EXHIBIT 4.74
THIS NOVATION AGREEMENT is made as of this 24th day of June, 2004 AMONG;
(A) J Xxxx & Company (the "REMAINING PARTY");
(B) Eskom Holdings Limited (formerly Eskom) (the "OLD PARTY"); and
(C) Investec Bank Limited (the "NEW PARTY").
(1) The Old Party and the Remaining Party have entered into one or more
transactions (each, an "OLD TRANSACTION") as identified in the attached
Annex 1 (hereafter, "OLD TRANSACTIONS" shall refer to any one or more such
Old Transactions as the context requires), pursuant to and governed by an
ISDA Master Agreement dated as of 18 November 1999 (the "OLD AGREEMENT").
(2) The Remaining Party and the New Party have entered into an ISDA Master
Agreement (the "NEW AGREEMENT") dated as of 16 January 1997.
(3) With effect from and including 28 June 2004 (the "NOVATION DATE") the Old
Party wishes to transfer by novation to the New Party, and the New Party
wishes to accept the transfer by novation of, all of the rights,
liabilities, duties and obligations of the Old Party under and in respect
of each Old Transaction, with the effect that the Remaining Party and the
New Party enter into a new transaction (each, a "NEW TRANSACTION") under
the New Agreement, as evidenced by a new confirmation as shown in the
attached Annex 2 ( the "NEW CONFIRMATION") each New Transaction having
terms identical to an Old Transaction ( but so as not to duplicate
trades), as more particularly described below (hereafter, "NEW
TRANSACTIONS" shall refer to any one or more such New Transactions
replacing such corresponding Old Transactions as the context requires).
(4) The Remaining Party wishes to accept the New Party as its sole
counterparty with respect to the New Transactions.
(5) The Old Party and the Remaining Party wish to have released and
discharged, as a result and to the extent of the transfer described above,
their respective obligations under and in respect of the Old Transactions.
Accordingly, the parties agree as follows:
1. DEFINITIONS.
Terms defined in the New Agreement are used herein as so defined, unless
otherwise provided herein.
2. TRANSFER, RELEASE, DISCHARGE AND UNDERTAKINGS.
With effect from and including the Novation Date and in consideration of
the mutual representations, warranties and covenants contained in this
Novation Agreement and other good and valuable consideration (the receipt
and sufficiency of which are hereby acknowledged by each of the parties):
(a) the Remaining Party and the Old Party are each released and
discharged from further obligations to each other with respect to
each Old Transaction and their respective rights against each other
thereunder are cancelled, provided that such release and discharge
shall not affect any rights, liabilities, or obligations of the
Remaining Party or the Old Party with respect to payments or other
obligations due and payable or due to be performed on or prior to
the Novation Date, and all such payments and obligations described
in this subparagraph (a) shall be paid or performed as between the
Remaining Party and the Old Party.
(b) in respect of each New Transaction, the Remaining Party and the New
Party each undertake liabilities and obligations towards the other
and acquire rights against each other (save for any rights,
liabilities or obligations of the Remaining Party or the New Party
with respect to payments or other obligations due and payable or due
to be performed on or prior to the Novation Date identical in their
terms to each corresponding Old Transaction (and, for the avoidance
of doubt, as if the New Party were the Old Party and with the
Remaining Party remaining the Remaining Party);
(c) any payments due and payable or obligations due to be performed on
or prior to the Novation Date but stated in the New Confirmation to
have accrued with respect to a calculation period (however defined)
ending after the Novation Date shall be paid or performed between
the Remaining Party and the New Party, subparagraphs (a) and (b)
above notwithstanding; and
(d) each New Transaction shall be governed by and form part of the New
Agreement and the New Party and the Remaining Party shall enter into
the New Confirmation specifying the terms of the New Transactions;
provided, however, that any failure of either the New Party or the
Remaining Party to fulfill the terms of the preceding clause shall
not affect the rights and obligations of the Old Party pursuant to
this Novation Agreement, and the office of the New Party for
purposes of each new Transaction shall be as specified in the Annex.
3. REPRESENTATIONS AND WARRANTIES.
(a) Each of the parties makes those representations and warranties set
forth in Sections 3(a)(ii) through (v) of the New Agreement with
such changes as shall be required in order for such representations
to apply with respect to this Novation Agreement alone.
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(b) The Remaining Party and the Old Party shall each make to the other,
and the Remaining Party and the New Party shall each make to the
other, the representation set forth in Scotian 3(b) of the New
Agreement, in each case with respect to the Old Agreement or the New
Agreement, as the case may be, and taking into account the parties
entering into and performing their obligations under this Novation
Agreement.
(c) Each of the Old Party and the Remaining Party represents and
warrants that:
(i) it has made no prior transfer (whether by way of security or
otherwise) of the Old Agreement or any interest or obligation
in or under the Old Agreement or in respect of any Old
Transaction; and
(ii) as of the Novation Date, all obligations of the Old Party and
the Remaining Party under each Old Transaction required to be
performed on or before the Novation Date have been fulfilled.
(d) The Old Party makes no representation or warranty or assumes any
responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the New Transactions or
the New Agreement or any documents relating thereto and assumes no
responsibility for the condition, financial or other, of the
Remaining Party or any other person or for the performance and
observance by the Remaining Party of any of its obligations under
the New Transactions or the New Agreement or any document relating
thereto and any and all such conditions and warranties, whether
express or implied by law or otherwise, are hereby excluded.
4. COUNTERPARTS.
This Novation Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
5. COSTS AND EXPENSES.
The parties will each pay their own costs and expenses (including legal
fees) incurred in connection with this Novation Agreement and as a result
of the negotiation, preparation and execution of this Navation Agreement.
6. AMENDMENTS.
No amendment, modification or waiver in respect of this Novation Agreement
will be effective unless in writing (including a writing evidenced by a
facsimile transmission) and executed by each of the parties or confirmed
by an exchange of telexes or electronic messages on an electronic
messaging system.
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7. (a) GOVERNING LAW.
This Novation Agreement will be governed by and construed in
accordance with the laws of England.
(b) JURISDICTION.
The terms of Section 13(b) of the New Agreement shall apply to this
Novation Agreement with such changes as shall be required in order
for such terms to apply with respect to this Novation Agreement
alone.
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IN WITNESS WHEREOF the parties have executed this Novation Agreement on the
respective dates specified below with effect from the date specified on the
first page of this Novation Agreement.
ESKOM HOLDINGS LIMITED INVESTEC BANK LIMITED
(FORMERLY ESKOM)
By: ___________________________ By: ________________________
Name: Name:
Title: Title:
Date: Date:
J XXXX & COMPANY
By: ___________________________
Name:
Title:
Date:
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ANNEX 1
OLD TRANSACTIONS
ZAR GOLD SWAPS
Fixed Price Payer: J Xxxx & Company ("Xxxx")
Floating Price Payer: Eskom Holdings Limited ("Eskom")
Commodity: Gold (minimum 0.995 fine, London good
delivery form)
Calculation Periods: 6 consecutive monthly periods from and
including the Effective Date to and
including the Termination Date as specified
in Table 1 below.
Effective Date: 1 July 2004
Termination Date: 31 December 2004
Payment Dates: With respect to each Calculation Period, the
15th day of the immediately following
Calculation Period (See Table 1 below).
Quantity per Calculation Period: 15,000 fine xxxx ounces
Fixed Price Levels: (A) ZAR 2,192.00 per fine xxxx ounce for
each Calculation Period from and including
the July 2004 to and including the September
2004 Calculation Period
(B) ZAR 2,256.00 per fine xxxx ounce for
each Calculation Period from and including
the October 2004 to and including the
December 2004 Calculation Period
Floating Price: With respect to each Calculation Period the
Floating Price shall be equal to the
arithmetic average of the Commodity
Reference Prices for each Business Day in
such Calculation Period.
Commodity Reference Price: The London A.M. Fix converted to ZAR at the
mid price of 'Ccy Snaps at the time of
fixing' published on Reuters page 'GOFO'
Payment Calculation: (a) If for a Calculation Period the Fixed
Price is greater than the Floating Xxxxx,
Xxxx shall pay Eskom an amount equal to the
product of:
(i) the difference between the Fixed
Price and the Floating Price, and
(ii) the Quantity for the applicable
Calculation Period.
(b) If for a Calculation Period the Floating
Price is greater than the Fixed Price, Eskom
shall pay Xxxx an amount equal to the
product of:
(i) the difference between the Floating
Price and the Fixed Price, and
(ii) the quantity for the applicable
Calculation Period.
Settlement: Cash Settlement on the applicable Payment
Date provided, however, that if any of the
foregoing is not a Business Day the
applicable Value Date shall be the
immediately following Business Day.
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TABLE 1.
Calculation
Calculation Period Period Payment
Start Date End Date Date
------------------ ------------ ---------
01-Jul-04 30-Jul-04 16-Aug-04
02-Aug-04 31-Aug-04 15-Sep-04
01-Sep-04 30-Sep-04 15-Oct-04
01-Oct-04 29-Oct-04 00-Xxx-00
00-Xxx-00 00-Xxx-00 00-Xxx-00
01-Dec-04 31-Dec-04 18-Jan-05
OTHER PROVISIONS:
Business Days: For Pricing - London and Johannesburg
For Settlement - New York and Johannesburg
Calculation Agent: Xxxx
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
commercially reasonable result then such
rate shall be determined by agreement
between the parties and failing that, Xxxx
will determine the rate acting in good faith
and in a commercially reasonable manner.
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ANNEX 2
NEW CONFIRMATION
ZAR GOLD SWAPS
Fixed Price Payer: J Xxxx & Company ("Xxxx")
Floating Price Payer: Invested Bank Limited ("Investec")
Commodity: Gold (minimum 0.995 fine, London good
delivery form)
Calculation Periods: 6 consecutive monthly periods from and
including the Effective Date to and
including the Termination Date as specified
in Table 1 below
Effective Date: 1 July 2004
Termination Date: 31 December 2004
Payment Dates: With respect to each Calculation Period, the
15th day of the immediately following
Calculation Period (See Table 1 below).
Quantity per Calculation Period: 15,000 fine xxxx ounces
Fixed Price Levels: (A) ZAR 2,192.00 per fine xxxx ounce for
each Calculation Period from and including
the July 2004 to and including the September
2004 Calculation Period
(B) ZAR 2,256.00 per fine xxxx ounce for
each Calculation Period from and including
the October 2004 to and including the
December 2004 Calculation Period
Floating Price: With respect to each Calculation Period the
Floating Price shall be equal to the
arithmetic average of the Commodity
Reference Prices for each Business Day in
such Calculation Period.
Commodity Reference Price: The London A.M. Fix converted to ZAR at the
mid price of 'Ccy Snaps at the time of
fixing' published on Reuters page 'GOFO'
Payment Calculation: (a) If for a Calculation Period the Fixed
Price is greater than the Floating Xxxxx,
Xxxx shall pay Investec an amount equal to
the product of:
(i) the difference between the Fixed
Price and the Floating Price, and
(ii) the Quantity for the applicable
Calculation Period.
(b) If for a Calculation Period the Floating
Price is greater than the Fixed price,
Investec shall pay Xxxx an amount equal to
the product of:
(iii)the difference between the Floating
Price and the Fixed Price, and
(iv) the Quantity for the applicable
Calculation Period.
Settlement: Cash Settlement on the applicable Payment
Date provided, however, that if any of the
foregoing is not a Business Day the
applicable Value Date shall be the
immediately following Business Day.
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TABLE 1.
Calculation
Calculation Period Period
Start Date End Date Payment Date
------------------ ----------- ------------
01-Jul-04 30-Jul-04 16-Aug-04
02-Aug-04 31-Aug-04 15-Sep-04
01-Sep-04 30-Sep-04 15-Oct-04
01-Oct-04 29-Oct-04 00-Xxx-00
00-Xxx-00 00-Xxx-00 00-Xxx-00
01-Dec-04 31-Dec-04 18-Jan-05
OTHER PROVISIONS:
Business Days: For Pricing - London and Johannesburg For
Settlement - New York and Johannesburg
Calculation Agent: Xxxx
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
commercially reasonable result then such
rate shall be determined by agreement
between the parties and failing that, Xxxx
will determine the rate acting in good faith
and in a commercially reasonable manner.
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