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EXHIBIT 4.51
MEMORANDUM OF LOAN AGREEMENT
between
DURBAN ROODEPOORT DEEP, LIMITED
and
CROWN GOLD RECOVERIES (PROPRIETARY) LIMITED
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1. INTERPRETATION..............................................................2
2. THE LOAN....................................................................4
3. UNDERTAKINGS BY THE BORROWER................................................4
4. EVENTS OF DEFAULT...........................................................5
5. CESSION AND DELEGATION BY THE LENDER........................................7
6. CESSION AND DELEGATION BY THE BORROWER......................................7
7. NOTICES.....................................................................8
8. ARBITRATION.................................................................9
9. GENERAL....................................................................10
</Table>
WHEREAS:
A. This Memorandum records the loan to be made by the Lender to the Borrower
on the terms and subject to the conditions recorded in this Memorandum.
B. In terms of the Loan, the Lender agrees to lend to the Borrower, who agrees
to borrow from the Lender, the amount of R 60 000 000 (sixty million Rand),
which entire amount will be drawn down by the Borrower on the Effective
Date.
THE PARTIES ACCORDINGLY RECORD THAT
1. INTERPRETATION
1.1 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 meaning assigned to them, namely:
1.1.1 "Business Day" means a day (other than a Saturday,
Sunday or public holiday) on which banks
generally are open in South Africa for a
full range of business;
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1.1.2 "Borrower" means Crown Gold Recoveries
(Proprietary) Limited, a company
registered in accordance with the laws
of South Africa under Registration
Number 1988/05155/07;
1.1.3 "Event of Default" means any one of the events specified in
clause 4;
1.1.4 "Effective Date" means the date of registration of the
General Notarial Covering Bond referred
to in clause 2.1.2;
1.1.5 "Indebtedness" means any loan, debt, guarantee,
indemnity or other obligation now or
hereafter existing;
1.1.6 "Loan" means the amount of R 60 000 000 (sixty
million Rand) which the Borrower agrees
to borrow from the Lender and which the
Lender agrees to lend to the Borrower
and which entire amount will be drawn
down by the Borrower on the Effective
Date;
1.1.7 "the Lender" means Durban Roodepoort Deep, Limited,
a company registered in accordance with
the laws of South Africa under
Registration Number 1895/000926/06;
1.1.8 "this Memorandum" means this memorandum of loan agreement;
1.1.9 "Parties" means the Borrower and the Lender and
"Party" means either one of them;
1.1.10 "Prime Rate" means the publicly quoted interest rate
charged by Standard Corporate and
Merchant Bank Limited;
1.1.11 "Signature Date" means the date of last signature of this
Memorandum; and
1.1.12 "South Africa" means the Republic of South Africa as
constituted
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from time to time.
2. THE LOAN
2.1 The Lender agrees to lend to the Borrower and the Borrower agrees to
borrow from the Lender the Loan on the following terms:
2.1.1 the Loan will attract interest at the rate of 18,4 %; and
2.1.2 the Loan will be secured by the registration of a Notarial
General Covering Bond over all movable assets of the Borrower, in
accordance with the draft Notarial General Covering Bond annexed
hereto and initialled for identification, all the terms and
conditions of which shall be regarded as if incorporated herein,
mutatis mutandis, save to the extent incompatible herewith; and
2.1.3 the Loan is repayable within 4 (four ) months after the Effective
Date.
2.2 The parties record that the sole purpose for which the loan is granted
is to enable Crown to effect payment of the purchase price in terms of
the Acquisition of East Rand Proprietary Mines Limited Agreement, and
the Borrower accordingly authorises and instructs the Lender to
advance the loan on the borrower's behalf directly to Daun et Cie in
terms of the said Acquisition Agreement.
3. UNDERTAKINGS BY THE BORROWER
3.1 The Borrower undertakes to the Lender that until the Loan has been
repaid in full by the Borrower to the Lender:
3.1.1 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
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action taken or proposed to be taken in connection with that
Event of Default;
3.1.2 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 -
3.1.2.1 to incur the obligations expressed to be assumed by it in or
pursuant to this Memorandum;
3.1.2.2 to execute and deliver all other documents and instruments
to be delivered by it pursuant to this Memorandum;
3.1.2.3 to perform and observe the terms and provisions of this
Memorandum;
3.1.2.4 to make all payments expressed to be required under this
Memorandum; and
3.1.2.5 to render this Memorandum legal, valid, binding, enforceable
and admissible in evidence.
3.2 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.
4. EVENTS OF DEFAULT
4.1 With regard to the Loan, if:
4.1.1 the Borrower shall for any reason fail duly and promptly to
effect payment in terms of clause 2.1.3 or perform or observe any
of the other obligations or undertakings expressed to be binding
on or undertaken in or pursuant to this Memorandum; or
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4.1.2 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 stop or threaten to stop or
suspend payment of any sum 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
4.1.3 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
4.1.4 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
4.1.5 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,
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
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Event of Default the Lender may, by written notice to the Borrower,
declare the Loan to be immediately due and payable.
4.2 If the Loan is declared immediately due and payable pursuant to clause
4.1, the Borrower shall immediately pay to the Lender the amount due
under the Loan.
5. CESSION AND DELEGATION BY THE LENDER
5.1 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").
5.2 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.
5.3 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.
5.4 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.
6. CESSION AND DELEGATION BY THE BORROWER
6.1 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 right or benefits or delegate any of its obligations under
this Memorandum either in whole or in part.
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7. NOTICES
7.1 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 7.2 (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:
7.1.1 in the case of delivery by hand or mail, when delivered;
7.1.2 in the case of fax, twelve (12) 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.
7.2 The Parties choose for the purposes of this Memorandum the following
addresses:
7.2.1 The Lender: 45 Empire Road
Parktown
Johannesburg
South Africa
Att: The Company Secretary
Fax: 482-1022
7.2.2 The Borrower: 45 Empire Road
Parktown
Johannesburg
South Africa
Att: The Company Secretary
Fax: 482-1022
7.3 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.
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7.4 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.
8. ARBITRATION
8.1 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 parties. 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.
8.2 There shall be 1 (one) arbitrator who shall be, where the question and
issue is:
8.2.1 primarily an accounting matter, an independent chartered
accountant of 10 (ten) years standing;
8.2.2 primarily a legal matter, a practising Senior Counsel; or
8.2.3 primarily a technical matter, a suitably qualified person.
8.3 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 8.1, 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 and, in making his appointment, to
have regard to the nature of the dispute.
8.4 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
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it shall be necessary to file pleadings, make discovery of documents
or hear oral evidence.
8.5 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.
9. GENERAL
9.1 Communications between the Parties
9.1.1 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.
9.1.2 The Parties shall procure that all notices, demands and other
oral or written communications given or made by or on behalf of
the company to the Parties or the directors of the company in
their capacity as such shall also be in English or accompanied by
a certified translation into English. All meetings of the Board
and any committees of the Board shall be conducted in English.
9.2 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.
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9.3 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.
9.4 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.
9.5 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 and the Borrower shall pay the stamp duty and costs of
registration of the General Notarial Covering Bond.
9.6 Entire Agreement
This Memorandum constitutes the entire agreement between the Parties
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 unless made in writing
specifically referring to this Memorandum and duly signed by the
Parties.
9.7 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.
9.8 Further Assurance
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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.
9.9 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.
9.10 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.
9.11 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.
SIGNED at Boksburg on 10 October 2002.
For: DURBAN ROODEPOORT DEEP, LIMITED
Witness: /s/ R. Mendelow /s/ Mark Wellesley-Wood
------------------- ----------------------------
Signatory: Mark Wellesley-Wood
Capacity: Director
Authority: Resolution
SIGNED at Boksburg on 10 October 2002.
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For: CROWN GOLD RECOVERIES (PROPRIETARY) LIMITED
Witness: /s/ R. Mendelow /s/ M.P.M. Ncholo
----------------- ----------------------------
Signatory: M.P.M. Ncholo
Capacity: Director
Authority: Resolution
[LAST SIGNED 10 OCTOBER 2002]
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ANNEXURE
Protocol No:
NOTARIAL GENERAL COVERING BOND
KNOW ALL MEN WHOM IT MAY CONCERN
THAT on this the day of OCTOBER in the year Two Thousand and Two (2002)
before me,
NATHAN MENDELOW
Notary Public, by lawful authority, duly admitted and sworn, practising as such
in Johannesburg in the Province of Gauteng and in the presence of the
subscribing witnesses, personally came and appeared -
MARK MICHAEL WELLESLEY-WOOD
in his capacity as a director of
CROWN GOLD RECOVERIES (PROPRIETARY) LIMITED
No. 1988/005115/07
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a company duly registered in terms of the company laws of the Republic of South
Africa, having its registered office at 45 EMPIRE ROAD, PARKTOWN, 2093 and
carrying on business at CROWNWOOD ROAD, CROWN MINES, 2025
(hereinafter referred to as "the Mortgagor")
he acting under and by virtue of a resolution of the board of directors of the
company passed at Johannesburg on the ___ of October, 2002, a certified copy of
which resolution have this day been exhibited to me, the Notary, and now remains
filed in my protocol,
AND the said Appearer declared:
WHEREAS the hereinaftermentioned Mortgagee requires every present and future
indebtedness of the Mortgagor to be secured by the hypothecation of the
undermentioned property as a continuing covering security;
NOW THEREFORE the Appearer did by these presents declare and acknowledge the
Mortgagor to be indebted, held firmly bound unto and in favour of -
DURBAN ROODEPOORT DEEP, LIMITED
No. 1895/000926/06
its successors-in-title, order or assigns -
(hereinafter referred to as "the Mortgagee")
in the sum of R60 000 000.00 (sixty million Rand) (hereinafter referred to as
"the Capital") as a continuing covering security in respect of every
indebtedness or obligation of whatsoever cause and nature and howsoever arising
and whether now owing and which will from time to time hereafter and/or for the
time being be owing to the Mortgagee including and without restricting the
generality of the aforegoing, every indebtedness or obligation of the Mortgagor
to the Mortgagee which has already arisen and which may in future arise from, by
reason of, or in respect of goods sold and delivered or to be delivered; moneys
lent and advanced or to be advanced; negotiable instruments made, drawn,
accepted, endorsed or otherwise
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negotiated or executed; suretyships, guarantees, indemnities or similar
obligations undertaken; interest; damages or statutory or other compensation;
the acquisition by the Mortgagee by cession or otherwise from any third party of
any claim or claims or rights of action of whatsoever cause or nature against
the Mortgagor, in every case or event irrespective of whether the indebtedness
or obligation in question will have arisen in the first instance in favour of
the Mortgagee or will have become owing to the Mortgagee thereafter in
consequence of any transfer negotiation or cession thereof to the Mortgagee and
irrespective of whether such indebtedness or obligation is owing to the
Mortgagee by the Mortgagor alone or jointly with others and including any
novated debt or debts arising in connection with or substitution for any debt of
the Mortgagor to the Mortgagee, including in particular and without limiting the
generality of the aforegoing, any indebtedness or obligation arising out of or
in connection with certain agreement entered into between the Mortgagor and the
Mortgagee dated _______ (hereinafter referred to as "the Loan Agreement").
AND the Appearer q.q. further declared the Mortgagor to be held firmly bound in
a further sum of R18 000 000.00 (EIGHTEEN MILLION RAND) (hereinafter referred to
as "the Additional Amount") to secure any sum or sums of money which shall or
may be disbursed by or become owing to the Mortgagee in respect of interest,
premiums of insurance, licences, state, municipal and other taxes, repairs,
stamp duties, legal and other costs on the scale as between attorney and his own
client of and incidental to this bond and/or any proceedings instituted or taken
by the Mortgagee against the Mortgagor hereunder (including the proof of claims
and attendances of meetings in the event of the Mortgagor's insolvency or
winding up), expenses incurred or to be incurred in protection of the security
of the Mortgagee hereunder and/or any other charges disbursed by the Mortgagee
for and on behalf of the Mortgagor in terms of this bond or otherwise.
AND as a continuing covering security for every such present and/or future
indebtedness or obligation as aforesaid, as well as all of the Mortgagor's
obligations hereunder, the Appearer, on behalf of the Mortgagor hereto declared
to bind and hypothecate
ALL OF THE MORTGAGOR'S MOVABLE PROPERTY AND EFFECTS, OF WHATEVER NATURE AND
DESCRIPTION AND WHERESOEVER SITUATE, BOTH CORPOREAL AND INCORPOREAL AND
BOTH SUCH AS THE
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MORTGAGOR MAY NOW OWN OR AS IT MAY IN THE FUTURE ACQUIRE, NOTHING EXCEPTED.
(hereinafter referred to as "the Assets").
AND the Appearer q.q. further declared the conditions of this bond to be such
that it shall be and remain in full force and effect as a continuing security
and covering bond in addition and without prejudice to any other securities or
suretyships now held or hereafter to be held by the Mortgagee in respect of or
covering the indebtedness of the Mortgagor to the Mortgagee up to the amount of
the Capital for all or any sum or sums of money in which the Mortgagor may now
be or hereafter become indebted to the Mortgagee from whatsoever cause arising,
notwithstanding any fluctuation in the amount or even temporary extinction of
such indebtedness, until such time as this Bond shall be cancelled in the Deeds
Office with the consent of the Mortgagee.
AND the Appearer q.q hereby declared the following to be special conditions to
this Bond, namely:
1. RENUNCIATION OF EXCEPTIONS
The Mortgagor renounces all benefit from the legal exceptions NON NUMERATE
PECUNIAE, NON CAUSE DEBITI, ERRORE CALCULI, revision of accounts, no value
received, DE DUOBUS VEL PLURIBUS REIS DEBENDI and all other exceptions
which might or could be taken at law or in equity to the payment of the
aforesaid sum or any part thereof with the force and effect of which
exceptions the Appearer declared the Mortgagor to be fully acquainted.
2. INSURANCE OF ASSETS
2.1 The Assets shall be insured and kept insured by the Mortgagor in the
names of the Mortgagor and the Mortgagee jointly for their respective
rights and interests against all risk of loss or damage from
whatsoever cause arising including from fire, riots, strike, civil
commotion, explosion, fire following riots and strike, storm,
earthquake, political riot and against such other peril/s as
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are normal in the case of such assets and as the Mortgagee may from
time to time stipulate, for a sum assured being not less than the full
replacement value thereof as determined from time to time by the
Mortgagee which amount is agreed to be the reasonable value thereof.
2.1.1 It is recorded that in the case of new policies effected in terms
of this clause, the Mortgagor shall have the right to choose the
insurer with which, and the intermediary through which, such
insurance is effected.
2.1.2 If insurance is effected otherwise than through an intermediary
approved by the Mortgagee, such insurance shall contain a
provision to the effect that the same may not be cancelled by the
insurer save on 30 (thirty) days written notice to the Mortgagee.
2.1.3 Every insurance policy effected in terms of this clause shall
provide that all sums becoming payable thereunder shall, in the
event of any loss, be paid by the insurer to the Mortgagee who,
alone, shall be entitled to give good and valid receipts and
discharges in respect thereof and such policy shall not restrict
the rights or the Mortgagee against the insurer.
2.2 The Mortgagor hereby cedes, transfers, makes over and assigns to the
Mortgagee all of its right to payment of any amount payable to the
Mortgagee as contemplated in 2.1.3.
2.3 The Mortgagor shall, in addition, effect all insurances relating to
the Assets or their use required by law.
2.4 The Mortgagor shall pay all premiums due in respect of policies
referred to in this clause as and when such premiums fall due and
shall, whenever called upon by the Mortgagee to do so, produce proof
of payment of such premiums and deposit any receipt or receipts in
respect thereof with the Mortgagee. Should the Mortgagor fail to
effect any such insurance or deliver any policy, policies or receipts
as aforesaid, the Mortgagee shall be entitled to insure the Assets in
accordance with the provisions of this clause and to recover all
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costs, charges and disbursements made or incurred in connection
therewith from the Mortgagor forthwith on demand.
2.5 Any monies received by the Mortgagee under any insurance effected or
to be effected in terms of this clause on the occurrence of a loss
shall, at the sole election of the Mortgagee, be expended either in
partial or full repayment of any amount which may then be due by the
Mortgagor to the Mortgagee secured hereunder, or in the restoration
under such conditions as the Mortgagee may determine of that portion
of the Assets as has been destroyed or damaged.
2.6 The Mortgagee shall (without prejudice to the generality of the rights
conferred on it in terms of this clause) have the right and be
entitled to adjust, settle, compromise, institute or defend claims
and/or litigation and submit to arbitration all claims, disputes and
matters arising out of or in connection with any one or more of the
said policies of insurance effected or to be effected in terms of this
clause or the happening of any event thereby insured against, all in
such manner as the Mortgagee in its sole and absolute discretion may
think fit and all at the cost and expense of the Mortgagor, who shall
repay to the Mortgagee the costs or expenses thereby incurred by it
forthwith on demand.
2.7 The Mortgagee shall not be liable to the Mortgagor for failure to do
anything in terms of this clause or for doing such thing negligently
or in a manner not acceptable to the Mortgagor.
3. MORTGAGOR'S NEGATIVE OBLIGATIONS
3.1 The Mortgagor shall not, without the Mortgagee's prior written consent
(which consent shall not be unreasonably withheld) -
3.1.1 sell, alienate, dispose of, transfer or give up possession in any
way of the Assets or any of them;
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3.1.2 pledge, cede, mortgage, hypothecate or otherwise encumber the
Assets or any of them;
3.1.3 permit any lien, encumbrance, hypothec or security interest of
whatsoever nature in the Assets to be created by the operation of
law or otherwise howsoever;
3.1.4 sign any power of attorney to pass any bond or execute or pass
any further bond or bonds over the Assets;
3.1.5 remove any of the Assets from the Republic of South Africa.
3.2 The prohibitions in 3.1 above shall not apply to anything which the
Mortgagor is able to prove is done in the ordinary and regular course
of the business of the Mortgagor.
3.3 The onus of proving that any transaction referred to above or in the
bond is in the ordinary and regular course of the Mortgagor's business
shall be on the Mortgagor.
4. MORTGAGOR'S POSITIVE OBLIGATIONS
The Mortgagor shall -
4.1 promptly and regularly pay all rentals, taxes, rates, licence fees and
other imposts and outgoings (if applicable) in respect of the Assets,
and on demand produce to the Mortgagee proof of such payment;
4.2 keep the Assets (and all replacements thereof) in good condition and
repair and replace the same whenever necessary, it being agreed that
for purposes hereof -
4.2.1 all parts used in the repair of the Assets and all accessories
affixed thereto shall be deemed to form part of and accede to the
Assets; and
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4.2.2 any asset acquired by the Mortgagor in replacement of the Assets
or any of them shall for all purposes hereunder be deemed to be
included in the Assets;
4.3 permit the Mortgagee at any time to inspect the Assets;
4.4 advise the Mortgagee of any fact, circumstance or event which is, or
may be construed as or which gives rise or may give rise to an event
of default in terms of 7 below;
4.5 whenever requested to do so by the Mortgagee at any time during the
continuance of this bond, furnish to the Mortgagee all policies of
insurance, licences, permits and registration documents relevant to
the Assets or any of them;
4.6 permit the Mortgagee at any time to take possession of the Assets in
order to perfect its pledge.
5. INTEREST
Any sums of money due and payable by the Mortgagor to the Mortgagee under,
in terms of or secured by this Bond shall in the absence of any written
agreement to the contrary, bear interest (in respect of which the Mortgagor
hereby acknowledges its indebtedness to the Mortgagee) at the maximum rate
from time to time charged by any commercial bank in the Republic of South
Africa in respect of overdraft advances. Such interest shall be computed
upon the daily balance outstanding and shall be calculated and ascertained
monthly and when so calculated and ascertained it shall thereupon IPSO
FACTO be due for payment and if not paid, shall be capitalised and for all
purposes form portion of the amount secured under this Bond.
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6. NOTICES AND PAYMENT
All notices which may require to be given by the Mortgagor to the Mortgagee
and all payments in respect of any amounts at any time due and payable
under, in terms of or secured by this Bond, whether of capital, interest or
otherwise, shall be made at 45 Empire Road, Parktown, 2093 or at such other
place or address as the Mortgagee may from time to time notify the
Mortgagor.
7. EVENTS OF DEFAULT
An event of default shall occur if -
7.1 the Mortgagor refuses and/or neglects -
7.1.1 to carry out the provisions of the Loan Agreement or if the
Mortgagor commits any act which constitutes a breach of any of
the provisions of the Loan Agreement; or
7.1.2 to carry out, or breaches any of the other terms, conditions or
stipulations of this bond; or
7.1.3 to carry out, or breaches any of the terms, conditions or
stipulations of any agreement between the Mortgagor and the
Mortgagee or any bond passed by the Mortagor in favour of the
Mortgagee which is collateral hereto; or
7.2 the Mortgagor -
7.2.1 is dissolved or provisionally or finally liquidated, wound-up or
placed under judicial management or gives any notice or takes any
steps to convene a meeting of its shareholders to adopt a
Resolution for its winding-up or to place it under judicial
management whether provisional or final, voluntary or otherwise;
or
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7.2.2 makes or attempts to make or recommends any general offer of
compromise with any or all of its creditors; or
7.2.3 changes the nature of its activities in any material respect or
materially reduces the scope thereof without the Mortgagee's
prior written consent; or
7.2.4 commits any breach of any material contract binding upon it
entitling the other party to that contract to cancel the same or
to accelerate performance by the Mortgagor of any obligation due
thereunder;
7.2.5 suffers judgment granted by any Court against it to remain
unsatisfied for a period of 7 (SEVEN) days.
8. THE MORTGAGEE'S RIGHTS ON THE HAPPENING OF AN EVENT OF DEFAULT
Upon the happening of an event of default referred to in 7 above, the
Mortgagee shall, without prejudice to any other right which it has in terms
hereof or at law, be entitled -
8.1 notwithstanding the terms and conditions of any indebtedness or
obligation of the Mortgagor to the Mortgagee arising before,
simultaneously with or after the execution of this Bond (save only to
the extent that the provisions of this sub-clause 8.1 are expressly
overridden in writing referring to this clause 8.1 and signed by the
Mortgagor and the Mortgagee) to declare the full amount of the
Mortgagor's indebtedness to the Morgagee from whatsoever cause arising
to be due and payable forthwith and to claim and recover the same from
the Mortgagor forthwith on demand;
8.2 if the Mortgagee has not already been placed in possession of the
Assets, to forthwith take possession and thereby perfect its pledge of
the Assets;
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8.3 to hold the Assets as security for the payment of all amounts owing by
the Morgagor to the Mortgagee and to retain such possession for so
long as the Mortgagee may deem fit;
8.4 to dispose of the Assets or any of them by public auction, public
tender or any private treaty or otherwise in the Mortgagee's sole
discretion and on such terms and conditions as the Mortgagee in its
sole discretion may deem fit and to convey good valid and free title
to the purchaser or transferee thereof;
8.5 to apply for provisional sentence hereunder;
8.6 to employ such other remedies and to take such other steps against the
Mortgagor as are allowed in law;
8.7 to recover all costs and charges incurred by the Mortgagee in the
exercise of its rights under this bond including (but without
limitation) all costs of storing the Assets and all legal costs and
disbursements.
9. MANNER OF EXERCISE OF THE MORTGAGEE'S RIGHTS
9.1 The Morgagee shall be entitled to exercise the rights afforded to it
in terms of this Bond including (but not limited to) those referred to
in 8 above -
9.1.1 either separately or jointly or in such order and combination and
at such times as the Mortgagee may think fit and the Mortgagee
shall be entitled to recover from the Mortgagor forthwith on
demand any costs or expenses reasonably incurred in exercising
any of such rights;
9.1.2 itself through any of its directors, managers, officers,
employees, servants, agents or independent contractor nominated
by it for the purpose (it being expressly agreed that as between
Mortgagor and Mortgagee it shall not be necessary for the
Mortgagee to prove the appointment or authority of a person
referred to in this sub-clause).
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9.2 If the Mortgagee exercises any of its rights in terms of this bond,
neither the Mortgagee nor any of its directors, managers officers,
employees, servants nor any agents or independent contractors for
whose acts the Mortgagee may be vicariously liable in law, shall be
liable for any loss or damage of whatsoever nature to the Mortgagor's
business and/or the Assets howsoever arising or caused, in particular
whether caused by negligence or not. The Mortgagor hereby indemnifies
and holds the Mortgagee and its directors, managers, officers,
employees, servants, agents or independent contractors harmless
against all and any claims of whatsoever nature which may be made
against the Mortgagee or any of the aforementioned persons arising out
of any of the aforegoing occurrences.
10. RIGHTS TO APPLY TO COURT AND JURISDICTION
10.1 Any application to any competent Court to be brought by the Mortgagee
in terms of or arising from this bond and/or the Loan Agreement, may
be brought, at the Mortgagee's election, either EX PARTE or on notice
to the Mortgagor. The right conferred upon the Mortgagee in terms of
this paragraph shall in no way derogate from any other right conferred
on the Mortgagee in terms of this bond or otherwise.
10.2 The Mortgagor hereby submits to then jurisdiction of the High Court of
South Africa, Witwatersrand Local Division, and agrees that any action
by the Mortgagee against the Mortgagor may be instituted in that
division or any other division of the High Court having jurisdiction
in the relevant dispute as the Mortgagee may elect.
11. FINANCIAL STATEMENTS
The Mortgagor shall deliver to the Mortgagee the audited annual financial
statements of the Mortgagor from time to time as soon as they are made
available to the Mortgagor but in any event not later than 6 (SIX) months
after the Mortgagor's financial year end.
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12. PROVISIONS SEVERABLE
If any of the provisions of this bond are found to be unlawful,
unenforceable or invalid such provision shall be deemed to be severable
from the remaining provisions of this bond and shall, to the extent that
the same is unlawful, unenforceable or invalid, be deemed to be PRO NON
SCRIPTO.
13. REARRANGEMENT OF PAYMENT
The Mortgagee shall have the right at any time by agreement with the
Mortgagor to rearrange or alter the conditions for repayment of capital,
interest or any other sum owing to the Mortgagee as regards the amount of
any instalments payable in respect thereof, or as regards the date/s of
payment or otherwise and no such rearrangement or alteration shall in any
way prejudicially affect the operation of this Bond or the security granted
hereunder nor constitute a novation of any of the said debts nor affect the
rights of the Mortgagee to sue in terms of this Bond in the same manner as
if no such new arrangement or alteration had been made and all the
provisions of this Bond shall mutatis mutandis apply to all or any such
rearrangement or alteration other than those specifically altered thereby
in writing as fully and effectually for the purpose of applying for
judgment under this Bond as if such rearrangement or alteration had been
the original terms of this Bond.
14. RELEASE OF SECURITIES
This Bond shall not be affected by, and shall remain of full force and
effect notwithstanding the grant of time or any other indulgence by the
Mortgagee to the Mortgagor or anyone else, the release wholly or partially
of any other securities held by the Mortgagee for any indebtedness of the
Mortgagor, the talking of other securities in place thereof, the variation
or alteration of any securities, the release wholly or partially of any
surety, co-principal debtor, co-debtor and/or co-surety, with the
Mortgagor, the compounding or compromise of any relevant claim and
generally the grant or extension of any latitude or indulgence to the
Mortgagor or anyone else.
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15. NO VARIATION
15.1 No addition to, and no alteration, variation or consensual
cancellation of any of the provisions of this Bond and no waiver by
the Mortgagee of any of its rights hereunder shall be of any force or
effect unless reduced to writing and signed by both the Mortgagor and
the Mortgagee. The Mortgagor hereby waives the right to rely on any
oral contract or any contract allegedly constituted by the conduct of
the Mortgagee or any person acting on the Mortgagee's behalf or any
implied contract with reference to the subject matter or content of
this Bond or on any implied term or condition in this Bond.
15.2 No leniency or extension of time that may be granted by the Mortgagee
to the Mortgagor for the payment of any amount or the performance of
any obligation and no course of conduct between the Mortgagee and the
Mortgagor or indulgence shown by the Mortgagee to the Mortgagor either
prior to the execution hereof or thereafter shall constitute or be
construed as a waiver, novation or variation of any of the terms or
conditions hereof, nor excuse the Mortgagor from exact compliance of
the same nor shall the same create any estoppel against the Mortgagee
or otherwise vary, novate or in any way affect any of the Mortgagee's
rights hereunder. No waiver of any of the Mortgagee's rights hereunder
shall be binding on the Mortgagee unless reduced to writing and signed
by the ;Mortgagee's representative authorised thereto in writing.
16. DOMICILIUM
16.1 For the purpose of this band, the Mortgagor chooses DOMICILIUM CITANDI
ET EXECUTANDI at 45 EMPIRE ROAD, PARKTOWN, 2093.
16.2 All notices which are to be given by the Mortgagee in teems of this
band shall be presumed, until the contrary is provided, to have been
received -
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16.2.1 if pasted by registered post to P O BOX 390, MARAISBURG, 1700, 7
(SEVEN) days after the date of posting;
16.2.2 if delivered by hand on the date of delivery to the address in
16.1.
16.3 The Mortgagor may by notice in wilting from time to time alter its
addresses set out in clauses 16.1 and 16.2.1.
17. COSTS
All fees, charges and disbursements in having this Band prepared and
registered and in having this Bond cancelled (all of which services shall
be rendered by a Canveyancer instructed by the Mortgagee); in issuing notes
and demands and in instituting or prosecuting any legal proceedings or in
proving a claim in the event of tile liquidation of the Mortgagor shall be
borne and paid on demand by the Mortgagor on the scale as between an
Attorney end his own client whether or not action has been or is instituted
by the Mortgagee against the Mortgagor.
18. CESSION BY MORTGAGEE
The Mortgagee may at any time and without reference to the Mortgagor, cede
its right, title and interest in and to this Bond to any person or persons
whatsoever (even if such cession entails an increase in the number of
Mortgagees) in which event any reference to the Mortgagee in this Bond
shall be deemed to be a reference to any such successor in title of the
Mortgagee.
19. CERTIFICATE CLAUSE
A certificate purporting to be signed by any one of the Mortgagee's
authorised signatories (whose appointment it shall not be necessary to
prove) shall BE PRIMA FACIE proof of the amount due, awing and payable by
the Mortgagor to the Mortgagee and secured under this Bond; the terms of
any rearrangement or alteration in terms
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of clause 13 above and of any other fact relevant to transactions between
the Mortgagor and the Mortgagee including especially but not exclusively
any rate or rates of interest, for all purposes and including without
prejudice to the generality of the aforegoing for the purpose of obtaining
judgment or provisional sentence against the Mortgagor or execution under
this Bond.
20. INTERPRETATION
20.1 In this Bond, unless the context otherwise indicates, words importing
any one gender shall be deemed also to import the other genders and
words importing the singular shall be deemed also to import the plural
and vice versa.
20.2 clause headings are for reference purposes only and shall not he taken
into account in the interpretation of this Bond.
21. WAIVER
With reference to any obligations which the Mortgagor may now or hereafter
have to the Mortgagee (including in particular but without limitation to
the generality of the aforegoing, the obligations hereunder), the Mortgagor
hereby waives all benefit and protection of and under the Agricultural
Credit Act No. 28 of 1966, the Moratorium Act No. 25 of 1963, all
amendments to those statutes and all other statutes passed and to be passed
in substitution, wholly or partially, for any of the aforementioned
statutes passed or to-be passed for the protection of debtors in respect of
which protection may validly be waived.
22. CANCELLATION
The Mortgagor shall not be entitled to require that this Bond is cancelled
until such time as the Mortgagor has directed a written request to the
Mortgagee that this Bond be cancelled and the Mortgagee has agreed in
writing that the full indebtedness of the Mortgagor to the Mortgagee has
been paid and discharged.
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23. ALLOCATION OF PAYMENTS
Notwithstanding anything to the contrary herein contained or in law and
notwithstanding any purported appropriation by the Mortgagor, the Mortgagee
alone shall have the right to appropriate and allocate any moneys received
by the Mortgagee from the Mortgagor at any time to any indebtedness or
obligation of the Mortgagor to the Mortgagee as the Mortgagee may deem fit
from time to time in its sole and absolute discretion and the Mortgagor
hereby waives the right to name the debt to which any such moneys may or
shall be allocated or appropriated.
24. WAIVER OF CLAIMS BY MORTGAGOR
The Mortgagee shall under no circumstances be liable for any loss or damage
as a result of any act, omission, fault or negligence in exercising any of
its powers or any mandate in terms of this Bond and the Mortgagor does
hereby waive any claim which it may have against the Mortgagee arising out
of any such act, omission, fault or negligence, as the case may be.
25. JURISDICTION
The Mortgagor consents in terms of Section 45 of Act 32 of 1944 (or any
amendment or substitution thereof) that the Mortgagee may at its option
enforce any rights in terms of this bond in the Magistrate's Court for any
district having jurisdiction over the Mortgagor in terms of Section 28(1)
of the said Act.
26. CONFLICTING PROVISIONS
If any of the provisions of this bond conflict with any of the provisions
of the Loan Agreement and/or any other agreement entered into between the
Mortgagor and the Mortgagee in terms whereof the obligations of the
Mortgagor are secured by this
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Bond then the provisions of the Loan Agreement and/or such other agreement
shall prevail, as the case may be.
27. NON-PREJUDICE TO PRIOR NOTARIAL GENERAL COVERING BOND
It is recorded that the Mortgagor has caused to be registered. aver the
Assets, two prior Notarial General Covering Bonds in favour of INDUSTRIAL
DEVELOPMENT CORPORATION OF SOUTH AFRICA LIMITED (hereinafter referred to as
"the First and Second Mortgagee", and the Mortgagee in terms of this Bond
being hereinafter referred to as "the Third Mortgagee"), which prior
Notarial General Covering Bonds shall rank in all respects ahead of this
Bond and as First and Second Notarial General Covering Bonds (and which
shall hereinafter be referred to as such), and that notwithstanding
anything to the contrary herein expressly or impliedly contained -
27.1 this Bond shall rank thereafter as a third Notarial General Covering
Bond (and shall hereinafter be referred. to as such);
27.2 this Third Notarial General Covering Bond shall not prejudice, compete
or interfere with or affect the rights or preference of the First and
Second Mortgagee under the First and Second Notarial General Covering
Bonds over the property hereby mortgaged;
27.3 the First and Second Mortgagee shall have and exercise all the rights,
privileges and preferences as it has in terms of the First and Second
Notarial General Covering Bonds and in law as if this mortgage bond
had not been executed or registered, whether in case of sale in
execution or insolvency of the Mortgagor or otherwise;
27.4 the Third Mortgagee may not, without the prior written consent of the
First and Second Mortgagee, cause the Assets to be attached in
execution of a judgment or liquidate the Mortgagor or place it under
judicial management;
27.5 the First arid Second Mortgagee shall in its discretion exercise its
right to grant further advances to the Mortgagor under the First and
Second Notarial
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General Covering Bonds, without its rights in terms of this clause
being prejudiced;
27.6 the Third Mortgagee shall not cede or assign any of its rights or
obligations under this bond without the prior written consent of the
First and Second Mortgagee.
THUS DONE AND SIGNED at JOHANNSBURG on the day, month and year first
aforewritten, in the presence of the subscribing witnesses, both present at the
same time.
AS WITNESSES;
1.
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2. QUOD ATTESTOR
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NOTARY PUBLIC
[LAST SIGNED OCTOBER 2002]