EXHIBIT 4.73
THIS TERMINATION AGREEMENT is made as of this 24th day of June, 2004 among:
(A) Durban Roodepoort Deep Limited ("DURBAN");
(B) Eskom Holdings Limited (the "ESKOM"); and
(C) Investec Bank Limited (the "INVESTEC").
(1) Investec and Durban have entered into one or more transactions the terms
of which are recorded in Investec's Confirmations dated 4th February 2004,
6th February 2004, 6th February 2004, 10th February 2004, 11th February
2004 and 12th February 2004 respectively bearing reference CD71288,
CD71567, CD71679, CD72430, CD72431 and CD72432. Copies of these
Confirmations are attached hereto marked "A", "B", "C", "D", "E" and "F"
respectively (the "INVESTEC-DURBAN Transactions").
(2) Eskom and Durban have entered into one or more transactions the terms of
which are recorded in Eskom's Confirmation dated 18 September 2000 and an
amendment thereto dated 22 November 2000. Copies of these Confirmations
are attached hereto marked "G" and "H". The transactions which are the
subject of this agreement may be identified in TABLE I of annexure H as
those transactions having 'Calculation Period Start Dates' of 01 July 2004
to and including 01 December 2004 (the "ESKOM-DURBAN TRANSACTIONS").
(3) Investec, Eskom and J Aron & Company propose to enter into a Novation
Agreement (the "NOVATION AGREEMENT") in respect of one or more
transactions identified in the Annex thereto (the "NOVATED TRANSACTIONS").
A copy of the proposed Novation Agreement is attached hereto marked "I".
(4) With effect from and including the date of the novation, intended by the
execution of the Novation Agreement, and in consideration for Investec and
Eskom entering into the Novation Agreement, Durban, and Investec wish to
terminate the Investec-Durban Transactions and Eskom and Durban wish to
terminate the Eskom-Durban Transactions.
(5) Each of Investec, Eskom and Durban wish to be simultaneously released and
discharged of their respective obligations under and in respect of their
rights and obligations under the Investec-Durban Transactions and the
Eskom-Durban Transactions.
Accordingly, the parties agree as follows:
1. DEFINITIONS.
Terms defined herein are used herein as so defined, unless otherwise
provided herein.
2. TRANSFER, RELEASE, DISCHARGE AND UNDERTAKINGS.
With effect from and including the Novation Date and in consideration of
the mutual representations, warranties and covenants contained in this
Termination Agreement and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each of the
parties):
(a) Investec and Durban are each released and discharged from
further obligations to each other with respect to the
Investec-Durban Transactions and their respective rights
against each other thereunder are cancelled.
(b) Eskom and Durban are each released and discharged from further
obligations to each other with respect to the Eskom-Durban
Transactions and their respective rights against each other
thereunder are cancelled. Such release and discharge shall not
affect any rights, liabilities, or obligations of Eskom or
Durban recorded and confirmed in annexure "H", other than the
Eskom-Durban Transactions,
3. COUNTERPARTS.
This Termination Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
4. COSTS AND EXPENSES.
The parties will each pay their own costs and expenses (including legal
fees) incurred in connection with this Termination Agreement and as a
result of the negotiation, preparation and execution of this Termination
Agreement.
5. AMENDMENTS.
No amendment, modification or waiver in respect of this Termination
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.
6. GOVERNING LAW.
This Termination Agreement will be governed by and construed in accordance
with the laws of South Africa.
2
IN WITNESS WHEREOF the parties have executed this Termination Agreement on the
respective dates specified below with effect from the date specified on the
first page of this Termination Agreement.
ESKOM HOLDINGS LIMITED INVESTEC BANK LIMITED
By: ______________________________ By: ________________________
Name: Name:
Title: Title:
Date: Date:
DURBAN ROODEPOORT DEEP LIMITED
By: /s/Mark Wellesley-Wood
------------------------------
Name: Mark Wellesley-Wood
Title: Chairman
Date: 24 July 04
By: /s/Wayne Gregory Koonin
------------------------------
Name: Wayne Gregory Koonin
Title: Divisional Director: Group Finance
Date: 24 July 2004
3
"A"
[Investec logo]
CONFIRMATION
DATE: 4th February 2004
TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep
ATTN: Lucy McLean
FAX: +27-11-3741060
FROM: Investec Bank Limited
SUBJECT: Forward Bullion Transaction
REF No.: CD7I288
1. The purpose of this communication is to set forth the terms and conditions
of the transaction referred to above and entered into on the Trade Date
specified below (the "Transaction") between Investec Bank Limited
("Investec") and Durban Roodepoort Deep ("Counterparty"). This
communication constitutes a Confirmation as referred to in the Agreement
specified below.
2. This Confirmation is subject to, and incorporates, the 2000 ISDA
Definitions and the 1987 ISDA Bullion Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc.
("ISDA"). In the event of any inconsistency between the Definitions and
this Confirmation, this Confirmation will prevail.
3. If Investec and Counterparty are parties to the 1992 ISDA Master
Agreement, (the "Agreement"), this Transaction and Confirmation
supplements, forms part of and is subject to such Agreement. If Investec
and Counterparty are not yet parties to the Agreement, both parties agree
to use best efforts to promptly negotiate, execute and deliver the
Agreement, including a standard form of Schedule and any addenda that may
from time to time be required by the 26th of February 2004. Upon execution
and delivery of the Agreement this Transaction and Confirmation shall
supplement, form part of and be subject to such Agreement and will
constitute a single agreement between the parties. Until such Agreement
has been executed and delivered, this Transaction and Confirmation
(together with all other Transactions and Confirmations previously entered
into between us, notwithstanding anything to the contrary therein) shall
supplement, form part of and be subject to the 1992 ISDA Master Agreement,
as if, on the Trade Date of the first such Transaction between the
parties, the parties had executed that
agreement (without any Schedule thereto) and specified that the Automatic
Early Termination provisions contained in Section 6(a) of such agreement
would not apply and that in the event of an Early Termination Date being
designated a net payment amount in respect of the Terminated Transactions
will be determined in accordance with the early termination payment
calculation provisions of Section 8(e)(i) based on a payment measure of
Market Quotation and a payment method of Second Method.
4. Investec and Counterparty represent to each other that it has entered to
this Transaction in reliance upon such tax, accounting, regulatory, legal
and financial advice as it deemed necessary and not upon any view
expressed by the other party.
5. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: 4th February 2004
Purchaser of Bullion: Counterparty
Seller of Bullion: Investec
Bullion: Gold
Number of Ounces: 15,000
Contract Price: F2192/oz
Value Date: 30th July 2004
Settlement Date: 16th August 2004
Settlement Price: The arithmetic average Rand Gold Spot Price.
Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR
spot rate, as shown on the Reuters page
"GOFO" at approximately 11am London time on
each Reset Date. Should this rate be
unavailable, the Calculation Agent will
determine such rates, in a commercially
reasonably manner.
Cash Payment: R10,176,209
Cash Payment Date: 12th March 2004
Reset Dates: Daily each business day during July 2004
Consequences of Settlement
Disruption Events: Negotiation
Business Days: London and Johannesburg
Calculation Agent: Investec
Governing Law: Governed by and construed in accordance with
the laws in force in South Africa unless
otherwise agreed in the Agreement
6. Counterparty hereby agrees (a) to check this Confirmation (Reference No:
CD 71288 carefully and immediately upon receipt so that errors and
discrepancies can be promptly identified and rectified, (b) to confirm
that the foregoing correctly sets forth the terms of the agreement between
Investec and Counterparty with respect to the particular Transaction to
which this Confirmation relates and (c) to confirm knowledge of the terms
and conditions of the ISDA Agreement by
5
manually signing this Confirmation and providing the other information
requested herein and immediately returning an executed copy to Investec,
facsimile, 0027 11 291 1020.
Yours,
Investec Bank Limited
Signed: ____________________________
Title: _____________________________
Date: ______________________________
Agreed and Accepted By:
Durban Roodepoort Deep
Signed: /s/ L. McClean
----------------------------
Title: _____________________________
Date: ______________________________
6
"B"
[Investec logo]
CONFIRMATION
DATE: 6th February 2004
TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep
ATTN: Lucy McLean
FAX: +27-11-3741060
FROM: Investec Bank Limited
SUBJECT: Forward Bullion Transaction
REF No.: CD71567
1. The purpose of this communication is to set forth the terms and conditions
of the transaction referred to above and entered into on the Trade Date
specified below (the "Transaction") between Investec Bank Limited
("Investec") and Durban Roodepoort Deep ("Counterparty"). This
communication constitutes a Confirmation as referred to in the Agreement
specified below.
2. This Confirmation is subject to, and incorporates, the 2000 ISDA
Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc.
("ISDA"). In the event of any inconsistency between the Definitions and
this Confirmation, this Confirmation will prevail.
3. If Investec and Counterparty are parties to the 1992 ISDA Master
Agreement, (the "Agreement"), this Transaction and Confirmation
supplements, forms part of and is subject to such Agreement. If Investec
and Counterparty are not yet parties to the Agreement, both parties agree
to use best efforts to promptly negotiate, execute and deliver the
Agreement, including a standard form of Schedule and any addenda that may
from time to time be required by the 26th of February 2004. Upon execution
and delivery of the Agreement this Transaction and Confirmation shall
supplement, form part of and be subject to such Agreement and will
constitute a single agreement between the parties. Until such Agreement
has been executed and delivered, this Transaction and Confirmation
(together with all other Transactions and Confirmations previously entered
into between us, notwithstanding anything to the contrary therein) shall
supplement, form part of and be subject to the 1992 ISDA Master Agreement,
as if, on the Trade Date of the first such Transaction between the
parties, the parties had executed that
agreement (without any Schedule thereto) and specified that the Automatic
Early Termination provisions contained in Section 6(a) of such agreement
would not apply and that in the event of an Early Termination Date being
designated a net payment amount in respect of the Terminated Transactions
will be determined in accordance with the early termination payment
calculation provisions of Section 6(a)(i) based on a payment measure of
Market Quotation and a payment method of Second Method.
4. Investec and Counterparty represent to each other that it has entered into
this Transaction in reliance upon such tax, accounting, regulatory, legal
and financial advice as it deemed necessary and not upon any view
expressed by the other party.
5. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: 6th February 2004
Purchaser of Bullion: Counterparty
Seller of Bullion: Investec
Bullion: Gold
Number of Ounces: 15,000
Additional Payment: On 12th March 2004 Counterparty shall pay to
Investec R10,325,695
Contract Price: R2192/oz
Value Date: 31st August 2004
Settlement Date: 15th September 2004
Settlement Price: The arithmetic average Rand Gold Spot Price.
Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR
spot rate, as shown on the Reuters page
"GOFO" at approximately 11am London time on
each Reset Date. Should this rate be
unavailable, the Calculation Agent will
determine such rates, in a commercially
reasonably manner.
Reset Dates: Daily each Business Day during August 2004
Consequences of Settlement
Disruption Events: Negotiation
Business Days: London and Johannesburg
Calculation Agent: Investec
Governing Law: Governed by and construed in accordance with
the laws in force in South Africa unless
otherwise agreed in the Agreement
6. Counterparty hereby agrees (a) to check this Confirmation (Reference No:
CD 71587 carefully and immediately upon receipt so that errors and
discrepancies can be promptly identified and rectified, (b) to confirm
that the foregoing correctly sets forth the terms of the agreement between
Investec and Counterparty with respect to the particular Transaction to
which this Confirmation relates and (c) to confirm knowledge of the terms
and conditions of the ISDA Agreement by
8
manually signing this Confirmation and providing the other information
requested herein and immediately returning an executed copy to Investec,
facsimile, 0027 11 291 1020.
Yours,
Investec Bank Limited
Signed: ____________________________
Title: _____________________________
Date: ______________________________
Agreed and Accepted By:
Durban Roodepoort Deep
Signed: /s/ L. McClean
----------------------------
Title: _____________________________
Date: ______________________________
9
"C"
[Investec logo]
CONFIRMATION
DATE: 6th February 2004
TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep
ATTN: Lucy McLean
FAX: +27-11-3741060
FROM: Investec Bank Limited
SUBJECT: Forward Bullion Transaction
REF No.: CD71679
1. The purpose of this communication is to set forth the terms and conditions
of the transaction referred to above and entered into on the Trade Date
specified below (the "Transaction") between Investec Bank Limited
("Investec") and Durban Roodepoort Deep ("Counterparty"). This
communication constitutes a Confirmation as referred to in the Agreement
specified below.
2. This Confirmation is subject to, and incorporates, the 2000 ISDA
Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc.
("ISDA"). In the event of any inconsistency between the Definitions and
this Confirmation, this Confirmation will prevail.
3. If Investec and Counterparty are parties to the 1992 ISDA Master
Agreement, (the "Agreement"), this Transaction and Confirmation
supplements, forms part of and is subject to such Agreement. If Investec
and Counterparty are not yet parties to the Agreement, both parties agree
to use best efforts to promptly negotiate, execute and deliver the
Agreement, including a standard form of Schedule and any addenda that may
from time to time be required by the 26th of February 2004. Upon execution
and delivery of the Agreement this Transaction and Confirmation shall
supplement, form part of and be subject to such Agreement and will
constitute a single agreement between the parties. Until such Agreement
has been executed and delivered, this Transaction and Confirmation
(together with all other Transactions and Confirmations previously entered
into between us, notwithstanding anything to the contrary therein) shall
supplement, form part of and be subject to the 1992 ISDA Master Agreement,
as if, on the Trade Date of the first such Transaction between the
parties, the parties had executed that
agreement (without any Schedule thereto) and specified that the Automatic
Early Termination provisions contained in Section 6(a) of such agreement
would not apply and that in the event of an Early Termination Date being
designated a net payment amount in respect of the Terminated Transactions
will be determined in accordance with the early termination payment
calculation provisions of Section 6(e)(i) based on a payment measure of
Market Quotation and a payment method of Second Method.
4. Investec and Counterparty represent to each other that it has entered into
this Transaction in reliance upon such tax, accounting, regulatory, legal
and financial advice as it deemed necessary and not upon any view
expressed by the other party.
5. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: 6th February 2004
Purchaser of Bullion: Counterparty
Seller of Bullion: Investec
Bullion: Gold
Number of Ounces: 15,000
Additional Payment: On 12th March 2004 Counterparty shall pay to
Investec R11,123,754.
Contract Price: R2192/oz
Value Date: 30th September 2004
Settlement Date: 15th October 2004
Settlement Price: The arithmetic average Rand Gold Spot Price.
Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR
spot rate, as shown on the Reuters page
"GOFO" at approximately 11am London time on
each Reset Date. Should this rate be
unavailable, the Calculation Agent will
determine such rates, in a commercially
reasonably manner.
Reset Dates: Daily each Business Day during September
2004
Consequences of Settlement
Disruption Events: Negotiation
Business Days: London and Johannesburg
Calculation Agent: Investec
Governing Law: Governed by and construed in accordance with
the laws in force in South Africa unless
otherwise agreed in the Agreement
6. Counterparty hereby agrees (a) to check this Confirmation (Reference No:
CD 71679 carefully and immediately upon receipt so that errors and
discrepancies can be promptly identified and rectified, (b) to confirm
that the foregoing correctly sets forth the terms of the agreement between
Investec and Counterparty with respect to the particular Transaction to
which this Confirmation relates and (c) to confirm knowledge of the terms
and conditions of the ISDA Agreement by
` 11
manually signing this Confirmation and providing the other information
requested herein and immediately returning an executed copy to Investec,
facsimile, 0027 11 291 1020.
Yours,
Investec Bank Limited
Signed: ____________________________
Title: _____________________________
Date: ______________________________
Agreed and Accepted By:
Durban Roodepoort Deep
Signed: /s/ L. McClean
----------------------------
Title: _____________________________
Date: ______________________________
12
"D"
[Investec logo]
CONFIRMATION
DATE: 10th February 2004
TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep
ATTN: Lucy McLean
FAX: +27-11-3741060
FROM: Investec Bank Limited
SUBJECT: Forward Bullion Transaction
REF No.: CD72430
1. The purpose of this communication is to set forth the terms and conditions
of the transaction referred to above and entered into on the Trade Date
specified below (the "Transaction") between Investec Bank Limited
("Investec") and Durban Roodepoort Deep ("Counterparty"). This
communication constitutes a Confirmation as referred to in the Agreement
specified below.
2. This Confirmation is subject to, and incorporates, the 2000 ISDA
Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc.
("ISDA"). In the event of any inconsistency between the Definitions and
this Confirmation, this Confirmation will prevail.
3. If Investec and Counterparty are parties to the 1992 ISDA Master
Agreement, (the "Agreement"), this Transaction and Confirmation
supplements, forms part of and is subject to such Agreement. If Investec
and Counterparty are not yet parties to the Agreement, both parties agree
to use best efforts to promptly negotiate, execute and deliver the
Agreement, including a standard form of Schedule and any addenda that may
from time to time be required by the 26th February 2004. Upon execution
and delivery of the Agreement this Transaction and Confirmation shall
supplement, form part of and be subject to such Agreement and will
constitute a single agreement between the parties. Until such Agreement
has been executed and delivered, this Transaction and Confirmation
(together with all other Transactions and Confirmations previously entered
into between us, notwithstanding anything to the contrary therein) shall
supplement, form part of and be subject to the 1992 ISDA Master Agreement,
as if, on the Trade Date of the first such Transaction between the
parties, the parties had executed that
agreement (without any Schedule thereto) and specified that the Automatic
Early Termination provisions contained in Section 6(a) of such agreement
would not apply and that in the event of an Early Termination Date being
designated a net payment amount in respect of the Terminated Transactions
will be determined in accordance with the early termination payment
calculation provisions of Section 6(e)(i) based on a payment measure of
Market Quotation and a payment method of Second Method.
4. Investec and Counterparty represent to each other that it has entered into
this Transaction in reliance upon such tax, accounting, regulatory, legal
and financial advice as it deemed necessary and not upon any view
expressed by the other party.
5. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: 10th February 2004
Purchaser of Bullion: Counterparty
Seller of Bullion: Investec
Bullion: Gold
Number of Ounces: 15,000
Contract Price: R2256/oz
Value Date: 29th October 2004
Settlement Date: 15th November 2004
Settlement Price: The arithmetic average Rand Gold Spot Price.
Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR
spot rate, as shown on the Reuters page
"GOFO" at approximately 11am London time on
each Reset Date. Should this rate be
unavailable, the Calculation Agent will
determine such rates, in a commercially
reasonably manner.
Cash Payment: R10,898,617
Cash Payment Date: 12th March 2004
Cash Payer: Counterparty
Reset Dates: Daily each business day during October 2004
Consequences of Settlement
Disruption Events: Negotiation
Business Days: London and Johannesburg
Calculation Agent: Investec
Governing Law: Governed by and construed in accordance with
the laws in force in South Africa unless
otherwise agreed in the Agreement
6. Counterparty hereby agrees (a) to check this Confirmation (Reference No:
CD 72430 carefully and immediately upon receipt so that errors and
discrepancies can be promptly identified and rectified, (b) to confirm
that the foregoing correctly sets forth the terms of the agreement between
Investec and Counterparty with respect to the particular Transaction to
which this Confirmation relates and (c) to
14
confirm knowledge of the terms and conditions of the ISDA Agreement by
manually signing this Confirmation and providing the other information
requested herein and immediately returning an executed copy to Investec,
facsimile, 0027 11 291 1020.
Yours,
Investec Bank Limited
Signed: ____________________________
Title: _____________________________
Date: ______________________________
Agreed and Accepted By:
Durban Roodepoort Deep
Signed: /s/ L. McClean
----------------------------
Title: _____________________________
Date: ______________________________
15
"E"
[Investec logo]
CONFIRMATION
DATE: 11th February 2004
TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep
ATTN: Lucy McLean
FAX: +27-11-3741060
FROM: Investec Bank Limited
SUBJECT: Forward Bullion Transaction
REF No.: CD72431
1. The purpose of this communication is to set forth the terms and conditions
of the transaction referred to above and entered into on the Trade Date
specified below (the "Transaction") between Investec Bank Limited
("Investec") and Durban Roodepoort Deep ("Counterparty"). This
communication constitutes a Confirmation as referred to in the Agreement
specified below.
2. This Confirmation is subject to, and incorporates, the 2000 ISDA
Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc.
("ISDA"). In the event of any inconsistency between the Definitions and
this Confirmation, this Confirmation will prevail.
3. If Investec and Counterparty are parties to the 1992 ISDA Master
Agreement, (the "Agreement"), this Transaction and Confirmation
supplements, forms part of and is subject to such Agreement. If Investec
and Counterparty are not yet parties to the Agreement, both parties agree
to use best efforts to promptly negotiate, execute and deliver the
Agreement, including a standard form of Schedule and any addenda that may
from time to time be required by the 26th February 2004. Upon execution
and delivery of the Agreement this Transaction and Confirmation shall
supplement, form part of and be subject to such Agreement and will
constitute a single agreement between the parties. Until such Agreement
has been executed and delivered, this Transaction and Confirmation
(together with all other Transactions and Confirmations previously entered
into between us, notwithstanding anything to the contrary therein) shall
supplement, form part of and be subject to the 1992 ISDA Master Agreement,
as if, on the Trade Date of the first such Transaction between the
parties, the parties had executed that
agreement (without any Schedule thereto) and specified that the Automatic
Early Termination provisions contained in Section 6(a) of such agreement
would not apply and that in the event of an Early Termination Date being
designated a net payment amount in respect of the Terminated Transactions
will be determined in accordance with the early termination payment
calculation provisions of Section 6(e)(i) based on a payment measure of
Market Quotation and a payment method of Second Method.
4. Investec and Counterparty represent to each other that it has entered into
this Transaction in reliance upon such tax, accounting, regulatory, legal
and financial advice as it deemed necessary and not upon any view
expressed by the other party.
5. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: 11th February 2004
Purchaser of Bullion: Counterparty
Seller of Bullion: Investec
Bullion: Gold
Number of Ounces: 15,000
Contract Price: R2256/oz
Value Date: 30th November 2004
Settlement Date: 15th December 2004
Settlement Price: The arithmetic average Rand Gold Spot Price.
Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR
spot rate, as shown on the Reuters page
"GOFO" at approximately 11am London time on
each Reset Date. Should this rate be
unavailable, the Calculation Agent will
determine such rates, in a commercially
reasonably manner.
Cash Payment: R10,851,298
Cash Payment Date: 12th March 2004
Cash Payer: Counterparty
Reset Dates: Daily each business day during November 2004
Consequences of Settlement
Disruption Events: Negotiation
Business Days: London and Johannesburg
Calculation Agent: Investec
Governing Law: Governed by and construed in accordance with
the laws in force in South Africa unless
otherwise agreed in the Agreement
6. Counterparty hereby agrees (a) to check this Confirmation (Reference No:
CD 72431 carefully and immediately upon receipt so that errors and
discrepancies can be promptly identified and rectified, (b) to confirm
that the foregoing correctly sets forth the terms of the agreement between
Investec and Counterparty with respect to the particular Transaction to
which this Confirmation relates and (c) to
17
confirm knowledge of the terms and conditions of the ISDA Agreement by
manually signing this Confirmation and providing the other information
requested herein and immediately returning an executed copy to Investec,
facsimile, 0027 11 291 1020.
Yours,
Investec Bank Limited
Signed: ____________________________
Title: _____________________________
Date: ______________________________
Agreed and Accepted By:
Durban Roodepoort Deep
Signed: /s/ L. McClean
----------------------------
Title: _____________________________
Date: ______________________________
18
"F"
[Investec logo]
CONFIRMATION
DATE: 12th February 2004
TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep
ATTN: Lucy McLean
FAX: +27-11-3741060
FROM: Investec Bank Limited
SUBJECT: Forward Bullion Transaction
REF No.: CD72432
1. The purpose of this communication is to set forth the terms and conditions
of the transaction referred to above and entered into on the Trade Date
specified below (the "Transaction") between Investec Bank Limited
("Investec") and Durban Roodepoort Deep ("Counterparty"). This
communication constitutes a Confirmation as referred to in the Agreement
specified below.
2. This Confirmation is subject to, and incorporates, the 2000 ISDA
Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as
published by the International Swaps and Derivatives Association, Inc.
("ISDA"). In the event of any inconsistency between the Definitions and
this Confirmation, this Confirmation will prevail.
3. If Investec and Counterparty are parties to the 1992 ISDA Master
Agreement, (the "Agreement"), this Transaction and Confirmation
supplements, forms part of and is subject to such Agreement. If Investec
and Counterparty are not yet parties to the Agreement, both parties agree
to use best efforts to promptly negotiate, execute and deliver the
Agreement, including a standard form of Schedule and any addenda that may
from time to time be required by the 26th February 2004. Upon execution
and delivery of the Agreement this Transaction and Confirmation shall
supplement, form part of and be subject to such Agreement and will
constitute a single agreement between the parties. Until such Agreement
has been executed and delivered, this Transaction and Confirmation
(together with all other Transactions and Confirmations previously entered
into between us, notwithstanding anything to the contrary therein) shall
supplement, form part of and be subject to the 1992 ISDA Master Agreement,
as if, on the Trade Date of the first such Transaction between the
parties, the parties had executed that
agreement (without any Schedule thereto) and specified that the Automatic
Early Termination provisions contained in Section 6(a) of such agreement
would not apply and that in the event of an Early Termination Date being
designated a net payment amount in respect of the Terminated Transactions
will be determined in accordance with the early termination payment
calculation provisions of Section 6(e)(i) based on a payment measure of
Market Quotation and a payment method of Second Method.
4. Investec and Counterparty represent to each other that it has entered into
this Transaction in reliance upon such tax, accounting, regulatory, legal
and financial advice as it deemed necessary and not upon any view
expressed by the other party.
5. The terms of the particular Transaction to which this Confirmation relates
are as follows:
Trade Date: 12th February 2004
Purchaser of Bullion: Counterparty
Seller of Bullion: Investec
Bullion: Gold
Number of Ounces: 15,000
Contract Price: R2256/oz
Value Date: 31st December 2004
Settlement Date: 17th January 2005
Settlement Price: The arithmetic average Rand Gold Spot Price.
Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR
spot rate, as shown on the Reuters page
"GOFO" at approximately 11am London time on
each Reset Date. Should this rate be
unavailable, the Calculation Agent will
determine such rates, in a commercially
reasonably manner.
Cash Payment: R10,499,582
Cash Payment Date: 12th March 2004
Cash Payer: Counterparty
Reset Dates: Daily each business day during December 2004
Consequences of Settlement
Disruption Events: Negotiation
Business Days: London and Johannesburg
Calculation Agent: Investec
Governing Law: Governed by and construed in accordance with
the laws in force in South Africa unless
otherwise agreed in the Agreement
6. Counterparty hereby agrees (a) to check this Confirmation (Reference No:
CD 72432 carefully and immediately upon receipt so that errors and
discrepancies can be promptly identified and rectified, (b) to confirm
that the foregoing correctly sets forth the terms of the agreement between
Investec and Counterparty with respect to the particular Transaction to
which this Confirmation relates and (c) to
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confirm knowledge of the terms and conditions of the ISDA Agreement by
manually signing this Confirmation and providing the other information
requested herein and immediately returning an executed copy to Investec,
facsimile, 0027 11 291 1020.
Yours,
Investec Bank Limited
Signed: ____________________________
Title: _____________________________
Date: ______________________________
Agreed and Accepted By:
Durban Roodepoort Deep
Signed: /s/ L McClean
----------------------------
Title: _____________________________
Date: ______________________________
21
"G"
ESKOM LETTERHEAD
Durban Roodepoort Deep Ltd
Attention: I L Murray / Alet Beyers
PO Box 390
Fax (011) 482 4643
MARAISBURG
1700
Date/Datum Your Ref./ U Verw. Our Ref./Ons Verw. Enquiries/Navre
18 September 2000 Colin McIntyre
Tel 011 8002947
Fax 011 8004499
Dear Sir
CONFIRMATION OF TRANSACTION UNDER ISDA
ESKOM is pleased to confirm the following Transaction concluded on 14 September
2000 (the "Trade Date") with Durban Roodepoort Deep Ltd. ("Durban"). This
confirmation is intended to be a "Confirmation" as such term is used in the
Master Form defined below.
PART I FORWARD SALE OF ELECTRICITY
Buyer: Durban Group (Consisting of Buffelsfontein
Gold Mines Limited [including its division
of Hartebeestfontein Gold Mining Company
Limited], Blyvooruitzicht Gold Mining
Company Limited [including its division of
Doornfontein Gold Mining Company Limited],
Crown Gold Recoveries (Pty) Limited). The
listing is for convenience to both parties
and that it is DRD which is contracting as
principal with ESKOM on behalf of the above
listed companies.
Seller: ESKOM
Commodity: Electricity
Effective Date: 1 October, 2000
Termination Date: 30 September, 2006
Calculation Periods: 60 consecutive monthly period from and
including the month beginning on the
Effective Date to and including the month
ending on the Termination Date.
Minimum Offtake: 75 GWh/mth
Price: For each Calculation Period an amount equal
to the ESKOM Standard Tariff in effect
during such calculation period.
Payment Dates: 15th day of the calendar month next
following the end of each Calculation Period
during the term of the Transaction.
Settlement: Cash settlement in ZAR on each Payment Date,
provided, however, that if such date is not
a Business Day the applicable Payment Date
shall be the immediately following Business
Day.
PART II GOLD PRICE ADJUSTMENT TO STANDARD TARIFF LEVIED UPON ESKOM GROUP
Effective Date: 1 October, 2000
Termination Date: 30 September, 2005
Calculation Periods: 64 consecutive monthly periods from and
including the month beginning on the
Effective Date to and including the month
ending on the Termination Date
Commodity: Gold (minimum 0.995 fine, London good
delivery form)
Gold Price Adjustment: 15,000* Gold Price Adjustment Mechanism
Gold Price Adjustment The difference between:
Mechanism:
(i) (A) ZAR 2505/oz/FTO for each
Calculation Period from and including
the October 2000 to and including the
September 2001 Calculation Period;
(B) ZAR 2569/oz/FTO for each
Calculation Period from and including
the October 2001 to and including the
September 2002 Calculation Period;
(C) ZAR 2128/oz/FTO for each
Calculation Period from and including
the October 2002 to and including the
September 2003 Calculation Period;
(D) ZAR 2192/oz/FTO for each
Calculation Period from and including
the October 2003 to and including the
September 2004 Calculation Period;
(E) ZAR 2256/oz/FTO for each
Calculation Period from and including
the October 2004 to and including the
September 2005 Calculation Period; and
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(ii) for the applicable Calculation Period
an amount equal to the arithmetic
average of the London PM fix for each
Business Day in such Calculation
Period.
Payment Instruction: On each Payment Date, the Gold Price
Adjustment will be cash settled in ZAR.
For clarity, a positive gold price
adjustment (i.e. where (i) > (ii) in the
aforementioned gold price adjustment
mechanism) will result in a gold price
adjustment in Durban Group's favour. A
negative gold price adjustment (ie. where
(i) < or = (ii) in the aforementioned gold
price adjustment mechanism) will result in a
gold price adjustment in Eskom's favour.
Payment Dates: 15th day of the calendar month next
following the end of each Calculation Period
during the term of the Transaction
Settlement: Cash settlement in ZAR on each Payment Date,
provided, however, that if such date is not
a Business Day the applicable Payment Date
shall be the immediately following Business
Day.
OTHER PROVISIONS
Calculation Agent: J. Aron & Company
Fallback Prices/Rate: If any rate or price referenced above is
unavailable as of the applicable time on a
Business Day or would not produce a
commercial reasonable result then such rate
shall be determined by ESKOM in a
commercially reasonable manner.
Payment Netting: If the payment dates for this transaction
and any other forward, swap or option
transaction entered into between the
parties shall fall on the same day and if
the payment obligations thereof shall be
denominated in the same currency, such
payments shall be made on a net basis so
that the party obligated to pay the larger
amount shall day the other party an amount
equal to the excess of the larger aggregate
amount over the smaller aggregate amount or
if such amounts are equal, no payment shall
be made.
Representations: ESKOM shall have the option to terminate
this Transaction upon 5 Business Days
written notice if at any time the
transaction between ESKOM and J. Aron &
Company dated the date hereof (the "Related
Hedge") shall be closed out
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and terminated, provided, however, that no
payment of Termination Value shall be due
under this Transaction until any termination
value payment under the Related Hedge is
due. ESKOM and Durban agree that the
Termination Value of this Transaction shall
equal the Termination Value of the Related
Hedge, provided that the obligations
incurred by Eskom under the related hedge
are based on this transaction. ESKOM agrees
it shall give Durban prompt written notice
of the occurrence of any Termination Event
with respect to the Related Hedge.
General: This Confirmation shall be governed by and
construed in accordance with South African
law without regard to conflicts of law
rules.
Upon execution of a master agreement, this
confirmation shall constitute a supplement
to, form a part of and be subject to such
master agreement. This confirmation,
together with any other confirmations
entered into by the parties and together
with such master agreement, if and when
executed, shall constitute a single
agreement between the parties.
Banking instructions: 1. For Eskom: Standard Corporate &
Merchant International Division Eskom
Account number 7330005
2. For Durban Roodepoort Deep DRD
TREASURY Absa Main Street Branch
Account number 01007611923
This Confirmation evidences a complete and binding agreement between you and us
as to the terms of the Transaction to which this Confirmation relates. In
addition, this Confirmation will supplement, form a part of, and be subject to
our ISDA Master Agreement of 13 September 2000 ("the Master Agreement"). All
provisions contained in or incorporated by reference in the Master Agreement
upon its execution will govern this Confirmation.
This Confirmation is subject to the 1991 ISDA Definitions and the 1993 ISDA
Commodity Derivatives Definitions, as published by the International Swaps and
Derivatives Association, Inc. ("ISDA") as amended, supplemented, updated, and
superseded from time to time (together, the "Definitions"), and will be governed
in all respects by the Definitions (except that references to "Swap
Transactions" in the Definitions will be deemed to be references to
"Transactions").
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The Definitions, as so modified, are incorporated by reference in, and made part
of, this Confirmation as if set forth in full herein. Subject to Section 1(b) of
the Master Agreement, in the event of any inconsistency between the provisions
of this Confirmation, and the Definitions, this Confirmation will prevail for
the purpose of the Transaction.
Please sign below indicating your agreement to the above and return to fax
number +27 11 800-4499.
Many thanks for this business.
Regards,
ESKOM
_____________________________ _____________________________
Signature Print Name
26
"H"
ESKOM LETTERHEAD
Durban Roodepoort Deep Ltd
Attention: I L Murray / Alet Beyers
PO Box 390
Fax (011) 482 4643
MARAISBURG
1700
Date Enquiries
22 November 2000 Colin McIntyre
Tel 011 8002947
Fax 011 8004499
Dear Sir
AMENDMENT AGREEMENT TO CONFIRMATION OF TRANSACTION UNDER ISDA
Reference is made to the confirmation of 18 September 2000 between Eskom and
Durban Roodepoort Deep Ltd.
For the sake of clarity, amendment is made to Part II, "Calculation Periods"
definition thereof, to include the following breakdown as Table I:
TABLE I
CALCULATION PERIOD CALCULATION PERIOD
START DATE END DATE PAYMENT DATE
- ------------------ ------------------ ------------
02 Oct 2000 31 Oct 2000 15 Nov 2000
01 Nov 2000 30 Nov 2000 15 Dec 2000
01 Dec 2000 29 Dec 2000 16 Jan 2001
01 Jan 2001 31 Jan 2001 15 Feb 2001
01 Feb 2001 28 Feb 2001 15 Mar 2001
01 Mar 2001 30 Mar 2001 17 Apr 2001
02 Apr 2001 30 Apr 2001 15 May 2001
01 May 2001 31 May 2001 15 Jun 2001
01 Jun 2001 29 Jun 2001 16 Jul 2001
02 Jul 2001 31 Jul 2001 15 Aug 2001
01 Aug 2001 31 Aug 2001 17 Sep 2001
03 Sep 2001 28 Sep 2001 15 Oct 2001
01 Oct 2001 31 Oct 2001 15 Nov 2001
01 Nov 2001 30 Nov 2001 18 Dec 2001
03 Dec 2001 31 Dec 2001 15 Jan 2002
01 Jan 2002 31 Jan 2002 15 Feb 2002
01 Feb 2002 28 Feb 2002 15 Mar 2002
27
CALCULATION PERIOD CALCULATION PERIOD
START DATE END DATE PAYMENT DATE
- ------------------ ------------------ ------------
01 Mar 2002 29 Mar 2002 15 Apr 2002
01 Apr 2002 30 Apr 2002 15 May 2002
01 May 2002 31 May 2002 18 Jun 2002
03 Jun 2002 28 Jun 2002 15 Jul 2002
01 Jul 2002 31 Jul 2002 15 Aug 2002
01 Aug 2002 30 Aug 2002 16 Sep 2002
02 Sep 2002 30 Sep 2002 15 Oct 2002
01 Oct 2002 31 Oct 2002 15 Nov 2002
01 Nov 2002 29 Nov 2002 17 Dec 2002
02 Dec 2002 31 Dec 2002 15 Jan 2002
01 Jan 2003 31 Jan 2003 18 Feb 2003
03 Feb 2003 28 Feb 2003 17 Mar 2003
03 Mar 2003 31 Mar 2003 15 Apr 2003
01 Apr 2003 30 Apr 2003 15 May 2003
01 May 2003 30 May 2003 17 Jun 2003
02 Jun 2003 30 Jun 2003 15 Jul 2003
01 Jul 2003 31 Jul 2003 15 Aug 2003
01 Aug 2003 29 Aug 2003 15 Sep 2003
01 Sep 2003 30 Sep 2003 15 Oct 2003
01 Oct 2003 31 Oct 2003 17 Nov 2003
03 Nov 2003 28 Nov 2003 15 Dec 2003
01 Dec 2003 31 Dec 2003 15 Jan 2004
01 Jan 2004 30 Jan 2004 17 Feb 2004
02 Feb 2004 27 Feb 2004 15 Mar 2004
01 Mar 2004 31 Mar 2004 15 Apr 2004
01 Apr 2004 30 Apr 2004 17 May 2004
03 May 2004 31 May 2004 15 Jun 2004
01 Jun 2004 30 Jun 2004 15 Jul 2004
01 Jul 2004 30 Jul 2004 16 Aug 2004
02 Aug 2004 31 Aug 2004 15 Sep 2004
01 Sep 2004 30 Sep 2004 15 Oct 2004
01 Oct 2004 29 Oct 2004 15 Nov 2004
01 Nov 2004 30 Nov 2004 15 Dec 2004
01 Dec 2004 31 Dec 2004 18 Jan 2005
03 Jan 2005 31 Jan 2005 15 Feb 2005
01 Feb 2005 28 Feb 2005 15 Mar 2005
01 Mar 2005 31 Mar 2005 15 Apr 2005
01 Apr 2005 29 Apr 2005 16 May 2005
02 May 2005 31 May 2005 15 Jun 2005
01 Jun 2005 30 Jun 2005 15 Jul 2005
01 Jul 2005 29 Jul 2005 15 Aug 2005
01 Aug 2005 31 Aug 2005 15 Sep 2005
01 Sep 2005 30 Sep 2005 17 Oct 2005
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This amendment and the above table will supplement and form part of the said
Confirmation and subject to the ISDA Master Agreement between the parties.
Please counter sign below to signify your agreement to the above and return to
fax number +27 11 800-4499.
Regards
/s/ W.J. Kok
- ----------------------------
Dr W J Kok
EXECUTIVE DIRECTOR (FINANCE)
ESKOM
________________________________ ______________________________
Signature Print name
29