DEED OF GUARANTEE GIVEN UNDER THE MORILA
DEFERRED TERMS AGREEMENT
DEED OF GUARANTEE, dated as of 3rd day of March 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 ▇▇▇▇▇▇▇▇, St Helier, Jersey, JE1 BJ and Randgold &
Exploration Company Limited, having its registered office at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ (each a "Guarantor" and together the
"Guarantors") and Mopps having its registered office at Rolls-Royce Power
Ventures Limited, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"Project Company").
WHEREAS
(A) MORILA, a majority owned subsidiary of Randgold Resources Limited, and
the Project Company have 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 9th December 1999 between the
Project Company and MORILA for the supply of electrical capacity and energy to a
mine in Morila, Republic of Mali.
"Guaranteed Obligations" shall mean all of the obligations and liabilities of
MORILA 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 MORILA
shall fail to make due and punctual payment of any Guaranteed Obligation
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 shall pay to the Project
Company such sums within twenty one (21) Business Days of a written demand
from the Project Company the Guarantors are entitled to all benefits,
limitations and defences in respect of the Guaranteed Obligations afforded
to MORILA 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 MORILA under the Deferred Terms Agreement, except to
the extent that MORILA 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 of MORILA 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
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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 MORILA 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 illegality, 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 MORILA 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. Guarantors' Representations
Each Guarantor severally, and also jointly with the other Guarantor, represents
and warrants to the Project Company as of the date hereof that:
(a) Randgold Resources Limited is a limited company duly organised, validly
existing under the laws of Jersey and Randgold & Exploration Company
Limited is a public limited company duly organised, validly existing under
the laws of South Africa and each has the full power, authority and legal
rights to execute and deliver, and to perform its obligations under, this
Guarantee Agreement;
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(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, reorganisation,
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 corporation or
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
the same shall not have occurred by the operation of law.
Section 5. Costs of Enforcement
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 nor be deemed to create any right in any
person, nor 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.
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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 other addresses, telecopy number or attention as either
party may hereafter specify to the other in writing:
(i) If to the Guarantors:
Address: ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Attention: The Managing Director
Facsimile: ▇▇ ▇▇ ▇▇▇-▇▇▇▇
(ii) If to Project Company:
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Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
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 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
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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.
Signed as a deed by Randgold Resources Limited
/s/ [ILLEGIBLE]
_________________
Director
Signed as a deed by Randgold & Exploration Company
/s/ [ILLEGIBLE]
_________________
Director
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Signed as a deed by Rolls-Royce Power Ventures Limited
/s/ [ILLEGIBLE]
_________________
Director
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