[LETTER HEAD OF RANDGOLD]
DEED OF GUARANTEE
DEED OF GUARANTEE, dated as of 25th day of August 2000 (as amended,
supplemental or otherwise modified from time to time in accordance
with the terms hereof) this "Guarantee Agreement between Randgold
Resources Limited, having its registered office at La Motte Xxxxxxxx,
St. Helier, Jersey, JE1 1BJ and Randgold & Exploration Company
Limited, having its registered office at 0 Xxxxx Xxxxxx. Xxxxx,
Johannesburg 2025, South Africa (each a "Guarantor" and together the
"Guarantors") and Sypps having its registered office at Xxxxxxxxx
House, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX (the "Project Company").
WHEREAS
(A) SOMISY, a majority owned subsidiary of Randgold Resources Limited, and
the Project company having entered into the Deferred Terms Agreement.
(B) This guarantee is given in satisfaction of Clause 2.1 of the Deferred
Terms Agreement and it is a condition of the Project Company entering
into the Deferred Terms Agreement that the Guarantors enter into this
Guarantee Agreement.
NOW, THEREFORE, It is agreed as follows:
SECTION 1
DEFINITIONS
Unless expressly defined herein or the context requires otherwise,
capitalised terms shall have the same meanings as set out in the
Deferred Terms Agreement. The following capitalised terms shall have
the meanings herein specified, and shall include in the singular
number the plural and in the plural number the singular.
"Deferred Terms Agreement" the agreement dated 25 February 2000
between the Project Company and SOMISY for the supply of electrical
capacity and energy to a mine in Syama, Republic of Mali;
"Guaranteed Obligations" shall mean all of the obligations and
liabilities of SOMISY under the Deferred Terms Agreement.
SECTION 2
GUARANTEE
(a) Subject to this Section 2, each Guarantor severally, and also
jointly with the other Guarantor, hereby absolutely,
irrevocably and unconditionally guarantees the due and punctual
payment of all the Guaranteed Obligations and hereby agrees
that in the event that SOMISY shall fail to make due and
punctual payment of any Guaranteed Obligations not disputed in
good faith in an aggregate amount exceeding five thousand US
dollars ($5,000) properly payable under or arising from or with
respect to the Deferred Terms Agreement, the Guarantors are
entitled to all benefits, limitations and defences in respect
of the Guaranteed Obligations afforded to SOMISY under the
Deferred Terms Agreement.
(b) The Guarantee Agreement shall be a continuing guarantee and
shall remain Operative and in full force and effect until all
of the Guaranteed Obligations have been performed in full.
(c) This Guarantee Agreement and the liability of the Guarantors
hereunder shall remain in full force and effect and shall in no
way be affected or impaired by, and no notice to the Guarantors
shall be required, in respect of:
(i) any compromise, waiver, settlement, release, renewal,
extension, indulgence, change in or modification of any
of the obligations and liabilities of SOMISY under the
Deferred Terms Agreement, except to the extent that
SOMISY has been so relieved (except that this Guarantee
Agreement and the liability of the Guarantors hereunder
shall not extend to any additional or increased
obligations and liabilities
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of SOMISY under the Deferred Terms Agreement as a result
of any such compromise, waiver, settlement, release,
renewal, extension, indulgence, change in or
modification unless the prior written consent thereto of
the Guarantors, expressly referring to this Guarantee
Agreement shall have been obtained in connection
therewith);
(ii) the enforcement or absence of enforcement of the
Deferred Terms Agreement or any security or any release
of security;
(iii) the winding-up (or equivalent) of SOMISY or the
Guarantors or any other person or any step being taken
for any such winding-up or dissolution (or equivalent);
or
(iv) the material legality, invalidity or unenforceability of
or any material defect in any provision of the Deferred
Terms Agreement.
(d) Notwithstanding anything to the contrary herein contained, the
guarantors shall not be obliged to perform any of the Guaranteed
Obligations hereunder until a demand by the Project Company shall have
been made upon the Guarantors specifying in detail each of the
Guaranteed Obligations which shall not have been performed by SOMISY
and five (5) Business Days shall have elapsed after receipt by the
Guarantors of such demand.
(e) If the Project Company having received any payment from the
Guarantors pursuant to any of its obligations hereunder, should
receive, after the making of such payment by the Guarantors, any
payment or distribution with respect thereto, the Project Company
shall remit such payment to the Guarantors promptly, but in any event
within five (5) Business Days after receipt thereof.
SECTION 3
GUARANTOR'S REPRESENTATION
Each Guarantor severally, and also jointly with the other Guarantor,
represents and warrants to the Project Company as of the date hereof
that:
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(a) each Guarantor is a public company duly organised,
validity existing under the laws of Jersey in respect of
Randgold Resources Limited and of South Africa in
respect of Randgold & Exploration Company Limited and
has full power, authority and legal rights to execute
and deliver, and to perform its obligations under, this
Guarantee Agreement.
(b) each Guarantor has taken all necessary corporate and
legal action to authorise the guarantee hereunder on the
terms and conditions of this Guarantee Agreement and to
authorise its execution, delivery and performance of
this Guarantee Agreement.
(c) this Guarantee Agreement has been duly executed and
delivered by each Guarantor, and constitutes the legal,
valid and binding obligation of each Guarantor,
enforceable against each Guarantor, except as such
enforcement may be limited by (i) applicable,
bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the rights of creditors generally,
and (ii) general principles of equity.
SECTION 4
MERGER OR CONSOLIDATION
If the Guarantors are party to a merger or consolidation in which the Guarantors
are not the surviving corporations, or sell all or substantially all of their
assets, then the Guarantors shall procure that the surviving corporations or the
person to which such sale has been made, as the case may be, shall have assumed
all of the Guarantors' obligations hereunder, to the extent same shall not have
occurred by the operation of law.
SECTION 5
COSTS OF ENFORCEMENT
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The Guarantors agree to hold the Project Company harmless from and against any
and all loss, liability or expense (including, without limitation, the
reasonable fees and disbursements of counsel for the Project Company) which may
be sustained or incurred by or on behalf of the Project Company in enforcing any
obligation of the Guarantors hereunder.
SECTION 6
SUCCESSORS AND ASSIGNS
The Guarantee Agreement shall be binding upon and inure to the benefit of the
Guarantors and the Project Company and their respective successors and permitted
assigns. This Guarantee Agreement shall not be deemed to create any right in any
person, not be construed in any respect to be a contract, in whole or in part,
for the benefit of any person, except the parties hereto and their respective
successors and permitted assigns. This Guarantee Agreement may not be assigned
by either party without first having obtained written consent of the other.
SECTION 7
TERMINATION
Unless earlier terminated pursuant to Section 2(b) and 4, this Guarantee
Agreement shall automatically terminate upon the performance in full of all the
Guaranteed Obligations.
SECTION 8
MISCELLANEOUS
(a) Except as expressly otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon the
parties hereto shall be deemed to have been duly given or made only
when delivered in writing or by telecopy to the party to which such
notice, request, demand, consent, instruction or other communication
is required or permitted to be given or made hereunder, at the
addresses or telecopy numbers of the parties, and to the attention
of the person, specified below, or to such
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other addresses, telecopy number or attention as either party may
hereafter specify to the other in writing:
(i) If to the Guarantors:
Address: P O Box 00000
Xxxxxxxxx 0000
Xxxxx Xxxxxx
Attention: The Managing Director
Facsimile: 00 00 000-0000
(ii) (ii) If to Project Company:
Address: Rolls-Royce Power Ventures Limited
Xxxxxxxxx House
000 Xxxxxxxx Xxxxxx
XXXXXX, XXXX 0XX
Attention: Xx Xxxx Xxxxx
Facsimile: 0944 171 2279001
Any notice or other communication referred to herein given in
accordance with this Section 8 shall be deemed to be delivered (i)
if sent by hand delivery when received, (ii) if sent by mail, seven
days after such communication is deposited in the mail with
first-class postage prepaid, addressed or aforesaid, (iii) if sent by
facsimile, when such facsimile is transmitted and oral or electronic
receipt of confirmation is obtained by the sender (iv) in the case of
delivery by an internationally recognised express courier service, two
Business Days after delivery to such service, or (v) if sent by other
means, when received at the addresses notified in this Section 8.
(b) The rights and remedies herein expressly provided are cumulative and
not exclusive of any rights or remedies which the Guarantors of the
Project Company would otherwise
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have. No waiver of any of the terms and conditions of this Guarantee
Agreement and no notice to or demand on the Guarantors or the Project
Company in any case shall entitle the Guarantors or the Project
Company, as the case may be, to any other or further notice or demand
in similar or other circumstances, or constitute the waiver of the
rights of the Guarantors or the Project Company to any other or
further action in any circumstances without notice or demand.
(c) This Guarantee Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with, and governed by, the
laws of England and the parties hereby submit to the exclusive
jurisdiction of the English courts.
(d) This Guarantee Agreement may not be changed orally but only by an
instrument in writing signed by the Guarantors and the Project
Company, and obligations hereunder may not be waived except by an
Instrument in writing executed and delivered by the party granting
such waiver.
(e) The headings of the several sections of this Guarantee Agreement are
inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Guarantee Agreement.
(f) Any provision of this Guarantee Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provisions in any other
jurisdiction.
This Guarantee Agreement may be executed in any number of counterparts, and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered, shall be an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Guarantee Agreement to be duly
executed and delivered as a deed by their duly authorised officers or
representatives as of the date first above written.
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Signed as a deed by RANDGOLD RESOURCES LIMITED on this the *** day of AUGUST
2000, acting by XXXXX XXXXXXXX
/s/ XXXXX XXXXXXXX
__________________________
Director
Signed as a deed by RANDGOLD & EXPLORATION COMPANY LIMITED on this the ___ day
of AUGUST 2000, acting by XXXXX XXXXXXXX
/s/ XXXXX XXXXXXXX
__________________________
Director
Signed as a deed by ROLLS-ROYCE POWER VENTURES LIMITED on this the ___ day of
2000, acting by XXXX XXXXX
__________________________
Director
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Signed as a deed by RANDGOLD RESOURCES LIMITED on this the ___ day of AUGUST
2000, acting by XXXXX XXXXXXXX
/s/ XXXXX XXXXXXXX
__________________________
Director
Signed as a deed by RANDGOLD & EXPLORATION COMPANY LIMITED on this the ___ day
of AUGUST 2000, acting by XXXXX XXXXXXXX
/s/ XXXXX XXXXXXXX
__________________________
Director
Signed as a deed by ROLLS-ROYCE POWER VENTURES LIMITED on this the ___ day of
2000, acting by XXXX XXXXX
/s/ XXXX XXXXX
__________________________
Director
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