EXHIBIT 4.18
Guarantee Agreement, dated July 8, 2005, executed by
Marsa Gold Corp. in favor of
0724000 BC Ltd.
GUARANTEE AGREEMENT
This Guarantee Agreement is made as of the 8th day of July 2005 between:
MARSA GOLD CORP., a Kyrgyz limited liability company with an address of Kyrgyz
Republic, Bishkek, microregion 11, 6-46 (the "Guarantor"); and
CENTRASIA MINING CORP. (FORMERLY "MAGELLAN GOLD CORP."), a British Columbia
corporation with an address of 300 - 0000 X. Xxxxxxxx Xx., Xxxxxxxxx, XX X0X
0X0, Xxxxxx (the "Creditor"),
WHEREAS the Guarantor is the sole participant of BULAKASHU
MINING COMPANY LTD (the "Debtor");
WHEREAS the Creditor has lent the Debtor US$110,000 to date;
and
WHEREAS the Creditor may lend the Debtor additional sums
pursuant to an agreement of even date between the Guarantor, the Debtor, the
Creditor, Baradero Resources Limited and Magellan Gold (BVI) Inc. (the
"Bulakashu Option Agreement"), and the Creditor has refused to do so without,
among other things, a personal guarantee of repayment from the Guarantor.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION given, the
receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby
guarantees payment to the Creditor of all debts and liabilities, present or
future, direct or indirect, absolute or contingent, matured or not, at any time
owing by the Debtor to the Creditor or remaining unpaid by the Debtor to the
Creditor, whether incurred by or arising from any agreement or dealings between
the Creditor and the Debtor (including the Bulakashu Option Agreement) or by or
from any agreement or dealings with any third party by which the Creditor may be
or become in any manner whatsoever a creditor of the Debtor or however otherwise
incurred or arising anywhere within or outside the country where this Guarantee
Agreement is executed and whether the Debtor be bound alone or with another or
others and whether as principal or surety (such debts and liabilities being
hereinafter called the "Liabilities").
AND THE GUARANTOR HEREBY COVENANTS AND AGREES WITH THE
CREDITOR AS FOLLOWS:
1. The Creditor may grant time, renewals, extensions,
indulgences, releases and
discharges to, take securities (which word as used herein includes other
guarantees) from and give the same and any or all existing securities up to,
abstain from taking securities from or from perfecting securities of, cease or
refrain from giving credit or making loans or advances to, accept compositions
from and otherwise deal with, the Debtor and others and with all securities as
the Creditor may in its absolute discretion see fit (including the release of
the Guarantor or other sureties), and may apply all moneys at any time received
from the Debtor or others or from securities upon such part or parts of the
Liabilities as the Creditor in its absolute discretion sees fit, and change any
such application in whole or in part from time to time as the Creditor may see
fit, the whole without in any way limiting or lessening the liability of the
Guarantor under this Guarantee Agreement , and no loss of or in respect of any
securities received by the Creditor from the Debtor or others, whether
occasioned by the fault of the Creditor or otherwise, shall in any way limit or
lessen the liability of the Guarantor under this Guarantee Agreement.
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2. This Guarantee Agreement shall be a continuing guarantee and
shall cover all the Liabilities, and it shall apply to and secure any ultimate
balance due or remaining unpaid to the Creditor.
3. The Creditor shall not be bound to exhaust its recourse
against the Debtor or others or any securities it may at any time hold before
being entitled to payment from the Guarantor of the Liabilities. The Guarantor
renounces all benefits of discussion and division.
4. The Guarantor may, by notice in writing delivered to the
office of the Creditor receiving this instrument, determine its liability under
this Guarantee Agreement in respect of Liabilities incurred or arising after
receipt of such notice but not in respect of any Liabilities theretofore
incurred or arising even though not then matured, provided, however, that
notwithstanding receipt of any such notice the Creditor may fulfill any
requirements of the Debtor based on agreements express or implied made prior to
the receipt of such notice and any resulting Liabilities shall be covered by
this Guarantee Agreement.
5. This Guarantee Agreement shall not be affected by:
(a) any change in the name or the structure of the Debtor;
(b) the acquisition of the Debtor's business by a third party;
(c) any change whatsoever in the objects, capital structure or
constitution of the Debtor;
(d) the Debtor's business being amalgamated with another
corporation; or
(e) any defect in, omission from, failure to file or register or
defective filing or registration of any instrument under which
the Creditor has taken any security or collateral for payment
of any of the Liabilities or performance or observance of any
obligation of the Debtor, the Guarantor (whether under this
Guarantee Agreement or otherwise) or of any other person who
is or may become liable in respect of the Liability;
but shall, notwithstanding the happening of any such event
continue to apply to all the Liabilities whether theretofore
or thereafter incurred or arising. (In this instrument the
word "Debtor" shall include every such firm and corporation
described in paragraphs (b), (c) and (d) above).
6. This Guarantee Agreement shall not be considered as wholly or
partially satisfied by the payment or liquidation at any time or times of any
sum or sums of money for the time being due or remaining unpaid to the Creditor,
and all dividends, compositions, proceeds of security valued and payments
received by the Creditor from the Debtor or from others or from estates shall be
regarded for all purposes as payments in gross without any right on the part of
the Guarantor to claim in reduction of the liability under this Guarantee
Agreement the benefit of any such dividends, compositions, proceeds or payments
or any securities held by the Creditor or proceeds thereof, and the Guarantor
shall have no right to be subrogated in any rights of the Creditor until the
Creditor shall have received payment in full of the Liabilities.
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7. All moneys, advances, renewals and credits in fact borrowed or
obtained from the Creditor shall be deemed to form part of the Liabilities,
notwithstanding any lack or limitation of status or of power, incapacity or
disability of the Debtor or of the directors, partners or agents thereof, or
that the Debtor may not be a legal or suable entity, or any irregularity, defect
or informality in the borrowing or obtaining of such moneys, advances, renewals
or credits, the whole whether known to the Creditor or not; and any sum which
may not be recoverable from the Guarantor as guarantor shall be recoverable from
the Guarantor and each of them as sole or principal debtor in respect thereof
and shall be paid to the Creditor on demand with interest as aforesaid.
8. This Guarantee Agreement is in addition to and not in
substitution for any other guarantee, by whomsoever given, at any time held by
the Creditor, and any present or future obligation to the Creditor incurred or
arising otherwise than under a guarantee of the Guarantor or any of them or of
any other obligant, whether bound with or apart from the Debtor, excepting any
guarantee surrendered for cancellation on delivery of this instrument.
9. The Guarantor shall be bound by any account settled between
the Creditor and the Debtor, and if no such account has been so settled
immediately before demand of payment under this Guarantee Agreement any account
stated by the Creditor shall be accepted by the Guarantor as conclusive evidence
of the amount which at the date of the account so stated is due by the Debtor to
the Creditor or remains unpaid by the Debtor to the Creditor.
10. This Guarantee Agreement shall be operative and binding on the
Guarantor, and possession of this instrument by the Creditor shall be conclusive
evidence against the Guarantor that this instrument was not delivered in escrow
or pursuant to any agreement that it should not be effective until any
conditions precedent or subsequent had been complied with.
11. The demand for payment shall be deemed to have been
effectually made upon the Guarantor if and when an envelope containing such
demand, addressed to the Guarantor at the address last known to the Creditor, is
posted, postage prepaid, in the post office or is delivered to the Guarantor,
and, in the event of the death of the Guarantor, demand of payment addressed to
any of the Guarantor's heirs, executors, administrators or legal representatives
at the address of the addressee last known to the Creditor and posted or
delivered as aforesaid shall be deemed to have been effectively made upon all of
them. All payments hereunder shall be made to the Creditor at the office of the
Creditor.
12. This Guarantee Agreement covers all agreements between the
parties hereto concerning this Guarantee Agreement, and none of the parties
shall be bound by any representation or promise made by any person relative
thereto which is not expressly embodied herein.
13. This Guarantee Agreement shall be governed by and construed in
accordance with the laws of British Columbia. All disputes arising out of or in
connection with this Guarantee Agreement, or in respect of any defined legal
relationship associated therewith or derived therefrom, shall be referred to and
finally resolved by arbitration in the English language using a sole arbitrator
under the rules of the British Columbia International Commercial Arbitration
Centre. The appointing authority or tribunal shall be the British Columbia
International Commercial Arbitration Centre. The case shall be administered by
the British
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Columbia International Commercial Arbitration Centre in accordance with its
Rules. The place of arbitration shall be Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx.
Provided always that nothing herein contained shall prevent the Creditor from
proceeding at its election in the Courts of any other jurisdiction and the
Guarantor hereby irrevocably submits to each such jurisdiction, acknowledges the
competence of each and the convenience and propriety of the venue thereof and
agrees to be bound by any judgment thereof and not to seek, and hereby waives,
any review of the merits of such a judgment by the Courts of any other
jurisdiction and also hereby waives any and all objections which it may have to
each such jurisdiction.
14. So long as any of the Liabilities remain unpaid or outstanding
the Guarantor assumes all responsibility for being and keeping itself informed
of the financial condition of the Debtor and of all circumstances bearing upon
the nature, scope and extent of the risk which the Guarantor assumes and incurs
under this Guarantee Agreement .
15. This Guarantee Agreement shall extend to and enure to the
benefit of the Creditor and its successors and assigns, and shall extend to and
be binding upon the Guarantor and the heirs, executors, administrators, legal
representatives, successors and assigns of the Guarantor or each of them or any
of them, as the case may be. 16. The Guarantor hereby waives all rights to
receive from the Creditor a copy of any financing statement, financing change
statement or verification statement filed at any time or from time to time in
respect of this Guarantee Agreement.
GIVEN UNDER SEAL at Bishkek, Kyrgyz Republic, on the day and year above written.
MARSA GOLD CORP.
Per: /s/ Xxxxxxx Vedeshkin-Ryabov
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Authorized Signatory
Bulakashu Mining Company LTD, the "Debtor" referred to above, hereby consents to
the terms of the foregoing Guarantee Agreement.
BULAKASHU MINING COMPANY LTD
Per: /s/ Xxxx Xxx
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Authorized Signatory
CENTRASIA MINING CORP.
Per: /s/ Xxxxxxx Xxxxxxxx
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Authorized Signatory
