EXHIBIT 4.26
ISDA(R)
International Swaps and Derivatives Association, Inc.
NOVATION AGREEMENT
dated as of 24 April 2007 among:
Randgold Resources Limited, Jersey, Channel Islands (the "REMAINING PARTY"),
Societe Generale, Paris (the "TRANSFEROR")
AND
Fortis Bank NV/SA, Brussels (the "TRANSFEREE").
The Transferor and the Remaining Party have entered into one or more
Transactions as identified in the attached Annex 1 (each an "OLD TRANSACTION"),
each evidenced by a Confirmation (an "OLD CONFIRMATION") subject to an ISDA 1992
Master Agreement (Multicurrency-Cross Border) dated as of 18 February 2000 (the
"OLD AGREEMENT").
The Remaining Party and the Transferee have entered into an ISDA 1992 Master
Agreement (Multicurrency-Cross Border) dated as of 24 April 2007 (the "NEW
AGREEMENT").
With effect from and including 24 April 2007 (the "NOVATION DATE") the
Transferor wishes to transfer by novation to the Transferee, and the Transferee
wishes to accept the transfer by novation of, all the rights, liabilities,
duties and obligations of the Transferor under and in respect of each Old
Transaction, with the effect that the Remaining Party and the Transferee enter
into a new transaction (each a "NEW TRANSACTION") between them having terms
identical to those of each Old Transaction, as more particularly described
below.
The Remaining Party wishes to accept the Transferee as its sole counterparty
with respect to the New Transactions.
The Transferor and the Remaining Party wish to have released and discharged, as
a result and to the extent of the transfer described above, their respective
obligations under and in respect of the Old Transactions.
Accordingly, the parties agrees as follows: ---
1. DEFINITIONS.
Terms defined in the ISDA Master Agreement (Multicurrency-Cross Border) as
published in 1992 by the International Swaps and Derivatives Association, Inc.,
(the "1991 ISDA MASTER AGREEMENT") are used herein as so defined, unless
otherwise provided herein.
2. TRANSFER, RELEASE, DISCHARGE AND UNDERTAKINGS.
With effect from and including the Novation Date and in consideration of the
mutual representations, warranties and covenants contained in this Novation
Agreement and other good and valuable consideration (the receipt and sufficiency
of which are hereby acknowledged by each of the parties):
(a) the Remaining Party and the Transferor are each released and
discharged from further obligations to each other with respect to each
Old Transaction and their respective rights against each other
thereunder are cancelled, provided that such release and discharge
shall not affect any rights, liabilities or obligations of the
Remaining Party or the Transferor with respect to payments or other
obligations due and payable or due to be performed on or prior to the
Novation Date and all such payments and obligations shall be paid or
performed by the Remaining Party or the Transferor in accordance with
the terms of the Old Transaction;
(b) in respect of each New Transaction, the Remaining Party and the
Transferee each undertake liabilities and obligations towards the
other and acquire rights against each other identical in their terms
to each corresponding Old Transaction (and, for the avoidance of
doubt, as if the Transferee were the Transferor and with the Remaining
Party remaining the Remaining Party, save for any rights, liabilities
or obligations
of the Remaining Party or the Transferor with respect to payments or
other obligations due and payable or due to be performed on or prior
to the Novation Date); and
(c) each New Transaction shall be governed by and form part of the New
Agreement and the Transferee and the Remaining Party shall enter into
a Confirmation specifying the terms of the New Transaction; provided,
however, that any failure of either the Transferee or the Remaining
Party to enter into such Confirmations shall not affect the rights and
obligations of the Transferor pursuant to this Novation Agreement, and
the offices of the Remaining Party and the Transferee for purposes of
the New Transaction shall be Randgold Resources Ltd, La Xxxxx
Xxxxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX, Channel Islands and Fortis Bank
NV/SA Xxxxxxxxxxxx 0, 0000 Xxxxxxxx, Xxxxxxx respectively and the
office of the Transferor for purposes of the Old Transaction shall
have been Societe Generale, 00 Xxxxxxxxx Xxxxxxxxx, 00000 Xxxxx,
Xxxxxx.
3. REPRESENTATIONS AND WARRANTIES.
(a) On the date of this Novation Agreement and on each Novation Date:
(i) Each of the parties makes to each of the other parties those
representations and warranties set forth in Section 3(a) of the
1992 ISDA Master Agreement with references in such Section to
"this Agreement" or "any Credit Support Document" being deemed
references to this Novation Agreement alone.
(ii) The Remaining Party and the Transferor each makes to the other
and the Remaining Party and the Transferee each makes to the
other, the representation set forth in Section 3(b) of the 1992
ISDA Master Agreement, in each case with respect to the Old
Agreement or the New Agreement, as the case may be, and taking
into account the parties entering into and performing their
obligations under this Novation Agreement.
(iii) Each of the Transferor and the Remaining Party represents and
warrants to each other and to the Transferee that:
(A) it has made no prior transfer (whether by way of security
or otherwise) of the Old Agreement or any interest or
obligation in or under the Old Agreement or in respect of
any Old Transaction; and
(B) as of the Novation Date, all obligations of the Transferor
and the Remaining Party under each Old Transaction required
to be performed on or before the Novation Date have been
fulfilled.
(b) The Transferor makes no representation or warranty and does not assume
any responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of any New Transaction or
the New Agreement or any documents relating thereto and assumes no
responsibility for the condition, financial or otherwise, of the
Remaining Party, the Transferee or any other person or for the
performance and observance by the Remaining Party, the Transferee or
any other person of any of its obligations under any New Transaction
or the New Agreement or any document relating thereto and any and all
such conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
4. COUNTERPARTS.
This Novation Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
5. COSTS AND EXPENSES.
The parties will each pay their own costs and expenses (including legal
fees) incurred in connection with this Novation Agreement and as a result
of the negotiation, preparation, and execution of this Novation Agreement.
6. AMENDMENTS.
No amendment, modification or waiver in respect of this Novation Agreement
will be effective unless in writing (including a writing evidenced by a
facsimile transmission) and executed by each of the parties or confirmed by
an exchange of telexes or electronic messages on an electronic messaging
system.
7. GOVERNING LAW.
This Novation Agreement will be governed by and construed in
accordance with the laws of England.
8. JURISDICTION.
The terms of Section 13(b) of the 1992 ISDA Master Agreement shall
apply to this Novation Agreement with references in such Section to
"this Agreement" being deemed references to this Novation Agreement
alone.
IN WITNESS WHEREOF the parties have executed this Novation Agreement on the
respective dates specified below with effect from and including the Novation
Date.
By: /s/ X. X. Xxxxxxxx By: /s/ Edouard Neviaski
--------------------------------------- ------------------------------
Name(s): X. X. Xxxxxxxx Name(s): Edouard Neviaski
Title: Finance Director Title: Head of Commodities Trading
Date: 24-4-2007 Date: 24-04-2007
By: /s/ Xxxxx Coosemans
---------------------------------------
Name(s): Xxxxx Coosemans
Title: Head Equity, Index & Forex Options
Merchant Banking - Operations
Date:
By: /s/ Carine Van Twembeke
---------------------------------------
Name(s): Carine Van Twembeke
Title: Head O.T.C. & Listed Derivative
Merchant Banking - Operations
Date:
ANNEX 1
List of Transactions
CURRENT CURRENT
QTY STRIKE/PRICE DELIVERY DATE
----------------------------------
542 420.40 30/04/07
542 439.50 30/04/07
542 420.40 31/05/07
542 439.50 31/05/07
542 420.40 29/06/07
542 439.50 29/06/07
500 420.40 31/07/07
500 439.50 31/07/07
208 461.71 31/07/07
208 461.71 31/07/07
500 420.40 31/08/07
500 439.50 31/08/07
208 461.71 31/08/07
208 461.71 31/08/07
500 420.40 28/08/07
500 439.50 28/08/07
208 461.71 28/08/07
208 461.71 28/08/07
500 420.40 31/10/07
500 439.50 31/10/07
208 461.71 31/10/07
208 461.71 31/10/07
500 420.40 30/11/07
500 439.50 30/11/07
208 461.71 30/11/07
208 461.71 30/11/07
500 420.40 30/12/07
500 439.50 31/12/07
208 461.71 31/12/07
208 461.71 31/12/07
