EXHIBIT 4.46
AGREEMENT OF LOAN AND PLEDGE
between
DURBAN ROODEPOORT DEEP, LIMITED
("the Creditor")
and
EAST RAND PROPRIETARY MINES LIMITED
("the Pledgor")
INTRODUCTION
1. Pursuant to an agreement between CROWN GOLD RECOVERIES (PROPRIETARY)
LIMITED ("Crown") and the Pledgor signed on 5 September 2002 providing for
the acquisition by Crown of the Pledgor company ("the acquisition
agreement"), the Creditor is about to lend and advance to the Pledgor a
working capital facility of R10 million (TEN MILLION BAND) against the
security of the pledge by the Pledgor of certain movable assets. In the
acquisition agreement such pledge is to be effected by separate agreement
and perfected prior to any of this sum being advanced. This agreement
constitutes the separate agreement contemplated.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
2. As a continuing covering security for the aforesaid loan together with all
interest to accrue thereon, as well as for all and arty other amounts which
may in future be loaned by the Creditor to the Pledgor, the Pledgor hereby
pledges to the Creditor the movable assets ("the Securities") listed and/or
described in the schedule annexed hereto and initialled by the parties for
the purposes of identification.
3. In order to perfect the pledge, the Pledgor shall simultaneously with the
signing hereof deliver the Securities to the Creditor, whose duty appointed
agent for this purpose is Crown. In terms of the acquisition agreement
Crown shall on 9 September
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2002 assume full management control of the operations of the Pledgor. Crown
shall thereby take possession of all the Pledgor's assets including the
Securities, and in doing so, it takes possession of the Securities on
behalf of and as agent for the Creditor.
4. The Creditor shall be entitled but not obliged to remove the Securities
from the premises of the Pledgor at any time this pledge is in force. The
Creditor may in its discretion leave the Securities at any premises of the
Pledgor, where it will be and remain, or be deemed to be and remain in the
possession and under the control of Crown. For this purpose the Pledgor's
personnel are deemed to be under the control of Crown, and are deemed to
act as agents of the Creditor.
5. The Pledgor may from time to time, subject to the prior written approval of
the Creditor, add to or substitute for the Securities such other securities
as the Pledgor may have available.
6. If the value of the Securities ceases to provide a margin of security
satisfactory to the Creditor, the Pledgor shall provide to the Creditor, on
demand, additional security to the satisfaction of the Creditor.
7. The Pledgor warrants to the Creditor (and this agreement is based thereon)
that:
7.1 it is the beneficial owner and lawful possessor of the Securities;
7.2 the Securities are not subject to any encumbrance and may be pledged
and delivered by the Pledgor without any limitation;
7.3 no right of pre-emotion or option exists or will exist in respect of
the Securities for so long as this agreement is in force between the
parties.
7.4 The Securities do not constitute the major portion of the Pledgor's
undertaking, and that if they do, then the signatory hereto on behalf
of the Pledgor shall procure that a shareholders' resolution of the
Pledgor in general meeting shall be passed ratifying and adopting this
agreement.
8. The Pledgor shall bear and pay all costs of and incidental to the holding
of the Securities including but not limited to, the holding, storage,
transportation and insurance thereof and the maintenance of the Securities
in good order and repair.
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Any amounts expended by the Creditor in that regard shall be added to the
amounts owing by the Pledgor to the Creditor and shall bear interest at the
Prime Rate.
9. The security provided in terms hereof shall constitute a continuing
covering security notwithstanding:
9.1 any fluctuation in or temporary extinction of the amount of the
Pledgor's indebtedness to the Creditor;
9.2 any variation or amendment to any agreement or other undertaking for
the time being in existence between the Pledgor, the Creditor and/or
any other person;
9.3 any indulgence shown or given by the Creditor to the Pledgor.
10. All amounts owing in terms of this agreement together with interest thereon
shall forthwith become due and payable in the event of the suspensive
conditions in the acquisition agreement not being fulfilled, or the
acquisition agreement becoming null and void for any other reason, or
inchoate or being cancelled or terminated or declared so by the Pledgor or
the Creditor, in each case for any reason whatsoever.
11. If the Pledgor breaches any of the terms or conditions of this agreement
and fails to remedy that breach within 7 (seven) days of despatch of a
notice calling upon it to do so, the Creditor shall be entitled,
notwithstanding anything to the contrary contained in any agreement between
the Pledgor and it, to demand immediate payment of all amounts which the
Pledgor may then owe to it in terms hereof, together with interest thereon,
calculated at the Prime Rate, whether or not such amounts are then due,
without prejudice to any rights which the Creditor may otherwise have as a
result of that breach.
12. The Creditor shall be entitled without notice to the Pledgor and without
first obtaining an order of court to:
12.1 cause all or any of the Securities to be sold either by public auction
or private treaty, as the Creditor in its sole and absolute discretion
deems fit; or
12.2 acquire all or any of the Securities (without prejudice to the rights
of the Creditor to purchase such property at any such sale by public
auction) at a
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price equal to the fair value thereof which, in the absence of
agreement shall be determined by an expert agreed upon or failing
agreement, appointed by the chairman of APSA after hearing the
parties' representations, which experts) shall act as expert(s), and
not as arbitrators, and their decision shall be final and binding on
the Pledgor; and/or
12.3 convey valid title In the Securities to any purchaser thereof
(including the Creditor).
The Creditor may, in its absolute discretion, apply the net proceeds of
such sale or the purchase price payable by the Creditor, as the case may
be, after deducting therefrom all costs and expenses incurred in or about
the realisation of the Securities and in the exercise by the Creditor of
its rights in reduction or discharge, as the case may be, of the Pledgor's
indebtedness to the Creditor. Without prejudice to such other rights as the
Creditor may have at law, the residue (if any) remaining after the net
proceeds of such sale or purchase price payable have been applied as
aforesaid shall be paid to the order of the person legally entitled
thereto.
THUS DONE AND SIGNED at Johannesburg on this the 16 day of OCTOBER 2002 by the
Creditor in the presence of the undersigned witnesses.
AS WITNESSES
1. /s/ X. Xxxxxx
2 /s/ I.L. Xxxxxx
-----------------------------
DURBAN ROODEPOORT DEEP,
LIMITED
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THUS DONE AND SIGNED at Johannesburg by the PLEDGOR on this 12th day of
SEPTEMBER 2002 in the presence of the undersigned witnesses.
AS WITNESSES
1.
2 /s/ X. Xxxxxx
-----------------------------
EAST RAND PROPRIETARY MINES
LIMITED
[LAST SIGNED SEPTEMBER 2002]
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SCHEDULE
ASSETS VALUE
A. THE COMPRESSOR ROOM
1. 1 X Solzer JHI Compressors 1 500 000.00
2. Winder and existing shaft 3 500 000.00
R 5 000 000.00
X. XXXXXX CRUSHERS
1. 2 X 4 Foot Symon's crusher (complete)
2. 3 X 5 1/2 Xxxxxx Crusher (complete) R 2 500 000.00
X. XXXXX DUMP R 10 000 000.00
D. MILL HOUSE
1. 9 X mill bins (complete with motor and gearbox
-7 in the Mill House 2 in the Sand Plant R 2 700 000.00
TOTAL R 25 200 000.00
