ADDENDUM TO THE CASHFLOW WATERFALL AGREEMENT between HARMONY GOLD MINING COMPANY LIMITED (Registration No. 1950/038232/06) (in its capacity as Lender and Sponsor) and BUSINESS VENTURE INVESTMENTS NO. 1692 PROPRIETARY LIMITED (Registration No....
Exhibit 4.36
EXECUTION VERSION
ADDENDUM TO THE CASHFLOW WATERFALL AGREEMENT
between
HARMONY GOLD MINING COMPANY LIMITED
(Registration No. 1950/038232/06)
(in its capacity as Lender and Sponsor)
and
BUSINESS VENTURE INVESTMENTS NO. 1692 PROPRIETARY LIMITED
(Registration No. 2012/041001/07)
and
HISTOPATH PROPRIETARY LIMITED
(Registration No. 2012/082229/07)
and
BUSINESS VENTURE INVESTMENTS NO. 1677 PROPRIETARY LIMITED
(Registration No. 2012/035756/07)
and
BUSINESS VENTURE INVESTMENTS NO. 1687 PROPRIETARY LIMITED
(Registration No. 2012/030646/07)
and
BUSINESS VENTURE INVESTMENTS NO. 1688 PROPRIETARY LIMITED
(Registration No. 2012/030648/07)
WHEREBY THE PARTIES AGREE AS FOLLOWS
| 1. | INTERPRETATION |
| 1.1. | In this Addendum – |
| 1.1.1. | headings are for convenience only and are not to be used in its interpretation; |
| 1.1.2. | an expression which denotes – |
| 1.1.2.1. | any gender includes the other genders; |
| 1.1.2.2. | a natural person includes a juristic person and vice versa; |
| 1.1.2.3. | the singular includes the plural and vice versa. |
| 1.2. | Save as defined herein capitalised terms and expressions not otherwise defined shall bear the meanings ascribed to them in the Cashflow Waterfall Agreement (as defined below) and the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings – |
| 1.2.1. | “Addendum” means this addendum to the Cashflow Waterfall Agreement as it may be amended, replaced or novated from time to time; |
| 1.2.2. | “Cashflow Waterfall Agreement” means the Cashflow Waterfall Agreement dated on or about 20 March 2013 between the Parties, setting out the priority of payment obligations of Business Venture Investments No. 1692 Proprietary Limited (Registration No 2012/041001/07), all on the terms and conditions contained therein; |
| 1.2.3. | “Parties” means the parties to this Addendum and includes a reference to their respective lawful successors and permitted assigns and any liquidator, curator, business rescue practitioner (or similar representative) of each of them. |
| 2. | CONFLICT WITH THE CASHFLOW WATERFALL AGREEMENT |
If there is any conflict between the provisions of this Addendum and the provisions of the Cashflow Waterfall Agreement at any time, the provisions of this Addendum shall prevail.
| 3. | AMENDMENTS |
The Cashflow Waterfall Agreement is hereby amended, with effect from the date of last signature of this Addendum by the Parties, by:
| 3.1. | the deletion of the number and words “R18 239 760,00 (eighteen million two hundred and thirty nine thousand seven hundred and sixty Rand) where they appear in clauses 2.2.5.2, 2.2.5.3 and 2.2.5.4 of the Cashflow Waterfall Agreement and the replacement thereof with the number and words R17 807 719,00 (seventeen million eight hundred and seven thousand seven hundred and nineteen Rand)”; and |
| 3.2. | the deletion of the number and words “R97 278 720.00 (ninety seven million two hundred and seventy eight thousand seven hundred and twenty Rand) where they appear in clause 2.2.7 of the Cashflow Waterfall Agreement and the replacement thereof with the number and words R94 974 501,00 (ninety four million nine hundred and seventy four thousand five hundred and one Rand)”. |
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| 4. | TRANSACTION DOCUMENT |
This Addendum comprises a Finance Document for all purposes under the Cashflow Waterfall Agreement.
| 5. | RETENTION |
Save as expressly contemplated in this Addendum the Cashflow Waterfall Agreement shall remain unamended and, subject to its terms, of full force and effect.
| 6. | EXECUTION IN COUNTERPARTS |
This Addendum may be executed in one or more counterparts all of which, when read together, shall comprise one and the same instrument. A facsimile copy of this Addendum shall comprise a valid counterpart for the purpose of this provision.
| 7. | WHOLE AGREEMENT |
This Addendum comprises a written amendment to the Cashflow Waterfall Agreement within the contemplation of clause 11.2 thereof. This Addendum constitutes the whole agreement between the Parties relating to the subject matter hereof.
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| Signed for and on behalf of: |
Harmony Gold Mining Company Limited
| /s/ |
| Name: Xxxxx Xxxxxx |
| Title: Director |
| Date: 24 may 2013 |
| Signed for and on behalf of: |
Business Venture Investments No. 1692 Proprietary Limited
| /s/ |
| Name: Xxxxx Xxxxxx |
| Title: Director |
| Date: 24 May 2013 |
| Signed for and on behalf of: |
Histopath Proprietary Limited
| /s/ |
| Name: Sipho Tsotsi |
| Title: Director |
| Date: 24 may 2013 |
| Signed for and on behalf of: |
Business Venture Investments No. 1677 Proprietary Limited
| /s/ |
| Name: M. Matjila |
| Title: Director |
| Date: 23 May 2013 |
| Signed for and on behalf of: |
Business Venture Investments No. 1687 Proprietary Limited
| /s/ |
| Name: L. Nengovhela |
| Title: Chief Executive Officer |
| Date: 27 May 2013 |
| Signed for and on behalf of: |
Business Venture Investments No. 1688 Proprietary Limited
| /s/ |
| Name: X.X. Xxxxxxx |
| Title: Chair (Trustee) |
| Date: 28 May 2013 |
