HARMONY OPTION AGREEMENT
Between
HARMONY GOLD MINING COMPANY LIMITED
and
NEDBANK LIMITED
(ACTING THROUGH ITS NEDBANK CAPITAL DIVISION)
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" HARMONY OPTION AGREEMENT BETWEEN HARMONY GOLD MINING COMPANY LIMITED AND
NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CAPITAL DIVISION), 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
HARMONY OPTION AGREEMENT
Between
HARMONY GOLD MINING COMPANY LIMITED
and
NEDBANK LIMITED
(ACTING THROUGH ITS NEDBANK CAPITAL DIVISION)
DENEYS | RE1TZ
ATTORNEYS
TABLE OF CONTENTS
1. PARTIES................................................................ 1
2. DEFINITIONS AND INTERPRETATION......................................... 1
3. INTRODUCTION........................................................... 10
4. SUSPENSIVE CONDITION................................................... 11
5. PUT OPTION............................................................. 12
6. CALL OPTION............................................................ 14
7. NOMINATION............................................................. 17
8. REPRESENTATIONS AND WARRANTIES......................................... 18
9. DEFAULT INTEREST....................................................... 20
10. BREACH................................................................. 20
11. CESSION................................................................ 20
12. NOTICES AND DOMICILIA.................................................. 21
13. GOVERNING LAW.......................................................... 23
14. JURISDICTION........................................................... 23
15. SEVERABILITY........................................................... 23
16. GENERAL................................................................ 23
17. COSTS.................................................................. 25
18. COUNTERPARTS........................................................... 25
HARMONY OPTION AGREEMENT
1. PARTIES
1.1 The Parties to this Agreement are:
1.1.1 HARMONY GOLD MINING COMPANY LIMITED; and
1.1.2 NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CAPITAL DIVISION).
1.2 The Parties agree as set out below.
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 "ACCELERATION NOTICE" means the written notice delivered by Nedbank to the
Trust in accordance with the provisions of clause 18 of the First Loan
Agreement declaring the First Facility Outstandings to be immediately due
and payable by the Trust;
2.2.2 "AGREEMENT" means this Harmony Option Agreement;
2.2.3 "AHJIC" means ARMGold Harmony Joint Investment Company (Proprietary)
Limited (Registration No. 2002/032163/07), a private
Page 2.
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" means 28 614 740 (twenty-eight million six hundred and
fourteen thousand seven hundred and forty) ordinary par value shares of
R0,05 (five cents) each in the issued share capital of ARM listed on the
JSE and constituting 14% (fourteen percent) of the issued share capital of
ARM as at the Signature Date to be purchased by the Trust from AHJIC
pursuant to the Sale of Shares Agreement;
2.2.6 "ARREAR INTEREST RATE" means the greater of:
2.2.6.1 the Prime Rate plus 2% (two percent); and
2.2.6.2 the Repo Rate plus 2% (two percent);
2.2.7 "BUSINESS DAY" means any day other than a Saturday, Sunday or an official
public holiday in South Africa in accordance with the Public ▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇;
2.2.8 "CALL EXERCISE DATE" means the date on which Harmony notifies Nedbank in
writing of the exercise of the Call Option in accordance with the
provisions of clause 6;
2.2.9 "CALL OPTION" means the irrevocable call option which Harmony is granted
by Nedbank entitling Harmony to purchase the First Facility Rights from
Nedbank on the terms and conditions of this
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Agreement;
2.2.10 "CLOSING DATE" means the 5th (fifth) Business Day after the Call Exercise
Date or the Put Exercise Date, as the case may be;
2.2.11 "EFFECTIVE DATE" shall bear the meaning ascribed to that term in the Sale
of Shares Agreement;
2.2.12 "EVENT OF DEFAULT" means an "Event of Default" as defined in the First
Loan Agreement;
2.2.13 "FIRST FACILITY DISCHARGE DATE" means the date upon which the First
Facility Outstandings have been fully and finally repaid and discharged;
2.2.14 "FIRST FACILITY OUTSTANDINGS" means, at any time and from time to time
and in respect of the First Loan Agreement, the aggregate of all amounts of
principal, accrued and unpaid interest and all and any other amounts due
and payable to Nedbank under the First Loan Agreement;
2.2.15 "FIRST FACILITY EXCLUDED OBLIGATIONS" means, in respect of the First Loan
Documents, all of Nedbank's obligations from time to time arising under the
First Loan Documents solely as a result of Nedbank's gross negligence or
wilful misconduct;
2.2.16 "FIRST FACILITY RIGHTS" means an undivided interest in the aggregate of
Nedbank's rights, title and interest:
2.2.16.1 under the First Loan Documents; and
2.2.16.2 to the First Facility Outstandings;
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2.2.17 "FIRST LOAN AMOUNT" means the principal amount of R480 400 000 (Four
Hundred and Eighty Million Four Hundred Thousand Rand);
2.2.18 "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;
2.2.19 "FIRST LOAN DOCUMENTS" means:
2.2.19.1 the First Loan Agreement; and
2.2.19.2 the Second Ranking Cession and Pledge;
2.2.20 "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;
2.2.21 "HARMONY STEP-IN AMOUNT" means a principal amount equal to the First
Facility Outstandings on the Closing Date, which amount will be certified
in writing by any director or manager of Nedbank, whose appointment as such
shall not be necessary to prove, which certificate shall serve as prima
facie proof of its content;
2.2.22 "JSE" means the JSE Securities Exchange, South Africa;
2.2.23 "NEDBANK" means Nedbank Limited (Registration No. 1951/000009/06) (acting
through its Nedbank Capital division), its successors in title, assignees
and transferees, a registered bank and public company duly incorporated
according to the banking and company laws of South Africa;
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2.2.24 "OPTION PERIOD" means the period commencing on the Effective Date and
ending on the First Facility Discharge Date (both days inclusive);
2.2.25 "PARTIES" means:
2.2.25.1 Nedbank; and
2.2.25.2 Harmony,
and "PARTY" means, as the context requires, either of them;
2.2.26 "PRIME RATE" means the prime overdraft rate of interest from time to time
publicly quoted as such by Nedbank, calculated on a 365 (three hundred and
sixty-five) day factor, irrespective of whether or not the year is a leap
year, nominal annual compounded monthly in arrear, as certified by any
manager of Nedbank, whose appointment as such shall not be necessary to
prove, which certificate shall serve as prima facie proof of its content;
2.2.27 "PUT EXERCISE DATE" means the date on which Nedbank notifies Harmony in
writing of the exercise of the Put Option in accordance with the provisions
of clause 5;
2.2.28 "PUT OPTION" means the irrevocable put option which Nedbank is granted by
Harmony to entitle Nedbank to sell the First Facility Rights to Harmony on
the Closing Date on the terms and conditions of this Agreement;
2.2.29 "PUT OPTION EVENT" means:
2.2.29.1 the occurrence of any Event of Default; and
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2.2.29.2 the delivery by Nedbank to the Trust of an Acceleration Notice;
2.2.30 "REPO RATE" means on any particular day, the repurchase tender rate on
that day quoted by the South African Reserve Bank;
2.2.31 "SALE OF SHARES AGREEMENT" means the written agreement entitled "Sale of
Shares Agreement" concluded or to be concluded between Harmony, AHJIC and
the Trust on or about the Signature Date;
2.2.32 "SECOND RANKING CESSION AND PLEDGE" means the written reversionary
cession and pledge in security entitled "Second Ranking Cession and Pledge
" by the Trust in favour of Nedbank dated on or about the Signature Date as
security for its obligations under the First Loan Agreement;
2.2.33 "SIGNATURE DATE" means the date of the signature of the Party last
signing this Agreement in time;
2.2.34 "SOUTH AFRICA" means the Republic of South Africa as constituted from
time to time;
2.2.35 "SUSPENSIVE CONDITION" means the suspensive condition stipulated in
clause 4.1;
2.2.36 "TRANSACTION DOCUMENTS" means the "Transaction Documents" as defined in
the First Loan Agreement;
2.2.37 "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
Page 7.
(Proprietary) Limited (each as trustees) on 15 April 2005 and known as the
"ARM Broad-Based Empowerment Trust".
2.3 Any reference in this Agreement to:
2.3.1 an "affiliate" means, in relation to any person, a subsidiary of that
person or a holding company of that person or any other subsidiary of that
holding company;
2.3.2 a "clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
2.3.3 a "holding company" shall be construed in accordance with the Companies
Act, 1973;
2.3.4 "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;
2.3.5 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
2.3.6 a "subsidiary" shall be construed in accordance with the Companies Act,
1973.
2.4 Unless inconsistent with the context or save where the contrary is
expressly indicated:
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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;
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.
Page 9.
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 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 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.
2.7 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.
2.8 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.
2.9 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.
Page 10.
2.10 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.
2.11 Where figures are referred to in numerals and in words, if there is any
conflict between the two, the words shall prevail.
3. INTRODUCTION
3.1 Nedbank has agreed to lend the First Loan Amount to the Trust in terms of
the First Loan Agreement in order to partially fund:
3.1.1 the purchase by the Trust of the ARM Shares in accordance with the terms
of the Sale of Shares Agreement; and
3.1.2 the duties, costs and expenses incurred in connection with the purchase by
the Trust of the ARM Shares and in connection with the implementation of
the transactions contemplated by the Transaction Documents.
3.2 It is a condition of the loan of the First Loan Amount by Nedbank in terms
of the First Loan Agreement that the Put Option be granted to Nedbank by
Harmony.
3.3 Harmony is willing to grant the Put Option to Nedbank subject to being
granted the Call Option by Nedbank.
3.4 The Parties wish to enter into this Agreement to record the terms and
conditions of the Call Option and the Put Option and matters incidental or
relating thereto.
Page 11.
4. SUSPENSIVE CONDITION
4.1 This entire Agreement, save for the provisions of this clause 4 and of
clauses 1, 2, 10, 11, 12, 13, 14, 15, 16, 17 and 18 which shall be of
immediate force and effect, is subject to the fulfilment of the Suspensive
Condition on or before 22 April 2005, or such other date as may be agreed
in writing between the Parties on or before that date, that the Sale of
Shares Agreement is signed by the parties thereto and becomes unconditional
in accordance with its terms by the fulfilment or (to the extent capable of
waiver) waiver of any suspensive conditions provided for therein (other
than any suspensive condition which requires that this Agreement is signed
and becomes unconditional).
4.2 The Parties shall, where it is within their respective power to do so, use
their respective reasonable commercial endeavours to procure the fulfilment
of the Suspensive Condition as soon as reasonably possible after the
Signature Date.
4.3 The Suspensive Condition is not capable of waiver.
4.4 In the event that the Suspensive Condition is not fulfilled on or before 22
April 2005, or such other date as may be agreed in writing between the
Parties on or before that date, then this Agreement, save for the
provisions of this clause 4 and of clauses 1, 2, 10, 11, 12, 13, 14, 15,
16, 17 and 18 which shall remain of full force and effect, shall never
become of any force or effect and no Party shall have any claim against any
other Party for anything done hereunder or arising herefrom, save as a
result of a breach of any of the provisions of this clause 4 by any Party,
and the Parties shall be restored to the status quo ante.
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5. PUT OPTION
5.1 With effect from, and inclusive of, the Effective Date, Harmony hereby
grants to Nedbank an irrevocable put option to require Harmony to purchase
the First Facility Rights at any time upon the occurrence of the Put Option
Event during the Option Period, in which event Harmony will be obliged to
purchase the First Facility Rights from Nedbank on the Closing Date.
5.2 No consideration is payable by Nedbank to Harmony for the granting of the
Put Option.
5.3 The Put Option shall be exercisable by Nedbank by addressing a notice in
writing to that effect to Harmony.
5.4 Should the Put Option be properly exercised in accordance with the
provisions of clause 5.3, then:
5.4.1 Harmony shall pay the Harmony Step-in Amount in cash without deduction or
set-off directly to Nedbank on the Closing Date by electronic transfer into
the following bank account:
5.4.1.1 Bank: Nedbank Limited;
5.4.1.2 Account Name: Nedbank Capital - Project Administration;
5.4.1.3 Branch: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
5.4.1.4 Branch Code: 19-79-05; and
5.4.1.5 Account Number: 1979 373 078;
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5.4.2 Nedbank shall, and hereby does, against payment of the Harmony Step-in
Amount in accordance with clause 5.4.1, on the Closing Date:
5.4.2.1 cede, assign and transfer the First Facility Rights to Harmony; and
5.4.2.2 delegate to Harmony all of Nedbank's obligations under the First Loan
Documents, save for the First Facility Excluded Obligations, to the extent
related to the First Facility Rights,
without recourse to Nedbank;
5.4.3 Nedbank shall, against payment of the Harmony Step-in Amount in accordance
with clause 5.4.1, on the Closing Date deliver the duly signed original
First Loan Documents or notarially certified copies thereof to Harmony;
5.4.4 Harmony hereby, with effect from the Closing Date, accepts:
5.4.4.1 the cession, assignment and transfer of the First Facility Rights to
Harmony pursuant to clause 5.4.2.1; and
5.4.4.2 the delegation to Harmony of all of Nedbank's obligations under the
First Loan Documents, save for the First Facility Excluded Obligations, to
the extent related to the First Facility Rights pursuant to clause 5.4.2.2,
which obligations Harmony hereby assumes,
without recourse to Nedbank.
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5.5 After the Closing Date, if Nedbank receives any amount in respect of the
First Facility Rights then it shall promptly pay that amount to Harmony.
5.6 All reasonable costs of the cession, assignment and transfer of the First
Facility Rights shall be borne and paid by Harmony.
5.7 It is specifically agreed that it shall not be a defence in favour of
Harmony that the Trust has been sequestrated (whether provisionally or
finally) or is insolvent or is under judicial management (or any equivalent
thereof) or has not been validly or lawfully established or that any
trustee thereof has not been validly or lawfully appointed or is not
entitled to bind the Trust and notwithstanding any of the aforegoing
Harmony shall be obliged to pay the Harmony Step-in Amount to Nedbank in
accordance with the provisions of this clause 5 upon exercise of the Put
Option by Nedbank.
5.8 Notwithstanding anything to the contrary contained in this Agreement, the
Put Option shall lapse and cease to be of any force or effect if:
5.8.1 the Call Option is validly exercised by Harmony; and
5.8.2 Harmony shall have paid the Harmony Step-in Amount to Nedbank pursuant to
the exercise of the Call Option, it being recorded for the sake of clarity,
that if the Call Option is validly exercised by Harmony but the Harmony
Step-in Amount has not yet been paid to, and received by, Nedbank, Nedbank
shall be entitled to exercise the Put Option in accordance with the
provisions of this Agreement, and in which case the Put Option shall
supersede the Call Option.
6. CALL OPTION
6.1 With effect from, and inclusive of, the Effective Date, Nedbank hereby
grants to Harmony an irrevocable call option entitling Harmony, at any
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time during the Option Period to purchase the First Facility Rights
following the exercise of the Call Option, in which event Nedbank will be
obliged to sell the First Facility Rights to Harmony on the Closing Date.
6.2 No consideration is payable by Harmony to Nedbank for the granting of the
Call Option.
6.3 The Call Option shall be exercisable by Harmony by addressing a notice in
writing to that effect to Nedbank.
6.4 Should the Call Option be properly exercised in accordance with the
provisions of clause 6.3, then:
6.4.1 Harmony shall pay the Harmony Step-in Amount in cash to Nedbank without
deduction or set-off directly to Nedbank on the Closing Date by electronic
transfer into the following bank account:
6.4.1.1 Bank: Nedbank Limited;
6.4.1.2 Account Name: Nedbank Capital - Project Administration;
6.4.1.3 Branch: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇;
6.4.1.4 Branch Code: 19-79-05; and
6.4.1.5 Account Number: 1979 373 078;
6.4.2 Nedbank shall, and hereby does, against payment of the Harmony Step-in
Amount in accordance with clause 6.4.1, on the Closing Date:
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6.4.2.1 cede, assign and transfer the First Facility Rights to Harmony; and
6.4.2.2 delegate to Harmony all of Nedbank's obligations under the First Loan
Documents, save for the First Facility Excluded Obligations, to the extent
related to the First Facility Rights,
without recourse to Nedbank;
6.4.3 Nedbank shall, against payment of the Harmony Step-in Amount in accordance
with clause 6.4.1, on the Closing Date deliver the duly signed original
First Loan Documents, or notarially certified copies thereof to Harmony;
6.4.4 Harmony hereby, with effect from the Closing Date, accepts:
6.4.4.1 the cession, assignment and transfer of the First Facility Rights to
Harmony pursuant to clause 6.4.2.1; and
6.4.4.2 the delegation to Harmony of all of Nedbank's obligations under the
First Loan Documents, save for the First Facility Excluded Obligations, to
the extent related to the First Facility Rights pursuant to clause 6.4.2.2,
which obligations Harmony hereby assumes,
without recourse to Nedbank.
6.5 After the Closing Date, if Nedbank receives any amount in respect of the
First Facility Rights then it shall promptly pay that amount to Harmony.
6.6 All reasonable costs of the cession, assignment and transfer of the First
Facility Rights shall be borne by Harmony.
Page 17.
6.7 It is Specifically agreed that it shall not be a defence in favour of
Harmony that the Trust has been sequestrated (whether provisionally or
finally) or is insolvent or is under judicial management (or any equivalent
thereof) and notwithstanding any of the aforegoing, Harmony shall be
obliged to pay the Harmony Step-in Amount to Nedbank in accordance with the
provisions of this clause 6 upon exercise of the Call Option by Harmony.
6.8 Notwithstanding anything to the contrary contained in this Agreement, the
Call Option shall lapse and cease to be of any force or effect if:
6.8.1 the Put Option is validly exercised by Nedbank; and
6.8.2 Harmony shall have paid the Harmony Step-in Amount to Nedbank pursuant to
the exercise of the Put Option.
7. NOMINATION
Harmony may nominate a third party optionee (the "NOMINATED OPTIONEE") to
perform Harmony's obligations following the exercise of the Call Option or
the Put Option, as the case may be, under this Agreement as follows:
7.1 the Nominated Optionee need not be in existence at the time this Agreement
is signed but must be in existence at the time of the nomination;
7.2 both the nomination and the Nominated Optionee's acceptance of the
nomination must be in writing and must be delivered to Nedbank by no later
than the Call Exercise Date or 1 (one) Business Day after the Put Exercise
Date, as the case may be;
7.3 if a nomination and an acceptance are duly delivered as set out in clause
7.2, Harmony's rights and obligations in terms of this Agreement ▇▇▇▇
▇▇▇▇ 18.
automatically and simultaneously be deemed to be assigned to the Nominated
Optionee;
7.4 Harmony's right to nominate a third party as optionee is conditional on
Harmony not being in breach of any obligation under this Agreement;
7.5 Harmony is hereby bound as surety and co-principal debtor for the Nominated
Optionee's obligations to Nedbank arising out of this Agreement and Harmony
hereby waives the benefits of excussion and division, the full meaning and
effect of which Harmony declares that it understands;
7.6 the suretyship in clause 7.5 shall remain of full force and effect until
all of the Nominated Optionee's obligations to Nedbank have been fully and
finally paid and performed notwithstanding:
7.6.1 any indulgence, concession, lenience or extension of time which may be
shown or given by Nedbank to the Nominated Optionee; or
7.6.2 the failure to acquire or the acquisition or release by Nedbank of any
surety or other security for the Nominated Optionee's obligations in terms
of this Agreement.
8. REPRESENTATIONS AND WARRANTIES
8.1 Each Party hereby represents and warrants in favour of the other Party that
8.1.1 it is a company duly organised and existing under the laws of South Africa
with the power and authority to enter into and to exercise its rights and
perform its obligations under this Agreement;
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8.1.2 it has procured the taking of all necessary corporate and other action to
authorise the execution and performance of this Agreement;
8.1.3 this Agreement is legal and binding on, and enforceable against, it in
accordance with its terms;
8.1.4 the provisions of this Agreement are not in conflict with, and will not
constitute a breach of the provisions of any other agreement or undertaking
which is binding on it; and
8.1.5 no litigation, arbitration or administrative proceedings which may have a
material adverse affect on its ability to perform its obligations under
this Agreement are presently current or pending or, to its knowledge,
threatened against it.
8.2 Each of the representations and warranties given by each Party to the other
Party in terms of clause 8.1 shall:
8.2.1 prima facie be deemed to be a representation of fact inducing the other
Party to enter into this Agreement;
8.2.2 be presumed to be material unless the contrary is proved;
8.2.3 insofar as any of the warranties is promissory or relates to a future
event, be deemed to have been given as at the due date for fulfilment of
the promise or for the happening of the event, as the case may be; and
8.2.4 be a separate warranty and in no way be limited or restricted by reference
to or inference from the terms of any other warranty.
Page 20.
9. DEFAULT INTEREST
Interest calculated at the Arrear Interest Rate shall accrue on the
outstanding balance of all amounts due and payable but unpaid by Harmony
from time to time in terms of this Agreement. Such interest shall be
calculated on a daily basis from the due date of each such overdue amount
to date of actual payment thereof (both before and after judgment (if
any)) and shall be compounded monthly in arrears and shall be paid by
Harmony on demand.
10. BREACH
The Parties agree that the cancellation of this Agreement in the event of a
breach would be an inappropriate and insufficient remedy and that
irreparable damage would occur if the provisions of this Agreement were not
complied with. It is accordingly agreed that, in the event of a breach
which is not remedied by the defaulting Party within 3 (three) Business
Days after the date of written notice calling upon it to do so, the
aggrieved Party shall be entitled (without prejudice to any other rights
which it may have in law save for the right to cancel this Agreement) to an
order for specific performance and to recover any damages which it may have
suffered.
11. CESSION
11.1 Nedbank shall be entitled to cede any of its rights and/or transfer the
whole or any part of its benefit under this Agreement and/or delegate any
of its obligations under this Agreement without the consent of Harmony to
any person to whom all or a corresponding part of its rights, benefits or
obligations under First Loan Agreement are ceded, assigned, delegated or
transferred in accordance with the terms of the First Loan Agreement.
Page 21.
11.2 To the extent that any such cession, transfer or delegation results in a
splitting of claims against Harmony, Harmony hereby consents to such
splitting of claims.
12. NOTICES AND DOMICILIA
12.1 NOTICES
12.1.1 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.
12.1.1.1 HARMONY: Block 27
Randfontein Office Park
Corner Main Reef Road and ▇▇▇▇ Avenue
RANDFONTEIN
Telefax No.: (011)411 2398
Attention: The Company Secretary
12.1.1.2 NEDBANK: ▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇
Telefax No.: (011)294 8421
Attention: Head of Specialised Finance
12.1.2 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.
12.1.3 Either Party may by written notice to the other Party change its chosen
address and/or telefax number for the purposes of clause 12.1.1 to any
other address(es) and/or telefax number, provided that
Page 22.
the change shall become effective on the 14th (fourteenth) day after the
receipt of the notice by the addressee.
12.1.4 Any notice given in terms of this Agreement shall:
12.1.4.1 if delivered by hand be deemed to have been received by the addressee
on the date of delivery;
12.1.4.2 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.
12.1.5 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 address and/or telefax number.
12.2 DOMICILIA
12.2.1 Each of the Parties chooses its physical address referred to in clause
12.1 as its domicilium citandi et executandi at which documents in legal
proceedings in connection with this Agreement may be served.
12.2.2 Either Party may by written notice to the other Party 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 Party pursuant to clause 12.1.4.
Page 23.
13. GOVERNING LAW
The entire provisions of this Agreement shall be governed by and construed
in accordance with the laws of South Africa.
14. JURISDICTION
The Parties hereby irrevocably and unconditionally consent to the
non-exclusive jurisdictior 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.
15. 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
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.
16. GENERAL
16.1 This document constitutes the sole record of the agreement between the
Parties in regard to the subject matter thereof.
Page 24.
16.2 No Party shall be bound by any express or implied term, representation,
warranty, promise or the like, not recorded herein.
16.3 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.
16.4 No latitude, extension of time or other indulgence which may be given or
allowed by any Party to any other Party 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.
16.5 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 necessary for or incidental to the putting
into effect or maintenance of the terms, conditions and import of this
Agreement.
16.6 Save as is specifically provided in this Agreement, no Party 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 affected
by such transfer of rights or obligations, which consent may not
unreasonably be withheld or delayed.
Page 25.
17. COSTS
17.1 The costs and expenses of and incidental to the negotiation, preparation
and execution of this Agreement and (save where expressly provided to the
contrary in this Agreement) the implementation of the transactions
contemplated herein shall be paid in accordance with the terms of the First
Loan Agreement.
17.2 All legal costs incurred by any Party in consequence of any default of the
provisions of this Agreement by any other Party 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 judgement awarded in favour of the
non-defaulting Party in relation to its rights in terms of or arising out
of this Agreement.
18. COUNTERPARTS
This Agreement may be executed by each Party signing a separate copy
thereof and each of the copies together shall constitute the Agreement of
the Parties.
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
Page 26.
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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Tyler
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Capacity: Authorised Signatory
Who warrants his authority hereto