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EXHIBIT 4.48
AGREEMENT
Amongst
DURBAN ROODEPOORT DEEP, LIMITED
and
WEST WITWATERSRAND GOLD MINES LIMITED
and
BOPHELO TRADING (PROPRIETARY) LIMITED
DENEYS REITZ
ATTORNEYS
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TABLE OF CONTENTS
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1. PARTIES...................................................................4
2. INTERPRETATION............................................................5
3. INTRODUCTION..............................................................8
4. SALE......................................................................8
5. PURCHASE CONSIDERATION....................................................8
6. PERMITS..................................................................10
7. INTERIM PERIOD...........................................................11
8. LIABILITIES..............................................................12
9. DELIVERY.................................................................13
10. VOETSTOOTS..............................................................14
11. SALE AS A GOING CONCERN.................................................14
12. ACKNOWLEDGEMENT BY BT...................................................15
13. EMPLOYEES...............................................................16
14. RESOLUTIVE CONDITIONS...................................................17
15. REHABILITATION..........................................................18
16. SECURITY................................................................19
17. WARRANTY................................................................19
18. BREACH..................................................................20
19. DOMICILIUM..............................................................21
20. GOVERNING LAW...........................................................22
21. WHOLE AGREEMENT.........................................................22
22. COSTS...................................................................22
23. TRANSACTIONS INDIVISIBLE................................................23
24. BOOKS, RECORDS, DOCUMENTS...............................................23
25. DISPUTES................................................................23
26. ARBITRATION.............................................................23
27. CESSION.................................................................25
28. INSURANCE...............................................................25
29. INSOLVENCY ACT ADVERTISEMENTS...........................................25
30. WEST WITS RETAINED RIGHT TO MINE........................................25
31. AMANZI WATER TREATMENT PROJECT..........................................26
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ANNEX 1 DIAGRAM OF WEST WITS
ANNEX 2 SURFACE RIGHT PERMIT LIST
ANNEX 2A SURFACE RIGHT PERMIT PLAN
ANNEX 3 EMPLOYEES
ANNEX 4 WEST WITS CADASTRAL PLAN
ANNEX 5 WEST WITS PLANT COMPONENTS
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AGREEMENT
1. PARTIES
1.1 DURBAN ROODEPOORT DEEP, LIMITED
(a company duly incorporated in the Republic of South Africa under
Registration No. 1895/000926/06 and having its principal place of
business at 45 Empire Road, Parktown, Johannesburg)
("DRD")
1.2 WEST WITWATERSRAND GOLD MINES LIMITED
(a company incorporated in the Republic of South Africa under
Registration No. 1967/013456/06 and having its principal place of
business at 45 Empire Road, Parktown, Johannesburg)
("WEST WITS")
1.3 BOPHELO TRADING (PROPRIETARY) LIMITED
(a private company incorporated in the Republic of South Africa under
Registration No. 1996/010274/07 and having its principal place of
business at The Workshop, 1st Floor, North Wing, 70 - 7th Avenue
Parktown North, Johannesburg)
("BT')
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2. INTERPRETATION
2.1 The headnotes to the clauses of this Agreement are inserted for
reference purposes only and shall in no way govern or effect the
interpretation hereof.
2.2 Unless inconsistent with the context, the expressions set forth below,
whether used as verb or a noun, shall bear the following meanings :
"the Act" the Minerals Act, No. 50 of 1991.
of the Republic, as amended;
"this Agreement" this Agreement read with all the
annexes hereto;
"BT" as defined in the description of
the parties above;
"Day" any day other than a Saturday,
Sunday or an official public
holiday;
"Confidential Information" all information or data whether
written, oral or in any other form
concerning the West Wits Plant
Enterprise furnished to BT by or on
behalf of DRD or WEST WITS
including any documents and
information prepared or generated
from such information;
"DRD" as defined in the description of
the parties above;
"Effective Date" the date upon which the mining
authorisations referred to in
clause 6 are issued to BT;
"Effective Date Accounts" the accounts of the West Wits Plant
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Enterprise as at the Effective
Date, to be prepared in accordance
with clause 7.6;
"the Interim Period" the period between the Signature
Date and the Effective Date;
"the North Sand Dump" the removable surface material
located on the area on the eastern
side of the boundary line depicted
on Annexe 1 pertaining to Surface
Right Permit A 51 /1957 and the
North plant clean up and
rehabilitation area depicted on
Annexe 1, which areas shall be
surveyed, at the cost of BT as soon
as reasonably possible after the
Signature Date and such surveyed
diagram shall be attached to this
agreement in replacement of Annexe
1;
"the parties/a party" shall mean any or all of DRD, WEST
WITS or BT, or any combination of
them as the context may indicate;
"Republic" the Republic of South Africa as
constituted from time to time;
"Signature Date" the date upon which the last party
signs this Agreement;
"Signature Date Accounts" the accounts of the West Wits Plant
Enterprise, to be agreed between
the parties as soon as possible
after the Signature Date, as at the
Signature Date;
"Surface Right Permits" the Surface Rights Permits listed
in Annexe 2 hereto;
"Transferring Employees" the persons employed at the Wesy
Wits
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Plant Enterprise as listed in
Annexe 3 hereto;
"WEST WITS" as defined in the description of
the parties above;
"West Wits Freehold" Portion 66 of the Farm Waterval,
Registration Division I.Q., Gauteng
Province, measuring 29,0172
hectares, held under Deed of
Transfer No. T 39468/1992, depicted
in green on the sketch annexed
hereto as Annexe 4;
"the West Wits Plant" the movable and removable tangible
assets described in Annexe 5;
"the West Wits Plant Enterprise" the enterprise of recovering gold
carried on by WEST WITS, as a going
concern, utilising the West Wits
Plant to process the North Sand
Dump, the West Wits Surface
Materials, the West Wits Freehold,
and the Surface Right Permits;
"West Wits Surface Materials" the surface materials being sand,
slime or archive materials and
waste rock, which are not subject
to any third party rights as
disclosed in this Agreement,
located on the surface of the area
of Mining Licence No. 9/2000;
2.3 Unless inconsistent with the context, an expression which denotes :
2.3.1 any gender includes the other genders;
2.3.2 a natural person includes an artificial person and vice versa;
2.3.3 the singular includes the plural and vice versa.
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2.4 Any annexures and schedules to this Agreement form an integral part
hereof and words and expressions defined in this Agreement shall bear,
unless the context otherwise requires, the same meaning in such
annexures and schedules.
3. INTRODUCTION
3.1 WEST WITS owns the West Wits Plant Enterprise.
3.2 The parties wish to enter into an agreement in terms of which BT
purchases from WEST WITS the West Wits Plant Enterprise as a going
concern as set out in clause 11.
4. SALE
WEST WITS hereby sells to BT which hereby purchases the West Wits Plant
Enterprise as a going concern with effect from the Effective Date, subject
to the terms and conditions set out in this Agreement.
5. PURCHASE CONSIDERATION
5.1 The purchase consideration payable by BT to WEST WITS in respect of
the West Wits Plant Enterprise is an amount of R25 000 000,00 (twenty
five million Rand).
5.2 The purchase consideration referred to in 5.1 shall be paid by BT to
WEST WITS as follows:
5.2.1 BT has deposited the sum of R2 000 000,00 (two million Rand) with
Deneys Reitz Inc, which amount has been invested in an interest
bearing account in terms of section 78(2A) of the Attorneys Act,
1979, for the benefit of WEST WITS which amount is to be paid to,
together with the accrued interest thereon, to WEST WITS upon the
Signature Date. The patties specifically
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record that this deposit is not refundable to BT irrespective of
whether the resolutive conditions contained in this Agreement are
fulfilled or not.
5.2.2 The balance of R23 000 000,00 (twenty three million Rand) shall
be paid by BT to WEST WITS as follows:
5.2.2.1 the sum of R8 000 000.00 (eight million Rand) on the
Signature Date;
5.2.2.2 the sum of R5 000 000.00 (five million Rand) on the 28th of
June 2002;
5.2.2.3 the sum of R400 000.00 (four hundred thousand Rand) on the
31st of July 2002;
5.2.2.4 the sum of R400 000.00 (four hundred thousand Rand) on the
30th of August 2002;
5.2.2.5 the balance of R9 200 000.00 (nine million two hundred
thousand Rand) in 10 (ten) equal monthly instalments of
R920 000.00 (nine hundred and twenty thousand Rand) each,
the first instalment to be paid on the 30th of September
2002, and thereafter on the last day of each succeeding
month until the balance of the purchase consideration has
been paid in full.
5.2.3 The purchase consideration referred to in clause 5.2.2.1 shall be
paid by BT to WEST WITS by way of a cheque drawn in favour of
West Wits and the balance of the payments thereafter shall be
paid free of set off, deduction, exchange and all charges, into
the following bank account;
5.2.3.1 Bank: Standard Corporate and Merchant Bank
5.2.3.2 Branch: Johannesburg
5.2.3.3 Branch Code: 0205
5.2.3.4 Account Number: 00042463
5.2.3.5 Account Name: DRD Treasury
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5.2.4 No interest shall accrue on the outstanding balance of the
purchase consideration except in the event of BT failing to pay
any amount due to WEST WITS on due date, and failing to remedy
such breach after receipt of a notice in terms of clause 18 in
which event:
5.2.4.1 the full outstanding balance of the purchase consideration
shall immediately become due and payable; and
5.2.4.2 interest shall accrue on the outstanding balance of the
purchase consideration from the date of default to the date
of payment, both days inclusive, calculated and compounded
monthly in arrear at a rate equal to the prime bank
overdraft rate charged by Standard Bank of South Africa
Limited to its commercial customers from time to time. A
certificate signed by any manager of Standard Bank of South
Africa Limited, whose authority it shall not be necessary to
prove, shall be prima facie evidence of the overdraft rate
charged by Standard Bank of South Africa Limited for the
purposes of this clause.
6. PERMITS
6.1 BT shall, as soon as reasonably possible after the Signature Date
apply for all such mining authorisations required by it for the
purposes of conducting the West Wits Plant Enterprise with the
intention that such mining authorisations be obtained by 28 June 2002.
WEST WITS and DRD do hereby grant their consent to the application by
BT for the permits and authorisations contemplated in this clause.
6.2 West Wits, in order to effect delivery of the West Wits Plant
Enterprise in terms of clause 9 shall -
6.2.1 with effect from the Effective Date, abandon its rights in
respect of the portion indicated as the designated area on Annexe
2A in respect of the Surface Right Permit numbered 1 on Annexe 2;
6.2.2 with effect from the Effective Date allow BT the free and
undisturbed use of the pipelines in respect of the Surface Right
Permits numbered 2, 4 and 5 on
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Annexe 2, it being agreed that in the event of the rights of BT
in this regard being suspended or curtailed in any way, the
parties shall negotiate in good faith and to finality such
alternative arrangement so as to give effect to the intention of
the parties set out herein; and
6.2.3 as soon as possible after the Signature Date -
6.2.3.1 apply for the appropriate deduction diagrams to be prepared
in respect of the portions of Surface Rights Permits
numbered 3 and 6 indicated as the designated areas on Annexe
2 (the "Permits") and procure the registration of the
Permits in the name of BT, all at the cost of BT; or
6.2.3.2 if the transfer of the Permits are impossible,
6.2.3.2.1 acquire the surface rights or rights to use the surface
in respect of the areas covered by the aforesaid
deduction diagrams on behalf and in the name of BT and
the registration, if applicable, of such rights in the
name of BT; and
6.2.3.2.2 abandon its rights in respect of the said areas held
under the Permits against such acquisition and
registration, if applicable.
7. INTERIM PERIOD
7.1 For the Interim Period BT shall conduct the business of the West Wits
Plant Enterprise as an independent contractor under the DRD Mining
Licence 9/2000.
7.2 All income earned by the West Wits Plant Enterprise during the Interim
Period shall be paid to BT in its capacity as independent contractor
as a fee for conducting the business of the West Wits Plant Enterprise
for and on behalf of DRD.
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7.3 The disposal of all gold and silver won by the West Wits Plant
Enterprise during the Interim Period shall be sold to Rand Refinery
through the DRD account and DRD shall account to BT for BT's fee
referred to in clause 7.2 within 2 (two) business days of the receipt
of payment from Rand Refinery.
7.4 All expenses and costs to be incurred in respect of the West Wits
Plant Enterprise during the Interim Period shall be controlled and be
ratified by a joint administration committee consisting of 1 (one)
representative of DRD and 1 (one) representative of BT (such committee
to be constituted on the Signature Date), prior to any such
disbursements by DRD. In the absence of agreement in the committee the
matter shall be referred to an auditor of KPMG for resolution within
48 (forty eight) hours of referral, and the decision of the auditor
shall be final and binding on the parties.
7.5 All income received by DRD and due as a fee to BT pursuant to clause
7.3 and all expenses incurred by DRD pursuant to clause 7.4 shall be
set off and the net proceeds, or expenses shall be paid to BT, or by
BT, as the case may be to or by WEST WITS, within 2 (two) days of
receipt of each payment from Rand Refinery.
7.6 DRD shall be responsible for preparing the Effective Date Accounts and
delivering the same to BT within 30 (thirty) days of the Effective
Date.
7.7 It is recorded that the purpose of the Signature Date Accounts and the
Effective Date Accounts will be to provide a record for the
reconciliation of the financial conduct of the West Wits Plant
Enterprise for the Interim Period.
7.8 BT shall be entitled, in terms of the existing authorities held by
WEST WITS to deposit sand and slime produced as a by product of the
West Wits Plant Enterprise into the WEST WITS pit for the duration of
the Interim Period, whereafter BT shall apply for its own
authorisations for the deposits of its waste materials.
8. LIABILITIES
8.1 WEST WITS and DRD, to the extent applicable, (the "Guarantors") shall
remain liable for all liabilities of the West Wits Plant Enterprise up
to and including the Signature Date. Accordingly the Guarantors hereby
indemnify BT against all loss,
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damage or expense which BT may suffer as a result of or which may be
attributable to any liability of the West Wits Plant Enterprise,
whether actual or contingent, the cause of which arose prior to the
Signature Date.
8.2 BT shall notify the Guarantors of any claim which may be made against
BT in respect of any of the matters referred to in clause 8.1 within a
reasonable time of BT becoming aware thereof, to enable the Guarantors
to take appropriate steps in respect of such claim.
8.3 The Guarantors shall be entitled to contest the claim concerned and
shall be entitled to control the proceedings in regard thereto,
provided that the Guarantors indemnify BT against all costs (including
attorney and own client costs and any other costs not recoverable on
taxation) which may be incurred as a consequence of such steps and BT
shall be entitled to require the Guarantors to:
8.3.1 give reasonable security against such costs;
8.3.2 procure the release of any of the assets comprising the West Wits
Plant Enterprise in the event of the attachment of such assets.
8.4 BT shall render reasonable assistance to the Guarantors (at the
expense of the Guarantors ) in regard to the steps taken by the
Guarantors in opposing such claim.
9. DELIVERY
At the close of business on the Effective Date the West Wits Plant
Enterprise shall be deemed to have been delivered by WEST WITS to BT at the
West Wits Plant Enterprise location. Risk in and benefit to the West Wits
Plant Enterprise shall vest in BT with effect from the close of business on
the Effective Date.
9.1 BT shall be liable, at its own cost, for the conduct of any stock
taking by its own employees or auditors for the purposes of verifying
the physical presence of the West Wits Plant, within 2 (two) days of
the Signature Date. In the absence of such stock taking, and in the
absence of any written notification by BT to WEST WITS that any item
covered by the West Wits Plant description in Annexe 5 is not
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present, BT shall be deemed to have received all of the West Wits
Plant described in Annexe 5.
9.2 Notwithstanding the delivery of the West Wits Plant Enterprise and
transfer of the risk and benefit, ownership shall only pass against
payment of the final instalment of the purchase consideration in terms
of clause 5.2.
9.3 Transfer of the West Wits Freehold into the name of BT shall be
registered by Deneys Reitz Inc, upon payment of the final instalment
of the purchase consideration, in terms of clause 5.2.
10. VOETSTOOTS
The West Wits Plant Enterprise is sold to BT voetstoots and in the
condition which it exists, subject to all rights, obligations, terms and
conditions applicable thereto and to existing conditions of title, as at
the Effective Date. BT acknowledges that the Confidential Information was
made available to BT by DRD and WEST WITS prior to the Effective Date to
enable BT to assess and determine whether it wished to purchase the West
Wits Plant Enterprise in terms of this Agreement. BT further acknowledges
that neither DRD nor WEST WITS nor any of their advisors have made any
representations or warranties, express or implied, as to the accuracy,
reliability or completeness of the Confidential Information at any time, it
being recorded that BT has relied on its own judgement to purchase the West
Wits Plant Enterprise.
11. SALE AS A GOING CONCERN
11.1 It is recorded and agreed that
11.1.1 the sale of the West Wits Plant Enterprise is the sale of an
enterprise as a going concern;
11.1.2 the West Wits Plant Enterprise will be an income earning activity
on the Effective Date;
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11.1.3 all the assets which are necessary for carrying on the West Wits
Plant Enterprise are being disposed of by WEST WITS to BT in
terms of this Agreement;
11.1.4 both WEST WITS and BT are registered vendors in terms of the
Value-Added Tax Act.
Accordingly the parties intend that this transaction will be zero-rated
pursuant to the provisions of section 11(1)(e) of the Value-Added Tax Act,
1991. The Sellers will, on this basis, issue a zero-rated tax invoice to
BT. The purchase consideration set out in clause 5 is exclusive of
value-added tax (if any) which may be payable in respect of this
transaction. To the extent that value-added tax may be payable on all or
any part or parts of the West Wits Plant Enterprise WEST WITS shall issue a
credit note for the zero-rated tax invoice and issue a new tax invoice,
appropriately revised, and payment of the value-added tax shall be the sole
liability of BT.
12. ACKNOWLEDGEMENT BY BT
Without limiting the generality of clause 10, BT acknowledges being aware
that:
12.1 Alpha (Proprietary) Limited has rights as referred to in the
agreements as disclosed to BT relating to the rock dump which is
situated on Portion 136 Luipaardsvlei 246 I.Q;
12.2 There are registered third party business stands and Surface Rights
Permits on the surface of the area of Mining Licence No. 9/2000 which
will enure against BT;
12.3 Instant Concrete Products (Proprietary) Limited trading as Rockklip
has the right to the rock dump situated to the north of the northern
part of Portion 66 of the Farm Waterval 174 I.Q. and accordingly that
rock dump is excluded from this sale;
12.4 The supply of water and electricity required by the West Wits Plant
Enterprise are provided by Eskom and the Rand Water Board,
respectively, at supply points on the WEST WITS properties. WEST WITS
has employed the services of C and G Engineering to read the meters
and issue monthly statements reflecting the
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consumption of water and electricity in respect of the West Wits Plant
Enterprise. Accordingly BT shall reimburse WEST WITS for the costs of
all electricity and water consumed by the West Wits Plant Enterprise
with effect from the Signature Date until such time as BT secures its
own supply of water and electricity to the West Wits Plant Enterprise;
12.5 The West Wits Surface Materials exclude all materials excavated by DRD
or WEST WITS from the WEST WITS open pit and deposited on the pit
side;
12.6 Third party consents are required for the cession and delegation of
DRD's rights and obligations under certain lease and rental agreements
referred to in the accounts of DRD to BT. If such consents are not
obtained DRD shall maintain such contracts in force for the benefit of
BT, provided that BT shall reimburse DRD for payments made in respect
thereof.
13. EMPLOYEES
13.1 The parties agree that with effect from the Effective Date, section
197(2) of the Labour Relations Act, 66 of 1995 ("LRA") shall be
applicable to the Transferring Employees and that accordingly the
employment of each Transferring Employee will continue in force with
BT as the new employer in terms of the LRA. Accordingly, and given the
absence of, agreement as referred to in section 197(2) of LRA:
13.1.1 all the rights and obligations between WEST WITS as the "OLD
EMPLOYER" and each Transferring Employee of the West Wits Plant
Enterprise as at the Effective Date will continue in force as if
there were rights, and obligations between BT, as the new
employer and each such Transferring Employee;
13.1.2 anything done before the Effective Date by or in relation to the
"OLD EMPLOYER" will be considered to have been done by or in
relation to the "NEW EMPLOYER".
13.2 BT irrevocably indemnifies and holds WEST WITS harmless against any
claim of whatsoever nature that may arise as a result of BT's failure
to give effect to the provisions of 13.1, including costs and expenses
incurred by WEST WITS in defending such claims.
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13.3 WEST WITS warrants that all levies and similar amounts due by WEST
WITS in respect of the Transferring Employees relating to UIF, PAYE,
SITE, Workmens Compensation Levies, pension contributions and medical
aid contributions shall be paid by WEST WITS up to and including the
Effective Date. WEST WITS shall remain liable for normal accumulated
leave pay in respect of the Transferring Employees up to and including
the Effective Date. WEST WITS shall not be liable for any retrenchment
compensation in respect of any of the transferring Employees.
14. RESOLUTIVE CONDITIONS
14.1 This entire Agreement, save for this clause and clauses 2, 5.2.1,
5.2.2, 18, 19, 20, 21, 22, 25 and 26, is subject to the fulfilment of
the following conditions namely that within a period of 30 (thirty)
days from the Effective Date:
14.1.1 Alpha (Pty) Ltd shall agree to the cession by DRD of all DRD's
rights and obligations under the Agreement referred to in clause
12.1 to BT, and BT shall agree to pay to Alpha (Proprietary)
Limited a royalty of R2.75 per ton of material removed from the
rock dump on Portion 136 Luipaardsvlei 246 I.Q.;
14.1.2 BT shall obtain the approval of the Director: Mineral Development
in terms of the Act for the transfer of all liabilities and
obligations of whatsoever nature and howsoever arising relating
or incidental to the rehabilitation and pollution control of the
North Sand Dump and the West Wits Plant Enterprise from DRD and
WEST WITS to BT;
14.1.3 BT shall deliver guarantees or other security, to the
satisfaction of the Director: Mineral Development, for the
anticipated costs of complying with its obligations under clause
14.1.2, and the concomitant release of DRD and WEST WITS from
that liability; and
14.1.4 the Permits (as defined in clause 6.2.3) being registered in the
name of BT or West Wits having abandoned its rights in terms of
clause 6.2.3.2.2.
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14.2 The following provisions shall apply in regard to the resolutive
conditions in clause 14.1:
14.2.1 the parties will use their best endeavours to procure the
fulfilment of the resolutive conditions timeously;
14.2.2 DRD and/or WEST WITS shall be entitled from time to time to
consent in writing (which consent shall not unreasonably be
withheld), at the request of BT, to the extension of the date for
the fulfilment of the whole or any part or parts of the
resolutive conditions;
14.2.3 unless the resolutive conditions are fulfilled within the period
allowed therefor or such extended period or periods as DRD and/or
WEST WITS may from time to time notify in terms of clause 14.2.2
above, this Agreement shall lapse and be of no further force or
effect and each party shall as far as possible be restored to the
status quo ante, save that WEST WITS shall be entitled to retain
payment of the amount referred to in clause 5.2.1 and shall not
be accountable to BT therefor.
15. REHABILITATION
15.1 BT shall comply with the environmental management program submitted by
DRD and WEST WITS to the Director: Mineral Development in respect of
or incidental to the rehabilitation and pollution control of the West
Wits Plant Enterprise, and specifically the footprint of the West Wits
Surface Materials removed by BT in the conduct of the West Wits Plant
Enterprise.
15.2 BT shall advise WEST WITS within 12 (twelve) months of the Signature
Date which of the WEST WITS Surface Materials it wishes to process for
the recovery of gold. Upon the date of such notification the
obligation to rehabilitate the surface area under the identified
surface materials to be processed by BT, shall pass to BT. Should BT
fail to notify WEST WITS of the areas it wishes to process in terms of
this clause WEST WITS and DRD shall be entitled to proceed with the
rehabilitation of the entire area, or those areas not covered by the
notification referred to in this clause in such manner and at such
time as WEST WITS and/or DRD may in their
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sole discretion determine, without further reference to BT, and BT
shall have no claim against DRD or WEST WITS arising out of such
rehabilitation.
15.3 In relation to the transfer of all liabilities and obligations
relating to or incidental to the rehabilitation and pollution control
of the North Sand Dump and the West Wits Plant Enterprise BT shall
comply with the following acts and the regulations promulgated in
terms thereof all as amended or substituted from time to time, namely,
the Act, the National Water Act of 1998, the Atmospheric Pollution
Prevention Act 45 of 1956, the National Environment Management Act of
1998, and all other laws, regulations, ordinances, by-laws, rules,
lawful directives of State Officials, which are applicable from time
to time, and all conditions subject to which relevant permits,
licences, permissions and other authorisations are granted in respect
of the West Wits Plant Enterprise irrespective of whether such
liabilities and obligations accrued before, on or after the Signature
Date.
15.4 BT hereby indemnifies and holds DRD and WEST WITS and their directors,
officers and employees harmless from and against all loss, damages and
claims of whatsoever nature and howsoever arising which may be
suffered or incurred by or made against one of the indemnified parties
directly or indirectly relating or incidental to the failure by BT to
comply with its obligations in terms of 15.3.
16. SECURITY
It is recorded that at the close of business on the Effective Date WEST
WITS will withdraw all of their security personnel on or about the West
Wits Plant Enterprise and thus the obligation to secure the West Wits Plant
Enterprise shall vest in BT with effect from the close of business on the
Effective Date.
17. WARRANTY
17.1 Without limiting the generality of clause 10 WEST WITS warrants to BT
that:
17.1.1 WEST WITS shall obtain the consent of BOE Limited for the sale
herein contemplated;
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17.1.2 WEST WITS shall obtain the release of the notarial bond granted
to Chase Manhattan Bank Limited over the West Wits Plant;
17.1.3 WEST WITS shall obtain the release of the surety mortgage bond
registered in favour of Chase Manhattan Bank Limited over the
West Wits Freehold,
on or before the 31st of August 2002.
17.2 West Wits and DRD warrants to BT that all of the assets described as
and forming part of the West Wits Plant Enterprise are beneficially
owned by WEST WITS.
18. BREACH
18.1 If at any time any party commits any material breach of the terms and
conditions of this Agreement and fails to remedy such breach within 5
(five) days after the receipt of written notice from the other party
or parties requiring it to remedy such default or such longer period
as may reasonably be required to remedy such default, the aggrieved
party or parties shall have the right at their option, but without
detracting from their further or alternative rights and remedies and
without prejudice to any claim which they may have for damages for
breach of contract or otherwise, to terminate this Agreement, or any
part thereof.
18.2 If the party in breach is BT, and BT fails to remedy its breach within
the 5 (five) day period referred to in clause 18.1 WEST WITS shall be
entitled, without prejudice to any of its rights in terns of clause
18.1, to terminate this Agreement, retain all payments received by it
from BT and retake possession of the West Wits Plant Enterprise.
18.3 Notwithstanding the provisions of 18.1, no party shall be entitled to
exercise or enforce any remedy against another party in relation to
any breach of the terms and conditions of this Agreement:
18.3.1 if this Agreement specifies the steps to be taken in the event of
such breach, unless it takes such steps;
<Page>
Page 21
18.3.2 if this Agreement specifies an alternative remedy for such
breach;
18.3.3 unless the said breach is fundamental, material, and goes to the
root of this Agreement or relates to non-payment of monies.
19. DOMICILIUM
19.1 The parties to this Agreement respectively choose DOMICILIUM CITANDI
ET EXECUTANDI for all purposes of and in connection with this
Agreement as follows
19.1.1 DRD 45 Empire Road
PARKTOWN
2193;
19.1.2 WEST WITS 45 Empire Road
PARKTOWN
2193;
19.1.3 BT c/o Export Venture Capital Corporation
(Proprietary) Limited
The Workshop
1st Floor, North Wing
70 - 7th Avenue
Parktown North
2196
19.2 The parties shall be entitled to change their domicilium from time to
time, provided that any such change shall only be effective upon
receipt of notice in writing by the other party of such change.
19.3 Save as otherwise provided in this Agreement, all notices, demands or
communications intended for either party, shall be made or given at
such party's domicilium for the time being by telex, telefax, telegram
or hand delivery to a responsible employee of the party, and, if by
hand delivery the party to whom such
<Page>
Page 22
notice, demand or communication is addressed will not refuse delivery,
and in the event the delivery is so refused, delivery shall be deemed
to have been made, given and received on the day delivery was so
tendered.
20. GOVERNING LAW
This Agreement shall be governed by the laws of the Republic of South
Africa.
21. WHOLE AGREEMENT
21.1 This Agreement and the annexures hereto shall constitute the whole
agreement between the parties hereto.
21.2 No variation, modification or waiver or cancellation of any provisions
of this Agreement, or consent to any departure therefrom, shall in any
event be of any force or effect unless confirmed in writing and signed
by the parties, and then such variation, modification, waiver,
cancellation or consent shall be effective only in the specific
instance and for the purpose and to the extent for which it was made
or given.
21.3 The parties confirm that, save as specifically set out herein, no
undertakings, representations or warranties have been made by or on
behalf of the other party hereto, relating to this Agreement.
21.4 It is recorded that no oral or written agreement has or will come into
being relating to the matters herein contained, save as herein
contained and signed by the respective parties.
22. COSTS
22.1 All costs relating to the negotiation, preparation, conclusion and
implementation of this Agreement shall be borne and paid by BT.
<Page>
Page 23
22.2 All brokers fees payable upon the conclusion of this transaction shall
be paid by BT on Signature Date.
22.3 All charges incurred in the registration of the transfer of the West
Wits Freehold into the name of BT, including the conveyancing charges
of Deneys Reitz Inc at the recommended conveyancing tariff, shall be
borne by BT.
23. TRANSACTIONS INDIVISIBLE
The transactions contemplated herein are all indivisibly linked so that if
one is incapable of being implemented the others will also be incapable of
being implemented save to the extent recorded in this Agreement.
24. BOOKS, RECORDS, DOCUMENTS
As soon as is reasonably possible after the Signature Date DRD and WEST
WITS shall deliver to BT all books, records and documents relating to the
West Wits Plant Enterprise sold in terms of this Agreement.
25. DISPUTES
The parties shall use their reasonable endeavours to resolve, amongst
themselves any dispute arising out of or in connection with this Agreement,
(including any question regarding its existence, validity, implementation
or termination), failing which the dispute shall be referred to and finally
resolved by arbitration in Johannesburg, in accordance with the provisions
of clause 26.
26. ARBITRATION
Any dispute arising from or in connection with this Agreement shall be
finally resolved in accordance with the Rules of the Arbitration Foundation
of Southern Africa by an arbitrator
<Page>
Page 24
or arbitrators agreed by the parties, and failing such agreement within 10
days of the date of declaration of the dispute, appointed by the
Foundation.
<Page>
Page 25
27. CESSION
None of the parties shall be entitled to cede, assign or otherwise transfer
all or any of its rights, interest or obligations under and in terms of
this Agreement to any person, without the prior written consent of the
other parties, which consents may not be unreasonably withheld.
28. INSURANCE
DRD shall continue to insure the West Wits Plant Enterprise at its cost up
to 31 March 2003, whereafter the obligation to insure the West Wits Plant
Enterprise shall pass to BT with effect from 1 April 2003.
29. INSOLVENCY ACT ADVERTISEMENTS
The parties agree that notice of the sale of the West Wits Plant Enterprise
will not be published as contemplated in section 34 of the Insolvency Act,
No. 24 of 1936 (as amended). Accordingly, each party indemnifies and holds
the other parties harmless from and against any and all loss which each of
the parties may suffer as a result of or arising out of the failure so to
advertise.
30. WEST WITS RETAINED RIGHT TO MINE
30.1 WEST WITS hereby retains the right to mine underground by virtue of
its mining titles and mining authorisations held by it on the property
covered by the West Wits Plant Enterprise. WEST WITS shall use its
Surface Right Permits which pertain to the surface area of the West
Wits Plant Enterprise for the purposes of access to its underground
structures only. In exercising its rights in terms of this Agreement
BT shall at all times not do anything on or about the surface area of
the West Wits Plant Enterprise which would unreasonably restrict WEST
WITS's right to access of its underground mining activities.
<Page>
Page 26
30.2 It is further recorded that WEST WITS has and will retain certain
rehabilitation liabilities in respect of its underground activities on
the areas covered by the shaft equipment areas as depicted on the plan
and sketches on Annexe 2 in respect of the shafts. BT in exercising
its rights in terms hereof shall not do anything which will prejudice
WEST WITS's ability to fulfil its rehabilitation obligations as set
out in its approved environmental management programme.
31. AMANZI WATER TREATMENT PROJECT
DRD shall make available to BT information relating to the Amanzi Water
Treatment Project undertaken by it, provided that such information shall be
deemed to be Confidential Information and shall not be used by BT without
the prior written approval of DRD.
THUS DONE AND SIGNED at JOHANNESBURG on this 12th of June 2002 and in the
presence of the undersigned witnesses:
AS WITNESSES
1. /s/ B. Morton
2. /s/ D. Van den Bergh /s/ Mark Wellesley-Wood
--------------------------------
For and on behalf of DURBAN ROODEPOORT
DEEP, LIMITED
Director
who warrants that he is duly authorised hereto.
<Page>
Page 27
THUS DONE AND SIGNED at JOHANNESBURG on this 12th of June 2002 and in the
presence of the undersigned witnesses:
AS WITNESSES
1. /s/ B. Morton
2. /s/ D. Van den Bergh /s/ Mark Wellesley-Wood
--------------------------------
For and on behalf of WEST WITWATERSRAND
GOLD MINES LIMITED
Director
who warrants that he is duly authorised hereto.
THUS DONE AND SIGNED at JOHANNESBURG on this 12th of June 2002 and in the
presence of the undersigned witnesses:
AS WITNESSES
1. /s/ B. Morton
2. /s/ Frik Blaauw /s/ P. Wesselink
--------------------------------
For and on behalf of BOPHELO TRADING
(PROPRIETARY) LIMITED
Director
who warrants that he is duly authorised hereto.
[AGREEMENT LAST SIGNED ON 12 JUNE 2002]
<Page>
Page 28
ANNEX 1
(DIAGRAM)
ANNEX 2
(DIAGRAM)
ANNEX 2A
(DIAGRAM)
<Page>
Page 29
ANNEXE 3
PAYROLL SYSTEM PRINTED ON 2002/05/27 55 WEST WITS GOLD MINE (PTY) LTD 55 FOR
PERIOD ENDING 2002/05/31 PAGE 1
ANNEX 3
<Table>
<Caption>
BASIC LEAVE START
NAME ID NUMBER SALARY ENT DTE EMP NO
Mitchell Jacobus Hercules 7106135020067 7848.00 24.000 95/05/02 00000034
Lettao Henry Frank Ferreira 5703055099003 16842.00 53.5000 82/10/26 00000095
Meyer Frans Johannes 6506085076081 7113.00 28.9900 00000104
Janse Van Vuuren Pieter Carel 440302031008 10934.00 39.1300 85/01/15 00000105
Matanane Molahleyi 7006275336089 5725.00 26.0000 90/10/01 00000112
Coetzee Dirk Gustavus 6909125045084 7643.00 25.0000 98/10/01 00000266
Steinman Johannes Christiaan 4702215042083 10700.00 32.4100 90/02/19 00000476
Dykman Kennith Vivian J 5912095209004 7838.00 40.0700 98/03/01 00000500
Havenga Hendrik Frederick 580131518081 10800.00 86.8300 91/06/24 00000535
Jordaan Johannes Jacobus 5902115051080 12750.00 29.2000 92/02/01 00000576
Lee Marthinus Christoffel 5001065407006 7838.00 39.0000 92/10/01 00000626
Danielsen Kieth Dallas 4609025156005 11858.00 29.0500 96/01/29 00000681
De Bruyn Pieter Albert 7108225020084 6806.00 23.0300 90/03/09 00001010
Sudja Guidione 6804145938188 1113.00 40.2500 91/01/15 00003043
Simango Johan Thousand 1113.00 16.2500 95/10/11 00003211
Khoza Lawrence 6708175453085 2506.00 25.7500 93/01/05 00003281
Nuvunga Elias Frenque 2506.00 46.2500 93/01/29 00003297
</Table>
<Page>
Page 30
<Table>
<Caption>
BASIC LEAVE START
NAME ID NUMBER SALARY ENT DTE EMP NO
Sechele Mathews 7010045427087 1184.00 27.0300 93/02/05 00003335
Shogole Lupwick Majimetja 5712255973088 2414.00 31.4100 93/03/04 00003338
Ugueio Sabado Luis 1113.00 32.2500 00/09/21 00003344
Qothelo Mzingisi Nicholass 6703165874085 1113.00 22.0700 93/06/03 00003358
Simango Januario Vasco 2506.00 18.2500 94/06/06 00003417
Ndou Lufuno Wilson 6011285321080 1184.00 36.8500 94/01/31 00003460
Mabe Jappie Tshokolo 6703085691080 2506.00 10.9300 94/03/15 00003462
Molise Abednigo Mokoto 6804036182086 1185.00 36.8500 94/02/02 00003463
Nhamusse Joao Raimundo 1113.00 13.2500 84/03/24 00003491
Sithole Samuel Eric 7208235773183 2506.00 62.2500 98/09/29 00003495
Mokobane Isaac Tuki 4601105236088 1113.00 23.0900 94/05/13 00003511
Chivile Antonio Luiza 6208155179180 1113.00 24.1700 94/06/09 00003580
Mathebula Simon 6904015379081 1113.00 14.1700 94/06/10 00003584
Seeri Tatolo Saul 6609015577085 1113.00 28.2500 94/06/28 00003596
Sithole Jerry Phillip 7506235927162 1113.00 22.2500 94/09/06 00003621
Chaya Moises Watche 6707015220183 1113.00 14.5000 94/09/19 00003637
Nyaunda Nelson 6906255766182 2506.00 53.2500 94/10/04 00003650
Sitoe Salvador Sebastiao 6202165151180 1113.00 14.5000 94/11/17 00003698
Simango Zacaria Matheus 6804265344183 1232.00 8.0000 94/11/23 00003723
Gwenzi Paul 7203106625162 1113.00 22.2500 94/12/12 00003785
Mapsanghe Augusto Silvestre 2506.00 27.2500 94/12/19 00003790
Menyuku Malesela Johannes 5811115766086 1184.00 2.2500 98/10/15 00003928
Legoabe Shadrack 7301036270085 1184.00 29.2500 98/11/30 00003960
Ubisse Daniel Isaias 4902105686086 1184.00 34.2500 98/11/30 00003961
Ngxawo Zwelijikile 6002205998081 1113.00 4.2500 99/11/26 00003968
</Table>
<Page>
Page 31
<Table>
<Caption>
BASIC LEAVE START
NAME ID NUMBER SALARY ENT DTE EMP NO
Ntloko Phumlani 7201145915085 1113.00 36.2500 99/01/28 00003996
Nyhata George Gladson 4906055692184 1184.00 42.2500 99/02/10 00004005
Chichava Jose Castigo 6602155340182 1113.00 17.2500 99/01/07 00004014
Shila Edward Ngwashena 7401106506184 1113.00 18.2500 99/12/02 00004064
Fiosso Armando 1184.00 70.2500 99/06/29 00004088
Mosheya Simon 6507295337081 1184.00 26.2500 99/03/02 00004119
Tshebi Launcelot 5812075942089 1184.00 12.2500 99/05/10 00004201
Mapsanganhe Santos Armando 6702255431186 1113.00 32.2500 99/11/26 00004210
Mucuacua Andre 1231.00 8.2500 99/07/06 00004299
Chivavele Elias Lassi 5608155212181 1113.00 28.2500 00/01/06 00004308
Lukhelo Joseph Louis 5705195836084 2613.00 44.7700 81/01/09 00005010
Sathekge Johannes 6112015413088 2511.00 36.2500 83/11/07 00005028
Nhambe Amosse 4601255523186 1456.00 34.7600 84/01/04 00005204
Sikhiti Magubane 4606066006081 1113.00 8.0400 88/08/08 00005817
Malepe James 6409105783085 1113.00 22.300 82/07/15 00005860
Sibanda Mica Manaisse 4901155681187 1113.00 19.7500 00/08/29 00005872
Simango Matiguitie Johane 1113.00 8.2500 83/10/11 00005891
Sithole Jonas Samuel 5002025984189 1113.00 18.5400 87/09/18 00005897
Sithole Simon Joane 4802225155188 1113.00 24.2500 98/11/12 00005928
Phote Mntongaka 5807125933088 1113.00 44.0600 90/03/23 00005939
Phaswana Alpheus 5509185740086 1521.00 6.2500 88/01/26 00005987
Nobatana Edward Vuyani 5806266041081 1113.00 42.2500 92/03/05 00006045
Ginela Armindo 1113.00 2.2500 89/05/18 00006540
Mmola Phillemon 6602125489085 7306.00 26.0000 87/12/31 00006660
Mokgatle Petrus 6308156010085 1112.00 38.4800 89/02/02 00006667
Manava Adam Manuel 6206205147181 2486.00 4.7600 86/01/02 00006838
Mahl Rampube Samuelakwana 6704225366088 1113.00 4.2600 87/01/16 00008128
</Table>
<Page>
Page 32
<Table>
<Caption>
BASIC LEAVE START
NAME ID NUMBER SALARY ENT DTE EMP NO
Mahulana Eliatasse Mazazene 3705015114185 1584.00 32.2600 87/10/17 00009009
Maningue Manuel 1113.00 14.2500 90/11/09 00009111
Mkuzo Mbuyiselo 6506156031080 1113.00 20.7600 88/01/15 00009189
Mudende Langton 6404035140183 1113.00 23.7600 88/01/15 00009191
Masemola Oupa Isaac 6206165715084 1113.00 40.0000 00/09/27 00009251
Rasikkhinya Amos 6301065883080 1184.00 34.5400 92/04/22 00009256
Muleya Elia 6206156023084 1113.00 61.0300 89/11/17 00009296
Zunguze Alexandre Paulo 1113.00 40.2500 85/10/14 00009566
Nogola Zithobile 6306106205085 2506.00 17.0300 08/11/29 00009663
Chivambo Manuel Antonio 1113.00 8.2500 89/11/30 00009794
Maebane Ngwato Pinaas 6401165641089 1113.00 21.4900 91/10/30 00009823
Simango Joaquim Mabuco 1113.00 21.2500 89/01/17 00009854
Noalowa Virginia 5708100785081 1113.00 11.0600 89/03/20 00009954
Wagner Carel Willem Pieter 7208275146084 7573.00 2.5000 02/05/01 00019576
Jansen Van Nieuwenhuizen Gysbe 5807255149083 7573.00 2.5000 02/05/01 00019577
Lange Andre Wilhelem 5910135065089 7573.00 2.5000 02/05/01 00019579
Van Wyk Johannes Marthinus 7008195009085 6955.00 1.2500 02/05/01 00019579
Da Silva Francisco George 5110185076082 6955.00 2.5000 02/05/01 00019581
Erasmus Daniel Johannes 4212015116087 7037.00 2.5000 02/05/01 00019582
Herbst Petrus Albertus 5902045029081 7573.00 2.5000 02/05/01 00019584
Malungane Alexandre Mazinane 1113.00 6.2500 85/05/13 00061060
Erasmus Daan 42120151116004 .00 25.6200 98/07/01 00000085
Thwala Willy Lomimiza 5611095585088 5603.86 3.5000 87/11/85 00000232
</Table>
<Page>
Page 33
<Table>
<Caption>
BASIC LEAVE START
NAME ID NUMBER SALARY ENT DTE EMP NO
Wagner Carel Willem Pieter 7208275146084 .00 14.2500 96/08/12 00000C10
Van Wyk Johannes Marthinus 7008195009085 .00 .0000 98/12/19 00000C24
Da Silva Francisco George 5110185076082 .00 16.2500 99/07/29 00000C46
Scheepers Leon 5406195666080 7300.00 4.7500 02/04/11 00000C76
Jansen Van Vuuren Michael 7409075269080 7077.00 .0000 01/07/01 0000C107
Jansen Van Nieuwenhuizen Gysbe 5807255149000 .00 5.7500 01/07/01 0000C108
Wagner James Cornelius 3611075029083 7077.00 10.7500 01/07/01 0000C109
Labuschagne Petrus Josefus Mat 5406275131088 7077.00 2.7500 01/07/01 000C112
Mongalo Omphentse 5710015920084 1040.00 13.7500 01/07/01 0000C113
Matsinhe Luis Rafael 5202227806184 1040.00 13.7500 01/07/01 0000C114
Herbst Petrus Albertus 5902045029081 .00 10.5000 01/08/02 0000C118
Lange Andre Wilhelm 5910135065089 .00 4.0000 01/09/24 0000C144
Moloko Lesiba Sydney 6012305746082 6500.00 6.2500 02/01/07 0000C161
Motingoe Bethuel Ramokebe 6402075451080 6500.00 5.0000 02/01/28 0000C173
Muxchunga Jacob Arone MP095185 1040.00 5.0000 02/02/01 0000C192
Sadiki Robert 50031857640809 1040.00 5.0000 02/02/01 0000C193
Gumede Richard Baba 6211135637087 1040.00 5.0000 02/02/01 0000C194
Muianga Figuerido AA077012 1040.00 5.0000 02/02/01 0000C195
Cossa Domingo 5610295209184 1040.00 5.0000 02/02/01 0000C196
Munjovo Amosse Watch AA267519 1040.00 5.0000 02/02/01 0000C197
Simango Filipe Manhiea AA282304 1040.00 5.0000 02/02/01 0000C198
Machava Themba Solomoni 6310215110187 1040.00 5.0000 02/02/01 0000C199
</Table>
<Page>
Page 34
<Table>
<Caption>
BASIC LEAVE START
NAME ID NUMBER SALARY ENT DTE EMP NO
Zukelwa Mzwandile Wellington 6205295672082 1040.00 5.0000 02/02/01 0000C200
Mbawala John Chiwota 5206225761087 1040.00 5.0000 02/02/01 0000C201
Simango Johannes Filimon 7201156632181 1040.00 5.0000 02/02/01 0000C202
Sitoe Antonio Fabian AA271746 1040.00 5.0000 02/02/01 0000C203
Selebalo Abel Buti 5906066152086 1040.00 5.0000 02/02/01 0000C204
Botha Gerrit 6410235092082 6500.00 2.5000 02/03/25 0000C221
Mokanda Zacaria Pencil 6808165092180 1040.00 2.5000 02/04/01 0000C225
Muhlanga Jossia Jonas 6912095446183 1040.00 2.5000 02/04/01 0000C226
Zitha Salvadore 5010106018181 1040.00 2.5000 02/04/01 0000C227
Lemani Sanyai 5002155696082 1040.00 2.5000 02/04/01 0000C228
Shongwe Pipi Amos 5801075452082 1040.00 2.5000 02/04/01 0000C229
Conradie Jacoba Elizabeth 5911130115085 10065.00 5.0000 01/05/21 25
Grundeling Deon 5111025120080 .00 .0000 00/11/28 37
</Table>
<Page>
Page 35
ANNEX 4
(DIAGRAM)
ANNEXE 5
SCHEDULE OF COMPONENTS OF WEST WITS PLANT
1. Sand Plant - with feeder crusher, screens, silos, spirals, electrics and
accessories
2. Spiral plant - cyclones, spiral banks, agitator, pumps, compressors,
milling plant, thickeners and lime plant, electrics and accessories.
3. Carbon in leach plant - tank banks with agitators, screens, carbon tanks
(holding and settling), furnace, acid tanks, carbon column, reagents,
electrics and accessories.
4. Administration stores, offices, workshops, electric sub-stations and
accessories.
5. Generally, without limiting the provisions of 1,2,3 and 4 above,
everything constructed to process gold bearing rocks so as to extract gold
and its by products, sited on the West Wits Freehold and the adjacent
Surface Right Permits. This broadly includes the concentrator plant, the
carbon in leach plant, the smelt plant, the workshops and the offices,
their contents and support systems. Further included are the associated
equipment yards, and inventory stores containing components, scrap or
otherwise; The vehicles owned by WEST WITS used for transport and
supervision purposes on the West Wits Plant Enterprise; The slurry feed
pipelines, water lines and slime disposal lines, power supply lines to and
from the West Wits Plant.