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EXHIBIT 4.41
LOAN AGREEMENT
between :
DURBAN ROODEPOORT DEEP, LIMITED
and
KHUMO BATHONG HOLDINGS (PROPRIETARY) LIMITED
BOWMAN GILFILLAN INC.
9th Floor, Twin Towers West
Sandton City
Sandton, 2146
Telephone: (011) 881-9800
Fax: (011) 883-4505
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TABLE OF CONTENTS
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1. DEFINITIONS...............................................................3
2. CONDITION PRECEDENT.......................................................5
3. THE LOAN..................................................................6
4. UNDERTAKINGS BY THE BORROWER..............................................6
5. EVENTS OF DEFAULT.........................................................7
6. CESSION AND DELEGATION BY THE LENDER.....................................10
7. CESSION AND DELEGATION BY THE BORROWER...................................10
8. NOTICES..................................................................11
9. ARBITRATION..............................................................12
10. GENERAL..................................................................13
</Table>
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WHEREAS:
A. The Lender is desirous of lending to the Borrower, and the Borrower is
desirous of borrowing from the Lender, a Loan of R5 276 550 (five
million, two hundred and seventy six thousand and five hundred and fifty
Rand) upon the terms and subject to the conditions of this Agreement.
B. The Lender and the Borrower wish to record the terms and conditions of
the Loan in this Agreement.
THE PARTIES ACCORDINGLY RECORD THAT :
1. DEFINITIONS
For the purposes of this Agreement, and the preamble, unless the context
indicates otherwise, the words and expressions set out below shall have
the meanings assigned to them, namely:
1.1 "this Agreement" means this loan agreement;
1.2 "Business Day" means any day other than a Saturday, Sunday or
statutory holiday in South Africa;
1.3 "Borrower" means Khumo Bathong Holdings (Proprietary)
Limited, a company registered in accordance with
the laws of South Africa under Registration
Number 1998/007546/07;
1.4 "CGR" means Crown Gold Recoveries (Proprietary)
Limited, a company registered in accordance with
the laws of South Africa under Registration
Number 1998/005115/07;
1.5 "CCGR" means Crown Consolidated Gold Recoveries
Limited, a company registered in accordance with
the laws of
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South Africa under Registration Number
1997/007865/06;
1.6 "Effective Date" means the date and time on which this Agreement
becomes unconditional in terms of clause 2 ;
1.7 "Event of Default" means any one of the events specified in clause
5;
1.8 "IDC" means The Industrial Development Corporation of
South Africa Limited, a company registered in
accordance with the laws of South Africa under
Registration Number 1940/014201/06;
1.9 "Indebtedness" means in relation to the Borrower, its
obligation, whether present or future, actual or
contingent for the payment or repayment of money
(whether in respect of interest, principal or
otherwise) incurred in respect of monies
borrowed by the Borrower under this Agreement;
1.10 "KBH Shares" means 3 (three) ordinary shares of R1 (one Rand)
each in the issued share capital of CGR to be
sold by CCGR to KBH in terms of the Share
Purchase Agreement;
1.11 "KBH Claim" means 3% (three per cent) of the shareholder
loans granted by CCGR to CGR, which CCGR is
ceding to KBH in terms of the Share Purchase
Agreement;
1.12 "Loan" means the amount of R5 276 550 (five million two
hundred and seventy six thousand and five
hundred and fifty Rand) which the Borrower
agrees to borrow from the Lender, and the Lender
agrees to lend to the Borrower, according to the
terms and conditions of this Agreement;
1.13 "the Lender" means Durban Roodepoort Deep, Limited, a company
registered in accordance with the laws of South
Africa
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under Registration Number 1895/000926/06;
1.14 "Parties" means the Borrower and the Lender and "Party"
means either one of them;
1.15 "Prime Rate" shall mean the publicly quoted basic rate of
interest generally levied by The Standard Bank
of South Africa Limited from time to time in
South Africa on overdraft to its first class
corporate borrowers, calculated on a 365 (three
hundred and sixty five) day factor, irrespective
of whether or not the year is a leap year, it
being recorded that a certificate signed by any
manager of The Standard Bank of South Africa
Limited (whose appointment shall not be
necessary to prove) shall constitute prima facie
proof of the ruling prime rate at the relevant
time in the event of there being a dispute in
relation thereto;
1.16 "Share Purchase means the share purchase agreement to be entered
Agreement" into simultaneously with the signing of this
Agreement amongst CCGR, the IDC, the Borrower
and the Lender; and
1.17 "South Africa" means the Republic of South Africa as
constituted from time to time.
2. CONDITION PRECEDENT
This Agreement is conditional upon the Share Purchase Agreement being
completed in accordance with the provisions of clause 5 of the Share
Purchase Agreement, failing which this Agreement will not take effect
and the Parties shall have no claim against each other of any nature
whatsoever arising from the provisions of this Agreement.
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3. THE LOAN
3.1 The Lender agrees to lend to the Borrower and the Borrower
agrees to borrow from the Lender, with effect from the Effective
Date, the Loan on the following terms:
3.1.1 the Loan shall be secured by means of a pledge of 48 928
824 (forty eight million nine hundred and twenty eight
thousand eight hundred and twenty four) shares in East
Rand Proprietary Mines Limited in accordance with the
pledge agreement, a copy of which is attached to this
Agreement as Annexure "A";
3.1.2 the Loan shall bear interest at the Prime Rate plus 3%
(three per cent), which interest will be payable
annually in arrear on teach anniversary of the Effective
Date; and
3.1.3 the Loan will be repayable on demand but not later than
5 (five) years from the Effective Date.
3.2 The Borrower shall use the Loan solely and exclusively for the
acquisition of the KBH Shares and the KBH Claim.
4. UNDERTAKINGS BY THE BORROWER
4.1 The Borrower undertakes to the Lender that until the Loan has
been repaid in full by the Borrower to the Lender:
4.1.1 the Borrower shall (immediately upon it becoming aware
of such occurrence) notify the Lender of the occurrence
of any Event of Default and of any other event which,
with the giving of notice or lapse of time or both,
might constitute an Event of Default and at the same
time inform the Lender of any action taken or proposed
to be taken in connection with that Event of Default;
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4.1.2 the Borrower will continue its business, being the
conduct of mining operations;
4.1.3 the Borrower shall maintain in full force and effect all
authorisations, approvals, licences, registrations,
consent or declarations from all legislative bodies of
government, ministries, agencies or other authorities
required by the laws of South Africa or otherwise
appropriate in order for the Borrower-
4.1.3.1 to incur the obligations expressed to be assumed
by it in or pursuant to this Agreement;
4.1.3.2 to execute and deliver all other documents and
instruments to be delivered by it pursuant to
this Agreement;
4.1.3.3 to perform and observe the terms and provisions
of this Agreement;
4.1.3.4 to make all payments expressed to be required
under this Agreement; and
4.1.3.5 to render this Agreement legal, valid, binding,
enforceable and admissible in evidence.
4.2 The Borrower shall promptly furnish the Lender with such
evidence of authority, authenticated specimen signatures and
other documents and information as the Lender may reasonably
request, on the request of the Lender, and perform all such
other acts as may be necessary to carry out the intent of this
Agreement.
5. EVENTS OF DEFAULT
5.1 If:
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5.1.1 the Borrower shall for any reason fail duly and promptly
to perform or observe any of the other obligations or
undertakings expressed to be binding on or undertaken in
or pursuant to this Agreement; or
5.1.2 a moratorium is declared on the discharge of
Indebtedness of the Borrower or the Borrower is unable
to pay its debts generally as they become due and
payable or stops or threatens to stop or suspends
payment of Indebtedness expressed to be payable by it in
or pursuant to this Agreement or of its debts generally
or otherwise becomes insolvent or shall convene a
meeting for the purposes of making, or shall propose or
enter into, any arrangement or composition for the
benefit of any one or more of its creditors or shall
commence negotiations with any one or more of its
creditors with a view to a readjustment or rescheduling
of its Indebtedness or with a view to the avoidance of
circumstances in which it would or might be obliged to
declare a moratorium on the discharge of its
Indebtedness; or
5.1.3 any person becomes entitled to take possession of or
realise or otherwise apply any of the assets of the
Borrower or to cause such assets to be realised in
satisfaction of any obligation of the Borrower to such
person and such event would or might, either directly or
indirectly, materially affect the Borrower's ability to
perform any of the obligations expressed to be assumed
by it in or pursuant to this Agreement; or
5.1.4 if any action or proceeding of or before any judicial,
administrative, governmental or other authority or
arbitrator commences (and is not stayed or discharged
within 15 (fifteen) calendar days thereafter) to enjoin
or restrain the performance or observance by the
Borrower of the terms of this Agreement or in any manner
to question the right and power of the Borrower to enter
into, exercise its rights under and perform and observe
the terms of this Agreement or the legality, validity,
enforceability, binding nature or admissibility in
evidence of this Agreement; or
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5.1.5 if it becomes or proves to be unlawful or impossible for
the Borrower duly and promptly to perform or observe any
of the obligations or undertakings expressed to be
binding on or undertaken by it in or pursuant to this
Agreement; or
5.1.6 if the Borrower uses the Loan for any purpose other than
the purpose set out in clause 3.2; or
5.1.7 if the Share Purchase Agreement is rescinded in
accordance with its terms; or
5.1.8 if the Borrower, upon the IDC ceasing to be a
shareholder in CGR, ceases to be the majority
shareholder in CGR;
then and in any case the Borrower shall forthwith notify the Lender of
the occurrence of such event which (regardless of whether such notice
shall have been given) shall constitute an Event of Default.
5.2 Upon the occurrence of any Event of Default, and at any time
thereafter whilst it is continuing, the Lender may cancel this
Agreement by written notice to the Borrower.
5.3 If the Lender cancels the Agreement in terms of clause 5.2
above:
5.3.1 all the Borrower's indebtedness under this Agreement
shall immediately becomes due and payable without
demand, presentment, protest or other notice or
formality of any kind, all of which are expressly waived
by the Borrower;
5.3.2 the remedies set out in this clause 5.3 shall not be
construed to be exhaustive of any other remedies
available to the Lender.
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6. CESSION AND DELEGATION BY THE LENDER
6.1 The Lender may at any time and from time to time cede all or any
part of its rights and benefits and delegate all or any part of
its obligations under this Agreement to another person (an
"Assignee").
6.2 For this purpose the Lender may disclose to a potential or
actual Assignee such credit and other information relating to
the Borrower and its financial condition as the Borrower shall
have made available to the Lender or as shall be known to the
Lender otherwise howsoever.
6.3 If the Lender cedes any part of its rights and benefits and
delegates any part of its obligations under this Agreement then
all references in this Agreement to the Lender shall thereafter
be construed as references to the Lender and its Assignee to the
extent of their respective participations in the Loan.
6.4 The expression "Lender" wherever used in this Agreement shall
include every Assignee of the Lender and every successor in
title of any such Assignee or of the Lender.
7. CESSION AND DELEGATION BY THE BORROWER
The rights and obligations of the Borrower under this Agreement are
personal to the Borrower and accordingly the Borrower shall not cede any
of its rights or benefits or delegate any of its obligations under this
Agreement either in whole or in part.
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8. NOTICES
8.1 Any notice or other formal communication to be given under this
Agreement shall be in writing and signed by or on behalf of the
Party giving it and may be served by sending it by fax,
delivering it by hand or sending it by registered mail with
acknowledgement of receipt to the address and for the attention
of the relevant Party set out in clause 8.2 (or as otherwise
duly notified from time to time). Any notice so served by hand,
fax or post shall be deemed to have been received:
8.1.1 in the case of delivery by hand or mail, when delivered;
8.1.2 in the case of fax, 12 (twelve) hours after the time of
dispatch,
provided that, where (in the case of delivery by hand or by
fax), such delivery or transmission occurs after 18h00 on a
Business Day or on a day which is not a Business Day, service
shall be deemed to occur at 09h00 on the next following Business
Day. References to time in this clause are to local time in the
country of the addressee.
8.2 The Parties choose for the purposes of this Agreement the
following addresses:
8.2.1 The Lender: 45 Empire Road
Parktown
Johannesburg
South Africa
Attn: The Company Secretary
Fax No: 011 482 1022
8.2.2 The Borrower: ERPM
Main Office
Cnr Main Reef and Pretoria Road
Boksburg
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Attn: Dr P Ncholo
Fax No: 011 917 2542
8.3 In proving such service it shall be sufficient to prove that the
envelope containing such notice was properly addressed and
delivered to the address shown thereon or that the fax was sent
after obtaining in person or by telephone appropriate evidence
of the capacity of the addressee to receive the same, as the
case may be.
8.4 All notices or formal communications under or in connection with
this Agreement shall be in the English language or, if in any
other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text
in any other language, the English text shall prevail.
9. ARBITRATION
9.1 Any dispute arising out of this Agreement or the interpretation
thereof, both while in force and after its termination, shall be
submitted to and determined by arbitration. Any Party may demand
arbitration by notice in writing to the other Party. Such
arbitration shall be held in Johannesburg unless otherwise
agreed to in writing and shall be held in a summary manner with
a view to it being completed as soon as possible.
9.2 There shall be 1 (one) arbitrator who shall be, where the
question in issue is:
9.2.1 primarily an accounting matter, an independent chartered
accountant of 10 (ten) years standing;
9.2.2 primarily a legal matter, a practising Senior Counsel;
or
9.2.3 primarily a technical matter, a suitably qualified
person.
9.3 The appointment of the arbitrator shall be agreed upon between
the Parties in writing but, failing agreement between them,
within a period of 14 (fourteen)
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days after the arbitration has been demanded in terms of clause
9.1, any Party shall be entitled to request the President for
the time being of the Law Society of the Northern Provinces to
make the appointment, who shall, in making his appointment, to
have regard to the nature of the dispute.
9.4 The arbitrator shall have the powers conferred upon an
arbitrator under the Arbitration Act, 1965 (as amended), but
shall not be obliged to follow the procedures prescribed in that
Act and shall be entitled to decide on such procedures as he may
consider desirable for the speedy determination of the dispute,
and in particular he shall have the sole and absolute discretion
to determine whether and to what extent it shall be necessary to
file pleadings, make discovery of documents or hear oral
evidence.
9.5 The decision of the arbitrator shall be final and binding on the
Parties and may be made an order of any court of competent
jurisdiction. The Parties hereby submit themselves to the
non-exclusive jurisdiction of the Witwatersrand Local Division
of the High Court of South Africa, or any successor thereto,
should any Party wish to make the arbitrator's decision an order
of that Court.
10. GENERAL
10.1 COMMUNICATIONS BETWEEN THE PARTIES
All notices and demands given by or on behalf of either Party to
the other shall be in English or accompanied by a certified
translation into English.
10.2 REMEDIES
No remedy conferred by this Agreement is intended to be
exclusive of any other remedy which is otherwise available at
law, by statute or otherwise. Each remedy shall be cumulative
and in addition to every other remedy given hereunder or now or
hereafter existing at law, by statute or otherwise. The election
of any one or more remedy by any of the Parties shall not
constitute a waiver by such Party of the right to pursue any
other remedy.
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10.3 SEVERANCE
If any provision of this Agreement, which is not material to its
efficacy as a whole, is rendered void, illegal or unenforceable
in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby and the Parties shall endeavour
in good faith to agree an alternative provision to the void,
illegal or unenforceable provision.
10.4 SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS
Termination of this Agreement for any cause shall not release a
Party from any liability which at the time of termination has
already accrued to such Party or which thereafter may accrue in
respect of any act or omission prior to such termination.
10.5 COSTS
Each Party shall bear its own costs incurred by it to its
attorneys and other professional advisors for the preparation
and signing of this Agreement.
10.6 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
Parties in relation to its subject matter and save as otherwise
expressly provided no modification, amendment or waiver of any
of the provisions of this Agreement or any agreement to cancel
or terminate it shall be effective unless made in writing
specifically referring to this Agreement and duly signed by the
Parties.
10.7 NO PARTNERSHIP
Nothing in this Agreement shall be deemed to constitute a
partnership between the Parties (or any of them) or constitute
any Party the agent of any other Party for any purpose.
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10.8 FURTHER ASSURANCE
Each Party shall co-operate with the other Party and execute and
deliver to the other Party such other instruments and documents
and take such other actions as may be reasonably requested from
time to time in order to carry out, evidence and confirm the
rights and the intended purpose of this Agreement.
10.9 COUNTERPARTS
This Agreement may be signed in any number of counterparts, all
of which taken together shall constitute one and the same
instrument. Any Party may enter into this Agreement by signing
any such counterpart.
10.10 SUCCESSORS BOUND
This Agreement shall be binding on and shall inure for the
benefit of the successors and assigns and personal
representatives (as the case may be) of each of the Parties.
10.11 GOOD FAITH
Each of the Parties undertakes with each of the others to do all
things reasonably within its power which are necessary or
desirable to give effect to the spirit and intent of this
Agreement.
10.12 ASSIGNMENT
The Lender shall be entitled to assign all of its rights and
obligations under this Agreement without the consent of the
Borrower and the Borrower shall not be entitled to delegate any
of its obligations under this Agreement.
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SIGNED at Johannesburg on 12 June 2002.
For: DURBAN ROODEPOORT DEEP,
LIMITED
/s/ Mark Wellesley-Wood
----------------------------------------
Signatory: Mark Wellesley-Wood
Capacity: Director
Authority: Resolution
SIGNED at on 2002.
For: KHUMO BATHONG HOLDINGS
(PROPRIETARY) LIMITED
/s/ M.P. Ncholo
----------------------------------------
Signatory: M.P. Ncholo
Capacity: CEO
Authority: Resolution
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ANNEXURE A TO THE LOAN AGREEMENT
PLEDGE AGREEMENT
between :
DURBAN ROODEPOORT DEEP, LIMITED
and
KHUMO BATHONG HOLDINGS (PROPRIETARY) LIMITED
BOWMAN GILFILLAN INC.
9th Floor, Twin Towers West
Sandton City
Sandton, 2146
Telephone: (011) 881-9800
Fax: (011) 883-4505
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TABLE OF CONTENTS
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1. DEFINITIONS................................................................3
2. CONDITION PRECEDENT........................................................5
3. PLEDGE.....................................................................5
4. DURATION OF PLEDGE.........................................................6
5. DELIVERY OF SHARE CERTIFICATES.............................................6
6. PRIOR PLEDGES..............................................................6
7. EVENT OF DEFAULT...........................................................6
8. POWER OF ATTORNEY..........................................................8
9. CERTIFICATE OF INDEBTEDNESS................................................8
10. NOTICES....................................................................9
11. GENERAL...................................................................10
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WHEREAS:
A. DRD and KBH have entered into the Loan Agreement in terms of which DRD
agreed to lend to KBH, and KBH agreed to borrow from DRD, an amount of
R5 276 550 (five million two hundred and seventy thousand and five
hundred and fifty Rand).
B. One of the requirements of the Loan Agreement is that KBH must pledge 48
928 824 (forty eight million nine hundred and twenty eight thousand
eight hundred and twenty four) ordinary shares of R1 (one Rand) each in
the issued share capital of ERPM to DRD, as security for the Loan.
C. This Agreement is intended to record the terms of that pledge.
THE PARTIES ACCORDINGLY RECORD THAT:
1. DEFINITIONS
For the purposes of this Agreement, and the preamble, unless the context
indicates otherwise, the words and expressions set out below shall have
the meanings assigned to them, namely:
1.1 "this Agreement" means this pledge agreement;
1.2 "Business Day" means any day other than a
Saturday, Sunday or statutory
holiday in South Africa;
1.3 "KBH" means Khumo Bathong Holdings
(Proprietary) Limited, a company
registered in accordance with the
laws of South Africa under
Registration Number 1998/007456/06;
1.4 "DRD" means Durban Roodepoort Deep,
Limited, a company registered in
accordance with the laws of South
Africa under Registration Number
1895/000926/06;
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1.5 "Effective Date" means the date and time on which
this Agreement becomes
unconditional in terms of clause 2;
1.6 "ERPM" East Rand Proprietary Mines
Limited, a company registered in
accordance with the laws of the
South Africa under Registration
Number 1893/000773/06;
1.7 "Event of Default" means any one of the events
specified in clause 7;
1.8 "Loan" means the amount of R5 276 550
(five million two hundred and
seventy six thousand and five
hundred and fifty Rand) which KBH
agreed to borrow from DRD, and DRD
agreed to lend to KBH, in terms of
the Loan Agreement;
1.9 "Loan Agreement" means the Loan Agreement in terms
of which DRD agreed to lend to KBH,
and KBH agreed to borrow from DRD
and to which this Agreement is
attached as Annexure A;
1.10 "DRD" means Durban Roodepoort Deep,
Limited, a company registered in
accordance with the laws of South
Africa under Registration Number
1895/000926/06;
1.11 "Parties" means the DRD and KBH and "Party"
means either one of them;
1.12 "Pledged Shares" means 48 928 824 (forty eight
million nine hundred and twenty
eight thousand eight
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hundred and twenty four) ordinary
shares of R1 (one Rand) each in the
issued share capital of ERPM;
1.13 "South Africa" means the Republic of South Africa
as constituted from time to time;
and
1.14 "Signature Date" means the last date on which this
Agreement is signed by the Parties.
2. CONDITION PRECEDENT
The whole of this Agreement (except for this clause 2 and clauses 1, 10,
ERROR! REFERENCE SOURCE NOT FOUND. and 11) shall be subject to the
condition precedent that the Loan Agreement is duly entered into by the
Parties and that the condition precedent to which it is subject is
fulfilled, failing which this Agreement will not take effect and the
Parties shall have no claim against each other of any nature whatsoever
arising from the provisions of this Agreement.
3. PLEDGE
3.1 KBH agrees to pledge all of the Pledged Shares to DRD, which
accepts such pledge, upon and subject to the terms and
conditions of this Agreement, as security for all of the
obligations of KBH under the Loan Agreement.
3.2 In order to perfect the pledge of the Pledged Shares, KBH
hereby, and with effect from the Effective Date, cedes to DRD,
which accepts such cession, all of the Pledged Shares together
with all its rights in and under those shares.
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4. DURATION OF PLEDGE
The pledge of the Pledged Shares referred to in clause 3 shall take
effect on the Effective Date and shall remain in force as a continuing
covering security until all of KBH's obligations under the Loan
Agreement have been fulfilled.
5. DELIVERY OF SHARE CERTIFICATES
5.1 KBH shall, upon the Effective Date deliver to DRD the share
certificates for the Pledged Shares and do everything else which
may be required of it in order further to perfect this Agreement
in so far as may be necessary.
5.2 KBH and DRD shall ensure that the share certificates delivered
in terms of clause 5.1 are endorsed to the effect that the
Pledged Shares have been pledged and ceded to DRD, and KBH shall
procure that the register of members of ERPM also contains a
reference to that fact.
6. PRIOR PLEDGES
KBH hereby warrants that it has not pledged or ceded any of the Pledged
Shares or any rights in and to any of the Pledged Shares to any other
person and that the Pledged Shares and all rights in and to them are
free of any encumbrance and are capable of being pledged and ceded by
KBH without restriction. If it so transpires that KBH has so pledged or
ceded the Pledged Shares or any rights in and to them then, without
prejudice to any rights which DRD may have as a result of the breach of
this warranty, this Agreement shall constitute a cession of all of KBH's
rights against any such prior pledgee or cessionary.
7. EVENT OF DEFAULT
7.1 For the purposes of this Agreement, each of the following events
shall be regarded as an Event of Default by KBH:
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7.1.1 if KBH commits a breach of any of its obligations under
the Loan Agreement or any of the terms of this Agreement
and fails to remedy the breach within 14 (fourteen) days
of receiving written notice to do so; or
7.1.2 if any provisional or final order is made or an
effective resolution is passed for the winding up of
KBH; or
7.1.3 if any provisional or final order is made for the
judicial management of KBH; or
7.1.4 if KBH enters into any scheme of arrangement or
compromise with its creditors or any class of them.
7.2 Should any Event of Default occur, DRD shall be entitled,
without an order of court, and is irrevocably authorised in rem
suam:
7.2.1 to claim immediate payment of all monies owed under by
KBH the Loan Agreement whether or not they are then due;
7.2.2 to exercise in such manner as DRD deems fit all of DRD's
rights in respect of the Pledged Shares, including but
not limited to, all voting rights attaching to the
Pledged Shares and the right to requisition any meeting
of ERPM for any purpose whatsoever;
7.2.3 for the purposes of exercising the rights referred to in
clause 7.2.2, to have the Pledged Shares registered in
DRD's name or in the name of DRD's nominee(s) in ERPM's
register of members;
7.2.4 to sell the whole or any part of the Pledged Shares to
such person in such manner and on such terms and
conditions as DRD deems fit or purchase the Pledged
Shares itself, but always at a fair price, and to have
the Pledged Shares transferred to any such person or to
it itself pursuant to any such purchase;
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7.2.5 for the purposes of any sale in terms of clause 7.2.4,
to institute any legal proceedings which DRD may deem
necessary and give effective receipts for the discharge
of the purchase price of any of the Pledged Shares so
sold by DRD, provided that after the payment of all
costs and expenses in connection with any such sale or
legal proceedings and all amounts secured by this
Agreement, any balance of the proceeds of any such sale
shall be paid to KBH;
7.2.6 to sign in KBH's name and on KBH's behalf all transfer
forms and other documents which may be required to give
effect to the transfer of the Pledged Shares or any part
of them in terms of any sale or purchase effected in
terms of clause 7.2.4; and
7.2.7 generally to do everything else which may be required by
DRD and to sign any document which it considers
necessary for the purposes of or to give effect to DRD's
rights hereunder.
8. POWER OF ATTORNEY
Pursuant to this Agreement, and notwithstanding the provisions of clause
8 above, KBH hereby grants DRD an irrevocable power of attorney, in rem
suam, to exercise all the rights of action and powers and rights
accruing to DRD as the pledgee of the Pledged Shares and to institute
whatsoever legal proceedings DRD may consider necessary to prove its
right and title as the pledgee of the Pledged Shares.
9. CERTIFICATE OF INDEBTEDNESS
A certificate signed by DRD showing the amount of KBH's indebtedness to
DRD or any dividends, moneys, shares or other assets received by KBH in
respect of the Pledged Shares or the proceeds of any sale, disposal or
realisation of the Pledged Shares or any part thereof, in each case at
the date of that certificate, shall be -
9.1 prima facie evidence of amounts and other particulars shown in
that certificate; and
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9.2 binding on KBH (unless it proves the incorrectness of the
certificate) in any proceedings instituted in any competent
court for the purposes of obtaining provisional sentence or
judgement against it.
10. NOTICES
10.1 Any notice or other formal communication to be given under this
Agreement shall be in writing and signed by or on behalf of the
Party giving it and may be served by sending it by fax,
delivering it by hand or sending it by registered mail with
acknowledgement of receipt to the address and for the attention
of the relevant Party set out in clause 10.2 (or as otherwise
duly notified from time to time). Any notice so served by hand,
fax or post shall be deemed to have been received:
10.1.1 in the case of delivery by hand or mail, when delivered;
10.1.2 in the case of fax, 12 (twelve) hours after the time of
dispatch;
provided that, where (in the case of delivery by hand or by
fax), such delivery or transmission occurs after 18h00 on a
Business Day or on a day which is not a Business Day, service
shall be deemed to occur at 09h00 on the next following Business
Day. References to time in this clause are to local time in the
country of the addressee.
10.2 The Parties choose for the purposes of this Agreement the
following addresses:
10.2.1 DRD: 45 Empire Road
Parktown
Johannesburg
South Africa
Attn: The Company Secretary
Fax No: 011 482 1022
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10.2.2 KBH: ERPM
Main Office
Cnr Main Reef and Pretoria Road
Boksburg
Attn: Dr P Ncholo
Fax No: 011 917 2542
10.3 In proving such service it shall be sufficient to prove that the
envelope containing such notice was properly addressed and
delivered to the address shown thereon or that the fax was sent
after obtaining in person or by telephone appropriate evidence
of the capacity of the addressee to receive the same, as the
case may be.
10.4 All notices or formal communications under or in connection with
this Agreement shall be in the English language or, if in any
other language, accompanied by a translation into English. In
the event of any conflict between the English text and the text
in any other language, the English text shall prevail.
11. GENERAL
11.1 COMMUNICATIONS BETWEEN THE PARTIES
All notices and demands given by or on behalf of either Party to
the other shall be in English or accompanied by a certified
translation into English.
11.2 REMEDIES
No remedy conferred by this Agreement is intended to be
exclusive of any other remedy which is otherwise available at
law, by statute or otherwise. Each remedy shall be cumulative
and in addition to every other remedy given hereunder or now or
hereafter existing at law, by statute or otherwise. The election
of any one or more remedy by any of the Parties shall not
constitute a waiver by such Party of the right to pursue any
other remedy.
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11.3 SEVERANCE
If any provision of this Agreement, which is not material to its
efficacy as a whole, is rendered void, illegal or unenforceable
in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby and the Parties shall endeavour
in good faith to agree an alternative provision to the void,
illegal or unenforceable provision.
11.4 SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS
Termination of this Agreement for any cause shall not release a
Party from any liability which at the time of termination has
already accrued to such Party or which thereafter may accrue in
respect of any act or omission prior to such termination.
11.5 COSTS
Each Party shall bear its own costs incurred by it to its
attorneys and other professional advisors for the preparation
and signing of this Agreement.
11.6 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
Parties in relation to its subject matter and save as otherwise
expressly provided no modification, amendment or waiver of any
of the provisions of this Agreement or any agreement to cancel
or terminate it shall be effective unless made in writing
specifically referring to this Agreement and duly signed by the
Parties.
11.7 FURTHER ASSURANCE
Each Party shall co-operate with the other Party and execute and
deliver to the other Party such other instruments and documents
and take such other actions as may be reasonably requested from
time to time in order to carry
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out, evidence and confirm the rights and the intended purpose of
this Agreement.
11.8 COUNTERPARTS
This Agreement may be signed in any number of counterparts, all
of which taken together shall constitute one and the same
instrument. Any Party may enter into this Agreement by signing
any such counterpart.
11.9 SUCCESSORS BOUND
This Agreement shall be binding on and shall inure for the
benefit of the successors and assigns and personal
representatives (as the case may be) of each of the Parties.
11.10 GOOD FAITH
Each of the Parties undertakes with each of the others to do all
things reasonably within its power which are necessary or
desirable to give effect to the spirit and intent of this
Agreement.
SIGNED at on 2002.
For: DURBAN ROODEPOORT DEEP,
LIMITED
----------------------------------------
Signatory:
Capacity:
Authority:
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SIGNED at on 2002.
For: KHUMO BATHONG HOLDINGS
(PROPRIETARY) LIMITED
----------------------------------------
Signatory:
Capacity:
Authority: