EX-4.71 10 y68795exv4w71.txt FORWARD BULLION TRANSACTION AGREEMENTS EXHIBIT 4.71 [Investec logo] CONFIRMATION DATE: 4th February 2004 TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep ATTN: Lucy McLean FAX: +27-11-3741060 FROM: Investec Bank Limited SUBJECT: Forward Bullion Transaction REF No.: CD7I288 1) The purpose of this communication is to set forth the terms and conditions of the transaction referred to above and entered into on the Trade Date specified below (the "Transaction") between Investec Bank Limited ("Investec") and Durban Roodepoort Deep ("Counterparty"). This communication constitutes a Confirmation as referred to in the Agreement specified below. 1. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions and the 1987 ISDA Bullion Definitions (the "Definitions") as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will prevail. 2. If Investec and Counterparty are parties to the 1992 ISDA Master Agreement, (the "Agreement"), this Transaction and Confirmation supplements, forms part of and is subject to such Agreement. If Investec and Counterparty are not yet parties to the Agreement, both parties agree to use best efforts to promptly negotiate, execute and deliver the Agreement, including a standard form of Schedule and any addenda that may from time to time be required by the 26th of February 2004. Upon execution and delivery of the Agreement this Transaction and Confirmation shall supplement, form part of and be subject to such Agreement and will constitute a single agreement between the parties. Until such Agreement has been executed and delivered, this Transaction and Confirmation (together with all other Transactions and Confirmations previously entered into between us, notwithstanding anything to the contrary therein) shall supplement, form part of and be subject to the 1992 ISDA Master Agreement, as if, on the Trade Date of the first such Transaction between the parties, the parties had executed that agreement (without any Schedule thereto) and specified that the Automatic Early Termination provisions contained in Section 6(a) of such agreement would not apply and that in the event of an Early Termination Date being designated a net payment amount in respect of the Terminated Transactions will be determined in accordance with the early termination payment calculation provisions of Section 8(e)(i) based on a payment measure of Market Quotation and a payment method of Second Method. 3. Investec and Counterparty represent to each other that it has entered to this Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deemed necessary and not upon any view expressed by the other party. 4. The terms of the particular Transaction to which this Confirmation relates are as follows: Trade Date: 4th February 2004 Purchaser of Bullion: Counterparty Seller of Bullion: Investec Bullion: Gold Number of Ounces: 15,000 Contract Price: F2192/oz Value Date: 30th July 2004 Settlement Date: 16th August 2004 Settlement Price: The arithmetic average Rand Gold Spot Price. Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR spot rate, as shown on the Reuters page "GOFO" at approximately 11am London time on each Reset Date. Should this rate be unavailable, the Calculation Agent will determine such rates, in a commercially reasonably manner. Cash Payment: R10,176,209 Cash Payment Date: 12th March 2004 Reset Dates: Daily each business day during July 2004 Consequences of Settlement Disruption Events: Negotiation Business Days: London and Johannesburg Calculation Agent: Investec Governing Law: Governed by and construed in accordance with the laws in force in South Africa unless otherwise agreed in the Agreement 5. Counterparty hereby agrees (a) to check this Confirmation (Reference No: CD 71288 carefully and immediately upon receipt so that errors and discrepancies can be promptly identified and rectified, (b) to confirm that the foregoing correctly sets forth the terms of the agreement between Investec and Counterparty with respect to the particular Transaction to which this Confirmation relates and (c) to 2 confirm knowledge of the terms and conditions of the ISDA Agreement by manually signing this Confirmation and providing the other information requested herein and immediately returning an executed copy to Investec, facsimile, 0027 11 291 1020. Yours, Investec Bank Limited Signed: ___________________________ Title: ____________________________ Date: _____________________________ Agreed and Accepted By: Durban Roodepoort Deep Signed: /s/ L. McClean --------------------------- Title: ____________________________ Date: _____________________________ 3 [Investec logo] CONFIRMATION DATE: 6th February 2004 TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep ATTN: Lucy McLean FAX: +27-11-3741060 FROM: Investec Bank Limited SUBJECT: Forward Bullion Transaction REF No.: CD71567 1. The purpose of this communication is to set forth the terms and conditions of the transaction referred to above and entered into on the Trade Date specified below (the "Transaction") between Investec Bank Limited ("Investec") and Durban Roodepoort Deep ("Counterparty"). This communication constitutes a Confirmation as referred to in the Agreement specified below. 2. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will prevail. 3. If Investec and Counterparty are parties to the 1992 ISDA Master Agreement, (the "Agreement"), this Transaction and Confirmation supplements, forms part of and is subject to such Agreement. If Investec and Counterparty are not yet parties to the Agreement, both parties agree to use best efforts to promptly negotiate, execute and deliver the Agreement, including a standard form of Schedule and any addenda that may from time to time be required by the 26th of February 2004. Upon execution and delivery of the Agreement this Transaction and Confirmation shall supplement, form part of and be subject to such Agreement and will constitute a single agreement between the parties. Until such Agreement has been executed and delivered, this Transaction and Confirmation (together with all other Transactions and Confirmations previously entered into between us, notwithstanding anything to the contrary therein) shall supplement, form part of and be subject to the 1992 ISDA Master Agreement, as if, on the Trade Date of the first such Transaction between the parties, the parties had executed that agreement (without any Schedule thereto) and specified that the Automatic Early Termination provisions contained in Section 6(a) of such agreement would not apply and that in the event of an Early Termination Date being designated a net payment amount in respect of the Terminated Transactions will be determined in accordance with the early termination payment calculation provisions of Section 6(a)(i) based on a payment measure of Market Quotation and a payment method of Second Method. 4. Investec and Counterparty represent to each other that it has entered into this Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deemed necessary and not upon any view expressed by the other party. 5. The terms of the particular Transaction to which this Confirmation relates are as follows: Trade Date: 6th February 2004 Purchaser of Bullion: Counterparty Seller of Bullion: Investec Bullion: Gold Number of Ounces: 15,000 Additional Payment: On 12th March 2004 Counterparty shall pay to Investec R10,325,695 Contract Price: R2192/oz Value Date: 31st August 2004 Settlement Date: 15th September 2004 Settlement Price: The arithmetic average Rand Gold Spot Price. Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR spot rate, as shown on the Reuters page "GOFO" at approximately 11am London time on each Reset Date. Should this rate be unavailable, the Calculation Agent will determine such rates, in a commercially reasonably manner. Reset Dates: Daily each Business Day during August 2004 Consequences of Settlement Disruption Events: Negotiation Business Days: London and Johannesburg Calculation Agent: Investec Governing Law: Governed by and construed in accordance with the laws in force in South Africa unless otherwise agreed in the Agreement 6. Counterparty hereby agrees (a) to check this Confirmation (Reference No: CD 71587 carefully and immediately upon receipt so that errors and discrepancies can be promptly identified and rectified, (b) to confirm that the foregoing correctly sets forth the terms of the agreement between Investec and Counterparty with respect to the particular Transaction to which this Confirmation relates and (c) to confirm knowledge of the terms and conditions of the ISDA Agreement by 5 manually signing this Confirmation and providing the other information requested herein and immediately returning an executed copy to Investec, facsimile, 0027 11 291 1020. Yours, Investec Bank Limited Signed: ___________________________ Title: ____________________________ Date: _____________________________ Agreed and Accepted By: Durban Roodepoort Deep Signed: /s/ L. McClean --------------------------- Title: ____________________________ Date: _____________________________ 6 [Investec logo] CONFIRMATION DATE: 6th February 2004 TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep ATTN: Lucy McLean FAX: +27-11-3741060 FROM: Investec Bank Limited SUBJECT: Forward Bullion Transaction REF No.: CD71679 1. The purpose of this communication is to set forth the terms and conditions of the transaction referred to above and entered into on the Trade Date specified below (the "Transaction") between Investec Bank Limited ("Investec") and Durban Roodepoort Deep ("Counterparty"). This communication constitutes a Confirmation as referred to in the Agreement specified below. 2. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will prevail. 3. If Investec and Counterparty are parties to the 1992 ISDA Master Agreement, (the "Agreement"), this Transaction and Confirmation supplements, forms part of and is subject to such Agreement. If Investec and Counterparty are not yet parties to the Agreement, both parties agree to use best efforts to promptly negotiate, execute and deliver the Agreement, including a standard form of Schedule and any addenda that may from time to time be required by the 26th of February 2004. Upon execution and delivery of the Agreement this Transaction and Confirmation shall supplement, form part of and be subject to such Agreement and will constitute a single agreement between the parties. Until such Agreement has been executed and delivered, this Transaction and Confirmation (together with all other Transactions and Confirmations previously entered into between us, notwithstanding anything to the contrary therein) shall supplement, form part of and be subject to the 1992 ISDA Master Agreement, as if, on the Trade Date of the first such Transaction between the parties, the parties had executed that agreement (without any Schedule thereto) and specified that the Automatic Early Termination provisions contained in Section 6(a) of such agreement would not apply and that in the event of an Early Termination Date being designated a net payment amount in respect of the Terminated Transactions will be determined in accordance with the early termination payment calculation provisions of Section 6(e)(i) based on a payment measure of Market Quotation and a payment method of Second Method. 4. Investec and Counterparty represent to each other that it has entered into this Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deemed necessary and not upon any view expressed by the other party. 5. The terms of the particular Transaction to which this Confirmation relates are as follows: Trade Date: 6th February 2004 Purchaser of Bullion: Counterparty Seller of Bullion: Investec Bullion: Gold Number of Ounces: 15,000 Additional Payment: On 12th March 2004 Counterparty shall pay to Investec R11,123,754. Contract Price: R2192/oz Value Date: 30th September 2004 Settlement Date: 15th October 2004 Settlement Price: The arithmetic average Rand Gold Spot Price. Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR spot rate, as shown on the Reuters page "GOFO" at approximately 11am London time on each Reset Date. Should this rate be unavailable, the Calculation Agent will determine such rates, in a commercially reasonably manner. Reset Dates: Daily each Business Day during September 2004 Consequences of Settlement Disruption Events: Negotiation Business Days: London and Johannesburg Calculation Agent: Investec Governing Law: Governed by and construed in accordance with the laws in force in South Africa unless otherwise agreed in the Agreement 6. Counterparty hereby agrees (a) to check this Confirmation (Reference No: CD 71679 carefully and immediately upon receipt so that errors and discrepancies can be promptly identified and rectified, (b) to confirm that the foregoing correctly sets forth the terms of the agreement between Investec and Counterparty with respect to the particular Transaction to which this Confirmation relates and (c) to confirm knowledge of the terms and conditions of the ISDA Agreement by 8 manually signing this Confirmation and providing the other information requested herein and immediately returning an executed copy to Investec, facsimile, 0027 11 291 1020. Yours, Investec Bank Limited Signed: ____________________________ Title: _____________________________ Date: ______________________________ Agreed and Accepted By: Durban Roodepoort Deep Signed: /s/ L. McClean ---------------------------- Title: _____________________________ Date: ______________________________ 9 [Investec logo] CONFIRMATION DATE: 10th February 2004 TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep ATTN: Lucy McLean FAX: +27-11-3741060 FROM: Investec Bank Limited SUBJECT: Forward Bullion Transaction REF No.: CD72430 1. The purpose of this communication is to set forth the terms and conditions of the transaction referred to above and entered into on the Trade Date specified below (the "Transaction") between Investec Bank Limited ("Investec") and Durban Roodepoort Deep ("Counterparty"). This communication constitutes a Confirmation as referred to in the Agreement specified below. 2. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will prevail. 3. If Investec and Counterparty are parties to the 1992 ISDA Master Agreement, (the "Agreement"), this Transaction and Confirmation supplements, forms part of and is subject to such Agreement. If Investec and Counterparty are not yet parties to the Agreement, both parties agree to use best efforts to promptly negotiate, execute and deliver the Agreement, including a standard form of Schedule and any addenda that may from time to time be required by the 26th February 2004. Upon execution and delivery of the Agreement this Transaction and Confirmation shall supplement, form part of and be subject to such Agreement and will constitute a single agreement between the parties. Until such Agreement has been executed and delivered, this Transaction and Confirmation (together with all other Transactions and Confirmations previously entered into between us, notwithstanding anything to the contrary therein) shall supplement, form part of and be subject to the 1992 ISDA Master Agreement, as if, on the Trade Date of the first such Transaction between the parties, the parties had executed that agreement (without any Schedule thereto) and specified that the Automatic Early Termination provisions contained in Section 6(a) of such agreement would not apply and that in the event of an Early Termination Date being designated a net payment amount in respect of the Terminated Transactions will be determined in accordance with the early termination payment calculation provisions of Section 6(e)(i) based on a payment measure of Market Quotation and a payment method of Second Method. 4. Investec and Counterparty represent to each other that it has entered into this Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deemed necessary and not upon any view expressed by the other party. 5. The terms of the particular Transaction to which this Confirmation relates are as follows: Trade Date: 10th February 2004 Purchaser of Bullion: Counterparty Seller of Bullion: Investec Bullion: Gold Number of Ounces: 15,000 Contract Price: R2256/oz Value Date: 29th October 2004 Settlement Date: 15th November 2004 Settlement Price: The arithmetic average Rand Gold Spot Price. Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR spot rate, as shown on the Reuters page "GOFO" at approximately 11am London time on each Reset Date. Should this rate be unavailable, the Calculation Agent will determine such rates, in a commercially reasonably manner. Cash Payment: R10,898,617 Cash Payment Date: 12th March 2004 Cash Payer: Counterparty Reset Dates: Daily each business day during October 2004 Consequences of Settlement Disruption Events: Negotiation Business Days: London and Johannesburg Calculation Agent: Investec Governing Law: Governed by and construed in accordance with the laws in force in South Africa unless otherwise agreed in the Agreement 6. Counterparty hereby agrees (a) to check this Confirmation (Reference No: CD 72430 carefully and immediately upon receipt so that errors and discrepancies can be promptly identified and rectified, (b) to confirm that the foregoing correctly sets forth the terms of the agreement between Investec and Counterparty with respect to the particular Transaction to which this Confirmation relates and (c) to 11 confirm knowledge of the terms and conditions of the ISDA Agreement by manually signing this Confirmation and providing the other information requested herein and immediately returning an executed copy to Investec, facsimile, 0027 11 291 1020. Yours, Investec Bank Limited Signed: ____________________________ Title: _____________________________ Date: ______________________________ Agreed and Accepted By: Durban Roodepoort Deep Signed: /s/ L. McClean ---------------------------- Title: _____________________________ Date: ______________________________ 12 [Investec logo] CONFIRMATION DATE: 11th February 2004 TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep ATTN: Lucy McLean FAX: +27-11-3741060 FROM: Investec Bank Limited SUBJECT: Forward Bullion Transaction REF No.: CD72431 1. The purpose of this communication is to set forth the terms and conditions of the transaction referred to above and entered into on the Trade Date specified below (the "Transaction") between Investec Bank Limited ("Investec") and Durban Roodepoort Deep ("Counterparty"). This communication constitutes a Confirmation as referred to in the Agreement specified below. 2. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will prevail. 3. If Investec and Counterparty are parties to the 1992 ISDA Master Agreement, (the "Agreement"), this Transaction and Confirmation supplements, forms part of and is subject to such Agreement. If Investec and Counterparty are not yet parties to the Agreement, both parties agree to use best efforts to promptly negotiate, execute and deliver the Agreement, including a standard form of Schedule and any addenda that may from time to time be required by the 26th February 2004. Upon execution and delivery of the Agreement this Transaction and Confirmation shall supplement, form part of and be subject to such Agreement and will constitute a single agreement between the parties. Until such Agreement has been executed and delivered, this Transaction and Confirmation (together with all other Transactions and Confirmations previously entered into between us, notwithstanding anything to the contrary therein) shall supplement, form part of and be subject to the 1992 ISDA Master Agreement, as if, on the Trade Date of the first such Transaction between the parties, the parties had executed that agreement (without any Schedule thereto) and specified that the Automatic Early Termination provisions contained in Section 6(a) of such agreement would not apply and that in the event of an Early Termination Date being designated a net payment amount in respect of the Terminated Transactions will be determined in accordance with the early termination payment calculation provisions of Section 6(e)(i) based on a payment measure of Market Quotation and a payment method of Second Method. 5. Investec and Counterparty represent to each other that it has entered into this Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deemed necessary and not upon any view expressed by the other party. 6. The terms of the particular Transaction to which this Confirmation relates are as follows: Trade Date: 11th February 2004 Purchaser of Bullion: Counterparty Seller of Bullion: Investec Bullion: Gold Number of Ounces: 15,000 Contract Price: R2256/oz Value Date: 30th November 2004 Settlement Date: 15th December 2004 Settlement Price: The arithmetic average Rand Gold Spot Price. Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR spot rate, as shown on the Reuters page "GOFO" at approximately 11am London time on each Reset Date. Should this rate be unavailable, the Calculation Agent will determine such rates, in a commercially reasonably manner. Cash Payment: R10,851,298 Cash Payment Date: 12th March 2004 Cash Payer: Counterparty Reset Dates: Daily each business day during November 2004 Consequences of Settlement Disruption Events: Negotiation Business Days: London and Johannesburg Calculation Agent: Investec Governing Law: Governed by and construed in accordance with the laws in force in South Africa unless otherwise agreed in the Agreement 6. Counterparty hereby agrees (a) to check this Confirmation (Reference No: CD 72431 carefully and immediately upon receipt so that errors and discrepancies can be promptly identified and rectified, (b) to confirm that the foregoing correctly sets forth the terms of the agreement between Investec and Counterparty with respect to the particular Transaction to which this Confirmation relates and (c) to 14 confirm knowledge of the terms and conditions of the ISDA Agreement by manually signing this Confirmation and providing the other information requested herein and immediately returning an executed copy to Investec, facsimile, 0027 11 291 1020. Yours, Investec Bank Limited Signed: ____________________________ Title: _____________________________ Date: ______________________________ Agreed and Accepted By: Durban Roodepoort Deep Signed: /s/ L. McClean ---------------------------- Title: _____________________________ Date: ______________________________ 15 [Investec logo] CONFIRMATION DATE: 12th February 2004 TO: Andisa Treasury Solutions - favour of Durban Roodepoort Deep ATTN: Lucy McLean FAX: +27-11-3741060 FROM: Investec Bank Limited SUBJECT: Forward Bullion Transaction REF No.: CD72432 1. The purpose of this communication is to set forth the terms and conditions of the transaction referred to above and entered into on the Trade Date specified below (the "Transaction") between Investec Bank Limited ("Investec") and Durban Roodepoort Deep ("Counterparty"). This communication constitutes a Confirmation as referred to in the Agreement specified below. 2. This Confirmation is subject to, and incorporates, the 2000 ISDA Definitions and the 1997 ISDA Bullion Definitions (the "Definitions") as published by the International Swaps and Derivatives Association, Inc. ("ISDA"). In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will prevail. 3. If Investec and Counterparty are parties to the 1992 ISDA Master Agreement, (the "Agreement"), this Transaction and Confirmation supplements, forms part of and is subject to such Agreement. If Investec and Counterparty are not yet parties to the Agreement, both parties agree to use best efforts to promptly negotiate, execute and deliver the Agreement, including a standard form of Schedule and any addenda that may from time to time be required by the 26th February 2004. Upon execution and delivery of the Agreement this Transaction and Confirmation shall supplement, form part of and be subject to such Agreement and will constitute a single agreement between the parties. Until such Agreement has been executed and delivered, this Transaction and Confirmation (together with all other Transactions and Confirmations previously entered into between us, notwithstanding anything to the contrary therein) shall supplement, form part of and be subject to the 1992 ISDA Master Agreement, as if, on the Trade Date of the first such Transaction between the parties, the parties had executed that agreement (without any Schedule thereto) and specified that the Automatic Early Termination provisions contained in Section 6(a) of such agreement would not apply and that in the event of an Early Termination Date being designated a net payment amount in respect of the Terminated Transactions will be determined in accordance with the early termination payment calculation provisions of Section 6(e)(i) based on a payment measure of Market Quotation and a payment method of Second Method. 4. Investec and Counterparty represent to each other that it has entered into this Transaction in reliance upon such tax, accounting, regulatory, legal and financial advice as it deemed necessary and not upon any view expressed by the other party. 5. The terms of the particular Transaction to which this Confirmation relates are as follows: Trade Date: 12th February 2004 Purchaser of Bullion: Counterparty Seller of Bullion: Investec Bullion: Gold Number of Ounces: 15,000 Contract Price: R2256/oz Value Date: 31st December 2004 Settlement Date: 17th January 2005 Settlement Price: The arithmetic average Rand Gold Spot Price. Rand Gold Spot Price: The product of GOLD-FIX-AM and the USD/ZAR spot rate, as shown on the Reuters page "GOFO" at approximately 11am London time on each Reset Date. Should this rate be unavailable, the Calculation Agent will determine such rates, in a commercially reasonably manner. Cash Payment: R10,499,582 Cash Payment Date: 12th March 2004 Cash Payer: Counterparty Reset Dates: Daily each business day during December 2004 Consequences of Settlement Disruption Events: Negotiation Business Days: London and Johannesburg Calculation Agent: Investec Governing Law: Governed by and construed in accordance with the laws in force in South Africa unless otherwise agreed in the Agreement 6. Counterparty hereby agrees (a) to check this Confirmation (Reference No: CD 72432 carefully and immediately upon receipt so that errors and discrepancies can be promptly identified and rectified, (b) to confirm that the foregoing correctly sets forth the terms of the agreement between Investec and Counterparty with respect to the particular Transaction to which this Confirmation relates and (c) to 17 confirm knowledge of the terms and conditions of the ISDA Agreement by manually signing this Confirmation and providing the other information requested herein and immediately returning an executed copy to Investec, facsimile, 0027 11 291 1020. Yours, Investec Bank Limited Signed: ____________________________ Title: _____________________________ Date: ______________________________ Agreed and Accepted By: Durban Roodepoort Deep Signed: /s/ L. McClean ---------------------------- Title: _____________________________ Date: ______________________________ 18 ESKOM LETTERHEAD Durban Roodepoort Deep Ltd Attention: I L Murray / Alet Beyers PO Box 390 Fax (011) 482 4643 MARAISBURG 1700 Date/Datum Your Ref./ U Verw. Our Ref./Ons Verw. Enquiries/Navre 18 September 2000 Colin McIntyre Tel 011 8002947 Fax 011 8004499 Dear Sir CONFIRMATION OF TRANSACTION UNDER ISDA ESKOM is pleased to confirm the following Transaction concluded on 14 September 2000 (the "Trade Date") with Durban Roodepoort Deep Ltd. ("Durban"). This confirmation is intended to be a "Confirmation" as such term is used in the Master Form defined below. PART I FORWARD SALE OF ELECTRICITY Buyer: Durban Group (Consisting of Buffelsfontein Gold Mines Limited [including its division of Hartebeestfontein Gold Mining Company Limited], Blyvooruitzicht Gold Mining Company Limited [including its division of Doornfontein Gold Mining Company Limited], Crown Gold Recoveries (Pty) Limited). The listing is for convenience to both parties and that it is DRD which is contracting as principal with ESKOM on behalf of the above listed companies. Seller: ESKOM Commodity: Electricity Effective Date: 1 October, 2000 Termination Date: 30 September, 2006 Calculation Periods: 60 consecutive monthly period from and including the month beginning on the Effective Date to and including the month ending on the Termination Date. Minimum Offtake: 75 GWh/mth Price: For each Calculation Period an amount equal to the ESKOM Standard Tariff in effect during such calculation period. Payment Dates: 15th day of the calendar month next following the end of each Calculation Period during the term of the Transaction. Settlement: Cash settlement in ZAR on each Payment Date, provided, however, that if such date is not a Business Day the applicable Payment Date shall be the immediately following Business Day. PART II GOLD PRICE ADJUSTMENT TO STANDARD TARIFF LEVIED UPON ESKOM GROUP Effective Date: 1 October, 2000 Termination Date: 30 September, 2005 Calculation Periods: 64 consecutive monthly periods from and including the month beginning on the Effective Date to and including the month ending on the Termination Date Commodity: Gold (minimum 0.995 fine, London good delivery form) Gold Price Adjustment: 15,000* Gold Price Adjustment Mechanism Gold Price Adjustment The difference between: Mechanism: (i) (A) ZAR 2505/oz/FTO for each Calculation Period from and including the October 2000 to and including the September 2001 Calculation Period; (B) ZAR 2569/oz/FTO for each Calculation Period from and including the October 2001 to and including the September 2002 Calculation Period; (C) ZAR 2128/oz/FTO for each Calculation Period from and including the October 2002 to and including the September 2003 Calculation Period; (D) ZAR 2192/oz/FTO for each Calculation Period from and including the October 2003 to and including the September 2004 Calculation Period; (E) ZAR 2256/oz/FTO for each Calculation Period from and including the October 2004 to and including the September 2005 Calculation Period; and 20 (ii) for the applicable Calculation Period an amount equal to the arithmetic average of the London PM fix for each Business Day in such Calculation Period. Payment Instruction: On each Payment Date, the Gold Price Adjustment will be cash settled in ZAR. For clarity, a positive gold price adjustment (i.e. where (i) > (ii) in the aforementioned gold price adjustment mechanism) will result in a gold price adjustment in Durban Group's favour. A negative gold price adjustment (ie. where (i) < or = (ii) in the aforementioned gold price adjustment mechanism) will result in a gold price adjustment in Eskom's favour. Payment Dates: 15th day of the calendar month next following the end of each Calculation Period during the term of the Transaction Settlement: Cash settlement in ZAR on each Payment Date, provided, however, that if such date is not a Business Day the applicable Payment Date shall be the immediately following Business Day. OTHER PROVISIONS Calculation Agent: J. Aron & Company Fallback Prices/Rate: If any rate or price referenced above is unavailable as of the applicable time on a Business Day or would not produce a commercial reasonable result then such rate shall be determined by ESKOM in a commercially reasonable manner. Payment Netting: If the payment dates for this transaction and any other forward, swap or option transaction entered into between the parties shall fall on the same day and if the payment obligations thereof shall be denominated in the same currency, such payments shall be made on a net basis so that the party obligated to pay the larger amount shall day the other party an amount equal to the excess of the larger aggregate amount over the smaller aggregate amount or if such amounts are equal, no payment shall be made. Representations: ESKOM shall have the option to terminate this Transaction upon 5 Business Days written notice if at any time the transaction between ESKOM and J. Aron & Company dated the date hereof (the "Related Hedge") shall be closed out 21 and terminated, provided, however, that no payment of Termination Value shall be due under this Transaction until any termination value payment under the Related Hedge is due. ESKOM and Durban agree that the Termination Value of this Transaction shall equal the Termination Value of the Related Hedge, provided that the obligations incurred by Eskom under the related hedge are based on this transaction. ESKOM agrees it shall give Durban prompt written notice of the occurrence of any Termination Event with respect to the Related Hedge. General: This Confirmation shall be governed by and construed in accordance with South African law without regard to conflicts of law rules. Upon execution of a master agreement, this confirmation shall constitute a supplement to, form a part of and be subject to such master agreement. This confirmation, together with any other confirmations entered into by the parties and together with such master agreement, if and when executed, shall constitute a single agreement between the parties. Banking instructions: 1. For Eskom: Standard Corporate & Merchant International Division Eskom Account number 7330005 2. For Durban Roodepoort Deep DRD TREASURY Absa Main Street Branch Account number 01007611923 This Confirmation evidences a complete and binding agreement between you and us as to the terms of the Transaction to which this Confirmation relates. In addition, this Confirmation will supplement, form a part of, and be subject to our ISDA Master Agreement of 13 September 2000 ("the Master Agreement"). All provisions contained in or incorporated by reference in the Master Agreement upon its execution will govern this Confirmation. This Confirmation is subject to the 1991 ISDA Definitions and the 1993 ISDA Commodity Derivatives Definitions, as published by the International Swaps and Derivatives Association, Inc. ("ISDA") as amended, supplemented, updated, and superseded from time to time (together, the "Definitions"), and will be governed in all respects by the Definitions (except that references to "Swap Transactions" in the Definitions will be deemed to be references to "Transactions"). 22 The Definitions, as so modified, are incorporated by reference in, and made part of, this Confirmation as if set forth in full herein. Subject to Section 1(b) of the Master Agreement, in the event of any inconsistency between the provisions of this Confirmation, and the Definitions, this Confirmation will prevail for the purpose of the Transaction. Please sign below indicating your agreement to the above and return to fax number +27 11 800-4499. Many thanks for this business. Regards, ESKOM ___________________________ ________________________________ Signature Print Name 23 ESKOM LETTERHEAD Durban Roodepoort Deep Ltd Attention: I L Murray / Alet Beyers PO Box 390 Fax (011) 482 4643 MARAISBURG 1700 Date Enquiries 22 November 2000 Colin McIntyre Tel 011 8002947 Fax 011 8004499 Dear Sir AMENDMENT AGREEMENT TO CONFIRMATION OF TRANSACTION UNDER ISDA Reference is made to the confirmation of 18 September 2000 between Eskom and Durban Roodepoort Deep Ltd. For the sake of clarity, amendment is made to Part II, "Calculation Periods" definition thereof, to include the following breakdown as Table I: TABLE I
CALCULATION PERIOD CALCULATION PERIOD START DATE END DATE PAYMENT DATE ------------------ ------------------ ------------ 02 Oct 2000 31 Oct 2000 15 Nov 2000 01 Nov 2000 30 Nov 2000 15 Dec 2000 01 Dec 2000 29 Dec 2000 16 Jan 2001 01 Jan 2001 31 Jan 2001 15 Feb 2001 01 Feb 2001 28 Feb 2001 15 Mar 2001 01 Mar 2001 30 Mar 2001 17 Apr 2001 02 Apr 2001 30 Apr 2001 15 May 2001 01 May 2001 31 May 2001 15 Jun 2001 01 Jun 2001 29 Jun 2001 16 Jul 2001 02 Jul 2001 31 Jul 2001 15 Aug 2001 01 Aug 2001 31 Aug 2001 17 Sep 2001 03 Sep 2001 28 Sep 2001 15 Oct 2001 01 Oct 2001 31 Oct 2001 15 Nov 2001 01 Nov 2001 30 Nov 2001 18 Dec 2001 03 Dec 2001 31 Dec 2001 15 Jan 2002 01 Jan 2002 31 Jan 2002 15 Feb 2002 01 Feb 2002 28 Feb 2002 15 Mar 2002
24
CALCULATION PERIOD CALCULATION PERIOD START DATE END DATE PAYMENT DATE ------------------ ------------------ ------------ 01 Mar 2002 29 Mar 2002 15 Apr 2002 01 Apr 2002 30 Apr 2002 15 May 2002 01 May 2002 31 May 2002 18 Jun 2002 03 Jun 2002 28 Jun 2002 15 Jul 2002 01 Jul 2002 31 Jul 2002 15 Aug 2002 01 Aug 2002 30 Aug 2002 16 Sep 2002 02 Sep 2002 30 Sep 2002 15 Oct 2002 01 Oct 2002 31 Oct 2002 15 Nov 2002 01 Nov 2002 29 Nov 2002 17 Dec 2002 02 Dec 2002 31 Dec 2002 15 Jan 2002 01 Jan 2003 31 Jan 2003 18 Feb 2003 03 Feb 2003 28 Feb 2003 17 Mar 2003 03 Mar 2003 31 Mar 2003 15 Apr 2003 01 Apr 2003 30 Apr 2003 15 May 2003 01 May 2003 30 May 2003 17 Jun 2003 02 Jun 2003 30 Jun 2003 15 Jul 2003 01 Jul 2003 31 Jul 2003 15 Aug 2003 01 Aug 2003 29 Aug 2003 15 Sep 2003 01 Sep 2003 30 Sep 2003 15 Oct 2003 01 Oct 2003 31 Oct 2003 17 Nov 2003 03 Nov 2003 28 Nov 2003 15 Dec 2003 01 Dec 2003 31 Dec 2003 15 Jan 2004 01 Jan 2004 30 Jan 2004 17 Feb 2004 02 Feb 2004 27 Feb 2004 15 Mar 2004 01 Mar 2004 31 Mar 2004 15 Apr 2004 01 Apr 2004 30 Apr 2004 17 May 2004 03 May 2004 31 May 2004 15 Jun 2004 01 Jun 2004 30 Jun 2004 15 Jul 2004 01 Jul 2004 30 Jul 2004 16 Aug 2004 02 Aug 2004 31 Aug 2004 15 Sep 2004 01 Sep 2004 30 Sep 2004 15 Oct 2004 01 Oct 2004 29 Oct 2004 15 Nov 2004 01 Nov 2004 30 Nov 2004 15 Dec 2004 01 Dec 2004 31 Dec 2004 18 Jan 2005 03 Jan 2005 31 Jan 2005 15 Feb 2005 01 Feb 2005 28 Feb 2005 15 Mar 2005 01 Mar 2005 31 Mar 2005 15 Apr 2005 01 Apr 2005 29 Apr 2005 16 May 2005 02 May 2005 31 May 2005 15 Jun 2005 01 Jun 2005 30 Jun 2005 15 Jul 2005 01 Jul 2005 29 Jul 2005 15 Aug 2005 01 Aug 2005 31 Aug 2005 15 Sep 2005 01 Sep 2005 30 Sep 2005 17 Oct 2005
25 This amendment and the above table will supplement and form part of the said Confirmation and subject to the ISDA Master Agreement between the parties. Please counter sign below to signify your agreement to the above and return to fax number +27 11 800-4499. Regards Dr W J Kok EXECUTIVE DIRECTOR (FINANCE) ESKOM ________________________ ___________________________ Signature Print name 26