EXHIBIT 2.11
C L I F F O R D LIMITED LIABILITY PARTNERSHIP
C H A N C E
EXECUTION VERSION
CERTIFIED TRUE
COPY
DATED 28 FEBRUARY 2002 CLIFFORD CHANCE
LIMITED LIABILITY PARTNERSHIP
200 ALDERSGATE STREET
LONDON EC1A 4JJ
[SIG]
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HARMONY GOLD MINING COMPANY LIMITED
AS THE COMPANY
CITIBANK, N.A.
AS MANDATED LEAD ARRANGER
with
CITIBANK INTERNATIONAL plc
AS AGENT
CITIBANK INTERNATIONAL plc
AS SECURITY TRUSTEE
and
OTHERS
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US$80,000,000
LOAN NOTE FACILITY AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation .......................................... 1
2. The Facility ............................................................15
3. Purpose .................................................................15
4. Conditions of Utilisation ...............................................16
5. Utilisation .............................................................17
6. Repayment ...............................................................19
7. Prepayment And Cancellation .............................................19
8. Interest ................................................................22
9. Interest Periods ........................................................22
10. Changes To The Calculation Of Interest ..................................24
11. Fees ....................................................................25
12. Tax Gross Up And Indemnities ............................................26
13. Increased Costs .........................................................28
14. Other Indemnities .......................................................29
15. Mitigation By The Lenders ...............................................30
16. Costs And Expenses ......................................................31
17. Guarantee And Indemnity .................................................32
18. Representations .........................................................35
19. Information Undertakings ................................................39
20. Financial Covenants .....................................................41
21. General Undertakings ....................................................43
22. Events Of Default .......................................................50
23. Changes To The Lenders ..................................................54
24. Changes To The Obligors .................................................56
25. Role Of The Agent And The Mandated Lead Arranger ........................59
26. Conduct Of Business By The Finance Parties ..............................64
27. Sharing Among The Lenders ...............................................64
28. Payment Mechanics .......................................................66
29. Set-Off .................................................................69
30. Notices .................................................................69
31. Calculations And Certifications .........................................71
32. Partial Invalidity ......................................................71
33. Remedies And Waivers ....................................................71
34. Amendments And Waivers ..................................................71
35. Counterparts ............................................................72
36. Governing Law ...........................................................73
37. Enforcement .............................................................73
Schedule 1 THE ORIGINAL PARTIES .............................................74
Part I The Original Obligors ............................................74
Part II The Original Lenders ............................................75
Schedule 2 CONDITIONS PRECEDENT .............................................76
Part I Conditions Precedent To Initial Utilisation ......................76
Part II Conditions Precedent Required To Be Delivered By An Additional
Guarantor .............................................................80
Schedule 3 REQUESTS .........................................................82
Part I Utilisation Request ..............................................82
Part II Selection Notice ................................................83
Schedule 4 MANDATORY COST FORMULAE ..........................................84
Schedule 5 FORM OF TRANSFER CERTIFICATES ....................................86
Part I Transfer Certificate .............................................86
Part II LMA Transfer Certificate (Par)...................................88
Schedule 6 FORM OF ACCESSION LETTER .........................................92
Schedule 7 FORM OF RESIGNATION LETTER .......................................93
Schedule 8 FORM OF COMPLIANCE CERTIFICATE ...................................94
Schedule 9 LMA FORM OF CONFIDENTIALITY UNDERTAKING ..........................97
Schedule 10 TIMETABLES .....................................................101
Schedule 11 LOAN NOTE PROVISIONS ...........................................102
Schedule 12 COVER LETTER FOR CONSTITUTION ..................................109
Schedule 13 EXISTING SECURITY ..............................................110
THIS AGREEMENT is dated 28th February 2002 and made between:
(1) HARMONY GOLD MINING COMPANY LIMITED a company incorporated under the laws
of the Republic of South Africa with registered number 1950/038232/06 (the
"COMPANY");
(2) THE SUBSIDIARY of the Company listed in Part I of Schedule 1 as the
borrower (the "BORROWER");
(3) THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 as original
guarantors (together with the Company, the "ORIGINAL GUARANTORS");
(4) CITIBANK, N.A. (the "MANDATED LEAD ARRANGER");
(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders (the
"ORIGINAL LENDERS");
(6) CITIBANK INTERNATIONAL PLC as agent of the Lenders (the "AGENT"); and
(7) CITIBANK INTERNATIONAL PLC as security trustee for and on behalf of the
Finance Parties (the "SECURITIES TRUSTEE").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ABN" means Australian Business Number.
"ACN" means Australian Company Number.
"ACCESSION LETTER" means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter).
"ACCOUNT CHARGE" means the security agreement to be delivered to the Agent
pursuant to Clause 4.1 (Initial Conditions Precedent) made between the
Security Trustee and the Borrower creating security over the Interest
Reserve Account.
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with Clause 24 (Changes to the Obligors).
"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.
"ASSOCIATE" has the meaning given to that term in s128F(9) of the
Australian Tax Act.
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"ASIC" means the Australian Securities and Investments Commission.
"ASX" means the Australian Stock Exchange Limited.
"AUSTRALIAN TAX ACT" means the Income Tax Assessment Act 1936 of the
Commonwealth of Australia.
"AUSTRALIAN INTEREST WITHHOLDING TAX" means any tax required to be withheld or
deducted from any payment of interest (or amount in the nature of interest)
under any Finance Documents under Division 11A of Part III of the Australian
Tax Act.
"AUTHORISATION" means an authorisation, consent, approval, resolution, licence,
exemption, filing or registration.
"AVAILABILITY PERIOD" means the period from and including the date of this
Agreement to and including the date falling 6 Months after the date of this
Agreement.
"AVAILABLE COMMITMENT" means a Lender's Commitment under the Facility minus:
(a) the amount of its participation in any outstanding Loan Note Advances
under the Facility; and
(b) in relation to any proposed Utilisation, the amount of its participation
in any Loan Note Advances that are due to be made under the Facility on or
before the proposed Utilisation Date,
"AVAILABLE FACILITY" means, in relation to the Facility, the aggregate for the
time being of each Lender's Available Commitment in respect of the Facility.
"BREAK COSTS" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period from the
date of receipt of all or any part of its participation in a Loan Note
Advance or Unpaid Sum to the last day of the current Interest Period in
respect of that Loan Note Advance or Unpaid Sum, had the principal amount
or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing an amount
equal to the principal amount or Unpaid Sum received by it on deposit with
a leading bank in the Relevant Interbank Market for a period starting on
the Business Day following receipt or recovery and ending on the last day
of the current Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks are
open for general business in London, New York, Sydney and Johannesburg.
"CHANGE OF CONTROL" means the occurrence of any one of the following events or
circumstances:
(a) any person or group of persons acting in concert gains control of the
Company;
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(b) following the date (if any) on which the Target becomes a Subsidiary of
the Borrower, the Target ceases to be a Subsidiary of the Borrower
(PROVIDED THAT there will not be a Change of Control if, within the Clean
up Period, the Target ceases to be a Subsidiary of the Borrower due to the
exercise of one or more Hill 50 Options by another party and within 15
Business Days of such exercise the Borrower exercises the necessary Hill 50
Options or acquires the necessary Hill 50 Shares to procure that the Target
is its Subsidiary);
(c) the Borrower ceases to be a wholly-owned Subsidiary of the Company;
(d) the Borrower ceases to be a wholly-owned Subsidiary of Harmony Gold
Securities Pty Limited;
(e) Harmony Gold Securities Pty Limited ceases to be a wholly-owned
Subsidiary of the Company;
(f) New Hampton Goldfields Limited ceases to be a wholly-owned Subsidiary of
Harmony Gold (Australia) Pty Limited; and
(g) Harmony Gold (Australia) Pty Limited ceases to be a wholly-owned
Subsidiary of the Company.
For the purpose of paragraph (a) above "CONTROL" means:
(i) the power (whether by way of ownership of shares, proxy, contract, agency
or otherwise) to:
(A) cast, or control the casting of, more than one-half of the maximum
number of votes that can ordinarily be cast at a general meeting of
the Company; or
(B) appoint or remove all, or the majority, of the directors or other
equivalent officers of the Company; or
(C) give directions with respect to the operating and financial policies
of the Company which the directors or other equivalent officers of
the Company are obliged to comply with; or
(ii) the holding of more than one-half of the issued share capital of the
Company (excluding any part of that issued share capital that carries no
right to participate beyond a specified amount in a distribution of either
profits or capital).
For the purpose of paragraph (a) above "ACTING IN CONCERT" means, a group of
persons who, pursuant to an agreement or understanding (whether formal or
informal), actively co-operate, through the acquisition by any of them, either
directly or indirectly, of shares in the Company, to obtain or consolidate
control of the Company.
"CLEAN UP PERIOD" means the period from the date on which the Borrower becomes
the registered holder of more than 50% of the Hill 50 Shares to the date
falling five Months after that date.
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"COMMITMENT" means:
(a) in relation to an Original Lender, the amount set opposite its name under
the head "Commitment" in Part II of Schedule 1 (The Original Parties) and
the amount of any other Commitment it acquires; and
(b) in relation to any other Lender, the amount of any Commitment it acquires,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set out
in Schedule 8 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking substantially
in the form set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or
in any other form agreed between the Company and the Agent.
"CORPORATIONS ACT" means the Corporations Act 2001 of the Commonwealth of
Australia.
"DEFAULT" means an Event of Default or any event or circumstance specified in
Clause 22 (Events of Default) which would (with the expiry of a grace period,
the giving of notice or any combination of any of the foregoing) be an Event of
Default.
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any
person in respect of any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law or regulation having the force of
law in any jurisdiction in which any member of the Group conducts business
which relates to the pollution or protection of the environment or harm to or
the protection of human health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and other
authorisation and the filing of any notification, report or assessment required
under any Environmental Law for the operation of the business of any member of
the Group conducted on or from the properties owned or used by the relevant
member of the Group.
"EVENT OF DEFAULT" means any event or circumstance specified as such in Clause
22 (Events of Default).
"FATA" means the Foreign Acquisitions and Takeovers Act 1975 of the
Commonwealth of Australia.
"FACILITY" means the US Dollar loan note facility made available under this
Agreement as described in Clause 2 (The Facility).
"FACILITY OFFICE" means the office or offices notified by a Lender to the Agent
in writing on or before the date it becomes a Lender (or, following that date,
by not less than five Business Days' written notice) as the office or offices
through which it will perform its obligations under this Agreement.
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"FEE LETTER" means any letter or letters dated:
(i) 20 December 2001 between the Mandated Lead Arranger and the Company; and
(ii) 20 December 2001 between the Agent and the Company,
setting out any of the fees referred to in Clause 11 (Fees).
"FINANCE DOCUMENT" means this Agreement, the Security Trust Agreement, the Loan
Note Deed Poll, the Security Documents, any Fee Letter, any Accession Letter,
any Resignation Letter and any other document designated as such by the Agent
and the Company.
"FINANCE PARTY" means the Agent, the Security Trustee, the Mandated Lead
Arranger or a Lender and "FINANCE PARTIES" means the Agent, the Security
Trustee, the Mandated Lead Arranger and the Lenders.
"FINANCIAL INDEBTEDNESS" means (without double counting) any indebtedness for
or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit facility;
(c) any amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar instrument;
(d) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with IAS, be treated as a finance or
capital lease;
(e) receivables sold or discounted (other than any receivables to the extent
they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward sale
or purchase agreement) having the commercial effect of a borrowing;
(g) any derivative transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked to
market value on the date of calculation shall be taken into account);
(h) any counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument
issued by a bank or financial institution;
(i) any amount raised by the issue of redeemable shares; and
(j) (without double counting) the amount of any liability in respect of any
guarantee or indemnity for any of the items referred to in paragraphs (a)
to (i) above.
"FIRB APPROVAL" means the approval by the Foreign Investment Review Board in
respect of the transactions contemplated under the Offer Documents.
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"FIRST UTILISATION DATE" means the first Utilisation Date in respect of the
Facility.
"GROUP" means, at any time, the Company and its Subsidiaries at that time, for
the time being (PROVIDED THAT, for the purposes of Clauses 18 (Representations)
and 21 (General Undertakings) only, such term shall only include the Target and
its Subsidiaries following the expiry of the Clean up Period).
"GROUP STRUCTURE CHART" means the group structure chart in the agreed form
showing as at the date of the Offer (and immediately after the Target becomes a
Subsidiary of the Company):
(a) all members of the Group;
(b) any person in which any member of the Group has an interest in 50% or more
of the issued share capital or equivalent ownership interest of such
person;
(c) the jurisdiction of incorporation or establishment of each person within
paragraph (a) above; and
(d) that all Original Obligors (other than the Company) are wholly-owned
Subsidiaries of the Company.
"GUARANTOR" means an Original Guarantor or an Additional Guarantor, unless it
has ceased to be a Guarantor in accordance with Clause 24 (Changes to the
Obligors).
"HILL 50 OPTIONS" has the meaning given in the Offer Document except that at
any time it shall be taken to: (a) exclude any options which have already been
converted into Hill 50 Shares; and (b) include any options convertible into
Hill 50 Shares which have been issued by the Target since 21 December 2001, in
each case at that time.
"HILL 50 SHARES" has the meaning given in the Offer Document.
"HOLDING COMPANY" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
"IAS" means International Accounting Standards.
"INDEBTEDNESS FOR BORROWED MONEY" means Financial Indebtedness save for any
indebtedness for or in respect of paragraphs (g), (h) and (i) of the definition
of "FINANCIAL INDEBTEDNESS".
"INFORMATION MEMORANDUM" means the document dated January 2002 in the form
approved by the Company concerning the Original Obligors which, at the
Company's request and on its behalf, was prepared in relation to this
transaction and distributed by the Mandated Lead Arranger to selected financial
institutions before the date of this Agreement.
"INTEREST PERIOD" means, in relation to a Loan Note Advance, each period
determined in accordance with Clause 9 (Interest Periods) and, in relation to
an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default
interest).
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"INTEREST RESERVE ACCOUNT" means the account held in the Borrower's name with
the Security Trustee, account no. 084310 or such other account held by the
Borrower with the Security Trustee and identified as the Interest Reserve
Account (as the same may be redesignated, substituted or replaced from time to
time) and over which Security, in form and substance satisfactory to the Agent,
has been created by the relevant Security Document.
"LENDER" means:
(a) any Original Lender; and
(b) any bank of financial institution which has become a Party in accordance
with Clause 23 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the terms of
this Agreement.
"LIBOR" means, in relation to any Loan Note Advance:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for US Dollars for the Interest Period of
that Loan Note Advance) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its request quoted by
the Reference Banks to leading banks in the London interbank market;
as of the Specified Time on the Quotation Day for the offering of deposits in
US Dollars and for a period comparable to the Interest Period for that Loan
Note Advance.
To the extent that this definition relates to any Unpaid Sum and such Unpaid
Sum is due to be paid in a currency other than US Dollars, then references to
US Dollars in this definition (other than in this paragraph) or any definition
used in this definition shall be construed as references to such other currency.
"LITIGATION DISCLOSURE LETTER" means the letter from the Company to the Agent
delivered to the Agent pursuant to Clause 4.1 (Initial conditions precedent)
setting out various matters relating to ongoing proceedings.
"LOAN NOTE" means a debenture issued by the Borrower in accordance with the
Loan Note Deed Poll and this Agreement.
"LOAN NOTE ADVANCE" means an advance (as from time to time consolidated) made
under the Facility or the principal amount outstanding of that advance.
"LOAN NOTE DEED POLL" means the loan note deed poll executed on or about the
date of this Agreement by the Borrower.
"LMA" means the Loan Market Association.
"MAJORITY LENDERS" means:
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(a) if there are no Loan Note Advances then outstanding, a Lender or Lenders
whose Commitments aggregate more than 66 2/3% of the Total Commitments (or,
if the Total Commitments have been reduced to zero, aggregated more than
66 2/3% of the Total Commitments immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in the Loan Note
Advances then outstanding aggregate more than 66 2/3% of all the Loan Note
Advances then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the Agent in
accordance with Schedule 4 (Mandatory Cost formulae).
"MARGIN" means:
(a) in circumstances where all of the Hill 50 Shares and Hill 50 Options are
acquired by the Borrower on or before the date falling 11 Months after the
date of this Agreement, 1.50 per cent. per annum for any period following
thereafter; or
(b) otherwise, 1.60 per cent. per annum.
"MATERIAL ADVERSE CHANGE" means the occurrence of any event or series of events
which in the reasonable opinion of the Majority Lenders might have a material
adverse effect on:
(a) the business, condition (financial or otherwise), operations or prospects of
the Borrower and/or any Obligor and/or the Target;
(b) the ability of an Obligor to comply with any of its obligations under the
Finance Documents; or
(c) the legality, validity or enforceability (or in the case of any Security
Document, the perfection) of the Finance Documents or the rights or
remedies of any Finance Party under the Finance Documents.
"MEMORANDA OF DEPOSIT" means the memorandum of deposit entered into between
Harmony Gold (Australia) Pty Limited and Citibank International plc and the
memorandum of deposit entered into between Harmony Gold Securities Pty Limited
and Citibank International plc, each delivered to the Agent pursuant to Clause
4.1 (Initial conditions precedent)(each, individually, a "MEMORANDUM OF
DEPOSIT").
"MONTH" means a period starting on one day in a calendar month and ending on
the numerically corresponding day in the next calendar month, except that:
(a) (subject to paragraph (c) below) if the numerically corresponding day is not
a Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business Day;
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(b) if there is no numerically corresponding day in the calendar month in which
that period is to end, that period shall end on the last Business Day in
that calendar month; and
(c) if an Interest Period begins on the last Business Day of a calendar month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"OBLIGOR" means the Borrower or a Guarantor.
"OFFER" means the offers made, or to be made, by the Borrower on the terms set
out or referred to in the Offer Document to acquire all of the Hill 50 Shares
and all of the Hill 50 Options not already owned by the Borrower, as the Offer
may from time to time be amended, added to, revised, renewed or waived as
permitted in accordance with the terms of this Agreement.
"OFFER COSTS" means all costs, fees and expenses (and taxes thereon) and all
stamp, documentary, registration or similar taxes incurred by or on behalf of
the Borrower in connection with the Offer (including in relation to the Finance
Documents).
"OFFER DOCUMENT" means the bidder's statement (and acceptance forms) given by
the Borrower which was lodged with the ASIC on 21 December 2001, the letter
from the Company's chief executive dated 7 January 2002 and the announcement
issued by the Company on 21 February 2002 announcing that the Offer was
unconditional, together with any supplementary bidder's statement lodged with
ASIC by the Borrower.
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Company, the audited consolidated financial statements
of the Group for the financial year ended 30 June 2001; and
(b) in relation to each Original Obligor other than the Company and the
Borrower, its audited financial statements for its financial year ended 30
June 2001.
"ORIGINAL OBLIGOR" means the Borrower or an Original Guarantor.
"PANEL" means the Takeovers Panel (Australia).
"PARTICIPATING MEMBER STATE" means any member state of the European Communities
that adopts or has adopted the Euro as its lawful currency in accordance with
legislation of the European Union relating to European Monetary Union.
"PARTY" means a party to this Agreement and includes its successors in title,
permitted assigns and permitted transferees.
"PERMITTED FINANCIAL INDEBTEDNESS" means, only in relation to the Borrower, any
Financial Indebtedness:
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(a) arising under or permitted pursuant to the Finance Documents;
(b) arising under the Interim Facility Agreement (as referred to under Clause
3.1 (Purpose)); and
(c) not falling within paragraphs (a) or (b) above PROVIDED THAT the aggregate
amount does not exceed US$2,500,000 (or its equivalent).
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31 December.
"QUOTATION DAY" means, in relation to any period for which an interest rate is
to be determined, two Business Days before the first day of that period unless
market practice differs in the Relevant Interbank Market, in which case the
Quotation Day will be determined by the Agent in accordance with market
practice in the Relevant Interbank Market (and if quotations would normally be
given by leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"REFERENCE BANKS" means the principal London offices of Citibank, N.A., Societe
Generale and Australia and New Zealand Banking Group Limited or such other
banks as may be appointed by the Agent in consultation with the Company.
"REGISTER" means a register of Loan Notes maintained by the Agent in accordance
with Schedule 11 (Loan Note Provisions).
"RELEVANT INTERBANK MARKET" means the London interbank market.
"REPAYMENT DATE" means:
(a) in circumstances where all of the Hill 50 Shares and Hill 50 Options are
acquired by the Borrower on or before the date falling 11 Months after the
date of this Agreement, each of the days which are 12, 18, 24, 30, 36, 42
and 48 months after the date of this Agreement; and
(b) in circumstances where not all of the Hill 50 Shares and Hill 50 Options
are acquired by the Borrower on or before the date falling 11 Months after
the date of this Agreement, each of the days which are 24, 30, 36, 42 and
48 months after the date of this Agreement.
"REPAYMENT INSTALMENT" means each instalment for repayment of the Loan Note
Advances referred to in Clause 6 (Repayment).
"REPEATING REPRESENTATIONS" means:
(a) on the first date on which each Loan Note Advance is made under the
Facility, each of the representations set out in Clause 18.1 (Status) to
18.22 (No Trading by the Borrower); and
(b) at any other time, each of the representations set out in Clauses 18.1
(Status) to 18.6 (Governing law and enforcement), Clause 18.9 (No material
default), paragraph (d)
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of Clause 18.10 (No misleading information), Clause 18.12 (Pari passu
ranking) and Clause 18.13 (No proceedings pending or threatened).
"RESIGNATION LETTER" means a letter substantially in the form set out in
Schedule 7 (Form of Resignation Letter).
"SARB APPROVAL" means the exchange control approval by the Exchange Control
Department of the South African Reserve Bank in respect of the transactions
contemplated under the Finance Documents.
"SCREEN RATE" means the British Bankers' Association Interest Settlement Rate
for US Dollars for the relevant period, displayed on the appropriate page (being
screen page 3750 at the date of this Agreement) of the Telerate screen. If the
agreed page is replaced or service ceases to be available, the Agent (acting
reasonably) may specify another page or service displaying the appropriate rate
after consultation with the Company and the Lenders.
"SECURED PARTIES" shall have the meaning given to it in the Security Trust
Agreement.
"SECURITY" means a mortgage, charge, pledge, lien or other security interest
securing any obligation of any person or any other agreement or arrangement
having a similar effect.
"SECURITY DOCUMENTS" means each of the following documents in agreed form:
(a) the Memoranda of Deposit;
(b) the Account Charge; and
(c) any other document entered into by any member of the Group creating or
evidencing Security for all or any part of the obligations of the Obligors
under the Finance Documents and which is designated as such by the Agent (or
Security Trustee) and the Company.
"SECURITY TRUST AGREEMENT" means the security trust agreement delivered to the
Agent pursuant to Clause 4.1 (Initial Conditions Precedent) and made between
Citibank International plc as Security Trustee, Citibank International plc as
Agent, Citibank, N.A. as Mandated Lead Arranger, the Lenders, the Company, the
Third Party Security Providers and the Obligors.
"SELECTION NOTICE" means a notice substantially in the form set out in Part II
of Schedule 3 (Requests) given in accordance with Clause 9 (Interest Periods) in
relation to the Facility.
"SPECIFIED TIME" means a time determined in accordance with Schedule 10
(Timetables).
"SUBSIDIARY" means in relation to any company or corporation, a company or
corporation:
(a) which is controlled, directly or indirectly, by the first mentioned company
or corporation;
(b) more than half the issued share capital of which is beneficially owned,
directly or indirectly by the first mentioned company or corporation; or
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(c) which is a Subsidiary of another Subsidiary of the first mentioned
company or corporation.
and for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to direct its
management and policies and/or to control the composition of its board of
directors or equivalent body.
"TARGET" means Hill 50 Limited (ABN: 44 005 482 842).
"TAX" means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same) and (for the avoidance of
doubt) includes Australian Interest Withholding Tax.
"TAXES ACT" means the Income and Corporation Taxes Act 1988.
"TERMINATION DATE" means in relation to the Facility the date falling 48 Months
after the date of this Agreement.
"THIRD PARTY SECURITY PROVIDERS" means Harmony Gold (Australia) Pty Limited and
Harmony Gold Securities Pty Limited.
"TOTAL COMMITMENTS" means the aggregate of the Commitments, being US$80,000,000
at the date of this Agreement.
"TRANSFER CERTIFICATE" means a certificate substantially in one of the forms set
out in Schedule 5 (Form of Transfer Certificates) or any other form agreed
between the Agent and the Company.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate; and
(b) the date on which the Agent executes the Transfer Certificate.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor under the
Finance Documents.
"UTILISATION" means a utilisation of the Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on which a
Loan Note Advance is to be made.
"UTILISATION REQUEST" means a notice substantially in the form set out in Part I
of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Act 1994 and
any other tax of a similar nature including (without limitation) any goods and
services tax in the Commonwealth of Australia.
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1.2 CONSTRUCTION
(a) Unless a contrary indication appears a reference in this Agreement to:
(i) "ASSETS" includes present and future properties, revenues
and rights of every description;
(ii) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(iii) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(iv) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust
or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
(v) a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the force
of law) of any governmental, intergovernmental or supranational
body, agency, department or regulatory, self-regulatory or other
authority or organisation;
(vi) a provision of law is a reference to that provision as amended
or re-enacted;
(vii) a time of day is (except where otherwise stated) a reference to
London time; and
(viii)any statute or statutory instrument is a reference to a statute
or statutory instrument in force in England and Wales.
(b) Where both this Agreement and the Loan Note Deed Poll require the
same payment to be made by the Borrower, that payment will be made
under the Loan Note Deed Poll and will not be required to be made
under this Agreement.
(c) Section, Clause and Schedule headings are for ease of reference only.
(d) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document or
notice as in this Agreement.
(e) A Default other than Event of Default is "continuing" if it has not
been remedied and an Event of Default is "continuing" if it has not
been waived.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"US$" and "US DOLLARS" denote the lawful currency of the United States of
America; "ZAR" and "RAND" denote the lawful currency of the Republic of
South Africa; and "A$" and "AUSTRALIAN DOLLARS" denote the lawful currency
of the Commonwealth of Australia.
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1.4 THIRD PARTY RIGHTS
(a) Except as provided in a Finance Document, the terms of a Finance
Document may be enforced only by a party to it and the operation of the
Contracts (Rights of Third Parties) Act 1999 is excluded.
(b) Notwithstanding any provision of any Finance Document, the Parties to a
Finance Document do not require the consent of any third party to
rescind or vary any Finance Document at any time.
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SECTION 2
THE FACILITY
2. THE FACILITY
2.1 THE FACILITY
Subject to the terms of this Agreement, the Lenders make available to the
Borrower, the Facility in an aggregate amount equal to the Total
Commitments.
2.2 LENDERS' RIGHTS AND OBLIGATIONS
(a) The obligations of each Lender under the Finance Documents are several.
Failure by a Lender to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the
Finance Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
(b) The rights of each Lender under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Lender from an Obligor shall be a separate
and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance Documents.
3. PURPOSE
3.1 PURPOSE
The Borrower shall apply all amounts made available to it under the Facility
in or towards financing the:
(a) repayment of an interim facility (together with the payment of any
interest, fees and expenses payable in relation thereto) to be made
available to the Borrower under an agreement (the "INTERIM FACILITY
AGREEMENT") dated on or about the date hereof and made between the
Borrower, the Mandated Lead Arranger and others in a principal amount
equal to the amount payable by the Borrower under the terms of the Offer
Document in order to acquire the number of Hill 50 Shares and Hill 50
Options which is equal to at least 50.1% of the aggregate number of Hill
50 Shares and Hill 50 Options then on issue less the Australian Dollars
equivalent (at the rate then available to the Borrower) of
ZAR585,000,000,
and following the repayment of all outstanding amounts (including principal,
interest, fees and expenses), if any, under the Interim Facility Agreement,
financing the:
(b) acquisition of the Hill 50 Shares and the Hill 50 Options to be acquired
pursuant to the Offer; and/or
(c) Offer Costs; and/or
(d) compulsory acquisition of the Hill 50 Shares and the Hill 50 Options,
the subject of the Offer, on the terms permitted under Chapter 6A of the
Corporations Act; and/or
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(e) maintenance and funding of the Interest Reserve Account in accordance
with Clause 21.15 (Interest Reserve Account).
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
The Borrower may not deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Schedule 2
(Conditions precedent) in form and substance satisfactory to the Agent. The
Agent shall notify the Company and the Lenders promptly upon being so
satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the proposed
Utilisation Date:
(i) no Default is continuing or would result from the proposed Loan Note
Advance; and
(ii) the Representations or the Repeating Representations (as the case may
be) to be made by each Obligor are true in all material respects.
4.3 MAXIMUM NUMBER OF LOAN NOTE ADVANCES
The Borrower may not deliver a Utilisation Request in respect of the
Facility if as a result of the proposed Utilisation eight or more Loan Note
Advances would have been made.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Borrower may utilise the Facility by delivery to the Agent of a duly
completed Utilisation Request on any Business Day not later than the
Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the
Availability Period;
(ii) the currency and amount of the Utilisation comply with
Clause 5.3 (Currency and amount); and
(iii) the proposed Interest Period complies with Clause 9
(Interest Periods).
(b) Only one Loan Note Advance may be requested in each Utilisation
Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be US Dollars.
(b) The amount of the proposed Loan Note Advance must be an amount which
is not more than the Available Facility.
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan Note Advance
available through its Facility Office.
(b) The amount of each Lender's participation in each Loan Note Advance
will be equal to the proportion borne by its Available Commitment to
the Available Facility immediately prior to making the Loan Note
Advance.
(c) The Agent shall notify each Leader of the amount of each Loan Note
Advance at the Specified Time.
5.5 ISSUE OF LOAN NOTES
(a) Before the First Utilisation Date, the Borrower will sign and seal
the Loan Note Deed Poll and forward it to the Agent. On receipt of
the Loan Note Advances in accordance with Clause 5.6 (Loan Note
Advance and subscription for Loan Notes) on the First Utilisation
Date, the Agent will date the Loan Note Deed Poll and the Borrower
will be taken to have delivered the Loan Note Deed Poll.
(b) On the First Utilisation Date, the Borrower shall issue the Loan
Notes to each Original Lender.
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5.6 LOAN NOTE ADVANCE AND SUBSCRIPTION FOR LOAN NOTES
Subject to the Finance Documents, whenever the Borrower requests a Loan
Note Advance in accordance with Clause 5.1 (Delivery of a Utilisation
Request), each Lender through its Facility Office shall make available its
proportion of the Loan Note Advance to the Agent for the Borrower on the
relevant Utilisation Date. In the case of the First Utilisation Date this
will constitute subscription for Loan Notes by the Lenders acknowledging
the Commitment in the respective amounts set out in Part II of Schedule 1
(Original Parties), a principal outstanding equal to the amount of the Loan
Note Advance and an Available Commitment equal (subject to the terms of
this Agreement) to the difference between the Commitment and that amount.
Any subsequent Loan Note Advance shall constitute a variation of the
principal outstanding and the Available Commitment in respect of the Loan
Notes subscribed on the First Utilisation Date (and for the avoidance of
doubt, will not constitute a new subscription for Loan Notes).
5.7 RESPONSIBILITIES OF AGENT
On receipt of funds from each Lender in accordance with Clause 5.6 (Loan
Note Advance and subscription for Loan Notes) on a Utilisation Date, the
Agent shall do the following:
(a) the Agent will exercise the rights remedies, powers and discretions
and perform the obligations which are specifically delegated to or
conferred on it in connection with the Loan Notes in accordance with
Schedule 11 (Loan Note Provisions). The Agent has no obligations in
respect of the Loan Notes except those expressly set out or referred
to in the Finance Documents.
(b) pay those funds to the relevant account specified in the Utilisation
Request;
(c) in the case of the First Utilisation Date, enter the Loan Notes to be
issued under paragraph (a) in the Register in accordance with Schedule
11 (Loan Note Provisions). That entry will constitute issue of the
Loan Notes; and
(d) on each other Utilisation Date amend the Register in accordance with
Schedule 11 (Loan Note Provisions) to reflect the revised principal
amount outstanding.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. REPAYMENT
(a) The Borrower shall repay the Loan Note Advances made to it in equal
instalments on each Repayment Date.
(b) If, in relation to a Repayment Date, the aggregate amount of the Loan
Note Advances made to the Borrower exceeds the Repayment Instalment
to be repaid by the Borrower, the Borrower may, if it gives the Agent
not less than five Business Days' prior notice, select which of those
Loan Note Advances will be wholly or partially repaid so that the
Repayment Instalment is repaid on the relevant Repayment Date in
full. The Borrower may not make a selection if as a result more than
one Loan Note Advance will be partially repaid.
(c) If the Borrower fails to deliver a notice to the Agent in accordance
with paragraph (b) above, the Agent shall select the Loan Note
Advances to be wholly or partially repaid.
(d) The Borrower may not reborrow any part of the Facility which is
repaid.
7. PREPAYMENT AND CANCELLATION
7.1 ILLEGALITY
If, at any time after the date of this Agreement, it is or will become
unlawful in any applicable jurisdiction for a Lender to perform any of its
obligations as contemplated by this Agreement or to fund or maintain its
participation in any Loan Note Advance:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Company, the Commitment of that Lender
will be immediately cancelled; and
(c) the Borrower shall, within the period allowed by the relevant law
(and in any event on the last day of the then current Interest
Period), or if no period is allowed, forthwith upon receipt of notice
from the Agent pursuant to paragraph (b) of this Clause 7.1 (subject
to Clause 13 (Indemnities) of the Loan Note Deed Poll) repay that
Lender's participation in the Loan Note Advances made to the
Borrower.
7.2 VOLUNTARY CANCELLATION
The Company may, if it gives the Agent not less than 15 Business Days (or
such shorter period at the Majority Lenders may agree) prior notice,
cancel the whole or any part (being a minimum amount of US$1,000,000) of
the Available Facility. Any cancellation under this Clause 7.2 shall
reduce the Commitments of the Lenders rateably under the Facility.
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7.3 VOLUNTARY PREPAYMENT OF LOAN NOTES
(a) The Borrower may, if it gives the Agent not less than 15 Business Days
prior written notice, prepay the whole or any part of any Loan Note
Advance (but, if in part, in an integral multiple of US$1,000,000).
(b) A Loan Note Advance may only be prepaid after the last day of the
Availability Period (or, if earlier, the day on which the applicable
Available Facility is zero).
(c) Any prepayment under this Clause 7.3 shall satisfy the obligations
under Clause 6 (Repayment) pro rata against the scheduled repayments.
7.4 MANDATORY PREPAYMENT OF THE LOAN NOTE ADVANCE
From the date (the "TRIGGER DATE") at which total Aggregate Sale Proceeds
received exceed US$20,000,000, if and to the extent permitted by the South
African Reserve Bank (and the Company shall use all reasonable endeavours
to obtain the same promptly), the Company shall procure that the Borrower
shall prepay the Facility in an amount equal to:
(a) the Aggregate Sale Proceeds of any Asset Disposal made, on or after
the Trigger Date, by any Obligor where such Aggregate Sale Proceeds
are in excess of US$5,000,000 (or its equivalent in any other
currency); or
(b) the Aggregate Sale Proceeds of any Asset Disposal made, on or after
the Trigger Date, by any member of the Group other than an Obligor
where such Aggregate Sale Proceeds are in excess of US$5,000,000 (or
its equivalent in any other currency) and are received and retained by
an Obligor.
Any such prepayment will be made on the last day of the then current
Interest Period.
In this Clause "AGGREGATE SALE PROCEEDS" means the aggregate net proceeds
of any Asset Disposal after the date of this Agreement received by any
member of the Group together with any cash that is made available or
released to the relevant member of the Group as a result of such Asset
Disposal less all amounts owed in respect of legal expenses, taxes and
transaction costs directly related thereto, and "ASSET DISPOSAL" means
any disposal (or series of related disposals) of assets (including capital
assets or mining properties) made after the date hereof in accordance with
the provisions of this Agreement, other than the disposal of shares in
Goldfields Limited referred to in paragraph (b)(vii) of Clause 21.4
(Disposals).
7.5 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 12.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the Borrower under
Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs).
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice of
cancellation of the Commitment
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of that Lender and its intention to procure the repayment of that
Lender's participation in the Loan Note Advances.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Borrower
has given notice under paragraph (a) above (or, if earlier, the date
specified by the Borrower in that notice), the Borrower shall repay
that Lender's participation in that Loan Note Advance.
7.6 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 7 shall be irrevocable and, unless a contrary indication
appears in this Agreement, shall specify the date or dates upon which
the relevant cancellation or prepayment is to be made and the amount
of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) The Borrower may not reborrow any part of the Facility which is
prepaid.
(d) The Borrower shall not repay or prepay all or any part of the Loan
Note Advances or cancel all or any part of the Commitments except at
the times and in the manner expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may
be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 7 it shall promptly
forward a copy of that notice to either the Borrower or the affected
Lender, as appropriate.
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SECTION 5
COSTS OF UTILISATION
8. INTEREST
8.1 CALCULATION OF INTEREST
The rate of interest on each Loan Note Advance for each Interest Period is
the percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
8.2 PAYMENT OF INTEREST
The Borrower shall pay accrued interest on each Loan Note Advance on the
last day of each Interest Period.
8.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue
amount from the due date up to the date of actual payment (both
before and after judgment) at a rate one per cent higher than the
rate which would have been payable if the overdue amount had, during
the period of non-payment, constituted a Loan Note Advance in the
currency of the overdue amount for successive Interest Periods, each
of a duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 8.3 shall be immediately payable
by the Obligor on demand by the Agent.
(b) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain immediately
due and payable.
8.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
9. INTEREST PERIODS
9.1 SELECTION OF INTEREST PERIODS
(a) The Borrower may select an Interest Period for a Loan Note Advance
in the Utilisation Request for that Loan Note Advance or (if the
Loan Note Advance has already been made) in a Selection Notice.
(b) Each Selection Notice for a Loan Note Advance is irrevocable and
must be delivered to the Agent by the Borrower not later than the
Specified Time.
(c) If the Borrower fails to deliver a Selection Notice to the Agent in
accordance with paragraph (b) above, the relevant Interest Period
will, subject to Clause 9.2
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(Changes to Interest Periods), be that selected in the last
Selection Notice in relation to such Loan Advance delivered to the
Agent in accordance with paragraph (b) above, or, if no Selection
Notice has been delivered, as set out in the relevant Utilisation
Request.
(d) Any Interest Period which begins:
(i) during any other Interest Period shall end at the same time as
that other Interest Period; and
(ii) at the same time as any other Interest Period shall end on the
earlier of (1) its last day; and (2) the last day of that other
Interest Period.
(c) Subject to this Clause 9 in relation to the Facility, the Borrower
may select an Interest Period of one, two, three or six Months. In
addition the Borrower may select an Interest Period of a period of
less than one Month, if necessary to ensure that there are Loan Note
Advances (with an aggregate amount equal to or greater than the
Repayment Instalment) which have an Interest Period ending on a
Repayment Date for the Borrower to make the Repayment Instalment due
on that date.
(f) An Interest Period for a Loan Note Advance shall not extend beyond
the Termination Date for the Facility.
(g) Each Interest Period for a Loan Note Advance shall start on the
Utilisation Date or (if already made) on the last day of its
preceding Interest Period.
9.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Loan Note Advance, the
Agent may (after having made reasonable efforts to notify the
Borrower) shorten an Interest Period for any Loan Note Advance to
ensure there are sufficient Loan Note Advances with an Interest
Period ending on a Repayment Date for the Borrower to make the
Repayment Instalment due on that Repayment Date.
(b) If the Agent makes any of the changes to an Interest Period referred
to in this Clause 9.2, it shall promptly notify the Borrower and the
Lenders.
9.3 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business Day
(if there is not).
9.4 AUTOMATIC CONSOLIDATION OF LOAN NOTE ADVANCES
If two or more Interest Periods:
(a) relate to Loan Note Advances; and
(b) end on the same date.
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those Loan Note Advances will, on the last day of those Interest Periods,
be consolidated into, and thereafter treated as, a single Loan Note
Advance.
10. CHANGES TO THE CALCULATION OF INTEREST
10.1 ABSENCE OF QUOTATIONS
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR
shall be determined on the basis of the quotations of the remaining
Reference Banks.
10.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan Note
Advance for any Interest Period, then the rate of interest on each
Lender's share of that Loan Note Advance for the Interest Period
shall be the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be paid
in respect of that Interest Period, to be that which expresses
as a percentage rate per annum the cost to that Lender of
funding its participation in that Loan Note Advance from
whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan Note Advance.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Agent to
determine LIBOR for US Dollars and the relevant Interest
Period; or
(ii) before close of business in London on the Quotation Day for
the relevant Interest Period, the Agent receives notifications
from a Lender or Lenders (whose participations in a Loan Note
Advance exceed 35 per cent. of that Loan Note Advance) that the
cost to it of obtaining matching deposits in the Relevant
Interbank Market would be in excess of LIBOR.
10.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the Borrower shall enter into negotiations
(for a period of not more than thirty days) with a view to agreeing a
substitute basis for determining the rate of interest; during the
course of such negotiations the Agent and the Borrower shall act
reasonably and shall negotiate in good faith.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of all the Lenders and the Borrower, be
binding on all Parties.
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10.4 BREAK COSTS
(a) The Borrower shall, within three Business Days of demand by a
Finance Party (and such Finance Party shall provide the Borrower with
its calculations of its Break Costs in reasonable detail), pay to
that Finance Party its Break Costs attributable to all or any part of
a Loan Note Advance or Unpaid Sum being paid by the Borrower on a day
other than the last day of an Interest Period for that Loan Note
Advance or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand
by the Agent, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they accrue.
11. FEES
11.1 COMMITMENT FEE
(a) The Borrower shall pay to the Agent (for the account of each Lender)
a fee in US Dollars computed at the rate of 50 per cent. of the
Margin at such time on that Lender's Available Commitment under the
Facility for the Availability Period.
(b) The accrued commitment fee is payable in arrears on the last day of
each successive period of three Months which ends during the
Availability Period, on the last day of the Availability Period and
on the cancelled amount of the relevant Lender's Commitment at the
time the cancellation is effective.
11.2 ARRANGEMENT FEE
The Company shall pay to the Mandated Lead Arranger an arrangement fee in
the amount and at the times agreed in a Fee Letter.
11.3 AGENCY FEE
The Borrower shall pay to the Agent (for its own account) an agency fee
in the amount and at the times agreed in a Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
12. TAX GROSS UP AND INDEMNITIES
12.1 DEFINITIONS
(a) In this Clause 12:
"PROTECTED PARTY" means a Finance Party which is or will be, for or
on account of Tax, subject to any liability or required to make any
payment in relation to a sum received or receivable (or any sum
deemed for the purposes of Tax to be received or receivable) under a
Finance Document.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of
Tax from a payment under a Finance Document.
"TAX PAYMENT" means an increased payment made by an Obligor to a
Finance Party under Clause 12.2 (Tax gross-up) or a payment under
Clause 12.3 (Tax indemnity).
(b) In this Clause 12 a reference to "determines" or "determined" means
a determination made in the reasonable discretion of the person
making the determination.
12.2 TAX GROSS-UP
(a) Each Obligor shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law.
(b) The Company, the Borrower or a Lender shall promptly upon becoming
aware that an Obligor must make a Tax Deduction (or that there is any
change in the rate or the basis of a Tax Deduction) notify the Agent
accordingly. If the Agent receives such notification from a Lender it
shall notify the Company, the Borrower and that Obligor (if
different).
(c) If a Tax Deduction is required by law to be made by an Obligor in
one of the circumstances set out in paragraph (d) below, the amount
of the payment due from that Obligor shall be increased to an amount
which (after making any Tax Deduction) leaves an amount equal to the
payment which would have been due if no Tax Deduction had been
required.
(d) The circumstances referred to in paragraph (c) above are where a
person entitled to the payment:
(i) is the Agent, the Security Trustee or a Mandated Lead Arranger
(on its own behalf); or
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(ii) is a Lender.
(e) If an Obligor is required to make a Tax Deduction, that Obligor shall
make that Tax Deduction and any payment required in connection with
that Tax Deduction within the time allowed and in the minimum amount
required by law.
(f) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Obligor making
that Tax Deduction shall deliver to the Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that
Finance Party that the Tax Deduction has been made or (as applicable)
any appropriate payment paid to the relevant taxing authority.
(g) A Lender and each Obligor which makes a payment to which that Lender
is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to
make that payment without a Tax Deduction.
12.3 TAX INDEMNITY
(a) The Borrower shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of Tax
by that Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax assessed
on a Finance Party:
(i) under the law of the jurisdiction in which that Finance Party
is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or
(ii) under the law of the jurisdiction in which that Finance Party's
Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be received
or receivable) by that Finance Party.
(c) A Protected Party making, or intending to make a claim pursuant to
paragraph (a) above shall promptly notify the Agent of the event
which will give, or has given, rise to the claim, following which the
Agent shall notify the Company and the Borrower.
(d) A Protected Party shall, on receiving a payment from an Obligor under
this Clause 12.3, notify the Agent.
12.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained such Tax
Credit,
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the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by the
Obligor.
12.5 STAMP TAXES
The Borrower shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of any Finance Document.
12.6 VALUE ADDED TAX
(a) All consideration payable under a Finance Document by an Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Obligor shall pay to the Finance Party (in addition
to and at the same time as paying the consideration) an amount equal
to the amount of the VAT.
(b) Where a Finance Document requires an Obligor to reimburse a Finance
Party for any costs or expenses, that Obligor shall also at the same
time pay and indemnify that Finance Party against all VAT incurred by
that Finance Party in respect of the costs or expenses save to the
extent that Finance Party is entitled to repayment or credit in
respect of the VAT.
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.3 (Exceptions) the Borrower shall, within five
Business Days of a demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that
Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation or
application of) any law or regulation or (ii) compliance with any law
or regulation made after the date of this Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing its
obligations under any Finance Document.
13.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 13.1
(Increased costs) shall notify the Agent of the event giving rise to
the claim, following which the Agent shall promptly notify the
Company.
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(b) Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate confirming the amount of its
Increased Costs.
13.3 EXCEPTIONS
(a) Clause 13.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made by
an Obligor;
(ii) compensated for by Clause 12.3 (Tax indemnity) (or would have
been compensated for under Clause 12.3 (Tax indemnity) but was
not so compensated solely because the exclusion in paragraph
(b) of Clause 12.3 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance Party
or its Affiliates of any law or regulation.
(b) In this Clause 13.3, a reference to a "TAX DEDUCTION" has the same
meaning given to the term in Clause 12.1 (Definitions).
14. OTHER INDEMNITIES
14.1 CURRENCY INDEMNITY
(a) If any sum due from an Obligor under the Finance Documents (a "SUM"),
or any order, judgment or award given or made in relation to a Sum,
has to be converted from the currency (the "FIRST CURRENCY") in
which that Sum is payable into another currency (the "SECOND
CURRENCY") for the purpose of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or as a
result of the conversion including any discrepancy between (A) the
rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency or currency unit
other than that in which it is expressed to be payable.
14.2 OTHER INDEMNITIES
The Borrower shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Lender against any cost, loss or
liability incurred by that Lender as a result of:
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(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 27 (Sharing among
the Lenders);
(c) funding, or making arrangements to fund, its participation in a Loan
Note Advance requested by the Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default or
negligence by that Lender alone); or
(d) a Loan Note Advance (or part of a Loan Note Advance) not being
prepaid in accordance with a notice of prepayment given by the
Borrower or the Company.
14.3 INDEMNITY TO THE AGENT
The Borrower shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default; or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
15. MITIGATION BY THE LENDERS
15.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which
would result in any amount becoming payable under, or cancelled
pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross-up
and indemnities) or Clause 13 (Increased costs) including (but not
limited to) transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office (or some other
person acceptable to the Company and the relevant Finance Party) or
providing VAT documentation.
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
15.2 LIMITATION OF LIABILITY
(a) The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 15.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 15.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
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16. COSTS AND EXPENSES
16.1 TRANSACTION EXPENSES
The Borrower shall promptly on demand pay the Agent, the Security Trustee
and the Mandated Lead Arranger the amount of all costs and expenses
(including legal fees) reasonably incurred by any of them in connection
with the negotiation, preparation, printing, execution, perfection and
syndication of:
(a) this Agreement and any other documents referred to in this Agreement;
and
(b) any other Finance Documents executed after the date of this Agreement,
as set out in reasonable detail in an invoice.
16.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 28.9 (Change of currency), the
Company shall, within three Business Days of demand, reimburse the Agent
and the Security Trustee for the amount of all costs and expenses
(including legal fees) reasonably incurred by the Agent and the Security
Trustee in responding to, evaluating, negotiating or complying with that
request or requirement.
16.3 ENFORCEMENT COSTS
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
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SECTION 7
GUARANTEE
17. GUARANTEE AND INDEMNITY
17.1 GUARANTEE AND INDEMNITY
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by the Borrower
of all the Borrower's obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever the Borrower does
not pay any amount when due under or in connection with any Finance
Document, that Guarantor shall immediately on demand pay that amount
as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid or
illegal. The amount of the cost, loss or liability shall be equal to
the amount which that Finance Party would otherwise have been
entitled to recover.
17.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
17.3 REINSTATEMENT
If any payment by any Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or amount
of that security or payment from each Obligor, as if the payment,
discharge, avoidance or reduction had not occurred.
17.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 17 will not be
affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this
Clause 17 (without limitation and whether or not known to it or any
Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
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(b) the release of any other Obligor or any other person under the terms
of any composition or arrangement with any creditor of any member of
the Group;
(c) the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, any Obligor or other person or
any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise
the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any
other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
17.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this Clause 17. This waiver
applies irrespective of any law or any provision of a Finance Document to
the contrary.
17.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf):
(a) may refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and, to the extent that it does
(b) will hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability under
this Clause 17.
17.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full and unless the Agent otherwise directs, no Guarantor will exercise
any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
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(b) to claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties under
the Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Finance Documents by any
Finance Party.
17.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance Party.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
18. REPRESENTATIONS
Each Original Obligor makes the representations and warranties set out in
this Clause 18 to each Finance Party on the date of this Agreement.
18.1 STATUS
(a) It is a corporation, duly incorporated and validly existing under the
law of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
18.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document are,
subject to any general principles of law as at the date of this Agreement
limiting its obligations which are referred to in any legal opinion
delivered pursuant to Clause 4 (Conditions of Utilisation) or Clause 24
(Changes to the Obligors), legal, valid, binding and enforceable
obligations.
18.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents where such conflict would cause a
Material Adverse Change; or
(c) any material agreement or instrument binding upon it or its assets.
18.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
18.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required on the date this representation is made or
deemed to be made:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents and the Offer Documents
to which it is a party; and
(b) to make the Finance Documents and the Offer Documents to which it is a
party admissible in evidence in its jurisdiction of incorporation.
have been obtained or effected and are in full force and effect.
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18.6 GOVERNING LAW AND ENFORCEMENT
Subject to any general principles of law as at the date of this Agreement
set out in any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation) or Clause 24 (Changes to the Obligors),
(a) the choice of English law as the governing law of the Finance
Documents (other than the Memoranda of Deposit and the Loan Note Deed
Poll) will be recognised and enforced in its jurisdiction of
incorporation;
(b) the choice of the laws of the Australian Capital Territory as the
governing law of the Memoranda of Deposit and the Loan Note Deed Poll
will be recognised and enforced in the jurisdiction of its
incorporation; and
(c) any judgment obtained in England or Australia in relation to a
Finance Document will be recognised and enforced in its jurisdiction
of incorporation.
18.7 DEDUCTION OF TAX
It is not required under the law of its jurisdiction of incorporation to
make any deduction for or on account of Tax from any payment it may make
under any Finance Document.
18.8 NO FILING OR STAMP TAXES
Except to the extent set out in any legal opinion provided pursuant to
Clause 4.1 (Initial conditions precedent) or Clause 24 (Changes to the
Obligors) in relation to it, under the law of its jurisdiction of
incorporation it is not necessary that the Finance Documents be filed,
recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents or the transactions contemplated by
the Finance Documents.
18.9 NO MATERIAL DEFAULT
(a) No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation; and
(b) No member of the Group is, or is likely to be as a result of entering
into and performing its obligations under the Finance Documents, in
violation of any law or in breach of or in default under any
agreement to which it is a party or which is binding on it or any of
its assets to an extent or in a manner which could reasonably be
expected to cause a Material Adverse Change.
18.10 NO MISLEADING INFORMATION
(a) Any factual information (other than the financial projections)
provided by an Obligor for the purposes of the Information Memorandum
was true and accurate in all material respects as at the date it was
provided or as at the date (if any) at which it is stated.
(b) The financial projections contained in the Information Memorandum
have been prepared on the basis of recent historical information and
on the basis of reasonable assumptions.
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(c) Insofar as it is aware, nothing has occurred or been omitted from the
Information Memorandum and no information has been given or withheld
that results in the information contained in the Information
Memorandum being untrue or misleading in any material respect.
(d) All written information (other than the Information Memorandum)
supplied by it was true, complete and accurate in all material
respects as at the date it was given and was not misleading in any
material respect as at such date.
(e) The Offer Document, and any other documents furnished to the Agent
relating to the Offer, contains all the material terms of the Offer
other than those terms and conditions of the Offer incorporated by
virtue of the Corporations Act.
18.11 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance with
IAS consistently applied.
(b) Its Original Financial Statements fairly represent its financial
condition and operations (consolidated in the case of the Company)
during the relevant financial year.
18.12 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying to
companies generally in its jurisdiction of incorporation.
18.13 NO PROCEEDINGS PENDING OR THREATENED
There is (other than matters set out in the Litigation Disclosure Letter)
no action, suit, investigation, litigation or proceeding (including in
relation to environmental matters) affecting it or any of its
Subsidiaries, pending or threatened before any court, governmental agency
or arbitrator that (i) would reasonably be expected to cause a Material
Adverse Change or (ii) purports to affect the legality, validity or
enforceability of any Finance Document or the consummation of the
transactions contemplated by the Offer Document.
18.14 ENVIRONMENTAL COMPLIANCE
Each member of the Group has adopted and complies with all applicable
Environmental Law and Environmental Permits applicable to it at the date
of this Agreement, where failure to do so would reasonably be expected to
cause a Material Adverse Change.
18.15 ENVIRONMENTAL CLAIMS
No Environmental Claim (other than of a frivolous or vexatious nature,
where such claim is discharged within seven days) has been commenced or is
threatened against any member of the Group where that claim would be
reasonably likely, if determined against that member of the Group, to
cause a Material Adverse Change.
18.16 TAXATION
(a) It has duly and punctually paid and discharged all Taxes imposed upon
it or its assets within the time period allowed without incurring
penalties (save to the extent
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that (i) payment is being contested in good faith, (ii) it has
maintained adequate reserves for those Taxes and (iii) payment can be
lawfully withheld).
(b) It is not overdue in the filing of any Tax returns.
(c) No claims, which are or might reasonably be expected to be material,
are being or are reasonably likely to be asserted against it with
respect to Taxes.
18.17 OWNERSHIP OF THE OBLIGORS
Each of the Obligors (other than the Company) is a wholly-owned Subsidiary
of the Company.
18.18 SECURITY INTEREST
(a) Each Security Document to which it is a party creates the security
interest which that Security Document purports to create or, if that
Security Document purports to evidence a security interest,
accurately evidences a security interest which has been validly
created and each security interest ranks in priority as specified in
the Security Document creating or evidencing that interest.
(b) The shares of any member of the Group which are subject to any
Security under the Security Documents are fully paid and not subject
to any option to purchase or similar rights and the constitutional
documents of any such Group member do not and could not restrict or
inhibit (whether absolutely, partly, under a discretionary power or
otherwise) any transfer of such shares pursuant to enforcement of the
Security Documents.
(c) Any member of the Group that purports to grant Security under the
Security Documents over the shares of any member of the Group has
good title in respect of and is the legal and beneficial owner of all
the shares of such member of the Group.
18.19 NO MATERIAL ADVERSE CHANGE
There has been no Material Adverse Change since 30 June 2001.
18.20 HILL 50 SHARES AND HILL 50 OPTIONS
The Hill 50 Shares represent the entire issued share capital of Target and
the Hill 50 Options are all outstanding options convertible into Hill 50
Shares.
18.21 HEDGING
No member of the Group (other than, if relevant, Target and its
Subsidiaries) has hedging arrangements in place under which a margin call
may be made by the hedge counterparty.
18.22 NO TRADING BY THE BORROWER
Save as contemplated by, or otherwise in connection with this Agreement,
the Finance Documents, the Offer Document and the transactions
contemplated hereby and thereby, the Borrower has not traded or undertaken
any commercial activities of any kind and has no material liabilities
(actual and contingent).
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18.23 REPETITION
The Repeating Representations are deemed to be made by each Obligor (by
reference to the facts and circumstances then existing) on:
(a) the first date on which each Loan Note Advance is made under the
Facility;
(b) the date of each Utilisation Request and the first day of each
Interest Period; and
(c) in the case of an Additional Guarantor, the day on which it becomes
(or it is proposed that it becomes) an Additional Guarantor,
PROVIDED THAT the Repeating Representations shall not be made or deemed to
be made by Target and its Subsidiaries or in relation to Target and its
Subsidiaries until the expiry of the Clean up Period.
19. INFORMATION UNDERTAKINGS
The undertakings in this Clause 19 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
19.1 FINANCIAL STATEMENTS
The Company shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within 90 days
after the end of each of its financial years:
(i) its audited consolidated financial statements for that
financial year; and
(ii) the audited financial statements of the Borrower for that
financial year.
(b) as soon as the same become available, but in any event within 45 days
after the end of each half of each of its financial years, its
consolidated financial statements for that financial half year
(consisting of an abridged balance sheet, an income statement, a cash
flow statement and an equity statement, in such form as is provided
to the Company's shareholders); and
(c) as soon as the same become available, but in any event within 45 days
after the end of each quarter of each of its financial years, its
consolidated financial statements for that period (consisting of an
abridged balance sheet and an income statement, in such form as is
provided to the Company's shareholders).
19.2 COMPLIANCE CERTIFICATE
(a) The Company shall supply to the Agent, with each set of financial
statements delivered pursuant to paragraph (a)(i), (b) or (c) of
Clause 19.1 (Financial statements), a Compliance Certificate setting
out (in reasonable detail) computations as to compliance with Clause
20 (Financial covenants) as at the date as at which those financial
statements were drawn up.
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(b) Each Compliance Certificate shall be signed by a director (being the
director primarily responsible for financial matters where such
director is available to sign, or if the director primarily
responsible for financial matters is not available to sign and
reasonable efforts have been made to enable such director to sign,
any other director) of the Company and, if required to be delivered
with the financial statements delivered pursuant to paragraph (a)(i)
of Clause 19.1 (Financial statements), by the Company's auditors.
19.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Company pursuant
to Clause 19.1 (Financial statements) shall be certified by a
director of the relevant company as fairly representing its financial
condition as at the date as at which those financial statements were
drawn up.
(b) (i) The Company shall procure that each set of financial statements
of an Obligor delivered pursuant to Clause 19.1 (Financial
statements) is prepared using IAS and accounting practices and
financial reference periods consistent with those applied in the
preparation of the Original Financial Statements for that Obligor
unless, in relation to any set of financial statements, it
notifies the Agent that there has been a change in IAS, or the
accounting practices or reference periods and it or its auditors
(or, if appropriate, the auditors of the Obligor) (and the Company
shall procure that such auditors shall perform such delivery if so
requested by the Agent (acting reasonably)) deliver to the Agent:
(A) a description of any change necessary for those financial
statements to reflect the IAS, accounting practices and
reference periods upon which that Obligor's Original
Financial Statements were prepared; and
(B) sufficient information, in form and substance as may be
reasonably required by the Agent, to enable the Lenders to
determine whether Clause 20 (Financial covenants) has been
complied with and make an accurate comparison between the
financial position indicated in those financial statements
and that Obligor's Original Financial Statements.
If the Company notifies the Agent of a change in accordance with
paragraph (i) above then the Company and Agent shall enter into
negotiations in good faith with a view to agreeing:
(A) whether or not the change might result in any material
alteration in the commercial effect of any of the terms of
this Agreement; and
(B) if so, any amendments to this Agreement which may be
necessary to ensure that the change does not result in any
material alteration in the commercial effect of those terms
and if any amendments are agreed they shall take effect and be
binding on each of the Parties in accordance with their terms.
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Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted (if
necessary) to reflect the basis upon which the Original Financial
Statements were prepared.
19.4 INFORMATION: MISCELLANEOUS
The Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all documents dispatched by the Company to its shareholders (or any
class of them) or its creditors generally at the same time as they
are dispatched;
(b) promptly upon becoming aware of them, the details of any material
litigation, arbitration or administrative proceedings which are
current, threatened or pending against any member of the Group; and
(c) promptly, such further information regarding the financial condition,
business and operations of any member of the Group as any Finance
Party (through the Agent) may reasonably request.
19.5 NOTIFICATION OF DEFAULT
(a) Each Obligor shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence (unless that Obligor is aware that a notification has
already been provided by another Obligor).
(b) Promptly upon a request by the Agent, the Company shall supply to the
Agent a certificate signed by a director or senior officer on its
behalf certifying it is not aware of any Default that is continuing,
having made reasonable enquiries (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy
it).
20. FINANCIAL COVENANTS
20.1 FINANCIAL DEFINITIONS
In this Clause 20 (and where otherwise stated to apply);
"CONSOLIDATED EBITDA" means, for any Relevant Period, Consolidated Profits
Before Interest and Tax before any amount attributable to the amortisation
of intangible assets and depreciation of tangible assets.
"CONSOLIDATED BORROWINGS" means at any time the aggregate amount of all
obligations of the Group for or in respect of Indebtedness for Borrowed
Money but excluding any such obligation to any other member of the Group
(and so that no amount shall be included or excluded more than once).
"CONSOLIDATED FINANCE CHARGES" means, in respect of any Relevant Period,
the aggregate amount of the interest (including the interest element of
leasing and hire purchase payments and capitalised interest), commission,
fees, discounts and other finance payments payable by any member of the
Group (including any commission, fees, discounts and other finance
payments payable by any member of the Group under any interest rate
hedging arrangement
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but deducting any commission, fees, discounts and other finance payments
receivable by any member of the Group under any interest rate hedging
arrangement).
"CONSOLIDATED PROFITS BEFORE INTEREST AND TAX" means, in respect of any
Relevant Period, the consolidated net income of the Group before:
(a) any provision on account of taxation; and
(b) any interest, commission, discounts or other fees incurred or
payable, received or receivable by any member of the Group in respect
of Indebtedness for Borrowed Money.
"CONSOLIDATED TANGIBLE NET WORTH" means at any time the Total Shareholders'
Equity (which is defined as the sum of the Company's shares issued,
additional paid-in capital, options issued, retained earnings and
accumulated other comprehensive income), as presented in the Company's
consolidated financial statements prepared in accordance with IAS and
delivered pursuant to Clause 19.1 (Financial statements) or Clause 4.1
(Initial conditions precedent).
"DEBT SERVICE" means, in respect of any Relevant Period, the aggregate of:
(a) Consolidated Finance Charges; and
(b) the aggregate of scheduled and mandatory payments of any Indebtedness
for Borrowed Money falling due.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of the Company's financial year and each period of twelve months
ending on the last day of the first half of the Company's financial year.
20.2 FINANCIAL CONDITION
The Company shall ensure that:
(a) Consolidated EBITDA to Debt Service
The ratio of Consolidated EBITDA to Debt Service in respect of any
Relevant Period, shall not at the end of any such Relevant Period be
less than 3.5:1.
(b) Consolidated Borrowings to Consolidated EBITDA
The ratio of Consolidated Borrowings to Consolidated EBITDA shall not
at any time exceed 1.5:1.
(c) Consolidated Tangible Net Worth
Consolidated Tangible Net Worth shall not at any time be less than
ZAR 4.6 billion.
20.3 FINANCIAL TESTING
The financial covenants set out in Clause 20.2 (Financial condition) shall
be tested by reference to each of the consolidated financial statements of
the Company delivered pursuant to Clause 19.1 (Financial Statements).
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21. GENERAL UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force but shall not be binding on the
Target or any of its Subsidiaries until the expiry of the Clean up Period.
21.1 AUTHORISATIONS
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation where such Authorisation is required to enable it to
perform its obligations under the Finance Documents and to ensure the
legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of any Finance Document.
21.2 COMPLIANCE WITH LAWS
Subject (in the case of the Company only) to sub-clause 21.20.2 of Clause
21.20 (The Offer) each Obligor shall comply in all respects with all laws
and regulations to which it may be subject, if failure to do so would
impair its ability to perform its obligations under the Finance Documents.
21.3 NEGATIVE PLEDGE
(a) No Obligor shall create or permit to subsist any Security over any
of its assets.
(b) No Obligor shall:
(i) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or are contemplated to be leased to or
re-acquired by an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables
on recourse terms;
(iii) enter into any arrangement under which money or the benefit of
a bank or other account may be applied, set-off or made subject
to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar
effect,
in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of
financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) any Security arising under the Security Documents;
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(ii) any netting or set-off arrangement into by any Obligor in
the ordinary course of its banking arrangements (which shall
include, for the avoidance of doubt, those pursuant to
hedging arrangements in relation to gold and silver
prices,foreign exchange rates and interest rates where such
arrangements are entered into for the purposes of providing
protection against fluctuation in such rates or prices in the
ordinary course of business), for the purpose of netting debit
and credit balances;
(iii) any lien arising by operation of law and in the ordinary
course of trading of any Obligor;
(iv) any title retention arrangements with its suppliers arising in
the ordinary course of business of an Obligor;
(v) pledges and other similar possessory security over goods and
documents of title granted by any Obligor to secure
documentary credit or letter of credit transactions in
relation to such goods and documents of title entered into in
the normal course business of such Obligor;
(vi) any Security or Quasi Security created, in the ordinary course
of business, over newly acquired assets by an Obligor other
than the Borrower under the terms of an operating lease,
finance lease or other arrangement, where such lease or other
arrangement is entered into by such Obligor for the purpose of
acquiring such asset;
(vii) the rights of the Commissioner, South African Revenue Services
and any other relevant taxation authority over deposits made
with them pending resolution of the amount of taxation due to
them by the relevant Obligor;
(viii) any Security over or affecting (or transaction
("QUASI-SECURITY") described in paragraph (b) above affecting)
any asset acquired by an Obligor other than the Borrower after
the date of this Agreement if:
(A) the Security or Quasi-Security was not
created in contemplation of the acquisition of
that asset by an Obligor;
(B) the principal amount secured has not been
increased in contemplation of, or since the acquisition
of that asset by an Obligor; and
(C) the Security or Quasi-Security is removed or discharged
within three months of the date of acquisition of such
asset;
(ix) any Security or Quasi-Security over or affecting any asset of
any company which becomes an Obligor after the date of this
Agreement, where the Security or Quasi-Security is created
prior to the date on which that company becomes an Obligor, if:
(A) the Security or Quasi-Security was not created in
contemplation of the acquisition of that company;
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(B) the principal amount secured has not increased in
contemplation of or since the acquisition of that company;
and
(C) the Security or Quasi-Security is removed or discharged
within three months of that company becoming an Obligar;
(x) any Security listed in Schedule 13 (Existing Security) except
to the extent the principal amount secured by that Security
exceeds the amount stated in the Schedule;
(xi) any Security securing indebtedness following the refinancing of
such indebtedness, PROVIDED THAT the principal amount secured
by that Security is not increased following such refinancing
and the terms of the new Security are no more onerous than the
terms of the original Security that secured such indebtedness
prior to its refinancing;
(xii) any Security incurred in order to prepay the Facility in full
(PROVIDED THAT the Facility is prepaid in full immediately
upon the creation of such Security);
(xiii) any Security securing indebtedness in respect of the financing
of the acquisition by the Company and African Rainbow Minerals
(Pty) Ltd from Anglogold Ltd of its "Freegold" business
(PROVIDED THAT such Security is limited to the assets of the
"Freegold" business);
(xiv) any Security securing indebtedness arising under a ZAR35
million facility agreement dated 12 March 2001 and made
between the Industrial Development Corporation of South
Africa, Limited and the Company for the purpose of financing
the purchase of gold enhancement equipment;
(xv) in respect of Security or Quasi-Security over or affecting any
asset of Obligors other than the Borrower, any Security or
Quasi-Security securing indebtedness the principal amount of
which (when aggregated with the principal amount of any other
indebtedness which has the benefit of Security or
Quasi-Security other than any permitted under paragraphs (i)
to (xiv) above) does not at any time exceed five per cent. of
Consolidated Tangible Net Worth (or its equivalent in another
currency or currencies) as defined in Clause 20.1 (Financial
Definitions) (measured as from the last set of annual
financial statements delivered to the Agent pursuant to this
Agreement and adjusted to include the net value of new assets
acquired since the last date covered by such financial
statements); or
(xvi) any other Security or Quasi-Security as agreed by Majority
Lenders.
21.4 DISPOSALS
(a) No Obligor shall (and the Company shall ensure that no other
member of the Group will), enter into a single transaction or
a series of transactions (whether related or not) and whether
voluntary or involuntary to sell, lease, transfer or otherwise
dispose of any asset.
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(b) Paragraph (a) above does not apply to any sale, lease, transfer or
other disposal:
(i) by an Obligor (other than the Borrower) to an Obligor;
(ii) by a member of the Group that is not an Obligor to an
Obligor;
(iii) of stock and extracted minerals and ores in the ordinary
course of trade;
(iv) on normal commercial terms and on an arm's length basis of
assets that are obsolete or surplus to requirements;
(v) made in compliance with an order for compulsory acquisition
by a governmental or semi-governmental (or similar) body;
(vi) by Kalahari Goldridge Mining Company Limited of its
platinum deposits PROVIDED THAT such sale, lease, transfer
or other disposal is conducted on arm's length terms and
for a reasonable market price;
(vii) by Harmony Gold (Australia) Pty Limited of its shares in
(the company named, as at the date of this Agreement)
Goldfields Limited (ABN: 60 008 560 978) PROVIDED THAT such
sale, lease, transfer or other disposal is conducted on
arm's length terms and for a reasonable market price;
(viii) by the Borrower where the higher of the market value or
consideration receivable (when aggregated with the higher
of the market value or consideration receivable for any
other sale, lease, transfer or other disposal by the
Borrower) does not exceed US$1,000,000 (or its equivalent
in another currency or currencies) prior to the Termination
Date; or
(ix) by any member of the Group other than the Borrower, where
the higher of the market value or consideration receivable
(when aggregated with the higher of the market value or
consideration receivable for any other sale, lease,
transfer or other disposal by the Group (other than the
Borrower)) does not exceed (i) 5% of the Consolidated
Tangible Net Worth (as defined in Clause 20.1 (Financial
Definitions)) (or its equivalent in another currency or
currencies) in any financial year and (ii) 10% of the
Consolidated Tangible Net Worth (as defined in Clause 20.1
(Financial Definitions)) (or its equivalent in another
currency or currencies) prior to the Termination Date.
(c) For the avoidance of doubt, this Clause 21.4 applies in relation to
intra-Group disposals, as well as disposals, where the relevant asset
is disposed of to a person that is not a member of the Group.
21.5 MERGER
No Obligor shall enter into any amalgamation, demerger, merger or
corporate reconstruction unless:
(a) all parties to such amalgamation, demerger, merger or corporate
reconstruction are members of the Group and the surviving entities of
such amalgamation, demerger,
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merger or corporate reconstruction remain Obligors (PROVIDED THAT
neither the Borrower nor the Company may be party to any such
amalgamation, demerger, merger or corporate reconstruction); or
(b) Majority Lenders are satisfied that any such amalgamation,
demerger, merger or corporate reconstruction would not cause a
Material Adverse Change, and, in each case,
all necessary consents, licences and approvals have been obtained from all
relevant government entities including those with regulatory or
administrative authority under competition or merger law.
21.6 CHANGE OF BUSINESS
The Company shall procure that no substantial change is made to the
general nature of the business of the Company or the Group from that
carried on at the date of this Agreement.
21.7 INSURANCE
The Company shall maintain insurances for each member of the Group on and
in relation to its business, properties and assets with reputable
underwriters or insurance companies against those risks and to extent as
is usual for companies carrying on the same or substantially similar
business.
21.8 ENVIRONMENTAL COMPLIANCE
Each Obligor shall (and the Company shall ensure that each member of the
Group will) comply in all material respects with all Environmental Law and
obtain and maintain any Environmental Permits and take all reasonable
steps in anticipation of known or expected future changes to or
obligations under the same where failure to do so would reasonably be
expected to cause a Material Adverse Change.
21.9 ENVIRONMENTAL CLAIMS
The Company shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same:
(i) if any Environmental Claim has been commenced or is threatened
against any member of the Group, or
(ii) of any facts or circumstances which will or are reasonably likely to
result in any Environmental Claim being commenced or threatened
against any member of the Group,
where the claim would be reasonably likely, if determined against that
member of the Group, to cause a Material Adverse Change.
21.10 TAXATION
Each Obligor shall duly and punctually pay and discharge all Taxes
imposed upon it or its assets within the time period allowed without
incurring penalties (save to the extent that (i) payment is being
contested in good faith, (ii) adequate reserves are being maintained for
those Taxes and (iii) where such payment can be lawfully withheld).
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21.11 LOANS AND GUARANTEES
The Borrower shall not make any loans, grant any credit (save in the
ordinary course of business) or give any guarantee or indemnity (except
as required under any of the Finance Documents) to or for the benefit of
any person or otherwise voluntarily assume any liability, whether actual
or contingent, in respect of any obligation of any person.
21.12 MAINTENANCE OF LEGAL STATUS
Each Obligor shall do all such things as are necessary to maintain its
existence as a legal person and shall maintain its books and records in
good order and make all necessary corporate filings with the relevant
authorities in its jurisdiction of incorporation.
21.13 CLAIMS PARI PASSU
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application in its
jurisdiction of incorporation.
21.14 OWNERSHIP OF THE OBLIGORS
The Company shall ensure that each of the Obligors (other than the
Company) is and continues to be a wholly-owned Subsidiary of the Company.
21.15 INTEREST RESERVE ACCOUNT
The Borrower shall establish the Interest Reserve Account and ensure:
(a) that the Interest Reserve Account is maintained at all times; and
(b) that at all times the balance standing to the credit of the Interest
Reserve Account is an amount equal to or in excess of the aggregate
interest (calculated on the basis set out in Clause 8.1 (Calculation
of Interest)) that would have accrued on each outstanding Loan Note
Advance on the next date on which interest would be payable (on the
basis set out in Clause 8.2 (Payment of Interest)) had the selected
Interest Period for such Loan Note Advance been six months,
multiplied by two.
21.16 FINANCIAL INDEBTEDNESS OF THE BORROWER
The Borrower shall not incur, create or permit to subsist or have
outstanding any Financial Indebtedness or enter into any agreement or
arrangement whereby it is entitled to incur, create or permit to subsist
any Financial Indebtedness other than, in either case, Permitted
Financial Indebtedness.
21.17 ARM'S LENGTH BASIS
No Obligor shall enter into any arrangement or contract with any of its
affiliates or any member of the Group save where:
(a) both parties to the arrangement are Obligors;
(b) in any other case, such arrangement or contract is entered into on
an arm's length basis and is fair and equitable to such Obligor; or
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(c) other than as permitted under paragraphs (a) and (b) above, the
aggregate value of such arrangements, entered into by such Obligor
and all other Obligors in any one financial year does not exceed
US$2,000,000.
For the purposes of this Clause 21.17 "AFFILIATE" of the specified person
means any other person directly or indirectly controlling or controlled by
or under common control with such specified person or which is a director,
officer or partner (limited or general) of such specified person and for
this purpose "CONTROL", means the possession, direct or indirect, of the
power to vote five per cent (5%) or more of the securities having ordinary
voting power for the election of directors or the power to direct or cause
the direction of the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" shall
be construed accordingly.
21.18 GUARANTORS
The Company shall procure that the provisions of Clause 24.2 (Additional
Guarantors) is at all times complied with.
21.19 SECURITY
Each Obligor shall, at its own expense, take all such action, or procure
that such action is taken:
(a) as the Agent or the Security Trustee may require (acting
reasonably) for the purpose of perfecting or protecting the
Finance Parties' rights under and preserving the Security intended
to be created or evidenced by any of the Security Documents; and
(b) as the Agent or the Security Trustee may require (acting
reasonably) following the making of any declaration pursuant to
Clause 22.16 (Acceleration) for facilitating the realisation of
any such Security or any part thereof.
21.20 THE OFFER
The Company undertakes that:
21.20.1 without the prior written consent of the Majority Lenders (such
consent not to be unreasonably withheld or delayed), it shall not
(and it shall procure that the Borrower shall not):
(a) take or permit to be taken any step as a result of which any
material alteration to the terms and/or conditions of the
Offer may be required (except for any extension of time for
acceptance of the Offer PROVIDED THAT such extension does not
exceed six Months from the date of the Offer) or the Offer
price under the Offer is, or may be required to be, increased
beyond the level contemplated in the Offer Document or
otherwise agreed between the Company and the Agent (acting on
the instructions of all Lenders) from time to time (save, in
any case other than with regard to actions that result in an
increased Offer price by operation of the Corporations Act,
that no consent will be required to ensure compliance with
the provisions of the Corporations Act or with any
requirement of the Panel or ASIC); and
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(b) (and it shall procure that no member of the Group shall),
issue any press release or other publicity in relation to the
Offer which makes reference to the Facility or to any or all
of the Lenders, the Agent or the Mandated Lead Arranger which
is not contained in the Offer Document unless the publicity
is required by law, the Corporations Act, the Panel, ASIC or
any stock exchange (in which case the Company shall notify
the Agent and the Lenders of such requirement as soon as
reasonably practicable upon becoming aware of it);
21.20.2 in all material respects relevant in the context of the Offer, it
shall comply (or shall ensure compliance) with the Corporations
Act (subject to any modifications or exemptions granted by ASIC)
and all other applicable laws and regulations;
21.20.3 it shall keep the Agent informed as to the status and progress of
the Offer providing written details of any amendments or waivers
of any terms or conditions of the Offer and, in particular, will
from time to time and promptly upon request give to the Agent
reasonable details as to the current level of acceptances of the
Offer and such other matters relevant to the Offer as the Agent
may reasonably request;
21.20.4 it shall promptly deliver (or procure the prompt delivery) to the
Agent a copy of every notice lodged with ASIC or the ASX or
otherwise delivered by the Borrower or by the Target to the
Borrower in connection with the Offer pursuant to the Corporations
Act;
21.20.5 it shall promptly deliver to the Agent a copy, certified as being
a true and complete copy by an authorised signatory of the
Company, of the announcement that the Offer has become or has been
declared unconditional in all respects together with confirmation
that in having declared the Offer unconditional it is not in
breach of this Clause 21.20; and
21.20.6 it shall promptly inform the Agent of the date, if any, on which
each of the following events occur:
(a) all the Hill 50 Shares are acquired by the Borrower; and
(b) all the Hill 50 Options are acquired by the Borrower.
22. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 22 is an Event of
Default.
22.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable, unless:
(a) its failure to pay is caused by administrative or technical error; and
(b) payment is made within 3 Business Days of its due date.
22.2 FINANCIAL COVENANTS
Any requirement of Clause 20 (Financial covenants) is not satisfied.
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22.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with any provision of the Finance Documents
(other than those referred to in Clause 22.1 (Non-payment) and
Clause 22.2 (Financial covenants)).
(b) No Event of Default under paragraph (a) above will occur if the
failure to comply is capable of remedy and is remedied within 15
Business Days of the Agent giving notice to the Company or the Company
becoming actually aware of the failure to comply.
22.4 MISREPRESENTATION
Any material representation or statement made or deemed to be made by an
Obligor in the Finance Documents or any other document delivered by or on
behalf of any Obligor under or in connection with any Finance Document is
or proves to have been incorrect or misleading in any material respect when
made or deemed to be made.
22.5 CROSS DEFAULT
(a) Any Financial indebtedness of any member of the Group is not paid when
due nor, where there is an applicable grace period, within the
originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group is declared to
be or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of any member of the
Group is cancelled or suspended by a creditor of any member of the
Group as a result of an event of default (however described).
(d) Any creditor of any member of the Group becomes entitled to declare
any Financial Indebtedness of any member of the Group due and payable
prior to its specified maturity as a result of an event of default
(however described).
(e) No Event of Default will occur under this Clause 22.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within paragraphs (a) to (d) above is less than
US$2,500,000 (or its equivalent in any other currency or currencies).
22.6 INSOLVENCY
(a) An Obligor is unable or admits inability to pay its debts as they fall
due, suspends making payments on any of its debts or, by reason of
actual or anticipated financial difficulties, commences negotiations
with one or more of its creditors with a view to rescheduling any of
its Financial Indebtedness.
(b) The value of the assets of any Obligor is less than its liabilities
(taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any Financial Indebtedness of
any Obligor.
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(d) Any of the circumstances referred to in paragraphs (a), (b) or (c)
above occur in relation to a member of the Group other than an
Obligor, where such an occurrence would reasonably be expected to
cause a Material Adverse Change.
22.7 INSOLVENCY PROCEEDINGS
(a) Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(i) the suspension of payments, a moratorium of any Financial
Indebtedness, winding-up, dissolution, administration or
reorganisation (by way of voluntary arrangement, scheme or
arrangement or otherwise) of any Obligor;
(ii) a composition, assignment or arrangement with any creditor of
any Obligor;
(iii) the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar
officer in respect of any Obligor or any of its assets; or
(iv) enforcement of any Security over any assets of any Obligor.
or any analogous procedure or step is taken in any jurisdiction and
any such procedure or proceedings are not contested in good faith nor
discharged within 7 days of such Obligor becoming aware of such
circumstances or, in any event, within 14 days (or such shorter period
provided for contesting such procedure or proceedings under the laws
of the relevant jurisdiction).
(b) Any of the circumstances referred to in paragraph (a) above occur in
relation to a member of the Group other than an Obligor, where such an
occurrence would reasonably be expected to cause a Material Adverse
Change
22.8 CREDITORS' PROCESS
(a) Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of a member of the Group, having an
aggregate value of at least US$1,000,000 and is not discharged within
14 days.
(b) Any failure to pay any final judgment or court order in excess
of US$1,000,000 within 14 days thereof.
22.9 OWNERSHIP OF THE OBLIGORS
An Obligor (other than the Company) is not or ceases to be a wholly-owned
Subsidiary of the Company.
22.10 UNLAWFULNESS
It is or becomes unlawful for an Obligor to perform any of its obligations
under the Finance Documents or such obligations cease to be legal, valid,
binding or enforceable obligations.
22.11 REPUDIATION AND UNENFORCEABILITY
An Obligor repudiates a Finance Document or evidences an intention to repudiate
a Finance Document or any Finance Document is declared to be or is otherwise
unenforceable against
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an Obligor by a court of the jurisdiction of incorporation of the relevant
Obligor or a choice of governing law of any Finance Document or a judgement
in England or Australia fails to be recognised or is declared unenforceable
by a court of the jurisdiction of incorporation of the relevant Obligor.
22.12 MATERIAL ADVERSE CHANGE
Any Material Adverse Change.
22.13 LITIGATION
Any litigation, arbitration, administrative proceedings or governmental or
regulatory investigations or proceedings are commenced against any member
of the Group or its respective assets or revenues which could reasonably be
expected to be adversely determined, and if so determined, could reasonably
be expected to cause a Material Adverse Change.
22.14 CHANGE OF CONTROL
Any Change of Control.
22.15 REVOCATION OF SARB APPROVAL
The revocation of the SARB Approval.
22.16 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority Lenders,
by notice to the Company.
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loan Note Advances, together with
accrued interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall become
immediately due and payable;
(c) declare that all or part of the Loan Note Advances be payable on
demand, whereupon they shall immediately become payable on demand by
the Agent on the instructions of the Majority Lenders; and/or
(d) exercise, or direct the Security Trustee to exercise, any or all of
its rights, remedies, powers or discretions under any of the Finance
Documents.
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SECTION 9
CHANGES TO PARTIES
23. CHANGES TO THE LENDERS
23.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 23, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or institution (the "NEW LENDER").
23.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same
obligations to the other Finance Parties as it would have been under
if it was an Original Lender.
(b) A transfer will only be effective if the procedure set out in Clause
23.5 (Procedure for transfer) is complied with.
(c) A Lender must not transfer a Loan Note to a person whom the
transferring Lender knows is an Associate of the Borrower.
(d) Any assignment or transfer by an Existing Lender to a New Lender in
respect of its rights with regard to the Facility shall automatically
be accompanied by an assignment of such Existing Lender's
corresponding rights under the Loan Note Deed Poll to such
New Lender.
(e) If:
(i) a Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to make a payment to the New Lender or Lender acting
through its new Facility Office under Clause 12 (Tax gross-up
and indemnities) or Clause 13 (Increased costs),
then the New Lender or Lender acting through its new Facility Office
is only entitled to receive payment under those Clauses to the same
extent as the Existing Lender or Lender acting through its previous
Facility Office would have been if the assignment, transfer or change
had not occurred.
23.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of US$1000.
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23.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other documents;
or
(iv) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document or any other
document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing
Lender in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 23;
or
(ii) support any losses directly or indirectly incurred by the new
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
23.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 23.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender
and the New Lender. The Agent shall, as soon as reasonably practicable
after receipt by it of a duly completed Transfer Certificate appearing
on its face to comply with the terms of this Agreement and delivered
in accordance with the terms of this Agreement, execute that Transfer
Certificate.
(b) On the Transfer Date:
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(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and obligations
under the Finance Documents each of the Obligors and the
Existing Lender shall be released from further obligations
towards one another under the Finance Documents and their
respective rights against one another shall be cancelled (being
the "DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights against
one another which differ from the Discharged Rights and
Obligations only insofar as that Obligor and the New Lender
have assumed and/or acquired the same in place of that Obligor
and the Existing Lender;
(iii) the Agent, the Security Trustee, the Mandated Lead Arranger,
the New Lender and other Lenders shall acquire the same rights
and assume the same obligations between themselves as they
would have acquired and assumed had the New Lender been an
Original Lender with the rights and/or obligations acquired or
assumed by it as a result of the transfer and to that extent
the Agent, the Security Trustee, the Mandated Lead Arranger and
the Existing Lender shall each be released from further
obligations to each other under this Agreement; and
(iv) the new Lender shall become a Party as a "LENDER".
23.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to, or
any other transaction under which payments are to be made by
reference to, this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents as
that Lender shall consider appropriate if, in relation to paragraphs (a)
and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking.
24. CHANGES TO THE OBLIGORS
24.1 ASSIGNMENTS AND TRANSFERS BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
24.2 ADDITIONAL GUARANTORS
24.2.1 The Company shall ensure that:
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(a) at all times the aggregate (without double counting) of:
(i) net income before interest, taxation, amortisation of
intangible assets and depreciation of tangible assets of the
Guarantors incorporated in South Africa ("SA GUARANTOR
EBITDA"); and
(ii) gross assets of the Guarantors incorporated in South Africa,
(determined in each case by reference to the most recent annual
financial statements delivered pursuant to Clause 19.1
(Financial Statements) and, prior to the first such financial
statements being so delivered, by reference to the Original
Financial Statements) shall equal or exceed 95 per cent. of (as
appropriate) the aggregate (without double counting) of:
(1) net income before interest, taxation, amortisation of
intangible assets and depreciation of tangible assets of the
members of the Group incorporated in South Africa, at that
time ("SA GROUP EBITDA"); and
(2) gross assets of the members of the Group incorporated in
South Africa, at that time,
(as determined by reference to the most recent annual financial
statements delivered pursuant to Clause 19.1 (Financial
Statements) and, prior to the first such financial statements
being delivered, by reference to the Original Financial
Statements).
(b) within 90 days after the last day of each of its financial years
(commencing with its financial year ended 30 June 2002) it shall
deliver to the Agent:
(i) a certificate addressed to the Agent signed by a director of
the Company confirming that the Company is in compliance
with paragraph (a) above in relation to the financial year
of the Company ending immediately prior to the delivery of
such certificate (together with the relevant calculations);
or
(ii) duly executed Accession Letter(s) in relation to a
Subsidiary (or Subsidiaries) of the Company incorporated in
South Africa acceding as Guarantor(s) together with the
documents and other evidence set out in Part II of Schedule
2 (Conditions Precedent), each in a form and substance
satisfactory to the Agent, such Subsidiary (or Subsidiaries)
to be such that, if taken into account as a Guarantor (or
Guarantors) for the purposes of determining compliance with
paragraph (a) above in relation to the financial year of the
Company ending immediately prior to the delivery of such
documents, would result in the Company being in compliance
with such paragraph (a) in respect of such financial year.
24.2.2 The Company shall, as soon as reasonably practicable thereafter,
procure that upon all of the Hill 50 Shares and Hill 50 Options being
acquired by the Borrower,
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subject to Clause 24.3 (Procuring guarantee from Target), that
Target and each of its wholly-owned operating Subsidiaries becomes
an Additional Guarantor.
24.2.3 A Subsidiary shall become an Additional Guarantor when:
(i) the Company delivers to the Agent a duly completed and
executed Accession Letter; and
(ii) the Agent has received all of the documents and other
evidence listed in Part II of Schedule 2 (Conditions
precedent) in relation to that Additional Guarantor, each
in form and substance satisfactory to the Agent.
24.2.4 The Agent shall notify the Company and the Lenders promptly upon
being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in
Part II of Schedule 2 (Conditions precedent).
24.3 PROCURING GUARANTEE FROM TARGET
If all of the Hill 50 Shares and Hill 50 Options are acquired by the
Borrower then, at the same time as the delivery of the documents referred
to in sub-clause 24.2.3 of Clause 24.2 (Additional Guarantors) in relation
to the companies referred to in sub-clause 24.2.2 of Clause 24.2
(Additional Guarantors), the Company must procure the delivery to the
Agent of (in form and substance satisfactory to the Agent):
(a) evidence that the requirements of section 260B of the Corporations
Act in relation to the companies referred to in sub-clause 24.2.2 of
Clause 24.2 (Additional Guarantors) have been complied with or
evidence that section 260A of the Corporations Act has not been
breached; and
(b) evidence of stamping and registration where applicable, and (if
relevant) signed ASIC and other registration forms.
24.4 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations are true and correct in
relation to it as at the date of delivery as if made by reference to the
facts and circumstances then existing.
24.5 RESIGNATION OF A GUARANTOR
(a) The Company may request that a Guarantor (other than the Company)
ceases to be a Guarantor by delivering to the Agent a Resignation
Letter.
(b) The Agent shall accept a Resignation Letter and notify the Company
and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the acceptance of
the Resignation Letter (and the Company has confirmed this is
the case);
(ii) all the Lenders have consented to the Company's request; and
(iii) it is reasonably satisfied that such resignation shall not
adversely affect the performance of the Company's obligations
under Clause 21.18 (Guarantors).
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SECTION 10
THE FINANCE PARTIES
25. ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGER
25.1 APPOINTMENT OF THE AGENT
(a) The Mandated Lead Arranger and the Lenders appoint the Agent to act
as its agent under and in connection with the Finance Documents.
(b) The Mandated Lead Arranger and the Lenders authorise the Agent to
exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with the
Finance Documents together with any other incidental rights, powers,
authorities and discretions.
25.2 DUTIES OF THE AGENT
(a) The Agent shall promptly forward to a Party the original or a copy
of any document which is delivered to the Agent for that Party by
any other Party.
(b) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Lenders.
(c) The Agent shall promptly notify the Lenders of any Default arising
under Clause 22.1 (Non-payment).
(d) The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
25.3 ROLE OF THE MANDATED LEAD ARRANGER
Except as specifically provided in the Finance Documents, the Mandated
Lead Arranger has no obligations of any kind to any other Party under or
in connection with any Finance Document.
25.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent or the Mandated Lead
Arranger as a trustee or fiduciary of any other person.
(b) Neither the Agent nor the Mandated Lead Arranger shall be bound to
account to any Lender for any sum or the profit element of any sum
received by it for its own account.
25.5 BUSINESS WITH THE GROUP
The Agent and the Mandated Lead Arranger may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
25.6 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
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(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
(b) The Agent may assume (unless it has received notice to the contrary
in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 22.1 (Non-payment)):
(ii) any right, power, authority or discretion vested in any Party
or the Majority Lenders has not been exercised; and
(iii) any notice or request made by the Company (other than a
Utilisation Request or Selection Notice) is made on behalf of
and with the consent and knowledge of all the Obligors.
(c) The Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through its
personnel and agents.
25.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the Agent
shall (a) act in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders,
refrain from acting or exercising any right, power, authority or
discretion vested in it as Agent) and (b) not be liable for any act
(or omission) if it acts (or refrains from taking any action) in
accordance with such an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Lenders and the Mandated Lead Arranger.
(c) The Agent may refrain from acting in accordance with the instructions
of the Majority Lenders (or, if appropriate, the Lenders) until it
has received such security as it may require for any cost, loss or
liability (together with any associated VAT) which it may incur in
complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
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(e) The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document.
25.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor the Mandated Lead Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Mandated Lead Arranger, an Obligor or any other person given in or in
connection with any Finance Document or the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
25.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Agent will not be liable
for any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee or
agent of the Agent in respect of any claim it might have against the
Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any
officer, employee or agent of the Agent may rely on this Clause. Any
third party referred to in this paragraph (b) may enjoy the benefit of
and enforce the terms of this paragraph (b) in accordance with the
provisions of the Contracts (Rights of Third Parties) Act 1999.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the Finance Documents to be paid by the Agent if the Agent has taken
all necessary steps as soon as reasonably practicable to comply with
the regulations or operating procedures of any recognised clearing or
settlement system used by the Agent for that purpose.
25.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) in acting as Agent under the Finance
Documents (unless the Agent has been reimbursed by an Obligor pursuant to a
Finance Document).
25.11 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates acting through
an office in the European Union as successor by giving notice to the
Lenders and the Company.
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(b) Alternatively the Agent may resign by giving notice to the Lenders
and the Company, in which case the Majority Lenders (after
consultation with the Company) may appoint a successor Agent.
(c) If The Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after consultation with the
Company) may appoint a successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 25.
Its successor and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if
such successor had been an original Party.
(g) After consultation with the Company, the Majority Lenders may, by
notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
25.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be treated
as a separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of the
Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of it.
(c) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Mandated Lead Arranger are
obliged to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure would or
might in its reasonable opinion constitute a breach of any law or a
breach of a fiduciary duty.
25.13 RELATIONSHIP WITH THE LENDERS
(a) The Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office unless it
has received not less than five Business Days prior notice from that
Lender to the contrary in accordance with the terms of this Agreement.
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(b) Each Lender shall supply the Agent with any information required by
the Agent in order to calculate the Mandatory Cost in accordance with
Schedule 4 (Mandatory Cost formulae).
25.14 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and the Mandated Lead Arranger that it
has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document; and
(d) the adequacy, accuracy, and/or completeness of the Information
Memorandum and any other information provided by the Agent, any Party
or by any other person under or in connection with any Finance
Documents, the transactions contemplated by the Finance Documents or
any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance
Document.
25.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall
(in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
25.16 AGENT'S MANAGEMENT TIME
Any amount payable to the Agent under Clause 14.3 (Indemnity to the
Agent), Clause 16 (Costs and expenses) and Clause 25.10 (Lenders'
indemnity to the Agent) shall include the cost of utilising the Agent's
management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as the Agent may notify to the
Company and the Lenders, and is in addition to any fee paid or payable to
the Agent under Clause 11 (Fees).
25.17 WAIVER REGARDING CONSEQUENTIAL OR PUNITIVE DAMAGES
Each of the Obligors waives any claim (save for gross negligence or
wilful misconduct) that it might have in connection with the Finance
Documents and the transactions contemplated thereby, against the Finance
Parties, their subsidiaries, affiliates, officers or directors in respect
of any liability for any special, indirect, consequential or punitive
damages.
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26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
Subject to Clause 15 (Mitigation by the Lenders), no provision of this
Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
27. SHARING AMONG THE LENDERS
27.1 PAYMENTS TO LENDERS
If a Lender (a "RECOVERING LENDER") receives or recovers any amount from
an Obligor other than in accordance with Clause 28 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid had
the receipt or recovery been received or made by the Agent and
distributed in accordance with Clause 28 (Payment mechanics), without
taking account of any Tax which would be imposed on the Agent in
relation to the receipt, recovery or distribution; and
(c) the Recovering Lender shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the "SHARING PAYMENT") equal
to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share of
any payment to be made, in accordance with Clause 28.5 (Partial
payments).
27.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the Recovering Lender) in accordance with Clause 28.5 (Partial payments).
27.3 RECOVERING LENDERS' RIGHTS
(a) On a distribution by the Agent under Clause 27.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of
the Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to rely
on its rights under paragraph (a) above, the relevant Obligor shall
be liable to the Recovering Lender for a debt equal to the Sharing
Payment which is immediately due and payable.
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27.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 27.2 (Redistribution of payments) shall,
upon request of the Agent, pay to the Agent for account of that
Recovering Lender an amount equal to its share of the Sharing Payment
(together with an amount as is necessary to reimburse that Recovering
Lender for its proportion of any interest on the Sharing Payment
which that Recovering Lender is required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing Lender for the amount so reimbursed.
27.5 EXCEPTIONS
(a) This Clause 27 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this Clause,
have a valid and enforceable claim against the relevant Obligor.
(b) A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a
result of taking legal or arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lender had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice or did not take
separate legal or arbitration proceedings.
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SECTION 11
ADMINISTRATION
28. PAYMENT MECHANICS
28.1 PAYMENTS TO THE AGENT
(a) On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor or Lender shall make
the same available to the Agent (unless a contrary indication appears
in a Finance Document) for value on the due date at the time and in
such funds specified by the Agent as being customary at the time for
settlement of transactions in the relevant currency in the place of
payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency with such bank as the Agent
specifies.
28.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 28.3 (Distributions to an Obligor) and
Clause 28.4 (Clawback) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency.
28.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the Obligor or in accordance with
Clause 29 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Obligor under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
28.4 CLAWBACK
(a) Where a sum is to be paid to the Agent under the Finance Documents
for another Party, the Agent is not obliged to pay that sum to that
other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the
Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to
the Agent together with interest on that amount from the date of
payment to the date of receipt by the Agent, calculated by the Agent
to reflect its cost of funds.
28.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by an Obligor under the Finance
Documents, the Agent shall apply
that payment towards the obligations of that Obligor under the Finance
Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent, the Security Trustee and the Mandated Lead
Arranger under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest or
commission due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the order
set out in paragraphs (a)(ii) to (iv) above.
(c) If after the service of a notice by the Agent under Clause 22.16
(Acceleration) or pursuant to the provisions of clause 3.1 (Order of
Application) of the Security Trust Agreement, the Agent receives a payment
that is insufficient to discharge all the amounts then due and payable by
an Obligor under the Finance Documents, the Agent shall apply that payment
towards the obligations of that Obligor under the Finance Documents in the
following order:
(i) first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent, the Security Agent and the Mandated Lead
Arranger under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest or
commission due but unpaid under the Finance Documents;
(iii) thirdly, in or towards payment pro rata of any principal due but
unpaid under the Finance Documents; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(d) The Agent shall, if so directed by the Majority Lenders, vary the order
set out in paragraphs (c)(ii) to (iv) above.
(e) Paragraphs (a), (b), (c) and (d) above will override any appropriation
made by an Obligor.
28.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
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28.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar month
(if there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or
an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
28.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, US Dollars is the currency of
account and payment for any sum due from an Obligor under any Finance
Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when
that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than US
Dollars shall be paid in that other currency.
28.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent (after
consultation with the Company); and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent (acting
reasonably).
(b) If a change in any currency of a country occurs, this Agreement will,
to the extent the Agent (acting reasonably and after consultation
with the Company) specifies to be necessary, be amended to comply
with any generally accepted conventions and market practice in the
Relevant Interbank Market and otherwise to reflect the change in
currency.
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29. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
30. NOTICES
30.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or (other than in the case of communications to any of
the Obligors) telex or (to the extent that the relevant Party has
specified such address pursuant to Clause 30.2 (Addresses) by e-mail, and
in the case of the notification of rates of interest by the Agent pursuant
to Clause 8.4 (Notification of rates of interest) and in the case of the
delivery of any document by the Agent pursuant to paragraph (a) of Clause
25.2 (Duties of the Agent), the Agent may refer the relevant Party or
Parties (by fax, letter or (other than in case of any of the Obligors)
telex or (if so specified) e-mail) to a web site and to the location of
the relevant information on such web site in discharge of such
notification or delivery obligation.
30.2 ADDRESSES
The address, fax number and telex number, and (if so specified) e-mail
address, and, where appropriate, web site (and the department or officer,
if any, for whose attention the communication is to be made) of each Party
for any communication or document to be made or delivered under or in
connection with the Finance Documents is:
(a) in the case of the Company, that identified with its name below;
(b) in the case of each Lender or any other Obligor, that notified in
writing to the Agent on or prior to the date on which it becomes a
Party; and
(c) in the case of the Agent and the Security Trustee, that identified
with its name below,
or any substitute address, fax number, telex number, e-mail address, web
site or department or officer, or initial e-mail address as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a
change is made by the Agent) by not less than five Business Days' written
notice.
30.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only
be effective:
(i) if by way of fax, when received in legible form; or
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(ii) if by way of letter, when it has been left at the relevant address
or five Business Days after being given into the custody of an
internationally recognised courier service for delivery as soon as
reasonably possible with its courier fee having been paid and the
relevant address having been provided; or
(iii) if by way of telex, when dispatched, but only if, at the time of
transmission, the correct answerback appears at the start and at the
end of the senders copy of the notice; or
(iv) if by way of e-mail, when sent in legible form, but only if,
following transmission, the sender does not receive a non-delivery
message; or
(v) where reference in such communication is to a web site, when the
delivery of the letter, fax, telex or, as the case may be, e-mail
referring the addressee to such web site is effective;
and, if a particular department or officer is specified as part of its
address details provided under Clause 30.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Agent or
the Security Trustee will be effective only when actually received by
the Agent or the Security Trustee, as applicable, and then only if it
is expressly marked for the attention of the department or officer
identified with the Agent's or the Security Trustee's, as applicable,
signature below (or any substitute department or officer the Agent or
the Security Trustee shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Agent.
30.4 NOTIFICATION OF ADDRESS, FAX NUMBER, TELEX NUMBER, AND E-MAIL ADDRESS
Promptly upon receipt of notification of an address, fax number, telex
number or (as the case may be) e-mail or change of address, fax number,
telex number or e-mail pursuant to Clause 30.2 (Addresses) or changing its
own address, fax number, telex number or e-mail, the Agent shall notify
the other Parties.
30.5 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent, accompanied
by a certified English translation and, in this case, the
English translation will prevail unless the document is a
constitutional, statutory or other official document.
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31. CALCULATIONS AND CERTIFICATES
31.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
31.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error, prima
facie evidence of the matters to which it relates.
31.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days.
32. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by law.
34. AMENDMENTS AND WAIVERS
34.1 REQUIRED CONSENTS
(a) Subject to Clause 34.2 (Exceptions) any term of the Finance Documents
may be amended or waived only with the consent of the Majority Lenders
and the Obligors and any such amendment or waiver will be binding on
all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause.
34.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "MAJORITY LENDERS" in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount under the
Finance documents;
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(iii) a reduction in the Margin or the amount of any payment of
principal, interest or commission payable;
(iv) an increase in Commitment;
(v) a change to the Borrower or Guarantors other than in
accordance with Clause 24 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of all the
Lenders;
(vii) Clause 2.2 (Lenders' rights and obligations), Clause 17
(Guarantee and Indemnity), Clause 20 (Financial Covenants),
Clause 21.3 (Negative Pledge), Clause 23 (Changes to the
Lenders), or this Clause 34; or
(viii) the discharge or release of any Security or any amendment to
any Security Document which could be reasonably expected to
have an adverse effect on the Security granted pursuant to
such Security Document,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of
the Agent, the Security Trustee or the Mandated Lead Arranger may not
be effected without the consent of the Agent, the Security Trustee or
the Mandated Lead Arranger.
35. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
36. GOVERNING LAW
This Agreement is governed by English law.
37. ENFORCEMENT
37.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a
"DISPUTE").
(b) The Parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will
argue to the contrary.
(c) This Clause 37.1 is for the benefit of the Finance Parties only. As a
result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties take concurrent proceedings
in any number of jurisdictions.
37.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in England and Wales):
(a) irrevocably appoints St. James's Corporate Services Limited of 6 St.
James's Place, London, SW1A 1NP as its agent for service of process in
relation to any proceedings before the English courts in connection with
any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant Obligor of
the process will not invalidate the proceedings concerned.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
THE ORIGINAL PARTIES
PART 1
THE ORIGINAL OBLIGORS
<Table>
<Caption>
NAME OF BORROWER JURISDICTION OF INCORPORATION REGISTRATION NUMBER (OR EQUIVALENT, IF ANY)
- ---------------- ----------------------------- -------------------------------------------
Harmony Gold W.A. Pty Limited Commonwealth of Australia ACN: 099 119 918
NAME OF ORIGINAL GUARANTOR JURISDICTION OF INCORPORATION REGISTRATION NUMBER (OR EQUIVALENT, IF ANY)
- -------------------------- ----------------------------- -------------------------------------------
Harmony Gold Mining Company Republic of South Africa 1950/038232/06
Limited
Randfontein Estates Limited Republic of South Africa 1889/000251/06
Evander Gold Mines Limited Republic of South Africa 1920/006598/06
Kalahari Goldridge Mining Republic of South Africa 1982/002818/06
Company Limited
Lydenburg Exploration Limited Republic of South Africa 1988/001853/06
</Table>
-74-
PART II
THE ORIGINAL LENDERS
<Table>
<Caption>
NAME OF ORIGINAL LENDER COMMITMENT
Australia and New Zealand Banking Group Limited US$14,000,000
(ABN: 11 005 357 522)
Citibank, N.A. US$14,000,000
Societe Generale US$14,000,000
N M Rothschild & Sons Limited US$11,000,000
ABSA Asia Limited US$ 9,000,000
RMB International (Dublin) Limited US$ 9,000,000
Standard Finance (Isle of Man) Limited US$ 9,000,000
-------------
US$80,000,000
</Table>
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SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. ORIGINAL OBLIGORS
(a) A copy of the constitutional documents of each Original Obligor.
(b) A copy of a resolution of the board of directors of each Original
Obligor:
(i) approving the terms of, and the transactions contemplated by,
the Finance Documents to which it is a party and resolving that
it execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf;
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including, if
relevant, any Utilisation Request and Selection Notice) to be
signed and/or despatched by it under or in connection with the
Finance Documents to which it is a party; and
(iv) in respect of the Borrower only, approving the terms of the
Offer Documents.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(d) A copy of a resolution signed by all the holders of the issued shares
in each Original Guarantor (other than the Company), approving the
terms of, and the transactions contemplated by, the Finance Documents
to which the Original Guarantor is a party.
(e) A certificate of the Company (signed by a director) confirming that
borrowing or guaranteeing, as appropriate, the Total Commitments
would not cause any borrowing (including that set out in article 125
of the articles of association of the Company), guaranteeing or
similar limit binding on any Original Obligor to be exceeded.
(f) A certificate of an authorised signatory of the relevant Original
Obligor certifying that each copy document relating to it specified
in this Part I of Schedule 2 is correct, complete and in full force
and effect as at a date no earlier than the date of this Agreement.
(g) The Group Structure Chart.
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2. LEGAL OPINIONS
(a) A legal opinion of Clifford Chance L.L.P. legal advisers to the
Mandated Lead Arranger and the Agent in England, substantially in the
form distributed to the Original Lenders prior to signing this
Agreement.
(b) If an Original Obligor or Third Party Security Provider is
incorporated in a jurisdiction other than England and Wales, a legal
opinion of the legal advisers to the Mandated Lead Arranger and the
Agent in the relevant jurisdiction, substantially in the form
distributed to the Original Lenders prior to signing this Agreement.
3. OTHER DOCUMENTS AND EVIDENCE
(a) Loan Note Deed Poll duly executed by the Borrower.
(b) A copy of the constitutional documents of each Third Party Security
Provider.
(c) A copy of a resolution of the board of directors of Harmony Gold
(Australia) Pty Limited authorising the execution of and entry into
the Memorandum of Deposit (to which it is party) and any acts,
matters or things, including, without limitation, the delivery and
execution of any document, contemplated by the Memorandum of Deposit
(to which it is party).
(d) A copy of a resolution of the board of directors of Harmony Gold
Securities Pty Limited authorising the execution of and entry into
the Memorandum of Deposit (to which it is party) and any acts,
matters or things, including, without limitation, the delivery and
execution of any document, contemplated by the Memorandum of Deposit
(to which it is party).
(e) A copy of a resolution signed by all the holders of the issued shares
in Harmony Gold (Australia) Pty Limited authorising the execution of
and entry into the Memorandum of Deposit (to which it is party) and
any acts, matters or things, including, without limitation, the
delivery and execution of any document, contemplated by the
Memorandum of Deposit (to which it is party).
(f) A copy of a resolution signed by all the holders of the issued shares
in Harmony Gold Securities Pty Limited authorising the execution of
and entry into the Memorandum of Deposit (to which it is party) and
any acts, matters or things, including, without limitation, the
delivery and execution of any document, contemplated by the
Memorandum of Deposit (to which it is party).
(g) Evidence that any process agent referred to in Clause 37.2 (Service
of process) or clause 16.4 (Service of process) of the Security Trust
Agreement has accepted its appointment.
(h) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable (if
it has notified the Company accordingly) in connection with the entry
into and performance of the transactions
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contemplated by any Finance Document or for the validity and
enforceability of any Finance Document.
(i) The Fee Letters referred to in Clause 11.2 (Arrangement Fee) and
Clause 11.3 (Agency Fee).
(j) The Original Financial Statements of each Original Obligor (other
than the Borrower).
(k) Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 11 (Fees) and Clause 16 (Costs and Expenses) have
been paid or will be paid out of the first Loan Note Advance to be
made hereunder.
(l) Evidence that all outstanding amounts (including principal, interest,
fees and expenses) under the Interim Facility Agreement (as referred
to in Clause 3.1 (Purpose)) have been repaid or paid or will be repaid
or paid out of the first Loan Note Advance to be made hereunder.
(m) The Litigation Disclosure Letter.
(n) A certificate of the Company (signed by a director) confirming that,
to the best of its knowledge having made reasonable enquiries,
between the announcement of the Offer on 11 December 2001 and the
earlier to occur of the date of the certificate and the end of the
period during which the Offer is to remain open in accordance with
the Offer Document, no event or events have occurred which affect the
production of gold by Target or any or its Subsidiaries and which
alone or together have, or is or are likely to have one or more of
the following effects:
(i) a reduction in value of the net assets of Target and its
Subsidiaries taken as a whole by A$12,000,000 (or more); or
(ii) a reduction in the net profit before tax of Target and its
Subsidiaries taken as a whole by A$12,000,000 (or more).
4. SECURITY
(a) The Security Trust Agreement, duly executed by each party thereto.
(b) Each of the Memoranda of Deposit, duly executed by each party
thereto, together with all documents required to be provided pursuant
thereto.
(c) The Account Charge, duly executed by each party thereto, together
with all documents required to be provided pursuant to it, including
a duly acknowledged Notice of Assignment (as defined therein).
(d) Copies of the constitutions of companies approved by the Security
Trustee and deposited by Harmony Gold (Australia) Pty Limited and
Harmony Gold Securities Pty Limited each under a cover letter in the
form of Schedule 12.
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5. OFFER
(a) A copy of the Offer Document as despatched by the Borrower to the
shareholders of Target.
(b) A copy of the notice(s) given under Chapter 6 of the Corporations Act
which indicate that all of the defeating conditions have either been
fulfilled or that the Offer has been declared free from the defeating
conditions and confirmation from the Company that the Borrower has
acquired that number of Hill 50 Shares and Hill 50 Options which is
equal to at least 50.1% of the aggregate number of Hill 50 Shares and
Hill 50 Options then on issue.
(c) A statement of sources and uses in a form agreed to by the Mandated
Lead Arranger detailing the proposed sources, movements and uses of
funds necessary for the consummation of the acquisition of Target
pursuant to the Offer.
(d) A certificate of the Company (signed by a director) confirming that
all necessary governmental, shareholder and regulatory approvals,
third party consents and other clearances required to be obtained in
connection with the Offer have been obtained, including, but not
limited to, the SARB Approval.
(e) A copy of the FIRB Approval.
(f) A copy of the SARB Approval.
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PART II
CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY AN ADDITIONAL GUARANTOR
1. An Accession Letter, duly executed by the Additional Guarantor and the
Company.
2. A copy of the constitutional documents of the Additional Guarantor.
3. A copy of a resolution of the board of directors of the Additional
Guarantor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to an Additional Borrower, any Utilisation Request or
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. A copy of a resolution signed by all the holders of the issued shares of
the Additional Guarantor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional Guarantor
is a party.
6. A certificate of the Additional Guarantor (signed by a director)
confirming that borrowing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or similar limit
binding on it to be exceeded.
7. A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document listed in this Part II of Schedule 2 is
correct, complete and in full force and effect as at a date no earlier
than the date of the Accession Letter.
8. A copy of any other Authorisation or other document, opinion or assurance
(including, where relevant, SARB Approval and evidence of compliance with
any procedure for permitting financial assistance) which the Agent
considers to be necessary or desirable in connection with the entry into
and performance of the transactions contemplated by the Accession Letter
or for the validity and enforceability of any Finance Document.
9. If available, the latest audited financial statements of the Additional
Guarantor.
10. A legal opinion of Clifford Chance L.L.P., legal advisers to the Mandated
Lead Arranger and the Agent in England.
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11. If the Additional Guarantor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Mandated
Lead Arranger and the Agent in the jurisdiction in which the Additional
Guarantor is incorporated.
12. If the proposed Additional Guarantor is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified in
Clause 37.2 (Service of process), if not an Obligor, has accepted its
appointment in relation to the proposed Additional Guarantor.
13. A duly executed, dated and delivered deed of accession to the Security
Trust Agreement (in the form required thereby).
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SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
HARMONY GOLD MINING COMPANY LIMITED -- US$80,000,000 LOAN NOTE FACILITY
AGREEMENT DATED [ ] 2002 (THE ''FACILITY AGREEMENT'')
1. We refer to the Facility Agreement. This is a Utilisation Request. Terms
defined in the Facility Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation Request.
2. We wish to request a Loan Note Advance on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business Day,
the next Business Day)
Currency of Loan Note Advance: US Dollars
Amount: [ ]
Interest Period: [ ]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan Note Advance should be credited to [account]*.
5. This Utilisation Request is irrevocable.
Yours faithfully
.....................
authorised signatory for
Harmony Gold W.A. Pty Limited**
*Payment of proceeds drawn down hereunder into an account held in Western
Australia or Queensland may have serious stamp duty consequences.
**Execution of this Utilisation Request in Western Australia or Queensland
may have serious stamp duty consequences.
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PART II
SELECTION NOTICE
APPLICABLE TO LOAN NOTE ADVANCES
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
HARMONY GOLD MINING COMPANY LIMITED - US$80,000,000 LOAN NOTE FACILITY
AGREEMENT DATED [ ] 2002 (THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is a Selection Notice. Terms
defined in the Facility agreement have the same meaning in this Selection
Notice unless given a different meaning in this Selection Notice.
2. We refer to the following Loan Note Advance with an Interest Period ending
on [ ].
3. We request that the next Interest Period for the above Loan Note Advance is
[ ].
4. This Selection Notice is irrevocable.
Yours faithfully
------------------------
authorised signatory for
Harmony Gold W.A. Pty Limited
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SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the
Financial Services Authority (or, any other authority which replaces all or
any of its functions), (b) the requirements of the European Central Bank,
or (c) the requirements (if any) of the equivalent financial regulatory
body ("FINANCIAL REGULATORY BODY") in such Lender's jurisdiction of
incorporation, where such jurisdiction is neither the United Kingdom nor a
Participating Member State (being the South African Reserve Bank in South
Africa).
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"ADDITIONAL COST RATE") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan Note Advance) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent as the cost of complying with the minimum reserve requirements
of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office in a
jurisdiction other than a Participating Member State or the United Kingdom
will be the percentage notified by that Lender to the Agent as the cost of
complying with the requirements of its Financial Regulatory Body (where
such requirements are equivalent to those of the Financial Services
Authority or the European Central Bank, referred to in this Schedule).
5. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
E x 0.01
-------- per cent. per annum.
300
Where:
E is the rate of charge payable by that Lender to the Financial Services
Authority pursuant to the Fees Rules (calculated, for this purpose by
the Agent as being the average of the fee tariffs specified in the Fee
Rules under the activity group A.1 Deposit acceptors, ignoring any
minimum fee or zero related fee required pursuant to the Fee Rules)
and expressed in pounds per L1,000,000 of the Tariff Base of that
Lender.
6. For the purposes of this Schedule:
(a) "FEES RULES" means the rules on supervision fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance
of deposits; and
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(b) "TARIFF BASE" has the meaning given to it, and will be calculated in
accordance with, the Fees Rules.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information in writing
on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its Facility
Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Lender shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Lender for the purpose of E
above shall be determined by the Agent based upon the information supplied
to it pursuant to paragraph 7 above and on the assumption that, unless a
Lender notifies the Agent to the contrary, each Lender's obligations in
relation to the Fees Rules are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by any
Lender pursuant to paragraphs 3, 4 and 7 above is true and correct in all
respects.
10. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender pursuant
to paragraphs 3, 4 and 7 above.
11. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
The Agent may from time to time, after consultation with the Company and the
Lenders, determine and notify to all Parties any amendments which are required
to be made to this Schedule in order to comply with any change in law,
regulation or any requirements from time to time imposed by, the Financial
Services Authority, the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) or a Financial Regulatory
Body and any such determination shall, in the absence of manifest error, be
conclusive and binding on all Parties.
-85-
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
PART I
TRANSFER CERTIFICATE
To: [Citibank International plc] as Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender]
(the "NEW LENDER")
Dated:
HARMONY GOLD MINING COMPANY LIMITED - US$80,000,000 LOAN NOTE FACILITY AGREEMENT
DATED [ ] 2002 (THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is a Transfer Certificate. Terms
defined in the Facility Agreement have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer Certificate.
2. We refer to Clause 23.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 23.5 (Procedure for transfer)
and assigning, effective the Transfer Date, the corresponding rights
of the Existing Lender under the Loan Note Deed Poll and related Loan
Notes to the New Lender.
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 30.2 (Addresses)
are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 23.4 (Limitation of
responsibility of Existing Lenders).
4. This Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on a
single copy of this Transfer Certificate.
5. This Transfer Certificate is governed by English law.
-86-
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
FACILITY
--------
Existing Lender's Commitment US$ [ ]
Proportion of Existing Lender's Commitment US$ [ ]
transferred
Existing Lender's participation in outstanding US$ [ ]
Facility
Proportion of Existing Lender's participation in US$ [ ]
outstanding Facility transferred
ADMINISTRATION DETAILS OF NEW LENDER
Facility Office: [ ]
Fax no.: [ ]
Contact name for notices: [ ]
Account details for payments: [ ]
[Existing Lender] [New Lender]*
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
* NOTE: Execution and delivery of a Transfer Certificate may not be
sufficient to transfer security - as at the date of this Agreement, the New
Lender would need to accede to the Security Trust Agreement.
-87-
PART II
LMA TRANSFER CERTIFICATE (PAR)
EXISTING LENDER: Date:
NEW LENDER:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"SALE AGREEMENT") evidenced by the Confirmation dated between the Existing
Lender and the New Lender (acting directly or through their respective agents)
and (ii) the Credit Agreement.
On the Transfer Date, the transfer by way of novation from the Existing Lender
to the New Lender on the terms set out herein and in the Credit Agreement shall
become effective subject to:-
(i) the Sale Agreement and the terms and conditions incorporated in
the Sale Agreement;
(ii) the terms and conditions annexed hereto: and
(iii) the schedule annexed hereto,
all of which are incorporated herein by reference.
THE EXISTING LENDER THE NEW LENDER
[ ] [ ]*
By: By:
* NOTE: Execution and delivery of a Transfer Certificate may not be
sufficient to transfer security - as at the date of this Agreement, the New
Lender would need to accede to the Security Trust Agreement.
-88-
THE SCHEDULE
CREDIT AGREEMENT DETAILS:
Borrower(s): ________________________________________
Credit Agreement Dated ________________________________________
Guarantor(s): ________________________________________
Agent Bank: ________________________________________
Security: [ ] No [ ] Yes (specify)_______________
Total Facility Amount: ________________________________________
Governing Law: ________________________________________
Additional Information: ________________________________________
TRANSFER DETAILS:
Name of Tranche Facility: ___________________ ___________________
Nature (Revolving, Term, Acceptances
Guarantee/Letter of Credit,
Other): ___________________ ___________________
Final Maturity: ___________________ ___________________
Participation Transferred
Commitment transferred(1) ___________________ ___________________
Drawn Amount (details below):(1) ___________________ ___________________
Undrawn Amount:(1) ___________________ ___________________
Settlement Date: ___________________
Details of outstanding Credits(1)
Specify in respect of each Credit: ___________________
Transferred Portion (amount): ___________________
Tranche/Facility: ___________________
Nature: [ ] Term [ ] Revolver [ ] Acceptance
Guarantee/Letter of Credit
[ ] Other (specify)________________
[ ] Details of other Credits are set out on the attached sheet
ADMINISTRATION DETAILS
Existing Lender's Receiving Amount: _______________________________________
New Lender's Receiving Amount: _______________________________________
ADDRESSES
Existing Lender New Lender
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref: Attn/Ref:
(1) As at the date of the Transfer Certificate.
-89-
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "TRANSFER CERTIFICATE") to which they are
annexed.
1. INTERPRETATION
In these Terms and Conditions words and expressions shall (unless otherwise
expressly defined herein) bear the meaning given to them in the Transfer
Certificate, the Credit Agreement or the Sale Agreement.
2. TRANSFER
The Existing Lender requests the New Lender to accept and procure the
transfer by novation of all or a part (as applicable) of such participation
of the Existing Lender under the Credit Agreement as is set out in the
relevant part of the Transfer Certificate under the heading "Participation
Transferred" (the "PURCHASED ASSETS") by counter-signing and delivering the
Transfer Certificate to the Agent at its address for the service of notice
specified in the Credit Agreement. On the Transfer Date the New Lender
shall pay to the Existing Lender the Settlement Amount as specified in the
pricing letter between the Existing Lender and the New Lender dated the
date of the Transfer Certificate (adjusted, if applicable, in accordance
with the Sale Agreement) and completion of the transfer will take place.
3. EFFECTIVENESS OF TRANSFER
The New Lender hereby requests the Agent to accept the Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of the
Credit Agreement so as to take effect in accordance with the terms of the
Credit Agreement on the Transfer Date or on such later date as may be
determined in accordance with the terms thereof.
4. NEW LENDER'S UNDERTAKING
The New Lender hereby undertakes with the Agent and the Existing Lender and
each of the other parties to the Credit Documentation that it will perform
in accordance with its terms all those obligations which by the terms
thereof will be assumed by it after delivery of the Transfer Certificate to
the Agent and satisfaction of the conditions (if any) subject to which the
Transfer Certificate is to take effect.
5. PAYMENTS
5.1 PLACE
All payments by either party to the other under the Transfer Certificate
shall be made to the Receiving Account of that other party. Each party may
designate a different account as its Receiving Account for payment by
giving the other not less than five Business Days notice before the due
date for payment.
-90-
5.2 FUNDS
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times and
in such funds as are customary at the time for settlement of transactions
in that currency.
6. THE AGENT
The Agent shall not be required to concern itself with the Sale Agreement
and may rely on the Transfer Certificate without taking account of the
provisions of such agreement.
7. ASSIGNMENT OF RIGHTS
The Transfer Certificate shall be binding upon and enure to the benefit of
each party and its successors and permitted assigns PROVIDED THAT neither
party may assign or transfer its rights thereunder without the prior
written consent of the other party.
8. GOVERNING LAW AND JURISDICTION
The Transfer Certificate (including, without limitation, these Terms and
Conditions) shall be governed by and construed in accordance with the laws
of England, and the parties submit to the non-exclusive jurisdiction of the
English courts.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of
any action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for any
reason the appointing party shall notify the other party and shall promptly
appoint another person incorporated within England and Wales to act as its
process agent.
-91-
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [Citibank International plc] as Agent
From: [Subsidiary] and Company
Dated:
Dear Sirs
HARMONY GOLD MINING COMPANY LIMITED -- US$80,000,000 LOAN NOTE FACILITY
AGREEMENT DATED [ ] 2002 (THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is an Accession Letter. Terms
defined in the Facility Agreement have the same meaning in this Accession
Letter unless given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional Guarantor and to be bound by
the terms of the Facility Agreement as an Additional Guarantor pursuant to
Clause 24.2 (Additional Guarantors) of the Facility Agreement. [Subsidiary]
is a company duly incorporated under the laws of [name of relevant
jurisdiction].
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This letter is governed by English law.
This Guarantor Accession Letter is entered into by a deed.
[Company] [Subsidiary]
-92-
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [Citibank International plc] as Agent
From: [resigning Obligor] and [Company]
Dated:
Dear Sirs
HARMONY GOLD MINING COMPANY LIMITED -- US$80,000,000 LOAN NOTE FACILITY
AGREEMENT DATED [ ] 2002 (THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is a Resignation Letter. Terms
defined in the Facility Agreement have the same meaning in this Resignation
Letter unless given a different meaning in this Resignation Letter.
2. Pursuant to Clause 24.5 (Resignation of a Guarantor), we request that
[resigning Obligor] be released from its obligations as a Guarantor
under the Facility Agreement.
3. We confirm that:
(a) no default is continuing or would result from the acceptance of this
request; and
(b) [ ]*
4. This letter is governed by English law.
[Company] [Subsidiary]
By: By:
*Insert any other conditions required by the Facility Agreement.
-93-
SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: [Citibank International plc] as Agent
From: [Company]
Dated:
Dear Sirs
HARMONY GOLD MINING COMPANY LIMITED -- US$80,000,000 LOAN NOTE FACILITY
AGREEMENT DATED [ ] 2002 (THE "FACILITY AGREEMENT")
1. We refer to the Facility Agreement. This is a Compliance Certificate. Terms
defined in the Facility Agreement have the same meaning in this Compliance
Certificate unless given a different meaning in this Compliance
Certificate.
2. We confirm that as at [Quarter Date]:
(a) CONSOLIDATED EBITDA TO DEBT SERVICE
the ratio of Consolidated EBITDA to Debt Service for the Relevant
Period ending on [Quarter Date] was: [ ]:1;
(b) CONSOLIDATED BORROWINGS TO CONSOLIDATED EBITDA
the ratio of Consolidated Borrowings to Consolidated EBITDA for the
Relevant Period ending on [Quarter Date] was: [ ]:1;
(c) CONSOLIDATED TANGIBLE NET WORTH
Consolidated Tangible Net Worth was ZAR [ ];
and attach calculations showing how these figures were calculated.
3. [We also confirm that:
(a) the aggregate (without double counting) SA Guarantor EBITDA (as
defined in Clause 24.2 (Additional Guarantors)) for the Relevant
Period ending on [Quarter Date] was [ ]% of the SA Group EBITDA (as
defined in Clause 24.2 (Additional Guarantor)) for that Relevant
Period; and
(b) the aggregate gross assets (without double counting) of the Guarantors
incorporated in South Africa as at [Quarter Date] was [ ]% of the
aggregate gross assets of the members of the Group incorporated in
South Africa as at such date.
[NOTE: THIS PARAGRAPH 4 ONLY TO BE GIVEN WITH FINANCIAL YEAR
STATEMENTS]]
-94-
4. [We confirm that no Default is continuing.]*
Signed: .......................
[Financial Director]
Of
[Company]
[insert applicable certification language]
* If this statement cannot be made, the certificate should identify and
Default that is continuing and the steps, if any, that are being taken to
remedy it.
-95-
..................
for and on behalf of
[name of auditors of the Company]
[NOTE: AUDITORS TO SIGN CERTIFICATE RELATING TO FINANCIAL YEAR STATEMENTS]
-96-
SCHEDULE 9
LMA FORM OF CONFIDENTIALITY UNDERTAKING
LMA CONFIDENTIALITY LETTER (SELLER)
[LETTERHEAD OF SELLER/SELLER'S AGENT/BROKER]
To:
--------------------------------
--------------------------------
[insert name of Potential Purchaser/Purchaser's agent/broker]
Re: THE AGREEMENT
- ------------------------------------
BORROWER: HARMONY GOLD W.A. PTY LIMITED
DATE: [ ]
AMOUNT: US$80,000,000
AGENT: [CITIBANK INTERNATIONAL PLC]
- ------------------------------------
Dear Sirs
We understand that you are considering [acquiring]/[arranging the acquisition
of] an interest in the Agreement (the "ACQUISITION"). In consideration of us
agreeing to make available to you certain information, by your signature of a
copy of this letter you agree as follows:
1. Confidentiality Undertaking You undertake (a) to keep the Confidential
Information confidential and not to disclose it to anyone except as
provided for by paragraph 2 below and to ensure that the Confidential
Information is protected with security measures and a degree of care
that would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, (c) to use all
reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2[(c)/(d)]c
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make enquiries of any
member of the Group or any of their officers, directors, employees or
professional advisers relating directly or indirectly to the Acquisition.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
(a) to members of the Purchaser Group and their officers, directors,
employees and professional advisers to the extent necessary for the
Permitted Purpose and to any auditors of members of the Purchaser
Group;
-97-
[(b) subject to the requirements of the Agreement, in accordance with
the Permitted Purpose so long as any prospective purchaser has
delivered a letter to you in equivalent form to this letter;]
[(b/c)]c subject to the requirements of the Agreement, to any person to
(or through) whom you assign or transfer (or may potentially
assign or transfer) all or any of the rights, benefits and
obligations which you may acquire under the Agreement or with (or
through) whom you enter into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under
which payments are to be made by reference to, the Agreement or
the Borrower or any member of the Group so long as that person
has delivered a letter to you in equivalent form to this letter;
and
[(c/d]c (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the rules
of any stock exchange on which the shares or other securities of
any member of the Purchaser Group are listed or (iii) where
required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Purchaser
Group.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2[(c)/(d)]c or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or permanently
erase all copies of Confidential Information made by you and use all
reasonable endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent
that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance
with internal policy, or where the Confidential Information has been
disclosed under paragraph 2[(c)/(d)]c above.
5. Continuing Obligations The obligations in this letter are continuing and,
in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous sentence, the
obligations in this letter shall cease (a) if you become a party to or
otherwise acquire (by assignment or sub-participation) an interest, direct
or indirect, in the Agreement or (b) twelve months after you have returned
all Confidential Information supplied to you by us and destroyed or
permanently erased all copies of Confidential Information made by you
(other than any such Confidential Information or copies which have been
disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or which,
pursuant to paragraph 4 above, are not required to be returned or
destroyed).
6. No Representation; Consequences of Breach, etc You acknowledge and
agree that:
-98-
(a) neither we, [nor our principal] nor any member of the Group nor any of
our or their respective officers, employees or advisers (each a
"RELEVANT PERSON") (i) make any representation or warranty, express or
implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information or
any other information supplied by us or the assumptions on which it is
based or (ii) shall be under any obligation to update or correct any
inaccuracy in the Confidential Information or any other information
supplied by us or be otherwise liable to you or any other person in
respect to the Confidential Information or any such information; and
(b) we [or our principal](d) or members of the Group may be irreparably
harmed by the breach of the terms hereof and damages may not be an
adequate remedy; each Relevant Person may be granted an injunction or
specific performance for any threatened or actual breach of the
provisions of this letter by you.
7. No Waiver; Amendments, etc This letter sets out the full extent of your
obligations of confidentiality owed to us in relation to the information
the subject of this letter. No failure or delay in exercising any right,
power or privilege hereunder will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or
privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between us.
8. Inside Information You acknowledge that some or all of the Confidential
Information is or may be price-sensitive information and that the use of
such information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any Confidential
Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter are
given to us and (without implying any fiduciary obligations on our part)
are also given for the benefit of [our principal,](d) the Borrower and each
other member of the Group.
10. Third party rights
(a) Subject to paragraph 6 and paragraph 9 the terms of this letter may be
enforced and relied upon by you and us and the operation of the
Contracts (Rights of Third Parties) Act 1999 is excluded.
(b) Notwithstanding any provisions of this letter, the parties to this
letter do not require the consent of any Relevant Person or any member
of the Group to rescind or vary this letter at any time.
11. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by and
construed in accordance with the laws of England and the parties submit to
the non-exclusive jurisdiction of the English courts.
-99-
12. Definitions In this letter (including the acknowledgement set out below)
terms defined in the Agreement shall, unless the context otherwise
requires, have the same meaning and:
"CONFIDENTIAL INFORMATION" means any information relating to the Borrower,
the Group, the Agreement and/or the Acquisition provided to you by us or
any of our affiliates or advisers, in whatever form, and includes
information given orally and any document, electronic file or any other way
of representing or recording information which contains or is derived or
copied from such information but excludes information that (a) is or
becomes public knowledge other than as a direct or indirect result of any
breach of this letter or (b) is known by you before the date the
information is disclosed to you by us or any of our affiliates or advisers
or is lawfully obtained by you thereafter, other than from a source which
is connected with the Group and which, in either case, as far as you are
aware, has not been obtained in violation of, and is not otherwise subject
to, any obligation of confidentiality;
"GROUP" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as each
such term is defined in the Companies Act 1985);
"PERMITTED PURPOSE" means [subject to the terms of this letter, passing on
information to a prospective purchaser for the purpose of] considering and
evaluating whether to enter into the Acquisition; and
"PURCHASER GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as each
such term is defined in the Companies Act 1985).
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
................
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
.................
For and on behalf of
[POTENTIAL PURCHASER/PURCHASER'S AGENT/BROKER]
-100-
SCHEDULE 10
TIMETABLES
<Table>
<Caption>
LOAN NOTE ADVANCES IN US
DOLLARS
Delivery of a duly completed Utilisation Request U-3
(Clause 5.1 (Delivery of a Utilisation Request) or
a Selection Notice (Clause 9.1 (Selection of 9:30 a.m.
Interest Periods))
Agent notifies the Lenders of the Loan Note Advance U-3
in accordance with Clause 5.4 (Lenders' participation)
3:00 p.m.
LIBOR is fixed Quotation Day as of 11:00 a.m.
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
</Table>
-101-
SCHEDULE 11
LOAN NOTE PROVISIONS
1. PROVISION OF AUSTRALIAN BUSINESS NUMBERS
Any Finance Party that is acting through an office in Australia shall, if
required by an Obligor in order to ensure that payments by the Obligor to
that Finance Party under or in connection with the Finance Documents can
be made without deduction or withholding, promptly provide its Australian
Business Number to the Obligor through the Agent.
2. RESTRICTIONS ON OFFERS AND SALES OF LOAN NOTES
(a) Each Lender represents and agrees that it has not and will not
directly or indirectly offer, sell, transfer or deliver Loan Notes or
distribute any prospectus, circular, advertisement or other offering
material relating to the Loan Notes in any jurisdiction, except under
circumstances that will result in compliance with the laws and
regulations of that jurisdiction.
(b) Each Lender represents and agrees that it:
(i) has not offered or invited applications, and will not offer or
invite applications, for the issue, sale or purchase of Loan
Notes in Australia (including an offer or invitation which is
received by a person in Australia); and
(ii) has not distributed or published, and will not distribute or
publish, any offering material or advertisement relating to the
Loan Notes in Australia;
unless:
(iii) the minimum aggregate consideration payable by each offeree
is at least A$500,000 (disregarding moneys lent by the offeror
or its associates) or the offer or invitation otherwise does
not require disclosure to investors in accordance with
Part 6D.2 of the Corporations Act; and
(iv) such action complies with all applicable laws and
regulations.
(c) Each Lender agrees that it will not offer Loan Notes for subscription
to any person if, at the time of such offer, the employees of the
Lender aware of, or involved in, the offer knew or had reasonable
grounds to suspect that, as a result of such offer, any Loan Notes or
an interest in any Loan Notes were being, or would later be, acquired
(directly or indirectly) by an Associate of the Borrower for the
purposes of Section 128F(5) of the Australian Tax Act.
(d) Each Lender represents:
(i) that it is and, at the time of the offer and issue of any Loan
Notes, with be acting as a Lender in the course of carrying on
a business of providing
-102-
finance, or investing or dealing in securities, in the course of
operating in financial markets;
(ii) except as disclosed to the Borrower, that it is not, and at the
time it acquires a Loan Note it will not be, so far as it is
aware, an Associate of any other person which was offered a Loan
Note, the Mandated Lead Arranger or the Borrower,
and agrees to provide, on written request, so far as it is reasonably
able to do so, any other information relating to the offer for
subscription of Loan Notes as may reasonably be required by the
Borrower in order to establish that payments of interest are exempt
from withholding tax under section 128F of the Australian Tax Act,
PROVIDED THAT in no such circumstances shall a Lender be obliged to
disclose any information, the disclosure of which would be contrary
to, or prohibited by, any relevant law, regulation or directive or
confidentiality agreement binding on the Lender.
3. BORROWER'S REPRESENTATIONS
The Borrower represents and undertakes to the Finance Parties that:
(a) it is resident in Australia on the date of this Agreement and the date
of offer for subscription of each Loan Note; and
(b) it will be resident in Australia on each interest payment date and the
date when any interest due under any Loan Note is actually paid.
4. LIMIT ON RESPONSIBILITY
Neither the Borrower nor the Agent have any responsibility for, and each
Lender must obtain, all authorisations required by it for the subscription,
offer, sale or transfer by it of Loan Notes under applicable laws and
regulations in any jurisdiction to which the Lender is subject or in which
it makes any offer, sale or transfer of Loan Notes.
5. REGISTERED FORM
(a) Each Loan Note is to be in registered form. Except for the Loan Note
Deed Poll no certificate will be issued in respect of a Loan Note,
unless required by law.
(b) Each Loan Note will acknowledge a Lender's Commitment, a principal
amount outstanding and an Available Commitment and will be allocated
and bear a serial number in the Register.
6. ISSUE OF LOAN NOTES BY INITIAL INSCRIPTION IN REGISTER
The issue of each Loan Note is effected by the initial inscription of the
details of the Loan Note in the Register by the Agent.
-103-
7. EFFECT OF INITIAL INSCRIPTION
The initial inscription in the Register in respect of a Loan Note will be
made on the First Utilisation Date and constitutes:
(a) the issue of the relevant Loan Note;
(b) an acknowledgement by the Borrower of the indebtedness of the Borrower
to the relevant Original Lender in respect of that Loan Note under the
Loan Note Deed Poll;
(c) an undertaking by the Borrower to the relevant Original Lender to make
all payments of principal, interest and fees in respect of the Loan
Note in accordance with this Agreement and the Loan Note Deed Poll;
and
(d) an entitlement to the other benefits given under the Loan Note Deed
Poll in respect of the relevant Loan Note.
8. EFFECT OF FURTHER INSCRIPTION
The inscription in the Register in respect of a Loan Note will be made on
any transfer in accordance with Clause 23 (Changes to the Lenders) of the
Agreement and constitutes:
(a) the transfer of the relevant Loan Note;
(b) an acknowledgement by the Borrower of its indebtedness to the
relevant Lender in respect of that Loan Note under the Loan Note Deed
Poll;
(c) an undertaking by the Borrower to the relevant Lender to make all
payments of principal, interest and fees in respect of the relevant
Loan Note in accordance with this Agreement and the Loan Note Deed
Poll; and
(d) an entitlement to the other benefits given under the Loan Note Deed
Poll in respect of the relevant Loan Notes.
9. APPOINTMENT OF AGENT
(a) The Agent is appointed by the Borrower as agent for the Borrower in
connection with the Loan Notes to act as the registrar in respect of
the Loan Notes on the terms and conditions of this Agreement and the
Loan Note Deed Poll.
(b) The Agent acts as agent of the Borrower and not as trustee and has no
fiduciary duties in its capacity as agent. The Agent is not liable for
its acts or omissions except in the case of fraud, negligence or
wilful default.
(c) The Agent agrees to act as agent of the Borrower in maintaining the
Register and making entries in the Register.
-104-
10. REGISTER
10.1 Establishment of Register
The Agent will establish and maintain a register in England or any other
place approved by the Borrower (taking into account stamp duty
considerations).
10.2 The Register
(a) The Agent shall inscribe the following information in the Register
in respect of each Loan Note:
(i) the issue date of the Loan Note;
(ii) the serial number allocated to the Loan Note;
(iii) its outstanding principal amount;
(iv) Loan Note Advance[s] and Available Commitment;
(v) the name and address of the Original Lenders and each
subsequent Lender;
(vi) the account or address in Australia or outside Australia of
the Lender to which payments are to be made;
(vii) details of all transfers or assignments, advances, repayments,
prepayments and redemption of all or part of the Loan Note;
and
(viii) such other information that the Borrower considers necessary
or desirable to be recorded in the Register in relation to the
Loan Note.
(b) The Agent shall update the Register to note changes to any of the
details referred to in paragraph (a) above.
10.3 Register is paramount
(a) The Borrower and the Agent shall recognise the Lender whose name
appears in the Register as the absolute owner of the Loan Notes
inscribed in its name on the Register without regard to any other
record or instrument.
(b) No notice of any trust or other interest in any Loan Note will be
entered on the Register. Neither the Borrower nor the Agent need take
notice of any other interest in, or claim to, a Loan Note, except as
ordered by a court of competent jurisdiction or required by law.
10.4 Inspection of Register
Each Lender, the Borrower and the Guarantors may inspect the Register on
prior reasonable notice (of at least three Business Days) to the Agent
between 9.30 a.m. and 4.30 p.m. on any day on which banks are generally
open for business in the place where the Register is kept.
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10.5 Rectification of Register
If the Borrower or any Lender gives notice of any error, omission, defect
or misdescription in the Register, the Agent must (acting in good faith on
such notice) rectify the Register promptly following such notification.
10.6 Certified extracts from Register available
The Borrower agrees, on request by a Lender, to procure that the Agent
provides (and the Agent agrees so to provide) to that Lender a certified
extract of the particulars as required by paragraph 10.2 of this Schedule
11 entered in the Register in relation to that Lender and the Loan Notes
held by it.
10.7 Agent to Act
The Agent agrees to exercise the rights, remedies, powers and discretions
and perform the obligations which are specifically delegated to or
conferred on it in accordance with this Schedule 11. The Agent has no
obligations except those expressly set out or referred to in this
Agreement.
10.8 Resignation
The Agent may resign as Agent by giving not less than thirty Business
Days' prior notice to that effect to each of the other parties to this
Agreement, PROVIDED THAT no such resignation shall be effective until a
successor for the Agent is appointed in accordance with paragraph 10.9 of
this Schedule 11.
10.9 Successor Agent
If the Agent gives notice of its resignation pursuant to paragraph 10.8 of
this Schedule 11, then any reputable and experienced bank or other
financial institution may be appointed as a successor to the Agent by the
Borrower with the consent of the Lenders during the period of notice
specified in paragraph 10.8 of this Schedule 11 but, if no such successor
is so appointed, the Agent may appoint such a successor itself.
10.10 Rights and Obligations
If a successor to the Agent is appointed pursuant to paragraph 10.9 of
this Schedule 11, then:
(a) the retiring Agent shall be discharged from any further obligation
under this Agreement and the Loan Note Deed Poll but shall remain
entitled to the benefit of the provisions of this Schedule 11; and
(b) its successor and each of the other parties to this Agreement shall
have the same rights and obligations amongst themselves as they would
have had if such successor had been a party to this Agreement.
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11. INDEMNIFICATION
The Borrower and the Guarantors shall from time to time on demand by the
Agent, indemnify the Agent, against any and all reasonable costs, claims,
issues, expenses (including legal fees) and liabilities together with any
VAT thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as agent
for the Borrower (as referred to in paragraph 9 (Appointment of Agent) of
this Schedule 11) and the Loan Note Deed Poll.
12. NO PROSPECTUS
Each Lender acknowledges that no prospectus in relation to the Loan Notes
has been lodged with or registered by the Australian Securities and
Investments Commission or elsewhere.
13. FINANCIERS TO OBSERVE LAWS
Each Lender agrees to observe laws and regulations in any jurisdiction in
which it may offer, sell, transfer or deliver Loan Notes.
14. OBLIGATIONS IN RELATION TO PUBLIC OFFER
(a) The Mandated Lead Arranger undertakes, represents and warrants to
the Borrower that:
(i) it has made offers on behalf of the Borrower for the
subscription of Loan Notes and corresponding advances to each
financial institution specified in the list agreed with the
Borrower (being in aggregate at least 10 financial
institutions) and each of which in its reasonable belief
carries on the business of providing finance or investing or
dealing in securities in the course of operating in financial
markets, for the purposes of section 128F(3)(a)(i) of the
Australian Tax Act;
(ii) the persons to whom such offers are made are not, it its
knowledge, Associates of each other or of the Mandated Lead
Arranger; and
(iii) at the written request of the Borrower it will provide to the
Borrower any information which is in its possession which the
Borrower reasonably requests to assist the Borrower to
demonstrate that the public offer test under section 128F of
the Australian Tax Act has been satisfied in connection with
the Loan Notes and the payments of interest under the Loan
Notes are exempt from withholding tax under that section of
that Act (but, without prejudice to paragraph 14(a)(i) above,
Mandated Lead Arranger does not represent or warrant that such
test has been satisfied).
(b) The Borrower confirms that no financial institution in the list
referred to in paragraph 14(a)(i) of this schedule 11 was known or
suspected by it before the date of this Agreement to be an Associate
of the Borrower or of any other financial institution specified in
that list and it will on or before the first Utilisation Date
immediately advise the Mandated Lead Arranger or the Agent if any
parties
-107-
disclosed to it by the Mandated Lead Arranger or the Agent is known
or suspected by it to be an Associate of the Borrower or of any other
such financial institution.
-108-
SCHEDULE 12
COVER LETTER FOR CONSTITUTION
[HARMONY GOLD (AUSTRALIA) PTY LIMITED/HARMONY GOLD SECURITIES
PTY LIMITED LETTERHEAD]
[date]
Citibank International plc
P.O. Box 242
336, Strand
London WC2R 1HB
Attention: Cliff Posner
Dear Sir
US$80,000,000 LOAN NOTE FACILITY AGREEMENT DATED [ ] 2002 BETWEEN HARMONY GOLD
MINING COMPANY LIMITED AS THE COMPANY, CITIBANK N.A. AS MANDATED LEAD ARRANGER,
CITIBANK INTERNATIONAL PLC AS AGENT AND SECURITY TRUSTEE, THE ENTITIES DEFINED
THEREIN AS BORROWER AND GUARANTORS AND THE FINANCIAL INSTITUTIONS DEFINED
THEREIN AS LENDERS
We refer to the Memorandum of Deposit ("MEMORANDUM OF DEPOSIT") dated [ ]
2002 between [Harmony Gold (Australia) Pty Limited/Harmony Gold Securities Pty
Limited] and Citibank International plc ("DEPOSITEE").
We enclose a certified copy of the constitution of [name of company]. Delivery
of the enclosed constitution is intended to constitute deposit of such
constitution with the Depositee as contemplated in clause 3.1 of the Memorandum
of Deposit.
Yours faithfully
[Name]
For and on behalf of [Harmony Gold (Australia) Pty Limited/Harmony Gold
Securities Pty Limited]
Encl
-109-
SCHEDULE 13
EXISTING SECURITY
TOTAL PRINCIPAL AMOUNT OF
NAME OF OBLIGOR SECURITY INDEBTEDNESS SECURED
- --------------- --------- --------------------------
The Company Security over gold held in the US$9,900,000
Harmony Refinery and Beneficiation
Centre, Harmony Main Offices,
Remainder of Portion 3 of the Farm
Harmony 222, Private Road, Glen
Harmony, Virginia 9430 in the Free
State Province, South Africa in
favour of BAE Systems plc, securing
indebtedness under a loan agreement
dated 2 March 2001, evidenced by a
Notarial Covering Bond dated
22 March 2001 and made between the
Company and BAE Systems plc.
-110-
SIGNATURES
THE COMPANY
HARMONY GOLD MINING COMPANY LIMITED
By:
Address: James Park Complex
Corner of Main Reef Road and Ward Avenue
Block 27
Randfontein
Gauteng
Republic of South Africa
(P.O. Box 2, Randfontein 1760)
Fax: +27 (0) 11 693 2411
E-mail: fabbott@harmony.co.za
Attention: Frank Abbott
THE BORROWER
HARMONY GOLD W.A. PTY LIMITED
By: /s/
a partner of Theodore Goddard, London (acting as attorney for Harmony Gold W.A.
Pty Limited pursuant to a power of attorney dated 28th February 2002)
THE ORIGINAL GUARANTORS
HARMONY GOLD MINING COMPANY LIMITED
By:
RANDFONTEIN ESTATES LIMITED
By:
-111-
SIGNATURES
THE COMPANY
HARMONY GOLD MINING COMPANY LIMITED
By:
Address: James Park Complex
Corner of Main Reef Road and Ward Avenue
Block 27
Randfontein
Gauteng
Republic of South Africa
(P.O. Box 2, Randfontein 1760)
Fax: +27 (0) 11 693 2411
E-mail: fabbott@harmony.co.za
Attention: Frank Abbott
THE BORROWER
HARMONY GOLD W.A. PTY LIMITED
By: /s/
a partner of Theodore Goddard, London (acting as attorney for Harmony Gold W.A.
Pty Limited pursuant to a power of attorney dated 28th February 2002)
THE ORIGINAL GUARANTORS
HARMONY GOLD MINING COMPANY LIMITED
By:
RANDFONTEIN ESTATES LIMITED
By:
-112-
SIGNATURES
THE COMPANY
HARMONY GOLD MINING COMPANY LIMITED
By: /s/ Frank Abbott
Address: James Park Complex
Corner of Main Reef Road and Ward Avenue
Block 27
Randfontein
Gauteng
Republic of South Africa
(P.O. Box 2, Randfontein 1760)
Fax: +27 (0) 11 693 2411
E-mail: fabbott@harmony.ro.za
Attention: Frank Abbott
THE BORROWER
HARMONY GOLD W.A. PTY LIMITED
By:
THE ORIGINAL GUARANTORS
HARMONY GOLD MINING COMPANY LIMITED
By: /s/ Frank Abbott
RANDFONTEIN ESTATES LIMITED
By: /s/ Frank Abbott
-111-
EVANDER GOLD MINES LIMITED
By: /s/ Frank Abbott
KALAHARI GOLDRIDGE MINING COMPANY LIMITED
By: /s/ Frank Abbott
LYDENBURG EXPLORATION LIMITED
By: /s/ Frank Abbott
THE MANDATED LEAD ARRANGER
CITIBANK, N.A.
By:
Address: 33 Canada Square
Canary Wharf
London E14 5LB
Fax: 020 7986 8278
THE AGENT
CITIBANK INTERNATIONAL plc
By:
Address: P.O. Box 242
336, Strand
London WC2R 1HB
Fax: 020 7500 4482/4484
Telex: 940500
E-mail: cliff.posner@citicorp.com
Attention: Cliff Posner
-112-
EVANDER GOLD MINES LIMITED
By:
KALAHARI GOLDRIDGE MINING COMPANY LIMITED
By:
LYDENBURG EXPLORATION LIMITED
By:
THE MANDATED LEAD ARRANGER
CITIBANK, N.A.
By: /s/ Murat Demirel
Address: 33 Canada Square
Canary Wharf
London E14 5LB
Fax: 020 7986 8278
THE AGENT
CITIBANK INTERNATIONAL plc
By: /s/ Murat Demirel
Address: P.O. Box 242
336, Strand
London WC2R 1HB
Fax: 020 7500 4482/4484
Telex: 940500
E-mail: cliff.posner@citicorp.com
Attention: Cliff Posner
-112-
THE SECURITY TRUSTEE
CITIBANK INTERNATIONAL plc
By: /s/ Murat Demirel
Address: P.O. Box 242
336, Strand
London WC2R 1HB
Fax: 020 7500 4482/4484
Telex: 940500
E-mail: cliff.posner@citicorp.com
Attention: Cliff Posner
THE LENDERS
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By: /s/ Murat Demirel
CITIBANK, N.A.
By: /s/ Murat Demirel
SOCIETE GENERALE
By: /s/ Murat Demirel
N M ROTHSCHILD & SONS LIMITED
By:
-113-
THE SECURITY TRUSTEE
CITIBANK INTERNATIONAL plc
By:
Address: P.O. Box 242
336, Strand
London WC2R 1HB
Fax: 020 7500 4482/4484
Telex: 940500
E-mail: cliff.posner@citicorp.com
Attention: Cliff Posner
THE LENDERS
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
By:
CITIBANK, N.A.
By:
SOCIETE GENERALE
By:
N M ROTHSCHILD & SONS LIMITED
By: /s/
28/02/02
ABSA ASIA LIMITED
-110-
ABSA ASIA LIMITED
By: /s/ Murat Demirel
RMB INTERNATIONAL (DUBLIN) LIMITED
By: /s/ Murat Demirel
STANDARD FINANCE (ISLE OF MAN) LIMITED
By: /s/ Murat Demirel