Sie sind auf Seite 1von 6

ANNEX L FORM OF PARENT COMPANY GUARANTEE

REV.0

FORM OF PARENT COMPANY GUARANTEE

THIS DEED OF GUARANTEE (the "Guarantee") is made the day of 2011.


.

PARTIES:

(1) [ ], a company organized and existing under the laws of [ ] with registered
number [ ], whose registered office is at [ ] (the "Guarantor"); and

Saudi Arabian Mining Co.(Maaden ) a joint stock company organized and existing under the
laws of the Kingdom of Saudi Arabia, with its offices at Abu Baker Street P.O. Box 68861, Riyadh
11537, Saudi Arabia, Kingdom of Saudi Arabia (the "Employer").

RECITALS:

A. This Guarantee is supplemental to an engineering, procurement and construction contract


dated [ ] (the "Contract") between the Employer and [ ], a company
organized and existing under the laws of [ ] with registration number [ ] whose
registered office is located at [ ] (the "Contractor").

B. Guarantor is [a] [the ultimate] parent company of the Contractor.

C. Guarantor has agreed to irrevocably and unconditionally guarantees the due and punctual
performance of all the Contractor's obligations under the Contract in the manner hereafter
appearing.

D. It is the intention of the Parties that this Guarantee be executed as a deed.

OPERATIVE PROVISIONS:

1. In consideration of the Employer entering into the Contract with the Contractor, the
Guarantor:

(a) as primary obligor irrevocably and unconditionally guarantees to the Employer


the due and punctual performance by the Contractor of each and all the
obligations, duties and undertakings of Contractor under and pursuant to the
Contract when and if such obligations, duties and undertakings shall become
due and performable according to the terms of the Contract and guarantees the
payment of all monies due and payable by the Contractor under the Contract; and

(b) Agrees, in addition to its obligations set out in clause 1(a) above, to indemnify
the Employer against all losses, damage, costs and/or expenses which the Employer
may incur by reason of any breach by the Contractor of its obligations, warranties,
duties and undertakings under, and pursuant to, the Contract. Subject to the other
provisions of this Guarantee (including without limitation clause 2), this shall not
be construed as imposing greater obligations or liabilities (including, without
limitation, liability to make payments) on the Guarantor than are imposed on the
Contractor under the Contract.

SAUDI ARABIAN MINING COMPANY (Page 1 of 6)


TRANSPORATION OF TREATED WATER FROM TAIF TO MAADEN MINE SITE
CONTRACT NO. 10-1448-HQ-715
ANNEX L FORM OF PARENT COMPANY GUARANTEE
REV.0

2. Guarantor agrees that it shall not in any way be released from liability under this
Guarantee by any act, omission, matter or other thing by which (in the absence of this
provision) the Guarantor would or might be released in whole or in part from liability
under this Guarantee including, without limitation and whether or not known to the
Guarantor:

(a) any arrangement made between Contractor and Employer or any concession
granted by Employer to Contractor; or

(b) any alteration in the obligations undertaken by Contractor whether by way of any
Addendum or Variation (Change Order) referred to in clause 4 below or otherwise;
or

(c) any waiver or forbearance by Employer whether as to payment, time,


performance or otherwise (including any extension of time for performance of the
Contractor's obligations under the Contract); or

(d) anything that Employer or Contractor may do, or omit, or neglect to do,
including (without limitation): (i) the taking, assertion, exchange, Variation,
renewal, release or enforcement of, or the neglect to assert or enforce or perfect
(or delay in asserting or enforcing or perfecting), any right, guarantee, remedy or
security from or against Contractor or any other person; or (ii) the release,
modification or exchange of the liability of any person pursuant to any such right,
guarantee, remedy or security or otherwise; or (iii) the pursuit of any rights or
remedies by Employer; or

(e) any unenforceability, illegality or invalidity of any of the provisions of the Contract
or any of the Contractors obligations under the Contract, so that this Guarantee
shall be construed as if there were no such unenforceability, illegality or invalidity;
or

(f) any legal limitation, disability, incapacity or other circumstances relating to the
Contractor, or any other person; or

(g) the dissolution, amalgamation, reconstruction, reorganization, change in status,


function, control or ownership, insolvency, liquidation or the appointment of an
administrator or receiver of the Contractor or any other person; or

(h) the release of Contractor or any other person under the terms of any composition
or arrangement with any creditor of Contractor or any of its affiliates.

3. Guarantor hereby authorizes Contractor and Employer to make any Addendum or


Variation to the Contract or to the Scope of Work to be performed there under, the due
and punctual performance of which Addendum or Variation shall be likewise guaranteed
by Guarantor in accordance with the terms of this Guarantee. The obligations of
Guarantor hereunder shall in no way be affected by any Variation or Addendum to the
Contract or to the Scope of Work to be performed there under.

4. This Guarantee shall be a primary obligation of Guarantor and accordingly, the


Employer shall not be obliged before enforcing this Guarantee, to take any action in any
court or arbitral proceedings against Contractor, to make any claim against or any demand
of Contractor, to enforce any other security held by it in respect of the obligations of
Contractor under the Contract or to exercise, levy or enforce any distress, diligence or

SAUDI ARABIAN MINING COMPANY (Page 2 of 6)


TRANSPORATION OF TREATED WATER FROM TAIF TO MAADEN MINE SITE
CONTRACT NO. 10-1448-HQ-715
ANNEX L FORM OF PARENT COMPANY GUARANTEE
REV.0

other process of execution against Contractor. In the event Employer brings proceedings
against Contractor, Guarantor will be bound by any findings of fact, interim or final award,
or judgment made by an arbitrator, or the court, in such proceedings.

5. This Guarantee is a continuing guarantee and, accordingly, shall remain in full


force and effect (notwithstanding any intermediate satisfaction by Contractor, the
Guarantor or any other person) until all obligations, warranties, duties and undertakings
now or hereafter to be carried out or performed by Contractor under the Contract shall
have been satisfied or performed in full and is in addition to and not in substitution for and
shall not merge with any other right, remedy, guarantee or security which Employer may
at any time hold for the performance of such obligations, and may be enforced without
first having recourse to any such security and without taking any steps or proceedings to
any such security.

6. (1) Until all amounts which may be or become payable under the Contract or this
Guarantee have been irrevocably paid in full, Guarantor shall not as a result of this
Guarantee or any payment or performance under this Guarantee be subrogated to
any right or security of Employer or claim or prove in competition with Employer
against Contractor or any other person or demand or accept repayment of any
monies or claim any right of contribution, set-off or indemnity and any sums
received by Guarantor, or the amount of any set-off exercised by Guarantor, in
breach of this provision shall be held by Guarantor in trust for and shall be
promptly paid to Employer.

(2) Guarantor shall not hold any security from Contractor in respect of this
Guarantee (other than security which is subordinated to security granted to the
Employer) and any such security which is held in breach of this provision shall
be held by Guarantor in trust for, and shall promptly be transferred to, the
Employer
(3) Until all amounts which may be or become payable under the Contract or this
Guarantee, have been irrevocably paid in full, if (notwithstanding the provisions
of sub-clauses (1) and (2)) Guarantor has any rights of subrogation against
Contractor or any rights to prove in a liquidation of the Contractor, Guarantor
agrees to exercise such rights in accordance with the directions of Employer.
7. (1) Guarantor shall assure that, during the term of this Guarantee, there shall be
no change in the control of Contractor.
(2) There is a change in the control of Contractor, for the purposes of this
Guarantee, whenever any person has control of Contractor who did not have
control of Contractor when the Contract was executed, and the change in
control shall have taken place without the prior consent of the Employer, which
consent may not be unreasonably withheld or delayed.
8. (1) Each payment to be made by Guarantor under this Guarantee shall be made in
Saudi Arabian Riyal, free and clear of all deductions or withholdings of any kind,
except for those required by law, and if any deduction or withholding must be
made by law, Guarantor will pay that additional amount which is necessary to
ensure that Employer receives a net amount equal to the full amount which
it would have received if the payment had been made without the deduction or
withholding.

SAUDI ARABIAN MINING COMPANY (Page 3 of 6)


TRANSPORATION OF TREATED WATER FROM TAIF TO MAADEN MINE SITE
CONTRACT NO. 10-1448-HQ-715
ANNEX L FORM OF PARENT COMPANY GUARANTEE
REV.0

(2) Guarantor shall pay interest on any amount due under this Guarantee from
the date of demand until the date of payment in full (after as well as before
any judgment) calculated on a (daily) basis at the rate of [ ].
9. Guarantor will reimburse Employer for all legal and other costs (including VAT) incurred
by Employer in connection with the enforcement of this Guarantee.

10. Employer may apply any sum paid by Contractor, Guarantor, or any other person, or
recovered or received on account of the obligations the subject of this Guarantee, as it
sees fit whether or not towards those obligations.

11. Any settlement or discharge between Employer and Contractor and/or Guarantor shall be
conditional upon no settlement with security or payment to Employer by Contractor or
Guarantor or any other person being avoided or set aside or ordered to be refunded or
reduced by virtue of any provision or enactment relating to bankruptcy, insolvency or
liquidation for the time being in force and accordingly (but without limiting the
Employers other rights hereunder) Employer shall be entitled to recover from Guarantor,
if such settlement or discharge had not occurred, the value which Employer has placed
upon such settlement or security or the amount of any such payment.

12. (1) Guarantor warrants and confirms to Employer:

(a) that it is duly incorporated with limited liability and validly existing under
the laws of [ ];

(b) that it has full power under its Memorandum and Articles of Association
to enter into this Guarantee;

(c) that it has full power to perform the obligations expressed to be


assumed by it, or contemplated by this Guarantee;

(d) that it has been duly authorized to enter into this Guarantee;

(e) that it has taken all necessary corporate action to authorize the execution,
delivery and performance of this Guarantee;

(f) that this Guarantee when executed and delivered will constitute a binding
obligation on it in accordance with its terms; and

(g) that it has not received any notice, or to the best of its knowledge is
there pending or threatened any notice of any violation of any applicable
laws, ordinances, regulations, rules, decrees, awards, permits or orders
which may have a material effect on its ability to perform under this
Guarantee.

(2) Guarantor warrants and undertakes to Employer that it shall take all necessary
action directly or indirectly to perform the obligations expressed to be assumed by
it or contemplated by this Guarantee and to implement the provisions of this
Guarantee.

(3) Guarantor warrants and confirms to Employer that it has not entered into this
Guarantee in reliance upon, or has it been induced to enter into this Guarantee
by any representation, warranty or undertaking made by or on behalf of Employer
(whether expressed or implied and whether pursuant to statute or otherwise)

SAUDI ARABIAN MINING COMPANY (Page 4 of 6)


TRANSPORATION OF TREATED WATER FROM TAIF TO MAADEN MINE SITE
CONTRACT NO. 10-1448-HQ-715
ANNEX L FORM OF PARENT COMPANY GUARANTEE
REV.0

which is not set out in this Guarantee.

13. Employer shall be entitled, by notice in writing to Guarantor, to assign or transfer all or
any of its rights under this Guarantee at any time without the consent of Guarantor being
required. Any such assignment shall not release Guarantor from liability under this
Guarantee.

14. (1) Any notice or demand to be served on Guarantor under this Guarantee may
be delivered in person, by courier or by fax to Guarantor.

(2) A notice or demand served under (1) shall be served on Guarantor at its address
appearing in this Guarantee or fax number [ ], or at such other address or fax
number as it may have notified to Employer in writing (such notice to become
effective seven (7) days after delivery in person or by courier to Employer at its
address appearing in this Guarantee marked for the attention of Mr. Mohammed S.
Bajaba).

(3) Any such notice or demand shall be deemed to have been served:

(a) if delivered in person or by courier, at the time of delivery; or

(b) if delivered by fax, on the next Business Day.

(4) In proving service of a notice or demand it shall be sufficient to prove that


delivery was made or that the envelope containing the notice or demand was
properly addressed and delivered or sent by courier or that the fax message was
properly addressed and dispatched, as the case may be.
(5) For the purposes of this clause Business Day means a day (other than a
[Thursday or Friday] [Saturday or a Sunday]) on which banks are generally
open in [ ] for normal business.

15. (1) No delay or omission of Employer in exercising any right, power or privilege
under this Guarantee shall impair or be construed as a waiver of such right,
power or privilege nor shall any single or partial exercise of any such right,
power or privilege preclude any further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. The rights and
remedies of Employer provided for in this Guarantee are cumulative and not
exclusive of any rights or remedies provided by law.

(2) A waiver given or consent granted by Employer under this Guarantee will be
effective only if given in writing, and then only in the instance and for the
purpose for which it is given.

(3) A waiver by Employer shall not constitute a continuing waiver and shall not
prevent Employer from subsequently enforcing any of the provisions of this
Guarantee.

16. The invalidity, illegality or unenforceability in whole or in part of any of the provisions of
this Guarantee shall not affect the validity, legality and enforceability of the remaining
part or provisions of this Guarantee.

17. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Guarantee.

SAUDI ARABIAN MINING COMPANY (Page 5 of 6)


TRANSPORATION OF TREATED WATER FROM TAIF TO MAADEN MINE SITE
CONTRACT NO. 10-1448-HQ-715
ANNEX L FORM OF PARENT COMPANY GUARANTEE
REV.0

18. This Guarantee is governed by and shall be construed in accordance with Saudi Arabian
laws.

19. If any dispute or difference arises between Guarantor and Employer in connection with
this Guarantee which cannot be resolved by mutual agreement, it shall be finally settled
under the Rules of Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with those Rules. The place of the arbitration shall
be Saudi Arabia. The arbitration shall be conducted in the English language.

IN WITNESS whereof the Parties hereto have executed this Guarantee as a Deed on the day and
year first before written.

EXECUTED as a DEED by )
[GUARANTOR] )
acting by

Director

Director/Secretary

EXECUTED as a DEED by )
SAUDI ARABIAN MINING )
COMPANY ("MA'ADEN") )
acting by

Director

Director/Secretary

SAUDI ARABIAN MINING COMPANY (Page 6 of 6)


TRANSPORATION OF TREATED WATER FROM TAIF TO MAADEN MINE SITE
CONTRACT NO. 10-1448-HQ-715