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AGREEMENT
Made and entered into by and between
RANDGOLD & EXPLORATION COMPANY LIMITED
Registration No. 1992/005642/06
(hereinafter referred to as "RNG")
AND
MASUPATSELA INVESTMENT HOLDINGS (PTY) LIMITED
Registration No. 2003/022653/07
(hereinafter referred to as "MIH")
WHEREAS:
RNG has advanced certain sums of money to MIH by way of various loans and the
parties wish to record the terms and conditions upon which the loans have been
granted.
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NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 In this Agreement, unless inconsistent with the context:
1.1.1 "MIH" means Masupatsela Investment Holdings (Pty)
Limited, a company incorporated under the laws of the
Republic of South Africa;
1.1.2 "the loans" mean the loans described in clause 2 below;
1.1.3 "prime rate" means the publicly quoted basic annual rate
of interest at which Standard Bank lends on overdraft;
11.4 "Standard Bank" means The Standard Bank of South Africa
Limited;
1.1.5 "RNG" means Randgold & Exploration Company Limited, a
company incorporated under the laws of the Republic of
South Africa;
1.2 The heading to the clauses contained in this Agreement are for
reference purposes only and shall not be used in connection with
the interpretation thereof.
2. THE LOANS
2.1 It is recorded that RNG has advanced to MIH the net loans, subject
to the terms and conditions contained in this Agreement.
2.1.1 The parties hereby confirm the following loans:
----------------------------------------- --------------------------------------
Date of Loan Amount
----------------------------------------- --------------------------------------
21/05/2003 R1,153,607.37
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27/05/2003 R3,140,438.37
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11/06/2003 R396,894.21
----------------------------------------- --------------------------------------
20/06/2003 R1,256,338.53
----------------------------------------- --------------------------------------
26/06/2003 R1,375,972.57
----------------------------------------- --------------------------------------
04/07/2003 R868,537.18
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15/08/2003 R11,000,000.00
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30/09/2003 R34,272,105.66
----------------------------------------- --------------------------------------
14/10/2003 R15,000,000.00
----------------------------------------- --------------------------------------
21/10/2003 R30,562,500.00
----------------------------------------- --------------------------------------
25/11/2003 R12,760,000.00
----------------------------------------- --------------------------------------
TOTAL R111,786,393.89
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2.1.2 The parties hereby confirm the following repayment:
---------------------------------------------------------
Date of Repayment Amount
--------------------------------------
19/12/2003 R32,000,000.0O
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2.1.3 The parties hereby confirm that the net loan amounts to
R79,786,393.89, which shall be repayable to RNG in
accordance with clause 3.
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3. REPAYMENT
MIH agrees to repay the net loan together with interest outstanding to
RNG in South African Rand at Johannesburg on or before 30 June 2004.
4. INTEREST
4.1 Interest on the loan, calculated on the daily balance
outstanding capitalized monthly in arrears, at a rate equal to
the prime rate plus 0.5% (point five per centum), shall be
payable by MIH to RNG on or before 30 June 2004.
4.2 If the prime rate changes during the course of this Agreement,
RNG shall be entitled to vary the interest rate accordingly
from the date of such change.
4.3 If interest is not paid when it is due, such unpaid interest
shall thereupon form part of the total amount owing by MIH to
RNG in terms of this Agreement and shall bear interest as
specified in this Agreement.
5. SECURITY
5.1 As security for the obligations, which MIH owes to RNG arising
from this Agreement, including, without limitation,
obligations which arise during or from any breach of this
Agreement, MIH pledges 104,000,000 (one hundred and four
million) JCI Limited ordinary shares as security for the loan.
5.2 If at any time during this Agreement MIH commits a breach of
any of the obligations set out herein, and fails to rectify
the breach after having received written notice thereof in
terms of clause 8, RNG shall be entitled in its sole and
absolute discretion and without first obtaining an Order of
Court:
5.2.1 To procure the registration of all or any of the
pledged shares into the name of RNG and to exercise
all rights as the beneficial owner of the pledged
shares, including any voting rights attaching
thereto in such manner as RNG may in its sole and
absolute discretion deem fit; and/or
5.2.2 to receive all dividends which may thereafter be
declared and paid in respect of the pledged shares;
and/or
5.2.3 to realise the pledged shares, including by public
auction or by private treaty, or register the
pledged shares into the name of the RNG at the then
market value thereof, as RNG may in its sole and
absolute discretion deem fit, provided that RNG
shall be obliged to account to MIH in respect of the
proceeds so received and any amount in excess of the
total payments and interest then due to RNG and all
costs and expenses incurred by RNG in connection
with the realisation of the pledged shares and in
connection with
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all legal fees incurred in connection with the breach
of this Agreement by MIH, shall be paid to MIH;
and/or
5.2.4 to convey valid title in the pledged shares to the
purchaser and/or transferee thereof (including RNG);
and/or
5.2.5 to institute such legal proceedings or such other
actions as RNG in its sole and absolute discretion
may deem fit on its behalf and in the name of MIH and
to proceed to the final end and determination
thereof: and/or
5.2.6 to take all such further or other steps as RNG may
consider necessary to deal with the pledged shares.
5.3 If at any time during this Agreement RNG becomes entitled to
exercise its rights under clause 5.2, MIH hereby authorises
and appoints RNG irrevocably and in rem suam as MIH's attorney
and agent in its name, place and stead to sign and execute:
5.3.1 any proxy in favour of RNG to enable RNG to exercise
any voting rights attaching to the pledged shares or
any of them; and
5.3.2 such documents as may be necessary:
5.3.2.1 in order to render the pledged shares or any
of them negotiable;
5.3.2.2 to receive payment of the purchase price of
the pledged shares realised in terms of
clause 5.2.3;
5.3.2.3 to enable RNG to exercise any of the rights
granted to it herein.
5.4 MIH warrants that:
5.4.1 it is the beneficial owner of the pledged shares and
is free to deal therewith as set out herein;
5.4.2 it has not executed any prior pledge in respect of
the pledged shares; and
5.4.3 the pledged shares are not subject to any prior
encumbrance, lien or right held by any third person.
5.5 This pledge shall be deemed to have terminated and MIH shall
become entitled to the return of the pledged shares, together
with documents rendering them negotiable when all of MIH's
obligations to RNG under this Agreement have been finally
discharged.
5.6 It is recorded that during the period of the pledge as
contained in this clause 5, MIH may wish to exercise its
voting rights attached to the pledged shares and/or dispose of
such or part of such pledged shares, The parties agree that:
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5.6.1 MIH shall be entitled, at all times and save
as is provided to the contrary in clause
5.2.1, to exercise all voting rights
attached to the pledged shares: and
5.6.2 In the event that MIH wishes to deal with or
dispose of the pledged shares t shall not be
entitled to do so without the prior written
consent of RNG.
5.7 MIH shall be entitled to the release of such number
of the pledged shares as it may elect, from time to
time, provided that the then market value of the
remaining pledged shares shall be equal to or exceed
the balance of the total payments outstanding at such
time plus all interest thereon (calculated in
accordance with the provisions of clause 4).
5.8 For the purposes of this clause 5.8, "market value"
means the lower of:
5.8.1 the average of the closing price of the
pledged shares on the Johannesburg
Securities Exchange ("JSE') over all of the
days on which the pledged shares traded on
the JSE during the immediate preceding 30
(thirty) days, such average to be weighted
by the number of shares traded per day on
the JSE over the 30 (thirty) day period in
question; or
5.8.2 the closing price on the JSE of the pledged
shares on the immediately preceding trading
day.
6. ACKNOWLEDGEMENT
Insofar as it may be relevant to this transaction, the parties have taken
cognizance of the Usury Act No, 73 of 1968 and record that all loan
details contained on the Schedule hereto were completed prior to
signature of this Agreement to the extent that such details were known
and determinable at the time of signature.
7. CERTIFICATE OF INDEBTEDNESS
A certificate signed by any Director of RNG (whose appointment need not
be proved) as to the amount owing by MIH to RNG at any time, the fact
that such amount is due and payable, the rate of interest payable and the
date from which such interest is calculated, shall be binding on MIH and
shall be prima facie proof of the facts stated therein.
8. BREACH
8.1 Should either party commit a breach of any of the provisions
of this Agreement, then:
8.1.1 in case of MIH failing to pay the full amount owing
on the repayment date, or in the case of a breach of
clause 5.2, RNG may give MIH 7 (seven) days written
notice to remedy such breach and if MIH fails to
comply with such written notice; or
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8.1.2 in the case of any other breach by a party, the other
party may give the defaulting party 7 (seven) days
written notice to remedy such breach. Where the
breach cannot be remedied within 7 (seven) days, or
fails within such period to initiate such steps
towards remedying such breach as shall be reasonable
in the circumstances and fails to proceed to remedy
such breach as expeditiously as reasonably possible
thereafter,
or where the breach is incapable of being remedied at all,
then and in any of such events the aggrieved party shall be
entitled to claim the immediate performance of the defaulting
party of all its obligations the outstanding hereunder
(including any obligations in respect of the balance of the
total payment plus interest thereon calculated mutatis
mutandis in accordance with clause 4, whether or not the due
date for payment has arrived) without prejudice to such other
rights as the aggrieved party may have in law arising out of
such breach.
9. DEFAULT
Should MIH fail to comply with any term or condition of this Agreement,
then without prejudice to any other rights which may be available to RNG
in law, RNG shall be entitled to demand immediate repayment by MIH of the
Loan together with all interest which has accrued thereon up to and
including the date of repayment.
10. UNDERTAKING
MIH undertakes to offer any mining opportunities it acquires to RNG which
RNG In its sole discretion may reject or acquire.
11. NOTICES
The parties choose the following addresses as their respective domicilia
citandi et executandi for all purposes in terms of this Agreement:
11.1 RNG - 3rd Floor
00 Xxxxxxxx Xxxxxx
XXXXXXXXXXXX
0000
11.2 MIH - Building 2, Regus Country Club Estate
Woodlands Drive
Woodmead
12. JURISDICTION
This Agreement shall be governed by South African law and, subject to the
provisions of clause 13 below, the parties hereby consent to the
exclusive jurisdiction of the High Court of South Africa (Witwatersrand
Local Division) for the purpose of any legal proceedings in relation
hereto.
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13. DISPUTE RESOLUTION
Any dispute arising out of this Agreement may be deferred by either
party for determination to the external auditors of RNG, in which event
the said auditors shall act as experts and not as arbitrators and their
decision shall be final and binding on parties.
14. GENERAL
14.1 No failure by RNG to exercise its right in terms of this
Agreement or any extension of time allowed to MIH shall
operate as a waiver or abandonment by RNG of any of its rights
hereunder.
14.2 This document contains the entire Agreement between the
parties and no variation, amendment or alteration to this
Agreement shall be of any force or effect unless reduced to
writing and signed by the parties.
SIGNED at JOHANNESBURG on 30 day of DECEMBER 2003 in the presence of the
undersigned witnesses.
AS WITNESSES: for and on behalf of
------------
RANDGOLD & EXPLORATION COMPANY LIMITED
1. SIGNED - ILLEGIBLE
2. SIGNED - ILLEGIBLE /s/ X.X. Xxxxxxxxx
---------------------------
AUTHORITY WARRANTED
SIGNED at JOHANNESBURG on 30 day of DECEMBER 2003 IN the presence of the
undersigned witnesses.
AS WITNESSES: for and on behalf of
------------
MASUPATSELA INVESTMENT HOLDINGS
(PROPRIETARY) LIMITED
1. SIGNED-ILLEGIBLE SIGNED - ILLEGIBLE
2. SIGNED-ILLEGIBLE
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SCHEDULE
LOAN DETAILS (disclosed in terms of the Usury Act No, 73 of 1968 insofar as the
details are known and determinable at the time of signature of the Loan
Agreement).
1. Amount of the Loan: see clause 2 of the Agreement.
2. Interest to be calculated at the prime rate (as defined in clause 4.1 of the
Agreement) plus 0.5% (one half of a percent).
3. Estimated number of payments: one final payment in respect of the full
capital and all remaining interest.
4. Estimated total amount of interest payable: not determinable in advance.
AUTHORITY WARRANTED
