EXECUTION COPY
Dated 15 June, 2001
SOCIETE DES MINES DE MORILA S.A.
as the Borrower
RANDGOLD RESOURCES LIMITED AND MORILA LIMITED(1)
as the Continuing Randgold Completion Guarantors
RANDGOLD & EXPLORATION COMPANY LIMITED
as the Retiring Randgold Completion Guarantor
VARIOUS BANKS AND OTHER FINANCIAL INSTITUTIONS
as the Lenders, Arrangers and Co-arrangers
AND
N M ROTHSCHILD & SONS LIMITED
as the Agent for the Lenders
_____________________________________________________
SUPPLEMENTAL AGREEMENT
relating to a Loan Agreement,
dated 21 December 1999
____________________________________________________
XXXXX
XXXXX
&PLATT
Xxxxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Telephone: 000 0000 0000
Fax: 000 0000 0000
Reference: 99514374
__________________________________
Previously called Randgold Resources (Morila) Limited.
THIS SUPPLEMENTAL AGREEMENT (this "AGREEMENT") is made the 15th day of
June 2001 between:
(1) SOCIETE DES MINES DE MORILA S.A. (the "BORROWER"):
(2) RANDGOLD RESOURCES LIMITED and MORILA LIMITED (collectively, the
"CONTINUING RANDGOLD COMPLETION GUARANTORS"):
(3) RANDGOLD & EXPLORATION COMPANY LIMITED (the "RETIRING RANDGOLD COMPLETION
GUARANTOR"):
(4) THE VARIOUS BANKS AND OTHER FINANCIAL INSTITUTIONS referred to on the
signature pages hereof as the Lenders, the Arrangers and the Co-Arrangers:
and
(5) N M ROTHSCHILD & SONS LIMITED, as the Agent for the Lenders (the
"AGENT").
WHEREAS:
(A) The Borrower, the Continuing Randgold Completion Guarantors. the Retiring
Randgold Completion Guarantor, the Lenders, the Arrangers, the
Co-Arrangers and the Agent entered into a Loan Agreement. dated 21 December
1999 (such Loan Agreement, as amended by the letter agreement, dated
10 April, 2000, the "ORIGINAL LOAN AGREEMENT").
(B) The parties hereto now desire to amend and restate the terms of the
Original Loan Agreement in its entirety as provided herein.
IT IS HEREBY AGREED as follows:
1. DEFINED TERMS; INTERPRETATION; DEED
Save as expressly defined herein, capitalised terms defined in the
Original Loan Agreement shall have the same meanings in this Agreement and
shall be interpreted in accordance therewith, including Article 1 thereof,
and the provisions of such Article shall apply to this Agreement, mutatis
mutandis, as if set out herein. Without limiting the generality of the
foregoing, this Agreement shall be deemed to be a Loan Document.
The parties hereto intend that this Agreement shall take effect as a deed.
2. AMENDMENT AND RESTATEMENT
With effect from the Restatement Effective Date (as defined in Clause 4,
the Borrower, the Continuing Randgold Completion Guarantors, the Retiring
Randgold Completion Guarantor and the Lender Parties agree that the
Original Loan Agreement shall be amended and restated so as to take effect
in the form set out in Exhibit A to this Agreement (the "AMENDED AND
RESTATED LOAN AGREEMENT").
3. AMENDMENTS TO THE RANDGOLD GUARANTEE AGREEMENT
With effect from the Restatement Effective Date:
(a) the Continuing Randgold Completion Guarantors, the Retiring
Randgold Completion Guarantor and the Lender Parties agree that the
Retiring Randgold Completion Guarantor shall be released from its
obligations under the Randgold Guarantee Agreement;
(b) the Continuing Randgold Completion Guarantors hereby confirm that
their obligations under the Randgold Guarantee Agreement shall
continue in full force and effect and that such obligations shall
be joint and several;
(c) the Continuing Randgold Completion Guarantors and the Lender
Parties hereby agree that the Randgold Guarantee Agreement shall be
amended as set forth below:
(i) the definition of the term "Guaranteed Obligations" shall
be deleted in its entirety and replaced with the following:
"Guaranteed Obligations" means (a) all Obligations of the
Borrower and (b) all obligations of Morila Holdings under
any Instrument entered into by it with a Lender in
connection with any Hedging Obligations, in each case
now or hereafter existing".
(ii) Section 3.3 shall be amended and restated in full to read
as set forth below:
"3.3 Economic Completion
Without limiting any other provision of this Agreement, the
Guarantors hereby irrevocably and unconditionally undertake
and agree (as primary obligors) that Economic Completion
will take place by no later than 31 December, 2001. The
Guarantors recognise that it is a condition to the
occurrence of Economic Completion that no Default shall
then have occurred and be continuing (in particular, any
Default in connection with the financial tests referred to
in Clause 9.1.19 of the Loan Agreement). As part of its
general undertakings contained in this Clause and elsewhere
in this Agreement, the Guarantors will ensure, on or prior
to 31 December, 2001 (and whether by way of a cash Capital
Contribution, the advance of Approved Subordinated
Indebtedness or otherwise in a manner which is consistent
with the Loan Documents) that the financial tests referred
to in Clause 9.1.19 of the Loan Agreement are capable of
being complied with on each Calculation Date scheduled to
occur after 31 December, 2001. In addition, the Guarantors
also undertake that, as at the Release Date, the amount
standing to the credit of the Debt Service Reserve Account
shall not be less than the Required Debt Service Reserve
Balance.";
-2-
(iii) Section 3.6 shall be deleted;
(iv) the phrase "seventy-five percent (75%)" contained in the
penultimate line of Section 3.7 shall be deleted and
replaced with the phrase "forty percent (40%)"; and
(v) the phrase "eighty percent (80%)" contained in the
penultimate and last lines of Section 3.8, shall be deleted
and replaced with the phrase "forty percent (40%)".
4. CONDITIONS TO EFFECTIVENESS
Both this Agreement and the Amended and Restated Loan Agreement shall be
and become effective on the date (the "RESTATEMENT EFFECTIVE DATE") when
the Agent shall have:
(a) received counterparts of this Agreement, duly executed by
authorised officers of each of the Borrower, the Continuing
Randgold Completion Guarantors, the Retiring Randgold Completion
Guarantor, the Lenders, the Arrangers, the Co-Arrangers and the
Agent; and
(b) confirmed to the Borrower that it has received all of the documents
and evidence listed in the First Schedule hereto and that each is,
in form and substance, satisfactory to the Agent. Except as
expressly amended by this Agreement, each of the Exhibits to
the Original Loan Agreement and each of the other Loan Documents
shall continue in full force and effect as in the form attached to
the Original Loan Agreement or, as the case may be, as originally
executed.
5. FEES
The parties hereto agree that each Lender shall receive its amendment fee
in the amount of U.S.$.10,000 within five (5) Business Days of the
Restatement Effective Date.
6. REFERENCES IN OTHER DOCUMENTS
With effect from the Restatement Effective Date, references in the Original
Loan Agreement, each other Facility Document and any other writing to the
"LOAN AGREEMENT" shall be deemed to refer to the Amended and Restated
Loan Agreement, whether or not reference is specifically made to this
Agreement.
7. CONFIDENTIALITY OBLIGATIONS
At all times during the continuance of this Agreement and after the
termination hereof (however caused) each of the Continuing Randgold
Completion Guarantors, the Retiring Randgold Completion Guarantor and the
Lender Parties shall and shall procure that their respective officers,
employees, agents and advisers shall keep secret and confidential and not
without prior written consent of the Borrower disclose to any
-3-
third party or make use of for their own purposes (otherwise than in the
context of an addition to the general experience, knowledge or expertise of
each of the Continuing Randgold Completion Guarantors, the Retiring
Randgold Completion Guarantor and the Lender Parties) any of the
confidential information, reports or documents supplied by or on behalf of
the Borrower or in the course of the negotiations leading to this Agreement
or any of the calculations made or conclusions or determinations reached in
accordance therewith.
8. PERMITTED DISCLOSURE
Any Continuing Randgold Completion Guarantor, the Retiring Randgold
Completion Guarantor or any Lender Party shall be entitled to disclose any
such confidential information, report, documentation, calculations,
conclusion or determination to any other of the Continuing Randgold
Completion Guarantors, the Retiring Randgold Completion Guarantor or the
Lender Parties or to their respective professional advisers (including the
Independent Engineer and the Insurance Consultant) or to the extent
permitted by Applicable Law (after reasonable prior notice to the
Borrower);
(a) in any proceedings arising out of or in connection with this
Agreement to the extent reasonably considered by any Continuing
Randgold Completion Guarantor, the Retiring Randgold Completion
Guarantor or any Lender Party to be desirable to protect its
interests;
(b) to any prospective assignee or sub-participant subject to obtaining
an undertaking from such prospective assignee or sub-participant in
the terms of this Clause;
(c) if required to do so by an order of any court of competent
jurisdiction;
(d) in pursuance of any procedure for discovery of documents in any
proceedings before any such court;
(e) pursuant to any law or regulation having the force of law or with
which the relevant Continuing Randgold Completion Guarantor, the
Retiring Randgold Completion Guarantor or the relevant Lender Party
is accustomed to comply; or
(f) pursuant to a requirement of any authority with whose requirements,
of the nature and to the extent in question, the relevant Lender
Party is accustomed to comply;
and any of the Continuing Randgold Completion Guarantors, the Retiring
Randgold Completion Guarantor or any Lender Party shall be entitled so to
disclose or use any such matter if the information contained therein shall
have emanated bona fide from some person other than any Obligor or any
agent of any of them, and such Continuing Randgold Completion Guarantor,
the Retiring Randgold Completion Guarantor or such Lender Party would but
for the preceding provisions of this Clause be free so to disclose or use
the same.
-4-
9. CONFIRMATION
The Borrower, the Continuing Randgold Completion Guarantors, the Retiring
Randgold Completion Guarantor and the Lender Parties confirm that the
Original Loan Agreement remains in full force and effect save as amended
pursuant to this Agreement.
10. COUNTERPARTS
This Agreement may be executed and delivered in any number of counterparts.
each of which, when so executed and delivered, shall be an original, but
all of which together shall constitute one agreement binding on all of the
parties to this Agreement.
11. GOVERNING LAW; ENTIRE AGREEMENT; JURISDICTION
(a) This Agreement and all matters and disputes relating hereto shall
be governed by, and construed in accordance with, English law.
(b) This Agreement constitutes the entire understanding among the
parties hereto with respect to the subject matter hereof and
supersedes any prior agreements, written or oral, with respect
thereto.
(c) The parties hereto hereby irrevocably agree that the courts of
England shall have non-exclusive jurisdiction to hear and determine
any suit action or proceeding (collectively, "PROCEEDINGS"), and
to settle any disputes, which may arise out of or in connection
with this Agreement and each other Loan Document and, for such
purposes, irrevocably submits to the non-exclusive jurisdiction of
such courts.
(d) Each of the Borrower, the Continuing Randgold Completion
Guarantors, the Retiring Randgold Completion Guarantor and the
Lender Parties consents generally in respect of any Proceedings to
the giving of any relief or the issue of any process in connection
with such Proceedings including, without limitation, the making,
enforcement or execution against any property or assets whatsoever
of any order or judgment which may be made or given in such
Proceedings.
-5-
The parties hereto have caused this Agreement to be duly executed and delivered
as a deed on the day and year first above written.
THE BORROWER
SOCIETE DES MINES DE MORILA
S.A.
/s/ X X Xxxxxx S Cassim
__________________________________
By:
__________________________________
Name Printed: X X XXXXXX S XXXXXX
__________________________________
Title: DIRECTORS
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THE CONTINUING RANDGOLD COMPLETION GUARANTORS
RANDGOLD RESOURCES LIMITED
/s/ Xxxxx Xxxxxxxx
__________________________
By:
XXXXX XXXXXXXX
__________________________
Name Printed:
DIRECTOR
__________________________
Title:
MORILA LIMITED
/s/ Xxxxx Xxxxxxxx
__________________________
By:
XXXXX XXXXXXXX
__________________________
Name Printed:
DIRECTOR
__________________________
Title:
-7-
THE RETIRING RANDGOLD COMPLETION GUARANTOR
RANDGOLD & EXPLORATION
COMPANY LIMITED
/s/ Xxxxx Xxxxxxxx
__________________________
By:
XXXXX XXXXXXXX
__________________________
Name Printed:
DIRECTOR
__________________________
Title:
-8-
THE LENDER PARTIES
per pro N M ROTHSCHILD & SONS
LIMITED, as the Agent, an Arranger and
a Lender
__________________________
By: /s/ X. Xxxxxxx
__________________________
Name Printed: X. XXXXXXX
__________________________
Title: DIRECTOR
__________________________
By: /s/ Xxxxxx Xxxxx
__________________________
Name Printed: Xxxxxx Xxxxx
__________________________
Title: Assistant Company Secretary
-9-
STANDARD BANK LONDON
LIMITED, as an Arranger and a Lender
/s/ Xxxxxx Xxxx
__________________________
By:
XXXXXX XXXX
__________________________
Name Printed:
HEAD OF RESOURCE BANKING
__________________________
Title:
/s/ X.X. Xxxxxxx
__________________________
By:
X.X. Xxxxxxx
__________________________
Name Printed:
Head of mining finance
__________________________
Title:
-10-
FORTIS BANK (NEDERLAND) N.V., as
a Co-Arranger and a Lender
__________________________
By: /s/ Xxxxx Boogers
__________________________
Name Printed: Xxxxx Boogers
__________________________
Title: Senior Manager
__________________________
By: /s/ Dirk Meulemeester
__________________________
Name Printed: Dirk Meulemeester
__________________________
Title: Director
-00-
XXXXXXXXXX XXXX-XXX
XXXXXXXXXXX AG, as a Co-Arranger
and a Lender
/s/ Xxxxxxxx Xxxxx
__________________________
By:
__________________________
Name Printed: XXXXXXXX XXXXX
__________________________
Title: VICE-PRESIDENT
/s/ [ILLEGIBLE]
__________________________
By:
__________________________
Name Printed: [ILLEGIBLE]
__________________________
Title: MANAGING DIRECTOR
-12-
SOCIETE GENERALE, as a Co-Arranger
and a Lender
__________________________
By:
/s/ Xxxxxx Xxxxxx
__________________________
Name Printed: XXXXXX XXXXXX
__________________________
Title: DIRECTOR, MINING PROJECT FINANCE
__________________________
By: /s/ Xxxxxxx Xxxxx
__________________________
Name Printed: XXXXXXX XXXXX
__________________________
Title: MANAGER, MINING PROJECT FINANCE
-13-
FIRST SCHEDULE
TO
SUPPLEMENTAL AGREEMENT
CONDITION PRECEDENT DOCUMENTS
1. In relation to each of the Obligors, a copy certified as being a true,
complete and up-to-date copy as at a date no earlier than the date of this
Agreement, by a duly Authorised Representative of such Obligor, of a
resolution of the board of directors of such Obligor approving the
execution and delivery of this Agreement and the performance of the Amended
and Restated Loan Agreement and the terms and conditions hereof and thereof
and authorising an Authorised Representative of such Obligor to execute
this Agreement and any other documents to be executed and delivered by such
Obligor pursuant hereto.
2. In relation to AngloGold Limited ("ANGLOGOLD"), a copy certified as being
a true, complete and up-to-date copy as at a date no earlier than the date
of this Agreement, by a duly authorised officer of AngloGold, of a
resolution of the board of directors of AngloGold approving the execution,
delivery and performance of the AngloGold Guarantee Agreement (as defined
in paragraph 4 below) and the terms and conditions thereof and authorising
an authorised officer of AngloGold to execute the AngloGold Guarantee
Agreement and any other documents, including the Operating Agreement
Guarantee, to be executed and delivered by AngloGold pursuant hereto or
thereto.
3. In relation to AngloGold Morila Holdings Limited ("ANGLOGOLD (BVI)"), a
copy certified as being a true, complete and up-to-date copy as at a date
no earlier than the date of this Agreement, by a duly authorised officer of
AngloGold (BVI), of a resolution of the board of directors of AngloGold
(BVI) approving the execution, delivery and performance of each of the
AngloGold Security Agreements (as defined in the Amended and Restated Loan
Agreement) and the terms and conditions thereof and authorising an
authorised officer of AngloGold (BVI) to execute each of the AngloGold
Security Agreements (as so defined) and any other documents to be executed
and delivered by AngloGold (BVI) pursuant hereto or thereto.
4. A counterpart of the Guarantee Agreement in substantially the form set out
in the Second Schedule hereto (the "ANGLOGOLD GUARANTEE AGREEMENT"), duly
executed and delivered by AngloGold.
5. An opinion of Xxxxxx: Xxxxxxx Xxxxxx, legal advisers in South Africa to
AngloGold, in substantially the form set out in Part 1 of the Third
Schedule hereto.
6. An opinion of Xxxxx, Xxxxx & Xxxxx, legal advisers in England to the Lender
Parties, in substantially the form set out in Part 2 of the Third Schedule
hereto.
7. A letter(s) executed by St James's Corporate Services Ltd, confirming its
appointment as process agent for AngloGold in accordance with Clause 7.5 of
the AngloGold Guarantee Agreement and Clause 11.2(a) of the Operating
Agreement Guarantee.
-14-
8. Evidence satisfactory to the Agent that the Political Risk Insurance shall
continue in full force and effect following the effectiveness and
implementation of this Agreement and the AngloGold Guarantee Agreement.
9. Evidence of the issue of all Approvals (including any relevant Approvals
from the Reserve Bank of South Africa and from the Government of Mali)
which are required (a) to enable AngloGold to enter into, and perform its
obligations under, the AngloGold Guarantee Agreement, and (b) to enable the
Original Loan Agreement to be amended and restated in the manner
contemplated by this Agreement.
10. A certificate of the Secretary or similar officer of the Operator (as
defined in the Amended and Restated Loan Agreement) as to the incumbency
and signature of those of its officers authorised to act with respect to
the Completion Certificates and each other document to be executed by it
and each other matter contemplated by the Amended and Restated Loan
Agreement, upon which certificate each Lender Party may conclusively rely
until it shall have received a further certificate of the Secretary or
similar officer of the Operator (with prospective effect only) cancelling
or amending such prior certificate.
11. A Deed of Amendment to the Borrower Security Agreement (Offshore Assets),
pursuant to which (a) the Operating Agreement is included as an Assigned
Agreement under (and as defined in) the Borrower Security Agreement
(Offshore Assets), and (b) the Obligations of Morila Holdings under the
Loan Documents are included as Liabilities under (and as defined in) the
Borrower Security Agreement (Offshore Assets), duly executed and delivered
by the Borrower and the Agent.
12. A Notice of Assignment to the Operator to evidence the assignment of the
Borrower's present and future right, title and interest under the Operating
Agreement as security pursuant to the Borrower Security Agreement
(Offshore Assets).
13. A Letter of Acknowledgement from the Operator to evidence the Operator's
acknowledgement and consent to the assignment of the Borrower's present
future right, title and interest under the Operating Agreement as security
pursuant to the Borrower Security Agreement (Offshore Assets).
14. A Step-In and Acknowledgement Agreement, executed by the Operator, the
Borrower and the Agent, pursuant to which the Operator (a) acknowledges
and consents to the security created by the Borrower Security Agreement
(Offshore Assets) over the right, benefit and interest of the Borrower
under the Operating Agreement and (b) grants the Agent the right to assume
the rights and obligations of the Borrower under the Operating Agreement
upon the occurrence of a default by the Borrower.
15. A counterpart of the Operating Agreement Guarantee in substantially the
form set out in the Fourth Schedule hereto, duly executed and delivered by
AngloGold.
16. A Deed of Amendment to the RRL Security Agreement, pursuant to which the
Obligations of Morila Holdings under the Loan Documents are included
as Liabilities
-15-
under (and as defined in) the RRL Security Agreement, duly executed and
delivered by RRL and the Agent.
-16-
EXHIBIT A
TO SUPPLEMENTAL
AGREEMENT
Dated 21 December, 1999
SOCIETE DES MINES DE MORILA S.A.
as the Borrower
RANDGOLD RESOURCES LIMITED
[RANDGOLD & EXPLORATION COMPANY LIMITED](1)
MORILA LIMITED(2)
as the Randgold Completion Guarantors
VARIOUS BANKS AND OTHER FINANCIAL INSTITUTIONS
as the Lenders
N M ROTHSCHILD & SONS LIMITED
STANDARD BANK LONDON LIMITED
as the Arrangers
BAYERISCHE HYPO-UND VEREINSBANK AG
[FORTIS BANK (NEDERLAND) N.V.](3)
[SAMPO BANK PLC](4)
SOCIETE GENERALE
as the Co-Arrangers
and
N M ROTHSCHILD & SONS LIMITED
as the Agent for the Lenders
_____________________________________________
LOAN AGREEMENT
_____________________________________________
XXXXX
XXXXX
&PLATT
Xxxxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, XXXX 0XX
Telephone: 000 0000 0000
Fax: 000 0000 0000
Reference: 99514374
-----------------------------
(1) Released from its obligations pursuant to the Supplemental Agreement.
(2) Previously called Randgold Resources (Morila) Limited.
(3) Previously called Mees Pierson N.V.
(4) Previously called Leonia Bank plc. Sampo Bank plc has transferred its
interest under the Loan Agreement to Standard Bank London Limited.
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS............................................................3
1.1 Defined Terms..................................................3
1.2 Additional Definitions........................................28
1.3 Interpretation................................................30
1.4 Use of Defined Terms..........................................31
1.5 Cross-References..............................................31
1.6 Accounting and Financial Determinations.......................31
1.7 Change in Accounting Principles...............................31
1.8 Dollar Equivalency Determinations.............................32
1.9 Project Determinations, etc...................................32
1.10 General Provisions as to Certificates and Opinions, etc.......33
2. COMMITMENTS; BORROWING AND INTEREST PERIOD
SELECTION PROCEDURES, ETC.............................................34
2.1 Commitments...................................................34
2.2 Procedure for Making Loans....................................34
2.3 Continuation Elections........................................35
2.4 Cancellation..................................................36
2.5 Records.......................................................36
2.6 Funding.......................................................36
3. PRINCIPAL PAYMENTS; INTEREST..........................................37
3.1 Principal Payments............................................37
3.2 Interest Payments.............................................38
3.3 Fees..........................................................40
4. PROJECT ACCOUNTS......................................................40
4.1 Operating Account.............................................40
4.2 Account in Mali...............................................41
4.3 Debt Service Reserve Account..................................42
-i-
TABLE OF CONTENTS
(continued)
CLAUSE PAGE
4.4 General Provisions Relating to the Project Accounts...........43
5. INCREASED COSTS; TAXES; MARKET DISRUPTIONS;
GENERAL PAYMENT PROVISIONS............................................46
5.1 Dollars Unavailable...........................................46
5.2 Increased Costs, etc..........................................47
5.3 Funding Losses................................................47
5.4 Capital Costs.................................................48
5.5 Illegality....................................................49
5.6 Taxes.........................................................49
5.7 Mitigation....................................................51
5.8 Payments, Computations, etc...................................51
5.9 Redistribution of Payments....................................52
5.10 Setoff........................................................53
5.11 Application of Proceeds.......................................54
5.12 Currency of Payment...........................................55
6. CONDITIONS PRECEDENT TO MAKING LOANS................................. 55
6.1 Initial Loans.................................................55
6.2 All Loans.....................................................61
7. REPRESENTATIONS AND WARRANTIES........................................62
7.1 Organisation, Power, Authority, etc...........................62
7.2 Due Authorisation; Non-Contravention..........................63
7.3 Validity, etc.................................................63
7.4 Legal Status..................................................64
7.5 Financial Information.........................................64
7.6 Absence of Default............................................64
7.7 Litigation, etc...............................................64
7.8 Materially Adverse Effect.....................................65
7.9 Burdensome Agreements.........................................65
TABLE OF CONTENTS
(continued)
CLAUSE PAGE
7.10 Taxes and Other Payments......................................65
7.11 Mining Rights, Project Assets, Insurance......................66
7.12 Ownership and Use of Properties; Liens........................66
7.13 Subsidiaries..................................................66
7.14 Intellectual Property.........................................67
7.15 Technology....................................................67
7.16 Approvals; Project Documents..................................67
7.17 Adequacy of Information.......................................68
7.18 Environmental Warranties......................................68
7.19 Pari Passu....................................................70
7.20 Royalties, etc................................................70
8. COVENANTS.............................................................71
8.1 Certain Affirmative Covenants.................................71
8.2 Certain Negative Covenants....................................86
9. EVENTS OF DEFAULT.....................................................94
9.1 Events of Default.............................................94
9.2 Action if Bankruptcy.........................................100
9.3 Action if Other Event of Default.............................100
9.4 Event of Default after Release Date..........................101
10. THE AGENT, THE ARRANGERS AND THE CO-ARRANGERS........................101
10.1 Appointment..................................................101
10.2 Reliance, etc................................................102
10.3 Actions......................................................103
10.4 Limitation on Actions........................................103
10.5 Indemnification by Lenders...................................104
10.6 Exculpation..................................................104
10.7 Waiver.......................................................104
10.8 Banking Activities...........................................105
TABLE OF CONTENTS
(continued)
CLAUSE PAGE
10.9 Resignation and Replacement..................................105
10.10 Discharge....................................................105
10.11 Credit Decisions.............................................106
10.12 Rothschild as the Agent......................................106
10.13 Rothschild and SBL as Arrangers..............................106
10.14 Interpretation...............................................107
10.15 Agent to Conduct Proceedings.................................107
10.16 Decisions by the Lenders.....................................107
10.17 Manner of Reference to Lenders...............................108
11. MISCELLANEOUS........................................................108
11.1 Waivers, Amendments, etc.....................................108
11.2 Notices......................................................109
11.3 Costs and Expenses...........................................110
11.4 Indemnification..............................................111
11.5 Survival.....................................................112
11.6 Severability.................................................112
11.7 Headings.....................................................113
11.8 Counterparts, Effectiveness, etc.............................113
11.9 Governing Law; Entire Agreement..............................113
11.10 Assignments and Transfers by the Obligors....................113
11.11 Assignments and Transfers by the Lenders; Additional Lender..113
11.12 Other Transactions...........................................116
11.13 Forum Selection and Consent to Jurisdiction..................116
11.14 Waiver of Immunity...........................................117
11.15 English Language.............................................117
11.16 Entire Agreement.............................................117
11.17 Confidentiality Obligations..................................117
11.18 Permitted Disclosure.........................................118
TABLE OF CONTENTS
CLAUSE PAGE
SCHEDULES
SCHEDULE 1 DISCLOSURE SCHEDULE
SCHEDULE 2 CASH FLOW SCHEDULE
SCHEDULE 3 HEDGING POLICY
SCHEDULE 4 FORM OF EXCESS CASH FLOW CALCULATION
CERTIFICATE
-i-
THIS LOAN AGREEMENT, dated 21 December, 1999 (as amended pursuant to the letter
agreement, dated 10 April, 2000 (the "LETTER AGREEMENT"), the supplemental
agreement, dated 15 June, 2001 (the "SUPPLEMENTAL AGREEMENT"), and as further
amended, modified or supplemented in accordance with the terms hereof, this
"AGREEMENT"), between:
(1) SOCIETE DES MINES DE MORILA S.A., a company (societe anonyme) organised
and existing under the laws of the Republic of Mali (the
"BORROWER");
(2) RANDGOLD RESOURCES LIMITED, a company incorporated under the laws of Jersey
("RRL")[, RANDGOLD & EXPLORATION COMPANY LIMITED, a company organised and
existing under the laws of the Republic of South Africa ("RECL"),](5) and
MORILA LIMITED(6), a company incorporated under the laws of Jersey
("MORILA HOLDINGS" and, collectively with RRL, the "RANDGOLD COMPLETION
GUARANTORS");
(3) the banking and/or financial institutions referred to on the signature
pages hereof as the lenders (collectively, the "LENDERS");
(4) N M ROTHSCHILD & SONS LIMITED, a bank organised and existing under the laws
of England (in its individual capacity, "ROTHSCHILD") and STANDARD BANK
LONDON LIMITED, a bank organised and existing under the laws of England (in
its individual capacity, "SBL"), in their capacity as arrangers of the
financing contemplated by this Agreement, (collectively, the
"ARRANGERS");
(5) BAYERISCHE HYPO-UND VEREINSBANK AG, [FORTIS BANK (NEDERLAND) N.V.](7),
[SAMPO BANK PLC](8) and SOCIETE GENERALE, in their capacity as
co-arrangers of the financing contemplated by this Agreement (collectively,
the "CO-ARRANGERS"); and
(6) Rothschild, in its capacity as the agent for the Lenders (in such capacity,
the "AGENT").
WHEREAS:
(A) The Borrower owns the Morila project comprising a gold deposit located
approximately 180 kilometres southeast of Bamako in Mali in the
Arrondissement of Sanso, Cercle of Bougouni and region of Sikasso and the
Borrower proposes to construct and operate a mine and related facilities to
mine and develop such deposit in accordance with the Development Plan (such
development, the "Morila Project");
(B) The Borrower has requested that the Lenders extend Commitments to the
Borrower to make Loans denominated in Dollars available to the Borrower for
the purpose of financing Project Costs incurred in the construction of the
Morila Project;
------------------------------
(5) Released from its obligations pursuant to the Supplemental Agreement.
(6) Previously called Randgold Resources (Morila) Limited.
(7) Previously called Mees Pierson N.V.
(8) Previously called Leonia Bank plc. Sampo Bank plc has transferred its
interest under the Loan Agreement to Standard Bank London Limited.
(B) The Borrower has requested that the Lenders extend Commitments to the
Borrower to make Loans denominated in Dollars available to the Borrower for
the purpose of financing Project Costs incurred in the construction of the
Morila Project;
(C) Each of the Lenders is willing, on the terms and conditions set forth
herein, to extend its Commitment to make Loans to the Borrower;
(D) (a) RECL owns, indirectly, 61.9% of the shares of capital stock of RRL;
(b) at all times prior to the AngloGold Acquisition Date RRL
owned, directly, one hundred percent (100%) of the shares of
capital stock of Morila Holdings; and
(c) Morila Holdings owns (together with any directors qualifying
shares held by directors of the Borrower as nominee for Morila
Holdings (collectively "DIRECTORS QUALIFYING SHARES")), directly,
eighty percent (80%) of the shares of capital stock of the
Borrower;
(E) In consideration of the Lender Parties agreeing to enter into this
Agreement, as security for the due and punctual payment and
performance of the Borrower's Obligations:
(a) the Borrower has agreed to xxxxx x xxxx to the Agent (for the
rateable benefit of the Lender Parties) over all of its right,
title and interest in and to the Project Assets;
(b) RRL has agreed to xxxxx x xxxx to the Agent (for the rateable
benefit of the Lender Parties) over all of its right, title and
interest in and to the shares of capital stock of Morila
Holdings;
(c) Morila Holdings has agreed to xxxxx x xxxx to the Agent (for the
rateable benefit of the Lender Parties) over all of its right,
title and interest in and to the share capital and voting rights
of the Borrower;
(d) the holders of Approved Subordinated Indebtedness have, to the
extent set forth in the relevant Subordination Agreements, agreed
to fully subordinate each and every one of its rights in respect
of indebtedness owing to them by the Borrower and RRL to the
payment and performance of the Obligations of the Borrower and
RRL, respectively; and
(e) the Completion Guarantors have agreed with the Lender Parties at
all times prior to the Release Date to jointly and severally
guarantee the due and punctual payment and performance of the
Borrower's Obligations and to enter into certain other
undertakings in favour of the Lender Parties, in each case as set
forth in the Guarantee Agreements; and
(F) On the AngloGold Acquisition Date, AngloGold Morila Holdings Limited, a
company organised and existing under the laws of the British Virgin
Islands ("ANGLOGOLD (BVI)")(and, a wholly owned subsidiary of AngloGold
Limited, a company organised and existing under the laws of the Republic of
South Africa ("ANGLOGOLD")), acquired fifty percent (50%) of the shares
of capital stock of Morila Holdings and assumed all rights and obligations
in respect of fifty percent (50%) of
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Approved Subordinated Indebtedness outstanding from the Borrower to RRL
and, in connection therewith and in connection with the effectiveness of
the Supplemental Agreement:
(a) AngloGold (BVI) has agreed:
(i) to xxxxx x xxxx to the Agent (for the rateable benefit of
the Lender Parties) over all of its right, title and
interest in and to the shares of capital stock of
Morila Holdings; and
(ii) to the extent set forth in the relevant Subordination
Agreement, to fully subordinate each and every one of its
rights in respect of indebtedness owing to it by the
Borrower to the payment and performance Obligations of
the Borrower; and
(b) AngloGold has agreed, at all times prior to the Release Date, to
guarantee the due punctual payment of the Borrower's Obligations
and to enter into certain other undertakings in favour of the
Lender Parties as set forth in the AngloGold Guarantee Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy
whereof is hereby acknowledged by each party hereto, the parties hereto hereby
agree as follows:
1. DEFINITIONS
1.1 DEFINED TERMS
The following terms (whether or not underscored) when used in this
Agreement, including its preamble and recitals, shall have the following
meanings:
"ACTUAL CASH FLOW" means, in relation to any period, the excess (if any)
of:
(a) the excess of:
(i) total Dollars realised from sales (including sales
pursuant to hedging arrangements) of Gold from Production;
less
(ii) the aggregate amount in Dollars payable by way of
production royalties calculated and payable as a percentage
of Gold produced and sold in connection with the operation
of the Mine; less
(b) Project Costs, in each case calculated for such period.
"AGENT" is defined in the preamble and shall include the Agent acting in
its capacity as security trustee pursuant to any of the Security
Agreements.
"AGREEMENT" is defined in the preamble.
"ANGLOGOLD" is defined in the sixth recital.
"ANGLOGOLD ACQUISITION DATE" means 6 July, 2000.
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"ANGLOGOLD (BVI)" is defined in the sixth recital.
"ANGLOGOLD DEBENTURE" means that certain Debenture, dated July 6, 2000,
between AngloGold (BVI) and the Agent.
"ANGLOGOLD GROUP" means AngloGold, its subsidiaries and subsidiary
undertakings and their subsidiaries and subsidiary undertakings.
"ANGLOGOLD GUARANTEE AGREEMENT" means the Guarantee Agreement between
AngloGold and the Agent entered into in connection with the implementation
of the Supplemental Agreement.
"ANGLOGOLD SECURITY AGREEMENTS" means, collectively, the AngloGold
Debenture and the AngloGold Subordination Agreement.
"ANGLOGOLD SUBORDINATION AGREEMENT" means the agreement referred to in
clause (c) of the definition of the term "Subordination Agreements".
"APPLICABLE LAW" means, with respect to any person or matter, any
supranational, national, federal, state, regional, tribal or local statute,
law, rule, treaty, convention, regulation, order, decree, directive,
consent decree, determination or other requirement (whether or not having
the force of law but being one which a responsible organisation would
regard as binding on it) relating to such person or matter and, where
applicable, any interpretation thereof by any Governmental Agency having
jurisdiction with respect thereto or charged with the administration or
interpretation thereof.
"APPLICABLE MARGIN" means:
(a) at all times prior to the Release Date one and one fifth percent
(1.20%) per annum; and
(b) at any time on or after the Release Date, two percent (2.00%) per
annum.
"APPROVAL" means an approval, authorisation, license, permit, consent,
filing or registration by or with any Governmental Agency or other person
whether or not referred to in Item 1 ("APPROVALS") of the Disclosure
Schedule.
"APPROVED SUBORDINATED INDEBTEDNESS" means any intercompany indebtedness
outstanding from the Borrower to either of RRL or AngloGold (BVI) and from
RRL to either of RECL or (at any time on or prior to the AngloGold
Acquisition Date) Barnex and which is, in each such case, subject to the
terms and conditions of the Subordination Agreements.
"ARRANGERS" is defined in the preamble.
"AUTHORISED REPRESENTATIVE" means, relative to any Obligor or the
Independent Engineer, those of its officers whose signatures and incumbency
shall have been certified to the Agent pursuant to Clause 6.1.1 and
relative to the Operator, those of its officers whose signatures and
incumbency shall have been certified to the Agent pursuant to the First
Schedule to the Supplemental Agreement.
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"BARNEX" means Barnato Exploration Limited, a company organised and
existing under the laws of South Africa.
"BARNEX LOAN AGREEMENT" means, collectively, the two agreements, dated 27
August, 1999 and 10 December, 1999, and each between Barnex and RRL.
"BASE CASE CASH FLOW MODEL" means the financial model, contained on a
computer disk entitled "Morila Project - Base Case Cash Flow Model" and
delivered by the Agent to the Lenders in connection with the implementation
of the Supplemental Agreement.
"BORROWER" is defined in the preamble.
"BORROWER SECURITY AGREEMENT (FIXED ASSETS)" means the Security
Agreement, dated on or about the date of the Supplemental Agreement,
between the Borrower and the Agent.
"BORROWER SECURITY AGREEMENT (MALI BANK ACCOUNT CHARGE)" means the
Security Agreement between the Borrower, the Agent and the Project Account
Bank (Mali), substantially in the form of Exhibit A-3 attached hereto.
"BORROWER SECURITY AGREEMENT (MALI GOODWILL CHARGE)" means the Security
Agreement between the Borrower and the Agent, substantially in the form of
Exhibit A-1 attached hereto.
"BORROWER SECURITY AGREEMENT (MALI EXPLOITATION PERMIT CHARGE)" means the
Security Agreement between the Borrower and the Agent, substantially in the
form of Exhibit A-2 attached hereto.
"BORROWER SECURITY AGREEMENT (OFFSHORE ASSETS)" means the Security
Agreement between the Borrower and the Agent, substantially in the form of
Exhibit A-4 attached hereto.
"BORROWING DATE" means a Business Day (occurring on or prior to the
Commitment Termination Date and coinciding with the first day of an
Interest Period with respect to the relevant Loans) on which Loans are to
be made pursuant to Clause 2.2.
"BORROWING REQUEST" means a loan request and certificate duly executed by
an Authorised Representative of the Borrower, substantially in the form of
Exhibit H attached hereto.
"BUSINESS DAY" means:
(a) any day which is not a Saturday, Sunday, legal holiday or any other
day on which banks are authorised or required to be closed in
London, England, Amsterdam, The Netherlands or New York, New York;
and/or
(b) relative to the calculation of the LIBO Rate, any day on which
dealings in Dollars are carried on in the London interbank market;
and/or
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(c) relative to the determination of the London Gold Price or the
determination of the Dollar equivalent of any amount based on the
London Gold Price, any day on which dealings in Gold are carried on
between members of the LBMA in London.
"CALCULATION DATE" means each 31 March, 30 June, 30 September and 31
December in each calendar year commencing with the first such date to occur
after the Economic Completion Date.
"CAPITAL CONTRIBUTION" means a cash contribution made (whether in cash or
otherwise and whether directly or indirectly) by one person to the ordinary
share capital or equity of another person.
"CAPITAL EXPENDITURES" means, for any period and with respect to any
person, the sum of:
(a) the aggregate amount of all expenditures of such person for fixed
or capital assets (including expenditures incurred in connection
with deferred development costs) made during such period which
would be classified as capital expenditures;
PLUS
(b) the aggregate amount of all Capital Leases which such person has
entered into as lessee.
"CAPITAL LEASES" means any lease of property (real or personal) which
would be classified as a borrowing.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) securities maturing not more than twelve (12) months from the date
of issue, which are issued by the government of any of Japan,
Germany, France, the United Kingdom or the United States; or
(b) any negotiable certificate of deposit or bankers' acceptance (in
either case, in certificated form and denominated in U.S. Dollars),
maturing not more than one year after such time, which is issued
(or, in the case of a bankers' acceptance, accepted) by a
commercial banking institution organised under the laws of an OECD
member country that has a combined capital and surplus and
undivided profits of not less than U.S.$1,000,000,000 (or the
equivalent thereof in any other currency).
"CASH FLOW MODEL" means the computer model used to prepare the Cash Flow
Schedule, a copy of which is held by the Agent and the Borrower and
identified as Morila 2001 v2.0, as the same may be amended, modified or
supplemented from time to time as a result of changes thereto made pursuant
to Clause 1.9(b)(ii).
"CASH FLOW SCHEDULE" means the schedule of projected Future Net Cash Flow
of the Morila Project produced from the Cash Flow Model, currently in the
form of Schedule 2 attached hereto, and as the same may be amended,
modified or
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supplemented from time to time as a result of changes in any of parameters
contemplated by the Cash Flow Model.
"CASH SWEEP CALCULATION DATE" means, in connection with each Cash Sweep
Calculation Period, the last Business Day of the second calendar month
immediately following the last Business Day of such Cash Sweep Calculation
Period.
"CASH SWEEP CALCULATION PERIOD" means, initially, the period commencing
with the first Business Day after the Release Date and ending on the last
Business Day of the calendar quarter in which such Business Day occurs, and
thereafter each consecutive calendar quarter.
"CFA" means the lawful currency of Mali as in effect from time to
time.
"CHANGE IN CONTROL" means any of:
(a) the failure of Morila Holdings to own (and to have sole power to
vote and dispose of), directly and free and clear of all liens
(other than the lien in favour of the Lender Parties granted
pursuant to the Morila Holdings Security Agreement and inclusive of
Directors Qualifying Shares), at least eighty percent (80%) of the
share capital (however designated) of the Borrower;
(b) the failure of RRL and AngloGold (BVI) to own (and to have sole
power to vote and dispose of), collectively, directly and free and
clear of all liens (other than the liens in favour of the Lender
Parties granted pursuant to the RRL Security Agreement and the
AngloGold Debenture), one hundred percent (100%) of the share
capital (however designated) of Morila Holdings;
(c) the failure of AngloGold (BVI) to own (and to have sole power to
vote and dispose of), directly or indirectly and free and clear of
all liens (other than the liens in favour of the Lender Parties
granted pursuant to the AngloGold Debenture) at least fifty percent
(50%) of the share capital (however designated) of Morila Holdings;
or
(d) the failure of AngloGold to own (and to have sole power to vote and
dispose of) directly or indirectly and free and clear of all liens,
one hundred percent (100%) of the share capital (however
designated) of AngloGold (BVI).
"CO-ARRANGERS" is defined in the preamble.
"COMMITMENT" means, relative to any Lender, such Lender's obligation to
make and to maintain its Loans, in each case pursuant to the terms and
subject to the conditions of this Agreement.
"COMMITMENT AMOUNT" means:
(a) in relation to any Lender party hereto on the Supplemental
Agreement Effective Date, the amount set forth opposite its name
on the signature
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pages hereto under the heading "COMMITMENT AMOUNT" as the same may be
reduced pursuant to this Agreement; and
(b) in relation to a Transferee Lender which becomes a Lender
subsequent to the Supplemental Agreement Effective Date, the amount
(if any) of such Commitment Amount assumed from the Transferor Lender
pursuant to the Transfer Certificate by which such Transferee Lender
became a party to this Agreement as a Lender, in each case as such
amount may be adjusted pursuant to any other Transfer Certificate to
which such Lender or Transferee Lender, as the case may be, is a
party.
"COMMITMENT TERMINATION DATE" means the date which is five (5) Business
Days after the occurrence of the Supplemental Agreement Effective Date or
if earlier, the date of the termination of each Commitment pursuant to
Clause 9.2 or 9.3.
"COMMITTED HEDGING AGREEMENTS" means net forward sale, spot deferred sales
or other contracts (including put options when any Obligor or AngloGold (or
any subsidiary of AngloGold) is the buyer of Gold and call options where
any Obligor or AngloGold (or any subsidiary of AngloGold) is the seller of
Gold) providing for a binding commitment to sell Gold.
"COMPLETION CERTIFICATES" means each of the Economic Completion Certificate
and the Mechanical Completion Certificate.
"COMPLETION DEPOSIT ACCOUNT" means the account maintained by RRL with the
Agent for the purpose of maintaining the cash deposit referred to in Clause
6.1.7(e).
"COMPLETION GUARANTOR PRIOR CONTRIBUTION" is defined in Clause 6.1.7(d).
"COMPLETION GUARANTORS" means, collectively, the Randgold Completion
Guarantors and AngloGold.
"COMPLIANCE CERTIFICATE" means a certificate duly executed by an Authorised
Representative of the Borrower and the Operator substantially in the form
of Exhibit J attached hereto.
"CONSTRUCTION CONTRACT" means, collectively:
(a) the "CONTRACT FOR DESIGN, SUPPLY, CONSTRUCTION AND COMMISSIONING
OF MORILA GOLD PROCESSING PLANT AND INFRASTRUCTURE" dated 11 November,
1999, between RRL and Metallurgical Design and Management Ltd; and
(b) the undertaking (Reference: C274; GM/jr/17845), from Metallurgical
Design and Management (Pty) Ltd. in favour of RRL.
"CONSTRUCTION CONTRACTOR" means, collectively, Metallurgical Design and
Management Ltd. and Metallurgical Design and Management (Pty) Ltd. or such
other company (or companies) as may be appointed to construct the Mine in
accordance with the proviso to Clause 9.1.14.
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"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by
which any person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise
to invest in, a debtor, or otherwise to assure a creditor against loss in
respect of) the indebtendness, obligation or any other liability of any
other person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions
upon the shares of any other person. The amount of any person's obligation
under any Contingent Liability shall (subject to any limitation set forth
therein) be deemed to be the outstanding principal amount (or maximum
principal amount, if larger) of the debt, obligation or other liability
guaranteed thereby.
"CONTINUATION NOTICE" means a notice of continuation and certificate duly
executed by an Authorised Representative of the Borrower, substantially in
the form of Exhibit I attached hereto.
"CONTRACTUAL OBLIGATION" means, relative to any person, any provision of
any security issued by such person or of any Instrument or undertaking to
which such person is a party or by which it or any of its property is
bound.
"DEBT SERVICE RESERVE ACCOUNT" is defined in Clause 4.3(a).
"DEFAULT" means any Event of Default or any condition or event which, after
notice, lapse of time, the making of any required determination or any
combination of the foregoing, would constitute an Event of Default.
"DEVELOPMENT PLAN" means, collectively the Feasibility Study, the Technical
Review and the Base Case Cash Flow Model. In the event of any inconsistency
between the contents of the Feasibility Study and the contents of the
Technical Review, the latter shall govern for all purposes of this
Agreement.
"DIRECTORS QUALIFYING SHARES" is defined in the fourth recital.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
Schedule 1.
"DISCOUNT RATE" means, in connection with the calculation on any date of
Present Value of Future Net Cash Flow for any current or future Calculation
Date, an interest rate per annum in the amount of the sum of:
(a) the average daily LIBO Rate (determined for nominal Interest
Periods of six (6) months) for the six (6) month period ending on such
date of calculation as certified by the Agent;
PLUS
(b) the Applicable Margin as in effect on the relevant Calculation
Date.
"DOLLAR" and the sign "U.S.$" mean lawful money of the United States of
America.
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"DOLLAR LENDING OFFICE" means:
(a) with respect to each Lender, the office of such Lender designated
as such below its signature hereto or such other office of such Lender
as may be designated from time to time by notice from such Lender to
the Agent and the Borrower; and
(b) with respect to the Agent, the office of the Agent designated as
such from time to time by notice to the Borrower and each Lender.
"ECONOMIC COMPLETION" means the achievement of certain production,
shipment, economic and legal criteria as set out in the Economic Completion
Certificate (or such other alternative criteria as the Lenders may agree
with the Borrower from time to time).
"ECONOMIC COMPLETION CERTIFICATE" means a certificate (together with all
attachments thereto) duly executed in one or more counterparts by an
Authorised Representative of the Borrower, the Operator and the Independent
Engineer, substantially in the form of Exhibit F-4 attached hereto as the
same may be amended pursuant to Clause 1.9(b)(iii) or in such other form as
the Lenders may consent to in order to reflect any alternative criteria of
the nature referred to in the definition of Economic Completion).
"ECONOMIC COMPLETION DATE" means the first Business Day immediately
following the day on which the Agent shall have received:
(a) counterparts of the Economic Completion Certificate executed by
each person referred to in the definition thereof; and
(b) a Compliance Certificate calculated (on the basis of the Cash Flow
Schedule as then in effect (including any changes thereto arising as a
result of the circumstances referred to in Clause 1.9(b)(i)(y)) as at
the proposed Economic Completion Date pursuant to Clause 8.1.1(c)
together with, in each such case, an independent verification from the
Independent Engineer in form reasonably satisfactory to the Agent with
respect to:
(x) the statements and calculations contained in such Economic
Completion Certificate and Compliance Certificate; and
(y) the development of the Morila Project in a manner which is
consistent with the Development Plan.
"EFFECTIVE DATE" is defined in Clause 11.8.
"ENFORCEMENT EVENT" shall mean either:
(a) the occurrence of any Insolvency Default; or
(b) the acceleration of all or any portion of the outstanding
Principal Amount of the Loans and/or other Obligations pursuant to
Clause 9.2 or 9.3 as a result of the occurrence of any Event of
Default.
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"ENVIRONMENTAL IMPACT STUDY" means the environmental report, dated 28
February, 1999, prepared by Digby Xxxxx & Associates.
"ENVIRONMENTAL LAW" means any Applicable Law (including Law No.
90-17/AN-RM, Law No. 86-42/AN-RM, Law Xx. 00-000/XX-XX, Xxxxxx Xx. 0000
XXXXX-XXX, Law 92-013, Law 95-004, Law 95-031 and Law 95-033 in each case,
of Mali) relating to or imposing liability or standards of conduct
concerning the environment including laws relating to reclamation of land
and waterways and laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment (including
ambient air, surface water, ground water, land surface or subsurface
strata) or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes.
"ENVIRONMENTAL REVIEW STANDARDS" is defined in of Clause 7.19(a)(i).
"ESTABLISHMENT CONVENTION" means, the Establishment Convention (Convention
D'Etablissement), dated 28th April, 1992, between the Government of Mali
and BHP Minerals International Inc. as amended by Amendment No. 1 thereto
in the form attached as Schedule 5 to the Letter Agreement.
"EVENT OF DEFAULT" is defined in Clause 9.1.
"EXCESS CASH FLOW" means, in connection with any Cash Sweep Calculation
Period, the excess (if any), of:
(a) the sum of:
(i) the Actual Cash Flow for such Cash Sweep Calculation Period;
plus
(ii) Total Cash Balances as at the first Business Day of such Cash
Sweep Calculation Period; less
(b) the amount credited to the Debt Service Reserve Account as at the
last Business Day of such Cash Sweep Calculation Period.
"EXCESS CASH FLOW CALCULATION CERTIFICATE" means a certificate in the form
of Schedule 4 attached hereto executed by a senior financial Authorised
Representative of the Borrower or similar officer of the Operator.
"FEASIBILITY STUDY" means the "FEASIBILITY REPORT ON THE MORILA PROJECT,
MALI", dated February, 1999, prepared by RRL and in the form provided to
the Lender Parties in connection with their execution of this Agreement.
"FINAL MATURITY DATE" means 31 December, 2005.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calender months ending
on 31 December (or, in the case of the period ending on 31 December, 1999,
the period of nine consecutive months ending on such date) and references
to a Fiscal
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Year with a number corresponding to any calendar year (e.g., the "1999
FISCAL YEAR") refer to the Fiscal Year ending on the 31 December occurring
during such calendar year.
"FUNDED DEBT SERVICE" means, for any period, the amount in Dollars which
will be necessary in order to pay in full all principal of and interest and
other amounts accruing in respect of Funded Indebtedness which (in the case
of all such principal, interest or other amounts) have, are scheduled to,
or otherwise are reasonably expected to, become due and payable during that
period.
"FUNDED INDEBTENDESS" means, at any date, the aggregate of the Principal
Amount of all outstanding Loans at such date.
"FUNDING PERCENTAGE" means, relative to any Lender and at any time, the
ratio (expressed as a percentage) of:
(a) such Lender's Commitment Amount at such time to;
(b) the Total Commitment Amount at such time.
"FUTURE NET CASH FLOW" means, for any period, the excess of:
(a) the Dollar equivalent (calculated at the date of determination of
Future Net Cash Flow:
(i) in the case of any such ounces of Gold which are covered by
a Required Hedging Agreement in effect on the relevant date of
calculation, at the price for delivery of Gold specified in such
Required Hedging Agreement (or, if no price other than a floor
price for delivery of Gold is specified in such Required Hedging
Agreement, the minimum price for the delivery of Gold referred
to therein); and
(ii) in the case of all other such ounces of Gold, at the
average London Gold Price for the six month period immediately
preceding the date of calculation of Future Net Cash Flow)
of the excess of (x) the total estimated ounces of Gold from
Production during such period less (y) the aggregate payments of
ounces of Gold payable (whether in cash or in kind) during such period
by way of production royalties calculated by reference to a percentage
of Gold produced and sold in connection with the operations of the
Mine,
LESS
(b) Project Costs for such period.
"GAAP" is defined in Clause 1.6.
"GOLD" means gold bullion measured in fine ounces xxxx weight.
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"GOVERNMENTAL AGENCY" means any supranational, national, federal, state,
regional, tribal or local government or governmental department or other
entity charged with the administration, interpretation or enforcement of
any Applicable Law.
"GROUP" means the AngloGold Group, the RRL Group, the Morila Holdings Group
and, to the extent not included in the foregoing, the Relevant Group
Companies, and "GROUP MEMBER" means any such entity.
"GUARANTEE AGREEMENTS" means, collectively, the AngloGold Guarantee
Agreement and the Randgold Guarantee Agreement.
"HAZARDOUS MATERIAL" means any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material, substance or waste within the
meaning of any Environmental Law.
"HEDGING OBLIGATIONS" means, with respect to any person, all liabilities of
such person under interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, and all other agreements,
options or arrangements designed to protect such person against
fluctuations in interest rates, currency exchange rates or precious metals
prices (including any Required Hedging Agreements).
"HEDGING POLICY" means the agreed hedging policy in connection with the
Morila Project attached hereto as Schedule 3.
"IFC SYAMA PROJECT FINANCING" means the financing for the development of
the Syama gold project in Mali owned by Societe des Mines de Syama S.A.,
a direct subsidiary of RRL, made available pursuant to the Project Funds
Agreement, dated 2 June, 1998, among Societe des Mines de Syama S.A., RRL
and International Finance Corporation.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or report of
any independent certified public accountant or any independent chartered
accountant as to any financial statement of any Obligor, any qualification
or exception to such opinion or report:
(a) which suggests that such Obligor is not or may not be a "GOING
CONCERN" or which is of a similar nature to the same;
(b) which suggests that there has been any limitations in the scope
of examination of material matters relevant to such financial
statement; or
(c) which questions the treatment or classification of any item in
such financial statement and which, as a condition to its removal,
would require an adjustment to such item the effect of which would be
to cause an Event of Default to have occurred pursuant to Clause
9.1.19.
"INDEMNIFIED LIABILITIES" is defined in Clause 11.4.
"INDEMNIFIED PARTIES" is defined in Clause 11.4.
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"INDEPENDENT ENGINEER" means Xxxxxxx, Xxxxxxxxx and Xxxxxxx (U.K.) Ltd. or
such other independent mining consultant as may be retained by the Agent
(acting in consultation with the Required Lenders and agreed with the
Borrower) for purposes of reviewing the technical aspects of the Morila
Project on behalf of the Lender Parties.
"INDEPENDENT ENGINEER'S CERTIFICATE" means a certificate duly executed by
an Authorised Representative of the Independent Engineer, substantially in
the form of Exhibit F-1 attached hereto.
"INITIAL REPAYABLE INTERCOMPANY INDEBTEDNESS" means the excess of:
(a) the Completion Guarantor Prior Contribution; over
(b) U.S.$25,000,000.
"INSOLVENCY DEFAULT" means any condition or event which, after notice,
lapse of time, the making of any required determination or any combination
of the following, would constitute an Event of Default of the nature
referred to in Clause 9.1.6.
"INSTRUMENT" means any contract, agreement, indenture, mortgage, document
or writing (whether by formal agreement, letter or otherwise) under which
any obligation is evidenced, assumed, or undertaken, or any lien (or right
or interest therein) is granted or perfected or purported to be granted or
perfected.
"INSURANCE CONSULTANT" means the Bankrisk Services division of Xxxxx UK
Ltd. or such other insurance adviser of international repute as shall be
retained by the Agent (acting in consultation with the Required Lenders and
agreed with the Borrower) on behalf of the Lenders.
"INSURANCE CONSULTANT'S CERTIFICATE" means a certificate duly executed by
the Insurance Consultant, substantially in the form of Exhibit F-2 attached
hereto.
"INSURANCE SUMMARY" is defined in Clause 6.1.6.
"INTEREST PERIOD" means, relative to any Loan:
(a) initially, the period from the date such Loan is made to the day
which numerically corresponds to the date one (1), three (3) or six
(6) months thereafter (or such other date as agreed between all the
Lenders and the Borrower) as the Borrower may irrevocably select in
the Borrowing Request delivered pursuant to Clause 2.2 with respect to
such Loan; and
(b) thereafter, each period from the last day of the immediately
preceding Interest Period applicable to such Loan to the day which
numerically corresponds to such date one (1), three (3) or six (6)
months thereafter (or such other date as may be agreed between all the
Lenders and the Borrower) as the Borrower may irrevocably select in
its relevant Continuation Notice delivered pursuant to Clause 2.3;
provided, however, that:
-14-
(c) absent the timely selection of an Interest Period for a then
current Loan, the Borrower shall be deemed to have selected that the
Loan be continued as a Loan of the same type for an Interest Period of
one (1) month's or such other duration as shall be required in order
to comply with the other provisions of this Agreement;
(d) if such Interest Period for any Loan would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the
next following Business Day, unless such Business Day occurs in the
next following calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day;
(e) where all or any portion of the Principal Amount of such Loan is
to be repaid on a Principal Payment Date, the Borrower shall select,
an Interest Period relating to a portion of such Loan in at least the
amount scheduled to be repaid which ends on such Principal Payment
Date;
(f) the final Interest Period for any Loan shall end not later than the
Final Maturity Date; and
(g) the Agent shall be able to select Interest Periods satisfactory to
it pursuant to Clause 3.2.2 or after any Enforcement Event.
"INTERNATIONAL ACCOUNTING STANDARDS" means the International Accounting
Standards promulgated by the International Accounting Standards Committee.
"INVESTMENT" means, relative to any person:
(a) any loan or advance made by such person to any other person
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business);
(b) any guarantee made or issued by such person; and
(c) any ownership or similar interest held by such person in any other
person.
The amount of any Investment shall be:
(d) in the case of clauses (a) and (c), the original principal or
capital amount thereof less all returns of principal or equity thereon
(and without adjustment by reason of the financial condition of such
other person) and shall, if made by the transfer or exchange of
property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such
property; and
(e) in the case of clause (b), subject to any limitation set forth in
the relevant agreement, etc., the outstanding principal amount (or
maximum outstanding principal amount, if larger) of the debt,
obligation, or other liability guaranteed thereby or, if such
principal amount is not stated therein, or determinable pursuant to
the provisions thereof, the maximum liability reasonably anticipated
in respect thereof as determined in good faith by the person obligated
thereunder to the reasonable satisfaction of the Agent.
-15-
"LBMA" means The London Bullion Market Association.
"LENDER PARTIES" means, collectively, the Agent, the Arrangers, the
Co-Arrangers and the Lenders.
"LENDERS" is defined in the preamble.
"LETTER AGREEMENT" is defined in the preamble.
"LIBO RATE" means, relative to any Interest Period for any Loan (or,
relative to any nominal interest period of six (6) months utilised in
connection with any determination of the Discount Rate), the offered rate
of interest per annum which appears on Telerate Page 3750 (or such other
page or service in replacement thereof as may be utilised by banks
generally from time to time for the purpose of displaying London interbank
offered rates for deposits denominated in Dollars) as at 11:00 a.m.
(London time) for the number of months (or other period) comprising such
Interest Period (or, as the case may be, nominal six (6) months interest
period), calculated at the date which is two (2) Business Days prior to
the first day of such Interest Period (or, as the case may be, nominal six
(6) months interest period); provided, however, that in the event that no
such display rate is available for Dollars at such time, the Agent will
request the principal London office of each Lender to provide the Agent
with its quotation for offers of Dollar deposits to leading banks in the
London interbank market for such period and in an amount comparable to the
aggregate Principal Amount of such Lender's Loans, and the "LIBO RATE"
shall equal the average (rounded upwards to the nearest four decimal
places) of such quoted rates.
"LOAN" is defined in Clause 2.1(a).
"LOAN COVER RATIO" means, for any period, the ratio, expressed as a
percentage, of:
(a) Future Net Cash Flow for such period
to
(b) Funded Debt Service for such period.
"LOAN DOCUMENT" means any of this Agreement, the Security Agreements, the
Guarantee Agreements, the Operating Agreement Guarantee, the Step-In
Agreements and each other Instrument executed by any Obligor, AngloGold or
AngloGold (BVI) evidencing any obligation (monetary or otherwise) to any
Lender Party in connection with and pursuant to this Agreement, the other
Operative Documents and the transactions contemplated hereby and thereby
and delivered to any Lender Party (including, at any time when any
Commitment is outstanding or any Principal Amount of any Loan or any
interest accrued thereon is then outstanding to any Lender Party, any
Instrument in effect at such time in connection with a Hedging Obligation
relating to Production and entered into between any Obligor, AngloGold or
AngloGold (BVI) and any Lender which remains a Lender at relevant time,
whether or not mentioned herein).
-16-
"LOAN LIFE RATIO" means, at any date, the ratio, expressed as a percentage,
of:
(a) the sum of Present Value of Future Net Cash Flow for the period
commencing on such date and ending on the Final Maturity Date plus the
amount standing to the credit of the Debt Service Reserve Account at
such date;
to
(b) Funded Indebtedness at such date.
"LONDON GOLD FIXING" means a gold price fixing meeting among the members
for the time being of the London gold market.
"LONDON GOLD PRICE" means, on any day, the fixing price per fine ounce xxxx
(in Dollars) for Gold as announced at the afternoon London Gold Fixing for
such day and which appears on Reuters Page NMR-B on such day; provided,
however, that if the afternoon London Gold Fixing shall not have occurred
for such day, the "LONDON GOLD PRICE" for such day shall be the fixing
price per fine ounce xxxx (in Dollars) for Gold as announced at the morning
London Gold Fixing for such day or if the morning London Gold Fixing shall
not have occurred for such day, the "LONDON GOLD PRICE" for such day shall
be the publicly quoted price per fine ounce xxxx (in Dollars) for Gold on
such other accessible international gold market (allowing for physical
delivery of such Gold) as may be reasonably selected by the Agent; and
provided, further, however, that in the event the Agent shall have been
unable to select any other such international gold market, then the "LONDON
GOLD PRICE" for such day shall mean such price as the Agent shall
reasonably determine. In the event that such day is not a Business Day,
then the "LONDON GOLD PRICE" shall be the London Gold Price on the most
recently preceding Business Day.
"MALI" means the Republic of Mali.
"MALI CONSENT AGREEMENT" means the Protocol Agreement between the Minister
of Finance and the Minister of Mines and Energy of the Government of Mali
and the Agent in the form attached as Schedule 6 to the Letter Agreement.
"MALI SECURITY AGREEMENTS" means, collectively, the Borrower Security
Agreement (Mali Exploitation Permit Charge), the Borrower Security
Agreement (Mali Goodwill Charge), the Borrower Security Agreement (Mali
Bank Account Charge), the Morila Holdings Security Agreement, the Borrow
Security Agreement (Fixed Assets) and all Instruments delivered pursuant to
Clause 8.1.15 which are expressed to be governed by the laws of Mali.
"MATERIALLY ADVERSE EFFECT" means the effect of any event or circumstance
(including any reduction in the gold price) which, in the reasonable
opinion of the Required Lenders:
(a) is or is likely to be materially adverse to the ability of any
Obligor, AngloGold (BVI) or AngloGold to perform or comply with any of
its obligations under the Operative Documents in a timely manner;
-17-
(b) is or is likely to be materially prejudicial to:
(i) the interests of the Lenders under the Loan Documents; or
(ii) the business, operations, financial condition or prospects of
any of the Obligors, AngloGold (BVI) or AngloGold; or
(iii) the Morila Project or the Project Assets.
"MATERIAL PROJECT DOCUMENTS" means
(a) the Construction Contract;
(b) the Mining Contract;
(c) the Power Contract;
(d) the Establishment Convention;
(e) the Mining Concession;
(f) the Mali Consent Agreement;
(g) the Operating Agreement;
(h) the Shareholders Agreement; and
(i) the Refining Agreement.
and any other document that the Borrower and the Agent agrees is a Material
Project Document.
"MATURITY" means, relative to any Loan, any date on which such Loan is
stated to be due and payable, in whole or in part, whether by required
repayment, prepayment, declaration, or otherwise.
"MECHANICAL COMPLETION" means the achievement of certain production,
shipment, economic and legal criteria referred to in the Mechanical
Completion Certificate.
"MECHANICAL COMPLETION CERTIFICATE" means a certificate (together with all
attachments thereto) duly executed in one or more counterparts by an
Authorised Representative of the Borrower, the Operator and the Independent
Engineer, substantially in the form of Exhibit F-3 attached hereto.
"MECHANICAL COMPLETION DATE" means the first Business Day immediately
following the day on which the Agent shall have received:
(j) counterparts of the Mechanical Completion Certificate executed by
each person referred to in the definition thereof; and
(k) a Compliance Certificate calculated (on the basis of the Cash Flow
Schedule as then in effect (including any changes thereto arising as a
result
-18-
of the circumstances referred to in Clause 1.9(b)(i)(y)) as at the
proposed Mechanical Completion Date pursuant to Clause 8.1.1(c)
together with, in each such case, an independent verification from the
Independent Engineer in form reasonably satisfactory to the Agent with
respect to the statements and calculations contained in such
Mechanical Completion Certificate and Compliance Certificate.
"MINE" means all properties, assets or other rights, whether real or
personal, tangible or intangible, now owned or leased or hereafter acquired
by or for the benefit of the Borrower, which assets are used or intended
for use in or forming part of the Morila Project (and, for the avoidance of
doubt, shall include:
(a) the gold deposit described in the first recital; and
(b) all associated beneficiation facilities, together with all plant
sites, waste dumps, ore dumps, crushing circuits, abandoned heaps,
power supply systems and ancillary and infrastructure facilities
located at the Morila Project which are used in connection with the
operation thereof).
"MINE OUTPUT" means all products from the Mine, including dore and Gold.
"MINING CONCESSION" means Exploitation Permit No. 99/217/PM-RM granted in
connection with the Morila Project by the Office of the Prime Minister of
Mali on 4 August, 1999.
"MINING CONTRACT" means the Mining Contract, dated as of 29 October, 1999,
between the Mining Contractor and RRL.
"MINING CONTRACTOR" means DTP Terrassement (SNC), or such other company (or
companies) as may be appointed to conduct mining operations at the Mine in
compliance with the proviso to Clause 9.1.14.
"MINING RIGHTS" means all interests in the surface of any lands, the
minerals in (or that may be extracted from) any lands, all royalty
agreements, water rights, patented and unpatented mining claims, fee
interests, mineral leases, mining licenses, profits-a-prendre, joint
ventures and other leases, rights-of-way, inurements, licenses and other
rights and interests used by or necessary to the Borrower to construct,
develop and operate the Mine.
"MONTHLY MINE REPORT" means a monthly report addressed to the Agent and the
Lenders relating to the development of the Morila Project and reporting (on
both a monthly and a cumulative basis) on committed Capital Expenditures,
Production, Project Costs and other operating information (including,
without prejudice to the other terms and conditions of this Agreement, any
deviation from the Development Plan or current Cash Flow Schedule).
"MORILA HOLDINGS" is defined in the preamble.
"MORILA HOLDINGS GROUP" means Morila Holdings, its subsidiaries and
subsidiary undertakings and their subsidiaries and subsidiary undertakings.
-19-
"MORILA HOLDINGS SECURITY AGREEMENT" means that certain Security Agreement
between Morila Holdings and the Agent substantially in the form of Exhibit
A-6 attached hereto.
"MORILA PROJECT" is defined in the first recital.
"OBLIGATIONS" means, with respect to each Obligor and/or, as the case may
be, AngloGold and/or AngloGold (BVI), all obligations of such Obligor
and/or, as the case may be, AngloGold and/or AngloGold (BVI) with respect
to the repayment or performance of all obligations (monetary or otherwise)
of such Obligor and/or, as the case may be, AngloGold and/or AngloGold
(BVI) arising under or in connection with this Agreement and each other
Loan Document and where the term "OBLIGATIONS" is used without reference to
a particular, such term means the Obligations of all Obligors, AngloGold
and AngloGold (BVI).
"OBLIGORS" means, collectively, the Borrower and the RandGold Completion
Guarantors.
"OECD" means the Organisation for Economic Cooperation and Development.
"OPERATING ACCOUNT" is defined in Clause 4.1(a).
"OPERATING AGREEMENT" means the Operator Agreement, dated 29 May, 2000,
between the Borrower and the Operator.
"OPERATING AGREEMENT GUARANTEE" means the Performance Guarantee between
AngloGold and the Agent entered into in connection with the implementation
of the Supplemental Agreement.
"OPERATIVE DOCUMENTS" means, collectively, the Loan Documents and the
Project Documents.
"OPERATOR" means AngloGold Mali SA, a company organised and existing under
the laws of Mali.
"ORGANIC DOCUMENT" means with respect to:
(a) the Borrower, its charter and by-laws (Status);
(b) each of RRL and Morila Holdings, its memorandum and articles of
association; and
(c) each Obligor, all shareholder agreements, voting trusts, and
similar arrangements applicable to any of its authorised shares of
capital stock or other equity interests.
"ORIGINAL STEP-IN AGREEMENTS" is defined in Clause 6.1.4(b).
"ORIGINAL SUBORDINATION AGREEMENTS" means those agreements referred to in
clauses (a) and (b) of the definition of the term "SUBORDINATION
AGREEMENTS".
-20-
"OUNCE" means a fine ounce xxxx weight of gold bullion in a form readily
tradeable with members of the LBMA from time to time.
"PERCENTAGE" means, relative to any Lender and at any time:
(a) if any Loans are outstanding, the ratio (expressed as a
percentage) of:
(i) the Principal Amount of such Lender's Loans at such time to;
(ii) the Principal Amount of all the Lenders' Loans at such time or;
(b) if no Loans are outstanding, the ratio (expressed as a percentage)
of:
(i) such Lender's Commitment Amount at such time to;
(ii) the Total Commitment Amount;
provided, however, that at any time when the Lenders shall have no
further Commitments hereunder and all Obligations of each Obligor in
connection with each Loan Document (excluding any Required Hedging
Agreement entered into directly by the Borrower to which a Lender is a
party) shall have been paid and performed in full then, to the extent
any such Required Hedging Agreement shall then be outstanding, the
term "PERCENTAGE" means, relative to any Lender which is a party to
any such Instrument and at any time, the ratio (expressed as a
percentage) of;
(c) the contingent net liabilities of the Borrower at such time to
such Lender under all such Required Hedging Agreements to which such
Lender is a party, to;
(d) the contingent net liabilities of the Borrower at such time to all
Lenders under all such Required Hedging Agreements to which any Lender
is a party.
"POLITICAL RISK INSURANCE" means a policy of political risk insurance in
form and substance satisfactory to the Lenders (including with respect to
the issuer of such policy) naming the Lenders as beneficiaries (which term
shall include any such policy which names the Agent or the Arrangers as
insured and the Lenders as co-insured) and insuring the Lenders for such
coverages and against such risks with respect to the Borrower's Obligations
to pay the Principal Amount of (and interest accruing on and other amounts
due in respect of) the Lenders' Loans as the Lenders shall reasonably
require.
"POLITICAL RISK INSURANCE RATE" means the per annum percentage rate payable
by way of premium in connection with the issue and maintenance of the
policy constituting Political Risk Insurance.
"POWER CONTRACT" means, collectively:
(a) the Deferred Terms Agreement, dated 9 December, 1999, between the
Borrower and Rolls-Royce Power Ventures Limited;
-21-
(b) the Energy Support Agreement, dated 9 December, 1999, between the
Borrower and Operations d'Energie de Morila; and
(c) the support undertaking, dated 29 September, 1999, from Rolls-Royce
plc in favour of RRL.
"POWER CONTRACTOR" means, collectively, Rolls-Royce Power Ventures Limited,
Operations d'Energie de Morila and Rolls-Royce plc or such other company
(or companies) as may be appointed to supply power to the Mine in
compliance with the proviso to Clause 9.1.14.
"PRESENT VALUE OF FUTURE NET CASH FLOW" means, for any period (a
"CALCULATION PERIOD"), the aggregate of discounted Future Net Cash Flow
for such Calculation Period calculated as set forth in this definition.
Each Calculation Period of six (6) months or more shall be divided into
consecutive periods (each a "DISCOUNT PERIOD") of six (6) months (or, in
the case of the last such period, the period commencing on the last day of
the penultimate such Discount Period and ending on the last day of the
Calculation Period), and shall be discounted, with respect to any Future
Net Cash Flow scheduled to accrue during any Discount Period, at the
Discount Rate as in effect on the date of calculation of Present Value of
Future Net Cash Flow to the first day of such Calculation Period from the
day which represents the mid-point of such Discount Period.
"PRINCIPAL AMOUNT" means, with respect to any Loan outstanding (or to be
outstanding) at any date, the aggregate principal amount (calculated in
Dollars) of such Loan at such date.
"PRINCIPAL PAYMENT DATE" means each 30 June and 31 December occurring
during the period commencing on (and including) 30 June, 2001 and ending on
(and including) the Final Maturity Date.
"PROCESS AGENT" is defined in Clause 11.13(c).
"PROCESS AGENT ACCEPTANCE" means a letter from the Process Agent to the
Agent, substantially in the form of Exhibit G attached hereto.
"PRODUCTION" means, for any period, the number of ounces of Gold contained
in dore which have been produced, or (in the case of any period or portion
thereof to occur in the future) which are scheduled in the Cash Flow
Schedule to be produced, at the Mine during such period.
"PROJECT ACCOUNT AGREEMENT (MALI)" means the Project Account Agreement
between the Project Account Bank (Mali), the Agent and the Borrower
substantially in the form of Exhibit D-2 attached hereto.
"PROJECT ACCOUNT AGREEMENT (OFFSHORE)" means the Project Account Agreement
between the Project Account Bank (Offshore), the Agent and the Borrower
substantially in the form of Exhibit D-1 attached hereto.
"PROJECT ACCOUNT BANK (MALI)" means Banque de Developpement du Mali (or
such other bank located in Bamako, Mali as may be appointed by the Borrower
-22-
(with the consent of the Agent) with which the Project Account (Mali) shall
be maintained).
"PROJECT ACCOUNT BANK (OFFSHORE)" means the Jersey branch of Citibank N.A.
(or such other bank located in Jersey as may be appointed by the Borrower
(with the consent of the Agent) with which the Project Accounts (Offshore)
shall be maintained).
"PROJECT ACCOUNT BANKS" means, collectively, the Project Account Bank
(Mali) and the Project Account Bank (Offshore).
"PROJECT ACCOUNT (MALI)" is defined in Clause 4.2(a).
"PROJECT ACCOUNTS (OFFSHORE)" means, collectively, the Operating Account
and the Debt Service Reserve Account.
"PROJECT ASSETS" means all properties, assets or other rights, whether real
or personal, tangible or intangible, now owned or hereafter acquired by or
for the benefit of the Borrower, which are used or intended for use in or
forming part of the Mine or the Morila Project.
"PROJECT CAPITAL COSTS" means, for any period, the aggregate of all Capital
Expenditures scheduled to be, or, as the case may be, actually paid by the
Borrower during such period in respect of constructing, reinstating,
equipping, installing and completing the Morila Project and rendering the
Morila Project operational.
"PROJECT COSTS" means, for any period, the Project Operating Costs and the
Project Capital Costs for such period.
"PROJECT DOCUMENTS" means, collectively:
(a) the Construction Contract, the Mining Contract, the Power
Contract, the Establishment Convention, the Mali Consent Agreement,
the Refining Agreement, the Mining Concession, the Operating
Agreement, the Shareholders Agreement and all related agreements or
contracts, in each case in the form provided to the Agent in
connection with its execution and delivery of this Agreement;
(b) all Required Hedging Agreements not constituting Loan Documents;
and
(c) all other Instruments (excluding any Loan Document) required to be
provided to the Agent pursuant to Clause 8.1.1(q), in each case in the
form supplied pursuant to such clause.
"PROJECT LIFE RATIO" means, at any date, the ratio, expressed as a
percentage, of:
(a) the sum of the Present Value of Future Net Cash Flow for the
period commencing on such date and ending on the last day of the
Project Period plus the amount standing to the credit of the Debt
Service Reserve Account at such date,
-23-
to
(b) Funded Indebtedness at such date.
"PROJECT OPERATING COSTS" means, for any period, all costs and expenses
scheduled to be, or, as the case may be, actually paid by the Borrower for
the purpose of operating, maintaining or protecting the Morila Project
(including the Project Assets) or in mining, milling, leaching, loading,
refining, delivering or marketing Project Output, in each case together
with any applicable income taxes scheduled to be, or, as the case may be,
actually paid during such period, including:
(a) the cash costs scheduled to be, or, as the case may be, actually
paid during such period in connection with the operation, maintenance
and reclamation of the Mine in order to mine, mill, xxxxx, refine
and/or deliver Project Output for sale, whether incurred pursuant to
any Project Document or otherwise;
(b) all profit, income, property and other taxes imposed by any
Governmental Agency, in each such case scheduled to be, or, as the
case may be, actually paid during such period;
(c) all payments scheduled to be, or as the case may be, actually paid
under any royalty agreements during such period and any production
royalties calculated and payable (whether in cash or in kind) as a
percentage of Gold produced and sold in connection with the Mine;
(d) Funded Debt Service for such period and net payments for such
period in respect of Hedging Obligations entered into by the Borrower;
and
(e) the management fee payable to the Operator during such period as
set forth in the Operating Agreement.
"PROJECT OUTPUT" means all products from the Mine.
"PROJECT PARTY" means the Borrower and any Affiliate, agent, advisor
(excluding legal advisers and other similar professional advisors not
actually engaged in the construction, development, operation or maintenance
of the Mine), contractor, consultant, officer, director or other associate
of the Borrower retained, employed or consulted by the Borrower in
connection with the consummation of the Morila Project or the operation of
the Mine.
"PROJECT PERIOD" means the period commencing on the Effective Date and
continuing until the earlier of:
(a) 31 December, 2011; and
(b) the date on which the Proven and Probable Reserve of the Mine are
scheduled to have been extracted, milled, refined and sold in
accordance with the projections set forth in the Cash Flow Schedule.
-24-
"PROJECTED CASH FLOW" means, in connection with any Cash Sweep Calculation
Period, Future Net Cash Flow for such Cash Sweep Calculation Period.
"PROVEN AND PROBABLE RESERVES" means, at any date, reserves of Gold at the
Mine as determined and calculated in accordance with standards established
from time to time by the Joint Ore Reserve Committee of the Australasian
Institute of Mining and Metallurgy, the Minerals Counsel of Australia and
the Australian Institute of Geoscientists.
"RANDGOLD COMPLETION GUARANTORS" is defined in the preamble.
"RANDGOLD GUARANTEE AGREEMENT" means the Guarantee between the Randgold
Completion Guarantors and the Agent, substantially in the form of Exhibit B
attached hereto.
"RECL" means Randgold & Exploration Company Limited, a company organised
and existing under the laws of the Republic of South Africa.
"RECL CONVERTIBLE BONDS" means U.S.$48,000,000 aggregate principal amount
of secured guaranteed convertible bonds issued by Randgold Finance (BVI)
Limited on or about 3 October, 1996 pursuant to the trust deed, dated 3
October, 1996 among Randgold Finance (BVI) Limited, RECL, Randgold
Resources (Holdings) Limited, RRL, and Marine Midland Bank, as trustee.
"REFINER" means Rothschild or such other company (or companies) as may be
appointed to refine Project Output in compliance with the proviso to Clause
9.1.14.
"REFINING AGREEMENT" means the Gold and Silver Refining and Purchase
Agreement, dated 30 November, 1999 between the Borrower and the Refiner
relating to the refining of Project Output.
"REGULATORY CHANGE" means the occurrence after the Effective Date of any
change in or abrogation of, or introduction, adoption, effectiveness or
phase-in of any:
(a) statute, law, rule or regulation applicable to any Lender Party,
or
(b) guideline, interpretation, directive, consent decree, administrative
order, request or determination (whether or not having the force of
law but being one with which such Lender Party is accustomed to
comply) applicable to such Lender Party of any court, central bank or
governmental or regulatory authority charged with the interpretation
or administration of any stature, law, rule or regulation referred to
in clause (a) or of any fiscal, monetary or other authority having
jurisdiction over such Lender Party,
or any interpretation or reinterpretation of any item or matter referred to
in clause (a) or (b) by any person with authority in connection with such
interpretation or reinterpretation.
"RELEASE DATE" means the date which is the first Business Day coinciding
with the Economic Completion Date on which the balance standing to the
credit of the Debt Service Reserve Account shall be equal to or in excess
of the then applicable
-25-
Required Debt Service Reserve Balance; provided, however, that the Release
Date may not occur on any date on which a Default shall have occurred and
be continuing.
"RELEVANT GROUP COMPANY" means any of the Borrower, any Randgold Completion
Guarantor, any subsidiary of the Borrower or any Randgold Completion
Guarantor, AngoGold and AngloGold (BVI) and "RELEVANT GROUP COMPANIES"
means all such persons; provided, however, that in Clause 7.14 and Clause
7.19(b), the term "RELEVANT GROUP COMPANY" shall not include AngloGold or
AngloGold (BVI).
"REQUIRED COMPLETION EXPENDITURES" means those bona file Project Costs
which the Agent (acting reasonably in consultation with the Independent
Engineer) determines are required to achieve Economic Completion.
"REQUIRED DEBT SERVICE RESERVE BALANCE" is defined in Clause 4.3(b)
"REQUIRED HEDGING AGREEMENTS" is defined in Clause 8.1.10.
"REQUIRED HEDGING COUNTERPARTIES" is defined in Clause 8.1.10.
"REQUIRED LENDERS" means at any time, Lenders having, in the aggregate, a
Percentage of sixty five (65%) or more at such time.
"REQUIRED MAINTENANCE EXPENDITURES" means those bona fide Project Costs
which the Agent (acting reasonably in consultation with the Independent
Engineer) determines are required to operate, manage and maintain the Mine
in normal working condition.
"REQUIREMENT OF LAW" means, as to any person, its Organic Documents and any
Applicable Law or Contractual Obligation binding on or applying to such
person.
"ROTHSCHILD" is defined in the preamble.
"RRL" is defined in the preamble.
"RRL GROUP" means RRL, its subsidiaries and subsidiary undertakings and
their subsidiaries and subsidiary undertakings.
"RRL SECURITY AGREEMENT" means that certain Security Agreement between RRL
and the Agent, substantially in the form of Exhibit A-5 attached hereto.
"SBL" is defined in the preamble.
"SECURITY AGREEMENTS" means, collectively, the Mali Security Agreements,
the Borrower Security Agreement (Offshore Assets), the RRL Security
Agreement, the Subordination Agreements, the AngloGold Debenture and all
Instruments delivered pursuant to Clause 8.1.16
"SEMI-ANNUAL MINE REPORT" means a report to the Agent and the Lenders from
the Borrower and the Independent Engineer and in a form reasonably
acceptable to the Agent and relating to the status of the Mine and the
progress of the Morila
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Project, (including, in the case of each Semi-Annual Mine Report prepared
in respect of each twelve-monthly period ending on 31 December of each
calendar year, an environmental report in reasonable detail reasonably
satisfactory to the Agent) each Obligor's, AngloGold's and AngloGold
(BVI)'s compliance with this Agreement (including the absence of any Event
of Default pursuant to Clause 9.1.19) and each other Operative Document to
which it is a party, and relating to each twelve month period ending on
December 31 of each calendar year and each six month period ending on June
30 of each calendar year.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement, dated 29 May,
2000 among the Government of Mali, Morila Holdings and the Borrower.
"STEP-IN AGREEMENTS" means, collectively:
(a) the Original Step-In Agreements; and
(b) the agreement entered into pursuant to item 14 of the First
Schedule to the Supplemental Agreement.
"SUBORDINATION AGREEMENTS" means, collectively:
(a) the Deed of Subordination and Pledge among the Borrower, RRL, RECL
and the Agent, substantially in the form of Exhibit C-1 attached
hereto;
(b) the Deed of Subordination among RRL, Banex and the Agent
substantially in the form of Exhibit C-2 attached hereto; and
(c) the Deed of Subordination and Pledge, dated July 6, 2000, among
the Borrower, AngloGold (BVI) and the Agent.
"SUBSEQUENT REPAYABLE INTERCOMPANY INDEBTEDNESS" means U.S.$15,000,000.
"SUPPLEMENTAL AGREEMENT" is defined in the preamble.
"SUPPLEMENTAL AGREEMENT DRAWDOWN" means the principal amount of Loans
advanced during the period commencing on the Supplemental Agreement
Effective Date and ending on the date which is five (5) Business Days
thereafter.
"SUPPLEMENTAL AGREEMENT EFFECTIVE DATE" means the "RESTATEMENT EFFECTIVE
DATE" as such term is defined in the Supplemental Agreement.
"TAX CREDIT" is defined in Clause 5.7(b).
"TAX PAYMENT" is defined in Clause 5.7(b).
"TAXES" is defined in Clause 5.6.
"TECHNICAL REVIEW" means the "MORILA GOLD PROJECT AUDIT", dated August,
1999, and the two addenda thereto, dated December, 1999 and April, 2001
prepared by the Independent Engineer, in the form provided to the Lender
Parties in connection with their execution of this Agreement and as the
same may be
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amended, modified or supplemented from time to time as a result of changes
thereto made pursuant to Clause 1.9(b).
"TOTAL CASH BALANCES" means, in connection with any Cash Sweep Calculation
Period, the aggregate of the amounts (calculated in Dollars) credited to
the Project Accounts (Offshore) and the Project Account (Mali) as at the
first Business Day of such Cash Sweep Calculation Period.
"TOTAL COMMITMENT AMOUNT" means, at any time, subject to the terms and
conditions of this Agreement the excess, if any, of: ***
(a) U.S.$90,000,000; less
(b) any reduction of the Total Commitment Amount effected pursuant to
Clause 2.4.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Exhibit K attached hereto executed and delivered pursuant hereto by
a Transferor Lender and a Transferee Lender and accepted by the Agent.
"TRANSFEREE LENDER" is defined in Clause 11.11.2.
"TRANSFEROR LENDER" is defined in Clause 11.11.2.
"UNITED STATES" or "U.S." means the United States of America, the
territories and possessions and any state thereof and the District of
Columbia.
1.2 ADDITIONAL DEFINITIONS
Any reference in this Agreement or any other Loan Document to:
(a) an "AFFILIATE" of any person is a reference to a subsidiary or a
holding company, or a subsidiary of a holding company, of such person;
(b) references to the "BORROWER", any "COMPLETION GUARANTOR", any
"OBLIGOR", any "RANDGOLD COMPLETION GUARANTOR", "ANGLOGOLD",
"ANGLOGOLD (BVI)", the "AGENT", any "ARRANGER", any "CO-ARRANGER" or
any "LENDER" shall be construed so as to include their respective
successors and permitted transferees and assigns in accordance with
their respective interests;
(c) "CONTROL" means the power of one person to:
(i) vote more than fifty percent (50%) of the issued share
capital of, or the voting power in, a second person; or
(ii) direct the management, business or policies of such second
person, whether by contract or otherwise;
(d) "FINANCIAL INDEBTEDNESS" shall be construed as a reference to any
indebtedness for or in respect of moneys borrowed or raised by
whatever means (including by means of acceptances under any acceptance
credit
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facility, the issue of loan stock, any liability in respect of
Capital Leases and any obligations evidenced by bonds, notes,
debentures or similar instruments) or for the deferred purchase price
of assets or services (excluding normal trade debt which does not
include any interest payment or finance charge) or any other
transaction having the commercial effect of a borrowing; provided,
however, that any interest, commission, fees or other like financing
charges shall be excluded save to the extent that the same has been
capitalised;
(e) a "GUARANTEE" includes a standby letter of credit, an indemnity and
any other obligation (howsoever called) of any person to pay, purchase
or provide funds (whether by the advance of money, the purchase of or
subscription for shares or other securities, the purchase of assets or
services or otherwise) for the payment of or to assist in or provide
means of discharging or otherwise be responsible for, any indebtedness
of, or the solvency of any other person;
(f) "GUARANTEED INDEBTEDNESS" means, with respect to any person, all
indebtedness of such person in respect of guarantees or other similar
assurances against loss given by such person in respect of the
indebtedness of other persons;
(g) a "HOLDING COMPANY" of a company or corporation shall be construed as
a reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
(h) "INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
(i) a "LIEN" means any mortgage, charge, pledge, hypothecation, assignment
by way of security, deposit arrangement, encumbrance, lien (statutory
or otherwise), title retention, finance lease, factoring or
discounting of debts or other security interest on or over present or
future assets of the person concerned securing any obligation of any
person or any other type of preferential or trust arrangement having a
similar effect, including any such security interest which arises or
is imposed by operation of law;
(j) a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month save that, where any such period would otherwise end on
a day which is not a Business Day, it shall end on the next Business
Day, unless that day falls in the calendar month succeeding that in
which it would otherwise have ended, in which case it shall end on the
preceding Business Day; provided, however, that, if a period starts on
the last Business Day in a calendar month or if there is no
numerically corresponding day in the month in which that period ends,
that period shall end on the last Business Day in that later month
(and references to "MONTHS" shall be construed accordingly);
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(k) a "PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other
entity, whether acting in an individual, fiduciary or other capacity;
(l) a "QUARTER" means each three month period beginning in any year, on
each of 1st January, 1st April, 1st July, 1st October or, if any such
date is not a Business Day, the immediately preceding Business Day;
(m) a "SUBSIDIARY" and a "SUBSIDIARY UNDERTAKING" shall have the same
meaning as in the Companies Xxx 0000 of the United Kingdom; and
(n) the "WINDING-UP" or "DISSOLUTION" of a company or the appointment of
an "ADMINISTRATIVE RECEIVER", a "RECEIVER", "MANAGER", "LIQUIDATOR" or
an "ADMINISTRATOR" with respect to a company shall be construed so as
to include any equivalent or analogous proceedings or, as the case may
be, person under the law of the jurisdiction in which such company is
incorporated or any jurisdiction in which such company carries on
business.
1.3 INTERPRETATION
Unless a clear contrary intention appears, this Agreement and each other
Loan Document shall be construed and interpreted in accordance with the
provisions set forth below;
(a) reference to any agreement (including the Schedules and Exhibits
hereto and to any other Loan Document), document (including the Cash
Flow Schedule, Development Plan and Insurance Summary) or Instrument
means such agreement, document or Instrument as amended, supplemented,
novated, refinanced, replaced, waived, restated or modified, and in
effect from time to time in accordance with the terms thereof and, if
applicable, the terms hereof;
(b) reference to any Applicable Law means such Applicable Law as amended,
modified, codified or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated
thereunder;
(c) a reference to a time of day shall be construed as a reference to
London time;
(d) "INCLUDING" (and with correlative meaning "INCLUDE") means including
without limiting the generality of any description preceding such
term;
(e) the singular number includes the plural number and vice versa;
(f) reference to any person includes such person's successors, substitutes
and assigns but, if applicable, only if such successors, substitutes
and assigns are permitted by this Agreement or such other Loan
Document, and reference to a person in a particular capacity excludes
such person in any other capacity or individually;
(g) reference to any gender includes any other gender;
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(h) "HEREUNDER", "HEREOF", "HERETO", "HEREIN" and words of similar import
shall be deemed references to this Agreement or such other Loan
Document, as the case may be, as a whole and not to any particular
Clause or other provision hereof or thereof;
(i) relative to the determination of any period of time, "FROM" means
"FROM (AND INCLUDING)" and "TO" means "TO (BUT EXCLUDING)";
(j) a reference to a "CORPORATION" or "COMPANY" shall be construed as a
reference to the analogous form of business entity used in any
relevant jurisdiction;
(k) when an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning; and
(l) a reference to fees, costs, charges or expenses includes all value
added tax or other applicable taxes imposed thereon.
1.4 USE OF DEFINED TERMS
Unless otherwise defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings when used
in the Disclosure Schedule, the Insurance Summary, each Borrowing Request,
each Continuation Notice, each Compliance Certificate and other Loan
Document and each notice and other communication delivered from time to
time in connection with this Agreement or any other Loan Document.
1.5 CROSS-REFERENCES
Unless otherwise specified, references in this Agreement and in each other
Loan Document to any Clause or sub-clause are references to such Clause or
sub-clause of this Agreement or such other Loan Document, as the case may
be, and unless otherwise specified, references in any Clause or sub-clause
or definition to any clause are references to such clause of such Clause or
definition.
1.6 ACCOUNTING AND FINANCIAL DETERMINATIONS
All accounting terms used herein or (except to the extent set forth
therein) in any other Loan Document shall be interpreted, all accounting
determinations and computations hereunder or thereunder shall be made, and
all financial statements required to be delivered hereunder or thereunder
shall be prepared in accordance with, International Accounting Standards
("GAAP"), in each case, applied (subject to the provisions of Clause 1.7)
on a basis consistent with the preparation of the financial statements
referred to in Clause 7.6(a).
1.7 CHANGE IN ACCOUNTING PRINCIPLES
If, after the Effective Date, there shall (without prejudice to Clause 1.6
and Clause 8.2.1(a)(iv)) be any change to any Obligor's Fiscal Year, or in
the application of the accounting principles used in the preparation of the
financial statements referred to in Clause 7.6(a) as a result of the
promulgation of rules, regulations, pronouncements, or opinions by any
Governmental Agency or any entity with
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responsibility for the administration of accounting standards (or agencies
with similar functions) which changes, in any such case, result in a change
in the method of calculation of financial covenants, standards, or terms
applicable to such Obligor found in this Agreement or any other Loan
Document, the parties hereto agree promptly to enter into negotiations in
order to amend such financial covenants, standards or terms so as to
reflect equitably such changes with the desired result that the evaluations
of such Obligor's financial condition shall be the same after such changes
as if such changes had not been made; PROVIDED, HOWEVER, that until the
Required Lenders have given their consent to such amendments, such
Obligor's financial condition shall continue to be evaluated on the same
principles as those used in the preparation of the financial statements
referred to in Clause 7.6(a).
1.8 DOLLAR EQUIVALENCY DETERMINATIONS
Except as otherwise set forth in this Agreement or any other Loan Document,
all calculations or determinations to be made from time to time under this
Agreement or any other Loan Document in connection with the Dollar
equivalent of any amount denominated in Gold shall be calculated by
multiplying:
(a) the amount of ounces of such Gold;
by
(b) the London Gold Price on the date which is two (2) Business Days prior
to the date on which such calculation is to be made.
1.9 PROJECT DETERMINATIONS, ETC
(a) (i) All financial determinations and calculations relating to the
Morila Project (including the determination or calculation, as the
case may be, of Funded Debt Service, Future Net Cash Flow, Loan Cover
Ratio, Loan Life Ratio, Mine Output, Present Value of Future Net Cash
Flow, Production, Project Capital Costs, Project Costs, Project Life
Ratio, Project Operating Costs, Project Output, Project Period, Proven
and Probable Reserves (for purposes of clause (b) of the definition of
such term), Projected Cash Flow and Reserve Value Cover Ratio, but
excluding the determination or calculation of Actual Cash Flow) shall
be:
(x) in the case of any such projected determination or
calculation, made by utilising the Cash Flow Model (and
taking into account any Hedging Obligations then in effect);
and
(y) calculated to the reasonable satisfaction of the Lenders;
provided, however, that during any period when negotiations of
the nature referred to in clause (b)(ii) are taking place, shall
be determined to the reasonable satisfaction of the Required
Lenders.
(ii) All determinations and calculations to be made in accordance
with the Cash Flow Model by reference to a specified period
shall, in the event such period does not appear in the Cash
Flow Model, be
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determined or calculated on a pro-rata basis for such specified
period from the actual periods referred to in the Cash Flow
Model.
(b) (i) Without prejudice to the provisions of clause (c), the Borrower
shall give prompt notice to the Lenders of any change in any fact,
event or circumstance which renders the Cash Flow Schedule as then
currently in effect materially inaccurate (including:
(x) the occurrence of the Economic Completion Date prior to 31
October, 2001;
(y) any change in the cash flows expected in connection with the
Morila Project due to any interruption to the operation of
the Mine or any acceleration in Production; and
(z) any change in the likely future development of the Morila
Project arising as a result of any tests concluded in
connection with the achievement of Mechanical Completion or
Economic Completion)
and shall work in consultation with the Agent and the Independent
Engineer to produce a revised Cash Flow Schedule which is
responsive to such changes. A copy of such revised Cash Flow
Schedule shall be promptly sent to each of the Lenders.
(ii) In the event that the Agent, acting in consultation with the
Borrower and the Independent Engineer, reasonably determines
that the Cash Flow Model is no longer capable of producing an
accurate forecast of the performance of the Morila Project
(including an accurate forecast of any of the financial measures
referred to in Clause 9.1.19) then the Lenders and the Borrower
shall negotiate in good faith to produce a revised model which
is capable of producing such an accurate forecast.
(iii) In the event that the Cash Flow Schedule or the Cash Flow Model
shall be modified prior to the Economic Completion Date pursuant
to the foregoing provisions of this clause (including as a
result of any acceleration in Production), the Economic
Completion Certificate shall be amended to reflect such
modifications in such manner as the Agent, acting in
consultation with the Independent Engineer, shall reasonably
request.
(c) From time to time, and in any event with not less than a frequency of
six (6) months, the Agent and the Borrower shall run the Cash Flow
Model employing relevant parameters then applicable to the Morila
Project with a view to producing a revised Cash Flow Schedule. Copies
of such revised Cash Flow Schedule shall promptly be supplied to each
Lender and to each of the Completion Guarantors. For the avoidance of
doubt, the production of any revised Cash Flow Schedule shall not, and
shall not be deemed to, imply any waiver of any Default which might be
indicated by such revised Cash Flow Schedule (including any such
Default arising pursuant to Clause 9.1.19).
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1.10 GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS, ETC
Whenever the delivery of a certificate is a condition precedent to the
taking of any action by any Lender Party hereunder, the truth and accuracy
of the facts and the diligent and good faith determination of the opinions
stated in such certificate shall in each case be conditions precedent to
the right of any Obligor to have such action taken, and any certificate
executed by any Obligor shall be deemed to represent and warrant that the
facts stated in such certificate are true and accurate.
2. COMMITMENTS; BORROWING AND INTEREST PERIOD SELECTION PROCEDURES, ETC
2.1 COMMITMENTS
(a) Subject to the terms and conditions of this Agreement (including
Clause 6) each Lender severally and for itself alone agrees that it
will, from time to time on any Business Day occurring during the
period commencing on the Effective Date and ending on the relevant
Commitment Termination Date, make loans (with respect to each Lender,
each such loan individually a "LOAN") denominated in Dollars to the
Borrower as set forth in this Clause.
(b) As set forth in Clause 2.2, each Loan made by each Lender pursuant to
any Borrowing Request shall be made in a Principal Amount equal to
such Lender's Funding Percentage of the aggregate Principal Amount of
the Loans requested by the Borrower to be made on the Borrowing Date
specified in such Borrowing Request.
(c) No Lender shall be required to make any Loan if, after giving effect
thereto, the aggregate original Principal Amount of all Loans:
(i) made by all Lenders since the Effective Date would exceed the
Total Commitment Amount; or
(ii) made by such Lender since the Effective Date would exceed such
Lender's Commitment Amount.
2.2 PROCEDURE FOR MAKING LOANS
(a) By delivering a Borrowing Request to the Agent on or before 10:00 a.m.
on any Business Day the Borrower may request, on not less than three
(3) nor more than five (5) Business Days' notice (counting the date on
which such Borrowing Request is given), that Loans be made by all
Lenders on the Borrowing Date, and in the Principal Amount, in each
case as specified in such Borrowing Request. Upon receipt of a
Borrowing Request, the Agent shall promptly notify each Lender of the
contents thereof, and such Borrowing Request shall not thereafter be
revocable unless such revocation is made with the consent of the
Agent.
(b) The aggregate Principal Amount of Loans requested to be made in any
Borrowing Request shall not be less than U.S.$5,000,000 and shall be
in an integral multiple of U.S.$1,000,000.
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(c) Subject to the terms and conditions of this Agreement (including
Clause 6), the Loans requested to be made in a Borrowing Request shall
be made on the requested Borrowing Date. On such Borrowing Date and
subject to such terms and conditions, each Lender shall, on or before
11:00 a.m., credit such Dollar account of the Agent at its Dollar
Lending Office as the Agent may notify to the Lenders with an amount
of Dollars equal to such Lender's Percentage of the aggregate
Principal Amount of the Loans to be made pursuant to such Borrowing
Request. To the extent funds are received by the Agent from the
Lenders in respect of the Loans requested by each Borrowing Request
(but subject to clause (d)) the Agent shall make such funds available
to the Borrower by crediting the Principal Amount of such Loans to the
Operating Account. No Lender's obligation to make any Loan as
aforesaid shall be affected by any other Lender's failure to make any
other Loan.
(d) Unless the Agent shall have received written notice from a Lender
prior to 5:00 p.m. on the day prior to a Borrowing Date that such
Lender will not make available the Principal Amount which would
constitute its Percentage of the aggregate Principal Amount of Loans
to be made on such Borrowing Date pursuant to the relevant Borrowing
Request, the Agent may assume that such Lender has made such Principal
Amount available to the Agent and may, in reliance on such assumption,
make available to the Borrower a corresponding amount. In the event
that the Agent makes such corresponding amount available to the
Borrower and the relevant Lender has not in fact made such amount
available to the Agent, then such Lender agrees to pay the Agent
forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such corresponding amount was made
available by the Agent to the Borrower to the date such amount is paid
by the Lender to the Agent, at the interest rate applicable at the
time to the Loans requested to be made pursuant to the relevant
Borrowing Request. In the event that such corresponding amount and
such interest is not paid to the Agent by such Lender within five (5)
Business Days of the Agent having made written demand for such amount,
then the Borrower agrees to repay such corresponding amount to the
Agent together with interest thereon, for each day from the date such
corresponding amount was made available by the Agent to the Borrower
to the date such amount is paid by the Borrower to the Agent, at the
interest rate applicable at the time to the Loans requested to be made
pursuant to the relevant Borrowing Request.
2.3 CONTINUATION ELECTIONS
By delivering a Continuation Notice to the Agent on or before 10:00 a.m. on
a Business Day, the Borrower may from time to time irrevocably elect, on
not less than three (3) nor more than five (5) Business Days' notice
(counting the date on which such Continuation Notice is given) prior to the
expiration of any Interest Period with respect to any then outstanding
Loans, that such Loans be, upon the expiration of such Interest Period,
continued as Loans for the Interest Period specified in such Continuation
Notice; PROVIDED, HOWEVER, that, at any one time, only five (5) Interest
Periods may be in effect; and PROVIDED, FURTHER, HOWEVER,
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that following any continuation of Loans, each tranche of Loans with
identical Interest Periods made by all the Lenders shall be in an aggregate
Principal Amount which is not less than U.S.$5,000,000 and in an integral
multiple of U.S.$1,000,000.
In the absence of delivery of a Continuation Notice with respect to any
Loans at least three (3) Business Days before the last day of the then
current Interest Period with respect thereto, such Loans shall, on such
last day, automatically be deemed to be continued as Loans having (subject
to Clause 3.2.2) on interest Period determined pursuant to the provisions
of clause (c) of the definition of such term.
No more than five (5) different Interest Periods may be outstanding with
respect to all Loans at any one time.
2.4 CANCELLATION
(a) The Borrower may cancel the unutilised portion of the Total Commitment
Amount in whole or in part on giving not less than three (3) Business
Days prior written notice thereof to the Agent. Cancellation of any
portion of the Total Commitment Amount shall be in an integral
multiple of U.S.$1,000,000. Effective upon the cancellation of a
portion of the Total Commitment Amount each Lender's Commitment Amount
will immediately be reduced by an amount equivalent to its relevant
Funding Percentage of the amount of such cancellation.
(b) Any notice given under clause (a) shall be irrevocable (except for
revocation made with the consent of the Agent (acting in consultation
with the Lenders)). The Borrower may give a notice pursuant to clause
(a) only if the Agent believes (on the advice of the Independent
Engineer) that the Mechanical Completion Date, the Economic Completion
Date and the Release Date are each likely to occur on or prior to 31
December, 2001, in each case using funds from the unutilised portion
of the Total Commitment Amount as will remain available and/or from
other funds available to the Borrower.
2.5 RECORDS
Each Lender's Loans shall be evidenced by a loan account maintained by such
Lender. The Borrower hereby irrevocably authorises each Lender to make (or
cause to be made) appropriate account entries, which account entries, if
made, shall evidence INTER ALIA the type of, the date of, the Principal
Amount of, any repayments of, the interest rate on, and the Interest
Periods applicable to, the Loans then outstanding to such Lender. Any such
account entries indicating the outstanding Principal Amount of the Loans
outstanding to such Lender shall be PRIMA FACIE evidence of the Principal
Amount thereof owing and unpaid, but the failure to make any such entry
shall not limit or otherwise affect the obligations of the Borrower
hereunder to make payments of the Principal Amount of, or interest on, such
Loans when due.
2.6 FUNDING
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Each Lender may, if it so elects, fulfil its obligation to make or maintain
any portion of the Principal Amount of its Loans by causing a foreign
branch, affiliate or international banking facility of such Lender to make
such Loans; provided, however, that in such event such Loans shall be
deemed to have been made by a foreign branch, affiliate or international
banking facility of such Lender, the obligation of the Borrower to repay
the Principal Amount of such Loans, and pay interest thereon, shall
nevertheless be to such Lender and shall be deemed to be held by it, to the
extent of such Loans, for the account of such foreign branch, affiliate or
international banking facility.
3. PRINCIPAL PAYMENTS; INTEREST
3.1 PRINCIPAL PAYMENTS
The Borrower shall make payment in full of the unpaid Principal Amount of
all Loans at the Final Maturity Date. Prior thereto, the Borrower:
(a) may, from time to time on any Business Day which is the last day of
the Interest Period for the Loans to be prepaid or (subject to Clause
5.3) on any other Business Day, make a voluntary prepayment, in whole
or in part, of the then outstanding Principal Amount of Loans;
provided, however, that:
(i) the Borrower shall give the Agent not less than three (3)
Business Days' prior written notice (counting the date on which
such notice is given) of any such voluntary prepayment, which
notice, once given, shall be irrevocable;
(ii) all such partial voluntary prepayments shall be in an aggregate
Principal Amount which is in a minimum amount of U.S.$5,000,000
and an integral multiple of U.S.$1,000,000; and
(iii) the Borrower shall, simultaneously with providing the notice
referred to in clause (a)(i), provide the Agent with such
evidence as the Agent may require in connection with any
Approval required or advisable in connection with such
prepayment.
(b) shall, on each Principal Payment Date or, if agreed with the Agent, on
the last day of the immediately following Interest Period, make a
mandatory repayment of the Loans outstanding on each such date in a
Principal Amount such that the aggregate Principal Amount of Loans
outstanding on such Principal Payment Date shall not exceed the
Principal Amount set forth below opposite such Principal Payment Date:
30 June, 2001 U.S.$81,000,000
31 December, 2001 U.S.$72,000,000
30 June, 2002 U.S.$63,000,000
31 December, 2002 U.S.$54,000,000
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30 June, 2003 U.S.$45,000,000
31 December, 2003 U.S.$36,000,000
30 June, 2004 U.S.$27,000,000
31 December, 2004 U.S.$18,000,000
30 June, 2005 U.S.$9,000,000
31 December, 2005 U.S.$0;
(c) shall, on each date of receipt of proceeds of any insurance policy
which are required by the terms of Clause 8.1.7(c)(i) or 8.1.7(c)(iv)
to be applied against the Loans, make a mandatory prepayment of the
Loans outstanding on such date in a Principal Amount equal to the
amount of such proceeds; and
(d) shall, on each Cash Sweep Calculation Date (or, with the consent of
the Agent, on the last day of one or more of the Interest Periods in
effect on such Cash Sweep Calculation Date) make a mandatory
repayment of the Loans outstanding on such date in a Principal Amount
equal to twenty percent (20%) of the Excess Cash Flow (if any) for
the Cash Sweep Calculation Period most recently ended prior to such
Cash Sweep Calculation Date; provided, however, that the maximum
Principal Amount of Loans prepaid pursuant to this clause shall not
exceed U.S.$18,000,000.
Any amount in respect of any Loans prepaid under clause (c) or (d) shall
he applied against subsequent repayments of Loans required to be made
pursuant to clause (b) in the inverse order of maturity thereof; provided,
however, that at any time on or after the time when the amount scheduled
to be paid on the Final Maturity Date shall, as a result of any prepayment
or repayment of the Loans made pursuant to this Clause, have been reduced
to zero, any amount in respect of any Loans prepaid under clause (d) shall
be applied against subsequent repayments of Loans required to be made
pursuant to clause (b) pro rata. Any amount in respect of any Loans
prepaid under clause (a) shall be applied against subsequent repayments of
Loans required to be made pursuant to clause (b) pro rata. Each repayment
or prepayment of the Principal Amount of any Loans made pursuant to this
Clause shall be without premium or payment of any other additional amount,
except as may be required pursuant to Clause 5.3. Any repayment or
prepayment of the Principal Amount of any Loans shall include accrued
interest on the date of repayment or prepayment on the Principal Amount
being prepaid. The Principal Amount of any Loans repaid or prepaid may not
be re-borrowed.
3.2 INTEREST PAYMENTS
The Borrower shall make payments of interest in accordance with this
Clause.
3.2.1 RATE
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The Borrower shall pay interest on the Principal Amount of the Loans
outstanding from time to time prior to and at Maturity at a rate per annum
equal to the sum of:
(a) the LIBO Rate for Loans; plus
(b) the Applicable Margin,
as each may be in effect from time to time.
3.2.2 POST-MATURITY RATE
After the Maturity of all or any portion of the Principal Amount of the
Loans or after any other Obligations shall have become due and not been
paid, the Borrower shall pay interest (after as well as before judgment)
on the Principal Amount of each Loan so matured or on any such other
Obligations at a rate per annum equal to the sum of:
(a) the LIBO Rate for such Interest Periods as the Agent may from time to
time select;
(b) the Applicable Margin as in effect from time to time; plus
(c) two percent (2%),
3.2.3 PAYMENT DATES
Interest accrued on each Loan shall be payable, without duplication, on:
(a) the last day of each Interest Period with respect to such Loan (and,
in addition to such day, if such interest Period shall exceed six (6)
months, on each date which is the last day of each successive
three-monthly period occurring during such Interest Period commencing
with the first six (6) month period commencing on the first day of
such Interest Period);
(b) the Maturity of such Loan; and
(c) with respect to any portion of any Loan repaid or prepaid pursuant to
Clause 3.1, 5.1, 5.2, or 5.5, the date of such repayment or
prepayment, as the case may be.
Interest accrued on each Loan after the Maturity thereof and interest on
other overdue amounts, shall be payable upon demand. The amount of
accruing interest on any Loans shall be calculated during each Interest
Period applicable thereto by the Agent on the daily outstanding Principal
Amount of such Loans.
3.2.4 RATE DETERMINATIONS
All determinations by the Agent of the rate of interest applicable to any
Loan shall be conclusive absent manifest error.
3.3 FEES
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(a) The Borrower shall pay to the Agent, and the Agent shall pay to the
Lender Parties, fees (other than the fees referred to in clause (b))
in the amounts and at the times agreed between the Borrower and the
Agent or, as the case may be, the Agent and the Lender parties, in
connection with the execution of this Agreement and the execution of
the Supplemental Agreement.
(b) The Borrower shall pay to the Agent for the account of each Lender a
commitment fee computed at the rate of 0.50% per annum on the
undrawn, uncancelled and unreduced amount of each Lender's Commitment
Amount. Accrued commitment fees shall be payable in arrears at the
end of each quarter.
(c) Each Obligor hereby acknowledges that any portion of any fee once
paid shall be non-refundable, such portion having already been earned
by performance.
4. PROJECT ACCOUNTS
4.1 OPERATING ACCOUNT
(a) PAYMENTS INTO OPERATING ACCOUNT
The Borrower shall, subject to Clause 4.2(c), promptly deposit:
(i) to the extent required pursuant to Clause 8.1.7, all proceeds
under policies of insurance maintained by the Borrower;
(ii) all proceeds of the sale of Project Output;
(iii) all proceeds derived from the exercise of any Required Hedging
Agreement;
(iv) the proceeds of all Loans, Capital Contributions and any
Approved Subordinated Indebtedness; and
(v) all other amounts received by it in connection with the
Project,
into an account denominated in Dollars (the "OPERATING ACCOUNT")
established in Jersey by the Borrower in the name of the Borrower
with the Project Account Bank (Offshore).
(B) PAYMENTS FROM THE OPERATING ACCOUNT
On the terms and subject to the conditions of this Agreement
(including Clauses 4.4(b) and 4.4(c)), the Borrower may only instruct
the Project Account Bank (Offshore) to disburse funds from the
Operating Account for application in the following order of priority:
(i) FIRST, for payment (including by transfer to the Project
Account (Mali)) of bona fide Project Costs (excluding,
however. Project Costs of the nature referred to in clauses
(b)(iii) and (b)(iv), but including any amount representing
the proceeds of any insurance
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policy which, pursuant to Clause 8.1.7, is permitted to be
applied in payment of third party liabilities or in payment of
the replacement costs of equipment) then payable by the
Borrower and which are not otherwise restricted from being paid
pursuant to the terms of this Agreement or any other Loan
Document;
(ii) SECOND, for deposits to the Debt Service Reserve Account to the
extent necessary to ensure that the amount standing to the
credit thereof is not less than the Required Debt Service
Reserve Balance;
(iii) THIRD, for repayment of the Principal Amount of Loans, all
interest accrued thereon and other payment Obligations (other
than as referred to in clause (b)(iv) of the Borrower then due
and owing:
(iv) FOURTH, for payments in respect of Required Hedging Agreements
entered into directly by the Borrower; and
(v) FIFTH, for payment of amounts as and when permitted to be made
pursuant to Clause 8.2.7.
4.2 ACCOUNT IN MALI
(a) PROJECT ACCOUNT (MALI)
For the purpose of facilitating the remission of Dollars from the
Operating Account, the conversion of such Dollars into CFA, the
payment of Project Costs denominated in CFA and (without prejudice to
the provisions of Clause 8.1.19) for the purpose of receiving any
proceeds in CFA from the sale of Project Output or any other amount
denominated in CFA, the Borrower shall establish an account
denominated in CFA (the "PROJECT ACCOUNT (MALI)") in Bamako, Mali in
the name of the Borrower with the Project Account Bank (Mali).
(b) PAYING PROJECT COSTS
The Borrower shall be entitled to instruct the Project Account Bank
(Offshore) from time to time to remit Dollars contained in the
Operating Account for conversion into CFA and deposit in the Project
Account (Mali) in an amount (subject to Clause 4.4(c)) not in excess
of the Dollar equivalent (calculated, in the case of any
CFA-denominated Project Costs and any amount in CFA then standing to
the credit of the Project Account (Mali), at the then prevailing
market rates as determined by the Project Account Bank (Offshore)) of
the excess of:
(i) any Project Costs scheduled to be paid in Mali during the six (6)
week period immediately following such remittance pursuant to the
Cash Flow Schedule; less
(ii) balances then standing to the credit of the Project Account
(Mali).
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(c) PAYMENTS INTO PROJECT ACCOUNT (MALI)
Without prejudice to the provisions of Clause 8.1.19, all amounts
received by the Borrower which are denominated in CFA shall be
deposited into the Project Account (Mali).
(d) PAYMENTS FROM PROJECT ACCOUNT (MALI)
On the terms and subject to the conditions of this Agreement
(including Clauses 4.4(b) and 4.4(e)), the Borrower shall be entitled
to instruct the Project Account Bank (Mali) to disburse funds from
the Project Account (Mali) for application in the following order of
priority:
(i) for payment of bona fide Project Costs denominated in CFA then
payable by the Borrower and which is not otherwise restricted
from being paid pursuant to the terms of this Agreement or any
other Loan Document;
(ii) after the payment of all amounts then due and payable of the
nature referred to in Clauses 4 1(b)(i) and 4.1(b)(iv), for
payment of amounts as and when permitted to be made pursuant to
Clause 8.2.7.
(e) TRANSFER FROM PROJECT ACCOUNT (MALI)
To the extent that on any date the credit balance of the Project
Account (Mali) shall be in excess of the aggregate of:
(i) the CFA equivalent of U.S.$2,500,000 (calculated at then
prevailing market rates); and
(ii) amounts then due to be paid from the Project Account (Mali)
pursuant to clause (d).
the Borrower shall effect the prompt transfer of such excess to the
Operating Account.
4.3 DEBT SERVICE RESERVE ACCOUNT
(a) DEBT SERVICE RESERVE ACCOUNT
The Borrower shall establish a single purpose interest bearing
account denominated in Dollars (the "DEBT SERVICE RESERVE ACCOUNT")
in the name of the Borrower in Jersey with the Project Account Bank
(Offshore).
(b) MINIMUM BALANCE
On all dates commencing with (and including) the Release Date the
balance standing to the credit of the Debt Service Reserve Account
shall be at least equal to the sum (such sum, the "REQUIRED DEBT
SERVICE RESERVE BALANCE") of.
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(i) the aggregate Principal Amount of Loans scheduled to be repaid
pursuant to Clause 3.1(b) during the six (6) month period
commencing on such date (without giving effect to any other
repayment or prepayment of the Principal Amount of Loans which
might be made during such period); plus
(ii) the aggregate amount of interest scheduled to accrue on the
Loans during the six (6) month period commencing on such date
(calculated, with respect to any Loan in the case of any
portion of such period which shall occur after the termination
of any Interest Period then applicable to such Loan, on the
basis of an Interest Period of six (6) months' duration); plus
(iii) the aggregate amount of premium accruing in connection with the
Political Risk Insurance during the six (6) month period
commencing on such date.
(c) TRANSFER TO OPERATING ACCOUNT
If on any day the balance of the Debt Service Reserve Account exceeds
the Required Debt Service Reserve Balance calculated on such date and
if no Default shall then have occurred and be continuing, the
Borrower may instruct the Project Account Bank (Offshore) to transfer
such excess on such date to the Operating Account. Without prejudice
to the right of any Lender Party to obtain any repayment or
prepayment of any Obligation from the Project Accounts, no amounts
other than amounts referred to in this clause may be disbursed from
the Debt Service Reserve Account.
4.4 GENERAL PROVISIONS RELATING TO THE PROJECT ACCOUNTS
(a) RESTRICTIONS
The Borrower shall deposit moneys to, and moneys shall be disbursed
from, the Project Accounts solely for the purposes described in this
Clause and the other provisions of this Agreement and the other Loan
Documents. The Borrower shall not deposit into any Project Account
any moneys other than moneys derived from, or received in connection
with, the Project.
(b) ON DEFAULT
Without prejudice to the right of any Lender Party to obtain any
repayment or prepayment of any Obligation from the Project Accounts,
at any time when any Event of Default or Insolvency Default shall
have occurred and be continuing, no withdrawal may be made from any
Project Account without the prior consent of the Required Lenders.
(c) PROJECT COSTS
No amount other than bona fide Project Costs (including any amount in
respect of insurance proceeds permitted by the terms of Clause
8.1.7(c)(iv) to be applied in respect of repair, replacement,
restoration or
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reimbursement) payable in the amount and during the period referred
to in the Cash Flow Schedule may be disbursed on instructions of the
Borrower or otherwise from any Project Account; PROVIDED, HOWEVER,
that:
(i) subject to the provisions of this Agreement (including the
other provisions of this Clause with respect to the operation
of the Project Accounts), any Project Costs which are
scheduled, pursuant to the Cash Flow Schedule, to be incurred
in any quarter may be incurred and paid for in any prior
quarter; and
(ii) nothing in this clause shall, or shall be deemed to, prevent:
(x) disbursement of amounts from any Project Account in
payment of any Obligations (including pursuant to Clause
3.1(b)); or
(y) transfer of monies between Project Accounts in accordance
with this Agreement and the other Loan Documents.
(d) REPAYING OBLIGATIONS
Any repayment or prepayment of any Obligations to be made from any
Project Account shall (without prejudice to the right of any Lender
Party to obtain such repayment or prepayment from any other source,
including the other Project Accounts) be made in Dollars by
disbursing from the relevant Project Account to the Facility Agent
(and, in the case of any disbursement from the Project Account
(Mali), arranging for the conversion of the relevant disbursement
from CFA into Dollars) an amount sufficient to provide for such
repayment or prepayment (or, if less, the amount standing to the
credit of such Project Account).
(c) PAYMENTS FROM PROJECT ACCOUNTS AFTER OCCURRENCE OF DEFAULT
At any time when any Default shall have occurred and be continuing
(but subject to the provisions of clause (b) if any Event of Default
or Insolvency Default shall then have occurred and be continuing and
subject also to the provisions of clause (c)) the Borrower shall
instruct the relevant Project Account Bank only to disburse funds
(including moneys remitted from the Operating Account to the Project
Account (Mali) pursuant to Clause 4.2(b) and moneys remitted from the
Project Account (Mali) pursuant to Clause 4.2(d)) from the Operating
Account or any other Project Account for the purpose of payment of
costs referred to below in the following order of priority:
(i) FIRST, for payment of Required Maintenance Expenditures or
Required Completion Expenditures;
(ii) SECOND, for repayment of the Principal Amount of Loans, all
interest accrued thereon and other payment Obligations (other
than as referred to in Clause 4.1(b)(iv)) of the Borrower then
due and owing; and
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(iii) THIRD, for payments then due and owing in respect of Required
Hedging Agreements entered into directly by the Borrower.
Any such instruction from the Borrower to the relevant Project
Account Bank shall be subject to the provisions of Clause 5(a)(iii)
of the Project Account Agreement (Offshore) and Clause 5(a)(ii) of
the Project Account Agreement (Mali), as may be relevant.
(f) CASH EQUIVALENT INVESTMENTS
At any time when no Default shall have occurred and be continuing,
the Borrower may direct the Project Account Bank (Offshore) to invest
amounts held in any Project Account (Offshore) in Cash Equivalent
Investments, PROVIDED, HOWEVER, that:
(i) such Cash Equivalent Investments are pledged to or otherwise
encumbered in favour of the Facility Agent as security for
the Obligations pursuant to the Borrower Security Agreement
(Offshore) or other documentation satisfactory to the Facility
Agent;
(ii) the aggregate amount of Cash Equivalent Investments scheduled
to mature on or prior to the date of the next succeeding
repayment of the Principal Amount of the Loans scheduled to be
made pursuant to Clause 3.1(b) plus the aggregate cash
balances of the Project Accounts (Offshore) on such repayment
date shall be equal to or in excess of the amount of such next
succeeding repayment;
(iii) upon the occurrence of an Enforcement Event, the Facility Agent
shall be entitled to direct the Project Account Bank
(Offshore) to liquidate such Cash Equivalent Investments, it
being expressly understood and agreed that any breakage or
other costs arising from such liquidation shall be for the
account of the Borrower; and
(iv) upon the maturity of any Cash Equivalent Investments acquired
pursuant to this clause the proceeds thereof (and upon receipt
of any interest or other payment in respect of any such Cash
Equivalent Investment, the amount of such payment) shall
immediately be either deposited into the relevant Project
Account (Offshore) or, subject to the other provisions of this
Clause, invested in other Cash Equivalent Investments.
(g) CONTROL OF PROJECT ACCOUNTS
The Project Accounts shall be operated, as set forth in this Clause,
by the relevant Project Account Bank acting at the request of the
Borrower and/or, as the case may be, certain of the Lender Parties as
set forth in greater detail in this Clause and, in each case,
pursuant to the terms and conditions of this Agreement and the other
Loan Documents.
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(h) INTEREST
Any interest amounts accruing in respect of the balance of any of the
Project Accounts shall at all times be credited to such Project
Account and shall be added to the amounts standing to the credit of
such Project Account and the distribution of any such amounts shall
be subject to the terms of this Clause 4 and the other terms of this
Agreement and each other Loan Document.
5. INCREASED COSTS; TAXES; MARKET DISRUPTIONS; GENERAL PAYMENT PROVISIONS
5.1 DOLLARS UNAVAILABLE
(a) If, prior to the date on which the Agent shall make any determination
of the LIBO Rate for any Interest Period with respect to any Loan, the
Agent shall have determined or shall have been notified (for any
reason specified therein) either:
(i) Dollar certificates of deposit or Dollar deposits, as the case
may be, in the relevant amount and for the relevant Interest
Period are not available to the Lenders in the London
interbank market; or
(ii) by reason of circumstances affecting the Lenders in the London
interbank market, adequate means do not exist for ascertaining
the interest rate applicable hereunder, then the Agent shall
promptly give telephonic notice of such determination
confirmed in writing to the Borrower (which determination
shall be copied to the Borrower and, in the absence of
manifest error, be conclusive and binding on the Borrower;
PROVIDED, HOWEVER, that failure to copy such notice to the
Borrower shall not affect the ability of the Lenders to take
advantage of the remaining provisions of this Clause).
(b) As soon as practicable following the giving of any notice described in
clause (a), the Agent, the affected Lenders and the Borrower shall
negotiate for a period not exceeding thirty (30) days with a view to
agreeing an alternative basis (including an alternative to the LIBO
Rate) for making or maintaining the Loans affected by the
circumstances described in clause (a). During such period interest
shall accrue on the Principal Amount of each affected Lender's
affected Loans at the rate applicable in such Loans immediately prior
to the giving of such notice. If no such alternative basis is agreed
within such period, each affected Lender's affected Loans shall bear
interest at a rate PER ANNUM equal to the sum of:
(i) the cost to such Lender of funding such Loans (as determined by
such Lender which determination shall, in the absence of
manifest error, be conclusive and binding on the Borrower);
plus
(ii) the Applicable Margin as in effect from time to time.
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(c) As an alternative to clause (b), the Borrower may at any time elect
that the Principal Amount of and interest on all of the affected
Lender's then outstanding Loans which are affected by the
circumstances described in clause (a) be immediately repaid in full
(subject, however, to Clause 5.3).
5.2 INCREASED COSTS, ETC
(a) The Borrower agrees to reimburse each Lender for any increase (other
than as specifically covered in any other provision of Clause 5) in
the cost to such Lender of making, continuing or maintaining (or of
its obligation to make, continue or maintain) its Loans, and for any
reduction (other than as specifically covered in any other provision
of Clause 5) in the amount of any sum receivable by such Lender
hereunder in respect of making, continuing or maintaining any portion
of any such Loan, in either case from time to time by reason of any
Regulatory Change. In the event of the incurrence of any such
increased cost or reduced amount, such Lender shall promptly notify
the Agent and the Borrower thereof stating in reasonable detail the
reason therefor, the additional amount required fully to compensate
such Lender for such increased cost or reduced amount and the
calculation of such additional amount. Such notice shall, in the
absence of manifest error, be conclusive and binding on the Borrower.
(b) As soon as practicable following the giving of any notice described in
clause (a), the affected Lender, the Agent and the Borrower shall
negotiate for a period not exceeding thirty (30) days with a view to
avoiding or minimizing the circumstances described in clause (a). If
no steps mutually agreeable to the affected Lender, the Agent and the
Borrower are decided upon within such thirty (30) day period, the
Borrower may elect either to prepay the Principal Amount of, and
interest on, such affected Lender's then affected outstanding Loans
(subject, however, to Clause 5.3) or pay, within ten (10) days after
the expiry of such thirty (30) day period, any additional amount
required fully to compensate such affected Lender for the increased
cost or reduced amount described in clause (a).
5.3 FUNDING LOSSES
In the event any Lender shall incur any loss or expense (including any
loss or expense incurred by reason of the liquidation or reemployment of
Dollar deposits or other funds acquired by such Lender to make, continue,
convert, or maintain any portion of the Principal Amount of its Loans) as
a result of:
(a) any payment, prepayment or conversion of the Principal Amount of a
Loan on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Clause 3.1 or
otherwise; or
(b) any action of the Borrower resulting in any Loans not being made,
continued or maintained in accordance with the Borrowing Request
relating thereto or any Continuation Notice, as the case may be,
given in connection therewith,
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then, upon the request of such Lender to the Borrower (with a copy to
the Agent), the Borrower shall pay to the Agent for the account of
such Lender such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense. A
statement as to any such loss or expense (including calculations
thereof in reasonable detail) shall be submitted by such Lender to
the Agent and the Borrower and shall, in the absence of manifest
error, be conclusive and binding on the Borrower.
5.4 CAPITAL COSTS
(a) If any Regulatory Change affects or would affect the amount of capital
required or expected to be maintained by any Lender or any person
controlling such Lender, and such Lender determines (in its
reasonable discretion) within a reasonable period following such
Regulatory Change that the rate of return on its or such controlling
person's capital is reduced to a level below that which such Lender
or such controlling person could have achieved but for the occurrence
of any such Regulatory Change, then, in any such case upon notice
from time to time by such Lender to the Borrower, the Borrower may,
at its option within five (5) days of receipt of such notice, either:
(i) pay directly to such Lender additional amounts sufficient to
compensate such Lender or such controlling person for such
reduction in rate of return; or
(ii) prepay the Principal Amount of and interest on such affected
Lender's then outstanding Loans (subject, however, to Clause
5.3). A statement of such Lender as to any such additional
amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such
amount, such Lender may use any method of averaging and
attribution that it (in its reasonable discretion) shall deem
applicable.
(b) Notwithstanding clause (a), the Borrower shall not be obligated to pay
any amount to any Lender in respect of any such reduction in the rate
of return which arises as a consequence of any Regulatory Change
implementing:
(i) the statement of the Basic Committee on Banking Regulations and
Supervisory Practices on International Convergence of Capital
Measurement and Capital Standards published in April 1998;
and/or
(ii) (x) the Council Directive of 17 April 1989, on the own funds of
credit institutions (89/299/EEC) (as amended by the Council
Directive of 16 March 1992 (92/16/EEC)). (y) the Council
Directive of 18 December 1989, on a solvency ratio for credit
institutions (89/647/EEC) (as amended by the Commission
Directive of 31 May 1995 (95/15/EC) and the European
Parliament and Council Directive of 2 June 1998 (98/33/EC)
and/or (z) the Council Directive of 15 March 1993 on the
capital adequacy of investment firms and credit institutions
(93/6/EEC) (as amended by the
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European Parliament and Council Directive of 2 June 1998
(98/31/EC)), as each of the foregoing items in this clause may
be amended from time to time, to the extent that the impact of
any such Applicable Law can reasonably be calculated at the
Effective Date. In addition, no Lender may make any claim for
compensation in respect of any such reduction in return to the
extent that such claim relates to a period occurring prior to
the date which is three (3) months prior to the notification
by such Lender of the event leading to such reduction in the
rate of return; PROVIDED, HOWEVER, that nothing in this
sentence shall restrict the ability of such Lender to make any
further claim for compensation in respect of any further event
notified to the Borrower at any time on or after such date of
notification.
5.5 ILLEGALITY
(a) If, as the result of any Regulatory Change, it becomes unlawful for
such Lender to make any of its Loans, the obligations of such Lender
to make any portion of the Principal Amount of such Loans shall, upon
such determination (and telephonic notice thereof confirmed in
writing to the Agent and the Borrower), forthwith be suspended until
such Lender shall become aware that the circumstances causing such
suspension no longer exist and shall have notified the Agent and the
Borrower to such effect, at which time the obligation of such Lender
to make its Loans shall be reinstated.
(b) If, as the result of any Regulatory Change, it becomes unlawful for
such Lender to continue its Loans, then, upon notice by such Lender
to the Agent and the Borrower, such Lender shall take all reasonable
steps open to it including changing its lending office or
transferring its Loans to a third party in consultation with the
Borrower and the Agent for a period of up to thirty (30) days from
the date of such notice, with a view to agreeing upon a mutually
acceptable alternative arrangement which will avoid or minimize such
illegality. If no such arrangements are agreed within such thirty
(30) day period (or if such period of consultation shall be
effectively prohibited by such Regulatory Change) the Borrower shall
prepay, within five days after the expiry of such thirty (30) day
period (or on such earlier date as may be required by such Regulatory
Change) the Principal Amount of and interest on such affected
Lender's then outstanding Loans (subject, however, to Clause 5.3).
5.6 TAXES
(a) All payments by each Obligor of principal of, and interest on, the
Loans and all other amounts payable pursuant to this Agreement or any
other Loan Document to any Lender Party shall be made free and clear
of, and without deduction for any, present or future income, excise,
stamp or other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority of any
jurisdiction, in each case other than franchise taxes and taxes
imposed on or measured by the recipient's net income or receipts
(such non-excluded items referred to as "TAXES"). In
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the event that any withholding or deduction from any payment to be
made by any Obligor hereunder or under any other Loan Document is
required in respect of any Taxes pursuant to any Applicable Law, then
such Obligor will
(i) to the extent that any such Taxes are payable by such Obligor,
pay directly to the relevant authority the full amount to be so
withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent (to the extent the same
is available to such Obligor) evidencing such payment to such
authority; and
(iii) pay to the Agent for the account of the person or persons
entitled thereto such additional amount or amounts as is
necessary to ensure that the net amount actually received by
such person will be equal to the full amount such person would
have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against any Lender Party
with respect to any payment received by such Lender Party hereunder
or under any other Loan Document, such Lender Party may pay such
Taxes and the relevant Obligor will promptly pay such additional
amounts (including any penalties, interest or expenses except to the
extent that the same are incurred as a result of the negligence or
wilful misconduct of the relevant Lender Party) as is or are
necessary in order that the net amount received by such Lender Party
after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such Lender Party would
have received had such Taxes not been asserted.
(b) If any Obligor fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for its own account
and/or, as the case may be, the account of the relevant Lender
Parties, the required receipts or other required documentary
evidence, such Obligor shall indemnify the Agent or the relevant
Lender Parties, as the case may be, for any incremental Taxes,
interest or penalties that may become payable by any such Lender
Party as a result of any such failure (excluding, however, any such
incremental Taxes, interest or penalties incurred as a result of the
gross negligence or wilful misconduct of the relevant Lender Party).
For purposes of this Clause, a distribution hereunder or under any
other Loan Document by the Agent or any Lender to or for the account
of any Lender shall be deemed a payment by the Borrower.
(c) The Lender Parties agree to cooperate with each Obligor in completing
and delivering or filing tax-related forms which would reduce or
eliminate any amount of taxes of the nature referred to in clause (a)
required to be deducted or withhold on account of any payment made by
such Obligor under this Agreement or any other Loan Document;
PROVIDED, HOWEVER, that no Lender Party shall be under any obligation
to execute and deliver any such form if, in the opinion of such
Lender Party, completion of any
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such form might reasonably be expected to result in an adverse
consequence with respect to the business or tax position of such
Lender Party.
5.7 MITIGATION
(a) In the event that the Borrower makes payment of any amount pursuant to
Clause 5.4 or 5.6 or that any Lender Party seeks payment of an amount
pursuant to Clause 5.4 or 5.6 or because of circumstances resulting
in the thirty (30) day negotiation period described in any of Clauses
5.1(b), 5.2(b) or 5.5(b), such affected Lender Party agrees that it
will take such reasonable steps as may reasonably be open to it to
mitigate the effects of the circumstances described in the foregoing
Clauses (including the transfer of such Lender Party's Dollar Lending
Office to another jurisdiction and the application for a Tax Credit);
PROVIDED, HOWEVER, that no Lender Party shall be obligated to:
(i) take any such steps if, in its opinion, such steps would
require it to achieve less than its expected return under this
Agreement or would have an adverse effect upon its assets or
financial condition:
(ii) achieve any particular result in the case of any such steps
resulting in less than complete mitigation of the relevant
circumstances; or
(iii) take any such steps if, in its opinion, it would incur a
liability to the Borrower as a result thereof except pursuant
to clause (b).
(b) If, pursuant to clause (a), any Lender Party effectively obtains a
refund of tax or credit (a "TAX CREDIT") against a payment made by
the Borrower pursuant to Clause 5.6 (a "TAX PAYMENT"), and such
Lender Party is able to identify such Tax Credit as being
attributable to such Tax Payment, then such Lender Party, forthwith
after actual receipt of such Tax Credit, shall reimburse the Borrower
for such amount as shall be reasonably attributable to such Tax
Payment: PROVIDED, HOWEVER, that no Lender Party shall be required to
make any such reimbursement which would cause it to lose the benefit
of such Tax Credit or would otherwise materially adversely affect any
matter relating to such Lender Party in connection with the
assessment or payment of any Taxes. Each Lender Party shall have
absolute discretion as to whether to claim any Tax Credit, and if it
does so claim, the extent, order and manner in which it does so. No
Lender Party shall be obliged to disclose information regarding its
tax affairs or computations to the Borrower.
5.8 PAYMENTS, COMPUTATIONS, ETC
All payments by any Obligor pursuant to this Agreement or any other
Loan Document, whether in respect of Principal Amount, interest or
otherwise, shall (except with respect to any repayment or prepayment
of any Obligation denominated in another currency) be paid in
Dollars. All such payments made in Dollars shall be made by such
Obligor to the Agent for the account of each Lender Party entitled
thereto, by delivery of Dollars in immediately available funds to an
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account of the Agent at the Agent's Dollar Lending Office, which
account shall be designated from time to time by notice to the
Borrower from the Agent, for the account of each Lender Party
entitled thereto (and, if such payment shall be of less than the due
amount of the relevant payment Obligation then due and owing, for the
PRO RATA benefit of each Lender Party entitled to share in such
payment in accordance with its respective portion of the aggregate
unpaid amount of similar payment Obligations). All such payments
denominated in Dollars shall be made, without setoff, deduction, or
counterclaim, not later than 11:00 a.m. New York City time, on the
date when due. All such payments denominated in any currency other
than Dollars shall be payable to such account, and by such time, as
the Agent shall specify from time to time. Any payments received
hereunder after the time and date specified in this Clause shall be
deemed to have been received by the Agent on the next following
Business Day. The Agent shall promptly remit to each Lender Party its
share (calculated as aforesaid), if any, of such payments, in kind.
Such remittance shall be to an account designated by such Lender
Party to the Agent by notice from time to time and maintained at, in
the case of a Lender, such Lender's Dollar Lending Office, or, in the
case of any other Lender Party, such location as such Lender Party
shall designate to the Agent by notice from time to time. All
interest and fees shall be computed on the basis of the actual number
of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable
over a year comprised of 360 days. Subject to clauses (d) and (e) of
the definition of "INTEREST PERIOD", whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day and such
extension of time shall be included in computing interest or fees, if
any, in connection with such payment.
5.9 REDISTRIBUTION OF PAYMENTS
(a) If, at any time, the proportion which any Lender Party (a "RECOVERING
LENDER Party") has received or recovered (whether voluntary,
involuntary, by application of set off, or otherwise) in respect of
its portion of any payment (a "RELEVANT PAYMENT") to be made under
this Agreement or under any other Loan Document (other than any
Required Hedging Agreement to which it is party) by any Obligor for
the account of such Recovering Lender Party and one or more other
Lender Parties is greater (the amount of such excess being herein
called an "EXCESS AMOUNT") than the proportion thereof received or
recovered by the Lender Party or Lender Parties entitled to
participate in the payment Obligation to which such payment relates
and which are receiving or recovering the smallest proportion thereof
(which, for the purposes hereof shall include a nil receipt or
recovery), (it being understood that all relevant payments are to be
distributed among the Lenders in accordance with their respective
Percentages), then:
(i) such Recovering Lender Party shall pay to the Agent an amount
equal to such excess amount;
(ii) there shall thereupon fall due from such Obligor to the
Recovering Lender Party an amount equal to the amount paid out
by such Recovering Lender Party pursuant to clause (a)(i), the
amount so
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due being treated, for the purposes hereof, as if it were an
unpaid part of such Recovering Lender Party's portion of
such relevant payment; and
(iii) the Agent shall treat the amount received by it from such
Recovering Lender Party pursuant to clause (a)(i) as if such
amount had been received by it from such Obligor in respect of
such relevant payment and shall pay the same to the other
Lender Parties in accordance with their respective
Percentages.
Within two (2) Business Days after any Lender Party receives or
recovers any relevant payment otherwise than by payment through the
Agent, that Lender Party shall notify the Agent of the amount and
currency so received or recovered, how it was received or recovered
and whether it represents principal, interest or other sums.
Furthermore, no Lender Party shall be obliged to share any amount
which it has received or recovered as a result of taking legal
proceedings with any other Lender Party which had the opportunity to
participate in those legal proceedings but did not do so and did not
take separate legal proceedings to recover the relevant payments.
(b) If any sum (a "RELEVANT SUM") received or recovered by a Recovering
Lender Party in respect of any amount owing to it by any Obligor
becomes repayable and is repaid by such Recovering Lender Party,
then:
(i) each Lender Party which has received a share of such relevant
sum by reason of the implementation of clause (a) shall, upon
request of the Agent, pay to the Agent for the account of the
Recovering Lender Party an amount equal to its share of the
relevant sum; and
(ii) there shall thereupon fall due from the relevant Obligor to
each such Lender Party an amount equal to the amount paid out
by it pursuant to clause (b)(i), the amount so due being
treated, for the purposes hereof, as if it were the sum payable
to such Lender Party against which such Lender Party's share of
such relevant sum was applied.
(c) If any Lender shall commence any action or proceeding in any court
to enforce its rights hereunder after consultation with the other
Lenders and, as a result thereof or in connection therewith, shall
receive any excess amount (as referred to in clause (a)) then such
Lender shall not be required to share any portion of such excess
amount with any Lender which has the legal right to, but does not,
join in such action or proceeding (having had notice of such action
or proceeding) or commence and diligently prosecute a separate action
or proceeding to enforce its rights in another court.
5.10 SETOFF
In addition to and not in limitation of any rights or remedies of
any Lender Party under Applicable Law on otherwise, each Lender
Party (or any branch thereof) shall, in the event that the Borrower
defaults in the payment, repayment or prepayment when due of any
payment Obligation, have the right to appropriate and apply to the
payment of such Obligations owing to it (whether or not then due) any
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and all balances, credits, deposits, accounts or moneys of each Obligor
then or thereafter maintained with such Lender Party in whatever currency
or precious metals (including Gold); PROVIDED, HOWEVER, that any such
appropriation and application shall be subject to the provisions of
Clause 5.9.
5.11 APPLICATION OF PROCEEDS
If at any time any amount received by the Agent is less than the amount
then due and payable pursuant to this Agreement or any other Loan
Document (including any proceeds received by the Agent in respect of any
sale of, collection from, or other realisation upon, all or any part of
any collateral security subject to any Security Agreement) such amount
may, in the discretion of the Agent (after consultation with the
Lenders), be held by the Agent as additional collateral security under
the relevant Security Agreement for, or then or at any time thereafter be
applied (after payment of any amounts payable to the Agent pursuant to
Clauses 11.3 and 11.4 and similar provisions contained in the other Loan
Documents) in whole or in part by the Agent against, all or any part of
the Obligations in the following order:
(a) FIRST, to amounts outstanding to the Lender Parties (or any of them)
under any Loan Document (excluding, however, any Required Hedging
Agreement) in respect of any amount other than interest on, or the
Principal Amount of, any Loan;
(b) SECOND, to amounts outstanding to the Lender Parties (or any of them)
under any Loan Document (excluding, however, any Required Hedging
Agreement) in respect of interest on any Loan; and
(c) THIRD, pro rata to amounts outstanding to the Lender Parties (or any
of them) under any Loan Document in respect of:
(i) the Principal Amount of any Loan; and
(ii) net payment obligations of the Borrower (or, to the extent that
the amount received under the relevant Loan Document relates to
any such net payment obligation of RRL, RRL) to any Lender
under any Loan Document relating to a Hedging Obligation;
PROVIDED, HOWEVER, that after the occurrence of any event that
constitutes or with the lapse of time, would constitute an "INSURED
EVENT" as defined in the Political Risk Insurance the amount applied
against the Obligations pursuant to sub-paragraph (a) above shall be
that remaining after the application of a portion of such funds in
respect of the provider of Political Risk Insurance's pro-rata share
of the Lender Parties' and such provider's out-of-pocket expenses or
recovery paid to third parties in respect of this Loan Agreement and
the Loan Documents.
Any surplus of such cash or cash proceeds held by the Agent and
remaining after payment in full of all the Obligations shall be paid
over to whomsoever may be lawfully entitled to receive such surplus.
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5.12 CURRENCY OF PAYMENT
If:
(a) any amount payable by any Obligor under this Agreement or any
other Loan Document is received by a Lender Party entitled thereto
in a currency ("PAYMENT Currency") other than the amount agreed to
be payable in the currency in which the relevant Obligation is
denominated (the "RELEVANT CURRENCY"), whether as a result of any
judgement or order or the enforcement thereof, the liquidation of
such Obligor or otherwise; and
(b) the amount produced by converting the Payment Currency so
received into the Relevant Currency is less than the required amount
of the Relevant Currency, then the relevant Obligor shall, as an
independent obligation separate and independent from its other
obligations contained hereunder and in any other Loan Document,
indemnify such Lender Party for the deficiency and any loss
sustained as a result. Such conversion shall be made promptly
following receipt at such prevailing rate of exchange in such market
as is reasonably determined by such Lender Party as being most
appropriate for the conversion. The relevant Obligor shall in
addition pay the reasonable costs of the conversion. Each Obligor
waives any right it may have in any jurisdiction to pay any amount
under this Agreement or any other Loan Document in a currency other
than the Relevant Currency.
6. CONDITIONS PRECEDENT TO MAKING LOANS
6.1 INITIAL LOANS
The obligations of each Lender to make its initial Loan shall be subject
to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Clause. Unless specifically stated to the
contrary, each document, certificate, and other Instrument delivered
pursuant to this Clause shall be dated on, or prior to, and shall be in
full force and effect on, the Borrowing Date of the rate Loans to he
drawn down hereunder.
6.1.1 RESOLUTIONS, ETC
The Agent shall have received:
(a) from each Obligor, a certificate of its Secretary or similar
officer as to:
(i) resolutions of its Board of Directors, Management Committee or
similar body then in full force and effect (and, in the case
of the Borrower, of its shareholders) authorising the
execution, delivery and performance of this Agreement and each
other Operative Document or other document to be executed by
it in connection with the transactions contemplated hereby and
thereby;
(ii) the incumbency and signatures of those of its officers
authorised to act with respect to this Agreement and each
other Operative Document or other document executed or to be
executed by it; and
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(iii) its Organic Documents as then in effect,
upon which certificates each Lender Party may conclusively rely
until it shall have received a further certificate of the Secretary
or similar officer of such Obligor, cancelling or amending such
prior certificate; PROVIDED, HOWEVER, that any such further
certificate may not retroactively cancel or amend any matters
contained in any certificate previously delivered hereunder;
(b) from the Independent Engineer, a certificate of its Secretary or
similar officer as to the incumbency and signature of those of its
officers authorised to act with respect to the Completion
Certificates and each other document to be executed by it and each
other matter contemplated hereby, upon which certificate each Lender
Party may conclusively rely until it shall have received a further
certificate of the Secretary or similar officer of the Independent
Engineer (with prospective effect only) cancelling or amending such
prior certificate; and
(c) Such other documents (certified if requested) as the Agent may
reasonably request from any Obligor with respect to any Organic
Document, Contractual Obligation, Operative Document or Approval.
6.1.2 SECURITY AGREEMENTS
The Agent shall have received:
(a) counterparts of each Security Agreement (including the Original
Subordination Agreements but excluding the AngloGold Security
Agreements and the Borrower Security Agreement (Fixed Assets) duly
executed by an Authorised Representative of each Obligor party
thereto;
(b) evidence that all filings, stampings; registrations, recordings,
notifications and other actions in all relevant jurisdictions
necessary or, in the opinion of counsel to the Agent, advisable or
desirable, in order to create in favour of the Lender Parties a
valid and perfected first-priority lien over all of the collateral
purported to be covered by each Security Agreement (including the
Original Subordination Agreements but excluding the AngloGold
Security Agreements and the Borrower Security Agreement (Fixed
Assets) have been made or, as the case may be, taken and are in full
force and effect;
(c) (i) share certificates representing all of the share capital and
voting rights of the Borrower owned by Morila Holdings (including
any Directors Qualifying Shares and being, in the aggregate, not
less than eighty percent (80%) of such share capital and voting
rights);
(ii) share certificates representing all of the issued and paid-in
share capital of Morila Holdings; and
(iii) with respect to the shares described in each of clauses
(c)(i) and (c)(ii), stock powers relating thereto executed
in blank and such
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other instruments of transfer in connection therewith as the Agent
shall reasonably require;
(d) copies of each Counterparty Notice (as defined in and required by
each of the Borrower Security Agreement (Offshore Assets) and the
Randgold Resources Security Agreement), duly executed by an
Authorised Representative of the relevant Obligor and by an
authorized signatory of any other person required to execute such
Counterparty Notice; and
(e) copies of any documentation evidencing any Approved Subordinated
Indebtedness then in effect.
6.1.3 RANDGOLD GUARANTEE AGREEMENT
The Agent shall have received counterparts of the Randgold Guarantee
Agreement, duly executed by an Authorised Representative of each of the
Randgold Completion Guarantors.
6.1.4 PROJECT DOCUMENTS; APPROVALS
The following conditions shall have been met:
(a) all Project Documents executed on or prior to the initial Borrowing
Date (including the Construction Contract, Mining Contract, Power
Contract, Refining Agreement and Mali Consent Agreement) shall be
satisfactory in form and substance to all the Lenders, shall be in
full force and effect, and copies thereof (certified as being true
and correct copies of the originals thereof by an Authorised
Representative of the Borrower) shall have been delivered to the
Agent;
(b) the Agent shall have received such documentation (collectively, the
"ORIGINAL STEP-IN AGREEMENTS") as it shall reasonably require as
evidence of the rights of the Lender Parties to assume the rights
and obligations of the Borrower (or any Affiliate thereof party to
any Project Document) under any Project Document to which it is a
party upon the occurrence of an Event of Default or such other
event as the Agent shall specify; and
(c) the Agent shall have received a certificate of an Authorised
Representative of RRL, to the effect that
(i) all Approvals of the nature referred to in the first
sentence of Clause 7.17(a) have been obtained, all such
Approvals are listed in Item 1 ("APPROVALS") of the
Disclosure Schedule have been obtained and each such Approval
is in full force and effect as at (x) in the case of each
Approval listed in Part A of Item 1 ("CURRENT APPROVALS") of
the Disclosure Schedule, the date set forth opposite such
Approval in such Part A, and (y) in the case of each Approval
listed in Part B of Item 1 ("PENDING APPROVALS") of the
Disclosure Schedule, a date occurring prior to the initial
Borrowing Date as set forth in such certificate; and
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(ii) a true, correct and complete copy of each such Approval is
attached to such certificate. Without limiting the generality
of the foregoing the Agent shall have received such evidence
as it shall require by way of proof that the Borrower is not
in default in connection with the payment of taxes, social
security and similar payments required or scheduled to be
paid in Mali.
6.1.5 REQUIRED HEDGING AGREEMENTS
The Agent shall have received such evidence as it shall require in
connection with the implementation by the Borrower of Required Hedging
Agreements which are required by Clause 8.1.10 to be in effect on the
initial Borrowing Date.
6.1.6 INSURANCE
The terms of and policies of insurance required to be maintained pursuant
to Clause 8.1.7 (including as to amount, risks covered and deductibles)
shall be reasonably satisfactory to the Agent and the Agent shall have
received a schedule (as amended from time to time pursuant to Clause
8.1.7, the "INSURANCE SUMMARY") detailing all policies of insurance
maintained in connection with the Morila Project as at the initial
Borrowing Date and the coverage effected thereby. In addition, the Agent
shall have received copies of all policies and binders or brokers'
letters of undertaking regarding such policies. The Agent shall also have
received:
(a) such evidence with respect to the adequacy of insurance cover with
respect to the Morila Project as the Agent, in its sole and absolute
discretion, may require;
(b) endorsements to all insurance policies maintained in connection with
the Morila Project signed by the issuers of such policies and
acknowledging the interests of the Lender Parties in such policies
as referred to in Clause 8.1.7(b);
(c) evidence reasonably satisfactory to it that all premiums (or
deposits in connection therewith) required to be paid in order to
ensure that the policies referred to in this Clause are in full
force and effect, have been paid and that all such policies are in
full force and effect; and
(d) counterparts of the Insurance Consultant's Certificate duly executed
by the Insurance Consultant
6.1.7 PROJECT ACCOUNTS: PRIOR CONTRIBUTIONS
The Facility Agent shall have received:
(a) evidence that the Project Accounts have been established;
(b) counterparts of the Project Account Agreement (Offshore) duly
executed by the Project Account Bank (Offshore) and an Authorised
Representative of the Borrower;
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(c) counterparts of the Project Account Agreement (Mali) duly executed
by the Project Account Bank (Mali) and an Authorised Representative
of the Borrower;
(d) evidence of the aggregate amounts (the "COMPLETION GUARANTOR PRIOR
CONTRIBUTION") contributed by the Completion Guarantors to the
Borrower prior to the initial Borrowing Date by way of Capital
Contributions and/or Approved Subordinated Indebtedness and/or other
Indebtedness (which amount shall not be less than U.S.$25,000,000)
together with a certificate of the chief financial Authorised
Representative of each Completion Guarantor containing details of
the portion of such amount which has been utilised prior to the
initial Borrowing Date by the Borrower in the development and
construction of the Mine;
(e) evidence that the Completion Deposit Account shall have been funded
by RRL (including from the proceeds of the repayment of Initial
Repayable Intercompany Indebtedness made from the proceeds of the
initial Loans) in a principal amount of not less than
U.S.$5,000,000; and
(f) a copy (certified as a true and correct copy of the original thereof
by an Authorised Representative of RRL) of the Barnex Loan
Agreement.
6.1.8 PROCESS AGENT ACCEPTANCE
The Agent shall have received a counterpart of the Process Agent
Acceptance, duly executed by the Process Agent, together with evidence of
the appointment of the Process Agent by each Obligor.
6.1.9 OPINIONS OF LEGAL ADVISERS
The Agent shall have received opinions from:
(a) Cabinet Berthe, legal advisers in Mali to the Obligors,
substantially in the form of Exhibit E-1 attached hereto;
(b) Ogier & Le Masurier, legal advisers in Jersey to the Obligors,
substantially in the form of Exhibit E-2 attached hereto;
(c) Xxxxxx Xxxxxxxxx, Inc., legal advisers in South Africa to the
Obligors, substantially in the form of Exhibit E-3 attached hereto;
(d) Xxxxxxx Xxxxx, special legal advisors in France to the Lender
Parties, substantially in the form of Exhibit E-4 attached hereto;
and
(e) Xxxxx, Xxxxx & Xxxxx, legal advisers in England to the Lender
Parties, substantially in the form of Exhibit E-5 attached hereto.
Each Obligor hereby instructs its legal advisers referred to in clauses
(a) to (c) to deliver the opinions referred to in such clauses to the
Lender Parties.
6.1.10 DEVELOPMENT PLAN; ENVIRONMENTAL IMPACT STUDY; TECHNICAL REVIEW
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The Lenders shall have received:
(a) the initial Cash Flow Schedule, initialled for purposes of
identification by each of RRL and the Agent together with a copy of
the remainder of the Development Plan certified by an Authorised
Representative of RRL as being a true and accurate copy of the
original thereof;
(b) the Environmental Impact Study certified by an Authorised
Representative of RRL as being a true and accurate copy of the
original thereof; and
(c) the Technical Review certified as a true and correct version thereof
by the Independent Engineer.
6.1.11 INITIAL COMPLIANCE CERTIFICATE
The Agent shall have received a Compliance Certificate calculated as of
the initial Borrowing Date, together with such information concerning the
calculations and assumptions used by the Borrower in preparing such
Compliance Certificate as the Agent shall have requested.
6.1.12 INDEPENDENT ENGINEER'S CERTIFICATE
The Facility Agent shall have received counterparts of the Independent
Engineer's Certificate duly executed by the Independent Engineer.
6.1.13 CLOSING FEES, EXPENSES, ETC
The Agent shall have received (including, to the extent necessary, from
the proceeds of the initial Loans) for its own account, or for the
account of the relevant Lender Parties, as the case may be, all fees due
and payable on or prior to the initial Borrowing Date and all fees and
expenses payable pursuant to Clause 11.3, to the extent then invoiced.
6.1.14 POLITICAL RISK INSURANCE
(a) Each Lender shall have been named as a beneficiary (which term shall
include a policy naming the Agent or the Arrangers as insured and
the Lenders as co-insured) in respect of a policy of Political Risk
Insurance complying with the definition of such term, such Political
Risk Insurance shall be in full force and effect, and the Borrower
shall have paid to the Agent all premiums due pursuant to such
Political Risk Insurance with respect to the shorter of:
(i) the first twenty-four month period of coverage of such
insurance; or
(ii) the period from the commencement of coverage of such
insurance until 30 June, 2000.
(b) The Agent shall have received confirmation from the issuer of the
Political Risk Insurance that the terms and conditions of this
Agreement and the other Operative Documents are consistent with, and
in compliance with, the requirements of the Political Risk Insurance
with respect to the form,
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content and substance of the documentation relating to the
financing of the Morila Project.
6.1.15 BONDHOLDERS' WAIVER
The Agent shall have received a certificate of an Authorised
Representative of the Borrower:
(a) attaching thereto true and correct copies of the documentation
relating to the RECI. Convertible Bonds; and
(b) confirming the validity of, and attaching a true and correct copy
of, documents waiving (in connection with each relevant Security
Agreement) the negative pledge restrictions assumed by RECI and
certain affiliates in connection with such documentation.
6.2 ALL LOANS
The obligations of the Lenders to make any Loan (including the initial
Loans) shall be subject to the prior or concurrent satisfaction of the
additional conditions precedent set forth in this Clause.
6.2.1 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC
The representations and warranties of each Obligor set forth in Clause 7
and those of each Obligor, AngloGold and AngloGold (BVI) set forth in
each other Loan Document to which such Obligor and/or, as the case may
be, AngloGold and/or AngloGold (BVI) is a party shall be true and correct
in all material respects as of the date initially made, and both
immediately before and immediately after the making of the Loans (but, if
any Default of the nature referred to in Clause 9.1.5 shall have occurred
with respect to any other indebtedness, without giving effect to the
application, directly or indirectly, of the proceeds of such Loans to
such other indebtedness):
(a) such representations and warranties shall be true and correct in all
material respects with the same effect as if then made (unless
stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date); and
(b) no Default shall have then occurred and be continuing.
6.2.2 BORROWING REQUEST
The Agent shall have received a duly completed Borrowing Request for such
Loans. The delivery of a Borrowing Request and the acceptance by the
Borrower of the proceeds of the Loans shall constitute a representation
and warranty by each Obligor on the relevant Borrowing Date (both
immediately before and immediately after giving effect to the making of
the Loans and the application of the proceeds thereof) that the
statements made in Clause 6.2.1 are true and correct.
6.2.3 SATISFACTORY LEGAL FORM
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All documents executed or submitted pursuant hereto by or an behalf of
any person shall be satisfactory in form and substance as to legal
matters to the Lender Parties and their legal advisers acting reasonably
and the Agent shall have received all information, and such counterpart
originals or such certified or other copies of such Instruments related
to the conditions precedent described in this Clause, as the Agent or its
legal advisers may reasonably request.
7. REPRESENTATIONS AND WARRANTIES
In order to induce the Lender Parties to enter into this Agreement and,
in the case of the Lenders, to make and continue Loans hereunder.
(a) the Borrower represents and warrants into each Lender Party as set
forth in this Clause; and
(b) the Randgold Completion Guarantors make the representations and
warranties set out in Clauses 7.2 through 7.5 and Clauses 7.7, 7.8,
7.11 and 7.19 to each Lender Party.
The representations and warranties set forth in this Clause shall be made
upon the delivery of each Borrowing Request and each Continuation Notice,
and shall (except with respect to the representations and warranties
referred to in Clause 7.3(b) or 7.3(c) and in Clause 7.19) be deemed to
have been made on each Borrowing Date (both immediately before and
immediately after the application of the proceeds of the relevant Loans),
the Mechanical Completion Date, the Economic Completion Date, the Release
Date and on any date on which any person grants further security to any
Lender Party pursuant to Clause 8.1.16; PROVIDED, HOWEVER, that no
Randgold Completion Guarantor will be deemed (but without prejudice to
any liability arising as a result of any breach of any such
representation or warranty made by any Randgold Completion Guarantor on
or prior to the Release Date) to have made any new representation or
warrant pursuant to the terms of this Clause at any time following the
Release Date.
7.2 ORGANISATION, POWER, AUTHORITY, ETC
The Borrower is a company (societe anonyme) validly organised and
existing under the laws of Mali. Each of RRL and Morila Holdings is a
company duly incorporated and validly existing under the laws of Jersey.
Each Obligor is duly qualified to do business and is in good standing
(where such concept is applicable) as a foreign company in each
jurisdiction where the nature of its business makes such qualification
necessary and where the failure to so qualify would have a Materially
Adverse Effect with respect to such Obligor and has full power and
authority, and holds all requisite Approvals, to own and hold under lease
its property, to xxx and to be sued in its own name and to conduct its
business substantially as currently conducted by it. Each Obligor has
full power and authority to enter into and perform its obligations under
this Agreement and the other Operative Documents executed or to be
executed by it and, in the case of the Borrower, to obtain Loans
hereunder.
7.3 DUE AUTHORISATION: NON-CONTRAVENTION
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The execution and delivery by each Obligor of this Agreement and each other
Operative Document executed or to be executed by it and the performance by each
Obligor of its obligations hereunder and thereunder, and the receipt of the
Loans hereunder in the case of the Borrower:
(a) have been duly authorised by all necessary corporate action on its
part;
(b) do not require any Approval (other than those Approvals referred to
in Item l ("APPROVALS") of the Disclosure Schedule);
(c) do not and will not conflict with, result in any violation of, or
constitute any default under, any provision of any Requirement of
Law or Approval binding on it;
(d) in the case of any Requirement of Law or Approval relating to the
Morila Project generally and not applying to the Loan Documents, do
not and will not conflict with, result in any violation of or
constitute any default under such Requirement of Law or Approval
which would be likely to have a Material Adverse Effect with respect
to such Obligor; and
(e) will not result in or require the creation or imposition of any lien
on any of its properties pursuant to the provisions of any
Contractual Obligation (other than pursuant to this Agreement and
each Security Agreement to which such Obligor is a party).
7.4 VALIDITY, ETC
(a) This Agreement constitutes, and each other Operative Document
executed or to be executed by each Obligor constitutes, or on the
due execution by each party thereto and delivery thereof will
constitute, the legal, valid, and binding obligation of such Obligor
enforceable in accordance with its terms (subject to bankruptcy and
insolvency laws and other similar laws of applicability to creditors
generally and to general equitable principles).
(b) Upon taking of the various actions described in Clause 6.1.2 (and,
in the case of the AngloGold Security Agreements, the various
actions described in the First Schedule to the Supplemental
Agreement), each Security Agreement will create in favour of the
Agent (for the rateable benefit of the Lender Parties), a valid and
perfected first-priority lien on all of the assets, properties,
rights and revenues referred to in each such Security Agreement as
security for the relevant obligations expressed to be covered
thereby, subject to no liens, except:
(i) for mandatory provisions of Applicable Law; and
(ii) as specifically permitted by this Agreement or such Security
Agreement.
7.5 LEGAL STATUS
No Obligor nor any of their respective properties or revenues enjoys any
right of immunity from suit, set-off, attachment prior to judgment or in
aid of execution, or
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execution on a judgment in respect of their respective obligations under
any of the Loan Documents to which it is a party.
7.6 FINANCIAL INFORMATION
All balance sheets and all statements of operations, shareholders' equity
and cash flow and all other financial information relating to each
Obligor which have been furnished by or on behalf of such Obligor to the
Agent for the purposes of or in connection with this Agreement or any
transaction contemplated hereby. including:
(a) the consolidated and individual balance sheet of RRL at 31 March,
1999, and the related consolidated statements of operations,
shareholders' equity and cash flow of RRL, as audited by
Pricewaterhouse Coopers; and
(b) the balance sheet of the Borrower at 30 September, 1999, and a
statement of Capital Expenditures in respect of the Morila Project
as at 30 September, 1999, in each case certified by the chief
financial Authorised Representative of the Borrower;
have been prepared in accordance with GAAP consistently applied
throughout the periods involved (except as disclosed therein) and present
fairly the financial position of the relevant Obligor as at the dates
thereof and the results of its operations for the periods then ended. No
Obligor has on the date hereof any material Contingent Liability or
liability for taxes, long-term leases or unusual forward or long-term
commitments which are not reflected in its financial statements described
in this Clause or in the notes thereto.
7.7 ABSENCE OF DEFAULT
No Obligor is in default in the payment of (or in the performance of any
material obligation applicable to) any indebtedness in excess of
U.S.$1,000,000, no Default is outstanding or would result from the making
of any Loan and no Obligor is in default under any material provision of
any Project Document to which it is party, any Requirement of Law or the
terms or conditions upon which any Approval has been granted.
7.8 LITIGATION, ETC
There is no pending or, to the knowledge of any Obligor, threatened
litigation, arbitration, employment dispute or governmental investigation
or proceeding against any Obligor or any or their respective affiliates
or to which any of any such entity's business, operations, properties,
assets (including the Mine), revenues or prospects is subject which could
reasonably be expected to have a Materially Adverse Effect with respect
to such Obligor. All pending or threatened litigation, arbitration,
employment disputes and governmental investigations and proceedings
against any Obligor or to which any of any such entity's business.
operations, properties. assets (including the Mine), revenues or
prospects is subject as of the date of the delivery of the initial
Borrowing Request are disclosed in Item 2 ("LITIGATION") of the
Disclosure Schedule. In the case of any litigation so disclosed, there
has been no development in such litigation since the Effective Date
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which could reasonably be expected to have a Materially Adverse Effect
with respect to any Obligor.
7.9 MATERIALLY ADVERSE EFFECT
Since 31 March, 1999 and since the date of the most recent financial
statements relating to each Obligor delivered pursuant to Clause
8.1.1(a), there have been no occurrences which, individually or in the
aggregate, have or may reasonably be expected to have a Materially
Adverse Effect with respect to any Obligor.
7.10 BURDENSOME AGREEMENTS
No Obligor is a party or subject to any Contractual Obligation or Organic
Document which has or may reasonably be expected to have a Materially
Adverse Effect with respect to such Obligor.
7.11 TAXES AND OTHER PAYMENTS
Each Obligor has:
(a) filed all tax returns (including all property tax returns and other
similar tax returns applicable to the Mine) and reports required by
Applicable Law to have been filed by it, and
(b) paid all taxes and governmental charges thereby shown to be owing
and all claims for sums due for labour, material, supplies, personal
property and services of every kind and character provided with
respect to, or used in connection with its business (including the
Mine) and no claim for the same exists except as permitted
hereunder, except any such taxes, charges or amounts:
(i) not in excess of U.S.$1,000,000;
(ii) which has remained unpaid for a period of less than one
hundred and twenty (120) days from date on which payment was
originally due (in respect of which the relevant Obligor will
pay prior to the end of such period); or
(iii) which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
Summary details of taxes required to be paid in connection
with the development of the Morila Project are set forth in
Item 10 ("TAXES") of the Disclosure Schedule.
7.12 MINING RIGHTS, PROJECT ASSETS, INSURANCE
The Borrower has acquired all Project Assets and all Mining Rights, and
has obtained such other surface and other rights as are necessary on the
date the representation contained in this Clause is made or repeated from
time to time for access rights, water rights, plant sites, tailings
disposal, waste dumps, ore dumps, abandoned heaps or ancillary facilities
which are required in connection with the
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development of the Project substantially in accordance with the
Development Plan. All such Project Assets, Mining Rights and other rights
are sufficient in scope and substance for the development of the Project
as contemplated by the Development Plan and no part of the purchase price
payable in connection with the acquisition of such Mining Rights and
other rights (other than any royalty payments, if any, payable pursuant
to royalty agreements set forth in Item 9 ("ROYALTY AGREEMENTS") of the
Disclosure Schedule) remains unpaid. The Borrower has made (or has caused
to be made) full disclosure of all relevant issues and facts to the
issuer of each insurance policy maintained in connection with the Morila
Project such that no such issuer is entitled to vitiate, cancel or
otherwise refuse or decline to honour the terms of, or any pay claims in
respect of, any such insurance policy.
7.13 OWNERSHIP AND USE OF PROPERTIES; LIENS
(a) The Borrower has good title to all of the Project Assets it owns or
purports to own, free and clear of all liens or claims (including
infringement claims with respect to patents, trademarks, copyrights
and the like) except as permitted pursuant to Clause 8.2.3 or as
disclosed in Item 3 ("ASSETS; PROPERTIES") of the DIsclosure
Schedule.
(b) The Borrower does not own any assets or properties other than those
derived from or used in connection with the Project and those
incidental to the operation of the Mine.
(c) The Borrower has complied in all material respects with all material
Contractual Obligations relating to any material Project Asset
leased, operated, licensed or used by it and all Instruments
pursuant to which it is entitled to lease, operate, license or use
any such Project Assets are in full force and effect.
7.14 SUBSIDIARIES
The Borrower has no subsidiaries. Each Relevant Group Company as at the
date of the Supplemental Agreement (other than AngloGold and AngloGold
(BVI) is set forth in Item 4 ("RELEVANT GROUP COMPANIES") of the
Disclosure Schedule.
7.15 INTELLECTUAL PROPERTY
The Borrower owns, licenses or otherwise possesses all such patents,
patent rights, trademarks, trademark rights, trade names, trade name
rights, service marks, service xxxx rights and copyrights as it considers
necessary for the conduct of its business as now conducted without,
individually or in the aggregate, any infringement upon rights of other
persons which could reasonably be expected to have a Materially Adverse
Effect with respect to the Borrower.
7.16 TECHNOLOGY
The Borrower owns or has the right to use all technologies and processes
required by it to consummate the Project and operate the Mine (including
the achievement of Mechanical Completion and Economic Completion by the
respective dates
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contemplated in this Agreement) as contemplated by the Development Plan
and in accordance with good industry practice, except where any such
non-ownership or lack or right to use any such technology or process
would not be reasonably likely to have a Materially Adverse Effect with
respect to the Borrower. There are no material licence agreements
granting any other person rights in any patented process or the right to
use technical or secret know-how that are required for the consummation
of the Project or the operation of the Mine.
7.17 APPROVALS; PROJECT DOCUMENTS.
(a) All Instruments have been entered into and all Approvals have been
obtained (other than those identified in Part B ("PENDING
APPROVALS") of Item 1 of the Disclosure Schedule as being scheduled
to be obtained after the date the representation referred to in this
clause is made or repeated from time to time) which are required to:
(i) consummate the Project and facilitate the operation of the
Mine (including the achievement of Mechanical Completion,
Economic Completion and the Release Date by December 31,
2001) in accordance with the Development Plan; and
(ii) enable each Obligor to enter into, and perform its
obligations under, each Operative Document to which it is a
party. All Approvals necessary to obtain in connection with
the consummation of the Project, the operation of the Mine in
accordance with the Development Plan and the execution and
implementation of the Operative Documents are listed in Item
1 ("APPROVALS") of the Disclosure Schedule.
(b) Each of the Project Documents is:
(i) in full force and effect;
(ii) enforceable against each Obligor party thereto (and by such
Obligor against all other parties thereto) in accordance with
its terms (subject to bankruptcy and insolvency laws and
other similar laws of applicability to creditors generally
and to general equitable principles); and
(iii) in the form previously or concurrently delivered to the
Facility Agent pursuant to this Agreement. All performance
required under each Project Document of each Obligor (and, to
the best of the knowledge of each Obligor, of each other
party) required at the date of the making of this
representation from time to time has occurred (except:
(A) performance required by any relevant Project Document to
be performed at a later date; and
(B) performance of any Obligation contained in any such
Project Document which is not material to the Project or
to the
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performance of such Project Document taken as a whole),
and no default (however denominated) in the performance
of the obligations of any Obligor, (or, to the best of
the knowledge of each Obligor, of any other party) under
any Project Document (except any such default in the
performance of any such obligation which is not material
to the Project or to the performance of such Project
Document taken as a whole) has occurred and is
continuing.
7.18 ADEQUACY OF INFORMATION
The factual statements contained in each of the Development Plan, the
Environmental Impact Assessment and the Insurance Summary, based upon the
assumptions stated therein, are true and correct in all material respects
and do not omit to state any information or fact the omission of which
might render any conclusion or statement contained in any such document
misleading in any material respect. The Development Plan contains summary
descriptions of the Project Assets and the Project and the operation of
the Mine as proposed to be conducted throughout the Project Period. The
Environmental Impact Assessment, the Development Plan and the Insurance
Summary contain summary descriptions of the environmental, technical and
insurance aspects of the Project Assets and the Project and the operation
of the Mine as now conducted and as proposed to be conducted throughout
the Project Period. The financial projections, estimates and other
expressions of view as to future circumstances contained in the
Feasibility Study are fair and reasonable and, to the best of each
Obligor's knowledge, have been arrived at after reasonable enquiry and
have been made in good faith by the persons responsible therefor.
7.19 ENVIRONMENTAL WARRANTIES
(a) Except as set forth in Part A ("ENVIRONMENTAL MATTERS-PROJECT") of
Item 6 of the Disclosure Schedule:
(i) all facilities and property (including underlying
groundwater) owned, operated, leased or utilised in
connection with the Project have been, and continue to be,
owned, operated, leased or utilised by such person in
material compliance with the standards set out in, referred
to or utilised by the Environmental Impact Study and with the
standards for material compliance with environmental and
related matters stipulated by the World Bank and as in effect
on the date of the Supplemental Agreement (the "ENVIRONMENTAL
REVIEW STANDARDS") and in material compliance with material
Environmental Laws;
(ii) there have been no past, and there are no pending or
threatened:
(x) claims, complaints, notices or requests for information
received by any person in connection with the Project
with respect to any alleged violation of Environmental
Review Standards or any Environmental Law which have not
been cured or satisfied; or
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(y) complaints, notices or inquiries in connection with the
Project regarding potential liability under any
Environmental Review Standard or Environmental Law which
complaints, notices or inquiries have resulted in, or
would be reasonably likely to result in, any action
being taken by any Governmental Agency or any other
person;
(iii) all Environmental Review Standards and Approvals relating to
environmental matters which are necessary for the Project
have been issued and are being materially complied with; and
(iv) no conditions exist at, on or under any property now or
previously owned, leased, operated, licensed or used by the
Borrower or, so far as the Borrower is aware having made
enquiry, any other Project Party in connection with the
Project which, with the passage of time, or the giving of
notice or both, would give rise to liability under any
Environmental Review Standard or Environmental Law that,
individually or in the aggregate, has, or may reasonably be
expected to have, a Materially Adverse Effect with respect to
the Borrower.
(b) Without prejudice to clause (a), except as disclosed in Part B
("ENVIRONMENTAL MATTERS - GROUP") of Item 6 of the Disclosure
Schedule:
(i) each Relevant Group Company has complied with all applicable
Environmental Laws, except where the failure to be in
compliance therewith (x) would not reasonably be expected to
have a Materially Adverse Effect with respect to any Obligor
or (y) would not reasonably be expected to result in any
action being taken by any Governmental Agency or any other
person charged under law with a responsibility to enforce any
Environmental Law;
(ii) no Relevant Group Company manages any Hazardous Materials at
any of its facilities or assets in violation of any
Environmental Laws, except where any such violation would not
reasonably be expected to have a Materially Adverse Effect
with respect to any Obligor, and
(iii) there are no events, conditions or circumstances occurring at
or relating to any facilities or assets of any Relevant Group
Company involving any environmental pollution or
contamination that have, or would reasonably be expected to
have, a Materially Adverse Effect with respect to any
Obligor.
7.20 PARI PASSU
The payment Obligations of each Obligor under each Loan Document to which
it is a party rank at least PARI PASSU in right of payment with all of
such Obligor's other unsecured indebtedness, other than any such
indebtedness which is preferred by mandatory provisions of Applicable
Law.
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7.21 ROYALTIES, ETC
Other than as disclosed in Item 9 ("ROYALTY AGREEMENTS") of the
Disclosure Schedule, neither the Mine nor the Borrower's interest therein
is subject to any royalty, net smelter return obligation, net profit
payment or similar arrangement.
8. COVENANTS
8.1 CERTAIN AFFIRMATIVE COVENANTS
Each Obligor agrees with each Lender, Party that, until all Commitments
have terminated and all Obligations have been paid and performed in full,
it will perform its respective obligations set forth in this Clause;
PROVIDED, HOWEVER, that (except in the case of Clauses 8.1.4, 8.1.18 and
8.1.20) no Randgold Completion Guarantor will be under any further
obligation under this Clause 8.1 (but without prejudice to any liability
arising as a result of any breach on or prior to the Release Date of any
undertaking of any Randgold Completion Guarantor contained in this Clause
8.1) at any time following the Release Date.
8.1.1 FINANCIAL INFORMATION, ETC
The Borrower (and/or where stated below, the Randgold Completion
Guarantors) will furnish, or will cause to be furnished, to the Agent
(and, in the case of clause (c), the Independent Engineer) copies (with
sufficient copies for each other Lender Party) of the following financial
statements, reports and information:
(a) promptly when available, and in any event within one hundred and
eighty (180) days after the close of each Fiscal Year of each
Randgold Completion Guarantor, the consolidated balance sheet of
such Randgold Completion Guarantor and its subsidiaries at the close
of such Fiscal Year and the related consolidated statements of
operations, shareholders' equity and cash flow of such Randgold
Completion Guarantor and its subsidiaries, in each case with
comparable information at the close of and for the prior Fiscal
Year, and reported on without Impermissible Qualification by
Pricewaterhouse Coopers or independent certified public or chartered
accountants of recognised international standing, together with a
certificate from such accountants to the effect that, in making the
examination necessary for the signing of such annual report by such
accountants, they have not become aware of any Default that has
occurred and is continuing, or, if they have become so aware,
describing such Default;
(b) promptly when available, and in any event within forty five (45)
days after the close of each of the first three Fiscal Quarters of
each Fiscal Year of each Obligor:
(i) in the case of the Borrower, its balance sheet at the close
of such Fiscal Quarter, and its related statements of
operations, shareholders' equity and cash flow; and
(ii) in the case of each Randgold Completion Guarantor, its
consolidated balance sheet at the close of such Fiscal
Quarter, and
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its related consolidated statements of operations,
shareholders' equity and cash flow,
in each such case in respect of such related statements, for such
Fiscal Quarter and for the period commencing at the close of the
previous Fiscal Year and ending with the close of such Fiscal
Quarter (with comparable information at the close of and for the
corresponding Fiscal Quarter of the prior Fiscal Year and for the
corresponding period during such prior Fiscal Year) and certified by
an accounting or financial Authorised Representative of the relevant
Obligor:
(c) within thirty (30) Business Days after March 31, June 30, September
30 and December 31 of each calendar year and on the Mechanical
Completion Date, the Economic Completion Date and the Release Date,
a Compliance Certificate calculated as of such March 31, June 30,
September 30 or December 31 or as of the Mechanical Completion Date,
the Economic Completion Date or the Release Date, as the case may
be, indicating, INTER ALIA, compliance with each of the ratios set
forth in Clause 9.1.19 on each Calculation Date coinciding with or
scheduled to occur thereafter, together with such information
concerning the calculations and assumptions used by the Borrower in
preparing such Compliance Certificate as the Agent may request;
(d) promptly upon receipt thereof, copies of all detailed financial and
management reports submitted to each Obligor by a certified public
accountant in connection with each annual or interim audit made by
such certified public accountant of the books of such Obligor;
(e) annually, on or before each anniversary of the initial Borrowing
Date, a memorandum prepared by the Borrower summarising the then
outstanding insurance coverage with respect to the Mine together
with a certificate or certificates of insurance prepared by the
Insurance Consultant and in form and substance satisfactory to the
Agent confirming that:
(i) all such insurance coverage is in full force and effect and
all premiums payable in connection therewith have been paid;
(ii) in the opinion of the Insurance Consultant, such insurance is
sufficient for the purposes of the Mine and is responsive to
the requirements of Clause 8.1.7;
(iii) the Agent is named as the first loss payee under all policies
of property insurance and as an additional insured under all
policies of liability insurance; and
(iv) the insurers under such insurance policies have undertaken in
writing not to amend or terminate such policies without at
least thirty (30) days' prior written notice thereof to the
Agent and have entered into such undertakings as are required
pursuant to Clause 8.1.7; it being agreed that such
certificate shall be conclusive as against the Borrower both
as to the amount of insurance required
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and the perils against which coverage is required and the
Borrower shall immediately insure in accordance with such
certificate;
(f) as promptly as practicable after the occurrence of the relevant
event details as to any:
(i) material disputes with such of its insurance carriers as are
providing insurance coverage with respect to the Mine;
(ii) failure to pay any insurance premium as and when required
that might result in the cancellation of any policy
implemented in connection with, or relating to, the Mine;
(iii) material reduction in the amount of, or any other material
change in, insurance or reinsurance coverage maintained in
connection with the Mine;
(iv) failure to comply with its obligations under Clause 8.1.7, in
each case stating the reasons therefor, together with any
other information concerning the insurance and reinsurance
coverage required to be maintained by it as the Agent shall
have reasonably requested;
(v) occurrence of any actual or potential casualty or loss which
is covered by the terms of any policy of insurance maintained
in connection with the Mine;
(vi) notices received from any insurance carriers with respect to
the cancellation of or proposed cancellation of any policy of
insurance maintained in connection with the Mine (and, in the
case of the notification of any such details, stating the
reasons therefore, together with any other information
concerning the insurance coverage required to be maintained
pursuant to this Agreement as the Agent shall have reasonably
requested); and
(vii) occurrence of any event which, to any Obligor's knowledge, is
of the nature referred to in the Political Risk Insurance as
an event which is insured thereby;
(g) without prejudice to the provisions of Clause 8.1.18, 8.2.14,
8.2.15, 9.1.7 or 9.1.8, the Borrower will furnish promptly upon the
effectiveness of occurrence thereof, as the case may be, copies of
any Instrument, correspondence or other item of documentation
amending, supplementing or otherwise modifying the material
provisions of any Project Document and a detailed report of any
agreed material departure from the performance by any party of any
of its material obligations under any Project Document;
(h) promptly upon receiving knowledge of the same, notice of the
occurrence of any default or event of default (howsoever denominated
but without prejudice to the provisions of Clause 9.1.7 or 9.1.8) by
any party relating to a material provision of any of the Project
Documents;
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(i) without limiting any other provision of Clause 8.1, as soon as
possible and in any event within three (3) Business Days after the
occurrence of any Default, the Borrower will furnish a statement of
the chief financial Authorised Representative of the Borrower
setting forth details of such Default and the action which has been
taken, and which it is proposed be taken, with respect thereto;
(j) as soon as possible and in any event within five (5) Business Days
after:
(i) the occurrence of any adverse development with respect to any
litigation, arbitration, employment dispute, or governmental
investigation or proceeding described in Clause 7.8 which has
a reasonable likelihood of having a Materially Adverse.
Effect with respect to any Obligor; or
(ii) the commencement of any litigation, arbitration, employment
dispute or governmental investigation or proceeding of the
type described in Clause 7.8, the relevant Obligor will
furnish to the Agent notice thereof and such details in
connection therewith as the Agent may reasonably request;
(k) Without limiting any other provision of Clause 8.1, notice of the
occurrence as soon as possible (and in any event within three (3)
Business Days) after any Obligor knows or has reason to know of any
circumstance which has a reasonable likelihood of having a
Materially Adverse Effect with respect to such Obligor;
(l) not more than ten (10) Business Days after the close of each
calendar month, the Borrower shall deliver a Monthly Mine Report as
at the close of such calendar month in form and substance
satisfactory to the Agent and the Required Lenders;
(m) not more than ten (10) Business Days after the end of each calendar
month the Borrower shall deliver:
(i) a statement showing in detail all credits to, debits from,
and balances standing to the credit of the Project Accounts
for such calendar month; and
(ii) a certificate, duly executed by the chief financial or
accounting Authorised Representative of the Borrower,
indicating the amounts, and the relevant payee, of all
Project Costs made for such calendar month, such payments to
be consistent with the Cash Flow Schedule (except to the
extent permitted by Clause 4.4(c));
(n) promptly after the end of each calendar year, the Borrower shall
deliver a review of the operations of the Morila Project during such
calendar year (such review to include any necessary updates to the
Cash Flow Model, calculations indicating compliance with the
provisions of Clause 9.1.19 up until the Final Maturity Date and a
statement of Proven and Probable
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Reserves as at the end of such calendar year, in each case in form
and substance satisfactory to the Independent Engineer);
(o) each Obligor will furnish copies of each filing and report or
document made to or filed with, or received from, any Governmental
Agency, and of each communication from such Obligor to its
shareholders or creditors generally, in each case promptly upon the
making, filing or receipt thereof which, in any such case, relate to
or describe any material matter in connection with the business,
operations, assets, financial condition or prospects of the relevant
Obligor;
(p) the Borrower will, immediately upon becoming aware of any fact or
circumstance giving rise to (or likely to give rise to) any cost
overrun which might oblige any Completion Guarantor to make a
contribution pursuant to Clause 3.2 of either Guarantee Agreement to
which such Completion Guarantor is a party, give notice of such fact
or circumstance. Such notice shall include information in reasonable
detail as to the amount of such cost overrun, the circumstances
giving rise thereto and any further possible cost overruns as may
then be likely to occur;
(q) the Borrower will furnish copies of all material Instruments entered
into by any Obligor in connection with the Project or the operation
of the Mine in each case promptly upon having entered into the same
(and of all material Instruments entered into by any other persons
in connection with the Project promptly upon receipt of the same by
the Borrower (and, in connection with any such Instrument, the
Borrower undertakes to attempt to acquire the same as quickly as is
reasonably possible after it becomes aware of such Instrument)) and
the Borrower will immediately give notice of its intention to enter
into any such Instrument or the intention of any other person to
enter into any such Instrument (promptly upon the Borrower becoming
aware of such intention);
(r) The Borrower will, promptly upon receipt thereof furnish copies of
each Annual Operating Budget and Capital Budget (in each case as
defined in the Operating Agreement) delivered to it pursuant to the
Operating Agreement; and
(s) each Obligor will furnish such other information with respect to its
financial condition, business, property, assets, revenues and
operations as the Agent or any Lender (acting through the Agent) may
from time to time reasonably request.
8.1.2 COMPLIANCE WITH LAWS
Each Obligor will comply in all material respects with all Applicable
Laws.
8.1.3 APPROVALS
(a) Each Obligor will obtain, maintain in full force and effect, and
comply in all respects with, all Approvals (including those
identified in Item 1
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("APPROVALS") of the Disclosure Schedule) as may be required or
advisable from time to time for such Obligor to:
(i) execute, deliver, perform and preserve its rights under any
of the Operative Documents executed or to be executed by it;
(ii) grant and perfect the liens granted or purported to be
granted and perfected by it pursuant to any Security
Agreement to which it is a party; and
(iii) in the case of the Borrower, own, lease, use or license the
Project Assets in which it holds any interest and operate the
Mine in accordance with sound mining and business practice;
(b) Without limiting clause (a), the Borrower will obtain all Approvals
identified in Part B of Item 1 ("PENDING APPROVALS") of the
Disclosure Schedule by the date set forth in the Disclosure Schedule
opposite such Approval and, within five (5) Business Days of
obtaining any such Approval deliver to the Agent certified copies of
such Approval.
8.1.4 MAINTENANCE OF CORPORATE EXISTENCE
Each Obligor will do and will cause to be done at all times all things
necessary to maintain and preserve its corporate existence.
8.1.5 FOREIGN QUALIFICATION
Each Obligor will do and cause to be done at all times all things
necessary to be duly qualified to do business and be in good standing
(where such concept is relevant) as a foreign corporation, in each
jurisdiction where the nature of its business makes such qualification
necessary.
8.1.6 PAYMENT OF TAXES, ETC
Each Obligor will file all tax returns (including all property tax
returns and other similar tax returns applicable to the Mine) and reports
required by Applicable Law to have been filed by it. Each Obligor will
pay and discharge, as the same may become due and payable, all taxes,
assessments, fees and other governmental charges or levies against it or
on any of its property, as well as claims of any kind or character
(including claims for sums due for labour, material, supplies, personal
property and services); PROVIDED, HOWEVER, that the foregoing shall not
require any Obligor to pay or discharge any such tax, assessment, fee,
charge, levy or claim:
(a) in respect of which the relevant invoice or demand for payment was
issued not more than one hundred and twenty (120) days prior to the
payment thereof (and in respect of which the relevant Obligor has,
upon request, demonstrated to the Agent that it will pay prior to
the end of such period); or
(b) so long as it shall be diligently contesting the validity or amount
thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves in accordance with GAAP with
respect thereto.
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8.1.7 INSURANCE
(a) The Borrower will maintain (or will cause to be maintained) with
reputable insurance companies:
(i) insurance as required under this Agreement, as required
pursuant to Applicable Law and otherwise as contemplated by
the Insurance Summary; and
(ii) such other insurance (including business interruption and
delay in start up insurance) with respect to the properties
and business of the Borrower and the Morila Project against
such casualties and contingencies and of such types and in
such amounts as is customary in the case of similar
businesses to the Morila Project similarly situated and
financed on a limited recourse basis and the Borrower will,
upon request of the Agent, furnish to the Agent at reasonable
intervals (but not, as long as no Event of Default shall then
have occurred and be continuing, more than twice in any year)
a certificate setting forth the nature and extent of all
insurance maintained by or on behalf of the Borrower in
accordance with this Clause and confirming its adequacy and
sufficiency. The Agent may (if so required by the Lenders)
solicit the services of the Insurance Consultant to assess
the adequacy and sufficiency of the insurance coverage
required to be maintained hereunder and to evaluate the
contents of each certificate furnished pursuant to the
immediately preceding sentence. The Borrower will provide the
Agent with thirty (30) days prior written notice of any
proposed change of any insurance company providing insurance
coverage of the nature referred to in this Clause, and any
such change shall be consistent with the provisions of this
Agreement. The Borrower will from time to time provide the
Agent with such amendments to the Insurance Summary so as to
ensure that the same is complete and accurate at all times,
together with copies of all insurance policies as in effect
from time to time; PROVIDED, HOWEVER, that any such amendment
to the Insurance Summary shall be without prejudice to the
other requirements of this Clause and this Agreement with
respect to the required insurance coverage in connection with
the Morila Project; and PROVIDED, FURTHER, HOWEVER, that any
such amendment to the Insurance Summary shall require the
consent of the Agent (and, in the case of any such amendment
relating to the amount of any insurance coverage, any
deductible relating thereto and any exclusion to such
coverage, each of the Lenders). Without prejudice to the
foregoing, the Borrower shall ensure that all premiums
required to be paid in order to ensure that the policies
referred to in this clause are in full force and effect shall
be paid as and when the same shall become due and payable and
shall otherwise comply with each other term and condition of
such policies so as to ensure that such policies are, and
shall continue, in full force and effect.
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(b) All of the insurance policies relating to the Morila Project (and,
to the extent required by the Agent as set forth in clause (d), all
policies of reinsurance issued in connection therewith) will, in
each case, in accordance with standard practice in the mining
industry having regard, INTER ALIA, to the limited recourse nature
of the facility granted pursuant to this Agreement and to
prevailing market practice in connection with comparable facilities
for projects similar to the Morila Project:
(i) specify the Lender Parties as additional insureds under all
policies of liability insurance and as additional insureds
and the Agent as first loss payee under all policies of
property, business interruption and marine insurance, and
contain such endorsements in favour of the Agent as the Agent
shall reasonably require;
(ii) not be cancellable (or non-renewable or subject to a decrease
in the scope or amount of coverage (including by way of
increase in any deductible)) as against the Agent (including
for failure to pay premiums) or subject to material
alteration of any kind without (x) in the case of any such
action, thirty (30) days written notice of such action having
been given by the Borrower or the issuer of the relevant
policy to the Agent, and (y) in the case of any such material
alteration, the prior written consent of the Agent;
(iii) in the case of insurance covering loss or damage to any of
the Project Assets, contain a "LENDER LOSS PAYABLE" provision
for the benefit of the Agent on behalf of itself and the
Lenders (including that the policy shall not be invalidated
as against the Agent by reason of any action or failure to
act of the Borrower or any other person), provide for
(including containment of a "NON-VITIATION" provision) waiver
of any right of set-off, recoupment, subrogation,
counterclaim or any other deduction, by attachment or
otherwise, with respect to any liability of the beneficiary
of such policy, and shall provide that all amounts payable by
reason of loss or damage to any of the Project Assets shall
be payable to the Agent for replacement;
(iv) provide for payments of claims thereunder in Dollars (except
as set forth in the Insurance Summary); and
(v) otherwise (including with respect to the identity of the
brokers, insurers, re-insurers and/or indemnities involved in
connection with the solicitation, placement and issue of such
insurance policies) be in form and substance reasonably
satisfactory to the Agent.
In connection with the foregoing, the Borrower and, to the extent
that it is party to any such insurance policy, each Randgold
Completion Guarantor shall (y) execute and deliver notices to the
brokers, underwriters and insurance companies through or with whom
any policy of insurance maintained in connection with the Morila
Project have been effected in such form as the Agent may from time
to time reasonably request, and (z) procure that any insurer
effecting any reinsurance of any policy of
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insurance maintained in connection with the Morila Project execute
and deliver such notices to the issuer of any such policy of
reinsurance as the Agent may from time to time reasonably request.
The Borrower shall not at any time do or omit to do anything whereby
any insurance required to be effected under the Insurance Summary or
pursuant to this Clause would, or would be likely to, be rendered
void or voidable or suspended, impaired or defeated in whole or in
part.
The Borrower will make (or will cause to be made) full disclosure of
all relevant issues and facts to the issuer of each insurance policy
maintained in connection with the Morila Project such that no such
issuer will be entitled to vitiate, cancel or otherwise refuse or
decline to honour the terms of, or pay claims in respect of, any
such insurance policy.
(c) The Borrower will cause proceeds, if any, of all insurances
(excluding, for the avoidance of doubt, any Political Risk
Insurance) maintained with respect to the Morila Project and the
Mine to be applied as follows:
(i) all amounts received in respect of:
(x) the partial or total nationalization, expropriation,
compulsory purchase or requisition of the Mine or the
Project Assets, or any interest therein;
(y) any release, inhibition, modification, suspension or
extinguishment of any Mining Rights, or the imposition
of any restriction affecting the Mine or the Project
Assets or the grant of any Mining Right; and
(z) the suspension or material modification of any Approval
required or advisable in connection with the Morila
Project or the operation of the Mine,
shall, in each such case, be deposited into the Operating
Account and applied as set forth in Clause 3.1(c);
(ii) all amounts received in respect of any liability insurance
may be paid directly to the person entitled thereto and after
an Enforcement Event all such amounts shall (except to the
extent that such amounts are, pursuant to the provisions of
the relevant policy of insurance, required to be paid to the
third party suffering the loss to which such amount relates)
be deposited into the Operating Account (it being understood
that, without prejudice to clause (b)(iv) or any other
provision of this Agreement, all proceeds denominated in CFA
shall be deposited into the Project Account (Mali));
(iii) all amounts received in respect of any business interruption
insurance or delay in start-up insurance shall be deposited
into the Operating Account; and
(iv) prior to an Enforcement Event, all proceeds from casualty or
property insurance received for any single repair,
replacement or
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restoration costing less than U.S.$1,000,000 (or the
equivalent thereof in any other currency) shall be promptly
deposited into the Operating Account and may be applied to
the repair, replacement or restoration of the assets in
respect of which the relevant proceeds were received or for
reimbursement of the person which effected such repair,
replacement or restoration and after an Enforcement Event
all such proceeds shall be applied as the Lenders shall
determine. All such proceeds received for any such single
repair, etc. costing an amount which is equal to or in
excess of U.S.$1,000,000 (or the equivalent thereof in any
other currency) shall, with the consent of the Required
Lenders, be applied to the prompt payment of the cost of
the repair, replacement or restoration of such damaged or
destroyed asset. In the event that the consent of the
Required Lenders shall not be granted pursuant to the
provisions of the immediately preceding sentence, then all
such proceeds shall be applied to make a mandatory
prepayment of the Principal Amount of the Loans pursuant to
Clause 3.1(c).
(d) If the Agent shall so require, at the cost and expense of the
Borrower, the Borrower will procure that:
(i) any policy of insurance issued in connection with the
Morila Project is re-insured and kept re-insured with one
or more reputable international re-insurance companies or
underwriters and through such brokers as the Agent shall,
acting in its reasonable discretion, approve and to the
reasonable satisfaction of the Agent as to the form and
content thereof;
(ii) any claim upon such policies of re-insurance shall be paid
without deduction or set-off and any such claim under a
policy of re-insurance with respect to a claim under the
policies of insurance relating to the Morila Project shall
be paid in accordance with clause (c); and
(iii) all such instruments of re-insurance shall be deposited
with brokers approved by the Agent and that copies thereof,
together with such undertakings as the Agent may reasonably
require, are furnished to the Agent.
(e) For the avoidance of doubt neither any Lender Party nor the
Insurance Consultant shall be under any obligation to the
underwriters, insurance companies, or brokers by or through whom
any policy of insurance referred to in this Clause shall be
effected.
8.1.8 BOOKS AND RECORDS
Each Obligor will keep financial records and statements reflecting all
of its business affairs and transactions in accordance with GAAP. On
not less than three (3) days prior written notice where no Default has
occurred and on not less than twenty four (24) hours prior notice where
a Default has occurred, in each case during normal business hours each
Obligor will permit the Independent Engineer,
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the Insurance Consultant, the Lender Parties or any of their respective
representatives to inspect any and all of its properties and operations
(including, in the case of the Borrower, the Mine), to visit all of its
offices or any other location where relevant personnel or records are
located, to discuss its financial matters with its officers, its banks
and its independent chartered accountants and certified public
accountants, as the case may be, (and hereby authorises such
independent chartered accountants or certified public accountants, as
the case may be, to discuss its financial matters with any of the
foregoing persons or its representatives whether or not any
representative of the relevant Obligor is present), in each case
subject to such safety and organisational requirements as the Borrower
may reasonably impose, and to examine (and photocopy extracts from) any
of its books or other corporate records or any Instrument, document or
correspondence relating to any of the Project Documents. Without
limiting the generality of the foregoing, each Obligor shall provide
all relevant and necessary assistance to the Independent Engineer and
the Insurance Consultant in connection with the performance of their
respective duties contemplated hereby (including the preparation of
each Semi-Annual Mine Report and each other report prepared by the
Independent Engineer and the Insurance Consultant). The Borrower shall
pay any reasonable fees of such chartered accountant or certified
public accountant and the Independent Engineer and the Insurance
Consultant and out-of-pocket expenses of the Lender Parties incurred in
connection with the exercise of their rights pursuant to this Clause.
It is expressly understood that none of the Independent Engineer, the
Insurance Consultant or any Lender Party assumes any obligation to any
Obligor or any other party in respect of the operation, development,
exploration and production of the Mine in a manner so as to ensure
compliance with the projections set forth in the Development Plan, the
Cash Flow Schedule or otherwise.
8.1.9 MORILA PROJECT COMPLETION AND MANAGEMENT
Each Obligor will ensure that the Morila Project is consummated in
accordance with the Development Plan, Applicable Laws, the Project
Documents and sound mining and business practice, and will ensure that
the Mine is operated, maintained and developed and that Project Output
is produced and processed, all substantially in accordance with the
Development Plan, Applicable Laws and sound mining and business
practice (including, so as to ensure that the Mechanical Completion
Date, the Economic Completion Date and the Release Date occur on or
prior to 31 December, 2001).
8.1.10 REQUIRED HEDGING AGREEMENTS
At all times on and after the Effective Date, the Borrower shall
provide evidence to the Agent to the effect that it has directly
entered into (or shall have been assigned the benefit thereof from RRL,
Morila Holdings or AngloGold or any subsidiary of AngloGold), and the
Agent (for the rateable benefit of the Lender Parties) shall have been
granted a first priority perfected lien in respect of the Borrower's
rights under, Committed Hedging Agreements reasonably acceptable to the
Agent or put options from the Borrower or other similar uncommitted
transactions with respect to the sale of Gold (together with such
Committed Hedging Agreements, collectively, the "REQUIRED HEDGING
AGREEMENTS") which are in effect with counterparties (the "REQUIRED
HEDGING COUNTERPARTIES") satisfactory to the Agent such that the
proceeds thereof (both as to the amount and to the timing) are
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sufficient to ensure that, as at all Calculation Dates. scheduled to
occur after such time, no Default would have occurred pursuant to the
provisions of Clauses 9.1.19(a), 9.1.19(b), or 9.1.19(c). Furthermore,
each Obligor shall ensure that all hedging undertaken in connection
with the Morila Project complies with, and is consistent with, the
terms and conditions of the Hedging Policy. RRL shall ensure that any
other hedging undertaken by it shall be made in the ordinary course of
its business. In addition to any obligation contained in the
immediately preceding sentence, each Obligor shall ensure that the
hedging transactions implemented pursuant to each of:
(a) the ISDA Master Agreement, dated as of September 1, 1999, between
RRL and Standard Bank London Limited;
(b) the ISDA Master Agreement, dated March 9, 2000, between RRL and
N M Rothschild & Sons Limited; and
(c) the ISDA Master Agreement, dated February 18, 2000, between RRL
and Societe Generale,
(as the same may, in a manner which is consistent with the Hedging
Policy, be amended, modified, supplemented or replaced from time to
time in order to replace RRL with Morila Holdings as the hedging
counterparty or to replace any provider of hedging with an affiliate
thereof) shall, in each such case, at all times remain in full force
and effect without amendment, modification or restructuring.
8.1.11 USE OF PROCEEDS
The Borrower shall apply the proceeds of the Loans in accordance with
the second recital, and otherwise strictly in accordance with this
Agreement.
8.1.12 PROVISION OF STAFF
Each of the Obligors shall ensure (to the satisfaction of the Agent)
that there are sufficient competent technical and management employees
engaged in connection with the Mine and the Morila Project with a view
to enabling (a) the occurrence of the Mechanical Completion Date, the
Economic Completion Date and the Release Date on or prior to 31
December, 2001, and (b) the operation, development and maintenance of
the Mine substantially in accordance with the Development Plan.
8.1.13 ENVIRONMENTAL COVENANTS
(a) The Borrower will, and will use all reasonable efforts to ensure
that each other Project Party will:
(i) use and operate the Mine, the Project Assets and all of
the facilities and properties related thereto in material
compliance with, keep all Approvals relating to
environmental matters in effect and remain in material
compliance with, and handle all Hazardous Materials in
material compliance with the Environmental Review Standards
and with material applicable Environmental Laws;
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(ii) immediately notify the Agent and provide copies upon
receipt of all material written claims, complaints or
notices relating to the condition of the facilities and
properties related to the Mine and the Project Assets or
material compliance with the Environmental Review Standards
or Environmental Laws relating to the Morila Project, and
shall use reasonable efforts to cure any non-compliance
which is the subject matter of any action and proceeding
relating to such Environmental Review Standards or
Environmental Laws, unless the Borrower intends to contest
such action or proceeding and, in connection with such
contest, the Borrower has immediately notified the Agent of
its intention to do so and the Borrower believes in good
faith that there is a reasonable prospect of succeeding
with such action or proceeding;
(iii) provide such information and certifications which the Agent
may reasonably request from time to time to evidence
compliance with this clause.
(b) Each Randgold Completion Guarantor will use reasonable efforts to
seek to (and will use reasonable efforts to seek to (except in the
case of clause (b)(i)) ensure that each of its subsidiaries will
seek to):
(i) ensure that the Borrower complies with its obligations set
forth in clause (a);
(ii) except where failure to comply with the provisions of this
clause would not be reasonably likely to result in a
Materially Adverse Effect, use and operate all of its
facilities and properties in compliance with material
Environmental Laws and remain in compliance therewith, and
handle all Hazardous Materials in material compliance with
all applicable Environmental Laws; and
(iii) provide such information and certifications which the Agent
may reasonably request from time to time to evidence
compliance with this clause.
8.1.14 MAINTENANCE OF PROJECT ASSETS
The Borrower will maintain, preserve, protect and keep:
(a) all of its ownership, lease, use, licence and other interests in
the Project Assets (including all Mining Rights) as are necessary
or advisable for it to be able to operate the Mine substantially
in accordance with sound mining and business practice and in a
manner such that the requirements of, and projections contained
in, the Development Plan can be achieved; and
(b) all of the Project Assets owned by it in good repair, working
order, and condition, and make necessary and proper repairs,
renewals, and replacements so that the business carried on in
connection therewith may be properly conducted at all times,
unless the continued maintenance of any of such Project Assets is
no longer necessary or economically desirable for the
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operation of the Mine, such operation to be substantially in
accordance with sound mining and business practice.
8.1.15 PARI PASSU
Each Obligor will ensure that its payment Obligations under this
Agreement and each other Loan Document to which it is a party rank at
least PARI PASSU in right of payment with all of such Obligor's present
and future other unsecured indebtedness, other than any such
indebtedness which is preferred by mandatory provisions of Applicable
Law.
8.1.16 AFTER-ACQUIRED COLLATERAL
Upon the acquisition or production of any Project Assets (including the
entering into of any Project Document) of a type over which any lien
has been granted pursuant to any Security Agreement but in respect of
which no lien has effectively been granted pursuant to any such
Security Agreement and which constitute assets having an aggregate fair
market value of U.S.$100,000 (or the equivalent thereof in any other
currency), the relevant Obligor shall, to the extent permitted by
Applicable Law:
(a) enter into Instruments similar to the relevant Security
Agreement;
(b) simultaneously therewith, effect all relevant notarisations and
registrations or obtain the acknowledgement and agreement of all
relevant counterparties, as the case may be; and
(c) take all other actions necessary or advisable in order to:
(i) create in favour of the Lender Parties a valid and
perfected first priority lien (except for (x) liens
resulting from mandatory provisions of Applicable Law and
(y) liens specifically permitted to be incurred by this
Agreement or any Security Agreement) over all of such newly
acquired Project Assets; and
(ii) evidence the creation of such lien (including opinions
of legal advisers).
Without prejudice to the generality of the foregoing, the Borrower will
ensure that, promptly upon the effectiveness of any Project Document of
the nature described in clause (c) of the definition thereof, the
Lender Parties shall be granted a valid and perfected first priority
lien (except as aforesaid) over the Borrower's rights thereunder as
security for the Obligations.
8.1.17 ACCURACY OF INFORMATION
All factual information hereafter furnished by or on behalf of any
Obligor in writing to any Lender Party for the purposes of or in
connection with this Agreement or any transaction contemplated hereby
will be true and accurate in all material respects on the date as of
which such information is dated or certified and such information shall
not be incomplete by omitting to state any material fact
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known to the relevant Obligor necessary to make such information not
misleading in any material respect.
8.1.18 PROJECT DOCUMENTS
Each Obligor undertakes to ensure that, except to the extent expressly
permitted pursuant to this Agreement or any other Loan Document:
(a) each Obligor and, to the extent reasonably within any Obligor's
control any other relevant Project Party, observes their
respective obligations under all Project Documents in all material
respects;
(b) no Obligor abandons, settles, compromises or discontinues or
becomes non-suited in respect of proceedings against any party in
connection with a Project Document;
(c) each Obligor takes the action that a prudent, diligent and
reasonable person would take to cause each party to a Project
Document to observe its obligations in connection with that
Project Document, and if that party defaults in the performance of
those obligations to take the action that a prudent, diligent and
reasonable person would take to enforce its resulting rights
thereunder, unless the Agent, acting in its reasonable discretion,
agrees otherwise; and
(d) Each Obligor exercises any discretionary or similar power which
might be granted to it pursuant to any Project Document in a
manner which is consistent with the obligations of such Obligor
contained in the Loan Documents to which it is a party (including
those obligations set forth in Clause 8.1.19).
8.1.19 SALE OF PRODUCTION
Subject to the terms of any relevant Committed Hedging Agreements in
force from time to time and subject to the provisions of the proviso to
Clause 8.1.10, the Borrower will ensure that all Project Output is sold
on arm's length terms for a purchase price denominated in Dollars, and
the Borrower will ensure that the proceeds of any purchase price of all
Project Output are, subject to the terms of this Agreement, promptly
deposited directly into the Operating Account.
8.1.20 POLITICAL RISK INSURANCE
(a) The Borrower will, on demand, reimburse each Lender in respect of
premiums and any other amounts (including any costs and expenses
of the provider of any Political Risk Insurance) payable in
connection with any policy of Political Risk Insurance implemented
pursuant to this Agreement (including any such premium or other
amounts payable on or after the date of prepayment of the Loans or
on or after the date of termination of this Agreement).
(b) Each Obligor hereby acknowledges and agrees that each Lender may
furnish copies of all Instruments (including the Operative
Documents),
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documents, notices and other information furnished to and received
by such Lender pursuant to this Agreement or any other Loan
Document to the provider of the Political Risk Insurance taken out
by such Lender against receipt from such provider of a
confidentiality undertaking reasonably acceptable to the Borrower.
(c) Each Obligor will (and each Randgold Completion Guarantor will
ensure that the Borrower and each of its affiliates will) render
all necessary assistance to each Lender in connection with the
maintenance of any Political Risk Insurance (and full coverage
thereunder) and the collection of any claim thereunder.
(d) Each Obligor shall (and each Randgold Completion Guarantor will
ensure that the Borrower and each of its affiliates shall) act in
a manner so as to ensure that an exclusion from liability in
respect of any claim of any Lender under any policy of Political
Risk Insurance does not arise as a result of any action or any
inaction of any Obligor or any affiliate of either thereof.
Without limiting the generality of the foregoing, no Obligor will
(and each Randgold Completion Guarantor will ensure that neither
the Borrower nor any of its affiliates will):
(i) provoke or instigate any loss covered by such policy;
(ii) without the prior written consent of the relevant Lender,
accept compensation from Mali or any Governmental Agency
thereof in respect of any loss covered by such policy; or
(iii) in the case of the Borrower only, employ its assets for any
purpose not associated with the Morila Project.
(e) Each Obligor will ensure at all times that neither Mali nor any
Governmental Agency thereof has any ownership or other interest in
any Project Assets (excluding, however, any royalty payment to
Mali disclosed in Item 9 ("ROYALTY AGREEMENTS") of the Disclosure
Schedule and the ownership by the Government of Mali of twenty
(20%) of the issued share capital of the Borrower).
8.2 CERTAIN NEGATIVE COVENANTS
Each Obligor agrees with each Lender Party that, until all Commitments
have terminated and all Obligations have been paid and performed in
full, each Obligor will perform its respective obligations set forth in
this Clause; PROVIDED, HOWEVER, that (except in the case of Clause
8.2.12, Clause 8.2.13, Clause 8.2.14 (excluding the provisions of the
second and third lines thereof appearing in parentheses) and Clause
8.2.15) no Randgold Completion Guarantor will be under any further
obligation under this Clause 8.2 (without prejudice to any liability
arising as a result of any breach on or prior to the Release Date of
any undertaking of any Randgold Completion Guarantor contained in this
Clause) at any time following the Release Date.
8.2.1 BUSINESS ACTIVITIES; PLACE OF BUSINESS; ORGANIC DOCUMENTS; FISCAL YEAR
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(a) The Borrower will not (except as expressly permitted pursuant to
any Loan Document):
(i) engage in any business activity other than the consummation
of the Morila Project and the operation of the Mine and any
activity incidental thereto;
(ii) maintain any place of business in the United Kingdom or
elsewhere (other than the location of the Mine or Bamako,
Mali) without first taking (to the satisfaction of the
Agent) all actions necessary to protect the lien granted
pursuant to the relevant Security Agreements;
(iii) except as may be required by Applicable Law in connection
with any increase in the capital of the Borrower, amend its
Organic Documents or change its corporate name; or
(iv) change its Fiscal Year.
(b) No Randgold Completion Guarantor will engage in any business
activity other than:
(i) in the case of RRL, as a holding company for the ownership,
directly or indirectly, of all or a portion of the issued
and outstanding share capital of the Borrower and other
subsidiaries engaged in exploration, development, mining
and related activities in connection with the mining of
gold; and
(ii) in the case of Morila Holdings, as a holding company for
the ownership, directly, of the issued and outstanding
share capital of the Borrower.
8.2.2 INDEBTEDNESS
No Obligor will create, incur, assume, or suffer to exist or otherwise
become or be liable in respect of any indebtedness other than:
(a) indebtedness in respect of the Loans and other Obligations;
(b) in the case of each Obligor indebtedness in respect of the
Required Hedging Agreements in accordance with Clause 8.1.10, or,
without prejudice to the proviso to this clause, other Hedging
Obligations incurred in the ordinary course of business; PROVIDED,
HOWEVER, that each Obligor shall only incur Hedging Obligations
with Lenders as counterparties, pursuant to documentation and on
terms and conditions satisfactory to the Agent and pursuant to the
terms and conditions which are consistent with the Hedging Policy
(the "HEDGING POLICY");
(c) indebtedness in respect of the other Operative Documents;
(d) in the case of the Borrower, and at any date:
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(i) unsecured indebtedness outstanding at such date and
incurred in the ordinary course of business in connection
with Project Costs (by way of open accounts extended by
suppliers on normal trade terms in connection with
purchases of goods and services (and excluding, for the
avoidance of doubt, financial indebtedness); and
(ii) indebtedness not in excess of U.S.$2,000,000 (or the
equivalent thereof in any other currency) in respect of the
Borrower at any one time outstanding incurred to suppliers
of equipment and other personal property constituting
Project Capital Costs (other than pursuant to the
Construction Contract, the Mining Contract or the Power
Contract) in respect of the deferred purchase price of such
equipment or incurred by way of Capital Leases;
(e) in the case of each of the Borrower and (at any time on or prior
to the AngloGold Acquisition Date) RRL, Approved Subordinated
Indebtedness;
(f) in the case of RRL, indebtedness in an aggregate principal amount
not in excess of the CFA equivalent of U.S $6,250,000 incurred by
way of overdraft facilities extended to RRL by Banque de
Developpement du Mali;
(g) in the case of RRL, indebtedness incurred in connection with its
guarantee or other financial or other support of the IFC Syama
Project Financing in each case as in effect on the Effective Date;
(h) indebtedness in respect of taxes, assessments or governmental
charges, and indebtedness in respect of claims for employment,
materials or supplies to the extent that payment thereof shall not
at the time be required to be made in accordance with the
provisions of Clause 8.1.6;
(i) indebtedness in respect of judgments or awards, the enforcement of
which has not been stayed (by reason of a pending appeal or
otherwise), for a period of more than ten (10) days, which do not,
in the aggregate, exceed U.S.$1,000,000 (or the equivalent thereof
in any other currency); and
(j) in the case of the Borrower, indebtedness in an aggregate
principal amount not in excess of U.S.$1,600,000 outstanding to
the Government of Mali.
8.2.3 LIENS
No Obligor will create, incur, assume or suffer to exist any lien upon
any of its properties, revenues or assets, whether now owned or
hereafter acquired, except:
(a) liens in favour of the Agent (for the rateable benefit of the
Lender Parties) or in favour of the Lender Parties granted
pursuant to any Loan Document;
(b) liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books;
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(c) in the case of the Borrower, liens of carriers, warehousemen,
mechanics, materialmen, suppliers and landlords incurred in the
ordinary course of business for sums not overdue or being
contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set
aside on its books;
(d) in the case of the Borrower, liens incurred in the ordinary course
of business in connection with unemployment insurance or other
forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and
contracts (other than for financial indebtedness) entered into in
the ordinary course of business or to secure obligations on surety
or appeal bonds;
(e) judgment liens in existence less than ten (10) days after the
entry thereof or with respect to which execution has been stayed
or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies; and
(f) in the case of the Borrower, liens securing indebtedness permitted
to be incurred and outstanding pursuant to Clause 8.2.2(d)(ii);
PROVIDED, HOWEVER, that any such lien shall attach only to the
asset in respect of which such indebtedness is incurred.
For the purposes of this Clause the obligations secured by any lien
created or incurred in the ordinary course of business (other than any
liens of the nature referred to in clause (a) or (b)) may not exceed
U.S.$500,000 in the aggregate at any one time outstanding.
8.2.4 [INTENTIONALLY LEFT BLANK].
8.2.5 CAPITAL EXPENDITURES
The Borrower will not make or commit to make any costs in respect of
Capital Expenditures other than such costs which are identified in the
Cash Flow Schedule and shall not make or commit to make any such costs
if, at the time, or as a consequence of, incurring any such item of
expenditure any Default shall have occurred and be continuing;
PROVIDED, HOWEVER, that, if any such Default shall have occurred and be
continuing, the Borrower may make Capital Expenditures constituting
Required Completion Expenditures and Required Maintenance Expenditures.
8.2.6 INVESTMENTS
The Borrower will not acquire all or substantially all of the assets of
any other person and will not make, incur, assume or suffer to exist
any Investment in any other person, except Cash Equivalent Investments
permitted pursuant to Clause 4 to be made with balances standing to the
credit of any Project Account.
8.2.7 RESTRICTED PAYMENTS, ETC
The Borrower will not:
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(a) declare, pay or make any distribution (in cash, property or
obligations) on any shares of any class of capital stock (now or
hereafter outstanding) of the Borrower or on any ownership
interest of the Borrower or on any warrants, options or other
rights with respect to any shares of any class of capital stock
of, or other ownership interest (now or hereafter outstanding) in,
the Borrower or apply any of its funds, property or assets to the
purchase, redemption or other retirement of any shares of any
class of capital stock of, or other ownership interest (now or
hereafter outstanding) in, the Borrower, or warrants, options or
other rights with respect to any shares of any class of capital
stock of, or other ownership interest (now or hereafter
outstanding) in, the Borrower;
(b) repay, redeem, purchase or otherwise defease or discharge any
indebtedness owing to, or make any other payment to, any affiliate
(including all Approved Subordinated Indebtedness);
(c) make any deposit for any of the foregoing purposes or otherwise
discharge any indebtedness incurred by any affiliate; or
(d) pay any management or similar fee to any Randgold Completion
Guarantor, AngloGold or any of their respective affiliates;
PROVIDED, HOWEVER, that (A) the Borrower may make any payment or take
any other action for any of the foregoing purposes if each of the
following conditions are satisfied:
(i) no Default shall have occurred and be continuing or would
result from any such payment or other action; PROVIDED,
HOWEVER, that for purposes of this clause (i) only, a
Default shall be deemed to have occurred pursuant to Clause
9.1.19(b) or 9.1.19(c) if the Loan Life Ratio or Project
Life Ratio (calculated as set forth therein) shall be less
than or equal to one hundred and fifty percent (150%) or
one hundred and eighty percent (180%), respectively;
(ii) (w) any such payment or other action may be made or taken
only during each consecutive ten (10) Business Day period
following each Cash Sweep Calculation Date;
(x) after giving effect to all payments required to be
made on or prior to such Cash Sweep Calculation Date
(including any such payments required to be made on
such Cash Sweep Calculation Date pursuant to Clause
3.1(d)), there are sufficient funds standing to the
credit of the Operating Account to permit such
payment to be made in accordance with the provisions
of Clause 4.1(b);
(y) the aggregate of all such payments made during any
period referred to in clause (ii)(y) shall not exceed
the excess of (A) Excess Cash Flow for the Cash Sweep
Calculation Period in connection with the relevant
Cash Sweep Calculation Date, less (B) an amount which
the Required Lenders and the Borrower shall agree is,
after taking into account the likely Actual Cash
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Flow for any period following such Cash Sweep
Calculation Date, reasonably likely to be required to
fund Project Costs during such period; and
(z) prior to any such payment being made each of the
Lenders shall have received a completed Excess Cash
Flow Calculation Certificate in respect of the Cash
Sweep Calculation Period most recently ended and
indicating to the reasonable satisfaction of the
Lenders, that the amount of Excess Cash Flow for such
Cash Sweep Calculation Period is sufficient to enable
such payment to be made in compliance with the
foregoing provisions of this Clause;
(iii) in the case of any repayment, etc. of Approved Subordinated
Indebtedness pursuant to clause (b), such repayment etc.
shall be permitted to be made pursuant to the Subordination
Agreement; and
(iv) the Release Date shall have occurred; and
(B) the Borrower may, during the period commencing on the Supplemental
Agreement Effective Date and ending on the date which is five (5)
Business Days thereafter, make a repayment of Approved Subordinated
Indebtedness to RRL and AngloGold (BVI) in an aggregate principal
amount of not in excess of the sum of (i) U.S.$12,000,000 and (ii) the
Supplemental Agreement Drawdown;
and PROVIDED, FURTHER, HOWEVER, that notwithstanding the provisions of
this Clause, and at any time when no Default shall then have occurred
and be continuing, the Borrower may (but excluding, however, any
reimbursement of any amount contributed by any Completion Guarantor to
the Borrower pursuant to Clause 3.1(c) of the Randgold Guarantee
Agreement or Clause 3.2 of either Guarantee Agreement) reimburse each
Completion Guarantor in respect of any Project Costs actually paid for
by such Completion Guarantor at any time after the initial Borrowing
Date (and, in connection therewith and for all purposes of this
Agreement (including Clause 4) such reimbursement shall constitute a
Project Cost payable by the Borrower as if the relevant Project Cost
paid by the relevant Completion Guarantor had been paid by the
Borrower). The Borrower will ensure that any payment made by it to the
Operator or any other person by way of management or similar fee shall
not exceed the amounts set forth in the Operating Agreement and shall
be paid pursuant to the terms and conditions of the Operating Agreement
and the Borrower agrees that no such payment to the Operator or any
other such person shall be made at any time when an Enforcement Event
has occurred and is continuing.
8.2.8 TAKE OR PAY CONTRACTS
Except as set forth in Item 8 ("TAKE OR PAY CONTRACTS") of the
Disclosure Schedule, no Obligor will enter into or be a party to any
arrangement for the purchase of materials, supplies, other property or
services if such arrangement by its express terms requires that payment
be made by such Obligor regardless of whether or not such materials,
supplies, other property or services are delivered or furnished to it.
For the avoidance of doubt, nothing in this Clause shall prohibit the
Borrower from entering into any Required Hedging Agreement.
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8.2.9 MERGERS, ETC
No Obligor will enter into any amalgamation, demerger, merger or
reconstruction.
8.2.10 ASSET DISPOSITIONS, ETC
No Obligor will sell, transfer, lease or otherwise dispose of any of,
or grant options, warrants or other rights with respect to, any of its
assets (including accounts receivable) to any person, unless:
(a) such disposition is of Project Output made in the ordinary course
of business under the terms of the Refining Agreement or otherwise
pursuant to arrangements with refineries which are satisfactory to
the Lender Parties acting in their reasonable discretion;
(b) such disposition is of obsolete assets which are no longer used or
required by the relevant Obligor or of assets which are to be
replaced; or
(c) the net book value of all assets disposed of by all Obligors and
the Borrower (excluding, however, assets disposed of pursuant to
clause (a) or (b)) in the same Fiscal Year does not exceed
U.S.$5,000,000 and U.S.$1,000,000 (or the equivalent thereof in
any other currency), respectively, in the aggregate and fair value
in cash or other assets is received therefor.
All cash proceeds received by the Borrower in connection with any
transaction permitted to be entered into pursuant to this Clause shall
be deposited into the Operating Account.
8.2.11 TRANSACTIONS WITH AFFILIATES
No Obligor will enter into, or cause, suffer or permit to exist:
(a) any arrangement or contract pursuant to which any indebtedness is
extended by such Obligor to any of its affiliates as obligor;
(b) any arrangement or contract with any of its affiliates of a nature
customarily entered into by persons which are affiliates of each
other (including management or similar contracts or arrangements
relating to the allocation of revenues, taxes and expenses or
otherwise) requiring any payments to be made by any Obligor to any
affiliate unless such arrangement is fair and equitable to such
Obligor; or
(c) any other transaction, arrangement or contract with any of its
other affiliates which would not be entered into by a prudent
person in the position of such Obligor with, or which is on terms
which are less favourable to such Obligor than are obtainable
from, any person which is not one of its affiliates;
PROVIDED, HOWEVER, that nothing in this Clause shall prevent, or be
deemed to prevent:
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(i) the payment of management fees by the Borrower to the
Operator to the extent that such management fees are
permitted to be paid pursuant to Clause 8.2.7;
(ii) the incurrence and repayment by the Borrower of Approved
Subordinated Indebtedness permitted to be incurred and/or
repaid pursuant to the terms of this Agreement; or
(iii) the reimbursement by the Borrower to any Completion
Guarantor of any Project Costs permitted to be made
pursuant to the second proviso to Clause 8.2.7.
8.2.12 RESTRICTIVE AGREEMENTS, ETC
No Obligor will enter into any agreement (excluding this Agreement and
the Loan Documents) prohibiting the creation or assumption of any lien
upon its properties, revenues or assets, whether now owned or hereafter
acquired, or the ability of any Obligor to amend or otherwise modify
this Agreement or any other Operative Document.
8.2.13 INCONSISTENT AGREEMENTS
No Obligor will enter into any agreement containing any provision which
would be violated or breached by the making of the Loans hereunder or
by the performance by such Obligor of its obligations hereunder or
under any Loan Document.
8.2.14 PROJECT DOCUMENTS
Without prejudice to Clause 8.2.15, no Obligor will (and each Randgold
Completion Guarantor will ensure that none of its affiliates will):
(a) amend, modify or waive any material provision of any Project
Document to which it is a party; or
(b) terminate (other than in accordance with its terms (excluding,
however, as a result of the breach of any obligation by any party
thereto)) or replace, any Project Document to which it is a party.
For the avoidance of doubt those provisions of the Operating Agreement
relating to the calculation and payment of amounts thereunder by the
Borrower to the Operator shall each be deemed to be material provisions
of the Operating Agreement.
8.2.15 ACTIONS AND PERFORMANCE UNDER PROJECT DOCUMENTS
No Obligor will take or refrain from taking any action under any of the
Project Documents which would have a material adverse effect on:
(a) the ability of the Borrower to consummate the Morila Project and
operate the Mine in accordance with the Development Plan and
achieve the Mechanical Completion Date, the Economic Completion
Date and the Release Date by no later than 31 December, 2001;
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(b) any collateral subject to any Security Agreement and the
perfection and priority of the liens granted or purported to be
granted therein; or
(c) the ability of such Obligor to pay and perform its Obligations.
Each Obligor will perform each of its material obligations contained
in each Project Document to which it is a party in the manner
contemplated by such Project Document.
8.2.16 BANK ACCOUNTS
The Borrower shall not open any bank account or maintain any similar
deposit arrangement or maintain any balance in any bank account or in
respect of such arrangement other than the Project Accounts except with
the prior written consent of the Agent (such consent not to be
unreasonably withheld but to be deemed to have been reasonably withheld
if any such account shall not be subject to a first priority perfected
lien in favour of the Lender Parties).
8.2.17 ROYALTY AGREEMENTS
The Borrower will not enter into any agreement relating to the granting
of royalties or net profits interests in connection with the Morila
Project other than as set forth in the royalty agreements listed in
Item 9 ("ROYALTY AGREEMENTS") of the Disclosure Schedule.
9. EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT
The term "EVENT OF DEFAULT" shall mean any of the events set forth in
this Clause.
9.1.1 NON-PAYMENT OF OBLIGATIONS
(a) The Borrower:
(i) shall default in the payment, repayment or prepayment when
due of any Principal Amount of or interest on any Loan
(and, in the case of any default in respect of interest,
such default shall continue unremedied for a period of
three (3) Business Days); or
(ii) shall default in the payment when due of any other
Obligation (and such default shall continue unremedied for
a period of five (5) Business Days); or
(b) AngloGold or AngloGold (BVI) shall default in the payment when due
of any Obligation and such default shall continue unremedied for a
period of five (5) Business Days.
9.1.2 NON-PERFORMANCE OF CERTAIN COVENANTS
Any Obligor and/or, as the case may be, AngloGold and/or AngloGold
(BVI) shall default in the due performance and observance of any of its
obligations under:
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(a) Clause 8.1.4, 8.1.11, 8.1.15 or 8.2; or
(b) Clauses 2 to 7 of any Subordination Agreement; or
(c) Clause 2 or 3 of either Guarantee Agreement.
9.1.3 NON-PERFORMANCE OF OTHER OBLIGATIONS
Any Obligor and/or, as the case may be, AngloGold and/or AngloGold
(BVI) shall default in the due performance or observance of any term,
condition, covenant or agreement contained herein or in any other Loan
Document executed by it (other than a default referred to in Clause
9.1.1 or 9.1.2), and, if capable of cure or remedy, such default shall
continue unremedied for a period of thirty (30) days.
9.1.4 BREACH OF REPRESENTATION OR WARRANTY
Any representation or warranty of any Obligor and/or, as the case may
be, AngloGold and/or AngloGold (BVI) made hereunder or under any other
Loan Document executed by it or in any other document delivered by or
on behalf of such Obligor and/or, as the case may be, AngloGold and/or
AngloGold (BVI) to any Lender Party for the purposes of or in
connection with this Agreement or any such Loan Document is or shall be
incorrect in any material respect when made.
9.1.5 DEFAULT ON OTHER INDEBTEDNESS
(a) A default shall occur in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise, of
any indebtedness (other than indebtedness described in Clause
9.1.1) of:
(i) AngloGold, having a principal amount, individually or in
the aggregate, in excess of U.S.$25,000,000 (or the
equivalent thereof in any other currency); or
(ii) any Randgold Completion Guarantor or AngloGold (BVI),
having a principal amount, individually or in the
aggregate, in excess of U.S.$5,000,000 (or the equivalent
thereof in any other currency); or
(iii) the Borrower having a principal amount, individually or in
the aggregate, in excess of U.S.$3,000,000 (or the
equivalent thereof in any other currency); or
(b) a default shall occur in the performance or observance of any
obligation or condition with respect to such indebtedness if:
(i) (x) the effect of such default is to permit (after the
passage of time, the giving of notice, the making of any
required determination or any combination of the foregoing)
the acceleration of the maturity of any such indebtedness
and (y) in the reasonable opinion of the Required Lenders
such default is not capable of being cured within the
applicable period for cure set forth in the relevant
documentation relating to such indebtedness; or
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(ii) such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders
of such indebtedness, or any trustee or agent for such
holders, to cause such indebtedness to become due and
payable prior to its expressed maturity.
9.1.6 BANKRUPTCY, INSOLVENCY, ETC
(a) Any Relevant Group Company is unable to pay its debts as they fall
due, commences negotiations with any one or more of its creditors
with a view to the general readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of or a
composition with its creditors; or
(b) Any Relevant Group Company or any other person, takes any action,
or other steps are taken or legal proceedings are started, for the
winding-up, dissolution or reorganisation of such Relevant Group
Company or for the appointment of an examiner, receiver,
liquidator, administrator, administrative receiver, manager or
similar officer for it or of any or all of its assets; or
(c) any action or proceeding similar to those described in clause (a)
or (b) shall occur with respect to, or be initiated by or against,
any Relevant Group Company in any jurisdiction.
9.1.7 REQUIRED HEDGING AGREEMENTS
Any default shall occur under any Required Hedging Agreement, any
Required Hedging Agreement shall terminate (other than in accordance
with its terms) or cease in whole or in part to be the legal, valid and
binding obligation of any party thereto or any Required Hedging
Agreement is not in compliance with the Hedging Policy; PROVIDED,
HOWEVER, that (with respect to any such default, termination, cessation
or non-compliance arising as a result of any action taken by, or event
occurring with respect to, any party to such Required Hedging Agreement
other than an Obligor) in the event that the Borrower shall have made
arrangements within five (5) Business Days after such default,
termination, cessation or non-compliance satisfactory to the Required
Lenders with respect to the replacement of any such Required Hedging
Agreement in accordance with Clause 8.1.10 and on substantially similar
economic terms and benefits (or on such other terms or benefits as may
be satisfactory to the Required Lenders) then no Event of Default
shall be deemed to have occurred pursuant to this Clause.
9.1.8 PROJECT DOCUMENTS, ETC
(a) Any of the Material Project Documents shall terminate (other than
in accordance with its terms in circumstances where no default in
the performance by the Borrower or any affiliate thereof of its
obligations has occurred and is continuing) or for any reason
cease to be in full force and effect, except for:
(i) any expiration at the end of the term thereof;
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(ii) any termination or replacement consented to by the Required
Lenders pursuant to Clause 8.2.14(b); or
(iii) if replacement thereof is effected as provided in Clause
9.1.14; or
(b) a default (after giving effect to any applicable grace period)
under any of the Project Documents (excluding, however, to the
extent referred to in Clause 9.1.7 any Required Hedging Agreement
which is a Project Document or, to the extent referred to in
Clause 9.1.14, the Construction Contract, the Mining Contract, the
Power Contract or the Refining Agreement) shall occur, and such
default is, in the reasonable opinion of the Required Lenders,
likely to have a Materially Adverse Effect with respect to the
Borrower (and/or, at any time on or prior to the Release Date, any
Completion Guarantor) and the Borrower fails to obtain a
satisfactory alternative agreement or alternative arrangements to
satisfactorily mitigate the effect of such termination or default
within thirty (30) days of such termination or default.
9.1.9 IMPAIRMENT OF LOAN DOCUMENTS
This Agreement or any other Loan Document shall terminate (other than
in accordance with its terms) or cease in whole or in any material part
to be the legal, valid, binding and enforceable obligation of any
Obligor party thereto, AngloGold or AngloGold (BVI); any Obligor,
AngloGold or AngloGold (BVI) or any other party shall, directly or
indirectly, contest in any manner such effectiveness, validity, binding
nature or enforceability; or any lien securing any Obligation shall, in
whole or in part, cease to be a perfected lien which, except as
referred to in Clause 7.4(b), ranks first in priority.
9.1.10 ABANDONMENT; MINING RIGHTS.
(a) The Borrower shall abandon all or any significant portion of its
interest in the Mine or the Project Assets other than as
specifically permitted by this Agreement and each other Loan
Document or other than as is not required in connection with the
Morila Project.
(b) Any person other than the Borrower shall acquire Mining Rights in
respect of the Morila Project.
9.1.11 JUDGMENTS
Any judgment or order for the payment of money in excess of
U.S.$1,000,000 (or the equivalent thereof in any other currency), shall
be rendered against any Obligor or AngloGold (BVI), or any judgment or
order for the payment of money in excess of U.S.$25,000,000 (or the
equivalent thereof in any other currency) shall be rendered against
AngloGold, and either:
(a) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
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(b) there shall be any period of ten (10) consecutive days during
which a stay of enforcement of such judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect.
9.1.12 POLITICAL RISK, EXPROPRIATION, ETC.
(a) Either:
(i) any Political Risk Insurance previously obtained by any
Lender shall cease to be in full force and effect (other
than as a result of any act or omission of such Lender); or
(ii) as a result of any act or omission by any Obligor,
AngloGold or AngloGold (BVI) or any affiliate of any
thereof, the political risk insurer thereunder shall not be
liable to pay a claim thereunder which it would otherwise
have been liable to pay;
(b) any risk or event covered by any Political Risk Insurance then in
effect shall occur; or
(c) any Governmental Agency or other person purporting to be, or
acting as, any Governmental Agency condemns, nationalises, seizes
or otherwise expropriates all or any substantial part of the
property or other assets of the Borrower or of its share capital
or other ownership interests, or assumes custody or control of
such property or other assets or of the business or operations of
the Borrower or implements any regulation or law with respect to
the remission of funds offshore, taxation or any other matter if
such action (together with, if applicable, any prior similar
action) would prevent the Borrower from carrying on its
obligations under the Operative Documents, and such condemnation,
nationalisation, seizure, expropriation, assumption, action or
implementation is not withdrawn, rescinded, reversed, or in the
case of any such action with respect to property or assets, the
same are not replaced with equivalent property or assets within
thirty (30) days.
9.1.13 CHANGE IN CONTROL
(a) Any Change in Control shall occur; or
(b) the ordinary shares of RRL shall cease to be listed on the
International Stock Exchange of London or the ordinary shares of
AngloGold shall cease to be listed on the Johannesburg Stock
Exchange.
9.1.14 DEFAULT, ETC. BY CONTRACTORS
Either Construction Contractor, the Mining Contractor, any Power
Contractor, the Refiner or the Operator shall default in a manner
likely to have a Materially Adverse Effect in the performance of any of
its material obligations under the Construction Contract, the Mining
Contract, the Power Contract, the Refining Agreement or the Operating
Agreement, respectively, and such person shall not have remedied such
default within the time prescribed under the relevant contract,
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or the Borrower shall terminate the services of either Construction
Contractor, the Mining Contractor, any Power Contractor, the Refiner or
the Operator; PROVIDED, HOWEVER, that in the event that either
Construction Contractor, the Mining Contractor, any Power Contractor or
the Refiner shall be so unable to perform such obligations (but not,
for the avoidance of doubt, in the event that the Borrower shall have
so terminated the services of such person) then no Event of Default
shall be deemed to have occurred pursuant to this Clause if the
Borrower shall have appointed a substitute Construction Contractor,
Mining Contractor, Power Contractor or Refiner, as the case may be, of
international repute and of at least equivalent credit standing or the
Borrower shall be developing the Mine on an interim basis in a manner
which will enable the Mine to be developed and constructed as
contemplated by the Development Plan and shall have made provision for
the appointment of a substitute Construction Contractor, Mining
Contractor, Power Contractor or Refiner, as the case may be, acceptable
to the Required Lenders in their reasonable discretion within thirty
(30) days of the occurrence of such inability to perform or
termination.
9.1.15 FAILURE TO REACH CERTAIN MILESTONES
The Release Date, the Economic Completion Date or the Mechanical
Completion Date shall not have occurred on or prior to 31 December,
2001.
9.1.16 APPROVALS
Any Approval which is material to the Morila Project or the Mine or
otherwise material to the conduct of the business of the Borrower or
the performance of any Obligor's obligations under any Operative
Agreement executed by it shall be denied or withdrawn or shall cease to
remain in full force and effect or shall otherwise be materially
impaired.
9.1.17 MATERIALLY ADVERSE EFFECT
Any event shall occur or condition shall exist which constitutes a
Materially Adverse Effect with respect to any Obligor, AngloGold or
AngloGold (BVI).
9.1.18 DEVIATION FROM DEVELOPMENT PLAN
Without prejudice to the provisions of Clause 8.1.9, the Borrower shall
fail to develop the Morila Project in the manner contemplated by the
Development Plan and such failure shall have a Materially Adverse
Effect with respect to the Borrower.
9.1.19 FINANCIAL CONDITION
Any of the following shall occur:
(a) the Loan Cover Ratio (calculated on the date of preparation of
each Compliance Certificate with respect to any of the consecutive
six (6) month period commencing on all Calculation Dates scheduled
to occur on or after such date of preparation), shall be less than
one hundred and thirty percent (130%);
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(b) the Loan Life Ratio (calculated on the date of preparation of each
Compliance Certificate with respect to any of the Calculation
Dates scheduled to coincide with or occur thereafter), shall be
less than or equal to one hundred and twenty five percent (125%);
(c) the Project Life Ratio (calculated on the date of preparation of
each Compliance Certificate with respect to any of the Calculation
Dates scheduled to coincide with or occur thereafter), shall be
less than or equal to one hundred and forty percent (140%); and
(d) the Proven and Probable Reserves shall be, at any date, less than,
or shall be scheduled at any date prior to the Final Maturity Date
to be less than, thirty percent (30%) of the Proven and Probable
Reserves as at the Effective Date.
9.2 ACTION IF BANKRUPTCY
If any Event of Default described in Clause 9.1.6 shall occur, the
Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding Principal Amount of all outstanding Loans
and all other Obligations (excluding, however, unless express
instructions to the contrary are received from the relevant Lender,
Obligations in respect of any Required Hedging Agreement to which any
Lender is a party) shall automatically be and become immediately due
and payable, without notice or demand.
9.3 ACTION IF OTHER EVENT OF DEFAULT
If any Event of Default (other than any Event of Default described in
Clause 9.1.6) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Agent may, upon the direction of
the Required Lenders (but not otherwise), shall, upon notice or demand
to the Borrower, declare all or any portion of the outstanding
Principal Amount of the Loans to be due and payable and any or all
other Obligations (excluding, however, unless express instructions to
the contrary are received from the relevant Lender, Obligations in
respect of any Required Hedging Agreement to which any Lender is a
party) to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid Principal
Amount of such Loans and any and all other Obligations which shall be
so declared due and payable shall be and become immediately due and
payable, without further notice, demand, or presentment, and/or, as the
case may be, the Commitments shall terminate.
9.4 EVENT OF DEFAULT AFTER RELEASE DATE
No Event of Default shall have, or shall be deemed to have, occurred in
the event that any of the events referred to in Clause 9.1.5, 9.1.6,
9.1.11, 9.1.13(b), or 9.1.17 shall have occurred with respect to any
Completion Guarantor at any time on or after the Release Date.
10. THE AGENT, THE ARRANGERS AND THE CO-ARRANGERS
10.1 APPOINTMENT
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Each of the Lenders hereby:
(a) appoints the Agent as its agent in connection herewith and as
security trustee to hold the benefit of the security granted
pursuant to those Security Agreements where it is designated as
security trustee;
(b) authorises the Agent to exercise such rights, powers and
discretions as are specifically delegated to the Agent by the
terms hereof and the other Loan Documents together with all such
rights, powers and discretions as are reasonably incidental
thereto;
(c) agrees that, as agent for itself and the other Lender Parties (or,
as the case may be, as security trustee), the Agent shall hold the
benefit of the security granted pursuant to the Security
Agreements for itself and the Lender Parties subject to and in
accordance with the provisions hereof and of the Security
Agreements, which provisions are hereby agreed to and approved by
each party to this Agreement; and
(d) irrevocably and unconditionally authorises and requests the Agent
to enter into the Security Agreements as agent on its behalf (or,
as the case may be, as security trustee to hold the benefit of the
security granted pursuant to the relevant Security Agreements).
10.2 RELIANCE, ETC
The Agent may:
(a) assume that:
(i) any representation made by any Obligor, AngloGold or
AngloGold(BVI) in connection herewith or any other
Loan Document is true;
(ii) no Default has occurred; and
(iii) none of any Obligor, AngloGold or AngloGold (BVI) is in
breach of or in default of its obligations hereunder or
under any other Loan Document to which it is a party unless
the Agent has actual knowledge or actual notice to the
contrary;
(b) assume that the Dollar Lending Office of each Lender is that
specified on the signature pages attached hereto (and, in the case
of a Transferee Lender, at the end of the Transfer Certificate to
which it is a party as Transferee Lender) until it has received
from any Lender a notice designating some other office of such
Lender to replace its Dollar Lending Office and may act upon any
such notice until the same is superseded by a further such notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may seem necessary, expedient or desirable to it and rely upon any
advice so obtained;
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(d) rely as to any matters of fact which might reasonably be expected
to be within the knowledge of any Obligor, AngloGold or AngloGold
(BVI), upon a certificate signed by or on behalf of such Obligor,
AngloGold or AngloGold (BVI);
(e) rely upon any communication or document believed by it to be
genuine;
(f) refrain from exercising any right, power or discretion vested in
it as an agent hereunder or under any other Loan Document unless
and until instructed by the Required Lenders as to whether or not
such right, power or discretion is to be exercised and, if it is
to be exercised, as to the manner in which it should be exercised;
(g) refrain from acting in accordance with any instructions of
Required Lenders to begin any legal action or proceeding arising
out of or in connection with this Agreement or any other Loan
Document until it shall have received such security and/or further
indemnities as it may require (whether by way of payment in
advance or otherwise) for all costs, claims, expenses (including
legal fees and expenses on a full indemnity basis) and liabilities
which it will or may expend or incur in complying with such
instructions; and
(h) hold or place any Loan Document and any document coming into its
possession or control pursuant thereto in safe custody with any
bank or other person whose business includes the safe custody of
documents or with a lawyer or firm of lawyers in any part of the
world, without responsibility to any Lender Party for any loss
incurred by reason of any action or inaction on the part of any
such person or for the supervision of any such person and may pay
all sums required to be paid on account of or in respect of the
foregoing.
10.3 ACTIONS
The Agent shall:
(a) promptly inform each Lender of the contents of any notice or
document received by it in its capacity as agent for the Lenders
hereunder from any Obligor, AngloGold or AngloGold (BVI) hereunder
or under any other Loan Document;
(b) promptly notify each Lender of the occurrence of any Default of
which the Agent has actual knowledge or actual notice;
(c) save as otherwise provided herein, act as agent hereunder or under
any other Loan Document to which it is a party in accordance with
any instructions given to it by the Required Lenders, which
instructions shall be binding on all of the Lender Parties;
(d) if so instructed by the Required Lenders, refrain from exercising
any right, power or discretion vested in it as agent hereunder or
under any other Loan Document to which it is a party.
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10.4 LIMITATION ON ACTIONS
Notwithstanding anything to the contrary expressed or implied herein or in any
other Loan Document, the Agent shall not:
(a) be bound to enquire as to:
(i) whether or not any representation made by any Obligor,
AngloGold or AngloGold (BVI) in connection herewith or any
other Loan Document is true;
(ii) the occurrence or otherwise of any Default;
(iii) the performance by any Obligor, AngloGold or AngloGold
(BVI) of its obligations hereunder or under any other Loan
Document; or
(iv) any breach of, or default by any Obligor, AngloGold or
AngloGold (BVI) of, its obligations hereunder or under any
other Loan Document;
(b) be bound to account to any Lender Party for any sum or the profit
element of any sum received by it for its own account;
(c) be bound to disclose to any other person any information relating
to any Obligor, AngloGold or AngloGold (BVI) or any affiliate of
any thereof if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person; or
(d) be under any fiduciary duty towards any Lender Party or under any
obligations other than those for which express provision is made
herein or in the other Loan Documents.
10.5 INDEMNIFICATION BY LENDERS
Each Lender shall, from time to time on demand by the Agent, indemnify
the Agent in the proportion of such Lender's Percentage at the time of
such demand, against any and all reasonable costs, claims, expenses
(including legal fees) and liabilities which the Agent may incur,
otherwise than by reason of its own gross negligence or wilful
misconduct, in acting in its capacity as Agent hereunder or under the
other Loan Documents.
10.6 EXCULPATION
(a) Neither the Agent, the Arrangers nor the Co-Arrangers accept any
responsibility for the accuracy and/or completeness of any
information supplied by any Obligor, AngloGold or AngloGold (BVI)
in connection herewith or with any other Loan Document or for the
legality, validity, effectiveness, adequacy or enforceability of
this Agreement or any other Loan Document and neither the Agent,
the Arrangers nor the Co-Arrangers shall be under any liability as
a result of taking or omitting to take any action in relation to
this Agreement or any other Loan Document (including any such
action taken or omitted to be taken prior to the Effective Date in
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connection with the arrangement and implementation of the
financing facilities contemplated by this Agreement and the other
Loan Documents), save in the case of negligence or wilful
misconduct.
(b) In the event that the named insured on the policy of Political
Risk Insurance maintained in connection with this Agreement shall
be the Agent or the Arrangers neither the Agent nor the Arrangers
shall be under any liability whatsoever for any invalidation,
cancellation or avoidance of any cover provided by such policy or
any direct or indirect loss suffered by any Lender due to such
invalidity, cancellation or avoidance, except in respect of the
Agent's or, as the case may be, the relevant Arranger's,
negligence or wilful misconduct.
10.7 WAIVER
Each of the Lender Parties agrees that it will not assert or seek to
assert against any director, officer or employee of the Agent, either
Arranger or any Co-Arranger any claim it might have against the Agent,
an Arranger or a Co-Arranger in respect of the matters referred to in
Clause 10.6.
10.8 BANKING ACTIVITIES
Each of the Agent, the Arrangers and the Co-Arrangers may accept
deposits from, lend money to and generally engage in any kind of
banking or other business with, any Obligor, AngloGold, AngloGold (BVI)
or any affiliate of any thereof.
10.9 RESIGNATION AND REPLACEMENT
(a) The Agent may resign as such at any time upon at least thirty (30)
days prior notice to the Borrower and all the Lenders; provided,
however, that no such resignation shall be effective unless a
successor to it as the Agent is appointed in accordance with this
Clause. Following delivery of any such notice of resignation, the
Required Lenders may, with the prior written consent of the
Borrower (such consent not to be unreasonably withheld or delayed;
provided, however, that nothing herein shall oblige the Borrower
to give any such consent in the event that the Borrower's rights
hereunder would be materially and adversely affected by the
replacement of the Agent as hereinafter set forth), at any time
upon fifteen (15) days notice to the Agent and the Borrower,
appoint another Lender as the successor Agent which shall
thereupon become the Agent hereunder. If no successor Agent shall
have been so appointed by the Required Lenders, and shall have
accepted such appointment, within thirty (30) days after the
retiring Agent's giving notice of resignation, then the retiring
Agent may, on behalf of the Lender Parties, appoint (with the
prior written consent of the Borrower (such consent not to be
unreasonably withheld or delayed)) a successor Agent, which shall
be one of the Lenders or another reputable and experienced banking
or financial institution.
(b) If the Agent shall default in, or commit any act of negligence or
wilful misconduct in connection with, the performance of any of
its material duties under this Agreement or any other Loan
Document then the
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Required Lenders may, with the prior written consent of the
Borrower (such consent not to be unreasonably withheld or delayed
as set forth in clause (a)), at any time upon fifteen (15) days
notice to the Agent and the Borrower, appoint another Lender as a
replacement Agent which shall thereupon become the Agent
hereunder.
10.10 DISCHARGE
If a successor to the Agent is appointed under the provisions of
Clause 10.9, then:
(a) the retiring Agent shall be discharged from any further
obligations hereunder and under the other Loan Documents but shall
remain entitled to the benefit of the provisions of this Clause;
and
(b) its successor and each of the other parties hereto shall have the
same rights and obligations amongst themselves as they would have
had if such successor had been an original party hereto.
10.11 CREDIT DECISIONS
It is understood and agreed by each Lender Party that it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial
condition, creditworthiness, condition, affairs, status and nature of
each Obligor, AngloGold and AngloGold (BVI) and, accordingly, each
Lender Party warrants to each of the Agent, the Arrangers and the
Co-Arrangers that it has not relied and will not hereafter rely on the
Agent, the Arrangers or the Co-Arrangers:
(a) to check or enquire on its behalf into the adequacy, accuracy or
completeness of either information provided by or on behalf of any
Obligor, AngloGold or AngloGold (BVI) in connection with this
Agreement or any other Loan Document or the transactions herein or
therein contemplated (whether or not such information has been or
is hereafter circulated to such Lender Party by the Agent, an
Arranger or a Co-Arranger); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of any Obligor, AngloGold or AngloGold (BVI).
10.12 ROTHSCHILD AS THE AGENT
In acting as the Agent, Rothschild shall be treated as a separate
entity from any other division of Rothschild (or similar units of
Rothschild in any subsequent reorganisation) or its affiliates and,
without limiting the generality of the foregoing, in the event that any
of Rothschild's divisions (or similar units) or affiliates should act
for any Group Member in an advisory capacity in relation to any other
matter, any information given by any Group Member to such divisions (or
similar units) or affiliates for the purposes of obtaining advice shall
be treated as confidential and shall not be available to the other
Lender Parties without the consent of the Completion Guarantors; and
notwithstanding anything to the contrary expressed or
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implied herein and without limiting the generality of the foregoing,
Rothschild shall not as between itself and the other Lender Parties be
bound to disclose to any Lender Party or other person any information
supplied by any Group Member to Rothschild in its capacity as the Agent
hereunder which is identified by such Group Member at the time of
supply as being unpublished price sensitive information relating to a
proposed transaction by a Group Member to Rothschild and supplied
solely for the purpose of evaluating in consultation with Rothschild in
its capacity as advisor whether such transaction might require a waiver
or amendment to any of the provisions contained herein or in any other
Loan Document.
10.13 ROTHSCHILD AND SBL AS ARRANGERS
In acting as an Arranger, each of Rothschild and SBL shall be treated
as a separate entity from any other division of Rothschild or SBL
respectively (or similar units of Rothschild or SBL in any subsequent
reorganisation) or their respective affiliates and, without limiting
the generality of the foregoing, in the event that any of Rothschild's
or SBL's divisions (or similar units) or affiliates should act for any
Group Member in an advisory capacity in relation to any other matter,
any information given by any Group Member to such divisions (or similar
units) or affiliates for the purposes of obtaining advice shall be
treated as confidential and shall not be available to the other Lender
Parties without the consent of the Completion Guarantors; and
notwithstanding anything to the contrary expressed or implied herein
and without limiting the generality of the foregoing, neither
Rothschild nor SBL shall as between itself and the other Lender Parties
be bound to disclose to any Lender Party or other person any
information supplied by any Group Member to Rothschild or SBL,
respectively, in their respective capacities as an Arranger hereunder
if such information is identified by such Group Member at the time of
supply to Rothschild or SBL as being unpublished price sensitive
information relating to a proposed transaction by a Group Member and
supplied solely for the purpose of evaluating in consultation with
either Rothschild or SBL in its capacity as advisor whether such
transaction might require a waiver or amendment to any of the
provisions contained herein or in any other Loan Document.
10.14 INTERPRETATION
As used in this Clause, "actual knowledge" and "actual notice" of the
Agent, the Arrangers and the Co-Arrangers means actual knowledge or
notice of those officers of the Agent, or, as the case may be, an
Arranger or a Co-Arranger, from time to time responsible for the
performance by the Agent, or, as the case may be, an Arranger or a
Co-Arranger, of its obligations under the Loan Documents.
10.15 AGENT TO CONDUCT PROCEEDINGS
The Agent shall have the sole conduct of any action or proceedings to
be taken upon the happening of an Event of Default and in the
enforcement of any security granted by the Security Agreements and no
Lender shall (unless the Agent otherwise requests) take any action by
itself or in conjunction with any other Lender or any other person to
enforce the terms of any of the Loan Documents or to terminate the
same. If any Lender notifies the Agent that it wishes to take action
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as aforesaid, the Agent shall refer the same to the Lenders for
decision in accordance with Clause 10.17. Notwithstanding anything to
the contrary hereunder, the Agent shall not:
(a) formally initiate any legal action or proceedings hereunder
against any Obligor, AngloGold or AngloGold (BVI) on behalf of any
Lender without the prior written consent of such Lender; or
(b) exercise on behalf of any of the Lenders any of their rights or
remedies hereunder or under the Security Agreements unless it has
been instructed to do so in writing by such Lenders.
10.16 DECISIONS BY THE LENDERS
In any case where the materiality of any matter, event or consequence
is in question, the Agent shall be entitled (but not bound) to
determine the same without reference to the Lenders. Any
acknowledgement given by the Agent to any Obligor, AngloGold or
AngloGold (BVI) that any matter, event or consequence is not material
shall be binding on the Lenders.
The Agent shall, unless it considers the matter in question not to be
material, be bound (and shall in any event be entitled) to notify to
the Lenders any question relating to the exercise by the Agent of any
discretion, or to the giving or withholding by it of any approval or
waiver, or of any matter dependent on its opinion, for any purposes
under the Loan Documents.
10.17 MANNER OF REFERENCE TO LENDERS
Whenever the Agent refers any question to the Lenders for any of the
purposes of this Clause it shall:
(a) do so in writing;
(b) state a time (being reasonable in all the circumstances) within
which each Lender is to give directions as aforesaid; and
(c) inform the Borrower of the question referred, and the Borrower may
submit oral or written statements to all the Lenders in respect
thereof.
If not all the Lenders reply to the Agent within the required time as
aforesaid (or such longer time as the Agent may allow) then the
percentage referred to in the definition of Required Lenders shall be
deemed to refer to the percentage of the aggregate shares of the
Lenders who have so replied.
11. MISCELLANEOUS
11.1 WAIVERS, AMENDMENTS, ETC
The provisions of this Agreement and of each other Loan Document
(except to the extent otherwise set forth in such Loan Document) may
from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by each Obligor
and/or, as the case may be, AngloGold
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and/or AngloGold (BVI), which, in each such case, is party to this
Agreement or such other Loan Document, the Agent and the Required
Lenders; provided, however, that no such amendment, modification or
waiver which would:
(a) modify any requirement hereunder that any particular action be
taken or a determination be made by, or with the consent of or in
consultation with, all the Lenders or by the Required Lenders
shall be effective unless consented to by each Lender;
(b) modify this Clause, modify Clause 8.2.7 change the definition of
the term "REQUIRED LENDERS", change the Total Commitment Amount or
the Percentage or Funding Percentage of any Lender or otherwise
subject any Lender to any additional obligation shall be made
without the consent of each Lender;
(c) extend the due date for, or reduce the amount of, any payment or
prepayment of principal of or interest on any Loan or any other
amount payable hereunder or under any other Loan Document in
respect thereof shall be made without the consent of each Lender;
(d) affect the interests, rights or obligations of the Agent, either
Arranger or any Co-Arranger in their respective capacities as such
shall be made without the consent of the Agent or, as the case may
be, such Arranger or Co-Arranger;
(e) other than as specifically permitted by this Agreement or the
relevant Security Agreement, authorise or effect the release of
any material portion of the collateral which is the subject of any
lien granted or purported to be granted in favour of the Agent
(for the rateable benefit of the Lender Parties) or in favour of
the Lender Parties pursuant to any relevant Security Agreement
shall be made without the consent of each Lender;
(f) materially reduce the obligations of any Completion Guarantor
under the Guarantee Agreement to which such Completion Guarantor
is a party shall be made without the consent of each Lender;
(g) modify any term of this Agreement or any other Loan Document
expressly relating to the priority of payment of, or the granting
of any security in respect of, any obligations of the Borrower,
any Obligor, AngloGold, AngloGold (BVI) or any other subsidiary of
AngloGold under any Required Hedging Agreement to which any Lender
is a party shall be made without the consent of such Lender; or
(h) pursuant to the Political Risk Insurance require the consent of
the provider thereof, shall be made without the consent of such
provider.
No failure or delay on the part of any Lender Party in exercising any
power or right under this Agreement or any other Loan Document 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 on any Obligor in any case shall entitle it or any other
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Obligor to any notice or demand in similar or other circumstances. No
waiver or approval by any Lender Party under this Agreement or any
other Loan Document shall, except as may be otherwise stated in such
waiver or approval, be applicable to subsequent transactions. No waiver
or approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
11.2 NOTICES
All notices and other communications provided to any party hereto under
this Agreement or any other Loan Document shall be in writing and shall
be sent by hand delivery, courier delivery, telex (if the receiving
party shall have telex facilities) or facsimile and addressed or
delivered to it at its address set forth below its signature hereto and
designated as its "ADDRESS FOR NOTICES" or at such other address as may
be designated by such party in the relevant Loan Document or in a
notice to the other parties. Any notice:
(a) if sent by hand delivery or courier delivery, shall be deemed
received when delivered in legible form; and
(b) if transmitted by telex or facsimile, shall be deemed given when
transmitted (answerback received at both the beginning and end of
the relevant transmission in the case of telexes and transmission
confirmed by the sending facsimile machine in the case of
facsimiles).
11.3 COSTS AND EXPENSES
(a) The Borrower agrees to pay on demand:
(i) all reasonable legal fees and related expenses of the Agent
and the Arrangers incurred in connection with the
negotiation, preparation, execution and delivery of this
Agreement and each other Loan Document, including schedules
and exhibits, whether or not the transactions contemplated
hereby are consummated;
(ii) all reasonable out-of-pocket expenses of the Agent and the
Arrangers incurred in connection with any amendments,
waivers, consents, supplements or other modifications to
this Agreement or any other Loan Document as may from time
to time hereafter be required; and
(iii) any stamp or other taxes incurred in connection with the
preparation and review of the form of any Instrument
relevant to this Agreement or any other Loan Document, the
consideration of legal questions relevant hereto and
thereto and the filing, recording, refiling or re-recording
of any Loan Document and all amendments or supplements to
any thereof and any and all other documents or Instruments
of further assurance required to be filed or recorded or
refiled or re-recorded by the terms hereof or of any other
Loan Document.
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(b) The Borrower agrees, subject to any cap or condition agreed
between the Borrower; the Agent and the relevant adviser (where
applicable) to pay on demand all reasonable costs and expenses of
any Lender Party's officers or agents in connection with its
annual on-site inspections of the Mine and all fees and expenses
of the Independent Engineer for the preparation of each
Semi-Annual Mine Report and each other reports required of it, the
fees and expenses of the independent chartered accountants and
certified public accountants in connection with the performance of
their duties described in Clause 8.1.8, the certification of each
Compliance Certificate, the Mechanical Completion Certificate and
the Economic Completion Certificate and any other matter relating
to the Morila Project and the Mine, and all reasonable fees and
expenses of the Insurance Consultant and the Project Account Banks
in connection with the performance of their respective duties
referred to herein; provided, however, that, except at any time
when any Default shall have however occurred and be continuing the
Borrower's obligation to pay the fees and expenses of the
Independent Engineer in respect of any on-site inspection of the
Mine shall be limited to two (2) such inspections per period of
twelve (12) months prior to the Economic Completion Date and one
(1) such inspection per period of twelve (12) months thereafter.
(c) The Borrower agrees to reimburse each Lender Party on demand for
all out-of-pocket expenses (including fees and expenses of legal
advisers to such Lender Party) incurred by such Lender Party in
connection with:
(i) the negotiation of any restructuring or "work-out", whether
or not consummated, of any Obligations; and
(ii) the enforcement of any Obligations.
(d) All fees and expenses of any legal adviser to any Lender Party
payable by the Borrower hereunder shall be paid on a full
indemnity basis inclusive of United Kingdom Value Added Tax or any
other similar tax payable in connection therewith. Each Lender
Party agrees to use reasonable efforts to recover any such tax and
to reimburse the Borrower in the amount of any such recovery (to
the extent previously paid by the Borrower); provided, however,
that no Lender Party shall be under any obligation to attempt or
effect any such recovery if, in the opinion of such Lender Party
the act of arranging or effecting such recovery might reasonably
be expected to result in an adverse consequence with respect to
the business or tax position of such Lender Party.
11.4 INDEMNIFICATION
In consideration of the execution and delivery of this Agreement by
each Lender Party and the extension of the Commitments, the Obligors
hereby jointly and severally indemnify, exonerate and hold each Lender
Party and each of its officers, directors, shareholders, employees and
agents (the "INDEMNIFIED PARTIES") free and harmless from and against
any and all actions, causes of action, suits, losses, costs,
liabilities and damages and expenses in connection therewith (including
reasonable fees and expenses of legal advisers on a full indemnity
basis and
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inclusive of United Kingdom Value Added Tax or any similar tax payable
in connection therewith and including any amount paid by any Lender to
the Agent, either Arranger or any Co-Arranger pursuant to Clause 10.5)
(the "INDEMNIFIED LIABILITIES"), incurred by the Indemnified Parties or
any of them as a result of, or arising out of, or relating to:
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan;
(b) entering into and performance of this Agreement and any other Loan
Document by any of the Indemnified Parties (including any action
brought by or on behalf of the Borrower, any other Obligor,
AngloGold, AngloGold (BVI) or any other person as the result of
any determination by any Lender pursuant to Clause 6 not to fund
any Loan);
(c) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating
to the protection of the environment or the release by any
Obligor, AngloGold, AngloGold (BVI) or the Operator of any
Hazardous Material; or
(d) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases or
threatened releases from, any real property owned or operated by
any Obligor, AngloGold, AngloGold (BVI) or the Operator of any
Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law, regardless of whether caused by, or within the
control of, such Obligor;
except for any such Indemnified Liabilities arising for the account of
a particular Indemnified Party by reason of the relevant Indemnified
Party's negligence or wilful misconduct, and if and to the extent that
the foregoing undertaking may be unenforceable for any reason, each
Obligor hereby jointly and severally agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under Applicable Law; provided,
however, that no Randgold Completion Guarantor shall be under any
liability pursuant to clause (a) or (b) after the Release Date except
with respect to any Indemnified Liability arising, in whole or in part,
as a result of any event or failure to act which occurred on or prior
to the Release Date.
Each Lender Party agrees to use reasonable efforts to recover any such
United Kingdom Value Added Tax or any similar tax payable in connection
with the Indemnified Liabilities and to reimburse the Borrower in the
amount of any such recovery (to the extent previously paid by the
Borrower); provided, however, that no Lender Party shall be under any
obligation to attempt or effect any such recovery if, in the opinion of
such Lender Party the act of arranging or effecting such recovery might
reasonably be expected to result in an adverse consequence with respect
to the business or tax position of such Lender Party.
11.5 SURVIVAL
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The obligations of the Borrower under Clauses 3.3, 5.2, 5.3, 5.4, 5.6,
11.3 and 11.4 and of each Randgold Completion Guarantor under Clauses
5.6 and 11.4 and the obligations of the Lenders under Clause 10.5,
shall, in each case, survive any termination of this Agreement. The
representations and warranties made by each Obligor in this Agreement
and in each other Loan Document to which it is a party shall survive
the execution and delivery of this Agreement and each such other Loan
Document.
11.6 SEVERABILITY
Any provision of this Agreement or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or such other Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
11.7 HEADINGS
The various headings of this Agreement and of each other Loan Document
are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Loan Document or any
provisions hereof or thereof.
11.8 COUNTERPARTS, EFFECTIVENESS, ETC
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall, when executed, be deemed to be an
original and all of which shall constitute together but one and the
same agreement. This Agreement shall become effective on the date (the
"EFFECTIVE DATE") when counterparts hereof executed on behalf of each
Obligor, each Arranger, each Co-Arranger, and each Lender (or notice
thereof satisfactory to the Agent) shall have been received by the
Agent.
11.9 GOVERNING LAW; ENTIRE AGREEMENT
(a) This Agreement and (except as set forth to the contrary therein)
each other Loan Document and all matters and disputes relating
hereto and thereto shall be governed by, and construed in
accordance with, English law.
(b) This Agreement and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede any prior agreements,
written or oral, with respect thereto.
11.10 ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations hereunder or under any other Loan
Document except with the consent of the Lenders.
11.11 ASSIGNMENTS AND TRANSFERS BY THE LENDERS; ADDITIONAL LENDER
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Any Lender may at any time assign all or any of its rights and benefits
hereunder to another bank or financial institution in accordance with
this Clause.
11.11.1 ASSIGNMENTS
Any Lender may, with the prior consent of the Borrower (such consent
not to be unreasonably withheld), at any time assign and transfer, all
or, subject to Clause 11.11.3, a portion of its rights and benefits
hereunder to another bank or financial institution or, in connection
with any payment made to such Lender pursuant to any Political Risk
Insurance, to the issuer of the relevant policy. If any Lender chooses
to effect an assignment pursuant to this Clause, such assignment and
transfer shall not be effective unless and until the assignee Lender
has agreed with the Agent and the other Lenders that the assignee
Lender shall be under the same obligations toward each of them as it
would have been under if it had been a party hereto as a Lender and the
Agent and the other Lenders shall not otherwise be obligated to
recognise such assignee Lender as having the rights against each of
them which it would have had if it had been such a party hereto. Any
assignment or transfer pursuant to this Clause 11.11.1 shall be
effective only after delivery to and acceptance by, the Agent of an
instrument, in form and substance satisfactory to it (acting
reasonably), executed by the assignor Lender and the assignee Lender
stating the portion of the Commitment Amount assigned to the assignee
Lender and the assignee Lender's administrative details.
11.11.2 TRANSFERS
As an alternative to Clause 11.11.1, if any Lender (a "TRANSFEROR
LENDER") wishes to transfer all or, subject to Clause 11.11.3, a
portion of its rights, benefits and obligations (such transfer to be of
an equal portion of such rights, benefits and obligations) hereunder
and under each other Loan Document to another bank or financial
institution or, in connection with any payment made to such Lender
pursuant to any Political Risk Insurance, to the issuer of the relevant
policy (a "TRANSFEREE LENDER"), then such transfer may, with the prior
consent of the Borrower (such consent not to be unreasonably withheld),
be effected by the delivery to the Agent of a duly completed and
executed Transfer Certificate, whereupon:
(a) to the extent that in such Transfer Certificate the Transferor
Lender party thereto seeks to transfer its rights and obligations
hereunder and under each other Loan Document, each Obligor and
such Transferor Lender shall be released from further obligations
towards one another hereunder and their respective rights against
one another shall be cancelled (such rights and obligations being
referred to in this Clause as "discharged rights and
obligations");
(b) each Obligor and the Transferee Lender party thereto shall assume
obligations towards one another and acquire rights against one
another which differ from such discharged rights and obligations
only insofar as such Obligor and such Transferee Lender have
assumed and acquired the same in place of such Transferor Lender;
and
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(c) the Agent, such Transferee Lender and the other Lenders shall
acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had such
Transferee Lender been an original party to this Agreement as a
Lender with the rights and obligations acquired or assumed by it
as a result of such transfer.
11.11.3 MINIMUM AMOUNT
Any assignment or transfer pursuant to Clause 11.11.1 or 11.11.2 of a
portion of a Lender's rights and/or benefits shall be in an integral
multiple of U.S.$1,000,000; provided, however, that in the event of any
such assignment or transfer to the issuer of any policy of Political
Risk Insurance the amount so assigned or transferred, as the case may
be, may be in such other amount as such Lender may have received
pursuant to such policy.
11.11.4 SECURITY AGREEMENTS
Within ten (10) Business Days after an assignment or transfer pursuant
to this Clause 11.11 and upon the written request (given through the
Agent), and at the cost and expense, of the relevant assignee Lender or
Transferee Lender, as the case may be, each Obligor shall enter into
such documentation as the assignee Lender shall reasonably request so
as to ensure that the liens created by the Security Agreements secures
the Obligations of the Borrower to such assignee Lender or Transferee
Lender, as the case may be.
11.11.5 CONSENT
Any assignment or transfer pursuant to Clause 11.11 may be effected
only with the prior written consent of the Agent, such consent not to
be unreasonably withheld or delayed.
11.11.6 RELIANCE ON INSTRUMENTS
The Agent shall be fully entitled to rely on any written instrument
delivered to it in accordance with Clause 11.11.1 or on any Transfer
Certificate which is correct and regular on its face as regards its
contents and purportedly executed on behalf of the relevant parties
thereto and shall have no liability or responsibility to any party as a
consequence of placing reliance upon and acting in accordance with any
such written instrument or Transfer Certificate.
11.11.7 SUB-PARTICIPATIONS
Nothing in this Clause 11 shall, or shall be deemed to, prevent any
Lender from selling any participation or similar interest in its
Commitment or Loans and the Obligors hereby acknowledge and agree that
in connection with any such sale, the seller of any such participation
shall be entitled to claim under the provisions of Clause 5.2, 5.3,
5.4, 5.5, 5.6, 5.8, 5.9, 5.11(b), 11.3 and 11.4 hereof on behalf of the
purchaser of any such participation as if such purchaser was named as a
Lender in such provisions (but in no event shall such seller be
entitled to claim any amount on behalf of any such purchaser under any
such provision which is in excess of the amount which such seller would
then be entitled to claim under such provision in
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respect of the portion of its Commitments or Loans so participated);
provided, however, that:
(a) for the avoidance of doubt, the sale by any Lender of any such
participation or similar interest shall not relieve such Lender of
any of its obligations hereunder, and
(b) the Obligors shall be required to deal only with the Lenders and
not with any purchaser of a participation from any Lender.
11.11.8 FEE
On the date upon which an assignment or transfer takes effect pursuant
to Clause 11.11, the assignee Lender or Transferee Lender, as the case
may be, in respect of such assignment or transfer shall pay to the
Agent for its own account a fee of U.S.$3,000 (or, if such assignee
Lender or Transferee Lender, as the case may be, is already a Lender
under this Agreement, U.S.$1,000).
11.11.9 PROVISION OF INFORMATION
In connection with any assignment, transfer or sale of a participation
or similar interest by any Lender as contemplated by this Clause such
Lender may, subject to the provisions of Clauses 11.17 and 11.18,
supply to the relevant assignee Lender, Transferee Lender or purchaser
such information in its possession with respect to such Lender's Loans
and Commitment, the Morila Project and the Operative Documents as such
Lender shall deem appropriate.
11.12 OTHER TRANSACTIONS
Without prejudice to the provisions of Clause 10.8, nothing contained
herein shall preclude any Lender Party from engaging in any
transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with any Obligor, AngloGold, AngloGold (BVI) or
any of their respective affiliates in which such Obligor, AngloGold,
AngloGold (BVI) or such affiliate is not restricted hereby from
engaging with any other person.
11.13 FORUM SELECTION AND CONSENT TO JURISDICTION
(a) The parties hereto hereby irrevocably agree 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 each other Loan Document and, for such purposes,
irrevocably submits to the non-exclusive jurisdiction of such
courts.
(b) Each Obligor 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 disputes, which may arise out of or
in connection with this Agreement or any other Loan Document and
agrees not to claim that any such court is not a convenient or
appropriate forum.
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(c) Each Obligor agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in
connection with any suit, action or proceeding in England, to it
at c/o Fleetside Legal Representative Services Limited, 0
Xxxxxxxxx, Xxxxxx XX0X 0XX (the "PROCESS AGENT").
(d) 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
against any Obligor 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.
11.14 WAIVER OF IMMUNITY
To the extent that any Obligor 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.
11.15 ENGLISH LANGUAGE
This Agreement and the other Loan Documents have been negotiated in
English and, other than the Mali Security Agreements, executed in the
English language. All certificates, reports, notices and other
documents and communications given or delivered pursuant to this
Agreement and the other Loan Documents shall be in the English language
or, if not in the English language, shall be accompanied by a certified
English translation thereof. In the case of any document originally
issued in a language other than English, the English language version
of any such document shall, absent manifest error, control the meaning
and interpretation of the matters set forth therein.
11.16 ENTIRE AGREEMENT
This Agreement and the other Loan Documents constitute the entire
agreement and understanding of the parties and supersedes any previous
agreement between the parties relating to the subject matter of this
Agreement. Each of the parties acknowledges and agrees that in entering
into this Agreement and the other Loan Documents it does not rely on,
and shall have no remedy in respect of, any statement, representation,
warranty or understanding (whether negligently or innocently made) of
any person (whether party to this Agreement or not) other than as
expressly set out in this Agreement as a warranty. The only remedy
available to any party hereto for breach of the warranties shall be for
breach of contract under the terms of this Agreement or the relevant
Loan Document. Nothing in this Clause shall, however, operate to limit
or exclude any liability for fraud.
11.17 CONFIDENTIALITY OBLIGATIONS
Subject to Clause 11.18, at all times during the continuance of this
Agreement and after the termination hereof (however caused) the Lender
Parties shall and shall
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procure that their respective officers, employees, agents and advisers
shall keep secret and confidential and not without prior written
consent of the Borrower disclose to any third party or make use of for
their own purposes (otherwise than in the context of an addition to the
general experience, knowledge or expertise of the Lender Parties) any
of the confidential information, reports or documents supplied by or on
behalf of the Borrower or the other Obligors hereunder or in the course
of the negotiations leading to this Agreement or any of the
calculations made or conclusions or determinations reached in
accordance therewith.
11.18 PERMITTED DISCLOSURE
Any Lender Party shall be entitled to disclose any such confidential
information, report, documentation, calculations, conclusion or
determination to any other of the Lender Parties or to their respective
professional advisers (including the Independent Engineer and the
Insurance Consultant) or to the extent permitted by Applicable Law
(after reasonable prior notice to the Borrower):
(a) in any proceedings arising out of or in connection with this
Agreement to the extent reasonably considered by any Lender Party
to be desirable to protect its interests;
(b) to any prospective assignee or sub-participant subject to
obtaining an undertaking from such prospective assignee or
sub-participant in the terms of this Clause;
(c) if required to do so by an order of any court of competent
jurisdiction;
(d) in pursuance of any procedure for discovery of documents in any
proceedings before any such court;
(e) pursuant to any law or regulation having the force of law or with
which the relevant Lender Party is accustomed to comply; or
(f) pursuant to a requirement of any authority with whose
requirements, of the nature and to the extent in question, the
relevant Lender Party is accustomed to comply;
and any of the Lender Parties shall be entitled so to disclose or use
any such matter if the information contained therein shall have
emanated bona fide from some person other than any Obligor or any agent
of any of them, and such Lender Party would but for the preceding
provisions of this Clause be free so to disclose or use the same.
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SCHEDULE 1
DISCLOSURE SCHEDULE
ITEM 1 APPROVALS
PART A CURRENT APPROVALS
AGENCY PERMIT, APPROVAL OR NOTIFICATION DATE
1. National Directorate of civil No. 0468/DNAC/BV/DBA/12-Establishment of 15 June, 1998
aeronautics a private airport at Morila
2. Ministry of Mines and Energy No. 99/0251/MME-SG Extraction of river sand 27 August, 1999
3. Ministry of Mines and Energy No. 99/2000/MME-SG Extraction of Xxxxx-Xxxxx 8 September, 1999
4. Ministry of Mines and Energy No 99/1626/MME-SG Extraction of Xxxxx-Xxxxx 12 August, 1999
5. Ministry of Mines and Energy Morila Establishment Convention 28 April, 1992
6. Presidency of Transitional Ordinance No. 92-27/P-CTSP Approval of 12 May, 1992
Committee Morila Establishment Convention
7. Office of the President of Decree No. 92-146/PM-RM Approval of 14 May, 1992
Government Morila Establishment Convention
8. Ministry of Mines and Energy Order No. 92-2505/MME-CAB Exploration 3 June, 1992
Permit for Morila
9. Ministry of Mines and Energy Order No. 95-2249/MMEH-SG 1st 13 October, 1995
Renewal of Exploration Permit for Morila
10. Ministry of Mines and Energy Order No. 97-189/MMEH-SG Transfer of 18 February, 1997
Exploration Permit for Morila
11. Ministry of Mines and Energy Order Xx. 00-000/XXX-XX 0xx Xxxxxxx 00 Xxxxx, 0000
of Exploration Permit for Morila
12. Ministry of Mines and Energy Formal notification of the Government's 9 June, 1999
participation in Morila S.A.
13. Office of the Prime Minister Decree No. 99-217/PM-RM Exploitation 4 August, 1999
Permit for Morila
14. Office of the Prime Minister Decree No. 99-361/PM-RM Transfer of 17 November, 1999
Exploitation Permit from RRL to Morila
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PART B PENDING APPROVALS
PERMIT, APPROVAL
AGENCY OR NOTIFICATION DATE
1. Ministry of Mines and Energy Adoption of Amendment to Establishment Prior to initial Loans
Convention
2. Office of the Prime Minister Decree approving the Amendment to Prior to initial Loans
Establishment Convention
3. Directorate of Water Affairs Approval to Abstract Water for Prior to initial Loans
Mining purposes from Bagoe River
4. Ministry of Mines and Energy Protocol Agreement with the Agent Prior to initial Loans
Ministry of Finance
ITEM 2 [INTENTIONALLY LEFT BLANK]
ITEM 3 ASSETS; PROPERTIES
The Borrower has entered into a deferred terms agreement with Rolls Royce Power
Ventures for the acquisition of power generation equipment as part of the Power
Contract. The agreement is an instalment sale agreement and the Borrower only
obtains title to the power generation equipment on payment of the final payment.
The Borrower will, however, capitalise the instalment sale agreement in its
books and account for future payments as debt.
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ITEM 4 RELEVANT GROUP COMPANIES
PERCENTAGE
JURISDICTION OF OWNERSHIP
COMPANY INCORPORATION BY RRL
Randgold Resources Limited Jersey N/A
Randgold Resources (Burkina Faso) Limited Jersey 100%
Randgold Resources (Cote d'Ivoire) Limited Jersey 100%
Randgold Resources Cote d'Ivoire SARL Cote d'Ivoire 100%
Randgold Resources (Mali) Limited Jersey 100%
Randgold Resources Mali SARL Mali 100%
Randgold Resources (Senegal) Limited Jersey 100%
Randgold Resources (Somisy) Limited Jersey 100%
Mining Investments Jersey Limited Jersey 100%
Morila Limited Jersey 100%
Societe des Mines de Morila S.A. Mali 40%
Societe des Mines de Syama S.A. Mali 75%
Societe des Mines de Loulo S.A. Mali 51%
ITEM 5 [INTENTIONALLY LEFT BLANK]
ITEM 6 ENVIRONMENTAL MATTERS
PART A PROJECT
None
PART B GROUP
None
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ITEM 7 [INTENTIONALLY LEFT BLANK]
ITEM 8 TAKE OR PAY CONTRACTS
Payment for the provision of power to the Borrower from Rolls Royce Power
Ventures pursuant to the Power Contract.
ITEM 9 ROYALTY AGREEMENTS
The only royalty arrangement in respect of the Morila Project is the 6% of net
revenue from gold payable to the government of Mali and is set out in Article
22.2(m) and (n) of the Establishment Convention as follows:
(g) Ad Valorem tax at a rate of 3% of the value ex field. By value
ex field should be understood the value of products sold to
the refinery less all refining costs or any other process or
means of treatment necessary for the transformation of mineral
substances into a commercial final product, commissions on
marketing of the products, costs for transport, weighing,
analysis, where applicable, which have not already been
deducted by the purchaser;
(h) Tax on services rendered at a rate of 3% of the value ex field
as defined in Article 22.2(m) of the Establishment Convention
above.
ITEM 10 TAXES
Summary details of taxes required to be paid in connection with the development
of the Morila Project extracted from the Establishment Convention are as
follows:
Up to the end of the third year of production the Borrower, RRL and/or their
affiliates and sub-contractors, depending on the circumstances, shall be exempt
from all tax, duties, contributions or any other direct or indirect taxes that
they may have to pay, with the exception of:
(i) surface fee of CFA 50,000/km(2) per year;
(j) the Employers Standard Contribution (CFE) at the rate in force
on the date of signature of the present Convention (the basis
being equal to the total gross sum of wages, salaries and pay
of employees, including expatriate employees);
(k) the social welfare levies and contributions due for employees,
including expatriate employees, as provided for in the current
legislation;
(l) General Tax on Revenue due by employees;
(m) duties on vehicles except for on-site vehicles and other
vehicles directly related to exploration operations;
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(n) stamp duties on intended imports with regard to vehicles as
well as tax on related insurance contracts, with the exception
of on-site vehicles and/or other vehicles directly related to
exploration operations;
(o) Ad Valorem tax at the rate of 3% of the value ex field. By
value ex field should be understood to be the value of
Products sold to the refinery less all refining costs or any
other process or means of treatment necessary for the
transformation of mineral substances into a commercial final
product, commissions on marketing of the products, costs for
transport, weighing, analysis, where applicable, which have
not already been deducted by the purchaser;
(p) Tax on services rendered at a rate of 3% of the value ex field
as defined in (g) above.
The last two are classified as royalty payments (see Item 9 above).
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SCHEDULE 2
CASH FLOW SCHEDULE
-122-
MORILA GOLD PROJECT
DATA AUDITED BY SRK APRIL 2001
2000
------------------------------------------------------------------------------------------------------------------------------
FINANCIAL SUMMARY 0000 Xxx0 Xxx0 Xxx0 Xxx0
Y
ORE TONNES MINED tonnes '000's 665 696 860 597 730
ORE GRADE g/t 8.97 8.87 6.63 5.90 6.87
RECOVERY EFFICIENCY % 96.26% 87.43% 91.32% 91.13% 91.05%
Gold Production oz 166,166 144,599 154,059 147,539 145,980
Gold Price - Spot US$/oz 250 250 250 250 250
Gold Price - Hedged ozs 0 275 275 275 275
Mining Costs US$m 3.50 5.42 7.70 5.35 8.35
Plant Costs US$m 1.98 3.20 2.76 2.62 2.67
General & Administration (incl Fees) US$m 5.53 6.44 6.47 6.47 6.48
Power plant costs US$m 0.00 0.88 0.88 0.88 0.88
OPERATING COSTS US$m 11.01 15.94 17.82 15.31 18.39
SENSITIVITY ADJUSTMENT 100% 100% 100% 100% 100% 100%
TOTAL OPERATING COSTS US$m 11.01 15.94 17.82 15.31 18.39
CAPITAL EXPENDITURE US$m 102.98 3.52 3.52 3.52 3.52
WORKING CAPITAL IN CONSTRUCTION PERIOD US$m 20.00 0.00 0.00 0.00 0.00
TOTAL REVENUE US$m 41.54 37.71 40.08 38.45 38.06
ROYALTY PAID US$m 0.00 2.26 2.40 2.30 2.28
TAX PAYABLE US$m 0.00 0.00 0.00 0.00 0.00
FINANCE & LEGAL COSTS US$m 2.00 0.00 0.00 0.00 0.00
POLITICAL RISK INSURANCE 1.30% 1.11 0.28 0.29 0.26 0.25
PROJECT CASHFLOW BEFORE FINANCING (INTEREST ETC) US$m (95.55) 15.72 16.05 17.05 13.62
FINANCIAL SUMMARY 2000
Debt Contribution US$m 85.00 0.00 5.00 0.00 0.00
Equity Contribution / Shareholder loans US$m 33.00 (3.00) 0.00 0.00 0.00
Net Cash Flow US$m 22.45 12.72 21.05 17.05 13.62
NPV OF CASH FLOW, LOAN LIFE 9.00% 265.11 275.41 268.68 253.49 241.96
NPV OF CASH FLOW, PROJECT LIFE 9.00% 307.28 331.67 325.26 310.38 299.17
Loan Outstanding Start of Period US$m 85.00 85.00 90.00 81.00 75.81
Loan Outstanding End of Period US$m 85.00 85.00 81.00 81.00 66.81
LOAN LIFE RATIO **1.5 3.12 3.24 3.11 3.28 3.35
PROJECT LIFE RATIO **1.8 3.62 3.90 3.74 3.98 4.10
Scheduled Repayments US$m 0.00 9.00 9.00
Interest Payments 8.00% 5.10 1.70 1.71 1.62 1.43
Total Debt Service US$m 5.10 1.70 10.71 1.62 10.43
Net Cash Flow less Debt Service US$m 17.35 11.02 10.34 15.43 3.20
6 Months Debt Service Reserve Account Contribution US$m n/a 11.02 1.03 (0.30) (0.23)
6 Months Debt Service Reserve Account Opening Balance US$m n/a n/a 11.02 12.05 11.75
6 Months Debt Service Reserve Account Closing Balance US$m n/a 11.02 12.05 11.75 11.52
NET CASH FLOW AFTER FINANCE US$m 17.35 0.00 9.31 15.72 3.42
----------
CASH OPENING BALANCE 0.58 17.93 27.93 20.24 10.00
----------
----------
MINIMUM WORKING CAPITAL IN PROJECT US$m 0.00 10.00 10.00 10.00
----------
CASH AVAILABLE FOR DISTRIBUTION / SWEEPS 17.93 17.93 27.24 25.97 3.42
Bank prepayment - 20% of NCF after finance 20.0% 3.59 3.59 5.45 5.19 0.68
Bank prepayment - capped at one year 20.0% 0.00 3.59 5.45 5.19 0.68
Bank prepayment - quarterly 3.59 5.45 5.19 0.68
CASH SWEEP - (QUARTERLY) TO BANKS 20.0% 0.00 0.00 0.00 5.19 0.68
AGREED PAYMENT TO SHAREHOLDERS US$m 0.00 0.00 17.00 0.00 0.00
CASH FLOW ATTRIBUTABLE TO PROJECT OR SPONSORS US$m 17.93 17.93 10.24 20.77 2.74
CASH FLOW DISTRIBUTED TO PROJECT OR SPONSORS 100% 0.00 0.00 20.77 2.74
CASH CLOSING BALANCE US$m 17.93 17.93 10.24 0.00 0.00
Remaining Reserves (oz's) 4,628,102 4,461,936 4,317,338 4,163,279 4,015,740 3,869,760
REMAINING RESERVES / PERIOD 1 RESERVES ****30% 96% 93% 90% 87% 84%
NET CASH FLOW / DEBT SERVICE **** 130% n.a. 748% 196% 1052% 131%
CASH COST / OZ (OPEX ONLY) US$/oz 66.23 110.21 115.65 103.78 125.96
TOTAL COST/OZ (INCL. TAXES,PRI,WORKING CAP,DEBT SERVICE) US$/oz 735.34 163.87 225.53 156.05 238.83
------------------------------------------------------------------------------------------------------------------------------
2001 2002
------------------------------------------------------------------------------------------------------------------------------
FINANCIAL SUMMARY 0000 Xxx0 Xxx0 Xxx0 Xxx0 0000
Y Y
ORE TONNES MINED 2,883 823 956 644 888 3,311
ORE GRADE 7.08 5.62 5.92 8.32 8.52 7.01
RECOVERY EFFICIENCY 90.23% 90.50% 90.75% 91.17% 91.96% 91.16%
Gold Production 592,177 131,422 137,807 149,713 175,830 594,774
Gold Price - Spot 250 250 250 250 250 250
Gold Price - Hedged 275 275 275 275 275 275
Mining Costs 26.81 9.37 9.07 5.18 7.09 30.71
Plant Costs 11.26 3.00 2.86 2.88 2.86 11.60
General & Administration (incl Fees) 25.86 7.01 6.66 6.71 6.79 27.18
Power plant costs 3.54 0.81 0.81 0.81 0.81 3.24
OPERATING COSTS 67.47 20.18 19.41 15.57 17.55 72.72
SENSITIVITY ADJUSTMENT 100% 100% 100% 100% 100% 100%
TOTAL OPERATING COSTS 67.47 20.18 19.41 15.57 17.55 72.72
CAPITAL EXPENDITURE 14.10 1.99 1.99 1.99 1.99 7.96
WORKING CAPITAL IN CONSTRUCTION PERIOD 0.00 0.00 0.00 0.00 0.00 0.00
TOTAL REVENUE 154.31 33.91 35.50 38.48 45.01 152.90
ROYALTY PAID 9.24 2.03 2.13 2.30 2.70 9.16
TAX PAYABLE 0.00 0.00 0.00 0.00 0.00 0.00
FINANCE & LEGAL COSTS 0.00 0.00 0.00 0.00 0.00 0.00
POLITICAL RISK INSURANCE 1.08 0.21 0.21 0.18 0.17 0.77
PROJECT CASHFLOW BEFORE FINANCING (INTEREST ETC) 62.43 9.49 11.77 18.43 22.60 62.30
FINANCIAL SUMMARY 2001 2002
Debt Contribution 5.00 0.00 0.00 0.00 0.00 0.00
Equity Contribution / Shareholder loans (3.00) 0.00 0.00 0.00 0.00 0.00
Net Cash Flow 64.43 9.49 11.77 18.43 22.60 62.30
NPV OF CASH FLOW, LOAN LIFE 266.52 233.61 229.21 222.43 208.84 226.07
NPV OF CASH FLOW, PROJECT LIFE 312.48 291.15 287.08 280.64 267.40 276.18
Loan Outstanding Start of Period 90.00 66.13 64.45 55.08 51.55 66.12
Loan Outstanding End of Period 72.00 66.13 55.45 55.08 42.55 48.12
LOAN LIFE RATIO 2.96 3.71 3.73 4.24 4.26 3.59
PROJECT LIFE RATIO 3.47 4.58 4.63 5.30 5.40 4.35
Scheduled Repayments 18.00 9.00 9.00 18.00
Interest Payments 6.48 1.32 1.20 1.10 0.94 4.57
Total Debt Service 24.48 1.32 10.20 1.10 9.94 22.57
Net Cash Flow less Debt Service 39.95 8.17 1.57 17.33 12.66 39.73
6 Months Debt Service Reserve Account Contribution 11.52 (0.22) (0.26) (0.30) (0.31) (1.09)
6 Months Debt Service Reserve Account Opening Balance n/a 11.52 11.30 11.04 10.74 11.52
6 Months Debt Service Reserve Account Closing Balance 11.52 11.30 11.04 10.74 10.43 10.43
NET CASH FLOW AFTER FINANCE 28.43 8.39 1.83 17.63 12.97 40.82
CASH OPENING BALANCE 27.93 10.00 10.00 10.00 10.00 10.00
MINIMUM WORKING CAPITAL IN PROJECT 10.00 10.00 10.00 10.00 10.00 10.00
CASH AVAILABLE FOR DISTRIBUTION / SWEEPS 46.36 8.39 1.83 17.63 12.97 40.82
Bank prepayment - 20% of NCF after finance 14.91 1.68 0.37 3.53 2.59 8.16
Bank prepayment - capped at one year 14.91 1.68 0.37 3.53 2.59 8.16
Bank prepayment - quarterly 1.68 0.37 3.53 2.59
CASH SWEEP - (QUARTERLY) TO BANKS 5.88 1.68 0.37 3.53 2.59 8.16
AGREED PAYMENT TO SHAREHOLDERS 17.00 0.00 0.00 0.00 0.00 0.00
CASH FLOW ATTRIBUTABLE TO PROJECT OR SPONSORS 23.49 6.71 1.47 14.11 10.38 32.65
CASH FLOW DISTRIBUTED TO PROJECT OR SPONSORS 23.49 6.71 1.47 14.11 10.38 32.65
CASH CLOSING BALANCE 0.00 0.00 0.00 0.00 0.00 0.00
Remaining Reserves (oz's) 3,869,760 3,738,337 3,600,530 3,450,816 3,274,986 3,274,986
REMAINING RESERVES / PERIOD 1 RESERVES 84% 81% 78% 75% 71% 71%
NET CASH FLOW / DEBT SERVICE 263% 717% 115% 1673% 227% 276%
CASH COST / OZ (OPEX ONLY) 113.94 153.57 140.82 104.02 99.84 122.26
TOTAL COST/OZ (INCL. TAXES,PRI,WORKING CAP,DEBT SERVICE) 196.51 195.86 246.21 141.26 183.97 190.28
------------------------------------------------------------------------------------------------------------------------------
2003
------------------------------------------------------------------------------------------------------------------------------
FINANCIAL XXXXXXX Xxx0 Xxx0 Xxx0 Xxx0 2003 Qtr1
Y
ORE TONNES MINED 746 848 625 934 3,153 857
ORE GRADE 7.85 6.43 11.25 8.57 8.36 6.49
RECOVERY EFFICIENCY 92.27% 92.09% 92.26% 92.20% 92.20% 94.76%
Gold Production 187,769 180,644 187,306 184,838 740,557 200,587
Gold Price - Spot 250 250 250 250 250 250
Gold Price - Hedged 275 275 275 275 275 275
Mining Costs 7.76 8.11 5.48 8.83 30.17 9.63
Plant Costs 3.00 2.86 2.88 2.86 11.60 3.21
General & Administration (incl Fees) 7.19 6.80 6.83 6.82 27.64 7.43
Power plant costs 0.72 0.72 0.72 0.72 2.88 0.64
OPERATING COSTS 18.67 18.48 15.90 19.23 72.29 20.92
SENSITIVITY ADJUSTMENT 100% 100% 100% 100% 100% 100%
TOTAL OPERATING COSTS 18.67 18.48 15.90 19.23 72.29 20.92
CAPITAL EXPENDITURE 0.72 0.72 0.72 0.72 2.88 0.82
WORKING CAPITAL IN CONSTRUCTION PERIOD 0.00 0.00 0.00 0.00 0.00 0.00
TOTAL REVENUE 47.89 46.11 47.77 47.16 188.93 50.96
ROYALTY PAID 2.87 2.76 2.86 2.82 11.32 3.05
TAX PAYABLE 0.00 0.00 0.00 0.00 0.00 0.00
FINANCE & LEGAL COSTS 0.00 0.00 0.00 0.00 0.00 0.00
POLITICAL RISK INSURANCE 0.13 0.12 0.09 0.09 0.42 0.06
PROJECT CASHFLOW BEFORE FINANCING (INTEREST ETC) 25.50 24.02 28.20 24.29 102.02 26.11
FINANCIAL SUMMARY 2003
Debt Contribution 0.00 0.00 0.00 0.00 0.00 0.00
Equity Contribution / Shareholder loans 0.00 0.00 0.00 0.00 0.00 0.00
Net Cash Flow 25.50 24.02 28.20 24.29 102.02 26.11
NPV OF CASH FLOW, LOAN LIFE 190.79 169.44 149.11 124.15 184.12 102.57
NPV OF CASH FLOW, PROJECT LIFE 249.71 228.72 208.76 184.19 238.73 162.99
Loan Outstanding Start of Period 39.96 36.00 27.00 27.00 39.96 18.00
Loan Outstanding End of Period 39.96 27.00 27.00 18.00 21.96 18.00
LOAN LIFE RATIO 5.04 4.99 5.89 4.96 4.87 6.23
PROJECT LIFE RATIO 6.51 6.64 8.10 7.19 6.24 9.59
Scheduled Repayments 9.00 9.00 18.00
Interest Payments 0.80 0.63 0.54 0.45 2.48 0.36
Total Debt Service 0.80 9.63 0.54 9.45 20.48 0.36
Net Cash Flow less Debt Service 24.70 14.39 27.66 14.84 81.54 25.75
6 Months Debt Service Reserve Account Contribution (0.26) (0.18) (0.18) (0.18) (0.80) (0.18)
6 Months Debt Service Reserve Account Opening Balance 10.43 10.17 9.99 9.81 10.43 9.63
6 Months Debt Service Reserve Account Closing Balance 10.17 9.99 9.81 9.63 9.63 9.45
NET CASH FLOW AFTER FINANCE 24.96 14.57 27.84 15.02 82.34 25.93
CASH OPENING BALANCE 10.00 10.00 10.00 10.00 10.00 10.00
MINIMUM WORKING CAPITAL IN PROJECT 10.00 10.00 10.00 10.00 10.00 10.00
CASH AVAILABLE FOR DISTRIBUTION / SWEEPS 24.96 14.57 27.84 15.02 82.34 25.93
Bank prepayment - 20% of NCF after finance 4.99 2.91 5.57 3.00 16.48 5.19
Bank prepayment - capped at one year 4.99 2.91 5.57 3.00 16.48 5.19
Bank prepayment - quarterly 3.96 0.00 0.00 0.00 0.00
CASH SWEEP - (QUARTERLY) TO BANKS 3.96 0.00 0.00 0.00 3.96 0.00
AGREED PAYMENT TO SHAREHOLDERS 0.00 0.00 0.00 0.00 0.00 0.00
CASH FLOW ATTRIBUTABLE TO PROJECT OR SPONSORS 21.00 14.57 27.84 15.02 78.38 25.93
CASH FLOW DISTRIBUTED TO PROJECT OR SPONSORS 21.00 14.57 27.84 15.02 78.38 25.93
CASH CLOSING BALANCE 0.00 0.00 0.00 0.00 0.00 0.00
REMAINING RESERVES (OZ'S) 3,087,217 2,906,573 2,719,267 2,534,429 2,534,429 2,333,842
REMAINING RESERVES / PERIOD 1 RESERVES 67% 63% 59% 55% 55% 50%
NET CASH FLOW / DEBT SERVICE 3191% 249% 5222% 257% 498% 7253%
CASH COST / OZ (OPEX ONLY) 99.42 102.33 84.91 104.05 97.62 104.28
TOTAL COST/OZ (INCL. TAXES,PRI,WORKING CAP,DEBT SERVICE) 123.48 175.56 107.38 174.83 145.01 125.67
------------------------------------------------------------------------------------------------------------------------------
2004
------------------------------------------------------------------------------------------------------------------------------
FINANCIAL XXXXXXX Xxx0 Xxx0 Xxx0 0000 Xxx0 Xxx0
Y
ORE TONNES MINED 858 823 910 3,449 912 794
ORE GRADE 5.08 4.52 5.06 5.29 4.44 4.83
RECOVERY EFFICIENCY 94.38% 93.18% 93.19% 94.00% 92.59% 92.61%
Gold Production 180,240 132,454 132,799 646,081 115,516 115,984
Gold Price - Spot 250 250 250 250 250 250
Gold Price - Hedged 275 275 275 275 0 0
Mining Costs 8.75 6.00 8.38 32.76 6.38 4.89
Plant Costs 3.07 3.09 3.08 12.45 3.21 3.07
General & Administration (incl Fees) 7.00 6.86 6.86 28.14 7.15 6.79
Power plant costs 0.64 0.64 0.64 2.57 0.56 0.56
OPERATING COSTS 19.47 16.59 18.96 75.93 17.30 15.31
SENSITIVITY ADJUSTMENT 100% 100% 100% 100% 100% 100%
TOTAL OPERATING COSTS 19.47 16.59 18.96 75.93 17.30 15.31
CAPITAL EXPENDITURE 0.82 0.82 0.82 3.28 0.82 0.82
WORKING CAPITAL IN CONSTRUCTION PERIOD 0.00 0.00 0.00 0.00 0.00 0.00
TOTAL REVENUE 45.87 33.93 34.01 164.77 28.88 29.00
ROYALTY PAID 2.75 2.03 2.04 9.87 1.73 1.74
TAX PAYABLE 0.00 0.00 0.00 0.00 0.00 0.00
FINANCE & LEGAL COSTS 0.00 0.00 0.00 0.00 0.00 0.00
POLITICAL RISK INSURANCE 0.06 0.03 0.03 0.18 0.00 0.00
PROJECT CASHFLOW BEFORE FINANCING (INTEREST ETC) 22.78 14.46 12.17 75.51 9.03 11.13
FINANCIAL SUMMARY 2004
Debt Contribution 0.00 0.00 0.00 0.00 0.00 0.00
Equity Contribution / Shareholder loans 0.00 0.00 0.00 0.00 0.00 0.00
Net Cash Flow 22.78 14.46 12.17 75.51 9.03 11.13
NPV OF CASH FLOW, LOAN LIFE 78.69 57.63 44.42 98.68 33.22 24.92
NPV OF CASH FLOW, PROJECT LIFE 139.51 118.86 106.07 158.20 95.29 87.42
Loan Outstanding Start of Period 18.00 9.00 9.00 18.00 0.00 0.00
Loan Outstanding End of Period 9.00 9.00 0.00 0.00 0.00 0.00
LOAN LIFE RATIO 4.90 7.43 5.95 6.02 n.a. n.a.
PROJECT LIFE RATIO 8.28 14.24 12.80 9.32 n.a. n.a.
Scheduled Repayments 9.00 9.00 18.00 0.00
Interest Payments 0.27 0.18 0.09 0.72 0.00 0.00
Total Debt Service 9.27 0.18 9.09 18.72 0.00 0.00
Net Cash Flow less Debt Service 13.51 14.28 3.08 56.79 9.03 11.13
6 Months Debt Service Reserve Account Contribution (0.18) (0.18) (9.09) (9.63) 0.00 0.00
6 Months Debt Service Reserve Account Opening Balance 9.45 9.27 9.09 9.63 0.00 0.00
6 Months Debt Service Reserve Account Closing Balance 9.27 9.09 0.00 0.00 0.00 0.00
NET CASH FLOW AFTER FINANCE 13.69 14.46 12.17 66.42 9.03 11.13
CASH OPENING BALANCE 10.00 10.00 10.00 10.00 10.00 10.00
MINIMUM WORKING CAPITAL IN PROJECT 10.00 10.00 10.00 10.00 10.00 10.00
CASH AVAILABLE FOR DISTRIBUTION / SWEEPS 13.69 14.46 12.17 66.42 9.03 11.13
Bank prepayment - 20% of NCF after finance 2.74 2.89 2.43 13.25 1.81 2.23
Bank prepayment - capped at one year 2.74 2.89 0.00 0.00 0.00 0.00
Bank prepayment - quarterly 0.00 0.00 0.00 0.00 0.00
CASH SWEEP - (QUARTERLY) TO BANKS 0.00 0.00 0.00 0.00 0.00 0.00
AGREED PAYMENT TO SHAREHOLDERS 0.00 0.00 0.00 0.00
CASH FLOW ATTRIBUTABLE TO PROJECT OR SPONSORS 13.69 14.46 12.17 66.42 9.03 11.13
CASH FLOW DISTRIBUTED TO PROJECT OR SPONSORS 13.69 14.46 12.17 66.42 9.03 11.13
CASH CLOSING BALANCE 0.00 0.00 0.00 0.00 0.00 0.00
REMAINING RESERVES (OZ'S) 2,153,601 2,021,147 1,888,349 1,888,349 1,772,832 1,656,849
REMAINING RESERVES / PERIOD 1 RESERVES 47% 44% 41% 41% 38% 36%
NET CASH FLOW / DEBT SERVICE 246% 8032% n.a. n.a. n.a. n.a.
CASH COST / OZ (OPEX ONLY) 108.01 125.22 142.76 117.52 149.77 132.00
TOTAL COST/OZ (INCL. TAXES,PRI,WORKING CAP,DEBT SERVICE) 179.56 148.33 232.95 167.12 171.81 154.02
------------------------------------------------------------------------------------------------------------------------------
2005
----------------------------------------------------------------------------------------------
FINANCIAL XXXXXXX Xxx0 Xxx0 0000
Y
ORE TONNES MINED 716 858 3,280
ORE GRADE 4.52 4.24 4.50
RECOVERY EFFICIENCY 92.03% 92.20% 92.37%
Gold Production 102,280 105,989 439,769
Gold Price - Spot 250 250 250
Gold Price - Hedged 0 0 0
Mining Costs 3.99 4.63 19.90
Plant Costs 3.09 3.08 12.45
General & Administration (incl Fees) 6.75 6.76 27.45
Power plant costs 0.56 0.56 2.23
OPERATING COSTS 14.39 15.03 62.04
SENSITIVITY ADJUSTMENT 100% 100% 100%
TOTAL OPERATING COSTS 14.39 15.03 62.04
CAPITAL EXPENDITURE 0.82 0.82 3.27
WORKING CAPITAL IN CONSTRUCTION PERIOD 0.00 0.00 0.00
TOTAL REVENUE 25.57 26.50 109.94
ROYALTY PAID 1.53 1.59 6.58
TAX PAYABLE 0.00 3.12 3.12
FINANCE & LEGAL COSTS 0.00 0.00 0.00
POLITICAL RISK INSURANCE 0.00 0.00 0.00
PROJECT CASHFLOW BEFORE FINANCING (INTEREST ETC) 8.83 5.94 34.93
FINANCIAL SUMMARY 2005
Debt Contribution 0.00 0.00 0.00
Equity Contribution / Shareholder loans 0.00 0.00 0.00
Net Cash Flow 8.83 5.94 34.93
NPV OF CASH FLOW, LOAN LIFE 14.33 5.81 32.05
NPV OF CASH FLOW, PROJECT LIFE 77.27 69.21 96.93
Loan Outstanding Start of Period 0.00 0.00 0.00
Loan Outstanding End of Period 0.00 0.00 0.00
LOAN LIFE RATIO n.a. n.a. n.a.
PROJECT LIFE RATIO n.a. n.a. n.a.
Scheduled Repayments 0.00 0.00
Interest Payments 0.00 0.00 0.00
Total Debt Service 0.00 0.00 0.00
Net Cash Flow less Debt Service 8.83 5.94 34.93
6 Months Debt Service Reserve Account Contribution 0.00 0.00 0.00
6 Months Debt Service Reserve Account Opening Balance 0.00 0.00 0.00
6 Months Debt Service Reserve Account Closing Balance 0.00 0.00 0.00
NET CASH FLOW AFTER FINANCE 8.83 5.94 34.93
CASH OPENING BALANCE 10.00 10.00 10.00
MINIMUM WORKING CAPITAL IN PROJECT 10.00 10.00 10.00
CASH AVAILABLE FOR DISTRIBUTION / SWEEPS 8.83 5.94 34.93
Bank prepayment - 20% of NCF after finance 1.77 1.19 6.99
Bank prepayment - capped at one year 0.00 0.00 0.00
Bank prepayment - quarterly 0.00 0.00
CASH SWEEP - (QUARTERLY) TO BANKS 0.00 0.00 0.00
AGREED PAYMENT TO SHAREHOLDERS 0.00
CASH FLOW ATTRIBUTABLE TO PROJECT OR SPONSORS 8.83 5.94 34.93
CASH FLOW DISTRIBUTED TO PROJECT OR SPONSORS 8.83 5.94 34.93
CASH CLOSING BALANCE 0.00 0.00 0.00
Remaining Reserves (oz's) 1,554,569 1,448,580 1,448,580
REMAINING RESERVES / PERIOD 1 RESERVES 34% 31% 31%
NET CASH FLOW / DEBT SERVICE n.a. n.a. n.a.
CASH COST / OZ (OPEX ONLY) 140.73 141.82 141.06
TOTAL COST/OZ (INCL. TAXES,PRI,WORKING CAP,DEBT SERVICE) 163.69 193.98 170.57
----------------------------------------------------------------------------------------------
** represents for greater than
**** represents for greater than or equal to
MORILA GOLD PROJECT
DATA AUDITED BY SRK APRIL 2001
2006
------------------------------------------------------------------------------------------------------------------------------
FINANCIAL XXXXXXX Xxx0 Xxx0 Xxx0 Xxx0 0000
Y
ORE TONNES MINED tonnes '000's 819 825 882 854 3,380
ORE GRADE g/t 4.54 4.22 4.03 3.97 4.19
RECOVERY EFFICIENCY % 92.40% 92.08% 92.02% 91.85% 92.10%
Gold Production oz 110,811 103,253 101,893 98,534 414,491
Gold Price - Spot US$/oz 250 250 250 250 250
Gold Price - Hedged ozs 0 0 0 0 0
Mining Costs US$m 4.69 4.70 3.22 4.23 16.85
Plant Costs US$m 3.21 3.07 3.09 3.08 12.45
General & Administration (incl Fees) US$m 7.14 6.75 6.75 6.74 27.37
Power plant costs US$m 0.47 0.47 0.47 0.47 1.88
OPERATING COSTS US$m 15.51 14.99 13.53 14.51 58.55
SENSITIVITY ADJUSTMENT 100% 100% 100% 100% 100% 100%
TOTAL OPERATING COSTS US$m 15.51 14.99 13.53 14.51 58.55
CAPITAL EXPENDITURE US$m 0.94 0.94 0.94 0.94 3.75
WORKING CAPITAL IN CONSTRUCTION PERIOD US$m 0.00 0.00 0.00 0.00 0.00
TOTAL REVENUE US$m 27.70 25.81 25.47 24.63 103.62
ROYALTY PAID US$m 1.66 1.55 1.53 1.48 6.21
TAX PAYABLE US$m 3.35 2.91 3.31 2.69 12.27
FINANCE & LEGAL COSTS US$m 0.00 0.00 0.00 0.00 0.00
POLITICAL RISK INSURANCE 1.30% 0.00 0.00 0.00 0.00 0.00
PROJECT CASHFLOW BEFORE FINANCING (INTEREST ETC) US$m 6.24 5.43 6.17 5.02 22.85
FINANCIAL SUMMARY 2006
Debt Contribution US$m 0.00 0.00 0.00 0.00 0.00
Equity Contribution / Shareholder loans US$m 0.00 0.00 0.00 0.00 0.00
Net Cash Flow US$m 6.24 5.43 6.17 5.02 22.85
NPV OF CASH FLOW, LOAN LIFE 9.00%
NPV OF CASH FLOW, PROJECT LIFE 9.00%
Loan Outstanding Start of Period US$m
Loan Outstanding End of Period US$m
LOAN LIFE RATIO **1.5
PROJECT LIFE RATIO **1.8
Scheduled Repayments US$m
Interest Payments 8.00%
Total Debt Service US$m
Net Cash Flow less Debt Service US$m 22.85
6 Months Debt Service Reserve Account Contribution US$m
6 Months Debt Service Reserve Account Opening Balance US$m
6 Months Debt Service Reserve Account Closing Balance US$m
NET CASH FLOW AFTER FINANCE US$m 22.85
CASH OPENING BALANCE
MINIMUM WORKING CAPITAL IN PROJECT US$m
CASH AVAILABLE FOR DISTRIBUTION / SWEEPS
Bank prepayment - 20% of NCF after finance 20.0%
Bank prepayment - capped at one year 20.0%
Bank prepayment - quarterly
CASH SWEEP - (QUARTERLY) TO BANKS 20.0%
AGREED PAYMENT TO SHAREHOLDERS US$m
CASH FLOW ATTRIBUTABLE TO PROJECT OR SPONSORS US$m 6.24 5.43 6.17 5.02 22.85
CASH FLOW DISTRIBUTED TO PROJECT OR SPONSORS 100% 6.24 5.43 6.17 5.02 22.85
CASH CLOSING BALANCE US$m 0.00 0.00 0.00 0.00 0.00
REMAINING RESERVES (OZ'S) 4,628,102 1,337,769 1,234,516 1,132,623 1,034,089 1,034,089
REMAINING RESERVES / PERIOD 1 RESERVES ****30% 29% 27% 24% 22% 22%
NET CASH FLOW / DEBT SERVICE ****130% n.a. n.a. n.a. n.a.
CASH COST / OZ (OPEX ONLY) US$/oz 139.98 145.17 132.81 147.29 141.25
TOTAL COST/OZ (INCL. TAXES,PRI,WORKING CAP,DEBT SERVICE) US$/oz 193.67 197.44 189.48 199.10 194.87
2007 2008 2009 2010 2011
------------------------------------------------------------------------------------------------------------------------------
FINANCIAL SUMMARY 2007 2008 2009 2010 2011 Total
Y Y Y Y Y
ORE TONNES MINED 3,518 3,163 1,338 0 0 28,141
ORE GRADE 4.14 3.97 4.86 0.00 0.00 5.57
RECOVERY EFFICIENCY 92.15% 91.66% 91.58% 0.00% 0.00% 91.75%
Gold Production 418,496 378,543 237,050 0 0 4,628,102
Gold Price - Spot 250 250 250 250 250
Gold Price - Hedged 0 0 0 0 0
Mining Costs 15.97 15.48 9.15 0.00 0.00 201.29
Plant Costs 12.45 12.45 9.14 0.00 0.00 107.83
General & Administration (incl Fees) 27.38 27.26 23.64 2.35 0.00 249.80
Power plant costs 1.44 0.96 0.51 0.00 0.00 19.25
OPERATING COSTS 57.24 56.15 42.43 2.35 0.00 578.17
SENSITIVITY ADJUSTMENT 100% 100% 100% 100% 100%
TOTAL OPERATING COSTS 57.24 56.15 42.43 2.35 0.00 578.17
CAPITAL EXPENDITURE 3.33 3.11 2.26 0.50 0.00 147.41
WORKING CAPITAL IN CONSTRUCTION PERIOD 0.00 0.00 0.00 0.00 0.00 20.00
TOTAL REVENUE 104.62 94.64 59.26 0.00 0.00 1,174.53
ROYALTY PAID 6.27 5.67 3.55 0.00 0.00 67.86
TAX PAYABLE 8.25 4.76 0.44 0.00 0.00 28.85
FINANCE & LEGAL COSTS 0.00 0.00 0.00 0.00 0.00 2.00
POLITICAL RISK INSURANCE 3.55
PROJECT CASHFLOW BEFORE FINANCING (INTEREST ETC) 29.54 24.94 10.58 (2.85) 0.00 326.70
FINANCIAL SUMMARY 2007 2008 2009 2010 2011 Total
Debt Contribution 0.00 0.00 0.00 0.00 0.00 90.00
Equity Contribution / Shareholder loans 0.00 0.00 0.00 0.00 0.00 30.00
Net Cash Flow 29.54 24.94 10.58 (2.85) 0.00 446.70
NPV OF CASH FLOW, LOAN LIFE
NPV OF CASH FLOW, PROJECT LIFE
Loan Outstanding Start of Period
Loan Outstanding End of Period
Loan Life Ratio
Project Life Ratio
Scheduled Repayments 72.00
Interest Payments 19.35
Total Debt Service 91.35
Net Cash Flow less Debt Service 29.54 24.94 10.58 (2.85) 0.00 355.35
6 Months Debt Service Reserve Account Contribution
6 Months Debt Service Reserve Account Opening Balance
6 Months Debt Service Reserve Account Closing Balance
NET CASH FLOW AFTER FINANCE 29.54 24.94 10.58 (2.85) 0.00 355.35
CASH OPENING BALANCE
MINIMUM WORKING CAPITAL IN PROJECT
CASH AVAILABLE FOR DISTRIBUTION / SWEEPS
Bank prepayment - 20% of NCF after finance
Bank prepayment - capped at one year
Bank prepayment - quarterly
CASH SWEEP - (QUARTERLY) TO BANKS 18.00
AGREED PAYMENT TO SHAREHOLDERS 17.00
CASH FLOW ATTRIBUTABLE TO PROJECT OR SPONSORS 29.54 24.94 10.58 (2.85) 0.00 625.67
CASH FLOW DISTRIBUTED TO PROJECT OR SPONSORS 29.54 24.94 10.58 0.00 0.00
CASH CLOSING BALANCE 0.00 0.00 0.00 (2.85) 0.00
REMAINING RESERVES (OZ'S) 615,593 237,050 0 0 0
REMAINING RESERVES / PERIOD 1 RESERVES 13% 5% 0% 0% 0%
NET CASH FLOW / DEBT SERVICE
CASH COST / OZ (OPEX ONLY) 136.78 148.34 179.01 n.a. n.a. 124.42
TOTAL COST/OZ (INCL. TAXES, PRI, WORKING CAP, DEBT SERVICE) 179.42 184.10 205.38 n.a. n.a. 197.99
------------------------------------------------------------------------------------------------------------------------------
** represents for greater than
**** represents for greater than or equal to
SCHEDULE 3
HEDGING POLICY
Under Clauses 8.1.10 and 9.1.7 of the Loan Agreement, the Borrower (and, at any
time prior to the Release Date, each of Morila Holdings and RRL) is required to
ensure that all Hedging Obligations arising in connection with the Morila
Project comply, and are consistent with, the terms and conditions of the
Hedging Policy. The following constitutes the Hedging Policy in connection with
the Morila Project.
1. HEDGING STRUCTURE
Any one of the corporate entities referenced in the first sentence of Clause
8.1.10 of the Loan Agreement (each such entity referred to as a "Hedging
Counterparty") shall enter into one or more transactions from time to time in
order to hedge the Borrower's exposure to gold prices and to provide the Morila
Project with long term protection from adverse movements in the gold price (the
"Hedging Transactions"). Each Hedging Counterparty shall implement the
Hedging Transactions pursuant to a 1992 ISDA Master Agreement (Multicurrency -
Cross Border) to be entered into by it with each of Standard Bank London
Limited, N M Rothschild & Sons Limited and Societe Generale (including any
of their affiliates) or any of the other Lenders from time to time (or any of
their affiliates) (each a "Hedging Agreements", collectively the "Hedging
Agreements"). If a Hedging Counterparty is an entity other than the Borrower
the benefit of the relevant Hedging Agreement will be assigned by such Hedging
Counterparty to the Borrower.
The Hedging Agreements will be governed by the laws of England and will be
entered into in accordance with the terms of the Loan Agreement. Where there is
any inconsistency between the terms of the Loan Agreement and this Hedging
Policy, or the terms of any of the Hedging Agreements and this Hedging Policy,
the terms of the Loan Agreement or the Hedging Agreements (as the case may be)
shall prevail.
2. DAY-TO-DAY MANAGEMENT OF HEDGING TRANSACTIONS
The Hedging Transactions entered into by each Hedging Counterparty will be
managed and co-ordinated by AngloGold, acting upon the instructions of the
Borrower.
3. XXXX TO MARKET EXPOSURE
Each Hedging Counterparty shall supply to the Agent (with a copy for each
Lender) within seven (7) days after the end of each Fiscal Quarter, in form and
substance satisfactory to the Agent, a hedging activity report. Such report
shall be signed by an Authorised Representative of the Hedging Counterparty and
shall set out details of the hedging activity during the course of the previous
quarter, together with a statement showing the Hedging Transactions entered
into by such Hedging Counterparty at the end of such Fiscal Quarter.
4. LEVELS OF PROTECTION AND COMMITMENT
(a) At any date, the aggregate number of ounces of Gold produced or
to be produced at the Morila Project and required to be
delivered during the Project Period under all Committed Hedging
Agreements in effect on such date shall
not exceed an amount equal to seventy percent (70%) of Proven
and Probable Reserves as at such date.
(b) At any date, the aggregate number of ounces of Gold produced or
to be produced at the Morila Project and required to be
delivered during the twelve (12) month period commencing on
such date under all Committed Hedging Agreements in effect on
such date shall not exceed an amount equal to seventy percent
(70%) of the then scheduled Production for such twelve (12)
month period.
5. PERMITTED HEDGING TRANSACTIONS
The following shall also apply in respect of Hedging Transactions:
(a) Hedging Transactions in relation to Gold are to be limited to
forward sales and european or monthly asian style vanilla put
and call options.
(b) Sales of call options will be accounted for on a notional basis
(not on a delta basis).
(c) The exposure of all Hedging Counterparties to gold lease rates
in connection with the Morila Project shall not exceed 40% of
the total ounces related to Committed Hedging Agreements. A
minimum assumption of 2% p.a. will be made for gold lease rate
rollovers in respect of floating lease rate contracts.
(d) Hedging Transactions will be denominated in U.S.$.
6. OTHER RESTRICTIONS
(a) All hedging in respect of Production from the Morila Project
will be undertaken solely by the Hedging Counterparties.
(b) The Hedging Counterparties will not, in connection with the
Morila Project, enter into any purchase, sale, swap option,
spot, forward or other transaction involving Gold or any other
transaction involving commodities, currencies or interest rates
other than:
(i) as specified in the definition of the term "Committed
Hedging Agreements" in the Loan Agreement; or
(ii) as specified in the Refining Agreement.
(c) The Hedging Counterparties will not undertake Hedging
Transactions of a speculative nature.
7. COUNTERPARTIES
(a) In connection with the Morila Project, the Hedging
Counterparties will only enter into Hedging Transactions with
the Arrangers and/or the Co-Arrangers (or any of their
affiliates) (each referred to as a "Hedging Bank"). In the
event that a Hedging Bank ceases to act in its capacity as a
Lender, any Hedging Transactions that are outstanding at such
time with such Hedging Bank shall
continue and mature on their designated maturity date. The
Hedging Counterparty will not enter into any further Hedging
Transactions in connection with the Morila Project with such
Hedging Bank after such date.
(b) The number of ounces of Gold hedged with any Hedging Bank in
connection with the Morila Project will, to the extent
practicable, broadly reflect a pro rata proportion of the total
hedge, and will be linked to each Hedging Bank's Commitment
under the Loan Agreement (in its capacity as a Lender) at the
time the relevant Hedging Agreements are put in place, subject
to a test of reasonable price competitiveness.
8. ASSIGNMENT OF EXISTING TRANSACTIONS BY ANGLOGOLD AND RRL
Each of AngloGold and RRL may transfer to another Hedging Counterparty only
those outstanding hedging transactions that have been entered into (i) between
AngloGold or RRL and any of the Lenders and (ii) in relation to the Morila
Project.
SCHEDULE 4
FORM OF EXCESS CASH FLOW CALCULATION CERTIFICATE
[__], 200[__]
N M Rothschild & Sons Limited,
as the Agent
under the Loan Agreement
referred to below and each of
the other Lender Parties from
time to time party to such
Loan Agreement
c/o N M Rothschild & Sons Limited
Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xxxxx Street/Xxxxxx Xxxxx
RE: MORILA LOAN AGREEMENT
Dear Sirs
This Excess Cash Flow Calculation Certificate (this "Certificate") is
delivered to you pursuant to the first proviso to Clause 8.2.7 of the Loan
Agreement, dated 21 December, 1999 (as amended pursuant to the Letter
Agreement, dated 10 April, 2000 and the Supplemental Agreement, dated [__],
2001, and as further amended, modified or supplemented from time to time, the
"LOAN AGREEMENT") among (1) Societe des Mines de Morila S.A., as the
Borrower, (2) Randgold Resources Limited, Randgold & Exploration Company
Limited and Morila Limited, as the Completion Guarantors, (3) various banks and
financial institutions, as the Lenders and the Co-Arrangers, (4) Standard Bank
London Limited and N M Rothschild & Sons Limited, as the Arrangers and (5) N M
Rothschild & Sons Limited, as the Agent for the Lenders. Unless otherwise
defined herein or the context otherwise requires, terms used herein have the
meanings provided in, and shall be interpreted in accordance with, the Loan
Agreement.
The Borrower hereby certifies, represents and warrants to the Agent and each
other Lender Party as follows:
1 Total Cash Balances in the Morila Project(9) as at the
first day of the Cash Sweep Calculation Period U.S.$ __________
2 Total Revenues from Production during the Cash Sweep
Calculation Period(10) U.S.$ __________
________________________________________
(9) Total amount of funds in the Project Accounts (Offshore) and Project
Account (Mali).
-124-
3 Project Capital Costs paid during the Cash Sweep
Calculation Period U.S.$ ________
4 Project Operating Costs paid during the Cash
Sweep Calculation Period U.S.$ ________
5 Total Cash Balances in the Project on the last day
of the Cash Sweep Calculation Period(11) U.S.$ ________
6 Project Costs scheduled to be paid during the three
months following the Cash Sweep Calculation Period U.S.$ ________
7 Total Cash Balances in the Debt Service Reserve
Account on the last day of the Cash Sweep
Calculation Period U.S.$_________
8 Cash available for Distributions(12)
20% to the Lenders: U.S.$ _______
80% to the Sponsors: U.S.$ _______ U.S.$ ________
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be executed and
delivered by a senior financial Authorised Representative this day of [__],
200[__]
SOCIETE DES MINES DE MORILA )
S.A., as the Borrower )
by: ______________________________
Signature
______________________________
Name Printed
______________________________
Title
___________________________________
(10) Total Production expressed in Dollars as calculated (i) in the case of
any such ounces of Gold which are covered by a Hedging Agreement in
effect during the Cash Sweep Calculation Period, at the price for
delivery of Gold specified in such Hedging Agreement (or, if no price
other than a floor price for delivery of Gold is specified in such
Hedging Agreement, the minimum price for delivery of Gold referred to
therein) and (ii) in the case of all other such ounces of Gold at the
average London Gold Price for the Cash Sweep Calculation Period
(11) Item 1 plus Item 2 minus Item 3 minus Item 4
(12) Item 5 minus Item 6 minus Item 7
-125-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorised as of the day
and year first above written.
THE OBLIGORS:
SOCIETE DES MINES DE MORILA )
S.A., as the Borrower )
by: ______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: x/x XxxxxXxxx Xxxxxxx
XX Xxx 00000
00xx Xxxxx, 00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx
Xxxxxxxxxxxx 0000
Xxxxx Xxxxxx
Facsimile No.: x00 00 000 0000
Attention: Company Secretary, Xx. XX Xxxx
-126-
RANDGOLD RESOURCES LIMITED, )
as a Completion Guarantor )
by: ______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: x/x 0 Xxxxx Xxxxxx
Xxxxx
Xxxxxxxxxxxx
X.X. Xxx 00000
Xxxxxxxxx 0000
Xxxxx Xxxxxx
Facsimile No.: x00-00-0000000
Attention: The Financial Director
-127-
[RANDGOLD & EXPLORATION )
COMPANY LIMITED, as a Completion ) ______________________________
Guarantor Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: x/x 0 Xxxxx Xxxxxx
Xxxxx
Xxxxxxxxxxxx
X.X. Xxx 00000
Xxxxxxxxx 0000
Xxxxx Xxxxxx
Facsimile No.: x00-00-0000000
Attention: The Financial Director](13)
___________________________
(13) Released from its obligations pursuant to the Supplemental Agreement.
-128-
MORILA LIMITED(14) as a Completion )
Guarantor by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: x/x XxxxxXxxx Xxxxxxx
XX Xxx 00000
00xx Xxxxx, 00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx
Xxxxxxxxxxxx 0000
Xxxxx Xxxxxx
Facsimile No.: x00 00 000 0000
Attention: Company Secretary, Xx. XX Xxxx
_______________________________
(14) Previously called Randgold Resources (Morila) Limited.
-129-
THE LENDERS:
Commitment Amount: U.S.$15,000,000
per pro N M ROTHSCHILD & SONS )
LIMITED by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx
XX0X 0XX
Facsimile No.: x00 00 0000 0000
Attention: Xxxxx Street/Xxxxxx Xxxxx
-130-
Commitment Amount: U.S.$15,000,000
BAYERISCHE HYPO-UND )
VEREINSBANK AG by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: 00 Xxxxxxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 000 000 0000/1712
Attention: Xxxxxxxx Xxxxx/Xxxxxx Self
-131-
Commitment Amount: U.S.$15,000,000
[FORTIS BANK (NEDERLAND) )
N.V.](15) by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: Xxxxxxxxxx 00
X.X. Xxx 000
0000 XX Xxxxxxxxx
Facsimile No.: x00 00 000 0000
Attention: Xxxxx Boogers/Juultje van der Wijk
_______________________________________
(15) Previously called Mees Pierson N.V.
-132-
Commitment Amount: U.S.$15,000,000
SAMPO BANK PLC(16) by: )
)
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: Xxxxxxxxxxxxxx 0
XXX 00000 Xxxxxxxxx
Xxxxxxx
Facsimile No.: x000 000 00 0000
Attention: Export and Project Finance
__________________________________
(16) Acquired interest from Sampo Bank plc (previously called Leonia
Corporate Bank plc). Sampo Bank plc was not an original signatory to
the Agreement and was added as an additional Lender pursuant to the
Letter Agreement. Transferred its interest under the Loan Agreement to
Standard Bank London Limited.
-133-
Commitment Amount: U.S.$15,000,000
SOCIETE GENERALE by: )
)
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: XX Xxxxx
00 Xxxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 000 000 0000
Attention: Xxxxxx Xxxxxxx/Xxxxx Xxxxxx
-134-
Commitment Amount:
U.S.$30,000,000(17)
STANDARD BANK LONDON )
LIMITED by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: 00 Xxxxxxx Xxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 000-000-0000
Attention: Xxxxx Xxxxxx
__________________________________
(17) Sampo Bank plc has transferred its interest under the Loan Agreement
to Standard Bank London Limited.
-135-
THE ARRANGERS
per pro N M ROTHSCHILD & SONS )
LIMITED by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx
XX0X 0XX
Facsimile No.: x00 000-000-0000
Attention: Xxxxx Street/Xxxxxx Xxxxx
-136-
STANDARD BANK LONDON )
LIMITED by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: 00 Xxxxxxx Xxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 000-000-0000
Attention: Xxxxx Xxxxxx
-137-
THE CO-ARRANGERS
BAYERISCHE HYPO-UND )
VEREINSBANK AG by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: 00 Xxxxxxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 000 000 0000/1712
Attention: Xxxxxxxx Xxxxx/Xxxxxx Self
-138-
[FORTIS BANK (NEDERLAND) )
N.V.](18) by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: Xxxxxxxxxx 00
X.X. Xxx 000
0000 XX Xxxxxxxxx
Facsimile No.: x00 00 000 0000
Attention: Xxxxx Boogers/Juultje van der Wijk
_______________________________________
(18) Previously called Mees Pierson N.V.
-139-
[SAMPO BANK PLC](19) by: )
)
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: Xxxxxxxxxxxxxx 0
XXX-00000 Xxxxxxxxx
Xxxxxxx
Facsimile No.: x000 000 00 0000
Attention: Export and Project Finance
_______________________________________
(19) Not an original signatory to the Agreement. Added as an additional
Co-Arranger pursuant to the Letter Agreement. Previously called Leonia
Corporate Bank plc. Transferred interest in Agreement to Standard Bank
London Limited
-140-
SOCIETE GENERALE by: )
)
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: XX Xxxxx
00 Xxxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 000 000 0000
Attention: Xxxxx Xxxxxx
-141-
THE AGENT
per pro N M ROTHSCHILD & SONS )
LIMITED by: )
______________________________
Signature
______________________________
Name Printed
______________________________
Title
______________________________
Signature
______________________________
Name Printed
______________________________
Title
Address for Notices: Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx
XX0X 0XX
Facsimile No.: x00 000-000-0000
Attention: Xxxxx Street/Xxxxxx Xxxxx
-142-
