EXHIBIT 4.45
LOAN AGREEMENT
between
INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTH AFRICA LIMITED
Registration Number 1940/014201/06
("the lender")
and
BLYVOORUITZICHT GOLD MINING COMPANY LIMITED
Registration Number 1905/009743/06
("the borrower")
Page 2
1. DEFINITIONS
In this agreement unless the context clearly indicates a contrary intention
the following expressions shall bear the meanings assigned to them below
and cognate expressions shall bear corresponding meanings-
1.1 "agreement" means this agreement;
1.2 "alternative rate" means a rate equal to the higher of 2%
(two percent) above the prime overdraft
rate or 3% (three percent) above the
fixed rate;
1.3 "fixed rate" means a rate of 15% (fifteen percent) per
annum;
1.4 "loan" the loan referred to in clause 2;
1.5 "parties" the lender and the borrower;
1.6 "prime overdraft rate" the prime overdraft rate of First
National Bank of Southern Africa Limited
from time to time (proof of which in
terms of a certificate issued by the
Manager of their Corporate Bank shall be
prima facie proof thereof);
1.7 "the investigation" the investigation of the business of the
borrower conducted by the lender pursuant
to the borrower's application for finance
in terms hereof.
1.8 "terminal drawing date" 31 August 2003;
1.9 "variable rate' a rate per annum equal to 1% (one
percent) below the prime overdraft rate.
Page 3
2. THE LOAN
The lender agrees to lend to the borrower who agrees to borrow from the
lender an amount of R65 000 000,00 (sixty five million rand on the terms
and conditions herein contained.
3. ADVANCES
3.1 The loan shall subject to the provision of clauses 7, 8 and 11 be
advanced by the lender to the borrower upon written request and
submission of supporting documentation acceptable to the lender of the
capital development expenditure to be incurred by the borrower to
complete the Blyvoor Expansion Project.
3.2 All advances to the borrower shall be made in such manner as the
borrower may direct in writing.
4. TERMINAL DRAWING DATE
4.1 The lender shall not be obliged to advance any portion of the loan
remaining undrawn at the close of business on the terminal drawing
date which will include any final extended date in terms of clause
4.2.
4.2 Should the lender agree to hold any undrawn portion of the loan
available after the terminal drawing date, a holding fee of 1% (one
percent) per annum will be due on such undrawn portion, payable in
advance and calculated from the terminal drawing date until the
extended date agreed to by the lender for the final drawing.
5. REPAYMENT
5.1 The loan shall be repaid in 47 equal monthly instalments of
R1 354 200,00 (one million three hundred and fifty four thousand two
hundred rand) each and a final instalment of R1 352 600,00 (one
million three hundred and fifty two thousand six hundred rand, the
first of which shall be paid on 1 September 2003 and the remainder
thereafter on the first day of each and every succeeding month until
the loan has been repaid in full.
Page 4
5.2 All repayments to the lender shall be made into the lender's bank
account number 179 00 00 028, Absa Bank, Protea Park Branch, branch
code 535105, or shall be made in such manner as the lender may direct
in writing.
5.3 The borrower hereby acknowledges and agrees that for as long as any
amount payable by the borrower to the lender is in arrear, the lender
shall have the right to appropriate and allocate any monies received
from the borrower to any indebtedness or obligation of the borrower to
the lender as the lender may deem fit in its sole and absolute
discretion, and the borrower hereby waives the right to name the debt
to which any such monies may or shall in such event be allocated or
appropriated.
6. RATE OF INTEREST
6.1 For the purposes of calculating interest in terms of this agreement a
month shall be the period from the first day of a month to the last
day of the month, both days inclusive.
6.2 The loan shall bear interest at the variable rate from the date of the
first advance under the loan.
6.3 Interest shall be calculated on the balance of capital outstanding
from day to day and is payable monthly in arrear on the last day of
every successive month.
6.4 The first payment of interest shall, subject to clause 10.1, be due
and payable on the last day of the month during which the first
drawing under the loan is made.
6.5 Interest or any sundry charges in terms of this agreement not paid by
the due date shall bear interest as from the due date of payment
thereof, which shall be compounded monthly, at the alternative rate.
7. CONDITIONS PRECEDENT
It shall be a condition precedent to any advance whatsoever under this
agreement that-
Page 5
7.1 as security for the obligations of the borrower under this agreement
there shall have been registered by the lender's conveyancers, in such
form and subject to such terms and conditions as the lender may
reasonably require a special notarial bond by the borrower over the
Blyvoor metallurgical plant, including gold lock-up, in favour of the
lender, plus additional cost;
7.2 the borrower shall forward to the lender, a written undertaking,
acceptable to the lender, from Durban Roodepoort Deep Limited,
undertaking to comply with the King Commission II recommendations on
corporate governance in respect of not having a joint executive
chairman and managing director.
8. WARRANTIES
The borrower warrants that-
8.1 it has not created any debentures, mortgages except for surety
mortgage bond B 69754/99 and collateral notarial bond BN 36024199
registered in favour of the Chase Manhattan Bank, charges or liens nor
incurred any liabilities, whether contingent or otherwise, which are
material for disclosure to any intending lender other than those
disclosed to the lender during the lender's investigation;
8.2 no circumstances, including litigation of a material character, have
intervened since the investigation which would have adversely
influenced the lender's decision as a lender in regard to the loan had
the application therefor been considered at the date of signing of
this agreement or at the date of any advance thereafter.
9. UNDERTAKINGS BY THE BORROWER
The borrower undertakes that as long as any amount is owing under the loan
it shall-
9.1 not without the prior written consent of the lender dispose of the
assets encumbered under the notarial bond in terms of clause 7.1 or
further mortgage, pledge or hypothecate, or in any other way further
encumber the said assets;
Page 6
9.2 allow the duly authorised representatives of the lender (and/or of any
international development funding institution providing funds to the
lender for purposes of funding the loan) at all reasonable times to
inspect its premises, works and equipment and its books, documents and
records and to make extracts from or copies of the latter on the
understanding that information obtained from the borrower will remain
confidential and restricted to the lender and their respective
personnel;
9.3 at all times insure with an insurer acceptable to the lender and keep
insured to the satisfaction of the lender all its present and future
insurable assets for such amounts and against such risks as the lender
may from time to time require. Should the borrower fail to effect any
of the insurances required in terms of this agreement or to pay the
premiums thereon when due, such failure shall constitute a breach of
this agreement and the lender shall have the right to effect such
insurances and to pay such premiums to the insurer concerned and to
recover the amount so disbursed from the borrower together with
interest at the alternative rate;
9.4 furnish to the lender its audited annual financial statements, as soon
as such documents are available, but within six months after the end
of the financial year concerned;
9.5 not at any time during a period of two years after the date of
commencement of the investigation employ or appoint in any capacity on
its staff or its board of directors any employee of the lender who was
involved in the investigation of the borrower's application for the
loan or issue shares to any such employee;
9.6 at all times maintain the plant, buildings and machinery owned or used
by it in good order and repair to the satisfaction of the lender;
9.7 not materially change the nature of its business which would have the
effect of the borrower no longer being involved in mining operations.
10. RAISING AND COMMITMENT FEES
The borrower shall pay to the lender the following fees-
Page 7
10.1 a raising fee of 1% (one percent) on the amount of the loan by not
later than 14 (fourteen) days from the date of the borrower's
signature hereof, failing which the said fee shall be considered as
sundry fees outstanding which will accrue interest at the alternative
rate; plus
10.2 a commitment fee of 0,5% (nought comma five percent) per annum on the
amount of each drawing calculated from the earlier of the date of
signature hereof or 24 May 2002 to date of such drawings, both dates
inclusive, and to be deductible from such drawings.
11. BREACH
11.1 Should the borrower fail for any reason whatsoever to make any payment
of interest or any instalment of capital on due date or should the
borrower commit any breach or fail to observe any of the provisions of
this agreement, then-
11.1.1 without prejudice to the lender's rights under clause 11.2, the
rate of interest applicable to the loan shall be increased to the
alternative rate for the duration of such breach or failure; and
11.1.2 the full amount owing under the loan shall, failing rectification
of such breach or failure within 14 (fourteen) days of having
been given notice in writing by the lender of such breach or
failure, forthwith and without any further notice become payable
by the borrower and the lender shall be entitled to withhold any
amount not yet advanced to the borrower.
11.2 Without prejudice to any right the lender may have under this
agreement to demand repayment at any time, any amount owing under this
agreement shall immediately and without notice become payable upon the
happening of any of the following events which shall be deemed to be a
breach of this agreement by the borrower namely, if-
11.2.1 the borrower is placed in liquidation or under judicial
management, whether provisional or final, or a special resolution
is passed for the winding-up of the borrower; or
Page 8
11.2.2 a judgment is entered against the borrower and the borrower fails
within 14 (fourteen) days after becoming aware of such judgment
either to satisfy the same or to apply for it to be set aside or
to appeal against it and in the event of such application or
appeal being unsuccessful, failing to make immediate payment; or
11.2.3 the borrower fails to utilise the loan or any portion thereof for
the purpose for which it had been advanced; or
11.2.4 without the prior written consent of the lender, the borrower
ceases to conduct its business; or
11.2.5 a breach of any of the provisions of any agreement, in terms
whereof the lender or any of its subsidiaries agreed to make a
loan, suspensive sale or lease facility available to the borrower
is committed and such breach is not remedied within the period
allowed in any such agreement.
12. LIQUID DOCUMENT
12.1 The amount of the borrower's indebtedness to the lender in terms of
this agreement at any time shall be determined and proved by a
certificate signed by any one of the lender's authorised signatories
whose appointment, qualification and authority need not be proved.
12.2 A certificate in terms of clause 12.1 shall be-
12.2.1 binding on the borrower as prima facie proof of the amount of the
borrower's indebtedness hereunder;
12.2.2 valid as a liquid document against the borrower in any competent
court for the purpose of obtaining provisional sentence against
the borrower thereon.
Page 9
13. GENERAL CONDITIONS
13.1 No alteration, variation or consensual cancellation of this agreement
shall be of any effect unless it is recorded in writing and signed by
all the parties to this agreement or their respective successors in
title.
13.2 No relaxation which the lender may allow the borrower at any time in
regard to the carrying out of this agreement, shall-
13.2.1 prejudice any of the lender's rights under this agreement in any
manner whatever;
13.2.2 be regarded as a waiver of any of those rights.
13.3 The clause headings are inserted for convenience only and shall in no
way affect the construction hereof.
14. BANK CHARGES
14.1 All advances to be made by the lender in terms of this agreement shall
have deducted therefrom the relevant bank charges which shall be for
the account of the borrower.
14.2 All payments to be made by the borrower in terms of this agreement
shall be made free of bank charges in Sandton.
15. DOMICILIUM
15.1 For the purpose of this agreement the borrower chooses domicilium
citandi et executandi of DRD Building, 00 Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxx.
15.2 All notices which are to be given by the lender in terms of this
agreement shall be presumed, until the contrary is proved, to have
been received :
Page 10
15.2.1 if posted by registered post to P O Xxx 000, Xxxxxxxxxx, 0000, 7
(seven) days after the date of posting;
15.2.2 if delivered by hand, on the date of delivery to the address in
clause 15.1;
15.2.3 if transmitted by facsimile to (011) 482 1022, the first business
day after the transmission.
15.3 The borrower may by notice in writing from time to time alter its
addresses and facsimile details set out in this clause 15.
16. COSTS
The borrower shall pay -
16.1 the costs of and incidental to the preparation of this agreement;
16.2 the cost of and incidental to the registration and stamping of the
bond referred to in clause 7.1;
16.3 the amount of all charges and expenses of whatever nature, including,
but without derogating from the generality of the aforegoing, attorney
and client legal costs and collection commission incurred by the
lender in securing or endeavouring to secure fulfilment, of any
obligations in terms of this agreement;
16.4 the Value Added Tax which the lender is obliged to pay to the
Commissioner of Inland Revenue on any fees which the lender charges
the borrower in terms of this agreement.
SIGNED at Johannesburg on 7 June 2002.
Page 11
For: /s/ Xxxx Wellesley-Wood
BLYVOORUITZICHT GOLD MINING COMPANY
LIMITED
DIRECTOR who warrants that he is duly
authorised thereto
AS WITNESSES:
1. /s/ M. Eliot
2. /s/ X. Xxxxxx
SIGNED at Sandton on 18 July 2002.
For: /s/ X. Xxxxx
Signature illegible
INDUSTRIAL DEVELOPMENT CORPORATION
OF SOUTH AFRICA LIMITED
AS WITNESSES:
1. /s/ M. Khoza
2. /s/ S. Rain
[LAST SIGNED ON 18 JULY 2002]
