EX-4.48 22 a2096282zex-4_48.txt EXHIBIT 4.48 EXHIBIT 4.48 AGREEMENT Amongst DURBAN ROODEPOORT DEEP, LIMITED and WEST WITWATERSRAND GOLD MINES LIMITED and BOPHELO TRADING (PROPRIETARY) LIMITED DENEYS REITZ ATTORNEYS Page 2 TABLE OF CONTENTS 1. PARTIES...................................................................4 2. INTERPRETATION............................................................5 3. INTRODUCTION..............................................................8 4. SALE......................................................................8 5. PURCHASE CONSIDERATION....................................................8 6. PERMITS..................................................................10 7. INTERIM PERIOD...........................................................11 8. LIABILITIES..............................................................12 9. DELIVERY.................................................................13 10. VOETSTOOTS..............................................................14 11. SALE AS A GOING CONCERN.................................................14 12. ACKNOWLEDGEMENT BY BT...................................................15 13. EMPLOYEES...............................................................16 14. RESOLUTIVE CONDITIONS...................................................17 15. REHABILITATION..........................................................18 16. SECURITY................................................................19 17. WARRANTY................................................................19 18. BREACH..................................................................20 19. DOMICILIUM..............................................................21 20. GOVERNING LAW...........................................................22 21. WHOLE AGREEMENT.........................................................22 22. COSTS...................................................................22 23. TRANSACTIONS INDIVISIBLE................................................23 24. BOOKS, RECORDS, DOCUMENTS...............................................23 25. DISPUTES................................................................23 26. ARBITRATION.............................................................23 27. CESSION.................................................................25 28. INSURANCE...............................................................25 29. INSOLVENCY ACT ADVERTISEMENTS...........................................25 30. WEST WITS RETAINED RIGHT TO MINE........................................25 31. AMANZI WATER TREATMENT PROJECT..........................................26
Page 3 ANNEX 1 DIAGRAM OF WEST WITS ANNEX 2 SURFACE RIGHT PERMIT LIST ANNEX 2A SURFACE RIGHT PERMIT PLAN ANNEX 3 EMPLOYEES ANNEX 4 WEST WITS CADASTRAL PLAN ANNEX 5 WEST WITS PLANT COMPONENTS Page 4 AGREEMENT 1. PARTIES 1.1 DURBAN ROODEPOORT DEEP, LIMITED (a company duly incorporated in the Republic of South Africa under Registration No. 1895/000926/06 and having its principal place of business at 45 Empire Road, Parktown, Johannesburg) ("DRD") 1.2 WEST WITWATERSRAND GOLD MINES LIMITED (a company incorporated in the Republic of South Africa under Registration No. 1967/013456/06 and having its principal place of business at 45 Empire Road, Parktown, Johannesburg) ("WEST WITS") 1.3 BOPHELO TRADING (PROPRIETARY) LIMITED (a private company incorporated in the Republic of South Africa under Registration No. 1996/010274/07 and having its principal place of business at The Workshop, 1st Floor, North Wing, 70 - 7th Avenue Parktown North, Johannesburg) ("BT') Page 5 2. INTERPRETATION 2.1 The headnotes to the clauses of this Agreement are inserted for reference purposes only and shall in no way govern or effect the interpretation hereof. 2.2 Unless inconsistent with the context, the expressions set forth below, whether used as verb or a noun, shall bear the following meanings : "the Act" the Minerals Act, No. 50 of 1991. of the Republic, as amended; "this Agreement" this Agreement read with all the annexes hereto; "BT" as defined in the description of the parties above; "Day" any day other than a Saturday, Sunday or an official public holiday; "Confidential Information" all information or data whether written, oral or in any other form concerning the West Wits Plant Enterprise furnished to BT by or on behalf of DRD or WEST WITS including any documents and information prepared or generated from such information; "DRD" as defined in the description of the parties above; "Effective Date" the date upon which the mining authorisations referred to in clause 6 are issued to BT; "Effective Date Accounts" the accounts of the West Wits Plant Page 6 Enterprise as at the Effective Date, to be prepared in accordance with clause 7.6; "the Interim Period" the period between the Signature Date and the Effective Date; "the North Sand Dump" the removable surface material located on the area on the eastern side of the boundary line depicted on Annexe 1 pertaining to Surface Right Permit A 51 /1957 and the North plant clean up and rehabilitation area depicted on Annexe 1, which areas shall be surveyed, at the cost of BT as soon as reasonably possible after the Signature Date and such surveyed diagram shall be attached to this agreement in replacement of Annexe 1; "the parties/a party" shall mean any or all of DRD, WEST WITS or BT, or any combination of them as the context may indicate; "Republic" the Republic of South Africa as constituted from time to time; "Signature Date" the date upon which the last party signs this Agreement; "Signature Date Accounts" the accounts of the West Wits Plant Enterprise, to be agreed between the parties as soon as possible after the Signature Date, as at the Signature Date; "Surface Right Permits" the Surface Rights Permits listed in Annexe 2 hereto; "Transferring Employees" the persons employed at the Wesy Wits Page 7 Plant Enterprise as listed in Annexe 3 hereto; "WEST WITS" as defined in the description of the parties above; "West Wits Freehold" Portion 66 of the Farm Waterval, Registration Division I.Q., Gauteng Province, measuring 29,0172 hectares, held under Deed of Transfer No. T 39468/1992, depicted in green on the sketch annexed hereto as Annexe 4; "the West Wits Plant" the movable and removable tangible assets described in Annexe 5; "the West Wits Plant Enterprise" the enterprise of recovering gold carried on by WEST WITS, as a going concern, utilising the West Wits Plant to process the North Sand Dump, the West Wits Surface Materials, the West Wits Freehold, and the Surface Right Permits; "West Wits Surface Materials" the surface materials being sand, slime or archive materials and waste rock, which are not subject to any third party rights as disclosed in this Agreement, located on the surface of the area of Mining Licence No. 9/2000; 2.3 Unless inconsistent with the context, an expression which denotes : 2.3.1 any gender includes the other genders; 2.3.2 a natural person includes an artificial person and vice versa; 2.3.3 the singular includes the plural and vice versa. Page 8 2.4 Any annexures and schedules to this Agreement form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such annexures and schedules. 3. INTRODUCTION 3.1 WEST WITS owns the West Wits Plant Enterprise. 3.2 The parties wish to enter into an agreement in terms of which BT purchases from WEST WITS the West Wits Plant Enterprise as a going concern as set out in clause 11. 4. SALE WEST WITS hereby sells to BT which hereby purchases the West Wits Plant Enterprise as a going concern with effect from the Effective Date, subject to the terms and conditions set out in this Agreement. 5. PURCHASE CONSIDERATION 5.1 The purchase consideration payable by BT to WEST WITS in respect of the West Wits Plant Enterprise is an amount of R25 000 000,00 (twenty five million Rand). 5.2 The purchase consideration referred to in 5.1 shall be paid by BT to WEST WITS as follows: 5.2.1 BT has deposited the sum of R2 000 000,00 (two million Rand) with Deneys Reitz Inc, which amount has been invested in an interest bearing account in terms of section 78(2A) of the Attorneys Act, 1979, for the benefit of WEST WITS which amount is to be paid to, together with the accrued interest thereon, to WEST WITS upon the Signature Date. The patties specifically Page 9 record that this deposit is not refundable to BT irrespective of whether the resolutive conditions contained in this Agreement are fulfilled or not. 5.2.2 The balance of R23 000 000,00 (twenty three million Rand) shall be paid by BT to WEST WITS as follows: 5.2.2.1 the sum of R8 000 000.00 (eight million Rand) on the Signature Date; 5.2.2.2 the sum of R5 000 000.00 (five million Rand) on the 28th of June 2002; 5.2.2.3 the sum of R400 000.00 (four hundred thousand Rand) on the 31st of July 2002; 5.2.2.4 the sum of R400 000.00 (four hundred thousand Rand) on the 30th of August 2002; 5.2.2.5 the balance of R9 200 000.00 (nine million two hundred thousand Rand) in 10 (ten) equal monthly instalments of R920 000.00 (nine hundred and twenty thousand Rand) each, the first instalment to be paid on the 30th of September 2002, and thereafter on the last day of each succeeding month until the balance of the purchase consideration has been paid in full. 5.2.3 The purchase consideration referred to in clause 5.2.2.1 shall be paid by BT to WEST WITS by way of a cheque drawn in favour of West Wits and the balance of the payments thereafter shall be paid free of set off, deduction, exchange and all charges, into the following bank account; 5.2.3.1 Bank: Standard Corporate and Merchant Bank 5.2.3.2 Branch: Johannesburg 5.2.3.3 Branch Code: 0205 5.2.3.4 Account Number: 00042463 5.2.3.5 Account Name: DRD Treasury Page 10 5.2.4 No interest shall accrue on the outstanding balance of the purchase consideration except in the event of BT failing to pay any amount due to WEST WITS on due date, and failing to remedy such breach after receipt of a notice in terms of clause 18 in which event: 5.2.4.1 the full outstanding balance of the purchase consideration shall immediately become due and payable; and 5.2.4.2 interest shall accrue on the outstanding balance of the purchase consideration from the date of default to the date of payment, both days inclusive, calculated and compounded monthly in arrear at a rate equal to the prime bank overdraft rate charged by Standard Bank of South Africa Limited to its commercial customers from time to time. A certificate signed by any manager of Standard Bank of South Africa Limited, whose authority it shall not be necessary to prove, shall be prima facie evidence of the overdraft rate charged by Standard Bank of South Africa Limited for the purposes of this clause. 6. PERMITS 6.1 BT shall, as soon as reasonably possible after the Signature Date apply for all such mining authorisations required by it for the purposes of conducting the West Wits Plant Enterprise with the intention that such mining authorisations be obtained by 28 June 2002. WEST WITS and DRD do hereby grant their consent to the application by BT for the permits and authorisations contemplated in this clause. 6.2 West Wits, in order to effect delivery of the West Wits Plant Enterprise in terms of clause 9 shall - 6.2.1 with effect from the Effective Date, abandon its rights in respect of the portion indicated as the designated area on Annexe 2A in respect of the Surface Right Permit numbered 1 on Annexe 2; 6.2.2 with effect from the Effective Date allow BT the free and undisturbed use of the pipelines in respect of the Surface Right Permits numbered 2, 4 and 5 on Page 11 Annexe 2, it being agreed that in the event of the rights of BT in this regard being suspended or curtailed in any way, the parties shall negotiate in good faith and to finality such alternative arrangement so as to give effect to the intention of the parties set out herein; and 6.2.3 as soon as possible after the Signature Date - 6.2.3.1 apply for the appropriate deduction diagrams to be prepared in respect of the portions of Surface Rights Permits numbered 3 and 6 indicated as the designated areas on Annexe 2 (the "Permits") and procure the registration of the Permits in the name of BT, all at the cost of BT; or 6.2.3.2 if the transfer of the Permits are impossible, 6.2.3.2.1 acquire the surface rights or rights to use the surface in respect of the areas covered by the aforesaid deduction diagrams on behalf and in the name of BT and the registration, if applicable, of such rights in the name of BT; and 6.2.3.2.2 abandon its rights in respect of the said areas held under the Permits against such acquisition and registration, if applicable. 7. INTERIM PERIOD 7.1 For the Interim Period BT shall conduct the business of the West Wits Plant Enterprise as an independent contractor under the DRD Mining Licence 9/2000. 7.2 All income earned by the West Wits Plant Enterprise during the Interim Period shall be paid to BT in its capacity as independent contractor as a fee for conducting the business of the West Wits Plant Enterprise for and on behalf of DRD. Page 12 7.3 The disposal of all gold and silver won by the West Wits Plant Enterprise during the Interim Period shall be sold to Rand Refinery through the DRD account and DRD shall account to BT for BT's fee referred to in clause 7.2 within 2 (two) business days of the receipt of payment from Rand Refinery. 7.4 All expenses and costs to be incurred in respect of the West Wits Plant Enterprise during the Interim Period shall be controlled and be ratified by a joint administration committee consisting of 1 (one) representative of DRD and 1 (one) representative of BT (such committee to be constituted on the Signature Date), prior to any such disbursements by DRD. In the absence of agreement in the committee the matter shall be referred to an auditor of KPMG for resolution within 48 (forty eight) hours of referral, and the decision of the auditor shall be final and binding on the parties. 7.5 All income received by DRD and due as a fee to BT pursuant to clause 7.3 and all expenses incurred by DRD pursuant to clause 7.4 shall be set off and the net proceeds, or expenses shall be paid to BT, or by BT, as the case may be to or by WEST WITS, within 2 (two) days of receipt of each payment from Rand Refinery. 7.6 DRD shall be responsible for preparing the Effective Date Accounts and delivering the same to BT within 30 (thirty) days of the Effective Date. 7.7 It is recorded that the purpose of the Signature Date Accounts and the Effective Date Accounts will be to provide a record for the reconciliation of the financial conduct of the West Wits Plant Enterprise for the Interim Period. 7.8 BT shall be entitled, in terms of the existing authorities held by WEST WITS to deposit sand and slime produced as a by product of the West Wits Plant Enterprise into the WEST WITS pit for the duration of the Interim Period, whereafter BT shall apply for its own authorisations for the deposits of its waste materials. 8. LIABILITIES 8.1 WEST WITS and DRD, to the extent applicable, (the "Guarantors") shall remain liable for all liabilities of the West Wits Plant Enterprise up to and including the Signature Date. Accordingly the Guarantors hereby indemnify BT against all loss, Page 13 damage or expense which BT may suffer as a result of or which may be attributable to any liability of the West Wits Plant Enterprise, whether actual or contingent, the cause of which arose prior to the Signature Date. 8.2 BT shall notify the Guarantors of any claim which may be made against BT in respect of any of the matters referred to in clause 8.1 within a reasonable time of BT becoming aware thereof, to enable the Guarantors to take appropriate steps in respect of such claim. 8.3 The Guarantors shall be entitled to contest the claim concerned and shall be entitled to control the proceedings in regard thereto, provided that the Guarantors indemnify BT against all costs (including attorney and own client costs and any other costs not recoverable on taxation) which may be incurred as a consequence of such steps and BT shall be entitled to require the Guarantors to: 8.3.1 give reasonable security against such costs; 8.3.2 procure the release of any of the assets comprising the West Wits Plant Enterprise in the event of the attachment of such assets. 8.4 BT shall render reasonable assistance to the Guarantors (at the expense of the Guarantors ) in regard to the steps taken by the Guarantors in opposing such claim. 9. DELIVERY At the close of business on the Effective Date the West Wits Plant Enterprise shall be deemed to have been delivered by WEST WITS to BT at the West Wits Plant Enterprise location. Risk in and benefit to the West Wits Plant Enterprise shall vest in BT with effect from the close of business on the Effective Date. 9.1 BT shall be liable, at its own cost, for the conduct of any stock taking by its own employees or auditors for the purposes of verifying the physical presence of the West Wits Plant, within 2 (two) days of the Signature Date. In the absence of such stock taking, and in the absence of any written notification by BT to WEST WITS that any item covered by the West Wits Plant description in Annexe 5 is not Page 14 present, BT shall be deemed to have received all of the West Wits Plant described in Annexe 5. 9.2 Notwithstanding the delivery of the West Wits Plant Enterprise and transfer of the risk and benefit, ownership shall only pass against payment of the final instalment of the purchase consideration in terms of clause 5.2. 9.3 Transfer of the West Wits Freehold into the name of BT shall be registered by Deneys Reitz Inc, upon payment of the final instalment of the purchase consideration, in terms of clause 5.2. 10. VOETSTOOTS The West Wits Plant Enterprise is sold to BT voetstoots and in the condition which it exists, subject to all rights, obligations, terms and conditions applicable thereto and to existing conditions of title, as at the Effective Date. BT acknowledges that the Confidential Information was made available to BT by DRD and WEST WITS prior to the Effective Date to enable BT to assess and determine whether it wished to purchase the West Wits Plant Enterprise in terms of this Agreement. BT further acknowledges that neither DRD nor WEST WITS nor any of their advisors have made any representations or warranties, express or implied, as to the accuracy, reliability or completeness of the Confidential Information at any time, it being recorded that BT has relied on its own judgement to purchase the West Wits Plant Enterprise. 11. SALE AS A GOING CONCERN 11.1 It is recorded and agreed that 11.1.1 the sale of the West Wits Plant Enterprise is the sale of an enterprise as a going concern; 11.1.2 the West Wits Plant Enterprise will be an income earning activity on the Effective Date; Page 15 11.1.3 all the assets which are necessary for carrying on the West Wits Plant Enterprise are being disposed of by WEST WITS to BT in terms of this Agreement; 11.1.4 both WEST WITS and BT are registered vendors in terms of the Value-Added Tax Act. Accordingly the parties intend that this transaction will be zero-rated pursuant to the provisions of section 11(1)(e) of the Value-Added Tax Act, 1991. The Sellers will, on this basis, issue a zero-rated tax invoice to BT. The purchase consideration set out in clause 5 is exclusive of value-added tax (if any) which may be payable in respect of this transaction. To the extent that value-added tax may be payable on all or any part or parts of the West Wits Plant Enterprise WEST WITS shall issue a credit note for the zero-rated tax invoice and issue a new tax invoice, appropriately revised, and payment of the value-added tax shall be the sole liability of BT. 12. ACKNOWLEDGEMENT BY BT Without limiting the generality of clause 10, BT acknowledges being aware that: 12.1 Alpha (Proprietary) Limited has rights as referred to in the agreements as disclosed to BT relating to the rock dump which is situated on Portion 136 Luipaardsvlei 246 I.Q; 12.2 There are registered third party business stands and Surface Rights Permits on the surface of the area of Mining Licence No. 9/2000 which will enure against BT; 12.3 Instant Concrete Products (Proprietary) Limited trading as Rockklip has the right to the rock dump situated to the north of the northern part of Portion 66 of the Farm Waterval 174 I.Q. and accordingly that rock dump is excluded from this sale; 12.4 The supply of water and electricity required by the West Wits Plant Enterprise are provided by Eskom and the Rand Water Board, respectively, at supply points on the WEST WITS properties. WEST WITS has employed the services of C and G Engineering to read the meters and issue monthly statements reflecting the Page 16 consumption of water and electricity in respect of the West Wits Plant Enterprise. Accordingly BT shall reimburse WEST WITS for the costs of all electricity and water consumed by the West Wits Plant Enterprise with effect from the Signature Date until such time as BT secures its own supply of water and electricity to the West Wits Plant Enterprise; 12.5 The West Wits Surface Materials exclude all materials excavated by DRD or WEST WITS from the WEST WITS open pit and deposited on the pit side; 12.6 Third party consents are required for the cession and delegation of DRD's rights and obligations under certain lease and rental agreements referred to in the accounts of DRD to BT. If such consents are not obtained DRD shall maintain such contracts in force for the benefit of BT, provided that BT shall reimburse DRD for payments made in respect thereof. 13. EMPLOYEES 13.1 The parties agree that with effect from the Effective Date, section 197(2) of the Labour Relations Act, 66 of 1995 ("LRA") shall be applicable to the Transferring Employees and that accordingly the employment of each Transferring Employee will continue in force with BT as the new employer in terms of the LRA. Accordingly, and given the absence of, agreement as referred to in section 197(2) of LRA: 13.1.1 all the rights and obligations between WEST WITS as the "OLD EMPLOYER" and each Transferring Employee of the West Wits Plant Enterprise as at the Effective Date will continue in force as if there were rights, and obligations between BT, as the new employer and each such Transferring Employee; 13.1.2 anything done before the Effective Date by or in relation to the "OLD EMPLOYER" will be considered to have been done by or in relation to the "NEW EMPLOYER". 13.2 BT irrevocably indemnifies and holds WEST WITS harmless against any claim of whatsoever nature that may arise as a result of BT's failure to give effect to the provisions of 13.1, including costs and expenses incurred by WEST WITS in defending such claims. Page 17 13.3 WEST WITS warrants that all levies and similar amounts due by WEST WITS in respect of the Transferring Employees relating to UIF, PAYE, SITE, Workmens Compensation Levies, pension contributions and medical aid contributions shall be paid by WEST WITS up to and including the Effective Date. WEST WITS shall remain liable for normal accumulated leave pay in respect of the Transferring Employees up to and including the Effective Date. WEST WITS shall not be liable for any retrenchment compensation in respect of any of the transferring Employees. 14. RESOLUTIVE CONDITIONS 14.1 This entire Agreement, save for this clause and clauses 2, 5.2.1, 5.2.2, 18, 19, 20, 21, 22, 25 and 26, is subject to the fulfilment of the following conditions namely that within a period of 30 (thirty) days from the Effective Date: 14.1.1 Alpha (Pty) Ltd shall agree to the cession by DRD of all DRD's rights and obligations under the Agreement referred to in clause 12.1 to BT, and BT shall agree to pay to Alpha (Proprietary) Limited a royalty of R2.75 per ton of material removed from the rock dump on Portion 136 Luipaardsvlei 246 I.Q.; 14.1.2 BT shall obtain the approval of the Director: Mineral Development in terms of the Act for the transfer of all liabilities and obligations of whatsoever nature and howsoever arising relating or incidental to the rehabilitation and pollution control of the North Sand Dump and the West Wits Plant Enterprise from DRD and WEST WITS to BT; 14.1.3 BT shall deliver guarantees or other security, to the satisfaction of the Director: Mineral Development, for the anticipated costs of complying with its obligations under clause 14.1.2, and the concomitant release of DRD and WEST WITS from that liability; and 14.1.4 the Permits (as defined in clause 6.2.3) being registered in the name of BT or West Wits having abandoned its rights in terms of clause 6.2.3.2.2. Page 18 14.2 The following provisions shall apply in regard to the resolutive conditions in clause 14.1: 14.2.1 the parties will use their best endeavours to procure the fulfilment of the resolutive conditions timeously; 14.2.2 DRD and/or WEST WITS shall be entitled from time to time to consent in writing (which consent shall not unreasonably be withheld), at the request of BT, to the extension of the date for the fulfilment of the whole or any part or parts of the resolutive conditions; 14.2.3 unless the resolutive conditions are fulfilled within the period allowed therefor or such extended period or periods as DRD and/or WEST WITS may from time to time notify in terms of clause 14.2.2 above, this Agreement shall lapse and be of no further force or effect and each party shall as far as possible be restored to the status quo ante, save that WEST WITS shall be entitled to retain payment of the amount referred to in clause 5.2.1 and shall not be accountable to BT therefor. 15. REHABILITATION 15.1 BT shall comply with the environmental management program submitted by DRD and WEST WITS to the Director: Mineral Development in respect of or incidental to the rehabilitation and pollution control of the West Wits Plant Enterprise, and specifically the footprint of the West Wits Surface Materials removed by BT in the conduct of the West Wits Plant Enterprise. 15.2 BT shall advise WEST WITS within 12 (twelve) months of the Signature Date which of the WEST WITS Surface Materials it wishes to process for the recovery of gold. Upon the date of such notification the obligation to rehabilitate the surface area under the identified surface materials to be processed by BT, shall pass to BT. Should BT fail to notify WEST WITS of the areas it wishes to process in terms of this clause WEST WITS and DRD shall be entitled to proceed with the rehabilitation of the entire area, or those areas not covered by the notification referred to in this clause in such manner and at such time as WEST WITS and/or DRD may in their Page 19 sole discretion determine, without further reference to BT, and BT shall have no claim against DRD or WEST WITS arising out of such rehabilitation. 15.3 In relation to the transfer of all liabilities and obligations relating to or incidental to the rehabilitation and pollution control of the North Sand Dump and the West Wits Plant Enterprise BT shall comply with the following acts and the regulations promulgated in terms thereof all as amended or substituted from time to time, namely, the Act, the National Water Act of 1998, the Atmospheric Pollution Prevention Act 45 of 1956, the National Environment Management Act of 1998, and all other laws, regulations, ordinances, by-laws, rules, lawful directives of State Officials, which are applicable from time to time, and all conditions subject to which relevant permits, licences, permissions and other authorisations are granted in respect of the West Wits Plant Enterprise irrespective of whether such liabilities and obligations accrued before, on or after the Signature Date. 15.4 BT hereby indemnifies and holds DRD and WEST WITS and their directors, officers and employees harmless from and against all loss, damages and claims of whatsoever nature and howsoever arising which may be suffered or incurred by or made against one of the indemnified parties directly or indirectly relating or incidental to the failure by BT to comply with its obligations in terms of 15.3. 16. SECURITY It is recorded that at the close of business on the Effective Date WEST WITS will withdraw all of their security personnel on or about the West Wits Plant Enterprise and thus the obligation to secure the West Wits Plant Enterprise shall vest in BT with effect from the close of business on the Effective Date. 17. WARRANTY 17.1 Without limiting the generality of clause 10 WEST WITS warrants to BT that: 17.1.1 WEST WITS shall obtain the consent of BOE Limited for the sale herein contemplated; Page 20 17.1.2 WEST WITS shall obtain the release of the notarial bond granted to Chase Manhattan Bank Limited over the West Wits Plant; 17.1.3 WEST WITS shall obtain the release of the surety mortgage bond registered in favour of Chase Manhattan Bank Limited over the West Wits Freehold, on or before the 31st of August 2002. 17.2 West Wits and DRD warrants to BT that all of the assets described as and forming part of the West Wits Plant Enterprise are beneficially owned by WEST WITS. 18. BREACH 18.1 If at any time any party commits any material breach of the terms and conditions of this Agreement and fails to remedy such breach within 5 (five) days after the receipt of written notice from the other party or parties requiring it to remedy such default or such longer period as may reasonably be required to remedy such default, the aggrieved party or parties shall have the right at their option, but without detracting from their further or alternative rights and remedies and without prejudice to any claim which they may have for damages for breach of contract or otherwise, to terminate this Agreement, or any part thereof. 18.2 If the party in breach is BT, and BT fails to remedy its breach within the 5 (five) day period referred to in clause 18.1 WEST WITS shall be entitled, without prejudice to any of its rights in terns of clause 18.1, to terminate this Agreement, retain all payments received by it from BT and retake possession of the West Wits Plant Enterprise. 18.3 Notwithstanding the provisions of 18.1, no party shall be entitled to exercise or enforce any remedy against another party in relation to any breach of the terms and conditions of this Agreement: 18.3.1 if this Agreement specifies the steps to be taken in the event of such breach, unless it takes such steps; Page 21 18.3.2 if this Agreement specifies an alternative remedy for such breach; 18.3.3 unless the said breach is fundamental, material, and goes to the root of this Agreement or relates to non-payment of monies. 19. DOMICILIUM 19.1 The parties to this Agreement respectively choose DOMICILIUM CITANDI ET EXECUTANDI for all purposes of and in connection with this Agreement as follows 19.1.1 DRD 45 Empire Road PARKTOWN 2193; 19.1.2 WEST WITS 45 Empire Road PARKTOWN 2193; 19.1.3 BT c/o Export Venture Capital Corporation (Proprietary) Limited The Workshop 1st Floor, North Wing 70 - 7th Avenue Parktown North 2196 19.2 The parties shall be entitled to change their domicilium from time to time, provided that any such change shall only be effective upon receipt of notice in writing by the other party of such change. 19.3 Save as otherwise provided in this Agreement, all notices, demands or communications intended for either party, shall be made or given at such party's domicilium for the time being by telex, telefax, telegram or hand delivery to a responsible employee of the party, and, if by hand delivery the party to whom such Page 22 notice, demand or communication is addressed will not refuse delivery, and in the event the delivery is so refused, delivery shall be deemed to have been made, given and received on the day delivery was so tendered. 20. GOVERNING LAW This Agreement shall be governed by the laws of the Republic of South Africa. 21. WHOLE AGREEMENT 21.1 This Agreement and the annexures hereto shall constitute the whole agreement between the parties hereto. 21.2 No variation, modification or waiver or cancellation of any provisions of this Agreement, or consent to any departure therefrom, shall in any event be of any force or effect unless confirmed in writing and signed by the parties, and then such variation, modification, waiver, cancellation or consent shall be effective only in the specific instance and for the purpose and to the extent for which it was made or given. 21.3 The parties confirm that, save as specifically set out herein, no undertakings, representations or warranties have been made by or on behalf of the other party hereto, relating to this Agreement. 21.4 It is recorded that no oral or written agreement has or will come into being relating to the matters herein contained, save as herein contained and signed by the respective parties. 22. COSTS 22.1 All costs relating to the negotiation, preparation, conclusion and implementation of this Agreement shall be borne and paid by BT. Page 23 22.2 All brokers fees payable upon the conclusion of this transaction shall be paid by BT on Signature Date. 22.3 All charges incurred in the registration of the transfer of the West Wits Freehold into the name of BT, including the conveyancing charges of Deneys Reitz Inc at the recommended conveyancing tariff, shall be borne by BT. 23. TRANSACTIONS INDIVISIBLE The transactions contemplated herein are all indivisibly linked so that if one is incapable of being implemented the others will also be incapable of being implemented save to the extent recorded in this Agreement. 24. BOOKS, RECORDS, DOCUMENTS As soon as is reasonably possible after the Signature Date DRD and WEST WITS shall deliver to BT all books, records and documents relating to the West Wits Plant Enterprise sold in terms of this Agreement. 25. DISPUTES The parties shall use their reasonable endeavours to resolve, amongst themselves any dispute arising out of or in connection with this Agreement, (including any question regarding its existence, validity, implementation or termination), failing which the dispute shall be referred to and finally resolved by arbitration in Johannesburg, in accordance with the provisions of clause 26. 26. ARBITRATION Any dispute arising from or in connection with this Agreement shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator Page 24 or arbitrators agreed by the parties, and failing such agreement within 10 days of the date of declaration of the dispute, appointed by the Foundation. Page 25 27. CESSION None of the parties shall be entitled to cede, assign or otherwise transfer all or any of its rights, interest or obligations under and in terms of this Agreement to any person, without the prior written consent of the other parties, which consents may not be unreasonably withheld. 28. INSURANCE DRD shall continue to insure the West Wits Plant Enterprise at its cost up to 31 March 2003, whereafter the obligation to insure the West Wits Plant Enterprise shall pass to BT with effect from 1 April 2003. 29. INSOLVENCY ACT ADVERTISEMENTS The parties agree that notice of the sale of the West Wits Plant Enterprise will not be published as contemplated in section 34 of the Insolvency Act, No. 24 of 1936 (as amended). Accordingly, each party indemnifies and holds the other parties harmless from and against any and all loss which each of the parties may suffer as a result of or arising out of the failure so to advertise. 30. WEST WITS RETAINED RIGHT TO MINE 30.1 WEST WITS hereby retains the right to mine underground by virtue of its mining titles and mining authorisations held by it on the property covered by the West Wits Plant Enterprise. WEST WITS shall use its Surface Right Permits which pertain to the surface area of the West Wits Plant Enterprise for the purposes of access to its underground structures only. In exercising its rights in terms of this Agreement BT shall at all times not do anything on or about the surface area of the West Wits Plant Enterprise which would unreasonably restrict WEST WITS's right to access of its underground mining activities. Page 26 30.2 It is further recorded that WEST WITS has and will retain certain rehabilitation liabilities in respect of its underground activities on the areas covered by the shaft equipment areas as depicted on the plan and sketches on Annexe 2 in respect of the shafts. BT in exercising its rights in terms hereof shall not do anything which will prejudice WEST WITS's ability to fulfil its rehabilitation obligations as set out in its approved environmental management programme. 31. AMANZI WATER TREATMENT PROJECT DRD shall make available to BT information relating to the Amanzi Water Treatment Project undertaken by it, provided that such information shall be deemed to be Confidential Information and shall not be used by BT without the prior written approval of DRD. THUS DONE AND SIGNED at JOHANNESBURG on this 12th of June 2002 and in the presence of the undersigned witnesses: AS WITNESSES 1. /s/ B. Morton 2. /s/ D. Van den Bergh /s/ Mark Wellesley-Wood -------------------------------- For and on behalf of DURBAN ROODEPOORT DEEP, LIMITED Director who warrants that he is duly authorised hereto. Page 27 THUS DONE AND SIGNED at JOHANNESBURG on this 12th of June 2002 and in the presence of the undersigned witnesses: AS WITNESSES 1. /s/ B. Morton 2. /s/ D. Van den Bergh /s/ Mark Wellesley-Wood -------------------------------- For and on behalf of WEST WITWATERSRAND GOLD MINES LIMITED Director who warrants that he is duly authorised hereto. THUS DONE AND SIGNED at JOHANNESBURG on this 12th of June 2002 and in the presence of the undersigned witnesses: AS WITNESSES 1. /s/ B. Morton 2. /s/ Frik Blaauw /s/ P. Wesselink -------------------------------- For and on behalf of BOPHELO TRADING (PROPRIETARY) LIMITED Director who warrants that he is duly authorised hereto. [AGREEMENT LAST SIGNED ON 12 JUNE 2002] Page 28 ANNEX 1 (DIAGRAM) ANNEX 2 (DIAGRAM) ANNEX 2A (DIAGRAM) Page 29 ANNEXE 3 PAYROLL SYSTEM PRINTED ON 2002/05/27 55 WEST WITS GOLD MINE (PTY) LTD 55 FOR PERIOD ENDING 2002/05/31 PAGE 1 ANNEX 3
BASIC LEAVE START NAME ID NUMBER SALARY ENT DTE EMP NO Mitchell Jacobus Hercules 7106135020067 7848.00 24.000 95/05/02 00000034 Lettao Henry Frank Ferreira 5703055099003 16842.00 53.5000 82/10/26 00000095 Meyer Frans Johannes 6506085076081 7113.00 28.9900 00000104 Janse Van Vuuren Pieter Carel 440302031008 10934.00 39.1300 85/01/15 00000105 Matanane Molahleyi 7006275336089 5725.00 26.0000 90/10/01 00000112 Coetzee Dirk Gustavus 6909125045084 7643.00 25.0000 98/10/01 00000266 Steinman Johannes Christiaan 4702215042083 10700.00 32.4100 90/02/19 00000476 Dykman Kennith Vivian J 5912095209004 7838.00 40.0700 98/03/01 00000500 Havenga Hendrik Frederick 580131518081 10800.00 86.8300 91/06/24 00000535 Jordaan Johannes Jacobus 5902115051080 12750.00 29.2000 92/02/01 00000576 Lee Marthinus Christoffel 5001065407006 7838.00 39.0000 92/10/01 00000626 Danielsen Kieth Dallas 4609025156005 11858.00 29.0500 96/01/29 00000681 De Bruyn Pieter Albert 7108225020084 6806.00 23.0300 90/03/09 00001010 Sudja Guidione 6804145938188 1113.00 40.2500 91/01/15 00003043 Simango Johan Thousand 1113.00 16.2500 95/10/11 00003211 Khoza Lawrence 6708175453085 2506.00 25.7500 93/01/05 00003281 Nuvunga Elias Frenque 2506.00 46.2500 93/01/29 00003297
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BASIC LEAVE START NAME ID NUMBER SALARY ENT DTE EMP NO Sechele Mathews 7010045427087 1184.00 27.0300 93/02/05 00003335 Shogole Lupwick Majimetja 5712255973088 2414.00 31.4100 93/03/04 00003338 Ugueio Sabado Luis 1113.00 32.2500 00/09/21 00003344 Qothelo Mzingisi Nicholass 6703165874085 1113.00 22.0700 93/06/03 00003358 Simango Januario Vasco 2506.00 18.2500 94/06/06 00003417 Ndou Lufuno Wilson 6011285321080 1184.00 36.8500 94/01/31 00003460 Mabe Jappie Tshokolo 6703085691080 2506.00 10.9300 94/03/15 00003462 Molise Abednigo Mokoto 6804036182086 1185.00 36.8500 94/02/02 00003463 Nhamusse Joao Raimundo 1113.00 13.2500 84/03/24 00003491 Sithole Samuel Eric 7208235773183 2506.00 62.2500 98/09/29 00003495 Mokobane Isaac Tuki 4601105236088 1113.00 23.0900 94/05/13 00003511 Chivile Antonio Luiza 6208155179180 1113.00 24.1700 94/06/09 00003580 Mathebula Simon 6904015379081 1113.00 14.1700 94/06/10 00003584 Seeri Tatolo Saul 6609015577085 1113.00 28.2500 94/06/28 00003596 Sithole Jerry Phillip 7506235927162 1113.00 22.2500 94/09/06 00003621 Chaya Moises Watche 6707015220183 1113.00 14.5000 94/09/19 00003637 Nyaunda Nelson 6906255766182 2506.00 53.2500 94/10/04 00003650 Sitoe Salvador Sebastiao 6202165151180 1113.00 14.5000 94/11/17 00003698 Simango Zacaria Matheus 6804265344183 1232.00 8.0000 94/11/23 00003723 Gwenzi Paul 7203106625162 1113.00 22.2500 94/12/12 00003785 Mapsanghe Augusto Silvestre 2506.00 27.2500 94/12/19 00003790 Menyuku Malesela Johannes 5811115766086 1184.00 2.2500 98/10/15 00003928 Legoabe Shadrack 7301036270085 1184.00 29.2500 98/11/30 00003960 Ubisse Daniel Isaias 4902105686086 1184.00 34.2500 98/11/30 00003961 Ngxawo Zwelijikile 6002205998081 1113.00 4.2500 99/11/26 00003968
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BASIC LEAVE START NAME ID NUMBER SALARY ENT DTE EMP NO Ntloko Phumlani 7201145915085 1113.00 36.2500 99/01/28 00003996 Nyhata George Gladson 4906055692184 1184.00 42.2500 99/02/10 00004005 Chichava Jose Castigo 6602155340182 1113.00 17.2500 99/01/07 00004014 Shila Edward Ngwashena 7401106506184 1113.00 18.2500 99/12/02 00004064 Fiosso Armando 1184.00 70.2500 99/06/29 00004088 Mosheya Simon 6507295337081 1184.00 26.2500 99/03/02 00004119 Tshebi Launcelot 5812075942089 1184.00 12.2500 99/05/10 00004201 Mapsanganhe Santos Armando 6702255431186 1113.00 32.2500 99/11/26 00004210 Mucuacua Andre 1231.00 8.2500 99/07/06 00004299 Chivavele Elias Lassi 5608155212181 1113.00 28.2500 00/01/06 00004308 Lukhelo Joseph Louis 5705195836084 2613.00 44.7700 81/01/09 00005010 Sathekge Johannes 6112015413088 2511.00 36.2500 83/11/07 00005028 Nhambe Amosse 4601255523186 1456.00 34.7600 84/01/04 00005204 Sikhiti Magubane 4606066006081 1113.00 8.0400 88/08/08 00005817 Malepe James 6409105783085 1113.00 22.300 82/07/15 00005860 Sibanda Mica Manaisse 4901155681187 1113.00 19.7500 00/08/29 00005872 Simango Matiguitie Johane 1113.00 8.2500 83/10/11 00005891 Sithole Jonas Samuel 5002025984189 1113.00 18.5400 87/09/18 00005897 Sithole Simon Joane 4802225155188 1113.00 24.2500 98/11/12 00005928 Phote Mntongaka 5807125933088 1113.00 44.0600 90/03/23 00005939 Phaswana Alpheus 5509185740086 1521.00 6.2500 88/01/26 00005987 Nobatana Edward Vuyani 5806266041081 1113.00 42.2500 92/03/05 00006045 Ginela Armindo 1113.00 2.2500 89/05/18 00006540 Mmola Phillemon 6602125489085 7306.00 26.0000 87/12/31 00006660 Mokgatle Petrus 6308156010085 1112.00 38.4800 89/02/02 00006667 Manava Adam Manuel 6206205147181 2486.00 4.7600 86/01/02 00006838 Mahl Rampube Samuelakwana 6704225366088 1113.00 4.2600 87/01/16 00008128
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BASIC LEAVE START NAME ID NUMBER SALARY ENT DTE EMP NO Mahulana Eliatasse Mazazene 3705015114185 1584.00 32.2600 87/10/17 00009009 Maningue Manuel 1113.00 14.2500 90/11/09 00009111 Mkuzo Mbuyiselo 6506156031080 1113.00 20.7600 88/01/15 00009189 Mudende Langton 6404035140183 1113.00 23.7600 88/01/15 00009191 Masemola Oupa Isaac 6206165715084 1113.00 40.0000 00/09/27 00009251 Rasikkhinya Amos 6301065883080 1184.00 34.5400 92/04/22 00009256 Muleya Elia 6206156023084 1113.00 61.0300 89/11/17 00009296 Zunguze Alexandre Paulo 1113.00 40.2500 85/10/14 00009566 Nogola Zithobile 6306106205085 2506.00 17.0300 08/11/29 00009663 Chivambo Manuel Antonio 1113.00 8.2500 89/11/30 00009794 Maebane Ngwato Pinaas 6401165641089 1113.00 21.4900 91/10/30 00009823 Simango Joaquim Mabuco 1113.00 21.2500 89/01/17 00009854 Noalowa Virginia 5708100785081 1113.00 11.0600 89/03/20 00009954 Wagner Carel Willem Pieter 7208275146084 7573.00 2.5000 02/05/01 00019576 Jansen Van Nieuwenhuizen Gysbe 5807255149083 7573.00 2.5000 02/05/01 00019577 Lange Andre Wilhelem 5910135065089 7573.00 2.5000 02/05/01 00019579 Van Wyk Johannes Marthinus 7008195009085 6955.00 1.2500 02/05/01 00019579 Da Silva Francisco George 5110185076082 6955.00 2.5000 02/05/01 00019581 Erasmus Daniel Johannes 4212015116087 7037.00 2.5000 02/05/01 00019582 Herbst Petrus Albertus 5902045029081 7573.00 2.5000 02/05/01 00019584 Malungane Alexandre Mazinane 1113.00 6.2500 85/05/13 00061060 Erasmus Daan 42120151116004 .00 25.6200 98/07/01 00000085 Thwala Willy Lomimiza 5611095585088 5603.86 3.5000 87/11/85 00000232
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BASIC LEAVE START NAME ID NUMBER SALARY ENT DTE EMP NO Wagner Carel Willem Pieter 7208275146084 .00 14.2500 96/08/12 00000C10 Van Wyk Johannes Marthinus 7008195009085 .00 .0000 98/12/19 00000C24 Da Silva Francisco George 5110185076082 .00 16.2500 99/07/29 00000C46 Scheepers Leon 5406195666080 7300.00 4.7500 02/04/11 00000C76 Jansen Van Vuuren Michael 7409075269080 7077.00 .0000 01/07/01 0000C107 Jansen Van Nieuwenhuizen Gysbe 5807255149000 .00 5.7500 01/07/01 0000C108 Wagner James Cornelius 3611075029083 7077.00 10.7500 01/07/01 0000C109 Labuschagne Petrus Josefus Mat 5406275131088 7077.00 2.7500 01/07/01 000C112 Mongalo Omphentse 5710015920084 1040.00 13.7500 01/07/01 0000C113 Matsinhe Luis Rafael 5202227806184 1040.00 13.7500 01/07/01 0000C114 Herbst Petrus Albertus 5902045029081 .00 10.5000 01/08/02 0000C118 Lange Andre Wilhelm 5910135065089 .00 4.0000 01/09/24 0000C144 Moloko Lesiba Sydney 6012305746082 6500.00 6.2500 02/01/07 0000C161 Motingoe Bethuel Ramokebe 6402075451080 6500.00 5.0000 02/01/28 0000C173 Muxchunga Jacob Arone MP095185 1040.00 5.0000 02/02/01 0000C192 Sadiki Robert 50031857640809 1040.00 5.0000 02/02/01 0000C193 Gumede Richard Baba 6211135637087 1040.00 5.0000 02/02/01 0000C194 Muianga Figuerido AA077012 1040.00 5.0000 02/02/01 0000C195 Cossa Domingo 5610295209184 1040.00 5.0000 02/02/01 0000C196 Munjovo Amosse Watch AA267519 1040.00 5.0000 02/02/01 0000C197 Simango Filipe Manhiea AA282304 1040.00 5.0000 02/02/01 0000C198 Machava Themba Solomoni 6310215110187 1040.00 5.0000 02/02/01 0000C199
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BASIC LEAVE START NAME ID NUMBER SALARY ENT DTE EMP NO Zukelwa Mzwandile Wellington 6205295672082 1040.00 5.0000 02/02/01 0000C200 Mbawala John Chiwota 5206225761087 1040.00 5.0000 02/02/01 0000C201 Simango Johannes Filimon 7201156632181 1040.00 5.0000 02/02/01 0000C202 Sitoe Antonio Fabian AA271746 1040.00 5.0000 02/02/01 0000C203 Selebalo Abel Buti 5906066152086 1040.00 5.0000 02/02/01 0000C204 Botha Gerrit 6410235092082 6500.00 2.5000 02/03/25 0000C221 Mokanda Zacaria Pencil 6808165092180 1040.00 2.5000 02/04/01 0000C225 Muhlanga Jossia Jonas 6912095446183 1040.00 2.5000 02/04/01 0000C226 Zitha Salvadore 5010106018181 1040.00 2.5000 02/04/01 0000C227 Lemani Sanyai 5002155696082 1040.00 2.5000 02/04/01 0000C228 Shongwe Pipi Amos 5801075452082 1040.00 2.5000 02/04/01 0000C229 Conradie Jacoba Elizabeth 5911130115085 10065.00 5.0000 01/05/21 25 Grundeling Deon 5111025120080 .00 .0000 00/11/28 37
Page 35 ANNEX 4 (DIAGRAM) ANNEXE 5 SCHEDULE OF COMPONENTS OF WEST WITS PLANT 1. Sand Plant - with feeder crusher, screens, silos, spirals, electrics and accessories 2. Spiral plant - cyclones, spiral banks, agitator, pumps, compressors, milling plant, thickeners and lime plant, electrics and accessories. 3. Carbon in leach plant - tank banks with agitators, screens, carbon tanks (holding and settling), furnace, acid tanks, carbon column, reagents, electrics and accessories. 4. Administration stores, offices, workshops, electric sub-stations and accessories. 5. Generally, without limiting the provisions of 1,2,3 and 4 above, everything constructed to process gold bearing rocks so as to extract gold and its by products, sited on the West Wits Freehold and the adjacent Surface Right Permits. This broadly includes the concentrator plant, the carbon in leach plant, the smelt plant, the workshops and the offices, their contents and support systems. Further included are the associated equipment yards, and inventory stores containing components, scrap or otherwise; The vehicles owned by WEST WITS used for transport and supervision purposes on the West Wits Plant Enterprise; The slurry feed pipelines, water lines and slime disposal lines, power supply lines to and from the West Wits Plant.