EX-99 6 ex4_85.htm
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EXHIBIT 4.85
CESSION AGREEMENT
entered into between
THE INDUSTRIAL DEVELOPMENT CORPORATION OF SOUTH AFRICA LIMITED
and
DRDGOLD LIMITED
and
BUSINESS VENTURES INVESTMENT NO. 750 (PTY) LTD
and
BUSINESS VENTURES INVESTMENT NO. 751 (PTY) LTD
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WHEREBY IT IS AGREED AS FOLLOWS:
1.
DEFINITIONS AND INTERPRETATION
1.1.
Definitions
In this Agreement, unless clearly inconsistent with or otherwise indicated by the
context –
1.1.1.
“Agreement” means the Agreement set out in this document and in the
Annexures hereto;
1.1.2.
“Business” means the business of the Companies as at the date of signature
hereof;
1.1.3.
“Business Day” means any day other than a Saturday, a Sunday or a public
holiday in the Republic of South Africa;
1.1.4.
“the Claims” means all the claims that the Seller has against Business Venture
Investments No 750 (Pty) Ltd and Business Venture Investments No 751 (Pty) Ltd
in terms of and arising out of the Guarantees (Schedule A and Schedule B
hereto);
1.1.5.
“Closing” means the completion of the cession and transfer of the Claims, and
the execution of the Pledges;
1.1.6.
“the Closing Date” means the 1st July 2005.
1.1.7.
“Companies Act” means the Companies Act (61 of 1973), as amended;
1.1.8.
“the Companies” means Business Venture Investments No 750 (Pty) Ltd,
Registration Number 2002/027241/07 and Business Venture Investments No 751
(Pty) Ltd, Registration Number 2002/030318/07;
1.1.9.
“CGR” means Crown Gold Recoveries (Pty) Ltd, Registration Number
1998/05115/07;
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1.1.10.
“the Debentures” means the debentures that the IDC have subscribed for in
ERPM in terms of the Debenture Deed dated 27 January 2003;
1.1.11.
“ERPM” means East Rand Proprietary Mines Ltd, Registration Number
1893/000773/06
1.1.12.
“The Guarantees” means the Guarantees given by the Companies to the Seller
(and the Purchaser), in terms of which the Companies acknowledged, as
principle debtor, its indebtedness to the Seller for payment of the amount owing
under the Indemnities;
1.1.13.
“The Inter-creditor Agreements” means the written agreements between the
Seller and the Purchaser governing the relationship between them in matters
provided for in the Funding Agreements;
1.1.14.
“The Funding Agreements” means the agreements that are listed in the index,
attached as Schedule “C” and Schedule “D” in terms of which the Seller and the
Purchaser:-
1.1.14.1.
advanced funds (the “Loans”) to ERPM (in terms of the
agreement in Schedule “C”) and CGR, (in terms of the
agreements in Schedule “D”);
1.1.14.2.
consolidated its respective interests in the loan finance
agreements in each of the Companies;
1.1.14.3.
procured the cession of the Loans to the Companies in
securitatem debiti of the undertakings in the Guarantees;
1.1.14.4.
ERPM issued debentures to the Seller and the Purchaser.
1.1.15.
“the Indemnities” means the indemnities given by Crown and ERPM
respectively, in terms of which they each guarantee the Companies’ performance
under the Guarantees;
1.1.16.
“The Loan(s)” means the loans advanced by the Seller to Crown and ERPM in
terms of the two Loan Agreements in Schedule C and D respectively;
1.1.17.
“Parties” means the Seller, the Purchaser and the Companies;
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1.1.18.
“the Pledge” means a Pledge executed by the Seller in favour of the Purchaser in
terms of which the Seller pledges its shares in the Companies to the Purchaser as
security for the Companies duly discharging the claims arising from the
Guarantees;
1.1.19.
“the Purchaser” means DRDGOLD Ltd, Registration Number 1895/000926/06,
or its nominee;
1.1.20.
“Sale Assets” means:-
1.1.20.1.
the Seller’s claims against CGR and ERPM in terms of the loans;
1.1.20.2.
the Seller’s claims against the each of the Companies in terms of the
Guarantees;
1.1.20.3.
the Indemnities; and
1.1.20.4.
the Debentures.
1.1.21.
“Seller” means The Industrial Development Corporation of South Africa Limited
Registration Number 1940/014201/06;
1.1.22.
“the KBH Loan” means the shareholders loan by KBH to Crown, which loan has
been pledged to the Seller, as security for Crown complying with the conditions
of the Loan;
1.1.23.
“R” or “Rand”” means the lawful currency of the Republic of South Africa.
1.2.
Interpretation
The headings of the clauses in this Agreement are for the purpose of reference and
convenience only and shall not be used in the interpretation of nor modify nor amplify the
terms of this Agreement nor any clause hereof and, unless the context otherwise requires –
1.2.1.
words indicating the singular includes the plural and vice versa;
1.2.2.
words indicating a gender include any gender;
1.2.3.
an expression indicating a natural person includes any company, partnership, trust,
joint venture, association, corporation and any other body corporate and the state;
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1.2.4.
a reference to a statute, regulation, proclamation, ordinance or by-law includes all
statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or
replacing it, and a reference to a statute includes all regulations, proclamations,
ordinances and by-laws issued under that statute;
1.2.5.
a reference to a document includes all amendments or supplements to, or replacements
or novations of that document;
1.2.6.
any reference in this Agreement to "date of signature hereof" shall be read as meaning a
reference to the date of the last signature to this Agreement;
1.2.7.
any reference to an enactment is to that enactment as at the date of signature hereof and
as amended or re-enacted from time to time;
1.2.8.
if any provision in clause 1.1 is a substantive provision conferring rights or imposing
obligations on any Party, notwithstanding that it is only in such clause, effect shall be
given to it as if it were a substantive provision in the body of this Agreement;
1.2.9.
when any number of days is prescribed in this Agreement, same shall be reckoned
exclusively of the first and inclusively of the last day unless the last day falls on a day
which is not a Business Day, in which case the last day shall be the next succeeding day
which is a Business Day;
1.2.10.
where figures are referred to in numerals and in words, if there is any conflict between
the two, the words shall prevail;
1.2.11.
expressions defined in this Agreement shall bear the same meanings in any Schedules
or Annexures to this Agreement which do not themselves contain their own conflicting
definitions;
1.2.12.
the expiration or termination of this Agreement shall not affect such of the provisions
of this Agreement as expressly provide that they will operate after any such expiration
or termination or which of necessity must continue to have effect after such expiration
or termination, notwithstanding that the clauses themselves do not expressly provide
for this;
1.2.13.
the rule of construction that a contract shall be interpreted against the party responsible
for the drafting or preparation of the contract, shall not apply;
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1.2.14.
the eiusdem generis rule shall not apply and whenever a term is followed by the word
“including” which is then followed by specific example, such examples shall not be
construed so as to limit the meaning of that term; and
1.2.15.
any reference in this Agreement to a party shall, if such party is liquidated,
sequestrated or placed under judicial management, be applicable also to and binding
upon that party’s liquidator, trustee or judicial manager, as the case may be.
2.
BACKGROUND AND RECORDAL
2.1
The Seller has, in terms of the Loans, provided funds on loan to CGR and ERPM;
2.2
The Companies have given a written Indemnity to the Seller, in terms of which it, as
principal debtor, acknowledged its indebtedness to the Seller for the Loans;
2.3
CGR and ERPM have, pursuant to the Guarantees, given indemnities in favour of the
Companies, were they to be called upon to perform in terms of the Guarantees;
2.4
The Seller is the legal and beneficial owner of the Sale Shares in the Companies, holds
the unencumbered and freely transferable rights to the Claims, which are to form the
object of the Pledge.
2.5
The Seller is the holder of the Debentures in ERPM, which Debentures the Purchaser
wishes to acquire.
2.6
The Parties hereby record the terms on which the Seller has agreed to sell and transfer
the Claims, the Indemnities and the Debentures, and waive in pledge of the KBH Loan
in favour of the Purchaser.
2.7
The Parties now agree on the terms and conditions set out in this Agreement.
3.
SALE
Purchase and Transfer of Sale Assets –
3.1
The Seller hereby sells to the Purchaser, and the Purchaser hereby buys from the Seller
the Sale Assets on the terms, and subject to the conditions provided for in this
Agreement.
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3.2
To the extent required, CGR, KBH and ERPM each consent to each transaction
envisaged in this agreement.
4.
PURCHASE PRICE
4.1.
The purchase price for the Sale Assets shall be an amount equal to the aggregate
value of
4,451,219
ordinary DRDGold shares (“the Payment Shares”) reckoned at its
closing price on the Johannesburg Stock Exchange on the Closing Date 4,451,219
being the number of shares which, based on the five day volume weighted average
price of DRDGold shares in trade on the Johannesburg Stock Exchange, prior to the
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th
of March 2005, aggregated R24 million in value).
4.2.
The Purchaser shall pay the Purchase Price to the Seller by allotting and issuing the
Payment Shares to the Seller on the Closing Date.
5.
CLOSING AND IMPLEMENTATION
5.1.
Closing in respect of the Claims shall take place at a meeting of the representatives of
the Parties at the offices of the Purchaser commencing at 10h00 on the Closing Date
in respect of the Claims, or at such other place, time and date agreed by the Parties in
writing.
5.2.
At that meeting the Purchaser shall, against compliance by the Seller with its
obligations in terms of clause 5.3 below, which it is obliged to comply with on or by
the Closing Date deliver to the Seller the original share certificate(s) in respect of the
Payment Shares in order to be registered in the name of the Seller; and
5.3.
The Seller shall, at the same meeting, against compliance by the Purchaser of its
obligations in terms of clause 5.2 above:
5.3.1.
provide the Purchaser with a written cession of the Claims, duly executed
in favour of the Purchaser, in terms of a notarial deed of cession to the
extent required;
5.3.2.
provide the Purchaser with a written deed of cession in favour of the
Purchaser of all the rights provided for in the Indemnities, notarially
executed to the extent required;
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5.3.3.
provide the Purchaser with a written waiver in favour of the Purchaser of
the pledge of the KBH Loan;
5.4.
The Seller shall further, by no later than the fifth business day after Closing, execute
a deed of Pledge, in terms of which the Seller pledges its shares in the Companies to
the Purchaser as security for the Companies complying with its obligations under
the Guarantees, on the terms in the draft deed attached in Schedule F.
5.5.
The Intercreditor Agreements shall be deemed to have been cancelled by mutual
consent between the Parties, upon Closing as envisaged in this clause 5.
6.
WARRANTIES AND REPRESENTATIONS BY THE SELLER
6.1.
The Seller gives to the Purchaser all the warranties in respect of the Companies set
out in Annexure A hereto as read with any disclosure schedule attached hereto by
the Seller when it signs.
6.2.
The Purchaser has entered into this Agreement relying on the strength of the
warranties given to the Purchaser by the Seller whether in Annexure A or elsewhere
in this Agreement and on the basis that such warranties will be correct as at the date
of signature hereof, and the various dates specified in Annexure A. All the
warranties given in terms of this Agreement shall be deemed to be material.
7.
WARRANTIES AND REPRESENTATIONS BY THE PURCHASER
7.1.
The Payment Shares shall be new, ordinary fully paid shares of DRDGOLD, duly
issued and which are listed on the Johannesburg Securities Exchange (“JSE”).
7.2.
The Purchaser warrants in respect of its capacity to effect payment as aforesaid that:-
7.2.1.
It is duly incorporated and validly existing under the laws of South Africa
and has power to enter to effect payment as aforesaid;
7.2.2.
all necessary corporate and other action to authorise the entry into and
performance of this Agreement has been taken by the Purchaser;
7.2.3.
that the Payment Shares shall be freely transferable to the Seller, wholly
unencumbered and that no person shall have any right (including any
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option or right of first refusal) to subscribe for or acquire any payment
shares in DRDGOLD other than the Seller in terms of this agreement; and
7.2.4.
The Purchaser acknowledges that the Seller has entered into this
agreement on the strength of the warranties given to it by the Purchaser.
8.
CONFIDENTIALITY
8.1.
For the purposes of this Agreement, confidential information (Confidential
Information) means any information relating to -
8.1.1.
the terms of this Agreement and the transactions and Agreements
contemplated by this Agreement;
8.1.2.
the business, assets, liabilities and affairs of the Companies and the
Purchaser and any related corporation of the Companies and the
Purchaser;
8.1.3.
the strategic and business plans of the Companies, the Purchaser, ERPM,
CGR and any related corporation of the Companies and the Purchaser;
8.1.4.
the terms of any proposed agreement which involves the Companies and
the Purchaser or any related corporation of the Companies and the
Purchaser that are the subject of discussions or negotiations with any
other party;
8.1.5.
any information which the Companies or the Purchaser or any related
corporation of the Companies or the Purchaser is required to keep
confidential under the terms of any agreement with any other party.
8.2.
The obligations of confidence in this clause 8, extend to all Confidential Information
of a Party provided to the Party or obtained by a Party before entering into this
Agreement.
8.3.
Subject to this clause 8, no Party may -
8.3.1.
disclose any Confidential Information to any person who is not a Party;
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8.3.2.
use any Confidential Information to compete with the business of the
Companies or the Purchaser or any related corporation of the Companies
or the Purchaser;
8.3.3.
use any Confidential Information in any manner which may cause or be
calculated to cause any loss to the Purchaser or any of its shareholders or
related corporation of the Purchaser; or
8.3.4.
make any public disclosure, announcement or news release containing
Confidential Information.
8.4.
PERMITTED DISCLOSURES - A Party may disclose, and permit its officers,
employees, shareholders and agents to disclose, any Confidential Information -
8.4.1.
if it is required to do so by any law, any court application, legally binding
order, government agency or recognised stock exchange, but only to the
extent necessary to comply with such requirements and only after
consulting with the Purchaser on the form and content of the disclosure
prior to disclosing any Confidential Information;
8.4.2.
with the prior written consent of the Purchaser;
8.4.3.
if the Confidential Information has come within the public domain, other
than by a breach of this Agreement by any Party;
8.4.4.
to the Party’s financiers, bankers, auditors or other professional advisers,
or to a prospective purchaser of shares in the Companies, provided that
the person to whom any disclosure of Confidential Information is to be
made first agrees in writing to be bound by and observe the obligations of
confidentiality in terms equivalent to those set out in this clause 8.
8.5.
PUBLIC ANNOUNCEMENTS - Each Party shall consult all of the other Parties and
use all reasonable endeavours to agree on the form and content of any disclosure
before making any public announcement or news release relating to or arising from
this Agreement, whether or not it contains Confidential Information.
9.
ARBITRATION
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9.1.
Save in respect of those provisions of the Agreement which provide for their own
remedies which would be incompatible with arbitration, a dispute which arises in
regard to -
9.1.1.
the interpretation of; or
9.1.2.
the carrying into effect of; or
9.1.3.
any of the Parties' rights and obligations arising from; or
9.1.4.
the termination or purported termination of or arising from the
termination of; or
9.1.5.
the rectification or proposed rectification of this Agreement, or out of or
pursuant to this Agreement or on any matter which in terms of this
Agreement requires agreement by the Parties, (other than where an
interdict is sought or urgent relief may be obtained from a court of
competent jurisdiction), shall be submitted to and decided by arbitration.
9.2.
That arbitration shall be held -
9.2.1.
with only the Parties and their representatives other than legal
representatives, present thereat;
9.2.2.
at Sandton, Johannesburg.
9.3.
It is the intention that the arbitration shall, where possible, be held and concluded in
20 (twenty) working days after it has been demanded. The Parties shall use their
best endeavours to procure the expeditious completion of the arbitration.
9.4.
Save as expressly provided in this Agreement to the contrary, the arbitration shall be
subject to the arbitration legislation for the time being in force in South Africa.
9.5.
The arbitrator shall be, if the matter in dispute is principally -
9.5.1.
a legal matter, an impartial practising advocate of not less than 15
(fifteen) years' standing, or an impartial admitted attorney of not less than
15 (fifteen) years' standing;
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9.5.2.
an accounting matter, an impartial practising chartered accountant of not
less than 15 (fifteen) years' standing;
9.5.3.
any other matter, an independent person agreed upon between the
Parties.
9.6.
If the Parties fail to agree on an arbitrator within 14 (fourteen) days after the
arbitration has been demanded, the arbitrator shall be nominated, at the request of
any one of the Parties by the President for the time being of the Law Society of the
Northern Provinces (or its successor body in Gauteng). If that person fails or refuses
to make the nomination, either party may approach the High Court of South Africa
to make such an appointment. To the extent necessary, the court is expressly
empowered to do so.
9.7.
If the Parties fail to agree whether the dispute is of a legal, accounting or other
nature within 14 (fourteen) days after the arbitration has been demanded, it shall be
considered a matter referred to in clause 9.5.1.
9.8.
The arbitrator shall have the fullest and freest discretion with regard to the
proceedings save that he shall be obliged to give his award in writing fully
supported by reasons. His award shall be final and binding on the Parties to the
dispute.
9.9.
Furthermore the arbitrator -
9.9.1.
may by notice to the Parties within 5 (five) days after his appointment,
dispense wholly or in part with formal submissions or pleadings
provided that the Parties are given the opportunity to make submissions;
9.9.2.
shall determine the applicable procedure and shall not be bound by strict
rules of evidence;
9.9.3.
shall allow any Party to the arbitration to call any witnesses he
determines and shall permit cross examination of witnesses;
9.9.4.
shall be entitled to take equity into account and shall not be bound to
decide the dispute according to the legal rights of the Parties;
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9.9.5.
may, in addition to any other award he may be able to make -
9.9.5.1.
cancel this Agreement or determine that a Party has
lawfully cancelled or is entitled lawfully to cancel this
Agreement or require specific performance, with an award
of damages but may not award cancellation of this
Agreement or determine that the Agreement was lawfully
cancelled or that a Party is lawfully entitled to cancel the
Agreement unless the breach complained of is found by
him to be a material one going to the root of the contract
which cannot be compensated for by an award of damages
or recoupment under any indemnity given in terms of this
Agreement;
9.9.5.2.
award interest with effect from any date, and on any other
basis, he considers appropriate in the circumstances;
9.9.5.3.
unless this Agreement otherwise requires, sever any
contract constituted by this Agreement between the Parties
hereto from any other contract so constituted and may
cancel one without thereby cancelling all or any of the
others;
9.9.5.4.
shall make such order as to costs as he deems just.
9.10.
Any Party shall be entitled to have the award made an order of court of competent
jurisdiction.
9.11.
Any dispute shall be deemed to have been referred or subjected to arbitration
hereunder when any Party gives written notice to the others of the dispute, demands
an arbitration and requests agreement on an arbitrator.
9.12.
The provisions of this clause are severable from the rest of this Agreement and shall
remain in effect even if this Agreement is terminated for any reason.
9.13.
The Parties shall keep the evidence in the arbitration proceedings and any order
made by any arbitrator confidential unless otherwise contemplated herein.
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9.14.
The arbitrator shall have the power to give default judgment if any Party fails to
make submissions on due date and/or fails to appear at the arbitration.
9.15.
If before the implementation date, the Purchaser becomes aware that a material
breach of a material warranty has occurred which, had the Purchaser become aware
of it after the implementation date or had it occurred after the implementation date,
would have entitled the Purchaser to cancel the Agreement, the Purchaser shall be
entitled to cancel the Agreement prior to the Closing Date without prejudice to the
Purchaser’s right to claim damages, if any.
10.
AGREEMENT, NO AMENDMENT
10.1.
This Agreement constitutes the whole agreement between the Parties relating to the
subject matter hereof.
10.2.
No amendment or consensual cancellation of this Agreement or any provision or
term hereof or of any agreement, bill of exchange or other document issued or
executed pursuant to or in terms of this Agreement and no settlement of any
disputes arising under this Agreement and no extension of time, waiver or
relaxation or suspension of or agreement not to enforce or to suspend or postpone
the enforcement of any of the provisions or terms of this Agreement or of any
agreement, bill of exchange or other document issued pursuant to or in terms of this
Agreement shall be binding unless recorded in a written document signed by the
Parties (or in the case of an extension of time, waiver or relaxation or suspension,
signed by the party granting such extension, waiver or relaxation). Any such
extension, waiver or relaxation or suspension which is so given or made shall be
strictly construed as relating strictly to the matter in respect whereof it was made or
given.
10.3.
No extension of time or waiver or relaxation of any of the provisions or terms of this
Agreement or any agreement, bill of exchange or other document issued or executed
pursuant to or in terms of this Agreement, shall operate as an estoppel against any
Party in respect of its rights under this Agreement, nor shall it operate so as to
preclude such Party thereafter from exercising its rights strictly in accordance with
this Agreement.
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10.4.
To the extent permissible by law no Party shall be bound by any express or implied
term, representation, warranty, promise or the like not recorded herein, whether it
induced the contract and/or whether it was negligent or not.
11.
DOMICILIUM CITANDI ET EXECUTANDI
11.1.
The Parties choose as their domicilia citandi et executandi for all purposes under this
Agreement, whether in respect of court process, notices or other documents or
communications of whatsoever nature, the following addresses :
11.1.1.
Purchaser:
Physical: 45 Empire Road, Parktown, Johannesburg
Postal: PO Box 3390 Maraisburg, 1700
Telefax: 011 482 4641
E-mail:
niel.pretorius@za.drdgold.com
Attention: N Pretorius
11.1.2.
Seller
Physical: The Industrial Development Corporation ;
19 Fredman Drive, Sandton
Postal:
P O Box 784055, Sandton, 2146
Telefax: 011 269 3116
E-mail: nicoa@idc.co.za
Attention: [N Van Aardt]
11.1.3.
The Companies
Physical: 45 Empire Road, Parktown, Johannesburg
Postal:
PO Box 3390 Maraisburg, 1700
Telefax: 011 482 4641
E-mail:
themba.gwebu@za.drdgold.com
Attention: The Company Secretary
11.2.
Any notice or communication required or permitted to be given in terms of this
Agreement shall be valid and effective only if in writing but it shall be competent to
give notice by telefax or e-mail.
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11.3.
Any Party may by notice to any other Party change the physical address chosen as
its domicilium citandi et executandi vis-à-vis that party to another physical address
where postal delivery occurs in Gauteng or its postal address or its telefax number or
e-mail address, provided that the change shall become effective vis-à-vis that
addressee on the 7th (seventh) Business Day from the receipt of the notice by the
addressee.
11.4.
Any notice to a Party -
11.4.1.
sent by prepaid registered post (by airmail if appropriate) in a correctly
addressed envelope to it at an address chosen as its domicilium citandi et
executandi to which post is delivered shall be deemed to have been
received on the fifth Business Day after posting (unless the contrary is
proved);
11.4.2.
delivered by hand to a responsible person during ordinary business
hours at the physical address chosen as its domicilium citandi et
executandi shall be deemed to have been received on the day of delivery;
or
11.4.3.
sent by telefax to its chosen telefax number stipulated in clause 11.1 shall
be deemed to have been received on the date of despatch (unless the
contrary is proved); or
11.4.4.
sent by e-mail to its chosen e-mail address stipulated in this clause, shall
be deemed to have been received on the date of despatch (unless the
contrary is proved).
11.4.5.
Notwithstanding anything to the contrary herein contained a written
notice or communication actually received by a Party shall be an
adequate written notice or communication to it notwithstanding that it
was not sent to or delivered at its chosen domicilium citandi et
executandi.
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12.
NO CESSION OR ASSIGNMENT
12.1.
The Purchaser records that it may wish, without limiting its liability to render any
performance owing under this agreement, to assign the rights it acquires in terms of
this agreement to a wholly owned subsidiary of the Purchaser.
12.2.
The Seller agrees to such assignment, provided that the Purchaser shall remain
jointly and severally liable to the Seller of all the assignee’s obligations in terms of, or
arising in terms of this agreement.
12.3.
Other than Save as expressly provided elsewhere neither the Seller on the one hand
nor the Purchaser nor the Companies on the other shall be entitled to cede their
rights or assign their rights and obligations hereunder to any third party without the
prior consent of the other of them.
13.
COSTS
13.1.
The Purchaser shall pay the stamp duty in respect of the transfer of the Sale Assets
into the Purchaser's name or the name of its nominee/s.
13.2.
Each Party shall pay its own costs in negotiating, settling and implementing this
Agreement.
SIGNED by the Parties and witnessed on the following dates and at the following places
respectively:
DATE
PLACE WITNESS SIGNATURE
1.
For: The Seller
2.
1.
For: The Purchaser
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DATE
PLACE
WITNESS
SIGNATURE
13/07/2005
/
s/ D Pretorius
Daniel Pretorius
General Manager Corporate
Services
2.
1.
For: The Companies
2.
1.
For:
CGR
2.
1.
For:
KBH
2.
i
ANNEXURE A – WARRANTIES
1.
In this Annexure -
1.1.
the "Agreement" means the Agreement to which this Annexure is attached;
1.2.
the Seller will be entitled and able to give free and unencumbered title of the Claims,
the rights under the Indemnities, and the pledge of the KBH Loan to the
Purchaser;
1.3.
no person will have any right (including any option or right of first refusal) to
acquire any of the Sale Assets;
1.4.
the Seller will be the sole registered and beneficial owner of the Sale Shares;
1.5.
The Seller has not in any way encumbered its Shares in the Companies, and may
freely pledge, dispose or encumber same;
1.6.
No person will have any right to obtain an order pursuant to any representation
made by the Seller for the rectification of the register of members of the
Companies; and
1.7.
no person will have the right (including any option or right of first refusal) to
purchase any of the Sale Assets other than in terms of this agreement.