exv4w17



 

    



Exhibit 4.17




CESSION AND PLEDGE IN SECURITY




By




AFRICAN RAINBOW MINERALS GOLD LIMITED

(as “Cedent”)




in favour of




NEDBANK LIMITED

(acting through its NEDBANK CAPITAL division)

(as “Original Lender” and “Facility Agent”)















 



 


TABLE OF CONTENTS




	 	 	 	 	 	 	 
	1.

	 	PARTIES
	 	 	1	 
	 
	 	 	 	 	 	 
	2.

	 	INTERPRETATION
	 	 	1	 
	 
	 	 	 	 	 	 
	3.

	 	INTRODUCTION
	 	 	9	 
	 
	 	 	 	 	 	 
	4.

	 	CESSION AND PLEDGE
	 	 	9	 
	 
	 	 	 	 	 	 
	5.

	 	WARRANTIES AND REPRESENTATIONS IN RESPECT OF THE SHARES AND THE RIGHTS AND INTERESTS
	 	 	9	 
	 
	 	 	 	 	 	 
	6.

	 	DELIVERY OF DOCUMENTS
	 	 	12	 
	 
	 	 	 	 	 	 
	7.

	 	RIGHTS, POWERS AND PRIVILEGES ATTACHING TO THE SHARES
	 	 	13	 
	 
	 	 	 	 	 	 
	8.

	 	REALISATION
	 	 	14	 
	 
	 	 	 	 	 	 
	9.

	 	EXERCISE OF RIGHTS
	 	 	16	 
	 
	 	 	 	 	 	 
	10.

	 	APPROPRIATION OF PROCEEDS
	 	 	17	 
	 
	 	 	 	 	 	 
	11.

	 	DURATION
	 	 	17	 
	 
	 	 	 	 	 	 
	12.

	 	ADDITIONAL SECURITY
	 	 	17	 
	 
	 	 	 	 	 	 
	13.

	 	BORROWER BOUND NOTWITHSTANDING CERTAIN CIRCUMSTANCES
	 	 	17	 
	 
	 	 	 	 	 	 
	14.

	 	FURTHER CESSIONS
	 	 	18	 
	 
	 	 	 	 	 	 
	15.

	 	RIGHTS AND INTERESTS TO BE KEPT FREE OF ENCUMBRANCES
	 	 	18	 
	 
	 	 	 	 	 	 
	16.

	 	EXEMPTION FROM LIABILITY
	 	 	19	 
	 
	 	 	 	 	 	 
	17.

	 	KEEPING, INSPECTION AND DELIVERY OF RECORDS
	 	 	19	 
	 
	 	 	 	 	 	 
	18.

	 	CERTIFICATE OF INDEBTEDNESS
	 	 	19	 
	 
	 	 	 	 	 	 
	19.

	 	RENUNCIATION OF BENEFITS
	 	 	19	 
	 
	 	 	 	 	 	 
	20.

	 	STIPULATION FOR THE BENEFIT OF NEW LENDERS
	 	 	20	 
	 
	 	 	 	 	 	 
	21.

	 	NOTICES AND DOMICILIA
	 	 	20	 












 



 


	 	 	 	 	 	 	 
	22.

	 	GOVERNING LAW
	 	 	22	 
	 
	 	 	 	 	 	 
	SCHEDULE 1 : SUBSIDIARIES	 	 	26	 












 



 


CESSION AND PLEDGE IN SECURITY





	1.	 	PARTIES






	1.1	 	The Parties to this Agreement are:






	1.1.1	 	AFRICAN RAINBOW MINERALS GOLD LIMITED; and
	 
	1.1.2	 	NEDBANK LIMITED (acting through its NEDBANK CAPITAL division).






	1.2	 	The Parties agree as set out below.






	2.	 	INTERPRETATION






	2.1	 	The headings to the clauses, schedules and annexures of this Agreement are for reference
purposes only and shall in no way govern or affect the interpretation of nor modify nor
amplify the terms of this Agreement nor any clause, schedule or annexure hereof.
	 
	2.2	 	Unless the context dictates otherwise, the words and expressions set forth below shall bear
the following meanings and cognate expressions shall bear corresponding meanings:






	2.2.1	 	“Agreement” means this Cession and Pledge in Security and its Schedule;
	 
	2.2.2	 	“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) and is a day on which banks
are open for business in South Africa;










 



 







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	2.2.3	 	“Cedent” means African Rainbow Minerals Gold Limited (Registration No. 1997/015869/06), a
public company duly incorporated in accordance with the company laws of South Africa;
	 
	2.2.4	 	“Claims” means all current and future claims that the Cedent may have against the
Subsidiaries by virtue of its shareholding in the Subsidiaries, whether in the form of
shareholder loans or otherwise and the benefit of any security interest for the time being
held by the Cedent in respect of such claims;
	 
	2.2.5	 	“Deposit Rate” means the publicly quoted overnight call deposit rate of interest (per
centum, per annum, compounded monthly in arrears and calculated on a 365 day year factor
(irrespective of whether or not the year is a leap year)) from time to time published by
Nedbank as certified by any manager of Nedbank (whose appointment and/or designation need not
be proved) and whose certificate shall constitute prima facie proof of such rate;
	 
	2.2.6	 	“Documents of Title” means the share certificates and other documents of title referred to
in clauses 6.1.1 and 6.1.2 below;






	2.2.7	 	“Effective Date” means the later of:







	 
	2.2.7.1	 	28 September 2007; and
	 
	2.2.7.2	 	the date of Financial Close;






	2.2.8	 	“Event of Default” shall bear the meaning set out in the Senior Facility Agreement;










 



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	2.2.9	 	“Facility” shall bear the meaning set out in the Senior Facility Agreement;
	 
	2.2.10	 	“Facility Agent” means Nedbank;
	 
	2.2.11	 	“Financial Close” shall bear the meaning set out in the Senior Facility Agreement;
	 
	2.2.12	 	“Finance Documents” shall bear the meaning set out in the Senior Facility Agreement;
	 
	2.2.13	 	“Finance Parties” means the Lenders and the Facility Agent, and “Finance Party” means any
one of them, as the context requires;
	 
	2.2.14	 	“Guarantors” shall bear the meaning set out in the Senior Facility Agreement;
	 
	2.2.15	 	“Harmony” 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;
	 
	2.2.16	 	“Lenders” shall bear the meaning set out in the Senior Facility Agreement, and being as at
the Signature Date the Original Lender;
	 
	2.2.17	 	“Nedbank” means Nedbank Limited (acting through its Nedbank Capital division) (Registration
No. 1951/000009/06), a public company and registered bank duly incorporated in accordance with
the company and banking laws of South Africa;
	 
	2.2.18	 	“Original Lender” means Nedbank;










 



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	2.2.19	 	“Parties” means the Finance Parties and the Cedent and “Party” shall, as the context
requires, be a reference to either one of them;
	 
	2.2.20	 	“Rights and Interests” means all the Cedent’s rights of any nature whatsoever to and
interest of any nature whatsoever in:






	2.2.20.1	 	the Shares; and
	 
	2.2.20.2	 	the Claims






whether actual, prospective or contingent, direct or indirect, whether a claim
to payment of money or to performance of any other obligation, and whether or
not the said rights and interest were within the contemplation of the Parties at
the Signature Date;




	2.2.21	 	“Secured Obligations” means any and all indebtedness or obligations of the Cedent to the
Finance Parties (whether actual or contingent, present or future) arising out of the Finance
Documents;
	 
	2.2.22	 	“Senior Facility Agreement” means the Senior Facility Agreement entered into between
Harmony, Nedbank (in its capacity as “Original Lender” and as “Facility Agent”), the Cedent,
Randfontein Estates Limited, Evander Gold Mines Limited, Avgold Limited, ARMgold/Harmony Joint
Investment Company (Proprietary) Limited and ARMgold/Harmony Freegold Joint Venture Company
(Proprietary) Limited on or about the same date as this Agreement, pursuant to which Nedbank
grants the Cedent a term loan facility of R2 000 000 000 (two billion Rand);
	 
	2.2.23	 	“Shares” means the ordinary shares in the issued share capital of the Subsidiaries, from
time to time, which are held by the Cedent (including,










 



Page 5.


	 	 	but not limited to, any such shares which may be issued or transferred to the Cedent in the future);
	 
	2.2.24	 	“Signature Date” means the date of the signature of the Party last signing this Agreement in
time;
	 
	2.2.25	 	“South Africa” means the Republic of South Africa as constituted from time to time;
	 
	2.2.26	 	“Subsidiaries” means the companies listed in Schedule 1 hereto and “Subsidiary” means any
one of them, as the context requires;






	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	 	a “holding company” shall be construed in accordance with the Companies Act, No. 61 of 1973
(as amended);
	 
	2.3.4	 	“law” shall be construed as any law (including common or customary law) or statute,
constitution, decree, judgment, treaty, regulation, directive, bye-law, order or any other
legislative measure of any government, supranational, local government, statutory or
regulatory body or court;
	 
	2.3.5	 	a “Schedule” or “Annexure” shall, subject to any contrary indication, be construed as a
reference to a schedule or annexure hereof;










 



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	2.3.6	 	a “subsidiary” shall be construed in accordance with the Companies Act, No. 61 of 1973 (as
amended);
	 
	2.3.7	 	“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);
	 
	2.3.8	 	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.






	2.4	 	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 exclusively
of the first and inclusively of the last day unless the last day falls on a day which is not a
Business Day, in which case the last day shall be the next succeeding Business Day;
	 
	2.4.3	 	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;










 



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	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 subsequent 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 say may have been, or may from time to time be, amended, varied, novated or
supplemented;
	 
	2.4.7	 	references to day/s, month/s or year/s shall be construed as Gregorian calendar day/s,
month/s or year/s;
	 
	2.4.8	 	a reference to a Party includes that Party’s successors-in-title and permitted assigns.






	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; and
	 
	2.5.3	 	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 










 



Page 8.


	 	 	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 estates, heirs, executors,
administrators, trustees, permitted assigns or liquidators of the Parties as fully and
effectually as if they had signed this Agreement in the first instance and reference to any
Party shall be deemed to include such Party’s estate, heirs, executors, administrators,
trustees, 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.










 



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	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	 	Harmony, Nedbank and the Guarantors have entered into the Senior Facility Agreement in terms
of which Nedbank, as the “Original Lender”, will make a loan facility available to the Cedent
on the terms as set out in the Senior Facility Agreement.
	 
	3.2	 	As security for the due performance of the Secured Obligations, the Cedent has agreed to
pledge the Shares and cede to the Finance Parties on a joint and several basis, all the Rights
and Interests on the terms and conditions of this Agreement.






	4.	 	CESSION AND PLEDGE






	4.1	 	With effect from the Effective Date, the Cedent hereby pledges all of the Shares to the
Finance Parties, jointly and severally, and cedes, assigns, transfers and makes over to the
Finance Parties, jointly and severally, all of the Rights and Interests, as security for the
due, proper and timeous payment and performance in full of all of the Secured Obligations, on
the terms and conditions set out in this Agreement, which pledge and cession, assignment and
transfer Nedbank, as the “Original Lender” and the “Facility Agent” hereby accepts on behalf
of the Finance Parties.
	 
	4.2	 	The Cedent shall obtain all third party consents required to fulfil its obligations detailed
in clause 4.1 above.










 



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	5.	 	WARRANTIES AND REPRESENTATIONS IN RESPECT OF THE SHARES AND THE RIGHTS AND INTERESTS






	5.1	 	The Cedent, on each day that this Agreement is in force:






	5.1.1	 	warrants and represents that it is and will be the sole and beneficial owner of all the
Shares and the Rights and Interests to the exclusion of all others
and (save as set out in the Finance Documents) no person has an option or right
of refusal over those Shares or the Rights and Interests;
	 
	5.1.2	 	warrants and represents that the Shares pledged and the Rights and Interests ceded to the
Finance Parties under this Agreement have not been pledged, ceded (either outright or as
security), discounted, factored, mortgaged under notarial bond or otherwise, or otherwise
disposed of, nor are they subject to any other rights in favour of any person (including
without limitation any rights of pre-emption) other than in terms of and as set out in the
Finance Documents;
	 
	5.1.3	 	warrants and represents that the Shares are fully paid for;
	 
	5.1.4	 	warrants and represents that all obligations undertaken by it under this Agreement have been
authorised by all necessary corporate action and all necessary legislative, administrative or
other governmental action;
	 
	5.1.5	 	warrants and represents that the issue of the pledge and cession under this Agreement and
the fulfilment of its obligations in accordance with the terms thereof do not contravene any
law, regulation or any contractual obligation binding on it;










 



Page 11.








	5.1.6	 	agrees and undertakes not to exercise any and all rights in respect of the Shares and the
Rights and Interests which it may have in conflict with the rights of the Finance Parties
under this Agreement;
	 
	5.1.7	 	acknowledges that it may not cede, assign, transfer or pledge or in any other manner
encumber or deal with the Shares or the Rights and Interests without the prior written consent
of the Facility Agent;
	 
	5.1.8	 	agrees that on the occurrence of any Event of Default, it will forthwith pay over to the
Facility Agent (on behalf of the Finance Parties) any interest,
dividend or other benefits of any nature accrued and/or received in respect of
the Shares and the Rights and Interests relating to the period after such a
breach by depositing the same into a nominated account as the Facility Agent may
from time to time direct in writing; and
	 
	5.1.9	 	undertakes and agrees to the extent possible to prevent any variation of the value of, or
rights relating to, the Shares and the Rights and Interests or any of them without the prior
written consent of the Facility Agent.






	5.2	 	Should any of the Shares and/or the Rights and Interests be subject to any right in breach of
the representation and warranty in clause 5.1.2, then, without prejudice to any other rights
that the Finance Parties may have, any reversionary or other interests the Cedent may have in
the said Shares and/or Rights and Interests, as the case may be, are also ceded jointly and
severally to the Finance Parties, and if the holder of that cession or right is entitled to
possession of any of the documents referred to in clause 6 below, and it exercises that right,
then the Cedent shall deliver photocopies of the documents to Facility Agent (on behalf of the
Finance Parties), and as soon as the holder of that cession or right ceases to be entitled to
possession or gives up possession, the Cedent shall deliver the relevant documents to the
Facility Agent (on behalf of the Finance Parties).










 



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	5.3	 	It is recorded that Nedbank, as the “Facility Agent” and the “Original Lender” has entered
into the Finance Documents on the strength of and relying on the warranties and
representations in this clause 5, each of which shall be deemed to be separate warranties and
representations, given without prejudice to any other warranty or representation, and deemed
to be material representations inducing the Finance Parties to enter into the Finance
Documents to which they are a party.






	6.	 	DELIVERY OF DOCUMENTS






	6.1	 	In order to perfect the pledge of the Shares, the Cedent shall deliver to the Facility Agent
on behalf of all of the Finance Parties:






	6.1.1	 	the original share certificates in respect of the Shares; and
	 
	6.1.2	 	share transfer forms duly signed by the Cedent as transferor and blank as to transferee;






prior to the date of Financial Close, or in respect of Shares not currently owned by
the Cedent, as soon as such documents are available, as the case may be.




	6.2	 	It is agreed the Facility Agent will hold possession of the Documents of Title on behalf of
all of the Finance Parties.
	 
	6.3	 	The Facility Agent on behalf of all of the Finance Parties shall be entitled to retain
possession of the Documents of Title, and to deal with them in accordance with the provisions
of the Finance Documents until all the Secured Obligations have been unconditionally and
irrevocably finally discharged or released, as the case may be, whereupon the Documents of
Title shall be returned to the Cedent.










 



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	6.4	 	When Rights and Interests are evidenced by a document, or when the Cedent holds security for
any obligation in respect of such Rights and Interests and the security is evidenced by a
document, the Cedent shall immediately deliver a certified copy of that document to the
Facility Agent.
	 
	6.5	 	In addition to the documents referred to above, the Cedent shall deliver to the Facility
Agent any other documents relating to the Shares and the Rights and Interests for which the
Facility Agent may at any time reasonably call, which documents shall be delivered to the
Facility Agent within a reasonable period, as agreed between the Facility Agent and the Cedent, and, failing such agreement, within 10 (ten) Business Days.
	 
	6.6	 	The Cedent shall generally do everything that may be required by the Facility Agent for the
purposes of and to give effect to this Agreement, failing which the Facility Agent may, if
possible, attend thereto and recover from the Cedent any expenses incurred in doing so.
	 
	6.7	 	The rights of the Finance Parties under this Agreement are joint and several and,
accordingly, subject to clauses 8 and 9, the Facility Agent on behalf of any Finance Party
shall, subject to the terms of the Finance Documents, be entitled to exercise such Finance
Party’s rights in terms of this Agreement independently of any other Finance Party, without
recourse to any other Finance Party in satisfaction of the claims of such Finance Party
against the Cedent under this Agreement.






	7.	 	RIGHTS, POWERS AND PRIVILEGES ATTACHING TO THE SHARES






	7.1	 	This pledge and cession operates in respect of all rights, powers and privileges attaching to
the Shares and Rights and Interests, including but not limited to those set out in 7.2 below
and such rights, powers and privileges shall accordingly vest in the Finance Parties or the
Facility Agent on behalf of the 










 



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	 	 	Finance Parties with the power to exercise them (jointly and
severally) either in their own names or in the name of the Cedent, upon the occurrence of an
Event of Default. Alternatively, the Cedent shall, if the Facility Agent so directs, exercise
those rights, powers and privileges in its own name in accordance with the Facility Agent’s
directions upon the occurrence of an Event of Default.






	7.2	 	Such rights, powers and privileges attaching to the Shares include (but shall not be limited
to) the following:






	7.2.1	 	to receive payment of that portion of the dividends and other benefits which become due in
respect of the Shares from time to time;
	 
	7.2.2	 	the right to exercise any rights to appoint directors to the Boards of the Subsidiaries; and
	 
	7.2.3	 	the right to attend every general meeting of the shareholders of the Subsidiaries and to
exercise the votes attaching to the Shares at such meeting.






	7.3	 	For the avoidance of doubt, for so long as there is no occurrence of an Event of Default, the
provisions of clauses 7.1 and 7.2 above will not apply.






	8.	 	REALISATION






	8.1	 	Upon the occurrence of an Event of Default, the Cedent hereby irrevocably and unconditionally
authorises and empowers the Facility Agent, without any further authority or consent of any
nature whatsoever required from the Cedent, and in its own name or the name, in any of the
Finance Parties or in the name of the Cedent, to:










 



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	8.1.1	 	exercise all the rights, powers and privileges attaching to the Shares and the Rights and
Interests;
	 
	8.1.2	 	authorise any director of the Facility Agent to sign, on behalf of the Cedent and in the
name of the Cedent, any security transfer form or other document that may be necessary to give
effect to any sale of any of the Shares or Rights and Interests made by the Finance Parties in
terms of this clause 8;
	 
	8.1.3	 	receive payment for, delivery of and/or performance in respect of, the Shares or Rights and
Interests in its own name;
	 
	8.1.4	 	sell or purchase or otherwise realise or transfer all or some of the Shares or the Rights
and Interests on such terms and in such manner as the Facility Agent may in their sole
discretion decide;
	 
	8.1.5	 	institute any legal proceedings which the Facility Agent may deem necessary in connection
with any sale, purchase or other transfer of any of the Shares and Rights and Interests;
and/or
	 
	8.1.6	 	compromise any Right and Interest, grant any extension or other indulgence in respect of any
such Right and Interest, or agree to vary the terms of any such Right and Interest, or realise
any security or suretyship held for any such Right and Interest.






	8.2	 	On the Facility Agent taking any action in terms of clause 8.1, the Cedent shall on demand by
the Facility Agent:






	8.2.1	 	notify all persons required by the Facility Agent in writing that payment for, delivery of
or performance in respect of the relevant Shares and Rights and Interests must be made to the
Facility Agent and that payment, delivery or performance to the Cedent or to anyone else will
not constitute valid payment,










 



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	 	 	delivery or performance, and the Facility Agent shall be
entitled to do likewise. The Cedent shall on demand by the Facility Agent provide proof that
such notification has been duly given;






	8.2.2	 	refuse to accept any payment, delivery or performance tendered in respect of any of the
Shares and Rights and Interests and order that such payment, delivery or performance be
tendered to the Facility Agent;
	 
	8.2.3	 	without charge, permit the Facility Agent to have access to and to work at the Cedent’s
premises and to use the Cedent’s facilities and personnel for the purposes of enforcing its
rights under this Agreement;
	 
	8.2.4	 	if the Cedent fails to fulfil promptly is obligations detailed in the Finance Documents to
which it is a party, the Facility Agent may cause such obligations to be fulfilled and recover
from the Cedent any expenses incurred by the Facility Agent; and/or
	 
	8.2.5	 	at its own cost, carry out any directions the Facility Agent may give in regard to the
realisation of the Shares and the Rights and Interests and sign any document or do any other
act necessary to vest the Rights and Interests in the Finance Parties or otherwise necessary
to perfect the cessions.






	8.3	 	Any amount realised by the Facility Agent, on the realisation of the Shares and/or the Rights
and Interests in terms of this clause 8, which is in excess of the amount owing by the Cedent
to the Finance Parties in respect of the Secured Obligations, shall be repayable to the Cedent
within 10 (ten) Business Days after the complete, unconditional and irrevocable fulfilment of
all of the Secured Obligations together with interest thereon calculated at the Deposit Rate
from










 



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	 	 	the date of receipt of such amount by the Facility Agent to the date of refund to the
Borrower.






	9.	 	EXERCISE OF RIGHTS






The rights of the Finance Parties under this Agreement:




	9.1	 	may be exercised as often as necessary;
	 
	9.2	 	may be exercised in respect of all or any of the Secured Obligations;
	 
	9.3	 	may be exercised by the Facility Agent on behalf of all the Finance Parties;
	 
	9.4	 	are cumulative and not exclusive of their rights under general law; and
	 
	9.5	 	may be waived only in writing and specifically.






	10.	 	APPROPRIATION OF PROCEEDS






The Facility Agent may appropriate all amounts received pursuant to the collection, sale or
other realisation of the Shares and/or the Rights and Interests to the repayment of amounts
due and payable by the Borrower under the Senior Facility Agreement in such manner as the
Facility Agent in its sole discretion sees fit.




	11.	 	DURATION






This Agreement is a continuing covering security and will terminate only upon the
unconditional and irrevocable final discharge or release, as the case may be, of all the
Secured Obligations. In particular, this Agreement shall not terminate by reason solely of
the fact that there may at any time be no or reduced obligations or debts owing by the Cedent
to the Finance Parties.









 



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	12.	 	ADDITIONAL SECURITY






This Agreement is in addition to and not in substitution for any other security held or
hereafter to be held by the Finance Parties the Cedent or any third party in connection with
the Secured Obligations or otherwise and the Facility Agent shall, without prejudice to its
rights hereunder, be entitled to release any such additional security held by it.




	13.	 	BORROWER BOUND NOTWITHSTANDING CERTAIN CIRCUMSTANCES






	13.1	 	The Cedent agrees that on signature hereof it will be bound in terms of this Agreement to the
full extent thereof, despite the fact that:






	13.1.1	 	any intended additional security from the Cedent for the debts secured by this Agreement may
not be obtained or protected or may be released or may cease to be held for any other reason;
	 
	13.1.2	 	the Finance Parties and the Cedent may agree a variation or novation of the Senior Facility
Agreement;
	 
	13.1.3	 	the Facility Agent may grant any indulgences to the Cedent or may not exercise any one or
more of its rights hereunder or under the Senior Facility Agreement, either timeously or at
all; and
	 
	13.1.4	 	any other fact or circumstance may arise (including any act or omission by the Finance
Parties) on which the Cedent might otherwise be able to rely on a defence based on waiver
(other than an express waiver) or estoppel.






	13.2	 	If the Cedent suffers any loss arising from any of the facts, circumstances, acts or
omissions referred to above, the Cedent will have no claim against the Finance Parties in
respect thereof.










 



Page 19.








	14.	 	FURTHER CESSIONS






Save as contemplated by the Finance Documents, the Cedent shall not grant any further
cessions of the Rights and Interests.




	15.	 	RIGHTS AND INTERESTS TO BE KEPT FREE OF ENCUMBRANCES






The Cedent shall at all times keep the Rights and Interests free of judicial attachments,
notarial bonds and other encumbrances, and shall not prejudice, compromise, grant any
indulgences or agree to vary the terms of any document creating any Right and Interest or
release any security held in respect of any Right and Interest without the prior written
consent of the Facility Agent.




	16.	 	EXEMPTION FROM LIABILITY






The Finance Parties and their officers, trustees, agents, beneficiaries, employees and
advisors shall not be liable for any loss or damage, whether direct, indirect,
consequential or otherwise, suffered by the Cedent arising from any cause in connection with
this Agreement, whether the loss or damage results from delict, negligence or any other cause
and whether this Agreement has been terminated or not, other than as a result of the Finance
Party’s gross negligence or wilful misconduct.




	17.	 	KEEPING, INSPECTION AND DELIVERY OF RECORDS






The Cedent shall at all times keep up-to-date records of the Rights and Interests ceded as
security to the Finance Parties and shall comply with any reasonable directions the Facility
Agent may give in regard to the keeping of those records.









 



Page 20.



	18.	 	CERTIFICATE OF INDEBTEDNESS






A certificate signed by an officer of any of the Facility Agent whose appointment need not be
proved, reflecting:




	18.1	 	the amount owing by the Cedent to the Finance Parties under the Finance Documents and the due
date for payment of such amounts; and/or
	 
	18.2	 	the amount(s) realised by the realisation or sale of all or any of the Cedent’s Security
Rights and the date(s) of realisation thereof;






will be prima facie evidence of the contents thereof.




	19.	 	RENUNCIATION OF BENEFITS






The Cedent hereby renounces the legal benefits and exceptions of non numeratae pecuniae, non
causa debiti, revision of accounts and errore calculi, the Cedent declaring itself to be
fully acquainted with the full meaning and effect of this renunciation.




	20.	 	STIPULATION FOR THE BENEFIT OF NEW LENDERS






The provisions of this Agreement, which confer benefits upon the Finance Parties, shall
constitute stipulations for the benefit of any person becoming a Lender in accordance with
the provisions of clause 26 (Change of Party) of the Senior Facility Agreement, capable of
acceptance by such person at any time. To the extent that a splitting of claims arises as a
result of the provisions of this clause 20, the Borrower hereby consents to such splitting of
claims.









 



Page 21.



	21.	 	NOTICES AND DOMICILIA






	21.1	 	Notices






	21.1.1	 	Each Party chooses the addresses set out opposite its name below as its addresses to which
any written notice in connection with this Agreement may be addressed.





	 	 	 	 	 	 	 
	21.1.1.1

	 	Lenders:
	 	 	 	4th Floor, F Block

135 Rivonia Road

SANDTON
	 
	 	 	 	 	 	 
	 

	 	Telefax No.
Attention
	 	:

:
	 	(011) 295 3902

Head: Project Management
	 
	 	 	 	 	 	 
	21.1.1.2

	 	Facility Agent:
	 	 	 	4th Floor, F Block

135 Rivonia Road

SANDTON
	 
	 	 	 	 	 	 
	 

	 	Telefax No.
Attention
	 	:

:
	 	(011) 295 3902

Head: Project Management
	 
	 	 	 	 	 	 
	21.1.1.3

	 	Cedent:
	 	 	 	Block 27

Randfontein Office Park

Cnr Main Reef Road and Ward Avenue

RANDFONTEIN
	 
	 	 	 	 	 	 
	 

	 	Telefax No.
Attention
	 	:

:
	 	27 11 411 2070

The Company Secretary







	21.1.2	 	Any notice or communication required or permitted to be given in terms of this Agreement
shall be valid and effective only if in writing but it shall be competent to give notice by
telefax transmitted to its telefax number set out opposite its name above.
	 
	21.1.3	 	Either Party may by written notice to the other Party change its chosen address and/or
telefax number for the purposes of clause 21.1.1 to any










 



Page 22.


	 	 	other address) and/or telefax number,
provided that the change shall become effective on the 14th (fourteenth) day after
the receipt of the notice by the addressee.






	21.1.4	 	Any notice to a Party contained in a correctly addressed envelope and delivered by hand to a
responsible person during ordinary business hours at its chosen physical address in terms of
clause 21.1.1, shall be deemed to have been received on the day of delivery.
	 
	21.1.5	 	Any notice by telefax to a Party at its telefax number shall be deemed to have been received
on the 1st (first) Business Day after the date of transmission.
	 
	21.1.6	 	Notwithstanding anything to the contrary herein contained, a written notice or communication
actually received by a Party shall be an adequate written notice or communication to it,
notwithstanding that it was not sent to or delivered at its chosen address and/or telefax
number.






	21.2	 	Domicilia






	21.2.1	 	Each of the Parties chooses its physical address referred to in clause 21.1 as its
domicilium citandi et executandi at which documents in legal proceedings in connection with
this Agreement may be served.
	 
	21.2.2	 	Either Party may by written notice to the other Party change its domicilium from time to
time to another address, not being a post office box or a poste restante, in South Africa;
provided that any such change shall only be effective on the fourteenth day after deemed
receipt of the notice by the other Party pursuant to clause 21.1.4 or 21.1.5, as the case may
be.










 



Page 23.








	22.	 	GOVERNING LAW






The entire provisions of this Agreement shall be governed by and construed in accordance with
the laws of South Africa.




	23.	 	JURISDICTION






The Parties hereby irrevocably and unconditionally consent to the non-exclusive jurisdiction
of the Witwatersrand Local Division of the High Court of South Africa (or any successor to
that division) in regard to all matters arising from this Agreement.




	24.	 	SEVERABILITY






Each provision in this Agreement is severable from all others, notwithstanding the manner in
which they may be linked together or grouped grammatically, and if in terms of any judgment
or order, any provision, phrase, sentence, paragraph or clause is found to be defective or
unenforceable for any reason, the remaining provisions, phrases, sentences, paragraphs and
clauses shall nevertheless continue to be of full force. In particular, and without limiting
the generality of the aforegoing, the Parties 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.




	25.	 	GENERAL






	25.1	 	This document constitutes the sole record of the agreement between the Parties in regard to
the subject matter thereof.
	 
	25.2	 	No Party shall be bound by any express or implied term, representation, warranty, promise or
the like, not recorded herein.










 



Page 24.








	25.3	 	No addition to, variation or consensual cancellation of this Agreement and no extension of
time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement
shall be of any force or effect unless in writing and signed by or on behalf of all the
Parties.
	 
	25.4	 	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.
	 
	25.5	 	The Parties undertake at all times to do all such things, to perform all such acts and to
take all such steps and to procure the doing of all such things, the performance of all such
actions and the taking of all such steps as may be open to them and necessary for or
incidental to the putting into effect or maintenance of the terms, conditions and import of
this Agreement.
	 
	25.6	 	Save as is specifically provided in this Agreement, no Party shall be entitled to cede or
delegate any of its rights or obligations under this Agreement without the
prior written consent of the other Parties affected by such transfer of rights or
obligations, which consent may not unreasonably be withheld or delayed.






	26.	 	COSTS






	26.1	 	The Cedent shall bear the costs of and incidental to the negotiation, preparation and
execution of this Agreement.










 



Page 25.








	26.2	 	All legal costs incurred by either Party in consequence of any default of the provisions of
this Agreement by the other Party shall be payable on demand by the defaulting Party on the
scale as between attorney and own client and shall include collection charges, the costs
incurred by the non-defaulting Party in endeavouring to enforce such rights prior to the
institution of legal proceedings and the costs incurred in connection with the satisfaction or
enforcement of any judgement awarded in favour of the non-defaulting Party in relation to its
rights in terms of or arising out of this Agreement.






	27.	 	COUNTERPARTS






This Agreement may be executed 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










 



Page 26.

SIGNED at SANDTON on this the 27th day of SEPTEMBER 2007.




	 	 	 	 	 
	 	 	For and on behalf of
	 	 	NEDBANK LIMITED (acting through its
	 	 	NEDBANK CAPITAL division)
	 	 	(as “Original Lender” and “Facility Agent”)
	 
	 	 	 	 
	 

	 	 

Name:

Capacity:

Who warrants his authority hereto
	 	 
	 
	 	 	 	 
	 

	 	 

Name:

Capacity:

Who warrants his authority hereto
	 	 





SIGNED at SANDTON on this the 27th day of SEPTEMBER 2007.




	 	 	 	 	 
	 	 	For and on behalf of
	 	 	AFRICAN RAINBOW MINERALS GOLD
	 	 	LIMITED
	 	 	(as “Cedent”)
	 
	 	 	 	 
	 

	 	 

Name:

Capacity:

Who warrants his authority hereto
	 	 












 



Page 27.


SCHEDULE 1




SUBSIDIARIES





	1.	 	ARMgold/Harmony Joint Investment Company (Proprietary) Limited;
	 
	2.	 	ARMgold/Harmony Freegold Joint Venture Company (Proprietary) Limited.