Equipment Sale Agreement - Trans Benguela Logistics (Proprietary) Ltd. and Randgold & Exploration Co. Ltd.
EQUIPMENT SALE AGREEMENT
BY
TRANS BENGUELA LOGISTICS (PROPRIETARY) LIMITED
AND
RANDGOLD & EXPLORATION COMPANY LIMITED
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TABLE OF CONTENTS
1 INTERPRETATION
2. PREAMBLE
3. CONSIDERATION FOR SALE OF EQUIPMENT
4. TERMS & CONDITIONS OF SALE OF EQUIPMENT
5. DISPUTE RESOLUTION
6. DOMICILIA AND NOTICES
7. GENERAL
8. COSTS
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1. INTERPRETATION
In this agreement, unless the context clearly indicates a contrary
intention, the words and phrases listed below and their cognates, shall
bear the following meanings:
1.1 "business day" means any day of the week other than a
Saturday, Sunday or public holiday;
1.2 "effective date" means the date on which Randgold issues
Benguela with the share certificate relating to the Randgold
shares;
1.3 "equipment" means mining plant and equipment set out in
annexure "A"
1.4 "Benguela" means Trans Benguela Logistics (Pty) Limited,
registration number 2003/016999/07, a private company
registered in accordance with the company laws of the Republic
of South Africa;
1.5 "Randgold" means Randgold & Exploration Company Limited,
registration number 1992/005642/06, a public company
incorporated in accordance with the laws of the Republic of
South Africa having its registered office at 3rd Floor, 28
Harrison Street, Johannesburg, the shares of which are quoted
on the Johannesburg Stock Exchange;
1.6 "Randgold shares" means the shares to be issued by Randgold to
Benguela in terms of clause 3 below;
1.7 an expression, which denotes any gender, includes the other
genders, a natural person includes an artificial person and
vice versa and the singular includes the plural and vice
versa.
2. PREAMBLE
2.1 Benguela is the registered owner of the equipment and Benguela
has agreed, to sell to Randgold the equipment in return for
the payment by Randgold of the consideration referred to in
clause 3.
The parties wish to record the terms and conditions of their agreement
as they hereby do.
3. CONSIDERATION FOR SALE OF EQUIPMENT
Randgold shall issue to Benguela 1,506,000 (one million five hundred
and six thousand) ordinary Randgold shares, in respect of payment of
the consideration, which shares shall be delivered to Benguela within
10 (ten) business days of the date of signature of this agreement.
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4. TERMS AND CONDITIONS OF SALE OF EQUIPMENT
4.1 Benguela warrants that it is the owner of the equipment and is
able to deliver the equipment to Randgold free of any liens or
encumbrances.
4.2 Randgold has inspected the equipment and is satisfied with the
condition thereof.
4.3 Randgold will not be entitled to cancel this sale as a result
of a breach of any of the above warranties unless the breach
is material and is incapable of being remedied by payment of
compensation or if the breach is capable of being remedied by
payment of compensation, Benguela fails to pay such
compensation within 14 (fourteen) business days of the amount
thereof being determined.
4.4 On the effective date, Benguela shall deliver to Randgold,
against delivery by Randgold of the share certificate/s
relating to the Randgold shares:
4.4.1 the equipment
4.5 The parties acknowledge that the equipment is for export to
Angola and is therefore zero rated for VAT purposes.
5. DISPUTE RESOLUTION
Any dispute arising from or in connection with this agreement shall be
finally resolved in accordance with the Rules of the Arbitration
Foundation of Southern Africa by an arbitrator or arbitrators appointed
by the Foundation. Unless otherwise agreed, the arbitration hearing
shall take place in Johannesburg.
6. DOMICILIA AND NOTICES
6.1 The parties all choose domicilium citandi et executandi
("domicilium") for the purposes of giving any notice, the
payment of any sum, the serving of any process and for any
other purpose arising from this agreement as follows:
6.1.1 Benguela at 2 Commerce Square, 39 Rivonia Road,
Sandhurst, Sandton. Fax (011) 268-9701
6.1.2 Randgold at 3rd Floor, 28 Harrison Street,
Johannesburg. Fax (011) 492-1070
6.2 Each of the parties shall be entitled from time to time, by
written notice to the others, to vary its domicilium to any
other address within the
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Republic of South Africa, which is not a post office box or
poste restante.
6.3 Any notice required or permitted to be given in terms of this
agreement shall be valid and effective only if in writing.
6.4 Any notice given and any payment made by one party to the
others ("the addressee") which:-
6.4.1 is delivered by hand during the normal business hours
of the addressee at the addressee's domicilium for
the time being shall be presumed, until the contrary
is proved, to have been received by the addressee at
the time of delivery;
6.4.2 is given by telefax shall be deemed, in the absence
of proof to the contrary, to have been received
within 1 (one) hour of the commencement of the
following business day.
7. GENERAL
7.1 Neither party shall be bound by any representation, warranty,
promise or the like not recorded herein.
7.2 No addition to, variation or agreed cancellation of this
agreement shall be of any force or effect unless in writing
and signed by or on behalf of the parties.
7.3 No extension of time or indulgence which either party ("the
grantor") may grant to the other ("the grantee") shall
constitute a waiver of any of the rights of the grantor, who
shall not thereby be precluded from exercising any rights
against the grantee which may have arisen in the past or which
might arise in the future.
8. COSTS
The costs of and incidental to the transfer of the equipment to
Randgold and the Randgold shares to Benguela, including the stamp duty
payable thereon, shall be borne by Randgold.
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SIGNED AT JOHANNESBURG ON THIS 18TH DAY OF JUNE 2004.
(signed-illegible)
For and on behalf of
TRANS BENGUELA LOGISTICS (PTY) LIMITED
Who warrants his authority hereto
SIGNED AT JOHANNESBURG ON THIS 18TH DAY OF 2004.
/s/ H.C. Buitendag
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For and on behalf of
RANDGOLD & EXPLORATION COMPANY LTD
Who warrants his authority hereto
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ANNEXURE "A"
EQUIPMENT SCHEDULE
6 x TEREX TA 25 ARTICULATED DUMP TRUCKS FULLY REFURBISHED
1 x SUMITOMO SH 300 DIGGER 1500 HRS
1 x SUMITOMO SH 300 DIGGER REFURBISHED
1 x SUMITOMO SH 400 DIGGER 3000 HRS
2 x SUMITOMO SH 400 DIGGER FULLY REFURBISHED
3 x (EX BATEMANS) 325 FURUKOWA LOADER FULLY REFURBISHED
1 x (EX BATEMANS) CATERPILLAR D9 BULLDOZER 200 HRS
4 x UNIMOG AS NEW 1 CONVERT TO FLAT TOP
1 x KOMATSU 335 - 45 TONNE BULLDOZER PART REFURBISHED
1 x KOMATSU 335 - 45 TONNE BULLDOZER 500 HRS
4 x PORTABLE GREASE TABLES
4 x PREPARATION TABLES
1 x WATER PURIFICATION PLANT
CAMPING - COOKING EQUIPMENT
4 x FUEL BLADDERS (EX BATEMANS)
6 x FRESHWATER BLADDERS (EX BATEMANS)
4 x 400 CFM BLOWERS
8 x SETS OF DIVING EQUIPMENT - WET SUITS, REGULATORS ETC
5 x ACCOMODATION CONVERTED SEA CONTAINERS (AIR CONDITIONED)
2 x CATERPILLAR 3408 - DUNLITE 150KVA GENERATOR SETS
SPARE PARTS FOR ALL EARTHMOVING EQUIPMENT AND GENERATOR SETS
TOTAL PURCHASE PRICE R27,865,000