SECOND 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" SECOND 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
SECOND 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 REVERSIONARY RIGHTS AND INTERESTS........... 13
8. REALISATION ............................................... 14
9. APPROPRIATION OF PROCEEDS ................................. 18
10. AUTHORITY ................................................. 18
11. RELEASE OF ARM SHARES TO THE BEE BENEFICIARIES ............ 19
12. DURATION .................................................. 20
13. ADDITIONAL SECURITY ....................................... 20
14. CESSION ................................................... 20
15. PLEDGOR BOUND NOTWITHSTANDING CERTAIN
CIRCUMSTANCES ............................................. 21
16. ARM SHARES AND REVERSIONARY RIGHTS AND INTERESTS TO
BE KEPT FREE OF ENCUMBRANCES .............................. 22
17. EXEMPTION FROM LIABILITY .................................. 22
18. CERTIFICATE OF INDEBTEDNESS ............................... 22
19. RENUNCIATION OF BENEFITS .................................. 23
20. CONFIDENTIALITY ........................................... 23
21. NOTICES AND DOMICILIA ..................................... 25
Page 2.
22. GOVERNING LAW ............................................. 27
23. JURISDICTION .............................................. 27
24. SEVERABILITY .............................................. 27
25. GENERAL ................................................... 28
26. COSTS ..................................................... 29
27. COUNTERPARTS .............................................. 29
SECOND 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 First 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 Second 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 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;
Page 3.
2.2.8 "FIRST RANKING CESSION AND PLEDGE" means the written cession and
pledge in security entitled "First Ranking Cession and Pledge" by
the Pledgor in favour of Nedbank dated on or about the Signature
Date pursuant to which the Xxxxxxx cedes in securitatem debiti the
Rights and Interests and pledges the ARM Shares to Nedbank as
security for its obligations under the Second Loan Agreement;
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, 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 Deneys Xxxxx Trustees
(Proprietary) Limited (each as trustees) on 15 April 2005 and known
as the "ARM Broad-Based Empowerment Trust";
2.2.14 "REVERSIONARY RIGHTS AND INTERESTS" means all of the Pledgor's
reversionary rights, taking into account the First Ranking Cession
and Pledge, of any nature whatsoever to and reversionary interests
of any nature whatsoever in the Rights and Interests;
2.2.15 "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;
2.2.16 "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;
2.2.17 "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
owe or have towards Nedbank under or in connection with the First
Loan Agreement;
Page 5.
2.2.18 "SECURITY CESSION" means the reversionary cession in securitatem
debiti and pledge contemplated by this Agreement;
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;
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;
Page 6.
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;
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
Page 7.
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.
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
Page 8.
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
3.1 As security for the due performance of the Secured Obligations, the
Pledgor has agreed to pledge all of the ARM Shares, subject to the
First Ranking Cession and Pledge, and cede in securitatem debiti all of
the Reversionary Rights and Interests to Nedbank on the terms and
conditions set out in this Agreement.
Page 9.
3.2 As security for its obligations under the Second Loan Agreement, the
Pledgor has ceded and pledged in security the Rights and Interests to
Nedbank in terms of the First Ranking Cession and Pledge.
4. CESSION AND PLEDGE
With effect from the Effective Date, the Pledgor, subject to the First
Ranking Cession and Pledge hereby pledges to Nedbank all of the ARM Shares
and cedes in securitatem debiti to Nedbank all of the Reversionary 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 warrants and represents that, save for the rights granted to Nedbank
under the First Ranking Cession and Pledge and as may be expressly
provided for in the Transaction Documents, it is and will remain the
sole and beneficial owner of the ARM Shares and the Reversionary 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 Reversionary Rights and
Interests;
Page 10.
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, save for the First Ranking Cession and
Pledge the ARM Shares pledged and the Reversionary Rights and Interests
ceded to Nedbank under this Agreement have not been pledged 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
provided for in the Voting Agreement;
5.1.5 warrants and represents that, save for the First Ranking Cession and
Pledge, 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 Reversionary 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;
Page 11.
5.1.7 waives any and all rights in respect of the ARM Shares and/or the
Reversionary Rights and Interests which it may have in conflict with
the rights of Nedbank under this Agreement;
5.1.8 acknowledges that, save for the First Ranking Cession and Pledge and
the provisions of the Transaction Documents, it may not pledge, cede,
assign or transfer or in any other manner encumber or deal with the ARM
Shares and/or the Reversionary Rights and Interests without the prior
written consent of Nedbank (which consent shall not be unreasonably
withheld or delayed);
5.1.9 agrees that subject to the First Ranking Cession and Pledge, 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 First 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 Reversionary 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 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 With effect from the date upon which the pledge of the ARM Shares under
the First Ranking Cession and Pledge terminates and if this Agreement
has not terminated pursuant to clause 12, Nedbank shall after the
exercise of it's rights under the First Ranking Cession and Pledge for
the purposes of perfecting the Security Cession contemplated under this
Agreement, in accordance with the rules of STRATE, 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 until all of the Secured Obligations have been
unconditionally and finally discharged or released, as the case may be.
6.3 The Pledgor hereby authorises Nedbank (subject to the First Ranking
Cession and Pledge), upon the occurrence of a 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 nominees or to a central
securities depository (as defined in the Securities Services Act) and
without reference to the Pledgor.
6.4 The Pledgor shall deliver to Nedbank any documents relating to the ARM
Shares and/or the Reversionary 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
Page 13.
period, as agreed between Nedbank and the Pledgor, and failing such
agreement, within 10 (ten) Business Days.
6.5 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
REVERSIONARY RIGHTS AND INTERESTS
7.1 This Agreement operates in respect of all rights, powers and privileges
attaching to the ARM Shares subject to the First Ranking Cession and
Pledge and the Reversionary 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 First 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 The rights, powers and privileges attaching to the ARM Shares subject
to the First Ranking Cession and Pledge and/or the Reversionary Rights
and Interests include (but are not limited to) the following:
Page 14.
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 Reversionary Rights and Interests from time to time.
7.2.2 the right to receive notice of every general meeting of shareholders
of 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 Subject to clause 8.5, 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 First 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, subject to the First Ranking Cession and
Pledge:
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 Reversionary
Rights and Interests in such manner and on such terms as Nedbank in
its sole discretion deems fit; and/or
Page 15.
8.1.2 receive payment for, delivery of and/or performance in respect of,
the ARM Shares and/or the Reversionary Rights and Interests in its
own name; and/or
8.1.3 at Nedbank's election:
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
Reversionary 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 Reversionary 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
Page 16.
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 and/or the
Reversionary 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 Reversionary Rights and Interests by
Nedbank or its nominee; and/or
8.1.5 to convey valid title in the ARM Shares and/or the Reversionary
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
Reversionary 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:
Page 17.
8.3.1 notify ARM in writing that payment for, delivery of or performance
in respect of the ARM Shares and/or the Reversionary 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;
8.3.2 refuse to accept any payment, delivery or performance tendered in
respect of any of the ARM Shares and/or the Reversionary 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 Reversionary
Rights and Interests and sign any document or do any other lawful
act necessary to vest the ARM Shares and/or the Reversionary Rights
and Interests in Nedbank, to enable the sale or disposition of the
ARM Shares and/or the Reversionary 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
Reversionary Rights and Interests.
8.5 Notwithstanding anything to the contrary contained in this Agreement,
Nedbank shall not be entitled to take any steps to collect or otherwise
enforce its rights in
Page 18.
respect of'the ARM Shares and/or the Reversionary Rights and Interests
until all amounts due and payable to Nedbank under the First Ranking
Cession and Pledge have been unconditionally and irrevocably paid to
Nedbank.
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 Reversionary
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 have been completely, unconditionally and irrevocably
fulfilled.
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:
Page 19.
10.2.1 in order to render the ARM Shares and/or the Reversionary 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 Reversionary 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 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.
Page 20.
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 First 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 under First Loan Agreement are ceded,
assigned, delegated or transferred in accordance with the terms of the
First 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.
Page 21.
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 or any other
person; and
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.
Page 22.
16. ARM SHARES AND REVERSIONARY RIGHTS AND INTERESTS TO BE KEPT FREE OF
ENCUMBRANCES
The Pledgor shall at all times keep the ARM Shares and the Reversionary
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
Reversionary 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.
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.
Page 23.
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 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 the other Party or to any
matter arising from or in connection with this Agreement, save for any
information:
Page 24.
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 that Party of any
obligation of confidentiality owed to the other Party 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
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.
Page 25.
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
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
Page 26.
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.
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
Page 27.
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, 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.
Page 28.
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.
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.
Page 29.
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.
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.
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)
/s/ [***]
----------------------------------------
Name:[***]
Capacity: Authorised Signatory
Who warrants his authority hereto
/s/ XXXX XXXXXXXX XXXXX
----------------------------------------
Name: XXXX XXXXXXXX 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
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
Page 31.
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: Director
Who warrants her authority hereto
SIGNED at SANDTON on this the 15th day of APRIL 2005.
/s/ XXXXX XXXXXX
----------------------------------------
XXXXX XXXXXX (AS TRUSTEE OF THE PLEDGOR)
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
