Memorandum of Agreement
and
EXHIBIT 4.125
Fifth Addendum
Made and entered into between:-
ANGLOGOLD XXXXXXX LIMITED
(Reg No 1944/017354/06)
(a company duly incorporated in accordance with the company laws of the Republic of
South Africa with limited liability, herein represented by Xxxxxx Xxxxx Xxxxxx, he being
duly authorised hereto under and by virtue of a Delegation of Authority Policy which
was approved by the Audit and Corporate Governance Committee of the board of
directors of the company passed at Johannesburg on the 24
South Africa with limited liability, herein represented by Xxxxxx Xxxxx Xxxxxx, he being
duly authorised hereto under and by virtue of a Delegation of Authority Policy which
was approved by the Audit and Corporate Governance Committee of the board of
directors of the company passed at Johannesburg on the 24
th
day of October 2003);
of the first part;
Page 2
of the fourth part.
ERGO MINING (PROPRIETARY) LIMITED
[formerly known as Friedshelf 849 (Proprietary) Limited]
(Reg No 2007/004886/07)
(a company duly incorporated in accordance with the company laws of the Republic of
South Africa with limited liability, herein represented by Diederik Xxxxxx Xxxxxx van der
Xxxx, in his capacity as a director thereof, he being duly authorised hereto);
South Africa with limited liability, herein represented by Diederik Xxxxxx Xxxxxx van der
Xxxx, in his capacity as a director thereof, he being duly authorised hereto);
of the second part;
and
DRDGOLD SOUTH AFRICAN OPERATIONS (PROPRIETARY) LIMITED
(Reg No 2005/033662/07)
(a company duly incorporated in accordance with the company laws of the Republic of
South Africa with limited liability, herein represented by Xxxxxx Xxxxxxxxx, in his
capacity as a director thereof, he being duly authorised hereto);
South Africa with limited liability, herein represented by Xxxxxx Xxxxxxxxx, in his
capacity as a director thereof, he being duly authorised hereto);
of the third part;
and
MINTAILS SOUTH AFRICA (PROPRIETARY) LIMITED
(Reg No 2004/007547/07)
(a company duly incorporated in accordance with the company laws of the Republic of
South Africa with limited liability, herein represented by Diederik Xxxxxx Xxxxxx van der
Xxxx, in his capacity as a director thereof, he being duly authorised hereto);
South Africa with limited liability, herein represented by Diederik Xxxxxx Xxxxxx van der
Xxxx, in his capacity as a director thereof, he being duly authorised hereto);
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1.
Definitions
1.1
In this agreement, unless inconsistent with the context, the following terms
and/or expressions shall have the separate meanings assigned to them
hereunder and for purposes of convenience the said definitions are reflected
throughout this agreement in capitals:-
1.1.1
“FIRST ADDENDUM”
shall mean the letters agreement
entered into between the PARTIES
at
Johannesburg on the 17 August 2007
and in terms whereof they extended the
deadline in clause 3.1 of the MAIN
AGREEMENT from the 20 August 2007
to the 31 August 2007;
1.1.2
“FIFTH ADDENDUM”
shall mean this agreement further
modifying the MAIN AGREEMENT in
the respects set forth hereafter;
1.1.3
“FOURTH
ADDENDUM”
shall mean the agreement entered into
between the PARTIES
at Johannesburg
on the 28 February 2008 relating to the
amendment of the MAIN AGREEMENT
in certain respects.
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1.1.4
“MAIN AGREEMENT”
shall mean the Memorandum of
Agreement made and entered into by
and between the PARTIES
at
Johannesburg on the 6 August 2007
and shall be deemed to include the
FIRST ADDENDUM, the SECOND
ADDENDUM
, the THIRD ADDENDUM
and the FOURTH ADDENDUM thereto
-
the definitions contained in the
aforesaid agreement shall, unless
inconsistent with the context of the
FIFTH ADDENDUM , apply mutatis
mutandis thereto and for ease of
reference shall be reflected
throughout the
FIFTH ADDENDUM in
capital italics
;
1.1.5
“SECOND
ADDENDUM”
shall mean the letters agreement
entered into between the PARTIES
at
Johannesburg on the 30 August 2007 in
terms whereof they extended the
deadline in clause 3.1 of the MAIN
AGREEMENT from the 31 August 2007
to the 10 September 2007;
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1.1.6
“THIRD ADDENDUM”
shall mean the agreement entered into
between the PARTIES
at Johannesburg
on the 21 November 2007 relating to
amendment of the MAIN AGREEMENT
in certain respects.
1.2
The provisions of clause 1.2 of the MAIN AGREEMENT shall apply
mutatis
mutandis
hereto.
2.
Recordal
It is recorded that:-
2.1
the PARTIES
are desirous of further amending the MAIN AGREEMENT in
certain respects; and
2.2
the PARTIES
have accordingly agreed to enter into the FIFTH ADDENDUM,
as hereafter.
3.
FIFTH ADDENDUM
The PARTIES
do hereby agree to the amendment of the MAIN AGREEMENT
retrospectively with effect from the SIGNATURE DATE, in the respects set forth
hereafter:-
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3.1
ad new clause 8bis - “Rehabilitation Obligations and Guarantees to be
established therefor”
By the introduction of a new clause 8bis to read as follows:-
“
8bis
Rehabilitation Obligations and Guarantees to be established
therefor
8bis.1
Pursuant to
NEWCO
’s obligation to establish a bank
guarantee in favour of
AGA
in respect of the
rehabilitation obligations arising out of clause 8.4 of the
MAIN AGREEMENT
as read with clause 8.4bis of the
THIRD ADDENDUM,
NEWCO
has caused the sum of
ZAR
63 000 000,00 (sixty three million
RAND) to be paid
to the
ATTORNEYS
who are currently holding the same
in trust and in respect
whereof the
ATTORNEYS
have
been mandated by
NEWCO
to cause a bank guarantee
to be issued in respect of such sum in favour of
AGA
.
8bis.2
To obviate a demand gurantee, AGA and NEWCO
have agreed that to facilitate draw downs thereunder,
the following four tier methodology shall be applicable:-
•
in the first instance
: any amount payable
under the guarantee shall be determined by
persons at operational level at
AGA
and
NEWCO
respectively and if agreement is reached, a letter
addressed to the bank shall then be issued under
their joint signatures (“first tier”)
), and failing
agreement thereafter;
•
in the second instance: any amount payable
under the guarantee shall be determined by Xxx
Xxxxx or his appointed nominee of
AGA and
Xxxxxxx Xxxxxx or Xxxxx Xxxxxxx of
NEWCO and if
agreement is reached, a letter shall then be
issued under their joint signatures (“second tier”),
and failing agreement, thereafter
•
in the third instance: any amount payable
under the guarantee shall be determined by the
Executive Vice-President: Africa or his nominee of
AGA
and Dick van der Xxxx (Chief Executive
Officer of MINTAILS SA) or Xxxx Xxxxxxxxx (of
DRD SA
) and if agreement is reached, a letter
shall then be issued under their joint signatures
(“third tier
”)
, and failing agreement, thereafter
•
in the fourth instance: by formal adjudication
in accordance with the provisions of clause 17 of
the MAIN AGREEMENT
, and a written directive
shall then be issued by the arbitrator (“fourth
tier
”).
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8bis.3
The guarantee shall be substantially as set forth in
Annexe “1” hereto or with such amendments as may be
determined by
AGA,
NEWCO
and the bank establishing
the same.
In this context it is recorded that
AGA
shall be entitled to levy interest
on any draw down amount confirmed by letter as provided in 8bis.2
supra, calculated at the highest call rate, from time to time, of The
Standard Bank of South Africa Limited (as certified by any senior
manager thereof, whose appointment and authority it shall not be
necessary to prove and which certificate shall constitute prima facie
proof thereof), from the date of the demand made pursuant to such
letter to date of payment, both days inclusive.
supra, calculated at the highest call rate, from time to time, of The
Standard Bank of South Africa Limited (as certified by any senior
manager thereof, whose appointment and authority it shall not be
necessary to prove and which certificate shall constitute prima facie
proof thereof), from the date of the demand made pursuant to such
letter to date of payment, both days inclusive.
”.
4.
MAIN AGREEMENT
The MAIN AGREEMENT as amended by the FIRST ADDENDUM, the SECOND
ADDENDUM, the THIRD ADDENDUM, the FOURTH ADDENDUM and the FIFTH
ADDENDUM, shall remain fully binding and effective as between the
PARTIES
according to the terms and tenor thereof.
5.
Counterparts
The FIFTH ADDENDUM may be signed in separate counterparts, each of which shall
be deemed to be an original and all of which taken together shall constitute one and
the same instrument. A counterpart of the FIFTH ADDENDUM in telefax form shall be
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conclusive evidence of the original signature and shall be as effective in law as the
counterparts in original form showing the original signatures.
Thus done and signed by AGA at Johannesburg on this the
day of May 2008, in
the presence of the undersigned witnesses.
As witnesses:-
For: AngloGold Xxxxxxx Limited
1.
- duly authorised signatory -
Thus done and signed by NEWCO at Johannesburg on this the
day of May 2008,
in the presence of the undersigned witnesses.
As witnesses:-
For: Ergo Mining (Proprietary) Limited
1.
2.
/s/DAW van der Xxxx
- director -
Thus done and signed by DRD SA at Johannesburg on this the
day of May 2008,
in the presence of the undersigned witnesses.
As witnesses:-
For: DRDGold South African Operations
(Proprietary) Limited
1.
2.
/s/XX Xxxxxx
2.
/s/D Pretorius
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Thus done and signed by MINTAILS SA at Johannesburg on this the
day of May
2008, in the presence of the undersigned witnesses.
As witnesses:-
For: MinTails South Africa (Proprietary)
Limited
1.
- director -
2.
/s/DAW van der Xxxx
