EXHIBIT 4.72
(1) INVESTEC BANK LIMITED
(2) DURBAN ROODEPOORT DEEP LIMITED
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LOAN AGREEMENT
(REFERENCE NUMBER: DRD001)
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THIS LOAN AGREEMENT is dated 24 June 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
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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.
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.
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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:
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.
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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 4.5% 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'.
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.
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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 DRD 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.
"DRD" means the Durban Roodepoort Deep Limited fully paid ordinary share
(Bloomberg Code: DUR SJ) 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.
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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.
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
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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, 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 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
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14.5 all approvals, authorisations, consents, licenses, permissions and
registrations which is 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 U.S. Securities Act of 1933, as amended (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 or otherwise
transfer the Shares issued under this Loan Agreement during the
Distribution Compliance Period 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 (it being acknowledged that IBL is not making this
representation and warranty
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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
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, U.S. persons except in accordance with-Regulation S under the
Securities Act or pursuant to an exemption from the registration
requirements of 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 or another applicable
exemption from the registration requirements of the Securities Act (it
being acknowledged that the Shares are not eligible for resale pursuant
to Rule 144A 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 that purchases Shares from it or through it, or up
until 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 US. persons (i) as part of their distribution,
at any time and (ii) otherwise, until after the period 40 days from
whichever is the later of completion of the distribution of the Shares
issued under this Loan Agreement as determined by IBC and the Final
Redemption Date under the Loan Agreement pursuant to which the Shares
have been issued, except in either case in accordance with Regulation S
under the Securities Act and, in the case of (ii), in accordance with
applicable United States
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federal and state and securities laws. The Shares covered by this notice
many 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
meaning given to them by Regulation S.
15.1.6 IBL agrees that it will not directly or indirectly engage in any
shortselling 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 Ordinary Shares are first issued by DRD under
this Loan Agreement during a Redemption Period and continues until the
expiration of the period 40 days from whichever is the later of
completion of the distribution of the Ordinary Shares as determined by
IBL and certified to DRD and the Final Redemption Date. 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.
15.3 Delivery of Shares. IBM hereby acknowledges and agrees that:
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
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(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
sub-paragraph (a) above prior to each delivery.
15.4 Legend.
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 this security 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 this security 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 an exemption from registration under the Securities Act
(and the holder understands that the security is not eligible for resale
pursuant to Rule
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144A under the Securities Act), in each case in accordance with any
applicable securities laws of any state of the United States, (3) agrees
that this security may not be deposited in any unrestricted American
Depositary Receipt Program relating to the security (a) as part of the
distribution of this security at any time (b) otherwise, until after the
applicable Distribution Compliance Period 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 is will not directly or indirectly, engage in any 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 until the expiration of the 40 day distribution compliance
period identified in the following paragraph if the person depositing the
Shares cannot give the Depositary or custodian a certificate to the
effect of either paragraph (A) or (B) below.
"Pursuant to a loan agreement dated June _24_, 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
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(the "Securities Act"), DRD has issued ______ ordinary shares of DRD (the
"Ordinary Shares") to IBL (the "Reg. S Placement"). [Insert anything that
identifies these Ordinary Shares.] 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 forty days after the date whichever is the
later of completion of the distribution of the Ordinary Shares as
determined by IBL and certified to DRD and [insert the Final Redemption
Date], except in either case in accordance with Regulation S under the
Securities Act, pursuant to registration of the Shares under the
Securities Act or pursuant to an exemption from registration in
accordance with applicable United States federal and state securities
laws.
15.4.3 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
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(3) the Shares to be deposited are not among those Shares issued in
the Reg. S Placement."
15.4.4 In addition to the legend set forth in sub-paragraph (a) 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."
15.4.5 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 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,
15.4.6 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 or the American Depositary Receipts evidenced by
the 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 Ordinary Shares 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
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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 applicable 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.
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
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(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 relation
to DRD or the whole or any part of its undertaking, assets, rights
or revenues; or
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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
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
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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 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.
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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 is 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 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.
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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.
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.
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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").
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;
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29.7 "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
29.8 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
Calculation Agent Adjustment shall apply in respect of
"Nationalisation, Insolvency or Delisting".
"Non Reliance" shall be "Applicable".
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"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.
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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 to deliver an instruction to IBL to direct the first ZAR
60,000,000.00 drawn down directly to IBL in settlement of certain
obligations under a gold forward transaction between IBL and DRD.
4. 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.
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Signed by /s/ M.M. Wellesley-Wood
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:
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