EXHIBIT 4.27
CONFORMED COPY
Dated 1 May 2007
(1) RANDGOLD RESOURCES (SOMILO) LIMITED as the Borrower
(2) RANDGOLD RESOURCES LIMITED as a Guarantor
(3) VARIOUS BANKS AND OTHER FINANCIAL INSTITUTIONS as the Lenders
(4) N M ROTHSCHILD & SONS LIMITED as the Mandated Lead Arranger
(5) N M ROTHSCHILD & SONS LIMITED as the Agent
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U.S.$60,000,000
REVOLVING CREDIT FACILITY AGREEMENT
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[▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & MAW LOGO]
LONDON
CONTENTS
CLAUSE PAGE
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1. DEFINITIONS AND INTERPRETATION..................................... 1
1.1 Defined Terms.............................................. 1
1.2 Additional Definitions..................................... 14
1.3 Interpretation............................................. 17
1.4 Use of Defined Terms....................................... 18
1.5 Cross-References........................................... 18
1.6 Accounting and Financial Determinations.................... 18
1.7 Change in Accounting Principles............................ 18
1.8 General Provisions as to Certificates and Opinions, etc.... 19
2. COMMITMENTS; BORROWING AND INTEREST PERIOD SELECTION
PROCEDURES, ETC.................................................... 19
2.1 Commitments................................................ 19
2.2 Procedure for Making Loans................................. 19
2.3 Continuation Elections..................................... 20
2.4 Cancellation............................................... 21
2.5 Records.................................................... 21
2.6 Funding.................................................... 21
3. PRINCIPAL PAYMENTS; INTEREST....................................... 22
3.1 Principal Payments......................................... 22
3.2 Interest Payments.......................................... 22
3.3 Rate....................................................... 22
3.4 Post-Maturity Rate......................................... 23
3.5 Payment Dates.............................................. 23
3.6 Fees....................................................... 23
4. INCREASED COSTS; TAXES; MARKET DISRUPTIONS......................... 24
4.1 Dollars Unavailable........................................ 24
4.2 Increased Costs as a result of Regulatory Change........... 25
4.3 Funding Losses............................................. 25
4.4 Illegality................................................. 25
4.5 Taxes...................................................... 26
4.6 Mitigation................................................. 27
5. CONDITIONS PRECEDENT TO MAKING LOANS............................... 28
5.1 Initial Loans.............................................. 28
5.2 All Loans.................................................. 30
6. REPRESENTATIONS AND WARRANTIES..................................... 31
6.1 Organisation, Power, Authority, etc........................ 31
6.2 Due Authorisation; Non-Contravention....................... 31
CONTENTS
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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 Mining Rights, Project Assets.............................. 34
6.13 Pari Passu................................................. 34
7. INFORMATION UNDERTAKINGS........................................... 35
7.1 Financial Information, etc................................. 35
8. FINANCIAL COVENANTS................................................ 36
8.1 Financial Condition........................................ 36
9. GENERAL UNDERTAKINGS............................................... 37
9.1 Compliance with Laws....................................... 37
9.2 Approvals.................................................. 37
9.3 Maintenance of Corporate Existence, etc.................... 37
9.4 Payment of Taxes, etc...................................... 37
9.5 Books and Records; Access to Premises...................... 38
9.6 Risk Management............................................ 38
9.7 Use of Proceeds............................................ 38
9.8 Environmental Covenants.................................... 38
9.9 Pari Passu................................................. 39
9.10 Accuracy of Information.................................... 39
9.11 Insurance.................................................. 39
9.12 Business Activities; Fiscal Year........................... 40
9.13 Indebtedness............................................... 40
9.14 Liens...................................................... 41
9.15 Capital Expenditures....................................... 42
9.16 Acquisitions............................................... 43
9.17 Mergers, etc............................................... 43
9.18 Asset Dispositions, etc.................................... 43
10. EVENTS OF DEFAULT.................................................. 44
10.1 Events of Default.......................................... 44
10.2 Action if Bankruptcy....................................... 47
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CONTENTS
CLAUSE PAGE
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10.3 Action if Other Event of Default........................... 47
11. THE AGENT AND THE MLA.............................................. 47
11.1 Appointment................................................ 47
11.2 Reliance, etc.............................................. 48
11.3 Actions.................................................... 49
11.4 Limitation on Actions...................................... 49
11.5 Indemnification by Lenders................................. 50
11.6 Exculpation................................................ 50
11.7 Waiver..................................................... 50
11.8 Banking Activities......................................... 51
11.9 Resignation and Replacement................................ 51
11.10 Discharge.................................................. 51
11.11 Credit Decisions........................................... 52
11.12 The Agent and the MLA...................................... 52
11.13 Interpretation............................................. 52
11.14 Agent to Conduct Proceedings............................... 53
11.15 Decisions by the Lenders................................... 53
11.16 Manner of Reference to the Lenders......................... 53
11.17 Know Your Customer Checks.................................. 53
11.18 No fiduciary duties........................................ 54
11.19 Role of the MLA............................................ 54
11.20 Security Documents......................................... 54
11.21 Distribution of proceeds of enforcement.................... 55
12. GENERAL PAYMENT PROVISIONS AND SET-OFF............................. 55
12.1 Payments................................................... 55
12.2 Redistribution of Payments................................. 56
12.3 Setoff..................................................... 57
12.4 Application of Proceeds.................................... 58
12.5 Currency of Payment........................................ 58
12.6 Computations............................................... 59
12.7 Disruption to Payment Systems etc.......................... 59
13. MISCELLANEOUS...................................................... 60
13.1 Waivers, Amendments, etc................................... 60
13.2 Notices.................................................... 61
13.3 Costs and Expenses......................................... 61
13.4 Indemnification............................................ 62
13.5 Survival................................................... 63
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CONTENTS
CLAUSE PAGE
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13.6 Severability............................................... 63
13.7 Headings................................................... 63
13.8 Counterparts, Effectiveness, etc........................... 63
13.9 Governing Law.............................................. 63
13.10 Assignments and Transfers by the Borrower and RRL.......... 64
13.11 Assignments and Transfers by the Lenders................... 64
13.12 Other Transactions......................................... 66
13.13 Confidentiality............................................ 66
13.14 Forum Selection and Consent to Jurisdiction................ 67
13.15 Entire Agreement........................................... 68
13.16 Waiver of Immunity......................................... 68
13.17 Third Party Rights......................................... 68
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THIS REVOLVING CREDIT FACILITY AGREEMENT, dated 1 May 2007 (as amended, modified
or supplemented in accordance with the terms hereof, this "AGREEMENT"), between:
(1) RANDGOLD RESOURCES (SOMILO) LIMITED, (the "BORROWER");
(2) RANDGOLD RESOURCES LIMITED ("RRL");
(3) the banking and/or financial institutions referred to on the signature
pages hereof as the lenders (collectively, the "LENDERS");
(4) N M ROTHSCHILD & SONS LIMITED in its capacity as the mandated lead
arranger of the financing contemplated by this Agreement (the "MLA"); and
(5) 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 Guarantees or the
Security Agreements.
"AGREED ENVIRONMENTAL REQUIREMENTS" means:
(a) any laws, rules or regulations of whatsoever nature (whether federal,
provincial or otherwise) relating to environmental, health and safety
or similar issues from time to time in effect and having application
to any RRL Group Company;
(b) the World Bank Group (including IFC and MIGA) Environmental Health
and Safety Policies as from time to time in effect;
(c) the "Equator Principles" as from time to time in effect; and
(d) the "Principles and Standards of Practice" contained in the
International Cyanide Management Code.
"AGREED FORM" means in respect of any instrument:
(a) in a form executed by the relevant parties and dated the date hereof;
or
(b) if not executed and dated the date hereof, substantially in the form
initialled on the date hereof by the Agent (or Mayer, Brown, ▇▇▇▇ &
Maw LLP on its behalf) and an Authorised Representative of RRL; or
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(c) in such form as the Agent and each Obligor party thereto (or, if no
Obligor is party thereto, RRL) agree is the Agreed Form of such
instrument for the purposes of this Agreement,
and the Agreed Form of any instrument described in clause (c) shall have
precedence over and replace the Agreed Form of such instrument described
in clauses (a) or (if specified in the form referred to in clause (c))
(b).
"AGREEMENT" is defined in the preamble.
"APPLICABLE MARGIN" means:
(a) during the period commencing on the Effective Date and ending on the
date which is six (6) months thereafter, one and one half percent
(1.50%) per annum; and
(b) thereafter, and during each Applicable Margin Calculation Period, the
rate set forth below opposite the relevant Consolidated Total Debt:
Consolidated EBITDA Ratio for the one (1) year period ending on the
Quarterly Calculation Date most immediately preceding the
commencement of such Applicable Margin Calculation Period:
CONSOLIDATED TOTAL DEBT: APPLICABLE MARGIN
CONSOLIDATED EBITDA RATIO
Less than 0.5% 1.40% per annum
Greater than or equal to 0.5%
but less than 1.5% 1.50% per annum
Greater than or equal to 1.5% 1.60% per annum;
provided, however, that if Consolidated EBITDA for any one (1) year
period ending on the Quarterly Calculation Date most immediately
preceding the first day of any Applicable Margin Calculation Period
shall be negative, the Applicable Margin for such Applicable Margin
Calculation Period shall be one and three fifths percent (1.60%) per
annum.
Any calculation of the Applicable Margin for purposes of clause (b)
(including the proviso thereto) in connection with any Applicable Margin
Calculation Period shall be calculated as at the Quarterly Calculation
Date most immediately preceding the commencement of such Applicable Margin
Calculation Period on the basis of the Compliance Certificate delivered
pursuant to Clause 7.1(e)(Financial Information, etc.) with respect to
such Quarterly Calculation Date. In the event that such Compliance
Certificate shall not have been delivered in a timely manner in accordance
with Clause 7.1(e) (Financial Information, etc.), the Applicable Margin
for the Applicable Margin Calculation Period commencing on the Applicable
Margin Calculation Date by which such Compliance Certificate was required
to be delivered shall be one and three fifths percent (1.60%) per annum.
Following delivery of any Compliance Certificate by the Borrower in
accordance with Clause 7.1(e) Financial Information, etc), the Agent shall
use reasonable endeavours to notify the Borrower of
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the Applicable Margin for the next Applicable Margin Calculation Period at
least three (3) Business Days prior to the commencement of such Applicable
Margin Calculation Period; provided, however, that any failure to so
notify the Borrower shall not prevent or inhibit the effectiveness of the
relevant Applicable Margin in any Applicable Margin Calculation Period.
"APPLICABLE MARGIN CALCULATION DATE" means each date which is forty five
(45) days after a Quarterly Calculation Date.
"APPLICABLE MARGIN CALCULATION PERIOD" means, initially, the period
commencing on the date which is six (6) months after the Effective Date
and ending on the next succeeding Applicable Margin Calculation Date and,
thereafter, each consecutive period commencing on an Applicable Margin
Calculation Date and ending on the next succeeding Applicable Margin
Calculation Date.
"APPROVAL" means an approval, authorisation, license, permit, consent,
filing or registration by or with any Governmental Agency or by or with
any other person having legal or regulatory jurisdiction.
"APPROVED LOCATIONS" means England, Jersey and the United States.
"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(a) (Resolutions etc).
"BASEL II" is defined in Clause 4.2.
"BORROWER" is defined in the preamble.
"BORROWING DATE" means a Business Day on which Loans are to be made
pursuant to Clause 2.2 (Procedure for Making Loans).
"BORROWING REQUEST" means a loan request and certificate duly executed by
an Authorised Representative of the Borrower, substantially in the Agreed
Form.
"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 City, U.S.A.; and
(b) relative to the calculation of LIBOR, any day on which dealings in
Dollars are carried on in the London interbank market.
"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;
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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 acquisition of direct or indirect control of RRL by a person or
group of persons acting jointly or otherwise in concert;
(b) the failure of RRL 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 Limited, and directly
or indirectly and free and clear of all liens, at least forty percent
(40%) of the share capital (however designated) of Morila S.A.; or
(c) the failure of RRL to own (and to have sole power to vote and dispose
of), collectively with any directors qualifying shares held by
directors of Loulo S.A. as nominee for RRL (Somilo) and directly or
indirectly and free and clear of all liens (except the lien granted
pursuant to the RRL (Somilo) Share Charge), eighty percent (80%) of
the share capital (however designated) of Loulo S.A.
"COMMITTED RISK MANAGEMENT AGREEMENTS" means net forward sale, spot
deferred sales or other contracts (including any metal put or call options
sold by any RRL Group Company) providing for a binding commitment on the
part of any RRL Group Company to sell metal.
"COMMITMENT" means, relative to any Lender, such Lender's obligation to
make and to maintain its Loans to the Borrower pursuant to the terms and
subject to the conditions of this Agreement.
"COMMITMENT AMOUNT" means:
(a) in relation to any Lender which is a Party on the Effective Date, to
the extent not cancelled, reduced or terminated in accordance with
this Agreement the amount specified next to such Lender's signature
on the signature pages of this Agreement, in each case as varied by
any transfers, novations, assignments, conversions or other
amendments made in accordance with the Finance Documents; or
(b) in the case of any person becoming a Lender after the date of
execution of this Agreement, to the extent not cancelled, reduced or
terminated in accordance with this Agreement, the amount (as varied
by any transfers, novations, assignments, conversions or other
amendments made in accordance with the Finance Documents) specified
as having been assumed by that Lender in the relevant instrument
pursuant to which it became a Lender.
"COMMITMENT TERMINATION DATE" means 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
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of each Commitment pursuant to Clause 10.2 (Action if Bankruptcy) or 10.3
(Action if Other Event of Default).
"COMPLIANCE CERTIFICATE" means a certificate duly executed by an
Authorised Representative of RRL, substantially in the Agreed Form.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period and:
(a) before any deduction for or on account of corporation tax or other
taxes on income or gains;
(b) before any deduction for Consolidated Interest Expense;
(c) after deducting (to the extent included) Consolidated Interest
Receivable;
(d) after excluding extraordinary or exceptional items;
(e) after deducting (to the extent otherwise included) any gain over book
value arising in favour of a RRL Group Company on the disposal of any
business or asset (not being any disposals made in the ordinary
course of trading) during such period and any gain arising on any
revaluation of any business or asset during such period;
(f) after adding back (to the extent otherwise deducted) any loss against
book value incurred by a RRL Group Company on the disposal of any
business or asset (not being any disposals made in the ordinary
course of trading) during such period;
(g) after adding back depreciation of fixed assets and amortisation of
goodwill or intangible assets during such period, to the extent
deducted; and
(h) after adding back (to the extent otherwise deducted) the amount of
Capital Expenditure and other expenditures in respect of exploration
activities.
"CONSOLIDATED EBITDA: CONSOLIDATED INTEREST PAYABLE RATIO" means, for any
period, the ratio of (a) Consolidated EBITDA for such period, to (b)
Consolidated Interest Expense for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the amount in
Dollars which will be necessary in order to pay in full all interest,
premium and similar amounts (howsoever characterised and including (a) the
interest element of finance leases, (b) discount and acceptance fees
payable (or deducted), (c) fees payable in connection with the issue or
maintenance of any bond or letter of credit, guarantee or other insurance
against financial indebtedness and issued by a third party on behalf of
RRL or any of its subsidiaries, (d) repayment and prepayment premiums
payable or incurred in repaying or prepaying any financial indebtedness,
and (e) commitment, utilisation and non-utilisation fees payable or
incurred in respect of financial indebtedness) accruing in respect of,
this Agreement and all other financial indebtedness of RRL and its
subsidiaries which have become due and payable during that period.
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"CONSOLIDATED INTEREST RECEIVABLE" means, for any period, the amount of
interest (which for this purpose shall include all payments of the type
described in the definition of Consolidated Interest Expense) accrued due
to RRL and any of its subsidiaries (in each case other than such interest
accruing due from RRL or any of its subsidiaries) during such period
whether or not paid.
"CONSOLIDATED NET DEBT" means, on any date, the excess of:
(a) the sum of:
(i) the principal amount of Loans outstanding on such date;
(ii) the principal amount of other financial indebtedness of RRL and
its subsidiaries outstanding on such date;
(iii) the amount of any deferred and unpaid purchase price
outstanding at such date in connection with any acquisition
made by RRL or any of its subsidiaries,
less
(b) Consolidated Unencumbered Cash at such date.
"CONSOLIDATED NET DEBT: CONSOLIDATED EBITDA RATIO" means, for any period,
the ratio, expressed as a percentage, of (a) Consolidated Net Debt on the
last day of such period, to (b) Consolidated EBITDA for such period.
"CONSOLIDATED NET GEARING" means, on any date, the ratio, expressed as a
percentage, of (a) Consolidated Net Debt on such date, to (b) Consolidated
Shareholders Equity on such date.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated profit
on ordinary activities of RRL and its subsidiaries (together with, and
without duplication, RRL's proportionate share (based on RRL's direct or
indirect ownership interest in the share capital of the relevant RRL Group
Company) of the consolidated profit on ordinary activities of any other
RRL Group Company which is not a subsidiary of RRL).
"CONSOLIDATED SHAREHOLDERS EQUITY" means, on any date, the aggregate of
the amounts paid up or credited as paid up on the issued share capital of
RRL (other than any redeemable shares and excluding any amount in respect
of any convertible security constituting indebtedness when originally
issued until such time as such security is converted into an equity
security) and the aggregate amount of its consolidated reserves,
including:
(a) share premiums;
(b) capital reserves and non-distributable reserves; and
(c) retained earnings.
"CONSOLIDATED TOTAL DEBT" means, on any date, the sum of:
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(a) the principal amount of Loans outstanding on such date;
(b) the principal amount of other financial indebtedness of RRL and its
subsidiaries outstanding on such date; and
(c) the amount of any deferred and unpaid purchase price outstanding at
such date in connection with any acquisition made by RRL or any of it
subsidiaries.
"CONSOLIDATED UNENCUMBERED CASH" means, on any date, the principal amount
of freely available cash balances maintained by RRL and its subsidiaries
in bank accounts maintained with financial institutions located in
Approved Locations on such date (and, for the avoidance of doubt, a cash
balance shall not be freely available if it is subject to any lien in
favour of any third Party (excluding, however, any such lien arising by
way of set-off rights under mandatory principles of applicable law));
provided, however, that any such cash balance which is being maintained
with a financial institution other than in accordance with the ordinary
course cash management activities of RRL and its subsidiaries (including
as a result of any demand for such cash balance to be maintained by way of
margin, cash cover or other support for any obligation) shall be excluded
from Consolidated Unencumbered Cash.
"CONTINUATION NOTICE" means a notice of continuation and certificate duly
executed by an Authorised Representative of the relevant Borrower,
substantially in the Agreed Form.
"CORRUPT PRACTICES" means the offering, promising or giving of any
pecuniary or other advantage, whether directly or through intermediaries,
to a foreign public official, for that official or for a third party, in
order that the official act or refrain from acting in relation to the
performance of official duties, in order to obtain or retain business or
other improper advantage in the conduct of international business.
"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.
"DISRUPTION EVENT" means either or both of:
(a) a material disruption to those payment or communications systems or
to those financial markets which are, in each case, required to
operate in order for payments to be made in connection with this
Agreement (or otherwise in order for the transactions contemplated by
the Finance Documents to be carried out) which disruption is not
caused by, and is beyond the control of, any of the parties; or
(b) the occurrence of any other event which results in a disruption (of a
technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other Party:
(i) from performing its payment obligations under the Finance
Documents; or
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(ii) from communicating with other Parties in accordance with the
terms of the Finance Documents,
(and which (in either such case)) is not caused by, and is beyond the
control of, the Party whose operations are disrupted.
"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 each Borrower; and
(b) with respect to the Agent, the office of the Agent designated as such
from time to time by notice to each Borrower and each Lender.
"EFFECTIVE DATE" is defined in Clause 13.8 (Counterparts, Effectiveness,
etc).
"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 10.1 (Events of Default).
"FINAL MATURITY DATE" means 1 May 2011.
"FINANCE DOCUMENT" means any of this Agreement, the Security Agreements,
the Guarantees and each other instrument executed by any Obligor or
evidencing any obligation (monetary or otherwise) to any Finance Party in
connection with and pursuant to this Agreement and the transactions
contemplated hereby and delivered to any Finance 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 Finance
Party, any Risk Management Agreement in effect at such time and entered
into between any RRL Group Company and any Lender which remains a Lender
at the relevant time).
"FINANCE PARTIES" means, collectively, the Agent, the Security Trustee,
the MLA and the Lenders.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve (12) consecutive calendar months
ending on 31 December.
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"FUNDING PERCENTAGE" means, relative to any Lender, the ratio (expressed
as a percentage) of:
(a) such Lender's Commitment Amount at such time;
to
(b) the Total Commitment Amount at such time.
"GAAP" is defined in Clause 1.6 (Accounting and Financial Determinations).
"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.
"GUARANTEES" means, collectively, the three (3) Deeds of Guarantee and
Indemnity each issued by a Guarantor in favour of the Security Trustee,
each substantially in the Agreed Form.
"GUARANTORS" means, collectively, (a) RRL, (b) MIJL, and (c) Loulo S.A..
"HAZARDOUS MATERIAL" means any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material, substance or waste within the
meaning of any Environmental Law.
"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 8.1 (Financial Condition).
"INDEMNIFIED LIABILITIES" is defined in Clause 13.4 (Indemnification).
"INDEMNIFIED PARTIES" is defined in Clause 13.4 (Indemnification).
"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 relevant Borrower) as the relevant Borrower may
irrevocably select in the Borrowing Request delivered pursuant to
Clause 2.2 (Procedure for Making Loans) with respect to such Loan;
and
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(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 relevant Borrower) as the relevant Borrower may
irrevocably select in the relevant Continuation Notice delivered
pursuant to Clause 2.3 (Continuation Elections);
provided, however, that:
(c) absent the timely selection of an Interest Period for a then current
Loan, the relevant 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 particular date, the relevant 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 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 3.4 (Post-Maturity Rate).
"INTERNATIONAL FINANCIAL REPORTING STANDARDS" means the International
Financial Reporting Standards promulgated by the International Accounting
Standards Board.
"INTERNATIONAL CYANIDE MANAGEMENT CODE" means the Principles and Standards
of Practice provisions of the International Cyanide Management Code, dated
July, 2005, published by the International Cyanide Management Institute.
"LENDERS" is defined in the preamble.
"LIBOR" 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 the Agent with its quotation for offers of Dollar deposits to
leading banks in the London interbank market for such
10
period and in an amount comparable to the aggregate principal amount of
such Lender's Loans, and "LIBOR" shall equal the average (rounded upwards
to the nearest four decimal places) of such quoted rates.
"LOAN" is defined in Clause 2.1(a) (Commitments).
"LOULO PROJECT" means the Loulo gold mining project in Mali owned by Loulo
S.A.
"LOULO S.A." means Societe des Mines de Loulo S.A., a company organised
and existing under the laws of the Republic of Mali.
"LOULO LOAN AGREEMENT" means the Loan Agreement, dated 6 September, 2004,
among Loulo S.A., the Guarantors, Lenders and Arrangers referred to (and
defined) therein and N M Rothschild & Sons Limited, as the Facility Agent
(as so defined) for such Lenders.
"MANDATORY COSTS RATE" means the percentage rate per annum calculated by
the Agent in accordance with the schedule in the Agreed Form.
"MATERIALLY ADVERSE EFFECT" means the effect of any event or circumstance
(including any reduction in the gold price) which, in the reasonable
opinion of the Required Lenders:
(a) is or is likely to be materially adverse to the ability of any
Obligor to perform or comply with any of its obligations under the
Finance Documents;
(b) is or is likely to be materially adverse to the ability of RRL 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 life of mine and business plans
delivered pursuant to Clause 5.1(e) (Review of Life of Mine and
Business Plans); or
(c) is or is likely to be materially prejudicial to:
(i) the interests of the Lenders under the Finance 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 SHARE CHARGE" means the share charge between MIJL and the Security
Trustee, substantially in the Agreed Form.
"MLA" is defined in the preamble.
"MONTHLY MINE REPORT" means a monthly report addressed to the Agent and
the Lenders relating to the development and operation of each of the Loulo
Project and the Morila Project and reporting (on both a monthly and a
cumulative basis) on Capital Expenditures, production, project costs and
other operating information (including compliance with the Agreed
Environmental Requirements).
11
"MORILA PROJECT" means Morila gold mining project in Mali owned by Morila
S.A..
"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 Finance 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 the Guarantors.
"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.
"PARTY" means a party to this Agreement.
"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 on or prior to the Final Maturity Date
when the Lenders shall have no further Commitments hereunder and all
Obligations of each Obligor in connection with each Finance Document
(excluding any Risk Management Agreement which is a Finance Document)
shall have been paid and performed in full then, to the extent any Risk
Management Obligation of RRL or any of its subsidiaries under any such
Risk Management Agreement shall then be outstanding, the term "PERCENTAGE"
means, relative to any Lender which is a Party to any such Risk Management
Agreement and at any time, the ratio (expressed as a percentage) of:
(a) the contingent net liabilities of RRL and its subsidiaries at such
time to such Lender under all such Risk Management Agreements to
which such Lender is a Party,
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to
(b) the contingent net liabilities of RRL and its subsidiaries at such
time to all Lenders under all such Risk Management Agreements to
which any Lender is a Party.
"PROCESS AGENT" is defined in Clause 13.14(c) (Forum Selection and Consent
to Jurisdiction).
"PROCESS AGENT ACCEPTANCE" means a letter from the Process Agent to the
Agent, substantially in the Agreed Form.
"QUARTERLY CALCULATION DATE" means each 31 March, 30 June, 30 September
and 31 December in each calendar year commencing with 31 March, 2007.
"REGULATORY CHANGE" means the occurrence after the Effective Date of any
change in or abrogation or phasing out of, or introduction, adoption,
effectiveness or phase-in of any:
(a) statute, law, rule or regulation applicable to any Finance Party; or
(b) guideline, interpretation, directive, consent decree, administrative
order, request or determination (whether or not having the force of
law) applicable to such Finance Party of any court, central bank or
governmental or regulatory authority charged with the interpretation
or administration of any statute, law, rule or regulation referred to
in clause (a) or of any fiscal, monetary or other authority having
jurisdiction over such Finance Party,
or any interpretation or reinterpretation of any item or matter referred
to in clause (a) or (b) by any person with authority in connection with
such interpretation or reinterpretation.
"REQUIRED LENDERS" means at any time, Lenders having, in the aggregate, a
Percentage of sixty six and two thirds (66 2/3%) or more at such time.
"RISK MANAGEMENT AGREEMENT" means any instrument evidencing any Risk
Management Obligation of any RRL Group Company.
"RISK MANAGEMENT OBLIGATIONS" means, with respect to any person, all
liabilities of such person under all agreements, options or arrangements
designed to protect such person against fluctuations in interest rates,
currency exchange rates or commodities (including precious metals) prices.
"RISK MANAGEMENT SECURITY AGREEMENTS" means, collectively (a) the RRL Risk
Management Security Agreement, and (b) any further security agreement
entered into pursuant to Clause 9.6(a).
"RRL" is defined in the preamble.
"RRL GROUP COMPANIES" means, collectively, RRL, its subsidiaries and
subsidiary undertakings and their subsidiaries and subsidiary
undertakings, Morila Limited and Morila S.A.
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"RRL RISK MANAGEMENT SECURITY AGREEMENT" means the deed of assignment over
the Risk Management Agreement between RRL and the Security Trustee,
substantially in the Agreed Form.
"RRL SHARE CHARGE" means the shares charge between RRL and the Security
Trustee, substantially in the Agreed Form.
"RRL (SOMILO) SHARE CHARGE" means the shares charge between the Borrower
and the Security Trustee, substantially in the Agreed Form.
"SECURITY AGREEMENTS" means, collectively, the RRL Share Charge, the MIJL
Share Charge, the RRL (Somilo) Share Charge and the Risk Management
Security Agreements.
"SECURITY TRUSTEE" means N M Rothschild & Sons Limited, acting in its
capacity as security trustee for the Finance Parties in connection with
each of the Guarantees and the Security Agreements.
"SRK" means SRK Consulting, a company organised and existing under the
laws of England.
"SWIFT" means the Society for Worldwide Interbank Financial
Communications.
"TAX CREDIT" is defined in Clause 4.6(b) (Mitigation).
"TAX PAYMENT" is defined in Clause 4.6(b) (Mitigation).
"TAXES" is defined in Clause 4.5 (Taxes).
"TOTAL COMMITMENT AMOUNT" means, at any time, subject to the terms and
conditions of this Agreement, the amount of (a)(i) at any time prior to 1
November 2009, U.S.$60,000,000, (ii) at any time on and after 1 November
2009 but prior to 1 May 2010, U.S.$48,000,000, (iii) at any time on and
after 1 May 2010 but prior to 1 November 2010, U.S.$36,000,000 and (iv) at
any time thereafter U.S.$24,000,000, less (b) in each case, any reduction
of the Total Commitment Amount effected pursuant to Clause 2.4
(Cancellation).
"TRANSFER CERTIFICATE" means a certificate, substantially in the Agreed
Form.
"TRANSFEREE LENDER" is defined in Clause 13.11(b) (Transfers).
"TRANSFEROR LENDER" is defined in Clause 13.11(b) (Transfers).
1.2 ADDITIONAL DEFINITIONS
Any reference in this Agreement or any other Finance 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,
14
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 any Party to this Agreement shall be construed so as to
include their respective successors and permitted transferees and
assigns in accordance with their respective interests and in
accordance with the terms of the relevant Finance Document;
(d) "CONTINGENT LIABILITY" means any agreement, undertaking or
arrangement by which any person guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect
agreement, contingent or otherwise, to provide funds for payment, to
supply funds to, or otherwise to invest in, a debtor, or otherwise to
assure a creditor against loss in respect of) the indebtedness,
obligation or any other liability of any other person (other than by
endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the
shares of any other person. The amount of any person's obligation
under any contingent liability shall (subject to any limitation set
forth therein) be deemed to be the outstanding principal amount (or
maximum principal amount, if larger) of the debt, obligation or other
liability guaranteed thereby;
(e) "CONTRACTUAL OBLIGATION" means, relative to any person, any provision
of any security issued by such person or any instrument or
undertaking to which such person is a party or by which it or any of
its property is bound;
(f) "CONTROL" means the power of one person to, directly or indirectly:
(i) vote more than fifty percent (50%) of the issued share capital
of a second person or the voting power in such second person;
or
(ii) direct, or cause the direction of, the management, business or
policies of such second person, whether through the ability to
exercise voting power, by contract or otherwise;
(g) "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;
(h) a "GUARANTEE" includes a standby letter of credit, an indemnity and
any other obligation (howsoever called) of any person to pay,
purchase or provide funds
15
(whether by the advance of money, the purchase of or subscription for
shares or other securities, the purchase of assets or services or
otherwise) for the payment of or to assist in or provide means of
discharging or otherwise be responsible for, any indebtedness of, or
the solvency of any other person;
(i) "GUARANTEED INDEBTEDNESS" means, with respect to any person, all
indebtedness of such person in respect of guarantees or other similar
assurances against loss given by such person in respect of the
indebtedness of other persons;
(j) 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;
(k) "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;
(l) "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;
(m) "INVESTMENT" means, relative to any person:
(i) any loan or advance made by such person to any other person
(excluding commission, travel, housing, incentive and similar
advances to officers and employees made in the ordinary course
of business);
(ii) any guarantee made or issued by such person; and
(iii) any ownership or similar interest held by such person in any
other person;
(n) 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;
(o) "MATURITY" means, relative to any Loan, any date on which such Loan
is stated to be due and payable, in whole or in part, whether by
required repayment, prepayment, declaration or otherwise;
(p) 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;
16
(q) "PRINCIPAL AMOUNT" means, with respect to any Loan outstanding (or to
be outstanding) at any date, the aggregate principal amount
(calculated in Dollars) of such Loan at such date;
(r) a "QUARTER" means each three month period beginning in any year, on
each of 1 January, 1 April, 1 July, 1 October or, if any such date is
not a Business Day, the immediately preceding Business Day;
(s) a "SUBSIDIARY" and a "SUBSIDIARY UNDERTAKING" shall have the same
meaning as in the Companies ▇▇▇ ▇▇▇▇ of the United Kingdom; and
(t) 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
Finance 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 Finance 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;
(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
Finance 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 Finance
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)";
17
(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 Finance Document and each notice and
other communication delivered from time to time in connection with this
Agreement or any other Finance Document.
1.5 CROSS-REFERENCES
Unless otherwise specified, references in this Agreement and in each other
Finance Document to any Clause or sub-clause are references to such Clause
or sub-clause of this Agreement or such other Finance 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 Finance 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 Financial
Reporting Standards published by the International Accounting Standards
Board ("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) (Financial Information).
1.7 CHANGE IN ACCOUNTING PRINCIPLES
If, after the Effective Date, there shall (without prejudice to Clause 1.6
and Clause 9.14(b) (Business Activities; Fiscal Year)) be any change to
RRL'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) (Financial Information) 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 any Obligor found in this Agreement or
any other Finance 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 relevant Obligor's financial condition shall be the
same after such changes as if such changes had not been made; provided,
however, that until the Required Lenders have given their consent to such
18
amendments, the relevant Obligor's financial condition shall continue to
be evaluated on the same principles as those used in the preparation of
the financial statements referred to in Clause 6.5(a) (Financial
Information).
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 Finance 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 (Conditions Precedent to Making Loans)) 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 Commitment Termination Date, make
loans (individually with respect to each Lender, a "LOAN")
denominated in Dollars to the Borrower as set forth in this Clause.
(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 Loans requested
by the Borrower to be made on the Borrowing Date specified in such
Borrowing Request.
(c) No Lender shall be required to make any Loan if, after giving effect
thereto, the aggregate principal amount of all Loans:
(i) outstanding to all Lenders would exceed the Total Commitment
Amount; or
(ii) outstanding to such Lender would exceed such Lender's
Commitment Amount;
2.2 PROCEDURE FOR MAKING LOANS
(a) By delivering a Borrowing Request to the Agent on or before 10:00
a.m. on any Business Day the Borrower may request, on not less than
three (3) nor more than five (5) Business Days' notice (counting the
date on which such Borrowing Request is given), that Loans be made by
all Lenders on the Borrowing Date, and in the principal amount, in
each case as specified in such Borrowing Request. Upon receipt of a
Borrowing Request, the Agent shall promptly notify each Lender of the
contents thereof, and such Borrowing Request shall not thereafter be
revocable.
19
(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 (Conditions Precedent to Making Loans)), 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
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 such account as the
Borrower notifies to the Agent from time to time. 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 Percentage of the aggregate principal amount
of the 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 Loans
outstanding from the Borrower, that such Loans be, upon the expiration of
such Interest Period, continued as Loans for the Interest Period
20
specified in such Continuation Notice; provided, however, that, at any one
time not more than five (5) separate Interest Periods may be in effect.
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 3.4 (Post-Maturity Rate)) 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
Commitment Amount in whole or in part on giving not less than five
(5) Business Days prior written notice thereof to the Agent.
Cancellation of any portion of the Total Commitment Amount shall be
in an integral multiple of U.S.$1,000,000. Effective upon the
cancellation of a portion of the Total Commitment Amount each
Lender's Commitment Amount will immediately be reduced by an amount
equivalent to its 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 date of, the principal
amount of, any repayments of, the interest rate on, and the Interest
Periods applicable to, the Loans then outstanding from the Borrower 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.
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3. PRINCIPAL PAYMENTS; INTEREST
3.1 PRINCIPAL PAYMENTS
(a) The Borrower shall make payment in full of the unpaid principal
amount of all Loans at the Final Maturity Date.
(b) The Borrower 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 the 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
(ii) all such partial voluntary prepayments shall be in an aggregate
principal amount which is an integral multiple of
U.S.$1,000,000.
(c) The Borrower shall, on any date when the outstanding principal amount
of the Loans shall exceed the Total Commitment Amount make a
mandatory repayment of the Loans outstanding on such date in a
principal amount equal to such excess.
(d) 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 (Funding Losses).
(e) 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.
(f) The principal amount of any Loans prepaid may, subject to the terms
and conditions of this Agreement, be re-borrowed.
3.2 INTEREST PAYMENTS
The Borrower shall make payments of interest in accordance with this
Clause.
3.3 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) LIBOR as in effect from time to time; plus
(b) the Applicable Margin as in effect from time to time with respect to
each Interest Period for the Loans.
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3.4 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 outstanding from it so matured or on
any such other Obligations outstanding from it at a rate PER ANNUM equal
to the sum of:
(a) LIBOR for such Interest Periods as the Agent may from time to time
select;
(b) the Applicable Margin as in effect from time to time with respect to
such Interest Periods; plus
(c) two percent (2%).
3.5 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 three
(3) months, on each date which is the last day of each successive
three (3)-monthly period occurring during such Interest Period
commencing with the first three (3) 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 prepaid pursuant to Clause
3.1 or 4.4 (Illegality), the date of such prepayment.
Interest accrued on each Loan after the maturity thereof and interest on
other overdue amounts, shall be payable upon demand. The amount of
accruing interest on any Loans shall be calculated during each Interest
Period applicable thereto by the Agent on the daily outstanding principal
amount of such Loans.
3.6 FEES
(a) The Borrower shall pay to the Agent, and the Agent shall pay to the
Finance 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 Finance 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 for the period commencing on the Effective Date and
ending on the Commitment Termination Date computed at the rate of
nine twentieths of one percent (0.45%) per annum on the undrawn,
uncancelled and unreduced amount of each Lender's Commitment Amount.
Accrued commitment fees described in this clause shall be payable in
arrears at the end of each quarter and on the Commitment Termination
Date.
23
(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
4.1 DOLLARS UNAVAILABLE
(a) If, prior to the date on which the Agent shall make any determination
of LIBOR 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 RRL.
(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 LIBOR) 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 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, at the request of the
Borrower, be demonstrated to the Borrower in reasonable detail
and shall, in the absence of manifest error, be conclusive and
binding on the Borrower);
(ii) the Applicable Margin as in effect from time to time for
consecutive deemed Interest Periods of three (3) months; plus
(iii) the Mandatory Costs Rate in respect thereof for the time being
(if applicable).
(c) As an alternative to clause (b), the Borrower may at any time elect
that the principal amount of and interest on all of the affected
Lenders then outstanding Loans which are affected by the
circumstances described in clause (a) be immediately repaid in full
(subject, however, to Clause 4.3).
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4.2 INCREASED COSTS AS A RESULT OF REGULATORY CHANGE
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 to the Borrower, 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 RRL 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. This Clause shall not
apply to any increased costs attributable to the implementation of or
compliance with the "International Convergence of Capital Measurement and
Capital Standards, a Revised Framework" published by the Basel Committee
on Banking Supervision in June 2004 in the form existing on the Effective
Date ("BASEL II") or any other law or regulation which implements Basel II
(whether such implementation, application or compliance is by a
government, a regulator or a Finance Party or any of its affiliates).
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 (Principal
Payments) 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 and a statement of any
cost of funds, in each case 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.
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
25
Lender shall become aware that the circumstances causing such
suspension no longer exist and shall have notified the Agent and RRL
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 RRL, the Borrower shall
prepay, within five (5) 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 Finance Document to any Finance 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 (collectively, "TAXES"; provided, however, that the
term "Taxes" shall not include franchise taxes and taxes (including
income, corporation and similar taxes) imposed on or measured by the
recipient's net income or receipts). In the event that any
withholding or deduction from any payment to be made by the Borrower
hereunder or under any other Finance 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 Finance
Party with respect to any payment received by such Finance Party
hereunder or under any other Finance Document, such Finance 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 Finance Party) as is or are
necessary in order that the net amount received by such Finance Party
after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount such Finance 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
26
may be, the account of the relevant Finance Parties, the required
receipts or other required documentary evidence, the Borrower shall
indemnify the Agent or the relevant Finance Parties, as the case may
be, for any incremental Taxes, interest or penalties that may become
payable by any such Finance 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 Finance Party). For purposes of this
Clause, a distribution hereunder or under any other Finance Document
by the Agent or any Lender to or for the account of any Lender in
respect of the Obligations of the Borrower 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 Finance Party pursuant to Clause 4.2 or 4.5 (excluding,
however, in the case of Clause 4.5 any withholding in respect of
interest payments arising as a result of applicable law as in effect
on the Effective Date) or the circumstances described in any of
Clause 4.1(a) or 4.4 shall have occurred with respect to any Finance
Party, such affected Finance 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 Finance Party's Dollar Lending Office
to another jurisdiction and the application for a Tax Credit and, in
the case of any circumstances described in Clause 4.4 applicable to
any Lender, the assignment and transfer of such Lender's then
outstanding Loans and Commitment to another Lender at a price equal
to the then outstanding principal amount of such Loans and other
amounts outstanding to such transferring Lender hereunder (or such
other price as the transferring Lender shall agree); provided,
however, that no Finance 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;
(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); or
(iv) take any such steps if, in its opinion, it is constrained from
doing so by any applicable law, regulation, directive or
administrative practice.
(b) If, pursuant to clause (a), any Finance 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
Finance Party is able to identify such Tax Credit as being
attributable to such Tax Payment, then such Finance 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 Finance Party shall be required
to make any such reimbursement which would cause it to lose the
benefit of such Tax
27
Credit or would otherwise materially adversely affect any matter
relating to such Finance Party in connection with the assessment or
payment of any Taxes. Each Finance Party shall have absolute
discretion as to whether to claim any Tax Credit, and if it does so
claim, the extent, order and manner in which it does so. No Finance
Party shall be obliged to disclose information regarding its tax
affairs or computations to the Borrower.
(c) The Finance Parties agree to cooperate with each Obligor in
completing and delivering or filing tax related forms which would
reduce or eliminate any amount of taxes of the nature referred to in
clause (a) required to be deducted or withheld on account of any
payment made by such Obligor under this Agreement or any other
Finance Document; provided, however, that no Finance Party shall be
under any obligation to execute and deliver any such forms if, in the
opinion of such Finance Party, completion of any such form might
reasonably be expected to result in an adverse consequence with
respect to the business or tax position of such Finance Party.
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.
(a) RESOLUTIONS, ETC. The Agent shall have received from each Obligor, a
certificate of its Secretary or similar officer as to:
(i) 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 Finance Document
or other document to be executed by it in connection with the
transactions contemplated hereby and thereby;
(ii) the incumbency and signatures of those of its officers
authorised to act with respect to this Agreement and each other
Finance Document or other document executed or to be executed
by it; and
(iii) its Organic Documents as then in effect.
(b) SECURITY AGREEMENTS. The Agent shall have received:
(i) counterparts of each Security Agreement duly executed by an
Authorised Representative of each Obligor party thereto;
(ii) 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 Finance Parties a valid and perfected first-
28
priority lien over all of the collateral purported to be
covered by each Security Agreement have been made or, as the
case may be, taken and are in full force and effect; and
(iii) (A) original share certificates representing all of the share
capital and voting rights of Morila Limited owned by MIJL
(being, in the aggregate, not less than fifty percent
(50%) of such share capital and voting rights);
(B) original share certificates representing all of the share
capital and voting rights of MIJL;
(C) original share certificates representing all of the issued
and paid-in share capital of the Borrower;
(D) original share certificates representing all of the issued
and paid-in share capital and voting rights of Loulo S.A.
owned by the Borrower (being, in the aggregate, not less
than eighty percent (80%) of such issued and paid-in share
capital); and
(E) with respect to the shares described in each of clauses
(iii)(A) to (iii)(D), stock powers relating thereto
executed in blank and such other instruments of transfer
in connection therewith as the Agent shall reasonably
require.
(c) GUARANTEES. The Agent shall have received a counterpart of each
Guarantee duly executed by an Authorised Representative of the
Guarantor party thereto.
(d) 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.
(e) OPINIONS OF LEGAL ADVISERS. The Agent shall have received opinions
from:
(i) Ogier, legal advisers in Jersey to the Obligors, substantially
in the Agreed Form;
(ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇, legal advisor in Mali to the Obligors,
substantially in the Agreed Form;
(iii) Mayer, Brown, ▇▇▇▇ & Maw LLP, legal advisers in England to the
Finance Parties, substantially in the Agreed Form; and
(iv) Mayer, Brown, ▇▇▇▇ & Maw LLP, legal advisers in Mali to the
Finance Parties, substantially in the Agreed Form.
(f) BUSINESS PLAN AND REVIEW OF LIFE OF MINE PLAN. The Lenders shall have
received a copy of a business plan containing details of the
projected business and financial performance of the RRL Group
Companies, in form and substance acceptable to the Lenders. The
Lenders shall also have received a review of the life of mine plan
with respect to each of the Loulo Project and Morila Project from
SRK, in form and substance acceptable to the Lenders.
29
(g) 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 RRL in preparing such Compliance Certificate as
the Agent shall have requested.
(h) LOULO PROJECT FACILITY INDEBTEDNESS. The Agent shall have received
such evidence as it shall require to the effect that all indebtedness
outstanding under the Loulo Loan Agreement shall (including, to the
extent required, from the proceeds of the initial Loans) have been
repaid in full and all liens in respect of such indebtedness shall
have been released.
(i) 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
Finance 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 13.3 (Costs and Expenses), to the extent then
invoiced.
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.
(a) COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. The representations and
warranties of each Obligor set forth in each Finance 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:
(i) 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
(ii) no Default shall have then occurred and be continuing.
(b) 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 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(a) are
true and correct.
(c) 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 Finance 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
30
precedent described in this Clause, as the Agent or its legal
advisers may reasonably request.
6. REPRESENTATIONS AND WARRANTIES
In order to induce the Finance Parties to enter into this Agreement and,
in the case of the Lenders, to make and continue Loans hereunder each of
the Borrower and RRL represents and warrants unto each Finance 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 its jurisdiction of incorporation 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 ▇▇▇ 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 and
deliver each Finance 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 Finance 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: (i) to enable it to lawfully enter into,
exercise its rights and comply with obligations in the Finance
Documents to which it is a party; and (ii) to make the Finance
Documents to which it is a party admissible in evidence in its
jurisdiction of incorporation (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 than pursuant to this Agreement and any
Security Agreement to which such Obligor is a party).
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6.3 VALIDITY, ETC
(a) Each Finance 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(b)
(Security Agreements) each Security Agreement will create in favour
of the Security Trustee (for the rateable benefit of the Finance
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
No Obligor nor any of their respective properties or revenues enjoys any
right of immunity from suit, set-off, attachment prior to judgment or in
aid of execution, or execution on a judgment in respect of its obligations
under any of the Finance 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 RRL to the
Agent for the purposes of or in connection with this Agreement or any
transaction contemplated hereby, including:
(a) the consolidated and individual balance sheet of RRL and the
individual balance sheet of Loulo S.A., in each case at 31 December,
2005, and the related consolidated statements of operations,
shareholders' equity and cash flow of RRL and individual statements
of operations, shareholders' equity and cash flow of Loulo S.A., as
audited by Pricewaterhouse Coopers (in the case of RRL) or Cabinet
SEC Diarra (in the case of Loulo S.A.); and
(b) the consolidated and individual balance sheet of RRL and the
individual balance sheet of Loulo S.A., in each case at 30 June,
2006, and the related consolidated statements of operations,
shareholders' equity and cash flow of RRL and individual statements
of operations, shareholders' equity and cash flow of Loulo S.A., in
each case certified by the chief financial Authorised Representative
of RRL;
have been prepared in accordance with GAAP consistently applied throughout
the periods involved (except as disclosed therein) and present fairly the
financial position of RRL 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
32
Effective Date any material contingent liability or liability for taxes,
long-term leases or unusual forward or long-term commitments which are not
reflected in its financial statements described in this Clause or in the
notes thereto.
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 either the Borrower or RRL,
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, 2005 and since the date of the most recent financial
statements relating to RRL delivered pursuant to Clause 7.1(a) (Financial
Information, etc), 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 information provided by or on behalf of any RRL Group Company
to SRK in connection with the review described in Clause 5.1.(e) (Review
of Life of Mine and Business Plans) or to any Lender in connection with
its decision to enter into this Agreement or from time to time in
connection with this Agreement is, in each such case and to the best of
the knowledge and belief of each of the Borrower and RRL (after due
enquiry), true and correct in all material respects and does not
33
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 life of mine and business
plans referred to in Clause 5.1.(f) (Review of Life of Mine and Business
Plans) or in any other information provided to any Lender in connection
with this Agreement are, in each such case, fair and reasonable and, to
the best of RRL'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) All facilities and properties (including any groundwater affected by
the activities conducted on such facilities and properties) owned,
operated, leased and utilised by any RRL Group Company have been, and
continue to be, owned, operated, leased or utilised in compliance
with the Agreed Environmental Requirements and in material compliance
with all Environmental Laws;
(b) no RRL Group Company manages any Hazardous Materials at any of its
facilities or assets in material violation of any Environmental Laws;
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 led
to, or would reasonably be expected to lead to, any action being
taken by any Governmental Agency or any other person charged under
law with a responsibility to enforce any Environmental Law.
6.12 MINING RIGHTS, PROJECT ASSETS
The RRL Group Companies have acquired all assets (including mining
rights), and have obtained such other surface and other rights as are
necessary on the date the representation contained in this Clause is made
or repeated from time to time for access rights, water rights, plant
sites, tailings disposal, waste dumps, ore dumps, abandoned heaps or
ancillary facilities which are required in connection with the development
and operation of the projects owned by them (including the Loulo Project
and Morila Project), substantially in accordance with the life of mine and
business plans submitted pursuant to Clause 5.1.(f) (Review of Life of
Mine and Business Plans).
6.13 PARI PASSU
The payment Obligations of each Obligor under each Finance 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.
34
7. INFORMATION UNDERTAKINGS
7.1 FINANCIAL INFORMATION, ETC
RRL will furnish, or will cause to be furnished, to the Agent copies (with
sufficient copies for each other Finance 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 RRL and its subsidiaries at the close
of such Fiscal Year and the related consolidated statements of
operations, shareholders' equity and cash flow of RRL 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 PricewaterhouseCoopers or other
auditors of similar standing;
(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, the consolidated balance sheet of RRL and its
subsidiaries at the close of such Fiscal Quarter, and the 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 RRL;
(c) promptly when available, and in any event within one hundred and
eighty (180) days after the close of each Fiscal Year, the balance
sheet of the Borrower at the close of such Fiscal Year and the
related statements of operations, shareholders' equity and cash flow
of the Borrower, in each case with comparable information at the
close of and for the prior Fiscal Year, and reported on without
Impermissible Qualification by PricewaterhouseCoopers or other
auditors of similar standing;
(d) 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, the balance sheet of the Borrower at the close of such
Fiscal Quarter, and the related 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.
(e) within forty five (45) days after each Quarterly Calculation Date, a
Compliance Certificate calculated as of such Quarterly Calculation
Date;
35
(f) 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;
(g) as soon as possible (and in any event within three (3) Business Days)
after either 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;
(h) 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 RRL 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;
(i) not more than twenty (20) Business Days after the close of each
calendar month, a Monthly Mine Report as at the close of such
calendar month;
(j) not more than seventy (70) Business Days after the close of each
Fiscal Year, a business plan containing details of the projected
business and financial performance of the RRL Group Companies for the
immediately succeeding Fiscal Year; and
(k) such other information with respect to the financial condition,
business, property, assets, revenues and operations of any RRL Group
Company as the Agent or any Lender (acting through the Agent) may
from time to time reasonably request.
8. FINANCIAL COVENANTS
8.1 FINANCIAL CONDITION
RRL will not permit:
(a) Consolidated Shareholders Equity to be, at any time, less than
U.S.$300,000,000;
(b) the Consolidated Net Debt: Consolidated EBITDA Ratio to be, for any
one (1) year period ending on a Quarterly Calculation Date, greater
than two and one half times (2.5x);
(c) the Consolidated EBITDA: Consolidated Interest Payable Ratio to be,
for any one (1) year period ending on a Quarterly Calculation Date,
less than five times (5x);
(d) Consolidated Net Gearing to be, at any time, greater than sixty
percent (60%); or
36
(e) Consolidated Unencumbered Cash to be, at any time, less than
U.S.$12,000,000.
9. GENERAL UNDERTAKINGS
Each of the Borrower and RRL agrees with each Finance 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.
9.1 COMPLIANCE WITH LAWS
The Borrower will, and RRL will cause each RRL Group Company to, comply in
all material respects with all applicable laws.
9.2 APPROVALS
The Borrower will, and RRL 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
Finance Documents executed or to be executed by it;
(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; and
(c) maintain and operate its business in accordance with standard
industry practice,
and each of the Borrower and RRL shall ensure that certified copies of
each Approval required from time to time pursuant to this Clause 9.2 is
promptly delivered to the Agent.
9.3 MAINTENANCE OF CORPORATE EXISTENCE, ETC
The Borrower will, and RRL 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.
9.4 PAYMENT OF TAXES, ETC
The Borrower will, and RRL 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 RRL 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,
37
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.
9.5 BOOKS AND RECORDS; ACCESS TO PREMISES
The Borrower will, and RRL will cause each RRL Group Company to, keep
financial records and statements reflecting all of its business affairs
and transactions in accordance with GAAP. On not less than five (5)
Business Days prior written notice, the Borrower will, and RRL will cause
each RRL Group Company to, permit the Finance Parties, or any of their
respective representatives to inspect any and all of its material
properties and operations (including the Loulo Project and the Morila
Project), to discuss its financial matters with its officers, its banks
and its independent chartered accountants and certified public
accountants, as the case may be and to examine (and photocopy extracts
from) any of its books or other corporate records or any instrument,
document or correspondence relating to the financing contemplated hereby.
9.6 RISK MANAGEMENT
(a) RRL undertakes to grant, or to procure the grant of, security to the
Finance Parties in respect of the rights and benefits of any RRL
Group Company arising under any documentation entered into in
connection with any Risk Management Obligations incurred from time to
time by such RRL Group Company. Such security shall be granted on
terms and conditions similar to those contained in the RRL Risk
Management Security Agreement and otherwise pursuant to documentation
(including opinions of legal advisers) in form and substance
reasonably satisfactory to the Agent.
(b) The Borrower will not, and RRL will not permit any RRL Group Company
to, incur or otherwise become obligated in respect of, any Risk
Management Obligation unless such Risk Management Obligation is
incurred on a basis which does not contemplate the delivery of
margin, security, collateral or any other form of credit support at
any time by any RRL Group Company to a counterparty and does not
contain any provision giving a counterparty the right to convert, or
require the conversion of, any Risk Management Agreement into a Risk
Management Agreement which contemplates the delivery of margin
payments.
9.7 USE OF PROCEEDS
The Borrower shall apply the proceeds of the Loans for general corporate
purposes (including, in the case of the initial Loans, for the repayment
of indebtedness outstanding under the Loulo Loan Agreement).
9.8 ENVIRONMENTAL COVENANTS
The Borrower will, and RRL will cause each RRL Group Company to:
(a) use and operate all of its facilities and properties in compliance
with Environmental Laws and the Agreed Environmental Requirements and
keep
38
all necessary or advisable permits, approvals, certificates, licenses
and other authorisations relating to environmental matters in effect
and remain in compliance therewith, and handle all Hazardous
Materials in material compliance with all applicable Environmental
Laws and the Agreed Environmental Requirements;
(b) promptly notify the Agent and provide copies upon receipt of all
material written claims, complaints, notices or inquiries relating to
the condition of its facilities and properties or compliance with
Environmental Laws and the Agreed Environmental Requirements; and
(c) provide such information and certifications which the Agent may
reasonably request from time to time to evidence compliance with this
Clause.
9.9 PARI PASSU
RRL will ensure that the payment Obligations of each Obligor under this
Agreement and each other Finance 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.
9.10 ACCURACY OF INFORMATION
RRL will ensure that all factual information hereafter furnished by or on
behalf of any RRL Group Company in writing to any Finance 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.
9.11 INSURANCE
The Borrower will, and RRL will cause each RRL Group Company to, maintain
such insurance (including business interruption and delay in start up
insurance) with respect to the properties and business of each RRL Group
Company against such casualties and contingencies and of such types and in
such amounts as is customary in accordance with best industry practice
(including with respect to the identity of the insurance companies
providing such insurance) in the case of similar properties and businesses
similarly situated and such other insurance as may be required by any
applicable law and RRL will, upon the request of the Agent, furnish to the
Agent at reasonable intervals a certificate setting forth the nature and
extent of all insurance maintained by the RRL Group Companies in
accordance with this Clause. Without prejudice to the foregoing RRL will,
and RRL will cause each RRL Group Company to, ensure that all premiums
required to be paid in order to ensure that the policies referred to in
this Clause are in full force and effect shall be paid as and when the
same shall become due and payable.
39
9.12 BUSINESS ACTIVITIES; FISCAL YEAR
(a) RRL will not:
(i) engage in any business activity other than (A) 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 or
other metals and/or (B) development, mining, exploration and
other related activities in connection with the mining of gold
or other metals; or
(ii) change its Fiscal Year.
(b) The Borrower will not engage in any business activity other than as
an intermediate holding company for the ownership of RRL's interest
in the Loulo Project and operator of the Loulo Project and any
activity reasonably incidental thereto.
9.13 INDEBTEDNESS
The Borrower will not, and RRL will not permit any 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) Risk Management Obligations incurred by any RRL Group Company in the
ordinary course of its business with counterparties reasonably
acceptable to the Lenders; provided, however, that RRL shall not
permit the aggregate Risk Management Obligations of the RRL Group
Companies under Committed Risk Management Agreements to exceed, at
any time, seventy five percent (75%) of the forecast production of
the RRL Group Companies described in the business plan provided to
the Lenders pursuant to Clause 5.1(f) (Business Plan and Review of
Life of Mine Plan);
(c) at any time up until the making of the initial Loans, indebtedness
incurred under the Loulo Loan Agreement;
(d) 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 9.4;
(e) 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, in the case of RRL, Loulo
S.A. or Morila S.A., U.S.$3,000,000) (or, in any such case, the
equivalent thereof in any other currency);
(f) in the case of each of Loulo S.A. and Morila S.A., and at any date:
40
(i) unsecured indebtedness outstanding at such date and incurred in
the ordinary course of business in connection with costs
incurred in relation to the operation of the Loulo Project and
the Morila Project, respectively (by way of open accounts
extended by suppliers on normal trade terms in connection with
purchases of goods and services (but excluding, for the
avoidance of doubt, financial indebtedness)); and
(ii) indebtedness not in excess of U.S.$6,000,000 (or in the case of
Morila S.A., U.S.$2,000,000) (or the equivalent thereof in any
other currency) in aggregate at any one time outstanding
incurred to suppliers of equipment and other personal property
constituting capital costs in respect of the deferred purchase
price of such equipment or personal property or in respect of
capital leases relating to such equipment or personal property;
(g) (i) in the case of Morila S.A., indebtedness in an aggregate
principal amount not in excess of U.S.$4,800,000 outstanding to Rolls
Royce Power Ventures Limited and incurred to finance the acquisition
of five (5) power generators supplied by Rolls Royce Power Ventures
Limited in connection with the Morila Project, and (ii) in the case
of RRL, a guarantee of such indebtedness;
(h) in the case of Morila S.A., indebtedness in an aggregate principal
amount not in excess of U.S.$884,000 outstanding to Air Liquide
Limited and incurred to finance the acquisition of an oxygen plant
supplied by Air Liquide Limited in connection with the Morila
Project;
(i) (i) in the case of Loulo S.A., indebtedness in an aggregate principal
amount not in excess of U.S.$6,850,000 outstanding to Caterpillar
Financial Services Corporation and incurred to finance the
acquisition of fifteen (15) generators purchased from ▇.▇. ▇▇▇▇▇▇ and
(ii) in the case of RRL, a guarantee of the indebtedness referred to
in clause (i)(i);
(j) in the case of Loulo S.A., indebtedness in an aggregate principal
amount not in excess of U.S.$4,000,000 outstanding to the Government
of Mali;
(k) in the case of Morila S.A., indebtedness in an aggregate principal
amount not in excess of U.S.$1,500,000 outstanding to the Government
of Mali; and
(l) indebtedness outstanding from one RRL Group Company to another RRL
Group Company (and which, in the case of any such indebtedness
outstanding from the Borrower, Loulo S.A. or Morila Limited, is
subordinated to, and charged as security for, the Obligations, in
each case on terms and conditions, and pursuant to documentation,
reasonably satisfactory to the Agent).
9.14 LIENS
The Borrower will not, and RRL will not permit any 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:
41
(a) liens in favour of the Security Trustee (for the rateable benefit of
the Finance Parties) or in favour of the Finance Parties granted
pursuant to any Finance 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;
(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;
(f) at any time up until the making of the initial Loans, liens securing
indebtedness permitted to be incurred and outstanding pursuant to
Clause 9.13(c); and
(g) in the case of each of Loulo S.A. and Morila S.A., liens securing
indebtedness permitted to be incurred and outstanding pursuant to
Clause 9.13(f)(ii); provided, however, that any such lien shall
attach only to the asset in respect of which such indebtedness is
incurred.
For the purposes of this Clause the obligations secured by any lien
created or incurred in the ordinary course of business (other than any
liens of the nature referred to in clause (a) or (b)) may not exceed
U.S.$2,000,000 in the aggregate at any one time outstanding.
9.15 CAPITAL EXPENDITURES
The Borrower will not, and RRL will not permit any RRL Group Company to,
at any time, make or commit to make any costs in respect of Capital
Expenditures other than:
(a) Capital Expenditures identified in the business plan provided to the
Lenders pursuant to Clause 5.1(f) (Business Plan and Review of Life
of Mine Plan); and
(b) other Capital Expenditures not in excess of an aggregate amount (for
all RRL Group Companies but, in the case of Morila S.A., taking into
account only
42
fifty per cent (50%) of each Capital Expenditure, made or committed
to be made by it) of U.S.$20,000,000 incurred in any Fiscal Year.
9.16 ACQUISITIONS
The Borrower will not, and RRL will not permit any RRL Group Company to:
(a) purchase, subscribe for or otherwise acquire any shares (or other
securities or other interests therein), in, or incorporate, any other
company or agree to do any of the foregoing; or
(b) purchase or otherwise acquire any assets (other than in the ordinary
course of business) or revenues or (without limitation to any of the
foregoing) acquire any business or interest therein or form or enter
into, any partnership, consortium, joint venture or other like
arrangement or agree to do so;
provided, however, that, without prejudice to any other provision of this
Agreement (including Clauses 9.13 and 9.14), the RRL Group Companies may,
at any time when no Default shall have occurred and be continuing, make
acquisitions of the nature referred to in clauses (a) and (b) if (x) the
aggregate cash consideration given by or on behalf of the RRL Group
Companies in connection with any single such acquisition (or related such
acquisitions) does not exceed U.S.$20,000,000, (y) the aggregate cash
consideration given by or on behalf of the RRL Group Companies in
connection with all such acquisitions during any Fiscal Year does not
exceed U.S.$50,000,000, and (z) such acquisition relates to a business
which is involved in the exploration, development, mining and/or related
activities in connection with the mining of gold or other metals.
9.17 MERGERS, ETC
The Borrower will not, and RRL will not permit any other Obligor to, enter
into any amalgamation, demerger, merger or reconstruction. This Clause is
without prejudice to any RRL Group Company's right to make any of the
dispositions described in Clause 9.18.
9.18 ASSET DISPOSITIONS, ETC
The Borrower will not, and RRL will not permit any RRL Group Company to,
at any time, sell, transfer, lease or otherwise dispose of any of, or
grant options, warrants or other rights with respect to, any of its assets
(including investments and accounts receivable) to any person, unless:
(a) such disposition is of output from the Loulo Project or 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; or
(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.$20,000,000
(or the equivalent thereof
43
in any other currency) in the aggregate and fair value in cash or
other assets is received therefor.
10. EVENTS OF DEFAULT
10.1 EVENTS OF DEFAULT
The term "EVENT oF DEFAULT" shall mean any of the events set forth in this
Clause.
(a) NON-PAYMENT OF OBLIGATIONS
The Borrower:
(i) shall default in the payment, repayment or prepayment when due
of any principal amount of or interest on any Loan unless:
(A) the Borrower's failure to pay is caused by:
(x) administrative or technical error; or
(y) a Disruption Event; and
(B) payment is made within three (3) Business Days of its due
date; or
(ii) shall default in the payment when due of any other Obligation
(and such default shall continue unremedied for a period of
five (5) Business Days).
(b) NON-PERFORMANCE OF CERTAIN COVENANTS
Any Obligor shall default in the due performance and observance of
any of its obligations under Clause 9.3 (Maintenance of Corporate
Existence, etc), 9.7 (Use of Proceeds), 9.9 (Pari Passu), or 9.12
(Business Activities; Fiscal Year) to 9.18 (Asset Dispositions, etc)
inclusive.
(c) 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 Finance Document executed by it (other than a default referred
to in Clause 10.1(a) or 10.1(b)), and, if capable of cure or remedy,
such default shall continue unremedied for a period of thirty (30)
days.
(d) BREACH OF REPRESENTATION OR WARRANTY
Any representation or warranty of any Obligor made hereunder or under
any other Finance Document executed by it or in any other document
delivered by or on behalf of such Obligor to any Finance Party for
the purposes of or in connection with this Agreement or any such
Finance Document is or shall be incorrect in any material respect
when made.
44
(e) DEFAULT ON OTHER INDEBTEDNESS
(i) 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 10.1(a)) of any RRL Group Company, having a principal
amount, individually or in the aggregate, in excess of
U.S.$1,000,000 (or, in the case of RRL, Loulo S.A. or Morila
S.A., U.S.$3,000,000) (or the equivalent thereof in any other
currency); or
(ii) 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 10.1(a)) of any RRL Group
Company if:
(A) 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
(B) 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.
(f) BANKRUPTCY, INSOLVENCY, ETC
(i) 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
(ii) 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 any Obligor, Morila Limited 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
(iii) any action or proceeding similar to those described in clause
(i) or (ii) shall occur with respect to, or be initiated by or
against, any RRL Group Company in any jurisdiction (but
excluding, for the avoidance
45
of doubt, any such action or proceeding relating to any RRL
Group Company referred to in the proviso to clause (ii)).
(g) IMPAIRMENT OF FINANCE DOCUMENTS
(i) Any Finance 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;
(ii) any Obligor or any other person shall, directly or indirectly,
contest in any manner the effectiveness, validity, binding
nature or enforceability of any Finance Document; or
(iii) 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) (Validity, etc), ranks first in priority.
(h) JUDGMENTS
Any judgment or order for the payment of money which is, individually
or in the aggregate with respect to all RRL Group Companies, in
excess of U.S.$1,000,000 (or, in the case of RRL, Loulo S.A. or
Morila S.A., U.S.$3,000,000) (or the equivalent thereof in any other
currency), shall be rendered against any RRL Group Company and
either:
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(ii) 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.
(i) EXPROPRIATION, ETC.
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 any RRL Group Company 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 any RRL
Group Company, or restricts the ability of any RRL Group Company to
export production, remit foreign currency or convert local currency
and such condemnation, nationalisation, seizure, expropriation,
assumption, action, implementation or restriction 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.
(j) CHANGE IN CONTROL
(i) Any Change in Control shall occur; or
46
(ii) the ordinary shares of RRL shall cease to be listed on either
(i) the International Stock Exchange of London or (ii) whether
pursuant to an American Depositary Receipt programme or
otherwise, the National Association of Securities Dealers
Automatic Quotations system, operated by the National
Association of Securities Dealers in New York City, U.S.A.
(k) MATERIALLY ADVERSE EFFECT
Any event shall occur or condition shall exist which constitutes a
Materially Adverse Effect.
10.2 ACTION IF BANKRUPTCY
If any Event of Default described in Clause 10.1(f) 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, Obligations in respect of any Risk
Management Agreement to which any Lender is a party) shall automatically
be and become immediately due and payable, without notice or demand.
10.3 ACTION IF OTHER EVENT OF DEFAULT
If any Event of Default (other than any Event of Default described in
Clause 10.1(f)) 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), 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, Obligations in respect of any Risk Management
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.
11. THE AGENT AND THE MLA
11.1 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, and
undertakings entered into, pursuant to those Security Agreements and
Guarantees 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
Finance Documents together with all such rights, powers and
discretions as are reasonably incidental thereto;
47
(c) agrees that, in its capacity as Security Trustee, the Agent shall
hold the benefit of the security granted pursuant to the Security
Agreements and the obligations of the Guarantors under the Guarantees
for itself and the Finance Parties subject to and in accordance with
the provisions hereof and of the Security Agreements and the
Guarantees, which provisions are hereby agreed to and approved by
each Party to this Agreement;
(d) irrevocably and unconditionally authorises and requests the Agent, in
its capacity as Security Trustee, to enter into the Security
Agreements and the Guarantees to hold the benefit of the security and
the undertakings granted pursuant to the Security Agreements and the
Guarantees; and
(e) acknowledges that the Security Trustee does not have any duties
except those expressly set out in the Finance Documents and in
particular that the duties of care imposed on trustees by the Trustee
▇▇▇ ▇▇▇▇ shall not apply.
11.2 RELIANCE, ETC
The Agent may:
(a) assume that:
(i) any representation made by any Obligor in connection with any
Finance Document is true;
(ii) no Default has occurred; and
(iii) no Obligor is in breach of or in default of its obligations
under any Finance Document to which it is a party
unless, in each such case, the Agent has actual knowledge or actual
notice to the contrary;
(b) assume that the Dollar Lending Office of each Lender is that
specified on the signature pages attached hereto (and, in the case of
a transferee of any Lender, as specified to the Agent by the
transferee of such Lender at the time of making such transfer) until
it has received from any Lender a notice designating another office
of such Lender to replace its Dollar Lending Office and may act upon
any such notice until the same is superseded by a further such
notice;
(c) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may
seem necessary, expedient or desirable to it and rely upon any advice
so obtained;
(d) 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;
(e) rely upon any communication or document believed by it to be genuine;
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(f) refrain from exercising any right, power or discretion vested in it
as an agent under any Finance Document unless and until instructed by
the Required Lenders as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised, as to
the manner in which it should be exercised;
(g) in the absence of instructions from the Required Lenders (or, if
appropriate, all the Lenders) or in the case of emergency where the
Agent is not able to obtain such instructions in a timely manner, act
(or refrain from taking action) as it considers to be in the best
interests of the Lenders;
(h) 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 Finance 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
(i) hold or place any Finance 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 Finance 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.
11.3 ACTIONS
The Agent shall:
(a) promptly forward to a Party the original or a copy of any document
which is delivered to the Agent for that Party by any other Party;
(b) if the Agent receives a notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, promptly notify the other Finance Parties
thereof;
(c) save as otherwise provided herein, act as agent or as security
trustee under any Finance 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 Finance Parties;
(d) if so instructed by the Required Lenders, refrain from exercising any
right, power or discretion vested in it as agent under any Finance
Document to which it is a party.
11.4 LIMITATION ON ACTIONS
Notwithstanding anything to the contrary expressed or implied in any
Finance Document, the Agent shall not:
(a) be bound to enquire as to:
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(i) whether or not any representation made by any Obligor in
connection with any Finance Document is true;
(ii) the occurrence or otherwise of any Default;
(iii) the performance by any Obligor of its obligations under any
Finance Document; or
(iv) any breach of, or default by any Obligor of, its obligations
under any Finance Document;
(b) be bound to account to any Finance 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 Finance Party or under any
obligations other than those for which express provision is made in
the Finance Documents.
11.5 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 Finance Documents.
11.6 EXCULPATION
Neither the Agent nor the MLA accepts 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 Finance Document or for the legality,
validity, effectiveness, adequacy or enforceability of any Finance
Document and neither the Agent nor the MLA shall be under any liability as
a result of taking or omitting to take any action in relation to any
Finance 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 Finance
Documents), save in the case of gross negligence or wilful misconduct.
11.7 WAIVER
Each of the Finance Parties agrees that it will not assert or seek to
assert against any director, officer, employee, agent or adviser of the
Agent or the MLA any claim it might have against the Agent or the MLA in
respect of the matters referred to in Clause 11.6.
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11.8 BANKING ACTIVITIES
Each of the Agent and the MLA may accept deposits from, lend money to and
generally engage in any kind of banking or other business with, any RRL
Group Company.
11.9 RESIGNATION AND REPLACEMENT
(a) The Agent may resign as such at any time upon at least thirty (30)
days prior notice to the Borrower and all the Lenders; provided,
however, that no such resignation shall be effective unless a
successor to it as the Agent is appointed in accordance with this
Clause. Following delivery of any such notice of resignation, the
Required Lenders may, with the prior written consent of the Borrower
(such consent not to be unreasonably withheld or delayed), 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 Finance 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 Finance 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.
(c) No consent of the Borrower to any change of the Agent pursuant to
clause (a) or (b) shall be required at any time when any Default
shall have occurred and be continuing.
11.10 DISCHARGE
If a successor to the Agent is appointed under the provisions of Clause
11.9, then:
(a) the retiring Agent shall be discharged from any further obligations
under the Finance Documents but shall remain entitled to the benefit
of the provisions of this Clause 11 and of Clauses 13.3 (Costs and
Expenses) and 13.4 (Indemnification); 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.
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11.11 CREDIT DECISIONS
It is understood and agreed by each Finance 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 Finance Party warrants to each of the Agent
and the MLA that it has not relied and will not hereafter rely on the
Agent or the MLA:
(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
Finance Document or the transactions herein or therein contemplated
(whether or not such information has been or is hereafter circulated
to such Finance Party by the Agent or the MLA); 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.
11.12 THE AGENT AND THE MLA
In acting as the Agent or as the MLA, each relevant Finance Party shall be
treated as a separate entity from any other division of such Finance Party
(or similar units of such Finance Party in any subsequent reorganisation)
or its affiliates and, without limiting the generality of the foregoing,
in the event that any of such Finance 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 Finance Parties without the consent of RRL;
and notwithstanding anything to the contrary expressed or implied herein
and without limiting the generality of the foregoing, such Finance Party
shall not as between itself and the other Finance Parties be bound to
disclose to any other Finance Party or other person any information
supplied by any RRL Group Company to such Finance Party in its capacity as
the Agent or the MLA 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 Finance Party and supplied solely for the purpose of evaluating in
consultation with such Finance Party in its capacity as advisor whether
such transaction might require a waiver or amendment to any of the
provisions contained in any Finance Document.
11.13 INTERPRETATION
As used in this Clause, "ACTUAL KNOWLEDGE" and "ACTUAL NOTICE" of the
Agent and the MLA means actual knowledge or notice of those officers of
the Agent, or, as the case may be, the MLA, from time to time responsible
for the performance by the Agent, or, as the case may be, the MLA, of its
obligations under the Finance Documents.
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11.14 AGENT TO CONDUCT PROCEEDINGS
The Agent shall (subject, in the case of the enforcement of any security
granted by any Security Agreement, to the provisions thereof) have the
sole conduct of any action or proceedings to be taken on behalf of the
Lenders upon the happening of an Event of Default and no Lender shall
(unless the Agent otherwise requests) take any action by itself or in
conjunction with any other Lender or any other person to enforce the terms
of any of the Finance Documents or to terminate the same. If any Lender
notifies the Agent that it wishes to take action as aforesaid, the Agent
shall refer the same to the Lenders for decision in accordance with Clause
11.16. Notwithstanding anything to the contrary hereunder, the Agent shall
not:
(a) formally initiate any legal action or proceedings hereunder against
any Obligor on behalf of any Lender without the prior written consent
of such Lender; or
(b) exercise on behalf of any of the Lenders any of their rights or
remedies hereunder or under the Security Agreements or the Guarantees
unless it has been instructed to do so in writing by such Lenders.
11.15 DECISIONS BY THE LENDERS
Except to the extent otherwise provided in any Finance Document, in any
case where the materiality of any matter, event or consequence is in
question, the Agent shall be entitled (but not bound) to determine the
same without reference to the Lenders. Any acknowledgement given by the
Agent to any Obligor that any matter, event or consequence is not material
shall be binding on the Lenders.
The Agent shall, unless it reasonably considers the matter in question not
to be material, be bound (and shall in any event be entitled) to notify to
the Lenders any question relating to the exercise by the Agent of any
discretion, or to the giving or withholding by it of any approval or
waiver, or of any matter dependent on its opinion, for any purposes under
the Finance Documents.
11.16 MANNER OF REFERENCE TO THE LENDERS
Whenever the Agent refers any question to the Lenders for any of the
purposes of this Clause 11 it shall:
(a) do so in writing; and
(b) state a time (being reasonable in all the circumstances) within which
each Lender is to give directions as aforesaid.
11.17 KNOW YOUR CUSTOMER CHECKS
(a) If:
(i) the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation made
after the date of this Agreement;
53
(ii) any change in the status of any Obligor after the date of this
Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its
rights and obligations under this Agreement to an entity that
is not a Lender prior to such assignment or transfer;
obliges any Finance Party (or, in the case of clause (a)(iii), any
prospective new Lender) to comply with "know your customer" or
similar identification procedures in circumstances where the
necessary information is not already available to it, RRL shall
promptly upon the request of any Finance Party supply, or procure the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any other Finance
Party) or any other Finance Party (for itself or, in the case of the
event described in clause (a)(iii), on behalf of any prospective new
Lender) in order for the Agent or such Finance Party or, in the case
of the event described in clause (a)(iii), any prospective new Lender
to carry out and be satisfied it has complied with all necessary
"know your customer" or other similar identification procedures under
all applicable laws and regulations applicable to the transactions
contemplated by this Agreement.
(b) To the extent permitted by the applicable law of the relevant Lender,
each Lender shall promptly upon the request of the Agent supply, or
procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself) in order for the Agent
to carry out and be satisfied it has complied with all necessary
"know your customer" or other similar identification procedures under
all applicable laws and regulations applicable to the transactions
contemplated by this Agreement.
11.18 NO FIDUCIARY DUTIES
Except, and to the extent, expressly set forth herein or in any Security
Agreement or Guarantee, nothing in this Agreement constitutes the Agent as
a trustee or fiduciary of any other person.
11.19 ROLE OF THE MLA
Except as specifically provided in the Finance Documents, the MLA has no
obligations of any kind to any other Party under or in connection with the
Finance Documents.
11.20 SECURITY DOCUMENTS
(a) The Security Trustee shall accept without investigation, requisition
or objection whatever title any person may have to the assets which
are subject to the Security Agreements and shall not:
(i) be bound or concerned to examine or enquire into the title of
any person;
54
(ii) be liable for any defect or failure in the title of any person,
whether that defect or failure was known to the Security
Trustee or might have been discovered upon examination or
enquiry and whether it is capable of remedy or not; or
(iii) be liable for any failure on its part to give notice of the
Security Agreements to any third party or otherwise perfect or
register the security created by the Security Agreements.
(b) The Security Trustee 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 Security Trustee is appointed in accordance
with this clause. Following delivery of any such notice of
resignation, the Required Lenders may, at any time upon fifteen (15)
days notice to the Security Trustee and the Borrower, appoint another
Lender as the successor Security Trustee which shall thereupon become
the Security Trustee hereunder. If no successor Security Trustee
shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within thirty (30) days after the retiring
Security Trustee's giving notice of resignation, then the retiring
Security Trustee may, on behalf of the Finance Parties, appoint a
successor Security Trustee, which shall be one of the Lenders or
another reputable and experienced institution capable of fulfilling
the duties of Security Trustee. Upon the appointment of any successor
Security Trustee under this clause (b), the resigning Security
Trustee shall execute and deliver such documents and do such other
acts and things as may be necessary to vest in the successor Security
Trustee all the rights and interests vested in the resigning Security
Trustee under the Security Agreements.
(c) Each Finance Party authorises the Security Trustee to hold each
mortgage or charge created pursuant to any Security Agreement in its
sole name as security trustee for the Finance Parties.
11.21 DISTRIBUTION OF PROCEEDS OF ENFORCEMENT
(a) To the extent that the Security Agreements provide for the net
proceeds of any enforcement to be applied against any secured
liabilities, the Security Trustee shall pay them to the Agent and the
Agent shall apply them in payment of any amounts due but unpaid under
the Finance Documents, if applicable in the order set out in Clause
12.4 (Application of Proceeds). This shall override any appropriation
made by any Obligor.
(b) The Security Trustee may, at its discretion, accumulate proceeds of
enforcement in an interest bearing account in its own name.
12. GENERAL PAYMENT PROVISIONS AND SET-OFF
12.1 PAYMENTS
All payments by the Borrower pursuant to this Agreement or any other
Finance Document, whether in respect of principal amount, interest or
otherwise, shall (except
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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 Finance
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 Finance 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 Finance 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 Finance Party its share (calculated as
aforesaid), if any, of such payments, in kind. Such remittance shall be to
an account designated by such Finance 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 Finance Party, such
location as such Finance Party shall designate to the Agent by notice from
time to time. The Parties acknowledge that, pursuant to normal cash
management procedures of the RRL Group Companies RRL may from time to time
make payments of Obligations on behalf of the Borrower.
12.2 REDISTRIBUTION OF PAYMENTS
(a) If, at any time, the proportion which any Finance Party (a
"RECOVERING FINANCE 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 Finance Document (other
than any Risk Management Agreement to which it is party) by any
Obligor for the account of such Recovering Finance Party and one or
more other Finance Parties is greater (the amount of such excess
being herein called an "EXCESS AMOUNT") than the proportion thereof
received or recovered by the Finance Party or Finance Parties
entitled to participate in the payment Obligation to which such
payment relates and which are receiving or recovering the smallest
proportion thereof (which, for the purposes hereof shall include a
nil receipt or recovery), (it being understood that all relevant
payments are to be distributed among the Lenders in accordance with
their respective Funding Percentages), then:
(i) such Recovering Finance 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 Finance Party an amount equal to the amount paid out
by such Recovering Finance 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 Finance Party's portion
of such relevant payment; and
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(iii) the Agent shall treat the amount received by it from such
Recovering Finance 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
Finance Parties in accordance with their respective Funding
Percentages.
Within two (2) Business Days after any Finance Party receives or
recovers any relevant payment otherwise than by payment through the
Agent, that Finance 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
Finance Party in respect of any amount owing to it by the Borrower
becomes repayable and is repaid by such Recovering Finance Party,
then:
(i) each Finance 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 Finance Party an amount equal to its share of the
relevant sum; and
(ii) there shall thereupon fall due from the Borrower to each such
Finance 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
Finance Party against which such Finance 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 Finance 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) or commence and diligently
prosecute a separate action or proceeding to enforce its rights.
12.3 SETOFF
In addition to and not in limitation of any rights or remedies of any
Finance Party under applicable law or otherwise, each Finance 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 Finance Party in whatever currency or commodity; provided,
however, that any such appropriation and application shall be subject to
the provisions of Clause 12.2.
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12.4 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 Finance
Document (including any proceeds received by the Agent in respect of any
sale of, collection from, or other realisation upon, all or any part of
any collateral security subject to any Security Agreement) such amount
may, in the discretion of the Agent (after consultation with the Lenders),
be held by the Agent as additional collateral security under the relevant
Security Agreement for, or then or at any time thereafter be applied
(after payment of any amounts payable to the Agent pursuant to Clauses
11.5 (Indemnification by Lenders), 13.3 (Costs and Expenses) and 13.4
(Indemnification) and similar provisions contained in the other Finance
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 Finance Parties (or any of them)
under any Finance Document (excluding, however, any Risk Management
Agreement) in respect of any amount other than interest on, or the
principal amount of, any Loan;
(b) SECOND, to amounts outstanding to the Finance Parties (or any of
them) under any Finance Document (excluding, however, any Risk
Management Agreement) in respect of interest on any Loan;
(c) THIRD, to amounts outstanding to the Finance Parties (or any of them)
under any Finance Document (excluding, however, any Risk Management
Agreement) in respect of the principal amount of any Loan; and
(d) FOURTH, to amounts outstanding to the Finance Parties (or any of
them) in respect of net payment obligations of the Borrower to any
Lender under any Risk Management Agreement;
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.
12.5 CURRENCY OF PAYMENT
If:
(a) any amount payable by any Obligor under this Agreement or any other
Finance Document is received by a Finance Party entitled thereto in a
currency ("PAYMENT CURRENCY") other than the amount agreed to be
payable in the currency in which the relevant Obligation is
denominated (the "RELEVANT CURRENCY"), whether as a result of any
judgement or order or the enforcement thereof, the liquidation of
such Obligor or otherwise; and
(b) the amount produced by converting the Payment Currency so received
into the Relevant Currency is less than the required amount of the
Relevant Currency, then the relevant Obligor shall, as an independent
obligation separate and independent from its other obligations
contained hereunder and in any other Finance Document, indemnify such
Finance Party for the deficiency and any
58
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 Finance Party as being most
appropriate for the conversion. Each Obligor shall in addition pay
the reasonable costs of the conversion. Each Obligor waives any right
it may have in any jurisdiction to pay any amount under this
Agreement or any other Finance Document in a currency other than the
Relevant Currency.
12.6 COMPUTATIONS
(a) 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 three hundred and sixty (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.
(b) All calculations of any amount due hereunder or any other Finance
Document to any Finance Party shall be made by the Agent and shall,
in the absence of demonstrated error, be conclusive evidence of such
amount.
12.7 DISRUPTION TO PAYMENT SYSTEMS ETC.
If either the Agent determines (in its discretion) that a Disruption Event
has occurred or the Agent is notified by RRL that a Disruption Event has
occurred:
(a) the Agent may, and shall if requested to do so by RRL, consult with
the Borrower with a view to agreeing with the Borrower such changes
to the operation or administration of this Agreement as the Agent may
deem necessary in the circumstances;
(b) the Agent shall not be obliged to consult with the Borrower in
relation to any changes mentioned in clause (a) if, in its opinion,
it is not practicable to do so in the circumstances and, in any
event, shall have no obligation to agree to such changes;
(c) the Agent may consult with the Finance Parties in relation to any
changes mentioned in clause (a) but shall not be obliged to do so if,
in its opinion, it is not practicable to do so in the circumstances;
(d) any such changes agreed upon by the Agent and the Borrower shall
(whether or not it is finally determined that a Disruption Event has
occurred) be binding upon the Parties as an amendment to (or, as the
case may be, waiver of) the terms of the Finance Documents
notwithstanding the provisions of Clause 13.1 (Waivers, Amendments,
etc);
(e) the Agent shall not be liable for any damages, costs or losses
whatsoever (including for negligence, gross negligence or any other
category of liability
59
whatsoever but not including any claim based on the fraud of the
Agent) arising as a result of its taking, or failing to take, any
actions pursuant to or in connection with this Clause; and
(f) the Agent shall notify the Finance Parties of all changes agreed
pursuant to clause (d).
13. MISCELLANEOUS
13.1 WAIVERS, AMENDMENTS, ETC
The provisions of this Agreement and of each other Finance Document
(except to the extent otherwise set forth in such Finance 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,
Funding Percentage or Commitment Amount of any Lender or otherwise
subject any Lender to any additional obligation shall be made without
the consent of each Lender;
(c) extend the due date for, or reduce the amount of, any payment or
prepayment of principal of or interest on any Loan or any other
amount payable hereunder or under any other Finance Document in
respect thereof shall be made without the consent of each Lender;
(d) affect the interests, rights or obligations of the Agent or the MLA
in their respective capacities as such shall be made without the
consent of the Agent or, as the case may be, the MLA;
(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 Finance Parties) or in favour of the Finance
Parties pursuant to any relevant Security Agreement shall be made
without the consent of each Lender; or
(f) modify any term of this Agreement or any other Finance Document
expressly relating to the priority of payment of any obligations of
any RRL Group Company under any Risk Management Agreement to which
any Lender is a party shall be made without the consent of such
Lender.
No failure or delay on the part of any Finance Party in exercising any
power or right under any Finance Document shall operate as a waiver
thereof, nor shall any single or
60
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to
or demand on any Obligor in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval by any
Finance Party under any Finance 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.
13.2 NOTICES
All notices and other communications provided to any Party under any
Finance Document shall be in writing and shall be sent by hand delivery,
courier delivery, the mechanism established by SWIFT (in each case
authenticated), facsimile or electronic communication 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 Finance 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;
(b) if transmitted by any mechanism established by SWIFT, shall be deemed
made or delivered when despatched and an acknowledgement of receipt
by authenticated SWIFT is received;
(c) if transmitted by facsimile, shall be deemed given when transmitted
(transmission confirmed by the sending facsimile machine); and
(d) if transmitted by electronic communication, shall be deemed given
when actually received by the recipient in readable form.
13.3 COSTS AND EXPENSES
(a) The Borrower agrees to pay on demand:
(i) all reasonable fees and expenses (including legal fees and the
fees of SRK in respect of the review referred to in Clause
5.1.(f) (Initial Loans) of the Agent and the MLA incurred in
connection with the negotiation, preparation, execution and
delivery of each Finance 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 MLA incurred in connection with any amendments,
waivers, consents, supplements or other modifications to any
Finance Document as may from time to time hereafter be
required; and
(iii) any stamp or other taxes incurred in connection with the
preparation and review of the form of any instrument relevant
to any Finance Document, the consideration of legal questions
relevant hereto and thereto and the filing, recording, refiling
or re-recording of any Finance
61
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 Finance Document;
provided, however, that any fee or expense of the nature referred to
in clause (a)(i) or (a)(ii) which shall, individually, be in excess
of U.S.$10,000 shall be required to be approved by RRL prior to the
Borrower being under any reimbursement obligation under this clause
in connection therewith.
(b) The Borrower agrees to reimburse each Finance Party on demand for all
reasonable fees and expenses (including legal fees) incurred by such
Finance 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 Finance Party
payable by either Borrower hereunder shall be paid on a full
indemnity basis.
13.4 INDEMNIFICATION
In consideration of the execution and delivery of this Agreement by each
Finance Party and the extension of the Commitments, the Borrower
indemnifies, exonerates and holds each Finance 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 pursuant to
Clause 11.5 (Indemnification by Lenders)) (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 Finance Document by any of the
Indemnified Parties;
(c) any Loan not being made for any reason on a Borrowing Date specified
in any Borrowing Request;
(d) 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;
(e) 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
62
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); or
(f) any contravention by any RRL Group Company of any applicable law
relating to the prevention of Corrupt Practices;
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.
13.5 SURVIVAL
The obligations of the Borrower under Clauses 3.6 (Fees), 4.2 (Increased
Costs, etc), 4.3 (Funding Losses), 4.5 (Taxes), 13.3 (Costs and Expenses)
and 13.4 (Indemnification) and the obligations of the Lenders under Clause
11.5 (Indemnification by Lenders), in each case, survive any termination
of this Agreement. The representations and warranties made by each Obligor
in each Finance Document to which it is a Party shall survive the
execution and delivery of such Finance Document.
13.6 SEVERABILITY
Any provision of any Finance 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 Finance Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
13.7 HEADINGS
The various headings of each Finance Document are inserted for convenience
only and shall not affect the meaning or interpretation of such Finance
Document or any provisions hereof or thereof.
13.8 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, RRL, the MLA, and each Lender (or notice thereof satisfactory to
the Agent) shall have been received by the Agent.
13.9 GOVERNING LAW
This Agreement and (except as set forth to the contrary therein) each
other Finance Document and all matters and disputes relating hereto and
thereto shall be governed by, and construed in accordance with, English
law.
63
13.10 ASSIGNMENTS AND TRANSFERS BY THE BORROWER AND RRL
Neither the Borrower nor RRL shall be entitled to assign and/or transfer
all or any of its rights, benefits and obligations under any Finance
Document except with the consent of the Lenders.
13.11 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Any Lender may at any time assign and/or transfer all or any of its rights
and benefits under the Finance Documents to another bank or financial
institution in accordance with this Clause.
(a) 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 (c), a portion of its rights and
benefits under the Finance Documents to another bank or financial
institution. If any Lender chooses to effect an assignment and
transfer pursuant to this clause (a), 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 (a) 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 Lender stating the portion of the Commitment
Amount assigned to the assignee Lender and the assignee Lender's
administrative details.
(b) TRANSFERS
As an alternative to clause (a), if any Lender (a "TRANSFEROR
LENDER") wishes to transfer all or, subject to clause (c), a portion
of its rights, benefits and obligations under the Finance Documents
to another bank or financial institution (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:
(i) to the extent that in such Transfer Certificate the Transferor
Lender Party thereto seeks to transfer its rights and
obligations under each Finance Document, each Obligor, the
other Finance Parties 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");
(ii) each Obligor, the other Finance Parties and the Transferee
Lender Party thereto shall assume obligations towards one
another and acquire
64
rights against one another which differ from such discharged
rights and obligations only insofar as such Obligor, the other
Finance Parties and such Transferee Lender have assumed and
acquired the same in place of such Transferor Lender; and
(iii) the Agent, such Transferee Lender and the other Finance Parties
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.
(c) MINIMUM AMOUNT; EQUIVALENT TRANSFER OF EACH TRANCHE
Any assignment or transfer pursuant to clause (a) or (b) of a portion
of a Lender's rights and/or benefits shall be in an integral multiple
(with respect to the principal amount of the Commitment Amount and/or
outstanding Loans assigned and/or transferred) of U.S.$1,000,000.
(d) SECURITY AGREEMENTS
Within ten (10) Business Days after an assignment or transfer
pursuant to this Clause 13.11 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 RRL 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 secure the Obligations of the Borrower to
such assignee Lender or Transferee Lender, as the case may be.
(e) RELIANCE ON INSTRUMENTS
The Agent shall be fully entitled to rely on any instrument delivered
to it in accordance with clause (a) 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 instrument or Transfer Certificate.
(f) SUB-PARTICIPATIONS
Nothing in this Clause 13.11 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 (Increased Costs, etc), 4.3 (Funding Losses), 4.4
(Illegality), 4.5 (Taxes), 12.2 (Redistribution of Payments), 12.5
(Currency of Payment) 13.3 (Costs and Expenses) and 13.4
(Indemnification) 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
65
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 Commitment or Loans so participated); provided,
however, that:
(i) 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
(ii) the Obligors shall be required to deal only with the Lenders
and not with any purchaser of a participation from any Lender.
(g) FEE
On the date upon which an assignment or transfer takes effect
pursuant to Clause 13.11, 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). Any costs incurred by any
assignee Lender, assignor Lender, Transferee Lender or Transferor
Lender, in respect of any assignment and/or transfer effected
pursuant to Clause 13.11, respectively, shall be for the account of
such person and not, for the avoidance of doubt, for the account of
the Borrowers (on a joint and several basis).
(h) 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 in its possession
with respect to such Lender's Loans and Commitment and the Finance
Documents as such Lender shall deem appropriate.
13.12 OTHER TRANSACTIONS
Without prejudice to the provisions of Clause 11.8 (Banking Activities),
nothing contained herein shall preclude any Finance Party from engaging in
any transaction, in addition to those contemplated by any Finance
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.
13.13 CONFIDENTIALITY
Information provided by any Obligor hereunder or under any other Finance
Document shall not be disclosed by any Finance Party for any purpose other
than evaluation, monitoring and review pursuant to this Agreement;
provided, however, that such information may be disclosed:
(a) to a permitted assignee or transferee of any Lender if the purchaser
is advised such information is confidential and such persons agree to
keep such information confidential;
66
(b) to any director, officer or employee of such Finance Party; provided,
however, that same is treated in the same manner as other
confidential information held by such Finance Party;
(c) to legal advisers, accountants and other consultants and professional
advisors determined by such Finance Party to require such information
for the purpose of assisting in or advising upon such evaluation,
monitoring and review, if such persons are advised that such
information is confidential to the relevant Obligor;
(d) pursuant to applicable law;
(e) to the extent that such information is public;
(f) to the extent that such information was previously known to such
Finance Party through means other than the Obligors, or was acquired
from a third party not known to such Finance Party to be under a duty
of confidentiality to an Obligor;
(g) in connection with the exercise by any Finance Party of any rights
and remedies at any time when any Default has occurred and is
continuing; or
(h) pursuant to prior written agreement between RRL and such Finance
Party with a copy of such agreement being provided to the Agent.
13.14 FORUM SELECTION AND CONSENT TO JURISDICTION
(a) The parties hereto hereby irrevocably agree that, for the benefit of
the Finance 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 Finance Documents and, for such purposes, each of the
Borrower and RRL irrevocably submits to the exclusive jurisdiction of
such courts.
(b) Each of the Borrower and RRL 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 Finance Document and agrees not to claim
that any such court is not a convenient or appropriate forum.
(c) Each of the Borrower and RRL 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 Law Debenture, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (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 Finance Parties or any of them to take proceedings
against either the Borrower or RRL in any other court of competent
jurisdiction nor shall the taking of proceedings in any
67
one or more jurisdictions preclude the taking of proceedings in any
other jurisdiction, whether concurrently or not.
13.15 ENTIRE AGREEMENT
The Finance 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.
13.16 WAIVER OF IMMUNITY
To the extent that any Obligor may be entitled in any jurisdiction to
claim for itself or its assets, immunity from suit, execution, attachment
or other legal process whatsoever, it hereby irrevocably agrees not to
claim and hereby irrevocably waives such immunity to the fullest extent
permitted by the laws of such jurisdiction.
13.17 THIRD PARTY RIGHTS
A person who is not a Party has no right under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce or enjoy the benefit of any term of
this Agreement.
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THE BORROWER
RANDGOLD RESOURCES (SOMILO) ) __Roger Williams_____________
LIMITED by: ) Signature
) Signed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
) Title: Director
Address for Notices: La ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Channel Islands
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇▇▇
Attention: D Haddon
Electronic Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
69
RRL
RANDGOLD RESOURCES LIMITED ) __Roger Williams_____________
) Signature
) Signed by: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
) Title: Director
Address for Notices: La ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Channel Islands
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇▇▇
Attention: D Haddon
Electronic Mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
70
THE LENDERS:
Commitment Amount
U.S.$ 15,000,000
Per pro N M ROTHSCHILD & SONS LIMITED by: )
) _Christopher Coleman_________
) Signature
) _Christopher Coleman_________
) Name Printed
) _Managing Director___________
) Title
)
) _Alan Park__________________
) Signature
) _Alan Park___________________
) Name Printed
) _director_____________
) Title
Address for Notices: ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇
Electronic Mail: ▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇ /
▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇
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.: ▇▇-▇-▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Telex No.: 888031
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇
71
Commitment Amount
U.S.$ 15,000,000
Per pro Fortis Bank S.A./N.V. by: )
) _C.J. Tilley_______________
) Signature
) _C.J. Tilley_______________
) Name Printed
) __attorney___________________
) Title
)
)
)
)
)
)
)
)
Address for Notices: Fortis Bank S.A./N.V.
Camomile Court
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
FOR CREDIT MATTERS
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(Global Export & Project Finance)
Electronic Mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ / ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
FOR ADMINISTRATIVE MATTERS
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇
(Loans Administration)
Electronic Mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇-▇▇▇▇@▇▇▇▇▇▇.▇▇▇ /
▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Telephone: ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ / ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
Dollar Lending Office: Fortis Bank S.A./N.V.
UK Branch
Camomile Court
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72
Commitment Amount
U.S.$ 15,000,000
Per pro Barclays Bank PLC, by: )
) __Giles Taylor______________
) Signature
) __Giles Taylor_______________
) Name Printed
) __director__________________
) Title
)
)
)
)
)
)
)
)
Address for Notices: Barclays Bank PLC
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Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile No.: 020 7773 1840
FOR CREDIT MATTERS
Address: Barclays Capital
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Attention: ▇▇▇▇▇ ▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇
Electronic Mail: ▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇.▇▇▇ / ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Telephone: 020 7773 7927 / 020 7773 1760
Facsimile: 020 7773 1840 / 020 7773 1840
FOR OPERATIONAL MATTERS
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ (Loans Operations)
Telephone: 020 7773 6436
Facsimile: 020 7773 6811
Dollar Lending Office: Barclays Bank PLC
New York
SWIFT Address: BARC US 33
73
Account No.: 280238433
UID No.: 312842
Beneficiary: Barclays Bank PLC Wholesale, London
Swift Address: ▇▇▇▇▇▇▇▇
Reference: Loan Ops re: Randgold
74
Commitment Amount
U.S.$ 15,000,000
Per pro Societe Generale, by )
) __Dominic O'Kane______________
) Signature
) __Dominic O'Kane______________
) Name Printed
) __Vice President______________
) Title
)
)
)
)
)
)
)
Address for Notices: Societe Generale
OPER/CAF/PLS
17 cours Valmy
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ Defense Cedex
France
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-Guegan / ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇-▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ /
▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Telephone: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇ / ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
Telex: 615890SGMAR
Fax: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
Dollar Lending Office: Societe Generale - Paris
Bank Name: Societe Generale
Address: New York (Swift Code: ▇▇▇▇▇▇▇▇)
Account Designation: Societe Generale / Paris
(Swift Code: ▇▇▇▇▇▇▇▇▇▇▇)
Account No: ▇▇▇▇▇▇▇▇
Under Ref: Randgold
FOR CREDIT MATTERS
Address: Societe Generale
SG House - ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇▇▇▇▇ ▇'▇▇▇▇
▇▇
Electronic Mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇.▇▇▇ / ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ / ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ / ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
76
THE MLA
Per pro N M ROTHSCHILD & SONS )
LIMITED by: ) __Christopher Coleman______________
) Signature
) __Christopher Coleman______________
) Name Printed
) __Managing Director______________
) Title
) __Alan Park______________
) Signature
) __Alan Park______________
) Name Printed
) __director______________
) Title
Address for Notices: ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇
Electronic Mail: ▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇ /
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77
THE AGENT
Per pro N M ROTHSCHILD & SONS )
LIMITED by: ) __Christopher Coleman______________
) Signature
) __Christopher Coleman______________
) Name Printed
) __Managing Director______________
) Title
) __Alan Park______________
) Signature
) __Alan Park______________
) Name Printed
) __director______________
) Title
Address for Notices: ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇
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Facsimile No.: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇
Electronic Mail: ▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇ /
▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇
78