FLOW OF FUNDS AGREEMENT
Amongst
NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CAPITAL
DIVISION)
ARMGOLD HARMONY JOINT INVESTMENT COMPANY (PROPRIETARY) LIMITED
HARMONY GOLD MINING COMPANY LIMITED
and
THE ARM BROAD-BASED EMPOWERMENT TRUST
AN ORAL TRUST ESTABLISHED BY ORAL AGREEMENT ON 15 APRIL 2005 AND HEREIN
REPRESENTED BY ITS TRUSTEES BEING
NEDBANK LIMITED
(REPRESENTED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
HARMONY GOLD MINING COMPANY LIMITED
(REPRESENTED BY NOMFUNDO QANGULE)
▇▇▇▇▇ ▇▇▇▇▇▇
and
DENEYS ▇▇▇▇▇ TRUSTEES (PROPRIETARY) LIMITED
(REPRESENTED BY LIONEL ▇▇▇▇▇▇▇ ▇▇▇▇▇)
DENEYS | ▇▇▇▇▇
ATTORNEYS
NOTARIAL CERTIFICATE
I, THE UNDERSIGNED,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
OF SANDTON IN THE GAUTENG PROVINCE OF THE REPUBLIC OF SOUTH AFRICA, NOTARY
PUBLIC BY LAWFUL AUTHORITY DULY ADMITTED AND SWORN, DO HEREBY CERTIFY AND ATTEST
UNTO ALL WHOM IT MAY CONCERN THAT I HAVE THIS DAY COLLATED AND COMPARED WITH THE
ORIGINAL THEREOF, THE COPY HERETO ANNEXED MARKED "A", BEING:
"A" FLOW OF FUNDS AGREEMENT AMONGST NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK
CAPITAL DIVISION), ARMGOLD HARMONY JOINT INVESTMENT COMPANY (PROPRIETARY)
LIMITED AND HARMONY GOLD MINING COMPANY LIMITED AND THE ARM BROAD-BASED
EMPOWERMENT TRUST AN ORAL TRUST ESTABLISHED BY ORAL AGREEMENT ON 15 APRIL
2005 AND HEREIN REPRESENTED BY ITS TRUSTEES BEING NEDBANK LIMITED
(REPRESENTED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇), HARMONY GOLD
MINING COMPANY LIMITED (REPRESENTED BY NOMFUNDO QANGULE), ▇▇▇▇▇ ▇▇▇▇▇▇ AND
DENEYS ▇▇▇▇▇ TRUSTEES (PROPRIETARY) LIMITED (REPRESENTED BY LIONEL ▇▇▇▇▇▇▇
▇▇▇▇▇), DATED 15 APRIL 2005
AND I, THE SAID NOTARY, DO FURTHER CERTIFY AND ATTEST THAT THE SAME IS A TRUE
AND FAITHFUL COPY OF THE SAID ORIGINAL AND AGREES THEREWITH IN EVERY RESPECT. AN
ACT WHEREOF BEING REQUIRED, I HAVE GRANTED THESE PRESENTS UNDER MY NOTARIAL FORM
AND SEAL, TO SERVE AND AVAIL AS OCCASION SHALL OR MAY REQUIRE.
THUS DONE AND SIGNED AT SANDTON AFORESAID ON THIS THE 26TH DAY OF APRIL IN THE
YEAR TWO THOUSAND AND FOUR.
NOTARY PUBLIC
DENEYS ▇▇▇▇▇ ATTORNEYS
SANDTON
FLOW OF FUNDS AGREEMENT
Amongst
NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CAPITAL DIVISION)
ARMGOLD HARMONY JOINT INVESTMENT COMPANY (PROPRIETARY) LIMITED
HARMONY GOLD MINING COMPANY LIMITED
and
THE ARM BROAD-BASED EMPOWERMENT TRUST
AN ORAL TRUST ESTABLISHED BY ORAL AGREEMENT ON 15 APRIL 2005 AND HEREIN
REPRESENTED BY ITS TRUSTEES BEING
NEDBANK LIMITED
(REPRESENTED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND CLIVE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇)
HARMONY GOLD MINING COMPANY LIMITED
(REPRESENTED BY NOMFUNDO QANGULE)
▇▇▇▇▇ ▇▇▇▇▇▇
and
DENEYS ▇▇▇▇▇ TRUSTEES (PROPRIETARY) LIMITED
(REPRESENTED BY LIONEL ▇▇▇▇▇▇▇ ▇▇▇▇▇)
DENEYS | ▇▇▇▇▇
ATTORNEYS
TABLE OF CONTENTS
1. PARTIES ................................................................ 1
2. DEFINITIONS AND INTERPRETATION ......................................... 2
3. RECORDAL ............................................................... 8
4. FLOW OF FUNDS .......................................................... 9
5. IRREVOCABLE UNDERTAKINGS ............................................... 11
6. SAVINGS ................................................................ 11
7. BREACH ................................................................. 12
8. CONFIDENTIALITY ........................................................ 12
9. NOTICES AND DOMICILIA .................................................. 14
10. GOVERNING LAW ......................................................... 16
11. JURISDICTION .......................................................... 16
12. SEVERABILITY .......................................................... 16
13. GENERAL ............................................................... 17
14. COSTS ................................................................. 18
SCHEDULE 1 : DENEYS ▇▇▇▇▇ TRUST ACCOUNT ................................... 22
FLOW OF FUNDS AGREEMENT
1. PARTIES
1.1 The Parties to this Agreement are:
1.1.1 NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CAPITAL DIVISION);
1.1.2 ARMGOLD HARMONY JOINT INVESTMENT COMPANY (PROPRIETARY) LIMITED;
1.1.3 HARMONY GOLD MINING COMPANY LIMITED; and
1.1.4 THE ARM BROAD-BASED EMPOWERMENT TRUST AN ORAL TRUST ESTABLISHED BY ORAL
AGREEMENT ON 15 APRIL 2005 HEREIN REPRESENTED BY ITS TRUSTEES BEING:
1.1.4.1 NEDBANK LIMITED (REPRESENTED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND CLIVE ▇▇▇▇▇▇
▇▇▇▇▇▇▇);
1.1.4.2 HARMONY GOLD MINING COMPANY LIMITED (REPRESENTED BY NOMFUNDO QANGULE);
1.1.4.3 ▇▇▇▇▇ ▇▇▇▇▇▇; and
1.1.4.4 DENEYS ▇▇▇▇▇ TRUSTEES (PROPRIETARY) LIMITED (REPRESENTED BY LIONEL
▇▇▇▇▇▇▇ ▇▇▇▇▇).
1.2 The Parties agree as set out below.
Page 2.
2. DEFINITIONS AND INTERPRETATION
2.1 The headings to the clauses of this Agreement are for reference purposes
only and shall in no way govern or affect the interpretation of nor modify
nor amplify the terms of this Agreement nor any clause hereof.
2.2 Unless the context dictates otherwise, the words and expressions set forth
below shall bear the following meanings and cognate expressions shall bear
corresponding meanings:
2.2.1 "ADVANCE DATE" means the "Advance Date" as defined in the First Loan
Agreement;
2.2.2 "AGREEMENT" means this Flow of Funds Agreement;
2.2.3 "AHJIC" means ARMGold Harmony Joint Investment Company (Proprietary)
Limited (Registration No. 2002/032163/07), a private company duly
incorporated according to the company laws of South Africa;
2.2.4 "ARM" means African Rainbow Minerals Limited (Registration No.
1933/004580/06), a public company duly incorporated according to the
company laws of South Africa;
2.2.5 "ARM SHARES PURCHASE PRICE" means the purchase price payable by the Trust
to AHJIC for the purchase of the ARM Shares pursuant to the Sale of Shares
Agreement, being an amount of R829 827 460 (Eight Hundred and Twenty-nine
Million Eight Hundred and Twenty-seven Thousand Four Hundred and Sixty
Rand);
2.2.6 "BUSINESS DAY" means any day other than a Saturday, Sunday or an official
public holiday in South Africa in accordance with the Public ▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇;
Page 3.
2.2.7 "DENEYS ▇▇▇▇▇" means Deneys ▇▇▇▇▇ Inc. (Registration No. 1984/003385/21);
2.2.8 "DENEYS ▇▇▇▇▇ TRUST ACCOUNT" means the trust bank account of Deneys ▇▇▇▇▇
details of which are listed in Schedule 1 hereto;
2.2.9 "DENEYS ▇▇▇▇▇ TRUSTEES" means Deneys ▇▇▇▇▇ Trustees (Proprietary) Limited
(Registration No. 1993/003017/07), a private company duly incorporated
according to the company laws of South Africa;
2.2.10 "FIRST LOAN AGREEMENT" means the written agreement entitled "First Loan
Agreement'" concluded or to be concluded between Nedbank and the Trust on
or about the Signature Date;
2.2.11 "FIRST LOAN AMOUNT" means the principal amount of R480 400 000 (Four
Hundred and Eighty Million Four Hundred Thousand Rand), to be lent and
advanced by Nedbank to the Trust pursuant to the First Loan Agreement,
which principal amount includes the funds required by the Trust to pay the
Trust Transaction Cost Portion;
2.2.12 "HARMONY" means Harmony Gold Mining Company Limited (Registration No.
1950/038232/06), a public company duly incorporated according to the
company laws of South Africa;
2.2.13 "HARMONY LOAN AGREEMENT" means the written agreement entitled "Loan
Agreement" concluded between Nedbank and Harmony on 24 December 2004;
2.2.14 "HARMONY LOAN OUTSTANDINGS" means the aggregate of all amounts of
principal, accrued and unpaid interest and all and any other amounts due
and payable by Harmony to Nedbank under the Harmony Loan Agreement which:
Page 4.
2.2.14.1 as at 15 April 2005 is an amount equal to R401 555 591,23 (Four Hundred
and One Million Five Hundred and Fifty-five Thousand and Ninety-one Rand
and Twenty-three cents); and
2.2.14.2 as at 18 April 2005 will be an amount equal to R401 866 709,48 (Four
Hundred and One Million Eight Hundred and Sixty-six Thousand Seven Hundred
and Nine Rand and Forty-eight cents);
2.2.15 "HARMONY TRANSACTION COSTS PORTION" means 50% (fifty percent) of the
Transaction Costs, payable by Harmony, in the amount of R6 269 108 (Six
Million Two Hundred and Sixty-nine Thousand One Hundred and Eight Rand);
2.2.16 "HARMONY UNDERTAKING" means the written agreement entitled "Harmony
Undertaking" concluded or to be concluded amongst Harmony, Nedbank and
AHJIC on or about the Signature Date;
2.2.17 "NEDBANK" means Nedbank Limited (Registration No. 1951/000009/06) (acting
through its Nedbank Capital division), a registered bank and public company
duly incorporated according to the banking and company laws of South
Africa;
2.2.18 "PARTIES" means Nedbank, AHJIC, the Trust and Harmony and "PARTY" shall,
as the context requires, mean any one of them;
2.2.19 "SALE OF SHARES AGREEMENT" means the written agreement entitled "Sale of
Shares Agreement" concluded or to be concluded between Harmony, AHJIC and
the Borrower on or about the Signature Date;
2.2.20 "SECOND LOAN AGREEMENT" means the written agreement entitled "Second Loan
Agreement" concluded or to be concluded between Nedbank and the Trust on or
about the Signature Date;
Page 5.
2.2.21 "SECOND LOAN AMOUNT" means the principal amount of R356 149 124 (Three
Hundred and Fifty-six Million One Hundred and Forty-nine Thousand One
Hundred and Twenty-four Rand), to be lent and advanced by Nedbank to the
Trust pursuant to the Second Loan Agreement;
2.2.22 "SIGNATURE DATE" means the date of the signature of the Party last
signing this Agreement in time;
2.2.23 "TRANSACTION COSTS" means all costs, expenses and fees of and related to
the transactions contemplated in the Transaction Documents, including but
not limited to, arranging fees and uncertified securities tax, being an
amount of R12 538 216 (Twelve Million Five Hundred and Thirty-eight
Thousand Two Hundred and Sixteen Rand), payable by:
2.2.23.1 Harmony, in the case of the Harmony Transaction Cost Portion; and
2.2.23.2 the Trust, in the case of the Trust Transaction Cost Portion;
2.2.24 "TRANSACTION DOCUMENTS" means the "Transaction Documents" as defined in
the Sale of Shares Agreement;
2.2.25 "TRUST" means the trustees for the time being of an oral trust
established by oral agreement between ▇▇▇▇▇ ▇▇▇▇▇▇ (as founder) and
Nedbank, Harmony, ▇▇▇▇▇ ▇▇▇▇▇▇ and Deneys ▇▇▇▇▇ Trustees (each as trustees)
on 15 April 2005 known as the "ARM Broad-Based Empowerment Trust";
2.2.26 "TRUST TRANSACTION COSTS PORTION" means 50% (fifty percent) of the
Transaction Costs, payable by the Trust, in an amount of R6 269 108 (Six
Million Seven Hundred and Sixty-nine Thousand One Hundred and Eight Rand)
plus an additional amount of R452 556 (Four Hundred and Fifty-two Thousand
Five Hundred and Fifty-six Rand).
2.3 Any reference in this Agreement to:
Page 6.
2.3.1 a "clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
2.3.2 "law" shall be construed as any law (including common or customary law) or
statute, constitution, decree, judgment, treaty, regulation, directive,
bye-law, order or any other legislative measure of any government,
supranational, local government, statutory or regulatory body or court;
2.3.3 a "person" shall be construed as a reference to any person, firm, company,
trust, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing; and
2.3.4 a "schedule" shall, subject to any contrary indication, be construed as a
reference to a schedule hereof.
2.4 Unless inconsistent with the context or save where the contrary is
expressly indicated:
2.4.1 if any provision in a definition is a substantive provision conferring
rights or imposing obligations on any Party, notwithstanding that it
appears only in this interpretation clause, effect shall be given to it as
if it were a substantive provision of this Agreement;
2.4.2 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 Business Day;
2.4.3 in the event that the day for payment of any amount due in terms of this
Agreement should fall on a day which is not a Business Day, the relevant
day for payment shall be the next succeeding Business Day;
Page 7.
2.4.4 in the event that the day for performance of any obligation to be
performed in terms of this Agreement should fall on a day which is not a
Business Day, the relevant day for performance shall be the next succeeding
Business Day;
2.4.5 any reference in this Agreement to an enactment is to that enactment as at
the Signature Date and as amended or re-enacted from time to time;
2.4.6 any reference in this Agreement to this Agreement or any other agreement
or document shall be construed as a reference to this Agreement or, as the
case may be, such other agreement or document as the same may have been, or
may from time to time be, amended, varied, novated or supplemented; and
2.4.7 no provision of this Agreement constitutes a stipulation for the benefit
of any person who is not a Party to this Agreement.
2.5 Unless inconsistent with the context, an expression which denotes:
2.5.1 any one gender includes the other genders;
2.5.2 a natural person includes an artificial person and vice versa; and
2.5.3 the singular includes the plural and vice versa.
2.6 The schedules to this Agreement form an integral part hereof and words and
expressions defined in this Agreement shall bear, unless the context
otherwise requires, the same meaning in such schedules. To the extent that
there is any conflict between the schedules to this Agreement and the
provisions of this Agreement, the provisions of this Agreement shall
prevail.
2.7 Where any term is defined within the context of any particular clause in
this Agreement, the term so defined, unless it is clear from the clause in
question that the term so defined has limited application to the relevant
clause, shall bear the
Page 8.
same meaning as ascribed to it for all purposes in terms of this Agreement,
notwithstanding that that term has not been defined in this interpretation
clause.
2.8 The rule of construction that, in the event of ambiguity, the contract
shall be interpreted against the Party responsible for the drafting
thereof, shall not apply in the interpretation of this Agreement.
2.9 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.
2.10 This Agreement shall be binding on and enforceable by the estates, heirs,
executors, administrators, trustees, permitted assigns or liquidators of
the Parties as fully and effectually as if they had signed this Agreement
in the first instance and reference to any Party shall be deemed to include
such Party's estate, heirs, executors, administrators, trustees,
successors-in-title, permitted assigns or liquidators, as the case may be.
2.11 The use of any expression in this Agreement covering a process available
under South African law such as winding-up (without limitation eiusdem
generis) shall, if any of the Parties to this Agreement is subject to the
law of any other jurisdiction, be construed as including any equivalent or
analogous proceedings under the law of such other jurisdiction.
2.12 Where figures are referred to in numerals and in words, if there is any
conflict between the two, the words shall prevail.
3. RECORDAL
3.1 In terms of the Transaction Documents, the Parties are required, in various
capacities, to advance and transfer funds on certain dates.
Page 9.
3.2 The Parties wish to regulate the flow of funds on the relevant dates and
this Agreement sets out the manner and the order in which the funds will
flow.
4. FLOW OF FUNDS
4.1 Subject to the fulfilment or waiver of the suspensive conditions in the
applicable Transaction Documents, on the Advance Date:
4.1.1 Nedbank shall advance the First Loan Amount to the Trust;
4.1.2 Nedbank shall advance the Second Loan Amount to the Trust;
4.1.3 the Trust shall pay the ARM Shares Purchase Price to AHJIC;
4.1.4 AHJIC shall pay to Harmony, in part repayment of Harmony's shareholder
loan account, an amount equal to the ARM Share Purchase Price;
4.1.5 Harmony shall pay the Harmony Loan Outstandings to Nedbank; and
4.1.6 Harmony shall pay the Harmony Transaction Costs Portion into the Deneys
▇▇▇▇▇ Trust Account.
4.2 The provisions of clause 4.1 serve to record the respective Parties'
payment obligations under the Transaction Documents to which they are a
party. Notwithstanding the provisions of the relevant Transaction
Documents, the Parties hereby agree that the flow of funds referred to in
clauses 4.1.1, 4.1.2, 4.1.3, 4.1.4 and 4.1.5 shall practically be effected
in the following manner:
4.2.1 Nedbank shall, on the Advance Date, advance the aggregate of the First
Loan Amount and the Second Loan Amount, less an amount equal to the Trust
Transaction Costs Portion, directly to Harmony into the following bank
account:
Page 10.
Account Name : Harmony Gold Mining Company Limited - Treasury Account;
Bank : ABSA Bank Limited;
Account No. : 40 4873 7227;
Branch : Virginia;
Branch Code : 334635.
4.2.2 The portion of the First Loan Amount required by the Trust to fund the
Trust Transaction Costs Portion shall be advanced by Nedbank directly into
the Deneys ▇▇▇▇▇ Trust Account on the Advance Date.
4.2.3 Immediately upon receipt of the First Loan Amount and the Second Loan
Amount, less an amount equal to the Trust Transaction Costs Portion in
accordance with clause 4.2.1, Harmony shall repay the Harmony Loan
Outstandings to Nedbank by payment into the following bank account:
4.2.3.1 Bank : Nedbank Limited;
4.2.3.2 Account Name : Nedbank Capital - Project Administration;
4.2.3.3 Branch : ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
4.2.3.4 Branch Code : 19-79-05;
4.2.3.5 Account Number : 1979 373 078.
4.2.4 Accordingly, the Trust acknowledges that the advance of the First Loan
Amount and Second Loan Amount in accordance with the provisions of clause
4.1 and this clause 4.2 shall constitute a valid and proper discharge by
Page 11.
Nedbank of its obligation to lend and advance the First Loan Amount and
Second Loan Amount to the Trust in terms of the First Loan Agreement and
Second Loan Agreement respectively.
4.2.5 Similarly AHJIC acknowledges and agrees that the payments referred to in
this clause 4.2 have been made by and on its behalf and that it has
accordingly received the benefit of the ARM Shares Purchase Price.
4.3 Nedbank has instructed Deneys ▇▇▇▇▇ to hold the Harmony Transaction Costs
Portion and the Trust Transaction Costs Portion in trust in an interest
bearing account for the benefit of the Trust until such time as Nedbank
instructs Deneys ▇▇▇▇▇ to pay out such amounts to such persons as
instructed. The signature of this Agreement shall constitute the authority
contemplated in terms of Section 78(2A) of the ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇.
5. IRREVOCABLE UNDERTAKINGS
5.1 The provisions of clause 4 constitute irrevocable payment instructions by
the relevant Parties to effect the flow of funds as set out in clause 4.
5.2 The instruction by the Parties in respect of the flow of funds set out in
this Agreement are irrevocable and shall not be capable of being terminated
by any Party.
5.3 On completion of the flow of funds described in clause 4, the Parties
hereby agree that the disbursements, payments and repayments contemplated
in the underlying obligations in respect of such flow of funds will have
been made and the obligations of each of the relevant Parties with respect
to such disbursements, payment and repayments will have been fulfilled and
discharged.
6. SAVINGS
6.1 Save to the extent expressly set out in this Agreement the terms of the
Transanction Documents shall remain unaltered and of full force and effect.
Page 12.
6.2 In the event of any conflict between the provisions of this Agreement and
the provisions of the Transaction Documents, the provisions of this
Agreement shall prevail.
7. BREACH
If any Party commits a breach or fails in the observance of any of the
terms and conditions hereof and fails to remedy such default or breach
within 10 (ten) Business Days of delivery of written notice requiring it so
to do, then the non-defaulting Party shall be entitled to cancel this
Agreement against the defaulting Party or to claim immediate payment and/or
performance by the defaulting Party of all of the defaulting Party's
obligations whether or not the due date for payment and/or performance
shall have arrived, in either event without prejudice to the non-defaulting
Party's rights to claim damages. The aforegoing is without prejudice to
such other rights as the non-defaulting Party may have at law; provided
always that, notwithstanding anything to the contrary contained in this
Agreement, the non-defaulting Party shall not be entitled to cancel this
Agreement for any breach by the defaulting Party unless such breach is a
material breach going to the root of this Agreement and is incapable of
being remedied by a payment in money, or if it is capable of being remedied
by a payment in money, the defaulting Party fails to pay the amount
concerned within 10 (ten) Business Days after such amount has been
determined.
8. CONFIDENTIALITY
8.1 None of the Parties shall issue any press release or any other public
document or make any public statement, in each case relating to or
connected with or arising out of the agreement or the matters contained
therein (save for any such release, announcement or document which is
required to be given, made or published by law or under the rules and
regulations of any stock exchange) without obtaining the prior approval of
the other Parties to the contents therof and the manner of its presentation
and publication; provided that such approval shall not be unreasonably
withheld or delayed.
Page 13.
8.2 In the case of a release, announcement or document which is required to be
given, made or published by law or under the rules and regulations of any
stock exchange, the Party liable so to give, make or publish the same shall
give to the other Parties as much advance warning thereof as is reasonable
in the circumstances together with drafts or a copy thereof as soon as it
is at liberty so to do.
8.3 Every Party shall at all times keep confidential (and ensure that its
employees and agents shall keep confidential) any information which it has
acquired or may acquire in relation to any of the other Parties or to any
matter arising from or in connection with this Agreement, save for any
information:
8.3.1 which is publicly available or becomes publicly available through no act
or default of the first mentioned Party; or
8.3.2 which was in the possession of that Party prior to its disclosure
otherwise than as a result of any breach by a Party of any obligation of
confidentiality owed to the other Parties whether pursuant to this
Agreement or otherwise; or
8.3.3 which is disclosed to that Party by a third party which did not acquire
the information under an obligation of confidentiality; or
8.3.4 which is independently acquired by that Party as a result of work carried
out by a person to whom no disclosure of such information has been made,
and shall not use or disclose such information except;
8.3.5 with the consent of the other Parties; or
8.3.6 in accordance with an order of court of competent jurisdiction; or
8.3.7 in order to comply with any law or governmental regulations by which the
Party concerned is bound; or
Page 14.
8.3.8 where necessary for the purpose of enforcing its rights under this
Agreement.
8.4 The provisions of this clause 7 shall survive any termination of this
Agreement.
9. NOTICES AND DOMICILIA
9.1 NOTICES
9.1.1 Each Party chooses the address set out opposite its name below as its
address to which any written notice in connection with this
Agreement may be addressed.
9.1.1.1 AHJIC:
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇
Avenue
RANDFONTEIN
Telefax No. : (011)411 2398
Attention : The Company Secretary
9.1.1.2 HARMONY:
Block 27
Randfontein Office Park
Corner Main Reef Road and ▇▇▇▇
Avenue
RANDFONTEIN
Telefax No. : (011)411 2398
Attention : The Company Secretary
9.1.1.3 NEDBANK:
▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Page 15.
Telefax No. : (011) 294 8421
Attention : Head of Specialised Finance
9.1.1.4 TRUST: c/o African Rainbow Minerals
Limited
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Telefax No. : (011)883 5609
Attention : The Company Secretary
9.1.2 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 transmitted to its telefax number
set out opposite its name above.
9.1.3 Any Party may by written notice to the other Parties change its chosen
address and/or telefax number for the purposes of clause 9.1.1 to any other
address(es) and/or telefax number, provided that the change shall become
effective on the 14th (fourteenth) day after the receipt of the notice by
the addressee.
9.1.4 Any notice given in terms of this Agreement shall:
9.1.4.1 if delivered by hand be deemed to have been received by the addressee on
the date of delivery;
9.1.4.2 if transmitted by facsimile be deemed to have been received by the
addressee on the 1st (first) Business Day after the date of transmission,
unless the contrary is proved.
9.1.5 Notwithstanding anything to the contrary herein contained, a written
notice or communication actually received by a Party shall be an adequate
written
Page 16.
notice or communication to it, notwithstanding that it was not sent to or
delivered at its chosen address and/or telefax number.
9.2 DOMICILIA
9.2.1 Each of the Parties chooses its physical address referred to in clause
9.1.1 above as its domicilium citandi et executandi at which documents in
legal proceedings in connection with this Agreement may be served.
9.2.2 Any Party may by written notice to the other Parties change its domicilium
from time to time to another address, not being a post office box or a
poste restante, in South Africa; provided that any such change shall only
be effective on the 14th (fourteenth) day after deemed receipt of the
notice by the other Parties pursuant to clause 9.1.4.
10. GOVERNING LAW
The entire provisions of this Agreement shall be governed by and construed
in accordance with the laws of South Africa.
11. JURISDICTION
The Parties hereby irrevocably and unconditionally consent to the
non-exclusive jurisdiction of the Witwatersrand Local Division of the High
Court of South Africa (or any successor to that division) in regard to all
matters arising from this Agreement.
12. SEVERABILITY
Each provision in this Agreement is severable from all others,
notwithstanding the manner in which they may be linked together or grouped
grammatically, and if in terms of any judgment or order, any provision,
phrase, sentence, paragraph or clause is found to be defective or
unenforceable for any reason, the remaining provisions, phrases, sentences,
paragraphs and clauses shall nevertheless continue to be of full force. In
Page 17.
particular, and without limiting the generality of the aforegoing, the
Parties acknowledge their intention to continue to be bound by this
Agreement notwithstanding that any provision may be found to be
unenforceable or void or voidable, in which event the provision concerned
shall be severed from the other provisions, each of which shall continue to
be of full force.
13. GENERAL
13.1 This document constitutes the sole record of the Agreement between the
Parties in regard to the subject matter thereof.
13.2 None of the Parties shall be bound by any express or implied term,
representation, warranty, promise or the like, not recorded herein.
13.3 No addition to, variation or consensual cancellation of this Agreement and
no extension of time, waiver or relaxation or suspension of any of the
provisions or terms of this Agreement shall be of any force or effect
unless in writing and signed by or on behalf of all the Parties.
13.4 No latitude, extension of time or other indulgence which may be given or
allowed by any Party to the other Parties in respect of the performance of
any obligation hereunder or enforcement of any right arising from this
Agreement and no single or partial exercise of any right by any Party shall
under any circumstances be construed to be an implied consent by such Party
or operate as a waiver or a novation of, or otherwise affect any of that
Party's rights in terms of or arising from this Agreement or estop such
Party from enforcing, at any time and without notice, strict and punctual
compliance with each and every provision or term hereof.
13.5 The Parties undertake at all times to do all such things, to perform all
such acts and to take all such steps and to procure the doing of all such
things, the performance of all such actions and the taking of all such
steps as may be open to them and
Page 18.
necessary for or incidental to the putting into effect or maintenance of
the terms, conditions and import of this Agreement.
13.6 None of the Parties shall be entitled to cede or delegate any of its rights
or obligations under this Agreement without the prior written consent of
the other Parties, which consent may not unreasonably be withheld or
delayed.
14. COSTS
14.1 The Trust and Harmony shall bear the costs of and incidental to the
negotiation, preparation and execution of this Agreement and the
implementation of the transactions contemplated herein in accordance with
the terms of the First Loan Agreement and this Agreement.
14.2 All legal costs incurred by any Party in consequence of any default of the
provisions of this Agreement by any of the other Parties shall be payable
on demand by the defaulting Party on the scale as between attorney and own
client and shall include collection charges, the costs incurred by the
non-defaulting Party in endeavouring to enforce such rights prior to the
institution of legal proceedings and the costs incurred in connection with
the satisfaction or enforcement of any judgment awarded in favour of the
non-defaulting Party in relation to its rights in terms of or arising out
of this Agreement.
Page 19.
SIGNED at SANDTON on this the 15th day of APRIL 2005.
For and on behalf of
NEDBANK LIMITED (ACTING THROUGH ITS
NEDBANK CAPITAL DIVISION)
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name : ▇▇▇▇▇ ▇▇▇▇▇
Capacity: AUTHORISED SIGNATORY
Who warrants his authority hereto
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Tyler
Capacity: AUTHORISED SIGNATORY
Who warrants his authority hereto
SIGNED at SANDTON on this the 15th day of APRIL 2005.
For and on behalf of
HARMONY GOLD MINING COMPANY LIMITED
/s/ Nomfundo Qangule
----------------------------------------
Name: Nomfundo Qangule
Capacity: Director
Who warrants her authority hereto
SIGNED at SANDTON on this the 15th day of APRIL 2005.
For and on behalf of
ARMGOLD HARMONY JOINT INVESTMENT
COMPANY (PROPRIETARY) LIMITED
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Capacity: Director
Who warrants his authority hereto
Page 20.
SIGNED at SANDTON on this the 15th day of APRIL 2005.
For and on behalf of
NEDBANK LIMITED (ACTING THROUGH ITS
NEDBANK CAPITAL DIVISION)(AS TRUSTEE OF
THE TRUST)
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Capacity: Authorised Signatory
Who warrants his authority hereto
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Capacity: Authorised Signatory
Who warrants his authority hereto
SIGNED at SANDTON on this the 15th day of APRIL 2005.
For and on behalf of
HARMONY GOLD MINING COMPANY
LIMITED (AS TRUSTEE OF THE TRUST)
/s/ Nomfundo Qangule
----------------------------------------
Name: Nomfundo Qangule
Capacity: Director
Who warrants her authority hereto
SIGNED at SANDTON on this the 15th day of APRIL 2005.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ (AS TRUSTEE OF THE TRUST)
Page 21.
SIGNED at SANDTON on this the 15th day of APRIL 2005.
For and on behalf of
DENEYS ▇▇▇▇▇ TRUSTEES
(PROPRIETARY) LIMITED (AS TRUSTEE OF THE
TRUST)
/s/ Lionel ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: Lionel ▇▇▇▇▇▇▇ ▇▇▇▇▇
Capacity: Authorised Signatory
Who warrants his authority hereto
Page 22.
SCHEDULE 1
DENEYS ▇▇▇▇▇ TRUST ACCOUNT
Account Name : Deneys ▇▇▇▇▇ Inc. Trust Account
Account No : 505 101 009 81
Bank : First National Bank
Branch : ▇▇▇▇▇▇ Valley
Branch Code : 260 950
Reference : NED1059