EXHIBIT 10.2
DEED OF ASSIGNMENT
entered into between
LAMA MINERALS CC
Registration Number CK92/17258/23
("Lama")
represented by XXXXXX ALWENE FORD in her capacity as a member of Lama and duly
authorised thereto by a Resolution of the members of Lama passed at Johannesburg
------------
on 3rd August 1995
------------------
and
XXXXX XXXXXX VAN WYK
Identity Number 000000 0000 00 0
("van Wyk")
and
A & P MINING (PROPRIETARY) LIMITED
Registration Number 83/05418/07
a private company in the process of changing its name to GLOBAL DIAMOND
RESOURCES S A (PROPRIETARY) LIMITED
("Global")
represented by Petrus Xxxxxxxx Xx Xxxxx and Xxxxxxx Xxxxxx Xxxxxx
--------------------------------------------------------
in his capacity as a Director of Global and duly authorised thereto by a
Resolution of the Board of Directors of Global passed at Johannesburg
------------
on 3rd August, 1995
PAGE 2
IN TERMS OF WHICH THE PARTIES AGREE AS FOLLOWS:
1. INTRODUCTION
The parties record the following:
1.1 On 4 November 1988 and at Kimberley, van Wyk concluded a written
agreement with Xxxxxx Xxxxx ("the Owner") in terms of which van
Wyk was appointed as the Owner's contractor to prospect and dig
for precious stones in alluvial on the following immovable
property ("the farm"):
Certain remaining extent of the farm no 293
Situate in the division of Barkly West, Province of
the Northern Cape
Measuring 2285,8912 (Two Thousand Two Hundred and
Eighty Five Comma Eight Nine One Two)
hectares
Held by the Owner under Deed of Transfer No
T843/1989
1.2 In terms of an addendum to the abovementioned agreement concluded during
June 1989, the commencement date of van Wyk's contract period was fixed
at 1 February 1989 and, for the sake of convenience, the abovementioned
agreement and this addendum are together hereafter called "the first
agreement".
1.3 In terms of a further agreement concluded between the Owner, van Wyk and
Lama at Kimberley on 9 December 1992 ("the second addendum") the
relevant parties agreed:
1.3.1 to amend certain material terms and conditions of the first
agreement; and
1.3.2 to assign all the rights and obligations of the Owner under
the first agreement to Lama.
1.4 On 11 April 1995 and at Xxxxxxxxx Xxxx concluded a Notarial Mineral
Lease with the Government of the Republic of South Africa in terms of
which the State's rights to precious stones (being diamonds, emeralds,
rubies and sapphires) in the farm were leased to Lama on certain terms
and conditions ("the Precious Stones Lease").
Page 3
1.5 A true copy of the Precious Stones Lease is attached to this agreement
marked DA1.
1.6 Unless the context clearly indicates the contrary intention, words and
phrases to which special meanings were assigned in the first agreement
and the second addendum shall bear the same meanings when used in this
agreement.
1.7 Van Wyk wishes to assign his rights and obligations under the first
agreement and the second addendum to Global and this agreement records
the terms and conditions upon which Lama is prepared to agree such
assignment.
2. Assignment
Subject to the further terms and conditions of this agreement, van Wyk and
Global and Lama hereby agree that all van Wyk's rights and obligations
under the first agreement and the second addendum are hereby assigned and
transferred to Global.
3. Effective date of assignment
Notwithstanding the date of signature of this agreement by the parties, the
assignment of van Wyk's rights and obligations to Global shall for all
purposes be deemed to have been effected on 1 May 1995 ("the effective
date").
4. Warranties in favour of Global
Lama and van Wyk warrant to Global that:
4.1 The first agreement and second addendum are of full force and effect
as at the date of signature of this agreement.
4.2 Van Wyk has fully compiled with all van Wyk's obligations under the
first agreement and the second addendum up to and including 30 April
1995.
4.3 Lama has fully complied with all Lama's obligations under the first
agreement and the second addendum.
Page 4
4.4 Lama is the holder of the Precious Stones Lease.
4.5 Lama is also the holder of a temporary authorisation to mine for
precious stones on the property, a true copy of which is attached
to this agreement marked DA2.
5. FINAL SETTLEMENT BETWEEN LAMA AND VAN WYK
In signing this agreement Lama and van Wyk acknowledge in favour of each
other that all contractual bonds between them shall be terminated in
every respect on the date upon which this agreement is concluded and that
neither Lama nor van Wyk shall hereafter have any claims of whatsoever
nature against each other arising out of the first agreement, the second
addendum or this agreement.
6. THE OPERATIONS
6.1 Lama acknowledges having been advised that Global, pursuant to the
assignment of van Wyk's rights and obligations under the first
agreement and the second addendum, wishes to conduct prospecting
operations only during the remainder of the contract period (which,
if not terminated earlier, shall expire on 31 December 1995) with
the view to enabling Global to assess whether or not to exercise
the option to acquire the Precious Stones Lease as more fully dealt
with in clause 9 below.
6.2 Lama accordingly acknowledges that full-scale digging operations
will not take place during the remainder of the contract period and
Lama hereby waives the required minimum working rate referred to in
clauses 4.2 and 4.3 of the first agreement.
6.3 Global indemnifies Lama against and undertakes to compensate Lama
for all claims of whatsoever nature which might be brought against
Lama by any person as a result of any act or omission on the part
of Global or any of Global's employees, subcontractors,
consultants, representatives or invitees.
6.4 Global warrants that Global shall not under any circumstances do or
omit to do anything which might prejudice Lama's relationship with
the State under the Precious Stones Lease.
Page 5
7. MONTHLY PAYMENTS TO LAMA
With reference to clause 8 of the first agreement, clause 6 of the
second addendum and to the provisions of clause 4 of the Precious Stones
Lease (which require a five percent royalty on the gross proceeds of all
precious stones recovered from the farm to be paid to the State), Lama
and Global agree that the following financial arrangements shall apply
until the contract period terminates.
7.1 Global shall pay to Lama monthly in advance on or before the first
day of each calendar month during the balance of the contract
period a sum of R5 000,00 (Five Thousand Rands), exclusive of
Value Added Tax, per month.
7.2 The payments owing in respect of May and June 1995 shall be
effected immediately after this agreement is concluded.
7.3 The procedures relating to the handling and sale of precious
stones as recorded in clause 7 of the first agreement shall
continue to apply to all precious stones recovered from the
property by Global, subject to the following:
7.3.1 Van Wyk shall continue to remain the authorised
representative of Lama in terms of Section 54(2) of the
Diamonds Act 1986 during the remainder of the contract
period;
7.3.2 Provided that van Wyk shall give Lama and Global at lease 7
(Seven) clear days prior notice of the intended sale of any
parcel of precious stones and that Lama and Global shall be
entitled to nominate representatives to be present at the
sale of any parcel of precious stones, van Wyk shall conduct
all sales of precious stones to the best advantage of Lama
and Global; and
7.3.3 Van Wyk's costs incurred in connection with the sales of
precious stones shall be borne by Global.
7.4 The gross selling price of all precious stones recovered by Global
from the property during the remaining portion of the contract
period shall be dealt with as follows:
7.4.1 an amount equivalent to 5% (Five per centum) of the gross
selling price of the sale of such precious stones shall be
paid to the State in accordance with
Page 6
the provisions of clause 4 of the Precious Stones Lease, one-half
of which amount shall be deducted from the amount to be paid to
Lama in terms of clause 7.4.2 and one-half of which shall be
deducted from the amount to be retained by Global in terms of
clause 7.4.3 below;
7.4.2 to the extent to which the following amount exceeds R5 000,00,
there shall be paid to Lama an amount equivalent to the total of
the following percentages of the gross selling price of all
precious stones recovered from the property by Global during each
calender month of the contract period, namely:
- 10% (Ten per centum), where such gross selling price amounts
to R100 000,00 (One Hundred Thousand Rands) or less,
exclusive of VAT
plus
- 12.5% (Twelve comma Five per centum) of that portion of the
gross selling price which exceeds R100 000,00 (One Hundred
Thousand Rands) but does not exceed R150 000,00 (One Hundred
and Fifty Thousand Rands)
plus
- 15% (Fifteen per centum) of that portion of the gross selling
price which exceeds R150 000,00 (One Hundred and Fifty
Thousand Rands).
7.4.3 After effecting the abovementioned payments, the balance of the
gross selling price of the precious stones sold shall be retained
by Global as remuneration for Global's services as contractor.
7.5 It is the intention of the parties that the monthly amount of R5 000,00
(Five Thousand Rands) to be paid by Global to Lama shall be regarded as
a minimum monthly consideration and that this amount shall be set-off
against the monthly amounts to be paid to the Owner in terms of clause
7.4.2.
Page 7
8. Security Deposit
In order to guarantee that Global shall fully and punctually comply with
all Global's obligations under the first agreement, the second addendum,
this agreement and the Precious Stones Lease, including in particular all
Global's obligations regarding the proper environmental management and
rehabilitation of surface disturbances on the farm, the following
provisions shall apply during the remainder of the contract period and, if
the option referred to in clause 9 is exercised, until mining operations on
the farm by Global or any third party have finally ceased:
8.1 Before any bulk sampling or mining activities on the farm are
commenced, Global shall pay into the trust account of Lama's
attorneys a sum of R50 000,00 (Fifty Thousand Rands), which amount
together with all interest accrued on the capital is hereafter called
"the security deposit" and which amount shall be retained in trust by
Lama's attorneys until Global shall have duly fulfilled all its
abovementioned obligations pursuant to whichever of the following
dates first occurs, namely:
8.1.1 Termination of the contract period without exercise of the option
referred to in clause 9; or
8.1.2 If the option referred to in clause 9 is exercised, the date upon
which Lama again becomes the holder of the Precious Stones Lease
(as may happen under the circumstances contemplated in clause 13)
or the date upon which the Precious Stones Lease is finally
cancelled, as the case may be.
8.2 This agreement shall serve as the mandate of the parties to Lama's
attorneys to deal with the security deposit and interest earned on the
investment thereof as follows:
8.2.1 The capital shall be invested in accordance with Section 78(2A)
of the Attorneys Act No 53 of 1979 with a registered bank or
other financial institution in such interest bearing account as
may be communicated in writing to the attorneys by Global or,
failing such written instruction, in such account and with such
institution as may from time to time be determined by the
attorneys;
Page 8
8.2.2 All interest and on the investment of the capital shall accrue to
Global but shall not be paid out to Global but shall from time to
time be re-invested with the capital until Global has fulfilled
all its obligations in respect of which the capital and interest
are held as security;
8.2.3 In the event of Global failing to perform its obligations, the
capital and interest shall continue to be held in trust until the
damages suffered by Lama and by the surface owner of the farm
have been finally established, after which the money is held in
trust will be set-off against such damages and the balance of the
capital and interest (if any) shall be paid to Global; and
8.2.4 Upon receipt by Lama's attorneys of Lama's written notification
that Global has fulfilled all its obligations in respect of which
the security deposit is held (which notification shall not
unreasonably be withheld by Lama), Lama's attorneys shall pay the
capital and all interest accrued to Global.
8.3 The fact that the security deposit is applied to set-off damages
suffered by Lama or the surface owner of the farm shall under no
circumstances relieve Global from any of Global's contractual or
statutory obligations and, if the security deposit is insufficient to
cover such damages and the costs of recovering same, the full balance of
the costs and damages shall be paid by Global on demand.
9. OPTION ON PRECIOUS STONES LEASE
Subject always to the prior written consent of the Minister of Mineral and
Energy Affairs ("the Minister") to such assignment, Lama and Global hereby
agree that Global shall have the sole and exclusive option during the
remainder of the contract period to require Lama to assign to Global,
against payment of the sum of R1 140 000,00 (One Million One Hundred and
Forty Thousand Rands) exclusive of Value Added Tax, all Lama's rights and
obligations under the Precious Stones Lease, which option shall be
exercised by written notice given by Global to Lama prior to termination of
the contract period.
If such option is timeously exercised by Global, the following provisions
shall apply:
PAGE 9
9.1 The parties shall immediately take all such steps and sign all such
documents as may be required to secure the consent of the Minister to
the assignment of all Lama's rights and obligations under the Precious
Stones Lease to Global.
9.2 All such steps as may be necessary to obtain the Minister's consent to
the cession of the Precious Stones Lease and to procure execution of
the Notarial Deed of Cession of the Precious Stones Lease in favour of
Global if such consent is forthcoming, shall be attended to by Lama's
attorneys and all the reasonable and proper professional charges of
Lama's attorneys shall be borne by Global.
9.3 If the Minister refuses to grant his written consent to the assignment
of the Precious Stones Lease to Global, then the rights and
obligations of the parties under this clause 9 shall lapse in every
respect on the date upon which the fact of such refusal is
communicated to Lama in writing by the Minister or his delegate.
9.4 If this Minister grants his written consent to the assignment of the
Precious Stones Lease to Global, then Lama and Global shall punctually
and strictly comply with the remaining provisions of this clause 9.
9.5 The parties record that assignment of the rights and obligations of
Lama under the Precious Stones Lease shall be by way of a Notarial
Deed of Cession of the Precious Stones Lease and, for the sake of
convenience, the cession, assignment and transfer to Global of Lama's
rights and obligations under the Precious Stones Lease is hereafter
referred to as "cession" of the Precious Stones Lease.
9.6 If required to do so by Global, Lama shall furnish to Global the
nomination referred to in clause 9.3 of the Precious Stones Lease in
order to enable Global to lodge an application for a mining
authorisation in respect of the farm with the Department of Mineral
and Energy Affairs.
9.7 Notwithstanding the provisions of clause 9.6, Global shall under no
circumstances carry out any prospecting, digging or mining operations
on the farm after the date of expiry of the contract period until the
written consent of the Minister to the cession of the Precious Stones
Lease to Global has been lodged with Lama's attorneys and until the
sum or R1 140 000,00 (One Million One Hundred and Forty Thousand
Rands) has been paid by Global into the trust account of Lama's
attorneys in accordance with the provisions of clause 9.8.
Page 10
9.8 In the event of the option being exercised and in the event of the
Minister granting his written consent to the cession of the Precious
Stones Lease to Global, Global shall within 30 (Thirty) days of having
been requested to do so in writing by Lama's attorneys:
9.8.1 deposit the sum of R1 140 000,00 (One Million One Hundred and
Forty Thousand Rands) into the trust account of Lama's
attorneys (being Xxxxxx & Xxxxxxx, Third Floor, Permanent
Building, Xxxxx Street, Xxxxxxxx) to be held under the
provisions of Section 78(2A) of Act 56 of 1979 and to be dealt
with in accordance with the further provisions of this clause
9; and
9.8.2 pay to Lama's attorneys a deposit in respect of all such costs
and charges as may be attendant upon procuring the consent of
the Minister to the cession of the Precious Stones Lease from
Lama to Global and for attending on the cession of the Precious
Stones Lease to and in favour of Global (in the event of the
Minister granting his written consent referred to above).
9.9 For the sake of convenience the sum of R1 140 000,00 (One Million One
Hundred and Forty Thousand Rands) referred to above is hereafter
called "the initial consideration".
9.10 The parties shall when requested to do so take all such steps and sign
all such documents as may be required to execute a Notarial Deed of
cession in order to transfer Lama's rights and obligations under the
Precious Stones Lease to Global so soon as may reasonably be possible
after payment of the initial consideration into the trust account of
Lama's attorneys.
9.11 It is specifically agreed that the relevant provisions of clauses 9,
10, 11, 12, 13, 15 and 16 shall be incorporated in such Notarial Deed
of Cession.
9.12 This agreement shall serve as the mandate of the parties to Xxxxxx &
Xxxxxxx to deal with the initial consideration and interest earned on
the investment thereof as follows:
9.12.1 The capital shall be invested with a registered
Bank or other financial institution in such interest
bearing call account as may be determined by the
mutual written instruction of Lama and Global to
the attorneys or, failing
Page 11
such mutual written instruction, in such account and with such
institution as may be determined by the attorneys.
9.12.2 All interest arising from such investment shall accrue to Lama and
shall be paid to Lama in lieu of any further consideration which might
still be payable by Global to Lama as from the date upon which the
initial consideration is paid in trust to Xxxxxx & Xxxxxxx.
9.12.3 Immediately after execution of the Notarial Deed in terms of which
Lama's rights and obligations under the Precious Stones Lease are
transferred to Global, Xxxxxx & Xxxxxxx shall pay the capital amount
of the initial consideration and all interest earned on the investment
of the initial consideration to Lama.
9.13 All the risk and benefits of the Precious Stones Lease shall pass to
Global on the date upon which the Notarial Deed of Cession of the
Precious Stones Lease is executed.
9.14 Global acknowledges that no representations or warranties of any kind as
to the mineralisation of the property or the precious stones potential
of the property or with regard to any other matter which may in any way
have affected Global's decision to enter into this agreement have been
made or given by or on behalf of Lama.
10. Additional consideration if kimberlite mined
If cession of the Precious Stones Lease in favour of Global is effected,
the following provisions shall apply:
10.1 The parties record that the Precious Stones Lease covers precious stones
found in alluvial as well as precious stones found in kimberlite pipes
and fissures, whereas it is the intention of the parties that Global
shall, in return for payment of the sum of R1 140 000,00 (One Million
One Hundred and Forty Thousand Rands) to Lama, secure only the right to
exploit precious stones in alluvial.
10.2 For the sake of practical convenience, the parties agree that Lama's
rights and obligations under the Precious Stones Lease shall be
transferred in their entirety
Page 12
to Global against payment of initial consideration but that Global
shall under no circumstances mine any kimberlite pipes or fissures on
the farm before paying to Lama the additional consideration referred
to in this clause 10.
10.3 Global accordingly hereby irrevocably undertakes that Global shall
under no circumstances before the date upon which Global effects
payment to Lama of the additional consideration referred to below mine
any kimberlite pipes or fissures on the farm.
10.4 For the purposes of this clause 10, the expression "mine" when used as
a verb shall not include prospecting or the bulk sampling during the
course of prospecting of any kimberlite pipes or fissures on the farm.
10.5 If any dispute arises between Global and Lama as to whether or not
Global is in fact mining any kimberlite pipes or fissures (as opposed
to prospecting or bulk sampling these formations), then such dispute
shall be referred for determination to arbitration under the then
prevailing arbitration laws of South Africa.
10.6 If Global wishes to mine any kimberlite pipes or fissures, Global
shall first pay to Lama a sum of R8 000 000,00 (Eight Million Rands)
exclusive of VAT, which amount shall escalate as from the first
anniversary of the date of execution of the Notarial Deed of Cession
of the Precious Stones Lease in favour of Global by an amount to be
calculated at a percentage equivalent to the percentage increase in
the CPI figure (as defined in clause 10.7) measured from the month
during which the first anniversary of the payment of the initial
consideration to Lama occurred until and including the fourth calendar
month preceding the date upon which the additional consideration is
paid to Lama.
10.7 The expression "the CPI figure" in clause 10.6 shall mean the figure
representing the weighted average (for all items) of the Urban Areas
index for the Principal Urban Areas as reflected in the official
Consumer Price Index published for the relevant month by the
Government's Central Statistical Service, or, in the event of such
official Consumer Price Index being discontinued at any time, the
weighted average of such other similar statistical index published
from time to time by the Government (or other recognised body
processing statistical information) and which may be of assistance in
indicating changes in the purchasing power of South African Currency.
Page 13
10.8 If Global wishes at any time to mine any kimberlite pipes or
fissures on the farm, Global shall give written notice to Lama of
Global's intentions in this regard.
10.9 If Global should proceed to mine any kimberlite pipes or fissures
on the farm without first paying the additional consideration to
Lama, Lama shall acquire the right (subject always to the consent
of the Minister) to require Global immediately to transfer to Lama
all Global's rights and obligations under the Precious Stones
Lease in consideration for the payment by Lama to Global of the
sum of R100,00 (One Hundred Rands).
10.10 The parties shall so soon as may reasonably be possible after
delivery of such notice, meet with the view to determining the
precise amount of the additional consideration to be paid to Lama
and the parties shall, having determined such amount by mutual
agreement, sign a document reflecting their concurrence on the
amount of the additional consideration.
10.11 In the event of any dispute between the parties as to the precise
calculation of the amount of the additional consideration, such
dispute shall be referred for determination to Deloitte & Touche,
Chartered Accountants of Kimberley, whose determination of the
amount of the additional consideration shall be final and binding
on the parties.
10.12 The additional consideration shall be paid to Lama within 14
(Fourteen) days following the date upon which the precise amount
thereof has been determined by mutual agreement or, as the case
may be, the date upon which written determination of the amount of
the additional consideration made by Deloitte & Touche is
communicated to Global.
10.13 In the event of Global wishing to mine kimberlite pipes or
fissures on the farm, Global shall be entitled after having
effected payment of the additional consideration to Lama, to
require Lama to execute a further Notarial Deed between the
parties in terms of which is recorded that Global has effected
payment of the additional consideration and in terms of which Lama
agrees that no further amounts shall be payable by Global to Lama
in respect of transfer of the Precious Stones Lease from Lama to
Global.
Page 14
11. Compensation to Surface Owner
During the remainder of the contract period and, if the option referred to
in clause 9 is exercised, during the period that any party other than Lama
holds the Precious Stones Lease, Global undertakes that there will be
strict compliance with all the terms and conditions of the Precious Stones
Lease and that, in the event of any cultivated lands on the farm being
disturbed during the course of any bulk sampling or mining operations, the
surface owner of the farm shall be compensated for loss of profit through
deprivation of use of the relevant portion of the cultivated lands in
accordance with the following provisions:
11.1 Global will meet with the surface owner with a view to determining by
agreement an amount representing fair compensation for loss of profit
over the period in question taking into account average returns for
various crops during the period concerned (so that neither the crop
with the highest healed nor the crop with the lowest healed is used as
a benchmark); and
11.2 In the event of the parties failing agreement on the amount of
compensation, and in the absence of any agreed method for resolving
their dispute in any other way, the dispute between the surface owner
and Global shall be referred for determination to arbitration under
the then prevailing Arbitration Laws of South Africa.
12. Security
As security for the due and proper performance by Global of its obligations
under clause 10, but subject always to the requisite consent of the
Minister, Global shall pass a mortgage bond in favour of Lama over the
Precious Stones Lease, which mortgage bond shall be framed in such terms as
may be determined by Lama (subject to the condition that no additional
obligations not specifically referred to in this agreement or naturally
flowing from a mortgage of the Precious Stones Lease shall be incorporated
in such mortgage bond).
13. Pre-emptive rights
13.1 With effect from the date upon which Lama's rights and obligations
under the Precious Stones Lease are assigned to Global, Global hereby
grants to Lama an exclusive right of pre-emption in respect of the
Precious Stones Lease, in terms
Page 15
of which Global undertakes that it shall not cede or transfer or
otherwise alienate any of Global's rights or obligations under the
Precious Stones Lease without first offering to cede or assign or
alienate such rights or obligations to Lama strictly in accordance
with the following provisions:
13.1.1 Global shall submit to Lama a written offer setting out the
consideration and conditions upon which Global is prepared to
assign the Precious Stones Lease to Lama (subject always to the
written consent of the Minister to such assignment).
13.1.2 The offer shall reflect the entire consideration as being a sum
of money payable in South African Currency and shall be duly
signed on behalf of Global.
13.1.3 The offer shall remain open for acceptance by Lama for a period
of 60 (Sixty) days following the date upon which such offer is
received by Lama.
13.1.4 If the offer to Lama is made pursuant to receipt by Global of a
similar offer from any bona fide third party which Global
intends accepting if Lama does not exercise its rights of pre-
emption, then the offer shall be accompanied by a true copy of
the written offer made to Global by such bona fide third party.
13.1.5 If Lama wishes to accept Global's offer, Lama shall do so by
signing Global's written offer and returning same to Global at
Global's domicilium citandi et executandi referred to in clause
17.
13.1.6 Any attempt by Lama to amend the terms of the offer or to
qualify the terms of the offer or to accept the offer in part
only shall be deemed to be a rejection of Global's offer.
13.1.7 If Lama does not accept Global's offer within the period of 60
(Sixty) days referred to above, then Global shall be entitled
within a further period of 30 (Thirty) days following expiry of
the period of 60 (Sixty) days referred to above to assign the
Precious Stones Lease to any third party on precisely the same
terms and conditions and at precisely the same consideration as
were reflected in Global's offer to Lama.
PAGE 16
13.1.8 If Global does not conclude a valid written agreement with a
third party for the cession of the Precious Stones Lease before
expiry of the period of 30 (Thirty) days referred to above, or if
such agreement is concluded but subsequently materially amended
or cancelled, then the pre-emptive rights of Lama shall again
revive and Global shall once again be obliged to offer cession of
the Precious Stones Lease to Lama in accordance of the provisions
of this clause 13 before the Precious Stones Lease is assigned to
any third party.
13.2 If Global or any other assignee of the Precious Stones Lease should at
any time give consideration to the termination of the Precious Stones
Lease because it is of the opinion that precious stones in payable
quantities cannot be found on the farm (or for any other reason),
Global undertakes that it shall not under any circumstances proceed to
terminate or abandon the Precious Stones Lease before it has offered
to assign the Precious Stones Lease to Lama in consideration for the
payment by Lama to Global of the sum of R100,00 (One Hundred Rands)
payable in cash on the date of conclusion of the relevant Notarial
Deed of Cession in terms of which the Precious Stones Lease is
assigned to Lama.
13.3 Global warrants that, should the Precious Stones Lease be assigned to
any third party after Lama has declined or failed to exercise the pre-
emptive rights referred to in this clause 13, the assignment of the
Precious Stones Lease shall be rendered subject to the provisions of
this clause 13 and the provisions of clauses 9, 10, 11, 12, 15 and 16
of this agreement.
14. Cession and Assignment by Lama
Lama shall be entitled at any time on written notice to Global to cede
and assign to any third party all Lama's rights and obligations under
this agreement, which cession and assignment shall become effective
against delivery to Global of such written notice which shall
incorporate the name, physical address and postal address of the
assignee.
15. Acknowledgement
Global acknowledges that Global shall be solely liable for the
consequences of the exercise or non-exercise of the rights acquired by
Global under this agreement and for all
Page 17
the activities to be carried out by Global pursuant to this agreement, which
liability shall include, but shall not be limited to:
15.1 contractual, delictual and statutory liability and claims; and
15.2 all liability arising from the observance or non-observance (as the
case may be) of all statutory and non-statutory requirements and
conditions which might govern any activity of Global on the farm.
16. Breach of contract
In the event of Global committing any breach of the provisions of this
agreement and persisting in such breach for more than 14 (Fourteen) days
following delivery of a notice requiring Global properly to perform
Global's obligations, Lama shall be entitled to cancel this agreement and,
in the event of the Notarial Mineral Lease having been transferred to
Global, Lama shall be entitled (subject to obtaining the requisite
Ministerial consent) to have the Precious Stones Lease re-transferred to
Lama and Global shall, pursuant to such cancellation, take all such steps
and sign all such documents as may be required in order to secure
execution and registration of the relevant Notarial Deed of Cession of the
Precious Stones Lease to and in favour of Lama.
17. Domicilia and notices
17.1 The provisions of clause 25 of the first agreement and clause 11 of
the second addendum are hereby cancelled.
17.2 The parties hereby appoint the following addresses as their respective
domicilia citandi et executandi for all purposes arising from the
contract reflected in the first agreement as amended by the second
addendum and, more particularly, by this agreement:
Page 18
17.2.1 Lama: The Offices of Xxxxxx & Xxxxxxx
Third Floor
Permanent Building
Xxxxx Xxxxxx
Xxxxxxxx 0000
Xxx Xxx: 0 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx 0000
Global: 0 Xxxxxxx Xxxxxx
Xxxxxxxxxxxx 0000
17.3 All notices and process of any kind given by a party under this
agreement to any other party shall be deemed to have been received
by the addressee on the date upon which such notice of process is
delivered at the domicilium citandi et executandi of the addressee
as reflected in clause 17.2.
17.4 The domicilium of Lama or Global may be changed by them to any
other physical address within the Republic of South Africa
provided that not less than 21 (Twenty One) days prior written
notice of such change is given by Lama to Global or vice versa.
18. Ratification
18.1 To the extent to which the terms and provisions of the first
agreement and the second addendum are not modified by the
provisions of this agreement, Lama and Global ratify the terms
and conditions of such prior agreements.
18.2 It is agreed however that, in the event of any conflict
between the provisions of this agreement and any of the
provisions of the first agreement or the second addendum, the
provisions of this agreement, both express and implied, shall
prevail.
19. Miscellaneous
19.1 This document records the entire agreement between the parties
and replaces all prior understandings or arrangements or
agreements between them relating to the matters dealt with in
this agreement.
Page 19
19.2 No further agreement purporting to amend or cancel this agreement
or any of its terms and no waiver by a party of any rights under
this agreement shall be valid unless reduced to writing and signed
by both parties.
19.3 No indulgence, concession or extension of time may be granted or
allowed by a party in a manner which does not constitute a formal
amendment to this agreement shall be capable of prejudicing the
rights of such party under this agreement.
19.4 The parties acknowledge in favour of each other than no warranties
or representations material to be provisions of this agreement
which are not expressly recorded in this document have been made or
given by or on behalf of any of the parties.
19.5 Clause headings are inserted for the sake of convenience only and
shall be ignored in the interpretation of this agreement.
20. Costs
All terms and charges incurred by Lama in connections with negotiation
and finalisation of the terms of this agreement shall be borne by Global.
THUS DONE and SIGNED by Lama Minerals CC at Johannesburg on 3rd August 1995
AS WITNESSES:
for LAMA MINERALS CC
1. ^^^^^^^^^^^^^^^^^^^^
2. ^^^^^^^^^^^^^^^^^^^^ /s/ P A Ford
--------------------------------
P A FORD - MEMBER
PAGE 20
THUS DONE and SIGNED by van Wyk at JOHANNESBURG
on 3rd August 1995
AS WITNESSES:
1. /s/ illegible signature^^
2. /s/ illegible signature^^ /s/ J. P. Van Wyk
--------------------------
J P VAN WYK
THUS DONE and SIGNED by A & P Mining (Proprietary) Limited at JOHANNESBURG
on 3rd August 1995
AS WITNESSES:
for A & P MINING (PROPRIETARY)
LIMITED
1. /s/ illegible signature^^
2. /s/ illegible signature^^
---------------------------
DIRECTOR
NOTARIAL MINERAL LEASE
between
THE REPUBLIC OF SOUTH AFRICA
and
LAMA MINERALS CC
in respect of
Remaining extent of the Farm No 293
Division of Barkly West
PROTOCOL NO. 236
NOTARIAL MINERAL LEASE
of Rights to Precious Stones
BE IT HEREBY MADE KNOWN
that on this Eleventh day of April in the year one thousand nine hundred
and ninety five before me
XXXX XXXXXXXXX POTGIETER
Notary, by lawful authority duly sworn and admitted and residing and
practising at Kimberley in the Northern Cape Province, Republic of South
Africa, and in the presence of the undersigned witnesses,
Page 2
personally came and appeared XXXXXX XXXXX XXXXXXX in his capacity as the
Regional Director of the Northern Cape Region of the Department of Mineral and
Energy Affairs of the Republic of South Africa, he being duly authorised thereto
by
THE REPUBLIC OF SOUTH AFRICA
(hereafter together with its successors in title and assigns called "the
State")
under a Special Power of Attorney granted to him by ROELOF XXXXXXXX XXXXX in
his capacity as Minister of Minerals and Energy Affairs of the Republic of South
Africa (hereafter together with his successors in office and assigns called "the
Minister")
and also personally came and appeared XXXXXX ALWENE FORD and XXXX XXXX
XXXXXXXXXX in their capacities as a members of
LAMA MINERALS CC
Registration No CK92117258/23
(hereafter together with its successors in title and assigns called "the
Lessee")
they being duly authorised thereto by a resolution of the members of the Lessee,
which Special Power of Attorney and a certified extract from the minutes of the
meeting of the members of the Lessee evidencing the above mentioned resolution
have this day been examined by me the Notary and now remain filed in protocol,
Page 3
AND THE APPEASERS DECLARED THAT
WHEREAS the Lessee is the holder of a Prospecting and Digging Agreement
No P&D XLIV concluded under the provisions of Section 20 of the
now repealed Precious Xxxxxx Xxx 0000 in respect of the lease
area referred to below ("P&D "),
AND WHEREAS the P&D was originally registered in the office of the Mining
Commissioner for the mining district of Barkly West on 26
November 1978,
AND WHEREAS the P&D was subsequently ceded to the Lessee with effect from 1
January 1993 in terms of a Notarial Deed of Cession, a true copy
of which has been filed for record purposes in the office of the
Regional Director: Northern Cape Region of the Department of
Mineral and Energy Affairs.
AND WHEREAS the Lessee was in terms of the P&D entitled to exploit precious
stones within the entire area comprising the following immovable
property (in this agreement called "the lease area") and more
fully described as:
CERTAIN remaining extent of the Farm No 293
SITUATE in the division of Barkly West, Province of the Northern
MEASURING Cape 2 285,8912 (Two Thousand Two Hundred and Eighty Five Comma
Eight Nine One Two) hectares
HELD by Xxxxxx Xxxxx under Deed of Transfer No T843/1989
AND WHEREAS the rights to all precious stones, gold or silver found on or
under the lease area vest in the State by virtue of a reservation
recorded in the original Deed of Grant (Barkly West Quitrents,
Volume 2, Folio 32) registered in respect of the lease area,
Page 4
AND WHEREAS the Lessee wishes to lease the State's right to precious stones
in the lease area in accordance with the provisions of this
agreement,
AND WHEREAS a Certificate of Rights to Minerals is to be registered over the
lease area in favour of the State,
NOW THEREFORE THE PARTIES HEREBY AGREE WITH EACH OTHER AS FOLLOWS:
1. LEASE OF RIGHTS TO PRECIOUS STONES
1.1 The Minister hereby leases to the Lessee which hereby hires all the
State's rights to precious stones within the lease area.
1.2 For the purposes of this agreement "precious stones" shall mean
diamonds, emeralds, rubies and sapphires.
1.3 The rights granted to the Lessee in terms of this agreement include all
such rights which are reasonably necessary or ancillary to the
exploitation of precious stones within the lease area.
2. STATUTORY CONSENTS
In order to enable the Lessee to exercise the Lessee's rights under this
agreement, the Minister hereby grants to the Lessee:
2.1 The consent referred to in Section 6(3) of the Minerals Act Xx 00 xx
0000 ("xxx Xxx") to prospect the lease area for precious stones on the
Lessee's own account; and
2.2 The consent referred to in Section 9(2) of the Act to mine the lease
area for precious stones on Lessee's own account and to dispose thereof.
Page 5
3. DURATION
3.1 Unless terminated at an earlier date by the Minister or by the Lessee in
terms of the further provisions of this agreement, the lease of the
State's rights to precious stones within the lease area shall endure
until all such precious stones which may be found within the lease area
and which may be profitably won from the lease area have been exhausted
("the lease period").
3.2 The Lessee shall be entitled at any time to terminate the lease period
after having given the Minister not less than 30 (Thirty) days prior
written notice of such termination.
3.3 Unilateral termination of the lease period by the Lessee shall not
relieve the Lessee of any unfulfilled obligations towards the State.
3.4 Notwithstanding any of the other provisions of this agreement, the lease
period shall continue despite the fact that the Lessee may from time to
time be temporarily prevented from conducting prospecting or mining
operations within the lease area as a result of market forces, force
majeure, floods, interruptions in the supply of power, water or other
resources or assets, by labour or other unrest or as a result of any
other circumstances.
4. CONSIDERATION
4.1 As consideration for the rights granted to the Lessee under this
agreement, the Lessee shall pay to the State a royalty equivalent to 5%
(Five percent) of the gross proceeds of all precious stones recovered
from the lease area during the lease period.
4.2 The Lessee shall sell all precious stones recovered from the lease area
within 21 (Twenty One) days following the end of each calendar month
during the lease period and shall pay such royalty to the State at the
office of the Regional Director of the Northern Cape Region of the
Department of Mineral and Energy Affairs ("the Regional Director") at
Kimberley (or at such other place in Kimberley as the State may from
time to time in writing determine).
Page 6
4.3 Each royalty payment shall be accompanied by an affidavit confirming the
number and weight in carats of precious stones recovered during the
calendar month concerned as well as the price at which such precious
stones were sold.
4.4 In addition to such royalty the Lessee shall also pay to the State all
such amounts as may from time to time become owing by the Lessee to the
State in terms of any tax imposed on the profits realised by the Lessee
on the exploitation of precious stones within the lease area, and in
this regard the royalty referred to in clause 4.1 shall for the purposes
of calculating the income tax liability of the Lessee constitute
expenditure actually incurred in the production of the Lessee's income
and profits.
5. LESSEE'S OBLIGATIONS
5.1 The Lessee shall at all times during the lease period punctually comply
with the requirements of all applicable legislation as well as all
conditions to which any prospecting permit or mining authorisation held
by the Lessee may be subject.
5.2 The Lessee shall in particular carry out all prospecting work and all
mining operations within the lease area in accordance with such
programmes as may from time to time form the basis upon which any mining
authorisation may be granted to the Lessee.
5.3 The Minister and/or any official authorized thereto by him shall be
entitled at all times to enter the lease area in order to ascertain
whether or not the provisions of this agreement are being complied with
by the Lessee.
5.4 The Lessee shall at all times exercise the Lessee's rights under this
agreement in a manner which shall ensure:
5.4.1 That the precious stones potential within the lease area shall be
investigated in a reasonably systematic manner and that any viable
deposits of precious stones shall be included in the Lessee's (or, as
the case may be, the Lessee's contractor's) mining plan, unless it is
not reasonably possible to do so;
Page 7
5.4.2 That the optimal exploitation, processing and utilisation of precious
stones within the lease area is achieved;
5.4.3 That sufficient provision is made for the safety and health of persons
involved in the Lessee's operations or who may otherwise lawfully enter
or be upon the lease area; and
5.4.4 That the utilisation and rehabilitation of the surface of the lease area
during and after prospecting and mining operations is conducted in an
orderly manner.
6. RECORDS AND RETURNS
6.1 The Lessee shall at all times during the lease period keep all such
books, plans and records as may reasonably be required by the Minister
in order to enable a proper record of the Lessee's activities within the
lease area to be kept.
6.2 All such books, plans and records shall be kept available for inspection
by the Minister at all reasonable times.
6.3 At the end of each financial year of the Lessee, the Lessee shall
promptly submit to the Regional Director an annual report and a complete
audited financial and production return in respect of prospecting and
mining operations within the lease area, together with such other
reports as may from time to time be required by the Minister.
7. INDEMNITY
The Lessee hereby indemnifies the State against all claims against the
State arising out of the damage or loss of any assets or the injury or
death of any person as a result of the prospecting or mining operations of
the Lessee within the lease area during the lease period.
Page 8
8. CANCELLATION BY THE STATE
8.1 If the Lessee fails punctually to comply with any provisions of this
agreement, in particular the Lessee's obligations relating to optimal
exploitation of precious stones within the lease area, and if the Lessee
falls to remedy such breach of contract within 30 (Thirty) days after
receipt of a written demand for proper performance (or within such
longer period following such demand as the Lessee may under the
circumstances prove to be reasonable and which may be acceptable to the
Minister), the Minister shall be entitled to cancel the lease of the
State's rights to precious stones within the lease area by means of
written notice to the Lessee.
8.2 Notwithstanding such cancellation by the Minister, the Lessee shall
remain liable to comply with all the unfulfilled obligations of the
Lessee in terms of this agreement and in terms of any prospecting permit
or mining authorisation which the Lessee may hold in respect of the
lease area, in particular the Lessee's obligations regarding safety and
rehabilitation.
9. PROHIBITION ON CESSION
9.1 The Lessee shall not under any circumstances be entitled without the
prior written consent of the Minister to cede any of the Lessee's rights
under this agreement.
9.2 The Lessee shall however be entitled to appoint such independent
contractors to carry out such work within the lease area as the Lessee
may from time to time in the Lessee's sole discretion determine.
9.3 Without derogating in any way from any of the rights granted to the
Lessee under this agreement, the Minister hereby grants to every
contractor nominated in writing by the Lessee for such purposes and
subject always to the provisions of clause 9.4;
9.3.1 The consent referred to in section 6(3) of the Act to prospect the lease
area for precious stones on the contractor s own account; and
9.3.2 The consent referred to in section 9(2) of the Act within the lease area
on such contractor's own account and to dispose thereof.
Page 9
9.4 The parties record and agree that:
9.4.1 The consent of the Minister reflected in clause 9.3 has been furnished
in order to enable the Lessee to appoint independent contractors to
conduct prospecting and mining operations within the lease area;
9.4.2 Such contractors' shall conduct such operations at their sole risk and
expense;
9.4.3 All such contractors' shall bear full responsibility for due compliance
with the requirements of the Act;
9.4.4 All such contractors' shall accordingly for the duration of their
contracts with the Lessee be required to hold such prospecting permits
or mining authorisations which may be issued from time to time in their
own names; and
9.4.5 The consent of the Minister furnished in terms of clause 9.3 above in
respect of a contractor shall lapse in so far as such contractor is
concerned on the date upon which the appointment of such contractor is
terminated by the Lessee.
10. PRE-EMPTIVE RIGHTS
10.1 The Minister undertakes that the following conditions shall be met
before the State during the currency of the lease period sells or
otherwise alienates any of the State's rights to minerals including
precious stones within the lease area to any person other than the
Lessee:
10.1.1 The Minister shall deliver to the Lessee a written offer in terms of
which the State offers to sell or otherwise alienate the minerals
concerned on the conditions and at the price (expressed in South African
currency) reflected in the written offer;
10.1.2 The offer shall be duly signed on behalf of the State;
10.1.3 The Lessee shall be afforded a period of 90 (Ninety) days after receipt
of such written offer to accept the offer by means of written notice to
this effect given to the Minister;
Page 10
10.1.4 If the Lessee rejects the State's offer or fails to accept the State's
offer within the period of 90 (Ninety) days referred to above, then the
State shall be entitled within a further period of 60 (Sixty) days to
sell or alienate such mineral rights to any third party on precisely the
same conditions and at the same price as were reflected in the State's
offer to the Lessee; and
10.1.5 If the State does not conclude a valid written agreement with a third
party for the sale or the alienation of the mineral rights concerned
within the period of 60 (Sixty) days referred to above, or if such
agreement is concluded but subsequently materially amended or canceled,
then the pre-emptive rights of the Lessee shall revive and the State
shall once again be obliged to comply with the above conditions before
any of the said mineral rights are sold or otherwise alienated to any
third party.
10.2 The State guarantees that, should any of the State's mineral rights
within the lease area be sold or alienated to any third party after the
Lessee has been afforded an opportunity to acquire such mineral rights
on the same conditions, the alienation of such mineral rights shall be
rendered subject to all the terms and conditions of this agreement and
in particular subject to the pre-emptive rights of the Lessee as set out
above.
11. FORMALITIES
The State undertakes from time to time and whenever requested to do so by
the Lessee to take all such steps and sign all such documents as may be
required by the Lessee in order to enable the Lessee to exercise the
Lessee's rights under this agreement during the lease period.
12. DOMICILIA AND NOTICES
The parties appoint the following addresses as their respective domicilia
citandi et executandi for all purposes under this agreement:
Page 11
The Minister: The office of the Regional Director
Department of Mineraland Energy Affairs
Northern Cape Region
Public Offices
Knight Street
XXXXXXXXX
8301
The Lessee: The offices of Deloitte & Touche
Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxxx
Xxxxx Xxxxxx
XXXXXXXXX
0000
12.2 The domicilium of a party may be changed by such party to any other
physical address within the Republic of South Africa provided that not
less than 21 (twenty one) days prior written notice of such change is
given to the other party.
12.3 Any written notice or communication between the parties which is
addressed to the following postal address of the addressee shall be
deemed to have been received by the addressee on the seventh business
day following the date upon which such notice was tendered to the postal
authorities for posting by prepaid registered post to:
The Minister: The Regional Director
Department of Mineral and Energy Affairs
Northern Cape Region
Private Bag X6093
KIMBERLEY
8300
The Lessee: x/x Xxxxxxxx & Xxxxxx
X X Xxx 000
XXXXXXXXX 0000
8300
Page 12
12.4 The postal address of a party may be changed by such party to any other
postal address in South Africa (excluding a poste restante) provided
that not less than 21 (twenty one) days prior written notice of such
change is given to the other party.
12.5 For the purposes of the above provisions relating to changes of address,
the expression "business day" shall mean all days excluding Saturdays,
Sundays and public holidays only.
13. MISCELLANEOUS
13.1 This document records the entire agreement between the parties and
replaces all prior agreements or arrangements between them relating to
the matters dealt with in this agreement.
13.2 No further agreement purporting to amend or cancel this agreement and no
waiver by a party of any rights under this agreement shall be valid
unless reduced to writing and signed by both parties.
13.3 No indulgence, concession or extension of time which may be permitted by
a party shall be capable of prejudicing the rights of such party under
this agreement.
13.4 The parties acknowledge in favour of each other that no warranties or
representations material to the provisions of this agreement which are
not expressly recorded in this document have been made or given by or on
behalf of either party.
13.5 Clause headings are inserted for the sake of convenience only and shall
be ignored in the interpretation of this agreement.
14. COSTS
All costs incurred by the Lessee in connection with the negotiation and
finalisation of this agreement shall be borne by the Lessee.
Page 13
THUS DONE AND EXECUTED at KIMBERLEY aforesaid, on the day, month and year first
aforewritten in the presence of the undersigned Witnesses, and of me, the
Notary.
AS WITNESSES:
1. ^^ /s/^^
-------------------------------------
qq The Minister
2. ^^
/s/ ^^
-------------------------------------
qq The Lessee
/s/ ^^
-------------------------------------
qq The Lessee
QUOD ATTESTOR,
NOTARY
DA2
REPUBLIC OF SOUTH-AFRICA
DEPARTMENT OF MINERAL AND ENERGY AFFAIRS
TEMPORARY AUTHORISATION TO CONTINUE [DATE
MINING OPERATIONS STAMP
APPEARS
(Minerals Act, 1991 : section 10 HERE]
Office datestamp
------------------------
Permit No. | T 98/93 |
------------------------
Office reference | NC 5/3/2/275 |
------------------------
Temporary Authorization is hereby granted in terms of and subject to the
provisions of the Minerals Act, 1991, to (full name)
------------------------------------------------------------------------------
| Lama Minerals CC
------------------------------------------------------------------------------
Identity or registration number | | | | | | | | | | | | |
--------------------------------------
(hereinafter referred to as "the holder")
-----------------------------------------------------------------
of (address) | Pa Xxxxxx & Xxxxxxx
-----------------------------------------------------------------
| P O Box 64
-----------------------------------------------------------------
| XXXXXXXXX
-----------------------------------------------------------------
| 8300
-----------------------------------------------------------------
to continue with mining operation for (name of mineral) | Diamonds
------------------------------------------------------------------------------
| | on (full name of farm and
------------------------------------------------------------------------------
subdivision) | Remaining Extent of the farm
------------------------------------------------------------------------------
|
------------------------------------------------------------------------------
No. | 293 | Magisterial District | Barkly-West | Region | Northern Cape
--------- ---------------------------------------
This temporary permission may at any time and without disclosure of reasons be
withdrawn.
The holder will not be entitled to any compensation from this Department for
costs incurred to temporarily continue his workings.
This temporary authorization is valid until a mining authorisation is issued or
refused.
SIGNED AT KIMBERLEY ON THIS 6TH DAY OF JANUARY 1994
Regional Director /s/ ^^??
......................
