EXECUTION COPY
Dated 17 September, 2001
RANDGOLD RESOURCES LIMITED
as the Borrower
VARIOUS BANKS AND OTHER FINANCIAL INSTITUTIONS
as the Lenders
N M ROTHSCHILD & SONS LIMITED
SOCIETE GENERALE
and
STANDARD BANK LONDON LIMITED
as the Arrangers
and
N M ROTHSCHILD & SONS LIMITED
as the Agent for the Lenders
----------------------------------------
LOAN AGREEMENT
----------------------------------------
[GRAPHIC OMITTED]
XXXXX XXXXX & XXXXX (Logo)
Xxxxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Telephone: 000 0000 0000
Fax: 000 0000 0000
Reference: 01863914
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION......................................................................1
1.1 DEFINED TERMS..............................................................................1
1.2 ADDITIONAL DEFINITIONS....................................................................11
1.3 Interpretation............................................................................12
1.4 USE OF DEFINED TERMS......................................................................13
1.5 CROSS-REFERENCES..........................................................................13
1.6 ACCOUNTING AND FINANCIAL DETERMINATIONS...................................................13
1.7 CHANGE IN ACCOUNTING PRINCIPLES...........................................................14
1.8 GENERAL PROVISIONS AS TO CERTIFICATES AND OPINIONS, ETC...................................14
2. COMMITMENTS; BORROWING AND INTEREST PERIOD SELECTION PROCEDURES, ETC...............................14
2.1 COMMITMENTS...............................................................................14
2.2 PROCEDURE FOR MAKING LOANS................................................................15
2.3 CONTINUATION ELECTIONS....................................................................16
2.4 CANCELLATION..............................................................................16
2.5 RECORDS...................................................................................17
2.6 FUNDING...................................................................................17
3. PRINCIPAL PAYMENTS; INTEREST.......................................................................17
3.1 PRINCIPAL PAYMENTS........................................................................17
3.2 INTEREST PAYMENTS.........................................................................19
3.3 FEES......................................................................................20
4. INCREASED COSTS; TAXES; MARKET DISRUPTIONS; GENERAL PAYMENT PROVISIONS.............................20
4.1 DOLLARS UNAVAILABLE.......................................................................20
4.2 INCREASED COSTS, ETC......................................................................21
4.3 FUNDING LOSSES............................................................................21
-i-
TABLE OF CONTENTS
(continued)
CLAUSE PAGE
4.4 ILLEGALITY................................................................................22
4.5 TAXES.....................................................................................22
4.6 MITIGATION................................................................................23
4.7 PAYMENTS, COMPUTATIONS, ETC...............................................................24
4.8 REDISTRIBUTION OF PAYMENTS................................................................24
4.9 SETOFF....................................................................................26
4.10 APPLICATION OF PROCEEDS...................................................................26
4.11 CURRENCY OF PAYMENT.......................................................................27
5. CONDITIONS PRECEDENT TO MAKING LOANS...............................................................27
5.1 INITIAL LOANS.............................................................................27
5.2 ALL LOANS.................................................................................30
6. REPRESENTATIONS AND WARRANTIES.....................................................................31
6.1 ORGANISATION, POWER, AUTHORITY, ETC.......................................................31
6.2 DUE AUTHORISATION; NON-CONTRAVENTION......................................................31
6.3 VALIDITY, ETC.............................................................................32
6.4 LEGAL STATUS..............................................................................32
6.5 FINANCIAL INFORMATION.....................................................................32
6.6 ABSENCE OF DEFAULT........................................................................33
6.7 LITIGATION, ETC...........................................................................33
6.8 MATERIALLY ADVERSE EFFECT.................................................................33
6.9 TAXES AND OTHER PAYMENTS..................................................................33
6.10 ADEQUACY OF INFORMATION...................................................................33
6.11 ENVIRONMENTAL WARRANTIES..................................................................34
6.12 PARI PASSU................................................................................34
7. COVENANTS..........................................................................................34
TABLE OF CONTENTS
(continued)
CLAUSE PAGE
7.1 CERTAIN AFFIRMATIVE COVENANTS.............................................................34
7.2 CERTAIN NEGATIVE COVENANTS................................................................39
8. EVENTS OF DEFAULT..................................................................................43
8.1 EVENTS OF DEFAULT.........................................................................43
8.2 ACTION IF BANKRUPTCY......................................................................46
8.3 ACTION IF OTHER EVENT OF DEFAULT..........................................................46
9. THE AGENT AND THE ARRANGERS........................................................................47
9.1 APPOINTMENT...............................................................................47
9.2 RELIANCE, ETC.............................................................................47
9.3 ACTIONS...................................................................................48
9.4 LIMITATION ON ACTIONS.....................................................................49
9.5 INDEMNIFICATION BY LENDERS................................................................49
9.6 EXCULPATION...............................................................................49
9.7 WAIVER....................................................................................50
9.8 BANKING ACTIVITIES........................................................................50
9.9 RESIGNATION AND REPLACEMENT...............................................................50
9.10 DISCHARGE.................................................................................51
9.11 CREDIT DECISIONS..........................................................................51
9.12 THE AGENT AND THE ARRANGERS...............................................................51
9.13 INTERPRETATION............................................................................52
10. MISCELLANEOUS......................................................................................52
10.1 WAIVERS, AMENDMENTS, ETC..................................................................52
10.2 NOTICES...................................................................................53
10.3 COSTS AND EXPENSES........................................................................53
TABLE OF CONTENTS
(continued)
CLAUSE PAGE
10.4 INDEMNIFICATION...........................................................................54
10.5 SURVIVAL..................................................................................55
10.6 SEVERABILITY..............................................................................55
10.7 HEADINGS..................................................................................55
10.8 COUNTERPARTS, EFFECTIVENESS, ETC..........................................................55
10.9 GOVERNING LAW.............................................................................55
10.10 ASSIGNMENTS AND TRANSFERS BY THE BORROWER.................................................56
10.11 ASSIGNMENTS AND TRANSFERS BY THE LENDERS..................................................56
10.12 OTHER TRANSACTIONS........................................................................58
10.13 FORUM SELECTION AND CONSENT TO JURISDICTION...............................................58
10.14 ENTIRE AGREEMENT..........................................................................59
EXHIBITS
EXHIBIT A-1 RRL SECURITY AGREEMENT
EXHIBIT A-2 MIJL SECURITY AGREEMENT
EXHIBIT A-3 DEED OF PRIORITIES
EXHIBIT X-0 XXXXXXX XX XXXXX & XX XXXXXXXX
XXXXXXX X-0 OPINION OF MOURANT DU FEU & JEUNE
EXHIBIT B-3 OPINION OF XXXXX, XXXXX & XXXXX
EXHIBIT C PROCESS AGENT ACCEPTANCE
EXHIBIT D BORROWING REQUEST
EXHIBIT E CONTINUATION NOTICE
EXHIBIT F COMPLIANCE CERTIFICATE
EXHIBIT g TRANSFER CERTIFICATE
THIS LOAN AGREEMENT, dated 17 September, 2001 (as amended, modified or
supplemented in accordance with the terms hereof, this "AGREEMENT"), between:
(1) RANDGOLD RESOURCES LIMITED, (the "BORROWER");
(2) the banking and/or financial institutions referred to on the signature
pages hereof as the lenders (collectively, the "LENDERS");
(3) N M ROTHSCHILD & SONS LIMITED, SOCIETE GENERALE and STANDARD BANK LONDON
LIMITED, in their capacity as arrangers of the financing contemplated by
this Agreement (collectively, the "ARRANGERS"); and
(4) N M ROTHSCHILD & SONS LIMITED, in its capacity as the agent for the Lenders
(in such capacity, the "AGENT").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
The following terms when used in this Agreement shall have the following
meanings:
"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.
"APPLICABLE MARGIN" means:
(a) in the case of Tranche A Loans, three and three quarters percent
(3.75%) per annum; and
(b) in the case of Tranche B Loans, four and one quarter percent (4.25%)
per annum.
"APPROVAL" means an approval, authorisation, license, permit, consent,
filing or registration by or with any Governmental Agency or other person.
"ARRANGERS" is defined in the preamble.
"AUTHORISED REPRESENTATIVE" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the
Agent pursuant to Clause 5.1.1.
"BORROWER" is defined in the preamble.
"BORROWING DATE" means a Business Day 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 D 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 or New York, New York; and
(b) relative to the calculation of the LIBO Rate, any day on which
dealings in Dollars are carried on in the London interbank market.
"BUSINESS PLAN" is defined in Clause 5.1.7.
"CALCULATION DATE" means each 31 March, 30 June, 30 September and 31
December in each calendar year.
"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 leases which such person has entered into
as a lessee and which would be classified as financial indebtedness.
"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), collectively with any directors qualifying shares
held by directors of Morila S.A. as nominee for Morila Holdings, and
directly and free and clear of all liens (other than the lien in
favour of the lenders granted in connection with the Morila Project
Financing), at least eighty percent (80%) of the share capital
(however designated) of Morila S.A.;
(b) the failure of MIJL to own (and to have sole power to vote and dispose
of), directly and free and clear of all liens (other than the liens in
favour of the lenders granted in connection with the Morila Project
Financing and the liens granted pursuant to the MIJL Security
Agreement), fifty percent (50%) of the share capital (however
designated) of Morila Holdings; or
(c) the failure of the Borrower to own (and to have sole power to vote and
dispose of), directly and full and clear of all liens (other than the
liens granted pursuant to the RRL Security Agreement) one hundred
percent (100%) of the share capital (however designated) of MIJL.
-2-
"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, in relation to any Lender, and at any time, the
aggregate of such Lender's Tranche A Commitment Amount and Tranche B
Commitment Amount, in each case at such time.
"COMMITMENT TERMINATION DATE" means (a) in the case of Tranche A Loans, 31
October 2001, and (b) in the case of Tranche B Loans, the date which is one
(1) month prior to the Final Maturity Date or if earlier, and in each such
case, the date of the termination of each Commitment pursuant to Clause 8.2
or 8.3.
"COMMITTED HEDGING AGREEMENTS" means forward sale, spot deferred sales or
other contracts (including put options when either the Borrower or Morila
Holdings is the buyer of the option and call options where either the
Borrower or Morila Holdings is the seller of the option) providing for a
binding commitment on the part of either the Borrower or Morila Holdings to
sell gold.
"COMPLIANCE CERTIFICATE" means a certificate duly executed by an Authorised
Representative of the Borrower, substantially in the form of Exhibit F
attached hereto.
"CONSOLIDATED DEBT SERVICE COVERAGE RATIO" means, for any period, the
ratio, expressed as a percentage, of:
(a) the sum of:
(i) cash inflows - cash outflows of the Borrower for such period (in
accordance with the format of the Business Plan)
PLUS
(ii) amounts on deposit in the Operating Account as at the beginning
of such period;
TO
(b) Consolidated Funded Debt Service for such period.
"CONSOLIDATED 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, this Agreement and
all other financial indebtedness of the Borrower and its subsidiaries which
(in the case of all such principal, interest or other amounts) have become
due and payable during that period.
"CONSOLIDATED NET WORTH" means, at any time, the aggregate of the amounts
paid up or credited as paid up on the issued share capital of the Borrower
(other than any redeemable shares) and the aggregate amount of the reserves
of its subsidiaries including:
-3-
(a) share capital and share premiums;
(b) capital reserves and non-distributable reserves; and
(c) retained earnings.
"CONTINUATION NOTICE" means a notice of continuation and certificate duly
executed by an Authorised Representative of the Borrower, substantially in
the form of Exhibit E attached hereto.
"DEED OF PRIORITIES" means the Deed of Priorities between the lenders in
connection with the Morila Project Financing and the Lender Parties,
substantially in the form of Exhibit A-3 attached hereto.
"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.
"DOLLAR" and the sign "U.S.$" mean lawful money of the United States of
America.
"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.
"EFFECTIVE DATE" is defined in Clause 10.8.
"ENVIRONMENTAL LAW" means any applicable law 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.
"EVENT OF DEFAULT" is defined in Clause 8.1.
"FINAL MATURITY DATE" means the date that is four (4) years from the date
of this Agreement.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar months ending
on 31 December.
-4-
"FUNDING PERCENTAGE" means, relative to any Lender and at any time, (a) in
the case of Tranche A, the ratio (expressed as a percentage) of (i) such
Lender's Tranche A Commitment Amount at such time to (ii) the Total Tranche
A Commitment Amount at such time or (b) in the case of Tranche B, the ratio
(expressed as a percentage) of (i) such Lender's Tranche B Commitment
Amount at such time to (ii) the Total Tranche B Commitment Amount at such
time.
"GAAP" is defined in Clause 1.6.
"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.
"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 AGREEMENT" means any instrument evidencing any Hedging Obligation
of the Borrower.
"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 commodities
(including precious metals) prices.
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or report of
any auditor 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 limitation 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 a breach of the terms of Clause 7.2.4.
"INDEMNIFIED LIABILITIES" is defined in Clause 10.4.
"INDEMNIFIED PARTIES" is defined in Clause 10.4.
"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
-5-
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
the relevant Continuation Notice delivered pursuant to Clause 2.3;
PROVIDED, HOWEVER, that:
(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 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.
"INTERNATIONAL ACCOUNTING STANDARDS" means the International Accounting
Standards promulgated by the International Accounting Standards Committee.
"LENDER PARTIES" means, collectively, the Agent, the Arrangers and the
Lenders.
"LENDERS" is defined in the preamble.
"LIBO RATE" means, relative to any Interest Period for any Loan, 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, calculated at the date which is two (2) Business Days
prior to the first day of such 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
-6-
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) and shall, as the context may require,
be deemed to refer to a Tranche A Loan and/or a Tranche B Loan.
"LOAN DOCUMENT" means any of this Agreement, the Security Agreements and
each other instrument executed by any Obligor or evidencing any obligation
(monetary or otherwise) to any Lender Party in connection with and pursuant
to this Agreement and the transactions contemplated hereby 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 Hedging Agreement in effect at such
time and entered into between the Borrower and any Lender which remains a
Lender at the relevant time).
"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 (and for the purposes of Clause 8.1.11
only, after consultation with the Borrower):
(a) is or is likely to be materially adverse to the ability of any Obligor
to perform or comply with any of its obligations under the Loan
Documents;
(b) is or is likely to be materially adverse to the ability of the
Borrower and the RRL Group Companies to operate their respective
businesses in a manner which is consistent with the financial
projections and other information contained in the Business Plan; or
(c) 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
Obligor.
"MIJL" means Mining Investments (Jersey) Limited, a company incorporated
under the laws of Jersey.
"MIJL SECURITY AGREEMENT" means the Security Agreement between MIJL and the
Agent, substantially in the form of Exhibit A-2 attached hereto.
"MORILA HOLDINGS" means Morila Limited, a company incorporated under the
laws of Jersey.
"MORILA PROJECT" means the construction and operation of a mine and related
facilities by Morila S.A. to mine and develop the gold deposit located
approximately 180 kilometres Southeast of Bamako in Mali in the
Arondissement of Sanso, Cercle of Bougouni and region of Sikasso.
-7-
"MORILA PROJECT FINANCING" means the financing for the development of the
Morila Project made available pursuant to the Loan Agreement, dated 21
December, 1999, among Morila S.A., the Completion Guarantors, Lenders,
Arrangers and Co-Arrangers referred to (and defined) therein and N M
Rothschild & Sons Limited, as the Agent.
"MORILA S.A." means Societe des Mines de Morila S.A., a company organised
and existing under the laws of the Republic of Mali.
"OBLIGATIONS" means, with respect to each Obligor, all obligations of such
Obligor with respect to the repayment or performance of all obligations
(monetary or otherwise) of such Obligor 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 Obligor, such term
means the Obligations of all Obligors.
"OBLIGORS" means, collectively, the Borrower and MIJL.
"OFFERING CIRCULAR" means the circular to shareholders of the Borrower,
dated 28 June, 2001.
"OPERATING ACCOUNT" means account number 411848019 maintained by the
Borrower with the branch of Citibank N.A. located at 00 Xxxxxxxxx, Xx.
Xxxxxx, Xxxxxx XX0 0XX.
"ORGANIC DOCUMENT" means, with respect to each Obligor:
(a) its memorandum and articles of association; and
(b) all shareholder agreements, voting trusts and similar arrangements
applicable to any of its authorised shares of capital stock or other
equity interests.
"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
-8-
each Loan Document (excluding any Hedging Agreement which is a Loan
Document) shall have been paid and performed in full then, to the extent
any Hedging Obligation of the Borrower under any such Hedging Agreement
shall then be outstanding, the term "PERCENTAGE" means, relative to any
Lender which is a party to any such Hedging Agreement 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 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 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.
"PRINCIPAL PAYMENT DATE" means collectively, (a) each 30 April, 31 July, 31
October and 31 January of each calendar year, commencing with 31 January
2002 and ending with 31 July, 2005, and (b) the Final Maturity Date.
"PROCESS AGENT" is defined in Clause 10.13(c).
"PROCESS AGENT ACCEPTANCE" means a letter from the Process Agent to the
Agent, substantially in the form of Exhibit C attached hereto.
"RECL" means Randgold & Exploration Company Limited, a company organised
and existing under the laws of the Republic of South Africa.
"REQUIRED LENDERS" means at any time, Lenders having, in the aggregate, a
Percentage of sixty six and two thirds (66%) or more at such time.
"RRL GROUP COMPANIES" means, collectively, the Borrower, its subsidiaries
and subsidiary undertakings and their subsidiaries and subsidiary
undertakings, Morila Holdings and Morila S.A.
"RRL SECURITY AGREEMENT" means the Security Agreement between the Borrower
and the Agent, substantially in the form of Exhibit A-1 attached hereto.
"SECURITY AGREEMENTS" means, collectively, the RRL Security Agreement, the
MIJL Security Agreement and the Deed of Priorities.
"SHARE REPURCHASE" has the same meaning as that ascribed to the term
"Repurchase" in the Offering Circular.
-9-
"SYAMA PROJECT" means the Syama gold project in Mali owned by Societe des
Mines de Syama S.A., of which seventy-five percent (75%) of its share
capital is owned by the Borrower.
"TAX CREDIT" is defined in Clause 4.6(b).
"TAX PAYMENT" is defined in Clause 4.6(b).
"TAXES" is defined in Clause 4.5.
"TOTAL COMMITMENT AMOUNT" means, at any time, the aggregate of the Total
Tranche A Commitment Amount and the Total Tranche B Commitment Amount, in
each case at such time.
"TOTAL TRANCHE A COMMITMENT AMOUNT" means, at any time, subject to the
terms and conditions of this Agreement the amount of (a) U.S.$25,000,000,
less (b) any reduction of the Total Tranche A Commitment Amount effected
pursuant to Clause 2.4.
"TOTAL TRANCHE B COMMITMENT AMOUNT" means, at any time, subject to the
terms and conditions of this Agreement the amount of (a) U.S.$10,000,000,
less (b) any reduction of the Total Tranche B Commitment Amount effected
pursuant to Clause 2.4.
"TRANCHE A COMMITMENT" means, relative to any Lender, such Lender's
obligation to make and to maintain its Tranche A Loans pursuant to the
terms and subject to the conditions of this Agreement.
"TRANCHE A COMMITMENT AMOUNT" means the amount set forth opposite each
Lender's name on the signature pages hereto next to the heading "Tranche
A", as the same may be reduced pursuant to this Agreement or adjusted as a
result of any assignment or transfer pursuant to Clause 10.11.
"TRANCHE A LENDER" means each Lender with a Tranche A Commitment Amount
which is in excess of zero.
"TRANCHE A LOAN" is defined in Clause 2.1(a).
"TRANCHE B COMMITMENT" means, relative to any Lender, such Lender's
obligation to make and to maintain its Tranche B Loans pursuant to the
terms and subject to the conditions of this Agreement.
"TRANCHE B COMMITMENT AMOUNT" means the amount set forth opposite each
Lender's name on the signature pages hereto next to the heading "Tranche
B", as the same may be reduced pursuant to this Agreement or adjusted as a
result of any assignment or transfer pursuant to Clause 10.11.
"TRANCHE B LENDER" means each Lender with a Tranche B Commitment Amount
which is in excess of zero.
"TRANCHE B LOAN" is defined in Clause 2.1(a)
-10-
"TRANSFER CERTIFICATE" means a certificate, substantially in the form of
Exhibit G attached hereto.
"TRANSFEREE LENDER" is defined in Clause 10.11.2.
"TRANSFEROR LENDER" is defined in Clause 10.11.2.
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) "APPLICABLE LAW" means, with respect to any person or matter, any
supranational, national, 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 and, in each such case, as
the same may be amended, modified, codified or re-enacted, in whole or
in part, and in effect from time to time.
(c) references to the "BORROWER", any "OBLIGOR", the "AGENT", any
"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;
(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 facility, the issue of loan stock, any liability in respect of
a finance or capital lease 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 "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;
(f) "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;
-11-
(g) "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;
(h) 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;
(i) 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;
(j) a "SUBSIDIARY" and a "SUBSIDIARY UNDERTAKING" shall have the same
meaning as in the Companies Xxx 0000 of the United Kingdom;
(k) "TYPE" means, in connection with any reference to a Loan, a Tranche A
Loan and/or a Tranche B Loan, as the context may require; and
(l) 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 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) a reference to a time of day shall be construed as a reference to
London time;
(c) "INCLUDING" (and with correlative meaning "INCLUDE") means including
without limiting the generality of any description preceding such
term;
(d) the singular number includes the plural number and vice versa;
-12-
(e) 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;
(f) reference to any gender includes any other gender;
(g) "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;
(h) relative to the determination of any period of time, "FROM" means
"FROM (AND INCLUDING)" and "TO" means "TO (BUT EXCLUDING)";
(i) 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;
(j) when an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning; and
(k) 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 each Borrowing Request, each Continuation Notice, each Compliance
Certificate, each 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.
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 6.5(a).
-13-
1.7 CHANGE IN ACCOUNTING PRINCIPLES
If, after the Effective Date, there shall (without prejudice to Clause 1.6
and Clause 7.2.1(b)) be any change to the Borrower's Fiscal Year, or in the
application of the accounting principles used in the preparation of the
financial statements referred to in Clause 6.5(a) as a result of the
promulgation of rules, regulations, pronouncements, or opinions by any
Governmental Agency or any entity with 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 the
Borrower 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 the Borrower'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, the Borrower'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 6.5(a).
1.8 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 5) 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. Each Loan made by each Lender
will be made pursuant to either its Tranche A Commitment (a "TRANCHE A
LOAN") or Tranche B Commitment (a "TRANCHE B LOAN"). No more than one
(1) Tranche A Loan shall be made by each Lender.
(b) 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 type of Loans
requested by the Borrower to be made on the Borrowing Date specified
in such Borrowing Request.
-14-
(c) No Lender shall be required to make any Loan if, after giving effect
thereto:
(i) the aggregate original principal amount of all Tranche A Loans:
(x) of all Lenders made since the Effective Date would exceed
the Total Tranche A Commitment Amount; or
(y) of such Lender made since the Effective Date would exceed
such Lender's Tranche A Commitment Amount; or
(ii) the aggregate principal amount of all Tranche B Loans:
(x) outstanding to all Lenders would exceed the Total Tranche B
Commitment Amount; or
(y) outstanding to such Lender would exceed such Lender's
Tranche B 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 of either type 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.
(b) The aggregate principal amount of Loans requested to be made in any
Borrowing Request shall be in an integral multiple of U.S.$1,000,000.
(c) Subject to the terms and conditions of this Agreement (including
Clause 5), 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 Funding Percentage of the aggregate
principal amount of the type of 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 Funding
-15-
Percentage of the aggregate principal amount of the relevant type 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, 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 (a) in the case of Tranche A Loans, not less than U.S.$5,000,000
and (b) in the case of either type of Loans, 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) an Interest Period determined pursuant to the provisions
of clause (c) of the definition of such term.
2.4 CANCELLATION
(a) The Borrower may cancel the unutilised portion of the Total Tranche A
Commitment Amount and/or the Total Tranche B 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
either the Total Tranche A Commitment Amount or the Total Tranche B
Commitment Amount shall be in an integral multiple of U.S.$1,000,000.
-16-
Effective upon the cancellation of a portion of the Total Tranche A
Commitment Amount or the Total Tranche B Commitment Amount each
Lender's Tranche A Commitment Amount or, as the case may be, Tranche B
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.
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
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, 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; and
-17-
(ii) all such partial voluntary prepayments shall be in an aggregate
principal amount which is (x) in the case of any such prepayment
of Tranche A Loans, in a minimum amount of U.S.$5,000,000 and (y)
in the case of any such prepayment of either type of Loans, in an
integral multiple of U.S.$1,000,000;
(b) shall, (i) on each of the first five (5) Principal Payment Dates, make
a mandatory repayment of the Tranche A Loans in a principal amount of
U.S.$750,000 and (ii) on each Principal Payment Date occurring
thereafter and prior to the Final Maturity Date, make a mandatory
repayment of the Tranche A Loans in a principal amount of
U.S.$1,930,000;
(c) shall, on each Calculation Date (commencing with the first such date
to occur on or after the first Principal Payment Date) make a
mandatory repayment of the Tranche A Loans outstanding on such date in
a principal amount equal to seventy five percent (75%) of the amount
of (i) the dividends paid by Morila Holdings during the three (3)
month period ending on such Calculation Date in respect of the shares
of capital stock of Morila Holdings owned, directly or indirectly, by
the Borrower, less (ii) U.S.$6,000,000;
(d) shall make a mandatory repayment of the Loans in the amounts, and at
the times, required pursuant to the provisions of Clause 7.2.8(d); and
(e) shall, promptly upon the receipt of the proceeds of the issue of any
share capital (however denominated) of the Borrower, make a mandatory
repayment of the Loans in a principal amount equal to the lesser of:
(i) an amount which is equal to the greater of:
(A) twenty five percent (25%) of the Dollar equivalent
(calculated by reference to the Agent's spot rate of
exchange for the relevant currency) of such net proceeds;
and
(B) U.S.$7,000,000; and
(ii) the proceeds of any such issue.
Any amount in respect of any Loans repaid under clause (d) or (e)
shall be applied in the first place against the Tranche A Loans and
thereafter against the Tranche B Loans. Any amount in respect of any
Tranche A Loans repaid under clause (c), (d) or (e) shall be applied
against subsequent repayments of Tranche A Loans required to be made
pursuant to clause (b) in the inverse order of maturity thereof. 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
4.3. 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
Tranche A Loans repaid or prepaid may not be re-borrowed. The
principal amount of any Tranche B Loans repaid or prepaid may, subject
to the terms and conditions of this Agreement, be re-borrowed.
-18-
3.2 INTEREST PAYMENTS
The Borrower shall make payments of interest in accordance with this
Clause.
3.2.1 RATE
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 as in effect from time to time; PLUS
(b) the Applicable Margin with respect to the relevant type of Loans.
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 with respect to the relevant type of Loans;
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 six (6)-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 or 4.4, 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.
-19-
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
(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.
(b) The Borrower shall pay to the Agent for the account of each Lender
a commitment fee computed at the rate of one and one half percent
(1.50%) PER ANNUM on the undrawn, uncancelled and unreduced amount
of each Lender's Commitment Amount. Accrued commitment fees shall
be payable in arrears on each Calculation Date.
(c) The Borrower hereby acknowledges that any portion of any fee once
paid shall be non-refundable, such portion having already been
earned by performance.
4. INCREASED COSTS; TAXES; MARKET DISRUPTIONS; GENERAL PAYMENT PROVISIONS
4.1 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 that 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 any Lender (or 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.
(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 to such
Loans immediately prior to the giving of such notice. If no such
alternative basis
-20-
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 with respect to the relevant type of
Loans.
4.2 INCREASED COSTS, ETC
The Borrower agrees to reimburse each Lender for any increase (other
than as specifically covered in any other provision of Clause 4) 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 4) in the amount of any sum receivable or earned by such Lender
hereunder in respect of making, continuing or maintaining any portion
of any such Loan (including any reduction in such Lender's (or its
controlling person's) rate of return on its capital), 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 reasons 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.
4.3 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, or maintain any portion of the principal amount of its Loans)
as a result of:
(a) any repayment or prepayment 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,
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.
-21-
4.4 ILLEGALITY
(a) If it becomes unlawful for any 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,
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 it becomes unlawful for any Lender to continue its Loans, then,
upon notice by such Lender to the Agent and the Borrower, the
Borrower shall prepay, within five days after the giving of such
notice the principal amount of and interest on such Lender's then
outstanding Loans (subject, however, to Clause 4.3).
4.5 TAXES
(a) All payments by the Borrower 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 the
event that any withholding or deduction from any payment to be
made by the Borrower hereunder or under any other Loan Document is
required in respect of any Taxes pursuant to any applicable law,
then the Borrower will:
(i) to the extent that any such Taxes are payable by the
Borrower, 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 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 Borrower 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
-22-
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 the Borrower 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, the Borrower 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.
4.6 MITIGATION
(a) In the event that the Borrower is obliged to make payment of any
amount to any Lender Party pursuant to Clause 4.2 or 4.5 or the
circumstances described in any of Clause 4.1(a) or 4.4 shall have
occurred with respect to any Lender Party, 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 4.5 (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
-23-
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.
4.7 PAYMENTS, COMPUTATIONS, ETC
All payments by the Borrower 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 the Borrower to the
Agent for the account of each Lender Party entitled thereto, by
delivery of Dollars in immediately available funds to an 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 (f) 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.
4.8 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 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
-24-
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 relevant Funding 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 the Borrower 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 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 the Borrower in respect
of such relevant payment and shall pay the same to the other
Lender Parties in accordance with their respective relevant
Funding 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.
(b) If any sum (a "RELEVANT SUM") received or recovered by a
Recovering Lender Party in respect of any amount owing to it by
the Borrower 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 Borrower 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 or under any other Loan Document
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)
-25-
or commence and diligently prosecute a separate action or
proceeding to enforce its rights.
4.9 SETOFF
In addition to and not in limitation of any rights or remedies of any
Lender Party under applicable law or 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 and all
balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with such Lender Party in whatever currency or
commodity; PROVIDED, HOWEVER, that any such appropriation and
application shall be subject to the provisions of Clause 4.8.
4.10 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 9.5, 10.3 and 10.4 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 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 Hedging
Agreement) in respect of interest on any Loan;
(c) THIRD, to amounts outstanding to the Lender Parties (or any of
them) under any Loan Document in respect of the principal amount
of any Loan; and
(d) FOURTH, to amounts outstanding to the Lender Parties (or any of
them) in respect of net payment obligations of the Borrower to any
Lender under any Hedging Agreement;
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
-26-
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.
4.11 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 Borrower 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 Borrower shall in addition pay
the reasonable costs of the conversion. The Borrower 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.
5. CONDITIONS PRECEDENT TO MAKING LOANS
5.1 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 initial
Loans.
5.1.1 RESOLUTIONS, ETC
The Agent shall have received from each Obligor, a certificate of its
Secretary or similar officer as to:
(a) resolutions of its Board of Directors or similar body then in full
force and effect authorising the execution, delivery and
performance of this Agreement and each other Loan Document or
other document to be executed by it in connection with the
transactions contemplated hereby and thereby;
-27-
(b) the incumbency and signatures of those of its officers authorised
to act with respect to this Agreement and each other Loan Document
or other document executed or to be executed by it; and
(c) its Organic Documents as then in effect.
5.1.2 SECURITY AGREEMENTS
The Agent shall have received:
(a) counterparts of each Security Agreement duly executed by an
Authorised Representative of each Obligor party thereto (and, in
the case of the Deed of Priorities, each of the other parties
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 (subject, in
the case of the MIJL Security Agreement, to the terms and
conditions of the Deed of Priorities) have been made or, as the
case may be, taken and are in full force and effect; and
(c) (i) copies of share certificates (it being hereby acknowledged
by the parties hereto that the originals of such share
certificates are being held for the account of the lenders
under the Morila Project Financing as holders of a first
priority lien in connection therewith) representing all of
the share capital and voting rights of Morila Holdings owned
by MIJL (being, in the aggregate, not less than fifty
percent (50%) of such share capital and voting rights);
(ii) original share certificates representing all of the share
capital and voting rights of MIJL owned by the Borrower
(being, in the aggregate, not less than one hundred percent
(100%) of such share capital and voting rights); 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 other instruments of transfer in
connection therewith as the Agent shall reasonably require.
5.1.3 HEDGING AGREEMENTS
The Agent shall have received such evidence as it shall require in
connection with the implementation by the Borrower of Hedging
Agreements which are required by Clause 7.1.7 to be in effect on the
initial Borrowing Date.
5.1.4 OPERATING ACCOUNT
The Agent shall have received evidence that the Operating Account has
been established.
-28-
5.1.5 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.
5.1.6 OPINIONS OF LEGAL ADVISERS
The Agent shall have received opinions from:
(a) Ogier & Le Masurier, legal advisers in Jersey to the Obligors,
substantially in the form of Exhibit B-1 attached hereto;
(b) Mourant du Feu & Jeune , legal advisers in Jersey to the Lender
Parties, substantially in the form of Exhibit B-2 attached hereto;
and
(c) Xxxxx, Xxxxx & Xxxxx, legal advisers in England to the Lender
Parties, substantially in the form of Exhibit B-3 attached hereto.
5.1.7 BUSINESS PLAN
The Lenders shall have received a copy of a business plan (as amended,
modified or supplemented from time to time pursuant to Clause 7.1.13,
the "BUSINESS PLAN") in form acceptable to the Lenders detailing the
projected business and financial performance of the RRL Group Companies
for the five (5) year period commencing on the date of this Agreement
(including a detailed five (5) year cash flow projection) and
initialled for purposes of identification by each of the Borrower and
the Agent. Each Lender shall also have received such information as it
shall reasonably require by way of reconciliation of the financial
position (including cash balances) of the RRL Group Companies with the
Business Plan.
5.1.8 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.
5.1.9 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 10.3, to the extent then
invoiced.
5.1.10 POLITICAL RISK INSURANCE
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
-29-
effect, and the Borrower shall have paid to the Agent all premiums due
pursuant to such Political Risk Insurance with respect to the first
twelve (12) month period of coverage of such insurance.
5.1.11 SHARE REPURCHASE
The Agent shall have received a copy of the Offering Circular together
with such evidence as it shall reasonably require by way of
confirmation that (a) the Share Repurchase is being implemented in
accordance with the Offering Circular (including the use of the
proceeds of the Tranche A Loans to fund the Share Repurchase), and (b)
the proceeds of the Share Repurchase being paid by the Borrower to RECL
will be applied to repay in full the 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.
5.1.12 COMPLETION OF MORILA PROJECT
The "Release Date" under (and as defined in) the Loan Agreement
referred to in the definition of the term "Morila Project Financing"
shall have occurred.
5.1.13 REPAYMENT OF INTERCOMPANY DEBT
The Agent shall have received evidence that all amounts outstanding in
connection with the intercompany loan in the principal amount of
U.S.$6,000,000 owed by RECL to the Borrower shall have been repaid, in
full and in cash.
5.2 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.
5.2.1 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC
The representations and warranties of each Obligor set forth in each
Loan Document to which such Obligor 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:
(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.
5.2.2 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 the Borrower on the relevant Borrowing
Date (both immediately before and
-30-
immediately after giving effect to the making of the Loans and the
application of the proceeds thereof) that the statements made in Clause
5.2.1 are true and correct.
5.2.3 SATISFACTORY LEGAL FORM
All documents executed or submitted pursuant hereto by or on behalf of
any person shall be satisfactory in form and substance as to legal
matters to the Lender Parties and their legal advisers 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.
6. 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 the
Borrower represents and warrants unto each Lender Party as set forth in
this Clause. 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 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).
6.1 ORGANISATION, POWER, AUTHORITY, ETC
Each Obligor is a company duly incorporated and validly existing under
the laws of Jersey and 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. Each Obligor 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 each Loan Document executed or to be executed by it and, in the
case of the Borrower, to obtain Loans hereunder.
6.2 DUE AUTHORISATION; NON-CONTRAVENTION
The execution and delivery by each Obligor of each Loan Document
executed or to be executed by it and the performance by each Obligor of
its obligations thereunder, and the receipt of the Loans hereunder:
(a) have been duly authorised by all necessary corporate action on its
part;
(b) do not require any Approval (other than those Approvals which have
been obtained);
(c) do not and will not conflict with, result in any violation of, or
constitute any default under, any provision of any of its Organic
Documents or any applicable law, contractual obligation or
Approval binding on it; and
(d) 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
-31-
than pursuant to this Agreement and any Security Agreement to
which such Obligor is a party).
6.3 VALIDITY, ETC
(a) Each Loan Document executed by each Obligor constitutes 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 5.1.2 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.
6.4 LEGAL STATUS
Neither 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 execution on a judgment in respect
of its obligations under any of the Loan Documents to which it is a
party.
6.5 FINANCIAL INFORMATION
All balance sheets and all statements of operations, shareholders'
equity and cash flow and all other financial information relating to
any RRL Group Company which have been furnished by or on behalf of the
Borrower 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 the Borrower at
31 December, 2000, and the related consolidated statements of
operations, shareholders' equity and cash flow of the Borrower, as
audited by Pricewaterhouse Coopers; and
(b) the consolidated and individual balance sheet of the Borrower at
30 June, 2001, and the related consolidated statements of
operations, shareholders' equity and cash flow of the Borrower,
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 Borrower and the other
persons covered thereby as at the dates thereof and the results of its
operations for the periods then ended. No RRL Group Company has on the
date hereof any material contingent liability or liability for
-32-
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.
6.6 ABSENCE OF DEFAULT
No RRL Group Company 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 RRL Group Company is in default
under any material provision of any instrument to which it is party,
any applicable law or contractual obligation or the terms or conditions
upon which any Approval has been granted.
6.7 LITIGATION, ETC
There is no pending or, to the knowledge of the Borrower, threatened
litigation, arbitration, employment dispute or governmental
investigation or proceeding against any RRL Group Company or to which
any of any such entity's business, operations, properties, assets,
revenues or prospects is subject which could reasonably be expected to
have a Materially Adverse Effect.
6.8 MATERIALLY ADVERSE EFFECT
Since 31 December, 2000 and since the date of the most recent financial
statements relating to the Borrower delivered pursuant to Clause
7.1.1(a), there have been no occurrences which, individually or in the
aggregate, have or may reasonably be expected to have a Materially
Adverse Effect.
6.9 TAXES AND OTHER PAYMENTS
Each RRL Group Company has:
(a) filed all tax returns 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
and no claim for the same exists except as permitted hereunder,
except any such taxes, charges or amounts 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.
6.10 ADEQUACY OF INFORMATION
The factual statements contained in the Business Plan, 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 therein
misleading in any material respect. The financial projections,
estimates and other expressions of view as to future circumstances
contained in the Business Plan are fair and reasonable and, to the best
of the
-33-
Borrower's knowledge, have been arrived at after reasonable enquiry and
have been made in good faith by the persons responsible therefor.
6.11 ENVIRONMENTAL WARRANTIES
(a) Each RRL Group Company has complied with all applicable
Environmental Laws, except where the failure to be in compliance
therewith (i) would not reasonably be expected to have a
Materially Adverse Effect or (ii) 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;
(b) no RRL 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; and
(c) there are no events, conditions or circumstances occurring at or
relating to any facilities or assets of any RRL Group Company
involving any environmental pollution or contamination that have,
or would reasonably be expected to have, a Materially Adverse
Effect.
6.12 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.
7. COVENANTS
7.1 CERTAIN AFFIRMATIVE COVENANTS
The Borrower 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 obligations set forth in this Clause.
7.1.1 FINANCIAL INFORMATION, ETC
The Borrower will furnish, or will cause to be furnished, to the Agent
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, the
consolidated balance sheet of the Borrower and its subsidiaries at
the close of such Fiscal Year and the related consolidated
statements of operations, shareholders' equity and cash flow of
the Borrower 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 other auditors of recognised international standing;
-34-
(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 the Borrower, its consolidated balance sheet
at the close of such Fiscal Quarter, and 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
Borrower;
(c) within thirty (30) Business Days after each Calculation Date, a
Compliance Certificate calculated as of such Calculation Date;
(d) as soon as possible and in any event within three (3) Business
Days after the occurrence of any Default, 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;
(e) as soon as possible (and in any event within three (3) Business
Days) after the Borrower knows or has reason to know of any event
or circumstance which has a reasonable likelihood of having a
Materially Adverse Effect, notice of such event or circumstance
describing the same in reasonable detail;
(f) not more than ten (10) Business Days after the end of each
calendar month, a statement showing in detail all credits to,
debits from, and balances standing to the credit of the Operating
Account for such calendar month;
(g) promptly upon the making, filing or receipt thereof, copies of
each filing and report or document made to or filed with, or
received from, any Governmental Agency, and of each communication
from the Borrower to its shareholders or creditors generally,
which, in any such case, relate to or describe any material matter
in connection with the business, operations, assets, financial
condition or prospects of any RRL Group Company;
(h) upon request by the Agent and not more than ten (10) Business Days
after the close of each calendar month, the "Monthly Mine Report"
as at the close of such calendar month required to be delivered by
Morila S.A. pursuant to the loan agreement referred to in the
definition of the term "Morila Project Financing"; and
(i) 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.
-35-
7.1.2 COMPLIANCE WITH LAWS
The Borrower will, and will cause each RRL Group Company to, comply in
all material respects with all applicable laws.
7.1.3 APPROVALS
The Borrower will, and will cause each Obligor to, obtain, maintain in
full force and effect, and comply in all respects with, all Approvals
as may be required or advisable from time to time for each Obligor to:
(a) execute, deliver, perform and preserve its rights under any of the
Loan Documents executed or to be executed by it; and
(b) 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.
7.1.4 MAINTENANCE OF CORPORATE EXISTENCE, ETC
The Borrower will, and will cause each RRL Group Company to, do and
cause to be done at all times all things necessary to maintain and
preserve its corporate existence and 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.
7.1.5 PAYMENT OF TAXES, ETC
The Borrower will, and will cause each RRL Group Company to, file all
tax returns and reports required by applicable law to have been filed
by it. The Borrower will, and will cause each RRL Group Company to, 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 RRL Group Company to pay or discharge any such tax,
assessment, fee, charge, levy or claim 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.
7.1.6 BOOKS AND RECORDS
The Borrower will, and will cause each RRL Group Company to, keep
financial records and statements reflecting all of its business affairs
and transactions in accordance with GAAP.
7.1.7 HEDGING
(a) At all times on and after the Effective Date (but subject at all
times to Clause 7.2.2(b)), the Borrower shall provide evidence to
the Arrangers to the effect that it or Morila Holdings is
maintaining in full force and effect
-36-
Committed Hedging Agreements or put options from the Borrower or
Morila Holdings or other similar uncommitted transactions, in each
case with any or all of the Arrangers as counterparts, and with
respect to the sale of gold such that (when combined with any
hedging undertaken by any other RRL Group Company or Morila S.A.)
the proceeds thereof (both as to the amount and to the timing) are
sufficient to ensure that, at all times up until and including the
Final Maturity Date, (a) the financial projections contained in
the Business Plan are capable of being complied with, and (b) the
financial covenants contained in Clause 7.2.4 are capable of being
complied with.
(b) The Borrower undertakes to grant, or to procure the grant of,
security to the Lender Parties in respect of the rights and
benefits of the Borrower or Morila Holdings arising under any
documentation entered into in connection with any Hedging
Obligations from time to time entered into by the Borrower or
Morila Holdings PROVIDED, HOWEVER, that no such security interest
will be granted to the Lender Parties in respect of Hedging
Obligations incurred by the Borrower or Morila Holdings prior to
the Effective Date.
7.1.8 USE OF PROCEEDS
The Borrower shall apply the proceeds of (a) the Tranche A Loans to
fund, in part, the cost of the Share Repurchase, and (b) the Tranche B
Loans, for general working capital purposes.
7.1.9 ENVIRONMENTAL COVENANTS
The Borrower will, and will cause each RRL Group Company to:
(a) 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 Environmental Laws and remain in compliance
therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws; and
(b) provide such information and certifications which the Agent may
reasonably request from time to time to evidence compliance with
this Clause.
7.1.10 PARI PASSU
The Borrower will ensure that the payment Obligations of each Obligor
under this Agreement and each other Loan Document to which such Obligor
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.
-37-
7.1.11 ACCURACY OF INFORMATION
The Borrower will ensure that all factual information hereafter
furnished by or on behalf of any RRL Group Company 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 known to the relevant RRL Group Company
necessary to make such information not misleading in any material
respect.
7.1.12 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
in connection with this Agreement (including any such premium or
other amounts payable on or after the date of repayment of the
Loans or on or after the date of termination of this Agreement).
(b) The Borrower hereby acknowledges and agrees that each Lender may
furnish copies of all instruments (including the Loan Documents),
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.
(c) The Borrower will, and will cause each RRL Group Company to,
render all necessary assistance to each Lender Party in connection
with the maintenance of any Political Risk Insurance (and full
coverage thereunder) and the collection of any claim thereunder.
(d) The Borrower will, and will cause each RRL Group Company to, act
in a manner so as to ensure that an exclusion from liability in
respect of any claim of any Lender Party under any policy of
Political Risk Insurance does not arise as a result of any action
or any inaction of any RRL Group Company. Without limiting the
generality of the foregoing, the Borrower will not, and will
ensure that no RRL Group Company will:
(i) provoke or instigate any loss covered by such policy; or
(ii) without the prior written consent of the relevant Lender
Party, accept compensation from the Republic of Mali or any
Governmental Agency thereof in respect of any loss covered
by such policy.
7.1.13 CHANGES TO BUSINESS PLAN
(a) The Borrower shall give prompt notice to the Agent of any change
in any fact, event or circumstance which renders the Business Plan
as then currently in effect materially inaccurate and shall work
in consultation with the Agent to produce a revised Business Plan
which is responsive to such
-38-
changes. A copy of such revised Business Plan shall be promptly
sent to the Agent.
(b) On or prior to each annual anniversary of the Effective Date, the
Borrower shall supply to the Lenders a revised Business Plan
(including a revised cash flow projection) which incorporates any
material changes to the projected business and financial
performance of the RRL Group Companies from that reflected in the
existing version of the Business Plan.
(c) In connection with any revisions to the Business Plan (i) all such
revisions shall be reasonably acceptable to the Lenders, and (ii)
the Lenders shall be entitled to appoint an independent technical
adviser to assist in the evaluation of any such proposed
revisions.
(d) The production of any revised Business Plan pursuant to this
Clause shall not, and shall not be deemed to, imply any waiver of
any Default which might be indicated by such revised Business
Plan.
7.1.14 OPERATING ACCOUNT
(a) The Borrower will ensure that on all dates the sum of (i) the
undrawn and immediately available portion of the Total Tranche B
Commitment Amount, plus (ii) the balance standing to the credit of
the Operating Account shall be not less than the sum of:
(x) the aggregate principal amount of Loans scheduled to be
repaid pursuant to Clause 3.1(b) during the three (3) 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
(y) the aggregate amount of interest scheduled to accrue on the
Loans during the three (3) 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
(z) the aggregate amount of premium accruing in connection with
the Political Risk Insurance during the three (3) month
period commencing on such date.
(b) The Borrower will ensure that all dividends received by it,
directly or indirectly, from Morila Limited are paid directly into
the Operating Account.
7.2 CERTAIN NEGATIVE COVENANTS
The Borrower agrees with each Lender Party that, until all Commitments
have terminated and all Obligations have been paid and performed in
full, the Borrower will perform its obligations set forth in this
Clause.
-39-
7.2.1 BUSINESS ACTIVITIES; FISCAL YEAR
The Borrower will not:
(a) engage in any business activity other than (i) as a holding
company for the ownership, directly or indirectly, of all or a
portion of the issued and outstanding share capital of
subsidiaries engaged in exploration, development, mining and
related activities in connection with the mining of gold
incidental thereto and/or (ii) exploration activities in
connection with the mining of gold or other metals; or
(b) change its Fiscal Year.
7.2.2 INDEBTEDNESS
The Borrower will not, and will not permit any other RRL Group Company
to, 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) indebtedness in respect of the Hedging Obligations implemented
pursuant to Clause 7.1.7, or other Hedging Obligations incurred by
the Borrower or Morila Holdings in the ordinary course of
business; PROVIDED, HOWEVER, that any Committed Hedging Agreements
shall only be entered into by the Borrower or Morila Holdings with
the consent of the Lenders;
(c) indebtedness in respect of the Morila Project Financing and other
indebtedness permitted to be incurred pursuant to the terms and
conditions of the loan agreement referred to in the definition of
such term;
(d) indebtedness in an aggregate principal amount not in excess of the
CFA equivalent of U.S.$3,000,000 incurred by way of overdraft
facilities extended to the Borrower by Banque de Developpement du
Mali;
(e) 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 7.1.5;
(f) 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
(g) indebtedness in respect of minimum expenditure commitments made by
the Borrower with respect to (i) maintaining prospecting permits
issued by a Governmental Agency and (ii) the Borrower's joint
venture obligations which in the aggregate do not exceed
U.S.$3,000,000 with respect to any one joint venture agreement.
-40-
7.2.3 LIENS
The Borrower will not, and will not permit any other RRL Group Company
to, 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;
(c) 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) 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) liens incurred to secure the Morila Project Financing and other
liens permitted to be incurred pursuant to the terms and
conditions of the loan agreement referred to in the definition of
such term.
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.
7.2.4 FINANCIAL CONDITION
The Borrower will not permit:
(a) Consolidated Net Worth to be, at any Calculation Date, less than
U.S.$15,000,000; or
(b) the Consolidated Debt Service Coverage Ratio to be, for any three
month period ending on a Calculation Date, less than 150%.
-41-
7.2.5 CAPITAL EXPENDITURES, ACQUISITIONS, ETC.
The Borrower will not, and will not permit any other RRL Group Company
to, make or commit to make any costs in respect of Capital
Expenditures, acquisitions of assets in excess of an aggregate
consideration (for all such assets and all RRL Group Companies) of
U.S.$1,000,000 per annum or exploration expenditure other than such
costs which are identified in the Business Plan; PROVIDED, HOWEVER,
that Morila SA. may make or commit to make any such costs to the extent
that the same are permitted to be incurred pursuant to Clause 8.2.5 of
the Loan Agreement executed pursuant to the Morila Project Financing.
7.2.6 RESTRICTED PAYMENTS, ETC
Subject to the implementation of the Share Repurchase in accordance
with the Offering Circular, the Borrower will not:
(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; or
(c) make any deposit for any of the foregoing purposes or otherwise
discharge any indebtedness incurred by any affiliate other than a
subsidiary of the Borrower.
7.2.7 MERGERS, ETC
The Borrower will not, and will not permit any other RRL Group Company
to, enter into any amalgamation, demerger, merger or reconstruction.
7.2.8 ASSET DISPOSITIONS, ETC
The Borrower will not, and will not permit any other RRL Group Company
to, 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 output from the Morila Project made in the
ordinary course of business;
(b) such disposition is of obsolete assets which are no longer used or
required by the relevant RRL Group Company or of assets which are
to be replaced;
-42-
(c) the net book value of all assets disposed of by all RRL Group
Companies excluding, however, assets disposed of pursuant to
clause (a) or (b)) in the same Fiscal Year does not exceed
U.S.$5,000,000 (or the equivalent thereof in any other currency),
respectively, in the aggregate and fair value in cash or other
assets is received therefor; or
(d) such disposition is of an asset other than those referred to in
clauses (a) to (c), fair value in cash is received therefor, and
the Dollar equivalent (calculated by reference to the Agent's spot
rate of exchange for the relevant currency) of the net proceeds of
sale thereof are, immediately upon receipt, applied in repayment
of the outstanding principal amount of the Loans; PROVIDED,
HOWEVER, that any disposition by the Borrower of its interest in
the Syama Project may be made in consideration of the receipt of
shares and no such consideration shall be required to be applied
in repayment of the outstanding principal amount of the Loans as
aforesaid. For the avoidance of doubt, any disposition, in whole
or in part, of the Borrower's interest in the Syama Project shall
(unless such disposition shall fall within the scope of Clause
7.2.8(c)) be subject to this clause; but PROVIDED, FURTHER,
HOWEVER, that any such shares shall at all times be charged to the
Lender Parties as additional security for the Obligations of the
Borrower pursuant to documentation, and on terms and conditions
satisfactory to the Lenders.
7.2.9 BANK ACCOUNTS
The Borrower will 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 Operating Account except (a)
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), and (b) accounts with an
aggregate cash balance not in excess of U.S.$500,000 at any one time.
7.2.10 MORILA PROJECT FINANCING
The Borrower will not, and will not permit any RRL Group Company to,
amend, modify or supplement any term or provision of:
(a) the documentation relating to the Morila Project Financing;
(b) the Joint Venture Agreement, dated 29 May, 2000, between AngloGold
Limited (or its nominee) and the Borrower; or
(c) the "Proposed Dividend Policy" adopted on 20 July, 2001 by Morila
S.A. and on 19 July, 2001 by Morila Limited,
which, in any such case, might (x) prevent the payment of any dividend
by Morila S.A. or Morila Limited, (y) adversely affect the cash flow
received by the Borrower in connection with the Morila Project or (z)
otherwise adversely affect the ability of any Obligor to perform or
comply with any of its obligations under the Loan Documents.
-43-
8. EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT
The term "EVENT OF DEFAULT" shall mean any of the events set forth in
this Clause.
8.1.1 NON-PAYMENT OF OBLIGATIONS
The Borrower:
(a) 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
(b) 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).
8.1.2 NON-PERFORMANCE OF CERTAIN COVENANTS
Any Obligor shall default in the due performance and observance of any
of its obligations under Clause 7.1.4, 7.1.8, 7.1.10, 7.1.12(d) or 7.2.
8.1.3 NON-PERFORMANCE OF OTHER OBLIGATIONS
Any Obligor 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 8.1.1 or 8.1.2), and, if capable of cure or remedy, such default
shall continue unremedied for a period of thirty (30) days.
8.1.4 BREACH OF REPRESENTATION OR WARRANTY
Any representation or warranty of any Obligor made hereunder or under
any other Loan Document executed by it or in any other document
delivered by or on behalf of such Obligor 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.
8.1.5 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
8.1.1) of the Borrower or any other RRL Group Company, having a
principal amount, individually or in the aggregate, in excess of
U.S.$1,000,000 (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 any indebtedness (other
than indebtedness described in Clause 8.1.1) of any RRL Group
Company if:
-44-
(i) 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; or
(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.
8.1.6 BANKRUPTCY, INSOLVENCY, ETC
(a) Any RRL 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 RRL 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 RRL 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; PROVIDED,
HOWEVER, that this clause shall not be applicable to an RRL Group
Company (other than the Borrower, Morila Holdings or Morila S.A.)
whose sole purpose and business activity is exploration in
connection with the mining of gold or other metals and whose net
worth (as reasonably determined by the Agent) is not in excess of
U.S.$1,000,000 (and, for the avoidance of doubt, this proviso
shall not apply to any RRL Group Company which is engaged in the
exploitation of gold or other metals); 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 RRL Group Company in any jurisdiction.
8.1.7 IMPAIRMENT OF LOAN DOCUMENTS
Any 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;
any Obligor 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 6.3(b), ranks first in priority.
8.1.8 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 RRL Group Company and either:
-45-
(a) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
(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.
8.1.9 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 RRL Group Company
or any affiliate of any thereof, the provider of the
Political Risk Insurance 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 Morila S.A. 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
Morila S.A. 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 Morila S.A. from carrying on its obligations
under the Morila Project Financing, 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.
8.1.10 CHANGE IN CONTROL
(a) Any Change in Control shall occur; or
(b) the ordinary shares of the Borrower shall cease to be listed on
the International Stock Exchange of London.
8.1.11 MATERIALLY ADVERSE EFFECT
Any event shall occur or condition shall exist which constitutes a
Materially Adverse Effect.
-46-
8.2 ACTION IF BANKRUPTCY
If any Event of Default described in Clause 8.1.6 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 Hedging Agreement to which any Lender is
a party) shall automatically be and become immediately due and payable,
without notice or demand.
8.3 ACTION IF OTHER EVENT OF DEFAULT
If any Event of Default (other than any Event of Default described in
Clause 8.1.6) 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 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 relevant unpaid principal amount of the
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. THE AGENT AND THE ARRANGERS
9.1 APPOINTMENT
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 of the 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,
-47-
as security trustee to hold the benefit of the security granted
pursuant to the relevant Security Agreements).
9.2 RELIANCE, ETC
The Agent may:
(a) assume that:
(i) any representation made by any Obligor in connection with
any Loan Document is true;
(ii) no Default has occurred; and
(iii) no Obligor is in breach of or in default of its obligations
under any Loan Document to which it is a party unless the
Agent has actual knowledge or actual notice to the contrary;
(b) 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;
(c) rely as to any matters of fact which might reasonably be expected
to be within the knowledge of any Obligor upon a certificate
signed by or on behalf of such Obligor;
(d) rely upon any communication or document believed by it to be
genuine;
(e) refrain from exercising any right, power or discretion vested in
it as an agent under any 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;
(f) 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 any 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
(g) 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.
-48-
9.3 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 under any 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 under any 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 under any
Loan Document to which it is a party.
9.4 LIMITATION ON ACTIONS
Notwithstanding anything to the contrary expressed or implied in any
Loan Document, the Agent shall not:
(a) be bound to enquire as to:
(i) whether or not any representation made by any Obligor in
connection with any Loan Document is true;
(ii) the occurrence or otherwise of any Default;
(iii) the performance by any Obligor of its obligations under any
Loan Document; or
(iv) any breach of, or default by any Obligor of, its obligations
under any 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 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
in the Loan Documents.
-49-
9.5 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 under the Loan
Documents.
9.6 EXCULPATION
(a) Neither the Agent nor the Arrangers accept any responsibility for
the accuracy and/or completeness of any information supplied by or
on behalf of any RRL Group Company in connection with any Loan
Document or for the legality, validity, effectiveness, adequacy or
enforceability of any Loan Document and neither the Agent nor the
Arrangers shall be under any liability as a result of taking or
omitting to take any action in relation to any Loan Document
(including any such action taken or omitted to be taken prior to
the Effective Date in connection with the arrangement and
implementation of the financing facilities contemplated by the
Loan Documents), save in the case of gross 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, gross
negligence or wilful misconduct.
9.7 WAIVER
Each of the Lender Parties agrees that it will not assert or seek to
assert against any director, officer, employee, agent or adviser of the
Agent or any Arranger any claim it might have against the Agent or an
Arranger in respect of the matters referred to in Clause 9.6.
9.8 BANKING ACTIVITIES
Each of the Agent and the Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with, any RRL Group Company.
9.9 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
-50-
consent of the Borrower (such consent not to be unreasonably
withheld or delayed), 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 any Loan Document then the Required
Lenders may, with the prior written consent of the Borrower (such
consent not to be unreasonably withheld or delayed), 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.
9.10 DISCHARGE
If a successor to the Agent is appointed under the provisions of Clause
9.9, then:
(a) the retiring Agent shall be discharged from any further
obligations under the Loan Documents but shall remain entitled to
the benefit of the provisions of this Clause 9 and of Clauses 10.3
and 10.4; 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.
9.11 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 RRL Group Company and, accordingly, each Lender Party warrants to
each of the Agent and the Arrangers that it has not relied and will not
hereafter rely on the Agent or the 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
RRL Group Company 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 or an Arranger); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of any RRL Group Company.
-51-
9.12 THE AGENT AND THE ARRANGERS
In acting as the Agent or as an Arranger, each relevant Lender Party
shall be treated as a separate entity from any other division of such
Lender Party (or similar units of such Lender Party in any subsequent
reorganisation) or its affiliates and, without limiting the generality
of the foregoing, in the event that any of such Lender Party's
divisions (or similar units) or affiliates should act for any RRL Group
Company in an advisory capacity in relation to any other matter, any
information given by any RRL Group Company 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 Borrower; and notwithstanding
anything to the contrary expressed or implied herein and without
limiting the generality of the foregoing, such Lender Party shall not
as between itself and the other Lender Parties be bound to disclose to
any other Lender Party or other person any information supplied by any
RRL Group Company to such Lender Party in its capacity as the Agent or
an Arranger hereunder which is identified by such RRL Group Company at
the time of supply as being unpublished price sensitive information
relating to a proposed transaction by a RRL Group Company to such
Lender Party and supplied solely for the purpose of evaluating in
consultation with such Lender Party in its capacity as advisor whether
such transaction might require a waiver or amendment to any of the
provisions contained in any Loan Document.
9.13 INTERPRETATION
As used in this Clause, "ACTUAL KNOWLEDGE" and "ACTUAL NOTICE" of the
Agent and the Arrangers means actual knowledge or notice of those
officers of the Agent , or, as the case may be, an Arranger, from time
to time responsible for the performance by the Agent, or, as the case
may be, an Arranger, of its obligations under the Loan Documents.
10. MISCELLANEOUS
10.1 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
party thereto, 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, 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;
-52-
(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 or any
Arranger in their respective capacities as such shall be made
without the consent of the Agent or, as the case may be, such
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) modify any term of this Agreement or any other Loan Document
expressly relating to the priority of payment of any obligations
of the Borrower under any Hedging Agreement to which any Lender is
a party shall be made without the consent of such Lender; or
(g) 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 any 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 the Borrower in any
case shall entitle it to any notice or demand in similar or other
circumstances. No waiver or approval by any Lender Party under any 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.
10.2 NOTICES
All notices and other communications provided to any party hereto under
any 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).
-53-
10.3 COSTS AND EXPENSES
(a) The Borrower agrees to pay on demand:
(i) all reasonable fees and expenses (including legal fees) of
the Agent and the Arrangers incurred in connection with the
negotiation, preparation, execution and delivery of each
Loan Document, including schedules and exhibits, whether or
not the transactions contemplated hereby are consummated;
(ii) all reasonable fees and expenses (including legal fees) of
the Agent and the Arrangers incurred in connection with any
amendments, waivers, consents, supplements or other
modifications to any Loan Document as may from time to time
hereafter be required;
(iii) all reasonable fees and related expenses of any independent
technical adviser employed by the Lenders, to review the
Business Plan (including the review of any changes made
thereto as referred to in Clause 7.1.13 (c) (ii)); and
(iv) any stamp or other taxes incurred in connection with the
preparation and review of the form of any instrument
relevant to any 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 of any Loan Document.
(b) The Borrower agrees to reimburse each Lender Party on demand for
all reasonable fees and expenses (including legal fees) 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.
(c) 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.
10.4 INDEMNIFICATION
In consideration of the execution and delivery of this Agreement by
each Lender Party and the extension of the Commitments, the Borrower
indemnifies, exonerates and holds 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
legal fees on a full indemnity basis and including any amount paid by
any Lender to the Agent
-54-
pursuant to Clause 9.5) (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 any Loan Document by any of the
Indemnified Parties (including any action brought by or on behalf
of the Borrower or any other person as the result of any
determination by any Lender pursuant to Clause 5 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 RRL
Group Company 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 RRL Group Company 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 RRL Group
Company);
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, the
Borrower hereby agrees to make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
10.5 SURVIVAL
The obligations of the Borrower under Clauses 3.3, 4.2, 4.3, 4.5, 10.3
and 10.4 and the obligations of the Lenders under Clause 9.5, shall, in
each case, survive any termination of this Agreement. The
representations and warranties made by the Borrower in each Loan
Document to which it is a party shall survive the execution and
delivery of such Loan Document.
10.6 SEVERABILITY
Any provision of any 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 such Loan Document or affecting the
validity or enforceability of such provision in any other jurisdiction.
-55-
10.7 HEADINGS
The various headings of each Loan Document are inserted for convenience
only and shall not affect the meaning or interpretation of such Loan
Document or any provisions hereof or thereof.
10.8 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 the
Borrower, each Arranger, and each Lender (or notice thereof
satisfactory to the Agent) shall have been received by the Agent.
10.9 GOVERNING LAW
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.
10.10 ASSIGNMENTS AND TRANSFERS BY THE BORROWER
The Borrower shall not be entitled to assign or transfer all or any of
its rights, benefits and obligations under any Loan Document except
with the consent of the Lenders.
10.11 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Any Lender may at any time assign all or any of its rights and benefits
under the Loan Documents to another bank or financial institution in
accordance with this Clause.
10.11.1 ASSIGNMENTS
Any Lender may, with the prior consent of the Borrower (such consent
not to be unreasonably withheld or delayed), at any time assign and
transfer, all or, subject to Clause 10.11.3, a portion of its rights
and benefits under the Loan Documents 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
10.11.1 shall be effective only after delivery to and acceptance by,
the Agent of an instrument, in form and substance satisfactory to it,
executed by the assignor Lender and the assignee
-56-
Lender stating the portion of the Commitment Amount assigned to the
assignee Lender and the assignee Lender's administrative details.
10.11.2 TRANSFERS
As an alternative to Clause 10.11.1, if any Lender (a "TRANSFEROR
LENDER") wishes to transfer all or, subject to Clause 10.11.3, a
portion of its rights, benefits and obligations under the Loan
Documents 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 or delayed), 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
under each Loan Document, each Obligor, the Agent 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, the Agent 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, the Agent and such
Transferee Lender have assumed and acquired the same in place of
such Transferor Lender; and
(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.
10.11.3 MINIMUM AMOUNT
Any assignment or transfer pursuant to Clause 10.11.1 or 10.11.2 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.
10.11.4 SECURITY AGREEMENTS
Within ten (10) Business Days after an assignment or transfer pursuant
to this Clause 10.11 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, the Borrower will, and will
cause each other Obligor to, enter into such documentation as the
assignee Lender or the Transferee Lender shall reasonably request so as
to ensure that the liens created by the Security Agreements secures
-57-
the Obligations of the Borrower to such assignee Lender or Transferee
Lender, as the case may be.
10.11.5 CONSENT
Any assignment or transfer pursuant to Clause 10.11 may be effected
only with the prior written consent of the Agent.
10.11.6 RELIANCE ON INSTRUMENTS
The Agent shall be fully entitled to rely on any written instrument
delivered to it in accordance with Clause 10.11.1 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.
10.11.7 SUB-PARTICIPATIONS
Nothing in this Clause 10.11 shall, or shall be deemed to, prevent any
Lender from selling any participation or similar interest in its
Commitment or Loans and the Borrower hereby acknowledges and agrees
that in connection with any such sale, the seller of any such
participation shall be entitled to claim under the provisions of Clause
4.2, 4.3, 4.4, 4.5, 4.8, 4.11 10.3 and 10.4 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 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.
10.11.8 FEE
On the date upon which an assignment or transfer takes effect pursuant
to Clause 10.11, 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).
10.11.9 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 supply to the relevant assignee Lender, Transferee Lender or
purchaser such information
-58-
in its possession with respect to such Lender's Loans and Commitment
and the Loan Documents as such Lender shall deem appropriate.
10.12 OTHER TRANSACTIONS
Without prejudice to the provisions of Clause 9.8, nothing contained
herein shall preclude any Lender Party from engaging in any
transaction, in addition to those contemplated by any Loan Document,
with any RRL Group Company or any of their respective affiliates in
which any RRL Group Company or such affiliate is not restricted hereby
from engaging with any other person.
10.13 FORUM SELECTION AND CONSENT TO JURISDICTION
(a) The parties hereto hereby irrevocably agree that, for the benefit
of the Lender Parties only, the courts of England shall have
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 the Loan Documents and, for such purposes, the
Borrower irrevocably submits to the exclusive jurisdiction of such
courts.
(b) The Borrower 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 any Loan Document and agrees not to claim that
any such court is not a convenient or appropriate forum.
(c) The Borrower 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 the Borrower 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.
10.14 ENTIRE AGREEMENT
The Loan Documents constitute the entire agreement and
understanding of the parties with respect to the subject matter
thereof and supersede any previous agreement, written or oral,
between the parties relating to the subject matter thereof.
-59-
THE BORROWER
RANDGOLD RESOURCES LIMITED by: ) /s/ XXXXX XXXXXXXX
) -----------------------------
Signature
XXXXX XXXXXXXX
-----------------------------
Name Printed
DIRECTOR
-----------------------------
Title
Address for Notices: x/x 0 Xxxxx Xxxxxx
Xxxxx
Xxxxxxxxxxxx
X.X. Xxx 00000
Xxxxxxxxx 0000
Xxxxx Xxxxxx
Facsimile No.: x00-00-0000000
with a copy to
La Xxxxx Xxxxxxxx
Xx. Xxxxxx
Xxxxxx XX0 0XX
Channel Islands
Facsimile No.: x00-0000-00000
Attention: The Financial Director
-60-
THE LENDERS AND THE ARRANGERS:
Commitment Amount:
Tranche A U.S.$8,333,333.33
Tranche B U.S.$3,333,333.33
per pro N M ROTHSCHILD & SONS LIMITED by: ) /s/ D.W. STREET
) -----------------------------
Signature
D.W. STREET
-----------------------------
Name Printed
ASSISTANT DIRECTOR
-----------------------------
Title
/s/ X. XXXXXXX
-----------------------------
Signature
X. XXXXXXX
-----------------------------
Name Printed
DIRECTOR
-----------------------------
Title
Address for Notices: Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx
XX0X 0XX
Facsimile No.: x00 00 0000 0000
Attention: Xxxxx Street/Xxxxxx Xxxxx
Dollar Lending Office: The Chase Manhattan Bank
1 Chase Manhattan Plaza
New York, New York
U.S.A.
For the account of: N M Rothschild & Sons Limited
Account No.: 00-0-000000
Facsimile No.: x00 00 0000 0000
Telex No.: 888031
Attention: Xxxxxx Xxxx
-00-
Xxxxxxxxxx Xxxxxx:
Tranche A U.S.$8,333,333.33
Tranche B U.S.$3,333,333.33
Signed by XXXXX XXXXXX for and on ) /s/ XXXXX XXXXXX
behalf of SOCIETE GENERALE under ) -----------------------------
a power of attorney dated 14TH SEPTEMBER 2001 Signature
XXXXX XXXXXX
-----------------------------
Name Printed
-----------------------------
Title: Attorney
Address for Notices:
XX Xxxxx
00 Xxxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 00 0000 0000
Attention: Xxxxx Xxxxxx/Xxxxxxx Xxxxx
Dollar Lending Office: S X Xxxxx
00 Xxxxx Xxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 00 0000 0000
Attention: Xxxxx Xxxxxx/Xxxxxxx Xxxxx
-00-
Xxxxxxxxxx Xxxxxx:
Tranche A U.S.$8,333,333.33
Tranche B U.S.$3,333,333.33
STANDARD BANK LONDON LIMITED by: ) /s/ X.X. XXXXXXX
) -----------------------------
Signature
X.X. XXXXXXX
-----------------------------
Name Printed
HEAD OF MINING FINANCE
-----------------------------
Title
/s/ XXXXXX XXXX
-----------------------------
Signature
XXXXXX XXXX
-----------------------------
Name Printed
HEAD OF RESOURCE BANKING
-----------------------------
Title
Address for Notices: 00 Xxxxxxx Xxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxx XX0X 0XX
Facsimile No.: x00 00 0000 0000
Attention: Xxxxx Xxxxxx
Dollar Lending Office: Barclays Bank Plc
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
X.X.X.
ABA No.: 000000000
-63-
THE AGENT
per pro N M ROTHSCHILD & SONS LIMITED by: ) /s/ D.W. STREET
) -----------------------------
Signature
D.W. STREET
-----------------------------
Name Printed
ASSISTANT DIRECTOR
-----------------------------
Title
/s/ X. XXXXXXX
-----------------------------
Signature
X. XXXXXXX
-----------------------------
Name Printed
DIRECTOR
-----------------------------
Title
Address for Notices: Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx
XX0X 0XX
Facsimile No.: x00 00 0000 0000
Attention: Xxxxx Street/Xxxxxx Xxxxx
-64-
