exv4w20



 





Exhibit 4.20




SENIOR BRIDGE LOAN FACILITY AGREEMENT




between




FIRSTRAND BANK LIMITED

(acting though its Rand Merchant Bank division)




and




HARMONY GOLD MINING COMPANY LIMITED















 



Page 2




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	1
	 	INTERPRETATION 	 	 	3	 
	2
	 	INTRODUCTION 	 	 	36	 
	3
	 	ADVANCE CONDITIONS 	 	 	37	 
	4
	 	BRIDGE LOAN FACILITY 	 	 	43	 
	5
	 	DRAWDOWN 	 	 	44	 
	6
	 	INTEREST 	 	 	45	 
	7
	 	REPAYMENT OF BRIDGE LOAN AND PAYMENT OF INTEREST 	 	 	47	 
	8
	 	EXTENSION OF REPAYMENT DATE 	 	 	47	 
	9
	 	ALL PAYMENTS 	 	 	50	 
	10
	 	REPRESENTATIONS AND WARRANTIES 	 	 	51	 
	11
	 	POSITIVE UNDERTAKINGS 	 	 	60	 
	12
	 	NEGATIVE UNDERTAKINGS 	 	 	65	 
	13
	 	DEFAULT 	 	 	70	 
	14
	 	VOLUNTARY PRE-PAYMENT 	 	 	81	 
	15
	 	RIGHT OF FIRST REFUSAL 	 	 	82	 
	16
	 	PROOF OF INDEBTEDNESS 	 	 	83	 
	17
	 	FEES 	 	 	84	 
	18
	 	CHANGE IN CIRCUMSTANCES 	 	 	85	 
	19
	 	GROSS UP 	 	 	92	 
	20
	 	TAX INDEMNITY 	 	 	93	 
	21
	 	ILLEGALITY 	 	 	95	 
	22
	 	AUTOMATIC RIGHT OF SET-OFF 	 	 	97	 
	23
	 	RENUNCIATION OF BENEFITS 	 	 	97	 
	24
	 	BENEFIT OF THE AGREEMENT 	 	 	98	 
	25
	 	NOTICES AND DOMICILIA 	 	 	98	 
	26
	 	SEVERABILITY 	 	 	102	 
	27
	 	GENERAL 	 	 	103	 
	28
	 	INDEPENDENT ADVICE 	 	 	105	 
	29
	 	APPLICABLE LAW AND JURISDICTION 	 	 	106	 
	30
	 	COSTS 	 	 	107	 
	31
	 	SIGNATURE 	 	 	109	 






ANNEXES



ANNEXE “A” : EXTENSION NOTICE



ANNEXE “B” : PREPAYMENT ADVICE










 











 









Page 3




WHEREBY
IT IS AGREED AS FOLLOWS -





	1	 	INTERPRETATION
	 
	1.1	 	In this Agreement-
	 
	1.1.1	 	clause headings and sub-headings are for convenience only and are not to be used in its
interpretation; and
	 
	1.1.2	 	an expression which denotes -
	 
	1.1.2.1	 	any gender includes the other genders;
	 
	1.1.2.2	 	a natural person includes a juristic person and vice versa;
	 
	1.1.2.3	 	the singular includes the plural and vice versa.
	 
	1.2	 	In this Agreement, unless the context indicates a contrary intention, the following words
and expressions bear the meanings assigned to them below, and cognate expressions bear
corresponding meanings -
	 
	1.2.1	 	“Advance” means an advance made or to be made by the Lender to the Borrower in terms of
this Agreement;
	 
	1.2.2	 	“Advance Conditions” means the conditions which are to be fulfilled prior to the Lender
making the Advance as set out in clause 3;
	 
	1.2.3	 	“Advance Date” means 29 June 2007;
	 
	1.2.4	 	“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;
	 
	1.2.5	 	“Agreement” means this Senior Bridge Loan Facility agreement and includes any annexes;
















 



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	1.2.6	 	“Arranging Fee” means the arranging fee referred to in clause 17.1 below;
	 
	1.2.7	 	“Borrower” means Harmony Gold Mining Company Limited, registration number 1950/038232/06, a
public company duly incorporated in accordance with the laws of the Republic of South Africa;
	 
	1.2.8	 	“Bridge Loan Facility” means the bridge loan facility in an amount not exceeding the
Capital Amount to be made available by the Lender to the Borrower on the terms and conditions
set out in this Agreement;
	 
	1.2.9	 	“Capital Amount” means the principal amount of the Bridge Loan Facility, namely
R500,000,000.00 (five hundred million rand);
	 
	1.2.10	 	“Change in Law” means any implementation, introduction, abolition, withdrawal or variation
of any Law or any change in any interpretation of any Law;
	 
	1.2.11	 	“Closing Date” means the date of fulfilment or waiver, as the case may be, of the last
outstanding Advance Condition;
	 
	1.2.12	 	“Companies Act” means the Companies Act, 1973;
	 
	1.2.13	 	“Default Interest” means default interest at the Prime Rate plus 200 (two hundred) basis
points per annum, calculated from the due date for payment until and including the date of
actual payment of the relevant amount;
	 
	1.2.14	 	“Designated Account” means the bank account nominated by the Borrower, the details of which
are set out below -
















 



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	Name of Account
	 	Harmony Gold Mining Co Ltd
	Bank:
	 	Absa Bank Limited
	Branch:
	 	Corporate
	Branch Code:
	 	632005
	Account Number:
	 	40-4873-7227







	1.2.15	 	“Encumbrance” means any mortgage, pledge, lien, deed of cession, assignment, hypothecation
or security interest or any other agreement or arrangement having the effect of conferring
security whether by contract or operation of Law, including any arrangement under which money
or claims to, or the benefit of, a bank or other account may be applied, setoff or made
subject to a combination of accounts so as to effect discharge of any sum owed or payable to
any person and “Encumber” shall be construed accordingly;
	 
	1.2.16	 	“Existing Debt Facilities” means those facilities granted to the Borrower as at the
Signature Date, which have been disclosed in writing by the Borrower to the Lender prior to
the Signature Date, provided that all Existing Debt Facilities disclosed in the Financial
Statements and the Form 20F shall be deemed to have been disclosed by the Borrower to the
Lender;
	 
	1.2.17	 	“Extended Interest Period” means the period commencing on the day immediately following the
Repayment Date and ending on the earlier of-
	 
	1.2.17.1	 	the Extended Repayment Date; and
	 
	1.2.17.2	 	the date on which the Facility Outstandings are repaid in full;
	 
	1.2.18	 	“Extended Period Interest Rate” means the sum of the SAFEX Overnight Rate plus the Extended
Period Margin;
	 
	1.2.19	 	“Extended Repayment Date” means 30 September 2007;
















 



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	1.2.20	 	“Extended Period Margin” means 360 (three hundred and sixty) basis points nacm inclusive of
treasury and mandatory statutory costs;
	 
	1.2.21	 	“Extension Notice” means an extension notice as contemplated in clause 8.1;
	 
	1.2.22	 	“Event of Default” means any one or more of the events or circumstances described as such
in clause 13.1;
	 
	1.2.23	 	“Facility Outstandings” means all amounts of any nature whatsoever outstanding in terms of
this Agreement;
	 
	1.2.24	 	“Facility Purpose” means the funding of the Borrower’s capital expenditure requirements in
respect of the Hidden Valley Mine Project;
	 
	1.2.25	 	“Finance Documents” means -
	 
	1.2.25.1	 	this Agreement, any Drawdown Notices, an Extension Notice and any Prepayment Advice;
	 
	1.2.25.2	 	any other document designated in writing as a Finance Document by the Parties;
	 
	1.2.26	 	“Financial Indebtedness” includes any obligation for the payment or repayment of money,
whether actual or contingent, present or future, secured or unsecured, and whether incurred as
principal or surety or otherwise;
	 
	1.2.27	 	“Financial Statements” means the consolidated audited financial statements of the Borrower
in respect of the 12 (twelve) month period ended 30 June 2006 and for the 6 (six) month
period ended 31 December 2006;
















 



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	1.2.28	 	“Financial Year” means the financial year of the Borrower ending on last day in June in
each year;
	 
	1.2.29	 	“Form 20F” means the Form 20F for the Financial Year ended 30 June 2006, lodged by or on
behalf of the Borrower with the Securities Exchange Commission of the United States of
America during October 2006;
	 
	1.2.30	 	“Harmony Note Issue” means the Senior Unsecured Fixed Rate Notes to be issued by the
Borrower for an aggregate issue price of approximately USD400,000,000 (four hundred million
United States Dollars) on or about July 2007;
	 
	1.2.31	 	“Hidden Valley Mine Project” means the development of the Hidden Valley Mine in Papua New
Guinea;
	 
	1.2.32	 	“GAAP” means Statements of Generally Accepted Accounting Practice in effect from time to
time in South Africa, developed by the South African Institute of Chartered Accountants and
as approved by the Accounting Practices Board;
	 
	1.2.33	 	“IFRS” means, if applicable, the International Financial Reporting Standard as applied by
the Borrower from time to time;
	 
	1.2.34	 	“Increased Costs” means any and all reasonable additional or increased costs that the Lender
incurs in terms of this Agreement from whatsoever cause arising, over and above the costs
anticipated at the Signature Date (but excluding any costs that arise as a result of the gross
negligence of the Lender), all as more fully contemplated in clause 18.1 below;
	 
	1.2.35	 	“Insolvency Act” means the Insolvency Act, 1936;
















 



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	1.2.36	 	“Initial Interest Period” means the period commencing on the Advance Date and ending on the
Repayment Date;
	 
	1.2.37	 	“Initial Interest Rate” means the sum of the SAFEX Overnight Rate plus the Initial Margin;
	 
	1.2.38	 	“Initial Margin” means 240 (two hundred and forty) basis points nacm inclusive of treasury
and mandatory statutory costs;
	 
	1.2.39	 	“Interest” means interest, calculated at the Initial Interest Rate or the Extended Period
Interest Rate, as the case may be, on the amount of the Bridge Loan Facility outstanding from
time to time as detailed in clause 6;
	 
	1.2.40	 	“Interest Reset Date” means each day during the Initial Interest Period and, where
applicable, each day during the Extended Interest Period;
	 
	1.2.41	 	“Interest Rate” means the Initial Interest Rate or the Extended Period Interest Rate, as
applicable;
	 
	1.2.42	 	“Law” means the common law and statutory law applicable in South Africa, including (to the
extent it has the force of law) any present or future constitution, decree, judgement,
legislation, measure, requirement, order, ordinance, regulation, statute, treaty, directive,
rule, guideline, practice, concession, or request issued by any relevant authority,
governmental body, agency or department or any central bank or other fiscal, monetary,
regulatory or other statutory authority or agency;
	 
	1.2.43	 	“Lender” means FirstRand Bank Limited, Registration No. 1929/001225/06, acting through its
Rand Merchant Bank division, a registered bank and a public company with limited liability
duly incorporated in South Africa;





















 



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	1.2.44	 	“Material Adverse Effect” means a material change in the circumstances existing as at the
Signature Date which has or, in the Lender’s reasonable opinion, may have a material adverse
effect on -
	 
	1.2.44.1	 	the business or financial condition of the Borrower which affects materially and
adversely the ability of the Borrower to perform its obligations to the Lender in terms of
the Finance Documents; or
	 
	1.2.44.2	 	the validity or enforceability of the Finance Documents against the Borrower or the
rights or remedies of the Lender against any party under the Finance Documents;
	 
	1.2.45	 	“nacm” means nominal annual compounded monthly;
	 
	1.2.46	 	“Parties” means the parties to this Agreement;
	 
	1.2.47	 	“Permitted Acquisitions and Disposals” means -
	 
	1.2.47.1	 	the disposal of assets of the Borrower or the acquisition of assets by the Borrower in
the ordinary course of business of the Borrower;
	 
	1.2.47.2	 	the disposal by the Borrower of all of the issued ordinary shares in the share capital of
African Rainbow Minerals Gold Limited to Pamodzi Gold Limited;
	 
	1.2.47.3	 	any other acquisitions or disposals outside the ordinary course of business of the
Borrower which may be agreed to by the Lender in writing;
	 
	1.2.48	 	“Permitted Encumbrance” means -
	 
	1.2.48.1	 	Encumbrances existing as at the Signature Date as more fully set out in the Financial
Statements and/or Form 20F; and
	 
	1.2.48.2	 	Encumbrances created with the prior written consent of the Lender;
















 



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	1.2.49	 	“Permitted Indebtedness” means -
	 
	1.2.49.1	 	indebtedness incurred by the Borrower under and in accordance with the Existing Debt
Facilities;
	 
	1.2.49.2	 	indebtedness incurred by the Borrower and which is utilised to settle in full the Facility
Outstandings; and
	 
	1.2.49.3	 	indebtedness approved by the Lender in writing prior to the Borrower incurring such
indebtedness;
	 
	1.2.50	 	“Potential Event of Default” means any event or circumstance which, with the giving of
notice, lapse of time or fulfilment of any other condition, would be or constitute an Event
of Default;
	 
	1.2.51	 	“Prepayment Advice” means a prepayment advice as contemplated in clause 14.1.1;
	 
	1.2.52	 	“Prime Rate” means the publicly quoted rate (percent, per annum) from time to time charged
by the Lender for similar amounts on unsecured overdraft to its prime customers in good
standing in the private sector, as certified by any manager of that bank whose appointment
and designation it will not be necessary to prove, calculated on a daily basis and compounded
monthly in arrear;
	 
	1.2.53	 	“rands” means the currency of South Africa;
	 
	1.2.54	 	“Reduced Cost Benefit” means any reduction in the cost to the Lender of making or
maintaining the Bridge Loan Facility as contemplated in clause 18.2;
	 
	1.2.55	 	“Repayment Date ” means the date for repayment of Facility Outstandings, which date shall
be 31 July 2007;
















 



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	1.2.56	 	“SAFEX” means SAFEX Financial Derivatives, a division of the JSE Limited;
	 
	1.2.57	 	“SAFEX Overnight Rate” means, in respect of each Interest Reset Date, the overnight deposit
rate published by SAFEX (or its successor-in-title) opposite the caption ‘Overnight Dep Rate’
on the SAFEY page on Reuters at 11h00 on that date;
	 
	1.2.58	 	“Shareholders” means shareholders in the Borrower from time to time;
	 
	1.2.59	 	“Signature Date” means the date of signature of this Agreement by the Party last signing;
	 
	1.2.60	 	“South Africa” means the Republic of South Africa;
	 
	1.2.61	 	“Taxes” means all taxes, charges, imposts, levies, deductions, withholdings or fees of any
kind whatsoever, or any amount payable on account of or as security for any of the aforegoing
on whomsoever imposed, levied, collected, withheld or assessed by any monetary or fiscal
authority, together with any penalties, additions, fines, surcharges or interest relating
thereto, and the words “Tax” and “Taxation” shall be construed accordingly;
	 
	1.2.62	 	“Term” means the period calculated with effect from the Advance Date to the date on which
the Facility Outstandings have been repaid in full;
	 
	1.2.63	 	“United States Dollar/s” or “USD” means the lawful currency of the United States of
America; and
	 
	1.2.64	 	“VAT” means value-added-tax levied in terms of the Value-Added Tax Act, 1991.
	 
	1.3	 	Any substantive provision, conferring rights or imposing obligations on a Party and
appearing in any of the definitions in this clause 1 or elsewhere in
















 



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this Agreement, shall be given effect to as if it were a substantive provision in the
body of the Agreement.




	1.4	 	Words and expressions defined in any clause shall, unless the application of any such word
or expression is specifically limited to that clause, bear the meaning assigned to such word
or expression throughout this Agreement.
	 
	1.5	 	Subject to the provisions of clauses 1.8 and 1.20, defined terms appearing in this Agreement
in title case shall be given their meaning as defined, while the same terms appearing in
lower case shall be interpreted in accordance with their plain English meaning.
	 
	1.6	 	The terms “holding company” and “subsidiary” shall bear the meanings assigned to them under
the Companies Act.
	 
	1.7	 	A reference to any statutory enactment shall be construed as a reference to that enactment
as at the Signature Date and as amended or substituted from time to time.
	 
	1.8	 	Reference to “days” shall be construed as calendar days unless qualified by the word
“business”, in which instance a “business day” shall be any day other than a Saturday, Sunday
or public holiday as gazetted by the government of the Republic of South Africa from time to
time. Any reference to “business hours” shall be construed as being the hours between 08h30
(eight hours and thirty minutes) and 17h00 (seventeen hours) on any business day. Any
reference to time shall be based upon South African Standard Time.
	 
	1.9	 	Unless specifically otherwise provided, any number of days prescribed shall be determined by
including the first and excluding the last day.
















 



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	1.10	 	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
preceding business day.
	 
	1.11	 	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.
	 
	1.12	 	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.
	 
	1.13	 	Save as specifically otherwise provided herein, no provision of this Agreement constitutes a
stipulation for the benefit of any person who is not a Party to this Agreement.
	 
	1.14	 	Where figures are referred to in numerals and in words, and there is any conflict between the
two, the words shall prevail, unless the context indicates a contrary intention.
	 
	1.15	 	No provision herein shall be construed against or interpreted to the disadvantage of a Party
by reason of such Party having or being deemed to have structured, drafted or introduced such
provision.
	 
	1.16	 	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.
	 
	1.17	 	This Agreement shall be binding on and enforceable by the estates, heirs, executors,
administrators, trustees, permitted assigns or liquidators of the
















 



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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.




	1.18	 	The use of any expression in this Agreement covering a process available under South African
law such as winding-up shall, if any of the Parties 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.
	 
	1.19	 	The words “include” and “including” mean “include without limitation” and “including without
limitation”. The use of the words “include” and “including” followed by a specific example or
examples shall not be construed as limiting the meaning of the general wording preceding it.
The application of the eiusdem generis rule is therefore excluded.
	 
	1.20	 	Save as specifically otherwise provided, in this Agreement the words “clause” or “clauses”
refer to clauses of this Agreement.
	 
	2	 	INTRODUCTION
	 
	2.1	 	The Borrower has requested the Lender to provide the Bridge Loan Facility and the Lender has
agreed to provide the Bridge Loan Facility to the Borrower for the Facility Purpose, subject
to the terms and conditions set out in this Agreement and the applicable terms and conditions
contained in the remaining Finance Documents.
	 
	2.2	 	The Parties wish to record in writing their agreement in respect of the above.
















 



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	3	 	ADVANCE CONDITIONS
	 
	3.1	 	Notwithstanding anything to the contrary contained in this Agreement, the
Lender shall not be obliged to make any Advance to the Borrower under the Bridge Loan
Facility unless the following Advance Conditions have been fulfilled or, if applicable,
waived or deferred by the Lender pursuant to clause 3.2 -
	 
	3.1.1	 	the Lender receiving certified copies of resolutions of the board of directors of the
Borrower (in a form and substance acceptable to the Lender) -
	 
	3.1.1.1	 	approving the entering into of the Finance Documents;
	 
	3.1.1.2	 	authorising a specified person or persons to execute and implement the Finance Documents;
	 
	3.1.2	 	the following documents have been delivered by the Borrower to the Lender in certified copy
form -
	 
	3.1.2.1	 	the Memorandum and Articles of Association;
	 
	3.1.2.2	 	Certificate of Incorporation;
	 
	3.1.2.3	 	Certificate to Commence Business; and
	 
	3.1.2.4	 	Certificate of Change of Name (to the extent applicable), of the Borrower;
	 
	3.1.3	 	the Lender has received the audited consolidated Financial Statements of the Borrower;
	 
	3.1.4	 	the Lender receiving a certificate by a director or the company secretary of the Borrower
(in form and substance acceptable to the Lender) -
















 



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	3.1.4.1	 	confirming that the entering into and implementation of the Finance Documents by the
Borrower would not cause any borrowing limit binding on it to be exceeded;
	 
	3.1.4.2	 	certifying that each document delivered under this clause 3.1 is a true copy of the
original, correct, complete and in full force and effect as at the Signature Date; and
	 
	3.1.4.3	 	certifying that no Event of Default or Potential Event of Default has occurred; and
	 
	3.1.5	 	the transactions contemplated in this Agreement as well as the terms and conditions hereof
being approved in writing by the Lender’s credit committee; and
	 
	3.1.6	 	the Lender having received all documentation which is required in relation to the Borrower
in order to enable it to comply with the requirements of the Financial Intelligence Centre
Act, 2001.
	 
	3.2	 	The Advance Conditions have been inserted for the benefit of the Lender who will be
entitled, by written notice to the Borrower, to waive or defer fulfilment of one or more of
the said conditions, in the Lender’s sole and absolute discretion. To the extent that the
Lender -
	 
	3.2.1	 	defers fulfilment, those Advance Conditions shall be fulfilled by the deferred due date; or
	 
	3.2.2	 	waives fulfilment, those Advance Conditions will be deemed to have been fulfilled.
	 
	3.3	 	Each of the Parties will use commercially reasonable endeavours and the Parties will
co-operate in good faith to procure the fulfilment of the Advance
















 



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Conditions as soon as reasonably possible after the Signature Date but in any event not
later than the Advance Date.




	3.4	 	If the Advance Conditions are not fulfilled, deferred and/or waived by not later than the
date referred to in clause 3.3, this Agreement may be cancelled in the sole and absolute
discretion of the Lender and the Bridge Loan Facility shall thereafter no longer be available
to be made to the Borrower, without prejudice to any claim for fees, costs or wasted
expenditure incurred or owing to the Lender in terms of clause 30 and any losses or damages
suffered by the Lender or the Borrower pursuant to a breach of the provisions of clause 3.3.
Without limiting clause 3.3, the Lender shall however, by means of a written notification to
the Borrower, be entitled to extend the period for fulfilment (or waiver) of the Advance
Conditions.
	 
	4	 	BRIDGE LOAN FACILITY
	 
	4.1	 	Subject to the terms and conditions of this Agreement, the Lender agrees to make available
to the Borrower, the Bridge Loan Facility which will be released and drawn down by way of a
single cash advance in accordance with the provisions of this Agreement.
	 
	4.2	 	Any amount advanced in terms of the Bridge Loan Facility will be deposited into the
Designated Account.
	 
	5	 	DRAWDOWN
	 
	5.1	 	Subject to the fulfilment or waiver of the Advance Conditions in clause 3 and to the
provisions of clause 4, and subject to there being no Event of Default or Potential Event of
Default, the Lender shall advance the Capital Amount to the Borrower in one lump sum on the
Advance Date.
















 



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	5.2	 	Notwithstanding anything to the contrary contained herein, the Lender shall not be obliged
to make any Advance to the Borrower to the extent that the making of such Advance would
result in the Capital Amount being exceeded.
	 
	6	 	INTEREST
	 
	6.1	 	Interest will, during the Initial Interest Period, be levied and be payable by the Borrower
in respect of the Bridge Loan Facility at the Initial Interest Rate provided that all
Interest payable pursuant to this clause 6, shall -
	 
	6.1.1	 	accrue and be calculated on a daily basis;
	 
	6.1.2	 	be compounded monthly in arrears;
	 
	6.1.3	 	be payable simultaneously with the repayment of the Capital Amount; and
	 
	6.1.4	 	be calculated on the basis of the actual number of days elapsed divided by a 365 (three
hundred and sixty five) day year, whether or not the year is a leap year.
	 
	6.2	 	The Borrower acknowledges that the amounts payable by the Borrower in respect of Interest
will be a function of the Interest Rate and may change with variations to the Interest Rate
from time to time.
	 
	6.3	 	This entire clause 6 is subject to the provisions of clauses 9.3 and 13.2.4.
	 
	7	 	REPAYMENT OF BRIDGE LOAN AND PAYMENT OF INTEREST






Subject to the provisions of clause 8, the Facility Outstandings will be repaid by the
Borrower to the Lender in full on the Repayment Date.













 





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	8	 	EXTENSION OF REPAYMENT DATE
	 
	8.1	 	The Borrower shall, by way of a written Extension Notice (in form and substance
substantially similar to that contained in annexe “A” hereto) delivered to the Lender not
less than 5 (five) business days before the Repayment Date, be entitled to extend repayment
of the Bridge Loan Facility such that the Facility Outstandings will be repaid by the
Borrower in full on the Extended Repayment Date and not the Repayment Date.
	 
	8.2	 	Interest will, during the Extended Interest Period, be levied and be payable by the Borrower
in respect of the Bridge Loan Facility at the Extended Period Interest Rate provided that all
Interest payable pursuant to this clause 8.2, shall -
	 
	8.2.1	 	accrue and be calculated on a daily basis;
	 
	8.2.2	 	be compounded monthly in arrears;
	 
	8.2.3	 	be payable simultaneously with the repayment of the Capital Amount; and
	 
	8.2.4	 	be calculated on the basis of the actual number of days elapsed divided by a 365 (three
hundred and sixty five) day year, whether or not the year is a leap year.
	 
	8.3	 	If the Borrower exercises its right to extend the date for repayment of the Facility
Outstandings as contemplated in clause 8.1, the Facility Outstandings will be repaid by the
Borrower to the Lender in full on the Extended Repayment Date.








	9	 	ALL PAYMENTS
	 
	9.1	 	Subject to the provisions of this Agreement, all payments to be made by the Borrower to the
Lender in terms of this Agreement shall be made in rands,


















 



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	 	 	free of exchange, any other costs, charges or expenses and without any deduction,
set-off or counterclaim whatsoever in accordance with the Lender’s written payment
instructions from time to time.
	 
	9.2	 	All payments hereunder shall be 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 amounts outstanding under the Bridge Loan Facility.
	 
	9.3	 	Without prejudice to the Lender’s right to demand payment of principal or Interest promptly
on the due dates thereof in terms of this Agreement, the Borrower shall immediately upon
demand by the Lender, pay Default Interest on any amount of principal or Interest unpaid on
due date in terms of this Agreement.










	10	 	REPRESENTATIONS AND WARRANTIES
	 
	10.1	 	Each warranty and representation set out in this Agreement shall be a separate warranty and
representation and shall (except as otherwise expressly stated in this Agreement) in no way be
limited or restricted by reference to or inference from the terms of any other warranty or
representation.
	 
	10.2	 	The representations and warranties set out below shall be deemed to be given on the Signature
Date, the Advance Date and on each day during the Term. Insofar as any of the warranties is
promissory or relates to a future event, they shall 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. When
a representation or warranty is repeated it is applied to the circumstances existing at the
time of repetition.
	 
	10.3	 	The Borrower represents and warrants to the Lender that -




















 



Page 21








	10.3.1	 	it is a limited liability public company duly registered in accordance with the laws of
South Africa and has been incorporated and possesses the capacity to sue or be sued in its
own name and has the power to carry on its business as it is now being conducted;
	 
	10.3.2	 	it has the power to own its assets and has, or will have at the time at which those assets
are necessary to carry on its business, good, unencumbered title of ownership to and all
other appropriate rights, licences, authorisations or consents required to use the assets
necessary to carry on its business;
	 
	10.3.3	 	it has the power to enter into and perform the Finance Documents to which it is a party and
it has taken all necessary action to authorise the entry into of this Agreement and the
performance of the transactions contemplated thereby;
	 
	10.3.4	 	the Finance Documents constitute the legal, valid and binding obligations of the Borrower
and are enforceable against the Borrower in accordance with their terms;
	 
	10.3.5	 	the entry into and performance by it of the Finance Documents and the transactions
contemplated therein do not -
	 
	10.3.5.1	 	conflict with any Law to which it is subject;
	 
	10.3.5.2	 	conflict with its constitutional documents and/or its Memorandum and Articles of
Association; or
	 
	10.3.5.3	 	conflict with any agreement or document to which it is a party or which is binding upon it
or any of its assets;

















 



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	10.3.6	 	no Event of Default or Potential Event of Default is outstanding or will result from the
execution of, or the performance of any transaction contemplated by the Finance Documents;
	 
	10.3.7	 	no Material Adverse Effect has occurred in respect of the Borrower;
	 
	10.3.8	 	it has not committed an act of insolvency as defined in the Insolvency Act, no corporate
action or any other steps have been taken, and no proceedings have been instituted against it
for its winding-up, liquidation, judicial management, dissolution, administration or
reorganisation or for the appointment of an administrator, liquidator, judicial manager or
similar officer and no such steps or proceedings have, since the Signature Date hereof, been
taken that have not been disclosed to the Lender within 3 (three) business days of the
Borrower becoming aware thereof;
	 
	10.3.9	 	its assets, fairly valued, exceed its liabilities;
	 
	10.3.10	 	it has obtained and is in compliance with all such material licences, consents, permits,
approvals and other authorities as are prescribed by Law for the conduct of its business in
each jurisdiction in which the business is conducted, and the Borrower is not aware of any
fact or circumstance which may result in the cancellation, withdrawal
or non-renewal of any of
them;
	 
	10.3.11	 	other than as set out in the Financial Statements and/or the Form 20F or as otherwise
disclosed to the Lender in writing as at the Signature Date (if at all), there exists no
Encumbrance and/or security over any of the major assets of the Borrower and it is under no
obligation (other than pursuant to the Finance Documents) to create any such encumbrance;



















 



Page 23





	10.3.12	 	save for the information contained in Form 20F, there is no further information of
whatsoever nature or kind in the possession of the Borrower that has not been disclosed to the
Lender, which would have been material in the decision of the Lender to enter into this
Agreement;
	 
	10.3.13	 	the Financial Statements have been prepared in accordance with GAAP or IFRS, as
applicable, consistently applied and fairly represent its financial condition as at the date
to which they were drawn up, except as disclosed to the contrary in those Financial
Statements; and
	 
	10.3.14	 	under the laws of South Africa, only those creditors whose claims are preferred solely by
statute or by operation of law will rank in priority to the claims of the Lender against the
Borrower under the Finance Documents.










	11	 	POSITIVE UNDERTAKINGS
	 
	11.1	 	The undertakings in clause 11.2 shall remain in full force and effect from the Signature
Date and the Borrower shall comply with each such undertaking for so long as any amount
remains outstanding under this Agreement.
	 
	11.2	 	The Borrower shall -
	 
	11.2.1	 	procure, maintain and comply with all authorisations, consents and approvals necessary in
terms of this Agreement, the Finance Documents or approval from a legislative point of view,
for the duration of this Agreement;
	 
	11.2.2	 	procure, maintain and comply with all Laws and registration obligations applicable to its
business operations for the duration of this Agreement to the extent that non-compliance with
such Laws and/or obligations would result in a Material Adverse Effect;

















 



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	11.2.3	 	promptly notify the Lender in writing, of any material litigation and other material
matters;
	 
	11.2.4	 	forthwith upon becoming aware of the occurrence thereof, notify the Lender of -
	 
	11.2.4.1	 	any Event of Default or Potential Event of Default;
	 
	11.2.4.2	 	any attachment or attempted attachment of any of its material assets;
	 
	11.2.4.3	 	the happening of any event which may reasonably be anticipated will result in a Material
Adverse Effect;
	 
	11.2.4.4	 	details of all facts or circumstances of which the Borrower becomes aware which have or
are likely to have the effect that any of the Finance Documents will no longer be valid and
of full force and effect;
	 
	11.2.5	 	procure that any and all proceeds received by the Borrower, or to which the Borrower
becomes entitled, under and in terms of the Harmony Bond Issue shall forthwith be applied to
reduce the Borrower’s indebtedness to the Lender under this Agreement and for no other
purpose whatsoever until the Facility Outstandings have been repaid in full;
	 
	11.2.6	 	perform all its obligations under the Finance Documents in accordance with their respective
terms;
	 
	11.2.7	 	duly file all tax returns containing information required by law to be contained therein;
	 
	11.2.8	 	pay all Taxes which are due and payable by it by the due date therefor and will pay any
additional Taxes (and any penalties relating thereto) subsequently assessed by the relevant
Taxation authorities (save to the extent that payment of the same is being contested in good
faith);
















 



Page 25








	11.2.9	 	timeously settle in full all its liabilities as and when they fall due for payment; and
	 
	11.2.10	 	ensure that no dividends or distributions are paid by it in the event of a Potential Event
of Default or an Event of Default.









	12	 	NEGATIVE UNDERTAKINGS
	 
	12.1	 	The undertakings in clause 12.2 below shall remain in full force and effect from the
Signature Date, and the Borrower shall comply with each such undertaking for the duration of
the Term.
	 
	12.2	 	The Borrower shall not, save with the prior written consent of the Lender, which consent
will not be unreasonably withheld or delayed, for so long as any amounts remain outstanding
under the Bridge Loan Facility -
	 
	12.2.1	 	permit any material change in the nature of the Borrower’s business;
	 
	12.2.2	 	undertake any additional business that is materially different in nature to its business as
at the Signature Date hereof or cease to carry on its business in a normal and regular manner
or cease to conduct or abandon or suspend any material part of its business;
	 
	12.2.3	 	amend, vary or terminate any Finance Document, or do anything, which might reasonably
prejudice or actually prejudices the Borrower’s ability to repay the Bridge Loan Facility and
Interest thereon;
	 
	12.2.4	 	create or permit to subsist any Encumbrance on the whole or any part of its present or
future assets and income streams other than in terms of a Permitted Encumbrance;
	 
	12.2.5	 	enter into any agreement, arrangement or contract with any entity unless such agreement,
arrangement or contract is entered into on an arms length basis and in the normal course of
business;
















 



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	12.2.6	 	make any distribution to any of its Shareholders or incur any obligation to do so, whether
by the declaration or payment of any dividends or the reduction of any share capital or share
premium, or any other distribution or the acquisition or redemption of its own shares or by
any other means, or discharge, whether by payment, set-off or any other mode of discharge, the
whole or any part of any loans made to it by any of its Shareholders, or pay any interest on
any amount owed by it to any of its Shareholders, at any time during which an Event of Default
or Potential Event of Default has occurred and is continuing or where such distribution,
acquisition, discharge or payment constitutes or would result in an Event of Default or
Potential Event of Default;
	 
	12.2.7	 	make any loans or make any other form of credit available to any other person other than -
	 
	12.2.7.1	 	loans granted to Affiliates of the Borrower, provided that the capital amount of any such
loan, when aggregated with the outstanding capital amounts of all other loans advanced by the
Borrower to its Affiliates, does not exceed R50,000,000 (fifty million rand);
	 
	12.2.7.2	 	trade credit given in the ordinary course of the Borrower’s business;
	 
	12.2.8	 	incur any Financial Indebtedness other than Permitted Indebtedness; and
	 
	12.2.9	 	make any acquisition or disposal of assets other than Permitted Acquisitions and Disposals.








	13	 	DEFAULT
	 
	13.1	 	Each of the following events shall constitute an Event of Default (whether or not caused by
any reason whatsoever outside the control of the Borrower, except to the extent it is caused
by the Lender) -















 



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	13.1.1	 	if the Borrower-
	 
	13.1.1.1	 	fails to pay any amount/s in terms of this Agreement on the due date for payment thereof;
	 
	13.1.1.2	 	fails to repay the Facility Outstandings in full by the Extended Repayment Date, if
applicable;
	 
	13.1.1.3	 	breaches any of the provisions of this Agreement (other than as contemplated in clause
13.1.1.1) and fails to rectify same within 10 (ten) business days of notice in writing from
the Lender calling upon it to do so;
	 
	13.1.1.4	 	fails to pay any Financial Indebtedness in excess of R1,000,000.00 (one million rand)
when due and any such failure continues for more than any applicable period of grace, if any,
or any such Financial Indebtedness becomes prematurely due and payable or is placed on
demand, or any creditor of the Borrower becomes entitled to declare any such Financial
Indebtedness prematurely due and payable or to place it on demand or to realise or claim
under any Encumbrance in respect of such Financial Indebtedness;
	 
	13.1.1.5	 	commits an act which is or would (if committed by a natural person) be an act of
insolvency within the meaning of section 8 of the Insolvency Act or section 344 of the
Companies Act;
	 
	13.1.1.6	 	is, or is deemed for the purposes of any Law, to be unable to pay its debts as they fall
due or admits in writing its inability to pay its debts as they fall due;
	 
	13.1.1.7	 	allows any judgment against it in an amount exceeding R1,000,000.00 (one million rand) to
remain unsatisfied for a period of
















 



Page 28








		 	14 (fourteen) days of it being given, or the Borrower fails to take steps for its
rescission or to note an appeal within that time;
	 
	13.1.1.8	 	takes any procedural step (including petition, proposal or convening a meeting) with a
view to compromising or compromises or attempts to compromise with, or defer payment of any
debt owing by the Borrower to, any of its creditors;
	 
	13.1.1.9	 	convenes a meeting for the purpose of considering any resolution for (or to petition for)
its winding-up or for its administration or any such resolution is passed;
	 
	13.1.1.10	 	is provisionally or finally liquidated, removed from the register of companies or placed
under judicial management, or takes any steps for its voluntary winding-up;
	 
	13.1.2	 	any third party takes any action, steps or proceedings (excluding frivolous or vexatious
actions, steps or proceedings) against the Borrower -
	 
	13.1.2.1	 	for compulsory, provisional or final sequestration, winding-up, liquidation, compromise,
administration order, curatorship, judicial management, dissolution, or administration;
	 
	13.1.2.2	 	for the appointment of a receiver, administrator, trustee, liquidator, judicial manager
or similar officer or of any or all of the Borrower’s assets or revenues;
	 
	13.1.3	 	if the auditors of the Borrower qualify the Financial Statements in any material respect;
	 
	13.1.4	 	a representation, warranty or statement made or repeated in or in connection with the
Finance Documents or in any document delivered by
















 



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	 	 	or on behalf of the Borrower under or in connection with the Finance Documents is
incorrect in any material respect, when made or repeated;
	 
	13.1.5	 	if any material permit, approval, consent or license necessary for the continued business
operations of the Borrower is permanently withdrawn, revoked or cancelled and such
withdrawal, revocation or cancellation has or is reasonably likely to have a Material Adverse
Effect;
	 
	13.1.6	 	any material part of the Borrower’s undertakings, rights, revenues or assets is seized,
nationalised, expropriated, requisitioned or acquired, where such seizure, nationalisation,
expropriation, requisition or acquisition has or is reasonably likely to have a Material
Adverse Effect;
	 
	13.1.7	 	any event or series of events occurs which has or is reasonably likely to have a Material
Adverse Effect;
	 
	13.1.8	 	it becomes unlawful for the Borrower to perform its obligations under the Finance Documents
or the Finance Documents cease to be effective in accordance with their terms or the Borrower
repudiates under the Finance Documents or evidences an intention to repudiate such Finance
Document.
	 
	13.2	 	Forthwith upon the occurrence of an Event of Default and at any time thereafter, if such
event continues, the Lender shall, upon expiry of any applicable notice or grace period, be
entitled (but not obliged), without prejudice to any other rights which the Lender may have,
by notice to the Borrower to -
	 
	13.2.1	 	declare that all (or certain specified) obligations of the Lender in terms of this Agreement
shall be cancelled forthwith, whereupon the same shall be so cancelled; and/or
















 



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	13.2.2	 	declare all amounts outstanding under this Agreement to be immediately due and payable,
irrespective of any terms or conditions otherwise applicable, whereupon the Borrower shall
forthwith repay same; and/or
	 
	13.2.3	 	exercise all or any of its rights in terms of all or any security held by it in respect of
the Borrower’s obligations; and/or
	 
	13.2.4	 	charge Default Interest in terms of clause 9.3; and/or
	 
	13.2.5	 	claim payment of such direct damages in terms hereof or at common law including, costs and
other amounts incurred in consequence of such Event of Default in terms of this Agreement.
	 
	13.3	 	The Borrower will be liable for, and shall pay upon demand, all reasonable out-of-pocket
expenses, including (without limitation) legal expenses (including costs on the de facto
scale as between attorney-and-client), charges and disbursements, incurred by the Lender in
recovering any amount owed to it by the Borrower or otherwise enforcing its rights in terms
of this Agreement.








	14	 	VOLUNTARY PRE-PAYMENT
	 
	14.1	 	The Borrower shall be entitled to voluntarily prepay the Facility Outstandings, at any time
for the duration of this Agreement, provided the Borrower gives the Lender 5 (five) business
day’s prior written notice, subject to the following terms and conditions -
	 
	14.1.1	 	any notice of prepayment shall be substantially in accordance with the Prepayment Advice
attached hereto as annexe “B”;
	 
	14.1.2	 	such notice, once given, shall be irrevocable; and
















 



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	14.1.3	 	any pre-payment that is not equal to the whole of such Facility Outstandings shall be in an
amount equal to R50,000,000.00 (fifty million rand) or any multiple thereof.
	 
	14.2	 	Any pre-payment made by the Borrower in terms of this clause 14, shall not be subject to the
payment of any breakage costs.
	 
	14.3	 	Any amount pre-paid in accordance with the provisions of this clause 14 may not be redrawn.
	 
	15	 	RIGHT OF FIRST REFUSAL
	 
	15.1	 	The Borrower hereby grants the Lender the right of first refusal, in the event that the
Borrower wishes to enter into any cross-currency hedging transaction in respect of the
Harmony Note Issue, to match the structuring, pricing, terms and/or conditions of any such
hedging transaction.
	 
	15.2	 	The Borrower’s offer to the Lender shall -
	 
	15.2.1	 	be in writing and be delivered to the Lender at its domicilium address set out in clause 25
below;
	 
	15.2.2	 	be irrevocable and shall remain open for acceptance by the Lender for a period of 10 (ten)
business days after receipt thereof.







	16	 	PROOF OF INDEBTEDNESS
	 
	 	 	A certificate under the hand of any director or manager of the Lender (whose appointment as
such it shall not be necessary to prove), shall (in the absence of manifest error)
constitute prima facie proof of any amount (whether capital or Interest or other) payable
by the Borrower to the Lender in terms hereof and the fact that the same is due and payable
for all purposes and shall be sufficient proof of the contents thereof for the purposes of
provisional sentence


















 



Page 32






	 	 	or summary judgement against the Borrower in any competent court and be treated as a liquid
document for such purpose.
	 
	17	 	FEES
	 
	17.1	 	The Borrower shall pay to the Lender a non-refundable Arranging Fee equal to 0.25% (zero
point two five percent) of the Capital Amount plus VAT (if applicable). The said fee will be
due on the Signature Date and payable by the Borrower to the Lender in full on the Advance
Date.
	 
	17.2	 	In the event that the Arranging Fee remains unpaid on the Advance Date, such amount will be
disbursed to the Lender from to the Bridge Loan Facility and shall be deemed to have been
advanced to the Borrower by the Lender on the Advance Date but withheld from the Advance in
settlement of the said fee.






	18	 	CHANGE IN CIRCUMSTANCES
	 
	18.1	 	If by reason of -
	 
	18.1.1	 	any Change in Law; or
	 
	18.1.2	 	any change in banking practice required by any monetary or fiscal authority, applicable to
the Lender, which is generally complied with by banks in South Africa; or
	 
	18.1.3	 	a requirement or a request (which is generally complied with by banks in South Africa) by
any statutory or monetary authority, to pay Taxes or other amounts whatsoever or to maintain
special deposits or reserve assets;
	 
	 	 	the-
















 



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	18.1.4	 	cost to the Lender of making or maintaining the Bridge Loan Facility is increased or any
amounts received or receivable by the Lender under this Agreement is reduced; or
	 
	18.1.5	 	Lender’s rate of return on its capital is reduced by reason only of a change in the manner
in which it is required to allocate capital resources to its obligations under this Bridge
Loan Facility; or
	 
	18.1.6	 	Lender is required to make a payment or forego the return on or calculated by reference to
any amount received or receivable by it under this Bridge Loan Facility,
	 
	 	 	then, within 30 (thirty) days of a written demand by the Lender, the Borrower shall pay
to the Lender an additional amount as is sufficient to compensate the Lender for such
increased cost or reduction, payment or foregone return.
	 
	18.2	 	If by reason of -
	 
	18.2.1	 	any Change in Law; or
	 
	18.2.2	 	any change in banking practice required by any monetary or fiscal authority, which is
binding on the Lender,
	 
	 	 	the cost to the Lender of making or maintaining the Bridge Loan Facility is reduced,
then, the Lender shall -
	 
	18.2.3	 	forthwith after the payment in full of the Facility Outstandings, remit the after tax
amount of such Reduced Cost Benefit to the Borrower, together with an after tax amount equal
to the interest that would have accrued thereon had such amount been placed on cash deposit
with the principal bankers of the Lender from the date that the Reduced Cost Benefit was
enjoyed to the date of such payment to the Borrower; or

















 



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	18.2.4	 	at the election of the Lender, if the Borrower has not effected payment of the
whole of the Facility Outstandings to the Lender, be entitled to set off the after
tax amount of such Reduced Cost Benefit against the amount of the Facility
Outstandings owing by the Borrower to it at that time, and remit any after tax amount
of such Reduced Cost Benefit remaining after such set off to the Borrower, together
with an after tax amount equal to the interest that would have accrued on such
remaining amount had such remaining amount been placed on cash deposit with the
principal bankers of the Lender from the date that the Reduced Cost Benefit was
enjoyed to the date of such payment to the Lender.
	 
	18.3	 	The Lender shall deliver a certificate setting out of the amount of such Increased Costs
incurred by or Reduced Cost Benefit accruing to the Lender to the Borrower. The aforesaid
certificate shall be executed by any manager of the Lender (whose authority and appointment
need not be proved) and shall, in the absence of manifest error, be prima facie proof of the
amount of the Increased Costs or the Reduced Cost Benefit, as the case may be, set out
therein, in accordance with the provisions of clause 14, mutatis mutandis.







	19	 	GROSS UP
	 
	 	 	Save where otherwise specifically provided herein, all payments by the Borrower under this
Agreement shall be made in rands and free and clear of any Taxes, except to the extent that
the Borrower is required by Law to make payment subject thereto. If any Tax or amount in
respect thereof must be deducted, or any other deductions must be made from any amounts
payable or paid by the Borrower under this Agreement, the Borrower shall pay such additional
amounts as may be necessary to ensure that the Lender receives a net amount equal to the full
amount which it would have received had payment not been made subject to such Tax or other
deduction.























 




Page 35





	20	 	TAX INDEMNITY
	 
	20.1	 	Subject to the provisions of clause 20.2, the Borrower hereby indemnifies the Lender against
any direct loss or liability which, in the reasonable discretion of the Lender (as evidenced
by the auditors for the time being of the Lender), will be suffered or has been suffered for
or on account of the application of Taxes in relation to any payment received or receivable
(or any payment deemed to be received or receivable) under the Finance Documents.
	 
	20.2	 	Clause 20.1 does not apply to any Taxes assessed on the Lender under Law, if those Taxes are
imposed on or calculated by reference to the net income, profits or gains actually received
by or accrued to the Lender. However, any payment deemed to be received or receivable,
including any amount treated as income but not actually received by the Lender (such as an
amount deducted or withheld for or on account of tax) will not be treated as net income
received or receivable for this purpose.
	 
	20.3	 	Notwithstanding the provisions of this clause if any Tax or amounts in respect of any Tax
(other than income tax or capital gains tax) must be deducted, or any withholdings or other
deductions must be made from any amounts payable or paid by the Borrower under the Bridge Loan
Facility, the Borrower, shall pay such additional amounts as may be necessary to ensure that
the Lender receives a net amount equal to the full amount which it would have received had
payment not been made subject to Tax or other withholding or deduction.
	 
	21	 	ILLEGALITY
	 
	 	 	If at any time after the Signature Date it is or becomes unlawful in any jurisdiction, or
contrary to any lawful and binding request from or requirement of the South African Reserve
Bank or other South African governmental
















 






Page 36








	 	 	department or authority, for the Lender to perform any of its obligations under this
Agreement, then the Lender shall promptly after becoming aware of the same notify the
Borrower by way of a certificate signed by a director or manager of the Lender (or a person
of an equivalent or higher level of authority), whose appointment or designation it will not
be necessary to prove, to that effect and if the Lender so requires, the Borrower shall by
not later than such date as the Lender shall have specified (such date not being earlier
than 3 (three) months after the date of such certificate or such shorter period as may be
required by law) repay the relevant part of Bridge Loan Facility advanced to the Borrower by
the Lender in full together with any and all other amounts then due to the Lender under or
in terms of this Agreement.
	 
	22	 	AUTOMATIC RIGHT OF SET-OFF
	 
	 	 	All payments made by the Borrower under this Agreement must be made without set-off or
counterclaim.
	 
	23	 	RENUNCIATION OF BENEFITS
	 
	 	 	All the benefits from the legal exceptions of excussion, division, no value received, no
cause of debt, error in calculation and revision of accounts are expressly renounced by the
Borrower. The Borrower acknowledges that it is fully acquainted with the meaning and effect
of such renunciations.
	 
	24	 	BENEFIT OF THE AGREEMENT
	 
	 	 	This Agreement will be also for the benefit of and be binding upon the successors in title
and permitted assigns of the Parties or any of them.
	 
	25	 	NOTICES AND DOMICILIA
	 
	25.1	 	The Parties choose as their respective domicilia citandi et executandi for the purpose
of legal proceedings and for the purposes of giving or sending















 




Page 37









	 	 	any notice provided for or necessary in terms of this Agreement, the following addresses
and telefax numbers for each of them -





	 	 	 	 	 	 	 
	 	 	Name	 	Physical Address	 	Telefax
	 

	 	RMB
	 	1 Merchant Place
 Cnr Fredman Drive &
 Rivonia
Road 
Sandton
	 	+27 (0) 11 282 8328







	 	 	Marked for the attention of: Barry Martin





	 	 	 	 	 	 	 
	 	 	Name	 	Physical Address	 	Telefax
	 

	 	Borrower
	 	Block 27

Randfontein Ofice Park 

Cnr Main Reef and ward Avenue 

Randfontein
	 	+27 (0) 11 684 0188







	 	 	Marked for the attention of: The Company Secretary
	 
	25.2	 	provided that a Party may change its domicilium to any other physical address or telefax
number within South Africa by written notice to the other Party.
	 
	25.3	 	All notices to be given in terms of this Agreement will be in writing and will -
	 
	25.3.1	 	if delivered by hand during business hours, be rebuttably presumed to have been received on
the date of delivery. Any notice delivered after business hours or on a day which is not a
business day will be rebuttably presumed to have been received on the following business day;
and
	 
	25.3.2	 	if sent by telefax during business hours, be rebuttably presumed to have been received on
the date of successful transmission of the telefax. Any telefax sent after business hours or
on a day which is not a business day will rebuttably be presumed to have been received on the
following business day.
	 
	25.4	 	Notwithstanding the above, any notice given in writing, and actually received by the Party
to whom the notice is addressed, will be deemed to
















 






Page 38







	 	 	have been properly given and received, notwithstanding that such notice has not been
given in accordance with the provisions of this clause 25.
	 
	26	 	SEVERABILITY
	 
	 	 	Each provision of this Agreement is severable from the other provisions. Should any
provision be found by a Court of competent jurisdiction to be illegal, invalid or
unenforceable for any reason, the Parties will consult with one another in good faith in
order to agree, if possible, an alternative provision in accordance with the intent and
tenor of this Agreement. The remaining provisions of this Agreement shall nevertheless
remain binding and continue with full force and effect.
	 
	27	 	GENERAL
	 
	27.1	 	This Agreement constitutes the whole of the agreement between the Parties relating to the
matters dealt with herein and, save to the extent otherwise provided herein, no undertaking,
representation, term or condition relating to the subject matter of this Agreement not
incorporated in this Agreement will be binding on either of the Parties.
	 
	27.2	 	No variation, addition, deletion, or agreed cancellation will be of any force or effect
unless in writing and signed by or on behalf of the Parties. Failure or delay on the part of
any of the Parties in exercising any right, power or privilege hereunder will not constitute
or be deemed to be a waiver thereof, nor will any single or partial exercise of any right,
power or privilege preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
	 
	27.3	 	This Agreement may be executed in one or more counterparts, each of which will be deemed an
original, and all of which together will constitute















 





Page 39








	 	 	one and the same agreement as at the date of signature of the Party last signing one of
the counterparts.
	 
	28	 	INDEPENDENT ADVICE
	 
	28.1	 	The Borrower acknowledges and agrees that it has not relied in any way upon any information
and/or advice given by the Lender in the preparation, negotiation and/or implementation of
this Agreement and that it has taken all reasonable actions to satisfy itself as to the
consequences of entering into this Agreement.
	 
	28.2	 	The Borrower acknowledges that -
	 
	28.2.1	 	it has been free to secure independent legal and other advice as to the nature and effect
of all the provisions of this Agreement and the other Finance Documents, and that it has
either taken such independent legal and other advice or dispensed with the necessity of doing
so; and
	 
	28.2.2	 	all of the provisions of this Agreement and the other Finance Documents, and the
restrictions herein contained, are fair and reasonable in all the circumstances and are part
of the overall intention of the Parties in connection with this Agreement and the other
Finance Documents.
	 
	29	 	APPLICABLE LAW AND JURISDICTION
	 
	29.1	 	This Agreement will in all respects be governed by and construed under the laws of South
Africa.
	 
	29.2	 	The Parties hereby consent and submit to the non-exclusive jurisdiction of the Witwatersrand
Local Division of the High Court of the Republic of South Africa in any dispute arising from
or in connection with this Agreement. The
















 





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	 	 	Parties agree that any costs awarded will be recoverable in accordance with the High
Court tariff, determined on an attorney-and-own-client scale.
	 
	30	 	COSTS
	 
	30.1	 	Save as may be otherwise provided herein, each of the Parties will bear and pay its own
legal costs of or incidental to the negotiation, drafting, preparation and execution of this
Agreement and any amendment thereof.
	 
	30.2	 	The Borrower agrees and undertakes to reimburse the Lender on demand with any and all
reasonable costs and expenses (including legal costs on the de facto scale as between
attorney-and-client) which the Lender may at any time incur in or about the exercise of any of
its rights against the Borrower in terms of the Finance Documents, including collection
commission, tracing fees, valuation charges, transport costs and other reasonable expenses in
connection therewith.
	 
	30.3	 	If any amount payable to the Lender in terms of this Agreement is stated as being exclusive
of VAT, then the Borrower will in addition to the stated amount pay any VAT thereon to the
Lender, against delivery by the Lender to the Borrower of a valid tax invoice in respect
thereof.
	 
	31	 	SIGNATURE
	 
	 	 	Signed on behalf of the Parties as set out below, each signatory hereto warranting that he or
she has due authority to do so -
















 






Page 41








	 	 	 	 	 
	SIGNED at              
                                                              on                  
                                                   2007.	 	 
	 

	 	For and on behalf of

FIRSTRAND BANK LIMITED (acting 

through its Rand Merchant Bank 

division)	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	Signature:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	Name of Signatory:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Designation of Signatory:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Signature:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name of Signatory:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Designation of Signatory:	 	 
	 
	 	 	 	 
	SIGNED at               
                                                              on
                                                                    2007.	 	 
	 

	 	For and on behalf of

HARMONY GOLD MINING COMPANY 

LIMITED	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	Signature:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name of Signatory:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Designation of Signatory:	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Signature:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name of Signatory:	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Designation of Signatory:	 	 


















 








ANNEXE “A”




EXTENSION NOTICE




From: [Borrower]




To: [Lender]




Dated: [•]




Dear Sirs




SENIOR BRIDGE LOAN FACILITY AGREEMENT DATED [•] 2007 (“SENIOR BRIDGE LOAN FACILITY AGREEMENT”)



We refer to the Senior Bridge Loan Facility Agreement.



Terms defined in the Senior Bridge Loan Facility Agreement have the same meaning in this Extension
Notice.



Please be advised that, in accordance with the provisions of clause 8 of the Senior Bridge Loan
Facility Agreement, we hereby exercise our right to extend the date for repayment of the Facility
Outstandings to the Extended Repayment Date (i.e. 30 September 2007).



We hereby acknowledge that Interest will, during the Extended Interest Period, be calculated at the
Extended Period Interest Rate in accordance with the provisions of clause 8.2 of the Senior Bridge
Loan Facility Agreement.



This Extension Notice is irrevocable.



This Extension Notice is governed by the laws of South Africa.




Yours faithfully




 


Authorised Signatory for the Borrower









 









 








ANNEXE “B”




PREPAYMENT ADVICE




From: [Borrower]




To: [Lender]




Dated: [•]




Dear Sirs




SENIOR BRIDGE LOAN FACILITY AGREEMENT DATED [•] 2007 (“SENIOR BRIDGE LOAN FACILITY AGREEMENT”)



We refer to the Senior Bridge Loan Facility Agreement.



Terms defined in the Senior Bridge Loan Facility Agreement have the same meaning in this Prepayment
Advice unless given a different meaning in this Prepayment Advice.



We hereby advise of a pre-payment under the Bridge Loan Facility on the following terms -




	 	 	 
	Proposed Pre-Payment Date:

	 	[•] (or, if that is not a business day, the next business day)
	 
	 	 
	Amount:

	 	[•]





This Prepayment Advice is irrevocable.



This Prepayment Advice is governed by the laws of South Africa.




Yours faithfully




 

Authorised Signatory for the Borrower