SHAREHOLDERS' LOAN AGREEMENT
It is proposed that a Shareholders' Agreement, dated 01 August 2004, be entered
into between RANDGOLD RESOURCES (SOMILO) LIMITED, a limited company registered
in Jersey, Channel Islands (herein called the "Company"), and RANDGOLD RESOURCES
LIMITED, a limited company registered in Jersey, Channel Islands (herein called
"RRL").
1. DEFINITIONS.
1.1. GENERAL DEFINITIONS. Wherever used in this Agreement, unless the
context otherwise requires, the following terms have the
following meanings:
1.1.1. the term "Business Day" means a day on which banks are
open for business in the Channel Islands and, for the
purpose of the definition of "Interest Determination Date",
for the transaction of business in the Eurodollar Interbank
Market in London, England, as well;
1.1.2. the term "Disbursement" means any amount of the "B" Loan
which is disbursed from time to time pursuant to clause 4;
1.1.3. the term "Convention d'Etablissment" means the Loulo
Establishment Convention, dated 2 April 1993;
1.1.4. the term "Dollars" and the sign "$" mean the lawful
currency of the United States of America;
1.1.5. the term "Event of Default" means any one of the events
specified in clause 12;
1.1.6. the term "Group" means the Company its subsidiaries and
subsidiary undertakings, and their respective subsidiary
undertakings (if any), and "Group Member" means any such
entity.
1.1.7. the term "Interest Determination Date" means, as to any
Interest Period, the second Business Day before the
beginning of such Interest Period, the first of which will
commence on the 28 September 2003;
1.1.8. the term "Interest Payment Date" means any day that is 15
March, 15 June, 15 September or 15 December in any year;
provided, however, that if any Interest Payment Date would
otherwise fall on a day which is not a Business Day, such
Interest Payment Date shall be changed to the next
succeeding Business Day;
1.1.9. the term "Interest Period" means each period of three (3)
months commencing on the Interest Payment Date and ending on
the day immediately before the next following Interest
Payment Date, except in the case of the first Interest
Period applicable to each Disbursement when it shall mean
the period commencing on the date on which such Disbursement
is made and ending on the day immediately before the next
following Interest Payment Date;
1.1.10. the term "Interest Rate" means the rate of interest
payable on the Loan from time to time, determined in
accordance with clause 3;
1.1.11. the term "Loan" means the loans provided for in clause 2
or, as the context may require, the principal amount thereof
from time to time outstanding;
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1.1.12. the term "Management Agreement" means the Management
Contract between Societe des Mines de Loulo and the Company,
as approved by the Board of Directors of Societe des Mines
de Loulo on 31 July 2004.
1.1.13. the term "Net Available Cash" means the amount in Dollars
equal to the difference between (i) the sum of all amounts
of cash on hand and in demand deposits held by Societe des
Mines de Loulo on a date five (5) Business Days prior to the
relevant Interest Payment Date, and (ii) the estimated
Operating Costs for the next following quarter;
1.1.14. the term "Operating Costs" means all the items of
liability and expenditure incurred in connection with the
operations of Societe des Mines de Loulo pursuant to the
Convention d'Etablissment including without limiting the
generality of the foregoing, taxes, duties, expenditure for
spares and other goods inventory, capital expenditures
required to carry out and maintain the Project, amounts
payable to the Company under the Management Agreement,
contract sales commissions, and any amount to be paid and /
or repaid under any Senior Loan to the Company, but
excluding obligations to pay Shareholders Advances;
1.1.15. the term "RRL Group" means RRL, its subsidiaries and
subsidiary undertakings, and their respective subsidiary
undertakings, Morila Limited and Societe des Mines de Morila
S.A., and "RRL Group Member" means any such entity.
1.1.16. in this Agreement, unless the context otherwise requires,
words denoting the singular include the plural and vice
versa, words denoting persons include corporations and
partnerships, and references to a specific clause, section
or
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schedule shall be construed as a reference to that specified
clause, section or schedule of this Agreement;
2. LOAN. Subject to the terms and conditions of this Agreement, RRL
agrees to lend the Company and the Company agrees to borrow from RRL
the Loan.
2.1. "A" LOAN being the total sum of $8,379,173.58 which the Company
was advanced by RRL up to and including 30 September 2003.
2.2. "B" LOAN being an amount of $30,000,000.00 which RRL has agreed
to loan to the Company , commencing 1 October 2003. The Company
will use the funds received in terms of the Loan to provide
working capital for the Loulo Project or to fund, if required,
the Government of Mali's equity contributions in the Loulo
Project.
3. INTEREST. Interest on the Loan shall be determined, and the Company
shall pay interest on the Loan as follows:
3.1. The principal amount of the Loan from the time outstanding shall
bear interest during the relevant Interest Period at the relevant
Interest Rate, calculated in accordance with this section.
3.2. Interest shall accrue from day to day, be pro-rated on the basis
of a 360 day year for the actual number of days in the relevant
Interest Period and, subject to clause 11, be due and payable in
Dollars and on the Interest Payment Date immediately following
the end of the relevant Interest Period unless paid beforehand.
3.3. The Interest Rate shall be two per cent (2%) per annum above the
three month LIBOR rate as published on the relevant Interest
Determination Date. However, where any RRL Group Member obtains
funding in the market and lends such funds to the Company as
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part of the Loan, and such funds are directly or indirectly
utilised to partially or fully fund the Government of Mali's
equity contributions in the Loulo project, the Interest Rate on
that portion of the Loan shall be the maximum of :
(i) two per cent (2%) per annum above the three month LIBOR
rate, or
(ii) one per cent (1%) per annum above the actual rate at
which the RRL Group Member has borrowed the funds.
3.4. On each Interest Determination Date RRL shall, in accordance with
clause 3.3 above, determine the Interest Rate applicable to the
relevant Interest Period and promptly give notice thereof to the
Company.
3.5. If, for any reason, the Interest Rate cannot be determined on any
Interest Determination Date, RRL shall notify the Company
forthwith and shall determine the Interest Rate on that Interest
Determination Date, in accordance with clause 3.3 above mutatis
mutandis, using offered rates advised to RRL by any two (2) major
banks active in the Eurodollar Interbank Market in London
selected by RRL after consultation with the Company.
3.6. The determination by RRL, from time to time, of the Interest Rate
shall be final and conclusive and shall be binding upon the
Company unless shown by the Company to the satisfaction of RRL
that any such determination has involved an error.
4. DISBURSEMENT. Disbursements of the "B" Loan shall be made by RRL from
time to time for the credit to the account of the Company or Societe
des Mines de Loulo as nominated, up to the maximum "B" loan amount, as
set out in clause 2.2.
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5. PAYMENT OF PRINCIPAL AND INTEREST FROM NET AVAILABLE CASH. On each
Interest Payment Date the Company shall pay to RRL an amount equal to
the Net Available Cash determined as of the date five (5) Business
Days prior to the relevant Interest Payment Date, provided, however,
that such amount shall not be larger than the sum of (i) the amount of
the Loan from time to time outstanding on the relevant Interest
Payment Date, and (ii) the aggregate amount of any interest, deferred
interest, and any other amount due pursuant to this Agreement.
6. ALLOCATION OF NET AVAILABLE CASH PAYMENT. Notwithstanding any
instruction that the Company may give to the contrary, RRL shall
allocate any amount received pursuant to clause 5:
6.1. First, for the payment of the interest charged on the outstanding
deferred interest, if any, due and payable pursuant to clause
11.2;
6.2. Second, for the payment of the outstanding deferred interest, if
any, due and payable pursuant to clause 11.1;
6.3. Third, for the payment of the interest on the Loan, if any, due
and payable pursuant to clause 3;
6.4. Fourth, for the payment of any other amount (other than the
Loan), if any, due and payable pursuant to this Agreement; and
6.5. Fifth, for the repayment of any outstanding amount of the Loan.
7. FINAL MATURITY. In any event, notwithstanding clause 6 any amount of
the Loan outstanding and any interest and / or other sum due to RRL
under this Agreement, if any, shall be repaid to RRL on or before 31
December 2009.
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8. PLACE OF PAYMENT. Payments of principal and any other payment due to
RRL under this Agreement shall be in Dollars, in immediately available
funds, at Citibank, Jersey, Channel Islands, or at such other bank or
banks, in such place or places, as RRL shall from time to time
designate.
9. CURRENCY OBLIGATION. The obligation of the Company to pay in Dollars
the aggregate amount of the principal of, and interest on, the Loan
and any other amounts payable in Dollars under this Agreement shall
not be deemed to have been novated, discharged or satisfied by any
tender of (or recovery under judgment expressed in) any currency other
than Dollars, except to the extent to which such tender (or recovery)
shall result in the effective payment of such aggregate amount in
Dollars at the place specified pursuant to this Agreement and,
accordingly, the amount (if any) by which such tender (or recovery)
shall fall short of such aggregate amount shall be and remain due to
RRL as a separate obligation, unaffected by judgment having been
obtained (if such is the case) for any other amounts due under or in
respect of this Agreement.
10. PREPAYMENT. The Company shall have the right at any time on not less
than thirty (30) days' written notice to RRL to prepay on any Interest
Payment Date all or a part of the principal amount then outstanding on
the Loan; provided that all accrued interest on the principal amount
of the Loan to be prepaid and all other amounts due hereunder are paid
at the same time.
11. DEFERRED INTEREST. Subject to sub clause 11.1 and 11.2 of this clause,
all or part of any payment of interest on the Loan payable on the
relevant Interest Payment Date pursuant to clause 3 may be deferred if
and to the extent that the portion of the Net Available Cash paid
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to RRL on the relevant Interest Payment Date pursuant to clause 5
would not be sufficient to pay it in full.
11.1. Any amount of deferred interest shall bear interest, from the
date such amount was due until it is paid, at the Interest Rate
calculated in accordance with clause 3;
11.2. The deferral provisions in this clause shall cease to apply upon
RRL giving notice to the Company that all amounts due under this
Agreement are immediately due and payable pursuant to clause 12.1
and / or 12.2;
12. EVENTS OF DEFAULT.
12.1. If one or more of the events specified in this clause shall have
happened and be continuing, then RRL, by notice to the Company,
may declare the principal of, and all accrued interest on, the
Loan (together with any other amounts accrued or payable under
this Agreement) to be, and the same shall thereupon become,
immediately due and payable (anything in this Agreement to the
contrary notwithstanding) without further notice and without any
presentment, demand or protest of any kind, all of which are
hereby expressly waived by the Company;
12.1.1. default shall have occurred in the payment of any
principal of the Loan and such default shall have continued
for a period of five (5) days;
12.1.2. default shall have occurred in the payment of any
interest on the Loan (other than interest which may be
deferred pursuant to clause 11), and such default shall have
continued for a period of fifteen (15) days;
12.1.3. default shall have occurred in the performance of any
obligation of the Company under this Agreement (other than
any obligation for the payment of principal or
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interest under this Agreement), any other agreement between
the Company and RRL and any such default shall have
continued for a period of thirty (30) days after notice
thereof shall have been given to the Company by RRL;
12.1.4. any of the Management Agreement or the Convention
d'Etablissment shall have terminated or shall have become
ineffective, which termination or ineffectiveness, in the
opinion of RRL, is likely to have a material adverse effect
on the ability of the Group to carry out the Project or to
perform its obligations under this Agreement, and such
termination or ineffectiveness shall not be remedied to
RRL's satisfaction within a period of thirty (30) days after
notice thereof shall have been given to the Company by RRL;
12.1.5. any representation or warranty made by the Company or in
connection with the execution and delivery of this
Agreement, shall be found to have been incorrect in any
material respect and shall continue to be incorrect for a
period of thirty (30) days after notice thereof shall have
been given to the Company by RRL;
12.1.6. any government or governmental authority shall have
condemned, nationalized, seized, or otherwise expropriated
all or any substantial part of the property or other assets
of any Group Member or of its share capital, or shall have
assumed custody or control of such property or assets of the
business or operations of any Group Member or of its share
capital, or shall have taken any action for the dissolution
or dis-establishment of any Group Member or any action that
would prevent any Group Member or its officers from carrying
on its business or operations or a substantial part thereof;
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12.1.7. there shall have been entered against any Group Member a
decree or order by a court adjudging such Group Member
bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of any Group Member under any
applicable law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official)
of any Group Member or of any substantial part of its
property or other assets, or ordering the winding up or
liquidation of its affairs; or the institution by any Group
Member of proceedings to be adjudicated bankrupt or
insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the
consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of any Group
Member or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay
debts generally as they become due; or any other event shall
have occurred which under any applicable law would have an
effect analogous to any of those events listed above;
12.1.8. a default shall have occurred with respect to any
indebtedness of any Group Member in a principal amount
equivalent to $500,000 (other than the Loan) or under any
agreement pursuant to which there is outstanding any such
indebtedness of such Group Member, and any such default
shall have continued for more than any applicable period of
grace.
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12.2. If any Group Member shall have become voluntarily or
involuntarily dissolved, or become bankrupt or insolvent, the
principal of, and all accrued interest on, the Loan (together
with any other amounts accrued or payable under this Agreement)
shall thereupon become immediately due and payable (anything in
this Agreement to the contrary notwithstanding) without any
presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived by the Company.
12.3. if any Event of Default or any event which, with the lapse of
time or notice and lapse of time, would become an Event of
Default shall have happened, the Company shall immediately give
RRL notice thereof by telecopier specifying the nature of such
Event of Default or such event and any steps the Company is
taking to remedy the same.
12.4. no course of dealing and no delay in exercising, or omission to
exercise, any right, power or remedy accruing to RRL upon default
under this Agreement or any other agreement shall impair any such
right, power or remedy or be construed to be a waiver thereof or
acquiescence therein; or any acquiescence by it therein, affect
or impair any right, power or remedy of RRL in respect of such
default, or any acquiescence by it therein, affect or impair any
right, power or remedy of RRL in respect of any other default.
13. DEFAULT CHARGES. Without prejudice to the remedies available to RRL
under this agreement or otherwise, if the Company fails to make any
payment of principal or interest or any other payment on or in respect
of the Loan by its due date as specified in this agreement (whether at
stated maturity or otherwise) or, if not so specified, as notified to
the Company, the Company shall pay, in Dollars, in respect of the
principal amount of the Loan then
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outstanding, interest at the rate of one per cent (1%) per annum over
and above the relevant Interest Rate in effect from time to time from
the date such payment became due until the date of actual payment (as
well after as before judgment) and such interest shall be payable on
the next Interest Payment Date thereafter unless demanded or paid
beforehand; provided, however, that the additional interest payable
under this clause shall never exceed interest at a rate of one per
cent (1%) per annum over and above the relevant Interest Rate in
effect from time to time, on the amount of the payment in default for
the period of the default.
14. SUSPENSION AND CANCELLATION.
14.1. RRL may, by notice to the Company, suspend the right of the
Company to Disbursements of the Loan as follows:
14.1.1. If and so long as any Event of Default or any event
which, with lapse of time or notice and lapse of time as
specified in clause 12.1, would become an Event of Default
shall have happened and be continuing, or if the Event of
Default specified in clause 12.1.6 shall, in reasonable
opinion of RRL, be imminent; or
14.1.2. If, at any time in the reasonable opinion of RRL, there
shall exist any situation (except any change in the market
price of gold and the events specified in clause 12.1.6)
which indicates that the performance by the Company of any
of its obligations under this Agreement cannot be expected,
provided that in this case RRL shall specify such situation
in its notice to the Company;
14.2. RRL may, by notice to the Company, cancel the right of the
Company to Disbursements of the Loan as follows:
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14.2.1. If the first such Disbursement shall not have been made
by 31 December 2004, or such other date as may be agreed by
the parties hereto; or
14.2.2. The entire Loan amount has not been drawn on or before 30
June 2005; or
14.2.3. If RRL shall have suspended the Company's right to
Disbursements pursuant to clause 14.1 and such suspension
shall have lasted for a period of at least six (6) months
and be continuing; or
14.2.4. If RRL shall have suspended the Company's right to
disbursements pursuant to clause 14.2 and such suspension
shall have lasted for a period of at least sixty (60) days
and be continuing;
14.3. Upon the giving of any such notice, the right of the Company to
Disbursements of the undistributed part of the Loan shall be
suspended or cancelled as the case may be. The exercise by RRL of
the right of suspension shall not preclude RRL from exercising
its right of cancellation as provided in this clause, either for
the same or another reason, and shall not limit any other
provision of this Agreement.
14.4. The Company may, by notice to RRL, effective thirty (30)
Business Days after such notice is received by RRL, cancel at any
time its right to Disbursements of the Loan in whole or in part.
15. NOTICES. Any notice, request or other communication to be given or
made under this Agreement to RRL or to the Company shall be in
writing. Request or communication shall be deemed to have been duly
given or made when it shall be delivered by hand, airmail, cable,
telex or telecopier to the party to which it is required or permitted
to be given or made at such
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party's address specified below or at such other address as such party
shall have designated by notice to the party giving or making such
notice, request or other communication.
15.1. FOR THE COMPANY
Randgold Resources Somilo Limited
La Motte Xxxxxxxx
St Helier, Jersey
JEI IBJ
Channel Islands
x00 0000 000 000
15.2. FOR RRL
Randgold Resources Limited
La Motte Xxxxxxxx
St Helier, Jersey
JEI IBJ
Channel Islands
x00 0000 000 000
16. LANGUAGE OF COMMUNICATION. All documents to be furnished or
communications to be given or made under this Agreement shall be in
the English language or, if in another language, shall be accompanied
by a translation into English certified by a representative of the
Company, which translation shall be the governing version between the
Company and RRL.
17. DURATION. This Agreement shall continue in force until all monies
payable hereunder have been paid in full in accordance with the
provisions hereof.
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18. APPLICABLE LAW AND JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of England.
19. TAXES. The Company shall pay all taxes (including stamp taxes),
duties, fees or other charges payable on or in connection with the
execution, issue, delivery, registration or notarisation of this
Agreement, and any other documents related to this Agreement, and
shall, upon notice from RRL, reimburse RRL or its assigns for any
taxes, duties, fees or other charges paid by RRL or its assigns
thereon.
20. REIMBURSEMENT OF LEGAL EXPENSES.
20.1. The Company shall pay to RRL or as RRL may direct the documented
fees and expenses of RRL's outside legal counsel incurred in
connection with:
20.1.1.1. the preparation and / or review, execution and,
where appropriate, registration of this Agreement and
any other documents related to this Agreement;
20.1.1.2. the giving of any legal opinion required by RRL
hereunder;
20.1.1.3. any amendment or modification to, or waiver under,
this Agreement or any such other document; and
20.1.1.4. the registration (where appropriate) and the
delivery of the evidences of indebtedness relating to
the Loan and the Disbursements thereof.
20.2. If any amount owing to RRL under this Agreement shall be
collected through the process of law or shall be placed in the
hands of attorneys for collection, the Company shall pay (in
addition to all monies then due in respect of the Loan or
otherwise
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payable under this Agreement) reasonable attorneys' and other
fees and expenses in respect of such collection.
21. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the respective successors and assigns of the parties
hereto, except that the Company may not assign or otherwise transfer
all or any part of its rights or obligations under this Agreement
without the prior written consent of RRL.
22. DATE OF COMMENCEMENT. Notwithstanding the date of signature hereof,
the commencement date of this Agreement will be 1 October 2003.
In witness whereof, the parties hereto, acting through their duly
authorised representatives, have caused this Agreement to be signed in
their respective names.
Randgold Resources (Somilo) Limited Randgold Resources Limited
/s/ Xxxxx X. Xxxxxxxx /s/ D. Xxxx Xxxxxxx
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