OPTION AGREEMENT
EXHIBIT 4.91
entered into by and between
DRDGOLD LIMITED
(“DRD”)
on the first part
AND
M5 DEVELOPMENTS (PTY) LIMITED
(“M5”)
on the second part
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XXXXXXXX
XXX is the registered owner of the Land, willing to give M5 an option to purchase the Land.
1 DEFINITIONS
The headings of the clauses in this agreement are for the purpose of convenience and
reference only and shall not be used in the interpretation of nor modify nor amplify
the terms of this agreement nor any clause hereof. In this agreement, unless a
contrary intention clearly appears -
1.1
words importing -
1.1.1
any one gender include the other gender;
1.1.2
the singular include the plural and vice versa; and
1.1.3
natural persons include created entities (incorporated or unincorporated) and
vice versa.
1.2
If any provision in a definition is a substantive provision conferring rights or
imposing obligations on any party, effect shall be given to it as if it were a
substantive clause in the body of the agreement, notwithstanding that it is only
contained in the interpretation clause.
1.3
If any period is referred to in this agreement by way of reference to a number of
days, the days shall be reckoned exclusively of the first and inclusively of the last
day unless the last day falls on a Saturday, Sunday or a public holiday, in which
case the last day shall be the next succeeding day which is not a Saturday, Sunday
or a public holiday.
1.4
This agreement shall be governed by and construed and interpreted in accordance
with the law of the Republic of South Africa.
1.5
The following terms shall have the meanings assigned to them hereunder and
cognate expressions shall have a corresponding meaning, namely:
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1.5.1
“DRD” means DRDGold Limited (Company Registration No. 1895/000926/06 ),
herein represented by Xxxxxxx Xxxxxx Xxxx in his capacity as the duly
authorised representative of DRD;
1.5.2
“M5” means M5 Developments (Pty) Limited (Company Registration No.
2000/004586/07), herein represented by Xxxx Xxxxx, in his capacity as Director
of the company, him having been duly authorised thereto by a Company
Resolution;
1.5.3
“the Land” means the area demarcated as area A, B, C, D, E and F on Annexure
A the Draft Deed of Sale being:-
• the Remaining Extent of Portion 5 of the Farm Roodepoort, 237 IQ
(T261/1934); and
• the Remaining Extent of Portion 1 of the Farm Roodepoort, 237 IQ
(T15456/1955);
1.5.4
“Option Period” means a period commencing on the Effective Date and
terminating of 19 September 2005;
1.5.5
“Due Diligence” means that which M5 requires to do to establish, with
reasonable certainty, the capability of the Land being used for land
development purposes;
1.5.6
“Purchase Price” means R15 000 000 (Fifteen Million Rand) (excluding VAT);
1.5.7
“Option Fee” means an amount of R500 000 (Five Hundred Thousand
Rand)(excluding VAT) per month, calculated monthly from the Effective Date,
or a proportion thereof, calculated up and until the exercise of the option date;
1.5.8
“Effective Date” means the date of signature of the last party signing this
Agreement;
1.5.9
“Exercise of Option Date” means the date upon which M5 exercises the option;
1.5.10
“the Parties” means DRD and M5;
1.5.11
“this Agreement” means this Option Agreement and include all schedules
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which form and integral part of this Agreement.
1.5.12
“the Draft Sale Agreement” shall be the Agreement of Sale attached as
Annexure “B”.
2
GRANT OF OPTION
DRD grants M5 an option to purchase the Land at the Purchase Price for the duration
of the Option Period, which option M5 accepts on the terms and conditions, as
described in this Agreement.
3
EXERCISE OF OPTION
M5 shall be entitled to exercise the option granted by giving DRD written notice
during the option period of the exercise of the option, and by providing it with a
guarantee as envisaged under clause 3.2 of the Draft Deed of Sale, in which event a
purchase of the Land shall come into place and stead, as described in the Draft Deed
of Sale.
4
PAYMENT OF OPTION FEES
M5 shall, during the Option Period, pay to DRD the Option Fee, provided that as from
the date of the exercise of the option, Option Fees shall no longer be payable and M5
shall accept the responsibility and become liable for the costs and expense pertaining
to the upkeep of the Land, which DRD would otherwise be responsible for; provided
that a portion of the option shall be reimbursed to M5, in accordance with the date of
the exercise of the option in relation to that period for which the Option Fee has
been paid.
5
NOMINEE
5.1
M5 reserves the right to nominate a third party to take transfer of the Land,
against the exercise of the option, by advising DRD of the identification of such
third party, and DRD shall pass transfer to that third party if so required provided
that M5 shall remain liable to DRD as co-principal debtor with that nominee
(Jointly and Severely) for the due performance of the nominee’s obligation in
terms of the Sale Agreement.
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6
SALE AGREEMENT
6.1
Upon the exercise of the option, M5 purchases and DRD sells the Land to M5 at the
Purchase Price on the terms of Draft Deed of Sale.
6.2
The Purchase Price shall be guaranteed as at the date of exercise of the option in
terms of a financial guarantee issued by a bank or financial institution, in favour of
DRD (as provided under clause 3.2 of the Draft Deed of Sale), for payment to DRD
against registration of transfer, and from which date of transfer the full risk to the
Land shall pass to M5 or its nominee taking transfer.
7 TRANSFER
Transfer of the Land shall be passed by the conveyancers appointed by DRD at the
cost of M5 and both parties shall do all that is necessary and required to be done to
effectuate such transfer, without any unreasonable delays being caused.
8 OCCUPATION
M5 shall, from the exercise of the option date take occupation of the Land, provided
that M5 shall, as from the Effective Date have access to the Land for purposes of
carrying out the Due Diligence and DRD undertakes to provide M5 with whichever
information DRD has in its possession or under its control, to assist M5 carrying out
the Due Diligence, without warranting the correctness of such information, and DRD
shall grant whichever consents, approvals and/or authorities are reasonably necessary
to enable M5 to carry out an unrestricted/unprohibited Due Diligence exercise, at the
sole cost and expense of M5, provided further DRD shall not make claim or charge or
be entitled to any compensation for information granted to M5, nor become
responsible to pay professionals and/or consultants for work done on the instructions
of M5.
9
NOTICES AND DOMICILIA
9.1
The Parties choose as their domicilia citandi et executandi their respective
addresses set out in this clause for all purposes arising out of or in connection with
the agreement at which addresses all processes and notices arising out of or in
connection with this Agreement, its breach or termination may validly be served
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upon or delivered to the Parties.
9.2
For purposes of this Agreement, the Parties' respective addresses shall be:
9.2.1
M5 at –
000 Xxxxxxxxxx Xxxx,
XXXXXXX XXXXX
Fax No.: (000) 000-0000
DRD at -
DRD Building
00 Xxxxxx Xxxx
Xxxxxxxx
XXXXXXXXXXXX
Fax No.: 000 000 0000
or at such other address of which the party concerned may notify the other/s in
writing provided that no street address mentioned in this sub-clause shall be
changed to a post office box or poste restante.
9.3
Any notice given in terms of this agreement shall be in writing and shall –
9.3.1
if delivered by hand be deemed to have been duly received by the addressee on
the date of delivery;
9.3.2
if posted by prepaid registered post be deemed to have been received by the
addressee on the 8
th
(eighth) day following the date of such posting;
9.3.3
if transmitted by facsimile be deemed to have been received by the addressee
on the day following the date of dispatch,
unless the contrary is proved.
9.4
Notwithstanding anything to the contrary contained or implied in this agreement, a
written notice or communication actually received by one of the Parties from
another including by way of facsimile transmission shall be adequate written
notice or communication to such party.
10 DISPUTE RESOLUTION
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Any dispute arising under this Agreement shall be mediated between the Parties by a
mutually agreed and suitably skilled mediator. Should the mediator be unsuccessful
and the Parties fail to reach agreement, then the dispute may be referred by the
aggrieved party to the arbitration of a single arbitrator, to be agreed between the
Parties, or failing agreement to be nominated on the application of any party by the
President for the time being of the South African Association of Arbitrators. The
decision of the single arbitrator shall be final and binding on the Parties.
11 BREACH AND CANCELLATION
If a party (“the defaulting party”) commits a breach and/or fails to meet its
obligations in terms of this agreement and fails to remedy such breach after having
received not less than 30 (thirty) days written notice, or where the 30 (thirty) day
period is patently inappropriate, then a reasonable notice period, from the other
party (“the innocent party”) to do so, then the innocent party shall be entitled to
cancel this agreement without any further notice being given to the defaulting party
and without prejudice to the innocent party’s other rights which the innocent party
may have in law. The innocent party may claim from the defaulting party specific
performance without notice being required or been given, as aforestated. This clause
shall not apply to the payment of Option Fees owing under this Agreement and the
Option shall be suspended for any period that it remains unpaid, and become
cancelled if not paid within 5 days of its due date.
12 WAIVER
No latitude or extension of time or other indulgence which may be given or allowed
by either party to the other in respect of any payment or obligation or performance in
terms of this agreement, shall in any way or circumstance be an implied consent by
any party or operate as a waiver or a novation or otherwise effect any of such party’s
rights in terms of or arising out of this agreement or estop such party from enforcing
at any time and without notice strict and punctual compliance with each and every
provision or term hereof.
13
ENTIRE AGREEMENT
This agreement reflects the entire agreement between the Parties and no variation,
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amendment or addendum shall be of any force and effect between the Parties unless
contained in writing and signed by them.
14 INDIVISIBILITY
This agreement and the transaction herein contemplated shall be indivisible, save
that should it transpire that any part or parts thereof are invalid or unenforceable,
such invalid or unenforceable parts shall be severable so that the remaining parts
which are valid and enforceable shall remain valid and shall not also be tainted by
such invalidity or unenforceability.
THUS DONE AND SIGNED at ROODEPOORT on this 21
st
of July 2005 in the presence of
the undersigned witnesses.
AS WITNESSES:
1. ............................…….
2.
AS WITNESSES:
1. ............................…….
2.
..................…………….
/s/ WT Beer
Xxxxxxx Xxxx
Regional General Manager : Assets and Commercial
for and on behalf of
DRDGOLD LIMITED
THUS DONE AND SIGNED at ROODEPOORT on this the 21
st
of July 2005 in the presence
of the undersigned witnesses.
AS WITNESSES:
1. ............................…….
2.
AS WITNESSES:
1. ............................…….
2.
..................…………….
/s/ M5 DEVELOPMENTS (PTY) LIMITED
______________________________
for and on behalf of
M5 DEVELOPMENTS (PTY) LIMITED
