TRANSLATION FOR INFORMATION PURPOSES ONLY
PROJECT ACCOUNT AGREEMENT
(MALI),
Dated ___________, ________,
among
BANQUE DE DEVELOPPEMENT DU MALI
as the Account Bank,
N M ROTHSCHILD & SONS LIMITED,
as the Agent,
and
SOCIETE DES MINES DE MORILA S.A.,
as the Borrower.
Project Account (Mali)
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& ▇▇▇▇▇
Bucklersbury House
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TRANSLATION FOR INFORMATION PURPOSES ONLY
TABLE OF CONTENTS
CLAUSE PAGE
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SECTION 1. DEFINED TERMS .................................................. 1
SECTION 2. INTERPRETATION ................................................. 2
SECTION 3. APPOINTMENT AND ACCEPTANCE ..................................... 2
SECTION 4. INSTRUCTIONS AS TO PAYMENTS INTO PROJECT ACCOUNT ............... 3
SECTION 5. PAYMENTS FROM PROJECT ACCOUNT; ................................. 3
SECTION 6. APPLICATION OF ACCOUNT BALANCES ................................ 4
SECTION 7. AUTHORISATION OF ACCOUNT BANK .................................. 4
SECTION 8. ROLE OF ACCOUNT BANK ........................................... 4
SECTION 9. ACCOUNT BANK'S ACKNOWLEDGEMENT ................................. 5
SECTION 10. STANDARD OF CARE; INDEMNIFICATION .............................. 5
SECTION 11. INFORMATION .................................................... 6
SECTION 12. LIMITED SET-OFF ................................................ 7
SECTION 13. FEES AND EXPENSES .............................................. 7
SECTION 14. NO WAIVER ...................................................... 7
SECTION 15. LIENS .......................................................... 8
SECTION 16. REMOVAL AND RESIGNATION OF THE ACCOUNT BANK;
CLOSURE OF PROJECT ACCOUNT ..................................... 8
SECTION 17. SUCCESSORS AND ASSIGNS ......................................... 9
SECTION 18. INSTRUCTIONS; FUND TRANSFERS; AUTHORISED SIGNATURES ............ 9
SECTION 19. NOTICES ........................................................11
SECTION 20. WAIVERS, AMENDMENTS, ETC .......................................11
SECTION 21. COUNTERPARTS ...................................................11
SECTION 22. GOVERNING LAW; JURISDICTION; WAIVER OF IMMUNITY ................12
SECTION 23. ADDITIONAL DOCUMENTATION .......................................12
SECTION 24. PERPETUITY PERIOD ..............................................13
SECTION 25. FURTHER ASSURANCES .............................................13
SECTION 26. POWER OF ATTORNEY ..............................................13
TRANSLATION FOR INFORMATION PURPOSES ONLY
PROJECT ACCOUNT AGREEMENT (MALI)
THIS PROJECT ACCOUNT AGREEMENT, dated_____, 2000, (as the same may be
amended, modified or supplemented from time to time, this "Agreement"), is made
among SOCIETE DES MINES DE MORILA S.A., a company (societe anonyme) organised
and existing under the laws of the Republic of Mali (the "Borrower"), BANQUE DE
DEVELOPPEMENT DU MALI, a bank organised and existing under the laws of Mali (the
"Account Bank") and N M ROTHSCHILD & SONS LIMITED, a bank organised and existing
under the laws of England ("Rothschild"), in its capacity as the Agent for the
Lender Parties (in such capacity, the "Agent").
W I T N E S S E S:
A. WHEREAS, pursuant to a Loan Agreement, dated December 21, 2000,
(as amended, modified or supplemented from time to time, the "Loan Agreement"),
among (1) the Borrower, (2) Randgold Resources Limited, Randgold & Exploration
Company Limited and Randgold Resources (Morila) Limited, as the Completion
Guarantors, (3) various banks and financial institutions, as the Lenders and as
the Co-Arrangers, (4) Rothschild and Standard Bank London Limited, as the
Arrangers, and (5) Rothschild, as the Agent for the Lenders, the Lenders have
agreed to extend Commitments to make Loans to the Borrower;
B. WHEREAS, as contemplated by the Loan Agreement, each of the
Borrower and the Lender Parties wishes the Account Bank to act in the capacity
of Project Account Bank (Mali) pursuant to the terms of the Loan Agreement and
this Agreement and the Account Bank is willing to act in such capacity;
C. WHEREAS, this Agreement is the Project Account Agreement (Mali)
referred to in the Loan Agreement, and it is a condition precedent to the
obligation of the Lenders to make the initial Loans that the Borrower and the
Account Bank execute and deliver this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged by the Borrower and the Account Bank,
the parties undertake and agree with the Agent, as follows:
SECTION 1. DEFINED TERMS.
Capitalised terms used but not defined in this Agreement (including the
preamble and recitals hereto) have the same meanings as in the Loan Agreement.
The following capitalised terms when used in this Agreement (including its
preamble and recitals) have the following meanings:
"Account Balance" is defined in clause (b) of Section 4.
"Account Bank" is defined in the preamble.
"Agent" is defined in the preamble.
TRANSLATION FOR INFORMATION PURPOSES ONLY
"Agreement" is defined in the preamble.
"Authorised Officer" is defined in clause (a) of Section 18.
"Borrower" is defined in the preamble.
"Default Notice" means a notice of an Authorised Officer of the Agent to
the effect that a Default under the Loan Agreement has occurred, substantially
in the form of Exhibit A attached hereto.
"Enforcement Notice" means a notice of an Authorised Officer of the
Agent to the effect that an Event of Default has occurred substantially in the
form of Exhibit B attached hereto.
"Fee Schedule" is defined in clause (a) of Section 13.
"Instructions" is defined in clause (a) of Section 18.
"Loan Agreement" is defined in recital A.
"Project Account" means the Project Account (Mali).
"Rothschild" is defined in the preamble.
"Transfer Instructions" is defined in clause (f) of Section 18.
SECTION 2. INTERPRETATION.
This Agreement is a Loan Document, and shall be interpreted and
construed in accordance with the terms and provisions of the Loan Agreement
(including Sections 1.2 to 1.5 thereof, the provisions of which are hereby
incorporated in this Agreement with all necessary consequential changes).
SECTION 3. APPOINTMENT AND ACCEPTANCE.
Pursuant to Article 4 of the Loan Agreement, each of the Borrower and
the Agent hereby requests, and the Account Bank hereby agrees, to open and
maintain the only account the Borrowers will hold in Mali in the name of the
Borrower as set out below, such account being a Project Account, and to hold
therein, subject to the terms and conditions of this Agreement and the other
Loan Documents (and, without limitation of the foregoing, subject to the liens
in favour of the Agent granted in respect of the Project Account pursuant to the
Borrower Security Agreement (Offshore Assets), all such property described in
Section 4 as shall be received by the Account Bank for such Project Account.
Project Account (Mali): Account No: 204/5778 Morila S.A.
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Branch: Banque de Developpement du Mali
Avenue ▇▇▇▇▇▇ ▇▇▇▇▇
BP 94 Bamako
Currency: CFA
SECTION 4. INSTRUCTIONS AS TO PAYMENTS INTO PROJECT ACCOUNT.
(a) TYPE OF PAYMENTS.
The Account Bank is, subject to Section 6, hereby authorised and
directed to receive and hold in the Project Account the following funds, moneys
and other property, in each case pursuant to Instructions from the Borrower (and
the Borrower shall simultaneously deliver a copy of such Instructions to the
Agent):
(i) PROJECT ACCOUNT: all amounts received by the
Borrower which is denominated in CFA or amount denominated in
Dollars which is transferred by Citibank, N.A., Jersey Branch to
the Project Account;
(ii) INTEREST: pursuant to clause (h) of Section 4.4 of
the Loan Agreement, interest accrued in respect of each of the
foregoing amounts.
(b) ACCOUNT BALANCES. All of the items from time to time
standing to the credit of the Project Account are collectively referred
to as the "Account Balance" of the Project Account.
SECTION 5. PAYMENTS FROM PROJECT ACCOUNT;.
(a) PAYMENTS. Subject to Section 6, the Account Bank is hereby
authorised and directed (and the Account Bank hereby agrees) to take the
following actions with respect to the Account Balances as directed
pursuant to Instructions from the Borrower (and the Borrower shall
simultaneously deliver a copy of such Instructions to the Agent):
(i) PAYMENTS UNDER LOAN AGREEMENT: prior to receipt
from the Agent of a Default Notice, to transfer or pay funds from
the Project Account for the purposes described in and subject to
the requirements of clauses (b), (d) and (e) of Section 4.2 of the
Loan Agreement; and
(ii) ACTION FOLLOWING DEFAULT NOTICE: upon receipt from
the Agent of a Default Notice but prior to receipt from the Agent
of an Enforcement Notice, to transfer or pay funds from the Project
Account, if and only if the relevant Instructions from the Borrower
have been countersigned by the Agent
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(iii) and only for the purposes described in clause (e)
of Section 4.4 of the Loan Agreement.
SECTION 6. APPLICATION OF ACCOUNT BALANCES.
Notwithstanding any prior Instructions received pursuant to Section 5,
and subject only to the requirements of Applicable Law, the Account Bank is
hereby authorised and directed (and the Account Bank hereby agrees) to take the
following actions with respect to all Account Balances as the Agent shall in
each case direct:
(a) GENERAL: upon receipt from the Agent of an Enforcement
Notice, to act with respect to the Project Account only in accordance
with Instructions given by the Agent and from no other person; and
(b) CASH: upon receipt from the Agent of an Enforcement Notice
withdraw and remit to the Agent or its order (in accordance with
directions contained in an Instruction issued by the Agent) all the
Account Balances for application by the Agent of the Account Balances
against the Borrower's Obligations as contemplated in the Loan
Agreement.
SECTION 7. AUTHORISATION OF ACCOUNT BANK.
For the purpose of enabling the Account Bank to comply with and perform
its obligations under this Agreement, each of the Borrower and the Agent hereby
irrevocably authorises and empowers the Account Bank to accept Instructions from
the Borrower and/or the Agent (all in accordance with the terms and subject to
the conditions of this Agreement) in order to endorse, cancel, collect and
execute such instruments which may be necessary or advisable to carry out its
obligations hereunder and the Borrower agrees to issue such additional
Instructions or authorisations or powers and to take all such other actions as
may be necessary in furtherance of the provisions of this Agreement.
SECTION 8. ROLE OF ACCOUNT BANK.
(a) SOLE CONTROL: It is understood and hereby accepted and
agreed by the Account Bank and the Borrower that, without prejudice to
the provisions of Section 6, the Project Account shall at all times be
operated pursuant to the Instructions of the Borrower and/or, as the
case may be, the Agent, as provided herein.
(b) ACCOUNT BANK HAS NO INTEREST: The Account Bank hereby
expressly acknowledges and agrees that the Project Account and all
balances standing to the credit thereof are subject to the security
granted by the Borrower in favour of the Agent pursuant to the Borrower
Security Agreement (Offshore Assets). The Account Bank further
acknowledges that it has no interest in the Project Account or any
Account Balance standing to the credit thereof but is merely acting as a
holder thereof and (subject to the provisions of Section 12)
unconditionally and irrevocably waives any
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(c) right of set-off, any lien or any other right, express or
implied, which it might have in connection with any Project Account or
any cash or other asset standing to the credit of any thereof.
(d) AFTER DISCHARGE OF OBLIGATIONS: At such time as the Agent
shall have delivered Instructions to the Account Bank to the effect that
all the Obligations have been paid and performed in full (which
Instructions shall be provided promptly by the Agent upon such payment
and performance), the Instructions described in Sections 5 and 6 and all
other Instructions received by the Account Bank from the Agent hereunder
shall thereafter be inoperative and of no further force or effect and
the Project Account shall be maintained and operated (or, at the
Borrower's option, closed) solely pursuant to the Instructions of the
Borrower.
(e) RIGHT TO OBTAIN ADVICE: The Account Bank may consult with
legal advisers with respect to any matter relating to this Agreement and
shall not be liable for any action taken or omitted in accordance with
such advice except if, and to the extent that, the Account Bank shall
have been negligent or shall have acted in a manner constituting wilful
misconduct, in either case in connection with any such action taken or
omitted.
(f) BORROWER TO REIMBURSE: Upon the request of the Account
Bank, the Borrower shall pay to or reimburse the Account Bank for any
amounts relating to any transfer taxes or other taxes relating to the
Account Balances incurred in connection with this Agreement and shall
indemnify and hold the Account Bank harmless from any amounts it is
obliged to pay with respect to such taxes.
(g) DISPUTES AS TO PAYMENT: In the event of any disagreement
between the Borrower and the Agent resulting in adverse claims or
demands made on the Account Bank in connection with the Account
Balances, or in the event that the Account Bank, acting in good faith,
is uncertain as to what action it should take hereunder, the Account
Bank shall act on the Instructions of the Agent without further
question.
SECTION 9. ACCOUNT BANK'S ACKNOWLEDGEMENT.
The Account Bank acknowledges that it has received an executed copy of
the Borrower Security Agreement (Offshore Assets).
SECTION 10. STANDARD OF CARE; INDEMNIFICATION.
(a) STANDARD OF CARE: The Account Bank undertakes and agrees to
use the same care with respect to the safekeeping and handling of the
Account Balances as the Account Bank uses in respect of property held
for its own sole benefit. Subject to the preceding sentence, neither the
Account Bank nor any of its affiliates, directors, officers, or
employees shall be liable for any action taken or omitted to be taken by
it or them hereunder except for its or their own negligence or wilful
misconduct.
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(b) INDEMNITY: The Borrower shall hold the Account Bank
harmless from, and indemnify and reimburse the Account Bank for, all
claims, liabilities, losses and expenses (including reasonable
out-of-pocket expenses and legal fees) incurred by the Account Bank in
connection with this Agreement, provided that the Account Bank has not
acted with negligence or wilful misconduct with respect to the events
resulting in such claims, liability, loss and expenses. Without limiting
the foregoing sentence (and subject to the proviso thereof), the Account
Bank shall in no event be liable in connection with the good-faith
investment or reinvestment of any moneys held by it hereunder in
accordance with this Agreement.
(c) VERIFICATION: The Account Bank shall not (i) be under any
duty to verify that any Instructions received from the Borrower or the
Agent are in accordance with the term of the Borrower Security Agreement
(Offshore Assets), the Loan Agreement or any other Loan Document (and
any references thereto are solely for the convenience of the Lender
Parties and the Borrower), (ii) have any responsibility for the intended
or eventual purpose or use of any Account Balances or any moneys
released therefrom, or (iii) have any responsibility for any provision
of the Borrower Security Agreement (Offshore Assets) or any other Loan
Document (except for this Agreement and Instructions and other writings
delivered in connection with this Agreement). The Account Bank shall,
subject to the provisions of Section 18, be entitled to rely upon any
signature or any document, order, judgment, certification, demand,
notice, instrument or other writing reasonably believed by it to be
genuine, and may assume that any person purporting to deliver any
writing in connection with the provisions hereof has been duly
authorised to do so, whether or not pursuant to the agency provisions of
the Loan Agreement or otherwise.
SECTION 11. INFORMATION.
The Account Bank agrees that it will, prior to the date which is five
(5) Business Days after the end of each calendar month, deliver to the Borrower
and to the Agent a statement (in such detail as the Agent may reasonably
request) showing:
(a) the aggregate amount of all deposits made into, and
transfers made to and from, the Project Account during such month; and
(b) the value of the Account Balances as of the last day of
such month.
In addition, the Account Bank will provide such additional information
regarding the Project Account and the related Account Balances as the Borrower
or the Agent may reasonably request from time to time.
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SECTION 12. LIMITED SET-OFF.
The Account Bank agrees that it will not exercise any right of set-off
or retention or any banker's or other lien whatsoever in respect of the Project
Account arising from any claims it may have against the Borrower or otherwise,
other than in respect of any taxes, fees and expenses owing to the Account Bank
pursuant to clause (e) of Section 8, Section 13 and clause (g) of Section 16.
SECTION 13. FEES AND EXPENSES.
(a) FEES: The Account Bank shall receive fees determined in
accordance with, and payable as specified in, the Schedule of Fees
attached hereto as Exhibit D (the "Fee Schedule"), as the same may be
modified from time to time by agreement among the parties hereto.
(b) REIMBURSEMENT: The Account Bank shall be reimbursed by the
Borrower for all reasonable expenses, disbursements and advances
incurred or made by the Account Bank in the preparation, administration
and enforcement of this Agreement, including reasonable legal fees and
expenses. The Borrower shall be liable for all payments due from time to
time to the Account Bank under this Agreement. In the event of default
by the Borrower in the payment of any such fees or expenses, the Agent
may, at its option, and without being obliged to do so, make any such
payment to the Account Bank, and the Account Bank shall receive the same
in satisfaction of such amounts due from the Borrower. For the avoidance
of doubt, the Account Bank may not resign because of any failure by the
Borrower to comply with its obligations pursuant to this Section without
prior notice to the Agent and acceptance by the Agent of such
resignation and the appointment of a successor Account Bank as provided
in this Agreement within ten (10) Business Days from the date of this
Agreement.
SECTION 14. NO WAIVER.
(a) NO WAIVER: No failure or delay on the part of the Agent in
exercising any power or right under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand of any
party in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by any party under this
Agreement shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions.
(b) REMEDIES CUMULATIVE: The remedies provided herein are
cumulative and not exclusive of any remedies provided by Applicable Law.
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SECTION 15. LIENS.
The Borrower represents and warrants to the Account Bank and the Agent
that as of the date hereof, except as set forth herein or in the Borrower
Security Agreement (Offshore Assets), there are no liens over the Project
Account or any related Account Balance. The Account Bank shall have no
responsibility at any time for the ascertainment of the existence or
non-existence of any lien over the Project Account or any related Account
Balance. The Borrower further undertakes that the Project Account shall at all
times remain free and clear of all liens, other than liens created in favour of
the Agent pursuant to the Loan Documents.
SECTION 16. REMOVAL AND RESIGNATION OF THE ACCOUNT BANK; CLOSURE OF
PROJECT ACCOUNT.
(a) REMOVAL: The Account Bank may be removed from its position
as such by a written instrument delivered to the Account Bank and signed
by the Agent (acting at the direction of the Required Lenders and, so
long as no Default is continuing, subject to the consent of the Borrower
(such consent not to be unreasonably withheld)) or, so long as no
Default is continuing, by a written instrument delivered to the Account
Bank and signed by the Borrower (subject to the consent of the Agent
(which shall have obtained the approval of the Required Lenders)).
(b) RESIGNATION: The Account Bank may resign at any time upon
at least ninety (90) days' prior written notice to the Agent and the
Borrower.
(c) REAPPOINTMENT: Any such removal or resignation referred to
in clause (a) or (b) will not be effective until the appointment by the
Agent (acting at the direction of the Required Lenders and, so long as
no Default is continuing, subject to the consent of the Borrower (such
consent not to be unreasonably withheld)) of a successor for the removed
or retiring Account Bank (which successor shall be a bank established in
such jurisdiction where all actions necessary or, in the reasonable
opinion of the Agent, advisable to protect and perfect the security
granted over the Project Account and all related Account Balances
pursuant to the Borrower Security Agreement (Offshore Assets) and
maintain the trusts in respect of the Project Account created pursuant
to this Agreement shall, in each case, have been taken), the acceptance
of such appointment by the successor Account Bank and the taking of the
steps described in clause (d). The Agent may reasonably withhold its
consent to any request by the Borrower to remove the Account Bank if the
measures to protect and perfect the security interest and maintain the
trusts as described aforesaid shall not have been taken.
(d) TRANSFER DOCUMENTS: Upon the acceptance of an appointment
as Account Bank hereunder by any successor Account Bank, such successor
Account Bank shall be entitled to receive from the removed or resigning
Account Bank such documents of transfer and assignment as such successor
Account Bank may reasonably request and shall thereupon succeed to and
become vested with all rights, powers, privileges and
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duties of the removed or resigning Account Bank and the removed or resigning
Account Bank shall be discharged from its duties and obligations under this
Agreement and each other relevant Loan Document. The obligations of the Borrower
to the Account Bank and the rights of the Account Bank under clause (e) of
Section 8, Sections 10 and 13 and clause (g) of this Section shall survive
termination of this Agreement and/or the removal or resignation of the Account
Bank.
(e) ACCOUNT CLOSURE: If the Account Balance of the Project
Account is zero and the Agent shall have delivered Instructions to the
Account Bank to the effect that all the Obligations have been paid and
performed in full (which Instructions shall be provided promptly by the
Agent upon such payment and performance), the Instructions described in
Section 5 and 6 and all other Instructions received by the Account Bank
from the Agent hereunder shall thereafter be inoperative and of no
further force or effect and the Project Account shall be maintained and
operated (or, at the Borrower's option, closed) solely pursuant to the
Instructions of the Borrower.
(f) WIRE TRANSFER OF BALANCES: On removal or resignation of the
Account Bank pursuant to clause (a), or, as the case may be, upon the
closing of the Project Account, the then acting Account Bank shall wire
transfer all funds capable of remittance from the Project Account and
deliver all Account Balances in such manner as the Agent may at such
time direct, subject only to requirements or restrictions imposed by
Applicable Law.
(g) COSTS: All reasonable costs and expenses incurred in
connection with the removal or resignation of the Account Bank or the
closure of the Project Account shall be solely for the account of the
Borrower and shall be payable upon the removal or the resignation of the
Account Bank or, as the case may be, the closure of the Project Account.
SECTION 17. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Agent and the Account Bank and their respective successors and
permitted assigns, except that:(a) the Borrower may not assign or transfer its
rights or obligations hereunder without the prior written consent of the Account
Bank and the Agent (which consent shall be given only upon the direction of the
Required Lenders); (b) the Account Bank's rights of transfer and assignment are
governed by Section 16; and (c) the rights of sale, assignment and transfer of
the Agent and the other Lender Parties are subject to the provisions of the Loan
Agreement.
SECTION 18. INSTRUCTIONS; FUND TRANSFERS; AUTHORISED SIGNATURES.
(a) AUTHORISED OFFICERS: The Account Bank is authorised,
subject to the other provisions of this Agreement, to rely and act upon
all instructions given or
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purported to be given by one or more officers or employees of the Borrower or
the Agent who are (i) authorised by or in accordance with a board resolution
delivered to the Account Bank on or prior to the date hereof pursuant to Section
23 or (ii) described as authorised in a certificate delivered to the Account
Bank on or prior to the date hereof pursuant to Section 23 (each such officer or
employee is hereinafter referred to as an "Authorised Officer" and all
instructions described in and meeting the requirements of this Section are
referred to as "Instructions").
(b) INSTRUCTIONS, SIGNATURES: The term "Instructions" includes
instructions to sell, assign, transfer, deliver, purchase or receive for
any of the Project Account or to transfer all or any portion of the
Account Balances. "Instructions" also include, and the Account Bank may
also rely and act upon, those writings which bear, or purport to bear,
the signature or facsimile signature of any of the Authorised Officers
if such facsimile signature(s) resemble the facsimile specimen(s) from
time to time furnished to the Account Bank by any of such Authorised
Officers.
(c) MEANS OF GIVING INSTRUCTIONS: In addition, and subject to
clause (b), "Instructions" also include, and the Account Bank may rely
and act upon, communications received by telex, facsimile transmission,
bank wire or other teleprocess acceptable to it which the Account Bank
believes in good faith to have been given by an Authorised Officer or
which are transmitted with proper testing or authentication pursuant to
terms and conditions which the Account Bank may specify.
(d) INABILITY TO VERIFY: The Account Bank shall, except in the
case of any action constituting negligence or wilful misconduct, incur
no liability to the Borrower and/or the Agent or otherwise for having
acted in accordance with Instructions on which it is authorised to rely
pursuant to the provisions hereof.
(e) CONTINUING NATURE: Unless otherwise expressly provided, all
authorisations and Instructions shall continue in full force and effect
until cancelled or superseded by subsequent authorisations or
Instructions received by the Account Bank. The Account Bank's
authorisation to rely and act upon Instructions pursuant to this clause
shall be in addition to, and shall not limit, any other authorisation
which the Agent may give to it hereunder.
(f) TRANSFER INSTRUCTIONS: With respect to written Instructions
or Instructions sent by facsimile transmission to transfer funds from
the Project Account in accordance herewith (such Instructions
hereinafter referred to as "Transfer Instructions"), the security
procedure agreed upon for verifying the authenticity of Transfer
Instructions is a callback by the Account Bank or a communication by any
other appropriate means to any of the persons designated below, whether
or not any such person has issued such Transfer Instruction.
(i) With respect to Transfer Instructions given by the
Borrower pursuant to its authority under this Agreement:
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Name/Title Telephone No.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Financial Manager ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Director ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, Accountant ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
(ii) With respect to Transfer Instructions given by the
Agent pursuant to its authority under this Agreement:
Name/Title Telephone No.
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Director ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Director ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Street, Assistant Director ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, Assistant Director ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant Director ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Alternatively, at the Account Bank's option, the callback may be made to
any person designated in the certified resolutions or other certificates or
documentation furnished to it by a party in connection with any of the Project
Account as authorised to issue Transfer Instructions or otherwise transact
business with respect to the Project Account for that party. The Borrower and
the Agent shall implement any other authentication method or procedure or
security device reasonably required by the Account Bank with respect to Transfer
Instructions at any time or from time to time.
SECTION 19. NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications provided to any party hereto under this Agreement shall be in
writing and Section 11.2 of the Loan Agreement is hereby incorporated in this
Agreement with all necessary consequential changes save that the address of each
party for the purposes of this Section shall be the address specified under its
signature below. Simultaneously with its delivery of all notices to the Account
Bank hereunder, (a) the Borrower shall deliver a copy of each such notice to the
Agent and (b) the Agent shall deliver a copy of each such notice to the
Borrower, provided, however, that any failure by the Agent to deliver a copy as
aforesaid shall not prejudice its rights or remedies hereunder or under any
other Loan Document.
SECTION 20. WAIVERS, AMENDMENTS, ETC.
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TRANSLATION FOR INFORMATION PURPOSES ONLY
The provisions of this Agreement may from time to time be amended,
modified or waived, provided such amendment, modification or waiver is in
writing and consented to by the Borrower, the Account Bank and the Agent (acting
with the approval of the Required Lenders, or all the Lenders, as may be
required pursuant to the Loan Agreement).
SECTION 21. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which when taken together with the other executed counterparts shall constitute
one and the same instrument.
SECTION 22. GOVERNING LAW; JURISDICTION; WAIVER OF IMMUNITY.
(a) LAW: This Agreement and all matters and disputes relating
hereto shall be governed by, and construed in accordance with, Mali law.
(b) JURISDICTION: Each of the parties hereto irrevocably agrees
for the benefit of each of the Lender Parties that the courts of Mali
shall have non-exclusive jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of
or in connection with this Agreement and, for such purposes, irrevocably
submits to the non-exclusive jurisdiction of such courts.
(c) FORUM: Each party hereto irrevocably waives any objection
which it might now or hereafter have to the courts referred to in clause
(a) being nominated as the forum to hear and determine any suit, action
or proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and agrees not to claim that any such
court is not a convenient or appropriate forum.
(d) PROCESS AGENT: The Borrower agrees that the process by
which any suit, action or proceeding is begun in England and Wales in
relation hereto, may be served on it by being delivered to:
Fleetside Legal Representatives Limited at
▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
or, if different, its principal place of business for the time
being.
(e) NON-EXCLUSIVE: The submission to the jurisdiction of the
courts referred to in clause (a) shall not (and shall not be construed
so as to) limit the right of the Lender Parties or any of them to take
proceedings relating to this Agreement in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or
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TRANSLATION FOR INFORMATION PURPOSES ONLY
more jurisdictions preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
(f) WAIVER OF IMMUNITY: To the extent that the Borrower may be
entitled in any jurisdiction to claim for itself or its assets, immunity
from suit, execution, attachment or other legal process whatsoever, it
hereby irrevocably agrees not to claim and hereby irrevocably waives
such immunity to the fullest extent permitted by the laws of such
jurisdiction.
SECTION 23. ADDITIONAL DOCUMENTATION.
This Agreement shall not become effective until the Account Bank has
provided a notice to the Agent substantially in the form of Exhibit E certifying
that the Account Bank has received (or waived any requirement that it receive)
the following:
(a) As to the Borrower:
(i) a certified resolution of its board of directors
authorising the making and performance of this Agreement, in such
form as may be agreed by the parties hereto; and
(ii) a certificate as to the names and specimen
signatures of its officers or representatives authorised to sign
this Agreement and notices, instructions and other communications
hereunder, substantially in the form of Exhibit C attached hereto
or such other form as may be agreed with the Agent and the Account
Bank.
(b) As to the Agent, a certificate as to the names and specimen
signatures of its officers or representatives authorised to sign this
Agreement and notices, instructions and other communications hereunder,
substantially in the form of Exhibit C attached hereto or such other
form as may be agreed between the Agent and the Account Bank.
SECTION 24. PERPETUITY PERIOD.
The perpetuity period under the rule against perpetuities if applicable
hereto shall, pursuant to Section 1(1) of the Perpetuities' and Accumulations
▇▇▇ ▇▇▇▇, be the period of eighty (80) years from the date of this Agreement.
SECTION 25. FURTHER ASSURANCES.
The Borrower hereby undertakes with the Agent to take such further acts,
enter into such other instruments and documents and otherwise perform such
actions as may be necessary or advisable or as the Agent may otherwise request
to more fully give effect to the terms of this Agreement and the transactions
contemplated hereunder.
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TRANSLATION FOR INFORMATION PURPOSES ONLY
SECTION 26. POWER OF ATTORNEY.
The Borrower hereby irrevocably and by way of security appoints the
Agent as its attorney with full power of substitution and delegation with full
authority in its name and on its behalf, from time to time in the Agent's
discretion, to take any action and to execute any instrument which the Agent may
deem necessary to accomplish the intent and purposes of this Agreement. The
Borrower hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest,
and covenants to ratify all acts and things done by such attorney. The power of
attorney hereby granted is as regards the Agent and its delegates (and as the
Borrower hereby acknowledges) granted irrevocably and for value as part of the
security constituted by this Agreement to secure proprietary interests in and
the performance of obligations owed to the respective donees within the meaning
of the Power of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
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TRANSLATION FOR INFORMATION PURPOSES ONLY
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective authorised officers on the day and year first
above written.
SOCIETE DES MINES DE MORILA S.A.,
By:____________________________________________
Name Printed:________________________________
Title:_______________________________________
Address for Notices:
▇/▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: ▇▇-▇▇-▇▇▇▇▇▇▇
Attention: The Financial Director
per pro N M ROTHSCHILD & SONS LIMITED,
in its capacity as the Agent
By:____________________________________________
Name Printed:________________________________
Title:_______________________________________
By:____________________________________________
Name Printed:________________________________
Title:_______________________________________
Address for Notices:
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: (▇▇) ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ Street/▇▇▇▇▇ ▇▇▇▇▇▇▇
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TRANSLATION FOR INFORMATION PURPOSES ONLY
BANQUE DE DEVELOPPEMENT DU MALI, as the Account
Bank
By:____________________________________________
Name Printed:________________________________
Title:_______________________________________
By:____________________________________________
Name Printed:________________________________
Title:_______________________________________
Address
for Notices: Avenue ▇▇▇▇▇▇ ▇▇▇▇▇
BP 94 Bamako
Attention: Abdonlaye Daffe,
Directeur General
EXHIBIT A
to
Project Account
Agreement
(Mali)
DEFAULT NOTICE
LETTERHEAD OF N M ROTHSCHILD & SONS LIMITED
To: [ACCOUNT BANK]
Attention: [____________]
RE: PROJECT ACCOUNT AGREEMENT (MALI), DATED ______, ______(THE "AGREEMENT"),
AMONG SOCIETE DES MINES DE MORILA S.A., AS THE BORROWER, BANQUE DE
DEVELOPPEMENT DU MALI, AS THE ACCOUNT BANK AND N M ROTHSCHILD & SONS
LIMITED, AS THE AGENT.
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TRANSLATION FOR INFORMATION PURPOSES ONLY
Dear Sirs:
We wish to inform you that a Default under (and as defined in) the Loan
Agreement (as defined in the Agreement) has occurred and that upon receipt of
this Default Notice, you are no longer authorised to act pursuant to the
Borrower's Instructions (as defined in the Agreement) given pursuant to Sections
5 and 6 of the Agreement or otherwise, unless such Instructions have been
countersigned by ourselves.
Per pro
N M ROTHSCHILD & SONS LIMITED, as the Agent
By:____________________________________________
(Authorised Officer of the Agent)
Name Printed:________________________________
Title:_______________________________________
By:____________________________________________
(Authorised Officer of the Agent)
Name Printed:________________________________
Title:_______________________________________
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TRANSLATION FOR INFORMATION PURPOSES ONLY
EXHIBIT B
to
Project Account
Agreement
(Mali)
ENFORCEMENT NOTICE
LETTERHEAD OF N M ROTHSCHILD & SONS LIMITED
To: [ACCOUNT BANK]
Attention: [____________]
RE: PROJECT ACCOUNT AGREEMENT (MALI), DATED ______,______ (THE "AGREEMENT"),
AMONG SOCIETE DES MINES DE MORILA S.A., AS THE BORROWER, BANQUE DE
DEVELOPPEMENT DU MALI, AS THE ACCOUNT BANK AND N M ROTHSCHILD & SONS
LIMITED, AS THE AGENT.
Dear Sirs:
We wish to inform you that an Event of Default under (and as defined in)
the Loan Agreement has occurred and that, until you receive Instructions from
the Agent to the contrary, you are instructed to act solely in accordance with
the Agent's Instructions given pursuant to Section 6 of the Agreement.
Per pro
N M ROTHSCHILD & SONS LIMITED, as the Agent
By:____________________________________________
(Authorised Officer of the Agent)
Name Printed:________________________________
Title:_______________________________________
By:____________________________________________
(Authorised Officer of the Agent)
Name Printed:________________________________
Title:_______________________________________
TRANSLATION FOR INFORMATION PURPOSES ONLY
EXHIBIT C
to
Project Account
Agreement
(Mali)
CERTIFICATE
To: [ACCOUNT BANK]
Attention: [____________]
I, as the _____________ of [Societe des Mines de Morila S.A. (the
"Company")/N M Rothschild & Sons Limited (the "Agent")] hereby certify to Banque
de Developpement du Mali (the "Bank") that I am duly authorised [pursuant to
resolutions dated___________________,_____, duly adopted by the Board of
Directors of the Company (attached hereto as Exhibit A)] to give this
Certificate and that each of the following officers and employees of the
[Company/Agent] is duly authorised to give Instructions, whether in writing, by
telephone, by electronic transmission or otherwise, to the Bank with respect to
the Account as more particularly described in the Project Account Agreement,
dated ________________,_____ (the "Project Account Agreement") between the Bank,
Societe des Mines de Morila S.A. and N M Rothschild & Sons Limited. I confirm
that each person holds the office or position indicated opposite his name below
and has the signature indicated opposite his name below:
Name Office Signature
---- ------ ---------
Any person described above shall be considered an "Authorised Officer"
for all purposes of the Project Account Agreement with authority to issue
Instructions on behalf of the [Company/Agent], and to take all actions and
execute all documents on behalf of the [Company/Agent] in connection with the
Project Account Agreement.
In the case of any and every subsequent change in the individual holding
any office or position named in this certificate, or in the case of any other
change in the officers or employees authorised to give instructions with respect
to one or more of the Project Account, the undersigned undertakes, on behalf of
the [Company/Agent], to certify to the Bank the fact of such change and the name
and signature of the new individuals so authorised.
TRANSLATION FOR INFORMATION PURPOSES ONLY
The Bank shall be entitled to rely and act upon this and any other
subsequent certification until it shall receive written notice from the
[Company/Agent] of any modification of the authorisation described in such
certification.
Terms for which meanings are provided in the Project Account Agreement
are, unless otherwise defined in this certificate, used in this certificate with
such meanings.
IN WITNESS WHEREOF, I have hereunto set my hand this________________day
of _____________________________, 19____.
________________________________________
By:____________________________________________
Name Printed:________________________________
Title:_______________________________________
-2-
EXHIBIT D
to
Project Account
Agreement
(Mali)
FEE SCHEDULE
[ACCOUNT BANK TO PROVIDE]
EXHIBIT E
to
Project Account
Agreement
(Mali)
TRANSLATION FOR INFORMATION PURPOSES ONLY
LETTERHEAD OF ACCOUNT BANK
To: N M ROTHSCHILD & SONS LIMITED
Attention: [____________________]
RE: PROJECT ACCOUNT AGREEMENT (MALI), DATED ________________,_____ (THE
"AGREEMENT"), AMONG SOCIETE DES MINES DE MORILA S.A., AS THE BORROWER,
BANQUE DE DEVELOPMENT DU MALI, AS THE ACCOUNT BANK AND N M ROTHSCHILD &
SONS LIMITED, AS THE AGENT.
Dear Sirs:
We hereby inform you that we have received (or waived the requirement
that we receive) all of the documentation referred to in Section 23 of the
Agreement.
BANQUE DE DEVELOPPEMENT DU MALI
By:____________________________________________
(Authorised Officer of the Account Bank)
Name Printed:________________________________
Title:_______________________________________