(1) INVESTEC BANK LIMITED
(2) DURBAN ROODEPOORT DEEP LIMITED
____________________________
LOAN AGREEMENT
(Reference number: DRD 002)
____________________________
1
THIS LOAN AGREEMENT is dated 15 September 2004
BETWEEN
(1) INVESTEC BANK LIMITED (incorporated in South Africa with registered
number: 1969/004763/06) whose registered office is at 000 Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxx ("IBL")
(2) DURBAN ROODEPOORT DEEP LIMITED (incorporated in South Africa with
registered number: 1895/000926/06) whose registered office is at 00 Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxx ("DRD")
WHEREAS
IBL has agreed to make a loan of ZAR 100,000,000.00 (One Hundred Million Rand)
to DRD subject to the terms and conditions set out in this Loan Agreement.
1. FACILITY
1.1 IBL agrees to make available a loan facility (the "Facility") to DRD
subject to the terms and conditions set out in this Loan Agreement.
Reference to the `Facility' herein shall be to that part of the
Facility that is drawn down at any time.
1.2 The total amount of the Facility is ZAR 100,000,000.00 (One Hundred
Million Rand) which may be drawn down subject to the terms hereof.
2. PURPOSE
The Facility shall be used by DRD for general funding purposes.
3. CONDITIONS PRECEDENT
DRD shall not be entitled to draw down any part of the Facility until IBL
has received as conditions precedent, in each case in the form and
substance satisfactory to it, the documents, items and evidence specified
in the Schedule to this Loan Agreement.
4. DRAWDOWN
4.1 Subject to the satisfaction of the conditions precedent specified in
Clause 3, DRD may draw down up to ZAR20,000,000.00 (Twenty Million
Rand) of the Facility on the day after signature hereof or any time
thereafter but not later than the third day following signature
hereof provided that DRD has given to IBL on the Business Day before
the date of the proposed drawdown, notice of the proposed drawdown,
such notice to be irrevocable and in a form acceptable to IBL.
4.2 The balance of the Facility may be drawn down at IBL's discretion.
Any draw down notice shall be given in the form referred to in
clause 4.1.
2
4.3 IBL may refuse to honour any draw down notice in its sole
discretion.
5. REPAYMENT
5.1 IBL shall be entitled at any time to call for repayment of such
portion of the Facility as is drawn down at the time, by delivering
a notice (the "Repayment Notice") to this effect in accordance with
the terms hereof. The date of delivery of this notice shall be the
`Recall Date' for the purposes of this Loan Agreement.
5.2 Upon receipt of the Repayment Notice DRD may elect to repay the
Facility in cash or by the issue of Shares (as defined below) to IBL
or DRD may elect to repay the Facility partly in cash and partly by
the issue of Shares. This election shall be exercised by the
delivery of a notice (the "Election Notice") to IBL within one
business day of the Recall Date. A failure to deliver an Election
Notice shall be deemed by IBL to be an election by DRD to repay the
Facility in cash.
5.3 In the case of a repayment of the Facility in cash or any part
repayment in cash such repayment shall be made together with accrued
interest thereon within 3 Business Days of the Repayment Notice.
5.4 The delivery of an Election Notice that the Facility shall be
redeemed by the issue of Shares or partly by the issue of Shares
shall be irrevocable.
5.5 In the case of a repayment by the issue of Shares, the provisions
relating to interest shall not apply. Where repayment is partly in
cash and partly by the issue of Shares the provisions relating to
interest shall apply solely to that part of the Facility repaid in
cash.
6. PREPAYMENT
6.1 DRD may prepay the Facility without premium or penalty in whole or
in part (but if in part, any prepayment shall be in integral
multiples of Five Million Rand) and shall be paid solely on the last
day of any Interest Period, provided that DRD shall have given IBL
not less than 3 Business Days' prior notice (which shall be
irrevocable and binding). Such prepayment shall be made together
with accrued interest on the amount prepaid.
6.2 DRD may not make any prepayment except in accordance with this
Clause.
7. INTEREST PERIODS
7.1 The period during which the Facility is outstanding will be divided
into successive periods (each an "Interest Period"). The first
Interest Period relating to the Facility shall commence on the
drawdown date and each subsequent Interest Period shall commence on
the expiry of the preceding Interest Period. Each Interest Period
will be of a duration of one month provided that:
3
7.1.1 if any Interest Period ends on a day which is not a Business
Day, such Interest Period shall be extended to the next
Business Day unless that would extend that Interest Period
into the next following calendar month, in which event that
Interest Period shall be shortened so as to end on the
immediately preceding Business Day.
8. INTEREST
8.1 Subject to Clause 9 below the rate of interest applicable to the
Facility during each Interest Period shall be the rate per annum
determined by the Calculation Agent to be the:
8.1.1 Three month - JIBAR - Reference Banks plus 300 interest basis
points.
8.2 Interest is payable in arrears on the last day of each Interest
Period and is calculated on the basis of the actual number of days
elapsed and a 365 day year.
8.3 Any certificate or determination by IBL as to any rate of interest
payable in respect of the Facility shall (save for manifest error)
be prima facie proof of the amount owing.
9. ADDITIONAL INTEREST
If DRD fails to pay any sum payable under this Loan Agreement on its due
date, it will pay to IBL interest on such sum from the date of such
failure to the date of actual payment (both before and after judgement) at
3 per cent per annum over the cost of funds to IBL for such period as it
remains in default. Such interest shall be payable at any time on demand.
10. FEE
DRD shall pay to IBL a fee determined to be 5% of the Facility which is
drawn at any time and from time to time. This Fee shall be payable upon
draw down of the respective portion of the Facility.
11. REPAYMENT BY THE ISSUE OF SHARES
11.1 Any issue of Shares under these terms shall be subject to and in
compliance with the shareholder approval requirements of the Nasdaq
Marketplace Rules 4350 (i)(B), C and (D).
11.2 All Shares to be issued in repayment of the Facility or part of the
Facility shall become issuable no later than the 60th calendar day
following the Recall Date. For the purposes hereof, the period from
the Recall Date to and including the 60th calendar day following the
Recall Date shall be referred to as the `Redemption Period' and the
final day of this period shall be referred to as the `Final
Redemption Day'.
4
11.3 IBL may elect to have the Facility redeemed in tranches (each a
"Redemption Tranche"), subject to each Redemption Tranche
representing a repayment of at least Five Million Rand.
11.4 During the Redemption Period IBL shall telephonically notify DRD of
the terms of a Redemption Tranche and confirm this notification by
facsimile (the "Redemption Notification"). The date of any such
telephonic notification shall be a `Redemption Notification Date'.
11.5 Upon the delivery of a Redemption Notification the number of Shares
determined in accordance with 11.6 shall be immediately issuable and
be issued and delivered to IBL within 10 days of the Redemption
Notification Date.
11.6 The number of Shares to be issued in respect of any Redemption
Tranche shall be determined by dividing the Rand Facility Redemption
Amount by the Rand Purchase Price, where;
"Rand Facility Redemption Amount" means the amount of the Facility
being redeemed in any Redemption Tranche as specified in the
Redemption Notification relating thereto.
"Rand Purchase Price" means an amount in Rand equal to the simple
average of the Daily Volume Weighted Average Price of the Shares on
the Exchange for the 10 Exchange Business Days immediately preceding
the Redemption Notification Date.
"Daily Volume Weighted Average Price" means an amount in Rand,
calculated to the 4th decimal place, determined to be the total
daily value of all main board trades on the Exchange divided by the
total daily volume of all main board trades on the Exchange.
11.7 Any part of the Facility remaining to be repaid on the Final
Redemption Date shall be deemed to be the subject to a Redemption
Notification deemed to be delivered on the Final Redemption Day.
12. FEES AND EXPENSES
12.1 DRD will pay to IBL on demand all expenses (including legal and
out-of-pocket expenses and together with Value Added Tax if any
thereon) on a full indemnity basis incurred by IBL in connection
with the enforcement of or preservation of any rights under this
Loan Agreement or otherwise in respect of any monies owing
hereunder.
12.2 DRD will pay all stamp, documentary registration and other similar
duties (including any payable by IBL) in connection with this Loan
Agreement and/or any document entered into pursuant hereto.
5
12.3 Each party shall bear its own expenses in connection with the
preparation and finalisation of this Loan Agreement.
13. PAYMENTS
13.1 DRD will make all payments and deliveries under or in respect of
this Loan Agreement on the due date for value and immediately
available funds to IBL at such account as IBL may from time to time
instruct DRD.
13.2 If any payment becomes due on a day which is not a Business Day, the
due date of such payment will be extended to the next Business Day
unless such business day is in a new calendar month in which case
such payment shall be made on the immediately preceding Business
Day.
13.3 DRD will make all payments under the Facility without set-off or
counter-claim and free and clear of any withholding or deduction
(save as required by law) for any present or future taxes, levies,
duties or other charges. If DRD is obliged by law to make any such
withholding or deduction, DRD will pay to IBL in the same manner and
at the same time additional amounts to ensure that IBL receives a
net amount equal to the full amount which it would have received if
no such deduction or withholding had been required. DRD shall
deliver to IBL on demand a certificate of deduction or other
evidence satisfactory to IBL that any amount withheld or deducted
has been paid to the appropriate authority.
13.4 IBL will maintain an account or accounts evidencing the amounts from
time to time owing to it under the Facility. Such account or
accounts shall (save for manifest error) be prima facie evidence of
the amounts from time to time owing by DRD hereunder.
14. REPRESENTATIONS AND WARRANTIES BY DRD
DRD represents and warrants to IBL on the date of this Loan Agreement and
on each date that the Facility is available or outstanding (with reference
to the facts and circumstances then existing), as follows:
14.1 DRD is duly incorporated and validly existing under the laws of
South Africa and has power to enter into this Loan Agreement;
14.2 all necessary corporate and other action to authorise the entry into
and performance of this Loan Agreement has been taken by DRD, except
for the shareholder approvals that may be required under the Nasdaq
Market place Rules 4350 (i)(B), (C) and (D) and the regulation of
any Shares issued pursuant to this Loan Agreement under the US
Securities Act of 1933, as amended (the "Securities Act"), or the
state securities laws of any US State;
14.3 this Loan Agreement constitutes its legal, valid and binding
obligations in accordance with its terms, has been duly authorised
and executed by it and does not and will not breach its Memorandum
and Articles of Association or other
6
relevant constitutional documents or any agreement or obligation by
which it is bound or violate any applicable law;
14.4 its obligations under this Loan Agreement are its unconditional and
unsubordinated obligations and rank at least pari passu with all
other of its unsecured and unsubordinated indebtedness; and
14.5 all approvals, authorisations, consents, licences, permissions and
registrations which are necessary or advisable to obtain from any
governmental public or other authority or without limitation any
third party for the purpose of or relating to the Facility have been
obtained and all provisions and conditions thereof have been
complied with.
14.6 Neither DRD, any of DRD's affiliates nor any persons acting on
behalf of them have engaged, or will engage in any directed selling
efforts with respect to the Shares issued under this Loan Agreement
(it being acknowledged that DRD is not making this representation
and warranty with respect to actions of IBL or its affiliates).
15. REPRESENTATIONS AND WARRANTIES BY IBL IN THE CASE OF ANY REPAYMENT BY THE
ISSUE OF SHARES
Terms used in this section 15 have the meaning given to them by Regulation
S under the Securities Act .
15.1 IBL represents and warrants to DRD as follows:
15.1.1 IBL is not a U.S. person and if DRD issues Shares to IBL
under this Loan Agreement, IBL will acquire those Shares in
an offshore transaction pursuant to Regulation S. If IBL
decides to offer, resell, pledge or otherwise transfer the
Shares issued under this Loan Agreement it will only do so in
an offshore transaction in accordance with the provisions of
Rule 903 of Regulation S;
15.1.2 No sale, pledge, resale or other transfer of the Shares which
may be delivered hereunder has been or will be made so as to
transfer the Shares issued under this Loan Agreement into the
United States or to or for the account or benefit of a U.S.
person;
15.1.3 Neither IBL, any of IBL's affiliates nor any persons acting
on behalf of them have engaged, or will engage in any
directed selling efforts with respect to the Shares issued
under this Loan Agreement (it being acknowledged that IBL is
not making this representation and warranty with respect to
actions of DRD or its affiliates). IBL, each of IBL's
affiliates and any person acting on their behalf have
complied and will comply with the offering restriction
requirements of Regulation S; and
7
15.1.4 IBL understands that the Shares issued under this Loan
Agreement have not been and will not be registered under the
Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, a U.S.
person except in accordance with-Regulation S under the
Securities Act. IBL represents and agrees that it will offer
and sell Shares issued under this Loan Agreement (i) as part
of their distribution, at any time and (ii) otherwise, until
after the end of the Distribution Compliance Period, only in
accordance with Rule 903 of Regulation S, under the
Securities Act.
15.1.5 IBL shall, at or prior to confirmation of a sale of Shares
issued under this Loan Agreement and pursuant to Regulation
S, have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration in respect of
Shares issued under this Loan Agreement before the expiration
of the Distribution Compliance Period a confirmation or
notice to substantially the following effect:
"The Shares covered by this notice have not been registered
under the United States Securities Act of 1933 (the
"Securities Act") and may not be offered or sold or
transferred within the United States or to or for the account
or benefit of U.S. persons (i) as part of their distribution,
at any time and (ii) otherwise, until after the expiration of
40 days from the later of completion of the distribution of
the Shares issued or issuable under this Loan Agreement, as
determined by IBL and certified to DRD, except in either case
in accordance with Rule 903 of Regulation S under the
Securities Act. The Shares covered by this notice may not be
deposited in any unrestricted American Depository Receipt
Program relating to the Shares. You must not directly or
indirectly engage in any short selling or hedging transaction
with regard to the Shares, except as permitted by the
Securities Act. Terms used above have the meaning given to
them by Regulation S."
15.1.6 IBL agrees that it will not directly or indirectly engage in
any short selling or hedging transactions with regard to the
Shares issued under this Loan Agreement except as permitted
under the Securities Act.
15.2 Distribution Compliance Period. "Distribution Compliance Period"
means a period that begins when the Shares are first issued by DRD
under this Loan Agreement during a Redemption Period and continues
until after the expiration of 40 days from the completion of the
distribution of the Shares issued or issuable under this Loan
Agreement, as determined by IBL and certified to DRD. IBL will give
DRD written notices of the beginning of the 40 day Distribution
Compliance Period at least 3 Business Days before the beginning of
the Distribution Compliance Period and a copy of IBL's certification
of the date of completion of the distribution of the Shares within
one business day of that completion.
15.3 Delivery of Shares. IBL hereby acknowledges and agrees that:
8
15.3.1 It and any distributor of the Shares issued under this Loan
Agreement will not take delivery, in whole or in part, until
it provides DRD with:
(A) (i) a written certification that it is not a U.S. person
and that the Loan Agreement has not being executed on behalf
of a U.S. person; or (ii) a written opinion of counsel,
reasonably acceptable to DRD, to the effect that the Loan
Agreement and the Shares deliverable thereunder have been
registered under the Securities Act (it being acknowledged
that DRD has no obligation to register the Shares issued
under this Loan Agreement) or are exempt from registration
thereunder (it being acknowledged that the Shares issued
under this Loan Agreement are not eligible for resale under
Rule 144A under the Securities Act); and
(B) a written certification that IBL is not executing the
Loan Agreement within the United States and that the Shares
issued under this Loan Agreement are not to be delivered
within the United States, except as otherwise permitted by
Rule 903 of Regulation S, unless the Shares issued under this
Loan Agreement are registered under the Securities Act or an
exemption from such registration is available (it being
acknowledged that the Shares issued under this Loan Agreement
are not eligible for resale under Rule 144A under the
Securities Act).
15.3.2 If the Shares issued under this Loan Agreement may be
delivered in one or more parts, IBL will provide DRD with the
items specified in Section 15.3.1 above prior to each
delivery.
15.4 Legend / Certificate to ADR Depository.
15.4.1 If the Shares issued under this Loan Agreement are issued in
certificated form, any certificate representing the Shares,
in whole or in part, shall bear the following legend:
"The securities evidenced hereby have not been registered
under the United States Securities Act of 1933, as amended
(the "Securities Act"), and, accordingly, may not be offered,
sold, pledged or otherwise transferred within the United
States or to, or for the account or benefit of, U.S. persons
except as set forth in the following sentence. By its
acquisition hereof, the holder (1) represents that it is not
a U.S. person and is acquiring these securities in an
offshore transaction in compliance with Regulation S under
the Securities Act, (2) agrees that it will not offer, sell,
pledge or otherwise transfer these securities except (a) to
Durban Roodepoort Deep, Limited ("DRD") or any subsidiary
thereof, (b) outside of the United States to a non-U.S.
person in an offshore transaction in accordance with Rule 903
or Rule 904 of Regulation S, (c) pursuant to a registration
statement which has been declared effective under the
Securities Act (and the holder understands that DRD has no
obligation to cause such a registration statement to become
effective) or (d) pursuant to
9
an exemption from registration under the Securities Act (and
the holder understands that these securities are not eligible
for resale pursuant to Rule 144A under the Securities Act),
in each case in accordance with any applicable securities
laws of any state of the United States, and (3) agrees that
these securities may not be deposited in any unrestricted
American Depositary Receipt Program relating to these
securities (a) as part of the distribution of these
securities, at any time (b) otherwise, until after the
expiration of 40 days from the completion of the distribution
of the Shares issued or issuable under the Loan Agreement
between DRD and Investec Bank Limited ("IBL"), as determined
by IBL and certified to DRD, and, in the case of (b), in
accordance with applicable United States federal and state
securities laws and will deliver such certificates and legal
opinions as may be requested by the issuer or the issuer's
ADR depositary, to confirm that the deposit complies with the
foregoing restrictions, (4) agrees that it will deliver to
each person to whom this security or an interest therein is
transferred a notice substantially to the effect of this
legend, and (5) agrees that it will not directly or
indirectly, engage in any short selling or hedging
transaction with regard to this security or any American
Depositary Receipt relating to this security except as
permitted by the Securities Act. As used herein, the terms
"offshore transaction, "United States" and "U.S. person" have
the meanings given to them by Regulation S under the
Securities Act."
15.4.2 If the Ordinary Shares are issued by DRD in uncertificated
form, DRD will instruct The Bank of New York (the
"Depositary"), as depositary appointed under the Deposit
Agreement, dated as of August 12, 1996, between DRD and the
Depositary, as amended and restated on October 2, 1996 and as
further amended and restated on August 6, 1998 (as so amended
and restated, the "Deposit Agreement") to establish and
administer DRD's unrestricted American Depositary Receipts
facility (the "ADR Facility"), and the Depositary's
custodians to refuse to accept any Shares for deposit in the
ADR Facility from the date DRD first issues Shares under this
Loan Agreement until the expiration of the Distribution
Compliance Period if the person depositing the Shares cannot
give the Depositary or custodian a certificate substantially
to the effect of either paragraph (A) or (B) below as may be
amended to reflect reasonable comments of the Depository.
"Pursuant to a loan agreement dated September 15, 2004 between Durban Roodepoort
Deep, Limited ("DRD") and Investec Bank Limited ("IBL") and in reliance upon
Regulation S under the U.S. Securities Act of 1933, as amended (the "Securities
Act"), DRD has issued __ ordinary shares of DRD (the "Ordinary Shares") to IBL
(the "Reg. S Placement"). The Ordinary Shares have not been registered under the
Securities Act and may not be offered, sold or pledged or otherwise transferred
in the United States or to or for the account or benefit of any U.S. persons or
deposited in any unrestricted ADR Program relating to the Shares (i) as part of
a distribution, at any time and (ii) otherwise, until the expiration of 40 days
after the completion of the distribution of the Ordinary Shares as determined by
IBL and certified to DRD, except in each
10
case in accordance with Regulation S under the Securities Act, and, in the case
of any deposit of Ordinary Shares into any unrestricted ADR Program, pursuant to
a registration statement which has been declared effective under the Securities
Act (and the holder understands that DRD has no obligation to cause such a
registration statement to become effective) or pursuant to an exemption from
registration under the Securities Act (and the holder understands that these
securities are not eligible for resale pursuant to Rule 144A under the
Securities Act), in accordance with applicable United States federal and state
securities laws. Before DRD's Shares can be deposited into the ADR Facility, you
must certify that either paragraph (A) or (B) is true, accurate and complete.
(A) That person is the beneficial owner of the Shares to be
deposited and:
(1) that person did not acquire, did not agree to
acquire and will not have acquired the Shares in
the Reg. S Placement; and
(2) the Shares to be deposited are not among those
Shares issued in the Reg. S Placement.
(B) That person is a broker/dealer acting on behalf of its
client/customer and that person advises that its
client/customer has confirmed to it that:
(1) the client/customer is the beneficial owner of the
Shares to be deposited;
(2) the client/customer did not acquire, did not agree
to acquire and will not have acquired the Shares
in the Reg. S Placement; and
(3) the Shares to be deposited are not among those
Shares issued in the Reg. S Placement."
15.4.3 In addition to the legend set forth in Section 15.4.1 above,
any certificate representing the rights and obligations under
this Loan Agreement, in whole or in part, shall also bear the
following legend:
"The securities to be issued upon the execution of this Loan
Agreement have not been registered under the Securities Act
and the rights and obligations under this Loan Agreement may
not be exercised in the United States or by or on behalf of
any U.S. person unless registered under the Securities Act or
unless an exemption from such registration is available."
15.4.4 IBL understands that the Shares issued under this Loan
Agreement will be issued to it in reliance on specific
exemptions from the registration requirements of United
States federal and state securities laws, that the Shares
issued under this Loan Agreement have not been registered
with
11
any state or federal securities commissions and that DRD is
relying upon the truth and accuracy of the representations,
warranties, acknowledgments and agreements of IBM set forth
herein in order to determine the applicability of such
exemptions.
15.4.5 IBL acknowledges for itself and each of its affiliates and
any person acting on behalf of any of them that, in
connection with this Loan Agreement, the Shares issued under
this Loan Agreement or the American Depositary Receipts
evidenced by such Shares, it has not and will not, directly
or indirectly, engage in any transaction or series of
transactions that, although in technical compliance with
Regulation S (a) is part of a plan or scheme to evade the
registration provisions of the Securities Act, or (b) would
require registration of the Shares issued under this Loan
Agreement under the Securities Act.
15.5 In respect of Transfers and Subsequent Purchasers. DRD and IBL agree
that neither party may transfer the rights and obligations conferred
by this Loan Agreement, in whole or in part, without the prior
written consent of the non-transferring party and that any transfer
of the rights and obligations conferred by this Loan Agreement, in
whole or in part, will be made in accordance with Regulation S. IBL
agrees that, in addition to the restrictions on resale contained
herein and before the expiration of the Distribution Compliance
Period, it may not transfer any portion of the Shares issued under
this Loan Agreement to any party unless such party enters into an
agreement with DRD containing representations, warranties and
restrictions on resale substantially similar to those contained
herein.
16. RECORDAL
Any Adjustment by the Calculation Agent for the purposes of this Loan
Agreement shall be interpreted in accordance with the provisions contained
in the Definitions. In this regard, DRD is referred, inter alia, to the
definition of Potential Adjustment Event therein which, amongst others,
includes any event that has a diluting or concentrative effect on the
theoretical value of the Share. Where a Potential Adjustment Event has
been declared the Calculation Agent shall make an adjustment to the terms
of this Loan Agreement to reflect the extent to which the theoretical
value of the Share is affected by the Potential Adjustment Event. This
provision is not intended to amend the Definitions but is intended to
record the effect that a Potential Adjustment Event may have to the terms
of this Loan Agreement.
17. UNDERTAKINGS
DRD will provide to IBL such financial and other information relating to
DRD as IBL may from time to time request.
12
18. ADDITIONAL COSTS
DRD will pay to IBL on demand any amount (not exceeding an amount
calculated on the basis of market practice at the relevant time as
certified by IBL) which IBL may from time to time certify to be necessary
to compensate it for any increased costs or reduction in return resulting
from compliance of any change in, or in the interpretation of, any law or
regulation or any official directive or request (whether or not having the
force of law) including without limitation any relating to mandatory
liquid asset and special deposit requirements.
19. ILLEGALITY
If at any time it is unlawful, or contrary to any requests from or
requirement of any central bank or other fiscal monetary or other
regulatory authority, for IBL to make, fund or allow to remain outstanding
all or any part of the Facility, then IBL will promptly after becoming
aware of the same deliver to DRD a certificate to that effect and DRD
shall on such date as IBL specify repay the Facility together with accrued
interest and any other amounts then due to IBL hereunder. Where such
illegality relates to the repayment of the Facility by the issue of Shares
then DRD shall be obligated to repay the Facility in cash.
20. EVENTS OF DEFAULT
20.1 Each of the following events will constitute an Event of Default:
20.1.1 DRD fails to pay any sum payable under this Loan Agreement on
the due date; or
20.1.2 DRD fails to observe and perform any other obligations under
this Loan Agreement or is in breach or becomes in breach of
any representation or warranty given by it in this Loan
Agreement in any respect; or
20.1.3 any financial obligations of DRD become prematurely payable
or any creditor in respect thereof becomes entitled to
declare any such obligation prematurely payable or any such
obligation is not paid when due or any security therefor
becomes enforceable; or
20.1.4 a receiver or other similar officer is appointed of or in
relatioZn to DRD or the whole or any part of its undertaking,
assets, rights or revenues; or
20.1.5 any encumbrancer takes possession of or a distress,
execution, sequestration or other similar process is levied
or enforced upon the whole or any part of its undertaking,
assets, rights or revenues; or
20.1.6 DRD ceases to carry on the whole or a substantial part of its
business or stops or suspends payment of its debts or
proposes or enters into any composition, scheme, compromise
arrangement with or for the benefit of its creditors
generally or any class of them; or
13
20.1.7 DRD becomes insolvent or any petition or other action is
presented or taken and any order is made by any court or any
meeting is convened for the purpose of considering any
resolution or any resolution is passed for the winding-up,
liquidation or dissolution of DRD.
20.2 At any time after the occurrence of an Event of Default IBL may by
written notice to DRD terminate its obligations under this Loan
Agreement and/or demand immediate repayment of the Facility together
with accrued interest and all other sums due hereunder and DRD will
comply with such demand forthwith.
21. WAIVERS
21.1 No failure or delay on the part of IBL to exercise any power, right
or remedy under this Loan Agreement shall operate as a waiver
thereof nor shall any single or partial exercise by it of any power,
right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
21.2 The remedies provided in this Loan Agreement are cumulative and not
exclusive of any remedies provided by law.
22. SET-OFF
22.1 IBL may, without prior notice to DRD, apply any credit balance
(whether or not then due and in whatever currency) which is at any
time held by any office or branch of IBL for the account of IBL in
or towards satisfaction of any sum then due and payable from DRD
under this Loan Agreement and in respect of which a default in
payment has occurred.
22.2 For the purposes of exercising any rights under this Clause, or any
rights under the general law, IBL may convert or translate all or
any part of any such a credit balance into another currency applying
a rate which in its opinion fairly reflects prevailing rates of
exchange.
22.3 IBL is not obliged to exercise any of its rights under this Clause,
which shall be without prejudice and in addition to any rights under
the general law.
22.4 In this Clause "rights under the general law" means any right of
set-off, combination or consolidation of accounts, lien or similar
right which IBL has under any applicable law.
23. INDEMNITIES
DRD shall on demand indemnify IBL against any liability, loss or expense
which IBL shall certify as incurred by it as a consequence of a default in
payment by DRD of any sum under this Loan Agreement when due, any
repayment or prepayment of the Facility or part thereof being received
otherwise and on the last day of an Interest Period Facility; the early
breaking, termination or reversing (in whole or in part) of any agreement
or arrangement entered into by DRD with IBL or any third party for the
purpose of or in
14
connection with fixing, capping the rate of or otherwise hedging interest
payable under this Loan Agreement or the Facility not being drawndown for
any reason after a drawdown notice has been given including in any such
case, but not limited to, any loss of profit and any loss or expense
incurred in maintaining or funding the Facility or any sum or in
liquidating or redeploying deposits from third parties acquired are
contracted for in order to effect or maintain the same.
24. CURRENCY
If, under any applicable law or regulation or pursuant to a judgment or
order being made or registered against or the liquidation of DRD or
without limitation for any other reason, any payment under or in
connection with this Loan Agreement is made or falls to be satisfied in a
currency ("the payment currency") other than the currency which such
payment is expressed to be due under or in connection with this Loan
Agreement ("the contractual currency") then, to the extent that the amount
of such payment actually received by IBL, when converted into the
contractual currency at the applicable rate of exchange, falls short of
the amount due under or in connection with this Loan Agreement DRD as a
separate and independent obligation shall indemnify and hold harmless IBL
against the amount of such shortfall. For the purposes of this Clause, the
"applicable rate of exchange" means the rate at which IBL is able on or
about the date of such payment to purchase, in accordance with its normal
practice, the contractual currency with the payment currency and shall
take into account (and DRD shall be liable for) any premium or other costs
of exchange including any taxes incurred by reason of any such exchange.
25. COUNTERPARTS
This Loan Agreement may be executed in any number of counterparts in which
case this Loan Agreement will be as effective if all signatures on the
counterparts were on a single copy of this Loan Agreement.
26. ASSIGNMENT
26.1 DRD may not assign or transfer any of its rights or obligations
under this Loan Agreement.
26.2 Subject to the provisions of Clause 15.5 hereof IBL may assign or
transfer all or any of its rights and obligations under this Loan
Agreement to any party. DRD will enter into all documents specified
by IBL to be necessary to effect any such assignment or transfer.
27. NOTICES
27.1 Every notice or other communication under this Loan Agreement shall
be in writing and may be delivered by letter or facsimile
transmission despatched to the other party at its address or
facsimile number stated below or such other address or facsimile
number as may from time to time be notified to the other party for
this purpose.
15
INVESTEC BANK LIMITED
All notices to be addressed for the attention of Xxxxxx Xxxxxx,
Investec Bank Limited, 000 Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx.
Facsimile Number: (011) 286 7371
DURBAN ROODEPOORT DEEP LIMITED
Address: 00 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxx/ For the attention
of Xxxxx Xxxxx
Facsimile Number: x00 (00) 000 0000.
27.2 Every notice or other communication shall, unless otherwise provided
for in this Loan Agreement, be deemed to have been received (if sent
by post) 72 hours after despatch and (if delivered by facsimile
transmission) at the time of delivery or despatch if during normal
business hours in the place of intended receipt on a working day in
that place and otherwise at the opening of business in that place on
the next such working day, provided that any notice or communication
to be made or delivered shall only be effective when actually
received.
28. LAW
28.1 This Loan Agreement shall be governed by and construed in accordance
with South African law.
28.2 The parties irrevocably agree that the courts of South Africa shall
have jurisdiction to hear and determine a suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Loan Agreement and for such purposes hereby
irrevocably submit to the jurisdiction of such courts.
28.3 Nothing contained in this clause shall limit the right of IBL to
take proceedings against DRD in any other court of competent
jurisdiction, nor shall the taking of any such proceedings in one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not (unless precluded by
applicable law).
29. INTERPRETATION
In this Agreement:
29.1 This agreement is referred to herein as the "Loan Agreement".
29.2 This Loan Agreement incorporates and is subject to the terms of the
ISDA Master Agreement between the parties which is executed and
delivered as a condition precedent hereto (the "ISDA Agreement").
16
29.3 This Loan Agreement is subject to and incorporates the 2000 ISDA
Definitions and the 2002 Equity Derivative Definitions (the
"Definitions") as published by the International Swaps and
Derivatives Association, Inc. ("ISDA").
29.4 In the event of any inconsistency between the Loan Agreement and the
ISDA Agreement, the Loan Agreement shall prevail. In the event of
any inconsistency between the Definitions and the Loan Agreement,
the Loan Agreement shall prevail.
29.5 The Loan Agreement constitutes a Confirmation as defined and
referred to in the ISDA Agreement.
29.6 "Business Day" means a day on which banks are open for business in
South Africa and New York;
29.7 "Final Closing Date" means the final date that DRD delivers Shares
to IBL under Section 11 of the Loan Agreement
29.8 "Share" and "Shares" means ordinary fully paid shares of Durban
Roodepoort Deep Limited which are listed on the JSE Securities
Exchange South Africa ("JSE") and which may be identified by the JSE
code "DUR"; and
29.9 For the purposes of this Loan Agreement the following elections
shall be made in respect of terms defined in the Definitions;
"Exchange" means the JSE Securities Exchange of South Africa.
"Business Day Convention" means "Following".
"Related Exchange(s)" means "All Exchanges" as defined in the
Definitions.
"Calculation Agent" means Investec Bank Limited.
"Clearance System" means STRATE.
For the purposed of "Adjustments", "Method of Adjustment" shall be
"Calculation Agent Adjustment".
For the purpose of "Extraordinary Events", the following elections
are made:
in respect of "Consequences of Merger Events", "Modified
calculation Agent Adjustment" in the case of
"Share-for-Share", "Share-for-Other" and "Share for Combined",
and in respect of "Consequences of Tender Offers" "Modified
calculation Agent Adjustment" in the case of
"Share-for-Share", "Share-for-Other" and "Share for Combined",
"Composition of Combined Consideration" shall be "Not
Applicable", and
17
Calculation Agent Adjustment shall apply in respect of
"Nationalisation, Insolvency or Delisting".
"Non Reliance" shall be "Applicable".
"Agreements and Acknowledgements regarding Hedging Activities" shall
be "Applicable".
Additional Acknowledgements shall be "Applicable".
IN WITNESS whereof this Loan Agreement has been executed on the date stated
above.
18
SCHEDULE
CONDITIONS PRECEDENT
1. The execution and delivery of the ISDA Master Agreement referred to herein
together with the documents referred to in Part 3 of the Schedule thereto.
2. Certified Copy of the resolution of the Board of Directors of DRD
approving the execution of this Loan Agreement and the terms hereof.
3. DRD shall procure that its rights under Transactions in existence between
it and Eskom Holdings Limited which are governed by the terms of an ISDA
Master Agreement, as at the date of signature hereof, are ceded to IBL as
security for the performance by DRD of all of its obligations to IBL.
19
Signed by /s/ X. Xxxxx
for and on behalf of
DURBAN ROODEPOORT DEEP LIMITED
in the presence of:
Signed by
for and on behalf of
INVESTEC BANK LIMITED
in the presence of:
20
