17 September, 2001
Societe des Mines de Morila S.A.
Morila Limited
c/o AngloGold Limited
P.O. Box 62117
14th Floor, 00 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx
Xxxxxxxxxxxx 0000
Xxxxx Xxxxxx
Randgold Resources Limited
c/o 0 Xxxxx Xxxxxx
Xxxxx
Xxxxxxxxxxxx
P.O. Box 82291
Southdale 2135
South Africa
RE: LOAN AGREEMENT, DATED 21 DECEMBER, 1999 (AS AMENDED, MODIFIED OR
SUPPLEMENTED FROM TIME TO TIME, THE "LOAN AGREEMENT"), AMONG SOCIETE
DES MINES DE MORILA S.A., AS THE BORROWER, RANDGOLD RESOURCES LIMITED
AND MORILA LIMITED, AS THE RANDGOLD COMPLETION GUARANTORS, THE VARIOUS
BANKS AND OTHER FINANCIAL INSTITUTIONS REFERRED TO THEREIN AS THE
LENDERS, THE ARRANGERS AND THE CO-ARRANGERS, AND X X XXXXXXXXXX & SONS
LIMITED, AS THE AGENT FOR THE LENDERS
Dear Sirs,
1. Reference is made to the terms and conditions of the Loan
Agreement. Terms for which meanings are provided in the Loan Agreement are,
except to the extent otherwise defined in this letter agreement, used with such
meanings in this letter agreement.
2. Randgold Resources Limited ("RRL") has informed us that it
intends to enter into a loan agreement (the "RRL Loan Agreement"), with N M
Rothschild & Sons Limited. Societe Generale and Standard Bank London Limited
(collectively, the "RRL Lenders") for the purpose of providing RRL with a
corporate loan facility.
3. In connection with the implementation of the loan facility
contemplated by the RRL Loan Agreement it is proposed that RRL's current fifty
percent (50%) beneficial ownership interest in the shares of capital stock of
Morila Holdings (the "MH Shares") be
transferred to Mining Investments (Jersey) Limited, a company incorporated under
the laws of Jersey ("MIJL"). In consideration of such transfer of the MH Shares,
the beneficial ownership in all of the shares of capital stock of MIJL will be
transferred to RRL. As a result of the transfers described in the foregoing
provisions of this paragraph 3, RRL will hold a beneficial ownership interest in
one hundred percent (100%) of the shares of capital stock of MIJL and MIJL will
hold a beneficial ownership interest in fifty percent (50%) of the shares of
capital stock of Morila Holdings. The transfer of the MH Shares and the
subsequent actions described in this paragraph 3 are referred to in this letter
agreement, collectively, as the "Share Transfer".
4. In connection with the Loan Agreement, and pursuant to and on
the terms and conditions of the RRL Security Agreement, the MH Shares have been
charged by RRL to the Lender Parties. In connection with the proposed Share
Transfer you have requested the release of the MH Shares (together with all
Distributions and Dividends (in each case as defined in the RRL Security
Agreement) from time to time accruing thereon) from such charge.
5. In connection with the proposed Share Transfer you have also
requested that the terms and conditions of the Loan Agreement be amended as set
forth below:
(a) paragraph (b) of the definition of the term "Change in
Control" contained in Clause 1.1 be amended and restated in full to
read as set forth below:
(b) the failure of RRL and AngloGold (BVI) to own (and
to have sole power to vote and dispose of), collectively,
directly or indirectly and free and clear of all liens (other
than (i) the liens in favour of the Lender Parties granted
pursuant to the MIJL/Morila Security Agreement and the AngloGold
Debenture, (ii) the second priority liens in favour of the RRL
Corporate Lenders granted pursuant to the MIJL/RRL Security
Agreement and (iii) the liens in favour of the RRL Corporate
Lenders granted by RRL in respect of the share capital of MIJL),
one hundred percent (100%) of the share capital (however
designated) of Morila Holdings;.
(b) the following additional definitions shall be added to
Clause 1.1 in appropriate alphabetic order:
"DEED OF PRIORITIES" means the Deed of Priorities between the
Lender Parties and the RRL Corporate Lenders, substantially in
the form of Exhibit C attached to the September 2001 Letter
Agreement.
"MIJL" means Mining Investments (Jersey) Limited, a company
incorporated under the laws of Jersey.
"MIJL/MORILA SECURITY AGREEMENT" means the Security Agreement
between MIJL and the Agent, substantially in the form of Exhibit
A attached to the September 2001 Letter Agreement.
"MIJL/RRL SECURITY AGREEMENT" means the Security Agreement
between MIJL and the agent for the RRL Lenders, substantially in
the form of Exhibit B attached to the September 2001 Letter
Agreement.
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"RRL CORPORATE LENDERS" means the lenders under a corporate loan
facility made available to RRL on or about the date of the
September 2001 Letter Agreement and described in paragraph 2 of
the September 2001 Letter Agreement.
"SEPTEMBER 2001 LETTER AGREEMENT" means the letter agreement
amending and waiving certain of the terms and conditions of this
Agreement and the RRL Security Agreement, dated 17 September,
2001, between the Lender Parties and the Obligors.
(c) the definition of the term "Obligors" contained in
Clause 1.1 shall be amended by inserting the phrase "MIJL" after the
word "Borrower".
(d) the definition of the term "Security Agreements"
contained in Clause 1.1 shall be amended by inserting the phrase", the
MIJL Security Agreement, the Deed of Priorities" after the word
"AngloGold Debenture".
(e) The first parenthesis in Clause 7.3(a) shall be amended
and restated in full to read as set forth below:
"(and (x) in the case of the AngloGold Security Agreements, the
various actions described in the First Schedule to the
Supplemental Agreement, and (y) in the case of the MIJL Security
Agreement, the various actions described in paragraph 7(a) of
the September 2001 Letter Agreement)".
6. Subject to the terms and conditions of this letter agreement,
and by their respective signatures hereto, each Lender Party hereby agrees to
the granting of the release and to the amendments to the Loan Agreement
described and requested in paragraphs 4 and 5, respectively (collectively, the
"Requested Consents").
7. The Requested Consents shall become effective on the date (the
"Effective Date") on which each of the following conditions precedent shall have
been satisfied in full, in each case in a manner satisfactory to the Agent and
its legal advisers:
(a) the Agent shall have received:
(i) (w) a security agreement (the "MIJL/Morila Security
Agreement"), in substantially the form of Exhibit A attached
hereto duly executed by MIJL, (x) share certificates
representing fifty percent (50%) of the shares of capital stock
of Morila Holdings and beneficially owned by MIJL (the
"Transferred Shares"), (y) stock powers relating to the
Transferred Shares executed in blank and such other instruments
of transfer in connection therewith as the Agent shall
reasonably require; and (z) evidence that all filings,
stampings, registrations, recordings, notifications and other
actions in all relevant jurisdictions necessary or, in the
opinion of legal advisers to the Agent, advisable or desirable,
in order to create in favour of the Lender Parties a valid and
perfected first-priority lien over all of the collateral
purported to be covered by the MIJL/Morila Security Agreement
either (A) have been made or, as the case may be, taken and are
in full force and effect or (B) will be made or taken in a
manner, and within a time period, satisfactory to the
Agent;
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(ii) a security agreement (the "MIJL/RRL Security
Agreement") substantially in the form of Exhibit B attached
hereto and duly executed by each party thereto;
(iii) a deed of priorities (the "Deed of Priorities"),
substantially in the form of Exhibit C attached hereto and duly
executed by each party thereto;
(iv) evidence satisfactory to the Agent that all
Approvals necessary or advisable to be obtained by or on behalf
of any Obligor in connection with the Share Transfer have been
obtained and are in full force and effect; and
(v) such other items of documentation as the Agent may
reasonably require in connection with the Requested Consents and
the Share Transfer;
(b) the Release Date shall then have occurred; and
(c) no Default shall then have occurred and be continuing.
8. Except as expressly waived or amended hereby, the terms and
conditions of the Loan Agreement and each other Loan Document shall continue in
full force and effect as in effect immediately prior to this letter agreement.
In the event that the Effective Date shall not have occurred on or prior to 31
October, 2001, the releases and amendments to the Loan Agreement and the RRL
Security Agreement referred to herein shall not be implemented and the terms and
conditions of this letter agreement shall, immediately and without further
action, be of no further force and effect.
9. This letter agreement is a Loan Document and shall be construed
and interpreted in all respects in accordance with the Loan Agreement.
10. This letter agreement has been executed and delivered with the
intent that it take effect as a deed.
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Yours very truly
N M ROTHSCHILD & SONS
LIMITED,
as a Lender, an Arranger and the Agent
By: /s/ XXXXX STREET
____________________________
Name Printed: XXXXX STREET
__________________
Title: ASSISTANT DIRECTOR
_________________________
By: /s/ X. XXXXXXX
____________________________
Name Printed: X. XXXXXXX
__________________
Title: DIRECTOR
_________________________
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STANDARD BANK LONDON
LIMITED,
as a Lender and an Arranger
By: /s/ X.X. XXXXXXX
____________________________
Name Printed: X.X. XXXXXXX
__________________
Title: HEAD OF MINING FINANCE
_________________________
By: /s/ XXXXXX XXXX
____________________________
Name Printer: XXXXXX XXXX
__________________
Title: HEAD OF RESOURCE BANKING
_________________________
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Yours very truly
N M ROTHSCHILD & SONS
LIMITED,
as a Lender, an Arranger and the Agent
By: ____________________________________
Name Printed: __________________________
Title: _________________________________
By: ____________________________________
Name Printed: __________________________
Title: _________________________________
STANDARD BANK LONDON
LIMITED,
as a Lender and an Arranger
By: ____________________________________
Name Printed: __________________________
Title: _________________________________
By: ____________________________________
Name Printed: __________________________
Title: _________________________________
BAYERISCHE
HYPO-UND VEREINSBANK AG,
as a Lender and a Co-Arranger
By: /s/ Xxxx Xxxxxxx
____________________________________
Name Printed: Xxxx Xxxxxxx
Title: Vice President
Global Project Finance
London
By: /s/ Xxxxxx Xxxxx
____________________________________
Name Printed: Xxxxxx Xxxxx
Title: Vice President
Global Project Finance
London
-7-
FORTIS BANK (NEDERLAND) N.V.,
as a Lender and a Co-Arranger
By: /s/ Mr. H. J. H. ZEEUWEN
____________________________________
Name Printed: Mr. H. J. H. ZEEUWEN
__________________________
Title: PROXY A
_________________________________
By: /s/ D.J. MEULEMEESTER
____________________________________
Name Printed: D.J. MEULEMEESTER
__________________________
Title: DIRECTOR
_________________________________
-8-
Signed by XXXXX XXXXXX for and on
behalf of SOCIETE GENERALE, as a
Lender and a Co-Arranger, under a
power of attorney dated [date] 14th September 2001
By: /s/ XXXXX XXXXXX
____________________________________
Name Printed: XXXXX XXXXXX
__________________________
Title: Attorney
_________________________________
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ACCEPTED AND AGREED this
17 day of September, 2001
SOCIETE DES MINES DE MORILA
S.A.
By: /s/ XXXXXXX XXXXXX
____________________________________
Name Printed: XXXXXXX XXXXXX
__________________________
Title: DIRECTOR
_________________________________
By: /s/ XXXXXX XXXX XXXXXXX
____________________________________
Name Printed: XXXXXX XXXX XXXXXXX
__________________________
Title: DIRECTOR
_________________________________
RANDGOLD RESOURCES LIMITED
By: /s/ XXXXXX XXXX XXXXXXX
____________________________________
Name Printed: XXXXXX XXXX XXXXXXX
__________________________
Title: DIRECTOR
_________________________________
By: /s/ XXXXX XXXXXXXX
____________________________________
Name Printed: XXXXX XXXXXXXX
__________________________
Title: DIRECTOR
_________________________________
MORILA LIMITED
By: /s/ XXXXXXX XXXXXX
____________________________________
Name Printed: XXXXXXX XXXXXX
__________________________
Title: DIRECTOR
_________________________________
By: /s/ XXXXXX XXXX XXXXXXX
____________________________________
Name Printed: XXXXXX XXXX XXXXXXX
__________________________
Title: DIRECTOR
_________________________________
-10-
