EXHIBIT 4.31
CONFORMED COPY
Dated 8 May 2007
(1) SOCIETE DES MINES DE LOULO S.A.
as the Guarantor
(2) N M ROTHSCHILD & SONS LIMITED
as Security Trustee
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DEED OF GUARANTEE AND INDEMNITY
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[▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & MAW LOGO]
LONDON
Loulo S.A. Guarantee
CONTENTS
CLAUSE PAGE
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1. Definitions and interpretation....................................... 1
2. Guarantee............................................................ 3
3. Continuing security.................................................. 4
4. Invalidity........................................................... 6
5. Releases conditional................................................. 6
6. Representations and warranties....................................... 7
7. Undertakings......................................................... 7
8. Guarantor's covenants................................................ 7
9. The Security Trustee's powers........................................ 7
10. Costs and expenses................................................... 7
11. Payments; no deductions.............................................. 8
12. Facilities Agreement provisions...................................... 9
13. Amendments, waivers and rights....................................... 9
14. Assignment........................................................... 9
15. Third party rights................................................... 10
16. Law.................................................................. 10
SCHEDULES
1. Representations and warranties....................................... 11
2. Covenants............................................................ 13
3. Security Trustee's powers............................................ 15
THIS DEED OF GUARANTEE AND INDEMNITY (this "DEED"), dated 8 May 2007 between:
(1) SOCIETE DES MINES DE LOULO S.A., a company organised and existing under the
laws of the Republic of Mali (the "GUARANTOR"); and
(2) N M ROTHSCHILD & SONS LIMITED (with its successors and assigns, the
"SECURITY TRUSTEE").
BACKGROUND:
(A) By a revolving credit facility agreement (the "FACILITIES AGREEMENT") dated
on or about the date of this Deed and made between (1) Randgold Resources
(Somilo) Limited as borrower (2) Randgold Resources Limited as a guarantor
(3) various banks and other financial institutions as lenders (4) N M
Rothschild & Sons Limited as the mandated lead arranger and (5) N M
Rothschild & Sons Limited, in its capacity as agent and security trustee
for the Lenders, the Lenders have made available a loan facility of
U.S.$60,000,000 to the Borrower on the terms and conditions set out
therein.
(B) As a condition of the facilities referred to in Background A, the Guarantor
is required to enter into this Deed as security for the payment and
discharge of the Obligations of the Borrower and each RRL Group Company.
(C) This document is the deed of the Guarantor, even if it has not been duly
executed by the Security Trustee or has been duly executed by the Security
Trustee but not as a deed.
THIS DEED WITNESSES THAT:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
In this Deed (including the Background Statements):
"BORROWER" means Randgold Resources (Somilo) Limited.
"COMMITMENT" means, relative to any Lender, such Lender's obligation to
make and to maintain its Loans, in each case pursuant to the terms and
subject to the conditions of the Facilities Agreement.
"DEMAND" has the meaning given to that term in Clause 2.1 (Irrevocable and
unconditional guarantee).
"GUARANTEED LIABILITIES" has the meaning given to that term in Clause 2.2
(Guaranteed Liabilities).
"INTEREST RATE" means the rate set forth in Clause 3.4 (Post-Maturity Rate)
of the Facilities Agreement.
"LENDERS" has the meaning given to that term in the Facilities Agreement.
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"OBLIGATIONS" means, with respect to each RRL Group Company, all
obligations of such RRL Group Company with respect to the repayment or
performance of all obligations (monetary or otherwise) of such RRL Group
Company arising under or in connection with the Facilities Agreement and
each other Finance Document and where the term "OBLIGATIONS" is used
without reference to a particular RRL Group Company, such term means the
Obligations of all RRL Group Companies.
"RRL GROUP COMPANIES" has the meaning given to that term in the Facilities
Agreement and includes the Guarantor, and "RRL GROUP COMPANY" means any of
them.
1.2 CONTENTS AND HEADINGS
The contents page and headings are included for convenience only and shall
not affect the interpretation or construction of this Deed.
1.3 REFERENCES
In this Deed, unless the context requires otherwise, any reference to:
(a) the SECURITY TRUSTEE, the GUARANTOR, the BORROWER, an RRL GROUP
COMPANY or a FINANCE PARTY, respectively, includes its successors in
title and assigns and this Deed shall be enforceable notwithstanding
any change in the constitution of the Security Trustee, its absorption
in or amalgamation with any other person or the acquisition of all or
part of its undertaking by any other person;
(b) a PARTY or the PARTIES is to a party or the parties (as the case may
be) to this Deed;
(c) the BACKGROUND is to the relevant statement about the background to
this Deed made above, a CLAUSE or SCHEDULE is to a clause of or a
schedule to this Deed (as the case may be) and references made in a
Schedule to PARAGRAPHS are to paragraphs of that Schedule;
(d) "THIS DEED" includes the Schedules, which form part of this Deed for
all purposes;
(e) a STATUTE or STATUTORY PROVISIONS includes any consolidation,
re-enactment, modification or replacement of the same and any
subordinate legislation in force under the same from time to time;
(f) the masculine, feminine or neuter GENDER respectively includes the
other genders, references to the singular include the plural (and vice
versa) and references to persons include firms, corporations and
unincorporated associations, government, state or agency of state, any
association or partnership or joint venture (whether or not having a
separate legal personality);
(g) a DOCUMENT is to that document as varied, supplemented or replaced
from time to time;
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(h) a RIGHT includes any estate, interest, claim or other right of any
kind, both present and future;
(i) the provision of CASH COVER is to the provision to the Security
Trustee of an amount in cash equal to the Security Trustee's
reasonable market estimate of the maximum possible aggregate amount
which the Guarantor or any RRL Group Company may at any time become
liable to pay to the Security Trustee in respect of the relevant
contingent liabilities; and
(j) "THIS GUARANTEE" is to this Deed and includes each separate or
independent stipulation or agreement in this Deed.
1.4 FINANCE DOCUMENT
This Deed is a Guarantee for the purposes of Clause 11.1 (Appointment) of
the Facilities Agreement. In addition both parties acknowledge that this
Deed is a Finance Document.
1.5 WORDS AND EXPRESSIONS NOT DEFINED
Words and expressions used in this Deed but not defined herein shall have
the meanings given to them in the Facilities Agreement.
1.6 INCONSISTENCY
If there is any inconsistency between the terms of this Deed and the terms
of the Facilities Agreement, the parties agree that the terms of the
Facilities Agreement shall prevail.
2. GUARANTEE
2.1 IRREVOCABLE AND UNCONDITIONAL GUARANTEE
In consideration of the Security Trustee and the other Finance Parties
entering into the Facilities Agreement and the other Finance Documents, the
Guarantor irrevocably and unconditionally guarantees on the Security
Trustee's written demand (a "DEMAND") to pay or discharge as and when the
same become due and payable, or (in the case of contingent liabilities
(including any contingent liability in connection with Risk Management
Agreements) outstanding at any time when a Default has occurred and is
continuing) provide cash cover (in an amount equal to such amount as the
Security Trustee may demand but not more than the excess of (a) the
Security Trustee's reasonable market determination of the amount of the
relevant contingent liability, less (b) any other cash cover for such
contingent liability then provided pursuant to any other Finance Document)
for, the Guaranteed Liabilities or, as the case may be, such part of them
as is specified in the Demand.
2.2 GUARANTEED LIABILITIES
In this Deed, the "GUARANTEED LIABILITIES" means all moneys or liabilities
due or owing by any RRL Group Company to any Finance Party:
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(a) under the Finance Documents or any current or other account or in any
such manner;
(b) in respect of liabilities incurred under or in respect of foreign
exchange transactions, interest rate swap agreements, other agreements
or arrangements entered into by the Lenders or the Security Trustee
for the purpose of limiting any RRL Group Company's currency or
interest rate exposure or under any Risk Management Agreements;
(c) in respect of money or liabilities due or owing or incurred in
sterling or any other currency, alone or jointly with others as
principal or surety; and
(d) in respect of moneys or liabilities originally owing or incurred to
the Finance Parties and those purchased or otherwise acquired by the
Finance Parties,
together with, in each such case, interest, commission and bank fees and
charges applicable thereto. Such interest shall be calculated to the date
of payment (as well after as before any Demand or judgment) at the Interest
Rate and to be compounded at such intervals as the Security Trustee shall
determine, acting reasonably.
2.3 LIQUIDATION OF ANY RRL GROUP COMPANY
In the event of the liquidation of any RRL Group Company which is obligated
in respect of any Guaranteed Liability and notwithstanding such
liquidation, the guarantee set forth in this Clause 2 (Guarantees) shall
extend to cover all Guaranteed Liabilities which would have been owing to
the Security Trustee by such RRL Group Company if such liquidation had
commenced when the Security Trustee received actual notice of it.
2.4 STATEMENT OF ACCOUNT OF RRL GROUP COMPANIES
Any statement of account of any RRL Group Company, signed as correct by the
Security Trustee, shall be conclusive evidence as against the Guarantor of
the amount of the Guaranteed Liabilities owing by such RRL Group Company.
3. CONTINUING SECURITY
3.1 GUARANTEE AS CONTINUING SECURITY
This Deed is a continuing security and shall secure the ultimate balance of
the Guaranteed Liabilities notwithstanding any intermediate payment or
discharge of all or part of the Guaranteed Liabilities to the Security
Trustee or any other Finance Party and also notwithstanding the
liquidation, dissolution, winding-up, administration, receivership,
amalgamation, reconstruction or other incapacity of any RRL Group Company,
any change in the constitution, name or style of any RRL Group Company, or
any other event, matter or thing.
3.2 GUARANTEE ADDITIONAL TO ANY OTHER RIGHTS
This Deed is in addition to (and shall not merge with, otherwise prejudice
or affect or be prejudiced or affected by) any other right, remedy,
guarantee, indemnity or lien which may be or have been created in favour of
the Security Trustee in respect of the
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Guaranteed Liabilities. Accordingly, this Deed may be enforced
notwithstanding the existence or invalidity of all or any of the same and
also notwithstanding the Security Trustee at any time exchanging,
releasing, varying, abstaining from perfecting or enforcing or otherwise
dealing or omitting to deal with all or any of the same.
3.3 ENFORCEMENT
The Security Trustee shall not be obliged to make any claim or demand on
any RRL Group Company or to resort to any ▇▇▇▇, note, right, remedy,
guarantee, indemnity or lien or other means of payment from time to time
held by or available to it before enforcing this Deed nor shall the
Security Trustee be obliged to account for any money or other property
received or recovered in consequence of any enforcement or realisation of
any of the same.
3.4 LIABILITY
The liability of the Guarantor under this Deed shall not be discharged,
reduced, impaired or affected by:
(a) any present or future ▇▇▇▇ of exchange, note, right, remedy,
guarantee, indemnity or lien held by or available to the Security
Trustee, being or becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever or by the Security Trustee from
time to time exchanging, releasing, varying, abstaining from
perfecting or enforcing or otherwise dealing or omitting to deal with
all or any of the same;
(b) the Security Trustee compounding with, discharging, releasing or
varying the liability of or granting any time, indulgence or
concession to any RRL Group Company or any other person or renewing,
determining, varying or increasing any ▇▇▇▇, promissory note or other
negotiable instrument, accommodation, facility or transaction in any
manner whatsoever or concurring in, accepting or varying any
compromise, arrangement or settlement or omitting to claim or enforce
payment from any RRL Group Company or any other person;
(c) any act or omission which would not have discharged, impaired or
affected the liability of the Guarantor had it been primary obligor
instead of guarantor or by anything done or omitted which but for this
provision might operate to discharge, reduce, impair or affect that
liability; or
(d) any termination, amendment, variation, novation of, or supplement to,
any of the Finance Documents to which any RRL Group Company is a
party.
3.5 SUSPENSE ACCOUNT
If any RRL Group Company or the Guarantor is wound up, goes into
liquidation, becomes bankrupt or makes any composition or arrangement with
its creditors, neither the existence of the guarantee or indemnity
contained in this Deed, the rights of the Security Trustee pursuant to
Clause 9 (The Security Trustee's powers) hereof, nor any monies received or
recovered by the Security Trustee, shall impair the right of the Security
Trustee to prove in such winding up, liquidation, bankruptcy, composition
or arrangement for the total amount due from any RRL Group Company
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or the Guarantor and, to this end or so as to preserve intact the
obligations of any person answerable for any part of such total amount, the
Security Trustee may at any time and after any such event takes place and,
for so long as the Security Trustee thinks fit prior to satisfaction in
full of the Guarantor's obligations under this Deed, keep any monies
received or recovered under this Deed in a separate or suspense account, in
such name as the Security Trustee thinks fit, without any intermediate
obligation on the part of the Security Trustee to apply the same in or
towards discharge of any part of such total amount.
4. INVALIDITY
If anything (including any irregular exercise or absence of any corporate
power or lack of authority of, or breach of duty by, any person purporting
to act on behalf of any RRL Group Company, legal or other limitation,
disability, incapacity or change in constitution of any RRL Group Company)
causes any purported obligation or liability of any RRL Group Company which
would have been the subject of this Deed had such obligation or liability
been valid and enforceable to be or become invalid or unenforceable against
any RRL Group Company on any ground whatsoever whether or not known to the
Security Trustee or any other Finance Party, then the Guarantor shall
nevertheless be liable to the Security Trustee in respect of that purported
obligation or liability as if it were the primary obligation or liability
of the Guarantor. The Guarantor shall indemnify, subject to applicable law,
and keep indemnified the Security Trustee on demand against any losses,
liabilities, costs and expenses resulting from the failure of any RRL Group
Company to observe any such purported obligation or liability, save and
except for any such losses, liabilities, costs and expenses arising from
the gross negligence or wilful misconduct of the Security Trustee.
5. RELEASES CONDITIONAL
5.1 RELEASES MADE BY THE SECURITY TRUSTEE
Any release, settlement, discharge, re-assignment or arrangement (in this
Clause 5 (Releases Conditional), a "RELEASE") given or made by the Security
Trustee on the faith of any assurance, security or payment shall be
conditional upon that assurance, security or payment not being avoided,
reduced or ordered to be repaid under any enactment relating to
liquidation, bankruptcy or insolvency of any RRL Group Company or any other
person. If such avoidance or reduction occurs or such order is made, the
release given by the Security Trustee shall not prejudice the right of the
Security Trustee to enforce this guarantee in respect of the Guaranteed
Liabilities and as between the Guarantor and the Security Trustee this Deed
(notwithstanding the release) shall be deemed to have remained at all times
held by the Security Trustee as a guarantee for the Guaranteed Liabilities
as if such release had not been made.
5.2 RETENTION OF DEED
The Security Trustee may in its absolute discretion retain all or part of
this Deed as a guarantee for the Guaranteed Liabilities for a period of 25
months after the Guaranteed Liabilities shall have been paid and discharged
in full. If at any time within that period of 25 months a petition is
presented to a competent court for a winding-up or administration order to
be made in respect of any RRL Group
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Company or steps are taken to wind up any RRL Group Company voluntarily,
then the Security Trustee may continue to retain all or part of this Deed
for such further period as the Security Trustee in its absolute discretion
shall determine.
6. REPRESENTATIONS AND WARRANTIES
6.1 ACKNOWLEDGEMENT OF SECURITY TRUSTEE'S RELIANCE
The Guarantor represents and warrants to the Security Trustee as set out in
Schedule 1 (Representations and Warranties). The Guarantor acknowledges
that the Security Trustee relies on the representations and warranties set
out in that schedule in entering into this Deed.
6.2 REPETITION
The Guarantor shall be deemed to repeat those representations and
warranties on each day on which any of the Guaranteed Liabilities remain
outstanding with reference to the facts and circumstances existing on that
day.
7. UNDERTAKINGS
7.1 SPECIFIC UNDERTAKINGS
In fulfilling its obligations hereunder, and without limiting any of its
other obligations under this Deed, the Guarantor hereby irrevocably and
unconditionally undertakes to the Security Trustee and agrees at all times
to perform and comply with (as if it were named as the relevant obliged
party therein), and to procure that any RRL Group Company performs and
complies with, all of the obligations of it contained in the Facilities
Agreement.
7.2 FACILITIES AGREEMENT UNDERTAKINGS
The undertakings of the Guarantor contained in this Clause 7 and otherwise
in this Deed shall be without prejudice to the continued effectiveness of
any other undertaking or other obligation of the Guarantor contained in the
Facilities Agreement or any other Finance Document.
8. GUARANTOR'S COVENANTS
The Guarantor covenants with the Security Trustee as set out in Schedule 2
(Covenants).
9. THE SECURITY TRUSTEE'S POWERS
The Security Trustee shall have the powers set out in Schedule 3 (Security
Trustee's powers).
10. COSTS AND EXPENSES
The Guarantor covenants with the Security Trustee to indemnify the Security
Trustee fully on demand against all reasonable costs and expenses and
against all liabilities,
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claims, demands, actions or proceedings of any kind properly incurred by
(or made or brought against) the Security Trustee (or any manager or agent
appointed by the Security Trustee):
(a) in connection with the negotiation, preparation, execution and
registration of this Deed;
(b) as a result of any failure by the Guarantor to perform any of its
obligations under this Deed; or
(c) in the exercise or contemplation of any of the powers or rights
conferred by this Deed or by any other lien granted (whether by the
Guarantor or any third party) in respect of all or part of the
Guaranteed Liabilities;
together in each case with interest calculated on a daily basis from the
date the same is incurred or becomes payable by the Security Trustee at the
Interest Rate, such interest being compounded at such intervals as the
Security Trustee shall determine, acting reasonably.
11. PAYMENTS; NO DEDUCTIONS
11.1 SECURITY TRUSTEE'S ACCOUNT
All payments to be made by the Guarantor under this Deed shall be paid to
the Security Trustee's account at such office or bank as it may notify the
Guarantor from time to time in immediately available funds denominated in
the relevant currency.
11.2 NO DEDUCTIONS
All payments made or to be made by the Guarantor under this Deed shall be
made in full without any deduction, withholding, set-off or counterclaim on
account of any taxes or of any claim that the Guarantor or any other RRL
Group Company may have against the Security Trustee or any other Finance
Party.
11.3 DEDUCTIONS WHERE COMPELLED BY LAW
If the Guarantor is compelled by law to make any deduction or withholding,
then it shall account for the same to the relevant authority as and when
required by law, shall pay to the Security Trustee all necessary additional
amounts to ensure receipt and retention (free from any liability) by the
Security Trustee of the full amount which it would have received had the
payment not been subject to the deduction or withholding and shall promptly
provide to the Security Trustee a certificate of deduction and such tax
receipts and other documents as the Security Trustee may require.
11.4 MITIGATION
Clauses 4.5 (Taxes) and 4.6 (Mitigation) of the Facilities Agreement are
hereby incorporated by reference as if set out in their entirety herein,
with all necessary consequential changes.
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12. FACILITIES AGREEMENT PROVISIONS
The Facilities Agreement contains various provisions which purport to apply
to the Finance Documents. Each of those provisions including Clauses 11
(The Agent and the MLA), 12 (General Payment Provisions and Set-off), 13.1
(Waivers, Amendments, etc), 13.2 (Notices), 13.3 (Costs and Expenses), 13.4
(Indemnification), 13.6 (Severability), 13.7 (Headings), 13.8
(Counterparts, Effectiveness, etc), 13.10 (Assignments and Transfers by the
Borrower), 13.11 (Assignment and Transfers by the Lenders), 13.12 (Other
Transactions), 13.13 (Confidentiality), 13.14 (Forum Selection and Consent
to Jurisdiction) and 13.15 (Entire Agreement) shall apply to this Deed as
if they were set out in full.
13. AMENDMENTS, WAIVERS AND RIGHTS
13.1 AMENDMENTS AND VARIATIONS
No amendment or variation of the terms of this Deed shall be effective
unless it is made or confirmed in a written document signed by both
parties.
13.2 NO RELEASE OR WAIVER
No delay in exercising or non-exercise by the Security Trustee of any of
its rights, powers or remedies provided by law or under or in connection
with this Deed shall impair such rights, powers or remedies or operate as a
waiver or release of that right. Any waiver or release must be specifically
granted in writing signed by an authorised signatory of the Security
Trustee and shall:
(a) be confined to the specific circumstances in which it is given;
(b) not affect any other enforcement of the same or any other right; and
(c) except to the extent set forth therein, be revocable at any time in
writing.
13.3 CUMULATIVE RIGHTS AND REMEDIES
The rights and remedies of the Security Trustee under this Deed are
cumulative and not exclusive of any rights or remedies of the Security
Trustee under the general law. The Security Trustee may exercise each of
its rights as often as it thinks necessary.
13.4 NON-EXERCISE OF RIGHTS
The Security Trustee shall be under no duty of any kind to the Guarantor in
respect of the exercise or non-exercise of any of its rights under this
Deed. The Guarantor shall not rely on such exercise or non-exercise in any
way.
14. ASSIGNMENT
14.1 GUARANTOR'S RIGHTS OF DISPOSITION
The Guarantor shall not be entitled to assign and/or transfer all or any of
its rights, benefits and obligations under this Deed except with the
consent of the Security Trustee.
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14.2 SECURITY TRUSTEE'S RIGHTS OF DISPOSITION
The right of the Security Trustee to assign, or otherwise dispose of, any
rights, benefits or interest in this Deed is subject to the provisions of
the Facilities Agreement.
15. THIRD PARTY RIGHTS
The terms of this Deed may be enforced only by a party to it and shall not
create any rights in favour of any third parties (other than the Finance
Parties) whether under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ or
otherwise. Notwithstanding any provision of this Deed, the parties do not
require the consent of any third party to rescind or vary this Deed at any
time.
16. LAW
This Debenture is governed by, and shall be construed in accordance with,
English law.
The parties have shown their acceptance of the terms of this Deed by executing
it, in the case of the Guarantor, as a deed at the end of the Schedules.
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SCHEDULE 1
REPRESENTATIONS AND WARRANTIES
1. VALIDITY
1.1 INCORPORATION AND CAPACITY
The Guarantor is duly incorporated and is a validly existing company under
the laws of its place of incorporation, has the capacity to ▇▇▇ or to be
sued in its own name and has power to carry on its business as now being
conducted and to own its property and other assets.
1.2 POWER AND AUTHORITY
The Guarantor has full power and authority to execute, deliver and perform
its obligations under this Deed and no limitation on the powers of the
Guarantor will be exceeded as a result of the Guarantor entering into this
Deed.
1.3 OBLIGATIONS: LEGAL, VALID AND BINDING
This Deed constitutes (or will upon due execution constitute) legal, valid
and binding obligations of the Guarantor enforceable in accordance with its
terms.
2. APPROVALS AND AUTHORISATIONS
All governmental and other approvals and authorisations required (or in the
Security Trustee's opinion desirable) in relation to the making,
performance, validity and enforceability of this Deed and the transactions
contemplated by it have been obtained and are in full force and effect.
3. NO CURRENT LIEN
Other than as expressly permitted by the Finance Documents, no lien exists
over all or any of the Guarantor's present or future assets and the
execution or performance of this guarantee by the Guarantor will not
create, or oblige the Guarantor to create, any such lien.
4. LITIGATION
There is no pending or, to the knowledge of the Guarantor, threatened
litigation, arbitration, employment dispute or governmental investigation
or proceeding against the Guarantor or to which any of its business,
operations, properties, assets, revenues or prospects is subject which
could reasonably be expected to have a Materially Adverse Effect.
5. ACCURACY OF SUPPLIED INFORMATION
5.1 ACCURACY OF WRITTEN INFORMATION
The written information which has been supplied by or on behalf of the
Guarantor to the Security Trustee in connection with this guarantee is true
and accurate in all respects.
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5.2 FULL DISCLOSURE
There is no matter of which the Guarantor is (or ought on reasonable
enquiry to be) aware which has not been fully disclosed in writing by or on
behalf of the Guarantor to the Security Trustee and which would or might
adversely affect the ability of the Guarantor to comply with its
obligations under this Deed.
6. BENEFIT OF SECURITY
The Guarantor has not taken or received the benefit of any lien from the
Borrower, any RRL Group Company or any other person in respect of its
liabilities under this Deed.
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SCHEDULE 2
COVENANTS
1. BUSINESS AND CONTRACTS
1.1 ALTERATION OF BUSINESS
The Guarantor shall not without the prior written consent of the Security
Trustee alter its business from that which the Guarantor is carrying on at
the date of this Deed.
1.2 OTHER OBLIGATIONS
The Guarantor shall ensure that its obligations under this Deed rank at
least pari passu with all of its other unsecured and unsubordinated
obligations (whether actual or contingent).
2. THE GUARANTOR AND THE LENDER
2.1 WAIVER OF RIGHTS
Until the Guaranteed Liabilities have been finally paid and satisfied in
full (and notwithstanding payment of a dividend in any liquidation or
bankruptcy or under any compromise or arrangement), the Guarantor covenants
with the Security Trustee as follows:
(a) to waive all rights of subrogation, reimbursement and indemnity which
it may have against any RRL Group Company; and
(b) not to take any step to enforce any right against any RRL Group
Company, any other guarantor, any co-guarantor or any other person
liable in respect of the Guaranteed Liabilities and in particular (but
without limitation) not to:
(i) demand, accept, negotiate, assign, charge or otherwise dispose
of:
(A) any moneys, obligations or liabilities from time to time due
or owing to the Guarantor; or
(B) any promissory note, ▇▇▇▇ of exchange, guarantee, indemnity,
mortgage, charge or other security held by the Guarantor
from any RRL Group Company, from any other guarantor or from
any co-guarantor;
(ii) claim any set-off or counter-claim against the same;
(iii) prove in competition with the Security Trustee in the
liquidation of any RRL Group Company, any other guarantor or any
co-guarantor; or
(iv) have the benefit of or share in any payment or composition from
the same or in any other guarantee, indemnity or lien from time
to time held by the Security Trustee for any of the Guaranteed
Liabilities.
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2.2 FURTHER COVENANT BY THE GUARANTOR
If the Guarantor shall have any right of proof in the liquidation of any
RRL Group Company in respect of any matters unconnected with this Deed or
any right of contribution from a co-guarantor, the Guarantor (if requested
by the Security Trustee) shall exercise such rights on behalf of the
Security Trustee and shall hold any dividend or moneys received in respect
of the same on trust for the Security Trustee.
2.3 MONEYS HELD ON TRUST
Any moneys from time to time held on trust by the Guarantor for the
Security Trustee shall be transferred, assigned or, as the case may be,
paid to the Security Trustee promptly following the Security Trustee's
demand.
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SCHEDULE 3
SECURITY TRUSTEE'S POWERS
1. SUSPENSE ACCOUNT
Any moneys received by the Security Trustee under this Deed may, at the
discretion of the Security Trustee, be placed in a suspense account and
kept there for so long as the Security Trustee thinks fit.
2. THE GUARANTOR'S ACCOUNTS
2.1 DEALINGS WITH SECURITY TRUSTEE'S ACCOUNTS
The Security Trustee may at any time (without prior notice or demand to the
Guarantor or any RRL Group Company and notwithstanding any settlement of
account or any other matter or thing):
(a) combine or consolidate all or any of the Guarantor's then-existing
accounts with the Security Trustee (including accounts in the name of
the Security Trustee or the Guarantor alone or jointly with others)
irrespective of the type of account or the place in which it is held;
and
(b) set off or transfer any sum standing to the credit of any one or more
such accounts in or towards the payment, discharge or provision of
cash cover for the Guaranteed Liabilities.
For these purposes the Security Trustee may effect such currency exchanges
as in its opinion are appropriate to implement the same.
2.2 NEW ACCOUNTS
The Security Trustee may at any time open a new account or accounts for the
Guarantor. If the Security Trustee does not open such a new account, it
shall nevertheless be treated as if it had done so at the time when the
guarantee ceases to be continuing for any reason whatsoever or the Security
Trustee makes a Demand or makes a demand under any lien held by it for the
obligations of any RRL Group Company. As from that time, all payments made
to the Security Trustee for any RRL Group Company's account shall be
credited (or be treated as having been credited) to the new account and no
such payment shall operate to reduce the indebtedness or liability of the
Guarantor under this Deed.
3. LIEN
Until the Guaranteed Liabilities have been finally paid and satisfied in
full, the Security Trustee shall have a lien on all property and assets of
the Guarantor from time to time in the Security Trustee's possession and a
charge over all stocks, shares and marketable securities from time to time
registered in the name of the Security Trustee or its respective nominees
whether such possession or registration is for safe custody or otherwise.
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EXECUTION:
THE GUARANTOR
SIGNED as a deed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, )
Director, duly authorised for and on behalf ) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
of SOCIETE DES MINES DE LOULO )
S.A. )
THE SECURITY TRUSTEE
SIGNED by ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, duly authorised for and on )
behalf of N M ROTHSCHILD & SONS ) ▇▇▇▇ ▇▇▇▇
LIMITED
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