FIRST RANKING CESSION AND PLEDGE
Between
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 XXXXX XXXXXXXX AND XXXXX XXXXXX XXXXXXX)
HARMONY GOLD MINING COMPANY LIMITED
(REPRESENTED BY NOMFUNDO QANGULE)
XXXXX XXXXXX
and
DENEYS XXXXX TRUSTEES (PROPRIETARY) LIMITED
(REPRESENTED BY LIONEL XXXXXXX XXXXX)
and
NEDBANK LIMITED
DENEYS | XXXXX
ATTORNEYS
NOTARIAL CERTIFICATE
I, THE UNDERSIGNED,
XXXX XXXXXX XXXX
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" FIRST RANKING CESSION AND PLEDGE BETWEEN 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
XXXXX XXXXXXXX AND XXXXX XXXXXX XXXXXXX), HARMONY GOLD MINING COMPANY
LIMITED (REPRESENTED BY NOMFUNDO QANGULE), XXXXX XXXXXX AND DENEYS XXXXX
TRUSTEES (PROPRIETARY) LIMITED (REPRESENTED BY LIONEL XXXXXXX XXXXX) AND
NEDBANK LIMITED, 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 XXXXX ATTORNEYS
SANDTON
FIRST RANKING CESSION AND PLEDGE
Between
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 XXXXX XXXXXXXX AND CLIVE XXXXXX XXXXXXX)
HARMONY GOLD MINING COMPANY LIMITED
(REPRESENTED BY NOMFUNDO QANGULE)
XXXXX XXXXXX
and
DENEYS XXXXX TRUSTEES (PROPRIETARY) LIMITED
(REPRESENTED BY LIONEL XXXXXXX XXXXX)
and
NEDBANK LIMITED
DENEYS | XXXXX
ATTORNEYS
TABLE OF CONTENTS
1. PARTIES.............................................................. 1
2. DEFINITIONS AND INTERPRETATION....................................... 1
3. INTRODUCTION......................................................... 8
4. CESSION AND PLEDGE................................................... 9
5. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS BY THE PLEDGOR.......... 9
6. DELIVERY OF DOCUMENTS................................................ 12
7. RIGHTS, POWERS AND PRIVILEGES ATTACHING TO THE ARM SHARES AND THE
RIGHTS AND INTERESTS............................................. 13
8. REALISATION.......................................................... 14
9. APPROPRIATION OF PROCEEDS............................................ 17
10. AUTHORITY............................................................ 18
11. RELEASE OF ARM SHARES TO THE BEE BENEFICIARIES....................... 18
12. DURATION............................................................. 19
13. ADDITIONAL SECURITY.................................................. 19
14. CESSION.............................................................. 19
15. PLEDGOR BOUND NOTWITHSTANDING CERTAIN CIRCUMSTANCES............... 20
16. ARM SHARES AND RIGHTS AND INTERESTS TO BE KEPT FREE OF ENCUMBRANCES.. 21
17. EXEMPTION FROM LIABILITY............................................. 21
18. CERTIFICATE OF INDEBTEDNESS.......................................... 22
19. RENUNCIATION OF BENEFITS............................................. 22
20. CONFIDENTIALITY...................................................... 22
21. NOTICES AND DOMICILIA................................................. 24
Page 2.
22. GOVERNING LAW........................................................ 26
23. JURISDICTION......................................................... 26
24. SEVERABILITY......................................................... 26
25. GENERAL.............................................................. 27
26. COSTS................................................................ 28
27. COUNTERPARTS......................................................... 29
FIRST RANKING CESSION AND PLEDGE
1. PARTIES
1.1 The Parties to this Agreement are:
1.1.1 THE ARM BROAD-BASED EMPOWERMENT TRUST AN ORAL TRUST ESTABLISHED BY ORAL
AGREEMENT ON 15 APRIL 2005 HEREIN REPRESENTED BY ITS TRUSTEES BEING:
1.1.1.1 NEDBANK LIMITED (REPRESENTED BY XXXXX XXXXXXXX AND XXXXX XXXXXX
XXXXXXX);
1.1.1.2 HARMONY GOLD MINING COMPANY LIMITED (REPRESENTED BY NOMFUNDO QANGULE);
1.1.1.3 XXXXX XXXXXX; and
1.1.1.4 DENEYS XXXXX TRUSTEES (PROPRIETARY) LIMITED (REPRESENTED BY LIONEL
XXXXXXX XXXXX); and
1.1.2 NEDBANK LIMITED.
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.
Page 2.
2.2 Words and expressions defined in the Second Loan Agreement shall (unless
otherwise defined in this Agreement) bear the same meanings where used in
this Agreement. In addition, unless inconsistent with the context the words
and expressions set forth below shall bear the following meanings and
cognate expressions shall bear corresponding meanings:
2.2.1 "AGREEMENT" means this First Ranking Cession and Pledge;
2.2.2 "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;
2.2.3 "ARM" means African Rainbow Minerals Limited (Registration No.
1933/004580/06), a public company duly incorporated in accordance with the
company laws of South Africa;
2.2.4 "BEE BENEFICIARIES" means Historically Disadvantaged South Africans who
are or will become beneficiaries of the Pledgor in accordance with the
terms of the Trust Deed;
2.2.5 "CLAIMS" means all current and future claims which the Pledgor has or will
have against ARM in respect of the ARM Shares;
2.2.6 "EFFECTIVE DATE" means the Advance Date;
2.2.7 "FIRST FACILITY OUTSTANDINGS" means, at any time and from time to time,
the aggregate of all amounts of principal, accrued and unpaid interest and
Page 3.
all and any other amounts due and payable, including but not limited to,
Breakage Costs, to the Nedbank under the First Loan Agreement;
2.2.8 "FIRST LOAN AGREEMENT" means the written agreement entitled "First Loan
Agreement'" concluded or to be concluded between Nedbank and the Pledgor on
or about the Signature Date;
2.2.9 "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;
2.2.10 "HISTORICALLY DISADVANTAGED SOUTH AFRICANS" shall bear the meaning
ascribed to that term in the Broad Based Socio Economic Empowerment Charter
for the South African Mining Industry published by the Department of
Minerals and Energy of the Government of South Africa;
2.2.11 "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;
2.2.12 "PARTIES" means:
2.2.12.1 the Pledgor; and
2.2.12.2 Nedbank,
and "PARTY" means, as the context requires, mean either of them;
Page 4.
2.2.13 "PLEDGOR" means the trustees for the time being of an oral trust
established by oral agreement between Xxxxx Xxxxxx (as founder) and
Nedbank, Harmony, Xxxxx Xxxxxx and Xxxxxx Xxxxx Trustees (Proprietary)
Limited (each as trustees) on 15 April 2005 and known as the
"ARM Broad-Based Empowerment Trust";
2.2.14 "RIGHTS AND INTERESTS" means all of the Pledgor's rights of any nature
whatsoever to and interests of any nature whatsoever in the ARM Shares, the
ARM Share Proceeds, the Claims and the Collection Account, whether actual,
prospective or contingent, direct or indirect, whether a claim to the
payment of money or to the performance of any other obligation, and whether
or not the said rights and interests were within the contemplation of the
Parties at the Signature Date;
2.2.15 "SECOND LOAN AGREEMENT" means the written agreement entitled "Second Loan
Agreement" concluded or to be concluded between Nedbank and the Pledgor on
or about the Signature Date;
2.2.16 "SECOND RANKING CESSION AND PLEDGE" means the reversionary cession and
pledge in security entitled "Second Ranking Cession and Pledge" by the
Pledgor in favour of Nedbank dated on or about Signature Date pursuant to
which the Pledgor pledges the ARM Shares and cedes in securitatem debiti
its reversionary rights, title and interest in and to the Rights and
Interests to Nedbank as security for its obligations under the First Loan
Agreement;
2.2.17 "SECURED OBLIGATIONS" means all of the obligations or Indebtedness
(actual or contingent), present or future, from whatsoever cause and
howsoever arising which the Pledgor may now or at any time hereafter
Page 5.
owe or have towards Nedbank under or in connection with the Second Loan
Agreement;
2.2.18 "SECURITY CESSION" means the cession in securitatem debiti and pledge
contemplated by this Agreement as such obligations or Indebtedness are
amended from time to time in terms of clause 15.1.2;
2.2.19 "SECURITIES SERVICES ACT" means the Securities Services Act, 2004;
2.2.20 "SIGNATURE DATE" means the date of the signature of the Party last
signing this Agreement in time;
2.2.21 "STRATE" means STRATE Limited (Registration No. 1998/022242/06), a public
company duly incorporated in accordance with the company laws of South
Africa, and registered as a central securities depository in terms of the
Securities Services Act.
2.3 Unless inconsistent with the context or save where the contrary is
expressly indicated:
2.3.1 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;
2.3.2 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;
Page 6.
2.3.3 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 previous Business Day;
2.3.4 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 subsequent
Business Day;
2.3.5 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;
2.3.6 a "clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
2.3.7 a "holding company" shall be construed in accordance with the Companies
Act;
2.3.8 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;
2.3.9 a "subsidiary" shall be construed in accordance with the Companies Act;
2.3.10 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;
Page 7.
2.3.11 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;
2.3.12 no provision of this Agreement constitutes a stipulation for the benefit
of any person who is not a Party to this Agreement; and
2.3.13 references to day/s, month/s or year/s shall be construed as Gregorian
calendar day/s, month/s or year/s.
2.4 Unless inconsistent with the context, an expression which denotes:
2.4.1 any one gender includes the other genders;
2.4.2 a natural person includes an artificial person and vice versa; and
2.4.3 the singular includes the plural and vice versa.
2.5 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.
2.6 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.
Page 8.
2.7 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.
2.8 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.
2.9 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.
2.10 Where figures are referred to in numerals and in words, if there is any
conflict between the two, the words shall prevail.
3. INTRODUCTION
As security for the due performance of the Secured Obligations, the Pledgor
has agreed to pledge all of the ARM Shares and cede in securitatem debiti
all of the Rights and Interests to Nedbank on the terms and conditions set
out in this Agreement.
Page 9.
4. CESSION AND PLEDGE
With effect from the Effective Date, the Pledgor hereby pledges to Nedbank
all of the ARM Shares and cedes in securitatem debiti to Nedbank all of the
Rights and Interests, as a continuing general covering collateral security
for the due, proper and timeous payment and performance in full of all of
the Secured Obligations, on the terms and conditions set out in this
Agreement, which pledge and cession Nedbank hereby accepts.
5. WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS BY THE PLEDGOR
5.1 The Pledgor, on each day that this Agreement is in force:
5.1.1 subject to clause 11 and as may be expressly provided for in the
Transaction Documents, warrants and represents that it is and will remain
the sole and beneficial owner of the ARM Shares and the Rights and
Interests to the exclusion of all others and, save as expressly provided
for in the Voting Agreement, no person has an option or right of refusal
over the ARM Shares and/or the Rights and Interests;
5.1.2 warrants and represents that with effect from the Effective Date the ARM
Shares are fully paid for and constitute the Pledgor's entire shareholding
in ARM;
5.1.3 warrants and represents that the ARM Shares have been issued by ARM in
accordance and compliance with all applicable laws and/or regulations;
5.1.4 warrants and represents that the ARM Shares pledged and the Rights and
Interests ceded to Nedbank under this Agreement have not been pledged
Page 10.
and/or ceded (either outright or as security), discounted, factored,
mortgaged under notarial bond or otherwise, or otherwise disposed of or
hypothecated, nor are they subject to any other rights in favour of any
person (including without limitation any rights of pre-emption) save as
expressly provided in the Voting Agreement;
5.1.5 warrants and represents that all obligations undertaken by it under this
Agreement have been authorised by all necessary corporate and/or other
action and neither the terms of the oral agreement in terms of which the
Pledgor has been established nor any trust instrument in relation to the
Pledgor places any limitations or restrictions on the ability of the
Pledgor to pledge the ARM Shares and cede the Rights and Interests as
provided for in this Agreement;
5.1.6 warrants and represents that to the best of its knowledge and belief the
issue of the Security Cession and the fulfilment of its obligations in
accordance with the terms thereof do not contravene any law, regulation or
any contractual obligation binding on it;
5.1.7 waives any and all rights in respect of the ARM Shares and/or the Rights
and Interests which it may have in conflict with the rights of Nedbank
under this Agreement;
5.1.8 save for the Second Ranking Cession and Pledge and the provisions of the
Transaction Documents, acknowledges that it may not pledge, cede, assign or
transfer or in any other manner encumber or deal with the ARM Shares and/or
the Rights and Interests without the prior written consent of Nedbank
(which consent shall not be unreasonably withheld or delayed);
Page 11.
5.1.9 agrees that on the occurrence of any breach or default in respect of any
Secured Obligation and a failure to remedy such breach or default in
accordance with the terms of the Second Loan Agreement, it will forthwith
pay over to Nedbank any interest or other benefits of any nature accrued
and/or received in respect of the ARM Shares and the Rights and Interests
relating to the period after such a breach by depositing the same into a
nominated account as Nedbank may from time to time direct in writing.
5.2 Should the ARM Shares and/or the Rights and Interests be subject to any
right in breach of the representation and warranty in clause 5.1.3, then,
without prejudice to any other rights that Nedbank may have, any
reversionary or other interests the Pledgor may have in the ARM Shares
and/or the Rights and Interests are also ceded to Nedbank, and if the
holder of that cession or right is entitled to possession of any of the
documents referred to in clause 6 below, and it exercises that right, then
the Pledgor shall deliver photocopies of the documents to Nedbank, and as
soon as the holder of that cession or right ceases to be entitled to
possession or gives up possession, the Pledgor shall deliver the relevant
documents to Nedbank.
5.3 It is recorded that Nedbank has entered into the Transaction Documents to
which it is a party on the strength of and relying on the warranties and
representations in this clause 5, each of which shall be deemed to be
separate warranties and representations, given without prejudice to any
other warranty or representation, and deemed to be material representations
inducing Nedbank to enter into the Transaction Documents to which it is a
party.
Page 12.
6. DELIVERY OF DOCUMENTS
6.1 If Nedbank calls upon the Pledgor in writing to do so, the Pledgor shall
deliver to Nedbank proof to the satisfaction of Nedbank that the ARM Shares
have been transferred to the Pledgor in accordance with section 91A(4) of
the Companies Act.
6.2 In accordance with the rules of STRATE the Pledgor irrevocably authorises
Nedbank as its agent in rem suam to take all steps necessary to ensure that
an appropriate entry is made in the securities account of the Pledgor
recording the Security Cession in terms of this Agreement.
6.3 The Pledgor hereby authorises Nedbank, upon the occurrence of an Event of
Default, in its discretion to perfect and complete the pledge of the ARM
Shares, or any of them, by registration, delivery, transfer or otherwise
and to transfer the ARM Shares to any nominee or to a central securities
depositary (as defined in the Securities Services Act) and without
reference to the Pledgor.
6.4 When all the Secured Obligations have been unconditionally and irrevocably
finally discharged or released, as the case may be, Nedbank shall be
entitled as cessionary under the, Second Ranking Cession and Pledge, to
take all steps to ensure that an appropriate entry is made in the
securities account of the Pledgor recording the cession in securitatem
debiti pursuant to the Second Ranking Cession and Pledge.
6.5 The Pledgor shall deliver to Nedbank any documents relating to the ARM
Shares and/or the Rights and Interests for which it may at any time
reasonably call and which are, or should reasonably be, in the Pledgor's
possession, which documents shall be delivered to Nedbank within a
reasonable period, as agreed
Page 13.
between Nedbank and the Pledgor, and failing such agreement, within 10
(ten) Business Days.
6.6 The Pledgor shall generally do everything that may be required by Nedbank
for the purposes of and to give effect to this Agreement, failing which
Nedbank may, if possible, attend thereto and recover from the Pledgor any
expenses incurred in doing so.
7. RIGHTS, POWERS AND PRIVILEGES ATTACHING TO THE ARM SHARES AND THE RIGHTS
AND INTERESTS
7.1 This Agreement operates in respect of all rights, powers and privileges
attaching to the ARM Shares and the Rights and Interests, including but not
limited to those set out in clause 7.2 below and such rights, powers and
privileges shall accordingly vest in Nedbank with the power to exercise
them either in its own name or in the name of the Pledgor, upon the
occurrence of any breach of the Secured Obligations which has not been
remedied in accordance with the terms of the Second Loan Agreement and is
continuing. Alternatively, the Pledgor shall, if Nedbank so directs,
exercise its rights, powers and privileges in its own name and in
accordance with Nedbank's directions to the greatest extent permitted by
applicable law.
7.2 Such rights, powers and privileges attaching to the ARM Shares and/or the
Rights and Interests include (but are not limited to) the following:
7.2.1 the right to receive payment of that portion of the dividends and other
benefits which become due in respect of the ARM Shares and/or the Rights
and Interests from time to time;
Page 14.
7.2.2 the right to receive notice of every general meeting of shareholders of
the ARM which are to be forwarded to Nedbank just as if it were a
shareholder of ARM; and
7.2.3 the right to attend every general meeting of the shareholders of ARM and
to exercise the votes attaching to the ARM Shares at such meetings;
7.3 For the avoidance of doubt, for so long as the Pledgor is not in breach of
the Secured Obligations, the provisions of clause 7.1 and 7.2 above will
not apply.
8. REALISATION
8.1 If the Pledgor commits any breach or default of the Secured Obligations and
fails to remedy such breach or default in accordance with the terms of the
Second Loan Agreement, the Pledgor hereby irrevocably and unconditionally
authorises and empowers Nedbank or its nominee, without any further
authority or consent of any nature whatsoever required from the Pledgor,
and in the name of Nedbank or in the name of the Pledgor to:
8.1.1 exercise all or any of the rights, including voting rights attached to the
ARM Shares, powers and privileges and enforce all or any obligations
attaching to the ARM Shares and/or the Rights and Interests in such manner
and on such terms as Nedbank in its sole discretion deems fit; and/or
8.1.2 receive payment for, delivery of and/or performance in respect of, the ARM
Shares and/or the Rights and Interests in its own name; and/or
8.1.3 at Nedbank's election:
Page 15.
8.1.3.1 to perfect or complete the pledge of the ARM Shares, or any of them, by
registration, delivery, transfer or otherwise and to transfer the ARM
Shares to any nominee or nominees or to a central securities depository (as
defined in the Securities Services Act); and/or
8.1.3.2 to sell or otherwise realise the ARM Shares and/or the Rights and
Interests or any one of them either by public auction or by private treaty,
in the latter case on reasonable notice to the Pledgor not exceeding 10
(ten) Business Days, as Nedbank may deem fit; and/or
8.1.3.3 to take over the ARM Shares and/or the Rights and Interests at a fair
value which, in the absence of agreement within 10 (ten) Business Days
after delivery by Nedbank to the Pledgor of a written notice stating that
Nedbank intends to exercise its rights pursuant to this clause 8.1.3.3,
shall be determined by an independent accountant agreed to by the Parties
or, failing agreement within 5 (five) Business Days, appointed, at the
request of either Party, by the President for the time being of the
Southern African Institute of Chartered Accountants (or the successor body
thereto) (which independent accountant shall act as an expert and not as an
arbitrator, shall be instructed to make his determination within 10 (ten)
Business Days of being requested to do so and shall determine the liability
for his charges which will be paid accordingly, provided that if any
determination is manifestly unjust and the court exercises its general
power, if any, to correct such determination, the Parties shall be bound
thereby) and, subject to the provisions of clause 9, set off the purchase
price payable by Nedbank for the ARM Shares
Page 16.
and/or the Rights and Interests against the Pledgor's indebtedness to
Nedbank in respect of the Secured Obligations on the basis that any excess
on realisation or any balance owing to the Pledgor, as the case may be,
will be paid to the Pledgor and any shortfall will remain as a debt due by
the Pledgor to Nedbank; and/or
8.1.4 institute any legal proceedings which Nedbank may deem necessary in
connection with any sale or other realisation or transfer of any of the ARM
Shares and/or the Rights and Interests by Nedbank or its nominee; and/or
8.1.5 to convey valid title in the ARM Shares and/or the Rights and Interests to
any purchaser thereof (including Nedbank) and/or to take all such further
or other steps as Nedbank may consider necessary to deal with the ARM
Shares and/or the Rights and Interests.
8.2 Nedbank acknowledges and agrees that the exercise of its rights in terms of
clause 8.1 and any action taken by it pursuant thereto shall be subject to
the terms and conditions contained in the Voting Agreement.
8.3 On Nedbank taking any actions in terms of clause 8.1, or otherwise as
required by Nedbank, the Pledgor shall on demand by Nedbank:
8.3.1 notify ARM in writing that payment for, delivery of or performance in
respect of the ARM Shares and/or the Rights and Interests must be made to
Nedbank, and that payment, delivery or performance to the Pledgor or to
anyone else will not constitute valid payment, delivery or performance, and
Nedbank shall be entitled to do likewise. The Pledgor shall on demand by
Nedbank provide proof that such notification has been duly given;
Page 17.
8.3.2 refuse to accept any payment, delivery or performance tendered in respect
of any of the ARM Shares and/or the Rights and Interests in order that such
payment, delivery or performance be tendered to Nedbank, which will apply
any payment so received in accordance with the provisions of clause 9;
8.3.3 at its own cost carry out any lawful directions Nedbank may give in regard
to the realisation of the ARM Shares and/or the Rights and Interests and
sign any document or do any other reasonable and lawful act necessary to
vest the ARM Shares and/or the Rights and Interests in Nedbank, to enable
the sale or disposition of the ARM Shares and/or the Rights and Interests,
which may otherwise be necessary or required to perfect the Security
Cession created in this Agreement.
8.4 Notwithstanding anything to the contrary contained in this Agreement,
Nedbank shall not be obliged to take any particular steps to collect or
otherwise enforce its rights in respect of the ARM Shares and/or the Rights
and Interests.
9. APPROPRIATION OF PROCEEDS
Nedbank shall apply the net proceeds of all amounts received pursuant to
the sale or other realisation of the ARM Shares and/or the Rights and
Interests (after deducting all properly evidenced costs and expenses
incurred by Nedbank in relation to such realisation) in reduction or
discharge, as the case may be, of the Pledgor's obligations under the
Secured Obligations in its sole discretion as it deems fit. Any amount
remaining thereafter shall be paid to the Pledgor provided that all of the
Secured Obligations and any other obligations (whether actual or
contingent, present or future) of the Pledgor pursuant to the Second
Ranking Cession and Pledge, have been completely, unconditionally and
irrevocably fulfilled.
Page 18.
10. AUTHORITY
If at any time during this Agreement Nedbank become entitled to exercise
its rights under clause 8.1, the Pledgor hereby authorises and appoints
Nedbank irrevocably and in rem suam as the Pledgor's attorney and agent in
the Pledgor's name, place and stead to sign and execute:
10.1 any proxy in favour of Nedbank or its nominee to enable Nedbank to exercise
any voting rights attaching to the ARM Shares or any of them; and
10.2 such documents as may be necessary:
10.2.1 in order to render the ARM Shares and/or the Rights and Interests or any
of them negotiable including, without limitation, the signature of transfer
declarations;
10.2.2 to enable Nedbank to receive payment of the purchase price of the ARM
Shares and/or the Rights and Interests subject to the provisions of clause
9;
10.2.3 to enable Nedbank to exercise any of its rights granted to it herein.
11. RELEASE OF ARM SHARES TO THE BEE BENEFICIARIES
11.1 It is recorded that the Pledgor has been established inter alia, for the
purposes of facilitating black economic empowerment and ownership in
relation to ARM by permitting BEE Beneficiaries to become beneficiaries of
the Pledgor and thereby obtaining a beneficial interest in and to the ARM
Shares.
11.2 Accordingly, Nedbank hereby undertakes in favour of the Pledgor that upon a
BEE Beneficiary becoming a beneficiary of the Pledgor and the consequent
Page 19.
payment by the Pledgor to Nedbank of an amount calculated in accordance
with terms of the Trust Deed in reduction of the Secured Obligations, it
shall release from pledge in terms of this Agreement such number of the ARM
Shares pledged in its favour pursuant to this Agreement as may be specified
by, and in accordance with the terms of, the Trust Deed and take all steps
to ensure that an appropriate entry is made in the securities account of
the Pledgor recording the release from pledge of such ARM Shares to the
Pledgor.
12. DURATION
This Agreement is a continuing covering security and will ipso facto
terminate only upon the unconditional and irrevocable fulfilment of all the
Secured Obligations. In particular, this Agreement shall not terminate by
reason solely of the fact that there may at any time be reduced obligations
or debts owing by the Pledgor under the Second Loan Agreement.
13. ADDITIONAL SECURITY
This Agreement is in addition to and not in substitution for any other
security held or hereafter to be held by Nedbank from any party in
connection with the Secured Obligations, or otherwise and Nedbank shall,
without prejudice to its rights hereunder, be entitled to release any such
additional security held by it.
14. CESSION
14.1 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 the Pledgor
to any person to whom all or a corresponding part of its rights, benefits
or obligations
Page 20.
under Second Loan Agreement are ceded, assigned, delegated or transferred
in accordance with the terms of the Second Loan Agreement.
14.2 To the extent that any such cession, transfer or delegation results in a
splitting of claims against the Pledgor, the Pledgor hereby consents to
such splitting of claims.
15. PLEDGOR BOUND NOTWITHSTANDING CERTAIN CIRCUMSTANCES
15.1 The Pledgor agrees that on signature hereof it will be bound in terms of
this Agreement to the full extent thereof, despite the fact that:
15.1.1 any intended additional security from the pledgor for the Secured
Obligations may not be obtained or protected or may be released or may
cease to be held for any other reason;
15.1.2 Nedbank and the Pledgor may agree a variation or novation of any of the
Secured Obligations;
15.1.3 Nedbank may grant any indulgence to the pledgor or any surety or may not
exercise any one or more of its rights hereunder or under the Secured
Obligations, either timeously or at all;
15.1.4 any insolvency, administration, judicial management, reorganisation,
arrangement, readjustment of debt, dissolution, liquidation or similar
proceedings by or against Nedbank, the Pledgor, the Pledgor or any other
person; and
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15.1.5 any other fact or circumstance may arise (including any act or omission
by Nedbank) on which the Pledgor or any surety might otherwise be able to
rely on a defence based on prejudice, waiver or estoppel.
15.2 If the Pledgor suffers any loss arising from any of the facts,
circumstances, acts or omissions referred to above, the Pledgor will have
no claim against Nedbank in respect thereof.
16. ARM SHARES AND RIGHTS AND INTERESTS TO BE KEPT FREE OF ENCUMBRANCES
The Pledgor shall at all times keep the ARM Shares and the Rights and
Interests free of Encumbrances, (save as for such Encumbrances created or
required to be created in terms of the Transaction Documents) and shall not
prejudice, compromise, grant any indulgences or agree to vary the terms of
any document creating the ARM Shares and the Rights and Interests without
the prior written consent of Nedbank.
17. EXEMPTION FROM LIABILITY
Nedbank and its officers, trustees, agents, beneficiaries, employees and
advisors shall not be liable for any loss or damage, whether direct,
indirect, consequential or otherwise, suffered by the Pledgor arising from
any cause in connection with this Agreement, whether the loss or damage
results from breach of contract (whether total, fundamental or otherwise),
delict, negligence or any other cause and whether this Agreement has been
terminated or not, other than as a result of Nedbank's gross negligence or
wilful misconduct.
Page 22.
18. CERTIFICATE OF INDEBTEDNESS
A certificate signed by any manager or director of Nedbank whose
appointment need not be proved, reflecting the amount owing by the Pledgor
in relation to Nedbank under the Transaction Documents and the due date for
payment of such amounts will be prima facie evidence of the contents
thereof.
19. RENUNCIATION OF BENEFITS
The Pledgor hereby renounces the legal benefits and exceptions of
excussion, division, non numeratae pecuniae, non causa debiti, revision of
accounts and errore calculi, the Pledgor declaring itself to be fully
acquainted with the full meaning and effect of this renunciation.
20. CONFIDENTIALITY
20.1 Neither Party 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 Party to the
contents thereof and the manner of its presentation and publication;
provided that such approval shall not to be unreasonably withheld or
delayed.
20.2 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 Party as much advance warning thereof as is reasonable in
the
Page 23.
circumstances together with drafts or a copy thereof as soon as it is at
liberty so to do.
20.3 Each Party shall at all times keep confidential (and to 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 Party or to any
matter arising from or in connection with this Agreement, save for any
information:
20.3.1 which is publicly available or becomes publicly available through no act
or default of either Party; or
20.3.2 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
20.3.3 which is disclosed to that Party by a third party which did not acquire
the information under an obligation of confidentiality; or
20.3.4 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:
20.3.5 with the consent of the other Party; or
20.3.6 in accordance with an order of court of competent jurisdiction; or
Page 24.
20.3.7 in order to comply with any law or governmental regulations by which
the Party concerned is bound; or
20.3.8 where necessary for the purpose of enforcing its rights under this
Agreement.
20.4 The provisions of this clause 20 shall survive any termination of this
Agreement.
21. NOTICES AND DOMICILIA
21.1 NOTICES
21.1.1 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.
21.1.1.1 PLEDGOR: c/o African Rainbow Minerals Limited
XXX Xxxxx
00 Xxxxxx Xxxx
Xxxxxxxxxxxxx
XXXXXXX
Telefax No. : (011) 883 5609
Attention : The Company Secretary
21.1.1.2 NEDBANK: 0xx Xxxxx, X Xxxxx
000 Xxxxxxx Xxxx
XXXXXXX
0000
Page 25.
Telefax No. : (011)294 8421
Attention : Head of Specialised Finance
21.1.2 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.
21.1.3 Either Party may by written notice to the other Party change its chosen
address and/or telefax number for the purposes of clause 21.1.1 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.
21.1.4 Any notice given in terms of this Agreement shall:
21.1.4.1 if delivered by hand be deemed to have been received by the addressee
on the date of delivery;
21.1.4.2 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.
21.1.5 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.
Page 26.
21.2 DOMICILIA
21.2.1 Each of the Parties chooses its address set out opposite its name in
clause 21.1 as its domicilium citandi et executandi at which documents in
legal proceedings in connection with this Agreement may be served.
21.2.2 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 the receipt or
deemed receipt of the notice by the other Party pursuant to clause 21.1.4.
22. GOVERNING LAW
The entire provisions of this Agreement shall be governed by and construed
in accordance with the laws of South Africa.
23. 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.
24. 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,
Page 27.
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.
25. GENERAL
25.1 This document constitutes the sole record of the Agreement between the
Parties in regard to the subject matter thereof.
25.2 Neither Party shall be bound by any express or implied term,
representation, warranty, promise or the like, not recorded herein.
25.3 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 both the Parties.
25.4 No latitude, extension of time or other indulgence which may be given or
allowed by either Party to the 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 either 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.
Page 28.
25.5 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.
25.6 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 Party, which
consent may not unreasonably be withheld or delayed.
26. COSTS
26.1 The costs of and incidental to the negotiation, preparation and execution
of this Agreement and the implementation of the transactions contemplated
herein shall be paid in accordance with the terms of the First Loan
Agreement.
26.2 All legal costs incurred by either Party in consequence of any default of
the provisions of this Agreement by the 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.
Page 29.
27. 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
NEDBANK LIMITED (ACTING THROUGH ITS
NEDBANK CAPITAL DIVISION)
/s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Capacity: Authorised Signatory
Who warrants his authority hereto
/s/ Xxxx Xxxxxxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx Tyler
Capacity: Authorised Signatory
Who warrants his authority hereto
Page 30.
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 PLEDGOR)
/s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx for Xxxxx Xxxxxxxx
Capacity: Authorised Signatory
Who warrants his authority hereto
/s/ Xxxxx Xxxxxxx
----------------------------------------
Name: Xxxxx Xxxxxxx
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 PLEDGOR)
/s/ Nomfundo Qangule
----------------------------------------
Name: Nomfundo Qangule
Capacity: Authorised Signatory
Who warrants his authority hereto
SIGNED at SANDTON on this the 15th day of APRIL 2005.
/s/ Xxxxx Xxxxxx
----------------------------------------
XXXXX XXXXXX (AS TRUSTEE OF THE PLEDGOR)
Page 31.
SIGNED at SANDTON on this the 15th day of April 2005.
For and on behalf of
DENEYS XXXXX TRUSTEES
(PROPRIETARY) LIMITED (AS TRUSTEE OF
THE PLEDGOR)
/s/ Lionel Xxxxxxx Xxxxx
----------------------------------------
Name: Lionel Xxxxxxx Xxxxx
Capacity: Authorised Signatory
Who warrants his authority hereto
