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EXHIBIT 4.44
MEMORANDUM OF LOAN AGREEMENT NO. 3
between :
CROWN CONSOLIDATED GOLD RECOVERIES LIMITED
and
CROWN GOLD RECOVERIES (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. THE FIRST LOAN............................................................6
3. THE SECOND LOAN...........................................................6
4. THE THIRD LOAN............................................................7
5. UNDERTAKINGS BY THE BORROWER..............................................7
6. EVENTS OF DEFAULT.........................................................8
7. CESSION AND DELEGATION BY THE LENDER.....................................10
8. CESSION AND DELEGATION BY THE BORROWER...................................11
9. NOTICES..................................................................11
10. ARBITRATION..............................................................12
11. GENERAL..................................................................13
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WHEREAS:
A. This Memorandum records 3 (three) interest free loans made by the Lender to
the Borrower on the terms and subject to the conditions recorded in this
Memorandum.
B. In terms of the First Loan, the Lender agreed to lend to the Borrower, who
agreed to borrow from the Lender, the amount of R125 106 116 (one hundred
and twenty five million, one hundred and six thousand and one hundred and
sixteen Rand), which entire amount has been drawn down by the Borrower.
C. In terms of the Second Loan, the Lender agreed to lend to the Borrower, who
agreed to borrow from the Lender, the amount of R40 000 000 (forty million
Rand), which entire amount has been drawn down by the Borrower.
D. In terms of the Third Loan, the Lender agreed to lend to the Borrower, who
agreed to borrow from the Lender, the amount of R25 000 000 (twenty five
million Rand), which amount was credited to the loan account of the Lender
against the Company in terms of an agreement dated 13 November 1997.
E. The Borrower and the Lender wish to record the terms and conditions of the
First Loan, the Second Loan and the Third Loan in this Memorandum.
THE PARTIES ACCORDINGLY RECORD THAT :
1. DEFINITIONS
For the purposes of this Memorandum, 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 "Business Day" means any day other than a Saturday, Sunday or
statutory holiday in South Africa;
1.2 "Borrower" means Crown Gold Recoveries (Proprietary)
Limited, a company registered in accordance with
the laws of South Africa under Registration
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Number 1988/005155/07;
1.3 "Event of Default" means any one of the events specified in
clause 6;
1.4 "First Loan" means the amount of R125 106 116 (one hundred
and twenty five million and one hundred and six
thousand and one hundred and sixteen Rand) which
the Borrower agreed to borrow from the Lender
and which the Lender agreed to lend to the
Borrower and which entire amount has been drawn
down by the Borrower and is still outstanding;
1.5 "Indebtedness" means any loan, debt, guarantee, indemnity or
other obligation now or hereafter existing
valued in excess of R500 000 (five hundred
thousand Rand);
1.6 "Loans" means the First Loan, the Second Loan and the
Third Loan and "Loan" shall mean any of these 3
(three) loans;
1.7 "the Lender" means Crown Consolidated Gold Recoveries
Limited, a company registered in accordance with
the laws of South Africa under Registration
Number 1997/007865/06;
1.8 "this Memorandum" means this memorandum of loan agreement;
1.9 "Parties" means the Borrower and the Lender and "Party"
means either one of them;
1.10 "Prime Rate" shall mean the publicly quoted basic rate of
interest generally levied by The Standard Bank
of
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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;
1.11 "Second Loan" means the amount of R40 000 000 (forty million
Rand) which the Borrower agreed to borrow from
the Lender and which the Lender agreed to lend
to the Borrower and which entire amount has been
drawn down by the Borrower and is still
outstanding;
1.12 "Signature Date" means the date of last signature of this
Memorandum;
1.13 "South Africa" means the Republic of South Africa as
constituted from time to time; and
1.14 "Third Loan" means the amount of R25 000 000 (twenty five
million Rand) which the Borrower agreed to
borrow from the Lender and which the Lender
agreed to lend to the Borrower and which amount
was credited to the loan account of the Lender
against the Company in terms of an agreement
dated 13 November 1997 and which amount is still
outstanding.
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2. THE FIRST LOAN
2.1 It is recorded that the Lender agreed to lend to the Borrower, and the
Borrower borrowed from the Lender, the First Loan on the following
terms:
2.1.1 the First Loan I was unsecured, interest free; and
2.1.2 the First Loan was repayable on demand.
2.2 Notwithstanding the provisions of clause 2.1 above, the Parties now
hereby agree that from the Signature Date, the First Loan will start
bearing interest at the Prime Rate plus 15% (fifteen per cent) of the
Prime Rate which interest will be payable annually in arrear on the
3rd (third) Business Day after each anniversary of the Signature Date,
and the capital amount of the First Loan will be repayable within 7
(seven) years of the Signature Date.
3. THE SECOND LOAN
3.1 It is recorded that the Lender agreed to lend to the Borrower, and the
Borrower borrowed from the Lender, the Second Loan on the following
terms:
3.1.1 the Second Loan was unsecured, interest free; and
3.1.2 the Second Loan was repayable on demand.
3.2 Notwithstanding the provisions of clause 3.1 above, the Parties now
hereby agree that from the Signature Date, the Second Loan will start
bearing interest at the Prime Rate plus 15% (fifteen per cent) of the
Prime Rate which interest will be payable annually in arrear on the
3rd (third) Business Day after each anniversary of the Signature Date
and the capital amount of the Second Loan will be repayable within 7
(seven) years of the Signature Date.
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4. THE THIRD LOAN
4.1 It is recorded that the Lender agreed to lend to the Borrower and the
Borrower borrowed from the Lender the Third Loan on the following
terms:
4.1.1 the Third Loan was unsecured, interest free; and
4.1.2 the Third Loan was repayable on demand.
4.2 Notwithstanding the provisions of clause 4.1 above, the Parties now
hereby agree that from the Signature Date, the Third Loan will start
bearing interest at the Prime Rate plus 15% (fifteen per cent) of the
Prime Rate, which interest will be payable annually in arrear on the
3rd (third) Business Day after each anniversary of the Signature Date,
and the capital amount of the Third Loan will be repayable within 7
(seven) years of the Signature Date.
5. UNDERTAKINGS BY THE BORROWER
5.1 The Borrower undertakes to the Lender that until all the Loans have
been repaid in full by the Borrower to the Lender:
5.1.1 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;
5.1.2 the Borrower will continue its business, being the conduct of
mining operations, including but not limited to the re-treatment
of sand dumps, slime dumps and archive material deposits;
5.1.3 the Borrower shall maintain in full force and effect all
authorisations, approvals, licences, registrations, consent or
declarations from all
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legislative bodies of government, ministries, agencies or other
authorities required by the laws of South Africa or otherwise
appropriate in order for the Borrower-
5.1.3.1 to incur the obligations expressed to be assumed by it in or
pursuant to this Memorandum;
5.1.3.2 to execute and deliver all other documents and instruments
to be delivered by it pursuant to this Memorandum;
5.1.3.3 to perform and observe the terms and provisions of this
Memorandum;
5.1.3.4 to make all payments expressed to be required under this
Memorandum; and
5.1.3.5 to render this Memorandum legal, valid, binding, enforceable
and admissible in evidence.
5.2 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 Memorandum.
6. EVENTS OF DEFAULT
6.1 With regard to the Loans, if:
6.1.1 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
Memorandum; or
6.1.2 a moratorium is declared on the discharge of Indebtedness of the
Borrower or the Borrower is unable to pay its debts generally as
they
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become due and payable or stops or threatens to stop or suspends
payment of any sum over R500 000 (five hundred thousand Rand)
expressed to be payable by it in or pursuant to this Memorandum
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
6.1.3 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 Memorandum; or
6.1.4 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 Memorandum 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 Memorandum or the legality, validity,
enforceability, binding nature or admissibility in evidence of
this Memorandum; or
6.1.5 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 Memorandum,
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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. At any
time after the occurrence of an Event of Default the Lender may, by
written notice to the Borrower, declare the First Loan, the Second
Loan and Third Loan to be immediately due and payable.
6.2 If the Loans are declared immediately due and payable pursuant to
clause 6.1, the Borrower shall immediately pay to the Lender the
amount due under the Loans.
7. CESSION AND DELEGATION BY THE LENDER
7.1 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 Memorandum to another person (an "Assignee").
7.2 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.
7.3 If the Lender cedes any part of its rights and benefits and delegates
any part of its obligations under this Memorandum then all references
in this Memorandum to the Lender shall thereafter be construed as
references to the Lender and its Assignee to the extent of their
respective participations.
7.4 The expression "Lender" wherever used in this Memorandum shall include
every Assignee of the Lender and every successor in title of any such
Assignee or of the Lender.
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8. CESSION AND DELEGATION BY THE BORROWER
The rights and obligations of the Borrower under this Memorandum 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
Memorandum either in whole or in part.
9. NOTICES
9.1 Any notice or other formal communication to be given under this
Memorandum 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 9.2 (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:
9.1.1 in the case of delivery by hand or mail, when delivered;
9.1.2 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.
9.2 The Parties choose for the purposes of this Memorandum the following
addresses:
9.2.1 The Lender: 45 Empire Road
Parktown
Johannesburg
South Africa
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Attn: The Company Secretary
Fax No: 011 482-1022;
9.2.2 The Borrower: 45 Empire Road
Parktown
Johannesburg
South Africa
Attn: The Company Secretary
Fax No: 011 482-1022.
9.3 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.
9.4 All notices or formal communications under or in connection with this
Memorandum 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.
10. ARBITRATION
10.1 Any dispute arising out of this Memorandum 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.
10.2 There shall be 1 (one) arbitrator who shall be, where the question and
issue is:
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10.2.1 primarily an accounting matter, an independent chartered
accountant of 10 (ten) years standing;
10.2.2 primarily a legal matter, a practising Senior Counsel; or
10.2.3 primarily a technical matter, a suitably qualified person.
10.3 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) days after the arbitration has been demanded
in terms of clause 10.1, 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.
10.4 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.
10.5 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.
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.
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11.2 REMEDIES
No remedy conferred by this Memorandum 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.
11.3 SEVERANCE
If any provision of this Memorandum, 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 Memorandum 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 Memorandum.
11.6 ENTIRE AGREEMENT
This Memorandum 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 Memorandum or any agreement to cancel or terminate it shall be
effective
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unless made in writing specifically referring to this Memorandum and
duly signed by the Parties.
11.7 NO PARTNERSHIP
Nothing in this Memorandum 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.
11.8 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 Memorandum.
11.9 COUNTERPARTS
This Memorandum 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 Memorandum by signing any such counterpart.
11.10 SUCCESSORS BOUND
This Memorandum 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.
11.11 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 Memorandum.
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SIGNED at Johannesburg on 12 June 2002.
For: CROWN CONSOLIDATED GOLD
RECOVERIES LIMITED
/s/ Mark Wellesley-Wood
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Signatory: Mark Wellesley-Wood
Capacity: Director
Authority: Resolution
SIGNED at Johanesburg on 12 June 2002.
For: CROWN GOLD RECOVERIES
(PROPRIETARY) LIMITED
/s/ Mark Wellesley-Wood
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Signatory: Mark Wellesley-Wood
Capacity: Director
Authority: Resolution