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Execution version
DATED 2 October 2017
LA GENERALE DES CARRIERES ET DES MINES
SA
(as Borrower)
and
FLEURETTE MUMI HOLDINGS LIMITED
(as Lender)
EUR 200 MILLION TERM LOAN AGREEMENT
CONTENTS
Clause Page
1 Definitions and Interpretation........................................................................................3
2 The Facility.......................................................................................................................5
3 Conditions........................................... 6
4. Drawdown........................................................................................................................6
5 Interest..............................................................................................................................7
6 Repayment................................................. 7
7 Taxes................................................................................................................................8
8 Indemnities................................................ 8
9 Representations..............................................................................................................9
10 Notification of default....................................................................................................11
11 Undertakings..................................................................................................................11
12 Events of Default...........................................................................................................12
13 Payment Mechanics....................................................................................................13
14 Notices.................................................................................................................... 14
15 Calculations and Certificates.......................................................................................14
16 Remedies .................................... 15
17 Amendments and Waivers..........................................................................................15
18. Counterparts..................................................................................................................15
19 Confidentiality................................................................................................................15
20 Announcements............................................................................................................16
21 Fees; Costs and Expenses..........................................................................................16
22. Assignment and Transfer.............................................................................................16
23 Governing Law..............................................................................................................17
24 Enforcement and Jurisdiction......................................................................................17
Schedule 1 Conditions Precedent....................................................................................20
Schedule 2 Form of Drawdown Request........................................................................21
THIS AGREEMENT is dated 2 October 2017 and made between
(1) LA G&NERALE DES CARRIERES ET DES MINES SA, a company Incorporated under the
laws of the Democratic Republic of the Congo, registered with the Trade and Personal
Property Credit Register (Registre du Commerce et du Cr6dit Mobilier} of Lubumbashi under
number CD/L SHI/RCCM/14-B-1678 with Its registered office at 419 Boulevard Kamanyoia,
Boite Postale 450 Lubumbashi, Democratic Republic of the Congo (the Borrower") and
(2) FLEURETTE MUMI HOLDINGS LIMITED whose reg stared office is located at Trident
Chambers PO Box 146 Palm Grove House. Road Town Tortola. Bntish Virgin Islands (the
Lender")
IT IS AGREED as follows
1 DEFINITIONS AND INTERPRETATION
1 1 Definitions
In this Agreement
Affiliate' means in respect of any party hereto any other person or entity that is directly or
indirectly controlling controlled by or under the same control as. such Party and the term
Control', when used in respect of any person or entity means the nght, power or authonty
to manage or advise such person or entity, whether directly or indirectly, through the holding
of shares or nterests, through the ownership of voting rights through a contract or otherwise
'Authorisation* means an authonsaton consent approval, resolution licence, exemption
filing notansat.on or registration
"Availability Period' means the period from and including the date of this Agreement to and
including the dry falling twenty (20) Business Days after the date of this Agreement (or such
later date as the Parties may agree)
Business Day means a day (other than a Saturday or Sunday) on which banks are open
for general business in Kinshasa
Default means an Event of Default or any event or circumstance specified in Clause 12
(Events of Default} which would (with the exp ry of a grace penod the giving of notice the
making of any determinat on under the F nance Documents or any combination of any of the
foregoing) be an Event of Default
Drawdown Date means the date specified as such in the Drawdown Request
Drawdown Request" means a notice substantaily m the form set out in Schedule 2 (Form
of Drawdown Request}
DRC* means the Democratic Republic of the Congo
Euros" and 'EUR" mean the lawful currency for the time being of member states of the
European Union which have adopted the single currency in accordance with the European
Union Treaty (as amended from time to time)
Event of Default" means any event or circumstance specified as such m Clause 12 (Events
of Default}
Facility* means the loan fact tty made available under this Agreement as descnbed in Clause
2 (Facility}
3
Facility Amount" means EUR 200,000 000 (as such amount may be reduced in accordance
with the provisions of this Agreement)
Finance Documents' means this Agreement and any other document entered into pursuant
to it
Interest Period' with respect to each Facility means a penod commencing on the Drawdown
Date and ending on the date of repayment or prepayment in full of that Facility and all interest
m respect thereof
LIBOR tn relation to the relevant Interest Penod
(a) the applicable British Bankers' Association Interest Settlement Rate for Euros for the
relevant Interest Penod, displayed on the appropriate page of the Reuters screen at or
about 11 00am London time on the first day of the Interest Period as determined by the
Lender and not tied to the Borrower If the agreed page is replaced or the service
ceases to be available the Lender may specify another page or services displaying the
appropriate rate after consultation with the Borrower, or
(b) if no such screen rate is available for Euros or for the relevant Interest Penod such
equivalent rate as may be determined by the Lender and notified to the Borrower with
reference to the London interbank market
'Loan means the advance made or to be made under the Facility or the principal amount
thereof outstanding for the time bemg together with any costs and expenses incurred under
clause 21 2 and not reimbursed by the Borrower and any other amount outstanding under any
of the Finance Documents
'Loan Account means the special bank account opened by the Borrower with Trust
Merchant Bank (or any other institution agreed between the Parties m writing phor to the
Drawdown Date) for the sole purpose of th s Agreement
Material Adverse Effect" means a matenai adverse effect on
(a) the Borrower's ab lity to perform any of its payment obligations under any of the Finance
Documents: or
(b) the validity or enforceabii ty of the Finance Documents
Maturity Date" means the date fall ng six (6) months after the Drawdown Date (or if that day
is not a Business Day. the next Business Day)
Original Financial Statements means the Borrowers audited financial statements for its
financial year ended 31 December 2015
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) applicable in the DRC
"Unpaid Sum means any sum due and payable but unpad by the Borrower under the
Finance Documents
12 Construction
(a) Unless a contrary indication appears any reference in this Agreement to
(<) the Lender or the Borrower shall be construed so as to include its successors in
title perm tted ass gns and permitted transferees
(ii) assets includes present and future properties revenues and rights of every
description.
(iii) a document being in the ‘agreed form' means the form thereof agreed by the
parties on or before the date of this Agreement,
(iv) a Finance Document or any other agreement or instrument is a reference to that
Finance Document or other agreement or instrument as amended novated
supplemented extended or restated
(v) 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
(vi) indebtedness' includes any obligation (whether incurred as principal or surety)
for the payment or repayment of money whether present or future actual or
contingent and
(vii) a provision of law Is a reference to that provision as amended or re-enacted
(b) Clause and Schedule headings are for ease of reference only
(c) A Default or Event of Default is 'continuing' if it has not been remedied or waived
2 THE FACILITY
21 Facility
(a) Subject to the terms of this Agreement the Lender shall make available to the
Borrower, and the Borrower shall draw down, as provided in Clause 3 (Conditions), a
term loan factl.ty in Euros in a principal amount equal to the Facility Amount
(b) The Facility Amount should be paid by the Lender to the Borrower by credit to the Loan
Account.
2 2 Purpose
(a) The Borrower shall apply all amounts borrowed by it under the Fadl.ty
(i) for its genera' working capital purposes
(ii) for the financing of any project in connection with its corporate purpose
(iii) to repay or refinance outstand ng debt facilities and
(iv) for any other purpose in connection with its corporate purpose
(b) The Borrower shall give the Lender a prior wntten not.ce before withdrawing any
amount from the Loan Account
(c) The Lender is not bound to mon tor or venfy the application of any amount borrowed
pursuant to this Agreement
2 3 Cancellation
(a) The Facility shall automatically be cancelled in full (with the result that the Lender shall
have no obligation to advance funds to the Borrower hereunder and the Borrower shall
be released from all obligations hereunder) if by 5pm (Kinshasa time) on the Business
Day preceding the last day of the Availability Period the Lender has not received (or
waived receipt of), all of the documents and other evidence listed m
Schedule 1 (Conditions Precedent) n form and substance satisfactory to the Lender
5
(b) The Borrower may at any time if it g.ves the Lender not less than five (5) Business
Days prior wntten notice (which shall be irrevocable and shall specify the date on which
the cancellation is to take effect) cancel the whole or any part of the Facility
3 CONDITIONS
3 1 Conditions Precedent
The Borrower may not deliver a Drawdown Request unless the Lender has rece.ved (or
waived receipt of) all of the documents and other evidence listed in Schedule 1 (Conditions
Precedent) and notfied the Borrower that they are in form and substance satisfactory to the
Lender The Lender shall not.fy the Borrower promptly upon being so satisfied
3 2 Further Conditions Precedent
The Lender will only be obliged to comply with Clause 4 2 (Lenders Obligations) it
(a) the drawdown shall not be earlier than three (3) Business Days after the date on which
the Lender rece ves, or is deemed to have received the Drawdown Request
Provided that for this purpose, if the Drawdown Request is del vered on a day that is
not a Business Day or after 3pm (Kinshasa time) the Lender shell be deemed to have
received it on the next succeeding Business Day
(b) on the date of a Drawdown Request and on the Drawdown Date no Event of Default or
Default is continuing or would result from the making of the proposed advance; and
(c) on the date of a Drawdown Request and on the Drawdown Date each of the
representatons set out in Clause 9 (Representations) is then true in all material
respects
4 DRAWDOWN
4 1 Delivery of a Drawdown Request
(a) Subject to Clause 3 (Conditions) the Borrower may utilise the Facility by delivery to the
Lender of a duty completed Drawdown Request no later than 5pm (Kinshasa Lme) on
the last day of the Availability Penod
(b) Only one advance shall be made under the Facility
(c) A Drawdown Request shall only be duly completed if the date therein specified as foe
Drawdown Date is a Business Day that falls no less than three (3) days after delivery
by the Borrower of the Drawdown Request
4 2 Lender's Obligations
(a) If
(i) the condtions set out in this Agreement have been met or waived (as
appropnate) and
(h) the Lender has received a duly completed Drawdown Request.
the Lender sha l make the Facility Amount available to the Borrower on the Drawdown
Date
(b) As soon as practicable after the Drawdown Date the Lender shall notify the Borrower
the estimated amount due on repayment of the Facility Amount (prinapai and interest).
on the assumption that no prepayment is made and that repayment is made in full with
interest on the Maturity Date
5 INTEREST
5 1 Calculation and payment of Interest
Interest shall accrue monthly on the Loan dunng the period from and ndudmg the Drawdown
Date until repayment in full at the 3O-day LIBOR rate plus five percent (5%) per annum be
added to principal monthly and shall be payable on the Maturity Date Subject to Clause 6 1
(Repayment at Maturity) any prepayment by the Borrower in respect of the Loan shall first be
applied to accrued interest and thereafter to principal
5 2 Default Interest
Interest shall accrue on the Unpaid Sum from and including its due date up to but not including
the date of actual payment (both before and after judgment) at the rate specified in Clause
5 1 plus five percent (5%) per annum Any interest accruing on an Unpaid Sum under this
Clause 5 2 shall be immediate y payable by the Borrower on demand by the Lender
6 REPAYMENT
6 1 Repayment at Maturity
The Borrower shall repay the Loan in full on the Maturity Date
6 2 Voluntary Prepayment
(a) At any time pnor to the Maturity Date, the Borrower may. if it gives the Lender not less
than ten (10) Business Days (or such shorter perod as the Lender may agree) prior
written notice (which shall be irrevocable and shall specify the date on which the
prepayment is to be made) prepay the whole or any part of the Loan (but, if in part
being an amount that reduces the amount of the Loan by a minimum amount of EUR
5.000.000) with al accrued interest thereon.
(b) If the Borrower makes an early prepayment of the Loan, this early prepayment will not
affect the Borrower's obligations to repay in full any outstand.ng amount of the Loan on
the Maturity Date Including al accrued nterest thereon
6 3 Prepayment on change of control
If the State of the DRC shall cease beneficially to own (d redly or indirectly) more than 50%
of the Borrower s ssued share capital or shall cease to have the power (whether through the
ownership of votng share cap tai. by contract or otherwse) to direct the Borrowers
management and policies the Borrower shall promptly notify the Lender thereof whereupon
unless the Lender agrees otherwise
(a) if no advance has been made the Lender shall cease to be obliged to advance funds
hereunder and the Facility shall be cancelled and
(b) if an advance has been made the Borrower shall on such date as the Lender act ng
reasonably, may specify repay the Loan m full together with all interest accrued
thereon
6 4 Prepayment on Illegality
If it becomes unlawful in any applicable junsd ction for the Lender to perform any of its
obligations as contemplated by this Agreement or to fund or mainta n the Loan (or a part
thereof), the Lender shal. promptly after becoming aware of that event notify the Borrower
thereof whereupon
I
7
(a) if no advance has been made the Lender shall cease to be obliged to advance funds
hereunder and the Facility shall be cancelled and
(b) if an advance has been made, the Borrower shall no later than the latest date the Loan
may remain outstanding under applicable law. repay the Loan in full together with all
interest accrued thereon.
The Lender shall in consultation with the Borrower take all reasonable steps to mitigate any
circumstances which arise and wh ch would result in any amount becoming payable under
this Clause 6 4
6 5 General
The Borrower shall not repay or prepay all or any part of the Loan except at the times and in
the manner expressly provided for in this Agreement and shall not be entitled to re-borrow
any amount repaid
7 TAXES
7 1 All payments to be made by the Borrower to or for account of the Lender under the F.nance
Documents shall be made free and clear of and without any deduct on or withholding for or
on account of Tax (a "Tax Deduction") except as required by law
7 2 The Borrower shall promptly upon becoming aware that it must make a Tax Deduction (or that
there is any change in the rate or the basis of calculating a Tax Deduction) notify the Lender
accordingly
7 3 If the Borrower is required by law to make a Tax Deduction the amount of the payment due
from the Borrower shall be increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due if no Tax Deduction had
been requred
7 4 If the Borrower s requ red to make a Tax Deduct on it shall make that Tax Deduction and any
payment required in connection with that Tax Deduction within the time ai owed and in the
minimum amount requ red by law
7 5 Withm thirty (30) days of making a Tax Deduct on or a payment requ red in connection
therewith, the Borrower shall deliver to the Lender evidence reasonab y satisfactory to the
Lender showing that the Tax Deduction has been made and (as applicable) the appropriate
payment has been paid to the relevant taxing authonty
8 INDEMNITIES
8 1 Currency indemnity
(a) If any sum due from the Borrower under a Finance Document or any order judgment
or award given or made in relation to any such sum has to be converted from the
currency (the First Currency") in which that sum is payable into another currency (the
Second Currency ) for the purpose of
(i) making or filing a daim or proof against the Borrower or
(ii) obtaining or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,
the Borrower shall as an independent obligation, within three (3) Business Days of
demand ndemmfy the Lender agamst any cost loss or liability ansmg out of or as a
result of the conversion including any discrepancy between (A) the rate of exchange
8
used to convert that sum from the First Currency into the Second Currency and (B) the
rate or rates of exchange available to the Lender at the time of its receipt of that sum
(b) The Borrower waives any nght it may have in any junsdiction to pay any amount under
the Finance Documents in a currency or currency unit other than that in which it is
expressed to be payable
8 2 Other indemnities
The Borrower shall, within three (3) Business Days of demand Indemnify the Lender against
any cost, loss or liability incurred by it as a result of
(a) the occurrence of any Event of Default
(b) a failure by the Borrower to pay any amount due under a Finance Document on ns due
date or in the required currency
(c) funding or making arrangements to fund, the advance requested by the Borrower in a
Drawdown Request but not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default or negligence by the
Lender alone)
(d) the Loan not being prepaid in accordance with a notice of prepayment given by the
Borrower
(e) investigating any event which it reasonably bel.eves is a Default; or
(f) acting or relying on any not ce request or instruction which it reasonably believes to be
genuine, correct and appropnately authorised
9 REPRESENTATIONS
The Borrower makes the representations set out m this Clause 9 to the Lender on the date of
this Agreement and on each day that any sums due under the Finance Documents remain
outstanding
91 Status
It is a corporation, duly incorporated and validly existing under th laws of the DRC with the
power to own its assets and carry on its business as it is now being conducted
9 2 Binding obligations
Subject to any generally applicable legal principles that might apply thereto, the obligations
expressed to be assumed by it in each Fmanc Document are legal, valid binding and
enforceable ob.igattons
9 3 Non-confiict
Its entry into and performance of its obligations under the Finance Documents and the
borrowing of the Facility Amount do not conflict in any material way with
(a) any law or regulation to which it is subject
(b) its constitutional documents, or
(c) any agreement or instrument to which it is a party or wh ch is applicable to it
9 4 Power and authority
It has the power to enter into perform and deliver, and has taken all action necessary to
authonse its entry into and its performance and delivery of. the Finance Documents ,
9
9 5 Validity and admissibility in evidance
Al, Authorisations required to enable it lawfully to enter into exerase its rights and comply
with its oblgations under the Finance Documents and to make the Finance Documents
admissible m evidence in the DRC have been obtained or effected and are in full force and
effect
9 6 No Default
On the date of this Agreement and on the Drawdown Date no Default is continuing or might
reasonably be expected to result from the entry into the performance of or any transaction
contemplated by. any Finance Document
9 7 No misleading information
Save as disclosed in writing to the Lender prior to the date of this Agreement, all factual
information provided in writing by it to the Lender in connect.on with this Agreement and the
transactions hereby contemplated was true and accurate in all material respects as at the
date of the relevant document containing the information or (as the case may be) as at the
date the information Is expressed to be given
9 8 Financial statements
(a) The Original Financial Statements were prepared in accordance with generally
accepted accounting principles consistently applied and give a true and fair view of its
financial condition and results of operations dunng the financial year to which they
relate
(b) There has been no matenal adverse change in its business or financial condition since
the date as of which the Original Financial Statements were prepared
9 9 Solvency
No corporate action, legal proceeding or other procedure or step described in Clause 12 5
(Insolvency Proceedings) has been taken or to the best of its knowledge and belief
threatened
910 Compliance with laws etc.
(a) Only in respect of the activities and projects that are under the contra of the Borrower,
it is in compliance in all material respects with all applicable environmental social and
other laws applicable to it and to the best of its knowledge and belief no circumstances
have occurred which would prevent such compliance in a manner or to an extent which
has or is reasonably likely to have a Material Adverse Effect
(b) Only in respect of the activities and projects that are under the control of the Borrower
no environmental claim has been commenced or (to the best of its knowledge and
belief) is threatened against it where that claim has or .s reasonably likely, if determined
against it, to have a Matenal Adverse Effect
(c) None of the proceeds of the Faaiity will be used by the Borrower for a purpose in
contravention of any applicable anti-corruption laws and the Borrower conducts and wil
conduct its business in compliance with all such laws
911 Pari passu ranking
The Lender s claims aga nst the Borrower under this Agreement will rank at least pan passu
with the claims of ail the Borrower s other unsecured and unsubordinated creditors save those
whose claims are mandatorly preferred by laws of general application
912 No filings or stamp taxes
Under the laws of the DRC it is not necessary that any of the Finance Documents be filed
recorded or enrolled with any court or other authority in that junsdiction or that any stamp
9 13 registration or similar tax be paid on or m relation to any of the Finance Documents or the
transactions contemplated by any of the Finance Documents
Immunity
In any proceedings taken n the DRC in relation to the Finance Documents, it will not be
9 14 entitled to claim for itself, or any of it assets Immunity from suit execution attachment set-
off, judgment or other analogous process
No money laundering
It is not. and has not been involved in any Illegal activ ties in relation to money laundering or
9 15 similar activities
Currency restriction
There are no currency restrictions applicable to the Borrower which would prevent it from
9 16 making payments under this Agreement in Euros
Repetition
Each of the foregoing representat ons is deemed to be made by the Borrower on the date of
the Drawdown Request on the Drawdown Date and on each day that any sums under the
10 Finance Documents remain outstanding by reference to the facts and circumstances then
existing
NOTIFICATION OF DEFAULT
The Borrower shall notify the Lender of any Default (and the steps if any being taken to
11 remedy it) promptly upon becoming aware of its occurrence
UNDERTAKINGS
11 1 Authorisations
The Borrower shall prompt y obtain, comply with and do all that is necessary to maintain m
full force and effect all Authonsat.ons required by the laws of the DRC to enable it lawfully to
11 2 perform its obligations under the Finance Documents and to ensure the legality, validity
enforceability or admissibility in evidence in the DRC of each Finance Document
Compliance with laws
The Borrower shall comply in all material respects with al environmental and other aws to
11 3 which it is subject if failure so to comply wou d have (or would be reasonably ukely to have) a
Material Adverse Effect
Change of Business
The Borrower shall procure that no substantia change is made to the general nature of its
114 business from that earned on at the date of this Agreement
Pari passu ranking
The Borrower shall ensure that at all times the Lender's claims against it hereunder rank at
least pan passu with the claims of all its other unsecured and unsubordinated creditors save
those whose damns are mandatonly preferred by laws of general application
/ /
11
12 EVENTS OF DEFAULT
Each of the events or circumstances set out in Clauses 12 1 through 12 6 is an Event of
Default
12 1 Non-payment
The Borrower does not pay on the due date any amount payab'e by it pursuant to a Finance
Document at the place and in the currency in which it is expressed to be payable unless
(a) its failure to pay Is caused by administrative or technical error and
(b) payment is made within three (3) Business Days of its due date
12 2 Covenants
The Borrower fai s to perform any of its material non-payment obligations under the Finance
Documents and such failure has not been remedied or waived by the date that falls thirty (30)
days (or if the Borrower has taken steps to remedy such failure within fifteen (15) days after
the Lender has given notice to the Borrower requiring that such fa.lure be remedied, forty-five
(45) days) after the Lender has g.ven notice to the Borrower requmng that the failure be
remedied
12 3 Misrepresentation
(a) Any representat on or statement made or deemed to be made by the Borrower n the
Finance Documents or any other document delivered by or on behalf of the Borrower
under or m connection with any Finance Document is or proves to have been .ncorrect
or m sieading in any material respect when made or deemed to be made
(b) No Event of Default will occur by virtue of paragraph (a) above unless the
circumstances giving rise to the misrepresentation have not been altered n such a way
as to ensure that if repeated the representation or statement would again be accurate
by the date that falls thirty (30) days after the Lender has given notice to the Borrower
requ ring that it cause those circumstances to be so altered
12 4 Insolvency
(a) The Borrower
() is unable, or admits its inability to pay its debts as they fall due: or
(ii) by reason of actual or anticipated financial difficulties suspends making
payments on any of its debts (unless the relevant payment is suspended in
accordance with a contractual entitlement)
(b) The value of the assets of the Borrower is less than its liabilities (taking into account
contingent and prospective liabilities)
(c) A moratonum is declared in respect of any indebtedness of the Borrower
12 5 Insolvency Proceedings
Any corporate action legal proceed ngs or other procedure or step is taken in relation to
(a) a suspension of payments by the Borrower or a moratonum with respect to any of its
indebtedness that results from an inability to make such payments when due
(b) the w ndmg-up dissolution administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of the Borrower otherwise than in
12
connection with a solvent reorganisation on terms which have been disclosed to the
Lender
(c) a composition assignment or arrangement with any creditor of the Borrower otherwise
than m connection with a solvent reorganisation on terms which have been disclosed
to the Lender
(d) the appointment of a liquidator receiver administrator administrative rece.ver or other
similar officer in respect of the Borrower or any of its assets.
or any analogous procedure or step is taken in any jurisdiction in which the Borrower conducts
business
12 6 Repudiation
The Borrower repudiates a Finance Document or evidences an intention to do so
127 Unlawfulness
It is or becomes unlawful for the Borrower to perform any of its payment or other material
obligations under the Finance Documents
12 8 Litigation etc.
Any litigation arbitration, administrative, governmental regulatory or other investigations
proceedings or disputes specifically connected with the Finance Documents or the
transactions contemplated therein are commenced or threatened which has or is reasonably
likely to have a Material Adverse Effect
12 9 Acceleration
On and at any time after the occurrence of an Event of Default which is continuing the Lender
may by notice to the Borrower
(a) cancel the Facility whereupon it shall immediately be canceled
(b) declare the Loan together with accrued interest thereon and all other amounts accrued
or outstanding under the Finance Documents to be immediately due and payable
whereupon the same shall become immediately due and payable and/or
(c) declare the Loan and accrued interest thereon and all other amounts accrued or
outstanding under the F.nance Documents to be payable on demand whereupon the
same shai immed ately become payable on demand by the Lender
12.10 Other action
The Lender may take any other acton wh ch as a result of the occurrence of an Event of
Default it is entitled to take under any Finance Document or app cable law
13 PAYMENT MECHANICS
13 1 Payments between the Parties
On each date on which the Borrower or the Lender is required to make a payment under a
Finance Document it shall make the same available for value on the due date at the time and
in such funds as are customary at the time for settlement of transactions in the relevant
currency m the place of payment for credit to such account of the payee with such bank in the
place of payment as the payee shai have specified at least five (5) Business Days before that
date
13
13 2 Currency of account
Euros is the currency of account and payment for any sum due from the Borrower under any
Finance Document, but each payment in respect of Taxes shall be made in the currency in
which the Taxes are incurred
14 NOTICES
14 1 Communications
Any communication to be made under or in connection with the Finance Documents shall be
made in writing (and in the English language or if not in English, and is so required by the
Lender accompanied by a certified English translation) and. unless otherwise stated may be
given in person, by fax or by letter
14 2 Addresses
The address and fax number (and the department or officer, if any for whose attention the
communication is to be made) of each party hereto for any communication or document to be
made or delivered to it under a Finance Document is that identified w.th its name on the
relevant signature page of this Agreement unless it has provided the other party hereto with
a substitute address and fax number or department or officer by not less than five (5) Business
Days' notice
14 3 Delivery
Any communication or document made or delivered by one person to another under or in
connection with the Finance Documents will be effective
(a) if delivered In person, at the time of delivery,
(b) if by way of fax or email when received in legible form or
(c) if by way of letter, when It has been left at the relevant address or five (5) Bus.ness
Days after being depos ted in the post postage prepaid in an envelope addressed to it
at that address
and if a particular department or officer is specified as part of its address details provided
under Clause 14.2 (Addresses), if addressed to that department or offcer
15 CALCULATIONS AND CERTIFICATES
15 1 Accounts
In any proceed ngs ansiog out of or in connection with this Agreement, the entries made in
the accounts maintained by the Lender are prime facie evidence of the matters to which they
relate
15 2 Certificates and Determinations
Any certification or determination by the Lender of a rate or amount under this Agreement is
n the absence of man.fest error conclusive evidence of the matters to which it relates
15 3 Day count convention
All interest accruing under this Agreement will accrue from day to day and be calculated on
the basis of the actual number of days elapsed and a year of 360 days (respective of whether
or not the year in question is a leap year
16 REMEDIES
16 1 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 junsdiction neither the legality validity or
enforceability of the rema ning provisions nor the legality validity or enforceability of such
provision under the law of any other junsdiction will in any way be affected or impaired
16 2 Remedies and Waivers
No failure by the Lender to exerase nor any delay by the Lender in exerasing 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 exerase thereof 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
17 AMENDMENTS AND WAIVERS
No term of the Finance Documents may be amended or waived otherwise than by a written
instrument signed on behalf of the Lender and the Borrower
18 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
19 CONFIDENTIALITY
19 1 Save as permitted by Clauses 19 2 and 19.3
(a) all information, reports or documents re'atmg to the assets liabilities or business, or the
management or operating plans of the parties hereto or their subsidiaries furnished by
one party to the other in connection with the Finance Documents shall be kept
confidentia by the recipient and shall not be used for any purpose other than as
contemp ated by the F.nance Documents and
(b) the terms and conditions (and existence) of the Finance Documents any loan
partlapation notes ssued by the Lender for the purpose of funding Its obligations under
this Agreement (and the identity o* any holder thereof) and details of the negotiations
between the parties n connect on with the Finance Documents shall be kept
confidential by each of the parties hereto
and none of the same shall be d sclosed to any thrd partes for a period of three (3) years
from the date of ths Agreement wthout the poor wntten consent of the other party (such
consent not to be unreasonably w thheld or delayed)
19 2 The provisions of C ause 19 1 sha I not app y to
(a) any information requ red to be diseased by law. court order or any governmental or
regulatory authonty
(b) any information wh ch is or becomes publ c knowledge other than pursuant to a breach
of this Agreement by the recipient
(c) any information received by the reap.ent which was known to it poor to disclosure by
the disclos ng party
15
(d) any information disclosed to the professional advisers of the recipient for purposes
relating to the Facility where the advisers have been made aware of and agree to be
bound by the obligations under this Clause 19 or are in any event subject to
confidentiality obligations as a matter of law or profess onai practice or
(e) any nformation that was is or becomes available to the reap ent on a non-confidentiai
basis from a person who to the recipient s knowledge is not bound by a confidentiality
obligation
19 3 The Lender may disclose such information about the Borrower and the Finance Documents
as it shall consider appropriate to any of its Affiliates and associates and to any other person
(a) to whom the Lender assigns (or may potentially assign) all any of its rights under this
Agreement, or
20 (b) with whom the Lender enters into (or may potentially enter into) any sub-participat on
in relation to, or any other transaction under wh.ch payments are to be made by
reference to, this Agreement
ANNOUNCEMENTS
20 1 Subject to C auses 20 2 and 20 3. each party agrees to obtain the written consent of the other
prior to making any publicity release or public announcement concerning the Finance
20 2 Documents or the transactions contemplated therein
Where an announcement is required by law or any governmental or regulatory authority
(including, without limitation, any relevant securities exchange) or by any court or other
authonty of competent jurisdiction, the party required to make the announcement shall
promptly notify and consult with the other party The announcing party shall, so far as
20 3 permitted under applicable law and prior to mak ng such announcement agree the contents
of such announcement with the other party (such agreem nt not to be unreasonably withheld
or delayed)
The Lender, acting reasonably, may make such announcem nts as it deems appropr ate in
response to inaccurate information regarding the F nance Documents or the transact ons
contemplated therein that has been d sseminated in the pub ic domain The Lender shall
promptly notify the Borrower of its deasion to make an announcement and prior to mak ng
21 such announcement, use all reasonable efforts to agree the contents of such announcement
w th the Borrower (such agreement not to be unreasonably withheld or de ayed)
FEES; COSTS AND EXPENSES
21 1 Each Party shall pay the legal fees and disbursements incurred by it of negotiating and
documenting this Agreement or any other Finance Document (including notarial and
21 2 registration fees and disbursements incurred in relation thereto)
The Borrower shall, within three (3) Business Days of demand pay to the Lender the amount
of a I duly documented costs and expenses (including legal fees) properly incurred by it in
connection with the enforcement of or the preservation of any rights under this Agreement
22 or any other Finance Document Any amount not so paid sha I be treated as part of and added
to the Loan
ASSIGNMENT AND TRANSFER
22 1 The Borrower may not assign any of its nghts or transfer any of its rights or obligations under
any of the Finance Documents without the prior wntten consent of the Lender
22 2 The Lender may at any time assign ts rights and obligations under any of the Finance
Documents in whole or in part to any Affiliate
22 3 For the avoidance of doubt, the Lender may only assign its rights and obligations under any
of the Finance Documents in whole or in part to any person other than an Affiliate with the
pnor wntten consent of the Borrower such consent not to be unreasonably withheld or
decayed
23 GOVERNING LAW
This Agreement and any non-contractual obligations ansmg out of or in connection with it are
governed by the laws of the DRC
24 ENFORCEMENT AND JURISDICTION
24 1 Jurisdiction
(a) The courts of the DRC have jurisdiction to settle any dispute (including any non-
contractual disputes) ansing out of or in connection with this Agreement or any other
Finance Document (including a dispute regarding the existence validity or termination
of th.s Agreement) (a Dispute')
(b) The parties hereto agree that the courts of the DRC are the most appropriate and
convenient courts to settle Disputes in relation to this Agreement and accord.ngly no
party will argue to the contrary
24 2 Waiver of Immunity
To the extent that the Borrower may be ent.tled in any jurisdiction to claim for itself or its assets
immunity in respect of its obligations under this Agreement or any other F nance Document
from any suit execut on. attachment (whether prov.sional or final in a.d of execution, before
judgment or otherwise) or other legal process or to the extent that in any jurisdiction such
immunity (whether or not claimed) may be attributed to it or its assets the Borrower
irrevocably agrees not to claim and irrevocably waives such immunity to the fullest extent
permitted by the laws of such junsdiction
In Witness Whereof th.s Agreement has been entered into on the date first above written
The Borrower
LA G&N&RALE DES CARRIERES ET DES MINES SA
By Albert YUMA MULIMBI
Title Chairman of the Board of Directors
Address 419 Boulevard Kamanyola Bo
Lubumbashl
Democratic Republic of the Congo
E-maii namenoatshirnuangafllgecamines cd ; Copy ngele masudiaqecammes.cd
Attn General Manager (Directeur G6n6ral)
16
The Lender
FLEURETTE MUMI HOLDINGS LIMITED
By: KlATTXU&'T ( >Auu¥feAJ&»^
Titie -321 ^£^>0-
Address Tndent Chambers
PO Box 146, Palm Grove House,
Road Town, Tortola
British Virgin Islands
E-mail/Fax
Attn
Schedule 1
Conditions Precedent
1 A copy of the Borrower's constitutive documents
2 A copy of a resolution of the Borrower s board of directors
(a) approving the terms of and the transactions contemplated by the F nance Documents
and resolving that the Borrower execute the Finance Documents
(b) authoris ng a specified person or persons to execute the Finance Documents on the
Borrower’s behalf and
(c) authorising a specified person or persons, on the Borrower s behalf, to s.gn and/or
dispatch all documents and notices (including the Drawdown Request) to be sgned
and/or dispatched by it under or in connection with the Finance Documents
3 A certificate of an authonsed signatory of the Borrower certifying that the copy documents
referred to in paragraphs 1 and 2 above are correct complete and in full force and effect as
at a date no earlier than the date of this Agreement
4 A specimen of the signature of each person authorised by the resolution referred to in
paragraph 2 above
5 A certified copy of the Original Financial Statements
6 Legal opinion as to matters of the laws of the DRC from the Lender s counsel
20
Schedule 2
Form of Drawdown Request
From LA GfzNfzRALE DES CARRIERES ET DES MINES SA
To FLEURETTE MUMI HOLDINGS LIMITED
Dated
Dear Sirs
LA GEnERALE DES CARRIERES ET DES MINES SA
Term Loan Facility Agreement dated 2017 (the Facility Agreement)
We refer to the Facility AgreemenL This is a Drawdown Request Terms defined in the Facility
Agreement have the same meaning when used herein
We hereby request that on [•) you make an advance to us in Euros in an amount equal to the
Facility Amount in accordance with the provisions of the Facility Agreement
We confirm that each condition specified in Clause 3 (Conditions) of the Facility Agreement is
sat sfied on the date of this Drawdown Request
The net proceeds of this advance should be paid to us by credit to the Loan Account which details
are
Bank (•]
- SWIFT [•]
- Account number [•]
Account holder Gdcamines
or as otherwise agreed between us in writing prior to the Drawdown Date
This Drawdown Request is irrevocable
Yours faithfully
authorised signatory for
LA GENERALE DES CARRIERES ET DES MINES SA
21