EXHIBIT 4.36
AGREEMENT
between
DURBAN ROODEPOORT DEEP, LIMITED
and
RAND REFINERY LIMITED
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TABLE OF CONTENTS
1. INTERPRETATION.......................................................4
2. INTRODUCTION.........................................................7
3. APPOINTMENT..........................................................7
4. FORWARD SALE CONTRACTS...............................................8
5. DURATION OF AGREEMENT................................................9
6. WARRANTIES...........................................................9
7. DELIVERY OF PRODUCT.................................................10
8. CONFIDENTIALITY.....................................................11
9. INSURANCE AND RISK..................................................11
10. WEIGHING, SAMPLING AND ASSAYING...................................12
10.1 WEIGHT DETERMINATION...........................................12
10.2 SAMPLING.......................................................13
10.3 WEIGHT CORRECTION..............................................13
10.4 WARRANTY.......................................................14
10.5 ORIGIN DETERMINATION...........................................14
10.6 SEPARATE ASSAY.................................................14
10.7 ASSAY DETERMINATION............................................14
10.7.1 INITIAL ASSAY................................................14
10.7.2 OFFICIAL ASSAY...............................................15
10.7.3 ASSAY AGREEMENT..............................................15
10.8 SPECIAL TREATMENT..............................................17
10.9 PRECIOUS METAL RECEIPT VOUCHER.................................17
11. OTHER METALS......................................................17
12. RIGHT OF REFUSAL..................................................18
13. REFINING FEES.....................................................18
14. SALE OF GOLD......................................................18
15. GOLD MARKETING AND LOAN FEE.......................................19
16. SALE OF SILVER....................................................20
17. SILVER REALISATION FEE............................................21
18. INCREASE IN FEES..................................................21
19. FINANCE COSTS.....................................................22
20. SET OFF AND VAT...................................................22
21. FORCE MAJEURE.....................................................23
22. ARBITRATION.......................................................24
23. BREACH............................................................27
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24. TERMINATION.......................................................27
25. DOMICILIUM AND NOTICES............................................28
27. FAIRNESS..........................................................29
28. GENERAL...........................................................30
ANNEXURE A
ANNEXURE B
ANNEXURE C
ANNEXURE D
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AGREEMENT
between
DURBAN ROODEPOORT DEEP, LIMITED
and
RAND REFINERY LIMITED
1. INTERPRETATION
In this agreement and its annexures -
1.1 clause headings shall not be used in its interpretation;
1.2 unless the context clearly indicates a contrary intention -
1.2.1 an expression which denotes -
1.2.1.1 any gender includes the other genders;
1.2.1.2 a natural person includes an artificial person and
vice versa;
1.2.1.3 the singular includes the plural and vice versa;
1.2.2 the following expressions shall bear the following meanings
and related expressions bear corresponding meanings -
1.2.2.1 "business day" any day on which RRL refines gold, which day is not -
1.2.2.1.1 a Saturday, Sunday or public holiday; and/or
1.2.2.1.2 a day on which banks are closed for business in the
RSA and/or the United Kingdom and/or the state of New
York;
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1.2.2.2 "deposits" the deposits into which the product is combined as
contemplated in clause 10.2;
1.2.2.3 "depositor" Durban Roodepoort Deep, Limited who act as agent on
behalf of various mines as per Annexure D;
1.2.2.4 "designated a bank account nominated by the depositor, in writing;
account"
1.2.2.5 "dore" dore bullion refined to an alloy containing at least
85% gold, approximately 10% silver and approximately
5% base metals;
1.2.2.6 "forward sale any contract in terms of which the depositor has
contract" contractually committed itself, in respect of the
future delivery of refined gold, to a third party in
terms of a formal agreement;
1.2.2.7 "gold" any gold in any form whatever extracted from the
product by the refining process;
1.2.2.8 "gold price" the price of gold quoted in United States Dollars per
xxxx ounce of gold;
1.2.2.9 "mine site" the premises from which the product will be collected
by or despatched to RRL for all purposes in terms of
this agreement;
1.2.2.10 "product" dore cast in bar form weighing up to thirty one
kilograms per bar, which bars comply with the
dimensions set out in Annexure B;
1.2.2.11 "refine" the refining of the product by RRL into merchantable
units as set out in this agreement;
1.2.2.12 "refined gold" the merchantable units of gold which RRL extracts from
the product;
1.2.2.13 "refining the process utilised by RRL to refine the product for
process" the purpose of extracting, inter alia, gold and silver
therefrom;
1.2.2.14 "RRL" Rand Refinery Limited (registration number
1920/006598/06), duly
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incorporated in accordance with the laws of RSA;
1.2.2.15 "RSA" the Republic of South Africa;
1.2.2.16 "signature the date of signature of this agreement by the last
date" party signing;
1.2.2.17 "silver" any silver in any form whatever extracted from the
product by the refining process;
1.2.2.18 "silver price" the price of silver quoted in United States Dollars
per xxxx ounce of silver;
1.2.2.19 "umpire" the expert agreed upon by the parties to determine any
dispute relating to the assay of the gold and/or
silver content of the product, and failing agreement
being reached within three business days after either
party requires such agreement to be reached, an
independent laboratory or facility nominated by the
depositor and failing such nomination within three
business days after the expiry of the first mentioned
three business day period, an independent laboratory
or facility nominated by RRL;
1.2.3 any word or phrase defined in the body of this agreement as
opposed to in clause 1.2.2 shall have the meaning assigned to
it in such definition throughout this agreement;
1.3 if any provision in a definition is a substantive provision conferring
any right or imposing any obligation on any party, then
notwithstanding that it is only in the interpretation clause effect
shall be given to it as if it were a substantive provision in this
agreement;
1.4 when any number of days is prescribed such number shall exclude the
first and include the last day unless the last day falls on a day
which is not a business day in which case the last day shall be the
next succeeding day which is a business day.
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2. INTRODUCTION
2.1 It is recorded that the depositor -
2.1.1 requires RRL to refine the product;
2.1.2 requires all of the gold delivered pursuant to the refining
process of the product, subject to clause 4, to be sold by RRL
on the depositor's behalf;
2.1.3 requires part or all of the silver delivered pursuant to the
refining process of the product to be -
2.1.3.1 sold by RRL on the depositor's behalf; or
2.1.3.2 delivered loco Germiston.
2.2 This agreement records the terms and conditions of the agreement
concluded between the parties.
3. APPOINTMENT
3.1 The depositor appoints RRL, which accepts such appointment, as agent
and on its behalf to -
3.1.1 refine the product; and
3.1.2 subject to clause 4, sell the refined gold; and/or
3.1.3 either -
3.1.3.1 sell the refined silver (or a portion thereof); and/or
3.1.3.2 deliver the refined silver (or a portion thereof) loco
Germiston,
as required by the depositor.
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3.2 The depositor undertakes to forward to RRL certain gold produced by
the depositor whether in dore form or in on-mine refined form, for
processing in terms of this agreement.
4. FORWARD SALE CONTRACTS
4.1 The depositor shall be entitled to enter into forward sale contracts
in respect of the gold content of the dore which is to be refined by
RRL, provided the depositor informs RRL, in writing, not less than
five business days prior to the date (the maturity date) on which the
depositor is obliged to deliver gold in terms of the forward sale
contract, that the depositor has entered into a forward sale contract
in respect of such product.
4.2 Should the depositor notify RRL as aforesaid, then -
4.2.1 RRL shall refine the product of the depositor in terms of this
agreement and shall satisfy the delivery obligations of the
depositor in respect of the gold derived from such product, in
terms of such forward sale contract; and
4.2.2 the provisions of clause 14 shall not apply in respect of such
gold, but the depositor agrees to pay RRL, within two days
after release of such gold by RRL to the depositor or delivery
thereof to a third party on behalf of the depositor, the
administration fee set out in Annexure C per fine xxxx ounce
of gold refined by RRL in terms of this agreement which is the
subject matter of a forward sale contract.
The depositor shall, in addition to the aforesaid administration fee,
pay to RRL within two days after receipt of RRL's invoice, all costs
associated with RRL meeting the aforesaid obligations in terms of any
such forward sale contract.
4.3 Should the depositor fail to notify RRL of any such forward sale
contract as aforesaid, RRL shall be entitled to sell the gold content
of the product in terms of this agreement.
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5. DURATION OF AGREEMENT
This agreement shall commence on the signature date and shall, save as
otherwise provided herein, continue for an indefinite period unless and
until terminated by either party, on twelve months written notice to the
other of them.
6. WARRANTIES
6.1 Each of the depositor and RRL warrant to each of the other of them
that -
6.1.1 it has full and complete power and authority to enter into and
execute this agreement;
6.1.2 it has no knowledge of any reason which might result in it
being unable to fulfil its obligations in terms of this
agreement;
6.1.3 the conclusion of this agreement will not infringe or violate
the laws to which it is subject.
6.2 This agreement is entered into by the parties relying on the
warranties in clause 6.1 and otherwise given in terms of this
agreement, each of which is deemed to be a material warranty inducing
the parties to enter into this agreement.
6.3 The depositor indemnifies RRL against all loss, liability, damage and
expense (including legal costs on the scale as between attorney and
own client and disbursements) incurred by RRL as a result of any
breach by the depositor of any of the warranties given by the
depositor to RRL in terms of clauses 6.1 and 10.4 of this agreement.
6.4 RRL indemnifies the depositor against all loss, liability, damage and
expense (including legal costs on the scale as between attorney and
own client and disbursements) incurred by the depositor as a result of
any breach by RRL of any of the warranties given by RRL to the
depositor in terms of clauses 6.1 and 10.4 of this agreement.
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7. DELIVERY OF PRODUCT
7.1 Before delivery of the product to or collection of the product by RRL,
the depositor shall, at its expense, obtain from the relevant
authorities such permits, licences and approvals as may be required in
law to authorise the depositor to be in possession of, transport and
deliver such product and shall, when requested to do so by RRL,
provide RRL with copies thereof. RRL shall be entitled to refuse to
collect, take delivery of and/or treat any product until all such
permits, licenses and approvals have been delivered to it.
7.2 All documents, including waybills, delivered to RRL shall contain full
details of the product including bar numbers, bar codes, gross bar and
deposit masses, provisional assays and provisional fine contents.
7.3 Save as otherwise agreed by the parties, RRL shall collect the product
from the mine site and arrange for transport and delivery thereof to
RRL's premises at the cost of the depositor.
7.4 The depositor shall inform RRL, from time to time, when the product
must be collected from the mine site, provided that it shall be
obliged to give RRL reasonable notice thereof and all such collections
shall be executed during normal business hours.
7.5 The depositor shall have no claim whatever against RRL for any delay
in collection of the product from the mine site other than as a result
of the negligence of RRL.
7.6 The mode of transportation shall be as specified by the depositor on
reasonable notice prior to the collection from the mine site, but
shall be one of the following -
7.6.1 road; or
7.6.2 helicopter; or
7.6.3 fixed wing aircraft.
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Should the depositor not specify the mode of transportation on
reasonable notice as aforesaid, RRL may elect, in consultation with
the depositor, which method of collection will be used and the
depositor shall remain liable for all costs incurred by RRL in respect
of any collection of such product.
7.7 Should the product be delivered to RRL by the depositor, the depositor
undertakes to ensure that the product is delivered at RRL's premises
by not later than 11:00 on a business day.
7.8 The depositor shall pay the costs of collection of the product by RRL
from the mine site against receipt of RRL's invoice therefor.
7.9 Notwithstanding anything to the contrary contained herein, should a
helicopter or fixed wing aircraft be used to collect the product, the
parties acknowledge and agree that RRL in chartering any such services
shall, unless otherwise agreed in writing, act as the depositor's
agent and shall not itself be the charterer of the helicopter or
aircraft.
7.10 The depositor indemnifies RRL against all loss, liability, damage and
expense (including legal costs on the scale as between attorney and
own client and disbursements) of every nature whatever incurred by RRL
as a result of and/or arising from the death of any person and/or any
damage of any nature whatever caused by any helicopter or fixed wing
aircraft, which is used to transport the product, to the person or
property of any third party.
8. CONFIDENTIALITY
The provisions of and all information relating to this agreement shall be
kept strictly confidential and shall not be divulged by either party to a
third party without the prior written consent of the other party hereto,
unless such disclosure is required in law or is necessary in order for
either party to enforce its rights in terms of this agreement.
9. INSURANCE AND RISK
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9.1 The depositor shall be liable for all loss of and/or damage to the
product from any cause whatever and shall insure the product, at its
cost -
9.1.1 until the arrival of the product at RRL's bullion reception
area; and
9.1.2 after the collection of or despatch from RRL's premises of the
product, in the event of any such product being returned to
the depositor.
9.2 RRL shall be liable for all loss of and/or damage to the product, from
any cause whatever, after the arrival of the product at RRL's bullion
reception area.
9.3 Should any product, the gold and/or silver contents thereof be
required to be returned to the depositor as contemplated in clauses
10.1.4.2, 12.1, 14.2, 16.2 or 25, the depositor shall bear the full
cost of regaining possession thereof.
10. WEIGHING, SAMPLING AND ASSAYING
10.1 WEIGHT DETERMINATION
10.1.1 On collection of the product by RRL from the mine site or
delivery thereof to RRL by the depositor, as the case may be,
the depositor shall inform RRL of the depositor's calculated
weight of the product ("depositor's wet weight"). Each
individual bar received shall not exceed the maximum weight
and dimensions as specified in Annexure B.
10.1.2 As soon as practically possible after arrival of the product
at RRL's premises in Germiston, the product shall be weighed
individually by RRL ("RRL's wet weight"), dried to remove
moisture and then reweighed after drying ("dry weight"). RRL
shall advise the depositor of both weights.
10.1.3 The depositor and RRL shall, from time to time, agree and
record in writing, the variance ("the tolerated variance")
between RRL's wet weight and the depositor's wet weight which
is to be allowed. Should the depositor and RRL fail to agree
in writing on the tolerated variance, then the depositor shall
be deemed to have agreed to accept RRL's wet weight as being
correct and RRL's wet weight shall be final and binding on the
depositor.
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10.1.4 Should the depositor and RRL have agreed, in writing, on the
tolerated variance and should the difference between RRL's wet
weight and the depositor's wet weight -
10.1.4.1 fall within the tolerated variance then RRL's wet
weight shall be deemed to be correct and final and
binding on the depositor; or
10.1.4.2 exceed the tolerated variance, the product will be
held up from further processing and the depositor
shall be notified thereof in writing, after which the
depositor shall have seventy two hours to cancel the
order in respect of the product forming the subject
matter of such variance, in which event the product
will be returned to the depositor at the depositor's
cost. Should the depositor not cancel the order or
fail to respond to RRL in writing within the
aforementioned seventy two hour period, the depositor
shall be deemed to have accepted RRL's wet weight,
which shall be final and binding on the depositor.
10.2 SAMPLING
Subject to clause 10.6, the product shall be combined into deposits
suitable for available furnace capacity. Every such deposit shall be
melted separately and samples taken from the melt, for subsequent
assay determination in terms of clause 10.7.
10.3 WEIGHT CORRECTION
To compensate for the refining effect which occurs during melting and
sampling, due to the elimination of base metals, a correction factor
as indicated in Annexure A ("the correction factor") shall be applied
to the dry weight referred to in clause 10.1.2 and hence to the fine
gold content of each deposit. The dry weight after adjusting same with
the aforesaid correction factor is hereinafter referred to as "the
final dry weight". The base metal results derived from the application
of the XRF technique referred to in clause 10.7.1 in respect of each
deposit shall be applied in the correction formula as indicated in
Annexure A.
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10.4 WARRANTY
The depositor warrants that all product delivered and/or collected for
refining shall be free from deleterious elements and/or compounds.
10.5 ORIGIN DETERMINATION
RRL reserves the right to subject the depositor's product to such
tests as RRL may from time to time determine to be appropriate in
order to determine the origin and/or source of the gold content
thereof. The cost of such tests shall be borne by RRL.
10.6 SEPARATE ASSAY
10.6.1 Each portion of product comprising a delivery for which a
separate assay is required by the depositor shall be deemed by
RRL to be a separate deposit.
10.6.2 Should the depositor wish any portion of product delivered to
RRL to receive a separate assay it shall be obliged to -
10.6.2.1 inform RRL thereof, in writing, at least twenty four
hours prior to collection by and/or delivery of the
product to RRL, as the case may be; and
10.6.2.2 reflect such requirement on the consignment waybill/s,
failing which RRL shall not be obliged to perform such
separate assays.
10.6.3 All additional costs incurred in connection with any such
separate assay shall be paid by the depositor against receipt
of RRL's invoice in respect thereof.
10.7 ASSAY DETERMINATION
10.7.1 INITIAL ASSAY
The initial assay ("the initial assay") conducted by RRL on
the date of receipt of the product by RRL shall be conducted
by RRL using the X-ray
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fluorescence technique ("the XRF technique"), prior to the
refining of the product.
10.7.2 OFFICIAL ASSAY
The samples from each deposit shall be submitted to the Assay
Department of RRL, for determination of the official assay
("RRL's official assay") which assay shall be determined using
the fire assay technique, after the melting of the product.
The official assay shall determine the fine gold and silver
content, expressed in xxxx ounces, of the product.
10.7.3 ASSAY AGREEMENT
10.7.3.1 The depositor may advise RRL, in writing, of its
expected official assay, and may set limits within
which RRL's official assay must fall in order to
constitute assay agreement between the parties.
10.7.3.2 Notwithstanding anything to the contrary contained
herein, should -
10.7.3.2.1 the depositor fail to provide the limits referred
to in clause 10.7.3.1 in writing to RRL by not
later than the time of delivery to or collection
of the product by RRL; or
10.7.3.2.2 RRL's official assay fall within the limits set by
the depositor,
RRL's official assay shall be final and binding on the
parties and constitute the official assay for all purposes
in terms of this agreement.
10.7.3.3 Subject to clause 10.7.3.2, should any discrepancy
arise between the depositor's expected official assay
and RRL's official assay, which is outside the limits
set by the depositor referred to in clause 10.7.3.1 -
10.7.3.3.1 RRL shall notify the depositor thereof in writing,
after which the depositor shall have seventy two
ours within which to
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require RRL to refer the matter to the umpire as
contemplated in clause 1.2.2.19 to determine the
official assay of the product; and
10.7.3.3.2 should the depositor -
10.7.3.3.2.1 not require the matter to be referred to the
umpire or should the depositor fail to
respond within the aforementioned seventy two
hour period, the depositor will be deemed to
have accepted RRL's official assay and the
deposit shall immediately be released for
refining and the official assay determined by
RRL referred to in clause 10.7.2 shall be
final and binding upon the depositor and
constitute the official assay for all
purposes in terms of this agreement;
10.7.3.3.2.2 require the matter to be referred to the
umpire, the provisions of clause 10.7.4 shall
apply to the determination of the dispute.
10.7.4 Should any dispute be referred to the umpire for determination
in terms of this agreement the umpire shall resolve such
dispute acting as an expert and not as an arbitrator and the
umpire's decision shall, save for any manifest error in
calculation, be final and binding on the parties. The assay as
determined by the umpire shall in such case constitute the
official assay for all purposes in terms of this agreement.
The costs of such umpire shall be borne by the party whose
assay has the greater variance to that of the umpire, but
should the variance between the umpire's assay and that of
each of the other parties be equal, the costs shall be borne
by each of the parties in equal shares.
10.7.5 Notwithstanding any dispute referred to in clause 10.7.4, RRL
shall be entitled to sell the gold and/or silver which shall
immediately be released at any time prior to the umpire's
determination of the official assay. RRL shall apply RRL's
official assay to any such sale, whereafter RRL shall be
obliged, subject to clause 14.4, to compensate the depositor
(at the price determined, mutatis mutandis in accordance with
the provisions of clause 14.3) in respect
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of the differential between RRL's official assay and the
official assay of the umpire, should the umpire's official
assay exceed RRL's official assay.
10.8 SPECIAL TREATMENT
10.8.1 Where deemed necessary by RRL after consultation with the
depositor after assay determination by the XRF technique,
deposits may be subjected to special treatment prior to
further sampling or rejected in terms of clause 12. Product
containing deleterious elements and/or compounds in excess of
the amounts specified in this clause 10.8.1 will require
resmelting and resampling for which additional charges, as set
out in Annexure C, will be levied. The aforegoing will be
necessary if the product contains more than 2% iron and/or
more than 10% copper and/or more than 0,01 % platinum group
metals (being platinum, palladium, osmium and/or iridium).
Product containing more than 0,2% mercury and/or antimony will
not be accepted for refining.
10.8.2 Where any metal is deposited in a form other than that
referred to in clause 1.2.2.10 prior arrangements need to be
made with RRL as these deposits may attract additional
charges.
10.9 PRECIOUS METAL RECEIPT VOUCHER
As soon as possible after the official assay is completed and known,
RRL shall furnish the depositor with a Precious Metal Receipt voucher
reflecting the final dry weight, the refined gold and silver content
of each deposit and the amount by which the dry weight has been
adjusted as contemplated in clause 10.3 to arrive at the final dry
weight.
11. OTHER METALS
RRL shall not pay the depositor in respect of the sale of metals other than
gold and silver found in the product refined in terms of this agreement.
Save for gold and silver all other metals and substances extracted from the
product, as well as all residues remaining after treatment, shall become
the property of RRL.
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12. RIGHT OF REFUSAL
12.1 Notwithstanding anything to the contrary contained herein, the terms
of this agreement shall not bind RRL to accept for treatment any
product submitted to it and/or collected by it, on the basis that RRL
reserves the right to refuse to accept product if in the reasonable
opinion of RRL -
12.1.1 such product contains deleterious elements and/or compounds in
excess of the amounts specified in clause 10.8.1; and/or
12.1.2 acceptance of such product could be prejudicial to the
interest of RRL.
Should RRL not accept any material collected by it, RRL shall be
obliged to notify the depositor thereof and to return such product to
the depositor at the depositor's sole cost and expense.
12.2 Should RRL exercise its rights in terms of clause 12.1 in respect of
any product, the provisions of clause 3.2 shall cease to apply
thereto.
13. REFINING FEES
13.1 In consideration for the services to be rendered by RRL in terms of
this agreement, the depositor agrees to pay RRL the rate per kilogram
set out in Annexure C, of the final dry weight determined in terms of
clause 10.1, of all product refined by RRL.
13.2 The depositor shall pay RRL the refining fees referred to in clause
13.1 within two days after receipt by RRL of the product for refining.
14. SALE OF GOLD
14.1 RRL shall, subject to clause 4, use its best endeavors to sell the
gold content of the product on the day the product arrives at RRL's
premises, provided that the product arrives at RRL's premises prior to
11h00 on a business day. Should the provisions of clause 10.1.4.2
apply and the depositor does not cancel the order as contemplated in
10.1.4.2, then RRL shall endeavor to sell the gold content of such
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product on the business day succeeding the expiration of the seventy
two hour period referred to in clause 10.1.4.2.
14.2 Notwithstanding anything to the contrary contained in this agreement
should RRL fail to sell the gold on behalf of the depositor within
thirty days of the completion of the total refining process, RRL shall
return the gold content of the product to the depositor.
14.3 The price payable in respect of all gold sold in terms hereof shall be
the gold price based on the London afternoon fix on the day the gold
is sold by RRL on behalf of the depositor (and failing any such fix,
the next available London fix).
14.4 All payments will be made in United States Dollars or South African
Rands (as nominated by the depositor in writing from time to time,
failing which RRL shall settle such amount in South African Rands) to
the designated account, on the date of receipt by RRL of payment in
respect of the gold sold by it. Should, however, the determination of
the official assay fall to be determined by the umpire, payment of any
differential referred to in clause 10.7.5 shall only be made on the
later of the date on which the umpire determines the official assay
and the date of receipt of payment in respect of the gold by RRL.
14.5 It is expressly understood that payment is based on the adjusted fine
gold content of the product determined as provided for in clause 10.3
and in accordance with the provisions of clause 3 of Annexure C, it
being understood by the depositor that the depositor shall be paid for
the percentages of the gold content of the product as set out in
clause 3 of Annexure C.
15. GOLD MARKETING AND LOAN FEE
15.1 It is recorded that RRL will sell the gold produced in terms of this
agreement on an international market and as such will incur the cost
of marketing and selling such gold in such territory.
15.2 In order for RRL to sell the gold as per 14.1 it will have to incur a
cost relating to a gold loan facility and in order to compensate RRL
for the aforementioned costs and the costs referred to in 15.1, the
depositor shall pay RRL a gold marketing and loan
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fee as set out in Annexure C per fine xxxx ounce of all gold refined,
which fee shall be based on the official assay of the product.
15.3 The gold marketing and loan fee referred to in clause 15.2 payable in
respect of any product shall be paid by the depositor within two days
after the determination of the official assay of such product.
16. SALE OF SILVER
16.1 Should the depositor require RRL to sell any of the silver content of
the product after the completion of the refining process RRL shall use
all reasonable endeavours to do so and the provisions of this clause
16 shall apply.
16.2 Notwithstanding anything to the contrary contained in this agreement
should RRL fail to sell the silver content of the product within
thirty days of the completion of the total refining process in respect
of such product, RRL shall return such silver to the depositor.
16.3 RRL shall pay the depositor the silver price of any silver sold by it
which price shall be based on the London Silver Market price on the
date on which such silver is sold by RRL (and failing any such price,
the next available London Silver Market price).
16.4 RRL will procure payment on the date of receipt of payment from the
third party purchaser for the silver sold, provided that if the
determination of the official assay is to be determined by the umpire,
the payment of any differential referred to in clause 10.7.5 shall
only be made on the later of the date on which the umpire determines
the official assay and the fourteenth business day after receipt of
payment as aforesaid.
16.5 All payments will be made in United States Dollars or South African
Rands (as nominated by the depositor, in writing from time to time,
failing which RRL shall settle such amount in South African Rands) to
the designated account.
16.6 It is expressly understood that payment is based on the adjusted fine
silver content of the product determined as provided for in clause
10.3 and in accordance with the provisions of clause 3 of Annexure C,
it being understood by the depositor that the
Page 21
depositor shall be paid for the percentages of the silver content of
the product as set out in clause 3 of Annexure C.
17. SILVER REALISATION FEE
17.1 The depositor shall pay RRL a realisation fee as set out in Annexure C
per fine xxxx ounce of all silver refined, which fee shall be based on
the official assay of the product.
17.2 The silver realisation fee referred to in clause 17.1 payable in
respect of any product shall be paid by the depositor within two days
after the determination of the official assay of such product.
18. INCREASE IN FEES
18.1 The depositor acknowledges that it may be necessary for RRL to
increase its fees and charges levied from time to time for services
rendered in terms of this agreement.
18.2 The depositor agrees that RRL shall be entitled from time to time, to
-
- increase the administration fee payable to it referred to in
clause 4.2.2; and/or
- increase the refining fee payable to it referred to in clause
13.1; and/or
- increase the gold marketing and loan fee referred to in clause
15; and/or
- increase the silver realisation fee referred to in clause 17;
and/or
- change the credit to depositors percentages reflected in
clause 3 of Annexure C, on three months written notice to the
depositor,
18.2.1 by not more than 10% in any twelve month period; and
Page 22
18.2.2 by more than 10% in any twelve month period, provided RRL's
board of directors so resolve.
19. FINANCE COSTS
19.1 It is recorded that where a dispute arises between the depositor and
RRL which is to be determined in accordance with the provisions of
clause 10.7.4, then having regard to the fact that RRL has agreed, as
contemplated in clause 14.1, to sell gold on behalf of the depositor
prior to the settlement of any such dispute, RRL will be obliged to
use its gold loan facilities to satisfy the delivery obligations in
terms of such contracts of sale which will result in RRL incurring
additional finance costs. The aforesaid finance costs shall comprise
the weighted average cost to RRL of the gold lease rates associated
with RRL's gold loan facilities which RRL will avail itself of, during
the period from the date of payment by RRL to the depositor of the
price for the gold sold until the date of determination by the umpire
of the relevant dispute referred to in clause 10.7.4, as certified by
the auditors of RRL, whose certificate shall be final and binding on
the parties.
19.2 The depositor agrees that where it is obliged to pay all or half of
the costs of the umpire as contemplated in clause 10.7.4, then it
shall be obliged to reimburse RRL with all or half, as the case may
be, of the finance costs referred to in clause 19.1 against receipt of
a statement from RRL in respect thereof.
20. SET OFF AND VAT
Notwithstanding anything to the contrary contained herein -
20.1 either party shall at any time be entitled to set off any amount due
by such party to the other party in terms of this agreement against
any amount due by the other party to the first mentioned party in
terms of this agreement;
20.2 RRL shall not be obliged to pay the depositor any amount in respect of
the sale of gold or silver in terms of this agreement until RRL has
received the price therefor from the purchaser thereof, on the basis
that RRL does not guarantee the payment of the sale price thereof by
any third party purchaser where such third party has
Page 23
been approved of by the board of directors of RRL as an accredited
purchaser of gold and/or silver, as the case may be;
20.3 all amounts expressed to be payable in terms hereof are exclusive of
Value Added Tax ("VAT") as levied in terms of the Value Added Tax Act,
as amended, from time to time, and as such should any amount payable
in terms of this agreement attract VAT, then the party paying such
amount shall be liable for the payment of VAT thereon at the then
current rate of VAT.
21. FORCE MAJEURE
21.1 No party shall be liable to the other for failure to perform any
obligation under this agreement in the event and to the extent that
such failure is caused by an event of force majeure.
21.2 An event of force majeure shall mean any circumstances beyond the
reasonable control of the party giving notice of force majeure and,
without prejudice to the generality of the aforegoing, shall include
war (whether declared or not), revolution, invasion, insurrection,
riot, civil commotion, mob violence, sabotage, blockage, boycott,
military or usurped power, governmental embargo, storm, flood, fire,
adverse weather conditions, strike, accidents or labour difficulties.
21.3 The party affected by an event of force majeure shall give notice to
the other party immediately on the occurrence of such event if it
causes or is likely to cause any failure to perform any obligation
hereunder. If the event of force majeure is of such a nature that it
will not result in impossibility of performance of the obligation in
question but merely delay the performance thereof then, subject to
clause 21.4 the party giving notice of such event of force majeure
shall be entitled to such extension of time in which to perform such
obligation as may be reasonable in the circumstances taking into
account the interests of all the parties.
21.4 If the performance of any obligation of any party in terms of this
agreement is substantially prevented for a continuous period of two
months by an event of force majeure then either the depositor and/or
RRL may by written notice to the other terminate this agreement
forthwith or from a date stipulated in such notice, in which event no
party shall have any claim against any other as a result thereof.
Page 24
22. ARBITRATION
22.1 Subject to the other provisions of this agreement specifically
providing for the resolution of any dispute, should any dispute of any
nature whatever arise out of or in connection with this agreement,
including without limiting the generality of the aforegoing -
22.1.1 the validity, existence and/or implementation;
22.1.2 the interpretation and/or application of the provisions;
22.1.3 the respective rights and/or obligations of the parties in
terms of or arising out of the conclusion, breach and/or
termination, whether in whole or in part;
22.1.4 any documents furnished by the parties pursuant to the
provisions of this agreement,
then either party shall be entitled to require, by written notice to
the other, that the dispute be submitted to arbitration in terms of
this clause 22.
22.2 This clause 22 shall not preclude any party from obtaining interim
relief on an urgent basis from a court of competent jurisdiction
pending the decision of the arbitrator.
22.3 Subject to the provisions of this clause 22, an arbitration shall be
held under the provisions of the arbitration laws for the time being
in force in the RSA -
22.3.1 the arbitrator shall be, if the question in issue is -
22.3.1.1 primarily an accounting matter, an independent
practising chartered accountant of not less than ten
years standing;
22.3.1.2 primarily a legal matter, a practising senior counsel
or attorney of not less than ten years standing;
Page 25
22.3.1.3 any other matter, a suitably qualified independent
person,
agreed upon by the parties or, failing such agreement within three
days after the date on which the arbitration is demanded, as to -
whether the dispute is of primarily a legal, accounting or
other nature, the dispute shall be deemed to be of a legal
nature; or
the identity of the arbitrator, the arbitrator shall be
appointed by the director of the Transvaal (or its successor)
who may be instructed by any party to make the nomination at
any time after the expiry of the aforesaid three day period;
22.3.2 the arbitration shall be held in Johannesburg at a venue and
in accordance with formalities and/or procedures determined by
the arbitrator, and may be held in an informal and summary
manner, on the basis that it shall not be necessary to observe
or carry out the usual formalities or procedures, pleadings
and/or discovery, or the strict rules of evidence;
22.3.3 the arbitration shall, save as is specifically otherwise
provided in this clause 22, be held in accordance with the
provisions of the Arbitration Act No. 42 of 1965, as amended;
22.3.4 the arbitrator shall be entitled to -
22.3.4.1.1 investigate or cause to be investigated any
matter, fact or thing which he considers necessary
or desirable in connection with the dispute and
for that purpose shall have the widest powers of
investigating all the books and records of any
party to the dispute, and the right to take copies
or make extracts there from and the right to have
them produced and/or delivered at any reasonable
place required by him for the aforesaid purpose;
22.3.4.2 interview and question under oath representatives of
any of the parties;
Page 26
22.3.4.3 decide the dispute according to what he considers just
and equitable in the circumstances;
22.3.4.4 make such award, including an award for specific
performance, an interdict, damages, a penalty or
otherwise as he in his discretion may deem fit and
appropriate;
22.3.5 the arbitration shall be held as quickly as possible after it
is demanded with a view to its being completed within thirty
days after it has been so demanded;
22.3.6 immediately after the arbitrator has been agreed upon or
nominated in terms of clause 22.3.1 any party shall be
entitled to call upon the arbitrator to fix a date and place
when and where the arbitration proceedings shall be held and
to settle the procedure and manner in which the arbitration
proceedings will be held.
22.4 Any award that may be made by the arbitrator -
22.4.1 shall be final and binding;
22.4.2 will be carried into effect; and
22.4.3 may be made an order of any court to whose jurisdiction the
parties to the dispute are subject.
22.5 The parties agree to keep the arbitration, the subject matter thereof
and the evidence led thereat confidential and not to disclose any of
the aforegoing to any one except for the purposes of an order to be
made in terms of clause 22.2 or as may otherwise be required in law.
22.6 The provisions of this clause 22 -
22.6.1 constitute an irrevocable consent by the parties to any
proceedings in terms hereof and no party shall be entitled to
withdraw therefrom or to claim at any such proceedings that it
is not bound by such provisions; and
Page 27
22.6.2 are severable from the other provisions of this agreement and
shall remain in effect notwithstanding the termination of or
invalidity for any reason of this agreement.
22.7 This agreement shall be construed in accordance with the laws of the
RSA.
22.8 The parties agree and consent that any proceedings which may arise out
of or in connection with this agreement shall be determined in
accordance with the provisions of this clause 22 and the parties
consent to the institution of all proceedings in accordance with the
provisions of clause 22.
23. BREACH
Save as otherwise provided in this agreement should any party -
23.1 commit a breach of any provision of this agreement and fail to remedy
such breach within fourteen days after receiving written notice from
the other party requiring the defaulting party to remedy such breach;
or
23.2 which is a corporate entity, be wound-up, liquidated or placed in
judicial management, whether provisionally or finally and whether
voluntarily or compulsorily; or
23.3 commit any act of insolvency,
then and in any such event the other party ("the aggrieved party") shall be
entitled, without prejudice to the aggrieved party's other rights in law,
to cancel this agreement or to claim immediate specific performance of all
of the first mentioned party's obligations whether or not due for
performance, in either event without prejudice to the aggrieved party's
right to claim damages.
24. TERMINATION
Should this agreement terminate for any reason whatever, RRL shall be
entitled, for a period of thirty days calculated from the termination of
this agreement, to sell any gold and silver derived from refining the
product in terms of this agreement, and to account to the
Page 28
depositor therefor on the basis set out herein. RRL shall be obliged to
return to the depositor, all gold and silver belonging to the depositor
which remains unsold after the expiry of the aforesaid thirty day period.
25. DOMICILIUM AND NOTICES
25.1 The parties choose domicilium citandi et executandi for all purposes
of the giving of any notice, the payment of any sum, the serving of
any process and for any other purpose arising from this agreement, as
follows -
25.1.1 the depositor - DURBAN ROODEPOORT DEEP LIMITED
00 Xxxxxx Xxxx
Xxxxxxxx
XXXXXXXXXXXX
facsimile - (011) 482-1022
25.1.2 RRL - Xxxxxxxx Xxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxx, 0000
facsimile - 873 4940
25.2 Each of the parties shall be entitled from time to time, by written
notice to other, to vary its domicilium to any other physical address.
25.3 Any notice given and any payment made by any party to the other which
is delivered by hand during the normal business hours of the addressee
at the addressee's domicilium for the time being shall be presumed to
have been received by the addressee at the time of delivery.
25.4 Any notice given by any party to the other which is transmitted by
facsimile copy to the addressee at the addressee's facsimile address
for the time shall be presumed, until the contrary is proved by the
addressee, to have been received by the addressee on the date of
successful transmission thereof.
Page 29
26. OVERDUE INTEREST
26.1 Any amount falling due for payment by either party to the other in
terms of or pursuant to this agreement -
26.1.1 which is payable in -
26.1.1.1 South African Rands, shall bear interest at the prime
bank overdraft rate ("the prime rate") as charged,
calculated and compounded by The Standard Bank of
South Africa Limited to its corporate customers in
respect of unsecured overdraft facilities, from time
to time, as certified by any manager of any branch of
such bank, whose authority and appointment it shall
not be necessary to prove, calculated from the payment
date until the date such amount is paid in full; and
26.1.1.2 United Stated Dollars, shall bear interest at the US
Bank prime overdraft rate as quoted on Reuters "US
prime equal" page from time to time, as certified by
RRL's auditors, calculated from the payment date until
the date such amount is paid in full;
26.1.2 by way of damages, shall bear interest at the relevant rate
referred to in clause 26.1.1 calculated from the date upon
which those damages are sustained.
26.2 The interest referred to in clause 26.1 shall be compounded monthly in
arrear from the end of the month during which such interest is first
calculated.
27. FAIRNESS
The parties recognize that it is impractical to make provision for every
contingency which may arise during the term of this agreement. The parties
accordingly declare that it is their intention that this agreement should
operate between them with fairness and without undue hardship to either
party. Should any party advise the other of a perceived unfairness, the
parties shall meet and use all reasonable efforts in the circumstances to
agree upon a
Page 30
suitable action to remove such cause of unfairness. Should the parties be
unable to reach agreement in relation thereto within ninety days after
either party has requested that such agreement be reached, either party
shall be entitled to declare a dispute which shall be resolved on, mutatis
mutandis, the basis set out in clause 22.
28. GENERAL
28.1 This document and its annexures constitutes the sole record of the
agreement between the parties in relation to the subject matter
hereof.
28.2 No party shall be bound by any representation, warranty, promise or
the like not recorded herein.
28.3 No addition to, variation, or agreed cancellation of this agreement
shall be of any force or effect unless in writing and signed by or on
behalf of the parties.
28.4 No indulgence which any party may grant to the other shall constitute
a waiver of any of the rights of the grantor, who shall not thereby be
precluded from exercising any rights against the grantee which may
have arisen in the past or which might arise in the future.
28.5 Each provision in this agreement is severable the one from the other
and if any provision is found by any competent court to be defective
or unenforceable for any reason whatever, the remaining provisions
shall be of full force and effect and continue to be of full force and
effect.
28.6 Where in this agreement any party is required to give any notice in
writing such notice may be given via telefacsimile provided the giver
of such notice confirms telephonically on the same day that the other
party has received such notice.
28.7 Neither party shall, save as otherwise provided herein, be entitled to
assign any of its rights and obligations in terms of this agreement
without the prior written consent of the other party.
Page 31
SIGNED at Johannesburg on 12 October 2001
For: DURBAN ROODEPOORT DEEP,
LIMITED
/s/ V. Hoops
who warrants that he is duly
authorised thereto
SIGNED at Germiston on 9 October 2001
For: RAND REFINERY LIMITED
/s/ Xxxx Xxxxxx
who warrants that he is duly
authorised thereto
[LAST SIGNED ON 12 OCTOBER 2001]
Page 32
ANNEXURE A
CORRECTION FORMULA
(Refer to paragraph 9.3)
The mass correction factor shall be calculated in the following manner, where
ma= calculated mass correction
mb= dry mass of the deposit
Au%= gold analysis of the deposit as assessed by XRF method
Cu%= copper analysis of the deposit as assessed by XRF method
Pb%= lead analysis of the deposit as assessed by XRF method
Fe%= iron analysis of the deposit as assessed by XRF method
Ni%= nickel analysis of the deposit as assessed by XRF method
Zn%= zinc analysis of the deposit as assessed by XRF method
Ag%= silver analysis of the deposit as assessed by XRF method
Hence assay enhancement
= c = (0.007 X Cu%) + (0.090 X Pb%) + (0.050 X Fe%) + (0.050 X Ni%) + (0.040 X
Zn%) + (0.0015 X Ag%)
Subject to the maxima Cu% = 20.0
Pb DEG./a = 4.0
Fe% = 5.0
Ni% = 5.0
Zn% = 5.0
Ag DEG./a = 20.0
Hence assay correction = a = Au%-c
Hence mass correction = ma = mb- (a X mb)
-----------
Au%
The official receipt mass then becomes mb-ma
Note:- The factors and maxima utilised in the determination of the assay
enhancement, c, are determined through statistical analysis and RRL
reserves the right to restate them should this be warranted.
Page 33
ANNEXURE B
PRODUCT DIMENSIONS
(DIAGRAM)
Page 34
ANNEXURE C
CHARGES AND FEES
REFINING CHARGES
CLASS 1 : For product containing more than 50% gold:
R57 per kilogram (final dry weight) and minimum charge
of R500 per deposit.
CLASS 2 : For product containing more than 96% silver:
R16 per kilogram (final dry weight) with a minimum
charge of R500 per deposit.
CLASS 3 : For product containing less than 50% gold:
Subject to quotation.
2 ADDITIONAL TREATMENT CHARGE
The additional treatment charge relating to the remelting and resampling of
product referred to in clause 10.8 of the agreement to which this is
annexure C shall be an amount equal to one third of the refining charges
payable in respect of such product referred to in clause 1.
3 CREDIT TO DEPOSITORS
CLASS 1 : For product containing more than 50% gold:
A minimum of 99,9% (ninety nine comma nine per cent)
of the gold content, as per the official assay, shall
be credited to the depositor.
95% (ninety five per cent) of the silver content, as
per the official assay shall be credited to the
depositor.
Page 35
CLASS 2 : For product containing more than 96% silver:
98,5% of the gold content, as per the official assay,
shall be credited to the depositor.
99,0% of the silver content, as per the official
assay, shall be credited to the depositor.
CLASS 3 : For product containing less than 50% gold:
The gold and silver credits are subject to agreement
between RRL and the depositor, and failing such
agreement the product shall be returned to the
depositor at the depositor's cost.
4 GOLD MARKETING AND LOAN FEE
23 US cents per fine xxxx ounce of gold.
5 SILVER REALISATION FEE
15 US cents per fine xxxx ounce of silver.
6 ADMINISTRATION FEE
5 US cents per fine xxxx ounce of gold.
Page 36
DRAFT
ANNEXURE D
YOUR REF: BEM/Ibn/DRD7(1)
20 July 2001
DRD, Ltd
00 Xxxxxx Xxxx
XXXXXXXX
Dear Sir
REFINING, PRODUCTION AND MARKETING OF GOLD PRODUCED
We confirm that Durban Roodepoort Deep, Limited is appointed as the agent of the
company to sell gold on its behalf.
We hereby indemnify Rand Refinery Limited against any claims for loss or damages
which may be instituted by Witwatersrand Refinery (Pty) Ltd by virtue of the
terms and conditions of the refining agreement entered into between the
aforesaid parties on 20 November 2000.
Yours faithfully
DIRECTOR
Page 00
XXXXXX XXXXXXXXXX DEEP, LIMITED
("the Company")
EXTRACT FROM A RESOLUTION OF THE DIRECTORS OF DURBAN ROODEPOORT DEEP, LIMITED
PASSED ON 8 OCTOBER 2001
RESOLVED:
1. THAT the Company enter into a Refining and Marketing Agreement with Rand
Refinery Limited for an indefinite period with twelve months written notice
of termination; and
2. THAT any director of the Company, be and he is hereby authorised and
empowered to sign the Refining and Marketing Agreement on behalf of the
Company.
CERTIFIED A TRUE COPY
---------------------------------- ---------------------------------
SECRETARY DATE
Page 38
ANNEXURE D
Your Ref: BEM/Ibn/DRD7(1)
11 October 2001
DRD, Ltd
00 Xxxxxx Xxxx
XXXXXXXX
Dear Sir
REFINING, PRODUCTION AND MARKETING OF GOLD PRODUCED
We confirm that Durban Roodepoort Deep, Limited is appointed as the agent of the
company to sell gold on its behalf.
We hereby indemnify Rand Refinery Limited against any claims for loss or damages
which may be instituted by Witwatersrand Refinery (Pty) Ltd by virtue of the
terms and conditions of the refining agreement entered into between the
aforesaid parties on 20 November 2000.
Yours faithfully
DIRECTOR
CROWN CONSOLIDATED GOLD RECOVERIES LIMITED
Page 39
ANNEXURE D
Your Ref: BEM/Ibn/DRD7(1)
11 October 2001
DRD, Ltd
00 Xxxxxx Xxxx
XXXXXXXX
Dear Sir
REFINING, PRODUCTION AND MARKETING OF GOLD PRODUCED
We confirm that Durban Roodepoort Deep, Limited is appointed as the agent of the
company to sell gold on its behalf.
We hereby indemnify Rand Refinery Limited against any claims for loss or damages
which may be instituted by Witwatersrand Refinery (Pty) Ltd by virtue of the
terms and conditions of the refining agreement entered into between the
aforesaid parties on 20 November 2000.
Yours faithfully
DIRECTOR
BUFFELSFONTEIN GOLD MINES LIMITED
Page 40
ANNEXURE D
Your Ref: BEM/Ibn/DRD7(1)
11 October 2001
DRD, Ltd
00 Xxxxxx Xxxx
XXXXXXXX
Dear Sir
REFINING, PRODUCTION AND MARKETING OF GOLD PRODUCED
We confirm that Durban Roodepoort Deep, Limited is appointed as the agent of the
company to sell gold on its behalf.
We hereby indemnify Rand Refinery Limited against any claims for loss or damages
which may be instituted by Witwatersrand Refinery (Pty) Ltd by virtue of the
terms and conditions of the refining agreement entered into between the
aforesaid parties on 20 November 2000.
Yours faithfully
DIRECTOR
BLYVOORUITZICHT GOLD MINING COMPANY LIMITED
