FACILITIES AGREEMENT
  NEDBANK LIMITED
  HARMONY GOLD MINING COMPANY LIMITED
  THE GUARANTORS LISTED IN SCHEDULE 2




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Table of Contents
 1.
    
    PARTIES
    
    
    12.
    
    DEFINITIONS AND INTERPRETATION
    
    
    13.
    
    INTRODUCTION
    
    
    344.
    
    CONDITIONS TO ADVANCE
    
    
    345.
    
    THE TERM FACILITY
    
    
    366.
    
    THE RCF FACILITY
    
    
    417.
    
    VOLUNTARY PREPAYMENT
    
    
    498.
    
    MANDATORY PREPAYMENT
    
    
    499.
    
    PAYMENTS
    
    
    5110.
    
    BREAKAGE COSTS AND BREAKAGE GAINS
    
    
    5211.
    
    GUARANTEE AND INDEMNITY
    
    
    5312.
    
    CESSION IN SECURITY
    
    
    5713.
    
    WARRANTIES AND REPRESENTATIONS
    
    
    6014.
    
    FINANCIAL INFORMATION
    
    
    7115.
    
    POSITIVE UNDERTAKINGS
    
    
    7716.
    
    NEGATIVE UNDERTAKINGS
    
    
    7917.
    
    FINANCIAL COVENANTS
    
    
    8218.
    
    EVENTS OF DEFAULT
    
    
    8319.
    
    TAXES
    
    
    9220.
    
    TAX RECEIPTS
    
    
    9321.
    
    INCREASED COSTS
    
    
    9422.
    
    CERTIFICATE OF INDEBTEDNESS
    
    
    9523.
    
    SET-OFF
    
    
    9624.
    
    CHANGE OF PARTY
    
    
    96




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25.
    
    INTEREST ON ARREAR AMOUNTS AND INDEMNITY
    
    
    10126.
    
    FACILITY AGENT
    
    
    10127.
    
    CONFIDENTIALITY
    
    
    10628.
    
    FEES AND EXPENSES
    
    
    10929.
    
    NOTICES AND DOMICILIA
    
    
    11130.
    
    GOVERNING LAW
    
    
    11431.
    
    JURISDICTION
    
    
    11432.
    
    SEVERABILITY
    
    
    11433.
    
    GENERAL
    
    
    11434.
    
    COUNTERPARTS
    
    
    115SCHEDULE 1: CONDITIONS
    
    
    125SCHEDULE 2: THE GUARANTORS
    
    
    129SCHEDULE 3: DISCLOSED ENCUMBRANCES
    
    
    130SCHEDULE 4: DISCLOSED INDEBTEDNESS
    
    
    131SCHEDULE 5: DISCLOSED LOANS
    
    
    137SCHEDULE 6: DISCLOSED POTENTIAL ENVIRONMENTAL CLAIM
    
    
    138SCHEDULE 7: FORM OF COMPLIANCE CERTIFICATE
    
    
    139SCHEDULE 8: LAST TAX RETURN YEAR
    
    
    141SCHEDULE 9: FORM OF UTILISATION REQUEST
    
    
    142SCHEDULE 10: TERM FACILITY REPAYMENT SCHEDULE
    
    
    145SCHEDULE 11: FORM OF LENDERS ACCESSION UNDERTAKING
    
    
    146SCHEDULE 12: AGREED FORM OF CESSION AND DELEGATION AGREEMENT
    
    
    148SCHEDULE 13: FORM OF CONFIDENTIALITY UNDERTAKING
    
    
    160




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FACILITIES AGREEMENT
 1.
    
    PARTIES
 1.1
    
    The Parties to this Agreement are;
 1.1.1
    
    NEDBANK LIMITED;1.1.2
    
    HARMONY GOLD MINING COMPANY LIMITED;and1.1.3
    
    THE GUARANTORS AS LISTED IN SCHEDULE 2.
 1.2
    
    The Parties agree as set out below.
 2.
    
    DEFINITIONS AND INTERPRETATION
 2.1
    
    The headings to the clauses and schedules of this Agreement are inserted for reference
purposes only and shall in no way govern or affect the interpretation hereof nor modify nor
amplify the terms of this Agreement nor any clause or schedule hereof.2.2
    
    Unless inconsistent with the context, the expressions set forth below shall bear the following
meanings and cognate expressions shall bear corresponding meanings:
 2.2.1
    
    Accession Undertakingmeans in relation to a New Lender an undertaking substantially in
the form set out in Schedule 11 (Form of Accession Undertakings);2.2.2
    
    Advancemeans either the Term Facility Advance or an RCF Advance, as the case may be;2.2.3
    
    Advance Condition Documentsmeans the documents listed in Part 1
of Schedule 1 (Advance Condition Documents):




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2.2.4
    
    Advance Conditionsmeans the conditions to the making of the first Advance listed in Part
2 of Schedule 1 (Advance Conditions);2.2.5
    
    Advance Datemeans any date upon which the Lender makes an Advance hereunder;2.2.6
    
    Agreementmeans this Facilities Agreement read together with the Schedules hereto;2.2.7
    
    Applicable RCF Marginmeans 3.5% (three comma five percent) nacm (if the applicable RCF
Interest Period is 1 (one) month), nacq (if the applicable RCF Interest Period is 3 (three)
months) or nacs (if the applicable RCF Interest Period is 6 (six) months), as specified in the
Utilisation Request relating to each RCF Advance;2.2.8
    
    Applicable Term Marginmeans 3.5% (three comma five percent) nacq;2.2.9
    
    ARM Cession and Pledge in Securitymeans the cession and pledge in
security by African Rainbow Minerals Gold Limited (ARMGold) in
favour of the Finance Parties of the shares held by it in ARMGold / Harmony Joint
Investment Company (Proprietary) Limited and ARMGold / Harmony Freegold Joint
Venture Company (Proprietary) Limited and any claims ARMGold has against such
companies;2.2.10
    
    Auditorsmeans the Borrowers auditors from time to time provided
that the Borrowers auditors shall only, save with the prior written consent of
the Facility Agent, be any one or more of Deloitte &Touche, KPMG Inc., Ernst &
Young or PricewaterhouseCoopers Inc.;




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2.2.11
    
    Authorised Signatorymeans a person or persons duly authorised to bind the Borrower
in terms of this Agreement and in respect of whom the Borrower shall have delivered to the
Facility Agent certified specimens of such persons or persons signature(s) together with
evidence satisfactory to the Facility Agent that such person is duly authorised to bind the
Borrower;2.2.12
    
    Authorisation means an authorisation, consent, approval, resolution, licence, exemption,
filing, notarisation or registration, as the case may be;2.2.13
    
    Availability Periodmeans, in relation to the RCF Facility, the period
commencing on the date of Financial Close and ending on the earlier of;
 2.2.13.1
    
    the date on which the Available RCF Facility is cancelled in terms of this Agreement; and2.2.13.2
    
    the date which is 1 (one) month prior to the Final Repayment Date relating to the RCF
Facility;
 2.2.14
    
    Available RCF Facilitymeans the RCF Facility Amount minus:
 2.2.14.1
    
    the amount of any outstanding RCF Loans; and2.2.14.2
    
    in relation to any proposed Utilisation under the RCF Facility, the amount of any RCF
Loans that are due to be made on or before the proposed Utilisation Date,
 other than any RCF Loans that are due to be repaid or prepaid on or before the
proposed Utilisation Date;2.2.15
    
    AVRD Loan Agreementmeans the written agreement entitled LoanAgreementconcluded
between Nedbank and African Vanguard




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Resources (Doornkop) (Proprietary) Limited (AVRD)on or about 30 July 2003
pursuant to which Nedbank agreed to lend and advance a loan of R116 215 000 (One
Hundred and Sixteen Million Two Hundred and Fifteen Thousand Rand) to AVRD, as
amended by the First Amending Agreement, the Second Amending Agreement, the Third
Amending Agreement, the Fourth Amending Agreement and the Fifth Amending
Agreement;2.2.16
    
    Base Ratemeans, subject to clause 6.4.1.3, JIBAR or where it is not possible to determine
JIBAR on any Reset Date, SAR-JIBAR-Reference Rate, in either case converted to a
nacm/nacq/nacs rate;2.2.17
    
    Borrowermeans Harmony Gold Mining Company Limited (Registration No. 1950/038232/06), a
public company duly incorporated in accordance with the company laws of South Africa;2.2.18
    
    Breakage Costsmeans the amount (if any) by which:
 2.2.18.1
    
    the interest (excluding any margin) 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 or Unpaid Sumto the last day of the
current Interest Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last day of that
Interest Period;
 exceeds:
 2.2.18.2
    
    the amount which a 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 Johannesburg interbank market




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for a period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period;
 2.2.19
    
    Breakage Gainsmeans the amount (if any) by which:
 2.2.19.1
    
    the amount which a 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 Johannesburg 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;
 exceeds:
 2.2.19.2
    
    the interest (excluding any margin) 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 or Unpaid Sum to the last day of the current
Interest Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that Interest
Period;
 2.2.20
    
    Business Daymeans any day other than a Saturday, Sunday or an official public holiday in
South Africa (in accordance with the Public Holidays Act, 1994) on which banks are open for
business in South Africa;2.2.21
    
    Cession and Delegation Agreementmeans the written agreement so titled entered into
between a Lender and a New Lender substantially in the form set out in Schedule 12 (Agreed
Form of Cession and Delegation Agreement),or any other form agreed to between the Borrower
and the Facility Agent;




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2.2.22
    
    Cession and Pledge in Securitymeans a cession and pledge in security
by the Borrower in favour of the Finance Parties of the shares held by the
Borrower in each of the Guarantors and any claims the Borrower has against the
Guarantors;2.2.23
    
    Confidentiality Undertakingmeans a confidentiality undertaking in the form set out in
Schedule 13 (Form of Confidentiality Undertaking);2.2.24
    
    Companies Actmeans the Companies Act, 1973;2.2.25
    
    Compliance Certificatemeans a certificate substantially in the form of the letter set out
in Schedule 7 (Form of Compliance Certificate);2.2.26
    
    Constitutional Documentsmeans, in respect of any person at any times,
the then current and up-to-date constitutional documents of such person at such
time (including, without limitation, such persons memorandum and articles of
association, certificate of incorporation and articles of incorporation);2.2.27
    
    Controlmeans in relation to a company the shares of which are not
listed on a stock exchange where another company or legal entity or person
(whether alone or pursuant to an agreement with others):
 2.2.27.1
    
    holds or controls more than 50% (fifty percent) of the voting rights
(taking into account when such voting rights can be exercised) in that
company; or2.2.27.2
    
    has the right to appoint or remove the majority of that companys
board of directors; or2.2.27.3
    
    has the power to ensure the majority of that companys board of
directors will act in accordance with its wishes;




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or if the shares of the company are listed on a stock exchange, Control means:
 2.2.27.4
    
    the holding of shares or the aggregate of holdings of shares or other securities in a
company entitling the holder thereof to exercise, or cause to be exercised 35% (thirty-five
percent) or more of the voting rights at shareholder meetings of the company irrespective of
whether such holding or holdings confers de factocontrol, provided that should there be other
shareholders holding more than 35% (thirty-five percent), 35% (thirty-five percent) shall be
read to refer to the largest percentage shareholding held at the time; or2.2.27.5
    
    the holding or control by a shareholder or member alone or pursuant to an agreement with
other shareholders or members of more than 35% (thirty-five percent) of the voting rights in
the company irrespective of whether such holding or holdings confers de factocontrol,
provided that should there be other shareholders holding more than 35% (thirty-five percent),
35% (thirty-five percent) shall be read to refer to the largest percentage shareholding held
at the time;
 2.2.28
    
    Current Ratiomeans, as at any Ratio Test Date:
 2.2.28.1
    
    the Borrowers current assets;2.2.28.2
    
    divided by the Borrowers current liabilities,as set out in the Borrowers balance sheet as at that date;
 2.2.29
    
    Defaultmeans an Event of Default or any event or circumstances which would (with the
expiry of a grace period, the giving of notice, the making




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of any determination under the Finance Documents or any combination of the
foregoing) be an Event of Default;2.2.30
    
    Default Interest Rate means the Interest Rate plus 3% (three percent);2.2.31
    
    Derivative Transaction means a contract, agreement or transaction which is a rate swap,
basis swap, forward rate transaction, bond option, interest rate option, cap, collar or
floor, or any other similar transaction and/or any combination of such transaction, in each
case, whether on-exchange or otherwise;2.2.32
    
    Discharge Date means the date on which:
 2.2.32.1
    
    all the Liabilities (other than contingent liabilities in respect of
continuing indemnities under the Finance Documents under which no claim
has been made and which remain undischarged and payments which may be
set aside in terms of clause 2.2.70.3) have been fully paid and
discharged; and2.2.32.2
    
    the Lenders have no commitment, obligation or liability (whether
actual or contingent) to lend money or provide other financial
accommodation to any Obligor under any Finance Document;
 2.2.33
    
    Disposal means a sale, lease, licence, transfer, loan or other disposal by a person of
any asset, undertaking or business (whether by a voluntary or involuntary single transaction
or series of transactions);2.2.34
    
    Disposal Proceeds means any proceeds realised by the Borrower by way of a Disposal of
any of its assets;2.2.35
    
    Distribution means any payment by way of interest, principal, dividend,
fee, royalty or other distribution or payment by or on behalf of the Borrower




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to or for the account of any Shareholder or any person that directly or
indirectly controls or is controlled by any Shareholder;2.2.36
    
    EBIT means, in respect of any person, and any period, the consolidated
operating profit before income tax for such period:
 2.2.36.1
    
    (to the extent not already excluded) before interest received or receivable and interest
paid or payable;2.2.36.2
    
    (to the extent not already excluded) adjusted to exclude any gain or loss realised on the
disposal of fixed assets (whether tangible or intangible);2.2.36.3
    
    (to the extent not already excluded) before deducting any
extraordinary costs and before including extraordinary income; and2.2.36.4
    
    plus dividends received in cash from companies consolidated by the
equity method to the extent not already taken into account;
 2.2.37
    
    Encumbrance means any mortgage, pledge, lien, assignment or cession
conferring security, hypothecation, security interest, preferential right or
trust arrangement or any other agreement or arrangement, the effect of which is
the creation of security;2.2.38
    
    Event of Default means any one or more of the events or circumstances described as an
event of default as set out in clause 18 (Events of Default);2.2.39
    
    Environmental Claim means any claim or proceedings by any person
pursuant to an Environmental Law;2.2.40
    
    Environmental Law means any law applicable to the business conducted by the Group at the
relevant time in any jurisdiction in which




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the Group conducts business which relates to the pollution, degradation or
protection of the environment or harm to or the protection of human health,
animals or plants and including, without limitation, the National Environmental
Management Act, 1998 and the National Water Act, 1998;2.2.41
    
    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 the Group on or from the properties owned or used by the
Group;2.2.42
    
    Facilities means the Term Facility and the RCF Facility and Facility
means either of them as required by the context;2.2.43
    
    Facility Agent means Nedbank;2.2.44
    
    Facility Outstandings means the aggregate of all amounts of principal
and accrued and unpaid interest due and payable to the Lenders under the Finance
Documents;2.2.45
    
    Fee Letter means the letter dated on or about the Signature Date
between the Borrower and Nedbank, setting out the fees payable to Nedbank under
clause 28.1 (Arranging and Underwriting Fees);2.2.46
    
    Final Repayment Date means:
 2.2.46.1
    
    in relation to the Term Facility, the 5th (fifth) anniversary of the
Term Facility Advance Date; and22.46.2
    
    in relation to the RCF Facility, the 3rd (third) anniversary of the date
of Financial Close,




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or such earlier date upon which the Loans become repayable by the Borrower
pursuant to the provisions of this Agreement;2.2.47
    
    Finance Documents means:
 2.2.47.1
    
    this Agreement;2.2.47.2
    
    the Fee Letter;2.2.47.3
    
    the Security Documents;2.2.47.4
    
    and any other agreement or document that may be designated as a Finance Document by
written agreement between the Facility Agent and the Borrower; and2.2.47.5
    
    any amendment agreement to any Finance Documents listed in 2.2.47.1 to 2.2.47.4,
 and Finance Document means any of them as required by the context;2.2.48
    
    Finance Parties means:
 2.2.48.1
    
    the Lenders; and2.2.48.2
    
    the Facility Agent,
 and Finance Party means any of them as required by the context;2.2.49
    
    Financial Close means the earlier of:
 2.2.49.1
    
    the date on which the Facility Agent issues the confirmation referred
to in clause 4.1 (Conditions to Advance); and




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2.2.49.2
    
    the date on which the first Advance is made;
 2.2.50
    
    Financial Covenants means the financial covenants referred to in clause 17 (Financial
Covenants);2.2.51
    
    Financial Indebtedness means of any person, without duplication:
 2.2.51.1
    
    all Indebtednesses of such person for borrowed money;2.2.51.2
    
    all Indebtedness of such person under acceptance or documentary
credit facilities;2.2.51.3
    
    all Indebtedness of such person in respect of receivables sold or
discounted (otherwise than on a non-recourse basis);2.2.51.4
    
    all Indebtedness of such person evidenced by bonds, debentures, notes or other similar
instruments;2.2.51.5
    
    all Indebtedness of such person to pay the deferred purchase price of property or services
if deferred for more than 60 (sixty) days or where such deferred amount is primarily designed
to raise finance, except, in any case, trade accounts payable arising in the ordinary course
of business;2.2.51.6
    
    all Indebtedness of such person under any arrangements (including hire purchase and
conditional sale agreements) treated as finance leases under IFRS;2.2.51.7
    
    all Indebtedness of such person in connection with any Derivative Transaction and so that
the amount of such Indebtedness shall be calculated on a marked-to-market basis;




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2.2.51.8
    
    all Indebtedness of such person under any repurchase agreement, put options, call
options or other transactions of any kind (whether or not recognised as borrowing under IFRS)
which have the commercial effect of a borrowing or obtaining of credit;2.2.51.9
    
    all obligations of such person under redeemable preference shares or equivalent equity;
and2.2.51.10
    
    all Indebtedness of others falling within clauses 2.2.51.1 to 2.2.51.9 above which is
guaranteed by such person;
 2.2.52
    
    Financial Year means, at any time, the annual accounting period of the Group ending on 30
June in each calendar year;2.2.53
    
    First Term Facility Advance means a Term Facility Advance in the amount of R650 000 000
(Six Hundred and Fifty Million Rand);2.2.54
    
    First Term Facility Advance Date means the first Business Day following Financial Close;2.2.55
    
    Group means the Borrower and each Group Company from time to time;2.2.56
    
    Group Company means:
 2.2.56.1
    
    any subsidiary of the Borrower; and2.2.56.2
    
    any partnership, unincorporated joint venture or trust in which the Borrower has a,
direct or indirect, partnership or beneficial interest of 50% (fifty percent) or more; and




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2.2.56.3
    
    any company, partnership, unincorporated joint venture or trust
which is Controlled by the Borrower,
 and Group Companies means, as the context requires, all of them;2.2.57
    
    Guarantee means the joint and several guarantee provided by each of the
Guarantors in terms of clause 11 (Guarantee and Indemnity) in favour of the
Finance Parties for the obligations of the Borrower hereunder;2.2.58
    
    Guarantors means the companies listed in Schedule 2 (The Guarantors), and Guarantor
means, as the context requires, any one of them;2.2.59
    
    IFRS means international accounting standards within the meaning of IAS Regulation
1606/2002 to the extent applicable to fee relevant financial statement;2.2.60
    
    Indebtedness shall be widely construed so as to include any obligation (whether incurred
as principal or surety) for the payment or repayment of money, whether present or future,
actual or contingent;2.2.61
    
    Intercreditor Agreement means any intercreditor agreement concluded between the Original
Lender and any New Lender(s) in relation to this Agreement;2.2.62
    
    Interest Cover Ratio means, in respect of any Ratio Test Period:
 2.2.62.1
    
    EBIT;2.2.62.2
    
    divided by Total Interest;
 2.2.63
    
    Intellectual Property Rights means any patents, trade marks, service marks, designs,
trading or business names, copyrights, design rights, moral




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rights, inventions, confidential information, know-how, domain names,
topographical or similar rights, database or other intellectual property rights
and interests and the benefit of all applications and rights to use (including
by way of licence) such assets of each Obligor, in each case whether registered
or unregistered;2.2.64
    
    Interest Payment Date means the last day of each Interest Period;2.2.65
    
    Interest Period means a Term Interest Period or an RCF Interest Period, as the case may
be;2.2.66
    
    Interest Rate means:
 2.2.66.1
    
    in relation to the Term Facility, the Base Rate plus the Applicable
Term Margin; and2.2.66.2
    
    in relation to the RCF Facility, the Base Rate plus the Applicable
RCF Margin;
 2.2.67
    
    JIBAR means, in relation to any Interest Period, the rate for the period which most
closely approximates such Interest Period which appears on the Reuters Screen SAFEY Page as at
11:00 Johannesburg time on the first day of such Interest Period;2.2.68
    
    Legal Adviser means Deneys Reitz Inc. of 82 Maude Street, Sandton;2.2.69
    
    Lenders means:
 2.2.69.1
    
    the Original Lender;2.2.69.2
    
    any person who has become a Party as a Lender in accordance with the terms of clause 24
(Change of Party);




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which in each case has not ceased to be a Party in accordance with the terms
of this Agreement and Lender means, as the context requires, any one of them;2.2.70
    
    Liabilities means all present and future liabilities and obligations at any
time of an Obligor to the Finance Parties under the Finance Documents, both
actual and contingent and whether incurred solely or jointly or in any other
capacity together with any of the following matters relating to or arising in
respect of those liabilities or obligations:
 2.2.70.1
    
    any refinancing, novation, deferral or extension;2.2.70.2
    
    any claim for damages or restitution; and2.2.70.3
    
    any claim as a result of any recovery by that Obligor of a payment or
discharge on the grounds of preference, and any amounts which would be
included in any of the above but for any discharge, non-provability or
unenforceability of those amounts in any insolvency or other proceedings;
 2.2.71
    
    Loan means a loan made or to be made under a Facility or (as the context may require) the
aggregate principal amount for the time being outstanding under that loan;2.2.72
    
    Loan Claim means, in respect of each Obligor, all claims in excess of
R50 000 000 (Fifty Million Rand) that such Obligor has against any Group
Company (other than another Obligor) in respect of any shareholder or
intercompany loan made by that Obligor to that Group Company and Loan Claims
means, as the context requires, all of them;




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2.2.73
    
    Market Capitalisation means the number of ordinary issued shares of the Borrower listed on
the JSE Securities Exchange multiplied by the 30
(thirty) day Volume Weighted Average Traded Share Price (as defined in the JSE
Listing Requirements) of such shares;2.2.74
    
    Market Capitalisation to Facilities Outstanding Ratio means, at
any Ratio Test Date:
 2.2.74.1
    
    Market Capitalisation;2.2.74.2
    
    divided by the aggregate Facility Outstandings;
 2.2.75
    
    Material Adverse Change means a change in the circumstances existing as at the Signature
Date which in the reasonable opinion of the facility Agent has or will have a material
adverse effect on:
 2.2.75.1
    
    the business, assets, operations, property or condition (consolidated
financial or otherwise) of any of the Obligors or the Group taken as a
whole;2.2.75.2
    
    the ability of any Obligor to perform its obligations under any Finance Document to which
it is a party; or2.2.75.3
    
    the validity, legality or enforceability of the material terms of any Finance Document or
the rights or remedies of the Finance Parties thereunder;
 2.2.76
    
    Nedbank means Nedbank Limited (Registration No 1951/000009/06)),
a public company and registered bank duly incorporated in accordance with the
company and banking laws of South Africa;




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2.2.77
    
    New Lender has the meaning given thereto in clause 24.2 (Assignment and Transfers by the
lenders):2.2.78
    
    Obligors means collectively, the Borrower and the Guarantors and Obligor shall be a
reference to any one of them, as required by the context;2.2.79
    
    Original Financial Statements means the consolidated financial statements of the Group
for its financial year ended 30 June 2009, as provided by the Borrower to the Facility Agent
on or before the Signature
Date;2.2.80
    
    Original Lender means Nedbank;2.2.81
    
    Parties means the Borrower, the Lenders, the Facility Agent and the
Guarantors, and Party means, as the context requires, any one of them;2.2.82
    
    Permitted Disposal means:
 2.2.82.1
    
    any Disposal made by any Group Company on arms length terms if that Disposal is not
otherwise restricted by a term of any Finance Document; and2.2.82.2
    
    any other Disposal approved in advance in writing by the Facility Agent;
 2.2.83
    
    Permitted Encumbrances means:
 2.2.83.1
    
    Encumbrances created over any asset or property to secure
Indebtedness incurred for the purpose of financing the purchase, development,
improvement or construction thereof provided that




---



##### 



such Indebtedness does not exceed R100 000 000 (One Hundred Million Rand);2.2.83.2
    
    Encumbrances created by operation of law and in the ordinary
course of trading provided that the same are discharged in the ordinary
course of trading or, in the reasonable opinion of the Facility Agent,
are being contested in good faith;2.2.83.3
    
    any Encumbrance which is existing prior to the Signature Date and
which has been disclosed (i) in Schedule 3 (Disclosed
Encumbrances)hereto, or (ii) in the Original Financial Statements and in
all circumstances securing only Indebtedness outstanding at the Signature
Date if the principal amount or original facility thereby secured is not
increased after the Signature Date;2.2.83.4
    
    any netting or set-off arrangement entered into by the Borrower in
the normal course of its banking arrangements for the purpose of netting
debit and credit balances, and only such arrangements that are in
existence at the Signature Date;2.2.83.5
    
    any Encumbrance created in respect of Permitted Indebtedness;2.2.83.6
    
    any Encumbrance created in respect of Permitted Loans between Obligors;2.2.83.7
    
    any Encumbrance created in respect of Indebtedness incurred to prepay the Facility in full
in accordance with the provisions of clause 7 (Prepayment) below;2.2.83.8
    
    any Encumbrance as contemplated in the Finance Documents; and




---



##### 



2.2.83.9
    
    any other Encumbrance created with the prior written approval of
the Facility Agent;
 2.2.84
    
    Permitted Indebtednessmeans:
 2.2.84.1
    
    any Indebtedness incurred for the purpose of acquiring new plant, machinery and equipment
up to the market value thereof, and which will not once incurred cause any Financial Covenant
to be breached; and2.2.84.2
    
    any additional Indebtedness incurred by any of the Obligors which does not exceed
R100 000 000 (One Hundred Million Rand) in aggregate per annum;2.2.84.3
    
    any Indebtedness which is existing prior to the Signature Date and which has been (i)
disclosed in Schedule 4 (Disclosed Indebtedness}
hereto, or (ii) in the Original Financial Statements;2.2.84.4
    
    any Indebtedness incurred to prepay the Facility in accordance with
the provisions of clause 7  (Prepayment) below;2.2.84.5
    
    any Indebtedness created in respect of a Permitted Loan;2.2.84.6
    
    any Indebtedness incurred under the Finance Documents;2.2.84.7
    
    any Indebtedness in respect of an additional R750 000 000 (Seven
Hundred and Fifty Million Rand) loan borrowed by the Borrower; which is
secured by the Transaction Security, provided that such additional
Indebtedness is arranged by Nedbank and is provided on the same or
substantially similar terms set out in the Finance Documents; and




---



##### 



2.2.84.8
    
    any commodity hedging transaction concluded in respect of the Groups silver production
at the Hidden Valley mine in Papa New Guinea;2.2.84.9
    
    any interest rate hedging transaction in respect of any Obligors exposure under the
Finance Documents, provided that the counterparty in respect thereof is Nedbank, provided
that Nedbank will offer such transaction at pricing equal to the average of 3 (three) quotes
obtained by the relevant Obligor (including a quote obtained from Nedbank) or, if Nedbanks
quote is lower, at the pricing quoted by Nedbank;2.2.84.10
    
    any currency hedging transaction or any other Derivative Transaction, provided that the
counterparty in respect thereof is Nedbank, provided that Nedbank will offer such
transaction at pricing equal to the average of 3 (three) quotes obtained by the relevant
Obligor (including a quote obtained from Nedbank) or, if Nedbanks quote is lower, at the
pricing quoted by Nedbank;2.2.84.11
    
    any currency hedging transaction, interest rate hedging transaction or any other
Derivative Transaction where Nedbank is not the counterparty, subject to a maximum aggregate
exposure thereunder (calculated on a marked-to-market basis) of R100 000 000 (One Hundred
Million Rand) during the Term;2.2.84.12
    
    any operational guarantees provided by any Obligor in the ordinary
course of business on behalf of any Group Company;2.2.84.13
    
    any other Indebtedness made with the prior written approval of the
Facility Agent (which shall not be unreasonably withheld or delayed),




---



##### 



provided that the aggregate Indebtedness of the Obligors (excluding any
Indebtedness in respect of clauses 2.2.84.3, 2.2.84.4 and 2.2.84.5 (in respect
of Permitted Loans between Obligors only)) shall not at any time
during the Term exceed R3 000 000 000 (Three Billion Rand);
 2.2.85
    
    Permitted Loansmeans:
 2.2.85.1
    
    loans contemplated and permitted by the Finance Documents;2.2.85.2
    
    trade credit granted in the ordinary course of an Obligors day-to-day business upon terms
usual for such trade;2.2.85.3
    
    loans made by an Obligor to another Obligor (but only if such loans are funded whilst no
Default has occurred which is continuing); or2.2.85.4
    
    loans existing prior to the Signature Date and which have been (i) disclosed in Schedule
5 (Disclosed Loans) hereto, or (ii) in the Original Financial Statements;2.2.85.5
    
    loans granted by any Obligor to any and all of the Group Companies, which do not exceed
R50 000 000 (Fifty Million Rand) in aggregate during the Term;2.2.85.6
    
    loans granted by any Obligor to any and all of the Group Companies, provided that the
claims of the relevant Obligors thereunder in respect of such amounts in excess of R50 000
000 (Fifty Million Rand) are ceded in securitatem debitito the Finance Parties as security
for the Obligors obligations to the Finance Parties under the Finance Documents pursuant to
clause 12 (Cession in Security);




---



##### 



2.2.85.7
    
    any other loans made with the prior written approval of the Facility
Agent;
 2.2.86
    
    President Steyn Acquisitionmeans:
 2.2.86.1
    
    the acquisition by the Borrower of the PSGM Gold Plant from Pamodzi Gold Free State
(Proprietary) Limited (in provisional liquidation) for R100 000 000 (One Hundred Million
Rand);2.2.86.2
    
    the acquisition by the Borrower of the South Steyn Shafts from Pamodzi Gold Free State
(Proprietary) Limited (in provisional liquidation) for R180 000 000 (One Hundred and Eighty
Million Rand); and2.2.86.3
    
    the acquisition by Avgold Limited of the North Steyn Shafts from
Pamodzi Gold Free State (Proprietary) Limited (in provisional liquidation)
R100 000 000 (One Hundred Million Rand),
 together with all upfront capital expenditure requirements relating to the
acquisition thereof;2.2.87
    
    Ratio Test Datemeans the last day of June and December;2.2.88
    
    Ratio Test Periodmeans each period of 12 (twelve) months ending on a Ratio Test Date;2.2.89
    
    RCF Advancemeans an advance made under the RCF Facility;2.2.90
    
    RCF Facilitymeans the revolving credit facility in an amount equal to
the RCF Facility Amount made available by the Original Lender to the Borrower
pursuant to clause 6 (RCF Facility);




---



##### 



2.2.91
    
    RCF Facility Amountmeans R600 000 000 (Six Hundred Million Rand);2.2.92
    
    RCF Interest Periodmeans each period selected by the Borrower in accordance with the
provisions of clause 6.4;2.2.93
    
    RCF Facility Outstandingsmeans the Facility Outstandings relating to the RCF Facility;2.2.94
    
    RCF Loanmeans a loan under the RCF Facility and RCF Loans means all of them as the
context requires;2.2.95
    
    Reference Banksmeans FirstRand Bank Limited, The Standard Bank of South Africa Limited,
Nedbank Limited and Absa Bank Limited;2.2.96
    
    Related Partymeans any Shareholder and any affiliate of any Shareholder;2.2.97
    
    Repeating Representationsmeans each of those representations and
warranties set out in clause 12 (Warranties and Representations);2.2.98
    
    Reset Datemeans the first day of each Interest Period, being the date in
each case upon which the relevant Base Rate is to be determined for such
Interest Period;2.2.99
    
    Rollover Loansmeans one or more RCF Loans:
 2.2.99.1
    
    made or to be made on the same day that a maturing RCF Loan is due to be repaid;2.2.99.2
    
    the aggregate amount of which is equal to or less than the maturing RCF Loan; and




---



##### 



2.2.99.3
    
    made or to be made for the purpose of refinancing a maturing RCF
Loan;
 2.2.100
    
    SAFEX Overnight Deposit Ratemeans;
 2.2.100.1
    
    on the relevant Reset Date, the overnight deposit rate designated as (SFXROD)which
appears on the Reuters SAFEX Money Market Screen as of 11h00 Johannesburg time on that date,
rounded to the third decimal point; or2.2.100.2
    
    where the SAFEX Overnight Deposit Rate cannot be determined on account of the relevant
rate not appearing on the Reuters SAFEX Money Market Screen, an equivalent rate determined
by the Facility Agent, acting in a commercially reasonable manner;
 2.2.101
    
    SAR-JIBAR-Reference Ratemeans the mid-market rate between deposits and loans in Rand
for an Interest Period quoted by the Reference Banks at approximately 11am Johannesburg time
on the relevant Reset Date. The Facility Agent will request the principal Johannesburg
office of each of the Reference Banks to provide a quotation of its rate. If at least two
quotations are provided, the rate for that Reset Date will be the arithmetic means of the
quotations. If fewer than two quotations are provided, the rate for that Reset Date will be
determined by the Facility Agent, acting in a commercially reasonable manner, using a
representative rate;2.2.102
    
    Second Term Facility Advancemeans a Term Facility Advance in the amount of R250 000
000 (Two Hundred and Fifty Million Rand);2.2.103
    
    Second Term Facility Advance Datemeans 31 January 2010 or such
later date agreed in writing between the Borrower and the Facility Agent;




---



##### 



2.2.104
    
    Security Documentsmeans the Guarantee, the Cession and Pledge in
Security, the ARM Cession and Pledge in Security and any other agreement or
document that may be designated as a Security Document by written agreement
between the Facility Agent and the Borrower;2.2.105
    
    Shareholdermeans any member of the Borrower from time to time;2.2.106
    
    Signature Datemeans the date of the signature of the Party signing this Agreement last
in time;2.2.107
    
    South Africameans the Republic of South Africa as constituted from time to time;2.2.108
    
    Termmeans the period from the first Advance Date to the Discharge Date;2.2.109
    
    Term Facilitymeans the term facility in the amount of the Term Facility Amount made
available by the Original Lender to the Borrower pursuant to clause 5 (The Term Facility);2.2.110
    
    Term Facility Advancemeans an advance made under the Term Facility;2.2.111
    
    Term Facility Advance Datemeans either the First Term Facility Advance Date or the
Second Term Facility Advance Date, as the case may be;2.2.112
    
    Term Facility Amountmeans R900 000 000 (Nine Hundred Million Rand);2.2.113
    
    Term Facility Loanmeans the Loan made under the Term Facility;




---



##### 



2.2.114
    
    Term Facility Outstandingsmeans the Facility Outstandings relating
to the Term Facility;2.2.115
    
    Term Facility Repayment Schedulemeans the repayment schedule set
out in Schedule 10 (Term Facility Repayment Schedule);2.2.116
    
    Term Interest Payment Datemeans each 31 March, 30 June, 30 September and 31 December
during the Term, commencing on 31 March 2010;2.2.117
    
    Term Interest Periodmeans:
 2.2.117.1
    
    in relation to a Loan under the Term Facility each period commencing on a Term Interest
Payment Date and ending on the next Term Interest Payment Date, provided that:
 2.2.117.1.1
    
    the first Term Interest Period for the First Term Facility
Advance shall commence on the First Term Facility Advance Date and
end on 31 March 2010;2.2.117.1.2
    
    the first Term Interest Period for the Second Term Facility
Advance shall commence on the Second Term Facility Advance Date and
end on 31 March 2010; and2.2.117.1.3
    
    the final Term Interest Period shall end on the Final
Repayment Date and commence on the Interest Payment Date immediately
preceding the Final Repayment Date; and
 2.2.117.2
    
    in relation to an Unpaid Sum, successive periods of 30 (thirty) days commencing:




---



##### 



2.2.117.2.1
    
    in the case of the first such Interest Period, on the due date on
which that Unpaid Sum becomes due; and2.2.117.2.2
    
    in the case of each such Interest Period, thereafter, on the last
day of the Interest Period immediately preceding such Interest
Period;
 2.2.118
    
    Term Loanmeans a Loan made under the Term Facility;2.2.119
    
    TotaI Interestmeans, in respect of any period, the aggregate accruing
during such period (without duplication and whether or not paid or payable
within such period) of, in respect of the Group on a consolidated basis (and
whether or not the principal or capital obligation by reference to which any of
the following are determined is an obligation of the Group):
 2.2.119.1
    
    all interest, acceptance commission, guarantee fees and any other
continuing, regular or periodic costs and expenses in the nature of
interest (whether paid, payable or capitalised) incurred in effecting,
servicing or maintaining Financial Indebtedness;2.2.119.2
    
    amounts payable (as reduced by amounts receivable) in respect of
any Derivatives Transaction which is an interest rate hedging arrangement
entered into to hedge risks arising in the normal course of business;2.2.119.3
    
    the interest element of, and ancillary fees payable under, any finance
leases;
 2.2.120
    
    Transaction Securitymeans the security interest created or expressed
to be created in favour of the Finance Parties pursuant to the Security
Documents;




---



##### 



2.2.121
    
    Unpaid Summeans any sum due and payable but unpaid by an Obligor
under the Finance Documents;2.2.122
    
    Utilisationmeans a utilisation of the RCF Facility;2.2.123
    
    Utilisation Datemeans the date of a Utilisation being the date upon
which the relevant Loan is made;2.2.124
    
    Utilisation Requestmeans a Utilisation Request substantially in the
form set out in Schedule 9 (Form of Utilisation Request);2.2.125
    
    VATmeans value added tax including any similar tax which may be
imposed in place thereof from time to time.
 2.3
    
    Any reference in this Agreement to:
 2.3.1
    
    an affiliatemeans, in relation to any person, a subsidiary of that person or a holding
company of that person or any other subsidiary of that holding company;2.3.2
    
    a clauseshall, subject to any contrary indication, be construed as a reference to a
clause hereof;2.3.3
    
    continuing, in the context of an Event of Default, means:
 2.3.3.1
    
    where the Event of Default or its consequences are incapable of
remedy that Event of Default is deemed to be continuing unless it has
been expressly waived in writing by the Facility Agent and any conditions
of such waiver have been fulfilled to the reasonable satisfaction of the
Lender;




---



##### 



2.3.3.2
    
    in any other case, that Event of Default is deemed to be continuing
unless and until either:
 2.3.3.2.1
    
    it has been expressly waived in writing by the Facility Agent
and any conditions of such waiver have been fulfilled to the
reasonable satisfaction of the Facility Agent; or2.3.3.2.2
    
    it has been remedied within the applicable remedy period by
any person and the resulting position is that which it would have
been if such Event of Default had not occurred;
 2.3.4
    
    a holding companyshall be construed in accordance with the Companies Act;2.3.5
    
    lawshall be construed as any law (including common or customary law) or statute,
constitution, decree, judgment, treaty, regulation, directive, by-law, order or any other
legislative measure of any government, supranational, local government, statutory or
regulatory body or court;2.3.6
    
    monthmeans unless the context otherwise requires, a period starting on one day in a
calendar month and ending on the numerically corresponding day in the next succeeding
calendar month except that, where any such period would otherwise end on a day which is not a
Business Day it shall end on the immediately preceding Business Day; provided that if a
period starts on the last Business Day of a calendar month or if there is no numerically
corresponding days in the month in which that period ends, that period shall end on the last
Business Day in that later month (and references to months shall be construed
accordingly);2.3.7
    
    nacmmeans nominal annual compounded monthly in arrears;




---



##### 



2.3.8
    
    nacqmeans nominal annual compounded quarterly in arrears;2.3.9
    
    nacs means nominal annual compounded semi-annually in arrears;2.3.10
    
    naca means nominal annual compounded annually in arrears;2.3.11
    
    a personshall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any association
or partnership (whether or not having separate legal personality) of two or
more of the foregoing;2.3.12
    
    repay(or any derivative form thereof) shall, subject to any contrary
indication, be construed to include prepay or, as the case may be, the
corresponding derivate form thereof;2.3.13
    
    a Schedule shall, subject to any contrary indication, be construed as a
reference to a schedule hereof;2.3.14
    
    a subsidiary shall be construed in accordance with the Companies Act;2.3.15
    
    tax shall be construed so as to include any tax, levy, impost or other
charge of a similar nature (including, without limitation, any penalty or
interest payable in connection with any failure to pay or delay in paying any
of the same).
 2.4
    
    Unless inconsistent with the context or save where the contrary is expressly
indicated:
 2.4.1
    
    if any provision in a definition is a substantive provision conferring rights
or imposing obligations on any Party, notwithstanding that it appears only in
this interpretation clause, effect shall be given to it as if it were a
substantive provision of this Agreement;




---



##### 



2.4.2
    
    when any number of days is prescribed in this Agreement, same shall be
reckoned inclusively of the first and exclusively of the last day unless the
last day falls on a day which is not a Business Day, in which case the last
day shall be the next succeeding Business Day;2.4.3
    
    in the event that the day for payment of any amount due in terms of this Agreement should
fall on a day which is not a Business Day, the relevant day for payment shall be
the previous Business Day;2.4.4
    
    in the event that the day for performance of any obligation to be performed in terms of
this Agreement should fall on a day which is not a Business Day, the relevant day for
performance shall be the next succeeding Business Day;2.4.5
    
    any reference in this Agreement to an enactment is to that enactment as at
the Signature Date and as amended or re-enacted from time to time;2.4.6
    
    any reference in this Agreement to this Agreement or any other agreement or document shall
be construed as a reference to this Agreement or, as the case may be, such other agreement
or document as same may have been, or may from time to time be, amended, varied, novated or
supplemented;2.4.7
    
    no provision of this Agreement constitutes a stipulation for the benefit of any person who
is not a Party to this Agreement;2.4.8
    
    references to day/s, month/s or year/s shall be construed as Gregorian calendar day/s,
month/s or year/s;2.4.9
    
    a reference to a Party includes that Partys successors-in-title and permitted assigns;2.4.10
    
    a time of day shall be construed as a reference to Johannesburg time.




---



##### 



2.5
    
    Unless inconsistent with the context, an expression which denotes:
 2.5.1
    
    any one gender includes the other genders;2.5.2
    
    a natural person includes an artificial person and vice versa; and2.5.3
    
    the singular includes the plural and vice versa.
 2.6
    
    The schedules or annexures to this Agreement form an integral part hereof and words and
expressions defined in this Agreement shall bear, unless the context otherwise requires, the
same meaning in such schedules or annexures. To the extent that there is any conflict between
the schedules or annexures to this Agreement and the provisions of this Agreement, the
provisions of this Agreement shall prevail.2.7
    
    Where any term is defined within the context of any particular clause in this Agreement, the
term so defined, unless it is clear from the clause in question that the term so defined has
limited application to the relevant clause, shall bear the same meaning as ascribed to it for
all purposes in terms of this Agreement, notwithstanding that that term has not been defined
in this interpretation clause.2.8
    
    The rule of construction that, in the event of ambiguity, the contract shall be
interpreted against the Party responsible for the drafting thereof, shall not apply
in the interpretation of this Agreement.2.9
    
    The expiration or termination of this Agreement shall not affect such of the
provisions of this Agreement as expressly provide that they will operate after any
such expiration or termination or which of necessity must continue to have effect
after such expiration or termination, notwithstanding that the clauses themselves do
not expressly provide for this.




---



##### 



2.10
    
    This Agreement shall be binding on and enforceable by the administrators, trustees,
permitted assigns or liquidators of the Parties as fully and effectually as if they had
signed this Agreement in the first instance and reference to any Party shall be deemed to
include such Partys administrators, trustees, permitted assigns or liquidators, as the case
may be.2.11
    
    The use of any expression in this Agreement covering a process available under South African
law such as winding-up (without limitation eiusdem generis) shall, if any of the Parties to
this Agreement is subject to the law of any other jurisdiction, be construed as including any
equivalent or analogous proceedings under the law of such other jurisdiction.2.12
    
    Where figures are referred to in numerals and in words, if there is any conflict between
the two, the words shall prevail.
 3.
    
    INTRODUCTION
 3.1
    
    The Borrower wishes to raise finance to fund the President Steyn Acquisition, to fund the
Groups general corporate costs, working costs and ongoing capital expenditure requirements
and to pay all fees, costs and expenses due and payable on Financial Close.3.2
    
    The Original Lender is willing to make financing available to the Borrower for the purposes
set out in clause 3.1 upon the terms and conditions of this Agreement.
 4.
    
    CONDITIONS TO ADVANCE
 4.1
    
    Save as provided for in clause 4.2 or as the Facility Agent may otherwise agree
in writing, no Advance shall be made hereunder unless the Facility Agent has confirmed
to the Borrower in writing that:




---



##### 



4.1.1
    
    it has received all of the Advance Condition Documents and that each such document is, in
form and substance, satisfactory to the Facility Agent; and4.1.2
    
    all of the Advance Conditions have been fulfilled to the satisfaction of, or waived by, the
Facility Agent.
 4.2
    
    The Facility Agent may:
 4.2.1
    
    waive any of the conditions referred to in this clause 4 and in such event the Facility
Agent may attach to such waiver such requirements and further or other conditions as the
Facility Agent (in its sole discretion) deems fit;4.2.2
    
    agree to make an Advance on terms (express or otherwise) that any condition may be converted
to a term of this Agreement and that the obligation thereunder be discharged after the date of
making of such Advance, and in such event the Borrower shall procure that such obligation is
discharged within a period of 5 (five) Business Days after such Advance (or such other period
as the Facility Agent may agree to in writing), and the Facility Agent shall be entitled on
written notice to the Borrower to treat any failure by the Borrower to procure the discharge
of such obligation as an Event of Default.
 4.3
    
    The Finance Documents shall terminate 5 (five) Business Days from the Signature Date if
Financial Close is not achieved by such date or such later date as may be agreed by the
Parties in writing. Such termination shall be without prejudice to the Borrowers obligations
under clause 28.3 (Expenses), and the provisions of clause 2, (Definitions and
Interpretation), clause 28.3 (Expenses,) clause 28.5 (Value AddedTax), clause 29 (Notices
and Domicilia), clause 29.1 (Governing Law), clause 31 (Jurisdiction), clause 32
(Severability), clause




---



##### 



33 (General), clause 34 (Counterparts) and this clause 4.3 shall remain in force for
such purpose.
 5.
    
    THE TERM FACILITYSubject to the provisions of clause 4 (Conditions to Advance), the Original Lender
grants to the Borrower, upon the terms and subject to the conditions of this Agreement, the
Term Facility.
 5.1
    
    Purpose
 5.1.1
    
    The Facility is intended to fund the President Steyn Acquisition, the Group s general
corporate costs, working costs and ongoing capital expenditure requirements and all fees,
costs and expenses due and payable in the amounts specified in the Fee Letter on Financial
Close, and accordingly, the Borrower shall apply all amounts raised by it hereunder in or
towards satisfaction of such purposes.5.1.2
    
    Without prejudice to the obligations of the Borrower under clause 5.1.1,
the Finance Parties shall not be obliged to concern themselves with the
application of amounts raised by the Borrower hereunder.
 5.2
    
    Advance of Term Facility
 5.2.1
    
    Subject to the terms of this Agreement, the Term Facility Amount shall be
advanced to the Borrower by the Original Lender as follows:
 5.2.1.1
    
    by way of electronic transfer of an amount equal to the First Term
Facility Advance on the First Term Facility Advance Date into the
following bank account:




---



##### 



Bank;
    
    Absa;Branch:
    
    Virginia;Account number:
    
    40 4873 7227;Account name:
    
    Harmony Treasury Account;
 5.2.1.2
    
    by way of electronic transfer of an amount equal to the Second Term
Facility Advance on the Second Term Facility Advance Date into the
following bank account:
 Bank:
    
    Absa;Branch:
    
    Virginia;Account number:
    
    40 4873 7227;Account name:
    
    Harmony Treasury Account;
 5.2.2
    
    Provided that on each Term Facility Advance Date;
 5.2.2.1
    
    the requirements of clause 4 (Conditions to Advance) have been satisfied;5.2.2.2
    
    no Default has occurred and is continuing;5.2.2.3
    
    the representations and warranties set out in clause 12 (Warranties and Representations)
are true; and5.2.2.4
    
    in respect of the Second Term Facility Advance, the Facility Agent
is satisfied in its sole discretion that the AVRD Loan Agreement has been
repaid or that arrangements acceptable to the Original Lender have been
put in place to ensure that the AVRD Loan Agreement will be repaid.
 5.2.3
    
    The Borrower acknowledges and agrees that:




---



##### 



5.2.3.1
    
    no portion of the Term Facility repaid by the Borrower in
accordance with the provisions of this Agreement or otherwise shall be
available to be re-advanced to the Borrower by the Lenders;5.2.3.2
    
    the Finance Parties shall not incur any liability to the Borrower in the event of the Term
Facility not being utilised for the purposes set out in clause 5.1 (Purpose) and in such an
event, the portion of those payments made from the Term Facility will nevertheless be
regarded as constituting valid advances and form part of the Term Loan;5.2.3.3
    
    if any monies are advanced in the mistaken belief that the Advance Conditions have been
fulfilled or waived in accordance with this Agreement, and it is subsequently determined that
not all the Advance Conditions have been fulfilled or waived, this Agreement shall be valid
and enforceable in respect of the monies advanced under the Term Facility, and the Facility
Agent shall be entitled on written notice to the Borrower, to demand immediate payment of the
Term Facility Outstandings, without prejudice to any other rights or remedies that the Lenders
may have in law.
 5.3
    
    Interest on the Term Facility
 5.3.1
    
    The Term Loan shall bear interest at the Interest Rate which shall:
 5.3.1.1
    
    accrue on a day to day basis over the Term; and5.3.1.2
    
    be calculated on the actual number of days elapsed and, for the purposes of calculation,
based on a year of 365 (three hundred and sixty-five) days.




---



##### 



5.3.2
    
    All interest accrued on the Term Loan during the Term (including
capitalised interest) shall be paid by the Borrower on each Interest Payment
Date to the Lenders, in accordance with clause 9 (Payments).5.3.3
    
    The Facility Agent shall promptly notify the Borrower of the applicable
Interest Rate determined pursuant to the provisions of this Agreement promptly
after ascertaining the same.
 5.4
    
    Repayment of Term Facility
 5.4.1
    
    The Borrower shall, subject to the provisions of clauses 7 (Voluntary Prepayment), 8
(Mandatory Prepayment) and 18 (Events of Default), repay the Term Loan in the amounts and on
the dates set out in the Term Facility Repayment Schedule, provided that the Term Facility
Advances together with all accrued but unpaid interest shall be repaid by no later than the
Final Repayment Date, in accordance with clause 9 (Payments).5.4.2
    
    The Borrower shall not repay all or any part of the Term Loan except at the times and in
the manner expressly provided for in this Agreement and shall not be entitled to reborrow any
amount repaid.
 5.5
    
    Market disruption
 5.5.1
    
    If a Market Disruption Event described in clauses 5.5.3.1 or 5.5.3.2
occurs, then the rate of interest on the Term Loan for that Term Interest Period
shall be the percentage rate nacq which is the sum of:
 5.5.1.1
    
    the Applicable Term Margin; and5.5.1.2
    
    the rate notified by the Facility Agent as soon as practicable and in any event before
interest is due to be paid in respect of that Term Interest Period, to be that which expresses
as a percentage rate per




---



##### 



annum the cost to the Lenders of funding the Term Loan from whatever
source it may reasonably select.
 5.5.2
    
    If a Market Disruption Event described in clause 5.5.3.3 occurs, then the rate of interest on
the Term Loan for that Term Interest Period shall be increased by the Market Disruption
Premium.
 In this clause 5:
 5.5.3
    
    Market Disruption Event means:
 5.5.3.1
    
    at or about noon on the Reset Date for the relevant Term Interest
Period JIBAR is not available on the relevant screen and none or only one
of the Reference Banks supplies a rate to the Facility Agent to determine
the Base Rate for the relevant Term Interest Period; or5.5.3.2
    
    at or about noon on the Term Facility Advance Date the Lenders are
unable to raise funding in the Johannesburg interbank market in the
ordinary course of business to fund the Term Loan; or5.5.3.3
    
    the Market Disruption Premium as at any Term Facility Advance
Date is in excess of 0,25% (zero comma two five percent);
 5.5.4
    
    Market Disruption Premiummeans the difference between the Nedbank Liquidity Premium 1
(one) day prior to each Term Facility Advance Date and the Nedbank Liquidity Premium as at 25
November 2009;5.5.5
    
    Nedbank Liquidity Premiummeans, at any date, the difference
between the 1 (one) year NCD rate as quoted on the Reuters NEDMM screen, as a naca
rate and converted to a nacq rate, and the 1 (one) year




---



##### 



swap rate as quoted on the Reuters NDIRS screen, as a nacq rate (in each case
at 9h00 on the relevant date).
 5.6
    
    Alternative basis of interest or fundingIf a Market Disruption Event occurs and the Facility Agent or the Borrower so requires,
the Facility Agent and the Borrower shall enter into negotiations (for a period of not
more than 30 (thirty days)) with a view to agreeing a substitute basis for determining
the rate of interest.
 6.
    
    THE RCF FACILITYThe Original Lender agrees to make available to the Borrower a revolving credit facility in
an aggregate amount equal to the RCF Facility Amount, subject to the terms and conditions of
this Agreement.
 6.1
    
    Purpose of the RCF Facility
 6.1.1
    
    The Borrower shall utilise the RCF Facility for the purpose of funding the ongoing general
corporate costs, working costs and working capital requirements of the Group.6.1.2
    
    Without prejudice to the obligations of the Borrower under clause 6.1.1, the Lenders shall
not be obliged to concern themselves with the application of amounts raised by the Borrower
hereunder.
 6.2
    
    Utilisation of the RCF Facility
 6.2.1
    
    Subject to clause 4 (Conditions to Advance),the Borrower may utilise the
RCF Facility during the Availability Period by delivering to the Facility Agent
a duly completed Utilisation Request not later than  11h00 not less than 5
(five) Business Days prior to the proposed Utilisation Date.




---



##### 



6.2.2
    
    Each Utilisation Request is irrevocable and will not be regarded as having
been duly completed unless:
 6.2.2.1
    
    the proposed Utilisation Date is a Business Day within the Availability Period;6.2.2.2
    
    the currency of the proposed Loan is Rand;6.2.2.3
    
    the amount of the proposed Loan is a minimum amount of R20 000 000 (Twenty Million Rand)
(or, if less, the Available Facility) and a maximum amount of R300 000 000 (Three Hundred
Million Rand);6.2.2.4
    
    it specifies an Interest Period of one, three or six Months applicable to the proposed
Loan;6.2.2.5
    
    it specifies a bank account in South Africa to which the Borrower wishes the proceeds of
the Loan to be credited; and6.2.2.6
    
    the proposed Loan together with the aggregate of the Loans still outstanding on the
proposed Utilisation Date shall not exceed the Available RCF Facility.
 6.2.3
    
    Only one Loan may be requested in each Utilisation Request.6.2.4
    
    Only one Utilisation Request may be outstanding at any point in time.6.2.5
    
    A maximum of two Utilisation Requests may be delivered in any calendar month during the
Availability Period.6.2.6
    
    A Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation more than 10 (ten) Loans would be outstanding at any




---



##### 



point in time and to this effect, the Lenders will consolidate 2 (two) or
more outstanding Loans made to the Borrower maturing on the same date, such that
the relevant Rollover Loan made to refinance such maturing Loans will be in
respect of such outstanding Loans as consolidated into 1 (one) Loan.6.2.7
    
    The Borrower acknowledges and agrees that any Utilisation Request signed by an authorised
signatory on behalf of the Borrower shall be deemed to be a valid Utilisation Request issued
by the Borrower and any Loan made pursuant to such Utilisation Request to the Borrower shall
constitute a valid Loan to the Borrower.6.2.8
    
    If the conditions set out in this Agreement have been met, each Lender shall make its
participation in each Loan available on the Utilisation Date.
 6.3
    
    Interest on RCF Facility
 6.3.1
    
    Calculation of InterestThe rate of interest on each RCF Loan for each RCF Interest Period is the
Interest Rate.6.3.2
    
    Payment of SafestThe Borrower shall pay accrued interest on each RCF Loan on the last day of
each RCF Interest Period.




---



##### 



6.3.3
    
    Notification of rates of interestThe Facility Agent shall promptly notify the Borrower of the determination of a
rate of interest under this Agreement.6.3.4
    
    Absence of quotationsSubject to clause 6.3.5 (Market disruption), if the Base Rate is to be determined
by reference to the Reference Banks but a Reference Bank does not supply a
quotation by 11h00 (Johannesburg time) on the Reset Date, the applicable Base
Rate shall be determined on the basis of the quotations of the remaining
Reference Banks.6.3.5
    
    Market disruption
 6.3.5.1
    
    If a Market Disruption Event described in clauses 6.3.5.3.1 or 6.3.5.3.2. occurs in
relation to an RCF Loan for any RCF Interest Period, then the rate of interest on that RCF
Loan for the RCF Interest Period shall be the percentage rate nacm / nacq / nacs (depending
on the applicable RCF Interest Period) which is the sum of:
 6.3.5.1.1
    
    the Applicable RCF Margin and6.3.5.1.2
    
    the rate notified by the Facility Agent as soon as practicable
and in any event before interest is due to be paid in respect of
that RCF Interest Period, to be that which expresses as a percentage
rate per annum the cost to the Lenders of funding that RCF Loan from
whatever source it may reasonably select.
 6.3.5.2
    
    If a Market Disruption Event described in clause 6.3.5.3.3 occurs in relation to any RCF
Loan for any RCF Interest Period, then the rate




---



##### 



of interest on that RCF Loan for such RCF Interest Period shall be
increased by the Market Disruption Premium.
 In this clause 6:
 6.3.5.3
    
    Market Disruption Eventmeans:
 6.3.5.3.1
    
    at or about noon on the Reset Date for the relevant RCF
Interest Period JIBAR is not available on the relevant screen and
none or only one of the Reference Banks supplies a rate to the
Facility Agent to determine the Base Rate for the relevant
RCF Interest Period; or6.3.5.3.2
    
    at or about noon on a Utilisation Date the Leaders are usable
to raise funding in the Johannesburg interbank market in the
ordinary course of business to fund the applicable RCF Loan; or6.3.5.3.3
    
    the Market Disruption Premium as at any Utilisation Date is in
excess of 0,25% (zero comma two five percent);
 6.3.5.4
    
    Market Disruption Premiummeans the difference between the Nedbarnk Liquidity Premium 1
(one) day prior to each Utilisation Date and the Nedbank Liquidity Premium as at 25 November
2009;6.3.5.5
    
    Nedbank Liquidity Premiummeans, at any date, the difference
between the 1 (one) year NCD rate as quoted on the Reuters NEDMM screen,
as a naca rate and converted to a nacq rate, and the 1 (one) year swap
rate as quoted on the Reuters NDIRS screen, as a nacq rate (in each case
at 9h00 on the relevant date).




---



##### 



6.3.6
    
    Alternative basis of interest or fundingIf a Market Disruption Event occurs and the Facility Agent or the Borrower so
requires, the Facility Agent and the Borrower shall enter into negotiations
(for a period of not more than 30 (thirty days)) with a view to
agreeing a substitute basis for determining the rate of interest.
 6.4
    
    RCF Interest Periods
 6.4.1
    
    Selection of RCF Interest Periods
 6.4.1.1
    
    The Borrower shall select an RCF Inerest Period for an RCF Loan
under the RCF Facility in the Utilisation Request for that RCF Loan.6.4.1.2
    
    Subject to this clause 6.4 (RCF Interest Periods),the Borrower may
select an RCF Interest Period of one, three or six Months, as specified
in the Utilisation Request.6.4.1.3
    
    An RCF Interest Period for an RCF Loan shall not extend beyond
the Final Repayment Date. If an RCF Interest Period for an RCF Loan
selected by the Borrower would, but for this clause 6.4.1.3, extend beyond
the Final Repayment Date (such RCF Interest Period, a Broken Period),
then for that Broken Period the Base Rate shall be determined in
accordance with the following formula:r = r1 + (t-t1) x (r2-rl) / (t2-tl)where:r = the Base Rate to be determined,




---



##### 



r1 = JlBAR or where it is not possible to determine JIBAR on any Reset
Date, SAR-JIBAR-Reference Banks, in either case converted to a nominal
annual compounded monthly in arrear rate, for the period closest to but
less than that Broken Period plus, if this would result in r1 being equal
to SAFEX Overnight Deposit Rate, 0,01%;r2 = JIBAR or where it is not possible to determine JIBAR on any Reset
Date, SAR-JIBAR-Reference Banks, in either case converted to a nominal
annual compounded monthly in arrear rate, for the period closest to but
greater than that Broken Period;t1 = the number of days applicable to the period for which r1 is quoted
on the first day of that Broken Period;t2 = the number of days applicable to the period for which r2 is quoted
on the first day of that Broken Period;t = the number of days in that Broken Period.6.4.1.4
    
    Each RCF Interest Period for an RCF Loan shall start on the relevant
Utilisation Date.6.4.1.5
    
    Subject to this clause 6.4 (RCF Interest Periods),the Borrower may
select a different RCF Interest Period for a Rollover Loan than the RCF
Interest Period of the RCF Loan being refinanced by that Rollover Loan in
the Utilisation Request delivered for that Rollover Loan.6.4.1.6
    
    If the Borrower fails to select an RCF Interest Period for an RCF
Loan in the Utilisation Request for that RCF Loan, the RCF Interest
Period for the applicable RCF Loan shall be 3 (three) Months.




---



##### 



6.4.2
    
    Non-Business BaysIf an RCF interest Period would otherwise end on a day which is not a Business
Day, that RCF 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).6.4.3
    
    Consolidation of RCF LoansIf two or more RCF Interest Periods relate to RCF Loans end on the same
date, those RCF Loans will be consolidated into, and treated as, a single RCF
Loan on the last day of the RCF Interest Period.6.4.4
    
    Day Count ConventionAny interest or fee accruing under a finance Document will accrue from
day to day and is calculated inclusive of the first day but exclusive of the
last day of an RCF Interest Period on the basis of the actual number of days
elapsed and a year of 365 days (irrespective of whether the year is a leap
year) or, in any case where the practice in the Johannesburg interbank market
differs, in accordance with that market practice.
 6.5
    
    Repayments
 6.5.1
    
    The Borrower shall repay each RCF Loan made to it on the last day of its
RCF Interest Period such that all RCF Loans outstanding under the RCF
Facility (including accrued and unpaid interest thereon) shall be repaid in
full by no later than the Final Repayment Date.6.5.2
    
    Any amount repaid or prepaid under the RCF Facility shall be capable of
being re-borrowed by the Borrower on the terms and conditions set out in
this clause 6 (RCF Facility).




---



##### 



7.
    
    VOLUNTARY PREPAYMENT
 7.1
    
    At any time during the Term, and provided that no Default has occurred that is continuing,
the Borrower may, subject to the provisions of clause 28.2 (Exit Fees), by giving to the
Facility Agent not less than 5 (five) Business Days prior written notice to that effect,
prepay the whole or part of the Term Facility Outstandings or the RCF Facility Outstandings on
an Interest Payment Date relating to the relevant Facility; provided that no such prepayment
shall be in an amount of less than R50 000 000 (Fifty Million Rand) (or a greater amount
thereof in increments of R10 000 000 (Ten Million Rand)) or the Term Facility Outstandings or
RCF Facility Outstandings, whichever is the lesser.7.2
    
    Any notice of prepayment pursuant to clause 7.1 shall:
 7.2.1
    
    be irrevocable;7.2.2
    
    specify a date upon which such prepayment is to be made, which date shall be an Interest
Payment Date;7.2.3
    
    specify the amount of the prepayment; and7.2.4
    
    oblige the Borrower to make such prepayment on such date.
 8.
    
    MANDATORY PREPAYMENT
 8.1
    
    IllegalityIf it becomes unlawful in any applicable jurisdiction for any Lender to perform any of
its obligations as contemplated by this Agreement or to fund or maintain its
participation in any Loan:




---



##### 



8.1.1
    
    that Lender shall promptly notify the Facility Agent thereof, which shall
promptly notify the Borrower upon becoming aware of that event;8.1.2
    
    upon the Lender notifying the Borrower, the undrawn portion of any Facility relating to that
Lender will be immediately cancelled; and8.1.3
    
    the Borrower shall repay that Lenders Facility Outstandings on the last day of the
Interest Period for each Loan occurring after the Facility Agent has notified the Borrower
or, if earlier, the date specified by the Facility Agent in the notice delivered to the
Borrower (being no earlier than the last day of any applicable grace period permitted by
law).
 8.2
    
    Mandatory Prepayment  Change in Control
 8.2.1
    
    If any person or group of persons acting in concert gains Control of the
Borrower:
 8.2.1.1
    
    the Borrower shall promptly notify the Facility Agent upon becoming aware of that event;8.2.1.2
    
    the Leaders shall not be obliged to fund a Utilisation (except for a Rollover Loan) and
the Lender and the Borrower shall consult about the change of control;8.2.1.3
    
    if the Lenders so require after a period of 45 (forty-five) days from
receipt of the notice referred to in clause 8.2.1.1 above, the Facility
Agent shall by notice to the Borrower, (such notice to be delivered no
later than 60 (sixty) days from receipt of the notice referred to in
clause 8.2.1.1 above), cancel the undrawn portion of the Facilities and
declare the Facility Outstandings immediately due and payable, whereupon
the undrawn portion of the Facilities will be cancelled




---



##### 



and the Facility Outstandings will become immediately due and payable;
 8.2.2
    
    For the purpose of clause 8.2.1 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 Borrower, to obtain or consolidate
control of the Borrower.
 9.
    
    PAYMENTS
 9.1
    
    All payments to be made by the Obligors under any Finance Documents shall be
governed by the following provisions:
 9.1.1
    
    all such payments shall be made to the Facility Agent, on the due date for
such payment, to such account in South Africa as the Facility Agent specifies,
and any such payment shall discharge, pro tanto,the corresponding liability
to the Finance Parties;9.1.2
    
    all such payments shall be made for value by no later than 12h00 on the due date for such
payment;9.1.3
    
    the relevant Obligor shall advise the Facility Agent in writing once such repayment has
been made; and9.1.4
    
    all such payments shall be made in immediately available, freely transferable, cleared
funds free and clear of set-off, deduction or counterclaim.
 9.2
    
    In the event of may payment not being made in full on its due date, appropriated
in the first instance to the payment of any costs, charges or expenses, thereafter




---



##### 



to interest then due and payable, and thereafter in reduction of the principal amount
of the Loan.9.3
    
    The Borrower shall not have the right to defer, adjust or withhold any payment
due to the Finance Parties in terms of or arising out of this Agreement or to obtain
deferment of judgement for such amount or any execution of such judgement by reason of
any set-off or counterclaim due to any other contractual or delictual claims or causes
of whatsoever nature or howsoever arising.9.4
    
    If, at any time, it shall become impracticable (by reason of any action of any
governmental authority or any change in law, exchange control regulations or any
similar event) for the Borrower to make any payments hereunder in the manner specified
in this clause 8 (Payments), then the Borrower may agree with the Facility Agent
alternative arrangements for such payment to be made; provided that, in the absence of
any such agreement, the Borrower shall be obliged to make all payments due to the
Finance Parties in the manner specified herein.
 10.
    
    BREAKAGE COSTS AND BREAKAGE GAINS
 10.1
    
    If any Lender (or any person on its behalf) receives or recovers all or any part of
the Facility Outstandings otherwise than on the Interest Payment Date of the Interest
Period relating to the relevant Advance:
 10.1.1
    
    the Borrower indemnifies and holds the Lender harmless and shall pay to
the Lender on demand an amount equal to all Breakage Costs which the Lender
sustains as a consequence of such receipt or recovery on a day other than an
Interest Payment Date; or10.1.2
    
    provided that no Event of Default has occurred which is continuing, the
Lender shall pay to the Borrower on demand an amount equal to all




---



##### 



Breakage Gains which the Lender has actually realised as a consequence
of such receipt or recovery on a day other than on an Interest Payment Date.
 10.2
    
    A certificate signed by any director or manager of the Facility Agent (whose
appointment need not he proved) as to the amount of any Breakage Costs or Breakage
Gains, as the case may be, shall be prima facieproof of the amount thereof.
 11
    
    GUARANTEE AND INDEMNITY
 11.1
    
    Guarantee and IndemnityEach Guarantor irrevocably and unconditionally jointly and severally:
 11.1.1
    
    guarantees to the Finance Parties the punctual performance by the
Borrower of all the Borrowers obligations under the Finance Documents;11.1.2
    
    undertakes to the Finance Parties that whenever the Borrower does not pay any amount when
due under or in connection with any Finance Document, that Guarantor shall directly on demand
pay that amount as if it was the principal obligor; and11.1.3
    
    indemnifies the Finance Parties directly on demand against any cost, loss or liability
suffered by the Finance Parties 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 the Finance Parties would otherwise have been entitled to recover.




---



##### 



11.2
    
    Continuing GuaranteeThis guarantee is a continuing guarantee and will extend to the ultimate balance of
sums payable by the Borrower under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.
 11.3
    
    ReinstatementIf any payment by the Borrower or any discharge given by the Finance Parties (whether
in respect of the obligations of the Borrower or any security for those obligations or
otherwise) is avoided or reduced as a result of insolvency or any similar event:
 11.3.1
    
    the liability of the Borrower shall continue as if the payment, discharge,
avoidance or reduction had not occurred; and11.3.2
    
    the Finance Parties shall be entitled to recover the value or amount of that
security or payment from the Borrower, as if the payment, discharge, avoidance
or reduction had not occurred.
 11.4
    
    Waiver of DefencesThe obligations of each Guarantor under this clause 11 (Guarantee and
Indemnity) will, subject to applicable law, 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 11 (without limitation and whether or not
known to it or the Finance Parties) including:
 11.4.1
    
    any time indulgence, waiver or consent granted to, or composition with,
the Borrower or other person;




---



##### 



11.4.2
    
    the release of the Borrower or any other person under the terms of any
composition or arrangement with any creditor of any member of the Group;11.4.3
    
    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, the Borrower 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;11.4.4
    
    any incapacity or lack of power, authority or legal personality of or dissolution or change
in the members or status of the Borrower or any other person;11.4.5
    
    any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;11.4.6
    
    an unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security; or11.4.7
    
    any insolvency or similar proceedings.
 11.5
    
    Direct RecourseEach Guarantor waives any right it may have of first requiring the Finance Parties to
proceed against or enforce any other rights or security or claim payment from any
person before claiming from that Guarantor under this clause 11 (Guarantee and
Indemnity); provided that prior to making any demand on any Guarantor under this
clause 11 Guarantee and Indemnity)demand shall first have been made on the Borrower
and the Borrower shall have failed to pay the




---



##### 



sum or perform the obligation demanded within the requisite period specified in such
demand. This waiver applies irrespective of any law or any provision of a Finance
Document to the contrary.11.6
    
    AppropriationsUntil all amounts which may be or become payable by the Borrower under or in
connection with the Finance Documents have been irrevocably paid in full,the Finance
Parties (or any agent on its behalf) may apply all monies, security or rights received
by it on account thereof in such manner and order as it sees fit.11.7
    
    Deferral of Guarantors RightsUntil all amounts which may be or become payable by the Borrower under or in
connection with the Finance Documents have been irrevocably paid in full and unless
the Facility Agent (acting reasonably) 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:
 11.7.1
    
    to be indemnified by the Borrower;11.7.2
    
    to claim any contribution from any Guarantor; and/or11.7.3
    
    to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of
the 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 the Finance
Parties.




---



##### 



11.8
    
    Additional SecurityThis guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by the Finance Parties.
 12.
    
    CESSION IN SECURITY
 12.1
    
    As security for its obligations to the Finance Parties under the Finance Documents, each
Obligor hereby cedes in securitatem debitito the Finance Parties its right, title and
interest in and to the Loan Claims (the Security Cession).12.2
    
    The following terms and conditions shall apply to the Security Cession:
 12.2.1
    
    each Obligor agrees that the Security Cession shall constitute a continuing covering
security and shall remain in force notwithstanding any fluctuation or the temporary
extinction of each Obligors indebtedness to the Finance Parties in respect of the Finance
Documents;12.2.2
    
    each Obligor warrants and represents that prior to the Security Cession, the Loan Claims
have not been ceded to any other person provided that, to the extent that each Obligor has
ceded the Loan Claims to any person prior to the Security Cession, the Security Cession shall
constitute a cession of each Obligors reversionary rights in and to the Loan Claims;12.2.3
    
    if an Obligor defaults and/or breaches any of its obligations under the
Finance Documents and the Facility Agent has declared the Facility Outstandings
due and payable in accordance with clause 18.3 (Acceleration), the Finance
Parties shall, subject to applicable law, be entitled to take over and/or to
realise so much of the proceeds of the Loan Claims as shall be necessary to
discharge the Obligorss obligations to the




---



##### 



Finance Parties under the Finance Documents; provided that should the total
amount recovered by the Finance Parties, after deducting therefrom all costs,
charges and expenses incurred by the Finance Parties in exercising its rights in
terms of the Finance Documents, in discharge of the Obligors obligations in
respect of the Finance Documents exceed the full amount owing by the Obligors in
respect of the Finance Documents, the Finance Parties shall be obliged to refund
such excess to the Obligors;12.2.4
    
    if an Obligor defaults and/or breaches any of its obligations under the
Finance Documents and the Facility Agent has declared the Facility Outstandings
due and payable in accordance with clause 18.3 (Acceleration), each Obligor
nominates, constitutes and appoints the Facility Agent as its true and lawful
agent irrevocably and in rem suamwith power of substitution to exercise all the
rights of action and powers and rights accruing to it for the purpose of calling
up, enforcing and collecting the Loan Claims and to institute against the
relevant Group Company whatsoever legal proceedings the Facility Agent may
consider necessary and to prove any claim in any insolvent estate and generally
to do that which is requisite and necessary just as if each Obligor were acting
therein and in particular, to recover from the relevant Group Company all monies
and rights due to each Obligor in respect of the Loan Claims and to grant valid
receipts and acquittances therefor in its name;
 12.3
    
    The Facility Agent shall be entitled without in any way limiting or affecting its
rights against each Obligor or otherwise affecting each Obligors obligations to the
Finance Parties, to:
 12.3.1
    
    release and abandon any other form of security which it may have
securing the obligations owed by each Obligor in respect of the Finance
Documents, all such other forms of security, if any, being referred to as Other
Securities; and/or




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12.3.2
    
    release Other Securities or any one or more of them, in each case in whole
or in part; and/or12.3.3
    
    give time, compound, compromise or make any other arrangement in
respect of the extent, amount, duration, reduction or postponement of liability
to or with each Obligor; and/or12.3.4
    
    allow or grant any latitude or indulgence to each Obligor and/or any other
person who shall have furnished Other Securities;
 12.4
    
    The Security Cession shall remain of full force and effect until all of each
Obligors obligations under the Finance Documents have been discharged by the Obligors
in full, and notwithstanding:
 12.4.1
    
    any variation or amendment of, addition to or deletion from, or consensual cancellation or
determination of any agreement between any Obligor and
the Finance Parties; and/or12.4.2
    
    any waiver by the Finance Parties of some but not all of their rights against the Obligors;
and/or12.4.3
    
    any waiver by the Finance Parties of any or all of their rights in respect of Other
Securities; and/or12.4.4
    
    any latitude, indulgence or extension of time which may be allowed or shown by the Finance
Parties to any Obligor or such other person who shall have furnished Other Securities; and/or12.4.5
    
    the receipt by the Finance Parties of any dividend or benefit in any
liquidation or judicial management, or any compromise whether in terms of any
statutory enactment or common law.




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12.5
    
    Each Obligor undertakes and warrants that it will do all things necessary to grant
to the Finance Parties (or procure the granting to the Finance Parties of), and
perfect, the security set out in this clause 12.
 13.
    
    WARRANTIES AND REPRESENTATIONS
 13.1
    
    From the Signature Date, each Obligor hereby represents and warrants to the
Finance Parties on a continuing basis that:
 13.1.1
    
    Status
 13.1.1.1
    
    It is a limited liability company, duly incorporated and in good standing and validly
existing under the laws of South Africa.13.1.1.2
    
    It has the power to own its assets and carry on its business as it is being conducted or
is contemplated to be conducted.
 13.1.2
    
    Power and Authority
 13.1.2.1
    
    It has the power to enter into and perform, and has taken all
necessary action to authorise its entry into, and performance of, the
Finance Documents to which it is party and the transactions contemplated
by those Finance Documents.13.1.2.2
    
    No limit on its powers will be exceeded as a result of the
borrowings, grant of security or giving of guarantees or indemnities
contemplated by the Finance Documents to which it is a party.
 13.1.3
    
    Authorisations
 13.1.3.1
    
    All Authorisations required to enable it lawfully to enter into,
exercise its rights and comply with its obligations under the Finance




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##### 



Documents to which it is a party and to ensure that the obligations
expressed to be assumed by it thereunder are legal, valid, binding and
enforceable have been obtained or effected and are in full force and
effect.13.1.3.2
    
    It is not necessary that any Finance Document be filed, recorded or
enrolled with any court or other authority in South Africa of that any
registration or similar tax be paid on or in relation to any Finance
Document;13.1.3.3
    
    All Authorisations necessary for the conduct of its business, trade and ordinary
activities have been obtained or effected and are in full force and effect.
 13.1.4
    
    Constitutional DocumentsThe execution of the Finance Documents to which it is a party and its exercise
of its rights and performance of its obligations thereunder do not and will not
conflict with its Constitutional Documents.13.1.5
    
    Binding ObligationsThe obligations expressed to be assumed by it in each Finance Document to which
it is a party are, subject to any general principles of law as at the Signature
Date limiting its obligations, which are specifically referred to in any legal
opinion delivered pursuant to clause 4 (Conditions to Advance)legal, valid,
binding and enforceable obligations.13.1.6
    
    Non-conflict with Other ObligationsThe entry into and performance by it of, and the transactions contemplated by,
the Finance Documents to which it is a party and the granting of the




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##### 



Transaction Security pursuant to the Security Documents to which it is a party
do not and will not conflict with any agreement or instrument binding upon it or
any of its assets.13.1.7
    
    No Default
 13.1.7.1
    
    No Default is continuing or might reasonably be expected to result
from the making of a Loan or the entry into, the performance of, or any
transaction contemplated by, any Finance Document.13.1.7.2
    
    No event or circumstance is continuing which constitutes a breach or default under, or
entitles another party to call for termination of, any material agreement or material
instrument which is binding on it.
 13.1.8
    
    No Encumbrances
 13.1.8.1
    
    No Encumbrance exists over any of its assets except for Permitted Encumbrances.13.1.8.2
    
    Other than the Encumbrances created or to be created under the Security Documents, no
Encumbrance will arise solely as a result of the execution of and performance of its rights
and obligations under the Finance Documents.
 13.1.9
    
    Trading ActivitiesThe Borrower has no material trading activities or liabilities other than those
disclosed in or contemplated by the Finance Documents or the Original Financial
Statements.




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##### 



13.1.10
    
    IndebtednessIt has not incurred any Financial Indebtedness except for Permitted
Indebtedness.13.1.11
    
    No Proceedings Pending or ThreatenedNo investigation, litigation, arbitration or administrative proceedings of or
before any court, arbitral body or government agency which, if adversely
determine, is reasonably likely to result in a Material Adverse Change have been
started against it.13.1.12
    
    No Winding-UpIt has not taken any corporate action, nor have any other steps been taken or
legal proceedings started against it, for its winding-up, dissolution, or
administration or for the enforcement of any security interest over all or any
of its revenues or assets or for the appointment of a receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar officer of
it or of all or any of its assets.13.1.13
    
    Solvency
 13.1.13.1
    
    No Obligor is unable or has admitted its inability to pay its debts as they fall due or
has suspended making payments on any of its debts or, by reason or actual or anticipated
financial difficulties, commenced negotiations with its creditors generally with a view to
rescheduling its indebtedness.13.1.13.2
    
    A moratorium has not been declared in respect of any of the indebtedness of any Obligor.




---



##### 



13.1.14
    
    Compliance with LawsWithout detracting from any other provision of this clause 12, each Obligor is
in compliance in all material respects with the laws of the Republic of South
Africa.13.1.15
    
    Environmental ComplianceEach Obligor, to the extent applicable to it, has:
 13.1.15.1
    
    performed and observed in all material respects all Environmental Law, Environmental
Permits and all other material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution, degradation or waste or the release or
discharge of any toxic or hazardous substance in connection with any real property which is or
was at any time owned, leased, occupied or controlled by it or on which it has conducted any
activity where failure to do so is likely to result in a Material Adverse Change; and13.1.15.2
    
    obtained all Environmental Permits, required by it which are material to properly
conduct its business.
 13.1.16
    
    Environmental ClaimsSave to the extent disclosed in Schedule 6 (Disclosed Potential Environmental
Claim),no Environmental Claim has been commenced against any Obligor where that
claim would be reasonably likely to be adversely determined and which, if so
adversely determined against that Obligor, is likely to result in a Material
Adverse Change.




---



##### 



13.1.17
    
    Deduction of TaxIt is not required to make any deduction for or on account of tax from any payment it may make under any Finance Documents to the Finance Parties.13.1.18
    
    Taxation
 13.1.18.1
    
    Each Obligor has duly and punctually paid and discharged all taxes
imposed upon it or its assets within a time period allowed without
incurring penalties except to the extent that:
 13.1.18.1.1
    
    payment is being contested in good faith;13.1.18.1.2
    
    it has maintained adequate provisions for those taxes in
accordance with IFRS; and13.1.18.1.3
    
    payment can be lawfully withheld.
 13.1.18.2
    
    Each Obligor is materially overdue in the filing of its tax returns
since the years specified in Schedule 8 (Last Tax Return Year)for each
Obligor. Such late filing is due to bona fide queries having been raised
by each of the Obligors with the South African Revenue Service and/or by
the South African Revenue Service with all or any of the Obligors, and
for which proper and adequate provision has been made in the Original
Financial Statements.
 13.1.19
    
    No Misleading Information
 13.1.19.1
    
    To the best of its knowledge and belief (having made due enquiry),
all written information provided by it and supplied to the Facility Agent
pursuant to the terms of the Finance Documents and the




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##### 



transactions contemplated thereby is true and accurate in all material
respects as at the date it was given and is not misleading in any material
respects (whether because of information actually provided or which should
have been provided).13.1.19.2
    
    All written information referred to in this clause 13.1.19 (No Misleading Information)
has been disclosed to the Facility Agent without breaching any confidentiality obligation
binding upon it or its assets.13.1.19.3
    
    It has not knowingly withheld any information which, if disclosed, would reasonably be
expected materially and adversely to affect the decision of the Lenders to provide finance to
the Borrower.
 13.1.20
    
    No Breach of Finance DocumentsIt is not in breach of or in Default under any Finance Document.13.1.21
    
    No Material Adverse ChangeSince the Signature Date, no event or series of events has occurred, commenced or
is threatened which is (or the continuation of which is)
likely to result in a Material Adverse Change.13.1.22
    
    Original Financial Statements
 13.1.22.1
    
    The Original Financial Statements were prepared in accordance with IFRS consistently
applied, except to the extent expressly disclosed to
the contrary therein.13.1.22.2
    
    The Original Financial Statements fairly represent each Obligors financial condition
and operations (consolidated in the case of the




---



##### 



Group) during the relevant financial period, unless expressly disclosed
to the contrary therein.13.1.22.3
    
    There has been no material adverse change in the business, operations or financial
condition of any of the Obligors (or the business or consolidated financial condition of the
Group) since the Signature Date.13.1.22.4
    
    Upon the Original Financial Statements being audited by the Auditors, there shall be no
material changes thereto, and same shall not be qualified adversely by the Auditors or in any
material respect more severely than to the extent disclosed in the Original Financial
Statements as at the Signature Date.
 13.1.23
    
    Financial Statements and Budgets
 13.1.23.1
    
    The most recent financial statements delivered pursuant to clause
14.1 (Financial Statements) have been prepared in accordance with IFRS as
applied to the Original Financial Statements and give a true and fair view
of (if audited) or fairly present (if unaudited) the Groups consolidated
financial condition and each Obligors financial condition as at the end
of, and consolidated results of operations for, the period to which they
relate.13.1.23.2
    
    The budgets and forecasts supplied under this Agreement were
arrived at after careful consideration and have been prepared in good
faith on the basis of recent historical information and on the basis of
assumptions which were reasonable as at the date they were prepared and
supplied.




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##### 



Page 68. 13.1.23.3
    
    Since the date of the most recent financial statements delivered
pursuant to clause 14.1 (Financial Statements) there has been no Material
Adverse Change in the business, assets or financial condition of the
Group.
 13.1.24
    
    InsuranceIt maintains insurances on and in relation to its business and assets against
those risks and to the extent as is usual for companies in South Africa carrying
on substantially similar business in South Africa.13.1.25
    
    Assets and Intellectual Property Rights
 13.1.25.1
    
    It has good title to or valid leases or licenses over all of the assets necessary and
material to carry on its business.13.1.25.2
    
    It owns or has the legal right to use all the Intellectual Property Rights which are
material to the conduct of its business, or are required by it in order for it to carry on its
business and, as far as it is aware, it will not nor will any of its subsidiaries, in
carrying on its business, infringe any Intellectual Property Rights of any third party in any
way which is likely to result in a Material Adverse Change.13.1.25.3
    
    None of the Intellectual Property Rights which are material in the
context of its business are, to its knowledge, being infringed nor, to
its knowledge, is there any threatened infringement of those Intellectual
Property Rights, by any third party which in any such case is likely to
result in a Material Adverse Change.13.1.25.4
    
    All registered Intellectual Property Rights owned by it (or any
subsidiary of it) and which are material to the conduct of its business




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##### 



Page 69. are subsisting, and all actions (including payment of all fees) required
to maintain the same in full force and effect have been taken.
 13.1.26
    
    Pari Passu RankingIts payment obligations under the Finance Documents to which it is a party rank,
subject to any general principles of law as at the Signature Date limiting its
obligations, which are specifically referred to in any legal opinion delivered
pursuant to clause 4 (Conditions to Advance),at least pari passuwith the
claims of all its other unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law applying to companies generally.13.1.27
    
    Security Interest
 13.1.27.1
    
    Subject in each case to any registration specifically required by law,
and subject to any general principles of law as at the Signature Date
limiting its obligations, which are specifically referred to in any legal
opinion delivered pursuant to clause 4 (Conditions to Advance):
 13.1.27.1.1
    
    each Security Document validly creates the security interest
which is expressed to be created by that Security Document; and13.1.27.1.2
    
    the Transaction Security created by each Security Document;
 13.1.27.1.2.1
    
    ranks and will rank, in respect of all other security
interests granted or to be granted by any Obligor in favour of
any person other than the Finance Parties, in




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Page 70. the order of priority it is expressed to rank in the relevant
Security Document; and13.1.27.1.2.2
    
    is not subject to avoidance in the event of any winding-up, dissolution or administration involving any Obligor.
 13.1.27.2
    
    Other than any assets which are either the subject of a Permitted
Encumbrance or which are leased by the relevant Obligor, it is the Sole,
absolute, legal and, where applicable, beneficial owner of all assets made
subject to the Transaction Security created by each Security Document.
 13.1.28
    
    No Material Industrial ActionNo industrial or similar action has been started or threatened against it which
is likely to result in a Material Adverse Change.13.1.29
    
    Immunity from Suit
 13.1.29.1
    
    In any proceedings taken against it in South Africa in relation to the
Finance Documents to which it is a party, it will not be entitled to
claim for itself or any of its assets immunity from suit, execution,
attachment or other legal process,13.1.29.2
    
    The execution of the Finance Documents to which it is a party
constitutes, and its exercise of its rights and performance of its
obligations thereunder will constitute, private and commercial acts done
and performed for private and commercial purposes.
 13.2
    
    Each of the warranties given by each of the Obligors in terms of clause 13.1 shall:




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Page 71. 13.2.1
    
    prima faciebe deemed to be a representation or fact inducing the Finance Parties to enter
into the Finance Documents;13.2.2
    
    be presumed to be material unless the contrary is proved;13.2.3
    
    insofar as any of the warranties is promissory or relates to a future event,
be deemed to have been given as at the due date for fulfilment of the promise
or for the happening of the event, as the case may be; and13.2.4
    
    be a separate warranty and in no way be limited or restricted by reference
to or inference from the terms of any other warranty.
 13.3
    
    The Finance Parties are entering into this Agreement and the other Finance
Documents relying upon the warranties given by the Borrower in clause 13.1.
 14.
    
    FINANCIAL INFORMATION
 14.1
    
    Financial Statements
 14.1.1
    
    The Borrower shall:
 14.1.1.1
    
    as soon as the same become available, but in any event within 120
(one hundred and twenty) days after the end of each Financial Year during
the Term, deliver to the Facility Agent the consolidated audited annual
financial statements of the Group for such Financial Year; and14.1.1.2
    
    as soon as the same become available, but in any event within 150
(one hundred and fifty) days after the end of each Financial Year during
the Term, deliver to the Facility Agent the audited annual financial
statements of each Guarantor for such Financial Year;




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Page 72. 14.1.1.3
    
    as soon as the same become available, but in any event within 60
(sixty) days after the end of each quarter of each Financial Year during
the Term, deliver to the Facility Agent the consolidated interim quarterly
financial statements of the Group (in the form as
provided to the Borrowers shareholders) for such period.14.1.1.4
    
    from time to time on the written request of the Facility Agent,
furnish the Facility Agent with such information about the business and
financial condition of the Group and/or of each Obligor as the Facility
Agent may reasonably require in order to assess the Borrowers ability to
perform its obligations under the Finance Documents.
 14.1.2
    
    The Borrower shall ensure that:
 14.1.2.1
    
    each set of financial statements delivered by it pursuant to clause 14.1 (Financial
Statements) is prepared on the same basis as was used in the preparation of the Original
Financial Statements and in accordance with IFRS;14.1.2.2
    
    each set of financial statements delivered by it pursuant to this clause 14 (Financial
Statements) is certified by the Group Managing Director or the Group Financial Director of the
Borrower as giving a true and fair view, if audited, or fairly present, if unaudited, of the
financial condition of the Group (and each Obligor) as at the end of the period to which those
financial statements relate and of the result of its operations during such period; and14.1.2.3
    
    each set of financial statements delivered by it pursuant to clause 14.1.1.1 has been
audited by the Auditors.




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Page 73. 14.2
    
    Compliance Certificate
 14.2.1
    
    The Borrower shall deliver to the Facility Agent with each set of financial
statements delivered pursuant to clause 14.1 (Financial Statements), a
Compliance Certificate setting out (in reasonable detail) computations as
to compliance with clause 17 (Financial Covenants) as at the Ratio Test
Date; and14.2.2
    
    Each Compliance Certificate shall be signed by the chief financial officer
or the financial director of the Borrower.
 14.3
    
    Requirements as to Financial Statements
 14.3.1
    
    The Borrower shall procure that each set of financial statements delivered
pursuant to clause 14.1 (Financial Statements) is prepared in accordance with
IFRS, the requirements of the Companies Act and accounting practices and
financial reference periods as promulgated by the Accounting Practices Board
consistent with those applied in the preparation of the Original Financial
Statements.14.3.2
    
    Clause 14.3.1 shall not apply to the extent that, in relation to any sets of
financial statements, the Borrower notifies the Facility Agent that there
has been a change in IFRS or the accounting practices or reference periods
and the Auditors (in the case of its annual audited financial statements) or
the Borrower (in the case of any of its other financial statements) delivers
to the Facility Agent:
 14.3.2.1
    
    a description of any change necessary for those financial statements
to reflect IFRS, accounting practices and reference periods upon which the
Original Financial Statements were prepared; and




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Page 74. 14.3.2.2
    
    sufficient information, in form and substance as may be reasonably
required by the Facility Agent to enable the Facility Agent to determine
whether clause 17 (Financial Covenants) has been
complied with and make an accurate comparison between the financial
position indicated in those financial statements and the Original
Financial Statements.
 14.3.3
    
    If the Borrower notifies the Facility Agent of a change in accordance with
clause 14.3.2, then the Borrower and Facility Agent shall enter into
negotiations in good faith with a view to agreeing:
 14.3.3.1
    
    whether or not the change might result in material alteration in the
commercial effect of any of the terms of this Agreement or any other
Finance Document; and14.3.3.2
    
    if so, any amendments to this Agreement or any other Finance
Document 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.14.3.4
    
    Any reference in this Agreement to financial statements shall be construed as a reference
to those financial statements as the same may be adjusted under this clause 14.3 to reflect the
basis upon which the Original Financial Statements were prepared.




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Page 75. 14.4
    
    Access to RecordsIf a Default is continuing or the Facility Agent reasonably suspects that a Default is
continuing, each Obligor shall, and the Borrower shall ensure that each Obligor will,
permit the Facility Agent or any of its representatives and professional advisors free
access at all reasonable times and on reasonable notice (at the Borrowers cost and
expense) to that Obligors premises, records, accounts (including its general ledger),
books and assets as that person may require at reasonable times and upon reasonable
notice.14.5
    
    Information: MiscellaneousThe Borrower shall supply to the Facility Agent:
 14.5.1
    
    at the same time as they are despatched, copies of all documents despatched by any Obligor
to its shareholders generally (or any class of them) or despatched by any Obligor to its
creditors generally (or any class of them);14.5.2
    
    promptly upon becoming aware of them, the details of any litigation, arbitration or
administrative proceedings which are current, threatened or pending against any Obligor which,
if adversely determined against it, would be reasonably likely to have a Material Adverse
Change;14.5.3
    
    promptly, such further information (including an extract of its general ledger) regarding
the financial condition, business and operations of any Group Company as the Facility Agent
may reasonably request; and14.5.4
    
    promptly upon it becoming aware of any transfer of shares in any Group Company (not being a
publicly listed entity) and of any change in the beneficial ownership of any Group Company
(not being a publicly listed




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Page 76. entity) affecting the Control of that Group Company, provide details thereof and
an updated list of all the shareholders of any Group Company (not being a
publicly listed entity).
 14.6
    
    Notification of Default
 14.6.1
    
    The Borrower shall notify the Facility Agent of any Default (and the steps, if any, being
taken to remedy it) promptly upon becoming aware of its occurrence.14.6.2
    
    Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility
Agent a certificate signed by the chief financial officer or the financial director of the
Borrower certifying that no Default is continuing (or if a Default is continuing specifying
the Default and the steps, if any, being taken to remedy it).
 14.7
    
    Delivery of Information
 14.7.1
    
    Without prejudice to clause 29 (Notices and Domicilia), any documents to be delivered under
this clause 14 may be delivered by the Borrower to the Facility Agent (and by the Facility
Agent to the Lenders) by e-mail where the Facility Agent has expressly agreed, by written
notice to the Borrower, to receive such documents by e-mail and has informed the Borrower of
an e-mail address pursuant to clause 29 (Notices and Domicilia), provided that, for this
purpose, any such notification shall also be followed-up by telefax.14.7.2
    
    If the Finance Parties request delivery to it of a paper copy of any document to be
delivered by the Borrower under this clause 14 (Financial Information)in place of an
electronic copy of such document, it shall notify the Borrower accordingly. The Facility
Agent shall request the




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Page 77. Borrower in writing to provide such paper copies promptly upon receipt of
any such notice and the Borrower shall be obliged promptly to do so.
 15.
    
    POSITIVE UNDERTAKINGSEach Obligor hereby agrees and undertakes, until the Facility Outstandings have been repaid
in full, that it shall:
 15.1
    
    AuthorisationsObtain, comply with the terms of and do all that is necessary to maintain in full
force and effect all authorisations, approvals, licences and consents required in or
by the laws and regulations of South Africa to enable it lawfully to undertake its
business and to enter into and perform its obligations under the Finance Documents to
which it is a party or to ensure the legality, validity, enforceability or
admissibility in evidence in South Africa of the Finance Documents to which it is a
party;15.2
    
    Compliance with LawsComply in all material respects with all laws to which it may be subject, and obtain
and comply with all permits and licenses, in each case, to the extent the same are
material to its business.15.3
    
    Material Adverse ChangePromptly inform the Facility Agent in writing of the occurrence of any Material Adverse
Change forthwith upon becoming aware thereof and from time to time, if so requested by
the Facility Agent in writing, confirm to the Facility Agent in writing that, save as
previously notified to the Facility Agent or as notified in such confirmation, no such
Material Adverse Change has occurred and/or is continuing.




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Page 78. 15.4
    
    Representations and WarrantiesNotify the Facility Agent of the occurrence of any event which results in or may
reasonably be expected to result in any of the representations and warranties contained
in clause 12 (Warranties and Representations)being untrue.15.5
    
    InsuranceMaintain insurances on and in relation to its business and assets with reputable
underwriters or insurance companies against those risks and to the extent as is usual
for companies carrying on the same or substantially similar business.15.6
    
    Pari PassuRankingEnsure that at all times the claims of the Finance Parties against it under the
Finance Documents to which it is a party rank at least pari passuwith the claims of
all its other unsecured creditors save those whose claims are preferred by any
bankruptcy, insolvency, liquidation or other similar laws of general application.15.7
    
    Environmental ComplianceComply 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
published fixture changes to or obligations under the same, if failure to do so would
reasonably be expected to result in a Material Adverse Change.15.8
    
    Environmental ClaimsInform the Facility Agent in writing as soon as reasonably practicable upon becoming
aware of the same:




---



##### 



15.8.1
    
    if any Environmental Claim has been commenced or (to the   best of that
Obligors knowledge and belief) is threatened against any member of the Group;
or15.8.2
    
    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, if adversely determined, be reasonably likely to result in a
Material Adverse Change.15.9
    
    DefaultAt any time after the occurrence of a Default and for so long as it is continuing,
upon the written request of the Facility Agent with reasonable prior notice, permit
representatives of the Finance Parties during normal office hours, to visit and
inspect any of the premises where its business is conducted, to have access to (and
copies of) accounts and records and shall afford reasonable co-operation at all times
to the Finance Parties and such representatives.
 16.
    
    NEGATIVE UNDERTAKINGSEach Obligor hereby agrees and undertakes that, until the Facility Outstandings has been
repaid in full none of the Obligors shall, without the prior written consent of the Facility
Agent;
 16.1
    
    Financial Indebtedness
 16.1.1
    
    Assume, incur or permit to have outstanding any Financial Indebtedness other than Permitted Indebtedness.




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16.1.2
    
    Release or waive any material Indebtedness owed to it by any Related Party other than for valuable market consideration.
 16.2
    
    Loans and CreditMake any loans, grant any credit (save in the ordinary course of business) or
give any guarantee or indemnity for any loans or credit (except as required hereby) 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 other person
(collectively, Credit) other than:
 16.2.1
    
    Credit existing at the Signature Date and disclosed in the Original
Financial Statements;16.2.2
    
    Permitted Loans;16.2.3
    
    any guarantee or indemnity given in respect of Permitted Indebtedness; or16.2.4
    
    Credit granted to any Obligor.
 16.3
    
    DisposalsEnter into a single transaction or a series of transactions (whether related or not)
and whether voluntarily or involuntarily to Dispose of any assets other than pursuant
to a Permitted Disposal.16.4
    
    DistributionsThe Borrower shall not pay, make or declare, or resolve to pay, make or declare, any
Distribution unless the Market Capitalisation to Facilities Outstanding Ratio is
greater than 9 (nine) times.




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##### 



16.5
    
    Negative Pledge
 16.5.1
    
    Save as contemplated by the Finance Documents, not create or permit to subsist any Encumbrance over any of its assets.16.5.2
    
    Save as contemplated by the Finance Documents, not:
 16.5.2.1
    
    sell, transfer or otherwise dispose of any of its assets to any person who is not an
Obligor on terms whereby they are or may be leased to or re-acquired by it or by any other
Group Company;16.5.2.2
    
    sell, transfer or otherwise dispose of any of its receivables on recourse terms;16.5.2.3
    
    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; or16.5.2.4
    
    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.
 16.5.3
    
    Clauses 16.5.1 and 16.5.2 and do not apply to Permitted Encumbrances or to Permitted Disposals.




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##### 



16.6
    
    AcquisitionsNot acquire a company or any shares or securities or a business or undertaking (or, in
each case, any interest in any of them) in excess of R100 000 000 (One Hundred Million
Rand) in aggregate in any Financial Year, other than the
President Steyn Acquisition.
 17.
    
    FINANCIAL COVENANTS
 17.1
    
    Financial ConditionThe Borrower shall ensure that for so long as any amount is outstanding under a
Finance Document:
 17.1.1
    
    the Interest Cover Ratio shall not be less than 2 (two) times;17.1.2
    
    the Current Ratio shall not be less than 1 (one) time;17.1.3
    
    as at each Ratio Test Date cash flows from operating activities (excluding capital
expenditure and as stated in the Borrowers cash flow statement) for the previous 6 (six)
months shall at all times have been above R50 000 000 (Fifty Million Rand); and17.1.4
    
    the Market Capitalisation to Facilities Outstanding Ratio shall not be less
than 6 (six) times.
 17.2
    
    Financial TestingThe Financial Covenants shall be tested on each Ratio Test Date by reference to the
unaudited and/or audited consolidated financial statements of the Group, as
applicable, in respect of the relevant Ratio Test Period.




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##### 



17.3
    
    Breach of a Financial Condition Undertaking
 17.3.1
    
    Immediately upon becoming aware of a breach of any of the Financial Covenants, each Obligor
shall notify the Facility Agent (and provide such details about the breach as the Facility
Agent may request) (unless that Obligor is aware that a notification has already been provided
by another Obligor).17.3.2
    
    In the event that the requirement set out in clause 17.1.3 is breached:
 17.3.2.1
    
    once, the Borrower shall not be entitled to utilise the RCF Facility until such breach is
remedied;17.3.2.2
    
    on two consecutive Ratio Test Dates, such breach shall
constitute an Event of Default.
 17.3.3
    
    Should the Market Capitalisation to Facilities Outstanding Ratio be less
than 9 (nine) times (but greater than 6 (six) times), the Borrower shall not be
entitled to make, declare and/or pay any Distributions until such time as the
Market Capitalisation to Facilities Outstanding Ratio is in excess of 9 (nine)
times.
 18.
    
    EVENTS OF DEFAULT
 18.1
    
    Events of DefaultEach of the events set out in this clause 18.1 is an Event of Default (whether or not
caused by any reason whatsoever outside the control of the Borrower, any other Obligor
or any other person).




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##### 



18.1.1
    
    Non-PaymentThe Borrower fails to pay any sum due from it hereunder at the time, in the currency and in the manner specified herein, unless:
 18.1.1.1
    
    its failure to pay is caused by an administrative or technical error; and18.1.1.2
    
    payment is made within 2 (two) Business Days of its due date.
 18.1.2
    
    Financial CovenantAny requirement of clause 17 (Financial Covenants)is not satisfied.18.1.3
    
    Other ObligationsSubject to clause 18.2 (Remedy), an Obligor does not comply with any of its
obligations when performance is due under the Finance Documents (other than
those referred to in clause 18.1.1 (Non-Payment), clause
18.1.2 (Financial
Covenants) and clause 18.1.4 (Security)).18.1.4
    
    Security
 18.1.4.1
    
    Any Obligor fails to perform or comply with any of the material obligations assumed by
it in a Security Document to which it is a party.18.1.4.2
    
    Any Finance Document becomes unenforceable unless, to the extent possible, the Obligors
and the Facility Agent are able to agree within a period of 30 (thirty) days after becoming
aware thereof to the amendment or restructuring of such Finance Document in order to render it
enforceable.




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##### 



18.1.5
    
    MisrepresentationAny representation or statement made or deemed to be made by any 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 proved to have been
incorrect or misleading when made or deemed to be made in any material respect.18.1.6
    
    Insolvency
 18.1.6.1
    
    Any Obligor is unable to pay its debts as they fall due,
commences negotiations with any one or more of its creditors with a view to the
general readjustment or rescheduling of its Indebtedness or makes a
general assignment for the benefit of or a composition, or compromise with
its creditors.18.1.6.2
    
    Any Obligor takes any corporate action or other steps are taken or
legal proceedings are started by that Obligor for its winding-up (whether
provisional or final), dissolution or administration or for the
appointment of a liquidator, receiver, administrator, administrative
receiver,, trustee or similar officer of it or of any or all of its
revenues and assets.18.1.6.3
    
    Any execution is levied against, or an encumbrancer takes
possession of the whole or any part of, the property, undertaking or
assets of any Obligor and Obligor fails within 10 (ten) Business Days
after becoming aware, or after it should reasonably have become aware, of
such execution, and/or possession, as the case may be, to take the
necessary steps to have such execution, and/or possession, as the case may
be, set aside and thereafter successfully pursue such steps with due
diligence.




---



##### 



18.1.6.4
    
    Any Obligor commits an act defined in terms of Section 344 of the Companies Act.
 18.1.7
    
    Insolvency ProceedingsAny corporate action, legal proceedings or other similar procedure or steps are
taken in relation to:
 18.1.7.1
    
    the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution or administration (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any Obligor other than
(in respect of any service of an application, or taking of any similar
step for the liquidation, bankruptcy, judicial management, winding-up,
dissolution or administration of the Obligor) where such action is
dismissed, withdrawn or discharged within 5 (five) Business Days of its
presentation or such step being taken (or, if the Obligor demonstrates to
the Facility Agents satisfaction within such 5 (five) Business Days
period that such action is frivolous or vexatious (by way of an opinion by
a Senior Counsel of at least 10 (ten) years standing, that the relevant
Obligor has a reasonable prospect of defending that action));18.1.7.2
    
    a composition, compromise, assignment or arrangement with the creditors of any Obligor;18.1.7.3
    
    the appointment of a liquidator, receiver, administrator,
administrative receiver, judicial manager, compulsory manager or other
similar officer in respect of any Obligor or any of its assets; or18.1.7.4
    
    enforcement of any security interest over any assets of any Obligor,




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##### 



or any analogous procedure or step is taken in any jurisdiction.18.1.8
    
    Failure to comply with Final JudgementAny Obligor fails within 10 (ten) Business Days of the due date to comply with
or pay any sum due from it under any final judgement or any final order made or
given by any court of competent jurisdiction.18.1.9
    
    Cessation of Business
 18.1.9.1
    
    Any Obligor permanently suspends, is unable to or ceases for any
reason whatsoever to conduct its normal line of business in the ordinary
and regular manner.18.1.9.2
    
    Any Obligor sells, transfers or otherwise disposes of in any one
transaction or a series of transactions (whether or not related), a
material portion of its business or changes its asset structure and as a
result of the disposal, it would in the reasonable opinion of the Facility
Agent be unable to perform or observe its obligations under any Finance
Document to which it is a party.
 18.1.10
    
    Cross-Default
 18.1.10.1
    
    Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period.18.1.10.2
    
    Any Financial Indebtedness of any Obligor is declared to be or
otherwise becomes due and payable prior to a specified maturity as a
result of an event of default (however described).




---



##### 



18.1.10.3
    
    Any commitment for any Financial Indebtedness of any Obligor is
cancelled or suspended by a creditor of that Obligor as a result of an
event of default (however described).18.1.10.4
    
    Any creditor of any Obligor becomes entitled to declare any
Financial Indebtedness of any Obligor due and payable prior to its
specified maturity as a result of an event of default (however
described).
 18.1.11
    
    Governmental InterventionBy or under the authority of any government:
 18.1.11.1
    
    the management of any Obligor is wholly or substantially replaced
or the authority of any Obligor in the conduct of its business is wholly
or substantially curtailed; or18.1.11.2
    
    all or a majority of the issued shares of any Obligor, or the whole or
any part of its revenues or assets is seized, nationalised, expropriated
or compulsorily acquired.
 18.1.12
    
    RepudiationAny Obligor repudiates any Finance Document to which it is a party.18.1.13
    
    Failure to Maintain AuthorisationsAt any time any Authorisation, act, condition or thing required to be done,
fulfilled or performed in order:




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##### 



18.1.13.1
    
    to enable any Obligor lawfully conduct its business, or to enter into,
exercise its rights under and perform the obligations expressed to be
assumed by it in any Finance Document to which it is a party;18.1.13.2
    
    to ensure that the obligations expressed to be assumed by any
Obligor in any Finance Document to which it is a party are legal, valid and
binding; or18.1.13.3
    
    to make any Finance Document to which any Obligor is a party admissible in evidence in South Africa,
 is not done, fulfilled or performed.
 18.1.14
    
    UnlawfulnessIt is or becomes unlawful for any Obligor to perform any of its obligations under
the Finance Documents to which it is a party other than any obligations which the
Facility Agent considers to be not material or which it is satisfied is
adequately provided for in any other Finance Document (including a Finance
Document which is entered into in replacement of the document under which it was
unlawful for such Obligor to perform its obligations) or unless the Obligor and
the Facility Agent agree within a period of 30 (thirty) days after the occurrence
of such unlawfulness or such unlawfulness comes to the attention of the Facility
Agent, whichever is the earlier, to the amendment or restructuring of such
Finance Document in order to avoid such unlawfulness.




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##### 



18.1.15
    
    Material Adverse ChangeAny event (or any series of events) or circumstances occurs (or any existing
circumstance continued) which is likely to result in a Material Adverse Change.
 18.2
    
    Remedy
 18.2.1
    
    No Event of Default under clause 18.1 (Events of Default) (other than
those referred to in clauses 18.1.1 (Non-Payment), 18.1.2 (Financial Covenants)
and 18.1.4 (Security)) will occur if the failure to comply or circumstance
giving rise to the same is capable of remedy and is remedied within 10 (ten)
Business Days, or such further period as the Facility Agent may
agree, of the
Facility Agent giving notice to the Borrower or any Obligor becoming aware of
the failure to comply.18.2.2
    
    For the purposes of clause 18.2.1. the events or circumstances referred to
in clause 18.1.6 (Insolvency), clause 18.1.8 (Failure to comply with Final
Judgement), clause 18.1.9 (Cessation of Business), clause 18.1.11 (Govenmental
Intervention), clause 18.1.14 (Unlawfulness) and clause 18.1.15 (Material Adverse
Change) shall be deemed to be incapable of remedy save to the extent set out
therein.
 18.3
    
    AccelerationIf any Event of Default occurs which is continuing, the Facility Agent shall be
entitled, in its sole discretion and without prejudice to any other rights or remedies
which the Finance Parties may have under any of the Finance Documents or otherwise in
terms of South African law, by written notice to the Borrower:




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##### 



18.3.1
    
    to claim immediate payment of all Facility Outstandings (including but not limited to
capital and interest and amounts in respect of duties, fees and charges owing by the Borrower
to the Finance Parties under the Finance Documents) regardless of whether or not such amounts
are then otherwise due and payable, all of which amounts shall, upon the delivery of such a
notice, immediately become due and payable; and/or18.3.2
    
    to declare the Facility Outstandings to be due and payable upon demand; and/or18.3.3
    
    demand and be entitled to receive specific performance of the relevant obligation of the
Finance Documents (if any) breached by the Obligor; and/or18.3.4
    
    take all steps which it regards as desirable in order to enforce, or perfect the security
interest created or evidenced by any one or more Security Document; and/or18.3.5
    
    cancel the whole or part of the Facilities; and/or18.3.6
    
    claim payment from the Borrower of any and all Breakage Costs, damages, costs and other
amounts incurred directly as a result of such Event of Default less the amount of any
Breakage Gains.
 18.4
    
    If pursuant to clause 18.3.2 the Facility Agent declares the Facility Outstandings
to be due and payable on demand of the Facility Agent then, and at any time
thereafter, the Facility Agent may by written notice to the Borrower call for
repayment of the Facility Outstandings mutatis mutandisin accordance with clause 18.3
on such date as it may specify in such notice (whereupon the same shall become due and
payable on such date), or withdraw its declaration with effect from such date as it
may specify in such notice.




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##### 



19.
    
    TAXES
 19.1
    
    All payments to be made by the Borrower to the Lenders under
the Finance
Documents shall be made free and clear of and without deduction for or on account of
tax unless the Borrower is required to make such a payment subject to the deduction or
withholding of tax, in which case the sum payable by the Borrower in respect of which
such deduction or withholdings is required to be made shall be increased to the extent
necessary to ensure that, after the making of the required deduction or withholding,
the Finance Parties receive and retains (free from any liability in respect of any such
deduction or withholding) a net sum equal to the sum which it would have received and
so retained had no such deduction or withholding been made or required to be made.19.2
    
    Without prejudice to the provisions of clause 19.1, if the Finance Parties are
required to make any payment on account of tax (not being a tax imposed on the net
income of the Finance Parties by the jurisdiction in which it is incorporated) or
otherwise on or in relation to any sum received or receivable by it hereunder
(including, without limitation, any sum received or receivable under
this clause 19) or
any liability in respect of any such payment is asserted, imposed, levied or assessed
against the Finance Parties, the Borrower shall, upon demand, promptly indemnify the
Finance Parties against such payment or liability, together with any interest,
penalties and expenses payable or incurred in connection therewith.19.3
    
    If the Finance Parties intend to make a claim pursuant to clause 19.2, it shall
notify the Borrower of the event by reason of which it is entitled to make such claim;
provided that nothing herein shall require the Finance Parties to disclose any
confidential information relating to the organisation of its affairs.19.4
    
    The liability of the Borrower to the Finance Parties in terms of this clause 19
(Taxes) will be reduced by any tax credit granted to the Finance Parties in




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##### 



respect of the tax liabilities referred to in this clause 19. The Finance Parties
undertake to diligently pursue the granting of any such tax credits; provided that, if
in the opinion of the Finance Parties they will not be successful in obtaining such tax
credits, the Finance Parties will be obliged, on written request by
the Borrower to
obtain an opinion, at the Borrowers cost by Senior Counsel of at least 10 (ten)
years standing regarding whether there is a reasonable prospect of success in any such
proceedings. In the event that the aforesaid Senior Counsels opinion states that there
is a reasonable prospect of success the Finance Parties shall be obliged to pursue the
granting of such tax credits. The Borrower hereby indemnifies and holds the Finance
Parties harmless against, and shall on written demand pay to the Finance Parties, all
reasonable costs incurred by it in pursuing the granting of such tax credits.
 20.
    
    TAX RECEIPTS
 20.1
    
    If, at any time, the Borrower is required by law to make any deduction or withholding from
any sum payable by it hereunder (or if thereafter there is any change in the rates at which
or the manner in which such deductions or withholdings are calculated), the Borrower shall
promptly notify the Facility Agent.20.2
    
    If the Borrower makes any payment hereunder in respect of which it is required to make any
deduction or withholding, it shall pay the full amount required to be deducted or withheld to
the relevant taxation or other authority within the time allowed for such payment under
applicable law and shall deliver to the Facility Agent, within 30 (thirty) days after it has
made such payment to the applicable authority, an original receipt (or a certified copy
thereof) issued by such authority evidencing the payment to such
authority of all amounts so
required to be deducted or withheld in respect of such payment.




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##### 



21.
    
    INCREASED COSTS
 21.1
    
    Increased costs
 21.1.1
    
    Subject to clause 21.3 (Exceptions) the Borrower shall, within 5 (five)
Business Days of a demand by the Facility 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, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made after the
Signature Date.21.1.2
    
    In this Agreement Increased Costs means:
 21.1.2.1
    
    a reduction in the rate of return from a Facility or on a Finance
Partys (or its affiliates) overall capital;21.1.2.2
    
    an additional or increased cost; or21.1.2.3
    
    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 funding or performing
its obligations under any Finance Document.
 21.2
    
    Increased cost claims
 21.2.1
    
    A Finance Party intending to make a claim pursuant to clause 21.1
(Increased costs) shall notify the Facility Agent of the event giving rise to
the claim, following which the Facility Agent shall promptly notify the
Borrower.




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##### 



21.2.2
    
    Each Finance Party shall, as soon as practicable after a demand by the
Facility Agent, provide a certificate in accordance with clause 22 (Certificate of
Indebtedness) confirming the amount of its Increased Costs.
 21.3
    
    ExceptionsClause 21.1 (Increased costs) does not apply to the extent any Increased Cost is:
 21.3.1
    
    attributable to a tax deduction required by law to be made by an Obligor;21.3.2
    
    compensated for by clause 19 (Taxes) or clause 20 (Tax Receipts); or21.3.3
    
    attributable to the wilful breach by the relevant Finance Party or its affiliates of any law
or regulation.
 22.
    
    CERTIFICATE OF INDEBTEDNESSA certificate signed by any director or manager of the Facility Agent (whose appointment need
not be proved) as to the existence of and the amount of Indebtedness by the Borrower to the
Finance Parties, that such amount is due and
payable, the amount of interest accrued thereon and as to any other fact, matter or thing
related to the Borrowers Indebtedness to the Finance Parties in terms of this Agreement,
shall be sufficient proof of the contents and correctness thereof for the purposes of
provisional sentence, summary judgment or any other proceedings, shall be valid as a liquid
document for such purpose and shall, in addition, be prima facieproof for purposes of
pleading or trial in any action instituted by the Finance Parties arising herefrom.




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##### 



23.
    
    SET-OFFThe Borrower authorises the Finance Parties to apply any credit balance to which an Obligor
is entitled on any account of an Obligor with the Finance Parties in
satisfaction of any sum due and payable by the Borrower to the Finance Parties hereunder but
unpaid. The Finance Parties shall not be obliged to exercise any rights given to it by this
clause 23.
 24.
    
    CHANGE OF PARTY
 24.1
    
    No Cession, Delegation or AssignmentNo Party may cede or assign any of its rights or delegate or transfer any of its
obligations in respect of any Finance Documents or the Facility Outstandings except as
permitted under this clause 24.24.2
    
    Assignments and Transfers by the Lenders
 24.2.1
    
    Subject to clause 24.3 (Conditions of Cession or Delegation), a Lender
(the Existing Lender) may (at no expense to any Obligor) cede any of its
rights and/or delegate any of its obligations under this Agreement and any
corresponding rights or obligations under any other Finance Document to any
financial institution without the consent of any Obligor or any other Party (the
New Lender), and the Obligors hereby expressly consent to any such cession of
rights and/or delegation of obligations as contemplated herein. To the extent
that any splitting of claims arises as a consequence of any such cession,
assignment and/or delegation, as the case may be, the Obligors hereby consents
to such splitting of claims.




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##### 



24.3
    
    Conditions of Cession or Delegation
 24.3.1
    
    A cession or delegation as contemplated in clause 24.2 (Assignment and
Transfers by the Lenders)will only be effective if the procedure set out in
clause 24.5 (Procedure for Transfer) is complied with.24.3.2
    
    If:
 24.3.2.1
    
    a Lender cedes, assigns or transfers any of its rights or obligations under the Finance
Documents; and24.3.2.2
    
    as a result of circumstances existing as at the date on which the cession, assignment,
transfer or change occurs, an Obligor would be obliged to make payment to the New Lender
under clause 19 (Taxes) and clause 21 (Inereased Costs),
 then the New Lender is only entitled to receive payment under that clause or
to enforce or require performance of such obligation to the same extent as the
Existing Lender would have been if the cession, assignment, transfer or change
had not occurred.
 24.4
    
    Limitation of Responsibility of Existing Lenders
 24.4.1
    
    Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender for:
 24.4.1.1
    
    the legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other documents;24.4.1.2
    
    the financial condition of any Obligor;




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##### 



24.4.1.3
    
    the performance and observance by any Obligor of its obligations
under the Finance Documents or any other documents; or24.4.1.4
    
    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.24.4.2
    
    Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
 24.4.2.1
    
    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 the Finance Documents and has not relied on any information provided to
it by the Existing Lender or any other Finance Party in connection with
any Finance Documents; and24.4.2.2
    
    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.
 24.4.3
    
    Nothing in any Finance Document obliges an Existing Lender to:
 24.4.3.1
    
    accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this clause 24; or24.4.3.2
    
    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.




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##### 



24.5
    
    Procedure for Transfer
 24.5.1
    
    Subject to the conditions set out in clause 24.3 (Conditions of Cession or
Delegation) a transfer is effected in accordance with clause 24.5.2 when the
Facility Agent:
 24.5.1.1
    
    executes an otherwise duly completed Cession and Delegation Agreement delivered to it by
the Existing Lender; and24.5.1.2
    
    a duly completed Accession Undertaking is delivered to it by the Existing Lender
(Transfer Date).
 24.5.2
    
    On the Transfer Date:
 24.5.2.1
    
    to the extent that in the Cession and Delegation Agreement the
Existing Lender seeks to transfer by cession and delegation its rights
and obligations in whole or part (Transferred Rights and Obligations)
under the Finance Documents, the Existing Lender shall be released from
the Transferred Rights and Obligations ;24.5.2.2
    
    each of the Obligors and the New Lender shall assume the
Transferred Rights and Obligations towards one another;24.5.2.3
    
    the Facility Agent, the New Lender and the 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 OriginalLender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that extent
the Existing Lenders shall each be released from further obligations
to each other under the Finance Documents; and




---



##### 



24.5.2.4
    
    the New Lender shall become a party to the relevant Finance
Documents as a Lender.
 24.6
    
    Copy of Cession and Delegation Agreement to the BorrowerThe Facility Agent shall, as soon as reasonably practicable after it has executed a
Cession and Delegation Agreement, send to the Borrower a copy of that Cession and
Delegation Agreement and Accession Undertaking.
 24.7
    
    Disclosure of Information24.8
    
    Any Lender may disclose to any of its affiliates and any other person:
 24.8.1
    
    to (or through) whom that Lender cedes, assigns or transfers (or may potentially assign or
transfer) all or any of its rights and obligations under the Finance Documents;24.8.2
    
    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, the Finance Documents or any Obligor;
or24.8.3
    
    to whom, and to the extent that, information is required to be disclosed by
any applicable law or regulation,
 any information about an Obligor, the Group and the Finance Documents as that Lender
shall (acting reasonably) consider appropriate for the purpose of that actual or
potential cession, assignment, transfer or sub-participation if, in relation to clauses
24.8.1 and 24.8.2, the person to whom the information is to be given has entered into
a Confidentiality Undertaking in favour of the relevant Obligor(s) or Group
Company(ies).




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##### 



24.9
    
    No Change of ObligorNo Obligor shall cede, assign or transfer any of its rights or delegate any of its
obligations under any Finance Document.
 25.
    
    INTEREST ON ARREAR AMOUNTS AND INDEMNITY
 25.1
    
    Interest calculated at the Default Interest Rate shall accrue on the outstanding
balance of all Unpaid Sums, Such interest shall be calculated on a daily basis
from the due date of each such Unpaid Sum to (but excluding) date of payment
thereof, shall be compounded monthly in arrears and shall be paid by the
Borrower on demand.25.2
    
    The Borrower hereby indemnifies and holds the Finance Parties harmless
against any costs, claim, loss, expense (including legal fees on the scale as
between attorney and own client) or liability together with any VAT thereon,
which they may sustain or incur as a consequence of the occurrence of any
Default by the Borrower in the performance of any of the obligations expressed
to be assumed by it in this Agreement.
 26.
    
    FACILITY AGENT
 26.1
    
    Appointment of the Facility Agent
 26.1.1
    
    Each of the Lenders appoints the Facility Agent to act as its agent under
and in connection with the Finance Documents, and authorises the Facility Agent
to exercise the rights, powers, authorities and discretions specifically given
to the Facility Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities and discretions.




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##### 



26.1.2
    
    Notwithstanding anything to the contrary in this Agreement, the Finance Parties shall, act
through the Facility Agent as contemplated in this clause 26.26.1.3
    
    There shall be no change to the Facility Agent without the Borrowers written consent.
 26.2
    
    Duties of the Facility Agent
 26.2.1
    
    The Facility Agent shall promptly forward to a Party the original or a copy of any document
which is delivered to the Facility Agent for that Party by any other Party.26.2.2
    
    Except where a Finance Document specifically provides otherwise, the Facility Agent is not
obliged to review or check the adequacy, accuracy or completeness of any document it forwards
to another Party.26.2.3
    
    If the Facility 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 other Finance Parties.26.2.4
    
    If the Facility Agent is aware of the non-payment of any principal, interest or fee payable
to a Finance Party (other than the Facility Agent) under this Agreement it shall promptly
notify the other Finance Parties.26.2.5
    
    The Facility Agents duties under the Finance Documents are solely mechanical and
administrative in nature.26.2.6
    
    Nothing in this Agreement constitutes the Facility Agent as a fiduciary of
any other person.




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##### 



26.2.7
    
    The Facility Agent shall not be bound to account to any Lender for any
sum or the profit element of any sum received by it for its own account.
 26.3
    
    Business with the GroupThe Facility Agent may accept deposits from, lend money to and generally engage in any
kind of banking or other business with any member of the Group.26.4
    
    Rights and discretions
 26.4.1
    
    The Facility Agent may rely on:
 26.4.1.1
    
    any representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and26.4.1.2
    
    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.
 26.5
    
    The Facility Agent may assume (unless it has received notice to the contrary in
its capacity as agent for the Lenders) that:
 26.5.1
    
    no Default has occurred (unless it has actual knowledge of a Default);26.5.2
    
    any notice or request made by the Borrower is made on behalf of and with the consent and
knowledge of all the Obligors.
 26.6
    
    The Facility Agent may engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other experts.26.7
    
    The Facility Agent may act in relation to the Finance Documents through its personnel and
agents.




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##### 



26.8
    
    The Facility Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this Agreement.26.9
    
    Notwithstanding any other provision of any Finance Document to the contrary, the Facility
Agent is not obliged to do or omit to do anything if it would or might in its reasonable
opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty
of confidentiality.26.10
    
    Majority Lenders instructions
 26.10.1
    
    Unless a contrary indication appears in a Finance Document, the Facility
Agent shall:
 26.10.1.1
    
    exercise any right, power, authority or discretion vested in it as
Facility Agent in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders (as
defined in the Intercreditor Agreement), refrain from exercising any
right, power, authority or discretion vested in it as Facility Agent);
and26.10.1.2
    
    not be liable for any act (or omission) if it acts (or refrains from
taking any action) in accordance with an instruction of the Majority
Lenders;
 26.10.2
    
    Until the Intercreditor Agreement is entered into, all references to
Majority Lendersin clause 26.10.1 shall be deemed to be a reference to the
Original Lender.26.10.3
    
    Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Lenders.




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##### 



26.10.4
    
    The Facility 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.26.10.5
    
    In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders)
the Facility Agent may act (or refrain from taking action) as it considers to be in the best
interest of the Lenders.26.10.6
    
    The Facility 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. This clause 26.10.6 shall not apply to any legal or arbitration proceeding relating
to the perfection, preservation or protection of rights under the Transaction Security
Documents or enforcement of the Transaction Security or Transaction Security Documents.
 26.11
    
    Responsibility for documentationThe Facility Agent is not:
 26.11.1
    
    responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Facility Agent, or an
Obligor or any other person given in or in connection with any Finance Document or
the transactions contemplated in the Finance Documents; or26.11.2
    
    responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or the Transaction Security or any other
agreement, arrangement or document entered into, made or




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##### 



executed in anticipation of or in connection with any Finance Document or the
Transaction Security.
 26.12
    
    Exclusion of liability
 26.12.1
    
    The Facility Agent will not be liable for any action taken by it under or in connection
with any Finance Document or the Transaction Security, unless directly caused by its gross
negligence or willful misconduct.26.12.2
    
    Nothing in this Agreement shall oblige the Facility Agent to carry out any know your
customer or other checks required pursuant to the Financial Intelligence Centre Act, 2002 in
relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent
that it is solely responsible for any such checks it is required to carry out and that it may
not rely on any statement in relation to such cheeks made by the Facility Agent.
 27.
    
    CONFIDENTIALITY
 27.1
    
    Save with the prior written consent of the Borrower to the contrary, the Finance
Parties will keep confidential and will not disclose to any person:
 27.1.1
    
    the details of any Finance Document, the details of the negotiations
leading to any Finance Document, and the information handed over to
such Party during the course of negotiations and the Term, as well as the
details of all the transactions or Agreements contemplated in any Finance
Document; and27.1.2
    
    all information relating to the business or the operations and affairs of the Group,
 (together Confidential Information).




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##### 



27.2
    
    The Finance Parties agree to keep all Confidential Information confidential and
to disclose it only to its officers, directors, employees, consultants, shareholders,
professional advisers and any person to whom the Finance Parties wish to cede
any of its rights ofdelegate any of its obligations under any of the Finance
Documents who:
 27.2.1
    
    have a need to know (and then only to the extent that each such person has a need to know);27.2.2
    
    are aware that the Confidential Information should be kept confidential;27.2.3
    
    are aware of the disclosing Partys undertaking in relation to such information in terms of
this Agreement; and27.2.4
    
    have been directed by the disclosing Party to keep the Confidential Information confidential
and have undertaken to keep the Confidential Information confidential.
 27.3
    
    The Finance Parties confirm that all employees, officers and directors are contractually
bound to maintain confidentiality and shall procure that each consultant, shareholder and/or
professional advisor enters in a confidentiality undertaking in favour of the Borrower on
substantially the same terms and conditions as this clause 26.27.4
    
    The obligations of the Finance Parties in relation to the maintenance and non-disclosure of
Confidential Information in terms of this Agreement do not extend to information that:
 27.4.1
    
    is disclosed to the receiving Party in terms of this Agreement but at the
time of such disclosure such information is known to be in the lawful




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##### 



possession or control of that Party and not subject to an obligation of
confidentiality; or
 27.4.2
    
    is or becomes public knowledge, otherwise than pursuant to a breach of
this Agreement by the Finance Parties (or its offices, directors or employee)
who received such Confidential Information; or27.4.3
    
    is required by the provisions of any law, statute or regulation or during any
court proceedings, or by the rules or regulations of any recognised stock
exchange to be disclosed and subject to the provisions of clause 27.5, the
Party required to make the disclosure has taken all reasonable steps to
oppose or prevent the disclosure of and to limit, as far as reasonably
possible, the extent of such disclosure and has consulted with the other
Parties prior to making such disclosure.
 27.5
    
    The Finance Parties agree to notify the Borrower in the event of a disclosure of the
Confidential Information under clause 27.4.3, or upon a breach of this clause 27 coming to
the Finance Parties knowledge.27.6
    
    If so requested by the Borrower in writing, the Finance Parties shall use reasonable
endeavours to enforce their rights against any offices, director, employee and/or
representative who breaches clause 27.2.27.7
    
    The provisions of this clause 26 shall survive the termination of this Agreement, but shall
terminate 24 (twenty-four) months from the termination of this Agreement.27.8
    
    The Finance Parties 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




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##### 



insider dealing, and the Finance Parties shall not use any of the Confidential
Information for unlawful purposes.
 28.
    
    FEES AND EXPENSES
 28.1
    
    FeesThe Borrower shall pay to the Lenders on the Term Facility Advance Date the fees
contemplated in the Fee Letter, in the amounts agreed and on the dates stipulated
therein.28.2
    
    Exit Fees
 28.2.1
    
    Should the Borrower pre-pay any sum pursuant to clause 7 (Voluntary
Prepayment) within 24 (twenty four) months of Financial Close and such
prepayment is not funded by way of:
 28.2.1.1
    
    cash generated by the business operations of the Group; and/or28.2.1.2
    
    a Permitted Disposal; and/or28.2.1.3
    
    the raising of ordinary share capital,
 the Borrower shall pay to the Lenders an exit fee in an amount equal to 2% (two
percent) of the Facility Outstandings, plus VAT thereon on the date of such
prepayment pursuant to clause 7 (Prepayment).
 28.2.2
    
    Notwithstanding clause 28.2.1, should the Borrower elect to prepay the
Facility Outstandings within 24 (twenty four) months of Financial Close
following the occurrence of a Market Disruption Event, no exit fee will be
payable by the Borrower pursuant to clause 28.2.1, provided that if such




---



##### 



prepayment is financed by a financial institution on terms and conditions
(including interest rates) better than those offered by the Original Lender.
 28.3
    
    Expenses
 28.3.1
    
    The Borrower shall pay to, or at the direction of, the Facility Agent all reasonable
expenses (including legal expenses on the scale as between attorney and own client, printing
and out-of-pocket expenses) incurred by the Finance Parties in connection with the
negotiation, preparation and completion of the Finance Documents and any related documents,
including without limitation all fees and expenses payable to the Legal Adviser, within 30
(thirty) days of invoice.28.3.2
    
    The Borrower shall on demand pay to, or at the direction of, the Facility Agent all expenses
(including legal and out-of-pocket expenses on the attorney and own client scale), charges and
disbursements and fees of a like nature, including all taxes, incurred by the Finance Parties
in preserving, enforcing or defending, or attempting to preserve, enforce or defend, any of
their rights under the Finance Documents or any such related documents, save where the
Borrower successfully disputes that the Finance Parties are entitled to enforce any such
rights.
 28.4
    
    Stamp DutyThe Borrower shall pay all stamp, documentary and other similar duties and
taxes to which any of the Finance Documents or any such related documents may be
subject or give rise and indemnifies the Finance Parties from and against any losses
or liabilities which the Finance Parties may incur as a result of any delay or
omission by the Borrower to pay any such duties or taxes.




---



##### 



28.5
    
    Value Added TaxThe amounts stated in the Finance Documents to be payable by the Borrower are
exclusive of VAT and accordingly the Borrower shall pay on demand:
 28.5.1
    
    any VAT properly chargeable in respect of services to the Borrower as contemplated by any of
the Finance Documents (including any VAT chargeable by the Finance Parties under the Finance
Documents); and28.5.2
    
    any VAT chargeable in the case of goods or services supplied to, or other costs, fees and
expenses incurred by, the Finance Parties in connection with the Finance Documents and which
are to be met by the Borrower or
in respect of which the Borrower has agreed to indemnify the Finance Parties.
 29.
    
    NOTICES ANDDOMICILIA
 29.1
    
    Notices
 29.1.1
    
    Each Party chooses the addresses set out opposite its name below as its
addresses to which any written notice in connection with the Finance Documents
may be addressed.
 29.1.1.1
    
    Original Lender:
 th   SANDOWN




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##### 



29.1.1.2
    
    Facility Agent:
 th   SANDOWN
 
 29.1.1.3
    
    Obligors:
 RANDFONTEIN
 
 29.1.2
    
    Any notice or communication required or permitted to be given in terms of the Finance
Documents shall be valid and effective only if in writing but it shall be competent to give notice
by telefex transmitted to its telefax number set out opposite its name above.29.1.3
    
    Any Party may by written notice to the other Parties change its chosen physical addresses
and/or telefax number for the purposes of clause 29.1.1 to any other address(es) and/or
telefax number, provided that the change shall become effective on the 14th
(fourteenth) day after the receipt of the notice by the addressee.29.1.4
    
    Any notice given in terms of this Agreement shall:




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##### 



29.1.4.1
    
    if sent by a courier service be deemed to have been received by the addressee on the
7th (seventh) Business Day following the date of such sending;29.1.4.2
    
    if delivered by hand be deemed to have been received by the addressee on the date of
delivery;29.1.4.3
    
    if transmitted by facsimile be deemed to have been received by the addressee on the
1st (first) Business Day after the date of transmission,
 unless the contrary is proved.29.1.5
    
    Notwithstanding anything to the contrary herein contained, a written notice or communication
actually received by a Party shall be an adequate written notice or communication to it,
notwithstanding that it was not sent to or delivered at its chosen address and/or telefax number.
 29.2
    
    Domicilia
 29.2.1
    
    Each of the Parties chooses its physical address referred to in clause 29.1.1
as its domicilium citandi et executandiat which documents in legal proceedings
in connection with this Agreement may be served.29.2.2
    
    Any Party may by written notice to the other Party change its domiciliumfrom time to time
to another address, not being a post office box or a poste restante, in South Africa; provided that
any such change shall only be effective on the 14th (fourteenth) day after deemed receipt of the
notice by the other Party pursuant to clause 29.1.5.




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##### 



30.
    
    GOVERNING LAWThe entire provisions of this Agreement shall be governed by and construed in
accordance with the laws of South Africa.31.
    
    JURISDICTIONThe Parties hereby irrevocably and unconditionally consent to the non-exclusive jurisdiction
of the South Gauteng High Court (Johannesburg) in regard to all matters arising from this
Agreement.32.
    
    SEVERABILITYEach provision in this Agreement is severable from all others, notwithstanding the manner in
which they may be linked together or grouped grammatically, and if in terms of any judgment
or order, any provision, phrase, sentence, paragraph or clause is found to be defective or
unenforceable for any reason, the remaining provisions,
phrases, sentences, paragraphs and clauses shall nevertheless continue to be of full force.
In particular, and without limiting the generality of the aforegoing, the Parties hereto
acknowledge their intention to continue to be bound by this Agreement notwithstanding that
any provision may be found to be unenforceable or void or voidable, in which event the
provision concerned shall be severed from the other provisions, each of which shall continue
to be of full force.33.
    
    GENERAL
 33.1
    
    This document constitutes the sole record of the agreement between the Parties in regard to
the subject matter thereof.33.2
    
    No Party shall be bound by any express or implied term, representation, warranty, promise or
the like, not recorded herein.




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##### 



33.3
    
    No addition to, variation or consensual cancellation of this Agreement and no
extension of time, waiver or relaxation or suspension of any of the provisions or
terms of this Agreement shall be of any force or effect unless in writing and signed
by or on behalf of all the Parties.33.4
    
    No latitude, extension of time or other indulgence which may be given or
allowed by any Party to any other Party in respect of the performance of any
obligation hereunder or enforcement of any right arising from this Agreement and no
single or partial exercise of any right by any Party shall under any circumstances be
construed to be an implied consent by such Party or operate as a waiver or a novation
of, or otherwise affect any of that Partys rights in terms of or arising from this
Agreement or estop such Party from enforcing, at any time and without notice, strict
and punctual compliance with each and every provision or term hereof.33.5
    
    The Parties undertake at all times to do all such things, to perform all such acts and to
take all such steps and to procure the doing of all such things, the performance of all such
actions and the taking of all such steps as may be open to them and necessary for or
incidental to the putting into effect or maintenance of the terms, conditions and import of
this Agreement.33.6
    
    Save as is specifically provided in this Agreement, no Party shall be entitled to cede,
assign or delegate any of its rights or obligations under this Agreement without the prior
written consent of the other Parties affected by such transfer of rights or obligations, which
consent may not unsreasonably be withheld or delayed.
 34.
    
    COUNTERPARTSThis Agreement may be executed in any number of counterparts and by different Parties hereto
in separate counterparts, each of which when so executed shall be




---



##### 



deemed to be an original and all of which when taken together shall constitute one and the same
Agreement.
 THE NEXT PAGE IS THE SIGNATURE PAGE




---



##### 



SIGNED
 For and on behalf of NEDBANK LIMITED(SIGNATURE)Name:
    PA Van KerckhovenCapacity: AUTHORISED SIGNATORY
Who warrants his authority hereto (SIGNATURE)Name:
    MOR SudiCapacity: Authorized signatory
Who warrants his authority hereto




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##### 



SIGNED
 For and on behalf ofHARMONY GOLD MINING COMPANY
LIMITED(SIGNATURE)Name:Capacity: Financial Director
Who warrants his authority hereto




---



##### 



SIGNED
 For and on behalf ofAFRICAN RAINBOW MINERALS GOLD
LIMITED(SIGNATURE)Name:Capacity: Director
Who warrants his authority hereto




---



##### 



SIGNED
 For and on behalf ofEVANDER GOLD MINES LIMITED(SIGNATURE)Name:Capacity: Director
Who warrants his authority hereto




---



##### 



SIGNED
 For and on behalf ofARMGOLD/HARMONY JOINT
INVESTMENT COMPANY 
(PROPRIETARY) LIMITED(SIGNATURE)Name:Capacity: Director
Who warrants his authority hereto




---



##### 



SIGNED
 For and on behalf ofARMGOLD/HARMONY FREEGOLD 
JOINT VENTURE COMPANY
(PROPRIETARY) LIMITED(SIGNATURE)Name:Capacity: Director
Who warrants his authority hereto




---



##### 



SIGNED
 For and on behalf ofRANDFONTEIN ESTATES LIMITED(SIGNATURE)Name:Capacity: Director
Who warrants his authority hereto




---



##### 



SIGNED
 For and on behalf of AVGOLD LIMITED(SIGNATURE)Name:Capacity: Director
Who warrants his authority hereto




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##### 



SCHEDULE 1
 CONDITIONS
 Part 1: Advance Condition Documents
 1.
    
    The Borrower
 1.1
    
    A copy of a resolution of the board of directors of the Borrower:
 1.1.1
    
    approving the terms of, and the transactions contemplated by, the Finance
Documents to which it is a party and resolving to execute those Finance
Documents;1.1.2
    
    authorising a specified person or persons to execute the Finance Documents to which it is a
party on its behalf; and1.1.3
    
    authorising a specified person or persons, on its behalf, to sign and/or despatch all
documents and notices to be signed and/or despatched by it under or in connection with the
Finance Documents to which it is a party.
 1.2
    
    A specimen of the signature of each person authorised by the resolution referred to in
paragraph 1.1.1.3
    
    A certificate signed by an Authorised Signatory of the Borrower confirming that borrowing
the Available Facility would not cause any borrowing or similar limit in its Constitutional
Documents binding on it to be exceeded.1.4
    
    A certificate by an Authorised Signatory of the Borrower certifying that the copy of each
document referred to in paragraphs 1.1 to 1.3 (both inclusive) is correct, complete and in
full force and effect as at a date no earlier than the Signature Date, and certifying that
the Constitutional Documents of the Borrower delivered pursuant to the Senior Facility
Agreement (as defined in the Cession and Pledge in Security) remain in full force and effect
and have not subsequently been amended.1.5
    
    A certificate of an Authorised signatory of the Borrower stating that:




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##### 



1.5.1
    
    the representations and warranties given by the Borrower in clause 12
(Warranties and Representations)of this Agreement shall be correct in all
material respects at Financial Close; and1.5.2
    
    no Default shall have occurred at the date of Financial Close which is
continuing.
 2.
    
    The Guarantors
 2.1
    
    A copy of resolution of the board of directors of each Guarantor:
 2.1.1
    
    approving the terms of, and the transaction contemplated by, the Finance Documents to which
it is a party and resolving to execute those Finance Documents;2.1.2
    
    authorising a specified person or persons to execute the Finance Documents to which it is a
party on its behalf; and2.1.3
    
    authorising a specified person or persons, on its behalf, to sign and/or despatch all
documents and notices to be signed and/or despatched by it under or in connection with the
Finance Documents to which it is a party.
 2.2
    
    A specimen of the signature of each person authorised by the resolution referred to in
paragraph 2.1.2.3
    
    A certificate signed by an Authorised Signatory of each Guarantor confirming that
guaranteeing the Facility Outstandings would not cause any guaranteeing or similar limit in
its Constitutional Documents binding on it to be exceeded.2.4
    
    A certificate by an Authorised Signatory of each Guarantor certifying that the copy of each
document referred to in paragraphs 2.1 to 2.3 (both inclusive) is correct, complete and in
full force and effect as at a date no earlier than the Signature Date, and certifying that
the Constitutional Documents of that Guarantor delivered pursuant to the Senior Facility
Agreement (as defined in the Cession and Pledge in Security) remain in full force and effect
and have not subsequently been amended.2.5
    
    A certificate by an Authorised Signatory of each Guarantor stating that the representations
and warranties given by that Guarantor in clause 12 (Warranties and Representations)of this
Agreement shall be correct in all material respects at Financial Close.




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##### 



3.
    
    Legal opinions
 3.1
    
    A legal opinion from Cliffe Dekker Inc. addressed to the Facility Agent relating,
inter alia,to the due execution by each Obligor of the Finance Documents to which it
is a party, and the authority of each Obligor to enter into the Finance Documents to
which it is a party.3.2
    
    A legal opinion from the Legal Adviser addressed to the Facility Agent relating,
inter alia, to the validity, legality and enforceability of the Finance
Documents.
 4.
    
    Finance Documents
 4.1
    
    A duly executed original of each of the following:
 4.1.1
    
    this Agreement;4.1.2
    
    the Cession and Pledge in Security;4.1.3
    
    the Fee
Letter.
 4.2
    
    Each of the following in relation to shares pledged pursuant to the Security
Documents:
 4.2.1
    
    the original share certificates in respect of such shares;4.2.2
    
    an original share transfer form duly signed by the pledgor of such shares and blank as to
transferee; and4.2.3
    
    a resolution of the directors of the company, the shares of which are
pledged, acknowledging such pledge and agreeing to give effect to any transfer
of such shares pursuant to the terms of such pledge.
 4.3
    
    All notices required to be delivered and all acknowledgements required to be
received under the terms of any Security Document.
 5.
    
    Financial InformationA copy of the Original Financial Statements.




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##### 



Part 2: Advance Conditions
  1.
    
    no Default shall have occurred or be continuing;2.
    
    the warranties and representations made in clause 12 (Warranties and
Representations)of this Agreement shall be correct and will be correct in all material
respects immediately after the making of the Advance;3.
    
    in the reasonable opinion of the Facility Agent there has been no Material Adverse Change in
either the Borrower or any of the Obligors since the date of the Original Financial
Statements which could be expected to affect the ability of the Borrower to fulfil its
obligations in terms of the Finance Documents in an adverse manner;4.
    
    in the reasonable opinion of the Facility Agent there has been no Material Adverse Change
since the Signature Date5.
    
    the Original Lender has obtained all internal approvals necessary in order to conclude the
Finance Documents, including but not limited to the approvals of the Lenders board of
directors and credit committee; and6.
    
    the Facility Agent is satisfied that the Borrower has obtained all relevant regulatory
approvals (if any) in relation to the Finance Documents.




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##### 



SCHEDULE 2
 THE GUARANTORS
 1.
    
    African Rainbow Minerals Gold Limited;2.
    
    Evander Gold Mines Limited;3.
    
    ARMgold/Harmony Joint Investment Company (Proprietary) Limited;4.
    
    ARMgold/Harmony Freegold Joint Venture Company (Proprietary) Limited;5.
    
    Randfontein Estates Limited;6.
    
    Avgold Limited;




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##### 



SCHEDULE 3
 DISCLOSED ENCUMBRANCES
 1.
    
    R90 million in cash is pledged as collateral to Nedbank for an Environmental Guarantee of
R130,441,189 issued by Nedbank in favour of Rand Uranium.2.
    
    R21 625 964 of cash is pledged as collateral to Standard Bank for other environmental
guarantees issued.




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##### 



SCHEDULE 4
 DISCLOSED INDEBTEDNESS
 1.
    
    The AVRD Loan Agreement.2.
    
    Rand Uranium (Proprietary) Limited Guarantee. An environmental guarantee has been furnished
with the Department of Mining (DMR, formerly DME) on behalf of Rand Uranium, in the
amount of R130 441 189, Rand Uranium (Proprietary) Limited has since replaced the guarantee
but Harmony is still in the process of getting their guarantee back.3.
    
    Current environmental guarantees issued by Nedbank in the amount of R 285 622 920.4.
    
    Remainder of smaller guarantee as per attached list




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##### 



HARMONY GOLD MINING COMPANY LIMITED
 REGISTER OF GUARANTEES
June-09
 Environmental
    
    OtherTenement
    
    
    
    
    
    
    
    Amount
    
    Amount
    
    AmountCompany
    
    Project
    
    Number
    
    Beneficiary
    
    Issued
    
    Expires
    
    AUS
    
    R
    
    AUS
    
    Amount
    
    RHarmony Gold Mining Company
    
    
    
    85909929320
    
    AECI Limited
    
    30-Nov-00
    
    
    
    
    
    
    
    
    
    
    
    
    248,794.00Harmony Gold Mining Company
    
    
    
    810200502259
    
    Department of Mineral and Energy
    
    30-Nov-02
    
    
    
    
    
    
    40,000.00Harmony Gold Mining Company
    
    
    
    81020206926
    
    Department of Mineral and Energy
    
    25-Jun-02
    
    
    
    
    
    
    25,500,000.00Harmony Gold Mining Company
    
    
    
    81020206930
    
    Department of Mineral and Energy
    
    25-Jun-02
    
    
    
    
    
    
    3,700,000.00Harmony Gold Mining Company
    
    
    
    81020206931
    
    Department of Mineral and Energy
    
    25-Jun-02
    
    
    
    
    
    
    2,300,000.00Harmony Gold Mining Company
    
    
    
    NED-CON-4140(1)
    
    Department of Mineral and Energy
    
    17-Nov-09
    
    
    
    
    
    
    201,422,436.00Kalplats
    
    
    
    81020209977
    
    Department of Mineral and Energy
    
    28-Aug-02
    
    
    
    
    
    
    650,000.00Randfontein Estates Limited
    
    
    
    M326752
    
    Eskom
    
    28-Feb-98
    
    
    
    
    
    
    
    
    
    
    
    
    31,000.00Randfontein Estates Limited
    
    
    
    M326753
    
    Eskom
    
    02-Feb-98
    
    
    
    
    
    
    
    
    
    
    
    
    77,000.00Randfontein Estates Limited
    
    
    
    
    
    
    
    Telkom
    
    31-Oct-90
    
    
    
    
    
    
    
    
    
    
    
    
    136,332.00Randfontein Estates Limited
    
    
    
    
    
    
    
    Snyman Van Der Heever Heyns Incorporated
    
    20-Mar-97
    
    
    
    
    
    
    
    
    
    
    
    
    431,399.60Randfontein Estates Limited
    
    
    
    M333565
    
    Randfontein Municipality
    
    12-Jan-89
    
    
    
    
    
    
    
    
    
    
    
    
    16,129.00




---



##### 



Environmental
    
    OtherTenement
    
    
    
    
    
    
    
    Amount
    
    Amount
    
    AmountCompany
    
    Project
    
    Number
    
    Beneficiary
    
    Issued
    
    Expires
    
    AUS
    
    R
    
    AUS
    
    Amount
    
    RRandfontein Estates Limited
    
    
    
    M351158
    
    South African Transport Services
    
    02-May-84
    
    
    
    
    
    
    
    
    
    
    
    
    200,000.00Randfontein Estates Limited
    
    
    
    M354951
    
    City of Johannesburg
    
    07-Jul-89
    
    
    
    
    
    
    
    
    
    
    
    
    4,000.00Randfontein Estates Limited
    
    
    
    M359617
    
    Department of Mineral and Energy
    
    12-Apr-99
    
    
    
    
    
    
    20,000.00Randfontein Estates Limited (new)
    
    
    
    M432371/ M312525
    
    Department of Mineral and Energy
    
    23-Feb-04
    
    
    
    
    
    
    25,000.00Randfontein Estates Limited
    
    
    
    M490598
    
    Department of Mineral and Energy
    
    23-Apr-08
    
    
    
    
    
    
    22,417.00Randfontein Estates Limited
    
    
    
    29108209
    
    Department of Mineral and Energy
    
    08-Jul-08
    
    
    
    
    
    
    43,414,170.00Randfontein Estates Limited
    
    
    
    29108306
    
    Department of Mineral and Energy
    
    08-Jul-08
    
    
    
    
    
    
    87,027,019.00Randfontein Estates Limited
    
    
    
    NED-CON-4140(2)
    
    Department of Mineral and Energy
    
    17-Nov-09
    
    
    
    
    
    
    11,687,387.00West Rand Consolidated Mines
    
    
    
    M300820
    
    Department of Mineral and Energy
    
    24-Oct-96
    
    
    
    
    
    
    10,000.00West Rand Consolidated Mines
    
    
    
    M379315
    
    Department of Mineral and Energy
    
    05-May-00
    
    
    
    
    
    
    30,000.00West Rand Consolidated Mines
    
    
    
    M312525
    
    Department of Mineral and Energy
    
    28-Jul-97
    
    
    
    
    
    
    25,000.00West Rand Consolidated Mines
    
    
    
    M312457
    
    Department of Mineral and Energy
    
    28-Jul-97
    
    
    
    
    
    
    10,000.00West Rand Consolidated Mines
    
    
    
    
    
    
    
    Eskom
    
    01-Oct-98
    
    
    
    
    
    
    
    
    
    
    
    
    700,000.00Winkelhaak Mines Limited
    
    
    
    S13615 / MS GRV
4232957
    
    Council of Nuclear Safety
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    250,000.00Winkelhaak Mines Limited
    
    
    
    S13616 / MS GRV
423987
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    246,500.00Winkelhaak Mines Limited
    
    
    
    S13617 / MS GRV
4232983
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    268,900.00Winkelhaak Mines Limited
    
    
    
    S13618 / MS GRV
4233989
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    64,000.00Winkelhaak Mines Limited
    
    
    
    S13619 / MS GRV
4233002
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    1,117,450.00Winkelhaak Mines Limited
    
    
    
    S13620 / MS GRV
4233009
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    301,050.00Winkelhaak Mines Limited
    
    
    
    S13621 / MS GRV
4233013
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    1,346,600.00




---



##### 



Environmental
    
    OtherTenement
    
    
    
    
    
    
    
    Amount
    
    Amount
    
    AmountCompany
    
    Project
    
    Number
    
    Beneficiary
    
    Issued
    
    Expires
    
    AUS
    
    R
    
    AUS
    
    Amount
    
    RWinkelhaak Mines Limited
    
    
    
    S13622 / MS GRV
4233018
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    868,850.00Winkelhaak Mines Limited
    
    
    
    S13623 / MS GRV
4233021
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    272,000.00Winkelhaak Mines Limited
    
    
    
    S13624 / MS GRV
4233048
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    45,500.00Winkelhaak Mines Limited*
    
    
    
    208617 / S15065
    
    Eskom
    
    25-Apr-02
    
    
    
    
    
    
    
    
    
    
    
    
    370,600.00Winkelhaak Mines Limited*
    
    
    
    208618 / S15064
    
    Eskom
    
    25-Apr-02
    
    
    
    
    
    
    
    
    
    
    
    
    1,269,818.00Leslie Golg Mines Limited
    
    
    
    S13625 / MS GRV
4233050
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    624,400.00Leslie Golg Mines Limited
    
    
    
    S13626 / MS GRV
4233053
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    334,100.00Leslie Golg Mines Limited
    
    
    
    S13627 / MS GRV
4233055
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    89,800.00Leslie Golg Mines Limited
    
    
    
    S13628 / MS GRV
4233067
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    371,460.00Leslie Golg Mines Limited
    
    
    
    S13629 / MS GRV
4233070
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    2,019,750.00Leslie Golg Mines Limited
    
    
    
    S13630 / MS GRV
4233074
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    1,750,000.00Leslie Golg Mines Limited
    
    
    
    S13631 / MS GRV
4233080
    
    Eskom
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    558,700.00Leslie Golg Mines Limited*
    
    
    
    75B0296
    
    Council of Nuclear Safety
    
    14-Nov-95
    
    
    
    
    
    
    
    
    
    
    
    
    250,000.00Evander Gold Mining Company
    
    
    
    S13632 / MS GRV
4233083
    
    Els Chester & Louw
    
    10-Jul-03
    
    
    
    
    
    
    
    
    
    
    
    
    170,894.09Evander Gold Mining Company
    
    
    
    20650708534
    
    Department of Minerals & Energy
    
    20-Nov-07
    
    
    
    
    
    
    120,000.00Evander Gold Mining Company
    
    
    
    NED-CON-4140(3)
    
    Department of Minerals & Energy
    
    17-Nov-09
    
    
    
    
    
    
    27,194,482.00Kalahari Goldridge Mining Company Ltd
    
    
    
    M186532
    
    Department of Minerals & Energy
    
    06-Dec-07
    
    
    
    
    
    
    4,182,379.00Kalahari Goldridge Mining Company Ltd
    
    
    
    M489674
    
    Department of Minerals & Energy
    
    25-Mar-08
    
    
    
    
    
    
    55,000.00Kalahari Goldridge Mining Company Ltd
    
    
    
    M489663
    
    Department of Minerals & Energy
    
    26-Mar-08
    
    
    
    
    
    
    100,505.00Kalahari Goldridge Mining Company Ltd
    
    
    
    8920806641
    
    Department of Minerals & Energy
    
    04-Feb-08
    
    
    
    
    
    
    8,617,864.66




---



##### 



Environmental
    
    OtherTenement
    
    
    
    
    
    
    
    Amount
    
    Amount
    
    AmountCompany
    
    Project
    
    Number
    
    Beneficiary
    
    Issued
    
    Expires
    
    AUS
    
    R
    
    AUS
    
    Amount
    
    RKalahari Goldridge Mining Company Ltd
    
    
    
    NED-CON-4140(4)
    
    Department of Minerals & Energy
    
    17-Nov-09
    
    
    
    
    
    
    10,123,630.00Avgold Ltd
    
    
    
    
    
    
    
    Barberton Municipality
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    3,570.00Avgold Ltd
    
    
    
    
    
    
    
    Barberton Municipality
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    3,380.00Avgold Ltd
    
    
    
    
    
    
    
    Barberton Municipality
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    2,780.00Avgold Ltd
    
    
    
    
    
    
    
    ESKOM
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    629,650.00Avgold Ltd
    
    
    
    
    
    
    
    ESKOM
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    2,450,000.00Avgold Ltd
    
    
    
    
    
    
    
    ESKOM
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    1,220,000.00Avgold Ltd
    
    
    
    
    
    
    
    ESKOM
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    610,000.00Avgold Ltd
    
    
    
    
    
    
    
    ESKOM
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    19,000.00Avgold Ltd
    
    
    
    
    
    
    
    ESKOM
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    4,050.00Avgold Ltd
    
    
    
    
    
    
    
    ESKOM
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    2,000,000.00Avgold Ltd
    
    
    
    NED-CON-4140(7)
    
    Department of Minerals & Energy
    
    17-Nov-09
    
    
    
    
    
    
    7,944,938.00African Rainbow Minerals Golg Ltd
    
    
    
    M486531
    
    Department of Minerals & Energy
    
    07-Dec-07
    
    
    
    
    
    
    17,743,585.00African Rainbow Minerals Golg Ltd
    
    
    
    93045812784
    
    Department of Minerals & Energy
    
    
    
    
    
    
    
    
    2,600,000.00African Rainbow Minerals Golg Ltd
    
    
    
    80559924348
    
    ESKOM
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    3,085,043.00African Rainbow Minerals Golg Ltd
    
    
    
    NED-CON-4140(6)
    
    Department of Minerals & Energy
    
    17-Nov-09
    
    
    
    
    
    
    13,883,259.00Armgold/Harmony Freegold Joint Venture Co [Pty] Ltd
    
    Free State prospecting rights
    
    20650707075
    
    Department of Minerals & Energy
    
    27-Oct-07
    
    
    
    
    
    
    80,000.00Armgold/Harmony Freegold Joint Venture Co [Pty] Ltd
    
    Free State prospecting rights
    
    8920903737
    
    Department of Minerals & Energy
    
    01-Jul-09
    
    
    
    
    
    
    20,000.00Armgold/Harmony Freegold Joint Venture Co [Pty] Ltd
    
    
    
    NED-CON-4140(5)
    
    Department of Minerals & Energy
    
    17-Nov-09
    
    
    
    
    
    
    13,366,788.00




---



##### 



Environmental
    
    OtherTenement
    
    
    
    
    
    
    
    Amount
    
    Amount
    
    AmountCompany
    
    Project
    
    Number
    
    Beneficiary
    
    Issued
    
    Expires
    
    AUS
    
    R
    
    AUS
    
    Amount
    
    RMusuku Beneficiation Systems (Pty) Ltd
    
    
    
    81020409661
    
    SARS  CUSTOMS AND EXCISE
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    600,000.00Free Gold  St Helena (new)
    
    
    
    81020211331
    
    Department of Minerals & Energy
    
    
    
    
    
    
    
    
    35,000,000.00Free Gold  St Helena (new)
    
    
    
    81020211331
    
    Department of Minerals & Energy
    
    
    
    
    
    
    
    
    13,400,000.00
    
    
    526,315,869.66
    
    
    
    
    
    25,062,499.69




---



##### 



SCHEDULE 5
 DISCLOSED LOANS
 1.
    
    Rand Uranium (Proprietary) Limited shareholder loan. Balance of R62 941 146 at the end of
September 2009. The loan bears interest at JIBAR plus 250 basis points and is repayable within
7 years.2.
    
    Pamodzi Gold Limited (in liquidation) Loan of R115 724 554. Fully written off in the
Borrowers accounts.3.
    
    Intergroup loan from the Borrower to Harmony Gold Australia of R480 528 619 as at 30 November
2009.




---



##### 



SCHEDULE 6
 DISCLOSED POTENTIAL ENVIRONMENTAL CLAIM
 1.
    
    The Borrower has been advised that the Department of Water Affairs and Forestry (DWAF) may
issue a directive in terms of the National Water Act, 1998 to entities who are conducting or
who have conducted mining activities in the Wonderfontein Catchment area, which entities may
include the Borrower and/or one or more Group Companies, relating to the alleged contamination
of Wonderfontein Spruit and the rehabilitation and remediation thereof.2.
    
    Dispute between the Group and Mr Pitas in the Free State. Mr Pitas has lodged an application
to revoke one of the Groups mining rights in the Free State and has claimed R45m damages,
arising out of an alleged failure by the Group to comply with its rehabilitation obligations.3.
    
    A group of farmers have indicated that they may institute a claim against the Group arising
out of alleged pollution in the Dankbaarpan area resulting in the farmers allegedly not being
able to use surface or groundwater for irrigation.




---



##### 



SCHEDULE 7
 FORM OF COMPLIANCE CERTIFICATE
 To:
    
    Nedbank Limited (as Lender)
135 Rivonia Road
Sandown
2196
Attention: []
   FACILITIES AGREEMENT ENTERED INTO BETWEEN inter alia NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK
CAPITAL division), HARMONY GOLD MINING COMPANY LIMITED (BORROWER) AND VARIOUS SUBSIDIARIES OF THE
BORROWER DATED [ ] 2009 (the Facility Agreement)
 1.
    
    We refer to the Facility Agreement. This is a Compliance Certificate, and terms used in this
Compliance Certificate have the same meaning as in the Facility Agreement.2.
    
    This Compliance Certificate is in respect of the Ratio Test Period ended [      ] (being the Ratio
Test Date), pursuant to clause 17 (Financial Covenants) of the CTA.3.
    
    We confirm that in respect of the Ratio Test Date:
 ComplianceAs Calculated
    
    
    Covenant
    
    
    (Yes/No)Interest Cover RatioCurrent RatioCash FlowsMarket Capitalisation
to Facilities
Outstanding




---



##### 



4.
    
    [We confirm that no Default is continuing.]*
 HARMONY GOLD MINING COMPANY LIMITED
 Name:  Capacity:
 
 *
    
    If this statement cannot be made, the Certificate should identify any Default that is continuing
and the steps, if any, being taken to remedy it.




---



##### 



SCHEDULE 8
 LAST TAX RETURN YEAR
 Company
    
    Latest submitted returns1 Harmony Gold Mining Company Limited
    
    
    20052 ARMgold
    
    
    20063 Evander
    
    
    20084 ARMgold / Harmony Joint Investment Company
    
    
    20095 ARMgold / Harmony Freegold Joint Venture Company
    
    
    20056 Avgold Limited
    
    
    20057 Randfontien Estate Limited
    
    
    2002




---



##### 



SCHEDULE 9
 FORM OF UTILISATION REQUEST
 (To appear on the letterhead of a Borrower)
 To:
    
    Nedbank Limited (as Lender)
135 Rivonia Road
Sandown
2196
  [insert]
  FACILITIES AGREEMENT DATED [INSERT DATE] : UTILISATION REQUEST
 1.
    
    We refer to the Facilities Agreement dated [insert] entered into betweeninteralia us and,
Nedbank Limited (theFacility Agreement).2.
    
    This is a Utilisation Request.3.
    
    The terms defined is the Facility Agreement shall have the same meanings where used in this
Utilisation Request.4.
    
    This Utilisation Request is irrevocable.5.
    
    We hereby give you notice that, pursuant to the Facility Agreement and on [insert date], we
wish to borrow a Loan in  an amount of R[insert] ([insert] Rand) upon the terms and subject to
the conditions contained therein.




---



##### 



6.
    
    We elect an Interest Period of [insert] months.7.
    
    We confirm that as of the date hereof :
 7.1
    
    the Repeating Representations set out in the Facility Agreement are true and correct in all
material respects; and7.2
    
    no Default has occurred and/or is continuing.
 8.
    
    The proceeds of the Loan must be credited to the following bank account:
 8.1
    
    Bank: [insert];8.2
    
    Branch: [insert];8.3
    
    Account Name: [Insert];8.4
    
    Account Number; [Insert];8.5
    
    Branch Code; [Insert].
  For and on behalf of
HARMONY GOLD MINING COMPANY LIMITED
 Name:  Capacity:




---



##### 



SCHEDULE 10
 TERM FACILITY REPAYMENT SCHEDULE
 Date
    
    Capital payment30 June 2010
    
    
    90,000,00031 December 2010
    
    
    90,000,00030 June 2011
    
    
    90,000,00031 December 2011
    
    
    90,000,00030 June 2012
    
    
    90,000,00031 December 2012
    
    
    90,000,00030 June 2013
    
    
    90,000,00031 December 2013
    
    
    90,000,00030 June 2014
    
    
    90,000,00031 December 2014
    
    
    90,000,000




---



##### 



SCHEDULE 11
 FORM OF LENDERS ACCESSION UNDERTAKING
 ACCESSION UNDERTAKING
 To:
    
    Nedbank Limited
(as Facility Agent)
135 Rivonia Road
Sandown
2196Attention:[]From:
    
    [Insert full name of New Lender] (the New Lender)
 [Date]
  FACILITIES AGREEMENT ENTERED INTO BETWEEN inter alia NEDBANK LIMITED, HARMONY GOLD MINING COMPANY
LIMITED (BORROWER) AND VARIOUS SUBSIDIARIES OF THE BORROWER DATED [ ] 2009 (the Facility
Agreement
 1.
    
    We refer to the Facility Agreement.2.
    
    This is an Accession Undertaking, and terms used in this Accession Undertaking have the same
meaning as in the Facility Agreement.3.
    
    This Accession Undertaking is delivered to Nedbank as the Facility Agent pursuant to clause
24 (Change of Party)of the Facility Agreement.4.
    
    In consideration of the New Lender being accepted as a Lender for the purposes of the
Facility Agreement, and the other relevant Finance Documents (if any) pursuant to the
Facility Agreement, the New Lender hereby confirms that, as from the date of acceptance of
this Accession Undertaking by the Existing Lenders, It:
 4.1
    
    intends to be Party to the Facility Agreement and the other relevant Finance Documents as a
Lender;4.2
    
    undertakes to perform all the obligations expressed in the Facility Agreement,




---



##### 



and the other relevant Finance Documents (if any) to be assumed by a Leader to the
extent that such obligations have been delegated to the New Lender as described in the
Cession and Delegation Agreement relating to this Accession Undertaking;4.3
    
    agrees that it shall be bound by all the provisions of the Facility Agreement and the other
relevant Finance Documents (if any) as if it had been an original party to those Finance
Documents as a Lender; and4.4
    
    accepts the benefits conferred upon the Lenders under the Finance Documents, including in
particular the Security Documents.
 5.
    
    This Accession Undertaking 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 Accession Undertaking.6.
    
    This Accession Undertaking shall be governed by and construed in accordance with
the laws of South Africa.
 For and on behalf of
 Name:  Capacity:  Who warrants his authority hereto
 For and on behalf of
 Name:  Capacity:  Who warrants his authority hereto




---



##### 



SCHEDULE 12
 AGREED FORM OF CESSION AND DELEGATION AGREEMENT
 THIS SALE, CESSION AND DELEGATION AGREEMENT
is dated ______________ and made BETWEEN:
 (1)
    
    [] (fee Existing Lender); and(2)
    
    [] (the New Lender); and(3)
    
    NEDBANK LIMITED (acting through its Nedbank Capital division) (as Facility
Agent).
  1.
    
    INTERPRETATION1.1
    
    In this Agreement, unless inconsistent with the context, all capitalised terms
shall have the respective meanings assigned to such terms below, all capitalised terms
for which no meanings have been assigned herein shall have the meanings assigned to
them in the Facilities Agreement, and cognate terms shall have corresponding meanings;
 1.1.1
    
    this Agreement means this Agreement together with all schedules and appendices hereto and
any written and signed amendments to the aforementioned;1.1.2
    
    the Borrower means Harmony Gold Mining Company Limited (Registration No. 1950/038232/06),
a public company, incorporated under the laws of South Africa;1.1.3
    
    the Effective Date means, notwithstanding the Signature Date [];1.1.4
    
    Effective Date Facility Outstandings means the aggregate principal amount owing by the
Borrower to the Existing Lender under the Facilities Agreement as at the Effective Date which
has not been prepaid or repaid irrevocably, unconditionally and in full;1.1.5
    
    Existing Lender means [],
(Registration No. [INSERT]), a [public] company incorporated
under the laws of South Africa;




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Page 146. 1.1.6
    
    Facilities Agreement means the written agreement titled the Facilities
Agreement, entered into between Nedbank, the Borrower and the
Guarantors as listed in Schedule 2 thereto on or about [] 2009;1.1.7
    
    Facility Agent means Nedbank;1.1.8
    
    nacm means nominal annual compounded monthly in arrear;1.1.9
    
    Nedbank means Nedbank Limited (acting through its Nedbank Capital
division) (Registration No. 1951/000009/06), a public company
incorporated under the laws of South Africa, which is registered as a bank
in terms of the Banks Act, 1990;1.1.10
    
    the New Lender means [] (Registration No. []),
a [public] company incorporated under the laws of South Africa;1.1.11
    
    Parties means the Existing Lender and the New Lender and Party
means, as the context requires, either of them;1.1.12
    
    the Prime Rate means the nacm prime overdraft rate of interest from
time to time publicly quoted as such by Nedbank, calculated on a 365 (three
hundred and sixty five) day factor, irrespective of whether or not the year
is a leap year, as certified by any manager of Nedbank, whose appointment
as such it shall not be necessary to prove, which certificate shall serve
as prima facieproof of its contents;1.1.13
    
    the Signature Date means the date of last signature of this Agreement;1.1.14
    
    the Sold Rights and Obligations means that amount of the Existing
Lenders right, title and interest:
 1.1.14.1
    
    under the Finance Documents insofar as they relate to the Facility;1.1.14.2
    
    to the Effective Date Facility Outstandings;
 as stipulated in Annexure A as being sold by the Existing Lender to the
New Lender;1.1.15
    
    South Africa means the Republic of South Africa;
 1.1.15.1
    
    any reference to the singular includes the plural and vice versa;1.1.15.2
    
    any reference to natural persons includes legal persons and vice versa;




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Page 147. 1.1.15.3
    
    any reference to a gender includes the other genders;1.1.15.4
    
    any reference to an enactment is to that enactment as at the Signature
Date and as amended or re-enacted from time to time.
 1.2
    
    If any definition contains a substantive provision conferring rights or imposing
obligations on any party, effect shall be given to it as if it were a substantive
provision in the body of this Agreement, notwithstanding that it is only in the
definition clause.1.3
    
    Words and expressions defined in any sub-clause shall, for the purposes of the
clause of which that sub-clause forms part, bear the meaning assigned to such words
and expressions in that sub-clause.1.4
    
    The headnotes to the clauses of this Agreement have been inserted for reference
purposes only and shall in no way govern or affect the interpretation hereof.1.5
    
    When any number of days is prescribed, same shall be reckoned inclusively of
the first and exclusively of the last day.1.6
    
    Reference to day/s shall be construed as any day, irrespective of whether or not
it is a Business Day.1.7
    
    Reference to month/s means a period starting on one day in a calendar month
and ending on the day preceding the numerically corresponding day in the next
calendar month, except that:
 1.7.1
    
    if the day preceding such numerically corresponding day is not a Business
Day, that period shall end on the next Business Day in that next calendar month
if there is one, or if there is not, on the immediately preceding Business Day;
and1.7.2
    
    if there is no numerically corresponding day in the next calendar month,
that period shall end on the last Business Day in such next calendar month;
 1.8
    
    Reference to calendar month/s shall be construed as one or more of the twelve named periods
into which a year is divided in terms of the Gregorian calendar.1.9
    
    Where any act is to be performed on a day which is not a Business Day, such act shall be
performed on the Business Day immediately preceding such day.1.10
    
    Where figures are referred to in numerals and in words, if there is any conflict
between the two, the words shall prevail.




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Page 148. 2.
    
    SALE AND PURCHASEThe Existing Lender hereby sells to the New Lender, which hereby
purchases from the Existing
Lender, with effect from the Effective Date, the Sold Rights and Obligations.3.
    
    PURCHASE PRICE
 3.1
    
    As consideration for the sale of the Sold Rights and Obligations, the New
Lender shall pay to the Existing Lender the amount of R[insert] ([insert]) (the
purchase price) which shall be paid by the New Lender to the Existing Lender
on the Effective Date in immediately available funds, free of any deductions,
exchange or other charges by electronic transfer into the following bank
account:Account name:Bank:Branch:Code:Account Number:3.2
    
    The purchase price shall, if it is not paid on the Effective Date, bear interest from the
Effective Date to the date of payment at the Prime Rate.3.3
    
    The Parties record that the sale of the Sold Rights and Obligations pursuant to this
Agreement is the transfer of a debt security (as defined in Section 2(2) of the VAT Act) and
is accordingly exempt from VAT under Section 12(a) of the VAT Act.3.4
    
    Notwithstanding the provisions of clause 3.3, if the sale of the Sold Rights and Obligations
is subject to VAT, the purchase price shall be deemed to be exclusive of VAT, which shall be
payable by the New Lender to the Existing Lender against delivery by the Existing Lender to
the New Lender of a valid tax invoice in respect thereof.
 4.
    
    DELIVERY
 4.1
    
    Against payment by the New Lender to the Existing Lender of the purchase
price as provided for in clause 3, and with effect on the Effective Date, the Existing
Lender hereby:
 4.1.1
    
    cedes, assigns and transfers the Sold Rights and Obligations to the New
Lender; and




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Page 149. 4.1.2
    
    delegates to the New Lender all of the Existing Lenders obligations under
the Finance Documents to the extent related to the Sold Rights and Obligations,
 without recourse to the Existing Lender.4.2
    
    The New Lender hereby accepts:
 4.2.1
    
    the cession, assignment and transfer of the Sold Rights and Obligations to
the New Lender; and4.2.2
    
    the delegation to the New Lender of the Existing Lenders obligations
under the Finance Documents to the extent related to the Sold Rights and
Obligations, which obligations the New Lender hereby assumes;
 without recourse to the Existing Lender.
 4.3
    
    The New Lender hereby irrevocably binds itself in favour of the parties to each
of the Finance Documents to the terms of the Finance Documents, as if it had been a
party thereto and any Finance Party shall be entitled to accept the benefit of this
clause 4.3 and any other benefits conferred on it in terms of this Agreement at any
time.4.4
    
    It is recorded that the Obligors have, in terms of clause 24.2 (Change of Party)
of the Facilities Agreement, consented to the cession and delegation herein recorded.
 5.
    
    DELIVERY OF NOTICEThe Facility Agent shall, within 5 (five) Business Days from the Effective Date, despatch
written notices to the Obligors and to any Lender which is not a party hereto of the sale,
cession, assignment and transfer of the Sold Rights and Obligations pursuant to this
Agreement.6.
    
    REPRESENTATIONS AND WARRANTIES
 6.1
    
    Each party represents and warrants to the other party on the Signature Date the
Effective Date, and on each day between those dates that:
 6.1.1
    
    it is a company duly organised and existing under the laws of the jurisdiction in which it
is incorporated;6.1.2
    
    it has the power to enter into and to exercise its rights and perform its obligations under
this Agreement;




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Page 150. 6.1.3
    
    all corporate and other actions required to authorise the execution of this Agreement by it
and the performance by it of its obligations under this Agreement have been duly taken;6.1.4
    
    the obligations expressed to be assumed by it in this Agreement are legal and valid
obligations binding on it in accordance with the respective terms thereof;6.1.5
    
    the execution of this Agreement and the exercise by it of its rights and the performance of
its obligations under this Agreement do not and will not conflict with:
 6.1.5.1
    
    any agreement to which it is a party or which is binding on it or any of its assets;6.1.5.2
    
    its constitutive documents and rules and regulations; or6.1.5.3
    
    any applicable law, regulation or official or judicial orders.
 6.2
    
    The Existing Lender hereby represents and warrants to the New Lender on the
Signature Date, the Effective Date and on each day between those dates that:
 6.2.1
    
    to the best of its knowledge and belief, the Finance Documents have not
been terminated or cancelled and are of full force and effect; it has the
right to sell and cede, assign and transfer the Sold Rights and Obligations
to the New Lender;6.2.2
    
    the Sold Rights and Obligations are capable of being sold and ceded,
assigned and transferred to the New Lender free of any encumbrances;6.2.3
    
    prior to the cession, assignment and transfer of the Sold Rights and
Obligations recorded in this Agreement, it has not ceded, assigned or
transferred any of the Sold Rights and Obligations to any person;6.2.4
    
    no Obligor has been released by it from its obligations under the Finance Documents,
 provided that, save as set out in this clause 6.2, the Existing Lender gives no
representations or warranties express or implied in connection with the sale of the
Sold Rights and Obligations pursuant to this Agreement.




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Page 151. 7.
    
    LIMITATIONS
 7.1
    
    Unless expressly agreed to the contrary in this Agreement, the Existing Lender
makes no representation or warranty and assumes no responsibility to the New
Lender for:
 7.1.1
    
    the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents
or any other documents;7.1.2
    
    the financial condition or creditworthiness of any Obligor;7.1.3
    
    the performance and observance by any Obligor of its obligations under
the Finance Documents or any other documents;7.1.4
    
    the accuracy of any representations, warranties or statements (whether
written or oral) by any Obligor made in or in connection with any of the Finance Documents or any other document.
 and any representations or warranties implied by law are excluded.
 7.2
    
    The New Lender confirms to the Existing Lender that it:
 7.2.1
    
    has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of the Obligors in
connection with its participation in the Finance Documents and has not relied
on any information provided to it by the Existing Lender in connection with any
of the Finance Documents or on any representation or warranty made by the
Existing Lender other than those set out in clause 6; and7.2.2
    
    will continue to make its own independent appraisal of the
creditworthiness of the Obligors whilst any amount is or may be outstanding
under the Finance Documents.
 7.3
    
    Nothing in any of the Finance Documents or this Agreement obliges the
Existing Lender to:
 7.3.1
    
    accept a re-transfer from the New Lender of any of the rights ceded, assigned and
transferred and obligations delegated under this Agreement;7.3.2
    
    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;
or




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Page 152. 
 7.3.3
    
    provide the New Lender with any credit or other information concerning
the affairs, financial condition or business of any Obligor or any other third
party.
 8.
    
    NOTICES AND DOMICILIA
 8.1
    
    The parties choose domicilia cilandi et executandifor all purposes under this
Agreement, whether in respect of court process, notices or other documents or
communications of whatsoever nature, the following, addresses:
 8.1.1
    
    the Existing Lender at [                                 ];
 8.1.1.2
    
    the New Lender at [                                 ].
 8.2
    
    A party may change that partys address for this purpose to another physical
address in South Africa, by notice in writing.8.3
    
    All notices shall be in writing and be deemed (unless the contrary is proved) to
have been duly given 
 8.3.1
    
    on delivery, if delivered to the addressees physical address;on the
Business Day after dispatch, if sent to the partys then telefax number:8.3.2
    
    1 (one) Business Day after delivery, if delivered by a recognised
international courier service to the addressees physical address.
 8.4
    
    Notwithstanding anything to the contrary contained in this Agreement, a written
notice or communication actually received by one of the parties from another
including by way of telex or facsimile transmission shall be adequate written
notice or communication to such party.
 9.
    
    GENERAL
 9.1
    
    No variation of this Agreement shall be of any force and effect unless reduced to writing
and signed by the parties or their authorised Facility Agents.9.2
    
    No failure or delay on the part of a party to exercise any power, right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by a
party of any power, right or remedy preclude other or further exercise thereof or the
exercise of any power, right or remedy. The remedies provided in this Agreement are
cumulative and are not exclusive of any remedies provided by law.




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Page 153. 9.3
    
    This Agreement, together with all the annexures and schedules thereto, constitutes the whole
agreement between the parties and there are no warranties, promises, representations or
inducements, whatsoever, which have been made by or on behalf of any party regarding the
subject matter hereof, unless such warranties, promises, representations are contained herein.9.4
    
    All legal costs, charges and disbursements incurred by any party in successfully enforcing
or defending any provisions of this Agreement or any claim or action thereunder, shall be
payable by the unsuccessful party on the scale as between attorney and his own client.9.5
    
    Each party shall bear its own costs and expenses in connection with the negotiation and
drafting of this Agreement.
 10.
    
    GOVERNING LAWThis Agreement and all matters or disputes incidental thereto or arising therefrom shall in
all respects be governed by and construed in accordance with the laws of South Africa,
including all matters of construction, validity and performance.11.
    
    COUNTERPARTSIf any of the parties or the signatories of any of the parties signs this Agreement in
counterparts, the counterparts, taken together, shall constitute one agreement.12.
    
    SEVERABILITYEach phrase, sentence, paragraph and clause in this Agreement is severable, the one from the
other, notwithstanding the manner in which they may be linked together or grouped
grammatically and if in terms of any judgment or order any phrase, sentence, paragraph or
clause is found to be defective or unenforceable for any reason the remaining phrases,
sentences, paragraphs and clauses as the case may be, shall nevertheless be and continue to
be of full force and effect.13.
    
    COSTS
 13.1
    
    If, in any legal or arbitration proceedings relating to the enforcement by either
party of its rights in terms of this Agreement, a court or arbitrator awards costs to
any party, such costs shall be determined and recoverable on the scale as between an
attorney and own client and shall include collection charges, the costs incurred by
such party in endeavouring to enforce such rights prior to the institution of legal or
arbitration proceedings and the costs incurred in connection with the satisfaction or
enforcement of any judgment or arbitration award in favour of such party in relation
to its rights in terms of or arising out of this Agreement.




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Page 154. 13.2
    
    Each of the parties shall bear its own costs of and incidental to the negotiation,
preparation and signature of this Agreement.
 SIGNED
 Name:Capacity:
Who warrants his authority hereto




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##### 



SIGNED
 Name:Capacity:
Who warrants his authority hereto




---



##### 



ANNEXURE A
 ANNEXURE A TO CESSION AND DELEGATION AGREEMENT
 
 
 




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##### 



Page 157. SCHEDULE 13
 FORM OF CONFIDENTIALITY UNDERTAKING
 To:
    
    [Insert name of Potential New Lender.]Re:
    
    The Agreement:Borrower:Date:Amount:Agent:
  FACILITY AGREEMENT (the FACILITY AGREEMENT) ENTERED INTO BETWEEN inter aliaNEDBANK
CAPITAL, HARMONY GOLD MINING COMPANY LIMITED (the BORROWER) AND VARIOUS SUBSIDIARIES OF THE
BORROWER DATED [   ] 2009
 1 2
 1.
    
    In this letter, terms defined in the Facility Agreement shall, unless the context otherwise
requires, have the same meaning and the words and expressions set forth below shall bear the
following meanings and cognate expressions shall bear corresponding meanings:
 1.1
    
    Confidential Information means any information relating to the Borrower,
the Group, the Facility 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:
 1.1.1
    
    is or becomes public knowledge other than as a direct or indirect result of
any breach of this letter; or
 
 1
    
    Delete if addressee is acting as broker or agent.2
    
    Delete if addressee is acting as principal.




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Page 158. 1.1.2
    
    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;
 1.2
    
    Permitted Purpose means [subject to the terms of this letter, passing on information to a
prospective purchaser for the purpose of]3 considering and evaluating whether to enter into
the Acquisition; and1.3
    
    Purchaser Group means you, and each of your affiliates.
 2.
    
    Confidentiality UndertakingYou undertake:
 2.1
    
    to keep the Confidential Information confidential and not to disclose it to anyone except as
provided for by paragraph 2.2 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,2.2
    
    to use the Confidential Information only for the Permitted Purpose,2.3
    
    to use all reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph [2.2 or]4 2.3]
acknowledges and complies with the provisions of this letter as if that person were also a
party to it, and2.4
    
    to confirm that all of your employees, officers and directors are contractually bound to
maintain confidentiality and shall procure that should any employee, officer or director not
be so bound that such employee enters into a confidentiality undertaking in favour of the
Borrower on substantially the same terms and conditions set out in this letter;2.5
    
    to procure that each professional advisor, shareholder and/or consultant enters into a
confidentiality undertaking in favour of the Borrower on substantially the same terms and
conditions as set out in this letter.
 3.
    
    Permitted DisclosureWe agree that you may disclose Confidential Information:
 
 3
    
    Delete if addressee is acting as principal.4
    
    Delete as applicable.




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Page 159. 3.1
    
    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, to the extent that they have undertaken to keep the Information
Confidential;3.2
    
    [subject to the requirements of the Facility 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.]3.3
    
    subject to the requirements of the Facility 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 Facility 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 Facility 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; and3.4
    
    where requested or required by any court of competent jurisdiction or any competent
judicial, governmental, supervisory or regulatory body;3.5
    
    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;3.6
    
    where required by the laws or regulations of any country with jurisdiction over the affairs
of any member of the Purchaser Group.
 4.
    
    Notification of Required or Unauthorised DisclosureYou agree (to the extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2.4 or upon becoming aware that Confidential Information has been
disclosed in breach of this letter.5.
    
    Return of CopiesIf 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




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##### 



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 2.4.6.
    
    Continuing ObligationsThe 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:
 6.1
    
    if you become a party to or otherwise acquire (by assignment or sub-participation) an
interest, direct or indirect, in the Facility Agreement;6.2
    
    24 (twenty-four) months from the date of this letter.
 7.
    
    No Representation, Consequence of Breach, etcYou acknowledge and agree that neither we [nor our principal]5 nor any member of the Group
nor any of our or their respective officers, employees or advisers (each a Relevant
Person):
 7.1
    
    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 or7.2
    
    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; and7.3
    
    we [or our principal]6 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.
 8.
    
    Sole Agreement, No Implied Terms, No Variation, Extensions and Waivers
 8.1
    
    This letter constitutes the sole record of the agreement between us and you
(each, a Party, and collectively the Parties) in regard to the subject matter
hereof.
 
 5
    
    Delete if letter is sent out by the Seller rather than the Sellers broker or agent.6
    
    Delete if letter is sent out by the Seller rather than the Sellers broker or agent.




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Page 161 8.2
    
    No Party shall be bound by any express or implied term, representation, warranty, promise or
the like, not recorded in this letter.8.3
    
    No addition to, variation or consensual cancellation of this letter and no extension of time,
waiver or relaxation or suspension of any of the provisions or terms hereof shall be of any
force or effect unless in writing and signed by or on behalf of all the Parties.8.4
    
    No latitude, extension, of time or other indulgence which may be given or
allowed by any Party to any other Party in respect of the performance of any
obligation hereunder or enforcement of any right arising from this letter and no
single or partial exercise of any right by any Party shall under any circumstances be
construed to be an implied consent by such Party or operate as a waiver or a novation
of, or otherwise affect any of that Partys rights in terms of or arising from this
letter or estop such Party from enforcing, at any time and without notice, strict and
punctual compliance with each and every provision or term hereof.
 9.
    
    Inside InformationYou 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.10.
    
    Nature of UndertakingsThe undertakings given by you under this letter are given to us and (without implying any
fiduciary obligations on our part) are also given by the benefit of [our principal]7 the
Borrower and each other member of the Group.11.
    
    Governing Law and Jurisdiction
 11.1
    
    This letter (including the agreement constituted by your acknowledgment of its terms) shall
be governed by and construed in accordance with the laws of South Africa and the parties
submit to the non-exclusive jurisdiction of the South Gauteng High Court (Johannesburg) (or
any successor to that Division) in regard to all matters arising from this letter.11.2
    
    Please acknowledge your agreement to the above by signing and returning the enclosed copy.
  
 7
    
    Delete if letter is sent out by the Seller rather than the Sellers broker or agent.




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Page 162 [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]