made into, and
transfers made to and from, the Project Accounts during such month, and
(b) (i) the value of the Account Balances as of the last day of
such month and (ii) a list of all Cash Equivalent Investments and
Related Property held in or in connection with the Project Accounts as
of the last day of such month.
In addition the Account Bank will provide such additional information
regarding the Project Accounts and the related Account Balances (including the
Cash Equivalent Investments and Related Property) as the Borrower or the Agent
may reasonably request from time to time.
SECTION 12. LIMITED SET-OFF.
The Account Bank agrees that it will not exercise any right of set-off
or retention or any banker's or other lien whatsoever in respect of any of the
Project Accounts arising from any claims it may have against the Borrower or
otherwise, other than in respect of any taxes, fees and expenses owing to the
Account Bank pursuant to clause (e) of Section 8, Section 13 and clause (g) of
Section 16.
SECTION 13. FEES AND EXPENSES.
(a) FEES: The Account Bank shall receive fees determined in
accordance with and payable as specified in the Schedule of Fees
attached hereto as Exhibit D (the "Fee Schedule") as the same may be
modified from time to time by agreement among the parties hereto.
(b) REIMBURSEMENT: The Account Bank shall be reimbursed by the
Borrower for all reasonable expenses, disbursements and advances
incurred or made by the Account Bank in the preparation, administration
and enforcement of this Agreement including reasonable legal fees and
expenses. The Borrower shall be liable
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for all payments due from time to time to the Account Bank under this
Agreement. In the event of default by the Borrower in the payment of any
such fees or expenses the Agent may, at its option, and without being
obliged to do so, make any such payment to the Account Bank, and the
Account Bank shall receive the same in satisfaction of such amounts due
from the Borrower. For the avoidance of doubt the Account Bank may not
resign because of any failure by the Borrower to comply with its
obligations pursuant to this Section without prior notice to the Agent
and acceptance by the Agent of such resignation (such acceptance not to
be unreasonably withheld) and the appointment of a successor Account
Bank as provided in this Agreement.
SECTION 14. NO WAIVER.
(a) NO WAIVER: No failure or delay on the part of the Agent in
exercising any power or right under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand of any
party in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by any party under this
Agreement shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions.
(b) REMEDIES CUMULATIVE: The remedies provided herein are
cumulative and not exclusive of any remedies provided by Applicable Law.
SECTION 15. LIENS.
The Borrower represents and warrants to the Account Bank and the Agent
that as of the date hereof, except as set forth herein or in the Borrower
Security Agreement (Offshore Assets), there are no liens over any Project
Account or any related Account Balance. The Account Bank shall have no
responsibility at any time for the ascertainment of the existence or
non-existence of any lien over any Project Account or any related Account
Balance. The Borrower further undertakes that the Project Accounts shall at all
times remain free and clear of all liens, other than liens created in favour of
the Agent pursuant to the Loan Documents.
SECTION 16. REMOVAL AND RESIGNATION OF THE ACCOUNT BANK: CLOSURE OF
PROJECT ACCOUNTS.
(a) REMOVAL: The Account Bank may be removed from its position
as such 15 days following, or, in the event of any breach by the Account
Bank of the terms of this Agreement, immediately following delivery to
the Account Bank of a written instrument delivered to the Account Bank
and signed by the Agent (acting at the direction of the Required Lenders
and so long as no Default is continuing subject to the consent of the
Borrower (such consent not to be unreasonably withheld)) or, so long as
no Default is continuing by a written instrument delivered to the
Account Bank and signed by the Borrower (subject to the consent of the
Agent (which shall have obtained the approval of the Required Lenders)).
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(b) RESIGNATION: The Account Bank may resign at any time upon
at least ninety (90) days' prior written notice to the Agent and the
Borrower.
(c) REAPPOINTMENT: Any such removal or resignation referred to
in clause (a) or (b) will not be effective until the appointment by the
Agent (acting at the direction of the Required Lenders and, so long as
no Default is continuing, subject to the consent of the Borrower (such
consent not to be unreasonably withheld)) of a successor for the
removed or retiring Account Bank (which successor shall be a bank
established in such jurisdiction where all actions necessary or, in
the reasonable opinion of the Agent, advisable to protect and perfect
the security granted over the Project Accounts and all related Account
Balances pursuant to the Borrower Security Agreement (Offshore Assets)
and maintain the trusts in respect of the Project Accounts created
pursuant to this Agreement shall, in each case, have been taken), the
acceptance of such appointment by the successor Account Bank and the
taking of the steps described in clause (d). The Agent may reasonably
withhold its consent to any request by the Borrower to remove the
Account Bank if the measures to protect and perfect the security
interest and maintain the trusts as described aforesaid shall not have
been taken.
(d) TRANSFER DOCUMENTS: Upon the acceptance of an appointment
as Account Bank hereunder by any successor Account Bank such successor
Account Bank shall be entitled to receive from the removed or resigning
Account Bank such documents of transfer and assignment as such successor
Account Bank may reasonably request and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the
removed or resigning Account Bank and the removed or resigning Account
Bank shall be discharged from its duties and obligations under this
Agreement and each other relevant Loan Document. The obligations of the
Borrower to the Account Bank and the rights of the Account Bank under
clause (e) of Section 8. Sections 10 and 13 and clause (g) of this
Section shall survive termination of this Agreement and or the removal
or resignation of the Account Bank.
(e) ACCOUNT CLOSURE: If the Account Balance of the Operating
Account and the Debt Service Reserve Account is zero, no Cash Equivalent
Investments are credited to or exist in connection with such Project
Accounts and the Agent shall have delivered Instructions to the Account
Bank to the effect that all the Obligations have been paid and performed
in full (which Instructions shall be provided promptly by the Agent upon
such payment and performance), the Instructions described in Sections 5
and 6 and all other Instructions received by the Account Bank from the
Agent hereunder shall thereafter be inoperative and of no further force
or effect and the Project Accounts shall be maintained and operated (or,
at the Borrower's option, closed) solely pursuant to the Instructions of
the Borrower.
(f) WIRE TRANSFER OF BALANCES: On removal or resignation of the
Account Bank pursuant to clause (a), or, as the case may be, upon the
closing of the relevant Project Accounts, the then acting Account Bank
shall wire transfer all funds capable of remittance from such Project
Accounts and deliver all Account Balances (including
-11-
Cash Equivalent Investments) in such manner as the Agent may at such
time direct, subject only to requirements or restrictions imposed by
Applicable Law.
(g) COSTS: All reasonable costs and expenses incurred in
connection with the removal or resignation of the Account Bank or the
closure of the Project Accounts shall be solely for the account of the
Borrower and shall be payable upon the removal or the resignation of the
Account Bank or, as the case may be, the closure of the Project
Accounts.
SECTION 17. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Agent and the Account Bank and their respective successors and
permitted assigns, except that: (a) the Borrower may not assign or transfer its
rights or obligations hereunder without the prior written consent of the Account
Bank and the Agent (which consent shall be given only upon the direction of the
Required Lenders): (b) the Account Bank's rights of transfer and assignment are
governed by Section 16: and (c) the rights of sale, assignment and transfer of
the Agent and the other Lender Parties are subject to the provisions of the Loan
Agreement.
SECTION 18. INSTRUCTIONS; FUND TRANSFERS; AUTHORISED SIGNATURES.
(a) AUTHORISED OFFICER: The Account Bank is authorised to rely
and act upon all instructions which comply with the other provisions of
this Agreement (including Sections 4, 5 and 6) given or purported to be
given by one or more officers or employees of the Borrower or the Agent
who are (i) authorised by or in accordance with a board resolution
delivered to the Account Bank on or prior to the date hereof pursuant to
Section 23 or (ii) described as authorised in a certificate delivered to
the Account Bank on or prior to the date hereof pursuant to Section 23
(each such officer or employee hereinafter referred to as an "Authorised
Officer" and all instructions described in and meeting the requirements
of this Section are referred to as "Instructions").
(b) INSTRUCTIONS, SIGNATURES: The term "Instructions" includes
instructions to sell, assign, transfer, deliver, purchase or receive for
any of the Project Accounts any and all Cash Equivalent Investments or
Related Property or to transfer all or any portion of the Account
Balances. "Instructions" also include, and the Account Bank may also
rely and act upon, those writings which bear, or purport to bear, the
signature or facsimile signature of any of the Authorised Officers if
such facsimile signature(s) resemble the facsimile specimen(s) from
time to time furnished to the Account Bank by any of such Authorised
Officers.
(c) MEANS OF GIVING INSTRUCTIONS: In addition, and subject to
clause(b), "Instructions" also include, and the Account Bank may rely
and act upon, communications received by telex, facsimile transmission,
bank wire or other teleprocess acceptable to it which the Account Bank
believes in good faith to have been
-12-
given by an Authorised Officer or which are transmitted with proper
testing or authentication pursuant to terms and conditions which the
Account Bank may specify.
(d) INABILITY TO VERIFY: The Account Bank shall, except in the
case of any action constituting gross negligence or wilful misconduct.
incur no liability to the Borrower and/or the Agent or otherwise for
having acted in accordance with Instructions on which it is authorised
to rely pursuant to the provisions hereof.
(e) CONTINUING NATURE: Unless otherwise expressly provided, all
authorisations and Instructions shall continue in full force and effect
until cancelled or superseded by subsequent authorisations or
Instructions received by the Account Bank. The Account Bank's
authorisation to rely and act upon Instructions pursuant to this clause
shall be in addition to, and shall not limit, any other authorisation
which the Agent may give to it hereunder.
(f) TRANSFER INSTRUCTIONS: With respect to written Instructions
or Instructions sent by facsimile transmission to transfer funds
(including sales and other dispositions of Cash Equivalent Investments
or Related Property) from the Project Accounts in accordance herewith
(such Instructions hereinafter referred to as "Transfer Instructions"),
the security procedure agreed upon for verifying the authenticity of
Transfer Instructions is a callback by the Account Bank to any of the
persons designated below, whether or not any such person has issued such
Transfer Instruction.
(i) With respect to Transfer Instructions given by the
Borrower pursuant to its authority under this Agreement:
Name Title Telephone No.
Xxxxxx Xxxxxxxx, Financial Manager x00 00 000 0000
Xxxxx Xxxxxxxx, Director x00 00 000 0000
Xxxxxxx Xxxx, Accountant x00 00 000 0000
(ii) With respect to Transfer Instructions given by the
Agent pursuant to its authority under this Agreement:
Name Title Telephone No.
Xxxxxxx Xxxxx, Director x00 000 000 0000
Xxxxx Street, Assistant Director x00 000 000 0000
Xxxxx Xxxxxxx x00 000 000 0000
-13-
Alternatively, at the Account Bank's option, the callback may be made to
any person designated in the certified resolutions or other certificates or
documentation furnished to it by a party in connection with any of the Project
Accounts as authorised to issue Transfer Instructions or otherwise transact
business with respect to the Project Accounts for that party. The Borrower and
the Agent shall implement any other authentication method or procedure or
security device reasonably required by the Account Bank with respect to Transfer
Instructions at any time or from time to time.
SECTION 19. NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications provided to any party hereto under this Agreement shall be in
writing and Section 11.2 of the Loan Agreement is hereby incorporated in this
Agreement with all necessary consequential changes save that the address of each
party for the purposes of this Section shall be the address specified under its
signature below. Simultaneously with its delivery of all notices to the Account
Bank hereunder, (a) the Borrower shall deliver a copy of each such notice to the
Agent and (b) the Agent shall deliver a copy of each such notice to the
Borrower: provided, however, that any failure by the Agent to deliver a copy as
aforesaid shall not prejudice its rights or remedies hereunder or under any
other Loan Document.
SECTION 20. WAIVERS, AMENDMENTS, ETC.
The provisions of this Agreement may from time to time be amended,
modified or waived, provided such amendment, modification or waiver is in
writing and consented to by the Borrower, the Account Bank and the Agent (acting
with the approval of the Required Lenders, or all the Lenders, as may be
required pursuant to the Loan Agreement).
SECTION 21. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which when taken together with the other executed counterparts shall constitute
one and the same instrument.
SECTION 22. GOVERNING LAW; JURISDICTION; WAIVER OF IMMUNITY.
(a) LAW: This Agreement and all matters and disputes relating
hereto shall by governed by, and construed in accordance with, English
law.
(b) JURISDICTION: Each of the parties hereto irrevocably agrees
for the benefit of each of the Lender Parties that the courts of England
shall have non-exclusive jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of
or in connection with this Agreement and, for such purposes, irrevocably
submits to the non-exclusive jurisdiction of such courts.
(c) FORUM: Each party hereto irrevocably waives any objection
which it might now or hereafter have to the courts referred to in
clause(a) being nominated as the forum to hear and determine any suit,
action or proceeding, and to settle any
-14-
disputes, which may arise out of or in connection with this Agreement
and agrees not to claim that any such court is not a convenient or
appropriate forum.
(d) PROCESS AGENT: The Borrower agrees that the process by
which any suit, action or proceeding is begun in England and Wales in
relation hereto, may be served on it by being delivered to:
Fleetside Legal Representative Services Limited at
0 Xxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
or, if different, its principal place of business for the time
being.
(e) NON-EXCLUSIVE: The submission to the jurisdiction of the
courts referred to in clause (a) shall not (and shall not be construed
so as to) limit the right of the Lender Parties or any of them to take
proceedings relating to this Agreement in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not.
(f) WAIVER OF IMMUNITY: To the extent that the Borrower may be
entitled in any jurisdiction to claim for itself or its assets, immunity
from suit, execution, attachment or other legal process whatsoever, it
hereby irrevocably agrees not to claim and hereby irrevocably waives
such immunity to the fullest extent permitted by the laws of such
jurisdiction.
SECTION 23. ADDITIONAL DOCUMENTATION.
This Agreement (with the exception of Sections 1, 3, 13 and 23) shall
not become effective until the Account Bank has provided a notice to the Agent
substantially in the form of Exhibit B certifying that the Account Bank has
received (or waived any requirement that it receive) the following:
(a) As to the Borrower:
(i) a certified resolution of its board of directors
authorising the making and performance of this Agreement, in such
form as may be agreed by the parties hereto, and
(ii) a certificate as to the names and specimen
signatures of its officers or representatives authorised to sign
this Agreement and notices, instructions and other communications
hereunder substantially in the form of Exhibit C attached hereto or
such other form as may be agreed with the Agent and the Account
Bank.
-15-
(b) As to the Agent, a certificate as to the names and specimen
signatures of its officers or representatives authorised to sign this
Agreement and notices, instructions and other communications hereunder,
substantially in the form of Exhibit C attached hereto or such other
form as may be agreed between the Agent and the Account Bank.
SECTION 24. FURTHER ASSURANCES.
The Borrower hereby undertakes with the Agent to take such further acts,
enter into such other instruments and documents and otherwise perform such
actions as may be necessary or advisable or as the Agent may otherwise request
to more fully give effect to the terms of this Agreement and the transactions
contemplated hereunder.
SECTION 25. POWER OF ATTORNEY.
The Borrower hereby irrevocably and by way of security appoints the
Agent as its attorney with full power of substitution and delegation with full
authority in its name and on its behalf from time to time in the Agent's
discretion to take any action and to execute any instrument which the Agent may
deem necessary to accomplish the intent and purposes of this Agreement. The
Borrower hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest,
and convenants to ratify all acts and things done by such attorney. The power of
attorney hereby granted is as regards the Agent and its delegates (and as the
Borrower hereby acknowledges) granted irrevocably and for value as part of the
security constituted by this Agreement to secure proprietary interests in and
the performance of obligations owed to the respective donees within the meaning
of the Power of Xxxxxxxx Xxx 0000.
-16-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective authorised officers on the day and year first
above written.
SOCIETE DES MINES DE MORILA S.A.,
By: /s/ XXXXX XXXXXXXX
------------------------------------
Name Printed: XXXXX XXXXXXXX
-------------------------
Title: DIRECTOR
--------------------------------
Address for Notices:
x/x 0 Xxxxx Xxxxxx
Xxxxx
Xxxxxxxxxxxx
X.X. Xxx 00000
Xxxxxxxxx 0000
Xxxxx Xxxxxx
Facsimile No.: 00-00-0000000
Attention: The Financial Director
-17-
per pro N M ROTHSCHILD & SONS
LIMITED.
in its capacity as the Agent
By: /s/ [ILLEGIBLE]
____________________________________
Name Printed: [ILLEGIBLE]
Title: DIRECTOR
-------------------------------
By: /s/ D.W. STREET
____________________________________
Name Printed: D.W. STREET
------------------------
Title: ASSISTANT DIRECTOR
-------------------------------
Address for Notices: Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: (00) 000-000-0000
Attention: Xxxxx Street/Xxxxx Xxxxxxx
CITIBANK. N.A., as the
Account Bank
By:___________________________________
Name Printed:________________________
Title:_______________________________
Address for Notices:
Global Corporate Banking, Jersey
00 Xxxxxxxxx
Xx. Xxxxxx
Xxxxxx
Xxxxxxx Xxxxxxx XX0 0XX
Facsimile No.: (00) 0000 000000
Attention: Xxxxx Xxxxxxx/Xxxxxx Xxxxxx
-18-
per pro N M ROTHSCHILD & SONS
LIMITED.
in its capacity as the Agent
By:___________________________________
Name Printed:________________________
Title:_______________________________
By:___________________________________
Name Printed:________________________
Title:_______________________________
Address for Notices: Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: (00) 000-000-0000
Attention: Xxxxx Street/Xxxxx Xxxxxxx
CITIBANK. N.A., as the
Account Bank
By: /s/ XXXXX XXXXXXX
____________________________________
Name Printed: XXXXX XXXXXXX
------------------------
Title: VICE PRESIDENT
-------------------------------
Address for Notices:
Global Corporate Banking Jersey
00 Xxxxxxxxx
Xx. Xxxxxx
Xxxxxx
Xxxxxxx Xxxxxxx XX0 0XX
Facsimile No.: (00) 0000 000000
Attention: Xxxxx Xxxxxxx/Xxxxxx Xxxxxx
EXHIBIT A
to
Project Account
Agreement
(Offshore)
DEFAULT NOTICE
LETTERHEAD OF N M ROTHSCHILD & SONS LIMITED
To: [ACCOUNT BANK]
Attention: [___________________]
With a copy to: Societe des Mines de Morila S.A.
[Address for Notices]
RE: PROJECT ACCOUNT AGREEMENT (OFFSHORE), DATED_____________,___________
(THE "AGREEMENT"), AMONG SOCIETE DES MINES DE MORILA S.A., AS THE
BORROWER, CITIBANK, N.A., AS THE ACCOUNT BANK AND N M ROTHSCHILD & SONS
LIMITED, AS THE AGENT.
Dear Sirs:
We wish to inform you that a Default under (and as defined in) the Loan
Agreement (as defined in the Agreement) has occurred and that upon receipt of
this Default Notice, you are no longer authorised to act pursuant to the
Borrower's Instructions (as defined in the Agreement) given pursuant to Sections
5 and 6 of the Agreement or otherwise, unless such Instructions have been
countersigned by ourselves.
per pro
N M ROTHSCHILD & SONS LIMITED, as the Agent
By:________________________________________
(Authorised Officer of the Agent)
Name Printed:___________________________
Title:__________________________________
By:________________________________________
(Authorised Officer of the Agent)
Name Printed:___________________________
Title:__________________________________
-19-
EXHIBIT B
to
Project Account
Agreement
(Offshore)
ENFORCEMENT NOTICE
LETTERHEAD OF N M ROTHSCHILD & SONS LIMITED
To: [ACCOUNT BANK]
Attention: [___________________]
With a copy to: Societe des Mines de Morila S.A.
[Address for Notices]
RE: PROJECT ACCOUNT AGREEMENT (OFFSHORE), DATED _____________, __________
(THE "AGREEMENT"), AMONG SOCIETE DES MINES DE MORILA S.A., AS THE
BORROWER, CITIBANK, N.A., AS THE ACCOUNT BANK AND N M ROTHSCHILD & SONS
LIMITED, AS THE AGENT.
Dear Sirs:
We wish to inform you that an Event of Default under (and as defined in)
the Loan Agreement has occurred and that, until you receive Instructions from
the Agent to the contrary, you are instructed to act solely in accordance with
the Agent's Instructions given pursuant to Section 6 of the Agreement.
per pro
N M ROTHSCHILD & SONS LIMITED, as the Agent
By:________________________________________
(Authorised Officer of the Agent)
Name Printed:___________________________
Title:__________________________________
By:________________________________________
(Authorised Officer of the Agent)
Name Printed:___________________________
Title:__________________________________
EXHIBIT C
to
Project Account
Agreement
(Offshore)
CERTIFICATE
To: [ACCOUNT BANK]
Attention: [________________________]
I, as the ___________ of [Societe des Mines de Morila S.A. (the
"Company")/N M Rothschild & Sons Limited (the "Agent")] hereby certify to
Citibank, N.A. (the "Bank") that I am duly authorised [pursuant to resolutions
dated _______________,__________, duly adopted by the Board of Directors of the
Company (attached hereto as Exhibit A)] to give this Certificate and that each
of the following officers and employees of the [Company/Agent] is duly
authorised to give Instructions, whether in writing, by telephone, by electronic
transmission or otherwise, to the Bank with respect to the Operating Account and
the Debt Service Reserve Account (collectively, the "Project Accounts") as more
particularly described in the Project Account Agreement (Offshore) dated
_____________,___________ (the "Project Account Agreement") between the
Bank, Societe des Mines de Morila S.A. and N M Rothschild & Sons Limited. I
confirm that each person holds the office or position indicated opposite his
name below and has the signature indicated opposite his name below:
Name Office Signature
Any person described above shall be considered an "Authorised Officer"
for all purposes of the Project Account Agreement with authority to issue
Instructions on behalf of the [Company/Agent], and to take all actions and
execute all documents on behalf of the [Company/Agent] in connection with the
Project Account Agreement.
In the case of any and every subsequent change in the individual holding
any office or position named in this certificate, or in the case of any other
change in the officers or employees authorised to give instructions with respect
to one or more of the Project Accounts, the undersigned undertakes, on behalf of
the [Company/Agent], to certify to the Bank the fact of such change and the name
and signature of the new individuals so authorised.
The Bank shall be entitled to rely and act upon this and any other
subsequent certification until it shall receive written notice from the
[Company/Agent] of any modification of the authorisation described in such
certification.
Terms for which meanings are provided in the Project Account Agreement
are, unless otherwise defined in this certificate, used in this certificate with
such meanings.
IN WITNESS WHEREOF, I have hereunto set may hand this _____________ day
of ______________________________________.
______________________________________
By:___________________________________
Name Printed:_________________________
Title:________________________________
-2-
EXHIBIT D
to
Project Account
Agreement
(Offshore)
FEE SCHEDULE
SOCIETE DES MINES DE MORILA S.A.
ACCOUNT FEE - US$20.000 per annum or part thereof, charged monthly in arrears.
BANKING CHARGES - in accordance with the standard fee schedule for transactional
services agreed from time to time and as shown below:
_____________________________________________________________________________
o PAYMENTS LEVEL PRICE IN USD
_____________________________________________________________________________
Issue Foreign Currency Payment Structured/Electronic 22.00
_____________________________________________________________________________
Repaired 32.00
_____________________________________________________________________________
Manual (Exceptional) 60.00
(Fax/Phone/Letter/Telex)
_____________________________________________________________________________
Issue Foreign Currency Payment Structured/Electronic 32.00
(-Cover Cable)
_____________________________________________________________________________
Repaired 42.00
_____________________________________________________________________________
Manual (Exceptional) 70.00
(Fax/Phone/Letter/Telex)
_____________________________________________________________________________
Issue Foreign Currency Draft Structured/Electronic 35.00
_____________________________________________________________________________
Repaired 45.00
_____________________________________________________________________________
Manual (Exceptional) 70.00
(Fax/Phone/Letter/Telex)
_____________________________________________________________________________
o BOOK ENTRIES
_____________________________________________________________________________
Internal Transfer Structured/Electronic 5.00
_____________________________________________________________________________
Rapaired 10.00
_____________________________________________________________________________
Manual (Exceptional) 50.00
(Fax/Phone/Letter/Telex)
_____________________________________________________________________________
o RECEIPTS
_____________________________________________________________________________
Foreign Currency Receipts SWIFT Credit 8.00
_____________________________________________________________________________
Foreign Currency Cheque Deposits Sent on collection 15.00
_____________________________________________________________________________
Foreign Currency Cheque Purchasing Per item (ad valorem) 0.375%
Fee
_____________________________________________________________________________
_____________________________________________________________________________
o FIXED FEES
_____________________________________________________________________________
Account Maintenance Per account, per month 40.00
_____________________________________________________________________________
-2-
EXHIBIT E
to
Project Account
Agreement
(Offshore)
LETTERHEAD OF ACCOUNT BANK
To: N M ROTHSCHILD & SONS LIMITED
Attention: [_____________________]
With a copy to: Societe des Mines de Morila S.A.
[Address for Notices]
RE: PROJECT ACCOUNT AGREEMENT (OFFSHORE), DATED _____________,__________
(THE "AGREEMENT"), AMONG SOCIETE DES MINES DE MORILA S.A., AS THE
BORROWER, CITIBANK, N.A., AS THE ACCOUNT BANK AND N M ROTHSCHILD & SONS
LIMITED, AS THE AGENT.
Dear Sirs:
We hereby inform you that we have received (or waived the requirement
that we received all of the documentation referred to in Section 23 of the
Agreement.
CITIBANK. N.A.
By:___________________________________
(Authorised Officer of the Agent)
Name Printed:_______________________
Title:______________________________
