Dated June 25, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LIMITED
BAYERISCHE HYPO-UND VEREINSBANK ▇▇
▇▇▇▇▇▇▇▇ BANK AG LONDON BRANCH
FORTIS BANK (NEDERLAND) N.V.
STANDARD BANK LONDON LIMITED
as Lenders
with
STANDARD BANK LONDON LIMITED
acting as Agent
----------------------------------------
WASSA PROJECT FACILITY AGREEMENT
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Mayer, Brown, ▇▇▇▇ & Maw
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
1. DEFINITIONS AND INTERPRETATION...............................................1
2. THE FACILITIES...............................................................8
3. PURPOSE......................................................................8
4. CONDITIONS OF UTILISATION....................................................9
5. UTILISATION..................................................................9
6. REPAYMENT...................................................................10
7. PREPAYMENT AND CANCELLATION.................................................11
8. INTEREST....................................................................13
9. INTEREST PERIODS............................................................14
10. CHANGES TO THE CALCULATION OF INTEREST......................................15
11. FEES........................................................................16
12. INCREASED COSTS.............................................................16
13. INDEMNITY TO THE AGENT......................................................17
14. MITIGATION BY THE LENDERS...................................................17
15. COSTS AND EXPENSES..........................................................18
16. REPRESENTATIONS.............................................................18
17. EVENTS OF DEFAULT...........................................................18
18. CHANGES TO THE LENDERS......................................................19
19. NO CHANGES TO THE BORROWER..................................................22
20. ROLE OF THE AGENT...........................................................22
21. CONDUCT OF BUSINESS BY THE FINANCE PARTIES..................................27
22. SHARING AMONG THE LENDERS...................................................27
23. PAYMENT MECHANICS...........................................................29
24. SET-OFF.....................................................................31
25. CALCULATIONS AND CERTIFICATES...............................................31
26. PARTIAL INVALIDITY..........................................................32
27. REMEDIES AND WAIVERS........................................................32
28. AMENDMENTS AND WAIVERS......................................................32
29. COUNTERPARTS................................................................33
30. GOVERNING LAW...............................................................33
31. ENFORCEMENT.................................................................33
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SCHEDULE 1 THE ORIGINAL LENDERS
SCHEDULE 2 CONDITIONS PRECEDENT
SCHEDULE 3 REQUESTS
SCHEDULE 4 MANDATORY COST FORMULA
SCHEDULE 5 FORM OF TRANSFER CERTIFICATES
SCHEDULE 6 TIMETABLES
SCHEDULE 7 LMA FORM OF CONFIDENTIALITY UNDERTAKING
ii
THIS AGREEMENT is dated June 25, 2002 and made between:
(1) WEXFORD GOLDFIELDS LIMITED (the "BORROWER");
(2) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the
"ORIGINAL LENDERS"); and
(3) STANDARD BANK LONDON LIMITED as agent of the Lenders (the "AGENT").
IT IS AGREED as follows:
PART 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Unless defined herein, terms defined in the Common Terms Agreement shall have
the same meaning when used in this Agreement (including in the preamble and the
recitals). This Agreement is a Finance Document, and shall be interpreted and
construed in accordance with the terms and provisions of the Common Terms
Agreement (including Clauses 1.2 to 1.10 thereof, the provisions of which are
hereby incorporated in this Agreement with all necessary consequential changes).
The following terms when used in this Agreement, including its preamble and
recitals, have the following meanings:
"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"AGENT" is defined in the preamble.
"AGREEMENT" is defined in the preamble.
"AVAILABILITY PERIOD" means in relation to Facility A and in relation to
Facility B, the period from and including the date of this Agreement to
and including August 31, 2002.
"AVAILABLE COMMITMENT" means, in relation to a Lender, the aggregate of
its Total Facility A Commitments or, as the case may be, its Total
Facility B Commitments minus, as applicable, the aggregate amount of its
participation in any outstanding Facility A Loan or, as the case may be,
Facility B Loan.
"AVAILABLE FACILITY" means, in relation to Facility A or, as the case
may be, Facility B, the aggregate for the time being of each Lender's
Available Commitment in respect of Facility A or, as the case may be,
Facility B.
"BORROWER" is defined in the preamble to this Agreement.
"BREAK COSTS" means the amount (if any) by which:
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(a) the interest which a Lender should have received for the period
from the date of receipt of all or any part of its participation
in a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that
Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing
an amount equal to the principal amount of such Loan or such
Unpaid Sum received by it on deposit with a leading bank in the
London interbank market for a period starting on the Business Day
following receipt or recovery and ending on the last day of the
current Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
Lenders are open for general business in London and New York.
"COMMITMENT" means a Facility A Commitment or, as the case may be, a
Facility B Commitment.
"COMMON TERMS AGREEMENT" means the Common Terms Agreement dated on or
about the date hereof among the Borrower, any other obligor party
thereto from time to time, the Agent, The Law Debenture Trust
Corporation p.l.c. (as Royalty Holder) and the Security Trustee.
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 7
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Borrower and the Agent.
"DISCHARGED RIGHTS AND OBLIGATIONS" has the meaning given to it in
Clause 18.5(b)(i).
"DOLLARS" and "$" means the lawful currency of the United States of
America.
"FACILITIES" means Facility A and Facility B.
"FACILITY A" means the term loan facility made available under this
Agreement as described in Clause 2.1(a).
"FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount set opposite its
name under the heading "Facility A Commitment" in Schedule 1 (The
Original Lenders) and the amount of any other Facility A
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Facility A
Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
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"FACILITY A LOAN" means the loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan.
"FACILITY A LOAN REPAYMENT DATE" means each of:
(a) the date which is 15 months after the date hereof; and
(b) the last day of each three monthly period thereafter or such
other dates as are agreed by the Lenders and the Borrower
pursuant to the Common Terms Agreement.
"FACILITY A OUTSTANDINGS" means the aggregate amount of the outstanding
Facility A Loan.
"FACILITY A REPAYMENT INSTALMENT AMOUNT" means one sixteenth of the
principal amount of the outstanding Facility A Loan as at the day before
the first Facility A Loan Repayment Date or such other amount as is
agreed by the Lenders and the Borrower pursuant to the Common Terms
Agreement.
"FACILITY B" means the further term loan facility made available under
this Agreement as described in Clause 2.1(b).
"FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount set opposite its
name under the heading "Facility B Commitment" in Schedule 1 (The
Original Lenders) and the amount of any other Facility B
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Facility B
Commitment transferred to it under this Agreement,
in each case to the extent not cancelled, reduced or transferred by it
under this Agreement.
"FACILITY B LOAN" means the loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan.
"FACILITY B LOAN REPAYMENT DATE" means:
(a) the date which is 15 months after the date hereof; and
(b) the last day of each three monthly period thereafter,
or such other dates as are agreed by the Lenders and the Borrower
pursuant to the Common Terms Agreement.
"FACILITY B OUTSTANDINGS" means the aggregate amount of the outstanding
Facility B Loan.
"FACILITY B REPAYMENT INSTALMENT AMOUNT" means one sixteenth of the
principal amount of the outstanding Facility B Loan as at the day before
the first Facility B
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Loan Repayment Date or such other amount as is agreed by the Lenders and
the Borrower pursuant to the Common Terms Agreement.
"FACILITY OFFICE" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Agent and the Borrower setting out any of the
fees referred to in Clause 11.
"FINANCE PARTY" means the Agent, the Security Trustee or a Lender.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INTEREST PERIOD" means, in relation to a Loan, each period determined
in accordance with Clause 9 and, in relation to an Unpaid Sum, each
period determined in accordance with Clause 14.3 of the Common Terms
Agreement.
"LENDER" means:
(a) any Original Lender; and
(b) any person which has become a Party as a Lender in accordance
with Clause 18,
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for Dollars for the Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits Dollars and for a period comparable to the Interest Period for
that Loan.
"LOAN" means a Facility A Loan or, as the case may be, a Facility B
Loan.
"LMA" means the Loan Market Association.
"MAJORITY LENDERS" means, at any time:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 66 2/3% of the Total Commitments
(or, if
4
the Total Commitments have been reduced to zero, aggregated more
than 66 2/3% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in
the Loans then outstanding aggregate more than 66 2/3% of all the
Loans then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost Formula).
"MARKET DISRUPTION EVENT" is defined in Clause 10.2(b).
"MATURITY DATE" means the date which is five years after the date
hereof.
"MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to
end if there is one, or if there is not, on the immediately
preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period
is to end.
The above rules will only apply to the last Month of any period.
"OUTSTANDINGS" means the aggregate of the Facility A Outstandings and
the Facility B Outstandings.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Monetary Union.
"PARTY" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined, two Business Days before the first day of that
period unless market practice differs in the London interbank market, in
which case the Quotation Day will be determined by the Agent in
accordance with market practice in the London interbank market (and if
quotations would normally be given by leading banks in the London
interbank market on more than one day, the Quotation Day will be the
last of those days).
"RECOVERING LENDER" has the meaning given to it in Clause 22.1.
5
"REFERENCE BANKS" means such banks as may be appointed by the Agent for
the purposes of calculating LIBOR.
"SCREEN RATE" means the British Bankers' Association Interest Settlement
Rate for Dollars for the relevant period displayed on the appropriate
page of the Reuters screen. If the agreed page is replaced or service
ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Borrower and
the Lenders.
"SECURITY TRUSTEE" means Standard Bank London Limited in its capacity as
Security Trustee under the Common Terms Agreement.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 9 in
relation to any Facility.
"SHARING PAYMENT" has the meaning given to it in Clause 22.1(c).
"SPECIFIED TIME" means a time determined in accordance with Schedule 6
(Timetables).
"SUBSIDIARY" means a subsidiary within the meaning of section 736 of the
Companies ▇▇▇ ▇▇▇▇.
"TAX" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"TAX DEDUCTION" means a deduction or withholding for or on account of
Tax from a payment under a Finance Document.
"TAXES ACT" means the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
"TERMINATION DATE" means:
(a) in relation to Facility A, the day before the first Facility A
Loan Repayment Date; and
(b) in relation to Facility B, the day before the first Facility B
Loan Repayment Date.
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A
Commitments and the Total Facility B Commitments, being $9,000,000 at
the date of this Agreement.
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments, being $4,000,000 at the date of this Agreement.
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments, being $5,000,000 at the date of this Agreement.
6
"TRANSFER CERTIFICATE" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any other
form agreed between the Agent and the Borrower.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
"UNPAID SUM" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"UTILISATION" means a utilisation of either of the Facilities.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in the form set out
in Part I of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax ▇▇▇
▇▇▇▇ and any other tax of a similar nature.
1.2 CONSTRUCTION
(a) Any reference in this Agreement to:
(i) "ASSETS" includes present and future properties, revenues
and rights of every description;
(ii) a "FINANCE DOCUMENT" or any other agreement or instrument
is a reference to that Finance Document or other agreement
or instrument as amended or novated;
(iii) "INDEBTEDNESS" includes any obligation (whether incurred
as principal or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
(iv) a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a state or any
association, trust or partnership (whether or not having
separate legal personality) or two or more of the
foregoing;
(v) a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(vi) a provision of law is a reference to that provision as
amended or re-enacted; and
7
(vii) unless a contrary indication appears, a time of day is a
reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference
only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
1.3 THIRD PARTY RIGHTS
(a) Except as provided in a Finance Document, the terms of a Finance
Document may be enforced only by a party to it and the operation
of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ is excluded.
(b) Notwithstanding any provision of any Finance Document, the
Parties to a Finance Document do not require the consent of any
third party to rescind or vary any Finance Document at any time.
PART 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available to the
Borrower:
(a) a dollar term loan facility in an aggregate amount equal to the
Total Facility A Commitments; and
(b) a further dollar term loan facility in an aggregate amount equal
to the Total Facility B Commitments.
Each facility may only be utilised in a single drawing.
2.2 LENDERS' RIGHTS AND OBLIGATIONS
(a) The obligations of each Lender under the Finance Documents are
several. Failure by a Lender to perform its obligations under the
Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under
the Finance Documents.
(b) The rights of each Lender under or in connection with the Finance
Documents are separate and independent rights and any debt
arising under the Finance Documents to a Lender from the Borrower
shall be a separate and independent debt.
8
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 PURPOSE
(a) The Borrower shall apply all amounts borrowed by it under
Facility A towards financing the initial purchase consideration
in accordance with the Asset Sale Agreements.
(b) The Borrower shall apply all amounts borrowed by it under
Facility B towards financing the deferred purchase consideration
in accordance with the Asset Sale Agreements.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
The Borrower may not deliver a Utilisation Request in respect of the Facility A
Loan or, as the case may be, the Facility B Loan, unless the Agent has received
all of the documents and other evidence listed in Part I of Schedule 2 and in
respect of a Facility B Loan, all additional documents and other evidence listed
in Part II of Schedule 2, or permanently waived such requirements, and in each
case in form and substance satisfactory to the Agent. The Agent shall, in each
case, notify the Borrower and the Lenders promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders will only be obliged to comply with Clause 5.4 if on the date of the
Utilisation Request and on the proposed Utilisation Date:
(a) no Default is continuing or would result from the proposed Loan;
and
(b) the Repeating Representations to be made by the Borrower on the
date of such Utilisation Request and on such Utilisation Date are
true in all material respects.
PART 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Borrower may utilise a Facility by delivery to the Agent of a duly completed
Utilisation Request not later than the Specified Time.
9
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded
as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iii) the currency and the amount of such Utilisation comply
with Clause 5.3; and
(iv) the proposed Interest Period complies with Clause 9.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be Dollars.
(b) The amount of the proposed Loan must be an amount which is equal
to the Available Facility for such Loan.
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan available
through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to making the Loan.
(c) The Agent shall notify each Lender of the amount of each Loan at
the Specified Time.
PART 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. REPAYMENT
6.1 REPAYMENT OF FACILITY A LOAN
(a) The Borrower shall repay the Facility A Loan in instalments on
each Facility A Loan Repayment Date such that the amount of the
Facility A Loan is reduced on each Facility A Loan Repayment Date
by an amount equal to the Facility A Repayment Instalment Amount
and to zero by the Maturity Date.
(b) The Borrower may not reborrow any part of Facility A which is
repaid.
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6.2 REPAYMENT OF FACILITY B LOAN
(a) The Borrower shall repay the Facility B Loan in instalments on
each Facility B Loan Repayment Date such that the amount of the
Facility B Loan is reduced on each Facility B Loan Repayment Date
by an amount equal to the Facility B Repayment Instalment Amount
and to zero by the Maturity Date.
(b) The Borrower may not reborrow any part of Facility B which is
repaid.
6.3 MANDATORY PREPAYMENT FOLLOWING CASH SWEEP
(a) The Borrower shall, on each Cash Sweep Date on and from Economic
Completion, make a mandatory prepayment of the Outstandings on
such Cash Sweep Date in a principal amount equal to Excess Cash
Flow for the Cash Flow Period most recently ended prior to such
Cash Sweep Date.
(b) Each prepayment pursuant to Clause (a) shall be applied first to
the Facility B Loan (if any such Loan is outstanding) or, if no
Facility B Loan is outstanding, to the Facility A Loan.
(c) Any prepayment under this Clause 6.3 shall satisfy the
obligations under Clause 6.2 or, as the case may be, Clause 6.1
in inverse order.
7. PREPAYMENT AND CANCELLATION
7.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund its participation in
any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware
of that event;
(b) upon the Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the Loans
made to it on the last day of the Interest Period for each Loan
occurring after the Agent has notified the Borrower or, if
earlier, the date specified by the Lender in the notice delivered
to the Agent (being no earlier than the last day of any
applicable grace period permitted by law).
7.2 CHANGE OF CONTROL
(a) If SGL or any subsequent Holding Company from time to time ceases
to control the Borrower:
(i) the Borrower shall promptly notify the Agent upon becoming
aware of that event;
(ii) if the Majority Lenders so require, the Agent shall cancel
the Facilities and declare all outstanding Loans, together
with accrued interest, and
11
all other amounts accrued under the Finance Documents
immediately due and payable, whereupon the Facilities will
be cancelled and all such outstanding amounts will become
immediately due and payable.
(b) For the purpose of paragraph (a) above "CONTROL" means to
exercise or control the exercise of more than 50 per cent. (50%)
of the total voting rights conferred upon the holders of the
entire issued share capital for the time being of the Borrower.
7.3 VOLUNTARY CANCELLATION
The Borrower may, if it gives the Agent not less than 5 Business Days' (or such
shorter period as the Majority Lenders may agree) prior notice, cancel the whole
or any part (being a minimum amount of U.S.$500,000) of an Available Facility.
Any cancellation under this Clause 7.3 shall reduce the Commitments of the
Lenders rateably under that Facility.
7.4 VOLUNTARY PREPAYMENT OF LOANS
(a) The Borrower may, if it gives the Agent not less than 5 Business
Days' (or such shorter period as the Majority Lenders may agree)
prior notice, prepay the whole or any part of the Facility A Loan
or, as the case may be, Facility B Loan (but, if in part, being
an amount that reduces the amount of the Facility A Loan or, as
the case may be, Facility B Loan by a minimum amount of
U.S.$500,000).
(b) A Facility A Loan or, as the case may be, a Facility B Loan may
only be prepaid after the last day of the applicable Availability
Period (or, if earlier, the day on which the applicable Available
Facility is zero).
Any prepayment under this Clause 7.4 shall satisfy the obligations under Clause
6.1 or, as the case may be, Clause 6.2 in inverse order.
7.5 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by the Borrower is required
to be increased under Clauses 8.1(c) or 12.1(a); or
(ii) any Lender claims indemnification from the Borrower under
Clause 15.5 of the Common Terms Agreement,
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice
of cancellation of the Commitment of that Lender and its
intention to procure the repayment of that Lender's participation
in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the
12
Borrower in that notice), the Borrower shall repay that Lender's
participation in that Loan.
7.6 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 7 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty and the Available Commitments
will be reduced pro rata.
(c) No Borrower may reborrow any part of any Facility which is
prepaid.
(d) The Borrowers shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at the
times and in the manner expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 7 it shall
promptly forward a copy of that notice to either the Borrower or
the affected Lender, as appropriate.
PART 5
COSTS OF UTILISATION
8. INTEREST
8.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the percentage
rate per annum which is the aggregate of the:
(a) Applicable Margin;
(b) LIBOR; and
(c) the Mandatory Cost, if any.
8.2 PAYMENT OF INTEREST
Interest shall accrue on each Loan and the Borrower shall pay interest as set
forth below:
(a) during the period up to the New Ownership Date, accrued interest
shall be paid by the Borrower on the New Ownership Date or, at
the election of the Agent, on demand from time to time;
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(b) during the twelve month period commencing on the day immediately
after the New Ownership Date, interest due but unpaid may remain
unpaid but shall be capitalised at monthly intervals during that
12 month period; and
(c) commencing with the period thereafter, accrued interest shall be
paid by the Borrower on the last day of each Interest Period
(commencing with the first such Interest Period ending after such
12 month period) or, if such Interest Period is in excess of
three months, on each Cash Sweep Date falling during such
Interest Period.
8.3 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
9. INTEREST PERIODS
9.1 SELECTION OF INTEREST PERIODS
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan or (if the Loan has already
been borrowed) in a Selection Notice.
(b) Each Selection Notice for a Loan is irrevocable and must be
delivered to the Agent by the Borrower to which that Loan was
made not later than the Specified Time.
(c) If the Borrower fails to deliver a Selection Notice to the Agent
in accordance with paragraph (b) above, the relevant Interest
Period will, subject to Clause 8, be one Month.
(d) Subject to this Clause 9, the Borrower may select an Interest
Period of one, three or six Months or any other period agreed
between the Borrower and the Agent (acting on the instructions of
all the Lenders). In addition, the Borrower may select an
Interest Period of, in relation to Facility A or, as the case may
be, Facility B a period of less than one Month, if necessary to
ensure that such Interest Period will end on a Facility A
Repayment Date as determined in accordance with Clause 6.1 or, as
the case may be, a Facility B Repayment Date as determined in
accordance with Clause 6.2.
(e) Subject to Clause (g), an Interest Period for a Loan shall not
extend beyond the Maturity Date or beyond the next Cash Sweep
Date.
(f) The first Interest Period for a Loan shall start on the date such
Loan is made and for all succeeding Interest Periods shall start
on the last day of its preceding Interest Period.
(g) The Borrower may only select an Interest Period for a Loan
which extends beyond a Cash Sweep Date if, on or prior to each
Cash Sweep Date period falling during such Interest Period, the
Borrower has deposited (and the Borrower hereby undertakes to
deposit) with the Security Trustee in a blocked account
(denominated in Dollars) other than a Project Account and which
is
14
subject to a lien in favour of the Lenders, an amount not less
than the aggregate interest accrued on such Loan during such
Interest Period up to and including such Cash Sweep Date. The
Borrower agrees that funds may only be withdrawn from such
account to make payments of interest on such Loan.
9.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business Day,
that Interest Period will instead end on the next Business Day in that calendar
month (if there is one) or the preceding Business Day (if there is not).
10. CHANGES TO THE CALCULATION OF INTEREST
10.1 ABSENCE OF QUOTATIONS
Subject to Clause 10.2, if LIBOR is to be determined by reference to the
Reference Banks but a Reference Bank does not supply a quotation by the
Specified Time on the Quotation Day, the applicable LIBOR shall be determined on
the basis of the quotations of the remaining Reference Banks.
10.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share
of that Loan for the Interest Period shall be the rate per annum
which is the sum of:
(i) the Applicable Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be
paid in respect of that Interest Period, to be that which
expresses as a percentage rate per annum the cost to that
Lender of funding its participation in that Loan from
whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none
or only one of the Reference Banks supplies a rate to the
Agent to determine LIBOR for Dollars for the relevant
Interest Period; or
(ii) before close of business in London on the Quotation Day
for the relevant Interest Period, the Agent receives
notifications from a Lender or Lenders (whose
participations in a Loan exceed 25 per cent. of that Loan)
that the cost to it or them of obtaining matching deposits
in the London interbank market would be in excess of
LIBOR.
15
10.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the Borrower
so requires, the Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty days) with a
view to agreeing a substitute basis for determining the rate of
interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
10.4 BREAK COSTS
(a) The Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by the Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the amount
of its Break Costs for any Interest Period in which they accrue.
11. FEES
The Borrower shall pay to the Agent (for its own account) an agency fee in the
amount and at the times agreed in a Fee Letter.
PART 6
ADDITIONAL PAYMENT OBLIGATIONS
12. INCREASED COSTS
12.1 INCREASED COSTS
(a) Subject to Clause 12.3 the Borrower shall, within three Business
Days of a demand by the Agent, pay for the account of a Finance
Party the amount of any Increased Costs incurred by that Finance
Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation or
application of) any law or regulation or (ii) compliance with any
law or regulation made after the date of this Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from a Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any
Finance Document,
16
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing
its obligations under any Finance Document.
12.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 12.1
shall notify the Agent of the event giving rise to the claim,
following which the Agent shall promptly notify the Borrower.
(b) Each Finance Party shall, as soon as practicable after a demand
by the Agent, provide a certificate confirming the amount of its
Increased Costs.
12.3 EXCEPTIONS
Clause 12.1 does not apply to the extent any Increased Cost is:
(a) attributable to a Tax Deduction required by law to be made by the
Borrower;
(b) compensated for by the payment of the Mandatory Cost; or
(c) attributable to the wilful breach by the relevant Finance Party
or its Affiliates of any law or regulation.
13. INDEMNITY TO THE AGENT
The Borrower shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
14. MITIGATION BY THE LENDERS
14.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Borrower, take
all reasonable steps to mitigate any circumstances which arise
and which would result in any amount becoming payable by way of
additional Mandatory Cost or under, or cancelled pursuant to, any
of Clause 7.1 or Clause 12 including (but not limited to)
transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of
the Borrower under the Finance Documents.
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14.2 LIMITATION OF LIABILITY
(a) The Borrower, provided it has approved the material steps taken
under Clause 14.1, shall indemnify each Finance Party for all
costs and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under Clause 14.1.
(b) A Finance Party is not obliged to take any steps under Clause
14.1 if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
15. COSTS AND EXPENSES
If:
(a) the Borrower requests an amendment, waiver or consent; or
(b) an amendment is required pursuant to Clause 23.9;
the Borrower shall, within three Business Days of demand, reimburse the Agent
for the amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or complying
with that request or requirement.
PART 7
REPRESENTATIONS AND EVENTS OF DEFAULT
16. REPRESENTATIONS
The representations of the Borrower set forth in Clause 4 of the Common Terms
Agreement shall be true and correct in all material respects as of the date of
this Agreement and from time to time as repeated in the case of each of the
Repeating Representations.
17. EVENTS OF DEFAULT
On and at any time after the occurrence of an Event of Default the Agent may,
and shall (subject to the applicable grace period, if any, in the Common Terms
Agreement) if so directed by the Majority Lenders, by notice to the Borrower:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
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PART 8
CHANGES TO PARTIES
18. CHANGES TO THE LENDERS
18.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 18, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution (the "NEW LENDER").
18.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Borrower is required for an assignment or
transfer by a Lender, unless the assignment or transfer is to
another Lender or an Affiliate of a Lender.
(b) The consent of the Borrower to an assignment or transfer must not
be unreasonably withheld or delayed. The Borrower will be deemed
to have given its consent five Business Days after the Lender has
requested it unless consent is expressly refused by the Borrower
within that time or unless Clause 7.1 would apply to the assignee
or the transferee immediately after such transfer or assignment.
(c) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Finance Parties as it would have
been under if it was an Original Lender.
(d) A transfer will only be effective if the procedure set out in
Clause 18.5 is complied with.
(e) Any assignment or transfer by an Existing Lender to a New Lender
shall only be effective if it transfers or assigns the Existing
Lender's share of each Facility pro rata.
(f) If:
(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes its
Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, the Borrower would
be obliged to make a payment to the New Lender or Lender
acting through its new Facility Office under Clause
15.5(a) of the Common Terms Agreement, Clause 8.1(c) or
Clause 12,
19
then the New Lender or Lender acting through its new
Facility Office is only entitled to receive payment under
those Clauses to the same extent as the Existing Lender or
Lender acting through its previous Facility Office would
have been if the assignment, transfer or change had not
occurred.
18.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer takes
effect, pay to the Agent (for its own account) a fee of $1,000.
18.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any
other document,
and any representations or warranties implied by law are
excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition
and affairs of each Obligor and its related entities in
connection with its participation in this Agreement and
has not relied exclusively on any information provided to
it by the Existing Lender in connection with any Finance
Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the
Finance Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under this
Clause 18; or
(ii) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by the
Borrower of its obligations under the Finance Documents or
otherwise.
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18.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 18.2 a transfer is
effected in accordance with paragraph (b) below when the Agent
executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender. The
Agent shall, as soon as reasonably practicable after receipt by
it of a duly completed Transfer Certificate appearing on its face
to comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that
Transfer Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights
and obligations under the Finance Documents each of the
Borrower and the Existing Lender shall be released from
further obligations towards one another under the Finance
Documents and their respective rights against one another
shall be cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
(ii) the Borrower and the New Lender shall assume obligations
towards one another and/or acquire rights against one
another which differ from the Discharged Rights and
Obligations only insofar as the Borrower and the New
Lender have assumed and/or acquired the same in place of
the Borrower and the Existing Lender;
(iii) the Agent, the New Lender and other Lenders shall acquire
the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the
New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent and the Existing
Lender shall each be released from further obligations to
each other under this Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
18.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to, or
any other transaction under which payments are to be made by
reference to, this Agreement or the Borrower; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
21
any information about the Borrower, the Group and the Finance Documents as that
Lender shall consider appropriate if, in relation to paragraphs (a) and (b)
above, the person to whom the information is to be given has entered into a
Confidentiality Undertaking.
19. NO CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
PART 9
THE FINANCE PARTIES
20. ROLE OF THE AGENT
20.1 APPOINTMENT OF THE AGENT
(a) The Lenders appoint the Agent to act as its agent under and in
connection with the Finance Documents.
(b) The Lenders authorise the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under
or in connection with the Finance Documents together with any
other incidental rights, powers, authorities and discretions.
20.2 DUTIES OF THE AGENT
(a) The Agent shall 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 notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Lenders.
(c) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
20.3 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent as a trustee or
fiduciary of any other person.
(b) The Agent shall not be bound to account to any Lender for any sum
or the profit element of any sum received by it for its own
account.
20.4 BUSINESS WITH THE GROUP
The Agent may accept deposits from, lend money to and generally engage in any
kind of banking or other business with any member of the Group.
22
20.5 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to
be genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of
a Default arising under Clause 7.1 of the Common Terms
Agreement); and
(ii) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised.
(c) The Agent may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
20.6 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the
Agent shall:
(i) act in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority
Lenders, refrain from acting or exercising any right,
power, authority or discretion vested in it as Agent); and
(ii) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with such
an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Lenders.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such lien as it may require for
any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from
taking action) as it considers to be in the best interest of the
Lenders.
23
(e) The Agent is not authorised to act on behalf of a Lender without
first obtaining that Lender's consent in any legal or arbitration
proceedings relating to any Finance Document.
20.7 RESPONSIBILITY FOR DOCUMENTATION
The Agent:
(a) is not responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the
Agent, the Borrower or any other person given in or in connection
with any Finance Document; or
(b) is not responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or executed
in anticipation of or in connection with any Finance Document.
20.8 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Agent will not be
liable for any action taken by it under or in connection with any
Finance Document, unless directly caused by its gross negligence
or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee
or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any
kind by that officer, employee or agent in relation to any
Finance Document and any officer, employee or agent of the Agent
may rely on this Clause. Any third party referred to in this
paragraph (b) may enjoy the benefit of or enforce the terms of
this paragraph in accordance with the provisions of the Contracts
(Rights of Third Parties) ▇▇▇ ▇▇▇▇.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the Agent
has taken all necessary steps as soon as reasonably practicable
to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent for
that purpose.
20.9 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of:
(a) the Total Commitment; or
(b) if the Total Commitments are then zero, to its share of the
aggregate amount of all Outstandings)
indemnify the Agent, within three Business Days of demand, against any cost,
loss or liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) in acting as Agent under the Finance
Documents (unless the Agent has been reimbursed by the Borrower pursuant to a
Finance Document).
24
20.10 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving
notice to the Lenders and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the
Lenders and the Borrower, in which case the Majority Lenders
(after consultation with the Borrower) may appoint a successor
Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice
of resignation was given, the Agent (after consultation with the
Borrower) may appoint a successor Agent (acting through an office
in the United Kingdom).
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
20. Its successor and each of the other Parties shall have the
same rights and obligations amongst themselves as they would have
had if such successor had been an original Party.
(g) After consultation with the Borrower, the Majority Lenders may,
by notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
20.11 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments.
(b) If information is received by another division or department of
the Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of
it.
(c) Notwithstanding any other provision of any Finance Document to
the contrary, the Agent is not obliged to disclose to any other
person:
(i) any confidential information; or
(ii) any other information if the disclosure would or might in
its reasonable opinion constitute a breach of any law or a
breach of a fiduciary duty.
25
20.12 RELATIONSHIP WITH THE LENDERS
(a) The Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office
unless it has received not less than five Business Days prior
notice from that Lender to the contrary in accordance with the
terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required
by the Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formula).
20.13 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of the Borrower for information supplied by
it or on its behalf in connection with any Finance Document, each Lender
confirms to the Agent that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but not
limited to:
(a) the financial condition, status and nature of each member of the
Group or any Obligor;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets
under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document; and
(d) the adequacy, accuracy and/or completeness of any information
provided by the Agent, any Party or by any other person under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document.
20.14 LENDERS' TAX STATUS CONFIRMATION
Each Lender confirms in favour of the Agent on the date of this Agreement or, in
the case of a Lender which becomes a Party pursuant to a transfer or assignment,
on the date on which the relevant transfer or assignment becomes effective that
either:
(a) it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to its share of the Loan and associated
interest; or
(b) it is a bank as defined for the purposes of section 349 of the
Taxes Act and is beneficially entitled to its share of the Loan
and associated interest,
26
and each Lender shall promptly notify the Agent if there is any change in its
position from that set out above.
20.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of
which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Borrower) appoint another Lender or an Affiliate of a
Lender to replace that Reference Bank.
20.16 AGENT'S MANAGEMENT TIME
Any amount payable to the Agent under Clause 15.4 of the Common Terms Agreement,
Clause 15 and Clause 20.9 shall include the cost of utilising the Agent's
management time or other resources and will be calculated on the basis of such
reasonable daily or hourly rates as the Agent may notify to the Borrower and the
Lenders, and is in addition to any fee paid or payable to the Agent under
Clause 11.
20.17 COMMON TERMS AGREEMENT AND THE FINANCE DOCUMENTS
Each Lender authorises the Agent to enter into the Common Terms Agreement and
each other Finance Documents to which the Agent is party as agent for such
Lender and such Lender agrees to abide by the terms of the Common Terms
Agreement and such other Finance Documents.
21. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
22. SHARING AMONG THE LENDERS
22.1 PAYMENTS TO LENDERS
If a Lender (a "RECOVERING LENDER") receives or recovers any amount from the
Borrower other than in accordance with Clause 23 and applies that amount to a
payment due under the Finance Documents then, without prejudice to the terms of
the Common Terms Agreement (which shall prevail over this Clause 22):
(a) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid
had the receipt or recovery been received or made by the Agent
and distributed in accordance
27
with Clause 23, without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or
distribution; and
(c) the Recovering Lender shall, within three Business Days of demand
by the Agent, pay to the Agent an amount (the "SHARING PAYMENT")
equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share
of any payment to be made, in accordance with Clause 23.5.
22.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the Borrower
and distribute it between the Finance Parties (other than the Recovering Lender)
in accordance with Clause 23.5.
22.3 RECOVERING LENDER'S RIGHTS
(a) On a distribution by the Agent under Clause 22.2, the Recovering
Lender will be subrogated to the rights of the Finance Parties
which have shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to
rely on its rights under paragraph (a) above, the Borrower shall
be liable to the Recovering Lender for a debt equal to the
Sharing Payment which is immediately due and payable.
22.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering Lender
becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 22.2 shall, upon request of the Agent,
pay to the Agent for account of that Recovering Lender an amount
equal to its share of the Sharing Payment (together with an
amount as is necessary to reimburse that Recovering Lender for
its proportion of any interest on the Sharing Payment which that
Recovering Lender is required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrower will be liable
to the reimbursing Lender for the amount so reimbursed.
22.5 EXCEPTIONS
(a) This Clause 22 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the Borrower.
(b) A Recovering Lender is not obliged to share with any other Lender
any amount which the Recovering Lender has received or recovered
as a result of taking legal or arbitration proceedings, if:
28
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lender had an opportunity to participate in
those legal or arbitration proceedings but did not do so
as soon as reasonably practicable having received notice
or did not take separate legal or arbitration proceedings.
PART 10
ADMINISTRATION
23. PAYMENT MECHANICS
23.1 PAYMENTS TO THE AGENT
(a) Subject to the Common Terms Agreement, on each date on which the
Borrower or a Lender is required to make a payment under a
Finance Document, the Borrower or Lender shall make the same
available to the Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in
such funds specified by the Agent as being customary at the time
for settlement of transactions in the relevant currency in the
place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency with such bank as the
Agent specifies.
23.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for another Party
shall, subject to Clause 23.3 and Clause 23.4 be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account of its
Facility Office), to such account as that Party may notify to the Agent by not
less than five Business Days' notice with a bank in the principal financial
centre of the country of that currency.
23.3 DISTRIBUTIONS TO THE BORROWER
The Agent may (with the consent of the Borrower or in accordance with Clause 24)
apply any amount received by it for the Borrower in or towards payment (on the
date and in the currency and funds of receipt) of any amount due from the
Borrower under the Finance Documents or in or towards purchase of any amount of
any currency to be so applied.
23.4 CLAWBACK
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay that
sum to that other Party (or to enter into or perform any related
exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be
the case that the Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid by the
29
Agent shall on demand refund the same to the Agent together with
interest on that amount from the date of payment to the date of
receipt by the Agent, calculated by the Agent to reflect its cost
of funds.
23.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by the Borrower under the
Finance Documents, the Agent shall apply that payment towards the
obligations of the Borrower under the Finance Documents in the
following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent under the Finance
Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this
Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal
due but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made
by the Borrower.
23.6 NO SET-OFF BY THE BORROWER
All payments to be made by the Borrower under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off
or counterclaim.
23.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
(b) During any extension of the due date for payment of any principal
or an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
23.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, Dollars is the currency
of account and payment for any sum due from the Borrower under
any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or Unpaid
Sum is denominated on its due date.
30
(c) Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than
Dollars shall be paid in that other currency.
23.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in the
currency of that country shall be translated into, or paid
in, the currency or currency unit of that country
designated by the Agent (after consultation with the
Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or
down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Borrower) specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the London interbank market and otherwise to
reflect the change in currency.
24. SET-OFF
A Finance Party may set off any matured obligation due from the Borrower under
the Finance Documents (to the extent beneficially owned by that Finance Party)
against any matured obligation owed by that Finance Party to the Borrower,
regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Finance Party
may convert either obligation at a market rate of exchange in its usual course
of business for the purpose of the set-off.
25. CALCULATIONS AND CERTIFICATES
25.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in connection
with a Finance Document, the entries made in the accounts maintained by a
Finance Party are prima facie evidence of the matters to which they relate.
31
25.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount under
any Finance Document is, in the absence of manifest error, conclusive evidence
of the matters to which it relates.
25.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will accrue
from day to day and is calculated on the basis of the actual number of days
elapsed and a year of 360 days or, in any case where the practice in the London
interbank market differs, in accordance with that market practice.
26. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes illegal,
invalid or unenforceable in any respect under any law of any jurisdiction,
neither the legality, validity or enforceability of the remaining provisions nor
the legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
27. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or remedy. The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
28. AMENDMENTS AND WAIVERS
28.1 REQUIRED CONSENTS
(a) Subject to Clause 28.2 and to the Common Terms Agreements any
term of the Finance Documents may be amended or waived only with
the consent of the Majority Lenders and the Borrower and any such
amendment or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
28.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1;
(ii) an extension to the date of payment of any amount under
the Finance Documents;
(iii) a reduction in the Applicable Margin or the amount of any
payment of principal, interest, fees or commission
payable;
32
(iv) an increase in Commitment;
(v) any provision which expressly requires the consent of all
the Lenders; or
(vi) Clause 2.2, Clause 18 or this Clause 28,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations
of the Agent may not be effected without the consent of the
Agent.
29. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
PART 12
GOVERNING LAW AND ENFORCEMENT
30. GOVERNING LAW
This Agreement is governed by English law.
31. ENFORCEMENT
31.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 31.1 is for the benefit of the Finance Parties only.
As a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.
31.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any relevant law,
the Borrower:
(a) shall on or before the New Ownership Date irrevocably appoint as
an agent for service of process in relation to any proceedings
before the English courts in connection with any Finance
Document; and
33
(b) agrees that failure by a process agent to notify the Borrower of
the process will not invalidate the proceedings concerned.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
34
THE BORROWER WEXFORD GOLDFIELDS LIMITED
By:
Name:
Address: ▇/▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Education Loop (off ▇▇▇▇▇▇ ▇▇▇▇)
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇
S-1
THE AGENT
STANDARD BANK LONDON LIMITED
By:
Name:
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: + ▇▇ (▇)▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
S-2
THE LENDERS
BAYERISCHE HYPO-UND VEREINSBANK AG
By:
Name:
Address: GPF ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: + ▇▇ (▇)▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: Loans Services
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: + ▇▇ (▇)▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Miloslawer
Address: FPA9
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: + 49 89 378-31847
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
S-3
DRESDNER BANK AG
By:
Name:
Address: ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: + ▇▇ (▇) ▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
S-4
FORTIS BANK (NEDERLAND) N.V.
By:
Name:
Address: Such address as is notified in writing from time to time to
the Facility Agent
S-5
STANDARD BANK LONDON LIMITED
By:
Name:
Address: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: + ▇▇ (▇)▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
S-6
SCHEDULE 1
THE ORIGINAL LENDERS
Name of Original Lender Facility A Commitment Facility B Commitment
Bayerische Hypo-und $1,090,909 $1,363,636
Vereinsbank ▇▇
▇▇▇▇▇▇▇▇ Bank AG London Branch $1,454,545 $1,818,181
Fortis Bank (Nederland) N.V. $ 727,273 $ 909,090
Standard Bank London Limited $ 727,273 $ 909,093
SS-1
SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO ANY UTILISATION
1. RESOLUTIONS, ETC.
The Agent shall have received:
(a) from the Borrower and each Ghana Insurer a certificate of its
Secretary or similar officer as to:
(i) resolutions of its Board of Directors, Management
Committee or similar body then in full force and effect
authorising the execution, delivery and performance of
(where applicable) this Agreement and each other Operative
Document and 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 (where applicable) this
Agreement and each other Operative Document and other such
document executed or to be executed by it; and
(iii) its Organic Documents as then in effect,
upon which certificates each Finance Party may conclusively rely
until it shall have received a further certificate of the
Secretary or similar officer of (where applicable) the Borrower
cancelling or amending such prior certificate; provided, however,
that any such further certificate may not retroactively cancel or
amend any matters contained in any certificate previously
delivered hereunder; and
(b) such other documents (certified if requested) as the Agent may
reasonably request from the Borrower, any Obligor or any other
Project Party, as the case may be, with respect to any Organic
Document, Contractual Obligation, Operative Document or Approval.
2. SECURITY AGREEMENTS
The Agent and the Security Trustee shall each have received:
(a) counterparts of each of the Security Agreements:
(i) in each case executed (where applicable), by an Authorised
Representative of the Borrower and each other Obligor
party thereto;
(ii) in the case of the Assignments of Reinsurances by a duly
authorised officer of each of the Ghana Insurer party
thereto; and
(iii) in the case of the Contractor's Undertakings, by a duly
authorised officer of the Contractor party thereto;
SS-2
(b) such evidence of filing as may be acceptable to the Agent, naming
the Borrower as debtor (as appropriate) and the relevant Finance
Parties as secured parties, and/or other similar instruments or
documents, filed under the Applicable Law of all jurisdictions as
may be necessary or, in the opinion of legal advisers to the
Agent, advisable or desirable to perfect the lien interests
purported to be granted pursuant to the Security Agreements; and
(c) copies of each payment notice, counterparty notice or notice of
assignment (as referred to in and required by any Security
Agreements or otherwise), duly executed by an Authorised
Representative of the Borrower obliged to give such notice and/or
the relevant Representative (as the case may be), and by an
authorised signatory of any other person required to execute such
notice.
3. SUBORDINATION AGREEMENTS
The Agent and the Security Trustee shall each have received counterparts
of each Subordination Agreement, duly executed by an Authorised
Representative of (where applicable) party thereto, and by a duly
authorised officer of each other party thereto.
4. PROJECT DOCUMENTS; APPROVALS
The following conditions shall have been met:
(a) all Project Documents shall be satisfactory in form and substance
to the Agent (acting on the instructions of the Lenders (acting
reasonably)), shall be in full force and effect, and copies
thereof (certified by an Authorised Representative of (where
applicable) the Borrower) shall have been delivered to the Agent;
(b) the Agent shall have received a certificate of an Authorised
Representative of the Borrower, to the effect that:
(i) all Approvals of the nature referred to in the first
sentence of Clause 4.17(a) of the Common Terms Agreement
have been obtained, all such Approvals are listed in Part
A ("Current Approvals") of Item 1 of the Disclosure
Schedule and each such Current Approval is in full force
and effect as of the date listed in Part A of Item 1
("Current Approvals") of Item 1 of the Disclosure
Schedule; and
(ii) a true, correct, and complete copy of each such Approval
is attached to such certificate.
5. INSURANCE
The terms of and policies of insurance required to be maintained
pursuant to Clause 5.8 of the Common Terms Agreement (including as to
amount, risks covered and deductibles and as to the noting of the
Finance Parties' interests thereon and the naming of the Security
Trustee as sole loss payee where required in accordance with Clause 5.8
of the Common Terms Agreement) shall be reasonably satisfactory to the
Representatives, and the Agent shall have received a schedule detailing
all policies of insurance maintained in connection with the Project. In
addition, the Agent shall have received copies of all policies and
binders or brokers' letters of undertaking regarding such policies, such
copies having been certified as being true and complete copies of
SS-2
the originals by an Authorised Representative of the Borrower. The Agent
shall also have received:
(a) the Insurance Summary;
(b) the Insurance Advisor's Certificate (or such other evidence
relating to the adequacy of insurance cover with respect to the
Project as the Agent, in its sole and absolute discretion, may
accept); and
(c) evidence reasonably satisfactory to the Agent that all premiums
(or deposits in connection therewith) required to be paid in
order to ensure that the policies referred to in this Schedule
are in full force and effect, have been paid and that all such
policies are in full force and effect.
6. PROJECT ACCOUNTS
The Agent and the Security Trustee shall have received:
(a) evidence that the Project Accounts that are required to have been
established by the first Utilisation have been established;
(b) counterparts of the Project Account Agreement (U.K.) duly
executed by the Project Account Bank (U.K.) and an Authorised
Representative of the Borrower;
(c) counterparts of the Project Account Agreement (Ghana) duly
executed by the Project Account Bank (Ghana) and an Authorised
Representative of the Borrower;
(d) counterparts of certificates substantially in the form of Exhibit
E of each Project Account Agreement duly executed by each Project
Account Bank party to each such Project Account Agreement.
7. PROCESS AGENT ACCEPTANCE
The Agent and the Security Trustee shall each have received a
counterpart of the Process Agent Acceptance, duly executed by the
Process Agent, together with any other necessary evidence of the
appointment of the Process Agent by the Borrower, the Ghana Insurer and
each other Obligor.
8. OPINIONS OF COUNSEL
The Agent shall have received opinions from:
(a) Bentsi-Enchill & Letsa, legal advisers in Ghana to the Agent, in
a form acceptable to the Agent (acting reasonably); and
(b) Mayer, Brown, ▇▇▇▇ & Maw, English legal advisers to the Agent, in
a form acceptable to the Agent (acting reasonably).
SS-2
9. DUE DILIGENCE REPORT
The Agent shall have received from the Agent's Ghanaian legal counsel a
legal due diligence report in a form satisfactory to it (acting
reasonably) addressed to each Finance Party and the Arranger.
10. MATERIAL AGREEMENTS
The Agent shall have received certified copies of each Instrument listed
under Item 11 (Material Agreements) of the Disclosure Schedule.
11. MINISTER'S CONSENT
The Agent shall have received evidence of such consents as shall be
required by any Finance Party, including the Ghanaian Minister for Mines
approval of the Borrower Security Agreement (Ghana - Debenture) and the
transfer of the Mining Lease to the Borrower.
12. SUBORDINATED NOTE
The Borrower shall have issued the Subordinated Note to SGL.
13. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC.
The representations and warranties of the Borrower set forth in Clause 4
of the Common Terms Agreement and those of the Borrower, the Ghana
Insurer and each other Obligor set forth in each other Finance Document
to which such person is a party shall be true and correct in all
material respects as of the date initially made, and as if made both
immediately before and immediately after the making of the Loans.
14. UTILISATION REQUEST
The Agent shall have received a duly completed Utilisation Request for
such Loan. The delivery of a Utilisation 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 Utilisation
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 4 of the Common Terms Agreement are true
and correct.
15. 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 acting
reasonably and the Agent shall have received all information, and such
counterpart originals or such certified or other copies of such
Instruments related to the conditions precedent described in this
Schedule, as the Finance Parties or their legal advisers may reasonably
request.
SS-2
PART II
ADDITIONAL CONDITIONS PRECEDENT TO FACILITY B UTILISATIONS
1. The Agent shall have received counterparts of the Support Agreement and
the Holding Company Security Agreement and the Caystar Holdings Security
Agreement:
(a) executed by an Authorised Representative of each party thereto;
(b) such evidence of filing as may be acceptable to the Agent, filed
under the Applicable Law of all jurisdictions as may be necessary
or, in the opinion of legal advisers to the Agent, advisable or
desirable to perfect the lien purported to be granted pursuant
thereto; and
(c) copies of each payment notice, counterparty notice or notice of
assignment (as referred to in and required by any Security
Agreement or otherwise) duly executed by an Authorised
Representative of the Obligor party thereto and such other
obligor obliged to give notice and/or the relevant Representative
(as the case may be), and by an authorised signatory of any other
person required to execute such notice.
2. Documentary evidence that the proceeds from the Facility B Utilisation
will be applied solely towards payment of the liabilities of the
Borrower under the Asset Sale Agreement.
3. Each condition set forth in Part I which has not been satisfied or
waived in writing as at the date of the relevant Utilisation of Facility
B.
4. Such other conditions precedent as the Agent and the Borrower shall
agree on or prior to the Sale Date.
SS-2
SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
From: Wexford Goldfields Limited
To: Standard Bank London Limited
Dated:
Dear Sirs
WEXFORD GOLDFIELDS LIMITED -- PROJECT FACILITY AGREEMENT
DATED [=], 2002 (THE "FACILITY AGREEMENT")
1. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a
Business Day, the next Business Day)
Facility to be utilised: [Facility A]/[Facility B]*
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
2. We confirm that each condition specified in Clause 4.2 is satisfied on
the date of this Utilisation Request.
3. The proceeds of this Loan should be credited to [account].
4. This Utilisation Request is irrevocable.
Yours faithfully
-------------------------------
authorised signatory for
Wexford Goldfields Limited
----------
* Delete as appropriate.
SS-3
PART II
SELECTION NOTICE
From: Wexford Goldfields Limited
To: [Agent]
Dated:
Dear Sirs
WEXFORD GOLDFIELDS LIMITED - PROJECT FACILITY AGREEMENT
DATED [=], 2002 (THE "FACILITY AGREEMENT")
1. We refer to the following Facility [A][B] Loan[s] with an Interest
Period ending on [ ]*
2. [We request that the above Facility [A][B] Loan[s] be divided into [ ]
Facility [A][B] Loans with the following amounts and Interest
Periods:]**
or
[We request that the next Interest Period for the above Facility [A][B]
Loan[s] is [ ]].***
3. This Selection Notice is irrevocable.
Yours faithfully
-------------------------------
authorised signatory for
Wexford Goldfields Limited
----------
* Insert details of all Facility [A][B] Loans which have an Interest Period
ending on the same date.
** Use this option if division of Loans is requested.
*** Use this option if sub-division is not required.
SS-3
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b)
the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"ADDITIONAL COST RATE") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Agent. This percentage will be certified by that Lender in
its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of Loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
A x 0.01 per cent. per annum
--------
300
Where:
A is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per Pound
Sterling1,000,000.
5. For the purposes of this Schedule:
(a) "SPECIAL DEPOSITS" has the meaning given to it from time to time
under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
(b) "FEES RULES" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may be
in force from time to time in respect of the payment of fees for
the acceptance of deposits;
(c) "FEE TARIFFS" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees Rules
but taking into account any applicable discount rate); and
(d) "TARIFF BASE" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect of
SS-4
the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average
of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per Pound Sterling1,000,000 of the Tariff
Base of that Reference Bank.
Each Reference Bank shall promptly notify the Agent in writing of any
change to the information provided by it pursuant to this paragraph.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
in writing on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) any other information that the Agent may reasonably require for
such purpose.
Each Lender shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
8. The percentages of each Lender for the purpose of A above shall be
determined by the Agent based upon the information supplied to it
pursuant to paragraphs 6 and 7 above and on the assumption that, unless
a Lender notifies the Agent to the contrary, each Lender's obligations
in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 6 and 7 above is
true and correct in all respects.
10. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for each Lender based on the information provided by each Lender
and each Reference Bank pursuant to paragraphs 3, 6 and 7 above.
11. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
12. The Agent may from time to time, after consultation with the Borrower
and the Lenders, determine and notify to all Parties any amendments
which are required to be made to this Schedule in order to comply with
any change in law, regulation or any requirements from time to time
imposed by the Bank of England, the Financial Services Authority or the
European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
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SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
To: [ ] as Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender]
(the "NEW LENDER")
Dated:
WEXFORD GOLDFIELDS LIMITED -- PROJECT FACILITY AGREEMENT
DATED [=], 2002 (THE "FACILITY AGREEMENT")
1. We refer to Clause 18.5:
(a) The Existing Lender and the New Lender agree to the Existing
Lender and the New Lender transferring by novation all or part of
the Existing Lender's Commitment, rights and obligations referred
to in the Schedule in accordance with Clause 18.5.
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details
for notices of the New Lender are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 18.4.
3. This Transfer Certificate is governed by English law.
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date
is confirmed as [ ].
[Agent]
By:
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SCHEDULE 6
TIMETABLES
Delivery of a duly completed: 5 Business
(i) Utilisation Request (Clause 5.1): Days prior to
or Utilisation
Date
(ii) Selection Notice (Clause 9.1): 5 Business
Days prior to
the end of
Interest
Period
preceding the
Interest
Period to
which such
Selection
Notice relates
Agent notifies the Lenders of the
Loan in accordance with Clause 5.4(c)
LIBOR is fixed Quotation Day
as of 11:00
a.m. London
time
Reference Banks gives quotation as Quotation Day
contemplated by Clause 10.1 as of 11:00
a.m. London
time
SS-6
SCHEDULE 7
LMA FORM OF CONFIDENTIALITY UNDERTAKING
[LETTERHEAD OF LENDER]
To: [insert name]
Re: THE FACILITIES
BORROWER:
AMOUNT:
AGENT:
Dear Sirs
We understand that you are considering participating in the Facilities. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
1. CONFIDENTIALITY UNDERTAKING
You undertake:
(a) to keep the Confidential Information confidential and not to
disclose it to anyone except as provided for by paragraph 2 below
and to ensure that the Confidential Information is protected with
security measures and a degree of care that would apply to your
own confidential information;
(b) to keep confidential and not disclose to anyone the fact that the
Confidential Information has been made available or that
discussions or negotiations are taking place or have taken place
between us in connection with the Facilities;
(c) to use the Confidential Information only for the Permitted
Purpose;
(d) to use all reasonable endeavours to ensure that any person to
whom you pass any Confidential Information (unless disclosed
under paragraph 2(b) below) acknowledges and complies with the
provisions of this letter as if that person were also a party to
it; and
(e) not to make enquiries of any member of the Group or any of their
officers, directors, employees or professional advisers relating
directly or indirectly to the Facilities.
2. PERMITTED DISCLOSURE
We agree that you may disclose Confidential Information:
(a) to members of the Participant Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Participant Group;
SS-7
(b) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental, supervisory
or regulatory body, (ii) where required by the rules of any stock
exchange on which the shares or other securities of any member of
the Participant Group are listed or (iii) where required by the
laws or regulations of any country with jurisdiction over the
affairs of any member of the Participant Group; or
(c) with the prior written consent of us and the Borrower.
3. NOTIFICATION OF REQUIRED OR UNAUTHORISED DISCLOSURE
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2(b) or upon becoming
aware that Confidential Information has been disclosed in breach of this
letter.
4. RETURN OF COPIES
If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all
copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case save
to the extent that you or the recipients are required to retain any such
Confidential Information by any applicable law, rule or regulation or by
any competent judicial, governmental, supervisory or regulatory body or
in accordance with internal policy, or where the Confidential
Information has been disclosed under paragraph 2(b) above.
5. CONTINUING OBLIGATIONS
The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you
and us. Notwithstanding the previous sentence, the obligations in this
letter shall cease (a) if you become a party to or otherwise acquire (by
assignment or sub participation) an interest, direct or indirect in the
Facilities or (b) twelve months after you have returned all Confidential
Information supplied to you by us and destroyed or permanently erased
all copies of Confidential Information made by you (other than any such
Confidential Information or copies which have been disclosed under
paragraph 2 above (other than sub-paragraph 2(a)) or which, pursuant to
paragraph 4 above, are not required to be returned or destroyed).
6. NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC
You acknowledge and agree that:
(a) neither we nor any of our officers, employees or advisers (each a
"RELEVANT PERSON") (i) make any representation or warranty,
express or implied, as to, or assume any responsibility for, the
accuracy, reliability or completeness of any of the Confidential
Information or any other information supplied by us or any member
of the Group or the assumptions on which it is based or (ii)
shall be under any obligation to update or correct any inaccuracy
in the Confidential Information or any other information supplied
by us or any member of the
SS-8
Group or be otherwise liable to you or any other person in
respect to the Confidential Information or any such information;
and
(b) we or members of the Group may be irreparably harmed by the
breach of the terms of this letter and damages may not be an
adequate remedy; each Relevant Person or member of the Group may
be granted an injunction or specific performance for any
threatened or actual breach of the provisions of this letter by
you.
7. NO WAIVER; AMENDMENTS, ETC
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of
this letter. No failure or delay in exercising any right, power or
privilege under this letter will operate as a waiver thereof nor will
any single or partial exercise of any right, power or privilege preclude
any further exercise thereof or the exercise of any other right, power
or privileges under this letter. The terms of this letter and your
obligations under this letter may only be amended or modified by written
agreement between us.
8. INSIDE INFORMATION
You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information
may be regulated or prohibited by applicable legislation relating to
insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. NATURE OF UNDERTAKINGS
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of the Borrower and each other member of the Group.
10. THIRD PARTY RIGHTS
(a) Subject to paragraph 6 and paragraph 9 the terms of this letter
may be enforced and relied upon only by you and us and the
operation of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ is
excluded.
(b) Notwithstanding any provisions of this letter, the parties to
this letter do not require the consent of any Relevant Person or
any member of the Group to rescind or vary this letter at any
time.
11. GOVERNING LAW AND JURISDICTION
This letter (including the agreement constituted by your acknowledgement
of its terms) shall be governed by and construed in accordance with the
laws of England and the parties submit to the non-exclusive jurisdiction
of the English courts.
12. DEFINITIONS
In this letter (including the acknowledgement set out below):
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"CONFIDENTIAL INFORMATION" means any information relating to the
Borrower, the Group, and the Facilities including, without limitation,
the information memorandum, provided to you by us or any of our
affiliates or advisers, in whatever form, and includes information given
orally and any document, electronic file or any other way of
representing or recording information which contains or is derived or
copied from such information but excludes information that (a) is or
becomes public knowledge other than as a direct or indirect result of
any breach of this letter or (b) is known by you before the date the
information is disclosed to you by us or any of our affiliates or
advisers or is lawfully obtained by you after that date, other than from
a source which is connected with the Group and which, in either case, as
far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;
"GROUP" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"PARTICIPANT GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985); and
"PERMITTED PURPOSE" means considering and evaluating whether to enter
into the Facilities.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
---------------------------
For and on behalf of
[Lender]
To: [Lender]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
---------------------------
For and on behalf of
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