|
¨
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
|
x
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
¨
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
¨
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
|
Title of each class
|
Trading Symbol(s)
|
Name of Each Exchange on Which Registered
|
Ordinary shares, with no par value per share*
|
n/a*
|
New York Stock Exchange*
|
American Depositary Shares (as evidenced by American Depositary Receipts), each representing one ordinary share
|
HMY
|
New York Stock Exchange
|
|
Large accelerated filer x
|
Accelerated filer ¨
|
Non-accelerated filer ¨
|
Emerging growth company ¨
|
US GAAP ¨
|
International Financial Reporting Standards as issued by the International Accounting Standards Board x
|
Other ¨
|
|
|
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|
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|
|
•
|
overall economic and business conditions in South Africa, Papua New Guinea, Australia and elsewhere (including as a result of the coronavirus disease ("COVID-19") pandemic);
|
•
|
estimates of future earnings, and the sensitivity of earnings to gold and other metals prices;
|
•
|
estimates of future gold and other metals production and sales;
|
•
|
estimates of future cash costs;
|
•
|
estimates of future cash flows, and the sensitivity of cash flows to gold and other metals prices;
|
•
|
estimates of provision for silicosis settlement and the spread of other contagious diseases, such as COVID-19;
|
•
|
estimates of future tax liabilities under the Carbon Tax Act (as defined below);
|
•
|
statements regarding future debt repayments;
|
•
|
estimates of future capital expenditures;
|
•
|
the success of our business strategy, exploration and development activities and other initiatives;
|
•
|
future financial position, plans, strategies, objectives, capital expenditures, projected costs and anticipated cost savings and financing plans;
|
•
|
estimates of reserves statements regarding future exploration results and the replacement of reserves;
|
•
|
the ability to achieve anticipated efficiencies and other cost savings in connection with past and future acquisitions, as well as at existing operations;
|
•
|
fluctuations in the market price of gold;
|
•
|
the occurrence of hazards associated with underground and surface gold mining;
|
•
|
the occurrence of labor disruptions related to industrial action or health and safety incidents;
|
•
|
power cost increases as well as power stoppages, fluctuations and usage constraints;
|
•
|
supply chain shortages and increases in the prices of production imports and the availability, terms and deployment of capital;
|
•
|
our ability to hire and retain senior management, sufficiently technically-skilled employees, as well as our ability to achieve sufficient representation of historically disadvantaged persons in management positions;
|
•
|
our ability to comply with requirements that we operate in a sustainable manner and provide benefits to affected communities;
|
•
|
potential liabilities related to occupational health diseases;
|
•
|
changes in government regulation and the political environment, particularly tax and royalties, mining rights, health, safety, environmental regulation and business ownership including any interpretation thereof; court decisions affecting the mining industry, including, without limitation, regarding the interpretation of mining rights;
|
•
|
our ability to protect our information technology and communication systems and the personal data we retain;
|
•
|
risks related to the failure of internal controls;
|
•
|
the outcome of pending or future litigation or regulatory proceedings;
|
•
|
fluctuations in exchange rates and currency devaluations and other macroeconomic monetary policies;
|
•
|
the adequacy of the Group’s insurance coverage;
|
•
|
any further downgrade of South Africa's credit rating; and
|
•
|
socio-economic or political instability in South Africa, Papua New Guinea and other countries in which we operate.
|
|
Fiscal year ended June 30,
|
|||||||||
|
2020
|
2019
|
2018
|
2017
|
2016
|
|||||
|
(Rand in millions, except per share amounts, cash costs per kilogram and ounce and all-in sustaining costs per kilogram and ounce)
|
|||||||||
Income Statement Data
|
|
|
|
|
|
|||||
Revenue
|
29,245
|
|
26,912
|
|
20,452
|
|
19,494
|
|
18,667
|
|
(Impairment)/reversal of impairment of assets
|
—
|
|
(3,898
|
)
|
(5,336
|
)
|
(1,718
|
)
|
43
|
|
Operating profit/(loss)
|
(358
|
)
|
(2,538
|
)
|
(4,660
|
)
|
(944
|
)
|
1,592
|
|
Gain on bargain purchase
|
—
|
|
—
|
|
—
|
|
848
|
|
—
|
|
Profit/(loss) from associates
|
94
|
|
59
|
|
38
|
|
(22
|
)
|
7
|
|
Profit/(loss) before taxation
|
(595
|
)
|
(2,746
|
)
|
(4,707
|
)
|
(148
|
)
|
1,581
|
|
Taxation
|
(255
|
)
|
139
|
|
234
|
|
510
|
|
(632
|
)
|
Net profit/(loss)
|
(850
|
)
|
(2,607
|
)
|
(4,473
|
)
|
362
|
|
949
|
|
Basic earnings/(loss) per share (SA cents)
|
(164
|
)
|
(498
|
)
|
(1,003
|
)
|
82
|
|
218
|
|
Diluted earnings/(loss) per share (SA cents)
|
(166
|
)
|
(500
|
)
|
(1,004
|
)
|
79
|
|
213
|
|
Weighted average number of shares used in the computation of basic earnings/(loss) per share
|
535,336,337
|
|
523,808,934
|
|
445,896,346
|
|
438,443,540
|
|
435,738,577
|
|
Weighted average number of shares used in the computation of diluted earnings/(loss) per share
|
547,193,989
|
|
533,345,964
|
|
465,319,405
|
|
459,220,318
|
|
446,398,380
|
|
Dividends per share (SA cents)1
|
—
|
|
—
|
|
35
|
|
100
|
|
—
|
|
Other Financial Data
|
|
|
|
|
|
|||||
Total cash costs per kilogram of gold (R/kg)2
|
553,513
|
|
439,722
|
|
421,260
|
|
436,917
|
|
392,026
|
|
Total cash costs per ounce of gold ($/oz)2
|
1,099
|
|
965
|
|
1,018
|
|
1,000
|
|
841
|
|
All-in sustaining costs per kilogram of gold (R/kg)2
|
651,356
|
|
550,005
|
|
508,970
|
|
516,687
|
|
467,611
|
|
All-in sustaining costs per ounce of gold ($/oz)2
|
1,293
|
|
1,207
|
|
1,231
|
|
1,182
|
|
1,003
|
|
Balance Sheet Data
|
|
|
|
|
|
|||||
Assets
|
|
|
|
|
|
|||||
Property, plant and equipment
|
29,186
|
|
27,749
|
|
30,969
|
|
30,044
|
|
29,919
|
|
Total assets
|
44,692
|
|
36,736
|
|
39,521
|
|
38,883
|
|
37,030
|
|
Net assets
|
23,375
|
|
22,614
|
|
25,382
|
|
29,291
|
|
28,179
|
|
Equity and liabilities
|
|
|
|
|
|
|||||
Share capital
|
32,937
|
|
29,551
|
|
29,340
|
|
28,336
|
|
28,336
|
|
Total equity
|
23,375
|
|
22,614
|
|
25,382
|
|
29,291
|
|
28,179
|
|
Borrowings (current and non-current)
|
7,718
|
|
5,915
|
|
5,614
|
|
2,133
|
|
2,339
|
|
Other liabilities
|
13,599
|
|
8,207
|
|
8,525
|
|
7,459
|
|
6,512
|
|
Total equity and liabilities
|
44,692
|
|
36,736
|
|
39,521
|
|
38,883
|
|
37,030
|
|
1
|
Dividends per share relates to the dividends recorded and paid during the fiscal year.
|
2
|
Cash costs per ounce and per kilogram and all-in sustaining costs per ounce and per kilogram are non-GAAP measures. Cash costs per ounce/kilogram and all-in sustaining cost per ounce/kilogram have been calculated on a consistent basis for all periods presented. Changes in cash costs per ounce/kilogram and all-in sustaining costs per ounce/kilogram are affected by operational performance, as well as changes in the currency exchange rate between the Rand and the US dollar for the US$/ounce measures. Because cash cost per ounce/kilogram and all-in sustaining costs per ounce/kilogram are non-GAAP measures, these measures should therefore not be considered by investors in isolation or as an alternative to production costs, cost of sales, or any other measure of financial performance calculated in accordance with IFRS. The calculation of cash costs, cash costs per ounce and per kilogram, all-in sustaining costs and all-in sustaining costs per ounce and per kilogram may vary from company to company and may not be comparable to other similarly titled measures of other companies. For further information, see Item 5:“Operating and Financial Review and Prospects-Costs-Reconciliation of Non-GAAP measures”.
|
•
|
demand for gold for industrial uses, jewelry and investment;
|
•
|
international or regional political and economic events and trends;
|
•
|
strength or weakness of the US dollar (the currency in which gold prices generally are quoted) and of other currencies;
|
•
|
monetary policies announced or implemented by central banks, including the US Federal Reserve;
|
•
|
financial market expectations on the rate of inflation;
|
•
|
changes in the supply of gold from production, divestment, scrap and hedging;
|
•
|
interest rates;
|
•
|
speculative activities;
|
•
|
gold hedging or de-hedging by gold producers;
|
•
|
actual or expected purchases and sales of gold bullion held by central banks or other large gold bullion holders or dealers; and
|
•
|
production and cost levels for gold in major gold-producing nations, such as South Africa, China, the United States and Australia.
|
•
|
key suppliers or contractors becoming insolvent, resulting in a break-down in the supply chain;
|
•
|
a reduction in the availability of credit which may make it more difficult for Harmony to obtain financing for its operations and capital expenditures or make that financing more costly;
|
•
|
exposure to the liquidity and insolvency risks of Harmony’s lenders and customers; or
|
•
|
the availability of credit being reduced-this may make it more difficult for Harmony to obtain financing for its operations and capital expenditure or make financing more expensive.
|
•
|
future cash costs;
|
•
|
future commodity prices;
|
•
|
future currency exchange rates; and
|
•
|
metallurgical and mining recovery rates.
|
•
|
locating orebodies;
|
•
|
geological nature of the orebodies;
|
•
|
identifying the metallurgical properties of orebodies;
|
•
|
estimating the economic feasibility of mining orebodies;
|
•
|
developing appropriate metallurgical processes;
|
•
|
obtaining necessary governmental permits; and
|
•
|
constructing mining and processing facilities at any site chosen for mining.
|
•
|
future gold and other metal prices;
|
•
|
anticipated tonnage, grades and metallurgical characteristics of ore to be mined and processed;
|
•
|
anticipated recovery rates of gold and other metals from the ore; and
|
•
|
anticipated total costs of the project, including capital expenditure and cash costs.
|
•
|
availability and timing of necessary environmental and governmental permits;
|
•
|
timing and cost of constructing mining and processing facilities, which can be considerable;
|
•
|
availability and cost of skilled labor, power, water, fuel, mining equipment and other materials;
|
•
|
accessibility of transportation and other infrastructure, particularly in remote locations;
|
•
|
availability and cost of smelting and refining arrangements;
|
•
|
availability of funds to finance construction and development activities; and
|
•
|
spot and expected future commodity prices of metals including gold, silver, copper, uranium and molybdenum.
|
•
|
our ability to identify appropriate assets for acquisition and/or to negotiate an acquisition or combination on favorable terms;
|
•
|
obtaining the financing necessary to complete future acquisitions;
|
•
|
difficulties in assimilating the operations of the acquired business;
|
•
|
the changing regulatory environment as it relates to the Mining Charter (as defined below) and the general policy uncertainty in South Africa;
|
•
|
difficulties in maintaining our financial and strategic focus while integrating the acquired business;
|
•
|
problems in implementing uniform quality, standards, controls, procedures and policies;
|
•
|
management capacity, and skills to supplement that capacity, to integrate new assets and operations;
|
•
|
increasing pressures on existing management to oversee an expanding company; and
|
•
|
to the extent we acquire mining operations or enter into another business combination transaction outside South Africa, Australia or PNG, encountering difficulties relating to operating in countries in which we have not previously operated.
|
•
|
rock bursts;
|
•
|
seismic events;
|
•
|
underground fires;
|
•
|
cave-ins or fall-of-ground;
|
•
|
discharges of gases and toxic chemicals;
|
•
|
release of radioactive hazards;
|
•
|
flooding;
|
•
|
mining of pillars (integrity of shaft support structures may be compromised and cause increased seismicity);
|
•
|
processing plant fire and explosion;
|
•
|
critical equipment failures;
|
•
|
accidents and fatalities; and
|
•
|
other conditions resulting from drilling, blasting and the removal and processing of material from a deep-level mine.
|
•
|
flooding of the open-pit;
|
•
|
collapse of open-pit walls or slope failures;
|
•
|
processing plant fire and explosion;
|
•
|
accidents associated with operating large open-pit and rock transportation equipment;
|
•
|
accidents associated with preparing and igniting of large-scale open-pit blasting operations; and
|
•
|
major equipment failures.
|
•
|
accidents associated with operating a waste dump and rock transportation;
|
•
|
production disruptions caused by natural phenomena, such as floods and droughts and weather conditions, potentially exacerbated by climate change;
|
•
|
dam, wall or slope failures; and
|
•
|
contamination of ground or surface water.
|
•
|
limiting its ability to access the capital markets;
|
•
|
hindering its flexibility to plan for or react to changing market, industry or economic conditions;
|
•
|
limiting the amount of cash flow available for future operations, acquisitions, dividends, or other uses, making it more vulnerable to economic or industry downturns, including interest rate increases;
|
•
|
increasing the risk that it will need to sell assets, possibly on unfavorable terms, to meet payment obligations; or
|
•
|
increasing the risk that it may not meet the financial covenants contained in its debt agreements or timely make all required debt payments.
|
•
|
Mining right applicants must “meaningfully consult” with landowners, lawful occupiers and interested and affected parties in accordance with the procedures contemplated under the Environmental Impact Assessment Regulations, 2014 (the "EIA Regulations”). The office of the Regional Manager is permitted to participate as an observer in these processes.
|
•
|
Mining right holders must, pursuant to their social and labor plans ("SLPs"), contribute to the socio-economic development in the areas in which they operate and labor sending areas (i.e. a local municipality from which a majority of mineworkers are from time to time permanently resident). This requirement may impose obligations on mining right holder to effect measures in communities that are located far away from the mine and / or could give rise to some social issues.
|
•
|
Although most of the provisions regulating environmental matters have been deleted from the Amended Regulations, those sections dealing with mine closure have been retained but have been amended to state that mine closure must be regulated in terms of the NEMA, the EIA Regulations and the Financial Provision Regulations, 2015. It is anticipated that the Financial Provision Regulations, 2015 will be replaced by a revised regulations following further engagement with the mining industry.
|
•
|
The appeal process in the MPRDA Regulations has been replaced with a more comprehensive procedure that includes specific time periods within which appellants, respondents and the competent authority must submit appeals, responses or consider appeals (as the case may be). Although there is no guarantee that the parties will comply with these time periods, the time periods intend to hold the parties accountable and to ensure that appeals are resolved in a timely manner.
|
•
|
allowance for fossil fuel combustion;
|
•
|
allowance for industrial process emissions;
|
•
|
allowance in respect of fugitive emissions;
|
•
|
a trade exposure allowance;
|
•
|
a performance allowance;
|
•
|
a carbon budget allowance; and
|
•
|
an offset allowance.
|
•
|
the sub-sector GHG emissions intensity benchmark required in order to calculate the performance allowance;
|
•
|
the manner in which the trade exposure allowance must be determined; and
|
•
|
carbon offsets.
|
•
|
facilitating concurrent rehabilitation;
|
•
|
re-purposing infrastructure; and
|
•
|
accelerated mine closure rehabilitation where operations have reached the end of its geological life.
|
•
|
the court that pronounced the judgment had jurisdiction to entertain the case according to the principles recognized by South African law with reference to the jurisdiction of foreign courts;
|
•
|
the judgment is final and conclusive;
|
•
|
the judgment has not lapsed;
|
•
|
the recognition and enforcement of the judgment by South African courts would not be contrary to public policy, including observance of the rules of natural justice which require that the documents initiating the United States proceeding were properly served on the defendant and that the defendant was given the right to be heard and represented by counsel in a free and fair trial before an impartial tribunal;
|
•
|
the judgment does not involve the enforcement of a penal or revenue law; and
|
•
|
the enforcement of the judgment is not otherwise precluded by the provisions of the Protection of Business Act 99 of 1978, as amended, of the Republic of South Africa.
|
•
|
“-About this report” on page 4;
|
•
|
“-Corporate profile” on page 6;
|
•
|
“-Business model - how we create value” on page 8;
|
•
|
“-Delivering on our strategy” on page 11;
|
•
|
“-Our business context” on page 25;
|
•
|
“-Delivering profitable ounces - Operational performance” on pages 72 to 103; and
|
•
|
“-Delivering profitable ounces - Exploration and projects” on pages 104 to 107;
|
•
|
On July 2, 2020 a payment of US$20 million (R340 million) was made on the US$400 million syndicated term loan and revolving credit facility.
|
•
|
On July 6, 2020 a payment of R300 million was made on the R2 billion four-year syndicated term loan and revolving facility.
|
•
|
On July 6, 2020 Harmony canceled the US$200 million bridge loan facility it had entered into with a syndicate of lenders on June 16, 2020. No draw-down had been made on the facility at the time of its cancellation.
|
•
|
On July 8, 2020 a payment of US$20 million (R339 million) was made on the US$400 million syndicated term loan and revolving credit facility.
|
•
|
During July 2020, the initial three year term of the US$400 million syndicated term loan and revolving credit facility was extended by one year.
|
•
|
On September 14, 2020, the last condition precedent for the Mponeng Acquisition was fulfilled and closing of the Mponeng Acquisition occurred with effect on October 1, 2020.
|
•
|
On October 6, 2020 a payment of R600 million was made on the R2 billion four-year syndicated term loan and revolving facility.
|
•
|
On October 8, 2020 a payment of US$30 million or R497 million was made on the US$400 million syndicated term loan and revolving facility.
|
•
|
“-About this report” on page 4;
|
•
|
"-Business model - how we create value" on page 8;
|
•
|
"-Delivering on our strategy" on page 11;
|
•
|
"-Our business context" on page 25;
|
•
|
"-Stakeholder engagement and material issues" on page 31;
|
•
|
“-Ensuring stability, employee safety and well-being - Safety and health” on pages 41 to 58;
|
•
|
“-Ensuring stability, employee safety and well-being - Employee relations” on pages 58 to 71;
|
•
|
“-Managing our Social and Environmental Stewardship- Environmental management and stewardship” on pages 121 to 138;
|
•
|
“-Delivering profitable ounces - Operational performance” on pages 72 to 103; and
|
•
|
“-Delivering profitable ounces - Exploration and projects” on pages 104 to 107;
|
|
Capital expenditure budgeted for fiscal 2021
|
|
|
(R’million)
|
|
South Africa
|
|
|
Kusasalethu
|
262
|
|
Doornkop
|
476
|
|
Tshepong operations
|
1,174
|
|
Moab Khotsong
|
746
|
|
Masimong
|
41
|
|
Target 1
|
443
|
|
Bambanani
|
72
|
|
Joel
|
178
|
|
Unisel
|
—
|
|
Other - surface
|
235
|
|
International
|
|
|
Hidden Valley1
|
1,376
|
|
Total operational capital expenditure
|
5,003
|
|
Wafi-Golpu
|
50
|
|
Other international
|
4
|
|
Total capital expenditure
|
5,057
|
|
•
|
normal depletion of 1.3 million ounces; and
|
•
|
a net increase of 0.04 million ounces in reserves.
|
•
|
a gold price of US$1,350per ounce;
|
•
|
an exchange rate of R14.51per US dollar;
|
•
|
the above parameters resulting in a gold price of R630,000/kg for the South African assets;
|
•
|
the Hidden Valley operation and Wafi-Golpu project used prices of US$1,350/oz gold (“Au”), US$17.00/oz silver (“Ag”), US$10.00/lb molybdenum (“Mo”) and US$3.00/lb copper (“Cu”) at an exchange rate of US$0.72 per A$;
|
•
|
gold equivalent ounces are calculated assuming a US$1,350/oz Au, US$ 3.00/lb Cu and US$17.00/oz Ag with 100% recovery for all metals. These assumptions are based on those used in the 2016 feasibility study; and
|
•
|
“gold equivalent” is computed as the value of the Company’s gold, silver and copper from all mineral resources/reserves classifications divided by the price of gold. All calculations are done using metal prices as stipulated.
|
•
|
the database of measured and indicated resource blocks (per operation);
|
•
|
an assumed gold price which, for this mineral reserve statement, was taken as R630,000 per kilogram (gold price of US$1,350 per ounce and an exchange rate of R14.51 per US dollar);
|
•
|
planned production rates;
|
•
|
the mine recovery factor which is equivalent to the mine call factor (“MCF”) multiplied by the plant recovery factor; and
|
•
|
planned cash costs (cost per tonne).
|
|
|
Mineral Reserves statement (Metric) as at June 30, 2020
|
|||||||||||||||||
Operations Gold
|
|
PROVED RESERVES
|
PROBABLE RESERVES
|
TOTAL RESERVES
|
|||||||||||||||
|
|
Tonnes
|
Grade
|
Gold1
|
Tonnes
|
Grade
|
Gold1
|
Tonnes
|
Grade
|
Gold1
|
|||||||||
|
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
|||||||||
South Africa Underground
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Bambanani
|
|
0.6
|
|
10.99
|
|
6
|
|
—
|
|
—
|
|
—
|
|
0.6
|
|
10.99
|
|
6
|
|
Joel
|
|
2.9
|
|
4.85
|
|
14
|
|
1.4
|
|
4.68
|
|
7
|
|
4.3
|
|
4.80
|
|
21
|
|
Masimong
|
|
0.8
|
|
4.26
|
|
3
|
|
0.0
|
|
2.95
|
|
0
|
|
0.8
|
|
4.23
|
|
3
|
|
Unisel
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Target 1
|
|
3.3
|
|
4.31
|
|
14
|
|
1.9
|
|
4.23
|
|
8
|
|
5.2
|
|
4.28
|
|
22
|
|
Tshepong Operations
|
|
22.2
|
|
5.87
|
|
130
|
|
4.5
|
|
5.48
|
|
25
|
|
26.7
|
|
5.80
|
|
155
|
|
Doornkop
|
|
5.2
|
|
5.33
|
|
28
|
|
4.6
|
|
5.03
|
|
23
|
|
9.8
|
|
5.19
|
|
51
|
|
Kusasalethu
|
|
1.8
|
|
6.92
|
|
13
|
|
1.3
|
|
7.68
|
|
10
|
|
3.1
|
|
7.24
|
|
23
|
|
Moab Khotsong
|
|
3.1
|
|
7.93
|
|
25
|
|
3.3
|
|
8.57
|
|
28
|
|
6.4
|
|
8.26
|
|
53
|
|
Total South Africa Underground
|
|
39.9
|
|
5.85
|
|
233
|
|
17.0
|
|
5.92
|
|
101
|
|
56.9
|
|
5.88
|
|
334
|
|
|
|
Mineral Reserves statement (Metric) as at June 30, 2020
|
|||||||||||||||||
Operations Gold
|
|
PROVED RESERVES
|
PROBABLE RESERVES
|
TOTAL RESERVES
|
|||||||||||||||
|
|
Tons
|
|
Grade
|
|
Gold1
|
|
Tons
|
|
Grade
|
|
Gold1
|
|
Tons
|
|
Grade
|
|
Gold1
|
|
|
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
|||||||||
South Africa Surface
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Kalgold
|
|
6.7
|
|
0.93
|
|
6
|
|
13.2
|
|
1.14
|
|
15
|
|
19.9
|
|
1.07
|
|
21
|
|
Free State Surface-Phoenix
|
|
48.7
|
|
0.28
|
|
14
|
|
—
|
|
—
|
|
—
|
|
48.7
|
|
0.28
|
|
14
|
|
St Helena
|
|
108.6
|
|
0.27
|
|
29
|
|
—
|
|
—
|
|
—
|
|
108.6
|
|
0.27
|
|
29
|
|
Central Plant
|
|
—
|
|
—
|
|
—
|
|
55.4
|
|
0.27
|
|
15
|
|
55.4
|
|
0.27
|
|
15
|
|
WRD and Tailings
|
|
—
|
|
—
|
|
—
|
|
568.5
|
|
0.23
|
|
128
|
|
568.5
|
|
0.23
|
|
128
|
|
Total South Africa Surface
|
|
164.0
|
|
0.30
|
|
49
|
|
637.1
|
|
0.25
|
|
158
|
|
801.1
|
|
0.26
|
|
207
|
|
Total South Africa
|
|
203.9
|
|
|
282
|
|
654.1
|
|
|
259
|
|
858.0
|
|
|
541
|
|
|||
Papua New Guinea2
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Hidden Valley
|
|
2.3
|
|
1.32
|
|
3
|
|
14.2
|
|
1.61
|
|
23
|
|
16.5
|
|
1.57
|
|
26
|
|
Hamata
|
|
0.0
|
|
2.64
|
|
0
|
|
0.3
|
|
1.65
|
|
0
|
|
0.3
|
|
1.65
|
|
0
|
|
Golpu
|
|
—
|
|
—
|
|
—
|
|
200.0
|
|
0.86
|
|
171
|
|
200.0
|
|
0.86
|
|
171
|
|
Total Papua New Guinea
|
|
2.3
|
|
1.32
|
|
3
|
|
214.5
|
|
0.91
|
|
194
|
|
216.8
|
|
0.91
|
|
197
|
|
Total
|
|
206.2
|
|
|
285
|
|
868.6
|
|
|
453
|
|
1,074.8
|
|
|
738
|
|
1
|
Metal figures are fully inclusive of all mining dilutions and gold losses, and are reported as mill delivered tons and head grades. Metallurgical recovery factors have not been applied to the reserve figures.
|
2
|
Represents Harmony’s attributable interest of 50%.
|
Silver
|
|
Proved reserves
|
Probable reserves
|
Total reserves
|
|||
|
|
Tonnes
|
Gold
Equivalents
|
Tonnes
|
Gold
Equivalents
|
Tonnes
|
Gold
Equivalents
|
|
|
(millions)
|
(kg)1 (000)
|
(millions)
|
(kg)1 (000)
|
(millions)
|
(kg)1 (000)
|
Hidden Valley
|
|
2.3
|
1
|
14.2
|
6
|
16.5
|
7
|
Copper
|
|
Proved reserves
|
Probable reserves
|
Total reserves
|
|||
|
|
Tonnes
|
Gold
Equivalents
|
Tonnes
|
Gold
Equivalents
|
Tonnes
|
Gold
Equivalents
|
|
|
(millions)
|
(kg)1 (000)
|
(millions)
|
(kg)1 (000)
|
(millions)
|
(kg)1 (000)
|
Golpu
|
|
—
|
—
|
200.0
|
390
|
200.0
|
390
|
Total Gold Equivalents
|
|
2.3
|
1
|
214.2
|
396
|
216.5
|
397
|
Total Harmony including gold equivalents
|
|
206.2
|
286
|
868.6
|
849
|
1,074.8
|
1,135
|
Silver
|
|
Proved Reserves
|
Probable Reserves
|
Total Reserves
|
|||||||||||||||
|
|
Tonnes
|
Grade
|
Gold1
|
Tonnes
|
Grade
|
Gold1
|
Tonnes
|
Grade
|
Gold1
|
|||||||||
|
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
(millions)
|
(g/t)
|
(000 kg)
|
|||||||||
Hidden Valley
|
|
2.3
|
|
27.37
|
|
63
|
|
14.2
|
|
24.83
|
|
352
|
|
16.5
|
|
25.18
|
|
415
|
|
|
|
Tonnes
|
Grade
|
Cu1
|
Tonnes
|
Grade
|
Cu1
|
Tonnes
|
Grade
|
Cu1
|
||||||
Copper
|
|
(millions)
|
(%)
|
(000 t)
|
(millions)
|
(%)
|
(000 t)
|
(millions)
|
(%)
|
(000 t)
|
||||||
Golpu2
|
|
—
|
|
—
|
—
|
|
200.0
|
|
1.23
|
2,450
|
|
200.0
|
|
1.23
|
2,450
|
|
|
|
Tonnes
|
Grade
|
U3082
|
Tonnes
|
Grade
|
U3082
|
Tonnes
|
Grade
|
U3082
|
||||||
Uranium
|
|
(millions)
|
(kg/t)
|
(Mkg)
|
(millions)
|
(kg/t)
|
(Mkg)
|
(millions)
|
(kg/t)
|
(Mkg)
|
||||||
Moab Khotsong Underground
|
|
—
|
|
—
|
—
|
|
6.5
|
|
0.23
|
1
|
|
6.5
|
|
0.23
|
1
|
|
1
|
Metal figures are fully inclusive of all mining dilutions and gold losses, and are reported as mill delivered tons and head grades. Metallurgical recovery factors have not been applied to the reserve figures.
|
2
|
Represents Harmony’s attributable interest of 50%.
|
Operations gold
|
|
Underground Operations
|
Surface and Massive Mining
|
||||||
|
|
Cut-off grade
|
|
Cut-off cost
|
|
Cut-off grade
|
|
Cut-off cost
|
|
|
|
(cmg/t)
|
|
(R/Tonne)
|
|
(g/t)
|
|
(R/Tonne)
|
|
South Africa Underground
|
|
|
|
|
|
||||
Bambanani
|
|
2,303
|
|
5,047
|
|
—
|
|
—
|
|
Joel
|
|
898
|
|
2,500
|
|
—
|
|
—
|
|
Masimong
|
|
1,021
|
|
2,309
|
|
—
|
|
—
|
|
Phakisa
|
|
790
|
|
3,114
|
|
—
|
|
—
|
|
Target 1
|
|
—
|
|
—
|
|
3.80
|
|
2,250
|
|
Tshepong
|
|
650
|
|
2,826
|
|
—
|
|
—
|
|
Unisel
|
|
1,163
|
|
2,483
|
|
—
|
|
—
|
|
Doornkop
|
|
800
|
|
2,408
|
|
—
|
|
—
|
|
Kusasalethu
|
|
1,100
|
|
3,265
|
|
—
|
|
—
|
|
Moab Khotsong
|
|
1,801
|
|
4,234
|
|
—
|
|
—
|
|
South Africa Surface
|
|
|
|
|
|
|
|||
Kalgold
|
|
—
|
|
—
|
|
0.58
|
|
479
|
|
Free State Surface
|
|
—
|
|
—
|
|
0.15
|
|
48
|
|
|
|
Cut-off grade
|
|
Cut-off cost
|
|
Cut-off grade
|
|
Cut-off cost
|
|
|
|
(%Cu)
|
|
(A$/Tonne)
|
|
(g/t)
|
|
(A$/Tonne)
|
|
Papua New Guinea
|
|
|
|
|
|
||||
Hidden Valley
|
|
—
|
|
—
|
|
0.65
|
|
34.08
|
|
Hamata
|
|
—
|
|
—
|
|
0.65
|
|
34.08
|
|
Golpu
|
|
0.3
|
|
26
|
|
—
|
|
—
|
|
Operations silver and copper
|
|
Underground Operations
|
Surface and Massive Mining
|
|||||
|
|
|
|
|
|
|||
|
|
Cut-off grade
|
Cut-off cost
|
|
Cut-off grade
|
|
Cut-off cost
|
|
|
|
(%Cu)
|
(A$/Tonne)
|
|
(g/t)
|
|
(A$/Tonne)
|
|
SILVER
|
|
|
|
|
|
|||
Papua New Guinea
|
|
|
|
|
|
|||
Hidden Valley
|
|
—
|
—
|
|
0.65
|
|
44.18
|
|
COPPER
|
|
|
|
|
|
|||
Papua New Guinea
|
|
|
|
|
|
|||
Golpu
|
|
0.3
|
26
|
|
—
|
|
—
|
|
1)
|
Surface and massive mining are stated in g/t (g/t is grams of metal per tonne of ore).
|
2)
|
All SA underground operations are stated in cmg/t (cmg/t is the Reef Channel width multiplied by the g/t which indicates the gold content within the Reef Channel).
|
1)
|
Cut-off cost refers to the cost in R/Tonne or A$/Tonne to mine and process a tonne of ore.
|
1)
|
Cut-off is stated in % Cu.
|
1)
|
Cut-off is based on 0.2% copper; molybdenum and gold mined as by-product.
|
|
Plant Recovery Factor (%)
|
|
Gold
|
|
|
Operations
|
|
|
South Africa Undergound
|
|
|
Bambanani
|
95
|
|
Joel
|
95
|
|
Masimong
|
95
|
|
Target 1
|
95
|
|
Tshepong Operations
|
95
|
|
Doornkop
|
96
|
|
Kusasalethu
|
93
|
|
Moab Khotsong
|
97
|
|
|
|
|
South Africa Surface
|
|
|
Kalgold
|
84
|
|
Free State Surface - Phoenix
|
45
|
|
St Helena
|
45
|
|
Central Plant
|
52
|
|
WRD and Tailings
|
51
|
|
|
|
|
Papua New Guinea
|
|
|
Hidden Valley
|
88
|
|
Hamata
|
88
|
|
Golpu
|
61
|
|
|
|
|
Silver
|
|
|
Papua New Guinea
|
|
|
Hidden Valley
|
61
|
|
|
|
|
Copper
|
|
|
Papua New Guinea
|
|
|
Golpu
|
92
|
|
•
|
Concentration of rights
|
•
|
Ownership of tailings created before May 1, 2004
|
•
|
Transfers in interests in companies
|
•
|
Mineral beneficiation
|
•
|
Issue of a closure certificate
|
•
|
have a minimum effective HDSA ownership of 26%;
|
•
|
procure a minimum of 40% of capital goods, 70% of services and 50% of consumer goods from HDSA suppliers (i.e. suppliers in which a minimum of 25% + one vote of their share capital must be owned by HDSAs) by 2014 (exclusive of non-discretionary procurement expenditure);
|
•
|
ensure that multinational suppliers of capital goods contribute a minimum of 0.5% of their annual income generated from South African mining companies into a social development fund from 2010 towards the socio-economic development of South African communities;
|
•
|
achieve a minimum of 40% HDSA demographic representation at executive management (board) level, senior management (executive committee) level, core and critical skills, middle management level and junior management level;
|
•
|
invest up to 5% of annual payroll in essential skills development activities; and
|
•
|
implement measures to improve the standards of housing and living conditions for mineworkers by converting or upgrading mineworkers’ hostels into family units, attaining an occupancy rate of one person per room and facilitating home ownership options for all mineworkers in consultation with organized labor.
|
•
|
in relation to existing mining rights, the continuing consequences of historical black economic empowerment transactions will be recognized and existing right holders will not be required to increase their HDSA shareholding for the duration of their mining right in circumstances where they either achieved and maintained 26% HDSA ownership or where they achieved the 26% HDSA ownership but their HDSA shareholder has since exited;
|
•
|
in relation to the renewal and transfer of existing mining rights, historical BEE credentials will not be recognized and mining companies will be required to comply with the ownership requirements in relation to new mining rights (see below);
|
•
|
in relation to new mining rights (granted after September 27, 2018) mining companies must have a minimum of 30% BEE shareholding distributed as follows: a minimum of 5% non-transferable carried interest to qualifying employees; a minimum of 5% non-transferable carried interest to host communities, or a minimum 5% equity equivalent benefit; and a minimum of 20% to a BEE entrepreneur, 5% of which must preferably be for women; "carried interest" is defined as "shares issued to qualifying employees and host communities at no cost to them and free of any encumbrances. The cost for the carried interest shall be recovered by a right holder from the development of the asset";
|
•
|
applications for mining rights lodged and accepted prior to September 27, 2018, will be processed in terms of the Amended Charter (i.e. with a 26% HDSA ownership requirement) but with a further obligation to increase their HDSA shareholding to 30% within five years of the granting of the right;
|
•
|
BEE shareholding may be concluded at holding company level, mining right level, on units of production, shares or assets and where is concluded at any level other than mining right level, the flow-through principle will apply;
|
•
|
the permitted beneficiation off-set of up to 11% against the HDSA ownership requirement contained in the Original Charter and Amended Charter has been reduced to 5% unless it was "claimed" prior to September 27, 2018;
|
•
|
a minimum of 70% of total mining goods procurement spend (including non-discretionary expenditure) must be on South African manufactured goods, allocated amongst HDSA owned and controlled companies, women and youth owned and controlled companies and BEE compliant companies;
|
•
|
a minimum of 80% of the total spend on services (including non-discretionary expenditure) must be sourced from South African companies, allocated among HDSA owned and controlled companies, women and youth owned and controlled companies and BEE compliant companies;
|
•
|
mining companies must achieve a minimum representation of HDSAs in the following management positions: 50% on the Board of directors (20% of which must be women), 50% in executive (20% of which must be women), 60% in senior management (25% of which must be women); 60% in middle level (25% of which must be women); 70% in junior level (30% of which must be women) and 60% in core and critical skills. In addition; HDSAs with disabilities must constitute 1.5% of all employees.
|
•
|
the Minister may, by notice in the Government Gazette, review Mining Charter III;
|
•
|
the ownership and mine community development elements are ring-fenced and require 100% compliance at all times; and
|
•
|
a mining right holder that has not complied with the ownership element and falls between levels 6 and 8 of the Mining Charter scorecard shall be in breach of the MPRDA and its mining right may be suspended or canceled in accordance with the provisions of the MPRDA.
|
•
|
provide that mining right holders must at all times comply with the ownership requirements imposed under Mining Charter III;
|
•
|
stipulate that the continuing consequences of historic empowerment transactions will not be recognized if existing mining rights are renewed or transferred to third parties;
|
•
|
impose the procurement thresholds for goods and services; and
|
•
|
indicate that the Minister may invoke the sanctions prescribed under the MPRDA, if a mineral right holder fails to comply with the threshold requirements imposed under the Charter.
|
•
|
Mining right applicants must "meaningfully consult" with landowners, lawful occupiers and interested and affected parties in accordance with the procedures contemplated under the EIA Regulations). The office of the Regional Manager is permitted to participate as an observer in these processes.
|
•
|
Mining right holders must pursuant to their SLPs contribute to the socio-economic development in the areas in which they operate and labor sending areas (i.e. a local municipality from which a majority of mineworkers are from time to time permanently resident). This requirement may impose obligations on mining right holder to effect measures in communities that are located far away from the mine and / or could give rise to some social issues.
|
•
|
Although most of the provisions regulating environmental matters have been deleted from the Regulations, those sections dealing with mine closure have been retained but have been amended to state that mine closure must be regulated in terms of the NEMA, the EIA Regulations and the Financial Provision Regulations, 2015. It is anticipated that the Financial Provision Regulations, 2015 will be replaced by a revised regulations following further engagement with the mining industry.
|
•
|
The appeal process in the MPRDA Regulations has been replaced with a more comprehensive procedure that includes specific time periods within which appellants, respondents and the competent authority must submit appeals, responses or consider appeals (as the case may be). Although there is no guarantee that the parties will comply with these time periods, the time periods intend to hold the parties accountable and to ensure that appeals are resolved in a timely manner.
|
•
|
exploration licenses, issued for a term not exceeding two years, renewable on application for further two year terms subject to compliance with expenditure and other conditions. Each license contains a condition conferring on the PNG Government the right to make a single purchase up to 30% equitable interest in any mineral discovery under the license at a price pro rata to the accumulated exploration expenditure;
|
•
|
mining leases, issued for a term not exceeding 20 years, renewable on application for up to ten years at the discretion of the PNG Minister for Mining after considering PNG Mining Advisory Board recommendations;
|
•
|
special mining leases, issued for a term not exceeding 40 years, renewable on application for up to twenty years at the discretion of the PNG Minister for Mining after considering PNG Mining Advisory Board recommendations and subject to the provisions of any mining development contract which may have been entered into between the PNG Government and the tenement holder;
|
•
|
mining easements; and
|
•
|
leases for mining purposes.
|
•
|
to protect the health and safety of persons at mines;
|
•
|
to require employers and employees to identify hazards and eliminate, control and minimize the risks relating to health and safety at mines;
|
•
|
to give effect to the public international law obligations of South Africa that concern health and safety at mines;
|
•
|
to provide for employee participation in matters of health and safety through health and safety representatives and the health and safety committees at mines;
|
•
|
to provide effective monitoring of health and safety measures at mines;
|
•
|
to provide for enforcement of health and safety conditions at mines;
|
•
|
to provide for investigations and inquiries to improve health and safety at mines;
|
•
|
to promote a culture of health and safety in the mining industry;
|
•
|
to promote training in health and safety in the mining industry; and
|
•
|
to promote co-operation and consultation on health and safety matters between the South African, employers, employees and their representatives.
|
•
|
the issuing of statutory instructions (for example notices in terms of section 54 or section 55 of the MHSA) if an Inspector of Mines has reason to believe that any occurrence, practice or condition at a mine endangers the health and safety of any person at a mine, or alternatively if an Inspector of Mines has reason to believe that a provision of the MHSA has not been complied with. A notice in terms of section 54 of the MHSA may halt all mining operations undertaken at a mine or part thereof. If a mine receives notices in terms of section 54 of the MHSA regularly, the production stoppages and the additional costs incurred as a result thereof, will not only affect the production results of a mine but also the reputation and business of a mine. If, however, a notice in terms of section 54 of the MHSA has been issued unlawfully, the mine may appeal the said notice to the Chief Inspector of Mines. It must be noted that the aforesaid appeal does not suspend the operation of the notice issued in terms of section 54 of the MHSA. To suspend the operation of the notice in the above instance, a mine must lodge an urgent application to the Labour Court (being the court with jurisdiction) requesting the suspension of the operation of the notice issued in terms of section 54 of the MHSA pending the outcome of the appeal to the Chief Inspector of Mines;
|
•
|
the Chief Inspector of Mines may suspend or cancel certificates of competency issued in terms of the MHSA if the holder of that certificate is guilty of gross negligence or misconduct or has not complied with the MHSA or the regulations binding thereunder;
|
•
|
a Principal Inspector of Mines may recommend prosecution to the National Director of Public Prosecutions if satisfied that there is sufficient admissible evidence that an offense has been committed. Any person convicted of an offense in terms of the MHSA may be sentenced to a fine or imprisonment as may be prescribed; and
|
•
|
a Principal Inspector of Mines may, after considering the recommendation of an Inspector of Mines and the written representations of the employer, impose an administrative fine for the failure to comply with, amongst others, the provisions of the MHSA and the regulations binding thereunder. In terms of Table 2 of Schedule 8 to the MHSA, the maximum administrative fine which may be imposed on an employer is one million Rand per transgression. The MHSA does not make provision for any internal appeal against an administrative fine which has been issued unlawfully. However, if a mine receives an administrative fine which has been issued unlawfully, the mine may lodge an application in the Labour Court (being the court with jurisdiction) to review the decision of the Chief Inspector of Mines to impose an administrative fine.
|
•
|
taking water from a water resource;
|
•
|
storing water;
|
•
|
impeding or diverting the flow of water in a watercourse;
|
•
|
engaging in a stream flow activities contemplated in the NWA;
|
•
|
discharging waste or water containing waste into a water resource through a pipe, canal, sewer, sea outfall or other conduit;
|
•
|
disposing of waste in a manner which may detrimentally impact on a water resource;
|
•
|
disposing in any manner of water which contains waste from, or which has been heated in, any industrial or power generation process;
|
•
|
altering the bed, banks, course or characteristics of a watercourse;
|
•
|
removing, discharging or disposing of water found underground if it is necessary for the efficient continuation of an activity or for the safety of people; and
|
•
|
using water for recreational purposes.
|
•
|
“-Corporate profile” on page 6
|
•
|
“- Managing our Social and Environmental Stewardship - Environmental management and stewardship” on pages 121 to 138;
|
•
|
“- Delivering profitable ounces - Operational performance” on pages 72 to 103;
|
•
|
Bambanani, Doornkop, Joel, Kusasalethu, Masimong, Moab Khotsong, Target 1, Tshepong Operations, Unisel and Hidden Valley; and
|
•
|
all other shafts and surface operations, including those that treat historic sand dumps, waste rock dumps and tailings dams, are grouped together under “All other surface operations”.
|
|
|
Applicable to the Fiscal Year Ended June 30,
|
|||||
Doornkop
|
2020
|
2019
|
2018
|
||||
A
|
Years (life-of-mine plan)
|
16
|
|
16
|
|
18
|
|
B
|
Reserves (Tonnes million)
|
9.8
|
|
7.0
|
|
4.6
|
|
B
|
Resources (Tonnes million)
|
12.8
|
|
12.0
|
|
16.9
|
|
D
|
Total inferred resources (Tonnes million)
|
4.3
|
|
5.2
|
|
10.6
|
|
E
|
Inferred resources included in life-of-mine plan (Tonnes million)
|
4.6
|
|
5.6
|
|
9.5
|
|
F
|
Future development costs (Rand million)
|
1,034
|
|
519
|
|
494
|
|
G
|
Depreciation expense for the fiscal year
|
|
|
|
|||
|
•
As reported (Rand million)
|
175
|
|
258
|
|
185
|
|
|
•
Excluding inferred resources (Rand million)
|
200
|
|
320
|
|
336
|
|
|
Year 1
|
Year 2
|
Year 3
|
Long Term
|
||||
US$ gold price per ounce
|
1,610
|
|
1,558
|
|
1,469
|
|
1,350
|
|
US$ silver price per ounce
|
17.00
|
|
17.00
|
|
17.00
|
|
17.00
|
|
Rand/gold price (R/kg)
|
865,000
|
|
775,000
|
|
722,000
|
|
630,000
|
|
Rand/US$ exchange rate
|
16.72
|
|
15.47
|
|
15.29
|
|
14.51
|
|
US$/Kina exchange rate
|
3.45
|
|
3.45
|
|
3.45
|
|
3.45
|
|
|
South Africa
|
Hidden Valley
|
||||||||||
US dollar per ounce
|
2020
|
|
2019
|
|
2018
|
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|
|
|
||||||
Measured
|
25.00
|
|
25.00
|
|
25.00
|
|
n/a
|
|
n/a
|
|
n/a
|
|
Indicated
|
8.00
|
|
8.00
|
|
8.00
|
|
8.00
|
|
8.00
|
|
5.84
|
|
Inferred
|
2.80
|
|
2.80
|
|
2.80
|
|
n/a
|
|
n/a
|
|
5.84
|
|
|
|
|
|
|
|
|
•
|
infection rates and the timing of the expected peaks in the provinces that Harmony's operations are situated in, based on models prepared by the South African government;
|
•
|
expected disruptions to production together with the mitigation strategies management has in place;
|
•
|
potential duration of the impact of the virus and the related restrictions in operations; and
|
•
|
potential changes of the timing of various cash flows due to shortened production breaks.
|
•
|
the potential impact on production and therefore on the revenue cash flows, based on historical trends that have been extrapolated to account for varying disruption levels;
|
•
|
the duration of potential disruptions to production, ranging from 12 months to 24 months; and
|
•
|
the infection rates and associated costs. Where infections were assumed to continue into Year 2, the rate was dependent on the assumed infections in Year 1, with a higher rate in Year 1 resulting in a lower rate in Year 2, and vice versa.
|
|
(R millions)
|
|
Tshepong Operations
|
3,352
|
|
Target 1
|
804
|
|
Joel
|
716
|
|
Kusasalethu
|
441
|
|
Bambanani*
|
94
|
|
Other Freegold assets
|
20
|
|
Moab Khotsong*
|
15
|
|
Unisel
|
6
|
|
|
Fiscal year ended June 30,
|
|||||
|
2020
|
2019
|
2018
|
|||
|
(in R millions, except for ounce/kilogram amounts)
|
|||||
Total cost of sales - under IFRS
|
25,908
|
|
28,869
|
|
23,596
|
|
Depreciation and amortization expense
|
(3,508
|
)
|
(4,054
|
)
|
(2,570
|
)
|
Rehabilitation costs
|
(47
|
)
|
(33
|
)
|
(67
|
)
|
Care and maintenance costs of restructured shafts
|
(146
|
)
|
(134
|
)
|
(128
|
)
|
Employment termination and restructuring costs
|
(40
|
)
|
(242
|
)
|
(208
|
)
|
Share-based payments
|
(130
|
)
|
(155
|
)
|
(244
|
)
|
Impairment
|
—
|
|
(3,898
|
)
|
(5,336
|
)
|
By-products credits
|
(938
|
)
|
(766
|
)
|
(93
|
)
|
Other
|
157
|
|
33
|
|
63
|
|
Capitalized stripping
|
675
|
|
1,197
|
|
167
|
|
LED costs
|
136
|
|
99
|
|
62
|
|
Corporate, administration and other expenditure costs
|
529
|
|
603
|
|
582
|
|
Capital expenditure (OCD)
|
1,709
|
|
1,893
|
|
1,561
|
|
Capital expenditure (Exploration, abnormal expenditure and shaft capital)
|
760
|
|
1,101
|
|
771
|
|
|
|
|
|
|
||
Total all-in sustaining costs
|
25,065
|
|
24,513
|
|
18,156
|
|
|
|
|
|
|||
Per kilogram calculation:
|
|
|
|
|||
Kilogram sold1
|
38,481
|
|
44,568
|
|
35,671
|
|
Total all-in sustaining costs per kilogram
|
651,356
|
|
550,005
|
|
508,970
|
|
|
|
|
|
|||
Total all-in sustaining costs (US$ million)
|
1,600
|
|
1,729
|
|
1,412
|
|
Per ounce calculation:
|
|
|
|
|
|
|
Ounces sold1
|
1,237,187
|
|
1,432,890
|
|
1,146,850
|
|
Total all-in sustaining costs per ounce
|
1,293
|
|
1,207
|
|
1,231
|
|
|
Fiscal year ended June 30,
|
|||||
|
2020
|
2019
|
2018
|
|||
|
(in R millions, except for ounce/kilogram amounts)
|
|||||
Total cost of sales - under IFRS
|
25,908
|
|
28,869
|
|
23,596
|
|
Depreciation and amortization expense
|
(3,508
|
)
|
(4,054
|
)
|
(2,570
|
)
|
Rehabilitation costs
|
(47
|
)
|
(33
|
)
|
(67
|
)
|
Care and maintenance costs of restructured shafts
|
(146
|
)
|
(134
|
)
|
(128
|
)
|
Employment termination and restructuring costs
|
(40
|
)
|
(242
|
)
|
(208
|
)
|
Share-based payments
|
(130
|
)
|
(155
|
)
|
(244
|
)
|
Impairment
|
—
|
|
(3,898
|
)
|
(5,336
|
)
|
By-product revenue
|
(938
|
)
|
(766
|
)
|
(93
|
)
|
Other
|
—
|
|
(29
|
)
|
52
|
|
Gold and uranium inventory movement
|
(151
|
)
|
112
|
|
216
|
|
|
|
|
|
|||
Total cash costs
|
20,948
|
|
19,670
|
|
15,218
|
|
|
|
|
|
|||
Per kilogram calculation:
|
|
|
|
|||
Kilograms produced1
|
37,863
|
|
44,734
|
|
36,125
|
|
Total cash costs per kilogram
|
553,513
|
|
439,722
|
|
421,260
|
|
|
|
|
|
|||
Total cash costs (US$)
|
1,338
|
|
1,387
|
|
1,184
|
|
|
|
|
|
|||
Per ounce calculation:
Ounces produced1
|
1,217,323
|
|
1,438,231
|
|
1,161,435
|
|
Total cash costs per ounce
|
1,099
|
|
965
|
|
1,018
|
|
|
Year Ended June 30, 2020
|
Year Ended June 30, 2019
|
Percentage
(increase)/decrease
|
|||||||||||||||||
|
Cash costs
|
All-in sustaining
costs
|
Cash costs
|
All-in sustaining
costs
|
Cash
costs
per
kg
|
All-in
sustain-ing
costs per
kg
|
||||||||||||||
|
(kg
pro-duced)
|
(R/kg)
|
(kg sold)
|
(R/kg)
|
(kg
pro-duced)
|
(R/kg)
|
(kg sold)
|
(R/kg)
|
||||||||||||
South Africa
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Kusasalethu
|
3,015
|
|
849,782
|
|
3,085
|
|
923,054
|
|
4,989
|
|
476,417
|
|
5,028
|
|
556,621
|
|
(78
|
)
|
(66
|
)
|
Doornkop
|
2,994
|
|
567,632
|
|
3,038
|
|
649,041
|
|
3,273
|
|
486,795
|
|
3,255
|
|
572,132
|
|
(17
|
)
|
(13
|
)
|
Tshepong Operations
|
7,293
|
|
583,018
|
|
7,399
|
|
713,202
|
|
7,967
|
|
503,033
|
|
7,922
|
|
636,281
|
|
(16
|
)
|
(12
|
)
|
Moab Khotsong
|
6,592
|
|
497,953
|
|
6,799
|
|
566,942
|
|
7,928
|
|
399,414
|
|
7,794
|
|
477,581
|
|
(25
|
)
|
(19
|
)
|
Masimong
|
1,999
|
|
620,804
|
|
2,027
|
|
655,888
|
|
2,309
|
|
525,703
|
|
2,291
|
|
593,408
|
|
(18
|
)
|
(11
|
)
|
Target 1
|
2,244
|
|
670,647
|
|
2,237
|
|
817,066
|
|
2,653
|
|
557,264
|
|
2,685
|
|
662,816
|
|
(20
|
)
|
(23
|
)
|
Bambanani
|
2,132
|
|
480,620
|
|
2,162
|
|
522,990
|
|
2,515
|
|
391,550
|
|
2,495
|
|
441,226
|
|
(23
|
)
|
(19
|
)
|
Joel
|
1,391
|
|
718,024
|
|
1,412
|
|
826,970
|
|
1,567
|
|
617,116
|
|
1,612
|
|
701,644
|
|
(16
|
)
|
(18
|
)
|
Unisel
|
982
|
|
583,274
|
|
994
|
|
613,382
|
|
1,212
|
|
469,108
|
|
1,207
|
|
523,823
|
|
(24
|
)
|
(17
|
)
|
Other - surface
|
4,349
|
|
488,329
|
|
4,379
|
|
519,293
|
|
4,099
|
|
473,954
|
|
4,087
|
|
500,426
|
|
(3
|
)
|
(4
|
)
|
International
|
|
|
|
|
|
|
|
|
|
|
||||||||||
Hidden Valley
|
4,872
|
|
348,054
|
|
4,949
|
|
562,648
|
|
6,222
|
|
220,323
|
|
6,192
|
|
497,399
|
|
(58
|
)
|
(13
|
)
|
Total kg
|
37,863
|
|
|
38,481
|
|
|
44,734
|
|
|
44,568
|
|
|
|
|
||||||
Weighted average(1)
|
|
553,513
|
|
|
651,356
|
|
|
439,722
|
|
|
550,005
|
|
(26
|
)
|
(18
|
)
|
|
Fiscal year ended June 30,
|
|
Income and mining tax
|
2020
|
2019
|
Effective income and mining tax rate
|
(43)%
|
5%
|
•
|
The change in rates on temporary differences, other than hedge accounted derivatives, resulted in an increase in the deferred tax expense and liability of R493 million.
|
•
|
Unwinding of temporary differences related to unredeemed capital expenditure balance resulted in an increase of R298 million in the deferred tax expense.
|
•
|
The weakening of the Rand against the US$ and the increase in the commodity prices negatively impacted on the valuation of the derivative financial instruments. The temporary differences related to the Rand gold derivatives changed from taxable temporary differences (i.e. resulting in a deferred tax liability) to deductible temporary differences (resulting in a deferred tax asset). Management assessed the rates at which the temporary differences are expected to reverse and as the expected non-mining losses can be set off against the mining profits, the rates have been revised from the non-mining tax rate of 28% to the weighted average deferred tax rate. This accounts for R510 million of the deferred tax credit directly charged to other comprehensive income.
|
•
|
The net deferred tax positions for each of the group's entities are assessed separately. Two companies (Harmony Company and Randfontein Estates) have net deferred tax asset positions and therefore recoverability of these assets was considered. At June 30, 2020, management considered whether the unrecognized deferred tax asset ("DTA") related to the Harmony Company should be recognized, partially or in full. A portion of the DTA relates to a tax loss of R574 million, which arose due to the foreign exchange translation losses and the losses on derivatives recorded during fiscal 2020. The company's operations include the Central Plant Reclamation ("CPR"), a tailings retreatment facility. As a low cost producer, its profit margins are highly sensitive to fluctuations in the gold price. In addition, the higher short-term gold price also significantly benefits Masimong's profitability, which following the revision of its life-of-mine at June 30, 2020 has two years
|
|
Fiscal year ended June 30,
|
|||||
|
2020
|
2019
|
2018
|
|||
|
(R in millions)
|
|||||
Operating cash flows
|
4,723
|
|
4,679
|
|
3,884
|
|
Investing cash flows
|
(3,558
|
)
|
(4,797
|
)
|
(8,075
|
)
|
Financing cash flows
|
4,305
|
|
380
|
|
3,723
|
|
Foreign exchange differences
|
(106
|
)
|
25
|
|
(72
|
)
|
Total cash flows
|
5,364
|
|
287
|
|
(540
|
)
|
1
|
EBITDA as defined in the agreement excludes unusual items such as impairment and restructuring cost.
|
2
|
Tangible net worth is defined as total equity less intangible assets.
|
3
|
Leverage is defined as total net debt to EBITDA.
|
|
R’million
|
|
|
|
|
Authorized and contracted for1
|
368
|
|
Authorized but not yet contracted for
|
1,314
|
|
Total
|
1,682
|
|
|
Payments Due by Period
|
|||||||||
|
Total
|
Less Than 12 Months July 1, 2020 to June 30, 2021
|
12-36 Months July 1, 2021 to June 30, 2023
|
36-60 Months July 1, 2023 To June 30, 2025
|
After 60 Months Subsequent June 30, 2025
|
|||||
|
(R’million)
|
(R’million)
|
(R’million)
|
(R’million)
|
(R’million)
|
|||||
|
|
|
|
|
|
|||||
Bank facilities1
|
8,971
|
|
656
|
|
2,206
|
|
6,109
|
|
—
|
|
Post-retirement health care2
|
193
|
|
—
|
|
—
|
|
—
|
|
193
|
|
Environmental obligations3
|
3,408
|
|
—
|
|
—
|
|
—
|
|
3,408
|
|
Total contractual obligations
|
12,572
|
|
656
|
|
2,206
|
|
6,109
|
|
3,601
|
|
1
|
See Item 5: “Operating and Financial Review and Prospects - Liquidity and Capital Resources - Outstanding Credit Facilities and Other Borrowings”. The amounts include the interest payable over the terms of the facilities. Where a variable rate is applicable, the rate at the reporting date has been used for the future periods.
|
2
|
This liability relates to post-retirement medical benefits of Freegold and Moab Khotsong employees at the time of acquisition as well as for former employees who retired prior to December 31, 1996 and is based on actuarial valuations conducted during fiscal 2020.
|
3
|
We make provision for environmental rehabilitation costs and related liabilities based on management’s interpretations of current environmental and regulatory requirements. See Item 5: “Operating and Financial Review and Prospects - Operating Results - Critical Accounting Policies and Estimates - Provision for environmental rehabilitation”.
|
|
Amount of Commitments Expiring by Period
|
|||||||||
|
Total
|
Less Than 12 Months July 1, 2019 to June 30, 2020
|
12-36 Months July 1, 2020 to June 30, 2022
|
36-60 Months July 1, 2022 To June 30, 2024
|
After 60 Months Subsequent June 30, 2024
|
|||||
|
(R’million)
|
(R’million)
|
(R’million)
|
(R’million)
|
(R’million)
|
|||||
|
|
|
|
|
|
|||||
Guarantees1
|
622
|
|
—
|
|
—
|
|
—
|
|
622
|
|
Capital commitments2
|
1,682
|
|
1,682
|
|
—
|
|
—
|
|
—
|
|
Total commitments expiring by period
|
2,304
|
|
1,682
|
|
—
|
|
—
|
|
622
|
|
2
|
Capital commitments consist only of amounts committed to external suppliers, although a total of R3.6 billion has been approved by the board for capital expenditures.
|
•
|
“-Our leadership” on pages 15 to 18
|
•
|
“-Remuneration report” on pages 168 to 184
|
•
|
“-Corporate governance” on pages 142 to 167;
|
•
|
“-Remuneration report” on pages 168 to 184; and
|
•
|
“-Audit and risk committee chairperson’s report” on pages 185 to 188.
|
•
|
“-Ensuring stability, employee safety and well-being” on pages 41 to 71
|
•
|
“-Remuneration report” on pages 168 to 184
|
Holder
|
Number of shares
|
Percentage
|
|
|
|
|
|
African Rainbow Minerals Limited1
|
74,665,545
|
12.38
|
%
|
Van Eck Global Associates Corporation
|
52,090,455
|
8.64
|
%
|
Government Employees Pension Fund (PIC)
|
44,335,097
|
7.35
|
%
|
Fairtree Asset Management (Pty) Ltd
|
33,436,082
|
5.54
|
%
|
1
|
Patrice Motsepe, our Chairman, has an indirect holding in African Rainbow Minerals Limited.
|
|
Beneficial ownership as of 30 June 2020
|
||
|
2020
|
2019
|
2018
|
|
%
|
%
|
%
|
African Rainbow Minerals Limited
|
12.38
|
13.89
|
12.72
|
VanEck Associates Corporation
|
10.11
|
12.21
|
11.58
|
Fairtree Capital
|
5.40
|
4.01
|
2.88
|
Public Investment Corporation of South Africa
|
4.85
|
3.93
|
4.34
|
•
|
the Mponeng mine and its associated assets and liabilities;
|
•
|
the Tau Tona and Savuka mines and associated rock-dump and tailings storage facility reclamation sites, mine rehabilitation and closure activities located in the West Wits region and their associated assets and liabilities;
|
•
|
First Uranium (Pty) Limited which owns Mine Waste Solutions (Pty) Limited and Chemwes (Pty) Limited as well as associated tailings assets and liabilities (the FUSA Group);
|
•
|
Covalent Water Company (Pty) Limited, AngloGold Security Services (Pty) Limited and Masakhisane Investments (Pty) Limited; and
|
•
|
certain rock-dump reclamation, mine rehabilitation and closure activities located in the Vaal River region and their associated assets and liabilities (the VR Remaining assets).
|
•
|
US$260 per ounce payable on all underground production from the Mponeng, Savuka and Tau Tona mines in excess of 250,000 ounces per year for six years commencing January 1, 2021; and
|
•
|
US$20 per ounce payable on underground production from the Mponeng, Savuka and Tau Tona mines sourced from levels developed in the future below the current infrastructure.
|
•
|
80% or more of the market value of the equity shares, ownership or right to ownership or vested interest, as the case may be, at the time of disposal thereof is attributable directly or indirectly to immovable property held otherwise than as trading stock. It was recently announcement that this requirement will include rights to variable or fixed payments as consideration for the working of, or the right to work mineral deposits, sources and other natural resources in the Republic; and
|
•
|
the person directly or indirectly holds at least 20% of the equity shares in the company or ownership or right to ownership of the other entity.
|
•
|
an individual who is a citizen or resident of the United States;
|
•
|
a corporation (or other entity taxable as a corporation for US federal income tax purposes) organized under the laws of the United States, any state thereof, or the District of Columbia;
|
•
|
an estate whose income is subject to US federal income tax regardless of its source; or
|
•
|
a trust if: (i) a US court can exercise primary supervision over the trust’s administration and one or more US persons are authorized to control all substantial decisions of the trust or (ii) it has a valid election in effect under applicable US Treasury regulations to be treated as a US person.
|
•
|
in the case of a hedge of an anticipated future transaction, there is a high probability that the transaction will occur, and
|
•
|
in the case of a cash flow hedge, the hedging instrument is expected to be highly effective.
|
|
Fiscal year ended June 30,
|
||||
|
2020
|
|
2019
|
|
2018
|
|
(R in millions)
|
||||
Increase in 100 basis points
|
(77)
|
|
(59)
|
|
(56)
|
Decrease in 100 basis points
|
77
|
|
59
|
|
56
|
|
Fiscal year ended June 30,
|
||||
|
2020
|
|
2019
|
|
2018
|
|
(R in millions)
|
||||
Increase in 100 basis points(a)
|
58
|
|
44
|
|
32
|
Decrease in 100 basis points(a)
|
(58)
|
|
(44)
|
|
(32)
|
Persons depositing shares or withdrawing shares holders must pay:
|
|
For:
|
|
|
|
$5.00 (or less) per 100 ADSs (or portion of 100 ADSs)
|
|
• The execution and delivery of ADRs
|
|
|
•
The surrender of ADRs
|
|
|
|
$.02 (or less) per ADS
|
|
•
Any cash distribution to you
|
|
|
|
A fee equivalent to the fee that would be payable if securities distributed to you had been shares and the shares had been deposited for issuance of ADSs
|
|
•
Distribution of securities distributed to holders of deposited securities which are distributed by the depositary to ADR holders
|
|
|
|
Registration or transfer fees
|
|
•
Transfer and registration of equity shares on our share register to or from the name of the depositary or its agent when you deposit or withdraw shares
|
|
|
|
Expenses of the depositary
|
|
•
Cable, telex and facsimile transmissions (when expressly provided in the Deposit Agreement)
|
|
|
•
Converting foreign currency
|
|
|
|
Taxes and other governmental charges the depositary or the custodian have to pay on any ADR or share underlying an ADR, for example, stock transfer taxes, stamp duty or withholding taxes
|
|
•
As necessary
|
|
|
|
Any charges incurred by the depositary or its agents for servicing the deposited securities
|
|
•
As necessary
|
•
|
refuse to effect any transfer of such ADRs or any withdrawal of ADSs;
|
•
|
withhold any dividends or other distributions; or
|
•
|
sell part or all of the ADSs evidenced by such ADR,
|
Fiscal year ended June 30, 2019
|
Rand
|
30.3 million
|
Fiscal year ended June 30, 2020
|
Rand
|
33.7 million
|
Fiscal year ended June 30, 2019
|
Rand
|
4.5 million
|
Fiscal year ended June 30, 2020
|
Rand
|
4.8 million
|
Fiscal year ended June 30, 2019
|
Rand
|
0.8 million
|
Fiscal year ended June 30, 2020
|
Rand
|
0.4 million
|
Fiscal year ended June 30, 2019
|
Rand
|
1.2 million
|
Fiscal year ended June 30, 2020
|
Rand
|
1.1 million
|
Metric unit
|
|
US equivalent
|
1 tonne
|
= 1 t
|
= 1.10231 short tons
|
1 gram
|
= 1 g
|
= 0.03215 ounces
|
1 gram per tonne
|
= 1 g/t
|
= 0.02917 ounces per short ton
|
1 kilogram per tonne
|
= 1 kg/t
|
= 29.16642 ounces per short ton
|
1 kilometer
|
= 1 km
|
= 0.621371 miles
|
1 meter
|
= 1 m
|
= 3.28084 feet
|
1 centimeter
|
= 1 cm
|
= 0.3937 inches
|
1 millimeter
|
= 1 mm
|
= 0.03937 inches
|
1 hectare
|
= 1 ha
|
= 2.47105 acres
|
•
|
development of additional reserves;
|
•
|
depletion of existing reserves through production;
|
•
|
actual mining experience; and
|
•
|
price forecasts.
|
•
|
Index to Financial Statements;
|
•
|
Report of Independent Registered Public Accounting Firm; and
|
•
|
Consolidated Financial Statements.
|
1.1
|
Amended Memorandum of Incorporation of Harmony dated February 1, 2018 http://www.sec.gov/Archives/edgar/data/1023514/000162828019012525/exhibit1amendedmoi.htm
|
2.1
|
|
2.2
|
Amended and Restated Deposit Agreement among Harmony, Deutsche Bank Trust Company Limited, as Depositary, and owners and holders of American Depositary Receipts, dated as of October 7, 2011 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2011, filed on October 24, 2011) http://www.sec.gov/Archives/edgar/data/1023514/000119312511278584/d242812dex22.htm
|
2.3
|
Form of ADR (included in Exhibit 2.2) (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2011, filed on October 24, 2011) http://www.sec.gov/Archives/edgar/data/1023514/000119312511278584/d242812dex22.htm
|
4.1
|
Deed of Extinguishment of Royalty (Wafi-Golpu Project) dated February 16, 2009 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2009, filed on October 26, 2009) http://www.sec.gov/Archives/edgar/data/1023514/000095012309053204/u07679exv4w25.htm
|
4.2
|
Subscription, Sale and Shareholders’ Agreement dated March 20, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited, Business Venture Investments No. 1688 Proprietary Limited and the Trustees for the time being of the Harmony Gold Community Trust (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex423.htm
|
4.3
|
First Addendum to the Subscription, Sale and Shareholders’ Agreement dated May 28, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited, Business Venture Investments No. 1688 Proprietary Limited and the Trustees for the time being of the Harmony Gold Community Trust (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex424.htm
|
4.4
|
Second Addendum to the Subscription, Sale and Shareholders’ Agreement dated July 10, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited, Business Venture Investments No. 1688 Proprietary Limited and the Trustees for the time being of the Harmony Gold Community Trust (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex425.htm
|
4.5
|
Contractor Agreement dated March 20, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited and ARMGold/Harmony Freegold Joint Venture Company (Proprietary) Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex427.htm
|
4.6
|
Services Agreement dated March 20, 2013 between Harmony Gold Mining Company Limited and Business Venture Investments No. 1692 Proprietary Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex428.htm
|
4.7
|
Sale of Property Agreement dated March 20, 2013 between ARMGold/Harmony Freegold Joint Venture Company (Proprietary) Limited and Business Venture Investments No. 1692 Proprietary Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex429.htm
|
4.8
|
Agreement of Lease dated March 20, 2013 between ARMGold/Harmony Freegold Joint Venture Company (Proprietary) Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex430.htm
|
4.9
|
Borrower Pledge and Cession Agreement dated March 20, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex431.htm
|
4.10
|
Borrower Pledge and Cession Agreement dated March 20, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex432.htm
|
4.11
|
Borrower Pledge and Cession Agreement dated March 20, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex433.htm
|
4.12
|
Borrower Pledge and Cession Agreement dated March 20, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex434.htm
|
4.13
|
Cashflow Waterfall Agreement dated March 20, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited and Business Venture Investments No. 1688 Proprietary Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex435.htm
|
4.14
|
Addendum to the Cashflow Waterfall Agreement dated May 28, 2013 between Harmony Gold Mining Company Limited, Business Venture Investments No. 1692 Proprietary Limited, Histopath Proprietary Limited, Business Venture Investments No. 1677 Proprietary Limited, Business Venture Investments No. 1687 Proprietary Limited and Business Venture Investments No. 1688 Proprietary Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex436.htm
|
4.14
|
Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex437.htm
|
4.15
|
Addendum to the Term Loan Facility Agreement dated May 23, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex438.htm
|
4.16
|
Waiver letter dated June 24, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex439.htm
|
4.16
|
Extension letter dated May 10, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1677 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex440.htm
|
4.17
|
Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex441.htm
|
4.18
|
Addendum to the Term Loan Facility Agreement dated May 24, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex442.htm
|
4.18
|
Waiver letter dated June 24, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex443.htm
|
4.19
|
Extension letter dated May 10, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1687 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex444.htm
|
4.20
|
Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex445.htm
|
4.21
|
Addendum to the Term Loan Facility Agreement dated May 24, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex446.htm
|
4.22
|
Waiver letter dated June 24, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex447.htm
|
4.23
|
Extension letter dated May 10, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Business Venture Investments No. 1688 Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex448.htm
|
4.24
|
Term Loan Facility Agreement dated March 20, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex449.htm
|
4.25
|
Addendum to the Term Loan Facility Agreement dated May 24, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex450.htm
|
4.26
|
Waiver letter dated June 24, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex451.htm
|
4.27
|
Extension letter dated May 10, 2013 in respect of the Term Loan Facility Agreement dated March 20, 2013 between Histopath Proprietary Limited and Harmony Gold Mining Company Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2013, filed on October 25, 2013) http://www.sec.gov/Archives/edgar/data/1023514/000119312513411617/d612311dex452.htm
|
4.28
|
First Addendum to the Exchange and Sale of Mining Right Portions Agreement dated April 16, 2014 between Armgold/Harmony Freegold Joint Venture Company Proprietary Limited and Sibanye Gold Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2014, filed on October 23, 2014) http://www.sec.gov/Archives/edgar/data/1023514/000119312514379647/d804845dex453.htm
|
4.29
|
Reinstatement and Second Addendum to the Exchange and Sale of Mining Right Portions Agreement dated May 6, 2014 between Armgold/Harmony Freegold Joint Venture Company Proprietary Limited and Sibanye Gold Limited (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2014, filed on October 23, 2014)
|
4.31
|
Loan Agreement between Harmony Gold Mining Company Limited and the Trustees for the time being of the ARM Broad-Based Economic Empowerment Trust, dated March 1, 2016 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2016, filed on October 26, 2016) http://www.sec.gov/Archives/edgar/data/1023514/000120561316000327/ex4_63.htm
|
4.32
|
Intercreditor agreement between African Rainbow Minerals Limited and Harmony Gold Mining Company Limited, dated March 1, 2016 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2016, filed on October 26, 2016) http://www.sec.gov/Archives/edgar/data/1023514/000120561316000327/ex4_64.htm
|
4.33
|
Second Amendment and Restatement Agreement amongst Nedbank Limited (acting through its Corporate and Investment Banking division) (as Original Lender, Arranger and Facility Agent), the Trustees for the time being of the ARM Broad-Based Economic Empowerment Trust (as Borrower), African Rainbow Minerals Limited (as Guarantor) and Harmony Gold Mining Company Limited (as Guarantor), dated March 1, 2016 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2016, filed on October 26, 2016) http://www.sec.gov/Archives/edgar/data/1023514/000120561316000327/ex4_67.htm
|
4.34
|
Subordination Agreement between Nedbank Limited (acting through its Corporate and Investment Banking division), the Trustees for the time being of the ARM Broad-Based Economic Empowerment Trust, African Rainbow Minerals Limited and Harmony Gold Mining Company Limited, dated March 1, 2016 (incorporated by reference to Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2016, filed on October 26, 2016) http://www.sec.gov/Archives/edgar/data/1023514/000120561316000327/ex4_68.htm
|
4.38
|
Harmony Gold Mining Company Limited 2006 Share Plan as amended and approved November 25, 2016 (incorporated by reference to /Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2017, filed on October 26, 2017) http://www.sec.gov/Archives/edgar/data/1023514/000162828017010249/exhibit438harmonygold2006s.htm
|
4.39
|
Wafi-Golpu Joint Venture Agreement, dated May 22, 2008 between Wafi Mining Limited, Newcrest PNG 2 Limited and Wafi-Golpu Services Limited (incorporated by reference to /Harmony’s Annual Report on Form 20-F for the fiscal year ended June 30, 2017, filed on October 26, 2017) http://www.sec.gov/Archives/edgar/data/1023514/000162828017010249/exhibit439wafi-golpujointv.htm
|
4.48
|
|
4.50
|
ZAR2,000,000,000 Term and Revolving Credit Facilities Agreement dated November 8, 2019 for Harmony Gold Mining Company Limited arranged by Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) and ABSA Bank Limited (acting through its Corporate and Investment Banking division) with Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) and ABSA Bank Limited (acting through its Corporate and Investment Banking division) http://www.sec.gov/Archives/edgar/data/1023514/000162828019012525/exhibit450termrcfr2billion.htm
|
4.51
|
Facility Agreement dated July 9, 2018 among into between Morobe Consolidated Goldfields Limited, Harmony Gold (Australia) Proprietary Limited and Westpac Bank - PNG - Limited http://www.sec.gov/Archives/edgar/data/1023514/000162828019012525/exhibit451morobewestpacloan.htm
|
4.52
|
Harmony Gold Mining Company Limited Deferred Share Plan 2018 Scheme Rules http://www.sec.gov/Archives/edgar/data/1023514/000162828019012525/exhibit452deferredsharepla.htm
|
4.53
|
|
4.54
|
|
4.55
|
|
8.1
|
|
†12.1
|
|
†
|
This certification will not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that section. Such certification will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Securities Exchange Act of 1934, as amended (the “Exchange Act”), except to the extent that the Registrant specifically incorporates it by reference.
|
††
|
Certain of the information included in Exhibit 15.1 is incorporated by reference into the Harmony 2020 Form 20-F, as specified elsewhere in this report, in accordance with Rule 12b-23(a) of the Exchange Act. With the exception of the items so specified, the Integrated Annual Report for the 20-F 2020 is not deemed to be filed as part of Harmony 2020 Form 20-F.
|
101.INS
|
XBRL Instance Document
|
101.SCH
|
XBRL Taxonomy Extension Schema Linkbase Document
|
101.CAL
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
101.DEF
|
XBRL Taxonomy Extension Definition Linkbase Document
|
101.LAB
|
XBRL Taxonomy Extension Label Linkbase Document
|
101.PRE
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
•
|
receive the Notice of AGM (being the date on which a shareholder must be registered in the Company’s securities register to receive this Notice of AGM) as 16 October 2020; and
|
•
|
participate in and vote at the AGM (being the date on which a shareholder must be registered in the Company’s securities register to participate in and vote at the AGM) as 13 November 2020.
|
•
|
Sunday Times Lifetime Achiever Award, 2017;
|
•
|
Harvard University Veritas Award for Excellence in Global Business and Philanthropy, 2014;
|
•
|
BRICS Business Council, Outstanding Leadership Award, 2014;
|
•
|
The Black Management Forum (BMF) Presidential Award for Business Excellence, 2010;
|
•
|
McGuireWoods Outstanding Alumnus Awards, 2009;
|
•
|
African Business Roundtable, USA, Entrepreneur & Freedom of Trade Award, 2009;
|
•
|
South African Jewish Report, Special Board Members Award for Outstanding Achievement, 2004;
|
•
|
Afrikaanse Handelsinstituut, MS Louw Award for Exceptional Business Achievement, 2003; and
|
•
|
World Economic Forum Global Leader of Tomorrow, 1999.
|
•
|
Chairman of Land Bank Insurance
|
•
|
Non-executive director of RMB Structured Insurance
|
•
|
Member of the South African Financial Markets Advisory Board of the Financial Services Board
|
•
|
Non-executive director of Deutsche Bank Securities
|
•
|
Non-executive director of Deutsche Bank Securities South Africa
|
•
|
Non-executive director of Land Bank
|
•
|
Member of the South Africa Reserve Bank’s committee on the revision of the Banks Act
|
•
|
President of the Association of Black Securities and Investment Professionals (ABSIP)
|
•
|
Executive member of the Black Business Council (BBC)
|
•
|
President of Nafcoc/Johannesburg Chamber of Commerce and Industry
|
•
|
Non-executive director of the Small Enterprise Foundation
|
(a)
|
the equity securities which are the subject of the issue for cash must be of a class already in issue, or where this is not the case, must be limited to such securities or rights that are convertible into a class already in issue;
|
(b)
|
the equity securities must be issued to public shareholders, as defined in the JSE Listings Requirements, and not to related parties;
|
(c)
|
securities which are the subject of general issues for cash in the aggregate may not exceed 5% (five percent) of the Company’s shares in issue as at the date of this Notice of AGM, excluding treasury shares - the number of shares available for the issue of shares for cash will therefore be limited to 29 862 526 shares;
|
(d)
|
this authority shall be valid until the Company’s next annual general meeting or for 15 (fifteen) months from the date on which this resolution is passed, whichever period is shorter, subject to the requirements of the JSE and any other restrictions set out in this authority;
|
(e)
|
the calculation of the Company’s listed equity securities must be a factual assessment of the Company’s listed equity securities as at the date of this Notice of AGM, excluding treasury shares;
|
(f)
|
any equity securities issued for cash during the period contemplated in (d) shall be deducted from the number set out in (c);
|
(g)
|
in the event of sub-division or consolidation of issued equity securities during the period contemplated in (d), the existing authority will be adjusted accordingly to represent the same allocation ratio;
|
(h)
|
the maximum discount at which equity securities may be issued is 10% (ten percent) of the weighted average traded price of such equity securities measured over the 30 (thirty) business days prior to the date that the price of the issue is agreed between the Company and the party subscribing for the securities - the JSE will be consulted for a ruling if the Company’s securities have not traded in such 30 (thirty) business day period; and
|
(i)
|
equity securities (of any class) which are the subject of the issue for cash in terms of this general authority, will be aggregated with any securities that are compulsorily convertible into securities of that class and, in the case of the issue of compulsory convertible securities, aggregated with the securities of that class into which they are convertible.”
|
•
|
a shareholder eligible to attend and vote at the AGM is entitled to appoint a proxy (or proxies) to attend, participate in and vote at the AGM in place of the shareholder - shareholders are referred to the proxy form attached to this Notice of AGM in this regard;
|
•
|
a proxy need not also be a shareholder of the Company;
|
•
|
in terms of section 63(1) of the Act, any person attending or participating in a meeting of shareholders must present reasonably satisfactory identification and the person presiding at the general meeting must be reasonably satisfied that
|
•
|
this Notice of AGM includes the attached form of proxy.
|
•
|
An ordinary shareholder entitled to attend and vote at the AGM may appoint any individual (or individuals) as a proxy or proxies to attend, participate in and vote at the AGM in the place of such shareholder. A proxy need not be a shareholder of the Company.
|
•
|
A proxy appointment must be in writing, dated and signed by the shareholder of the Company appointing a proxy and, subject to the rights of a shareholder to revoke such appointment (as set out below), remains valid only until the end of the AGM.
|
•
|
A proxy may delegate its authority to act on behalf of a shareholder of the Company to another person, subject to any restrictions set out in the instrument appointing the proxy.
|
•
|
Irrespective of the form of instrument used to appoint a proxy, the appointment of a proxy is suspended at any time and to the extent that the shareholder of the Company who appointed such proxy chooses to act directly and in person in exercising any rights as a shareholder of the Company.
|
•
|
Unless the proxy appointment expressly provides otherwise, the appointment of a proxy is revocable by the shareholder of the Company in question cancelling it in writing, or making a later inconsistent appointment of a proxy, and delivering a copy of the revocation instrument to the proxy and to the Company. The revocation of a proxy appointment constitutes a complete and final cancellation of the proxy’s authority to act on behalf of the shareholder of the Company as of the later of (a) the date stated in the revocation instrument, if any; and (b) the date on which the revocation instrument is delivered to the Company as required in the first sentence of this paragraph.
|
•
|
If the instrument appointing the proxy or proxies has been delivered to the Company, as long as that appointment remains in effect, any notice required by the Act or the Company’s MOI to be delivered by the Company to the shareholder of the Company, must be delivered by the Company to (a) the shareholder of the Company, or (b) the proxy or proxies, if the shareholder of the Company has (i) directed the Company to do so in writing; and (ii) paid any reasonable fee charged by the Company for doing so.
|
•
|
Dr Patrice Motsepe
|
•
|
John Wetton
|
•
|
Joaquim Chissano
|
•
|
Modise Motloba
|
•
|
Mavuso Msimang
|
I/We (please print names in full)
|
|
of (address)
|
|
being the holder/s of
|
shares in the Company, do hereby appoint:
|
1
|
or, failing him/her
|
2
|
or, failing him/her
|
ORDINARY RESOLUTIONS
|
FOR
|
AGAINST
|
ABSTAIN
|
Ordinary Resolution Number 1: To appoint Boipelo Lekubo as a director
|
|
|
|
Ordinary Resolution Number 2: To re-elect Dr Patrice Motsepe as a director
|
|
|
|
Ordinary Resolution Number 3: To re-elect John Wetton as a director
|
|
|
|
Ordinary Resolution Number 4: To re-elect Joaquim Chissano as a director
|
|
|
|
Ordinary Resolution Number 5: To re-elect Modise Motloba as a director
|
|
|
|
Ordinary Resolution Number 6: To re-elect Mavuso Msimang as a director
|
|
|
|
Ordinary Resolution Number 7: To re-elect Fikile De Buck as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 8: To re-elect Karabo Nondumo as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 9: To re-elect Dr Simo Lushaba as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 10: To re-elect John Wetton as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 11: To elect Given Sibiya as a member of the audit and risk committee
|
|
|
|
Ordinary Resolution Number 12: To reappoint the external auditors
|
|
|
|
Ordinary Resolution Number 13: To approve the remuneration policy
|
|
|
|
Ordinary Resolution Number 14: To approve the implementation report
|
|
|
|
Ordinary Resolution Number 15: To give authority to issue shares for cash
|
|
|
|
SPECIAL RESOLUTION
|
|
|
|
Special Resolution Number 1: To pre-approve non-executive directors’ remuneration
|
|
|
|
Signed at this day of 2020
|
|
Signature
|
|
Assisted by me, where applicable (name and signature)
|
|
1.
|
A Form of Proxy is only to be completed by those shareholders who are:
|
•
|
registered holders of shares in certificated form; or
|
•
|
holders of dematerialised shares of the Company in their own name.
|
2.
|
If you have already dematerialised your shares through a CSDP or broker and wish to attend the AGM, you must request your CSDP or broker to provide you with a letter of representation or instruct your CSDP or broker to vote by proxy on your behalf in terms of the agreement entered into between yourself and your CSDP or broker.
|
3.
|
A shareholder may insert the name of a proxy or the names of two alternative proxies of the Shareholder’s choice in the space provided. The person whose name stands first on the Form of Proxy and who is present at the AGM will be entitled to act to the exclusion of those whose names follow.
|
4.
|
On a poll, a shareholder who is present or represented by proxy will be entitled to that proportion of the total votes in the Company which the aggregate amount of the nominal value of the shares held by him/her bears to the aggregate amount of the nominal value of all the shares issued by the Company.
|
5.
|
A shareholder’s instructions to the proxy must be indicated by inserting the relevant numbers of votes exercisable by the shareholder in the appropriate box. Failure to comply will be deemed to authorise the proxy to vote or to abstain from voting at the AGM as he/ she deems fit in respect of all the shareholder’s votes exercisable. A shareholder or the proxy is not obliged to use all the votes exercisable by the shareholder or by the proxy, but the total of votes cast and in respect of which abstention is recorded may not exceed the total of votes exercisable by the shareholder or by the proxy.
|
6.
|
Forms of Proxy (enclosed) must be dated and signed by the shareholder appointing a proxy and must be lodged electronically with Link Market Services South Africa Proprietary Limited. Shareholders are urged to electronically deliver their completed Form of Proxy by no later than 11:00 (SA time) on Wednesday, 18 November 2020 to the offices of the Transfer Secretaries, Link Market Services South Africa
|
7.
|
Completing and lodging this Form of Proxy will not preclude the relevant shareholder from electronically attending the AGM and speaking and voting electronically to the exclusion of any proxy appointed in terms hereof.
|
8.
|
Documentary evidence establishing the authority of a person signing this Form of Proxy in a representative capacity or other legal capacity must be attached to this Form of Proxy, unless previously recorded by the transfer secretaries or waived by the chairman of the AGM.
|
9.
|
The completion of blank spaces overleaf need not be initialled. Any alteration or correction made to this Form of Proxy must be initialled by the signatory/ies.
|
10.
|
Despite the aforegoing, the chairman of the AGM may waive any formalities that would otherwise be a prerequisite for a valid proxy.
|
11.
|
If any shares are jointly held, all joint shareholders must sign this Form of Proxy. If more than one of those shareholders is present at the AGM either electronically or by proxy, the person whose name appears first in the Register will be entitled to vote
|
•
|
Shareholders or their proxies who wish to participate in the annual general meeting via electronic communication (“Participants”), must apply to the Company’s meeting scrutineers to do so by e-mailing the form below (“the application”) to the e-mail address of the Company’s meeting scrutineers, The Meeting Specialist (Proprietary) Ltd (“TMS”), by no later than 11:00 (SA time) on 18 November 2020. The e-mail address is as follows: proxy@tmsmeetings.co.za
|
•
|
Shareholders who have dematerialised their shares, other than those shareholders who have dematerialised their shares with ‘own name’ registration, should contact their Central Securities Depository Participant (“CSDP”) or broker in the manner and time stipulated in their agreement with their CSDP or Broker:
|
•
|
to furnish them with their voting instructions; and
|
•
|
in the event that they wish to participate in the meeting, to obtain the necessary authority to do so.
|
•
|
Participants will be able to vote during the annual general meeting through an electronic participation platform. Such participants, should they wish to have their vote(s) counted at the annual general meeting, must provide TMS with the information requested below.
|
•
|
Each shareholder, who has complied with the requirements below, will be contacted between 19 and 20 November 2020 via email/mobile with a unique link to allow them to participate in the electronic annual general meeting.
|
•
|
The cost of the participant’s phone call or data usage will be at his/her own expense and will be billed separately by his/her own telephone service provider.
|
•
|
The cut-off time, for administrative purposes, to participate in the meeting will be 11:00am (SA time) on 20 November 2020.
|
•
|
The participant’s unique access credentials will be forwarded to the email/mobile telephone provided below.
|
•
|
The cost of dialling in using a telecommunication line/webcast/web-streaming to participate in the annual general meeting is for the expense of the participant and will be billed separately by the participant’s own telephone service provider.
|
•
|
The participant acknowledges that the telecommunication lines/webcast/web-streaming are provided by a third party and indemnifies Harmony Gold Mining Company Limited, the JSE Limited and TMS and/or their third party service providers against any loss, injury, damage, penalty or claim arising in any way from the use or possession of the telecommunication lines/webcast/web-streaming, whether or not the problem is caused by any act or omission on the part of the participant or anyone else. In particular, but not exclusively, the participant acknowledges that he/she will have no claim against Harmony Gold Mining Company Limited, the JSE Limited and TMS and/or its third party service providers, whether for consequential damages or otherwise, arising from the use of the telecommunication lines/webcast/web-streaming or any defect in it or from total or partial failure of the telecommunication lines/webcast/web-streaming and connections linking the telecommunication lines/ webcast/web-streaming to the annual general meeting.
|
•
|
Participants will be able to vote during the annual general meeting through an electronic participation platform. Such participants, should they wish to have their vote(s) counted at the annual general meeting, must act in accordance with the requirements set out above.
|
•
|
Once the participant has received the link, the onus to safeguard this information remains with the participant.
|
•
|
The application will only be deemed successful if this application form has been fully completed and signed by the participant and delivered or e-mailed to TMS at proxy@tmsmeetings.co.za
|
(1)
|
Harmony Gold Mining Company Limited, a public company incorporated in accordance with the laws of South Africa under registration number 1950/038232/06 (Harmony/the Company); and
|
(2)
|
Riana Bisschoff, an individual acting in her capacity as trustee for the time being of the Harmony ESOP Trust.
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
1.1.1
|
Act means the Trust Property Control Act 57 of 1988 (as amended or substituted from time to time);
|
1.1.2
|
Administrator means the administrator of the Trust appointed in terms of clause 22;
|
1.1.3
|
Allocation Criteria means the criteria determined for the Allocation of the Participation Units to Eligible Employees being:
|
1.1.3.1
|
initially, each Eligible Employee upon the formation of the Trust, including any Eligible Employee that joins/qualifies within 6 (six) months after the formation of the Trust, to receive an equal number of Participation Units resulting in each Eligible Employee being vested with 225 (two hundred and twenty five) Participation Units; and
|
1.1.3.2
|
thereafter following the expiration of the 6 (six) month period referred to clause 1.1.3.1 above, provided that there are Pool Shares available in the Trust, Eligible Employees that join/qualify after the initial vesting of Participation Units, shall be vested with Participation Units attributable to the Pool Shares on a pro rata basis depending on the time such persons join/qualify as Eligible Employees in accordance with the formula below (and as illustrated by way of the examples contained in Schedule 1) and upon Allocation, such shares shall no longer constitute Pool Shares:
|
“X”
|
represents the number of Participation Units that shall be vested (rounded off to the nearest whole number);
|
“A”
|
represents the number of whole/complete months remaining in the Lock-in Period at the time of the vesting;
|
“B”
|
equals 36 (thirty-six) months being the duration of the Lock-in Period; and
|
“C”
|
represents the number of Participation Units vested in each Eligible Employee during the initial vesting of Participation Units upon the inception of the scheme as set out in clause 1.1.3.1 above.
|
1.1.4
|
Allocate/Allocated/Allocation means the vesting of Participation Units;
|
1.1.5
|
Allocation Date means the date stipulated in the Allocation Notice;
|
1.1.6
|
Allocation Notice means a written notice sent by Harmony to Eligible Employees in terms of clause 11, in terms of which each Eligible Employee is vested with Participation Units in the Trust and becomes a vested Beneficiary of this Trust;
|
1.1.7
|
Auditors means the auditors appointed in terms of clause 9, and holding office as the auditors of this Trust from time to time;
|
1.1.8
|
Bad Leaver means a Beneficiary who leaves the employ of Harmony such that he/she no longer constitutes an employee of Harmony, by reason of resignation, abscondment, dismissal for poor work performance, misconduct or any other form of lawful dismissal such that his/her termination of employment is regarded as a “Fault Termination” as contemplated in terms of clause 14.2;
|
1.1.9
|
Beneficiaries means Eligible Employees who acquire vested rights in the Trust through their receipt of the Participation Units by way of the Allocation Notice issued by Harmony in terms of clause 11, and “Beneficiary” shall have a corresponding meaning;
|
1.1.10
|
Board of Trustees means the board of trustees of the Trust constituted as set out in clause 5.2.1 of this Trust Deed;
|
1.1.11
|
Business Day means any day other than a Saturday, Sunday or statutory public holiday in the Republic of South Africa;
|
1.1.12
|
CSDP means a person that holds in custody and administers securities or an interest in securities and that has been accepted in terms of section 34 of the Securities Services Act 36 of 2004 as a participant;
|
1.1.13
|
Companies Act means the Companies Act 71 of 2008, including any regulations published in terms thereof, as amended or substituted from time to time;
|
1.1.14
|
Control means:
|
1.1.14.1
|
the holding of shares or the aggregate of holdings of shares or other securities in a company entitling the holder thereof to exercise, or cause to be exercised, more than 50% (fifty percent) of the voting rights at shareholders meetings of a company irrespective of whether such holding or holdings confers de facto control; or
|
1.1.14.2
|
the holding or control by a shareholder or member alone or pursuant to an agreement with other shareholders or members of more than 50% (fifty percent) of the voting rights in a company; or
|
1.1.14.3
|
the ability to appoint the majority of the directors of a company
|
1.1.15
|
Dispute has the meaning given under clause 25;
|
1.1.16
|
Dividend means each interim and final ordinary cash dividend, declared and paid in respect of each of the Trust Shares;
|
1.1.17
|
Eligible Employee means current or future permanent employees employed by Harmony, as selected by Harmony to obtain vested rights in the Trust, (specifically excluding employees on fixed term contracts, independent contractors or any person who renders services at any time through the involvement of a labour brokerage or otherwise by way of a temporary contract other than as a permanent employee of Harmony, and/or specifically excluding any employee whose prior participation in the Trust as a Beneficiary terminated on grounds of having constituted a Good Leaver), who furthermore:
|
1.1.17.1
|
are at all relevant times hereto employed by Harmony in the Republic of South Africa;
|
1.1.17.2
|
fall below the level of “Management” in accordance with the Company’s recognised employment/occupational levels, as ordinarily understood and applied by the Company including those employees who become eligible by reason of being demoted to below level of Management; and
|
1.1.17.3
|
who do not participate in any of the other share incentive schemes offered by the Company;
|
1.1.18
|
Encumber means to pledge, mortgage, charge, cede in security or out-and-out, create a lien over, subordinate, grant an option over, grant a right of retention over, or otherwise encumber, or hedge, or lend, and "Encumbered" and "Encumbrance" shall have corresponding meanings;
|
1.1.19
|
First Trustee shall have the meaning given thereto in clause 5.1;
|
1.1.20
|
Good Leaver means a Beneficiary who leaves the employ of Harmony such that he/she no longer constitutes an employee of Harmony, by reason of retirement, early retirement, death, dismissal for operational reasons (retrenchment or voluntary retrenchment), dismissal for permanent ill-health, permanent injury or disability; or where such Beneficiary remains employed by Harmony but is promoted to a level of “Management”, or due to the fact he/she is no longer employed by Harmony by reason of being transferred along with a mine or mining operation sold or transferred by Harmony as a going concern, such that his/her termination of employment or promotion (as the case may be) is regarded as a “No Fault Termination” as contemplated in terms of clause 14.1;
|
1.1.21
|
Harmony Shares means all the ordinary shares in the issued share capital of the Company;
|
1.1.22
|
Independent Person means any natural person who is generally considered to be independent and specifically excludes any person who is a Beneficiary of the Trust, or any person who is employed by Harmony or the Trust or directly or indirectly benefits from the Trust or Harmony, including any relative of such aforementioned persons;
|
1.1.23
|
Independent Trustee means an Independent Person who has been appointed as a Trustee of the Trust, in terms of clause 5.2.1.3;
|
1.1.24
|
Lock-in Period means the period commencing on the date of the subscription by the Trust for the Trust Shares and ending at midnight, 36 (thirty six) months after such subscription by the Trust for the Trust Shares or such date as determined by Harmony in the event of a change of Control, as determined in terms of clause 18;
|
1.1.25
|
Master of the High Court means the Master of the High Court, Johannesburg, or any other person, body or authority provided for in the Act;
|
1.1.26
|
MPRD Act means the Minerals and Petroleum Resources Development Act 28 of 2002 (as amended or substituted from time to time);
|
1.1.27
|
Participation Units means the vested rights of a Beneficiary to:
|
1.1.27.1
|
a number of Trust Shares held by the Trust;
|
1.1.27.2
|
a distribution of the income of the Trust based on such attributable Trust Shares in terms of clause 16; and
|
1.1.27.3
|
any other ancillary assets and/or distributions that may be made in respect of the Trust Shares;
|
1.1.28
|
Parties means Harmony and the Trustees, and shall include the Beneficiaries only for the purposes of clause 25 and the notice provisions in clause 26 and “Party” shall mean any one of them as the context requires;
|
1.1.29
|
Pool Shares means:
|
1.1.29.1
|
initially, 1 809 000 (one million eight hundred and nine thousand) of the Trust Shares that are subscribed for by the Trust which shall not, upon the formation of the Trust, be directly attributable to specific Allocated Participation Units and/or any additional Trust Shares which may be acquired by the Trust from time to time which are not immediately directly attributable to specific Allocated Participation Units; and
|
1.1.29.2
|
subsequently, any Trust Shares that are not directly attributable to Participation Units as a result of the Participation Units being cancelled in terms of the provisions contained in the Trust Deed;
|
1.1.30
|
Secretary means the secretary of the Trust as contemplated in terms of clause 6.8;
|
1.1.31
|
Sell means sell, transfer, alienate, donate, distribute, exchange, grant an option over, otherwise dispose of, realise value in respect of, or to enter into any arrangement or transaction which may have the same or similar effect as any of the aforementioned sale, transfer, alienation, donation, distribution, exchange, granting an option over or disposal (including but not limited to the cession of any rights which would have the same or similar economic effect) or realisation of value in respect of and "Sale" shall have a corresponding meaning;
|
1.1.32
|
Statutes means the Act and any other statute affecting the performance by the Trustees of their duties or functions;
|
1.1.33
|
this/the Trust means the Harmony ESOP Trust, as constituted in terms of this Trust Deed;
|
1.1.34
|
this Trust Deed means this document as a whole, as amended from time to time;
|
1.1.35
|
Trustees means all the Trustees holding office as such in terms of this Trust Deed;
|
1.1.36
|
Trust Shares means the 6,700,000 (six million seven hundred thousand) Harmony Shares acquired by the Trust and any additional shares in the issued share capital of the Company which may be acquired by the Trust which shares, upon issue, shall be subject to the terms and conditions of this Trust Deed until such time as the Trust Shares are distributed after expiry of the Lock-in period in clause 17;
|
1.1.37
|
UNCITRAL means the United Nations Commission on International Trade Law; and
|
1.1.38
|
Unions means the National Union of Mine Workers (NUM), UASA Trade Union (UASA), Trade Union Solidarity (Solidarity), the Association of Mineworkers and Construction Union (AMCU), National Union of Metalworkers of South Africa (NUMSA) and such other unions as may be recognised by Harmony from time to time.
|
1.2
|
General Interpretation
|
1.2.1
|
a reference to any one gender, whether masculine, feminine or neuter, includes the other two;
|
1.2.2
|
any reference to a person includes, without being limited to, any individual, body corporate, unincorporated association or other entity recognised under any law as having a separate legal existence or personality;
|
1.2.3
|
any word or expression defined in, and for the purposes of, this Trust Deed shall, if expressed in the singular, include the plural and vice versa, and a cognate word or expression shall have a corresponding meaning;
|
1.2.4
|
if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Trust Deed;
|
1.2.5
|
unless otherwise provided, any number of days prescribed shall mean Business Days and shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a Business Day, the next succeeding Business Day;
|
1.2.6
|
references to a statutory provision include any subordinate legislation made from time to time under that provision and references to a statutory provision include that provision as from time to time modified or re-enacted as far as such modification or re-enactment applies, or is capable of applying, to this Trust Deed or any transaction entered into in accordance with this Trust Deed; and
|
1.2.7
|
references in this Trust Deed to "clauses" are to clauses of this Trust Deed.
|
1.3
|
Headings and Sub-headings
|
2.
|
OBJECT
|
2.1
|
facilitate economic empowerment of Harmony’s employees;
|
2.2
|
incentivise Harmony’s employees, so as to promote the shared interests of employees and shareholders in the value growth of Harmony; and
|
2.3
|
further align the interests of the Harmony shareholders and those of the employees of Harmony.
|
3.
|
ESTABLISHMENT OF THE TRUST
|
3.1
|
A trust to be known as the Harmony ESOP Trust is hereby constituted.
|
3.2
|
The Trust shall be administered by the Trustees for the benefit of the Beneficiaries and in the manner and upon the terms and conditions set out in this Trust Deed.
|
4.
|
DONATION
|
5.
|
TRUSTEES
|
5.1
|
First Trustee
|
5.1.1
|
The First Trustee is Riana Bisschoff (the First Trustee). The First Trustee is hereby appointed and accepts her appointment as Trustee of this Trust.
|
5.1.2
|
Subject to clause 5.2.2, the First Trustee shall resign if any new Trustees are appointed by Harmony in accordance with the provisions of clause 5.2.1.1, and such resignation shall take effect from the day on which letters of authority are issued to the new Trustees by the Master of the High Court, otherwise the First Trustee shall remain in office until such time as she is unable to do so in terms of clause 5.3, clause 5.4 or any other provision of this Trust Deed.
|
5.2
|
Appointment of the Board of Trustees
|
5.2.1
|
The Board of Trustees shall be constituted as follows within a reasonable period from the date of registration of the Trust Deed with the Master:
|
5.2.1.1
|
4 (four) Trustees appointed by Harmony;
|
5.2.1.2
|
6 (six) Trustees appointed by the Unions, to be appointed as follows;
|
5.2.1.2.1
|
2 (two) nominated by NUM;
|
5.2.1.2.2
|
1 (one) nominated by UASA;
|
5.2.1.2.3
|
1 (one) nominated by Solidarity;
|
5.2.1.2.4
|
1 (one) nominated by AMCU;
|
5.2.1.2.5
|
1 (one) nominated by NUMSA; and
|
5.2.1.3
|
1 (one) Independent Trustee initially jointly appointed by Harmony and the Unions.
|
5.2.2
|
Harmony and the Unions shall have the right for the duration of this Trust to appoint the Trustees provided for in 5.2.1 and to remove and replace such Trustees at any time. In respect of the Trustees appointed by Harmony in terms of clause 5.2.1.1, the First Trustee may be appointed by Harmony for this purpose, and in that instance the First Trustee shall not be required to resign in terms of clause 5.1.2.
|
5.2.3
|
No Trustee shall commence performance of his duties until a letter of authority is issued to him by the Master of the High Court.
|
5.3
|
Disqualification of Trustees
|
5.3.1
|
any person who would be disqualified from acting as a director of a company in terms of section 69(8)(a) of the Companies Act;
|
5.3.2
|
any person to whom the Master of the High Court refuses to grant letters of authority or who the Master of the High Court requires to provide security as a Trustee;
|
5.3.3
|
any person removed from an office of trust on account of misconduct or dishonesty;
|
5.3.4
|
any person who ceases to be employed by Harmony if such person was an employee of Harmony at the time of their appointment as Trustee;
|
5.3.5
|
any person whose estate has been sequestrated and has not yet been rehabilitated;
|
5.3.6
|
any person who has been declared by a competent court to be mentally ill or incapable of managing his own affairs or who is by virtue of the Mental Health Act, 18 of 1973 (as amended), detained as a patient in an institution or as a State patient;
|
5.3.7
|
any person who has been convicted in the Republic of South Africa or elsewhere of any offence of which dishonesty is an element or of any other offence for which he has been sentenced to either imprisonment without the option of a fine or a fine in excess of R5 000.00 (five thousand Rand); or
|
5.3.8
|
any director of Harmony.
|
5.4
|
Vacation of Office of Trustee
|
5.4.1
|
The office of a Trustee shall be vacated if:
|
5.4.1.1
|
he becomes disqualified in terms of clause 5.3 above;
|
5.4.1.2
|
he resigns his office by not less than 60 (sixty) days (or such shorter period as the remaining Trustees or Trustee may agree to) written notice to the remaining Trustees or Trustee;
|
5.4.1.3
|
the Unions or Harmony (individually or jointly as the case may be) remove their respective appointed Trustees at their own discretion; or
|
5.4.1.4
|
he dies.
|
5.4.2
|
In the event that the office of a Trustee is vacated, a Trustee shall be appointed in his stead, provided that:
|
5.4.2.1
|
if the vacating Trustee is a Trustee appointed by Harmony, Harmony shall have the right to appoint another Trustee in his stead in accordance with the provisions of clause 5.2.1.1 above;
|
5.4.2.2
|
if the vacating Trustee is a Trustee appointed by the Unions, the Unions shall have the right to appoint another Trustee in his stead in accordance with the provisions of clause 5.2.1.2; and
|
5.4.2.3
|
if the vacating Trustee is an Independent Trustee, Harmony and the Unions shall have the right to jointly appoint another Trustee in his stead in accordance with the provisions of clause 5.2.1.3 above.
|
5.4.3
|
No Trustee shall have the right during his lifetime or by his last will to appoint his successor, an alternative Trustee, or any other person to serve as Trustee in his place and stead.
|
5.5
|
Number of Trustees
|
6.
|
PROCEEDINGS OF TRUSTEES
|
6.1
|
any Trustee is at all times entitled to convene a meeting of the Trustees by giving 14 (fourteen) days written notice to all Trustees, or such shorter notice as may be agreed by all the Trustees in writing. The Trustees shall meet at least once a year;
|
6.2
|
the Trustees shall meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they deem fit;
|
6.3
|
the Trustees may participate in a meeting of the Trustees by means of conference telephone or similar equipment by means of which all persons participating in the meeting can hear each other and any such participation in a meeting shall constitute presence in person at the meeting;
|
6.4
|
the Trustees shall from time to time, elect a chairman of the Trustees to hold office for such period/s as they may determine. Such chairman shall chair all meetings of Trustees. However, if for any reason the chairman is not able to attend a meeting, the Trustees present at that meeting may elect a Trustee from their number as chairman for that meeting;
|
6.5
|
save for the First Trustee, a majority of the Trustees shall constitute a quorum at meetings of the Trustees provided that such majority of Trustees includes 1 (one) Trustee appointed in terms of clause 5.2.1.1 and 1 (one) Trustee appointed in terms of 5.2.1.2;
|
6.6
|
save as may be expressly provided otherwise in this Trust Deed or the Statutes, decisions to be taken by the Trustees present at a meeting of Trustees shall take place by majority vote;
|
6.7
|
a resolution in writing signed by all the Trustees shall be valid and effectual as if it had been passed at a meeting of the Trustees duly called and constituted, and such resolution may be signed in counterparts;
|
6.8
|
Harmony’s company secretary will act as the Secretary of the Trust who shall keep written minutes of the Trustee meetings and to minute all resolutions passed by the Trustees; and
|
6.9
|
the Trustees are entitled to authorise 1 (one) Trustee or the Secretary of the Trust to sign on behalf of the Trustees all documents for official purposes which are necessary for the administration of the Trust and for the execution of any transaction concerned with the affairs of the Trust, and any resolution which is certified by 1 (one) Trustee or the Secretary of the Trust, as a true extract from the minutes of a particular resolution of all the Trustees, has in every respect the legal validity of a resolution signed by all the Trustees.
|
7.
|
POWERS OF TRUSTEES
|
7.1
|
subject to the Statutes, to open and operate (either themselves or by a person/s authorised by them) a banking account or facility or transaction platform with any registered bank or financial body or institution or registered lender in terms of the National Credit Act, 34 of 2005 (as amended or substituted from time to time);
|
7.2
|
to enter into, negotiate and execute any documents/agreements and any addenda thereto, and to do all things necessary to give effect to the subscription for and issue of the Trust Shares;
|
7.3
|
to exercise the voting powers attached to the Trust Shares in accordance with clause 15 below;
|
7.4
|
to distribute Trust Shares or sell Trust Shares and distribute their attributable sale proceeds to the Beneficiaries in accordance with their vested rights in terms of this Trust Deed following the expiry of the Lock-in Period;
|
7.5
|
to borrow or raise money, with the prior written consent of Harmony;
|
7.6
|
to appoint an Administrator for the Trust in accordance with clause 22 and to delegate any of their rights, obligations, functions and powers set out in this Trust Deed to that Administrator;
|
7.7
|
to employ, with the prior written consent of Harmony, any professional or other person to provide professional services to the Trust;
|
7.8
|
to adopt such further procedures and do such further things as the Trustees deem necessary or advisable for the due and proper administration of this Trust, including all things necessary to pay any relevant taxes (including any dividend withholding tax or any other taxes that may be required by law to be withheld and paid) timeously, in order to achieve the object of this Trust;
|
7.9
|
to exercise each and every power which they may or could require for the due and proper administration of this Trust, in order to achieve all of the intents and object of this Trust;
|
7.10
|
to invest any surplus monies of the Trust;
|
7.11
|
to defray expenses of the Trust in accordance with clause 21 below;
|
7.12
|
to deal with the Pool Shares at the expiry of the Lock-in Period in accordance with clause 17 below; and
|
7.13
|
to exercise rights associated with corporate action attaching to the Trust Shares, including to attend meetings of shareholders of the Company.
|
8.
|
DUTIES OF THE TRUSTEES
|
8.1
|
The Trustees shall establish a Beneficiary register in which they shall record the following:
|
8.1.1
|
the number of Participation Units Allocated to each Beneficiary as set out in the Allocation Notice;
|
8.1.2
|
the Allocation Date in respect of each Beneficiary; and
|
8.1.3
|
all distributions of income and/or capital made to Beneficiaries in terms of this Trust Deed.
|
8.2
|
The Trustees shall procure that all shares owned by the Trust are registered in the name of the Trust or its nominee.
|
8.3
|
The Trustees shall not incur liabilities other than as specifically permitted by this Trust Deed.
|
8.4
|
The Trustees shall not, prior to the expiry of the Lock-in Period be entitled to:
|
8.4.1
|
Encumber any Trust Shares;
|
8.4.2
|
Sell any Trust Shares;
|
8.4.3
|
enter into any agreement in respect of any votes attached to any Trust Shares or enter into any derivative transaction in respect of any Trust Shares; or
|
8.4.4
|
agree, whether or not subject to any suspensive or resolutive condition, to do any of the foregoing;
|
8.5
|
The Trustees shall not make any distribution of capital or income from the assets of this Trust to the Beneficiaries or otherwise in a manner other than that specified in this Trust Deed.
|
8.6
|
The Trustees shall make a copy of the Trust Deed available to the Beneficiaries upon request.
|
8.7
|
The Trustees shall procure that any employees’ tax as provided for in the Fourth Schedule of the Income Tax Act, 58 of 1962 (as amended), which is payable by Harmony or the Trust in relation to the benefits received by the Beneficiaries in terms of this Trust Deed, is timeously collected by Harmony or the Trust from the relevant Beneficiary and paid to the South African Revenue Service. For the avoidance of doubt, any employees’ tax payable by Harmony or the Trust:
|
8.7.1
|
will be deducted from any remuneration payable to the Beneficiary; or
|
8.7.2
|
will be withheld from the proceeds of the sale of any Harmony Shares held for the Beneficiary’s benefit which are to be distributed to the Beneficiary following the expiry of the Lock-in Period.
|
8.8
|
Each Beneficiary appoints the Trustees as his agent and authorizes the Trustees to dispose of sufficient Trust Shares in accordance with clause 8.7 in order to settle any employees’ tax due.
|
9.
|
BOOKS OF ACCOUNT AND AUDITORS
|
9.1
|
The Trustees shall keep true and correct records and books of account of their administration of the Trust in such manner and form that the records and books of account shall at all times reflect the financial position of the Trust.
|
9.2
|
There shall be recorded in such records and books of account, inter alia, any change to the Trust assets from time to time and the income and/or the expenses applicable to the administration of the Trust.
|
9.3
|
Such records and books of account, together with all other papers and documents connected with or relating to the Trust, shall be kept at a place under the control of the Trustees.
|
9.4
|
The Trustees shall appoint the South African auditors of Harmony from time to time as the Auditors of this Trust. The financial year end of the Trust shall be the financial year end of Harmony, which is currently 30 June of each year.
|
9.5
|
The Trustees shall ensure that the books of account are audited, and shall ensure that the Auditors prepare annual financial statements.
|
9.6
|
The Auditors shall have the right of access at all times to the records and books of account of the Trust, and shall be entitled to demand from the Trustees such information and explanations as may be necessary for the performance of their duties as Auditors.
|
10.
|
PRIVILEGES OF THE TRUSTEES
|
10.1
|
The Trustees shall be exempt from any obligation to furnish security in connection with their appointment and/or for the due administration of the Trust to the Master of the High Court or any other person, body or authority as provided for in the Statutes or any other law. The Master of the High Court and any such other person is hereby directed to dispense with and not to require security.
|
10.2
|
Subject to the Statutes:
|
10.2.1
|
no Trustee shall be liable to make good to the Trust or any Beneficiary any loss occasioned or sustained by any cause, howsoever arising, except such losses as may arise from or be occasioned by his own personal dishonesty or other wilful misconduct or gross negligence;
|
10.2.2
|
no Trustee shall be liable for any act of dishonesty or other misconduct committed by any other Trustee unless he knowingly allowed it or was an accessory to such dishonesty or other misconduct;
|
10.2.3
|
the Trustees shall be indemnified out of the assets of the Trust against all claims and demands of whatsoever nature that may be made upon them arising out of the exercise or purported exercise of any of the powers hereby conferred upon them;
|
10.2.4
|
if the Trustees bona fide make any payment to any person whom they assume to be entitled thereto under the terms of this Trust Deed and it is subsequently found that the recipient was not entitled thereto hereunder, the Trustees shall nevertheless not be responsible for the monies so paid; and
|
10.2.5
|
the Trustees may rely, and shall not incur any liability as a consequence of relying, on any document, resolution or the like (or any copy thereof) which they reasonably believe to be authentic.
|
10.3
|
The Trustees shall be reimbursed for all reasonable and necessary expenses incurred by them on behalf of, or for the benefit of the Trust, including taxes.
|
10.4
|
The Trustees shall not be remunerated for their services as Trustees.
|
11.
|
ALLOCATION OF PARTICIPATION UNITS TO BENEFICIARIES
|
11.1
|
As soon as reasonably possible following the registration of the Trust, applying the Allocation Criteria, the Trustees shall send/deliver a once-off Allocation Notice to each selected Eligible Employee (whether electronically or otherwise), specifying, inter alia, the number of Participation Units that are to be vested in the Eligible Employee and the number of Trust Shares which are attributable to those Participation Units and the relevant Allocation Date applicable to those Participation Units.
|
11.2
|
Upon the Trustees sending/delivering such Allocation Notice, each Eligible Employee shall be deemed to have accepted such Allocation and the terms of the Trust Deed and shall immediately become a Beneficiary of this Trust. Should any Eligible Employee choose not to accept such Allocation they will be advised in the Allocation Notice of a contact number which they can call in order to formally reject the Allocation made in terms of the Allocation Notice. Any Eligible Employee who fails to follow such procedure within a period of 10 (ten) days from the Allocation Date stipulated in the Allocation Notice, shall be deemed to have accepted the Allocation and the terms of this Trust Deed and shall automatically become a Beneficiary of the Trust.
|
11.3
|
For the avoidance of doubt, the Allocation of Participation Units to a Beneficiary in terms of this clause 11 is subject to the employment service requirements contained in clause 13, and to the restrictions on transferability of those Participation Units until the expiry of the Lock-in Period, as set out in clause 12 below.
|
11.4
|
The Trust Shares that are attributable to the Participation Units that have been Allocated to a Beneficiary in terms of this clause 11, shall be registered in the name of this Trust to be held by this Trust on behalf of the Beneficiary concerned until the expiry of the Lock-in Period.
|
11.5
|
In the event of the cancellation of Participation Units in terms of this Trust Deed, the Trustees shall adjust the Beneficiary register referred to in clause 8.1 to reflect this. The Trust Shares that were attributable to those Participation Units that were cancelled shall then form part of the Pool Shares.
|
11.6
|
The Trustees shall Allocate Participation Units resulting in a vesting of the Pool Shares in terms of this Trust Deed, at any point in time prior to the expiry of the Lock-in Period, in accordance with and in the same manner set out in this clause 11. Accordingly, applying the Allocation Criteria, The Trustees shall send Allocation Notices to Eligible Employees that join/qualify after the initial Allocation of Participation Units for purposes of Allocating the Pool Shares provided that this takes place no later than the end of the month following the month during which such Eligible Employee qualified for participation in terms of this Trust.
|
12.
|
RESTRICTIONS ON TRANSFERABILITY OF UNITS
|
12.1
|
Prior to the expiry of the Lock-in Period no Beneficiary shall be entitled to:
|
12.1.1
|
Encumber his Participation Units;
|
12.1.2
|
Sell his Participation Units;
|
12.1.3
|
enter into any agreement in respect of any votes attached to his Participation Units or enter into any derivative transaction in respect of his Participation Units;
|
12.1.4
|
agree, whether or not subject to any suspensive or resolutive condition, to do any of the foregoing; or
|
12.1.5
|
Sell or Encumber any Harmony Shares or enter into any agreement in respect of any votes attached to his Harmony Shares or enter into any derivative transaction in respect of his Harmony Shares.
|
12.2
|
In the event that a Beneficiary purports to do or does anything listed in clause 12.1 at any time prior to the expiry of the Lock-in Period, the Participation Units of the defaulting Beneficiary will be cancelled for no consideration, and he shall cease to be a Beneficiary of this Trust. The attributable Trust Shares in respect of such cancelled Participation Units shall thereafter form part of the Pool Shares and the Trustees shall adjust the Beneficiary register referred to in clause 8.1 to reflect this.
|
13.
|
EMPLOYMENT SERVICE REQUIREMENTS
|
13.1
|
If a Beneficiary ceases to remain in the employ of Harmony prior to the expiry of the Lock-in Period, his Participation Units shall be cancelled on the terms and subject to the conditions of this clause 13.
|
13.2
|
In cases where the Beneficiary ceases to remain in the employ of Harmony and is regarded as a Good Leaver in terms of clause 14.1, the full number of the Beneficiary’s Participation Units will forthwith be cancelled for consideration (less any transaction costs and taxes), being the proceeds from the sale of the attributable Trust Shares as set out in clause 14.1.2, and he will thereafter cease to be a Beneficiary of the Trust.
|
13.3
|
In the event that a Beneficiary ceases to be an employee of Harmony prior to the expiry of the Lock-in Period, and that Beneficiary is a Bad Leaver in terms of clause 14.2, all of that Beneficiary’s Participation Units will forthwith be cancelled for no consideration, and he will cease to be a Beneficiary of the Trust.
|
14.
|
TERMINATION OF EMPLOYMENT
|
14.1
|
Good Leaver / No Fault Termination
|
14.1.1
|
For the purposes of clause 13, if a Beneficiary leaves the employ of Harmony by reason of:
|
14.1.1.1
|
retirement, if such retirement takes place on or after the “Normal Retirement Age” in accordance with the rules applicable to Harmony;
|
14.1.1.2
|
termination of employment for operational requirements (retrenchment);
|
14.1.1.3
|
termination of employment for permanent ill-health, permanent injury or disability, as determined to the satisfaction of Harmony and in accordance with the rules applicable to the Company;
|
14.1.1.4
|
the Beneficiary leaving the employ of Harmony due to his death at any point prior to the expiry of the Lock-in Period;
|
14.1.1.5
|
the Beneficiary remaining in the employ of Harmony but no longer qualifying as an Eligible Employee by reason of being promoted to “Management” (in accordance with Company’s recognised employment/occupational levels, as ordinarily understood and applied by the Company); or
|
14.1.1.6
|
due to the fact he/she is no longer employed by Harmony by reason of being transferred along with a mine or mining operation sold or transferred by Harmony as a going concern, then
|
14.1.2
|
Where the Beneficiary is a Good Leaver as contemplated in clause 14.1.1, the Beneficiary shall retain his full number of Participation Units until such time as his attributable Trust Shares are sold in terms of the bulk sale contemplated in terms of clause 14.1.3. The Beneficiary’s Participation Units shall remain subject to the restrictions contained in clause 12 until the last Business Day immediately prior to the date on which such bulk sale commences.
|
14.1.3
|
On any Business Day following the 23rd of each month a bulk sale of all Trust Shares attributable to all Good Leavers (whose termination of employment or promotion, as the case may be, took place from the 24th of the prior month to the 23rd of the current month), shall take place. Immediately prior to the bulk sale, the Beneficiary’s Participation Units shall be cancelled, the attributable Trust Shares shall then be sold per the bulk sale, and the proceeds derived from such sale shall be distributed to the Beneficiary (or his estate as the case may be), less any transaction costs and less any amounts required to be withheld for tax purposes. In calculating the amount of proceeds to be distributed to each Beneficiary, the Trustees shall apply an average amount attributable to each Trust Share sold in the bulk sale, determined in accordance with the formula contained in clause 17.2.3. The Beneficiary will also receive any accumulated Dividends, which have accrued to him in accordance with clause 16.1. For the avoidance of any doubt, the taxing event in respect of each Good Leaver shall be the volume weighted average price of the last Business Day immediately prior to the date on which the bulk sale commences.
|
14.2
|
Bad Leaver / Fault Termination
|
14.2.1
|
For the purposes of clause 13, if a Beneficiary leaves the employ of Harmony by reason of:
|
14.2.1.1
|
being lawfully dismissed, whether on grounds of termination of employment for poor performance, misconduct, or otherwise; or
|
14.2.1.2
|
resignation;
|
14.2.2
|
Where the Beneficiary is a Bad Leaver as contemplated in clause 14.2.1, all of that Beneficiary’s Participation Units shall forthwith be cancelled for no consideration, in terms of clause 13 and he shall cease to be a Beneficiary of this Trust and shall forfeit any future beneficial interest in the Trust. The attributable Trust Shares in respect of such cancelled Participation Units shall thereafter form part of the Pool Shares. The Beneficiary will however, receive any accumulated Dividends which have accrued to him in accordance with clause 16.1.
|
14.2.3
|
In the event that a Beneficiary is a Bad Leaver on the grounds set out in clause 14.2.1 and is however subsequently lawfully reinstated back to the employ of Harmony at any time prior to the expiry of the Lock-in Period, such person’s Participation Units shall be re-allocated in accordance with clause 11 and such person shall be re-instated as a Beneficiary of the Trust and be placed in the same position as he/she would have been as though he had not previously left Harmony’s employ.
|
14.2.4
|
In the event that a Beneficiary is a Bad Leaver on the grounds set out in clause 14.2.1 and is however subsequently lawfully reinstated back to the employ of Harmony after the expiry of the Lock-in Period, Harmony shall make a compensatory payment to such employee calculated with reference to the value of all benefits that they would have received had such employee remained a Beneficiary of the Trust as from the date of their initial termination of employment, provided that such employee provides proof to Harmony of the dispute (which gave rise to their reinstatement) having been formally lodged with the CCMA and/or the Labour Court either prior to the expiry of the Lock-in Period, or at least within 14 (fourteen) days thereafter.
|
15.
|
VOTING OF SHARES
|
16.
|
DISTRIBUTION OF INCOME
|
16.1
|
All Dividends received by the Trust in respect of the Trust Shares held on behalf of Beneficiaries attributable to their Participation Units shall immediately vest in the Beneficiary concerned. The Dividends shall however be retained and held in Trust by the Trustees on the Beneficiary’s behalf, and thereafter such Dividends accumulated on the Beneficiary’s behalf shall be paid by the Trustees to the Beneficiary less any relevant taxes applicable (including any dividend withholding tax that may have been payable), either upon the Beneficiary’s termination of employment, if such Beneficiary ceases to remain in the employ of Harmony prior to the expiry of the Lock-in Period, or upon the expiry of the Lock-in Period. Any dividends accumulated on the Beneficiaries’ behalf in terms of this clause 16.1 shall not accrue any interest and shall be held by the Trust in an appropriate bank account/facility for such purpose. For the purposes of determining a Beneficiary’s liability for dividend withholding tax imposed in terms of section 64E of the Income Tax Act, 58 of 1962 (as amended), the Trustees shall notify the relevant regulated intermediary that the Beneficiary concerned is the beneficial owner of the dividend and the Trustees shall ensure that all the appropriate documentation required for dividend withholding tax purposes has been obtained.
|
16.2
|
All Dividends received by the Trust in respect of the Pool Shares held by the Trust shall vest in and be paid to the Trust less any relevant taxes applicable (including any dividend withholding tax that may be payable). The amount received shall be used to defray any costs incidental to the administration of the Trust (including any taxes, costs and liabilities of the Trust) in accordance with clause 21.
|
17.
|
DISTRIBUTION OF SHARES AFTER EXPIRY OF THE LOCK-IN PERIOD
|
17.1
|
Upon the expiry of the Lock-in Period, each Beneficiary shall be entitled to such number of Trust Shares (excluding any Pool Shares), which are directly attributable to the number of Participation Units held by each Beneficiary and their vested rights derived therein.
|
17.2
|
Unless the Trustees receive a written notice from a Beneficiary at least 60 (sixty)days prior to the expiry of the Lock-in Period, indicating:
|
17.2.1
|
that he/she wishes to receive the Trust Shares;
|
17.2.2
|
how he/she intends to settle any attributable taxes if receiving the actual Trust Shares;
|
17.2.3
|
as well as providing details of their nominated or appointed broker/CSDP account into which those shares must be transferred to;
|
“Y”
|
represents the average amount of proceeds per Trust Share sold as part of the bulk sale;
|
“E”
|
represents the total proceeds from the bulk sale of the Trust Shares (specifically excluding any Pool Shares);
|
“F”
|
represents the total amount of costs and securities transfer taxes that are attributable to the bulk sale; and
|
“G”
|
represents the total Trust Shares sold as part of the bulk sale (specifically excluding any Pool Shares).
|
17.3
|
With respect to the unallocated Pool Shares held by the Trust upon the expiry of the Lock-in Period, the Trustees shall at their discretion, be entitled to transfer the Pool Shares to any other Harmony trust with similar objectives to the Trust, or be entitled to sell such Pool Shares and pay over the proceeds from the sale of such Pool Shares to Harmony (provided the proceeds will ultimately benefit its employees), or any other Harmony trust with similar objectives to the Trust (net of any taxes or costs).
|
18.
|
CHANGE OF CONTROL
|
19.
|
MANDATORY SALE
|
19.1
|
Should the Trustees receive a written offer to purchase all or any of the Trust Shares held by the Trust (the Offer), before the expiry of the Lock-in Period, the Trustees shall not be entitled to sell those shares unless:
|
19.1.1
|
there is an order in terms of section 155 of the Companies Act requiring them to do so; or
|
19.1.2
|
there is an invocation of section 124 of the Companies Act and in such event only so many shares as are proportionate to offers accepted by the Beneficiaries in terms of section 124 of the Companies Act.
|
19.2
|
Should a sale referred to in clause 19.1 take place, the Trustees shall distribute the proceeds (net of any taxes or costs) in accordance with clause 17.
|
20.
|
VARIATION OF RIGHTS
|
20.1
|
For purposes of this clause, “Variation” shall mean, in relation to the issued share capital of Harmony, a capitalisation issue, a rights issue, a dividend in specie, an offer or invitation made by way of rights, a subdivision, a consolidation or a reduction, or any other variation which Harmony believes justifies an adjustment to a Beneficiary’s Participation Units.
|
20.2
|
In the event of a Variation, the number of Trust Shares stipulated in the Beneficiary register against the name of the Beneficiaries will be adjusted in proportion to each Beneficiary’s Participation Units in the manner that Harmony considers appropriate to take account of the Variation, provided that the Auditors shall certify that as far as possible in the circumstances the Beneficiaries are placed in a substantially similar position as they were before the Variation.
|
21.
|
COSTS, EXPENSES AND TAXATION
|
21.1
|
Until the expiry of the Lock-in Period, the Trust shall where possible, bear the reasonable costs, expenses and taxes of the Trust, using Dividends received by the Trust from the Pool Shares.
|
21.2
|
If the Trust has insufficient funds to pay costs, expenses, taxes or any amounts incurred by and/or due and payable by the Trust in accordance with the terms of this Trust Deed, these shall be borne by Harmony with no recourse against the Trust, the Trustees or the Beneficiaries.
|
22.
|
ADMINISTRATION OF THE TRUST
|
22.1
|
The Trustees shall be entitled, subject to the provisions of this Trust Deed and any applicable law, to make and establish such rules and regulations, and to amend same from time to time, as they may deem necessary or expedient for the proper implementation and administration of this Trust.
|
22.2
|
Harmony shall be entitled to select an Administrator for this Trust and shall be entitled to instruct the Trustees to appoint the selected Administrator to administer this Trust. The Trustees shall procure that the Administrator enters into a written administration agreement on terms and conditions approved by Harmony, in respect of the administration of this Trust. In the event that the Trustees wish to amend the terms of the administration agreement or terminate the administration agreement with the appointed Administrator in order to appoint another administrator, the prior written consent of Harmony shall be obtained.
|
23.
|
AMENDMENTS TO THIS TRUST DEED
|
23.1
|
The Trustees shall be entitled to amend this Trust Deed with the prior written consent of Harmony, provided that the amendment is in accordance with the object of the Trust. The Trustees shall not be required to obtain consent of the Beneficiaries in respect of any amendment to this Trust Deed, other than in respect of a proposed amendment which adversely affects or impacts any of the vested rights which the Beneficiaries (current or existing Beneficiaries at the time of the proposed amendment) have in the Trust.
|
24.
|
TERM OF THE TRUST AND THE WINDING UP OF THE TRUST
|
24.1
|
This Trust shall terminate if Harmony and the Trustees so resolve after a period of at least 3 (three) months following the distribution to the Beneficiaries in accordance with the provisions of clause 17.
|
24.2
|
Upon termination of this Trust, if for any reason the Trustees are still unable to distribute the share proceeds to a Beneficiary in accordance with clause 17, that Beneficiary’s Participation Units shall forthwith be cancelled for no consideration and the Beneficiary shall cease to be a Beneficiary of this Trust. The Trustees shall thereafter pay over such proceeds to Harmony (provided the proceeds will ultimately benefit its employees) or any other Harmony trust with similar objectives to the Trust (net of any taxes or costs).
|
25.
|
ARBITRATION
|
25.1
|
In the event of any dispute, difference, controversy or claim (a Dispute) arising out of or relating to this Trust Deed, or the breach, termination or invalidity hereof, then any Party may give written notice to the other Parties to initiate the procedure set out below.
|
25.2
|
The Dispute shall be finally settled by arbitration.
|
25.3
|
The arbitration shall take place in accordance with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (as revised in 2010), which rules are deemed to be incorporated by reference into this clause.
|
25.4
|
The appointing authority in terms of the UNCITRAL Arbitration Rules shall be the Association of Arbitrators (Southern Africa).
|
25.5
|
The number of arbitrators shall be 1 (one) who shall be appointed by the Association of Arbitrators (Southern Africa).
|
25.6
|
Unless agreed otherwise by the Parties in writing:
|
25.6.1
|
the arbitration shall be administered by the Trustees and Harmony;
|
25.6.2
|
the arbitration shall be held in Sandton, Johannesburg, South Africa;
|
25.6.3
|
the arbitration shall be conducted in the English language;
|
25.6.4
|
the governing procedural law of the arbitration shall be the laws of the South Africa;
|
25.6.5
|
the arbitrators referred to in clause 25.5 shall have the same remedial powers as a court of law in the South Africa would have were it adjudicating the dispute; and
|
25.6.6
|
the Trustees and Harmony shall use their reasonable endeavours to procure that the arbitrators shall deliver an award together with written reasons within 60 (sixty) days from the date after completion of the arbitration hearing and service of any post-hearing briefs or submissions.
|
25.7
|
Save and to the extent that disclosure may be required of a Party by legal duty or to protect or pursue a legal right or to enforce or challenge an award rendered in any arbitration commenced pursuant to this clause 25 each Party hereby agrees to keep confidential the existence of any arbitration that may be commenced pursuant to this clause 25 and to keep confidential all awards, all materials created for purposes of the arbitration proceedings in question and all other documents produced by a party in the arbitration proceedings and which are not otherwise already in the public domain.
|
25.8
|
Nothing in this clause 25 shall preclude any Party from seeking interim and/or urgent relief from a Court of competent jurisdiction and to this end the Parties hereby consent to the jurisdiction of the High Court of South Africa (South Gauteng High Court, Johannesburg).
|
26.
|
ADDRESSES FOR LEGAL PROCESS AND NOTICES
|
26.1
|
The Parties choose for the purposes of this Trust Deed the following addresses and email addresses:
|
26.1.1
|
Harmony and the Trustees:
|
26.1.2
|
Beneficiaries:
|
26.2
|
Any legal process to be served on any of the Parties may be served at the physical address specified in clause 26 and each Party chooses that address as its domicilium citandi et executandi for all purposes under this Trust Deed.
|
26.3
|
A Party who gives a notice or other communication to any other Party in terms of this Trust Deed shall simultaneously give a copy of such notice or other communication to the other Party to this Trust Deed; provided that if a Beneficiary gives notice or other communication to the Trustees / a Trustee in terms of this Trust Deed he shall not be required to give a copy of such notice or other communication to the other Beneficiaries.
|
26.4
|
Any notice or other communication to be given to any of the Parties in terms of this Trust Deed shall be valid and effective only if it is given in writing, which for purposes of communication with the Beneficiaries shall be deemed to include electronic communication.
|
26.5
|
A notice to any Party which is sent by registered post in a correctly addressed envelope to the postal address specified for it in clause 26.1 shall be deemed to have been received (unless the contrary is proved) within 14 (fourteen) days from the date it was posted, or which is delivered to a Party by hand at that address shall be deemed to have been received on the day of delivery, provided it was delivered to a responsible person during ordinary business hours (being 09h00 – 17h00).
|
26.6
|
Each notice by email to a Party at the email address specified in clause 26.1, shall be deemed to have been received (unless the contrary is proved) within 24 (twenty four) hours of transmission if it is transmitted during normal business hours of the receiving Party or within 24 (twenty four) hours of the beginning of the next Business Day at the destination after it is transmitted, if it is transmitted outside those business hours.
|
26.7
|
Notwithstanding anything to the contrary in this clause 26, a written notice or other communication actually received by any Party shall be adequate written notice or communication to it notwithstanding that the notice was not sent to or delivered at its chosen address.
|
26.8
|
Any Party may by written notice to the other Parties change its address or email address for the purposes of clause 26.1 to any other address (other than in the case of the physical address to a post office box number) provided that the change shall become effective on the 7th (seventh) day after the receipt of the notice.
|
|
For and on behalf of
HARMONY GOLD MINING COMPANY LIMITED
____________________________
Signatory: Peter Steenkamp and Frank Abbott
Capacity: Chief Executive Officer and Financial Director
Who warrants their authority hereto
|
|
____________________________
RIANA BISSCHOFF
|
|
|
|
|
|
|
|
|
|
|
|
Employee who joins after month 3
|
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
X = ( A / B ) * C
|
|
|
|
|
|
|
|
|
|
|
A = (36 - 0) = 36
|
|
|
|
|
|
|
|
|
|
|
B = 36
|
|
|
|
|
|
|
|
|
|
|
C = 225
|
|
|
|
|
|
|
|
|
|
|
X =
|
225
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As this is within the initial 6 months "grace period" Employee is deemed to receive full number of units
|
|
|
|
|||||||
|
|
|
|
|
|
|
|
|
|
|
Employee who joins after month 8
|
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
X = ( A / B ) * C
|
|
|
|
|
|
|
|
|
|
|
A = (36 - 8) = 28
|
|
|
|
|
|
|
|
|
|
|
B = 36
|
|
|
|
|
|
|
|
|
|
|
C = 225
|
|
|
|
|
|
|
|
|
|
|
X =
|
175
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employee who joins after month 15
|
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|
|
|
|
X = ( A / B ) * C
|
|
|
|
|
|
|
|
|
|
|
A = (36 - 15) = 21
|
|
|
|
|
|
|
|
|
|
|
B = 36
|
|
|
|
|
|
|
|
|
|
|
C = 225
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
X =
|
131
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
law | tax | forensics | IP Edward Nathan Sonnenbergs Incorporated registration number 2006/018200/21
|
|
1.
|
All capitalised terms in this recordal shall have the meaning attributed thereto in clause 1 of the agreement which follows this recordal (the "Agreement").
|
2.
|
AngloGold’s principal operating assets in South Africa comprise of the WW Package and the VR Package.
|
3.
|
The WW Package comprises of shares in and claims against certain entities and various other businesses, assets and liabilities (further detailed in paragraphs 6 and 7 below). The primary provisions pertaining to the sale of the WW Package are set out under Part B of this Agreement.
|
4.
|
The VR Package comprises of shares in and claims against certain entities and various other businesses, assets and liabilities (further detailed in paragraphs 8 and 9 below). The primary provisions pertaining to the sale of the VR Package are set out under Part C of this Agreement.
|
5.
|
AngloGold wishes to sell the Sale Package, comprising the WW Package and the VR Package, to the Purchaser, who wishes to purchase the same, on the terms and conditions of the Agreement.
|
6.
|
The WW Package is comprised primarily of –
|
6.1.
|
the Covalent Sale Equity;
|
6.2.
|
the AngloGold Security Services Sale Shares;
|
6.3.
|
the Masakhisane Sale Shares; and
|
6.4.
|
the WW Mining Business as a going concern.
|
7.
|
The WW Mining Business comprises the Sale Assets (WW), Sale Liabilities (WW) and Environmental Obligations (WW). In relation to the Environmental Obligations (WW), the Parties record and agree that the Environmental Obligations (WW) are not a separate and distinct existing liability, but a future unquantified cost inextricably linked with ownership of the Sale Assets (WW) and Sale Equity (WW) and therefore it would not be included in the Sale Liabilities (WW). The Parties further record and agree that, by virtue of the fact that the Purchaser is acquiring the Sale Assets (WW) and Sale Equity (WW), the Purchaser will become liable for the embedded Environmental Obligations (WW) in relation thereto in accordance with Environmental Law.
|
8.
|
The VR Package is comprised primarily of –
|
8.1.
|
the FUSA Sale Equity; and
|
8.2.
|
the VR Remaining Business as a going concern.
|
9.
|
The VR Remaining Business comprises the Sale Assets (VR), Sale Liabilities (VR) and Environmental Obligations (VR). In relation to the Environmental Obligations (VR), the Parties record and agree that the Environmental Obligations (VR) are not a separate and distinct existing liability, but a future unquantified cost inextricably linked with ownership of the Sale Assets (VR) and FUSA Sale Equity and therefore it would not be included in the Sale Liabilities (VR). The Parties further record and agree that, by virtue of the fact that the Purchaser is acquiring the Sale Assets (VR) and FUSA Sale Equity, the Purchaser will become liable for the embedded Environmental Obligations (VR) in relation thereto in accordance with Environmental Law.
|
10.
|
Accordingly the Parties wish to record in writing their agreement in respect of the above and matters ancillary thereto, which the Parties do in the Agreement hereunder.
|
Part A.
|
INTERPRETATION AND CONDITIONS PRECEDENT
|
1.
|
INTERPRETATION
|
1.1.
|
an expression which denotes -
|
1.1.1.
|
any gender includes the other genders;
|
1.1.2.
|
a natural person includes an artificial or juristic person and vice versa; and
|
1.1.3.
|
the singular includes the plural and vice versa;
|
1.2.
|
the definitional style used endeavours to use similar terminology for both of the WW Package and the VR Package, but in the case of the WW Package various defined terms incorporate the suffix "(WW)" and in the case of the VR Package various defined terms incorporate the suffix "(VR)".
|
1.3.
|
the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings -
|
1.3.1.
|
"1991 Agreement" means the agreement (included in the Data Room under folder 1.2.5.8.0.1 of the Data Room) concluded between Driefontein Consolidated Limited, Blyvooruitzicht Gold Mining Company Limited, and Western Deep Levels Limited in 1991, and as referred to in Annexure I;
|
1.3.2.
|
"Affiliate" means, in relation to any Party, any person Controlled by that Party, or which Controls that Party, or which is Controlled by a person which also Controls that Party, in each case, directly or indirectly and from time to time;
|
1.3.3.
|
"AFSA" means the Arbitration Foundation of South Africa (or its successor-in-title);
|
1.3.4.
|
"AGA Accounts" means the consolidated financial statements of AngloGold in respect of the VR Businesses, Chemwes Trust, the WW Businesses and the AngloGold Enviro Trust as at and in respect of the 1 (one) year period ended 31 December 2019, unaudited copies of which have been provided to the Purchaser;
|
1.3.5.
|
"Aggrieved Party" shall bear the meaning ascribed thereto in clause 50.1;
|
1.3.6.
|
"Agreement" means this sale agreement and includes its annexures, as amended from time to time;
|
1.3.7.
|
"AngloGold" means AngloGold Ashanti Limited (Registration No. 1944/017354/06), a limited liability public company incorporated under the laws of South Africa;
|
1.3.8.
|
"AngloGold Enviro Trust" means the AngloGold Environmental Trust registered at the Master’s Office with IT number 2191/91;
|
1.3.9.
|
"AngloGold Indemnified Persons (VR)" shall bear the meaning ascribed thereto in clause 42.1.3;
|
1.3.10.
|
"AngloGold Indemnified Persons (WW)" shall bear the meaning ascribed thereto in clause 24.1.3;
|
1.3.11.
|
"AngloGold Security Services" means AGA Security Services Proprietary Limited (Registration No. 2016/085046/07), a private company incorporated in accordance with the laws of South Africa;
|
1.3.12.
|
"AngloGold Security Services Accounts" means all of the unaudited management accounts of AngloGold Security Services for and during the financial year ended 31 December 2019, copies of which have been provided via the Data Room to the Purchaser prior to the Signature Date;
|
1.3.13.
|
"AngloGold Security Services Business" means the business operated by AngloGold Security Services as at the Closing Date being, among other things, the business of holding non-lethal weapons and armoured security vehicles which are used by AngloGold in the WW Region and the VR Region and matters related thereto;
|
1.3.14.
|
"AngloGold Security Services Sale Shares" means 1 (one) ordinary no par value share in the issued share capital of AngloGold Security Services;
|
1.3.15.
|
"Authorised Employees" shall bear the meaning ascribed thereto in clause 4.6;
|
1.3.16.
|
"Authorised Representatives (VR)" shall bear the meaning ascribed thereto in clause 29.3.7.2;
|
1.3.17.
|
"Authorised Representatives (WW)" shall bear the meaning ascribed thereto in clause 11.6.7.2;
|
1.3.18.
|
"BEE" means broad-based black economic empowerment as contemplated in the BEE Act;
|
1.3.19.
|
"BEE Act" means the South African Broad-Based Black Economic Empowerment Act, No.53 of 2003;
|
1.3.20.
|
"BEE Amendment Application" means the application in terms of section 102 of the MPRDA lodged by AngloGold at the DMRE on or about 7 March 2019, in terms of which AngloGold has applied for the Minister's consent to amend clause 17 of WW Mining Right 01 MR and WW Mining Right 11 MR to read as set out in the said application and simultaneously to discharge a directive issued in terms of section 93 of the MPRDA and dated 25 February 2019;
|
1.3.21.
|
"BEE Amendment Ministerial Consent" means the consent of the Minister in terms of section 102 of the MPRDA to amend clause 17 of WW Mining Right 01 MR and WW Mining Right 11 MR as set out in the BEE Amendment Application;
|
1.3.22.
|
"Business Day" means any day other than a Saturday, Sunday or official public holiday in South Africa;
|
1.3.23.
|
"Cash Portion (VR)" shall bear the meaning ascribed thereto in clause 34.1.1;
|
1.3.24.
|
"Cash Portion (WW)" shall bear the meaning ascribed thereto in clause 16.1.1;
|
1.3.25.
|
"CAWMS" means continuation and widow members;
|
1.3.26.
|
"CAWMS Liability" means amounts owed by AngloGold required to fund membership contributions and other liabilities in respect of CAWMS in the relevant healthcare schemes in relation to employees of the WW Businesses and/or VR Businesses, who have retired or will retire on or before the Closing Date;
|
1.3.27.
|
"Chemwes" means Chemwes Proprietary Limited (Registration No. 1964/002378/07), a private company incorporated in accordance with the laws of South Africa;
|
1.3.28.
|
"Chemwes Accounts" means all of the unaudited management accounts of Chemwes for and during the financial year ended 31 December 2019, copies of which have been provided via the Data Room to the Purchaser prior to the Signature Date;
|
1.3.29.
|
"Chemwes Business" means the business operated by Chemwes as at the Closing Date being, among other things, the business of processing of tailings storage facilities and matters related thereto in the VR Region;
|
1.3.30.
|
"Chemwes Property" means all of the immoveable property owned by Chemwes;
|
1.3.31.
|
"Chemwes Trust" means the Chemwes Rehabilitation Trust, registered at the Master’s Office with IT number 2999/97;
|
1.3.32.
|
"Chemwes Trust Money" means all money and any other assets held by the Chemwes Trust as at the Closing Date (including all interest accrued on such money during the Interim Period), the value of which amounted to approximately R89 619 474 (eighty nine million six hundred and nineteen thousand and four hundred and seventy four Rand) as at 31 December 2019;
|
1.3.33.
|
"Claim" means any claims, actions, demands, proceedings, litigation, audit, citation, summons, subpoena or investigations of any nature (whether civil, criminal, administrative, regulatory or otherwise) which may be instituted, made, threatened, established or alleged against or otherwise involving a Party;
|
1.3.34.
|
"Claim Notice" shall bear the meaning ascribed thereto in paragraph 1.1.1 of Annexure C;
|
1.3.35.
|
"Closing" means the completion of all of the matters contemplated in clauses 11, 16, 29 and 34 in accordance with this Agreement on the Closing Date;
|
1.3.36.
|
"Closing Date" means:
|
1.3.36.1.
|
if the CP Fulfilment Date is on or before the 20th (twentieth) calendar day in any calendar month, the last Business Day of such month; or
|
1.3.36.2.
|
if the CP Fulfilment Date is after the 20th (twentieth) calendar day in any calendar month, the last Business Day of the month immediately following the month in which the CP Fulfilment Date occurs,
|
1.3.37.
|
"Companies Act" means the Companies Act No. 71 of 2008;
|
1.3.38.
|
"Competition Act" means the Competition Act, 1998;
|
1.3.39.
|
"Competition Authorities" means the Competition Commission established pursuant to Chapter 4, Part A of the Competition Act, the Competition Tribunal established pursuant to Chapter 4, Part B of the Competition Act or the Competition Appeal Court established pursuant to Chapter 4, Part C of the Competition Act, as the case may be;
|
1.3.40.
|
"Compliance Certificate (VR)" shall bear the meaning ascribed thereto in clause 29.3.17;
|
1.3.41.
|
"Compliance Certificate (WW)" shall bear the meaning ascribed thereto in clause 11.6.17;
|
1.3.42.
|
"Conditions Precedent" means the conditions precedent set out in clauses 2.1.1 to 2.1.7 (inclusive);
|
1.3.43.
|
"Confidential Contracts (VR)" shall bear the meaning ascribed thereto in clause 37.5.4;
|
1.3.44.
|
"Confidential Contracts (WW)" shall bear the meaning ascribed thereto in clause 19.5.4;
|
1.3.45.
|
"Consenting Parties (VR)" shall bear the meaning ascribed thereto in clause 29.1.1.3;
|
1.3.46.
|
"Consenting Parties (WW)" shall bear the meaning ascribed thereto in clause 11.1.1.3;
|
1.3.47.
|
"Consolidation Application" means the application in terms of section 102 of the MPRDA to be lodged by the WW Purchaser at the DMRE in accordance with clause 4.9 in terms of which the WW Purchaser applies for the Minister's consent to amend WW Mining Right 01 MR in order inter alia to incorporate the WW Mining Right 11 MR into WW Mining Right 01 MR together with such consequential and other amendments, as the WW Purchaser may require to the relevant social and labour plans; mining work programmes and environmental management programme;
|
1.3.48.
|
"Consolidation Application Ministerial Consent" means the consent of the Minister granted in terms of section 102 of the MPRDA to amend WW Mining Right 01 MR in accordance with the Consolidation Application;
|
1.3.49.
|
"Consumable Stores (VR)" means: (a) the consumable stores dedicated to the VR Remaining Sale Assets as listed in folder 1.3.10.6.0.1/2 of the Data Room; and (b) all other consumable stores related to the VR Remaining Sale Assets and/or VR Remaining Business as at the Closing Date, all of which are located on the Consumable Stores Sites (VR);
|
1.3.50.
|
"Consumable Stores (WW)" means: (a) the consumable stores dedicated to the WW Mining Sale Assets as listed in folder 1.2.10.5.0.1 of the Data Room; and (b) all other consumable stores related to the WW Mining Sale Assets and/or the WW Mining Business as at the Closing Date, all of which are located on areas of the Immoveable Properties (WW);
|
1.3.51.
|
"Consumable Stores Sites (VR)" means, in respect of the Consumable Stores (VR), those areas in the Kopanang Gold Plant located on the VMR Portions in which the Consumable Stores (VR) in question are situated;
|
1.3.52.
|
"Contracts (VR)" means, collectively: (a) the contracts listed in Annexure J; the (b) Lease Agreements (VR); and (c) the contracts (and any rights and obligations contained therein) determined in accordance with clause 37.5 to be ceded, assigned, delegated or otherwise transferred to Harmony Moab (in whole or in part);
|
1.3.53.
|
"Contracts (WW)" means, collectively: (a) the contracts listed in Annexure I; (b) the Lease Agreements (WW); and (c) the contracts (and any rights and obligations contained therein) determined in accordance with clause 19.5 to be ceded, assigned, delegated or otherwise transferred to the WW Purchaser (in whole or in part);
|
1.3.54.
|
"Control" has the meaning given to it in section 2(2) of the Companies Act and "Controlling" and "Controlled" shall be construed accordingly;
|
1.3.55.
|
"Conveyancer" means Norton Rose Fulbright South Africa Inc. and/or such other conveyancers as may be appointed by AngloGold from time to time with the prior written consent of Harmony (acting reasonably);
|
1.3.56.
|
"COP" means AngloGold's code of practice in relation to mine residue management as listed in folders 1.2.2.7.1, 1.3.2.7.1 and 1.3.2.7.2 of the Data Room;
|
1.3.57.
|
"Covalent" means Covalent Water Company Proprietary Limited (Registration No. 2014/039793/07), a company incorporated in accordance with the laws of South Africa;
|
1.3.58.
|
"Covalent Accounts" means all of the unaudited management accounts of Covalent for and during the financial year ended 31 December 2019, copies of which have been provided via the Data Room to the Purchaser prior to the Signature Date;
|
1.3.59.
|
"Covalent Business" means the business operated by Covalent as at the Closing Date being, among other things, the business of water pumping activities and matters related thereto;
|
1.3.60.
|
"Covalent Indemnified Liability Loss" shall bear the meaning ascribed thereto in clause 24.3.1;
|
1.3.61.
|
"Covalent Sale Claims" means 100% (one hundred percent) of AngloGold's claims on loan account against Covalent as at the Closing Date;
|
1.3.62.
|
"Covalent Sale Equity" means, collectively, the Covalent Sale Claims and the Covalent Sale Shares;
|
1.3.63.
|
"Covalent Sale Shares" means 25 (twenty five) ordinary no par value shares in the issued share capital of Covalent;
|
1.3.64.
|
"Covalent Water Directive" means the directive dated 25 November 2014, issued to AngloGold and Covalent by the Acting Provincial Head: Gauteng in terms of section 19 and 20 of the NWA in regard to the dewatering and discharge of water in the Blyvooruitzicht mine shafts 4 and 6;
|
1.3.65.
|
"CP Fulfilment Date " means the date on which all of the Conditions Precedent have been fulfilled, or waived, as the case may be;
|
1.3.66.
|
"Critical Spares (VR)" means (a) all critical spares dedicated to the VR Remaining Sale Assets, as listed in folder 1.3.2.4.5.0.3 of the Data Room and (b) all other critical spares related to the VR Remaining Sale Assets and/or VR Remaining Business as at the Closing Date, all of which are located on the Critical Spares Sites (VR);
|
1.3.67.
|
"Critical Spares (WW)" means (a) all critical spares dedicated to the WW Mining Sale Assets, as listed in folder 1.2.2.4.5.0.3 of the Data Room and (b) all other critical spares related to the WW Mining Sale Assets and/or the WW Mining Business as at the Closing Date, all of which are located on areas of the Immoveable Properties (WW);
|
1.3.68.
|
"Critical Spares Sites (VR)" means, in respect of the Critical Spares (VR), those areas situated in the Kopanang Gold Plant located on the VMR Portions in which the Critical Spares (VR) in question are situated;
|
1.3.69.
|
"Data Room" means: (a) the electronic data rooms compiled by AngloGold and hosted by: (i) CapLinked Inc. via their website address https://secure.caplinked.com/workspaces/project-prism; and (ii) FileZilla via their website address http://www.filezilla@anglogoldashanti.com (Project Prism folder); and (b) the physical data room, access to which was made available to the Purchasers at 76 Rahima Moose Street, Newtown, Johannesburg, the index of which is uploaded under folders 1.2.9.1.0.1, 1.2.9.1.0.2, 1.3.9.1.0.1, 1.3.9.1.0.2 and 1.3.9.1.0.3, for the purposes of the Due Diligence Investigation, containing the Data Room Documents;
|
1.3.70.
|
"Data Room Documents" means the documents in the Data Room as at 05:00 (South African time) on 12 February 2020, an index of which is set out in Annexure KK;
|
1.3.71.
|
"Deeds Registry" means the public office responsible for the registration, management and maintenance of the property registry of South Africa;
|
1.3.72.
|
"Defaulting Party" shall bear the meaning ascribed thereto in clause 50.1;
|
1.3.73.
|
"Designated Party" means: any person or organization (a) whose name is specified in, or a list issued pursuant to, any resolution or legislation of the United Nations, South Africa, United Kingdom or United States relating to the designation of a person as a terrorist or terrorist organisation or blocking any assets of such person; (b) in respect of whom a party to this Agreement has received notice that all financial transactions involving the assets of such person have been, or are to be, blocked under legal authority; or (c) who is or was convicted, found guilty or against whom a judgment or order was entered in a court of competent jurisdiction in any proceedings for violating bribery, money laundering or terrorist financing laws;
|
1.3.74.
|
"DG Valuation (VR)" has the meaning set out in clause 34.3.1;
|
1.3.75.
|
"DG Valuation (WW)" has the meaning set out in clause 16.3.1;
|
1.3.76.
|
"Director General" has the meaning set out in clause 16.3.1;
|
1.3.77.
|
"Disclosure Schedule (VR)" means the disclosure schedule set out in Annexure E hereto;
|
1.3.78.
|
"Disclosure Schedule (WW)" means the disclosure schedule set out in Annexure D hereto;
|
1.3.79.
|
"Dispose" means sell, transfer, assign, cede, make over, give, donate, exchange, dispose of, unbundle, distribute or otherwise alienate or agree to do any of the aforegoing, and "Disposal" shall be construed accordingly;
|
1.3.80.
|
"Disputed Claim" shall bear the meaning ascribed thereto in paragraph 1.2 of Annexure C;
|
1.3.81.
|
"DMRE" means the South African Department of Mineral Resources and Energy;
|
1.3.82.
|
"Dollars" means USD;
|
1.3.83.
|
"Due Diligence Investigation" means the due diligence investigation conducted in respect of the Sale Package by the Purchaser and/or the Purchaser's Representative;
|
1.3.84.
|
"DWS" means the South African Department of Water, Sanitation and Human Settlements;
|
1.3.85.
|
"EIA Regulations" means the Environmental Impact Assessment Regulations, 2014 published under Government Notice No 982 in Gazette No 3822 of 4
|
1.3.86.
|
"Encumbrance" means any claim, charge, mortgage, lien, option, equity, power of sale, hypothecation, usufruct, retention of title, right of pre-emption, suretyship, cession in security, assignment, notarial bond, encumbrance, pledge, right of first refusal or security interest of any kind or an agreement, arrangement or obligation to create any of the foregoing;
|
1.3.87.
|
"ENSafrica" means Edward Nathan Sonnenbergs Inc. (Registration No. 2006/018200/21), a law firm conducting business as such in South Africa;
|
1.3.88.
|
"Environment" means the environment as defined in section 1 of NEMA and the term "Environmental" and other cognate terms shall be construed accordingly;
|
1.3.89.
|
"Environmental Approvals (VR)" means registrations, licences, permits, authorisations, exemptions, permissions, directives, entitlements, consents, waivers and approvals issued by any Environmental Authority pursuant to any Environmental Laws (including environmental authorisations and environmental management programmes) with respect to the VR Remaining Business, FUSA, MWS and Chemwes, including all amendments, variations, modifications or transfers relating thereto from time to time;
|
1.3.90.
|
"Environmental Approvals (WW)" means registrations, licences, permits, authorisations, exemptions, permissions, directives, entitlements, consents, waivers and approvals issued by any Environmental Authority pursuant to any Environmental Laws (including environmental authorisations and environmental management programmes) with respect to the WW Mining Business and Covalent, including all amendments, variations, modifications or transfers relating thereto from time to time;
|
1.3.91.
|
"Environmental Authority" means any legal person or body of persons (including any Governmental Entity or court or tribunal) having jurisdiction to determine any matter arising under Environmental Laws and/or relating to the Environment;
|
1.3.92.
|
"Environmental Indemnified Liability Loss (VR)" shall bear the meaning ascribed thereto in clause 42.1.3;
|
1.3.93.
|
"Environmental Indemnified Liability Loss (WW)" shall bear the meaning ascribed thereto in clause 24.1.3;
|
1.3.94.
|
"Environmental Laws" means all applicable Laws (including general remedies under the common law), statutes, regulations, statutory guidance notes and final and binding court and other tribunal decisions whose purpose is:
|
1.3.94.1.
|
to protect, or prevent pollution of, or to remedy damage to, the Environment;
|
1.3.94.2.
|
to protect or prevent or compensate harm to human health and safety;
|
1.3.94.3.
|
to regulate emissions, discharges or releases of Hazardous Substances into the Environment; or
|
1.3.94.4.
|
to regulate the use, treatment, storage, burial, disposal, transport or handling of Hazardous Substances,
|
1.3.95.
|
"Environmental Obligations (VR)" means all past, present and future embedded Environmental obligations and liabilities of AngloGold, under Environmental Laws relating to the VR Package, whether caused by AngloGold or not and whether known or unknown, including (without limitation) obligations and liabilities of AngloGold relating to such VR Package:
|
1.3.95.1.
|
under, in relation to or arising as a consequence of negligence or breach of or liability under Environmental Law, including without limitation all such obligations and liabilities in respect of the rehabilitation of the VR Region (notwithstanding the transfer, cession or delegation from AngloGold to, or appropriation by, the Purchaser of any prescribed financial provision made for the rehabilitation and remediation of any Environmental impacts), including without limitation any and all claims against AngloGold in respect of non-point sources of significant contamination as a result of transboundary migration of significant contamination from the VR Region;
|
1.3.95.2.
|
involving any Hazardous Substance, damage or harm to the Environment (irrespective of whether it is actual, latent or residual or whether it arises or is likely to arise at a different time from the actual activity that causes the contamination or whether it arises through an act or activity of any person that results in a change to the pre-existing contamination), site assessment or characterisation, remediation (including operation and maintenance), mine closure, treatment,
|
1.3.95.3.
|
in relation to the management, pumping and treatment of water in the VR Region, including AngloGold’s obligations arising from any directive issued by the DWS in respect of water pumping costs in the VR Region;
|
1.3.95.4.
|
relating to Environmentally related impacts on human health,
|
1.3.96.
|
"Environmental Obligations (WW)" means all past, present and future embedded Environmental obligations and liabilities of AngloGold, under Environmental Laws relating to the WW Package, whether caused by AngloGold or not and whether known or unknown, including (without limitation) any obligations and liabilities of AngloGold relating to such WW Package:
|
1.3.96.1.
|
under, in relation to or arising as a consequence of negligence or breach of or liability under Environmental Law, including without limitation all such obligations and liabilities in respect of the rehabilitation of the WW Region (notwithstanding the transfer, cession or delegation from AngloGold to, or appropriation by, the Purchaser of any prescribed financial provision made for the rehabilitation and remediation of any Environmental impacts), including without limitation any and all claims against AngloGold in respect of non-point sources of significant contamination as a result of transboundary migration of significant contamination from the WW Region;
|
1.3.96.2.
|
involving any Hazardous Substance, damage or harm to the Environment (irrespective of whether it is actual, latent or residual or whether it arises or is likely to arise at a different time from the actual activity that causes the contamination or whether it arises through an act or activity of any person that results in a change to the pre-existing contamination), site assessment or characterisation, remediation (including operation and maintenance), mine closure, treatment, containment, mitigation, removal, monitoring, assessing, resource
|
1.3.96.3.
|
in relation to the management, pumping and treatment of water in the WW Region, including AngloGold’s obligations arising from any directive issued by the DWS (including the Covalent Water Directive) in respect of water pumping costs in the WW Region;
|
1.3.96.4.
|
relating to Environmentally related impacts on human health,
|
1.3.97.
|
"Eskom" means Eskom Holdings SOC (Registration No. 2002/015527/30), a limited liability public company incorporated under the laws of South Africa;
|
1.3.98.
|
"Eskom Agreements" means:
|
1.3.98.1.
|
in relation to the VR Package: (a) the electricity supply agreement dated 4 November 1994 entered into between AngloGold and Eskom; and (b) the electricity supply agreement dated 28 February 2018 entered into between AngloGold and Eskom;; and
|
1.3.98.2.
|
in relation to the WW Package, the electricity supply agreement dated 6 August 2007 entered into between AngloGold and Eskom;;
|
1.3.99.
|
"Exchange Control Regulations" means the Exchange Control Regulations, 1961, as amended (including any applicable directive and rulings of the FSD and the National Treasury of South Africa);
|
1.3.100.
|
"Excluded Accounts Payable" means all claims by trade creditors of the VR Remaining Business and/or the WW Mining Business against AngloGold as at the Closing Date relating to the period prior to the Closing Date;
|
1.3.101.
|
"Excluded Liabilities" means:
|
1.3.101.1.
|
the Excluded Accounts Payable;
|
1.3.101.2.
|
all Tax obligations and liabilities of AngloGold or any of its Affiliates (excluding the Transferring Affiliates) relating to any of the VR Remaining Business and/or WW Mining Business which arise or are
|
1.3.101.3.
|
all liabilities and obligations arising from, or relating to, any share or security related options or plans, share appreciation rights, performance share rights, retention bonus arrangements, or similar type incentive arrangements or benefits to which any employee of AngloGold or any of its Affiliates is a party or which is otherwise held by or owing to any such employees at any time on or prior to the Closing Date;
|
1.3.101.4.
|
all liabilities and obligations (including any related severance payment obligations) arising from, or relating to, any retrenchments or dismissals of employees of AngloGold on or prior to the Closing Date;
|
1.3.101.5.
|
all assessment rates, taxes, levies, endowments and/or other municipal charges payable by AngloGold to the relevant local authority or council in connection with either the VR Region and/or WW Region, and all charges and fees payable to the relevant local authority or council for electricity, water, gas, refuse removal, sanitation and domestic and industrial effluent, or any of them, consumed in or at the VR Region and/or WW Region, in each case arising on or prior to the Closing Date;
|
1.3.101.6.
|
all liabilities and obligations arising from, or relating to, any debt, borrowing, lending or other financing facilities or commitments to which AngloGold or any of its Affiliates (excluding the FUSA Sale Claims and the Covalent Sale Claims) is a party or otherwise bound, including under or relating to the RCF Agreements;
|
1.3.101.7.
|
all liabilities and obligations arising from, or relating to, the CAWMS Liability; and
|
1.3.101.8.
|
all liabilities for which AngloGold is liable under the Silicosis Class Action Settlement Agreement;
|
1.3.102.
|
"Excluded Matter" means any one or more of the following:
|
1.3.102.1.
|
the entering into, compliance with or implementation of this Agreement;
|
1.3.102.2.
|
any act or omission of any member of the Group at the written request or with the written consent of the Purchaser;
|
1.3.102.3.
|
the Purchaser's failure to enter into an electricity and/or water supply agreement;
|
1.3.102.4.
|
any act or omission by the Purchaser;
|
1.3.102.5.
|
the operational performance of the Sale Package;
|
1.3.102.6.
|
any political event, circumstances, facts or matters;
|
1.3.102.7.
|
the effect of any change in:
|
1.3.102.7.1.
|
South African or international economic conditions (including specifically metal prices and exchange rates), credit markets, capital markets, macroeconomic factors, interest rates or financial markets in general;
|
1.3.102.7.2.
|
South African political environment;
|
1.3.102.7.3.
|
Laws (including without limitation any changes to the MPRDA);
|
1.3.102.7.4.
|
the Mining Charter;
|
1.3.102.8.
|
any war, act of terrorism, civil unrest or similar event which affects the Sale Package;
|
1.3.102.9.
|
any effect, circumstances or matters arising or resulting from any act performed or procured in terms of any one or more of the following:
|
1.3.102.9.1.
|
service delivery protests;
|
1.3.102.9.2.
|
community embargo/s; and/or
|
1.3.102.9.3.
|
illegal mining; and
|
1.3.102.10.
|
any effect, circumstances, facts or matters arising or resulting from any condition or restriction imposed by any Governmental Entity for the purpose of implementing any of the transactions set out in this Agreement;
|
1.3.103.
|
"Expert" means a person appointed in accordance with the provisions of clause 49;
|
1.3.104.
|
"FSD" means the Financial Surveillance Department of the South African Reserve Bank, responsible for the administration of exchange control on behalf of the
|
1.3.105.
|
"FUSA" means First Uranium Proprietary Limited (Registration No. 2005/033680/07), a private company incorporated under the laws of South Africa;
|
1.3.106.
|
"FUSA Accounts" means all of the unaudited management accounts of FUSA for and during the financial year ended 31 December 2019, copies of which have been provided via the Data Room to the Purchaser prior to the Signature Date;
|
1.3.107.
|
"FUSA Business" means the business operated by FUSA as at the Closing Date being, among other things, the business of an investment holding company and matters related thereto;
|
1.3.108.
|
"FUSA Sale Claims" means 100% (one hundred percent) of AngloGold's claims on loan account against each of FUSA, MWS and Chemwes, as at the Closing Date;
|
1.3.109.
|
"FUSA Sale Equity" means, collectively, the FUSA Sale Claims and the FUSA Sale Shares;
|
1.3.110.
|
"FUSA Sale Shares" means 1 633 (one thousand six hundred and thirty three) ordinary shares having a par value of R 1 (one Rand) per share in the issued share capital of FUSA;
|
1.3.111.
|
"Gold In Process (VR)" means, in relation to the Kopanang Gold Plant and the MWS Plant, the gold in process as at the Closing Date relating to the Kopanang Gold Plant and the MWS Plant and includes all material in such plants that can still be converted to gold that can be sold, which includes the gold associated with:
|
1.3.111.1.
|
the ore in the silos;
|
1.3.111.2.
|
the slime in the thickeners;
|
1.3.111.3.
|
the pulp in the leach and CIP (carbon in pulp) circuits; and
|
1.3.111.4.
|
carbon in the CIP (carbon in pulp) and elution circuits;
|
1.3.112.
|
"Gold In Process (WW)" means, in relation to the Mponeng Mine, WW Gold Plant and the Savuka Gold Plant, the gold in process as at the Closing Date relating to the Mponeng Mine, the WW Gold Plant and the Savuka Gold Plant and includes all material in the Mponeng Mine, the WW Gold Plant and the Savuka Gold Plant
|
1.3.112.1.
|
the broken ore underground that is still to be hoisted to surface;
|
1.3.112.2.
|
the ore in the silos;
|
1.3.112.3.
|
the slime in the thickeners;
|
1.3.112.4.
|
the pulp in the leach and CIP (carbon in pulp) circuits; and
|
1.3.112.5.
|
carbon in the CIP (carbon in pulp) and elution circuits;
|
1.3.113.
|
"Gold In Lock Up (VR)" means, in relation to the Kopanang Gold Plant and the MWS Plant the gold that, as at the Closing Date, can be recovered after the end of operations of the Kopanang Gold Plant and the MWS Plant and when such plants are demolished;
|
1.3.114.
|
"Gold In Lock Up (WW)" means, in relation to the WW Gold Plant and the Savuka Gold Plant the gold that, as at the Closing Date, can be recovered after the WW Mines life of mine when the WW Gold Plant and the Savuka Gold Plant are demolished;
|
1.3.115.
|
"Governmental Approval" means, as applicable, registrations, licenses, permits, authorisations, exemptions, waivers, permissions, directives, entitlements, consents and approvals from any Governmental Entity, including Environmental Approvals;
|
1.3.116.
|
"Governmental Entity" means any supra-national, national, state, municipal or local government (including any subdivision, court, administrative agency or commission or other authority thereof), or any governmental department, or any agency, regulator, court, entity, commission, board, ministry, bureau, locality or authority of any of the foregoing, or any quasi-governmental or private body exercising any regulatory or other governmental or quasi-governmental authority or function;
|
1.3.117.
|
"Government Official" means:
|
1.3.117.1.
|
any official, officer, employee, director, principal, consultant, agent or representative of any government, ministry, body, department, agency, instrumentality or part thereof, any public international organisation (including the United Nations, the International Monetary Fund, the International Finance Corporation and the World Bank), any state-
|
1.3.117.2.
|
any person acting in an official capacity or exercising a public function for and on behalf of any of the foregoing;
|
1.3.117.3.
|
any candidate for political office; and
|
1.3.117.4.
|
where the UK Bribery Act 2010 applies, shall include foreign public officials as defined in sections 6(5) and 6(6) of the UK Bribery Act 2010;
|
1.3.118.
|
"Group" means AngloGold and its Subsidiaries;
|
1.3.119.
|
"Harmony" means Harmony Gold Mining Company Limited (Registration No. 1950/038232/06), a public company incorporated under the laws of South Africa;
|
1.3.120.
|
"Harmony Moab" means Harmony Moab Khotsong Operations Proprietary Limited (Registration No. 2006/039120/07) (previously named Coreland Property Investment Company Proprietary Limited), a private company incorporated under the laws of South Africa;
|
1.3.121.
|
"Harmony Sale Agreement" means the agreement entered into between AngloGold, Harmony and Harmony Moab on or about 18 October 2017, as amended from time to time;
|
1.3.122.
|
"Harmony Servitudes" shall bear the meaning ascribed thereto in clause 29.3.20.1;
|
1.3.123.
|
"Hazardous Substances" means any wastes, pollutants, contaminants and any other natural, radioactive or artificial substance (whether in the form of a solid, liquid, gas or vapour) which is capable of causing harm or damage to the Environment;
|
1.3.124.
|
"Hotel School Deed of Donation" shall bear the meaning ascribed thereto in clause 29.3.22.1;
|
1.3.125.
|
"Hotel School Properties" shall bear the meaning ascribed thereto in clause 29.3.22.1;
|
1.3.126.
|
"IFRS" means the International Financial Reporting Standards formulated by the International Accounting Standards Board for the preparation of financial statements, together with any authoritative interpretations issued by the International Financial Reporting Interpretations Committee;
|
1.3.127.
|
"Immoveable Property Period (VR)" shall bear the meaning ascribed thereto in clause 29.3.3;
|
1.3.128.
|
"Immoveable Property Period (WW)" shall bear the meaning ascribed thereto in clause 11.6.3;
|
1.3.129.
|
"Immoveable Properties (VR)" means the properties listed in Annexure R;
|
1.3.130.
|
"Immoveable Properties (WW)" means the properties listed in Annexure Q;
|
1.3.131.
|
"Income Tax Act" means the Income Tax Act, No. 58 of 1962;
|
1.3.132.
|
"Independent Valuer" has the meaning set out in clause 16.3.3;
|
1.3.133.
|
"Indemnified Claim (VR)" shall bear the meaning ascribed thereto in clause 43.1;
|
1.3.134.
|
"Indemnified Claim (WW)" shall bear the meaning ascribed thereto in clause 25.1;
|
1.3.135.
|
"Indemnified Liability Loss (VR)" shall bear the meaning ascribed thereto in clause 42.2.1;
|
1.3.136.
|
"Indemnified Liability Loss (WW)" shall bear the meaning ascribed thereto in clause 24.2.1;
|
1.3.137.
|
"Indemnified Party (VR)" shall bear the meaning ascribed thereto in clause 43.1;
|
1.3.138.
|
"Indemnified Party (WW)" shall bear the meaning ascribed thereto in clause 25.1;
|
1.3.139.
|
"Indemnifying Party (VR)" shall bear the meaning ascribed thereto in clause 43.1;
|
1.3.140.
|
"Indemnifying Party (WW)" shall bear the meaning ascribed thereto in clause 25.1;
|
1.3.141.
|
"Information Requests (VR)" shall bear the meaning ascribed thereto in clause 37.8.9;
|
1.3.142.
|
"Information Requests (WW)" shall bear the meaning ascribed thereto in clause 19.7.9;
|
1.3.143.
|
"Infrastructure (VR)" shall bear the meaning ascribed thereto in paragraph 1 of Annexure G;
|
1.3.144.
|
"Infrastructure (WW)" shall bear the meaning ascribed thereto in paragraph 4 of Annexure F;
|
1.3.145.
|
"Infrastructure Period (VR)" shall bear the meaning ascribed thereto in clause 29.3.4.1;
|
1.3.146.
|
"Infrastructure Period (WW)" shall bear the meaning ascribed thereto in clause 11.6.4.1;
|
1.3.147.
|
"Insolvency Act" means the Insolvency Act No. 24 of 1936;
|
1.3.148.
|
"Integration Meeting (VR)" shall bear the meaning ascribed thereto in clause 37.8.4;
|
1.3.149.
|
"Integration Meeting (WW)" shall bear the meaning ascribed thereto in clause 19.7.4
|
1.3.150.
|
"Integration Work Stream (VR)" shall bear the meaning ascribed thereto in clause 37.8.4;
|
1.3.151.
|
"Integration Work Stream (WW)" shall bear the meaning ascribed thereto in clause 19.7.4
|
1.3.152.
|
"Interim Payment Arrangement" shall bear the meaning ascribed thereto in clause 11.6.21.5;
|
1.3.153.
|
"Interim Period" means the period commencing on the Signature Date and ending on the Closing Date (both dates inclusive);
|
1.3.154.
|
"Interim Period Contracts (VR)" shall bear the meaning ascribed thereto in clause 37.5.2;
|
1.3.155.
|
"Interim Period Contracts (WW)" shall bear the meaning ascribed thereto in clause 19.5.2;
|
1.3.156.
|
"Interim Period Undertakings" means the undertakings and obligations of AngloGold contained in clauses 19.1.1 to 19.1.24 (both inclusive) and 37.1.1 to 37.1.24 (both inclusive);
|
1.3.157.
|
"Kopanang Gold Plant" shall bear the meaning ascribed thereto in paragraph 2 of Annexure G;
|
1.3.158.
|
"Kopanang Gold Plant Servitude" shall bear the meaning ascribed thereto in clause 29.4.3;
|
1.3.159.
|
"Law" means any law (including all statutes and subordinated legislation), constitution, treaty, regulation, rule, directive, rulings, standards, ordinance, by-laws, principle of common law, order or decree of any Governmental Entity
|
1.3.160.
|
"Lease Agreements (VR)" means the lease agreements listed in Annexure L;
|
1.3.161.
|
"Lease Agreements (WW)" means the lease agreements listed in Annexure K;
|
1.3.162.
|
"Long Stop Date" means 30 September 2020, as may be extended in accordance with clause 2.7;
|
1.3.163.
|
"Losses" means all losses, liabilities (including contingent liabilities), costs (including reasonable legal costs and experts', advisers’ and consultants' reasonable fees and expenses), charges, expenses, claims, fees, fines, penalties, damages, demands, reasonable amounts paid in settlement, and Taxes, in each case excluding all indirect, special or consequential losses;
|
1.3.164.
|
"LRA" means the Labour Relations Act No. 66 of 1995;
|
1.3.165.
|
"MAC Notice" shall bear the meaning ascribed thereto in clause 7.1;
|
1.3.166.
|
"MAC Termination Notice" shall bear the meaning ascribed thereto in clause 7.3;
|
1.3.167.
|
"Masakhisane" means Masakhisane Investment Proprietary Limited (Registration No. 1998/002655/07), a private company incorporated in accordance with the laws of South Africa;
|
1.3.168.
|
"Masakhisane Accounts" means all of the unaudited management accounts of Masakhisane for and during the financial year ended 31 December 2019, copies of which have been provided via the Data Room to the Purchaser prior to the Signature Date;
|
1.3.169.
|
"Masakhisane Business" means the business operated by Masakhisane as at the Closing Date being, among other things, the business of investing in small and medium enterprises and matters related thereto;
|
1.3.170.
|
"Masakhisane Sale Shares" means 100 (one hundred) ordinary shares with a par value of R1 (one Rand) per share in the issued share capital of Masakhisane;
|
1.3.171.
|
"Master’s Office" means the relevant office of the Master of the High Court of South Africa;
|
1.3.172.
|
"Material Adverse Change" means any adverse event (including, without limitation, a fire, a seismic event and/or any event that materially affects the ability to use any mine shaft or any of the Tailings Storage Facilities (WW) or Tailings Storage Facilities (VR)), circumstance, effect, occurrence or state of affairs (the
|
1.3.172.1.
|
permanently prevent access to the 123 level and/or 126 level production area of the Mponeng Mine;
|
1.3.172.2.
|
result in a loss of gold production of 20% (twenty percent) or more over a period of 12 (twelve) months, measured against AngloGold's aggregate forecasted gold production, in respect of the VR Businesses and the WW Businesses, for such 12 (twelve) month period as declared in AngloGold's business plan which may be in force at the time of the relevant Event;
|
1.3.172.3.
|
result in the Purchasers (individually or collectively in aggregate) incurring direct capital costs, in respect of the VR Businesses and/or the WW Businesses, in excess of USD60 000 000 (sixty million Dollars) (such excess hereinafter being the "Excess Amount") to remedy any deficiencies caused by the relevant Event, provided that in such instances:
|
1.3.172.3.1.
|
AngloGold shall have the option to provide the relevant Purchaser/s with the Excess Amount, which option may be exercised by AngloGold within 20 (twenty) Business Days after the relevant Event (or, if the relevant Event occurs within 20 (twenty) Business Days before the Closing Date, then within 2 (two) Business Days before the Closing Date) by providing the relevant Purchaser/s with written notice of its intention to provide the Excess Amount, in which case, AngloGold shall promptly, upon written demand by the relevant Purchaser/s from time to time, make payment of the Excess Amount as and when it falls due for payment; and
|
1.3.172.3.2.
|
if AngloGold has made payment of the Excess Amount and if:
|
1.3.172.3.2.1.
|
any of the Purchasers receives the benefit of any amount in terms of any insurance contract in respect of such Event, the relevant Purchaser must
|
1.3.172.3.2.2.
|
AngloGold receives the benefit of any amount in terms of any insurance contract in respect of such Event, AngloGold shall promptly provide the Purchaser with all amounts in excess of the Excess Amount (and capped at the direct capital costs incurred by the Purchaser to remedy any deficiencies caused by the relevant Event less the Excess Amount already paid by AngloGold) from the proceeds it receives in respect of any insurance contract in relation to such Event;
|
1.3.172.4.
|
result in a reduction of the outstanding unutilised tailings storage capacity (as measured as at the Signature Date) in respect of:
|
1.3.172.4.1.
|
the following Tailings Storage Facilities (WW): the tailings storage facilities known as New North TSF and/or Mponeng TSF respectively, such that the aggregate outstanding unutilised tailings storage capacity (as measured as at the Signature Date) of the 2 (two) aforesaid Tailings Storage Facilities (WW) decreases by 20% (twenty percent) or more; and/or
|
1.3.172.4.2.
|
the Kareerand Tailings Storage Facility, such that the outstanding unutilised tailings storage capacity (as measured as at the Signature Date) of such Kareerand Tailings Storage Facility decreases by 20% (twenty percent) or more,
|
1.3.173.
|
"Matlosana Municipality" shall bear the meaning ascribed thereto in clause 29.3.25.1;
|
1.3.174.
|
"Merafong Municipality" shall bear the meaning ascribed thereto in clause 11.6.21.1.1;
|
1.3.175.
|
"Merafong Trust Money" shall bear the meaning ascribed thereto in clause 11.6.21.5.2;
|
1.3.176.
|
"Merger Notification" shall bear the meaning ascribed thereto in clause 3.1;
|
1.3.177.
|
"Mineral and Petroleum Resources Royalty Act" means the Mineral and Petroleum Resources Royalty Act, No. 28 of 2008;
|
1.3.178.
|
"Mining Charter" means the Broad-Based Black Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry, 2004 read with the Amendment of the Broad-Based Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry, 2010 and the Broad-Based Black Socio-Economic Empowerment Charter for the South African Mining and Minerals Industry 2018 gazetted by the Minister on 27 September 2018 under Gazette No. 41934 and all and any codes, documentation and/or guidelines related thereto;
|
1.3.179.
|
"Mining Titles Office" means the Mineral and Petroleum Titles Registration Office contemplated in section 2 of the MTRA;
|
1.3.180.
|
"Minister" means the Minister of Mineral Resources and Energy, and includes any person to whom the Minister has delegated powers and functions in terms of section 103 of the MPRDA;
|
1.3.181.
|
"MOD (VR)" means the marginal ore dumps situated on the MOD Sites (VR) labelled MOD 1, MOD 2 pre-sinking, MOD 3, MOD 3 pre-sinking, MOD 4, MOD
|
1.3.182.
|
"MOD (WW)" means the marginal ore dumps situated on the MOD Sites (WW) labelled Savuka MOD, TauTona pre-sinking and Mponeng MOD in Annexure M;
|
1.3.183.
|
"MOD Sites (VR)" means those areas on the properties on which the MODs (VR) are located as depicted in Annexure N and shown and outlined in Annexure X;
|
1.3.184.
|
"MOD Sites (WW)" means those areas on the properties on which the MODs (WW) are located as depicted in Annexure M and shown and outlined in Annexure W;
|
1.3.185.
|
"Motor Vehicles (VR)" means: (a) the vehicles listed in folder 1.3.11.2.2.0.11 of the Data Room; and (b) all vehicles used in or otherwise related to the VR Remaining Business as at the Closing Date and which are owned by AngloGold;
|
1.3.186.
|
"Motor Vehicles (WW)" means: (a) the vehicles listed in folder 1.2.11.2.2.0.7 of the Data Room; and (b) all vehicles used in or otherwise related to the WW Mining Business as at the Closing Date and which are owned by AngloGold;
|
1.3.187.
|
"Mponeng Mine" shall bear the meaning ascribed thereto in paragraph 1.1 of Annexure F;
|
1.3.188.
|
"MPRDA" means the South African Mineral and Petroleum Resources Development Act, No. 28 of 2002;
|
1.3.189.
|
"MTRA" means the Mining Titles Registration Act, No 16 of 1967;
|
1.3.190.
|
"Municipal Appeals (VR)" shall bear the meaning ascribed thereto in clause 29.3.25.1;
|
1.3.191.
|
"Municipal Appeals (WW)" shall bear the meaning ascribed thereto in clause 11.6.21.1.3;
|
1.3.192.
|
"Municipal New Values (VR)" shall bear the meaning ascribed thereto in clause 29.3.25.1;
|
1.3.193.
|
"Municipal New Values (WW)" shall bear the meaning ascribed thereto in clause 11.6.21.1.1;
|
1.3.194.
|
"Municipal Objections (VR)" shall bear the meaning ascribed thereto in clause 29.3.25.1;
|
1.3.195.
|
"Municipal Objections (WW)" shall bear the meaning ascribed thereto in clause 11.6.21.1.2;
|
1.3.196.
|
“Municipal Properties and Infrastructure” shall bear the meaning ascribed thereto in clause 11.6.21.1.2;
|
1.3.197.
|
"MWC" means Margaret Water Company NPC (Registration No. 2007/017805/08), a non-profit company duly incorporated under the laws of South Africa;
|
1.3.198.
|
"MWS" means Mine Waste Solutions Proprietary Limited (Registration No. 2000/001443/07), a private company incorporated under the laws of South Africa;
|
1.3.199.
|
"MWS Accounts" means all of the unaudited management accounts of MWS for and during the financial year ended 31 December 2019, copies of which have been provided via the Data Room to the Purchaser prior to the Signature Date;
|
1.3.200.
|
"MWS Business" means the business operated by MWS as at the Closing Date being, among other things, the holding of the issued share capital of Chemwes, the holding of the various licences, permits and authorisations required for the operation of the business of MWS and the Chemwes Business (including the NNRA Certificate, water use licences issued in terms of NWA, an atmospheric emissions licence issued in terms of NEMAQA and the authorisations issued in terms of NEMA) and the management of property and buildings and matters related thereto;
|
1.3.201.
|
"MWS Plant" means, as depicted as such in Annexure X, and all other fixed and movable equipment and infrastructure owned and used by Chemwes or MWS in or in connection with the MWS Plant, as at the Closing Date, being (as at the Signature Date) the assets listed in folder 1.3.11.2.2.0.9 of the Data Room;
|
1.3.202.
|
"NEMA" means the National Environmental Management Act, No. 107 of 1998;
|
1.3.203.
|
"NEMAQA" means the National Environmental Management: Air Quality Act No. 39 of 2004;
|
1.3.204.
|
"NEMWA" means the National Environmental Management: Waste Act No. 59 of 2008;
|
1.3.205.
|
"Net Purchase Price (VR)" shall bear the meaning ascribed thereto in Annexure BB;
|
1.3.206.
|
"Net Purchase Price (WW)" shall bear the meaning ascribed thereto in Annexure AA;
|
1.3.207.
|
"NNRA" means the National Nuclear Regulator Act, No. 47 of 1999;
|
1.3.208.
|
"Non-Transferable Permits (VR)" means all Permits (VR), other than the Transferable Permits (VR), including (without limitation), the certificate of registration COR-2 dated 20 June 2006 issued to AngloGold in terms of the NNRA, which relates to the VR Remaining Business;
|
1.3.209.
|
"Non-Transferable Permits (WW)" means all Permits (WW), other than the Transferable Permits (WW), including (without limitation), the certificate of registration COR-3 dated 24 April 2002 issued to AngloGold in terms of the NNRA, which relates to the WW Mining Business;
|
1.3.210.
|
"Notarial Deeds of Cession" means the notarial deeds of cession required for the cession of the WW Mining Rights in the Mining Titles Office from AngloGold to the Purchaser;
|
1.3.211.
|
"Notice Period" shall bear the meaning ascribed thereto in clause 50.1;
|
1.3.212.
|
"NWA" means the National Water Act, No. 36 of 1998;
|
1.3.213.
|
"Observers (VR)" shall bear the meaning ascribed thereto in clause 37.7;
|
1.3.214.
|
"Observers (WW)" shall bear the meaning ascribed thereto in clause 19.6;
|
1.3.215.
|
"Original Closing Date" shall bear the meaning ascribed thereto in clause 7.1;
|
1.3.216.
|
"Operative Provisions" shall bear the meaning ascribed thereto in clause 2.1;
|
1.3.217.
|
"Parties" means collectively AngloGold, Harmony, Harmony Moab and the WW Purchaser;
|
1.3.218.
|
"Pending Applications" means:
|
1.3.218.1.
|
the application in terms of section 102 of the MPRDA lodged by AngloGold at the DMRE on or about 28 March 2017 in relation to the consolidation of WW Mining Right 01 MR, a copy of which is listed under folder 1.2.12.2.1 of the Data Room; and
|
1.3.218.2.
|
the application in terms of section 24 of the MPRDA lodged by AngloGold at the DMRE on or about 14 April 2016 in relation to the renewal of WW Mining Right 11 MR, a copy of which is listed under folder 1.2.12.2.5.2 of the Data Room;
|
1.3.219.
|
"Permits (VR)" means all Governmental Approvals held by AngloGold which are required for or otherwise relate to the operation of the VR Remaining Business;
|
1.3.220.
|
"Permits (WW)" means all Governmental Approvals held by AngloGold which are required for or otherwise relate to the operation of the WW Mining Business;
|
1.3.221.
|
"PFA" means Pension Funds Act No. 24 of 1956;
|
1.3.222.
|
"Post-Retirement Medical Aid Promise (VR)" means the post-retirement medical aid promise that was made by AngloGold to certain employees of the VR Package before the Closing Date, who have not retired on or before the Closing Date, to subsidise those employees’ post-retirement medical aid membership contributions and other liabilities after retirement;
|
1.3.223.
|
"Post-Retirement Medical Aid Promise (WW)" means the post-retirement medical aid promise that was made by AngloGold to certain employees of the WW Package before the Closing Date, who have not retired on or before the Closing Date, to subsidise those employees’ post-retirement medical aid membership contributions and other liabilities after retirement;
|
1.3.224.
|
"Prime Rate" means the publicly quoted basic rate of interest, compounded monthly in arrears and calculated on a 365 (three hundred and sixty five) day year irrespective of whether or not the year is a leap year, from time to time published by The Standard Bank of South Africa Limited at the relevant point in time as being its prime overdraft rate, as certified by any representative of that bank whose appointment and designation it shall not be necessary to prove;
|
1.3.225.
|
"Proposed Contracts (VR)" shall bear the meaning ascribed thereto in clause 37.5.1;
|
1.3.226.
|
"Proposed Contracts (WW)" shall bear the meaning ascribed thereto in clause 19.5.1;
|
1.3.227.
|
"Purchase Price" means, collectively, the Purchase Price (VR) and the Purchase Price (WW);
|
1.3.228.
|
"Purchase Price (VR)" shall bear the meaning ascribed thereto in clause 34.1.1;
|
1.3.229.
|
"Purchase Price (WW)" shall bear the meaning ascribed thereto in clause 16.1.1;
|
1.3.230.
|
"Purchasers" means, collectively, Harmony, Harmony Moab and the WW Purchaser;
|
1.3.231.
|
"Purchaser Claim" shall bear the meaning ascribed thereto in paragraph 1.1 in Annexure C;
|
1.3.232.
|
"Purchaser Financial Guarantee" shall bear the meaning ascribed thereto in clause 11.5.4.1;
|
1.3.233.
|
"Purchasers' Counsel" means Bowman Gilfillan Inc. (Registration No. 1998/021409/21), a law firm conducting business as such in South Africa;
|
1.3.234.
|
"Purchaser’s Group" means Harmony, Harmony Moab, the WW Purchaser and their Subsidiaries for the time being;
|
1.3.235.
|
"Purchaser's Integration Representatives (VR)" shall bear the meaning ascribed thereto in clause 37.8;
|
1.3.236.
|
"Purchaser's Integration Representatives (WW)" shall bear the meaning ascribed thereto in clause 19.7;
|
1.3.237.
|
"Purchaser's Integration Work Stream Representatives (VR)" shall bear the meaning ascribed thereto in clause 37.9.1;
|
1.3.238.
|
"Purchaser's Integration Work Stream Representatives (WW)" shall bear the meaning ascribed thereto in clause 19.8.1;
|
1.3.239.
|
"Purchaser RCF Agreements" means:
|
1.3.239.1.
|
the USD400 000 000 (four hundred million Dollars) term and revolving credit facilities agreement dated 20 August 2019, entered into between Harmony, ABSA Bank Limited and Nedbank Limited, as may be amended from time to time; and
|
1.3.239.2.
|
the ZAR2 000 000 000 (two billion Rand) term and revolving credit facilities agreement dated 8 November 2018, entered into between Harmony, ABSA Bank Limited and Nedbank Limited, as may be amended from time to time;
|
1.3.240.
|
"Purchaser's Representatives" shall bear the meaning ascribed thereto in clause 22.3.4;
|
1.3.241.
|
"Qualifying Employees" means, in respect of a particular entity and a particular business/es, collectively, all employees of such entity (and which includes those persons that are deemed in law to be employees of such entity) who are dedicated or significantly connected to, or employed or used significantly, primarily or exclusively in (or in connection with), such business/es;
|
1.3.242.
|
"Rand" or "R" means Rand, the official currency of South Africa;
|
1.3.243.
|
"Rates Act" means the Local Government: Municipal Property Rates Act 6 of 2004;
|
1.3.244.
|
"Rates Clearance Certificate (VR)" shall bear the meaning ascribed thereto in clause 29.3.8;
|
1.3.245.
|
"Rates Clearance Certificate (WW)" shall bear the meaning ascribed thereto in clause 11.6.8;
|
1.3.246.
|
"Rates Clearance Figures (VR)" shall bear the meaning ascribed thereto in clause 29.3.5.1;
|
1.3.247.
|
"Rates Clearance Figures (WW)" shall bear the meaning ascribed thereto in clause 11.6.5.1;
|
1.3.248.
|
"RCF Agreements" means collectively:
|
1.3.248.1.
|
the revolving credit facility agreement entered into between, inter alia, AngloGold, Nedbank Limited (acting through its corporate banking division as Agent and Original Bank) and ABSA Bank Limited (as Original Bank) with a maturity date of July 2020;
|
1.3.248.2.
|
the revolving credit facility agreement entered into between, inter alia, AngloGold, Nedbank Limited (acting through its corporate banking division as Agent and Original Bank) and ABSA Bank Limited (as Original Bank) with a maturity date of December 2021; and
|
1.3.248.3.
|
the revolving credit facility agreement entered into between, inter alia, AngloGold and The Standard Bank Limited (acting through its corporate banking division as Agent and Arranger) with a maturity date of November 2022;
|
1.3.249.
|
"Recommendation (VR)" shall bear the meaning ascribed thereto in clause 43.2.6;
|
1.3.250.
|
"Recommendation (WW)" shall bear the meaning ascribed thereto in clause 25.2.6;
|
1.3.251.
|
"Refining Licence (VR)" the refining licence AP06789 dated 27 October 2009 issued to AngloGold in terms of the Precious Metals Act No. 2005 in so far as it relates to the VR Remaining Business;
|
1.3.252.
|
"Refining Licence (WW)" the refining licence AP06789 dated 27 October 2009 issued to AngloGold in terms of the Precious Metals Act No. 2005 which relates to the WW Mining Business;
|
1.3.253.
|
"Regional Director" means the DWS Provincial Head: Gauteng;
|
1.3.254.
|
"Relevant Liabilities (VR)" shall bear the meaning ascribed thereto in clause 42.2.3;
|
1.3.255.
|
"Relevant Liabilities (WW)" shall bear the meaning ascribed thereto in clause 24.4;
|
1.3.256.
|
"Relevant Party/ies" shall bear the meaning ascribed thereto in clause 52.2.1;
|
1.3.257.
|
"Remaining Employees (VR)" means the employees listed in Annexure II, being those of the Qualifying Employees in respect of the VR Businesses, which the Parties intend to remain in the employ of AngloGold after the Closing Date;
|
1.3.258.
|
"Remaining Employees (WW)" means the employees listed in Annexure JJ, being those of the Qualifying Employees in respect of the WW Businesses, which the Parties intend to remain in the employ of AngloGold after the Closing Date;
|
1.3.259.
|
"Response Notice" shall bear the meaning ascribed thereto in clause 1.2 of Annexure C;
|
1.3.260.
|
"s37 Supporting Valuation (VR)" shall bear the meaning ascribed thereto in clause 34.3.3;
|
1.3.261.
|
"s37 Supporting Valuation (WW)" shall bear the meaning ascribed thereto in clause 16.3.3;
|
1.3.262.
|
"s37 Valuation Property (VR)" shall bear the meaning ascribed thereto in clause 34.3.1;
|
1.3.263.
|
"s37 Valuation Property (WW)" shall bear the meaning ascribed thereto in clause 16.3.1;
|
1.3.264.
|
"Sale Assets (VR)" means collectively:
|
1.3.264.1.
|
the Consumable Stores (VR);
|
1.3.264.2.
|
the Contracts (VR), and all benefits and rights of AngloGold under each of the Contracts (VR) which shall transfer to Harmony Moab. For the avoidance of doubt, the aforegoing does not include any debtors under such Contracts (VR) as at the Closing Date;
|
1.3.264.3.
|
the Critical Spares (VR);
|
1.3.264.4.
|
all Gold In Lock Up (VR);
|
1.3.264.5.
|
all Gold in Process (VR);
|
1.3.264.6.
|
the Immoveable Properties (VR) subject to all registered servitudes, Surface Right Permits (VR) and Encumbrances;
|
1.3.264.7.
|
all Infrastructure (VR);
|
1.3.264.8.
|
the Kopanang Gold Plant Servitude;
|
1.3.264.9.
|
the MOD (VR);
|
1.3.264.10.
|
the Motor Vehicles (VR);
|
1.3.264.11.
|
the Servitudes (VR);
|
1.3.264.12.
|
the Surface Right Permits (VR);
|
1.3.264.13.
|
Tailings Storage Facilities (VR);
|
1.3.264.14.
|
all Transferable Permits (VR);
|
1.3.264.15.
|
the VR Remaining Sale Assets;
|
1.3.264.16.
|
all geological and engineering information in whatsoever form related to the VR Remaining Sale Assets;
|
1.3.264.17.
|
all medical records, medical information and other employee records relating to the Transferring Employees (VR); and
|
1.3.264.18.
|
all other assets owned by AngloGold and servitudes and surface right permits held by AngloGold, in each case which are primarily used in connection with the other items listed in clauses 1.3.264.1 to 1.3.264.18 (inclusive);
|
1.3.265.
|
"Sale Assets (WW)" means collectively:
|
1.3.265.1.
|
the Contracts (WW), and all benefits and rights of AngloGold under each of the Contracts (WW) which shall transfer to the WW Purchaser. For the avoidance of doubt, the aforegoing does not include any debtors under such Contracts (WW) as at the Closing Date;
|
1.3.265.2.
|
all Consumable Stores (WW);
|
1.3.265.3.
|
the Critical Spares (WW);
|
1.3.265.4.
|
all Gold In Lock Up (WW);
|
1.3.265.5.
|
all Gold In Process (WW);
|
1.3.265.6.
|
the Immoveable Properties (WW) subject to all registered servitudes, Surface Right Permits (WW) and Encumbrances;
|
1.3.265.7.
|
all Infrastructure (WW);
|
1.3.265.8.
|
the MOD (WW);
|
1.3.265.9.
|
the Motor Vehicles (WW);
|
1.3.265.10.
|
the Servitudes (WW);
|
1.3.265.11.
|
the Surface Right Permits (WW);
|
1.3.265.12.
|
the Tailings Storage Facilities (WW);
|
1.3.265.13.
|
all Transferable Permits (WW);
|
1.3.265.14.
|
the WW Core;
|
1.3.265.15.
|
the WW Mining Rights;
|
1.3.265.16.
|
the WW Mining Sale Assets;
|
1.3.265.17.
|
all geological and engineering information in whatsoever form related to the WW Mining Sale Assets;
|
1.3.265.18.
|
all medical records, medical information and other employee records relating to the Transferring Employees (WW);
|
1.3.265.19.
|
the tailings storage facilities which qualify as residue stockpiles as defined in the MPRDA which by law transfer with the WW Mining Rights; and
|
1.3.265.20.
|
all other assets owned by AngloGold and servitudes and surface right permits held by AngloGold, in each case which are primarily used in connection with the other items listed in clauses 1.3.265.16 to 1.3.265.19 (inclusive);
|
1.3.266.
|
"Sale Equity (WW)" means, collectively, the Covalent Sale Equity, the AngloGold Security Services Sale Shares and the Masakhisane Sale Shares;
|
1.3.267.
|
"Sale Liabilities (VR)" means all obligations and liabilities (whether actual or contingent) in respect of the Sale Assets (VR) (other than Environmental Obligations (VR), which are dealt with separately in clause 42.1 of this Agreement), including without limitation, the liabilities set out in Annexure V but in each case specifically excluding the Excluded Liabilities;
|
1.3.268.
|
"Sale Liabilities (WW)" means all obligations and liabilities (whether actual or contingent) in respect of the Sale Assets (WW) (other than Environmental Obligations (WW), which are dealt with separately in clause 24.1 of this Agreement), including without limitation, the liabilities set out in Annexure U but in each case specifically excluding the Excluded Liabilities;
|
1.3.269.
|
"Sale Package" means, collectively, the WW Package and the VR Package;
|
1.3.270.
|
"SANRAL" means the South African National Roads Agency SOC Limited (Registration No. 1998/009584/30), a limited liability company incorporated in accordance with the laws of South Africa;
|
1.3.271.
|
"SANRAL Portions (WW)" shall bear the meaning ascribed thereto in clause 11.6.20.1;
|
1.3.272.
|
"SANRAL Portions (VR)" shall bear the meaning ascribed thereto in clause 29.3.21.1;
|
1.3.273.
|
"SARS" means the South African Revenue Service established in terms of the South African Revenue Service Act No. 34 of 1997;
|
1.3.274.
|
"Savuka Gold Plant" shall bear the meaning ascribed thereto in paragraph 3 of Annexure F;
|
1.3.275.
|
"Section 102 Application" shall bear the meaning ascribed thereto in clause 4.9.2;
|
1.3.276.
|
"Section 197(6) Agreements" shall bear the meaning ascribed thereto in clause 13.2.1;
|
1.3.277.
|
"Section 11 Application" means the application by AngloGold and the WW Purchaser to the Minister in terms of section 11 of the MPRDA to grant the Section 11 Ministerial Consent;
|
1.3.278.
|
"Section 11 Ministerial Consent" means the consent of the Minister in terms of section 11 of the MPRDA for the transfer of the WW Mining Rights from AngloGold to the WW Purchaser;
|
1.3.279.
|
"Seller's Integration Representatives (VR)" shall bear the meaning ascribed thereto in clause 37.8.2;
|
1.3.280.
|
"Seller's Integration Representatives (WW)" shall bear the meaning ascribed thereto in clause 19.7.2;
|
1.3.281.
|
"Seller's Integration Work Stream Representatives (VR)" shall bear the meaning ascribed thereto in clause 37.9.2;
|
1.3.282.
|
"Seller's Integration Work Stream Representatives (WW)" shall bear the meaning ascribed thereto in clause 19.8.2;
|
1.3.283.
|
"Servitudes (VR)" means the notarial deeds of servitude reflected in Annexure T;
|
1.3.284.
|
"Servitudes (WW)" means the notarial deeds of servitude reflected in Annexure S;
|
1.3.285.
|
"Signature Date" means the date of signature of this Agreement by the last Party to do so;
|
1.3.286.
|
"Silicosis Class Action Settlement Agreement" means the agreement titled “Gold Mineworkers’ Class Action Settlement Agreement” entered into on or about 3 May 2018 by AngloGold, African Rainbow Minerals Limited, Anglo American South Africa Limited, Avgold Limited, Freegold (Harmony) Proprietary Limited, Free State Consolidated Gold Mines (Operations) Limited, Gold Fields Limited, Gold Fields Operations Limited, Newshelf 899 Proprietary Limited, Beatrix Mines Limited, Farworks/682 Limited, Driefontein Consolidated Proprietary Limited, GFL Mining Services Limited, GFI Joint Venture Holdings Proprietary Limited, Harmony Gold Mining Company Limited, Unisel Gold Mines Limited, Loraine Gold Mines Limited, Randfontein Estates Limited, Sibanye Gold Limited, Leslie Gold Mines Limited, Bracken Mines Limited, K2018259017 (South Africa) Proprietary Limited, Richard Spoor Inc. Attorneys, Richard Spoor, Abrahams Kiewitz Incorporated, Charles Abrahams, Legal Resources Centre, Motley Rice LLC, Hausfeld LLP and the Persons Listed in Schedule 1 to the agreement which agreement was approved in the judgment handed down on 26 July 2019 by the High Court of South Africa, Gauteng Local Division under case number 44060/2018 in terms of which, inter alia, the parties thereto settled, inter alia, the class action litigation as defined in the agreement;
|
1.3.287.
|
"SLAs (VR)" means the service agreements listed under Annexure H;
|
1.3.288.
|
"South Africa" means the Republic of South Africa;
|
1.3.289.
|
"Spot Rate" means, in relation to any day, the average of Reuters’ published spot rate of exchange for the sale of USD for the purchase of ZAR in the Johannesburg foreign exchange market at or about 11:00 a.m. (South African time) on each of the 3 (three) Business Days immediately prior to the relevant day;
|
1.3.290.
|
"Subsidiary" shall bear the meaning ascribed thereto it in section 3 of the Companies Act, save that all references in section 3 of the Companies Act to “company” shall include an entity incorporated outside of South Africa that, save
|
1.3.291.
|
"Substitutionary Permits (VR)" means the equivalent of the Non-Transferable Permits (VR) to be obtained by Harmony Moab in its own name in relation to the VR Remaining Business, as contemplated in clause 30;
|
1.3.292.
|
"Substitutionary Permits (WW)" means the equivalent of the Non-Transferable Permits (WW) to be obtained by the WW Purchaser in its own name in relation to the WW Mining Business, as contemplated in clause 12;
|
1.3.293.
|
"Surface Right Permits (VR)" means the surface right permits listed in Annexure Z;
|
1.3.294.
|
"Surface Right Permits (WW)" means the surface right permits listed in Annexure Y;
|
1.3.295.
|
"Tailings Storage Facilities (VR)" means the tailings storage facilities known as South East, Sulphur Paydam, East TSF, West Extension and West Complex (including comp 4), situated on the Tailings Storage Facilities Sites (VR) as depicted in Annexure X, together with all tailings contained on and all minerals deposited at such facilities, and all related infrastructure and equipment including, but not limited to, all pipelines interlinking the Chemwes Business and the Kopanang Gold Plant, as applicable as at the Closing Date;
|
1.3.296.
|
"Tailings Storage Facilities (WW)" means the tailings storage facilities known as New North TSF, Old North TSF and Mponeng TSF, situated on the Tailings Storage Facilities Sites (WW) as depicted in Annexure W, together with all tailings contained on and all minerals deposited at such facilities (whether or not such tailings relate to the WW Mines and their operations), and all related infrastructure and equipment including, but not limited to, all pipelines interlinking the Mponeng Gold Plant and the Savuka Gold Plant, as applicable as at the Closing Date, but excluding tailings storage facilities which qualify as residue stockpiles as defined in the MPRDA which by law transfer with the WW Mining Rights;
|
1.3.297.
|
"Tailings Storage Facilities Sites (VR)" means, in respect of each Tailings Storage Facility (VR), those areas on the properties on which the Tailings Storage Facility (VR) in question is situated, all of which areas are shown and outlined in Annexure X and labelled with reference to each Tailings Storage Facilities (VR) in question;
|
1.3.298.
|
"Tailings Storage Facilities Sites (WW)" means, in respect of each Tailings Storage Facility (WW), those areas on the properties on which the Tailings Storage
|
1.3.299.
|
"Tax" means all income tax, capital gains tax, dividends tax, mineral royalties tax, carbon tax, securities transfer tax, PAYE, donations tax, customs duty, levies, assessments, deductions, charges, interest, penalties and withholdings whatsoever in terms of any South African tax legislation and the terms "Taxes" and "Taxation" and other cognate terms shall have corresponding meanings;
|
1.3.300.
|
"Transactions" means, collectively, the WW Transaction and VR Transaction;
|
1.3.301.
|
"Transfer" means, collectively, Transfer (VR) and Transfer (WW);
|
1.3.302.
|
"Transfer (VR)" means the registration of transfer in the relevant Deeds Registry of Immoveable Properties (VR), or any one of them, in the name of Harmony Moab;
|
1.3.303.
|
"Transfer (WW)" means the registration of transfer in the relevant Deeds Registry of Immoveable Properties (WW), or any one of them, in the name of the WW Purchaser;
|
1.3.304.
|
"Transfer Date" means in respect of a particular Transfer, the date of that Transfer;
|
1.3.305.
|
"Transferable Permits (VR)" means those Permits (VR) which are identified as a "Transferable Permit (VR)" in terms of clause 30.3, including (without limitation):
|
1.3.305.1.
|
water use licence no. 01/C24J/BFJ/2000 issued to AngloGold in terms of the NWA in so far as it relates to the VR Remaining Business;
|
1.3.305.2.
|
the atmospheric emissions license reference FDDM-MQQ-2013-16 dated July 2014 issued to AngloGold in terms of the NEMAQA in so far as it relates to the VR Remaining Business; and
|
1.3.305.3.
|
the atmospheric emission licence AEL NWPG/ANGLOGOLD ASHANTI/ AEL 4.13/FEB 14 dated 27 February 2014 issued to AngloGold in terms of NEMAQA in so far as it relates to the VR Remaining Business;
|
1.3.306.
|
"Transferable Permits (WW)" means those Permits (WW) which are identified as a "Transferable Permit (WW)" in terms of clause 12.1, including (without limitation):
|
1.3.306.1.
|
the water use licence 08/C23E/AEFGJ/1250 dated 8 September 2011 issued to AngloGold in terms of the NWA;
|
1.3.306.2.
|
the water use licence 10/C23E/AFJ/4787 dated 1 December 2016 issued to AngloGold in terms of the NWA;
|
1.3.306.3.
|
the atmospheric emissions licence WR/ 16-17/AEL9/3 dated 2 October 2018 issued to AngloGold in terms of NEMAQA;
|
1.3.307.
|
"Transferring Affiliates" means, collectively, the WW Companies, the VR Companies, the AngloGold Enviro Trust, the Wonderfontein Trust and the Chemwes Trust;
|
1.3.308.
|
"Transferring Employees (VR)" means all those Qualifying Employees (but specifically excluding the Remaining Employees (VR)) of AngloGold in respect of the VR Businesses and who, as at the Signature Date, are listed in Annexure P and who still are Qualifying Employees of AngloGold in respect of the VR Businesses as at the Closing Date, as well as all other persons: (a) who become Qualifying Employees of AngloGold in respect of the VR Businesses, in the ordinary course thereof during the Interim Period, and who still are Qualifying Employees of AngloGold in respect of the VR Businesses as at the Closing Date; and (b) who are reinstated after the Closing Date as a Qualifying Employee of the VR Businesses by virtue of any order of a competent employment tribunal or court ;
|
1.3.309.
|
"Transferring Employees (WW)" means all those Qualifying Employees (but specifically excluding the Remaining Employees (WW)) of AngloGold in respect of the WW Businesses and who, as at the Signature Date, are listed in Annexure O and who are Qualifying Employees of AngloGold in respect of the WW Businesses as at the Closing Date, as well as all other persons : (a) who become Qualifying Employees of AngloGold in respect of the WW Businesses, in the ordinary course thereof during the Interim Period, and who still are Qualifying Employees of AngloGold in respect of the WW Businesses as at the Closing Date; and (b) who are reinstated after the Closing Date as a Qualifying Employee of the WW Businesses by virtue of any order of a competent employment tribunal or court;
|
1.3.310.
|
"Traxtion" means Traxtion Sheltam Proprietary Limited (Registration No. 2004/028215/07), a private company incorporated in accordance with the laws of South Africa;
|
1.3.311.
|
"Traxtion Agreement" shall bear the meaning ascribed thereto in clause 29.3.23.1;
|
1.3.312.
|
"Traxtion Rail Link Servitude" shall bear the meaning ascribed thereto in clause 29.3.24.1;
|
1.3.313.
|
"Traxtion Rail Link Servitude Properties" shall bear the meaning ascribed thereto in clause 29.3.24.1;
|
1.3.314.
|
"Traxtion Railway Workshop Property" shall bear the meaning ascribed thereto in clause 29.3.23.1;
|
1.3.315.
|
"Trust Money" means all money, equities, bonds and any other assets held by the AngloGold Enviro Trust as at the Closing Date in relation to AngloGold's rehabilitation obligations in respect of the WW Mining Business and the VR Remaining Business (including all interest accrued on such money during the Interim Period), the value of which amounted to approximately R1,156,226,541.25 (one billion one hundred and fifty six million two hundred and twenty six thousand and five hundred and forty one Rand and twenty five cents) as at 31 December 2019;
|
1.3.316.
|
"USD" or "US$" means United States dollars, the official currency of the United States of America;
|
1.3.317.
|
"VAT" means value - added tax in terms of the VAT Act;
|
1.3.318.
|
"VAT Act" means the Value-Added Tax Act, No. 89 of 1991;
|
1.3.319.
|
"VMR" shall bear the meaning ascribed thereto in clause 29.4.2;
|
1.3.320.
|
"VMR Portions" shall bear the meaning ascribed thereto in clause 29.4.2;
|
1.3.321.
|
"VR Businesses" means, collectively, the VR Sale Equity Businesses and the VR Remaining Business;
|
1.3.322.
|
"VR Companies" means, collectively, FUSA, MWS and Chemwes;
|
1.3.323.
|
"VR Companies Accounts" means, collectively, the FUSA Accounts, the MWS Accounts and the Chemwes Accounts;
|
1.3.324.
|
"VR EA Application" means, collectively, an application to be submitted, after the Closing Date, by MWS under regulation 31 of the EIA Regulations to include the Sale Assets (VR) within the scope of one of MWS’s environmental authorisations; a new environmental authorisation application to be submitted by MWS, after the Closing Date, under the EIA Regulations in respect of the Sale Assets (VR); or any other application to be submitted by MWS, after the Closing Date, as may be required by the competent authority in respect of the Sale Assets (VR); and/or or any studies, filings, reports, submissions, applications or other documents which are required as part of, or in connection with, the VR EA Application;
|
1.3.325.
|
"VR Package" means collectively the FUSA Sale Equity and the VR Remaining Business;
|
1.3.326.
|
"VR Region" means the areas over which the VR Remaining Business, the FUSA Business, the MWS Business or the Chemwes Business (as the case may be) are conducted, which include (without limitation) the Immoveable Properties (VR), the Chemwes Property and the areas covered by the Surface Right Permits (VR), the Kopanang Gold Plant Servitude and Servitudes (VR);
|
1.3.327.
|
"VR Remaining Business" means the business being sold, transferred and ceded to Harmony Moab in terms of this Agreement, comprising the Sale Assets (VR) and Sale Liabilities (VR);
|
1.3.328.
|
"VR Remaining Sale Assets" means the assets listed in Annexure G;
|
1.3.329.
|
"VR Sale Equity Businesses" means, collectively, the FUSA Business, the MWS Business and the Chemwes Business;
|
1.3.330.
|
"VR Transaction" means the sale, purchase, cession and assignment of the VR Package, as set out in Part C of this Agreement (as read with the provisions of Part A and Part D of this Agreement, as applicable);
|
1.3.331.
|
"Warranties (VR)" means, collectively, the warranties in Annexure B1, Annexure B2, Annexure B3 and Annexure B4;
|
1.3.332.
|
"Warranties (WW)" means, collectively, the warranties in Annexure A1, Annexure A2, Annexure A3 and Annexure A4;
|
1.3.333.
|
"Warranties" means, collectively, the Warranties (VR) and Warranties (WW);
|
1.3.334.
|
"Water Supplier (VR)" means Midvaal Water Company NPC;
|
1.3.335.
|
"Water Supplier (WW)" means Rand Water Board;
|
1.3.336.
|
"Wonderfontein Trust" means the Wonderfontein Trust registered at the Master’s Office with IT number IT2607/2009;
|
1.3.337.
|
"WW Businesses" means, collectively, the WW Equity Businesses and the WW Mining Business;
|
1.3.338.
|
"WW Business Deferred Consideration Agreement" means the agreement entered into, or to be entered into, between Harmony, the WW Purchaser and AngloGold in terms of which, inter alia, the application and determination of that portion of the Purchase Price (WW) which results from future gold production from
|
1.3.339.
|
"WW Business Deferred Consideration Agreements" means, collectively, the WW Business Deferred Consideration Agreement and the WW Business Deferred Consideration Extension Agreement;
|
1.3.340.
|
"WW Business Deferred Consideration Extension Agreement" means the agreement entered into, or to be entered into, between Harmony, the WW Purchaser and AngloGold in terms of which, inter alia, the application and determination of that portion of the Purchase Price (WW) which results from future gold production from the extension of the WW Mines by the WW Purchaser is agreed between the WW Purchaser and AngloGold, on the further terms and conditions set out therein;
|
1.3.341.
|
"WW Deferred Consideration" shall have the meaning ascribed thereto in clause 16.1.1;
|
1.3.342.
|
"WW Companies" means, collectively, Covalent, AngloGold Security Services and Masakhisane;
|
1.3.343.
|
"WW Core" means the portions of the geological core relating to Mponeng Mine, Savuka Mine and the Tau Tona Mine stored, as at the Closing Date, at Mponeng Mine;
|
1.3.344.
|
"WW Equity Businesses" means, collectively, the AngloGold Security Services Business, the Covalent Business and the Masakhisane Business;
|
1.3.345.
|
"WW Financial Guarantees" means the financial guarantee/s in place in relation to AngloGold's rehabilitation obligations in respect of the WW Mining Business as at the Closing Date;
|
1.3.346.
|
"WW Gold Plant" shall bear the meaning ascribed thereto in paragraph 2 of Annexure F;
|
1.3.347.
|
"WW Mines" shall bear the meaning ascribed thereto in paragraph 1 of Annexure F;
|
1.3.348.
|
"WW Mining Areas" shall bear the meaning ascribed thereto in section 1 of the MPRDA in respect of the WW Mining Rights and WW Mining Right 11 MR;
|
1.3.349.
|
"WW Mining Business" means the business being sold, transferred and ceded to the WW Purchaser in terms of this Agreement, comprising the Sale Assets (WW) and Sale Liabilities (WW);
|
1.3.350.
|
"WW Mining Rights" means, collectively, WW Mining Right 01 MR and WW Mining Right 248 MR;
|
1.3.351.
|
"WW Mining Right 01 MR" means the mining right (DMRE reference: GP 30/5/1/2/2/01 MR) converted in terms of Item 7 of Schedule II to the MPRDA, held in respect of gold in respect of the portions of the farm Elandsfontein 115 IQ, district Potchefstroom; Elandsfontein 135 IQ, District Potchefstroom; Elandsfontein 144 IQ, District Potchefstroom; Elandsfontein 146 IQ, District Potchefstroom; Elandsfontein 147 IQ, District Potchefstroom; Buffelsdoorn 143 IQ, District Potchefstroom; Oog van Elandsfontein 114 IQ, District Potchefstroom; Driefontein 113 IQ, District Oberholzer and Blyvooruitzicht 116, IQ, District Oberholzer, Gauteng Province measuring 5 289,7537 hectares (five thousand two hundred and eighty nine point seven five three seven hectares) in extent, amended by notarial deed of amendment MPT No. 04/2012 to include silver, nickel and uranium in the description of mineral and to extent the mining area to include various portions of the farms Elandsfontein 115 IQ; Elandsfontein 135 IQ; Elandsfontein 140 IQ; Elandsfontein 144 IQ; Elandsfontein 145 IQ, the additional areas measuring 1187,5940 hectares (one thousand one hundred and eighty seven point five nine four zero hectares) in extent, registered in the Mining Titles Office on 14 February 2006 under MPT No. 10/2006;
|
1.3.352.
|
"WW Mining Right 11 MR" means the mining right (DMRE reference: GP 30/5/1/2/2/11 MR) granted in terms of section 23 of the MPRDA, held in respect of gold in respect of the Mineral Area No. 5 on the Remaining Extent of the Farm Oog van Elandsfontein 114 IQ and Mineral Area No. 11 of the Remaining Extent of Portion 2 of the Farm Driefontein 113 IQ, in the magisterial district of Oberholzer and Potchefstroom, Gauteng Province measuring 30,9283 hectares (thirty point nine two eight three hectares) in extent, amended by notarial deed of amendment MPT No. 15/2011 to include silver, nickel and uranium in the description of mineral, registered in the Mining Titles Offices on 18 July 2006 under MPT No. 30/2006;
|
1.3.353.
|
"WW Mining Right 248 MR" means the mining right (DMRE reference: GP 30/5/1/2/2/248 MR) converted in terms of Item 7 of Schedule II to the MPRDA, held in respect of sand in respect of the remaining extent of portions 12 and 13 of the farm Doornfontein (Magnum Farm) IQ, in the magisterial district of Oberholzer, Gauteng Province measuring 195,8147 hectares (one hundred and ninety five point eight one four seven hectares) in extent, registered in the Mining Titles Office on 6 December 2012 under MPT No. 169/2012;
|
1.3.354.
|
"WW Mining Sale Assets" means the assets listed in Annexure F;
|
1.3.355.
|
"WW Package" means collectively the Sale Equity (WW) and the WW Mining Business;
|
1.3.356.
|
"WW Purchaser" means Golden Core Trade and Invest Proprietary Limited (Registration No. 2019/547039/07), a company incorporated under the laws of South Africa;
|
1.3.357.
|
"WW Region" means the areas over which the WW Mining Business and the Covalent Business are conducted which include (without limitation) the WW Mining Areas, the Immoveable Properties (WW) and the areas covered by the Surface Right Permits (WW) and the Servitudes (WW);
|
1.3.358.
|
"WW Transaction" means the sale, purchase, cession and assignment of the WW Package, as set out in Part B of this Agreement (as read with the provisions of Part A and Part D of this Agreement, as applicable); and
|
1.3.359.
|
"ZAR" or "R" or "Rand" means South African rand, the official currency of South Africa;
|
1.4.
|
if any provision in a definition is a substantive provision conferring a right or imposing an obligation on any Party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement;
|
1.5.
|
any reference to any statute, regulation, rules or other legislation shall be a reference to that statute, rules, regulation or other legislation as at the Signature Date, and as amended or substituted from time to time and any reference to a statute or legislation shall include a reference to any regulations or rules promulgated thereunder;
|
1.6.
|
if 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 meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause;
|
1.7.
|
where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so calculated falls on a day which is not a Business Day, the last day shall be deemed to be the next succeeding day which is a Business Day;
|
1.8.
|
any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, months or years, as the case may be;
|
1.9.
|
expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own conflicting definitions;
|
1.10.
|
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 is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction;
|
1.11.
|
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;
|
1.12.
|
any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated or placed under Business Rescue in terms of Chapter 6 of the Companies Act, be applicable also to and binding upon that Party’s liquidator, trustee or Business Rescue practitioner, as the case may be;
|
1.13.
|
any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented;
|
1.14.
|
any term in this clause 1 that is defined using the word "collectively" in regard to a list of two or more items, shall include a reference to any one or more of such items as the context may require;
|
1.15.
|
the words "include", "including" and "in particular" shall be construed as being by way of example or emphasis only and shall not be construed, nor shall they take effect, as limiting the generality of any preceding word/s;
|
1.16.
|
any reference in this Agreement to an amount shall be construed as excluding VAT unless specified otherwise; and
|
1.17.
|
the terms of this Agreement having been negotiated, the contra proferentem rule shall not be applied in the interpretation of this Agreement.
|
2.
|
CONDITIONS PRECEDENT
|
2.1.
|
The whole of this Agreement, save for the provisions of Part A, clauses 12 (save for 12.4, 12.5 and 12.6), 13, 14.1, 15.1, 17, 18, 19, 22, 23, 30 (save for 30.4, 30.5 and 30.6), 31, 32.1, 33.1, 35, 36, 37, 40, 41 and Part D (the "Operative Provisions") which shall be of immediate force and effect on the Signature Date, is subject to the following conditions precedent (as read with clause 2.10):
|
2.1.1.
|
by not later than 30 April 2020 (or such other date as may be agreed in writing by AngloGold and the Purchasers), all necessary consents for the sale by the Group of the Sale Package under the RCF Agreements shall have been obtained;
|
2.1.2.
|
by not later than 30 April 2020 (or such other date as may be agreed in writing by AngloGold and the Purchasers), Harmony having obtained all consents and waivers under the Purchaser RCF Agreements necessary for each of the Purchasers and/or all of their relevant Affiliates (as applicable): (a) to enter into and perform its obligations under this Agreement; and (b) to use the funds available in terms of the Purchaser RCF Agreements to make the payments contemplated under clauses 16 and 34;
|
2.1.3.
|
by no later than 15 May 2020 (or such other date as may be agreed in writing by AngloGold and the Purchasers), the FSD providing in writing in accordance with all applicable legal requirements any and all exchange control approvals required in terms of the Exchange Control Regulations for each of the Purchasers and/or all of their relevant Affiliates (as applicable): (a) to enter into and perform its obligations under this Agreement; and (b) to use the funds available in terms of the Purchaser RCF Agreements to make the payments contemplated under clauses 16 and 34;
|
2.1.4.
|
by no later than the Long Stop Date, the Regional Director takes such decision and/or actions in relation to the Covalent Water Directive (including by way of a waiver, amendment, substitution, new directive or otherwise) such that AngloGold ceases (from no later than the Closing Date) to have any obligation or liability in terms of the Covalent Water Directive (whether such obligation or liability arises prior to or after the Closing Date);
|
2.1.5.
|
on or prior to the date on which the Condition Precedent in clause 2.1.6 below is fulfilled, the BEE Amendment Ministerial Consent is granted either unconditionally or subject to such conditions as the relevant Parties to whom such conditions apply may agree in writing are acceptable to them, provided that no Party may withhold its agreement unreasonably;
|
2.1.6.
|
by not later than the Long Stop Date, the Section 11 Ministerial Consent is granted either unconditionally or subject to such conditions as the relevant Parties to whom such conditions apply may agree in writing are acceptable to them, provided that no Party may withhold its agreement unreasonably; and
|
2.1.7.
|
by not later than the Long Stop Date, the relevant Competition Authorities approve, in writing, the implementation of the Transactions contemplated in this Agreement either unconditionally or subject to such conditions as the relevant Parties to whom
|
2.2.
|
In relation to the Section 11 Ministerial Consent, the Purchasers confirm that they are aware of the requirements stipulated in the MPRDA for the grant of the Section 11 Ministerial Consent.
|
2.3.
|
Each of the Parties shall use their respective reasonable endeavours and co-operate in good faith and do everything reasonably required of it, including the furnishing of all such information as may be so required, to procure the fulfilment of the Conditions Precedent, to the extent that it is within their power to do so, as expeditiously as reasonably possible; provided that if any Party designates that any information to be provided in terms of this clause 2.3 or clause 3 is confidential or otherwise proprietary to such Party or any of its Affiliates, such information may be disclosed to the other Parties’ attorneys but may not be shared by such attorneys with the other Parties themselves. Without limiting anything in this clause 2.3, the Parties undertake to use their respective reasonable endeavours to obtain, as soon as practicable following the Signature Date, all regulatory inputs, guidance, consents, approvals or authorisations that may be required in connection with the implementation of the transactions contemplated in this Agreement.
|
2.4.
|
The Conditions Precedent contained in clauses 2.1.6 and 2.1.7 may not be waived.
|
2.5.
|
Each of the Conditions Precedent set out in clauses 2.1.1 and 2.1.4have been inserted for the sole benefit of AngloGold and, accordingly, AngloGold shall be entitled to unilaterally waive fulfilment of any one or more of the aforesaid Conditions Precedent (in whole or in part), by written notice to the Purchasers prior to the expiry of the relevant time period set out in such clauses for fulfilment of the relevant Condition Precedent (or such extended time period as may be agreed in writing between AngloGold and the Purchaser).
|
2.6.
|
Each of the Conditions Precedent set out in clauses 2.1.2, 2.1.3 and 2.1.5have been inserted for the sole benefit of the Purchasers and, accordingly, the Purchasers shall be entitled to unilaterally waive fulfilment of any one or more of the aforesaid Conditions Precedent (in whole or in part), by written notice to AngloGold prior to the expiry of the relevant time period set out in such clauses for fulfilment of the relevant Condition Precedent (or such extended time period as may be agreed in writing between AngloGold and the Purchasers).
|
2.7.
|
Notwithstanding anything to the contrary in this Agreement, the Parties agree that the Long Stop Date can be extended at any time prior to the expiry thereof:
|
2.7.1.
|
once, by AngloGold unilaterally on written notice to the Purchasers, to 31 December 2020;
|
2.7.2.
|
once, by any one (but not more than one) of the Purchasers unilaterally on written notice to AngloGold, to 31 December 2020; and
|
2.7.3.
|
by AngloGold and the Purchasers expressly agreeing to any extension of the Long Stop Date in writing (on one or more occasions) prior to the lapsing thereof, to such later date/s as AngloGold and the Purchasers agree.
|
2.8.
|
For the avoidance of doubt, the Parties agree and acknowledge that in the event that the Long Stop Date is extended under clause 2.7.1 and/or 2.7.2 to 31 December 2020, then the Long Stop Date shall not be capable of further extension under clause 2.7.1 or 2.7.2 and thereafter will only be capable of being extended by the written agreement of AngloGold and the Purchasers in accordance with clause 2.7.2.
|
2.9.
|
On the CP Fulfilment Date, all of the provisions of this Agreement (other than the Operative Provisions which shall take effect as at the Signature Date in terms of clause 2.1) shall take effect and become operative.
|
2.10.
|
Unless each of the Conditions Precedent has been fulfilled or waived by not later than the relevant date for fulfilment thereof set out in clause 2.1 (or such later date or dates as may be agreed in writing between AngloGold and the Purchasers, or as may be extended in accordance with clause 2.7, on or before the aforesaid date or dates): (a) the provisions of this Agreement (save for clause 2, clause 1, and clauses 50 to 62 (both inclusive), which will remain of full force and effect and binding on the Parties) will never become of any force or effect; (b) the provisions of this Agreement (save for clause 2, clause 1 and clauses 50 to 62 (both inclusive)), shall terminate (with each Party being relieved of its duties and obligations arising in terms of all such provisions of this Agreement from and after the relevant date); (c) the status quo ante in respect of the Transactions will be restored by the Parties as near as may be possible; and (d) none of the Parties will have any claim against any other in terms hereof or arising from the failure of the Conditions Precedent, save for any claims arising from a breach of any of the Operative Provisions.
|
3.
|
MERGER NOTIFICATION TO COMPETITION AUTHORITIES
|
3.1.
|
It is recorded that both of the Transactions will result in an acquisition of control as contemplated by Chapter 3 of the Competition Act, which requires the approval of the relevant Competition Authorities prior to this Agreement being implemented.
|
3.2.
|
Harmony shall, as soon as reasonably possible after the Signature Date, instruct the Purchasers’ Counsel for the purpose of preparing, in reasonable consultation with ENSafrica (acting on behalf of AngloGold), all submissions, applications and documents which are required to be furnished to the relevant Competition Authorities in order to obtain the approval for the Transactions (the "Merger Notification") as contemplated in clause 3.1 and for the purpose of the presentation and argument of any such application. In this regard, the Parties shall co-operate with each other and timeously provide the aforesaid advisors with all documents and information as the advisors may reasonably require.
|
3.3.
|
AngloGold and Harmony shall use their reasonable endeavours to procure that the Merger Notification is submitted to the relevant Competition Authorities by no later than 30 (thirty) calendar days after the Signature Date.
|
3.4.
|
The Purchasers agree, and will procure, that neither the Merger Notification nor any other submissions, applications or documents which are required to be furnished to the relevant Competition Authorities will be submitted to the relevant Competition Authorities without AngloGold first having approved of such filing, submission, application or document (as applicable), in writing, which approval shall not be unreasonably withheld or delayed. Any approaches to, liaison with, or documents filed with, the Competition Authorities shall, to the extent permitted by Law, take place or be submitted or filed, as the case may be, only after consultation between the Parties, in a coordinated fashion and, as far as reasonably practicable, on a joint basis.
|
3.5.
|
The Purchasers shall, and shall procure that the Purchasers’ Counsel shall, ensure that AngloGold is promptly provided with copies of any and all notices and correspondence received from the Competition Authorities which relate to the transactions contemplated in this Agreement.
|
3.6.
|
Each of AngloGold and the relevant Purchaser shall –
|
3.6.1.
|
sign all documents and expeditiously provide all necessary information upon being required to do so for the purposes of completing and submitting the Merger Notification;
|
3.6.2.
|
use its reasonable endeavours and shall take all such steps and render all such assistance as may be reasonably necessary to procure that the Merger Notification is properly prepared and duly submitted; and
|
3.6.3.
|
provide all such assistance to the Competition Authorities as may be required including providing all information and responding to all queries in order for the Merger Notification to be dealt with,
|
3.7.
|
Pending the decision of the Competition Authorities pursuant to the submission of the Merger Notification, no Party shall –
|
3.7.1.
|
directly or indirectly, perform or fail to perform any act which will or is likely to diminish the prospects of success of the Merger Notification; or
|
3.7.2.
|
lodge, or authorise any other Party to lodge, any further information or documents required by the Competition Authorities as contemplated in clause 3.4, pertaining
|
3.8.
|
If either the Competition Authorities and/or the Purchasers’ Counsel request any further information or documents in respect of the Merger Notification, the Party to or on behalf of whom such request is addressed shall use its reasonable endeavours to respond fully thereto to the Purchasers’ Counsel (or through the Purchasers’ Counsel), as the case may be, as soon as is reasonably practicable after the request is received by or on behalf of such Party.
|
3.9.
|
If the Competition Tribunal prohibits the implementation of any of the Transactions or approves the implementation of one of the Transactions and not the other or approves the implementation of any of the Transactions subject to a condition or conditions, neither AngloGold nor Harmony shall be entitled to appeal and/or review the Competition Tribunal’s decision to the Competition Appeal Court unless AngloGold and Harmony both agree in writing prior thereto within the time period set out in clause 3.10. In the event of such agreement within such time period, either AngloGold or the Purchasers may appeal and/or review the Competition Tribunal’s decision to the Competition Appeal Court. Each Party shall bear its own costs for any appeal or review proceedings against a decision of any Competition Authority.
|
3.10.
|
In the event that AngloGold and Harmony are unable to agree in writing to appeal and/or review the Competition Tribunal’s decision to the Competition Appeal Court within 10 (ten) Business Days after a written request by either of them to reach such agreement and the Party affected by a condition imposed by the Competition Authorities does not (as contemplated in clause 2.1.7) accept such condition, then the Condition Precedent referred to in clause 2.1.7 will fail.
|
3.11.
|
The Parties shall bear their own costs in relation to the merger proceedings, including all costs associated with the preparation and filing of the proposed merger application (including but not limited to such costs incurred prior to the Signature Date), save that the statutory merger filing fee payable to the Competition Authorities associated with the submission of the Merger Notification will be shared equally between AngloGold and Harmony.
|
3.12.
|
The Parties shall, with reasonable notice, invite the other of them (and the advisors appointed by the Parties) to all meetings with, or hearings in front of, the Competition Authorities (to the extent requested) for purposes of obtaining approval from the Competition Authorities.
|
3.13.
|
For the purposes of this clause 3 only, if in terms of this clause 3 the written consent, approval or agreement of any of the Parties is required, or there is an obligation to provide any document, notice or correspondence to any of the Parties, then the: (a) written consent, approval or
|
4.
|
SECTION 11 APPLICATION AND GENERAL CONDUCT IN RELATION TO REGULATORY ATTENDANCES
|
4.1.
|
AngloGold shall, as soon as reasonably possible after the Signature Date, instruct ENSafrica, for the purpose of preparing, in consultation with the Purchasers’ Counsel (acting on behalf of the Purchasers), all submissions, applications and documents (including the Section 11 Application) which are required to be furnished to the DMRE in order to obtain the Section 11 Ministerial Consent. In this regard, the Parties shall co-operate with each other and timeously provide ENSafrica with all documents and information as ENSafrica may reasonably require.
|
4.2.
|
It is agreed that AngloGold shall at all times permit Harmony to review and comment on any written submissions, applications and documents (including the Section 11 Application to be made to the DMRE and any responses to correspondence or DMRE queries regarding the BEE Amendment Application currently being processed by the DMRE). AngloGold agrees, and will procure, that no submissions, applications and documents (including the Section 11 Application and any representations, comments, submissions or responses which are required to be furnished to the DMRE in order to obtain the Section 11 Ministerial Consent and/or the BEE Amendment Ministerial Consent) in respect of the WW Mining Rights will be submitted to the DMRE without Harmony first having approved of such filing, submission, application or document (as applicable), in writing, which approval shall not be unreasonably withheld or delayed. Any approaches to, liaison with, or documents filed with, the DMRE in connection with the Section 11 Application and/or the BEE Amendment Application shall, to the extent permitted by Law, take place or be submitted or filed, as the case may be, only after consultation between the Parties, in a coordinated fashion and, as far as reasonably practicable, on a joint basis.
|
4.3.
|
The Section 11 Application shall be submitted by AngloGold to the DMRE on the basis that the means of submission may include submission electronically via the website of the DMRE and/or manual lodgement, together with any further documents as may be required to be submitted in connection with the Section 11 Application.
|
4.4.
|
Harmony shall use its reasonable endeavours to prepare and deliver to AngloGold, within 20 (twenty) calendar days after the Signature Date, such documents which are required to support the Section 11 Application. AngloGold and Harmony shall use their reasonable endeavours to procure that the Section 11 Application is submitted to the DMRE within 30 (thirty) calendar days after the Signature Date.
|
4.5.
|
Each of AngloGold and the relevant Purchaser shall –
|
4.5.1.
|
sign all documents and expeditiously provide all necessary information upon being required to do so;
|
4.5.2.
|
use its reasonable endeavours and shall take all such steps and render all such assistance to each other as may be reasonably necessary from a process point of view; and
|
4.5.3.
|
do everything reasonably required by the DMRE from a process point of view,
|
4.6.
|
Harmony and AngloGold will each nominate appropriate employees (the "Authorised Employees") to jointly act on behalf of Harmony and AngloGold and to make all representations to the Minister and/or the DMRE solely for the purpose of obtaining the Section 11 Ministerial Consent under the Section 11 Application and the BEE Amendment Ministerial Consent under the BEE Amendment Application. For purposes of this clause 4.6 "jointly" shall mean one or more of the Authorised Employees of AngloGold acting together with one or more of the Authorised Employees of Harmony. The Parties shall be entitled to substitute their Authorised Employees if necessary and the initial Authorised Employees of each Party shall be:
|
4.6.1.
|
in the case of AngloGold, Nicki Strydom and Moses Madondo; and
|
4.6.2.
|
in the case of Harmony, Neil Terblanche and Phillip Tobias.
|
4.7.
|
At least one of the Authorised Employees of each of AngloGold and Harmony shall be invited by the Parties to attend all meetings in connection with procuring the Section 11 Ministerial Consent and BEE Amendment Ministerial Consent between any of the Parties respectively and any Party and the Minister and/or the DMRE.
|
4.8.
|
Harmony and AngloGold shall bear the filing fees payable to the DMRE in connection with the submission of the Section 11 Application in equal shares. Save for the aforegoing, each Party shall bear its own costs of and incidental to the preparation and submission of the Section 11 Application, including the legal fees and costs of its advisors in the preparation of the Section 11 Application and engagement with the DMRE (including but not limited to such costs incurred prior to the Signature Date).
|
4.9.
|
The Parties agree that:
|
4.9.1.
|
the WW Purchaser shall take transfer of the WW Mining Rights pursuant to the Section 11 Ministerial Consent and in accordance with AngloGold’s relevant social and labour plans, mining work programmes and environmental management
|
4.9.2.
|
in respect of the social and labour plans, mining work programmes and environmental management programmes relating to the WW Mining Rights, the WW Purchaser may after Signature Date prepare draft application/s in terms of section 102 of the MPRDA to amend or consolidate the social and labour plans, mining work programmes and environmental management programmes relating to the WW Mining Rights (the "Section 102 Application"). However, the WW Purchaser shall only be entitled to lodge the Section 102 Application after Closing (whether on a stand-alone basis or as part of the Consolidation Application);
|
4.9.3.
|
the WW Purchaser shall be obliged to make a Consolidation Application after Closing on or after the Closing Date (but shall not make a Consolidation Application before the Closing Date) and as the holder of the WW Mining Rights in accordance with the provisions of clause 11.4.2. The WW Purchaser shall be solely responsible for paying all costs of and incidental to the lodgement of any such Consolidation Application (including but not limited to the compilation of any relevant plans and programmes) and the execution and registration of the deeds of amendment. The WW Purchaser shall use all reasonable endeavours to ensure that the Consolidation Application is approved and implemented as soon as reasonably possible after the Closing Date; and
|
4.9.4.
|
AngloGold, on the request from the WW Purchaser from time to time, shall cooperate and use its reasonable endeavours to assist the WW Purchaser in making the Section 102 Application or the Consolidation Application.
|
4.10.
|
AngloGold shall only withdraw the Pending Applications on the earlier of: (a) a written request of the WW Purchaser; or (b) the Consolidation Application Ministerial Consent having been granted by the DMRE. AngloGold shall be solely responsible for paying all costs of and incidental to the withdrawal of the Pending Applications including but not limited to any correspondence, documents or notices that AngloGold may be required to submit to the DMRE in relation to the Pending Applications until the withdrawal of the Pending Applications.
|
4.11.
|
For the purposes of this clause 4 only, if in terms of this clause 4 the written consent, approval or agreement of any of the Parties is required, or there is an obligation to provide any document, notice or correspondence to any of the Parties, then the: (a) written consent, approval or agreement provided by ENSafrica (in the case of AngloGold) or the Purchasers’ Counsel (in the case of any of the Purchasers) shall constitute the written consent, approval or agreement of the Party in question; or (b) delivery of the document, notice or correspondence to ENSafrica
|
5.
|
CONVEYANCER
|
5.1.
|
AngloGold shall, as soon as reasonably possible after the Signature Date, instruct the Conveyancer, for the purpose of preparing, in consultation with the Purchaser's Counsel (acting on behalf of the Purchasers), all registrations, submissions, applications and documents which are required to be furnished, on or after the Closing Date, to any Deeds Registry or Governmental Entity to procure the: (a) Transfer of the Immoveable Properties (WW) and Immoveable Properties (VR); (b) registration in the Deeds Registry of the Kopanang Gold Plant Servitude and each of the notarial deeds of cession of servitude in respect of the Servitudes (WW) and Servitudes (VR); and (c) registration of the consents or deeds of transfer of the Surface Right Permits (WW) and Surface Right Permits (VR) in the Mining Titles Office, in the name of the relevant Purchaser. In this regard the Parties shall co-operate with each other and timeously provide the Conveyancer, in consultation with the Purchaser's Counsel (acting on behalf of the Purchasers), with all documents and information as the Conveyancer may reasonably require.
|
5.2.
|
AngloGold shall, and shall procure that the Conveyancer shall, ensure that the Purchasers are promptly provided with copies of any and all notices and correspondence received from the relevant Governmental Entity and/or Deed Registry which relate to the Transfers and registrations contemplated in clause 5.1.
|
6.
|
COVALENT WATER DIRECTIVE
|
6.1.
|
AngloGold shall, as soon as reasonably possible after the Signature Date, prepare all submissions, applications and documents which are required to be furnished to the Regional Director and arrange all meetings as may be necessary in order to reasonably attempt to procure the fulfilment of the Condition Precedent in clause 2.1.4.
|
6.2.
|
It is agreed that AngloGold shall at all times permit Harmony to review and comment on any written submissions, applications and documents to be made to the Regional Director. AngloGold agrees, and will procure, that no submissions, applications and documents which are required to be furnished to the Regional Director in order to procure the fulfilment of the Condition Precedent in clause 2.1.4 will be submitted to the Regional Director without Harmony first having approved of such filing, submission, application or document (as applicable), in writing, which approval shall not be unreasonably withheld or delayed (it being agreed that written approval provided by the Purchasers' Counsel, on behalf of Harmony, shall also constitute the aforesaid written approval). Any approaches to, liaison with, or documents filed with, the Regional Director in connection with the Condition Precedent in clause 2.1.4 shall, to the extent permitted by Law, take place or be submitted or filed, as the case may be, only after
|
6.3.
|
AngloGold and Harmony shall use all reasonable endeavours to procure that all submissions, applications and documents which are required to be submitted to the Regional Director are submitted by no later than 30 (thirty) calendar days after the Signature Date.
|
6.4.
|
AngloGold shall ensure that Harmony is promptly provided with copies of any and all notices and correspondence received from the Regional Director which relate to the Condition Precedent in clause 2.1.4.
|
6.5.
|
Each of AngloGold and the relevant Purchaser shall –
|
6.5.1.
|
sign all documents and expeditiously provide all necessary information upon being required to do so;
|
6.5.2.
|
use its reasonable endeavours and shall take all such steps and render all such assistance as may be reasonably necessary from a process point of view; and
|
6.5.3.
|
do everything reasonably required by the Regional Director from a process point of view,
|
6.6.
|
If the Condition Precedent in clause 2.1.4 is waived by AngloGold in terms of clause 2.5, then the WW Purchaser and AngloGold hereby agree that, with effect from the Closing Date, as between them, all benefit and risk of the Covalent Water Directive that would (but for this clause 6.6) vest in and be borne by AngloGold shall vest in and be borne by the WW Purchaser and, as a result: (a) the WW Purchaser shall be obliged, at its cost, but (to the extent necessary) in AngloGold’s name to discharge on the respective due dates therefore AngloGold’s obligations under the Covalent Water Directive after the Closing Date; and (b) (without derogating from the provisions of clause 24.3) the WW Purchaser hereby indemnifies AngloGold against any Loss which may arise as a result of the WW Purchaser failing to comply with its obligations under this clause 6.6.
|
7.
|
MATERIAL ADVERSE CHANGE
|
7.1.
|
At any time after the Signature Date, but prior to the earlier of the date on which the Closing Date would occur but for this clause 7 (the "Original Closing Date") and the 10th (tenth) Business Day after either Harmony or AngloGold (as applicable) becomes aware of a Material Adverse Change, Harmony or AngloGold, as the case may be, shall, upon becoming aware of
|
7.2.
|
AngloGold and Harmony shall meet within 10 (ten) Business Days after the delivery of any such MAC Notice in order to attempt to agree whether a Material Adverse Change has occurred, provided that if AngloGold and Harmony are unable to agree within 10 (ten) Business Days after such first meeting, the matter shall be referred to an Expert for determination in accordance with clause 49.
|
7.3.
|
If AngloGold and Harmony agree (or the Expert determines) that a Material Adverse Change has occurred, Harmony shall have the right to terminate the Transactions by giving written notice (a "MAC Termination Notice") of same to AngloGold within 10 (ten) Business Days after such agreement (or determination), provided that if Harmony does not so timeously deliver a MAC Termination Notice, the Purchasers shall have no Claim of any nature whatsoever against AngloGold in relation to the subject matter of the Material Adverse Change. Upon timeous delivery of any MAC Termination Notice, the Transactions and this Agreement shall immediately terminate, and AngloGold and the Purchasers shall have no claim of whatsoever nature against each other as a result thereof.
|
7.4.
|
In the event that a MAC Notice has been delivered and the subsequent process contemplated in this clause 7 has not been completed in accordance therewith prior to the date falling 5 (five) Business Days prior to the Original Closing Date, the Closing Date shall be postponed from the Original Closing Date and shall occur (unless the Transactions are terminated in accordance with clause 7.3): (a) if such process is completed on or before the 20th (twentieth) calendar day in any subsequent calendar month, on the last Business Day of such month; or (b) if such process is completed after the 20th (twentieth) calendar day in any subsequent calendar month, on the last Business Day of the month immediately following the month in which such process is completed.
|
7.5.
|
If the Closing Date is postponed in accordance with clause 7.4, and pursuant to the process contemplated in this clause 7, the Expert determines (or AngloGold and Harmony agree) that a Material Adverse Change has not occurred, the relevant Purchasers shall be liable for interest on all amounts of which they are required to make payment on the Closing Date at the Prime Rate plus 200 basis points and capitalised monthly in arrears, from the Original Closing Date to the date of the actual Closing Date, both dates inclusive.
|
7.6.
|
Notwithstanding anything to the contrary contained herein, if and to the extent that AngloGold has, in respect of a particular Material Adverse Change, exercised its option contemplated in clause 1.3.172.3.1 and provided the relevant Purchaser/s with written notice of its intention to
|
7.7.
|
For the avoidance of doubt, to the extent that a MAC Notice has not been delivered by either Harmony or AngloGold in accordance with clause 7.1 prior to the Original Closing Date, this clause 7 shall cease to be of any force and effect and no Party shall be entitled to allege the occurrence of a Material Adverse Change.
|
Part B.
|
WW PACKAGE
|
8.
|
SALE AND PURCHASE OF THE SALE EQUITY (WW)
|
8.1.
|
With effect from the Closing Date, AngloGold hereby sells and cedes to:
|
8.1.1.
|
the WW Purchaser, and the WW Purchaser hereby purchases and accepts such cession as an indivisible transaction, subject to the terms and conditions set out in this Agreement, the Covalent Sale Shares and the Covalent Sale Claims; and
|
8.1.2.
|
Harmony, and Harmony hereby purchases and accepts such cession as an indivisible transaction, subject to the terms and conditions set out in this Agreement:
|
8.1.2.1.
|
the AngloGold Security Services Sale Shares; and
|
8.1.2.2.
|
the Masakhisane Sale Shares.
|
8.2.
|
The Covalent Sale Shares, AngloGold Securities Services Sale Shares and Masakhisane Sale Shares, as applicable, shall be sold free and clear of any and all Encumbrances, with all rights attaching to them at the Closing Date, including the right to receive all distributions and dividends declared, paid or made in respect of the Covalent Sale Shares, the AngloGold Security Services Sale Shares and the Masakhisane Sale Shares at or after the Closing Date. The aforegoing sentence applies mutatis mutandis to the Covalent Sale Claims.
|
8.3.
|
Notwithstanding the Signature Date (or anything to the contrary contained herein), the sales and cessions referred to in clause 8.1.1 will take place on the Closing Date and ownership of and risk in, and benefit attaching to:
|
8.3.1.
|
the Sale Equity (WW) (except the Covalent Sale Equity) will, against payment of the Cash Portion (WW) in terms of clause 16.2.2, pass to Harmony; and
|
8.3.2.
|
the Covalent Sale Equity will, against payment of the Cash Portion (WW) in terms of clause 16.2.2, pass to the WW Purchaser,
|
9.
|
SALE AND PURCHASE OF THE WW MINING BUSINESS
|
9.1.
|
With effect from the Closing Date, AngloGold hereby sells, transfers and cedes to the WW Purchaser, and the WW Purchaser hereby purchases and accepts such transfer and cession, the WW Mining Business, as an indivisible transaction and as a going concern, subject to the terms and conditions set out in this Agreement and excluding the Excluded Liabilities.
|
9.2.
|
Notwithstanding the Signature Date (or anything to the contrary contained herein) –
|
9.2.1.
|
the risk in and benefit attaching to the WW Mining Business shall vest in the WW Purchaser with effect on and as from the Closing Date and AngloGold shall cease to have operational control of the WW Mining Business on and as from the Closing Date;
|
9.2.2.
|
subject to clause 9.2.6, ownership of the WW Mining Business (other than the WW Mining Rights and the WW Mining Right 11 MR, the Immoveable Properties (WW), the Servitudes (WW), the Infrastructure (WW) and the Surface Right Permits (WW)) shall pass to the WW Purchaser on and with effect from the Closing Date;
|
9.2.3.
|
ownership of the WW Mining Rights shall pass to the WW Purchaser upon notarial execution of the Notarial Deeds of Cession in respect of the WW Mining Rights (as contemplated in clause 11.3);
|
9.2.4.
|
ownership of the WW Mining Right 11 MR shall pass to the WW Purchaser upon the Consolidation Application Ministerial Consent being granted (as contemplated in clause 11.4);
|
9.2.5.
|
ownership of each of the Immoveable Properties (WW) shall pass to the WW Purchaser on and with effect from the Transfer Date of each of the respective Immoveable Properties (WW) (as contemplated in clause 11.6) and ownership of the Servitudes (WW) shall pass upon the date of registration in the Deeds Registry
|
9.2.6.
|
if the Infrastructure (WW): (a) accedes to the Immoveable Properties (WW), then ownership of such Infrastructure (WW) shall pass to the WW Purchaser on and with effect from the Transfer Date of each of the respective Immoveable Properties (WW); or (b) does not accede to the Immoveable Properties (WW), then ownership of such Infrastructure (WW) shall pass to the WW Purchaser on and with effect from the Closing Date (as contemplated in clause 11.6); and
|
9.2.7.
|
ownership of the Surface Right Permits (WW) shall pass to the WW Purchaser upon registration of the consents or deeds of transfer of the Surface Right Permits (WW) in the Mining Titles Office (as contemplated in clause 11.8).
|
10.
|
DELIVERY OF THE SALE EQUITY (WW)
|
10.1.
|
On the Closing Date the representatives of AngloGold, Harmony and the WW Purchaser shall meet at 10h00 at the offices of ENSafrica at 129 Rivonia Road, Sandton, Johannesburg, South Africa, or at such other time and/or place as AngloGold, Harmony and the WW Purchaser may agree, where AngloGold shall, against payment of the Cash Portion (WW) in terms of clause 16.2.2, deliver to Harmony and the WW Purchaser, as applicable –
|
10.1.1.
|
the original share certificates in respect of the Covalent Sale Shares, AngloGold Security Services Sale Shares and the Masakhisane Sale Shares, together with duly executed cession and transfer forms (in a form attached hereto as Annexure CC) for the transfer of ownership in respect thereof (blank as to the transferee);
|
10.1.2.
|
all of the books, records, documents and assets of the WW Companies in the possession of AngloGold and/or under its control immediately before the Closing Date (including, without limiting the generality of the aforegoing, the certificates of incorporation, memoranda of incorporation, minute books, tax records, securities register and other registers of the WW Companies), or alternatively place Harmony in effective control of such books, records, documents and assets;
|
10.1.3.
|
(a) the written resignation/s (in a form attached hereto as Annexure DD), with effect from the Closing Date, of all of the directors of each of the WW Companies, together with (b) an originally certified copy of the South African identity document (if South African) or valid passport (if not South African) of each resigning director, in each case certified within the 2 (two) months prior to the Closing Date;
|
10.1.4.
|
certified copies of duly passed resolutions (in a form attached hereto as Annexure FF) of the board of directors of:
|
10.1.4.1.
|
Covalent: (a) approving the transfer of the Covalent Sale Shares to the WW Purchaser; (b) noting the cession of the Covalent Sale Claims to the WW Purchaser; (c) approving the issue of appropriate new share certificates in respect of the Covalent Sale Shares to the WW Purchaser which reflect the WW Purchaser as the registered owner of the Covalent Sale Shares; (d) directing the company secretary or any one director of Covalent to cancel the existing share certificate/s, which reflect AngloGold as the registered owner of the Covalent Sale Shares, and issue new share certificate/s to the WW Purchaser which reflect the WW Purchaser as the registered owner of the Covalent Sale Shares and to update the securities register of Covalent to reflect the WW Purchaser as the registered holder of the Covalent Sale Shares; (e) approving the appointment of the WW Purchaser's nominees to the board of directors of Covalent (provided that the WW Purchaser provides the names and identity/passport (as applicable) numbers of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date), subject to the terms and conditions of this Agreement and with effect from the Closing Date; and (f) noting the resignations of the persons referred to in clause 10.1.3;
|
10.1.4.2.
|
AngloGold Security Services: (a) approving the transfer of the AngloGold Security Services Sale Shares to Harmony; (b) approving the issue of appropriate new share certificates in respect of the AngloGold Security Services Sale Shares to Harmony which reflect Harmony as the registered owner of the AngloGold Security Services Sale Shares; (c) directing the company secretary or any one director of AngloGold Security Services to cancel the existing share certificate/s, which reflect AngloGold as the registered owner of the AngloGold Security Services Sale Shares, and issue new share certificate/s to Harmony which reflect Harmony as the registered owner of the AngloGold Security Services Sale Shares and to update the securities register of AngloGold Security Services to reflect Harmony as the registered holder of the AngloGold Security Services Sale Shares; (d) approving the appointment of Harmony's nominees to the board of directors of AngloGold Security Services (provided that Harmony provides the names and identity/passport numbers (as applicable) of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date), subject to the terms and conditions of this
|
10.1.4.3.
|
Masakhisane: (a) approving the transfer of the Masakhisane Sale Shares to Harmony; (b) approving the issue of appropriate new share certificates in respect of the Masakhisane to Harmony which reflect Harmony as the registered owner of the Masakhisane Sale Shares; (c) directing the company secretary or any one director of Masakhisane to cancel the existing share certificate/s, which reflect Masakhisane as the registered owner of the Masakhisane Sale Shares, and issue new share certificate/s to Harmony which reflect Harmony as the registered owner of the Masakhisane Sale Share and to update the securities register of Masakhisane to reflect Harmony as the registered holder of the Masakhisane Sale Shares; (d) approving the appointment of Harmony nominees to the board of directors of Masakhisane (provided that Harmony provides the names and identity/passport numbers (as applicable) of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date), subject to the terms and conditions of this Agreement and with effect from the Closing Date; and (e) noting the resignations of the persons referred to in clause 10.1.3;
|
10.1.5.
|
certified copies of duly passed resolutions (in a form attached hereto as Annexure GG) of AngloGold appointing Harmony and the WW Purchaser's nominees to the board of directors of each of the WW Companies, as applicable, provided that Harmony and the WW Purchaser provides the name and identity/passport numbers (as applicable) of such nominees, as applicable, to AngloGold at least 15 (fifteen) Business Days before the Closing Date, subject to the terms and conditions of this Agreement and with effect from the Closing Date; and
|
10.1.6.
|
the documents, in respect of the Wonderfontein Trust, referred to in clause 10.2.2.
|
10.2.
|
Wonderfontein Trust
|
10.2.1.
|
It is recorded that: (a) the Wonderfontein Trust was established (inter alia) for purposes of acquiring, procuring the transfer of and holding property, transferring property to any public benefit organisation established in terms of section 30 of the Income Tax Act and to undertake such environmental rehabilitation of Farm Adma No. 354 and the Adma Dam as determined by the trustees of the Wonderfontein Trust, in their sole discretion; and (b) the property so held by the Wonderfontein Trust is the Farm Adma No 354 Registration Division I.Q, Province of Gauteng.
|
10.2.2.
|
In accordance with (and subject to) clauses 10.1 and 10.1.6, the following documents, in respect of the Wonderfontein Trust, shall be delivered to the WW Purchaser on the Closing Date, namely –
|
10.2.2.1.
|
all of the books, records, documents and assets of the Wonderfontein Trust in the possession of AngloGold and/or under its control immediately before the Closing Date in relation to the Wonderfontein Trust (including, without limiting the generality of the aforegoing, minute books, tax records, and other registers of the Wonderfontein Trust), or alternatively place the WW Purchaser in effective control of such books, records, documents and assets (it being recorded that AngloGold is not aware of any such books, records, documents and assets being in its possession or under its control);
|
10.2.2.2.
|
copies of the trust deed and letters of authority and affidavits which are required to be submitted to the Master of the High Court in place of the aforesaid original trust deed and letters of authority of the Wonderfontein Trust;
|
10.2.2.3.
|
the original written resignation/s of AngloGold’s appointees to the board of trustees of the Wonderfontein Trust (in a form attached hereto as Annexure EE), with effect from the date on which the new letters of authority in respect of the Wonderfontein Trust are to be issued as contemplated in clause 10.2.3;
|
10.2.2.4.
|
the original resolutions (in a form attached hereto as Annexure HH) of the trustees of the Wonderfontein Trust authorising and approving (subject to the terms and conditions of this Agreement and with effect from the Closing Date):
|
10.2.2.4.1.
|
the appointment of the WW Purchaser's nominees to the board of trustees of the Wonderfontein Trust with effect from the date on which the new letters of authority in respect of the Wonderfontein Trust are to be issued as contemplated in clause 10.2.3, provided that the WW Purchaser provides the names and identity/passport numbers (as applicable) of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date; and
|
10.2.2.4.2.
|
the resignations of the persons referred to in clause 10.2.2.3.
|
10.2.3.
|
The Parties record and agree that, as soon as reasonably possible after the Closing Date, the WW Purchaser shall do all such things as may be necessary to procure the issuance of new letters of authority to effect the resignation and appointments contemplated in clauses 10.2.2.3 and 10.2.2.4 in respect of the Wonderfontein Trust and AngloGold shall use all reasonable endeavours to assist the WW Purchaser to obtain such new letters of authority and any other amendments to the deed of trust of the Wonderfontein Trust as reasonably requested by the WW Purchaser.
|
10.2.4.
|
With effect from the Closing Date, AngloGold cedes, assigns and delegates all of its rights and obligations in relation to the Wonderfontein Trust (if any) including such obligations as are recorded in the trust deed of the Wonderfontein Trust and any obligations that AngloGold may have undertaken by virtue of its nominee/s being trustees of the Wonderfontein Trust, in relation to or in connection with the Wonderfontein Trust, which cession, assignment and delegation the WW Purchaser accepts.
|
10.2.5.
|
If and to the extent that AngloGold is unable to cede, assign and delegate all of its rights and obligations in relation to the Wonderfontein Trust to the WW Purchaser as contemplated in clause 10.2.4 above, then the WW Purchaser and AngloGold hereby agree that, with effect from the Closing Date, as between them, all benefit arising from or relating to the Wonderfontein Trust that (but for this clause 10.2.5) would vest in and be borne by AngloGold shall vest in and be borne by the WW Purchaser and, as a result: (a) the WW Purchaser shall be obliged, at its cost, but (to the extent necessary) in AngloGold’s name to discharge AngloGold’s obligations in respect of the Wonderfontein Trust after the Closing Date; and (b) the WW Purchaser hereby indemnifies AngloGold against any Loss which may arise as a result of the WW Purchaser failing to comply with its obligations under this clause 10.2.5.
|
10.2.6.
|
The Parties record and agree that, as soon as reasonably possible after the Closing Date, the WW Purchaser and AngloGold shall, to the extent required, use their reasonable endeavours to attend to any necessary updates (including, if applicable, the contact, address, banking and trustee details) of the Wonderfontein Trust where required on the Registration, Amendments and Verification Form (RAV01) and that, if required, a IT77TR is duly completed and timeously submitted with SARS).
|
10.3.
|
AngloGold and Harmony may, by agreement in writing, dispense with a meeting on the Closing Date and may instead provide for the delivery of the documents referred to in clause 10 in such other manner as they may agree.
|
11.
|
DELIVERY OF THE WW MINING BUSINESS
|
11.1.
|
Primary Delivery Provisions
|
11.1.1.
|
The Contracts (WW):
|
11.1.1.1.
|
AngloGold hereby assigns, cedes and delegates (with effect from the Closing Date) to the WW Purchaser all of its rights, title and interests in and to all prospective obligations in respect of the Contracts (WW), and the WW Purchaser hereby accepts such assignment, cession and delegation, to the extent that: (a) the other parties to the Contracts (WW) consent thereto; or (b) the consents of the other parties to the Contracts (WW) are not required. AngloGold undertakes (subject to the remaining provisions of this clause 11.1.1) to use all reasonable endeavours to procure, as soon as reasonably practicable following the Signature Date (and, to the extent not completed on the Closing Date, as soon as reasonably possible after the Closing Date) the assignment of the Contracts (WW), and the related cession and delegation of rights, title, interests and obligations, to the WW Purchaser as aforesaid with effect on and from the Closing Date, including to obtain all consents, approvals and waivers that may be required from any third parties for such assignment.
|
11.1.1.2.
|
If the WW Purchaser identifies any material Contract (WW) which, in the reasonable opinion of the WW Purchaser, necessarily requires an amendment (which amendment shall take effect on or after the Closing Date) in order for such Contract (WW) to be valid and binding and/or to properly serve the legitimate and reasonable requirements of the WW Purchaser in operating the WW Businesses after the Closing Date, then AngloGold shall: (a) co-operate with the WW Purchaser; and (b) (to the extent that AngloGold is in possession or control of same) provide any documentation, information and support, at the WW Purchaser's cost, to assist the WW Purchaser in endeavouring to procure the amendment in question, provided that compliance with such request shall not require AngloGold to act in any manner contrary to its interests nor to expend material time and resources.
|
11.1.1.3.
|
To the extent that the consent of any other third parties to any of the Contracts (WW) is required to effect the assignment, cession and
|
11.1.1.3.1.
|
at the cost of the WW Purchaser and for a period of 4 (four) calendar months following the later of: (a) the Closing Date; and (b) the date on which a copy of the Contract (WW) is provided to the WW Purchaser in terms of this Agreement (provided that this item (b) shall apply only to Confidential Contracts (WW) (only to the extent that AngloGold has obtained approval from the relevant third party to disclose the relevant Confidential Contract (WW) to the WW Purchaser, as contemplated in clause 19.5.4), Proposed Contracts (WW) and Interim Period Contracts (WW) (or such longer period as the Parties may agree in writing), AngloGold shall use its reasonable endeavours to procure the aforesaid consent of the relevant Consenting Parties (WW) for such Contract (WW). On termination of the aforesaid 4 (four) calendar month period, and to the extent that a Consenting Party (WW) fails to provide their aforesaid consent in relation to the relevant Contract (WW), AngloGold shall be entitled, in its sole and absolute discretion, in respect of such Contract (WW), to: (a) use its reasonable endeavours (for so long, and from time to time, as AngloGold may choose) to procure the aforesaid consent of such Consenting Party (WW); (b) exercise any rights that it has under such Contract (WW), to terminate such Contract (WW) in respect of which the consent of the Consenting Parties (WW) has not yet been obtained (WW) (whereafter AngloGold shall forthwith notify the WW Purchaser in writing thereof); and/or (c) terminate the provisions of clause 11.1.1.3.2 on written notice to the Purchaser insofar as they relate to such Contract (WW) named in such notice; and
|
11.1.1.3.2.
|
in respect of each such Contract (WW), from the Closing Date until the earlier of the date on which: (a) all Consenting Parties (WW) (whose consent is so required) provide their consent to the assignment,
|
11.1.1.3.2.1.
|
as between the WW Purchaser and AngloGold, the benefit and risk of such Contracts (WW) shall vest in and be borne by AngloGold prior to the Closing Date and by the WW Purchaser from the Closing Date and thereafter. In particular but without limiting the aforegoing, if the Consenting Parties (WW) do not perform their obligations under such Contracts (WW) after the Closing Date, AngloGold shall take all such reasonable steps, at the cost of the WW Purchaser, as shall be available to enforce such obligations;
|
11.1.1.3.2.2.
|
AngloGold shall exercise all its rights under such Contracts (WW) for the benefit, at the direction and for the cost of the WW Purchaser and AngloGold shall collect and pay to the WW Purchaser promptly all amounts due to be paid to AngloGold under such Contracts (WW);
|
11.1.1.3.2.3.
|
AngloGold shall be obliged, at its cost, to discharge on the respective due dates therefor any obligations under such Contracts (WW) in
|
11.1.1.3.2.4.
|
the WW Purchaser shall be obliged, at its cost, but in AngloGold's name to discharge on the respective due dates therefor AngloGold's obligations under such Contracts (WW) after the Closing Date; and
|
11.1.1.3.2.5.
|
the Parties hereby indemnify each other against any Loss which may arise as a result of the other of them failing to comply with their obligations under this clause 11.1.1,
|
11.1.1.4.
|
Notwithstanding the other provisions of this clause 11.1.1 or the provisions of clause 19.5, the following provisions shall apply in regard to the 1991 Agreement: (a) it is recorded: (i) by AngloGold that based solely on correspondence received from Sibanye Gold Limited t/a Sibanye Stillwater dated 5 July 2019 and on the information which has been made available to AngloGold which has been disclosed to the Purchasers, AngloGold believes that the reference to “5 Shaft-west” in the 1991 Pumping Agreement refers to the mine shaft complex now known as Driefontein 10 shaft complex and is not aware of any information that contradicts this view ; and (ii) that AngloGold has disclosed to the Purchasers that AngloGold disputes that the 1991 Agreement is valid and binding at all, or alternatively disputes that the 1991 Agreement is valid and binding on AngloGold; (b) nevertheless, whilst AngloGold continues to dispute as aforesaid, AngloGold and the WW Purchaser agree that the provisions of clauses 11.1.1.1 to 11.1.1.3 shall apply to the 1991 Agreement and that AngloGold hereby assigns, cedes and delegates to the WW Purchaser, in terms of
|
11.1.2.
|
The Sale Assets (WW): Subject to clause 11.2, AngloGold shall deliver to the WW Purchaser the Sale Assets (WW) by such mode of actual or constructive delivery as shall be appropriate in the circumstances, with the intent that legal title to all such Sale Assets (WW) shall pass by and upon such mode of delivery. AngloGold shall sign and execute, promptly upon receiving a written request from the WW Purchaser, all documents as may be reasonably required to procure the delivery and transfer, and to the extent necessary or possible, the registration of the transfer, of the Sale Assets (WW) into the name of the WW Purchaser;
|
11.1.3.
|
The Motor Vehicles (WW): AngloGold shall deliver to the WW Purchaser all such documents, duly completed, as may be necessary to enable the Motor Vehicles (WW) to be registered in the name of the WW Purchaser and to enable the WW Purchaser to obtain the necessary certificate of roadworthiness in respect thereof (provided that any costs having been incurred in obtaining such certificates shall be paid by the WW Purchaser);
|
11.1.4.
|
The books and records:
|
11.1.4.1.
|
AngloGold shall place the WW Purchaser in possession of the originals of all books, documents (including Contracts (WW), engineering manuals, drawings and designs) and records to the extent that it is in possession of same (irrespective of the medium in which such records are stored) which relate to the WW Package; provided that to the extent that AngloGold is required by law to retain any such original AngloGold shall instead be entitled to deliver a true and accurate copy thereof, and to the extent that any such records are kept on computer hardware which is not included within the WW Package, AngloGold
|
11.1.4.2.
|
the WW Purchaser acknowledges that AngloGold may: (a) be requested by a Government Entity to provide such entity with; or (b) require, for the purposes of any litigation proceedings, an original or copy of any of the books, documents and/or records delivered to the WW Purchaser by AngloGold under this clause 11.1.4. Accordingly, AngloGold may request access to and/or copies of all books, documents and records delivered to the WW Purchaser under this clause 11.1.4 from time to time and at any time. The WW Purchaser shall use its reasonable endeavours to provide AngloGold with access to and/or copies of such records and documents within 20 (twenty) Business Days after written notice thereof by AngloGold, at the cost of AngloGold. AngloGold irrevocably undertakes to the WW Purchaser it shall treat all such records and documents as private, strictly confidential and safeguard them accordingly, and to use each and every effort (including, without limitation, at least those steps as it applies in protecting its own proprietary, secret and confidential information) to ensure that such records and documents are protected against theft and/or unauthorised access and that no-one receives such records and documents unless authorised by the WW Purchaser in writing (which authorisation shall not be unreasonably withheld or delayed).
|
11.1.5.
|
The Sale Liabilities (WW):
|
11.1.5.1.
|
AngloGold hereby delegates to the WW Purchaser, to the extent that the creditors concerned consent thereto, and the WW Purchaser hereby accepts such delegation of the Sale Liabilities (WW). To the extent applicable, AngloGold undertakes to use all reasonable endeavours to procure the delegation of the Sale Liabilities (WW) to the WW Purchaser as aforesaid with effect from the Closing Date. To the extent that any such creditor does not agree thereto, the WW Purchaser shall be obliged after the Closing Date to discharge the Sale Liabilities (WW) on behalf of AngloGold on the respective due dates therefor and indemnifies AngloGold against any Claims of whatsoever nature that may be made against AngloGold in respect of the Sale Liabilities (WW) or the WW Purchaser’s failure to comply with its obligations in terms of this clause 11.1.5. The Parties record and agree that the WW Purchaser shall, with effect from the Closing Date, duly assume or punctually pay, satisfy, discharge, perform or fulfil (as the case may be) all of the Sale Liabilities (WW).
|
11.1.5.2.
|
Notwithstanding anything to the contrary in this Agreement, the Parties record and agree that AngloGold shall remain fully and solely liable and responsible for all Excluded Liabilities.
|
11.2.
|
Additional Delivery Provisions
|
11.2.1.
|
in respect of the WW Mining Rights, the provisions of clause 4 and clause 11.3 below shall apply;
|
11.2.2.
|
in respect of the WW Mining Right 11 MR, the provisions of clause 4 and clause 11.4 below shall apply;
|
11.2.3.
|
in respect of the Wonderfontein Trust, the AngloGold Enviro Trust (and the Trust Money) and the WW Financial Guarantees, the provisions of clause 10.2 and 11.4 below shall apply;
|
11.2.4.
|
in respect of the Immoveable Properties (WW) and Infrastructure (WW) the provisions of clause 11.6 below shall apply;
|
11.2.5.
|
in respect of the Servitudes (WW), the provisions of clause 11.7 below shall apply;
|
11.2.6.
|
in respect of the Surface Right Permits (WW), the provisions of clause 11.8 below shall apply;
|
11.2.7.
|
in respect of the Consumable Stores (WW), the provisions of clause 11.9 below shall apply;
|
11.2.8.
|
in respect of the Critical Spares (WW), the provisions of clause 11.10 below shall apply;
|
11.2.9.
|
in respect of the WW Core, the provisions of clause 11.11 below shall apply;
|
11.2.10.
|
in respect of the Tailings Storage Facilities (WW) and the Tailings Storage Facilities Sites (WW), the provisions of clause 11.12 below shall apply;
|
11.2.11.
|
in respect of the MOD (WW), the provisions of clause 11.13 below shall apply;
|
11.2.12.
|
in respect of the Gold in Lock Up (WW) and Gold In Process (WW), the provisions of clause 11.14 below shall apply;
|
11.2.13.
|
in respect of AngloGold’s rights under all Permits (WW), the provisions of clause 12 below shall apply; and
|
11.2.14.
|
in respect of the Environmental Obligations (WW), the provisions of clause 24.1 below shall apply.
|
11.3.
|
WW Mining Rights
|
11.3.1.
|
On the Closing Date, against payment of the Cash Portion (WW) in terms of clause 16.2.2 and to the extent that it has not already done so:
|
11.3.1.1.
|
AngloGold shall deliver to the WW Purchaser: (a) the originals or certified copies of such board resolution/s and other documents, in its possession or under its control, as may be necessary in order to procure the transfer of the WW Mining Rights from AngloGold to the WW Purchaser; and (b) copies of (or to the extent that AngloGold is in possession of same on the Closing Date, the originals of) the WW Mining Rights and Section 11 Ministerial Consent; and
|
11.3.1.2.
|
the parties shall execute the Notarial Deeds of Cession.
|
11.3.2.
|
The WW Purchaser shall lodge or procure the lodgement of the Notarial Deeds of Cession, for registration at the Mining Titles Office in terms of the MTRA, within the 60‑day period contemplated in section 11(4) of the MPRDA.
|
11.3.3.
|
AngloGold shall, upon written request by the WW Purchaser, give all reasonable assistance and take all such action as may be reasonably required by the WW Purchaser to give effect to the provisions of this clause 11.3.
|
11.3.4.
|
The Parties record that some of the Infrastructure (WW) has been valued and rated by the local authority in terms of Section 17(1)(f) of the Rates Act as part of the WW Mining Rights, in respect of which no clearance certificates may be issued and to which the Interim Payment Arrangement referred to in clause 11.6.21.5 applies. The WW Purchaser shall, subject to AngloGold providing the WW Purchaser with such documentation evidencing amounts that may be due and payable by the WW Purchaser, refund AngloGold in respect of that part of any payment made by AngloGold to the local authority that relates to the period between the Closing Date and the date of registration of the Notarial Deeds of Cession in the Mining Titles Office, and in relation to the period after the relevant date of registration of the Notarial Deeds of Cession in the Mining Titles Office, to the extent that the WW Purchaser is credited with such advance payments by the relevant local authority concerned and such amounts are not refunded by the relevant local authority concerned to AngloGold.
|
11.3.5.
|
In relation to the period from the Closing Date until the date of registration of the Notarial Deeds of Cession in the Mining Titles Office (both dates inclusive), the WW Purchaser shall, without limitation, be liable for:
|
11.3.5.1.
|
all costs of water, electricity, gas, refuse removal, sewage and any other services provided in respect of the buildings and infrastructure erected on the WW Mining Rights areas (including any deposits payable in connection therewith);
|
11.3.5.2.
|
all costs in relation to the maintenance and upkeep of the buildings and infrastructure erected on the WW Mining Rights areas; and
|
11.3.5.3.
|
all rates and taxes and other imposts levied by any Governmental Entity in respect of the WW Mining Rights areas;
|
11.3.6.
|
With effect from the Closing Date the WW Purchaser shall be responsible for taking out any insurance it requires in relation to the buildings and infrastructure erected on the WW Mining Areas.
|
11.3.7.
|
The Parties record that the buildings constructed within the WW Mining Areas were constructed for mining purposes and that there are no approved building plans or electricity compliance certificates in respect thereof.
|
11.4.
|
WW Mining Right 11 MR
|
11.4.1.
|
The WW Mining Right 11 MR shall be delivered to the WW Purchaser by virtue of AngloGold providing the WW Purchaser with the assistance contemplated in clause 4.9, and the WW Purchaser being granted the Consolidation Application Ministerial Consent.
|
11.4.2.
|
On the Closing Date, against payment of the Cash Portion (WW) in terms of clause 16.2.2, AngloGold will use its reasonable endeavours to prepare and deliver to Harmony, on the Closing Date (failing which as soon as reasonably possible after the Closing Date), such documents which are required to support the Consolidation Application, including but not limited to a conditional deed of abandonment of the WW Mining Right 11 MR specifying that AngloGold abandons the WW Mining Right 11 MR on condition that the Consolidation Application Ministerial Consent is obtained in order to inter alia incorporate it into WW Mining Right 01.
|
11.5.
|
AngloGold Enviro Trust (and the Trust Money) and the WW Financial Guarantees
|
11.5.1.
|
It is recorded that AngloGold has made provision for the rehabilitation of the WW Mining Areas in the amounts and by way of the methods detailed below:
|
11.5.1.1.
|
a contribution to the AngloGold Enviro Trust of the Trust Money. It is recorded that contributions made by AngloGold to the AngloGold Enviro Trust are in respect of AngloGold’s rehabilitation obligations for both the WW Mining Areas and the VR Region; and
|
11.5.1.2.
|
the provision of the WW Financial Guarantees.
|
11.5.2.
|
It is recorded that the AngloGold Enviro Trust is a trust registered for purposes of section 37A of the Income Tax Act.
|
11.5.3.
|
The AngloGold Enviro Trust and Trust Money
|
11.5.3.1.
|
On the Closing Date, against payment of the Cash Portion (WW) in terms of clause 16.2.2 and to the extent that it has not already done so, AngloGold shall deliver to the WW Purchaser:
|
11.5.3.1.1.
|
all of the books, records, documents and assets of the AngloGold Enviro Trust in the possession of AngloGold and/or under its control immediately before the Closing Date in relation to the AngloGold Enviro Trust (including, without limiting the generality of the aforegoing, minute books, tax records, and other registers of the AngloGold Enviro Trust), or alternatively place the WW Purchaser in effective control of such books, records, documents and assets;
|
11.5.3.1.2.
|
the original trust deed and letters of authority in respect of the AngloGold Enviro Trust;
|
11.5.3.1.3.
|
the original written resignation/s of AngloGold’s appointees to the board of trustees of the AngloGold Enviro Trust (in a form attached hereto as Annexure EE), with effect from the date on which the new letters of authority in respect of the AngloGold Enviro Trust are to be issued as contemplated in clause 11.5.3.2;
|
11.5.3.1.4.
|
the original resolutions (in a form attached hereto as Annexure HH) of the trustees of the AngloGold Enviro Trust authorising and approving (subject to the terms and conditions of this Agreement and with effect from the Closing Date):
|
11.5.3.1.4.1.
|
the appointment of the WW Purchaser’s nominees to the board of trustees of the AngloGold Enviro Trust with effect from the date on which the new letters of authority in respect of the AngloGold Enviro Trust are to be issued as contemplated in clause 11.5.3.2, provided that the WW Purchaser provides the names and identity/passport numbers (as applicable) of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date; and
|
11.5.3.1.4.2.
|
the resignations of the persons referred in clause 11.5.3.1.3.
|
11.5.3.2.
|
The Parties record and agree that, as soon as reasonably possible after the Closing Date, the WW Purchaser shall do all such things as may be necessary to procure the issuance of new letters of authority in respect of the AngloGold Enviro Trust and AngloGold shall use all reasonable endeavours to assist the WW Purchaser to obtain such new letters of authority and any other amendments to the deed of trust of the AngloGold Enviro Trust as reasonably requested by the WW Purchaser.
|
11.5.3.3.
|
With effect from the Closing Date, AngloGold cedes, assigns and delegates all of its rights and obligations in relation to the AngloGold Enviro Trust (if any) including such obligations as are recorded in the trust deed of the AngloGold Enviro Trust and any obligations that AngloGold may have undertaken by virtue of its nominee/s being trustees of the AngloGold Enviro Trust, in relation to or in connection with the AngloGold Enviro Trust, which cession, assignment and delegation the WW Purchaser accepts.
|
11.5.3.4.
|
If and to the extent that AngloGold is unable to cede, assign and delegate all of its rights and obligations in relation to the AngloGold Enviro Trust to the WW Purchaser as contemplated in clause 11.5.3.3 above, then the WW Purchaser and AngloGold hereby agree that, with effect from the Closing Date, as between them, all benefit arising from or relating to the AngloGold Enviro Trust that (but for this clause 11.5.3.4) would vest in and be borne by AngloGold shall vest in and be borne by the WW Purchaser and, as a result: (a) the WW Purchaser shall be obliged, at its cost, but (to the extent necessary) in AngloGold’s name to discharge AngloGold’s obligations in respect of the AngloGold Enviro Trust after the Closing Date; and (b) the WW Purchaser hereby indemnifies AngloGold against any Loss which may arise as a result of the WW Purchaser failing to comply with its obligations under this clause 11.5.3.4.
|
11.5.3.5.
|
The Parties record and agree that, as soon as reasonably possible after the Closing Date, the WW Purchaser and AngloGold shall attend to the necessary updates (including, the contact, address, banking and trustee details) of the AngloGold Enviro Trust where required on the Registration, Amendments and Verification Form (RAV01) and that the IT77TR is duly completed and timeously submitted with SARS.
|
11.5.4.
|
WW Financial Guarantees
|
11.5.4.1.
|
On the Closing Date, the WW Purchaser shall deliver to ENSafrica, the original financial guarantee/s it intends to submit at the Gauteng Regional Office of the DMRE for the rehabilitation of the WW Mining Areas, which are consistent with the Minister's requirements in terms of the Section 11 Ministerial Consent (the "Purchaser Financial Guarantee"), which Purchaser Financial Guarantee ENSafrica shall hold in escrow until such time as the WW Purchaser and AngloGold attend the Gauteng Regional Office of the DMRE.
|
11.5.4.2.
|
As soon as reasonably possible (and no later than 2 (two) Business Days) after the Closing Date, ENSafrica shall release the Purchaser Financial Guarantee from escrow and the WW Purchaser and AngloGold will attend at the Gauteng Regional Office of the DMRE to uplift the original WW Financial Guarantees and replace them with the original Purchaser Financial Guarantee, after which AngloGold shall cancel the WW Financial Guarantees. If AngloGold is unable to uplift the original WW Financial Guarantees:
|
11.5.4.2.1.
|
the WW Purchaser shall nevertheless submit the original Purchaser Financial Guarantee at the Gauteng Regional Office of the DMRE; and
|
11.5.4.2.2.
|
with effect from the Closing Date and until such time as the original WW Financial Guarantees are uplifted, the WW Purchaser hereby indemnifies and holds AngloGold harmless against all and any losses incurred or suffered by AngloGold by reason of, or arising directly or indirectly out of, or in connection with the DMRE bringing a claim against AngloGold and/or enforcing the WW Financial Guarantees but only to the extent that such claim and/or enforcement relates to any portion of the WW Financial Guarantees that relates to the WW Mining Business.
|
11.5.4.3.
|
Notwithstanding anything to the contrary contained herein, AngloGold shall use all reasonable endeavours to procure the upliftment of the original WW Financial Guarantees and the WW Purchaser shall provide all assistance required by AngloGold in this regard.
|
11.6.
|
Immoveable Properties (WW) and Infrastructure (WW)
|
11.6.1.
|
Occupation and possession of the Immoveable Properties (WW) and the Infrastructure (WW) will be provided to the WW Purchaser by AngloGold on the Closing Date against payment of the Cash Portion (WW) in terms of clause 16.2.2.
|
11.6.2.
|
All risk in and benefit attaching to such Immoveable Property (WW) and the Infrastructure (WW) shall vest in the WW Purchaser on the Closing Date against payment of the Cash Portion in terms of clause 16.2.2.
|
11.6.3.
|
The WW Purchaser shall, free of rental cost, have full and unfettered rights, subject to the terms and conditions set out in this clause 11.6, and be entitled to use and occupy the Immoveable Properties (WW) from the Closing Date until the Transfer Date of each of the respective Immoveable Properties (WW) (both dates inclusive) (the "Immoveable Property Period (WW)").
|
11.6.4.
|
To the extent that the Infrastructure (WW):
|
11.6.4.1.
|
accedes to immoveable property which forms part of the Immoveable Properties (WW), then such Infrastructure (WW) shall transfer to the WW Purchaser with each respective Immoveable Property (WW) on the Transfer Date of such Immoveable Properties (WW) and the WW Purchaser shall, free of rental cost, have full and unfettered rights, subject to the terms and conditions set out in this clause 11.6, and be entitled to use and occupy such Infrastructure (WW) from the Closing Date until the Transfer Date of each of the respective Immoveable Properties (WW) (both dates inclusive) (the "Infrastructure Period (WW)"); or
|
11.6.4.2.
|
does not accede to immoveable property which forms part of the Immoveable Properties (WW), then AngloGold shall on the Closing Date deliver such Infrastructure (WW) to the WW Purchaser by such mode of actual or constructive delivery as shall be appropriate in the circumstances, with the legal intent that legal title to all such Infrastructure (WW) shall pass by and upon such mode of delivery on the Closing Date. AngloGold shall sign and execute, upon receiving a written request from the WW Purchaser, all documents as may be reasonably required to procure the delivery and transfer, and to the extent necessary or possible, the registration of the transfer, of such Infrastructure (WW) into the name of the WW Purchaser.
|
11.6.5.
|
It is the intention of the Parties that the Transfer (WW) of each Immoveable Property (WW) takes place as soon as reasonably possible after the Closing Date. To give
|
11.6.5.1.
|
take all steps as may be necessary to apply to the relevant local authority for rates clearance figures in respect of each of the Immoveable Properties (WW) (the "Rates Clearance Figures (WW)"); and
|
11.6.5.2.
|
prepare all documents necessary for lodgement of the Transfers (WW) in the relevant Deeds Registry as soon as reasonably possible after the Closing Date.
|
11.6.6.
|
The Parties undertake that they shall do all such things as may be necessary to give effect to the intention of the Parties as set out in clause 11.6.4, including but not limited to providing and signing the relevant documentation to authorise the Conveyancer to apply to the relevant local authority for the Rates Clearance Figures (WW) and providing such documentation to the Conveyancer which is necessary to prepare all documents to give effect to the Transfers (WW). All costs associated with the applications for Rates Clearance Figures (WW) shall be for the account of the WW Purchaser.
|
11.6.7.
|
On the Closing Date and against payment of the Cash Portion (WW) in terms of clause 16.2.2:
|
11.6.7.1.
|
and to the extent that it has not already done so, AngloGold shall hand over to the Conveyancer all the original title deeds in its possession or under its control in respect of the Immoveable Properties (WW), alternatively, the particulars of title deeds that have been permanently filed at the Deeds Registry, in respect of the Immoveable Properties (WW), alternatively signed applications for the issue of substituting copies of all lost deeds, and all other documentation, as requested by the Conveyancer, to give effect to the provisions of this clause 11.6; and
|
11.6.7.2.
|
the Parties shall each nominate 2 (two) or more appropriate representatives employed by AngloGold and the WW Purchaser (or any of its Affiliates) respectively (the "Authorised Representatives (WW)") to act on their behalf to complete and/or sign all documents necessary to effect the Transfers (WW) and the execution of the notarial deeds of cession and assignment of the Servitudes (WW) and registration of cession and assignment of the Servitudes (WW) in the
|
11.6.7.2.1.
|
in the case of AngloGold, Lizelle Marwick or Ryan Webb; and
|
11.6.7.2.2.
|
in the case of the WW Purchaser, Neil Terblanche or Phillip Tobias.
|
11.6.8.
|
AngloGold shall, on request by the Conveyancer, pay in full the relevant Rates Clearance Figures (WW) in respect of the period up to and including the Closing Date, in order for a rates clearance certificate to be issued to the Conveyancer, in respect of each of the Immoveable Properties (WW) as well as the Infrastructure (WW) (if necessary), in terms of section 118 of the Local Government: Municipal Systems Act, No. 32 of 2000 (the "Rates Clearance Certificate (WW)"). AngloGold undertakes to the WW Purchaser that when obtaining the Rates Clearance Figures (WW) for the period up to and including the Closing Date, from the relevant local authority for purposes of the Transfer (WW), it shall effect payment of the full debt due (in respect of the aforesaid period) to the relevant local authority as at such date and shall not limit this to the 2 (two) years preceding the issue of the relevant Rates Clearance Certificate (WW).
|
11.6.9.
|
The WW Purchaser shall, on request by the Conveyancer, pay the relevant Rates Clearance Figures (WW) that relate to the period after the Closing Date, in order for the Rates Clearance Certificate to be issued to the Conveyancer.
|
11.6.10.
|
The WW Purchaser shall, subject to AngloGold providing the WW Purchaser with such documentation evidencing amounts that may be due and payable by the WW Purchaser in respect of the Rates Clearance Figures (WW) paid by AngloGold, refund AngloGold in respect of that part of any payment made by AngloGold to the local authority that relates to the period between the Closing Date and the relevant Transfer Date, and only in relation to the period after the relevant Transfer
|
11.6.11.
|
The WW Purchaser shall, on written request by AngloGold refund AngloGold for any and all deposits made by AngloGold in relation to the Immoveable Properties (WW) and/or the Infrastructure (WW), to the extent that WW Purchaser is credited with and has received such deposits by the relevant local authority concerned and such amounts are not refunded by the relevant local authority concerned to AngloGold.
|
11.6.12.
|
AngloGold undertakes to the WW Purchaser that it shall, at its cost, do all such things as may be necessary (including providing relevant documentation for the Transfer (WW)) to obtain all consents and/or approval, as registered owner of the Immoveable Properties (WW), that are required to give effect to the Transfers (WW) contemplated in this clause 11.6, including (without limitation), procuring the consent and/or approval of the relevant local authority or any third party to the Transfers (WW).
|
11.6.13.
|
The Parties undertake in favour of each other that:
|
11.6.13.1.
|
the Parties shall procure that 1 (one) of their Authorised Representatives (WW) signs all documents required to give effect to the Transfer (WW) without delay and to provide all documents and information and do all things necessary in order to effect the Transfer (WW); and
|
11.6.13.2.
|
each Party shall take all steps, pay all amounts and do and procure the doing of all such things as are reasonable in the circumstance so as to place the Conveyancer in a position to, and to ensure that the Conveyancer, effect Transfer (WW) in the relevant Deed Registry without unnecessary delay or hindrance.
|
11.6.14.
|
All costs, taxes, fees and disbursements (including transfer duty and VAT, if any) incurred to effect the transfer of the Immoveable Properties (WW) and Infrastructure (WW) to the WW Purchaser shall be paid by the WW Purchaser within 7 (seven) calendar days after being requested to do so by the Conveyancer in writing and on receipt of a VAT invoice from the Conveyancers.
|
11.6.15.
|
Subject to the Warranties, the Parties agree that the Immoveable Properties (WW), as well as the Infrastructure (WW), are sold to the extent as they now lie, voetstoots, subject to all conditions, servitudes, Surface Right Permits (WW) and any Encumbrances, and further subject to the provisions of clause 11.6.20 in relation to the subdivision and transfer of the SANRAL Portions (WW) to SANRAL .
|
11.6.16.
|
The Parties record that the Infrastructure (WW) was erected for mining purposes pursuant to surface right permits and/or mining rights granted to AngloGold and that there are no approved building plans or electricity compliance certificates in terms of the Electrical Installation Regulations promulgated under the Occupational Health and Safety Act No. 85 of 1993 in respect thereof.
|
11.6.17.
|
AngloGold shall be obliged to procure the issue of a valid and up to date certificate of compliance in respect of each of the freehold residential properties included in the Immovable Properties (WW) as referred to in Annexure Q as contemplated in terms of the Electrical Installation Regulations 2009 promulgated under the Occupational Health and Safety Act No. 85 of 1993, (the "Compliance Certificate (WW)") (to the extent that AngloGold is not already in possession of a valid Compliance Certificate (WW) which is less than 2 (two years old)) and deliver the valid and up to date Compliance Certificates (WW) for each such freehold residential property to the WW Purchaser on or before the Closing Date (and, to the extent not delivered on the Closing Date, as soon as reasonably possible after the Closing Date but before the respective Transfer Date). AngloGold shall be liable for the cost of procuring the issue of the said Compliance Certificates (WW) (to the extent that it is necessary to procure the issue of an updated Compliance Certificate (WW)), including without limitation the cost of any necessary electrical work.
|
11.6.18.
|
In relation to the Immoveable Property Period (WW), the WW Purchaser shall, without limitation, be liable for:
|
11.6.18.1.
|
all costs of water, electricity, gas, refuse removal, sewage and any other services provided in respect of the: (a) Immoveable Properties (WW), for the Immoveable Property Period (WW); and (b) Infrastructure (WW), for the Infrastructure Period (WW), (including any deposits payable in connection therewith);
|
11.6.18.2.
|
all costs in relation to the maintenance and upkeep of: (a) the Infrastructure (WW), for the Infrastructure Period (WW); and (b) all other improvements and structures on the Immoveable Properties (WW), for the Immoveable Property Period (WW), to the extent that such maintenance and upkeep is required by the WW Purchaser; and
|
11.6.18.3.
|
all rates and taxes and other imposts levied by any local authority in respect of the: (a) Immoveable Properties (WW), for the Immoveable Property Period (WW); and (b) Infrastructure (WW), for the Infrastructure Period (WW),
|
11.6.19.
|
During the Immovable Property Period (WW), the WW Purchaser shall be responsible for taking out any insurance it requires in relation to the Immoveable Properties (WW) or the Infrastructure (WW) with effect from the Closing Date.
|
11.6.20.
|
SANRAL:
|
11.6.20.1.
|
AngloGold concluded an agreement with SANRAL on or about 10 September 2018 to transfer at no consideration to SANRAL the subdivided portions, namely:
|
11.6.20.1.1.
|
Portion 107 (a portion of Portion 62) Blyvooruitzicht 116 IQ; and
|
11.6.20.1.2.
|
Portion 29 (a portion of Portion 12) Elandsfontein 115 IQ,
|
11.6.20.2.
|
The WW Purchaser acquires the Remainder of Portion 62 Blyvooruitzicht 116 IQ and Remainder of Portion 12 Elandsfontein 115 IQ, as two of the Immovable Properties (WW), subject to AngloGold’s agreement with SANRAL in relation to the SANRAL Portions (WW), the subdivision to create the SANRAL Portions (WW) and subsequent registration of transfer by AngloGold of the SANRAL Portions (WW) into the name of SANRAL. The Parties agree that registration of
|
11.6.20.3.
|
AngloGold shall pay in full the relevant rates clearance figures in order for a rates clearance certificate to be issued to the conveyancer attending to the transfer of the SANRAL Portions (WW) to SANRAL, in respect of Portion 62 Blyvooruitzicht 116 IQ and Portion 12 Elandsfontein 115 IQ, in terms of section 118 of the Local Government: Municipal Systems Act, No. 32 of 2000 and the WW Purchaser shall refund AngloGold, subject to AngloGold providing the WW Purchaser with such documentation evidencing amounts that may be due and payable by the WW Purchaser, in respect of any payment made as aforesaid that relates to the Remainder of Portion 62 Blyvooruitzicht 116 IQ and Remainder of Portion 12 Elandsfontein 115 IQ as from the Closing Date and the period thereafter.
|
11.6.21.
|
Municipal Valuations, Objections and Appeals
|
11.6.21.1.
|
The Parties record that:
|
11.6.21.1.1.
|
the Merafong City Local Municipality ("Merafong Municipality") has published a general municipal valuation roll effective from 1 July 2019, and may thereafter cause and may publish (or may have caused and published since) supplementary valuation rolls, in which new municipal values have been, or may be, accorded to the Immoveable Properties (WW) and the Infrastructure (WW) (all such new municipal values published at any time up to the Closing Date are hereinafter referred to as the "Municipal New Values (WW)");
|
11.6.21.1.2.
|
AngloGold has lodged, or may in the future lodge, in terms of section 50 of the Rates Act, objections against the Municipal New Values (WW) (the "Municipal Objections (WW)"). It is recorded that
|
11.6.21.1.3.
|
AngloGold may already have lodged, or may in the future lodge, an appeal in terms of section 54(1)(a) of the Rates Act to the valuation appeal board against any decision of the municipal valuer regarding the Municipal Objections (WW) (the "Municipal Appeals (WW)").
|
11.6.21.2.
|
With effect from the Closing Date (including, for the avoidance of doubt, any period on and after the Transfer (WW)), in respect of all Municipal Objections (WW) and Municipal Appeals (WW), the following provisions shall apply:
|
11.6.21.2.1.
|
the WW Purchaser shall, from the Closing Date, if in its sole discretion it so chooses (but without limiting the rights of AngloGold under clause 11.6.21.2.2): (a) lodge all and any Municipal Objections (WW) and Municipal Appeals (WW) that have not yet been lodged; and (b) diligently prosecute, administer and pursue (in all respects) all and any Municipal Objections (WW) and Municipal Appeals (WW) to finality, at its cost, until no further objections, reviews and appeals are possible. The aforegoing actions by the WW Purchaser shall be performed in its own name or, in those cases where AngloGold has already lodged Municipal Objections (WW) and Municipal Appeals (WW), operating under power of attorney granted by AngloGold where applicable; and
|
11.6.21.2.2.
|
notwithstanding the foregoing, and whilst AngloGold shall have no obligation to do so whatsoever, AngloGold shall be entitled (but not obliged), during the Immoveable Property Period, to: (a) lodge all and any Municipal Objections (WW) and Municipal
|
11.6.21.3.
|
The WW Purchaser hereby indemnifies AngloGold and holds AngloGold harmless against any and all claims, losses, damages, proceedings, liabilities and expenses (including, but not limited to legal costs and costs awarded against it), charges, compensation, awards, fines, actions and demands arising after the Closing Date in relation to any Municipal Objections (WW) and/or Municipal Appeals (WW) (and the processes relating thereto) contemplated in clause 11.6.21.2.1 which are incurred by AngloGold during the Immoveable Property Period (WW) as a result of any action pursued after the Closing Date by the WW Purchaser as contemplated in clause 11.6.21.2.1 from the Closing Date, whether under power of attorney granted by AngloGold or in its own name.
|
11.6.21.4.
|
The WW Purchaser shall provide AngloGold with, or will procure that AngloGold is promptly provided with, copies of any and all notices and correspondence received from the relevant Government Entity which relate to any Municipal Objections (WW) and/or Municipal Appeals (WW) (and the processes relating thereto) contemplated in clause 11.6.21.2.2 which are received by the WW Purchaser after the Closing Date.
|
11.6.21.5.
|
It is recorded that AngloGold and Merafong Municipality entered into an interim payment arrangement (the "Interim Payment Arrangement") with effect from 1 July 2019 in terms whereof:
|
11.6.21.5.1.
|
AngloGold pays rates in a sum of ZAR8 128 686 (eight million one hundred and twenty eight thousand six hundred and eighty six Rand) per annum (being an amount of ZAR677 390 (six hundred and seventy seven thousand three hundred and ninety Rand) monthly) in respect of the Municipal Properties and Infrastructure categorised as mining properties;
|
11.6.21.5.2.
|
50% (fifty percent) of the aforesaid monthly rates payments in the sum of ZAR338 695 (three hundred
|
11.6.21.5.3.
|
the interest on the Merafong Trust Money will accrue to Merafong Municipality, but be taken into account as payment by AngloGold towards its rates obligations in respect of the rates on the Municipal Properties and Infrastructure.
|
11.6.21.6.
|
As contemplated in clause 11.6.21.7 AngloGold undertakes (subject to the remaining provisions of this clause 11.6) to use all reasonable endeavours to procure in writing from the Merafong Municipality, as soon as reasonably practicable following the Signature Date (and, to the extent not completed on the Closing Date, as soon as reasonably possible after the Closing Date) the cession and assignment of the Interim Payment Arrangement, and the related cession and delegation of rights, title, interests and obligations, to the WW Purchaser as aforesaid with effect on and from the Closing Date, including to obtain all consents, approvals and waivers that may be required from the Merafong Municipality for such assignment.
|
11.6.21.7.
|
Without derogating from any other provisions in this Agreement, if and to the extent that any Municipal Objection (WW) or Municipal Appeal (WW) is successful and the result thereof is that any portion of any rates or taxes paid by AngloGold prior to the Closing Date are to either be reimbursed by the relevant Governmental Entity and/or are to be refunded to AngloGold in terms of the Interim Payment Arrangement and/or are to result in a credit or set off (in an amount equal to such portion) being granted by the relevant Government Entity, then: (a) the WW Purchaser shall, forthwith upon the Municipal Objection (WW) or Municipal Appeal (WW) (as the case may be) being successful as aforesaid, pay, provided such amount has been paid to and actually
|
11.6.22.
|
Merafong Litigation
|
11.6.22.1.
|
In relation to the litigation under case numbers 23558/2011 and 47019/2014, copies of which are filed under folder 1.2.12.1.2 of the Data Room, (the "Merafong Litigation"), AngloGold shall notify the WW Purchaser in writing no later than the Closing Date, whether or not the WW Purchaser must pursue the Merafong Litigation. Should AngloGold elect that the WW Purchaser must pursue the Merafong Litigation then in order to give effect to the aforesaid AngloGold will either grant the WW Purchaser a power of attorney to conduct the Merafong Litigation in AngloGold’s name, in which case AngloGold shall provide such power of attorney to the WW Purchaser or the WW Purchaser and AngloGold shall bring an application to the relevant Governmental Entity for substitution of AngloGold with the WW Purchaser in respect of the Merafong Litigation, in which case the WW Purchaser shall do all such things as AngloGold may reasonably require in order to achieve the aforesaid substitution.
|
11.6.22.2.
|
Should AngloGold elect as aforesaid that the WW Purchaser shall pursue the Merafong Litigation , the WW Purchaser shall, at its own cost, diligently administer and pursue (in all respects) the Merafong Litigation to finality until no further applications, actions, reviews and/or appeals are possible.
|
11.6.22.3.
|
The WW Purchaser hereby indemnifies AngloGold and holds AngloGold harmless against any and all claims, losses, damages, proceedings, liabilities and expenses (including, but not limited to legal costs and costs awarded against it), charges, compensation, awards, fines, actions and demands arising after the Closing Date in relation to the Merafong Litigation (and the processes relating thereto) and pursued after the Closing Date by the WW Purchaser.
|
11.6.22.4.
|
The WW Purchaser shall provide AngloGold with, or will procure that AngloGold is promptly provided with, copies of any judgements and/
|
11.6.22.5.
|
Without derogating from any other provisions in this Agreement, if and to the extent that the Merafong Litigation is successful and the result thereof is that any portion of any costs (including, but not limited to, legal costs), surcharges, rates or taxes paid by AngloGold prior to the Closing Date are either reimbursed by the relevant Governmental Entity and/or result in a credit or set off (in an amount equal to such portion) being granted by the relevant Government Entity, then the WW Purchaser shall, forthwith upon the Merafong Litigation being successful as aforesaid, pay an amount equal to the aforesaid portion to AngloGold.
|
11.7.
|
Servitudes (WW)
|
11.7.1.
|
With effect from the Closing Date, against payment of the Cash Portion (WW) in terms of clause 16.2.2, AngloGold cedes, assigns and delegates, to the extent that it has not already occurred, to the WW Purchaser all of its rights, title and interests in and to and all prospective obligations in respect of the Servitudes (WW), and the WW Purchaser hereby accepts such assignment, cession and delegation, to the extent that: (a) the other parties to such Servitudes (WW) consent thereto; or (b) the consents of the other parties to such Servitudes (WW) are not required. AngloGold undertakes to use all reasonable endeavours to procure the registration in the Deeds Registry of the notarial deeds of cession of servitudes in respect of the Servitudes (WW), and the related cession and delegation of rights, title, interests and obligations, to the WW Purchaser as aforesaid as well as registration thereof in the Deeds Registry.
|
11.7.2.
|
On the Closing Date, against payment of the Cash Portion (WW) in terms of clause 16.2.2, occupation and possession of the servitude areas of the Servitudes (WW) shall be granted by AngloGold to the WW Purchaser to the extent that it has not already done so. From the Closing Date until the date of registration of the notarial deeds of cession and assignment in the relevant Deeds Registry in respect of each of the respective Servitudes (WW) (both dates inclusive), all risk in and benefit attaching to such Servitudes (WW) shall vest in the WW Purchaser and the WW Purchaser shall, free of rental cost, have full and unfettered rights, subject to the terms and conditions of the respective servitudes as well as those terms and conditions set out in this clause 11.7.2, to use and occupy the servitude areas of the Servitudes (WW).
|
11.7.3.
|
It is the intention of the Parties that the registration of the notarial deeds of cession and assignment of Servitudes (WW) in the relevant Deeds Registry takes place as soon as reasonably possible after the Closing Date. To give effect to this intention, the Parties agree that the Conveyancer is hereby authorised on behalf of both Parties to and shall during the Interim Period prepare all documents necessary for the notarial execution and lodgement of the notarial deeds of cession and assignment of Servitudes (WW) in the relevant Deeds Registry as soon as reasonably possible after the Closing Date.
|
11.7.4.
|
On the Closing Date and against payment of the Cash Portion (WW) in terms of clause 16.2.2:
|
11.7.4.1.
|
and to the extent that it has not already done so, AngloGold shall hand over to the Conveyancer all the original notarial deeds of servitude in respect of the Servitudes (WW), or signed applications for substituting copies in respect of all lost deeds and all other documentation, as requested by the Conveyancer, to give effect to the provisions of this clause 11.7.4; and
|
11.7.4.2.
|
the Parties shall each provide their respective Authorised Representatives (WW) with a power of attorney or delegation of authority to act on their behalf for purposes of completing and/or signing all documents necessary to effect the execution of the notarial deeds of cession and assignment of the Servitudes (WW) and registration thereof in the relevant Deeds Registry.
|
11.7.5.
|
AngloGold shall furnish to the registered landowner/s of the servient properties under the Servitudes (WW) the required notices of cession and assignment, to the extent required in terms of the provisions of the relevant deeds of servitude of the Servitudes (WW).
|
11.7.6.
|
The Parties undertake in favour of each other that:
|
11.7.6.1.
|
the Parties shall procure that 1 (one) of their Authorised Representatives (WW) signs all documents required to give effect to the cession and assignment of the Servitudes (WW) without delay and to provide all documents and information and do all things necessary in order to effect the registration thereof in the relevant Deeds Registry; and
|
11.7.6.2.
|
each Party shall take all steps, pay all amounts and do and procure the doing of all such things as are reasonable in the circumstance so as to place the Conveyancer in a position to, and to ensure that the
|
11.7.7.
|
All costs, taxes, fees and disbursements (including transfer duty and VAT, if any) incurred in order to effect the execution and registration of the notarial deeds of cession and assignment of the Servitudes (WW) in the relevant Deeds Registry to the WW Purchaser shall be paid by the WW Purchaser within 7 (seven) calendar days after being requested to do so by the Conveyancer in writing and on receipt of a VAT invoice from the Conveyancers.
|
11.7.8.
|
In relation to the period from the Closing Date until the date of registration of the notarial deeds of cession and assignment in the relevant Deeds Registry for each of the respective Servitudes (WW) (both dates inclusive), the WW Purchaser shall, without limitation, be liable for:
|
11.7.8.1.
|
all cost of compliance with the obligations of AngloGold in terms of the deeds of servitude of the Servitudes (WW);
|
11.7.8.2.
|
all costs of any services provided in respect of the Servitudes (WW); and
|
11.7.8.3.
|
all costs in relation to the maintenance and upkeep of the improvements and structures, to the extent that such maintenance and upkeep is required by the WW Purchaser, on the servitude areas of the Servitudes (WW),
|
11.8.
|
Surface Right Permits (WW)
|
11.8.1.
|
On the Closing Date, against payment of the Cash Portion (WW) in terms of clause 16.2.2 and to the extent that it has not already done so:
|
11.8.1.1.
|
AngloGold shall provide the WW Purchaser with all documents, in its possession or under its control or, alternatively, signed applications
|
11.8.1.2.
|
the Parties will on the Closing Date each provide their respective Authorised Representatives (WW) with a power of attorney or delegation of authority to act on their behalf for purposes of completing and/or signing all documents necessary to effect the transfer of the Surface Right Permits (WW) in the Mining Titles Office.
|
11.8.2.
|
Within 30 (thirty) Business Days after the Closing Date or as soon as possible thereafter, the Conveyancer shall on behalf of the WW Purchaser, at the WW Purchaser’s cost, lodge, or procure the lodgement of, all necessary documents to procure the registration of such transfers at the Mining Titles Office within the 90‑day period contemplated in item 9(3) to Schedule II of the MPRDA.
|
11.8.3.
|
AngloGold shall, upon written request by the WW Purchaser, give all reasonable assistance and take all such action as may be reasonably required by the WW Purchaser to give effect to the provisions of this clause 11.8.
|
11.8.4.
|
Occupation and possession of the Surface Right Permit (WW) areas will be provided to the WW Purchaser on the Closing Date against payment of the Cash Portion (WW) in terms of clause 16.2.2. From the Closing Date until the date of registration of transfer of the Surface Right Permits (WW) in the Mining Titles Office (both dates inclusive), all risk in and benefit attaching to the Surface Right Permit (WW) areas and all and any structures erected pursuant thereto (inclusive of the Environmental Obligations (WW)), shall vest in the WW Purchaser and the WW Purchaser shall, free of rental cost, have full and unfettered rights, subject to the terms and conditions set out in this clause 11.8, to use and occupy the Surface Right Permit (WW) areas and the structures erected pursuant thereto.
|
11.8.5.
|
In relation to the period from the Closing Date until the date of registration of transfer of each of the Surface Right Permits (WW) in the Mining Titles Office (both dates inclusive), the WW Purchaser shall, without limitation, be liable for–
|
11.8.5.1.
|
all costs of water, electricity, gas, refuse removal, sewage and any other services provided in respect of the buildings and infrastructure erected on the Surface Right Permit (WW) areas (including any deposits payable in connection therewith);
|
11.8.5.2.
|
all costs in relation to the maintenance and upkeep of the buildings and infrastructure erected on the Surface Right Permit (WW) areas; and
|
11.8.5.3.
|
all rates and taxes and other imposts levied by any Governmental Entity in respect of the Surface Right Permits (WW),
|
11.8.6.
|
With effect from the Closing Date the WW Purchaser shall be responsible for taking out any insurance it requires in relation to the buildings and infrastructure erected on the Surface Right Permit (WW) areas.
|
11.8.7.
|
The Parties record that the buildings constructed within the Surface Right Permit (WW) areas were constructed for mining purposes and that there are no approved building plans or electricity compliance certificates in respect thereof.
|
11.9.
|
Consumable Stores (WW)
|
11.10.
|
Critical Spares (WW)
|
11.11.
|
WW Core
|
11.12.
|
Tailings Storage Facilities (WW)
|
11.12.1.
|
With effect from the Closing Date, against payment of the Cash Portion (WW) in terms of clause 16 to the extent that it has not already occurred, ownership and possession in respect of the Tailings Storage Facilities (WW) shall transfer to and be acquired by the WW Purchaser and accordingly, AngloGold shall deliver the Tailings Storage Facilities (WW) to the WW Purchaser by constructive delivery, by providing the WW Purchaser with ongoing access to and use of the Tailings Storage Facilities Sites (WW) (including by providing the WW Purchaser with a key, if any, to gain such access and continued use), and, thereby, ownership and possession of the Tailings Storage Facilities (WW) shall pass from AngloGold to the WW Purchaser.
|
11.12.2.
|
The Parties hereby record and agree that the Tailings Storage Facilities (WW) constitute moveable property in that:
|
11.12.2.1.
|
the Tailings Storage Facilities (WW) are clearly identifiable;
|
11.12.2.2.
|
the Parties intention is to deliver the Tailings Storage Facilities (WW) from AngloGold to the WW Purchaser by means of constructive delivery as contemplated in clause 11.12.1; and
|
11.12.2.3.
|
with effect from the Closing Date, the WW Purchaser will be capable of exercising physical control over the Tailings Storage Facilities (WW) and has the intention to be the owner of the Tailings Storage Facilities (WW).
|
11.13.
|
MOD (WW)
|
11.13.1.
|
With effect from the Closing Date, against payment of the Cash Portion (WW) in terms of clause 16.2.2, ownership and possession in respect of the MOD (WW) shall transfer to and be acquired by the WW Purchaser. AngloGold shall deliver the MOD (WW) to the WW Purchaser by constructive delivery, by providing the WW Purchaser with ongoing access to the MOD (WW) Sites (including by providing the WW Purchaser with a key, if any, to gain such access), and, thereby, ownership and possession of the MOD (WW) shall pass from AngloGold to the WW Purchaser.
|
11.13.2.
|
The Parties hereby record and agree that the MOD (WW) constitute moveable property in that:
|
11.13.2.1.
|
the MOD (WW) are clearly identifiable;
|
11.13.2.2.
|
the Parties intention is to deliver the MOD (WW) from AngloGold to the WW Purchaser by means of constructive delivery as contemplated in clause 11.13.1; and
|
11.13.2.3.
|
with effect from the Closing Date, the WW Purchaser will be capable of exercising physical control over the MOD (WW) and has the intention to be the owner of the MOD (WW).
|
11.14.
|
Gold In Lock Up (WW) and Gold In Process (WW)
|
11.15.
|
Wrong Pockets
|
11.15.1.
|
If, after the Closing Date, any person makes any payment to: (a) AngloGold and if the payment is in respect of any amount due to the relevant Purchaser in terms of this Agreement relating to the WW Package, AngloGold shall, as soon as reasonably possible thereafter, notify the relevant Purchaser thereof and transfer an amount equal to such payment into a bank account to be nominated by the relevant Purchaser in writing; or (b) the relevant Purchaser and if the payment is in respect of any amount due to AngloGold in terms of this Agreement relating to the WW Package, then the relevant Purchaser shall, as soon as reasonably possible thereafter, notify AngloGold thereof and transfer an amount equal to such payment into a bank account to be nominated by AngloGold in writing.
|
11.15.2.
|
Without derogating from the generality of clause 11.15.1, if AngloGold: (a) has paid to any municipality (or other Governmental Entity) any amount prior to the Closing Date which pertains to a period after the Closing Date, then the relevant Purchaser shall reimburse AngloGold an amount limited to the pro rata portion for the period after the Closing Date; or (b) has overpaid any amount to any municipality (or other Governmental Entity) prior to the Closing Date, then the relevant Purchaser shall reimburse AngloGold an amount limited to any such excess payment, in each case on written demand by AngloGold.
|
11.16.
|
Remaining Delivery
|
11.16.1.
|
If any of the Parties at any time after the Closing Date, becomes aware that any Sale Asset (WW) (including any books, documents and records in relation to the WW Mining Business), Sale Liability (WW) or Environmental Obligation (WW) has
|
11.16.2.
|
If AngloGold at any time after the Closing Date becomes aware that any Sale Asset (WW), Sale Liability (WW), or Environmental Obligation (WW) has not been duly transferred to the WW Purchaser for whatsoever reason, AngloGold shall be required to notify the WW Purchaser promptly in writing accordingly within the aforementioned 365 (three hundred and sixty five) calendar day period, or 180 (one hundred and eighty) calendar day period, as the case may be, as referred to clause 11.16.1 above, to enable, amongst other things, the WW Purchaser to exercise its rights under this clause 11.16.
|
11.16.3.
|
Notwithstanding anything to the contrary contained in this Agreement, if the Parties are unable to procure the due and valid transfer of the relevant Sale Asset (WW), Sale Liability (WW) and/or Environmental Obligation (WW) (as applicable) to the WW Purchaser, the Parties undertake to meet and negotiate in good faith to determine a mechanism in terms of which the risk and benefit in respect of the relevant Sale Asset (WW), Sale Liability (WW) and/or Environmental Obligation (WW) vests in the WW Purchaser.
|
11.16.4.
|
Without limiting anything in clause 11.16.3, in the event that: (a) any Sale Asset (WW), Sale Liability (WW) and/or Environmental Obligation (WW) has not been duly transferred to the WW Purchaser for whatsoever reason on and with effect from the Closing Date, notwithstanding the provisions of this Agreement; and (b) AngloGold intends to Dispose of such Sale Asset (WW), Sale Liability (WW) and/
|
11.16.5.
|
Notwithstanding anything to the contrary contained in this Agreement, if no written notice is delivered by the WW Purchaser or AngloGold, as contemplated in clause 11.16.2 above, during the aforementioned 365 (three hundred and sixty five) calendar day period or 180 (one hundred and eighty) calendar day period (as the case may be) as contemplated in clause 11.16.2, the provisions of clause 11.16.2 shall cease to apply and the WW Purchaser shall have no claims against AngloGold as a result of any Sale Asset (WW), Sale Liability (WW) and/or Environmental Obligation (WW) that has not been duly transferred to the WW Purchaser for whatsoever reason.
|
11.16.6.
|
Notwithstanding anything to the contrary contained in this Agreement, to the extent that the transfer and/or use of any Environmental Approvals (WW) in respect of the WW Mining Business has not expressly been dealt with in this Agreement, AngloGold shall have no liability in respect of this Agreement as a result of the Purchaser requiring the transfer and/or use of such Environmental Approvals (WW) and such Environmental Approvals (WW) not being valid and subsisting in full force and effect or having been suspended, cancelled, revoked, varied or surrendered in favour of any third party.
|
12.
|
GOVERNMENTAL PERMITS
|
12.1.
|
As soon as reasonably possible (and no later than 20 (twenty) Business Days) following the Signature Date, the WW Purchaser shall provide AngloGold with a detailed list of all Permits (WW) it requires to operate the WW Mining Business and AngloGold will use all reasonable endeavours to assist the WW Purchaser with preparing such list and provide copies of such Permits (WW) to the WW Purchaser. The WW Purchaser and AngloGold shall work together in good faith and use reasonable endeavours to determine and agree in writing as soon as reasonably possible (and no later than 20 (twenty) Business Days) after the Signature Date whether each such Permit (WW) is legally capable of being transferred (whether by endorsement or otherwise) from AngloGold to the WW Purchaser and, therefore, constitutes as a: (a) "Transferable Permit (WW)" failing which it shall be deemed to constitute a (b) "Non-Transferable Permit (WW)".
|
12.2.
|
Non-Transferable Permits (WW)
|
12.2.1.
|
The WW Purchaser (or any agent appointed by it) shall, as soon as reasonably possible after the Signature Date, prepare with the assistance and cooperation of AngloGold (or any agent appointed by AngloGold), all submissions, applications and documents which are required to be furnished to the relevant Governmental Entities, in order to obtain Substitutionary Permits (WW) with effect from or after the Closing Date for each of the Non-Transferable Permits (WW), in regard to which the WW Purchaser may procure the assistance of any technical consultants where required at the WW Purchaser's expense.
|
12.2.2.
|
The WW Purchaser shall at all times permit AngloGold to review and comment on any written submissions, applications and documents (including the applications for the Substitutionary Permits (WW)) to be made to the relevant Governmental Entities in connection with obtaining the Substitutionary Permits (WW). Any approaches to, liaison with, or documents filed with, the relevant Governmental Entities in connection with the Non-Transferable Permits (WW) and/or the related Substitutionary Permits (WW) shall, to the extent permitted by Law, take place or be submitted or filed, as the case may be, only after consultation between the Parties, in a coordinated fashion and, as far as reasonably practicable, on a joint basis, which shall include the submission of letters of partial and conditional surrenders of the Non-Transferable Permits (WW) by AngloGold, with effect from the Closing Date, to the relevant Government Entities; in order to facilitate the WW Purchaser obtaining the Substitutionary Permits (WW).
|
12.2.3.
|
All filing fees payable in connection with the submission of the applications for the Substitutionary Permits (WW) shall be borne by the WW Purchaser. Save for the aforegoing, each Party shall bear its own costs of and incidental to the preparation and submission of the applications, including the legal fees and costs of its advisors in the preparation of the applications and engagement with the relevant Governmental Entities.
|
12.2.4.
|
AngloGold undertakes to use its reasonable endeavours to provide all such documents and information (to the extent that it is in possession or control of same), sign all documents and to do everything that may be required from time to time to facilitate the compilation, lodgement, registration and implementation of the applications for the Substitutionary Permits (WW) to be obtained by the WW Purchaser in relation to the Non-Transferable Permits (WW), as soon as reasonably required after the Signature Date.
|
12.2.5.
|
AngloGold and the WW Purchaser shall use their reasonable endeavours to:
|
12.2.5.1.
|
procure that all written submissions, applications and documents to be made to the relevant Governmental Entities in connection with any Substitutionary Permits (WW) are submitted to the relevant Governmental Entity as soon as possible after the Signature Date, but no later than 80 (eighty) Business Days after the Signature Date; and
|
12.2.5.2.
|
do everything reasonably required by the relevant Governmental Entities in order to enable the applications in respect of the Substitutionary Permits (WW) to be dealt with as soon as reasonably possible after the Signature Date, to the extent that it is within their power to do so.
|
12.2.6.
|
The WW Purchaser agrees to keep AngloGold informed of the progress in relation to the applications for the Substitutionary Permits (WW) in relation to the WW Mining Business and to provide updates as and when reasonably requested by AngloGold or its representatives.
|
12.2.7.
|
Upon any Substitutionary Permit (WW) being issued to the WW Purchaser in relation to any of the Non-Transferable Permits (WW), the WW Purchaser shall immediately inform AngloGold thereof in writing, at which point AngloGold may deal with the relevant Non-Transferable Permit (WW) as it pleases.
|
12.3.
|
Transferable Permits (WW)
|
12.3.1.
|
The WW Purchaser (or any agent appointed by it) shall, as soon as reasonably possible after the Signature Date, prepare in consultation with AngloGold (or any agent appointed by it) all submissions, applications and documents (including any applications for any new Governmental Approvals) which are required to be furnished to the relevant Governmental Entities in order to transfer each Transferable Permit (WW) (and its associated rights) from AngloGold to the WW Purchaser (including, if applicable, by way of endorsement) with effect from the Closing Date (such rights being hereby agreed to be transferred to the WW Purchaser at no additional cost). In this regard, the Parties shall co-operate with each other and AngloGold shall timeously provide the WW Purchaser with all documents and information (to the extent that it is in possession or control of same), as the WW Purchaser may reasonably require. To the extent that any technical experts are reasonably required for purposes of transferring any of the Transferable Permits (WW) to the WW Purchaser, such technical experts shall be appointed by the WW Purchaser and any fees or costs charged by any such technical expert shall be paid by the WW Purchaser.
|
12.3.2.
|
The WW Purchaser shall at all times permit AngloGold to review and comment on any written submissions, applications and documents (including any applications for the cession, assignment and/or transfer of any rights held by AngloGold under any of the Transferable Permits (WW)) to be made to the relevant Governmental Entities in connection with transferring each Transferable Permit (WW) from AngloGold to the WW Purchaser with effect from the Closing Date. Each of the WW Purchaser and AngloGold agrees, and shall procure, that no submissions, applications and documents (including any applications for the cession, assignment and/or transfer of any rights held by AngloGold under any of the Transferable Permits (WW)) which are required to be furnished to any Governmental Entity in order to transfer each Transferable Permit (WW) from AngloGold to the WW Purchaser with effect from the Closing Date as contemplated in clause 12.3.1 will be submitted to any Governmental Entity without both the WW Purchaser and AngloGold first having approved of such filing, submission, application or document (as applicable), in writing, which approval shall not be unreasonably withheld or delayed.
|
12.3.3.
|
Any approaches to, liaison with, or documents filed with, the relevant Governmental Entities in connection with the Transferable Permits (WW) and the transfer thereof shall, to the extent permitted by Law, take place or be submitted or filed, as the case may be, only after consultation between the Parties, in a coordinated fashion and, as far as reasonably practicable, on a joint basis.
|
12.3.4.
|
AngloGold and the WW Purchaser shall use their reasonable endeavours to procure that all written submissions, applications and documents (including any applications for the cession, assignment, endorsement and/or transfer of any rights held by AngloGold under any of the Transferable Permits (WW)) to be made to the relevant Governmental Entities in connection with transferring each Transferable Permit from AngloGold to the WW Purchaser with effect from the Closing Date as contemplated in clause 12.3.1 are submitted to the relevant Governmental Entity as soon as possible after the Signature Date, but no later than 80 (eighty) Business Days after the Signature Date.
|
12.3.5.
|
All filing fees payable in connection with the submission of the applications for transferring each Transferable Permit (WW) from AngloGold to the WW Purchaser with effect from the Closing Date as contemplated in clause 12.3.1 shall be borne by the WW Purchaser. Save for the aforegoing, each Party shall bear its own costs of and incidental to the preparation and submission of the applications, including the legal fees and costs of its advisors in the preparation of the applications and engagement with the relevant Governmental Entities.
|
12.3.6.
|
Each of AngloGold and the relevant Purchaser shall –
|
12.3.6.1.
|
provide all such documents and information (to the extent that it is in possession or control of same), sign all documents and do everything that may be required from time to time;
|
12.3.6.2.
|
use its reasonable endeavours and shall take all such steps and render all such assistance to each other as may be reasonably necessary from a process point of view; and
|
12.3.6.3.
|
do everything reasonably required by any relevant Governmental Entity from a process point of view,
|
12.4.
|
It is recorded and agreed that in the event that: (a) any application for, or granting of, any Substitutionary Permit (WW) has not been granted or obtained (as applicable) prior to the Closing Date; and/or (b) any transfer of any Transferable Permit (WW) to the WW Purchaser and/or transfer or endorsement of the Refining Licence (WW) (as applicable), has not been duly implemented and (if applicable), registered prior to the Closing Date; and/or (c) AngloGold
|
12.4.1.
|
in the event that the WW Purchaser has not obtained, prior to the Closing Date, a new water use licence/s to the extent required to operate the WW Mining Business, the 2nd (second) anniversary of the Closing Date; or
|
12.4.2.
|
in relation to the Refining Licence (WW), the 1st (first) anniversary of the Closing Date; or
|
12.4.3.
|
in every other case, the 1st (first) anniversary of the Closing Date,
|
12.5.
|
To the extent (and for the period) that the WW Purchaser after the Closing Date operates the WW Mining Business under any Permit (WW) held by AngloGold (as contemplated in clause
|
12.6.
|
The WW Purchaser hereby indemnifies and holds AngloGold harmless against all and any losses incurred or suffered by AngloGold by reason of, or arising directly or indirectly out of, or in connection with any breach of the WW Purchaser’s undertaking in clause 12.5. Subject to the Warranties, it is recorded and agreed that the WW Purchaser shall have no claim against AngloGold on the basis that the Permits (WW) issued to AngloGold in relation to the WW Mining Business do not adequately cover the operations conducted by the WW Mining Business or the operations to be conducted by the WW Purchaser.
|
13.
|
EMPLOYEES (WW)
|
13.1.
|
It is hereby recorded and agreed that the Transferring Employees (WW) are dedicated to, primarily employed by or significantly connected to the WW Businesses. Accordingly, the Parties acknowledge that because the sale of the WW Mining Business (and the indirect sale of the WW Equity Businesses, through the sale of the Sales Equity (WW)) by AngloGold to the WW Purchaser constitutes the transfer of the whole or part of a business, trade or undertaking as a going concern, as defined in section 197(1) of the LRA, the provisions of section 197 of the LRA apply to the Transferring Employees (WW).
|
13.2.
|
Remaining Employees (WW)
|
13.2.1.
|
Notwithstanding clause 13.1, AngloGold shall, prior to the Closing Date, utilise its reasonable endeavours to conclude agreements, in terms of section 197(2) read with section 197(6) of the LRA (the "Section 197(6) Agreements"), with the Remaining Employees (WW) and in terms of which (inter alia) –
|
13.2.1.1.
|
the WW Purchaser will not be substituted in the place of AngloGold in respect of the Remaining Employees' (WW) contracts of employment and the Remaining Employees' (WW) employment will
|
13.2.1.2.
|
the Remaining Employees (WW) will remain employed by AngloGold after the Closing Date.
|
13.2.2.
|
If AngloGold is unable to conclude a Section 197(6) Agreement with any of the Remaining Employees (WW) prior to the Closing Date, then the WW Purchaser shall automatically be substituted as the employer of those Remaining Employees (WW) on the Closing Date and the provisions of clause 13.3 below shall then apply thereto.
|
13.3.
|
Transferring Employees (WW)
|
13.3.1.
|
It is recorded and agreed that those Remaining Employees (WW) that concluded Section 197(6) Agreements will remain employees of AngloGold after the Closing Date (as contemplated in clause 13.2). Those Remaining Employees (WW) who do not conclude Section 197(6) Agreements prior to the Closing Date will then transfer with the Transferring Employees (WW) on the basis contemplated in this clause 13.3 and shall, for the purposes of this Agreement, be dealt with as "Transferring Employees (WW)").
|
13.3.2.
|
The WW Purchaser and AngloGold therefore acknowledge and agree that with effect from the Closing Date –
|
13.3.2.1.
|
the WW Purchaser shall be automatically substituted in the place of AngloGold in respect of the Transferring Employees (WW) contracts of employment in existence immediately prior to the Closing Date;
|
13.3.2.2.
|
all the rights and obligations between AngloGold and the Transferring Employees (WW) as at the Closing Date shall continue in force as if they had been rights and obligations between the WW Purchaser and the Transferring Employees (WW);
|
13.3.2.3.
|
anything done before the transfer by AngloGold in relation to a Transferring Employee (WW), including the dismissal of any Transferring Employee (WW) or the commission of any unfair labour practice or act of unfair discrimination in respect of a Transferring Employee (WW), will be considered to have been done by or in relation to the WW Purchaser.
|
13.3.2.4.
|
the transfer does not interrupt the Transferring Employees (WW) continuity of employment and the Transferring Employees (WW)
|
13.3.2.5.
|
the WW Purchaser shall employ the Transferring Employees (WW) on terms and conditions of employment that are on the whole not less favourable to the Transferring Employees (WW) than those on which they were employed by AngloGold. If any Transferring Employee’s (WW) terms and conditions of employment are governed by a collective agreement, then the WW Purchaser shall comply with the terms of that collective agreement; and
|
13.3.2.6.
|
no agreement as contemplated in section 197(6) of the LRA has been concluded in respect of the Transferring Employees (WW).
|
13.3.3.
|
The WW Purchaser shall honour the terms of and be bound by all collective agreements to which AngloGold is, immediately before the Closing Date and in respect of the Transferring Employees (WW), bound in terms of section 23 of the LRA and/or in terms of section 32 of the LRA, unless a commissioner acting in terms of section 62 of the LRA decides otherwise.
|
13.3.4.
|
On or before the Closing Date, AngloGold shall prepare a schedule reflecting the number of years of service of the Transferring Employees (WW) as at the Closing Date, annual leave pay accrued to the Transferring Employees (WW) at the Closing Date, the estimated value of the Post-Retirement Medical Aid Promise (WW) of the Transferring Employees (WW) at the Closing Date, the hypothetical severance pay amounts that would have been payable to the Transferring Employees (WW) had they been retrenched by AngloGold on the Closing Date and any other amounts accrued to the Transferring Employees (WW) as at the Closing Date which have not been paid to the Transferring Employees (WW) by AngloGold on the Closing Date.
|
13.3.5.
|
The Parties agree that, pursuant to section 197(7)(b)(i) of the LRA, the WW Purchaser shall be solely liable to the Transferring Employees (WW) for the payment of all and any amounts referred to in clause 13.3.4 (other than any Excluded Liabilities) with effect from the Closing Date and shall pay those amounts as and when they fall due for payment to the Transferring Employees (WW). For the sake of clarity, AngloGold has no obligation to pay any amount contemplated in clause 13.3.4 to the Transferring Employees (WW) or the WW Purchaser in respect of any of the Transferring Employees (WW) other than in respect of any Excluded Liabilities.
|
13.3.6.
|
AngloGold undertakes to discharge its obligations to the Transferring Employees (WW) up to the Closing Date. Without limiting the generality of the aforegoing, AngloGold shall, after the Closing Date, remain responsible for ensuring that all share or security related options and plans, share appreciation rights, performance share rights, retention bonus arrangements, or similar arrangements or benefits to which any employee of AngloGold is a party or which is otherwise held by or owing to any such employees at any time on or prior to the Closing Date are dealt with in accordance with the rules and terms applicable to such options, plans, rights and arrangements (as applicable), and the WW Purchaser shall have no obligations or liability for or in connection with the aforegoing.
|
13.3.7.
|
The Parties record that the Transferring Employees (WW) are in service and contributing members of either the MineWorkers Provident Fund, the Sentinel Retirement Fund or the Old Mutual Superfund Pension Fund.
|
13.3.8.
|
Subject to the rules of the Sentinel Retirement Fund and the MineWorkers Provident Fund, those Transferring Employees (WW) who are members of these funds shall remain members thereof on and after the Closing Date and the WW Purchaser shall pay the required contributions to these funds on behalf of those Transferring Employees (WW).
|
13.3.9.
|
Subject to the rules of the Old Mutual Superfund Pension Fund, AngloGold shall use its reasonable endeavours to procure that the Transferring Employees (WW) who are members of the Old Mutual Superfund Pension Fund as at the Closing Date become members of a retirement fund registered in terms of the PFA nominated by the WW Purchaser with effect from the Closing Date, and as soon as practically possible after the Closing Date. AngloGold undertakes to use its reasonable endeavours to procure that the Old Mutual Superfund Pension Fund permits the Transferring Employees (WW) to remain members of it pending the commencement of their membership in the fund nominated by the WW Purchaser.
|
13.3.10.
|
AngloGold undertakes to cooperate with the WW Purchaser and to do all such things and to sign and provide all such documents as may reasonably be required by the WW Purchaser to: (a) ensure the continuous membership of the Transferring Employees (WW) who are members of the Sentinel Retirement Fund and the Mineworkers Provident Fund; and (b) to use its reasonable endeavours to procure, if applicable, the transfer after the Closing Date of all the Transferring Employees (WW) who are members of the Old Mutual Superfund Pension Fund to the retirement fund nominated by the WW Purchaser and to ensure their continuous membership of the Old Mutual Superfund Pension Fund until such time as the Transferring Employees (WW) are transferred to the retirement fund nominated by the WW Purchaser, as the case may be.
|
13.3.11.
|
The Parties record that certain of the Transferring Employees (WW) are members of the Discovery Health Medical Scheme. Subject to the rules of the Discovery Health Medical Scheme, such Transferring Employees (WW) will remain members thereof on and after the Closing Date and the WW Purchaser shall pay the required contributions to the Discovery Health Medical Scheme on behalf of the Transferring Employees (WW), if any.
|
13.3.12.
|
AngloGold and the WW Purchaser shall, during the Interim Period, inform and consult with the Transferring Employees (WW) and/or their representative bodies (if any), as may be required in terms of the LRA.
|
13.3.13.
|
The WW Purchaser indemnifies AngloGold and holds AngloGold harmless against any and all Claims, losses, damages, proceedings, liabilities and expenses (including, but not limited to reasonable legal costs), charges, compensation, awards, fines, actions and demands which AngloGold may suffer or incur arising out of or in connection with:
|
13.3.13.1.
|
any claim by any Transferring Employee (WW) (whether in contract or in delict or under statute for any remedy including, without limitation, for breach of contract, unfair dismissal, equal pay, unfair discrimination, deduction of wages, or of any other nature) as a result of the liability contemplated in clause 13.3.4;
|
13.3.13.2.
|
anything done or omitted to be done by the WW Purchaser in relation to the Transferring Employees (WW) employment on and as from the Closing Date; or
|
13.3.13.3.
|
a breach of any employment legislation after the Closing Date.
|
14.
|
ELECTRICITY SUPPLY
|
14.1.
|
The WW Purchaser shall, as soon as reasonably possible after the Signature Date, use its reasonable endeavours to negotiate and enter into an electricity supply agreement with Eskom for the supply of electricity. AngloGold shall use reasonable endeavours in supporting the WW Purchaser to conclude such electricity supply agreement with Eskom.
|
14.2.
|
It is recorded and agreed that, in the event that the WW Purchaser has not entered into an electricity supply agreement with Eskom by the Closing Date, then, subject to the prior written consent of Eskom being obtained, for a period of 3 (three) months from the Closing Date or until such time as the WW Purchaser has entered into an electricity supply agreement with Eskom, whichever is the earlier, AngloGold shall supply the WW Purchaser, at cost, with such quantity of electricity as the WW Purchaser may reasonably require, provided that AngloGold shall not be required to provide the WW Purchaser with any quantity in excess of that which it
|
14.3.
|
AngloGold shall supply the WW Purchaser with electricity on the same terms and conditions contained in the Eskom Agreements (the provisions of which apply to the supply of electricity by AngloGold to the WW Purchaser mutatis mutandis) as well as on any additional terms and conditions imposed by Eskom. The WW Purchaser hereby warrants, represents and undertakes that it is aware of the provisions of the Eskom Agreements and that it will, at all times in all respects: (a) adhere to and comply with the provisions of such Eskom Agreements; and (b) if AngloGold has breached a provision of the Eskom Agreements as a result of any action or omission of the WW Purchaser, that it will rectify and cure such breach within: (i) a reasonable time period stipulated by AngloGold, or such later date as the Parties may agree in writing, in the case of a material breach; or (ii) 20 (twenty) Business Days of its occurrence, or such later date as the Parties may agree in writing, in the case of a non-material breach, failing which AngloGold will be entitled to immediately withdraw the right granted to the WW Purchaser in terms of clause 14.2 above without further action or liability to AngloGold and the WW Purchaser hereby waives any and all other remedies, rights, claims and causes of action (including a claim for damages) which it may have against AngloGold in this regard.
|
14.4.
|
Upon receipt by AngloGold of an invoice from Eskom pursuant to the Eskom Agreements in relation to the WW Businesses, AngloGold shall provide a valid tax invoice to the WW Purchaser for all costs incurred by AngloGold in relation to the supply of electricity to the WW Purchaser in relation to the WW Businesses, including without limitation, the WW Purchaser's pro rata portion of the cost of electricity plus VAT at the applicable rate. The WW Purchaser undertakes to settle such invoice within 7 (seven) Business Days upon receipt from AngloGold of such invoice. For the avoidance of doubt, it is recorded and agreed that AngloGold supplies the WW Purchaser with electricity under the Eskom Agreements at cost and AngloGold and/or its Affiliate charge no additional margin for this service.
|
14.5.
|
The WW Purchaser hereby indemnifies and holds AngloGold harmless against all and any losses incurred or suffered by AngloGold by reason of, or arising directly or indirectly out of, or in connection with the supply by AngloGold of electricity to the WW Purchaser from the electricity AngloGold receives in terms of the Eskom Agreement in relation to the WW Businesses.
|
15.
|
WATER SUPPLY
|
15.1.
|
The WW Purchaser shall, as soon as reasonably possible after the Signature Date, use its reasonable endeavours to negotiate and enter into a water supply agreement for the supply of water to the WW Businesses and for such water supply agreement to take effect on or as soon as reasonably possible after the Closing Date.
|
15.2.
|
It is recorded and agreed that, in the event that the WW Purchaser has not entered into a water supply agreement by the Closing Date, then, subject to the prior written consent of the Water Supplier (WW) being obtained, for a period of 3 (three) months from the Closing Date or until such time as the WW Purchaser has entered into a water supply agreement with the Water Supplier (WW) or any other water supplier, whichever is the earlier, AngloGold shall supply the WW Purchaser, at cost, with such quantity of water as the WW Purchaser may reasonably require, provided that AngloGold shall not be required to provide the WW Purchaser with any quantity in excess of that which it receives in respect of the WW Businesses in the ordinary and regulator prior to the Closing Date, from the water AngloGold receives in terms of its existing water supply agreements. AngloGold hereby undertakes to use all reasonable endeavours to obtain the consent of the Water Supplier (WW) in this regard as soon as reasonably possible after the Signature Date, provided that any terms and conditions imposed by the Water Supplier (WW) shall be for the WW Purchaser's account and cost, including the costs of water. For the avoidance of doubt, to the extent that the Water Supplier's (WW) consent is subject to the provision of an additional guarantee or the like, the WW Purchaser shall be required to provide same.
|
15.3.
|
AngloGold shall supply the WW Purchaser with water on the same terms and conditions contained in its water supply agreement with the Water Supplier (WW) (the provisions of which apply to the supply of water by AngloGold to the WW Purchaser mutatis mutandis) as well as on any additional terms and conditions imposed by the Water Supplier (WW). The WW Purchaser hereby warrants, represents and undertakes that it is aware of the provisions of the relevant existing water supply agreements between AngloGold and the Water Supplier (WW) and that it will, at all times in all respects: (a) adhere to and comply with the provisions of such agreements; and (b) if AngloGold has breached a provision of such agreements as a result of any action or omission of the WW Purchaser, that it will rectify and cure such breach within: (i) a reasonable time period stipulated by AngloGold, or such later date as the Parties may agree in writing, in the case of a material breach; or (ii) 20 (twenty) Business Days of its occurrence, or such later date as the Parties may agree in writing, in the case of a non-material breach, failing which AngloGold will be entitled to immediately withdraw the right granted to the WW Purchaser in terms of clause 15.2 above without further action or liability to AngloGold and the WW Purchaser hereby waives any and all other remedies, rights, claims and causes of action (including a claim for damages) which it may have against AngloGold in this regard.
|
15.4.
|
Upon receipt by AngloGold of an invoice from the Water Supplier (WW), AngloGold shall provide a valid tax invoice to the WW Purchaser for all costs incurred by AngloGold in relation to the
|
15.5.
|
The WW Purchaser hereby indemnifies and holds AngloGold, harmless against all and any losses incurred or suffered by AngloGold by reason of, or arising directly or indirectly out of, or in connection with the supply by AngloGold of water to the WW Purchaser from the water AngloGold receives in terms of its existing water supply agreements with the Water Supplier (WW) in relation to the WW Businesses.
|
16.
|
CONSIDERATION AND PAYMENT
|
16.1.
|
Purchase Price (WW)
|
16.1.1.
|
The aggregate purchase price (the "Purchase Price (WW)") payable by Harmony and the WW Purchaser for the WW Package is: (a) an amount equal to the ZAR equivalent of US$180 000 000 (one hundred and eighty million Dollars) (calculated in terms of the Spot Rate as at the date falling 2 (two) Business Days immediately prior to the Closing Date) (the "Cash Portion (WW)"); plus (b) an amount equal to the face value of the Sale Liabilities (WW) (or as such Sale Liabilities (WW) are otherwise accounted for in accordance with IFRS) (the "Sale Liability Portion (WW)"); plus (c) an amount equal to the deferred consideration (if any), which deferred consideration will be calculated, and discharged by the WW Purchaser, in accordance with the provisions of the WW Business Deferred Consideration Agreements (the "WW Business Deferred Consideration").
|
16.1.2.
|
The aggregate of the Cash Portion (WW) and the Sale Liability Portion (WW), will be apportioned as follows:
|
16.1.2.1.
|
to the Covalent Sale Claims, the face value thereof as at the Closing Date;
|
16.1.2.2.
|
to the Covalent Sale Shares, an amount equal to the ZAR equivalent of US$1 (one Dollar) (calculated in terms of the Spot Rate as at the date falling 2 (two) Business Days immediately prior to the Closing Date);
|
16.1.2.3.
|
to the AngloGold Security Services Sale Shares, an amount equal to the ZAR equivalent of US$1 (one Dollar) (calculated in terms of the Spot Rate as at the date falling 2 (two) Business Days immediately prior to the Closing Date);
|
16.1.2.4.
|
to the Masakhisane Sale Shares, an amount equal to the ZAR equivalent of US$1 (one Dollar) (calculated in terms of the Spot Rate as at the date falling 2 (two) Business Days immediately prior to the Closing Date); and
|
16.1.2.5.
|
to the Sale Assets (WW), the aggregate of the Cash Portion (WW) and the Sale Liability Portion (WW) of the Purchase Price (WW) less the aggregate of the amounts contemplated in clauses 16.1.2.1 to 16.1.2.4 (inclusive) (the "Remaining Purchase Price"),
|
16.1.3.
|
The WW Business Deferred Consideration will only be apportioned to the relevant Sale Assets (WW) and in the same proportions as the Net Purchase Price (WW) has been apportioned to those relevant Sale Assets (WW) in Annexure AA.
|
16.1.4.
|
No amount will be allocated to the unknown and non-quantifiable Sale Liabilities (WW) or for other rights acquired, or obligations assumed, by the WW Purchaser under this Agreement.
|
16.2.
|
Discharge of the Purchase Price (WW)
|
16.2.1.
|
in respect of the Sale Liability Portion (WW), the WW Purchaser shall assume the Sale Liabilities (WW) in accordance with the provisions of clause 11.1.5. It is specifically recorded that in consideration for assuming the Sale Liabilities (WW) by the WW Purchaser, AngloGold transfers an equal amount of Sale Assets (WW) to the WW Purchaser;
|
16.2.2.
|
in respect of the Cash Portion (WW), Harmony and the WW Purchaser shall pay an amount equal to the Cash Portion (WW) in ZAR on the Closing Date, by electronic funds transfer of same day immediately available funds, free of any deductions or set-off whatsoever, into a ZAR denominated bank account in South Africa nominated in writing by AngloGold no later than 5 (five) Business Days prior to the Closing Date; and
|
16.2.3.
|
in respect of the balance of the Purchase Price (WW), being the WW Business Deferred Business Consideration, same shall be paid in accordance with the WW Business Deferred Consideration Agreements.
|
16.3.
|
DMRE Effective Valuation
|
16.3.1.
|
The WW Purchaser and AngloGold acknowledge that, given the nature of the WW Mining Business, the Director General: Mineral Resources and Energy (the "Director General") will be required, pursuant to the provisions of section 37 of the Income Tax Act, to determine the values as at the Closing Date (such valuation, the "DG Valuation (WW)") for the mining property and capital assets (as defined in section 37 of the Income Tax Act) forming part of the WW Mining Business (the "s37 Valuation Property (WW)") and that this process will take place after the Closing Date.
|
16.3.2.
|
The Parties agree and acknowledge that the valuation of the s37 Valuation Property (WW) and related allocation, in each case as reflected in Annexure AA, is as at the Closing Date. The Parties agree and acknowledge that the aforesaid values and allocations, as they relate to the s37 Valuation Property (WW), are for purposes of assisting the Parties to calculate any amount of Tax in the event that the DG Valuation (WW) is not finalised by the time that the Parties need to pay any amount of Tax following the Closing Date. The Parties acknowledge that these values will be updated to accord with the decision of the Independent Valuer.
|
16.3.3.
|
In order to assist with obtaining the DG Valuation (WW), the WW Purchaser and AngloGold hereby agree to appoint, as soon as possible after the Signature Date, George Lennox, or, if George Lennox is not willing or is unable to accept the mandate, another suitably qualified independent valuer (agreed between the WW Purchaser and AngloGold or failing such agreement, within 10 (ten) Business Days after the WW Purchaser or AngloGold requests such agreement on written notice to the other of them, selected and appointed by the auditor of AngloGold on written request by the WW Purchaser and AngloGold, as an independent valuer in respect of the valuation of mining property and associated capital assets (the "Independent Valuer") to undertake a valuation of the s37 Valuation Property(WW) (the "s37 Supporting Valuation (WW)") as at the Closing Date for
|
16.3.4.
|
Once the s37 Supporting Valuation (WW) and allocation is complete, and following the Closing Date, the WW Purchaser and AngloGold shall apply to the Director General for the DG Valuation (WW) and will provide the s37 Supporting Valuation (WW) to the Director General. The WW Purchaser and AngloGold undertake to use their reasonable endeavours to assist the Director General in this regard and shall make appropriate submissions to the effect that the effective value of the s37 Valuation Property is as determined by the Independent Valuer in terms of clause 16.3.3.
|
16.3.5.
|
The DG Valuation (WW) will be final and binding on the WW Purchaser and AngloGold for the purposes of section 37 of the Income Tax Act. If the DG Valuation (WW) results in allocations which differ from those allocated in Annexure AA, the relevant amounts and percentages allocated in Annexure AA will be adjusted automatically to accord with those in the DG Valuation (WW), and Annexure AA updated accordingly.
|
16.3.6.
|
To the extent that applicable Law requires that: notice of the s37 Supporting Valuation (WW) and the DG Valuation (WW) must be provided to SARS; approval must be obtained from SARS or SARS must be consulted in relation to anything set out in this clause 16.3, then AngloGold and the WW Purchaser shall comply with such requirement.
|
16.4.
|
Securities Transfer Tax
|
17.
|
VALUE ADDED TAX
|
17.1.
|
AngloGold and the WW Purchaser agree that the WW Mining Business is disposed of as a going concern and, for the purposes of section 11(1)(e) of the VAT Act, agree that:
|
17.1.1.
|
the WW Mining Business constitutes, as at the Signature Date, and will constitute as at the Closing Date, an income-earning activity and will be transferred as such;
|
17.1.2.
|
the transfer of the WW Mining Business constitutes the sale of an enterprise which is capable of separate operation;
|
17.1.3.
|
the assets which are necessary for carrying on such WW Mining Business have been disposed of by AngloGold to the WW Purchaser in terms of this Agreement; and
|
17.1.4.
|
the Purchase Price (WW) payable in respect of the WW Mining Business (including the WW Business Deferred Consideration), as contemplated in clause 16.1.2.5, is inclusive of VAT at the rate of 0% (zero per cent).
|
17.2.
|
AngloGold and the WW Purchaser each warrant that they will, at the Closing Date, be registered vendors under the VAT Act.
|
17.3.
|
If, notwithstanding the aforegoing or for any other reason, VAT is payable in respect of the WW Business or any of the assets sold in terms hereof at a rate exceeding 0%, then the Purchase Price (WW) (including the WW Business Deferred Consideration) in respect of the WW Mining Business (or any of the assets sold in terms hereof) shall be deemed to be exclusive of VAT and the WW Purchaser shall, within 10 (ten) Business Days after receiving a written demand from AngloGold for payment, pay such VAT to AngloGold.
|
17.4.
|
AngloGold and the WW Purchaser undertake to furnish all such information as the Commissioner for SARS may require in terms of section 9(15) of the Transfer Duty Act No. 40 of 1949 in order to ensure that the disposal of the Sale Assets (WW) in respect of the WW Mining Business is exempt from transfer duty.
|
18.
|
MINERAL ROYALTY
|
18.1.
|
AngloGold and the WW Purchaser agree that the WW Mining Business is disposed of as a going concern for the purposes of section 9(1) of the Mineral and Petroleum Resources Royalty Act.
|
18.2.
|
AngloGold and the WW Purchaser agree that they are each "extractors" and are registered for royalties’ tax in accordance with the Mineral and Petroleum Resources Royalty Act.
|
19.
|
INTERIM PERIOD
|
19.1.
|
AngloGold shall procure during the Interim Period: (a) that it shall, and shall procure that the WW Companies shall, carry on the WW Businesses in the ordinary and regular course of business in a manner consistent with past practice; and (b) that it shall not, in relation to the WW Companies and/or the WW Businesses, enter into any contract or commitment, whether or not conditional, or do anything (including as set out in this clause 19.1) which, in any such case, is out of the ordinary course of business. In particular, but without limitation to the generality of the aforegoing, and subject to clause 19.2, AngloGold undertakes that during the Interim
|
19.1.1.
|
continue to maintain the WW Businesses as a going concern, without materially altering the nature or scope of any such businesses;
|
19.1.2.
|
preserve ownership of those Sale Assets (WW) which it owns as at the Signature Date (other than Sale Assets (WW) Disposed of in the ordinary and regular course) and continue to maintain development and capital expenditure levels in the ordinary and regular course so as to maintain a level of development mineable ore reserves consistent with past practice, at all times in compliance with all material applicable Laws;
|
19.1.3.
|
procure that existing insurance policies in relation to the WW Businesses shall be maintained (without material adverse or prejudicial modification) in force at all times, and not do or allow to be done anything which would render such insurance void or voidable;
|
19.1.4.
|
preserve ownership of the Sale Assets (WW) that it owns as at the Signature Date and use reasonable endeavours to: (a) maintain the Sale Assets (WW) in accordance with reasonable standards, in working condition for their purpose (fair wear and tear excepted) as required in the ordinary and regular course of business; and (b) remedy any structural or other material deficiencies or failings in any of the Tailings Storage Facilities (WW) to the extent that such Tailings Storage Facilities (WW) are in breach of any applicable Law and the COP;
|
19.1.5.
|
continue to manage the WW Businesses in accordance with its business and trading policies and practices up to the Signature Date, except as may be necessary to comply with any changes in Law;
|
19.1.6.
|
pay all creditors and Taxes of the WW Businesses in the ordinary course of business;
|
19.1.7.
|
maintain and/or use its reasonable efforts to apply for, obtain, amend or renew (as applicable) any and all material Governmental Approvals which the WW Businesses are obliged to have in place from time to time (including without limitation, the WW Mining Rights, WW Mining Rights 11 MR, Permits (WW), Surface Right Permits (WW) and all Environmental Approvals (WW)) and act promptly to rectify any non-compliance with any applicable Laws;
|
19.1.8.
|
not create, or agree or permit to be created, any Encumbrance over the whole or any part of the WW Businesses or any of the Sale Assets (WW);
|
19.1.9.
|
not alter any of the constitutional documents of any of the WW Companies in a manner prejudicial to the Purchaser’s Group;
|
19.1.10.
|
incur or assume, or agree to incur or assume, any new or increased material Sale Liabilities (WW), other than in the ordinary and regular course of business;
|
19.1.11.
|
not alter any of the rights attaching to the Sale Equity (WW);
|
19.1.12.
|
not alter the number of any of the authorised or issued shares of any of the WW Companies, or create any obligation (contingent or otherwise) to do so;
|
19.1.13.
|
not, in respect of the WW Companies, acquire or enter into any agreement to acquire (whether by one transaction or a series of transactions) the whole or a substantial or material part of the business, undertaking or assets of any other persons if and to the extent that such business, undertaking or asset would be material to the WW Companies;
|
19.1.14.
|
not Dispose of (or remove from the WW Mining Areas or any Immoveable Properties (WW), as applicable) or enter into any agreement to Dispose of (or remove from the WW Mining Areas or any Immoveable Properties (WW), as applicable) (whether by one transaction or by a series of transactions) any Sale Assets (WW) (other than, in relation to such Disposals, in the ordinary and regular course) or the whole or any substantial or material part of any of the WW Businesses;
|
19.1.15.
|
not incur or agree to incur any capital or operational expenditure other than in the normal and ordinary course of business of the WW Businesses in a manner consistent with past practice;
|
19.1.16.
|
not waive any material rights under any of the Contracts (WW);
|
19.1.17.
|
not enter into or commit to entering into any material transaction, agreement or arrangement in connection with the WW Businesses other than on arms' length terms and for full and proper consideration;
|
19.1.18.
|
(i) procure that each of the Transferring Employees (WW) transfers to the WW Purchaser as at the Closing Date (other than in circumstances where such Transferring Employee (WW) resigns, or are dismissed with cause, during the Interim Period); and (ii) not terminate the employment of any Transferring Employees (WW) without cause, or otherwise change the terms of employment, remuneration or benefits of any of the Transferring Employees (WW);
|
19.1.19.
|
not enter into or agree to enter into any new death, retirement, profit-sharing, bonus, share option, share incentive or other scheme for the benefit of any of the
|
19.1.20.
|
not clean any of the mills or replace any of the liners used in or relating to any Sale Assets (WW) or any of the WW Businesses, other than in accordance with existing schedules in the ordinary and regular course of business;
|
19.1.21.
|
commence, compromise, discontinue, settle or agree to settle any Claim (other than routine debt collection) in connection with any Sale Assets (WW) or any of the Businesses;
|
19.1.22.
|
incur any new, additional or increased debt, borrowing, lending or other financing facilities or commitments (or similar arrangements) in whatsoever form, relating to any of the WW Companies, other than in accordance with the ordinary and regular course of business;
|
19.1.23.
|
not make any changes to the accounting policies and procedures of the WW Companies, unless required to do so under any applicable Laws or applicable accounting rules; and
|
19.1.24.
|
not declare, authorise, make or pay any dividend or other distribution (as such term is defined in the Companies Act) by any of the WW Companies, or reduce, purchase or redeem any share capital of any of the WW Companies.
|
19.2.
|
Clause 19.1 shall not apply in respect of and shall not operate so as to restrict or prevent:
|
19.2.1.
|
any act which relates to "Project Omega" as referred to in page 20 and 21 of the management presentation provided to Harmony by AngloGold on or about 10 July 2019 and 25 October 2019;
|
19.2.2.
|
any act or omission or other matter as may be required to give effect to any provision of this Agreement or otherwise provided for in this Agreement;
|
19.2.3.
|
any action taken to comply with any order or obligation of any Governmental Entity;
|
19.2.4.
|
any act or matter listed in and/or ancillary to the matters listed in the business plan included in the Data Room under folders 1.2.1.1 and 1.2.1.2;
|
19.2.5.
|
any action taken to comply with AngloGold’s health, environmental or safety related legal obligations; or
|
19.2.6.
|
any other matter that is outside of the ordinary and regular course of business in respect of which the relevant Purchaser has given its prior written consent (such consent not to be unreasonably withheld or delayed), provided that prior to seeking
|
19.3.
|
Nothing in this clause 19 will compel or be construed as compelling AngloGold to do anything, or refrain from doing anything, which AngloGold may be advised by its legal advisors constitutes any act or omission in contravention of any anti-trust or competition legislation and, to the extent that AngloGold’s legal advisors do so advise, such provision in this clause 19 will be deemed to be pro non scripto.
|
19.4.
|
During the Interim Period, and without limiting the generality of clause 19.1, AngloGold shall:
|
19.4.1.
|
provide Harmony promptly with monthly management accounts in respect of each of the WW Businesses, provided that, to the extent that any of these documents and information referred to in this clause 19.4 contains any competitively sensitive and/or legally privileged information, such information will be redacted prior to such documents and information being provided to Harmony and its authorised representatives; and
|
19.4.2.
|
prepare (or cause to be prepared) and deliver to the WW Purchaser as soon as possible following the Signature Date and no later than the Closing Date: (a) the unaudited financial statements of AngloGold Security Services as at and in respect of the financial year ended 31 Decemebr 2019; (b) the unaudited financial statements of Masakhisane as at and in respect of the financial year ended 31 December 2019; and (c) the unaudited financial statements of Covalent as at and in respect of the financial year ended 31 Decemebr 2019.
|
19.5.
|
Contracts (WW)
|
19.5.1.
|
Within a period of, and not later than, 5 (five) Business Days after the Signature Date, AngloGold (to the extent not already provided) shall provide to the WW Purchaser, in addition to the contracts listed in Annexure I, a detailed list and copies of all contracts concluded by AngloGold on or before the Signature Date which, in AngloGold's opinion (acting reasonably), are material to the WW Businesses (and any other contracts relating to the WW Businesses which AngloGold would prefer the WW Purchaser to take assignment of) (the "Proposed Contracts (WW)"), including without limitation all utility contracts and all material lease agreements which relate to any immovable property owned or used in connection with the WW Businesses (in each case, to the extent permitted under the Competition Act). The WW Purchaser agrees that it shall be obliged to take
|
19.5.1.1.
|
determine and agree in writing, in respect of each Proposed Contract (WW) to be provided to the WW Purchaser in terms of clause 19.5.1, within a period of 40 (forty) Business Days following the later of: (a) the Signature Date; and (b) the date on which a copy of such contract is provided to the WW Purchaser in terms of clause 19.5.1, whether such Proposed Contract (WW) (and the rights and obligations contained therein) will: (i) be retained by AngloGold; or (ii) be ceded, assigned and transferred to the WW Purchaser with effect from the Closing Date; provided that (save for the Contracts (WW) listed in Annexure I) none of the Purchasers shall be required to accept any cession, assignment, delegation or transfer of any contract (or any rights or obligations relating thereto) unless it has expressly agreed in writing to such cession, assignment, delegation or transfer (as applicable); and
|
19.5.1.2.
|
implement the actions determined by: (a) the WW Purchaser and AngloGold in accordance with clause 19.5.1.1; and (b) the WW Purchaser in accordance with clause 19.5.2 (including in such circumstances to procure the assignment, cession and delegation of such contracts to the WW Purchaser with effect from the Closing Date, in which case the provisions of clause 11.1.1.1 shall apply), in each case as soon as reasonably possible after the Signature Date.
|
19.5.2.
|
Notwithstanding the aforegoing, in relation to any contracts which are material to the WW Businesses, the WW Purchaser shall be entitled in its discretion, by notice in writing to AngloGold within 40 (forty) Business Days following the later of: (a) the Signature Date; and (b) the date on which the last of the copies of contracts to be provided to the WW Purchaser in terms of clause 19.5.1 has been received by the WW Purchaser, to determine whether such material contracts will be ceded, assigned and delegated to the WW Purchaser with effect from the Closing Date.
|
19.5.3.
|
AngloGold shall notify the WW Purchaser, and provide the WW Purchaser with a copy, of any new contract entered into by AngloGold during the Interim Period which relates to the WW Businesses (each an "Interim Period Contract (WW)") (such copy to be provided within 10 (ten) Business Days after such Interim Period Contract (WW) has been entered into by AngloGold), and the Parties agree that
|
19.5.4.
|
Notwithstanding any provision in this clause 19.5, should any contract to which this clause 19.5 relates contain a confidentiality undertaking such that AngloGold is only entitled to disclose such contract to the WW Purchaser following obtaining approval from any third party (a "Confidential Contract (WW)"), AngloGold will use reasonable endeavours to obtain all such approvals as soon as reasonably possible after the Signature Date.
|
19.6.
|
Observer
|
19.6.1.
|
be entitled to conduct telephone discussions and/or hold meetings with the management of AngloGold in respect of the WW Businesses on a monthly basis; and
|
19.6.2.
|
be entitled, upon reasonable written request, to have reasonable access (during normal business hours) to, ‑
|
19.6.2.1.
|
and retain copies of, any and all documents and information relating to the WW Businesses and their affairs provided that, in the event that the WW Transaction lapses due to the non-fulfilment of any Condition Precedent or is cancelled or terminated for any other reason whatsoever, Harmony shall destroy and/or erase or procure the destruction and/or erasing of all electronic and/or printed versions or copies of any information in its possession or control pursuant to this clause 19.6.2, and shall not retain any copies, extracts or other reproductions, in whole or in part, of such information;
|
19.6.2.2.
|
the premises and areas on which the WW Businesses are conducted, subject at all times to AngloGold policies and procedures; and
|
19.6.2.3.
|
the officers and senior employees of the WW Businesses,
|
19.7.
|
Integration Meetings
|
19.7.1.
|
Subject to all applicable Laws, Harmony shall be entitled to appoint 2 (two) appropriate representatives employed by Harmony ("Purchaser's Integration Representatives (WW)"), who each have the authority, right and power to act for and on Harmony's behalf in respect of all the matters contemplated under clauses 19.7.1 to 19.7.10 (both inclusive).
|
19.7.2.
|
AngloGold shall be entitled to appoint 2 (two) appropriate representatives employed by Harmony ("Seller's Integration Representatives (WW)") who each have the authority, right and power to act for and on AngloGold's behalf in respect of all the matters contemplated under clauses 19.7.1 to 19.7.10 (both inclusive).
|
19.7.3.
|
Harmony or AngloGold may change their respective representatives at any time and from time to time provided (a) it gives prior written notice to the other Party of such change and (b) such change is acceptable to the other Party (acting reasonably).
|
19.7.4.
|
During the Interim Period until the Closing Date or the earlier termination of this Agreement in accordance with its terms, the Purchaser’s Integration Representatives (WW) shall meet once each calendar month, or at any other time as reasonably requested by any Purchaser’s Integration Representative (WW) (on an exception only basis), (each an "Integration Meeting (WW)") with the Seller’s Integration Representatives (WW) (or other appropriate persons) at which meetings AngloGold and Harmony shall co-operate and work together in good faith, and provide the necessary resources, to agree, oversee and manage the preparation of an overall operational migration plan and timetable (with appropriate milestone deliverables) to enable the complete implementation of the overall integration, migration and transition of the WW Mining Business to the relevant Purchasers, by no later than the Closing Date, limited to the following operational migration work streams (each an "Integration Work Stream (WW)"): operational finance; human resources and payroll (including administration); procurement and logistics (including warehousing); information technology (all systems, hardware and software); mining, metallurgy, reserves, resources and engineering (underground and surface); transport; financial and management accounting; taxation; legal and regulatory; electricity access and supply; water access and supply; communication; health, safety and medical; environmental; social and
|
19.7.5.
|
The first Integration Meeting (WW) shall be held within 14 (fourteen) calendar days following the Signature Date. The Parties hereby agree that no competitively sensitive information and/or legally privileged information will be shared with the Purchaser’s Integration Representatives (WW) at any Integration Meeting (WW).
|
19.7.6.
|
To the extent that Harmony requires AngloGold's assistance with the preparation and implementation of the operational migration plan and the Integration Work Streams (WW), AngloGold undertakes to use reasonable endeavours, at Harmony's cost, to provide any assistance reasonably requested by Harmony, provided that such assistance does not place any unreasonable resource constraints on AngloGold’s ability to run its business and operations during the Interim Period.
|
19.7.7.
|
To the extent that AngloGold incurs any costs in this regard, not relating to time spent, it will provide a valid tax invoice to Harmony for such costs plus VAT at the applicable rate. Harmony undertakes to settle such invoice within 30 (thirty) calendar days upon receipt from AngloGold of such invoice.
|
19.7.8.
|
Each request for an Integration Meeting (WW) will be accompanied by a clear and ascertainable agenda that will be delivered to AngloGold at least 10 (ten) Business Days prior to the relevant Integration Meeting (WW). For the avoidance of doubt, Harmony shall not be entitled to materially deviate from the agenda for each Integration Meeting (WW) once same has been delivered to AngloGold.
|
19.7.9.
|
The Purchaser’s Integration Representatives (WW) may from time to time ask the Seller's Integration Representatives (WW) questions in relation to, or request information from the Seller's Integration Representatives (WW) regarding matters related to the WW Mining Business to the extent that it reasonably requires same in order to plan the integration of the WW Mining Business into the Purchaser's Group with effect from the Closing Date by submitting such requests in writing to the Seller's Integration Representatives (the "Information Requests (WW)").
|
19.7.10.
|
The Seller's Integration Representatives (WW) shall use reasonable endeavours to obtain responses to any Information Request (WW) as soon as practicable and such responses shall be forwarded to the Purchaser’s Integration Representatives (WW) as soon as practicable, provided that no competitively sensitive and/or legally privileged information will be shared with the Purchaser’s Integration Representatives (WW) or with any other representatives of Harmony.
|
19.7.11.
|
Notwithstanding anything to the contrary contained herein, Harmony acknowledges that AngloGold has a business to conduct and agree that Information Requests (WW) shall be reasonable and shall not be unnecessarily overbearing or frequent.
|
19.8.
|
Integration Work Streams
|
19.8.1.
|
Harmony shall nominate 1 (one) person as its representative for each Integration Work Stream (WW) (each a "Purchaser’s Integration Work Stream Representative (WW)") who shall each have the authority, right and power to act for and on Harmony's behalf in respect of all the matters contemplated under this clause 19.8 in relation to such Integration Work Stream (WW).
|
19.8.2.
|
AngloGold shall nominate 1 (one) person as its representative for each Integration Work Stream (WW) (each a "Seller’s Integration Work Stream Representative (WW)") who each have the authority, right and power to act for and on AngloGold's behalf in respect of all the matters contemplated under this clause 19.8 in relation to such Integration Work Stream (WW).
|
19.8.3.
|
Harmony or AngloGold may change their respective representatives at any time and from time to time provided (a) it gives prior written notice to the other Party of such change; and (b) such change is acceptable to the other Party (acting reasonably).
|
19.8.4.
|
Harmony and AngloGold shall use reasonable endeavours to ensure that the Purchaser’s Integration Work Stream Representative (WW) and the Seller’s Integration Work Stream Representative (WW) nominated for each Integration Work Stream shall meet every two weeks during the Interim Period or more frequently subject to AngloGold's consent (which consent cannot be unreasonably withheld or delayed) and use reasonable endeavours to oversee, manage, prepare and effect the implementation of the components of the operational migration plan and timetable that relate to the relevant Integration Work Stream (WW) (including where appropriate, by conducting a gaps analysis and assessment of AngloGold’s systems against those of Harmony and the relevant Purchaser, implementing a solution to address any such gaps identified and installing any systems to the extent reasonably required to ensure a smooth transition with effect from the Closing Date, and provide regular updates to the Seller’s Integration Representatives (WW) and the Purchaser’s Integration Representatives (WW) (including by providing formal feedback at each Integration Meeting (WW)) in reasonable detail such that such Persons can reasonably monitor and oversee the implementation of the relevant Integration Work Stream (WW) against the
|
19.8.5.
|
Harmony and AngloGold shall use reasonable endeavours to ensure that, as soon as reasonably possible following the Signature Date, but in no event later than 1 (one) calendar month following the Signature Date, the Purchaser’s Integration Work Stream Representative (WW) and the Seller’s Integration Work Stream Representative of each Integration Work Stream (WW) have (a) agreed on a transition plan (including a timetable (with appropriate milestone deliverables)) setting out all of the material steps necessary to ensure the complete integration and transition of the WW Mining Business to the relevant Purchasers, by no later than the Closing Date, with respect to the specific responsibilities of the respective Integration Work Stream (WW). Harmony and AngloGold shall use reasonable endeavours to ensure the complete and timely implementation of the relevant transition plan for each Integration Work Stream (WW), as may be amended jointly from time to time in writing by the Purchaser’s Integration Work Stream Representative (WW) and the Seller’s Integration Work Stream Representative (WW) relating to such Integration Work Stream (WW), by no later than the Closing Date.
|
20.
|
PURCHASER WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
|
21.
|
RELEASE FROM GUARANTEES, SURETYSHIPS AND INDEMNITIES
|
21.1.
|
Save in respect of the release of the WW Financial Guarantees which shall be released in accordance with clause 11.4, the relevant Purchaser shall, as soon as practicable after the Closing Date, procure the release of AngloGold as well as any of its Affiliates (as applicable), from their obligations under all of the guarantees, suretyships and indemnities given by AngloGold and/or its relevant Affiliates (as applicable) for, or in relation to, the WW Package. Without limiting anything in this clause 21, the relevant Purchaser shall furnish any substitute guarantees, suretyships, indemnities and undertakings necessary or reasonably required to procure such release and discharge of AngloGold and its Affiliates.
|
21.2.
|
The relevant Purchaser shall indemnify AngloGold and each of its Affiliates, with effect from the Closing Date, against:
|
21.2.1.
|
any liabilities which AngloGold or the relevant Affiliate may incur under any such guarantee, suretyship or indemnities in question; and
|
21.2.2.
|
all costs, losses, liabilities, Claims, demands, damages, fines and expenses reasonably and necessarily incurred by AngloGold and/or the relevant Affiliate in connection with any such liability or Claim, including costs awarded against it.
|
21.3.
|
This clause 21 constitutes a stipulatio alteri in favour of each relevant Affiliate of AngloGold capable of acceptance in writing at any time by such Affiliate on written notice to the relevant Purchaser.
|
22.
|
WARRANTIES AND UNDERTAKINGS
|
22.1.
|
AngloGold gives to each of the Purchasers:
|
22.1.1.
|
the Warranties in Annexure A1 in respect of the Covalent Sale Equity;
|
22.1.2.
|
the Warranties in Annexure A2 in respect of the AngloGold Security Services Sale Shares;
|
22.1.3.
|
the Warranties in Annexure A3 in respect of the Masakhisane Sale Shares; and
|
22.1.4.
|
the Warranties in Annexure A4 in respect of the WW Mining Business.
|
22.1.1.
|
is a separate Warranty and is not limited or restricted by reference to or inference from the terms of any other Warranty;
|
22.1.2.
|
save where any Warranty is expressly limited to a particular date, is given, as at the Signature Date, CP Fulfilment Date and Closing Date; and
|
22.1.1.
|
shall continue and remain in force notwithstanding the completion of one or more of the Transactions.
|
22.2.
|
Any Warranty given in terms of this Agreement as at the Signature Date or the CP Fulfilment Date (as the case may be) which is breached as at the Signature Date or the CP Fulfilment Date (as the case may be) shall (subject to, and without limiting, the rights of the Purchasers at any time (whether before or after the CP Fulfilment Date) to terminate in terms of clause 50.4.3), nevertheless be deemed not to have been breached if it is not breached as at the Closing Date.
|
22.3.
|
AngloGold’s liability for any Claim by any of the Purchasers in respect of any Warranty under this Agreement, is limited and qualified to the extent to which disclosure of any fact or circumstance concerning such Claim has been made in –
|
22.3.1.
|
this Agreement;
|
22.3.2.
|
the Data Room Documents;
|
22.3.3.
|
the Disclosure Schedule (WW) in Annexure D;
|
22.3.4.
|
any other document or written material provided by AngloGold, any member of the Group, and/or any of their officers, employees, representatives, agents or advisers to any of the Purchasers or any of the Purchasers' Affiliates, officers, employees, directors, representatives, agents or advisers (the "Purchaser's Representatives") before 05h00 (South African time) on 12 February 2020, or that forms part of the Data Room Documents;
|
22.3.5.
|
any written presentation made to Harmony or any of the Purchaser’s Representatives before the Signature Date; and
|
22.3.6.
|
any written responses provided by AngloGold, any member of the Group, and/or any of their officers, employees, agents or advisers to any queries raised by Harmony or any of the Purchaser’s Representatives during the course of the Due Diligence Investigation (WW),
|
22.4.
|
AngloGold’s liability in respect of any Warranty (WW) under this Agreement is further limited and qualified by -
|
22.4.1.
|
anything which arises as a result of any change in any applicable Law or its interpretation; and/or
|
22.4.2.
|
anything to the extent that it is within the actual knowledge of Harmony, the relevant Purchaser and/or any of the Purchaser's Representatives as at the Signature Date.
|
22.5.
|
Save for those warranties or indemnities expressly given or made by AngloGold in this Agreement or in Annexure A1, Annexure A2, Annexure A3 or Annexure A4 hereto; (a) no other warranties or indemnities and no representations whatsoever are given or made by AngloGold in respect of the WW Package or otherwise, whether express, tacit or implied, and; (b) the WW Package is sold on a voetstoots basis.
|
23.
|
LIMITATION OF LIABILITY
|
23.1.
|
In addition to the limitations set out below and elsewhere in this Agreement, AngloGold's liability in respect of a Warranty (WW) is further limited by the limitations set out in Annexure C in respect of the WW Transaction and the WW Package.
|
23.2.
|
Reductions
|
23.2.1.
|
any amount recovered by the Purchasers, the Purchasers’ Affiliates and/or the WW Companies from any third party in respect thereof, less (a) any portion thereof that the WW Companies, the Purchasers and/or the Purchasers’ Affiliates may, in terms of any insurance contract, be obliged to pay to any insurer, (b) any reasonable out of pocket expenses incurred by the Purchasers, the Purchasers’ Affiliates, and/or the WW Companies in recovering the sum and (c) any Tax attributable to or suffered in respect of the sum recovered; and
|
23.2.2.
|
any amount by which the Purchasers, the Purchasers’ Affiliates or the WW Companies have otherwise been compensated for without cost to the Purchasers, the Purchasers’ Affiliates or the WW Companies.
|
23.3.
|
Contingent liabilities
|
23.4.
|
Losses
|
23.5.
|
Matters Arising
|
23.5.1.
|
any matter or thing done or omitted to be done pursuant to and in compliance with this Agreement or otherwise at the request in writing or with the approval in writing of the Purchasers;
|
23.5.2.
|
any act, omission or transaction of the Purchasers or the WW Companies or each of their respective directors, officers, employees or agents or successors in title, after the Closing Date;
|
23.5.3.
|
the passing of, or any change in, after the Signature Date, any Law or administrative practice of any Governmental Entity (and in the case of any Environmental Law or mining Law, any change in any generally accepted interpretation or application thereof) including (without prejudice to the generality of the foregoing) any increase in the rates of Taxation or any imposition of Taxation or any withdrawal of relief from Taxation not actually (or prospectively) in effect at the Signature Date; or
|
23.5.4.
|
any change in internationally accepted accounting policy, bases or practice introduced or having effect after the Signature Date.
|
23.6.
|
Mitigation of losses
|
23.7.
|
No double recovery
|
23.8.
|
Fraud
|
23.9.
|
Projections, Forward Looking Statements and Financial Estimates
|
23.10.
|
Financial provisions
|
23.11.
|
Environmental Approvals
|
23.11.1.
|
if the WW Purchaser requires the transfer and/or use of any Environmental Approvals (WW) in respect of the WW Mining Business which has not been dealt with in this Agreement and such Environmental Approval (WW) is not valid and subsisting in full force and effect or has been suspended, cancelled, revoked, varied or surrendered in favour of any third party; or
|
23.11.2.
|
on the basis that the Environmental Approvals (WW) issued to AngloGold in relation to the WW Businesses do not adequately cover the operations conducted by the WW Businesses or the operations to be conducted by the relevant Purchaser.
|
24.
|
INDEMNITIES
|
24.1.
|
Environmental Obligations (WW)
|
24.1.1.
|
Notwithstanding anything to the contrary contained herein, AngloGold, Harmony and the WW Purchaser record and agree that, by virtue of the fact that Harmony and the WW Purchaser are acquiring the WW Package, Harmony or the WW Purchaser, as applicable, shall become liable for the embedded Environmental Obligations (WW) in relation thereto in accordance with Environmental Law.
|
24.1.2.
|
The Parties record and agree that Harmony and the WW Purchaser, as applicable, shall, with effect from the Closing Date, duly assume or punctually pay, satisfy, discharge, perform or fulfil (as the case may be) all of the Environmental Obligations
|
24.1.3.
|
Harmony hereby, with effect from the Closing Date, indemnifies AngloGold (and any of its Affiliates, directors and/or employees) (collectively the "AngloGold Indemnified Persons (WW)") against and holds them harmless from any and all: (a) Claims of whatsoever nature (including legal costs on the scale as between attorney and own client) that may be made against the AngloGold Indemnified Persons (WW) as a result of Harmony or the WW Purchaser’s failure, as applicable, to comply with their obligations in terms of this clause 24.1; and (b) Environmental Obligations (WW), as applicable (an "Environmental Indemnified Liability Loss (WW)").
|
24.1.4.
|
Harmony shall be obliged to pay the AngloGold Indemnified Person (WW) the amount of any Environmental Indemnified Liability Loss (WW), as applicable, suffered or incurred by such AngloGold Indemnified Person (WW) as soon as: (a) the AngloGold Indemnified Person (WW) is obliged to pay the amount thereof (in the case of any Environmental Indemnified Liability Loss (WW) which involves a payment by the AngloGold Indemnified Persons (WW) to any third party) or the AngloGold Indemnified Person (WW) incurs the Environmental Indemnified Liability Loss (WW) (in the case of an Environmental Indemnified Liability Loss (WW) which does not involve a payment by the AngloGold Person (WW) to any third party) and (b) Harmony has received a written notice from the AngloGold Indemnified Person (WW) demanding payment with respect to an Environmental Indemnified Liability Loss (WW).
|
24.2.
|
Sale Liabilities (WW) indemnity by the WW Purchaser
|
24.2.1.
|
The WW Purchaser hereby, with effect from the Closing Date, indemnifies each of the AngloGold Indemnified Persons (WW) and holds it harmless against all Sale Liabilities (WW) and all and any Losses incurred or suffered by such AngloGold Indemnified Person (WW)) (including all reasonable disbursements and fees of legal advisors incurred in connection with the investigation of, preparation for, defence and/or settlement of, any pending or threatened claim and any litigation or other proceeding arising therefrom, whether or not the AngloGold Indemnified Person (WW) is a party) by reason of, or arising directly or indirectly out of, or in connection with the Sale Liabilities (WW) (the "Indemnified Liability Loss (WW)").
|
24.2.2.
|
The WW Purchaser shall be obliged to pay to the AngloGold Indemnified Person (WW) the amount of any Indemnified Liability Loss (WW) incurred or suffered by the AngloGold Indemnified Person (WW) as soon as: (a) the AngloGold Indemnified Person (WW) is obliged to pay the amount thereof (in the case of any
|
24.3.
|
Covalent indemnity by the WW Purchaser
|
24.3.1.
|
The WW Purchaser hereby, with effect from the Closing Date, indemnifies each of the AngloGold Indemnified Persons (WW) and holds them harmless against all and any Losses incurred or suffered by such AngloGold Indemnified Person (WW) (including all disbursements and fees of legal advisors incurred in connection with the investigation of, preparation for, defence and/or settlement of, any pending or threatened claim and any litigation or other proceeding arising therefrom, whether or not the AngloGold Indemnified Person (WW) is a party) by reason of, or arising out of, or in connection with Covalent and/or the operations of the Covalent Business (including without limitation any obligation to pay an amount of money relating to the Covalent Business and/or implementation of the Covalent Water Directives or any amendment, revision or reissuance thereof or subsequent Covalent Water Directive) (the "Covalent Indemnified Liability Loss").
|
24.3.2.
|
The WW Purchaser shall be obliged to pay to the AngloGold Indemnified Person (WW) the amount of any Covalent Indemnified Liability Loss incurred or suffered by such AngloGold Indemnified Person (WW) as soon as: (a) AngloGold is obliged to pay the amount thereof (in the case of any Covalent Indemnified Liability Loss that involves a payment by any AngloGold Indemnified Person (WW)), or as soon as any AngloGold Indemnified Person (WW) incurs or suffers the Covalent Indemnified Liability Loss (in the case of a Covalent Indemnified Liability Loss that does not involve a payment by the AngloGold Indemnified Person (WW)); and (b) the WW Purchaser has received a written notice from AngloGold demanding payment with respect to a Covalent Indemnified Liability Loss.
|
24.4.
|
Should any Party fail to discharge any of the liabilities for which it indemnifies any other Party in terms of clause 24.1, 24.2 or 24.3 (as applicable) (the "Relevant Liabilities (WW)") as and when they fall due for payment and the other indemnified Party is held liable therefor, such indemnified Party shall, when it becomes aware thereof, without prejudice to its other rights in applicable Law or in terms of this Agreement, be entitled ‑
|
24.4.1.
|
to require the relevant indemnifying Party which will be obliged, to immediately settle such Relevant Liabilities (WW); or
|
24.4.2.
|
should the relevant indemnifying Party fail to settle any of the Relevant Liabilities (WW), to settle such Relevant Liabilities (WW) and to recover the amount of any such Relevant Liabilities (WW) so settled on behalf of the indemnified Party, and all reasonable costs incurred in so doing, from the relevant indemnifying Partying in terms of clause 24.1, 24.2 or 24.3 (as the case may be).
|
24.5.
|
The provisions of this clause 24 shall constitute a stipulatio alteri in favour of each of the AngloGold Indemnified Persons (WW), which shall be capable of acceptance by the AngloGold Indemnified Persons (WW) at any time on written notice to the WW Purchaser.
|
25.
|
STEP IN RIGHTS
|
25.1.
|
AngloGold shall, in respect of any Claim by it (of any other person constituting an AngloGold Indemnified Person (WW)) under any of the indemnities in clauses 24.1, 24.2 or 24.3, and each of the Purchasers shall, in respect of any Claim by it or under a breach of any of the Warranties contemplated in this Agreement, (AngloGold or the relevant Purchaser, as aforesaid, being the "Indemnified Party (WW)") shall promptly notify the other of AngloGold or the relevant Purchaser (as the case may be) (the "Indemnifying Party (WW)") in writing of the Claim in question (the "Indemnified Claim (WW)") within a reasonable time of the Indemnified Party (WW) becoming aware thereof, to enable the Indemnifying Party (WW) to take steps to contest it.
|
25.2.
|
The Indemnifying Party (WW) shall have the right, at its sole option and expense, within 10 (ten) Business Days after the receipt of written notice under clause 25.1, to elect in writing to contest (which shall include an appeal) any Indemnified Claim (WW) and shall be entitled to control the defence against, negotiate, settle or otherwise deal with the Indemnified Claim (WW) provided that:
|
25.2.1.
|
it delivers a written indemnity to the Indemnified Party (WW), indemnifying the Indemnified Party (WW) against all charges and all legal costs which may be incurred or awarded as a consequence of such steps;
|
25.2.2.
|
the Indemnifying Party (WW) shall defend the Indemnified Claim (WW) on the same basis as it would act in circumstances where it were defending a dispute in its own name and shall at all stages and in all respects act in the best interests of the Indemnified Party (WW) (as if the relevant indemnity contemplated in this clause 25 did not exist) when defending the Indemnified Claim (WW), taking into account, without limitation, the effect of the dispute on the Indemnified Party (WW), the Indemnified Party’s (WW) reasonable input and the advice of the Indemnified Party’s (WW) and the Indemnifying Party’s (WW) professional advisers;
|
25.2.3.
|
the Indemnified Party (WW) shall give all reasonable assistance and information to the Indemnifying Party (WW) in the efforts of the Indemnifying Party (WW) to
|
25.2.4.
|
the Indemnifying Party (WW) shall deliver to the Indemnified Party (WW) all correspondence and court documents relating to the dispute prior to submitting same and shall consider all reasonable comments of the Indemnified Party (WW) in relation to the content and sending of any written communications in respect of the Indemnified Claim (WW);
|
25.2.5.
|
the Indemnified Party (WW) shall be entitled on reasonable notice to meet or have calls with the Indemnifying Party (WW) and its professional advisers when it deems fit in order to obtain an update on the progress in respect of the Indemnified Claim (WW);
|
25.2.6.
|
the Indemnifying Party (WW) may not concede, settle, compromise and/or abandon the Indemnified Claim (WW) without the prior written approval of the Indemnified Party (WW) (not to be unreasonably withheld or delayed), provided that where: (a) the Indemnifying Party (WW) has recommended that the Indemnified Party (WW) concede, settle, compromise and/or abandon the Indemnified Claim (the "Recommendation (WW)"); and (b) the Indemnified Party (WW) does not approve the Recommendation (WW), and thereafter the matter proceeds, the liability of Indemnifying Party (WW) in respect of the Indemnified Claim (WW) shall be proportionately reduced in respect of any amount of actual Loss suffered by the Indemnified Party (WW) which it can be established would not have been suffered had the Indemnified Party (WW) approved the Recommendation (WW); and
|
25.2.7.
|
the Indemnifying Party (WW) shall not be liable to the extent that the relevant liability arises as a result of or is increased by any action or omission by the Indemnified Party (WW) or the management of the Indemnified Party (WW). For the avoidance of doubt, to the extent that the relevant liability does not arise as a result of any action or omission by the Indemnified Party (WW) or the management of the Indemnified Party (WW) and is only increased by such action or omission, the Indemnifying Party (WW) shall remain liable in respect of the relevant liability but shall not be liable in respect of such increase.
|
25.3.
|
If the Indemnifying Party (WW) elects not to control the defence against, negotiate, settle or otherwise deal with any Indemnified Claim (WW) (including by not delivering to the Indemnified
|
Part C.
|
VR PACKAGE
|
26.
|
SALE AND PURCHASE OF THE FUSA SALE EQUITY
|
26.1.
|
With effect from the Closing Date, AngloGold hereby sells and cedes to Harmony, and Harmony hereby purchases and accepts such cession of the FUSA Sale Shares and the FUSA Sale Claims as an indivisible transaction subject to the terms and conditions set out in this Agreement.
|
26.2.
|
The FUSA Sale Shares, as applicable, shall be sold free and clear of any and all Encumbrances, with all rights attaching to them at the Closing Date, including the right to receive all distributions and dividends declared, paid or made in respect of the FUSA Sale Shares at or after the Closing Date. The aforegoing sentence applies mutatis mutandis to the FUSA Sale Claims.
|
26.3.
|
Notwithstanding the Signature Date (or anything to the contrary contained herein), the sales and cessions referred to in clause 26.1 will take place on the Closing Date and ownership of and risk in, and benefit attaching to, the FUSA Sale Equity will, against payment of the Cash Portion (VR) in terms of clause 34.2.2, pass to Harmony.
|
27.
|
SALE AND PURCHASE OF THE VR REMAINING BUSINESS
|
27.1.
|
With effect from the Closing Date, AngloGold hereby sells, transfers and cedes to Harmony Moab, and Harmony Moab hereby purchases and accepts such transfer and cession, the VR Remaining Business as an indivisible transaction and as a going concern, subject to the terms and conditions set out in this Agreement and excluding the Excluded Liabilities.
|
27.2.
|
Notwithstanding the Signature Date (or anything to the contrary contained herein) –
|
27.2.1.
|
the risk in and benefit attaching to the VR Remaining Business shall vest in Harmony Moab with effect on and as from the Closing Date and AngloGold shall cease to have operational control of the VR Remaining Business on and as from the Closing Date;
|
27.2.2.
|
subject to clause 27.2.4, ownership of the VR Remaining Business (other than the Immoveable Properties (VR), the Kopanang Gold Plant Servitude, the Servitudes (VR), Infrastructure (VR) and the Surface Right Permits (VR)) shall pass to Harmony Moab on and with effect from the Closing Date;
|
27.2.3.
|
ownership of each of the Immoveable Properties (VR) shall pass to Harmony Moab on and with effect from the Transfer Date of each of the respective Immoveable Properties (VR) and ownership of the Kopanang Gold Plant Servitude and the Servitudes (VR) shall pass upon the date of registration in the Deeds Registry of the Kopanang Gold Plant Servitude and each of the notarial deeds of cession of servitudes in respect of the Servitudes (VR) (as contemplated in clauses 29.3 and 29.4 respectively);
|
27.2.4.
|
if the Infrastructure (VR): (a) accedes to the Immoveable Properties (VR), then ownership of such Infrastructure (VR) shall pass to Harmony Moab on and with effect from the Transfer Date of each of the respective Immoveable Properties (VR); or (b) does not accede to the Immoveable Properties (VR), then ownership of such Infrastructure (VR) shall pass to Harmony Moab on and with effect from the Closing Date (as contemplated in clause 29.3); and
|
27.2.5.
|
ownership of the Surface Right Permits (VR) shall pass to Harmony Moab upon registration of the consents or deeds of transfer of the Surface Right Permits (VR) in the Mining Titles Office (as contemplated in clause 29.5).
|
28.
|
DELIVERY OF THE FUSA SALE EQUITY
|
28.1.
|
On the Closing Date the representatives of AngloGold and Harmony shall meet at 10h00 at the offices of ENSafrica at 129 Rivonia Road, Sandton, Johannesburg, South Africa, or at such other time and/or place as AngloGold and Harmony may agree, where AngloGold shall, against payment of the Cash Portion (VR) in terms of clause 34.2.2, deliver to Harmony –
|
28.1.1.
|
the original share certificates in respect of the FUSA Sale Shares, together with duly executed cession and transfer forms (in a form attached hereto as Annexure CC) for the transfer of ownership in respect thereof (blank as to the transferee);
|
28.1.2.
|
the original title deeds and original notarial deeds of servitude in respect of the Chemwes Property;
|
28.1.3.
|
all of the books, records, documents and assets of the VR Companies in the possession of AngloGold and/or under its control immediately before the Closing Date (including, without limiting the generality of the aforegoing, the certificates of incorporation, memoranda of incorporation, minute books, tax records, securities register and other registers of the VR Companies), or alternatively place Harmony in effective control of such books, records, documents and assets;
|
28.1.4.
|
(a) the written resignation/s (in a form attached hereto as Annexure DD), with effect from the Closing Date, of all of the directors of each of the VR Companies, together with (b) an originally certified copy of the South African identity document (if South African) or valid passport (if not South African) of each resigning director in each case certified within the 2 (two) months prior to the Closing Date;
|
28.1.5.
|
certified copies of duly passed resolutions (in a form attached hereto as Annexure FF) of the board of directors of:
|
28.1.5.1.
|
FUSA: (a) approving the transfer of the FUSA Sale Shares; (b) noting the cession of that portion of the FUSA Sale Claims which AngloGold has on loan account against FUSA to Harmony; (c) approving the issue of appropriate new share certificates in respect of the FUSA Sale Shares to Harmony which reflect Harmony as the registered owner of the FUSA Sale Shares; (d) directing the company secretary or any one director of FUSA to cancel the existing share certificate/s, which reflect AngloGold as the registered owner of the FUSA Sale Shares and issue new share certificate/s to Harmony which reflect Harmony as the registered owner of the FUSA Sale Shares and to update the securities register of FUSA to reflect Harmony as the registered holder of the FUSA Sale Shares; (e) approving the appointment of Harmony's nominees to the board of directors of FUSA, provided that Harmony provides the names and identity/passport numbers (as applicable) of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date, subject to the terms and conditions of this Agreement and with effect from the Closing Date; and (f) noting the resignations of the persons referred to in clause 28.1.4;
|
28.1.5.2.
|
MWS: (a) noting the cession of that portion of the FUSA Sale Claims which AngloGold has on loan account against MWS to Harmony; (b) approving the appointment of Harmony's nominees to the board of directors of MWS, provided that Harmony provides the names and
|
28.1.5.3.
|
Chemwes: (a) noting the cession of that portion of the FUSA Sale Claims which AngloGold has on loan account against Chemwes to Harmony; (b) approving the appointment of Harmony's nominees to the board of directors of Chemwes, provided that Harmony provides the names and identity/passport numbers (as applicable) of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date, subject to the terms and conditions of this Agreement and with effect from the Closing Date; and (c) noting the resignations of the persons referred to in clause 28.1.4;
|
28.1.6.
|
certified copies of duly passed resolutions (in a form attached hereto as Annexure GG) of AngloGold appointing Harmony's nominees to the board of directors of FUSA, provided that Harmony provides the names and identity/passport numbers (as applicable) of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date, subject to the terms and conditions of this Agreement and with effect from the Closing Date;
|
28.1.7.
|
certified copies of duly passed resolutions (in a form attached hereto as Annexure GG) of FUSA appointing Harmony's nominees to the board of directors of MWS, provided that Harmony provides the names and identity/passport numbers (as applicable) of such nominees to FUSA at least 15 (fifteen) Business Days before the Closing Date, subject to the terms and conditions of this Agreement and with effect from the Closing Date;
|
28.1.8.
|
certified copies of duly passed resolutions (in a form attached hereto as Annexure GG) of MWS appointing Harmony's nominees to the board of directors of Chemwes, provided that Harmony provides the names and identity/passport numbers (as applicable) of such nominees to MWS at least 15 (fifteen) Business Days before the Closing Date, subject to the terms and conditions of this Agreement and with effect from the Closing Date; and
|
28.1.9.
|
the documents, in respect of the Chemwes Trust, referred to in clause 28.2.2.
|
28.2.
|
Chemwes Trust (and the Chemwes Trust Money)
|
28.2.1.
|
It is recorded that: (a) FUSA; and (b) AngloGold have made contributions to the Chemwes Trust by way of, inter alia, the Chemwes Trust Money.
|
28.2.2.
|
It is recorded that the Chemwes Trust is a trust registered for purposes of section 37A of the Income Tax Act.
|
28.2.3.
|
In accordance with (and subject to) clauses 28.1 and 28.1.7, the following documents, in respect of the Chemwes Trust, shall be delivered to Harmony Moab on the Closing Date, namely –
|
28.2.3.1.
|
all of the books, records, documents and assets of the Chemwes Trust in the possession of AngloGold and/or under its control immediately before the Closing Date in relation to the Chemwes Trust (including, without limiting the generality of the aforegoing, minute books, tax records, and other registers of the Chemwes Trust), or alternatively place the WW Purchaser in effective control of such books, records, documents and assets;
|
28.2.3.2.
|
the original trust deed and letters of authority in respect of the Chemwes Trust;
|
28.2.3.3.
|
the original written resignation/s of AngloGold’s appointees to the board of trustees of the Chemwes Trust (in a form attached hereto as Annexure EE), with effect from the date on which the new letters of authority in respect of the Chemwes Trust are to be issued as contemplated in clause 28.2.4;and
|
28.2.3.4.
|
the original resolutions (in a form attached hereto as Annexure HH) of the trustees of the Chemwes Trust authorising and approving (subject to the terms and conditions of this Agreement and with effect from the Closing Date):
|
28.2.3.4.1.
|
the appointment of Harmony Moab's nominees to the board of trustees of the Chemwes Trust with effect from the date on which the new letters of authority in respect of the Chemwes Trust are to be issued as contemplated in clause 28.2.4, provided that Harmony Moab provides the names and identity/passport numbers (as applicable) of such nominees to AngloGold at least 15 (fifteen) Business Days before the Closing Date; and
|
28.2.3.4.2.
|
the resignations of the persons referred to in clause 28.2.3.3.
|
28.2.4.
|
The Parties record and agree that, as soon as reasonably possible after the Closing Date, Harmony Moab shall do all such things as may be necessary to procure the issuance of new letters of authority to effect the resignations and appointments contemplated in clauses 28.2.3.3 and 28.2.3.4 in respect of the Chemwes Trust and AngloGold shall use all reasonable endeavours to assist Harmony Moab to obtain such new letters of authority and any other amendments to the deed of trust of Chemwes Trust as reasonably requested by Harmony Moab.
|
28.2.5.
|
With effect from the Closing Date, AngloGold cedes, assigns and delegates all of its rights and obligations in relation to the Chemwes Trust (if any) including such obligations as are recorded in the trust deed of the Chemwes Trust and any obligations that AngloGold may have undertaken by virtue of its nominee/s being trustees of the Chemwes Trust, in relation to or in connection with the Chemwes Trust, which cession, assignment and delegation Harmony Moab accepts.
|
28.2.6.
|
If and to the extent that AngloGold is unable to cede, assign and delegate all of its rights and obligations in relation to the Chemwes Trust to Harmony Moab as contemplated in clause 28.2.5 above, then Harmony Moab and AngloGold hereby agree that, with effect from the Closing Date, as between them, all benefit arising from or relating to the Chemwes Trust that (but for this clause 28.2.6) would vest in and be borne by AngloGold shall vest in and be borne by Harmony Moab and, as a result: (a) Harmony Moab shall be obliged, at its cost, but (to the extent necessary) in AngloGold’s name to discharge AngloGold’s obligations in respect of the Chemwes Trust after the Closing Date; and (b) Harmony Moab hereby indemnifies AngloGold against any Loss which may arise as a result of Harmony Moab failing to comply with its obligations under this clause 28.2.6.
|
28.2.7.
|
The Parties record and agree that, as soon as reasonably possible after the Closing Date, Harmony Moab and AngloGold shall attend to the necessary updates (including, the contact, address, banking and trustee details) of the Chemwes Trust where required on the Registration, Amendments and Verification Form (RAV01) and that the IT77TR is duly completed and timeously submitted with SARS.
|
28.3.
|
AngloGold and Harmony may, by agreement in writing, dispense with a meeting on the Closing Date and may instead provide for the delivery of the documents referred to in clause 28.1 in such other manner as they may agree.
|
28.4.
|
MWC / Chemwes Water Offtake Agreement
|
29.
|
DELIVERY OF THE VR REMAINING BUSINESS
|
29.1.
|
Primary Delivery Provisions
|
29.1.1.
|
The Contracts (VR):
|
29.1.1.1.
|
AngloGold hereby assigns, cedes and delegates (with effect from the Closing Date) to Harmony Moab all of its rights, title and interests in and to all prospective obligations in respect of the Contracts (VR), and Harmony Moab hereby accepts such assignment, cession and delegation, to the extent that: (a) the other parties to the Contracts (VR) consent thereto; or (b) the consents of the other parties to the Contracts (VR) are not required. AngloGold undertakes (subject to the remaining provisions of this clause 29.1.1) to use all reasonable endeavours to procure, as soon as reasonably practicable following the Signature Date (and, to the extent not completed on the Closing Date, as soon as reasonably possible after the Closing Date) the assignment of the Contracts (VR), and the related cession and delegation of rights, title, interests and obligations, to Harmony Moab as aforesaid) the assignment of the Contracts (VR), and the related cession and delegation of rights, title, interests and obligations, to Harmony Moab as aforesaid with effect on and from the Closing Date, including to obtain all consents, approvals and waivers that may be required from any third parties for such assignment.
|
29.1.1.2.
|
If Harmony Moab identifies any material Contract (VR) which, in the reasonable opinion of Harmony Moab, necessarily requires an amendment (which amendment shall take effect on or after the Closing Date) in order for such Contract (VR) to be valid and binding and/or to properly serve the legitimate and reasonable requirements of Harmony Moab in operating the VR Businesses after the Closing Date, then AngloGold shall: (a) co-operate with Harmony Moab; and (b) (to
|
29.1.1.3.
|
To the extent that the consent of any other third parties to any of the Contracts (VR) is required to effect the assignment, cession and delegation contemplated in this clause 29.1.1 (the “Consenting Parties (VR)”) then –
|
29.1.1.3.1.
|
at the cost of Harmony Moab and for a period of 4 (four) calendar months following the later of: (a) the Closing Date; and (b) the date on which a copy of the Contract (VR) is provided to Harmony Moab in terms of this Agreement (provided that this item (b) shall apply only to Confidential Contracts (VR) (only to the extent that AngloGold has obtained approval from the relevant third party to disclose the relevant Confidential Contract (VR) to Harmony Moab, as contemplated in clause 37.5.4),Proposed Contracts (VR) and Interim Period Contracts (VR) (or such longer period as the Parties may agree in writing), AngloGold shall use its reasonable endeavours to procure the aforesaid consent of the relevant Consenting Parties (VR). On termination of the aforesaid 4 (four) calendar month period, and to the extent that a Consenting Party (VR) fails to provide their aforesaid consent in relation to the relevant Contract (VR), AngloGold shall be entitled, in its sole and absolute discretion, in respect of such Contract (VR), to: (a) use its reasonable endeavours (for so long, and from time to time, as AngloGold may choose) to procure the aforesaid consent of such Consenting Party (VR); (b) exercise any rights that it has under such Contract (VR), to terminate such Contract in respect of which the consent of the Consenting Parties (VR) has not yet been obtained (whereafter AngloGold shall forthwith notify Harmony Moab in writing thereof); and/or (c) terminate the
|
29.1.1.3.2.
|
in respect of such Contract (VR), from the Closing Date until the earlier of the date on which: (a) all Consenting Parties (VR) (whose consent is so required) provide their consent to the assignment, cession and delegation of such Contract (VR) to Harmony Moab and such assignment, cession and delegation is implemented; (b) such Contract (VR) is terminated (as contemplated in and in accordance with clause 29.1.1.3.2 (b)); and/or (c) AngloGold terminates the provisions of this clause 29.1.1.3.2 (as contemplated in clause 29.1.1.1(c)) in respect of such Contract (VR), Harmony Moab and AngloGold reciprocally undertake the following obligations for such period –
|
29.1.1.3.2.1.
|
as between Harmony Moab and AngloGold, the benefit and risk of such Contracts (VR) shall vest in and be borne by AngloGold prior to the Closing Date and by Harmony Moab from the Closing Date and thereafter. In particular but without limiting the aforegoing, if the Consenting Parties (VR) do not perform their obligations under such Contracts (VR) after the Closing Date, AngloGold shall take all such reasonable steps, at the cost of Harmony Moab, as shall be available to enforce such obligations;
|
29.1.1.3.2.2.
|
AngloGold shall exercise all its rights under such Contracts (VR) for the benefit, at the direction and for the cost of Harmony Moab and AngloGold shall collect and pay to
|
29.1.1.3.2.3.
|
AngloGold shall be obliged, at its cost, to discharge on the respective due dates therefor any obligations under such Contracts (VR) in respect of the period prior to the Closing Date;
|
29.1.1.3.2.4.
|
Harmony Moab shall be obliged, at its cost, but in AngloGold's name to discharge on the respective due dates therefor AngloGold's obligations under such Contracts (VR) after the Closing Date; and
|
29.1.1.3.2.5.
|
the Parties hereby indemnify each other against any Loss which may arise as a result of the other of them failing to comply with their obligations under this clause 29.1.1.3.2,
|
29.1.2.
|
The SLAs (VR): The provisions of clause 29.1.1 shall apply, mutatis mutandis, to each of the SLAs;
|
29.1.3.
|
The Sale Assets (VR): Subject to clause 29.2, AngloGold shall deliver, or shall procure the delivery of, the Sale Assets (VR) to Harmony Moab by such mode of actual or constructive delivery as shall be appropriate in the circumstances, with the intent that legal title to all such Sale Assets (VR) shall pass by and upon such mode of delivery. AngloGold shall, promptly upon receiving a written request from Harmony Moab, sign and execute (or procure the signature and execution of) all
|
29.1.4.
|
The Motor Vehicles (VR): AngloGold shall deliver to Harmony Moab all such documents, duly completed, as may be necessary to enable the Motor Vehicles (VR) to be registered in the name of Harmony Moab and to enable Harmony Moab to obtain the necessary certificate of roadworthiness in respect thereof (provided that any costs having been incurred in obtaining such certificates shall be paid by Harmony Moab). AngloGold shall deliver to Harmony Moab all such documents, duly completed, as may be necessary to enable any aircraft included in the Sale Assets (VR) to be registered in the name of Harmony Moab;
|
29.1.5.
|
The books and records:
|
29.1.5.1.
|
AngloGold shall place Harmony Moab in possession of the originals of all books, documents (including Contracts (VR) engineering manuals, drawings and designs) and records to the extent that it is in possession of same (irrespective of the medium in which such records are stored) which relate to the VR Package; provided that to the extent that AngloGold is required by law to retain any such original AngloGold shall instead be entitled to deliver a true and accurate copy thereof, and to the extent that any such records are kept on computer hardware which is not included within the VR Package, AngloGold shall instead be required to deliver electronic copies thereof (in a format acceptable to Harmony Moab, acting reasonably) or allow reasonable access to such computer hardware in order to enable Harmony Moab to make electronic copies thereof. Notwithstanding anything to the contrary contained herein, to the extent that any documents or records also relate to operations other than the Sale Package, then: (a) if such documents or records are material to the Sale Package, such documents or records shall (if AngloGold so requires) be redacted so as to remove all references and information in relation to such other operations, prior to Harmony Moab being placed in possession of same on the Closing Date or within a reasonable period after the Closing Date; (b) if such documents or records are immaterial to the Sale Package, Harmony Moab shall not be placed in possession of same; and (c) to the extent that Harmony Moab receives possession of documents or records which relate to operations other than the Sale Package, Harmony Moab shall make such documents or records
|
29.1.5.2.
|
Harmony Moab acknowledges that AngloGold may: (a) be requested by a Government Entity to provide such entity with; or (b) require, for the purposes of any litigation proceedings, an original or copy of any of the books, documents and/or records delivered to Harmony Moab by AngloGold under this clause 29.1.5. Accordingly, AngloGold may request access to and/or copies of all books, documents and records delivered to Harmony Moab under this clause 29.1.5 from time to time and at any time. Harmony Moab shall use its reasonable endeavours to provide AngloGold with access to and/or copies of such records and documents within 20 (twenty) Business Days after written notice thereof by AngloGold, at the cost of AngloGold. AngloGold irrevocably undertakes to Harmony Moab it shall treat all such records and documents as private, strictly confidential and safeguard them accordingly, and to use each and every effort (including, without limitation, at least those steps as it applies in protecting its own proprietary, secret and confidential information) to ensure that such records and documents are protected against theft and/or unauthorised access and that no-one receives such records and documents unless authorised by Harmony Moab in writing (which authorisation shall not be unreasonably withheld or delayed).
|
29.1.6.
|
The Sale Liabilities (VR):
|
29.1.6.1.
|
AngloGold hereby delegates to Harmony Moab, to the extent that the creditors concerned consent thereto, and Harmony Moab hereby accepts such delegation of the Sale Liabilities (VR). To the extent applicable, AngloGold undertakes to use all reasonable endeavours to procure the delegation of the Sale Liabilities (VR) to Harmony Moab as aforesaid with effect from the Closing Date. To the extent that any such creditor does not agree thereto, Harmony Moab shall be obliged after the Closing Date to discharge the Sale Liabilities (VR) on behalf of AngloGold on the respective due dates therefor and indemnifies AngloGold against any Claims of whatsoever nature that may be made against AngloGold in respect of the Sale Liabilities (VR) or Harmony Moab’s failure to comply with its obligations in terms of this clause 29.1.6. The Parties record and agree that Harmony Moab shall, with effect from the Closing Date, duly assume or punctually pay, satisfy,
|
29.1.6.2.
|
Notwithstanding anything to the contrary in this Agreement, the Parties record and agree that AngloGold shall remain fully and solely liable and responsible for all Excluded Liabilities.
|
29.2.
|
Additional Delivery Provisions
|
29.2.1.
|
In addition to the provisions of clause 29.1, AngloGold and Harmony Moab agree that, on the Closing Date and against payment of the Cash Portion (VR) in terms of clause 34.2.2:
|
29.2.1.1.
|
in respect of the Immoveable Properties (VR) and Infrastructure (VR), the provisions of clause 29.3 below shall apply;
|
29.2.1.2.
|
in respect of the Servitudes (VR) and the Kopanang Gold Plant Servitude, the provisions of clause 29.4 below shall apply;
|
29.2.1.3.
|
in respect of the Surface Right Permits (VR), the provisions of clause 29.5 below shall apply;
|
29.2.1.4.
|
in respect of the Consumable Stores (VR), the provisions of clause 29.6 below shall apply;
|
29.2.1.5.
|
in respect of the Critical Spares (VR), the provisions of clause 29.7 below shall apply;
|
29.2.1.6.
|
in respect of the Tailings Storage Facilities (VR) and the Tailings Storage Facilities Sites (VR), the provisions of clause 29.8 below shall apply;
|
29.2.1.7.
|
in respect of the MOD (VR), the provisions of clause 29.9 below shall apply;
|
29.2.1.8.
|
in respect of the Gold in Lock Up (VR) and Gold In Process (VR), the provisions of clause 29.10 below shall apply;
|
29.2.1.9.
|
in respect of AngloGold’s rights under all Permits (VR), the provisions of clause 30 below shall apply; and
|
29.2.1.10.
|
in respect of the Environmental Obligations (VR), the provisions of clause 42.1 below shall apply.
|
29.3.
|
Immoveable Properties (VR) and Infrastructure (VR)
|
29.3.1.
|
Occupation and possession of the Immoveable Properties (VR) and the Infrastructure (VR) will be provided to Harmony Moab by AngloGold on the Closing Date and against payment of the Cash Portion (VR) in terms of clause 34.2.2.
|
29.3.2.
|
All risk in and benefit attaching to such Immoveable Property (VR) and Infrastructure (VR) shall vest in Harmony Moab on the Closing Date against payment of the Cash Portion (VR) in terms of clause 34.2.2.
|
29.3.3.
|
Harmony Moab shall, free of rental cost, have full and unfettered rights, subject to the terms and conditions set out in this clause 29.3, and be entitled to use and occupy the Immoveable Properties (VR) from the Closing Date until the Transfer Date of each of the respective Immoveable Properties (VR) (both dates inclusive) (the "Immoveable Property Period (VR)").
|
29.3.4.
|
To the extent that the Infrastructure (VR):
|
29.3.4.1.
|
accedes to immoveable property which forms part of the Immoveable Properties (VR), then such Infrastructure (VR) shall transfer to Harmony Moab with each respective Immoveable Property (VR) on the Transfer Date of each such Immoveable Properties (VR) and Harmony Moab shall, free of rental cost, have full and unfettered rights, subject to the terms and conditions set out in this clause 29.3, and be entitled to use and occupy such Infrastructure (VR) from the Closing Date until the Transfer Date of each of the respective Immoveable Properties (VR) (both dates inclusive) (the "Infrastructure Period (VR)"); or
|
29.3.4.2.
|
does not accede to immoveable property which forms part of the Immoveable Properties (VR), then AngloGold shall on the Closing Date deliver such Infrastructure (VR) to Harmony Moab by such mode of actual or constructive delivery as shall be appropriate in the circumstances, with the legal intent that legal title to all such Infrastructure (VR) shall pass by and upon such mode of delivery on the Closing Date. AngloGold shall sign and execute, upon receiving a written request from Harmony Moab, all documents as may be reasonably required to procure the delivery and transfer, and to the extent necessary or possible, the registration of the transfer, of such Infrastructure (VR) into the name of Harmony Moab.
|
29.3.5.
|
It is the intention of the Parties that the Transfer (VR) of each Immoveable Property (VR) takes place as soon as reasonably possible after the Closing Date. To give
|
29.3.5.1.
|
take all steps as may be necessary to apply to the relevant local authority for rates clearance figures in respect of each of the Immoveable Properties (VR) (the "Rates Clearance Figures (VR)"); and
|
29.3.5.2.
|
prepare all documents necessary for lodgement of the Transfers (VR) in the relevant Deeds Registry as soon as reasonably possible after the Closing Date.
|
29.3.6.
|
The Parties undertake that they shall do all such things as may be necessary to give effect to the intention of the Parties as set out in clause 29.3.5, including but not limited to providing and signing the relevant documentation to authorise the Conveyancer to apply to the relevant local authority for the Rates Clearance Figures (VR) and providing such documentation to the Conveyancer which is necessary to prepare all documents to give effect to the Transfers (VR). All costs associated with the applications for Rates Clearance Figures (VR) shall be for the account of Harmony Moab.
|
29.3.7.
|
On the Closing Date and against payment of the Cash Portion (VR) in terms of clause 34.2.2:
|
29.3.7.1.
|
and to the extent that it has not already done so, AngloGold shall hand over to the Conveyancer all the original title deeds in its possession or under its control in respect of the Immoveable Properties (VR) alternatively, the particulars of title deeds that have been permanently filed at the Deeds Registry, in respect of the Immoveable Properties (VR), alternatively signed applications for the issue of substituting copies of all lost deeds, and all other documentation, as requested by the Conveyancer, to give effect to the provisions of this clause 29.3; and
|
29.3.7.2.
|
the Parties shall each nominate 2 (two) or more appropriate representatives employed by AngloGold and Harmony Moab (or any of its Affiliates) respectively (the "Authorised Representatives (VR)") to act on their behalf to complete and/or sign all documents necessary to effect the Transfers (VR) and the execution of the Kopanang Gold Plant Servitude and notarial deeds of cession and assignment of the Servitudes (VR) and registration of Kopanang Gold Plant Servitude
|
29.3.7.2.1.
|
in the case of AngloGold, Lizelle Marwick or Ryan Webb; and
|
29.3.7.2.2.
|
in the case of Harmony Moab, Neil Terblanche or Phillip Tobias.
|
29.3.8.
|
AngloGold shall, on request by the Conveyancer, pay in full the relevant Rates Clearance Figures (VR) in respect of the period up to and including the Closing Date, in order for a rates clearance certificate to be issued to the Conveyancer, in respect of each of the Immoveable Properties (VR) as well as the Infrastructure (VR) (if necessary), in terms of section 118 of the Local Government: Municipal Systems Act, No. 32 of 2000 (the "Rates Clearance Certificate (VR)"). AngloGold undertakes to Harmony Moab that when obtaining the Rates Clearance Figures (VR) for the period up to and including the Closing Date, from the relevant local authority for purposes of the Transfer, it shall effect payment of the full debt due (in respect of the aforesaid period) to the relevant local authority as at such date and shall not limit this to the 2 (two) years preceding the issue of the relevant Rates Clearance Certificate (VR).
|
29.3.9.
|
Harmony Moab shall, on request by the Conveyancer, pay the relevant Rates Clearance Figures (VR) that relate to the period after the Closing Date in order for the Rates Clearance Certificates (VR) to be issued to the Conveyancer.
|
29.3.10.
|
Harmony Moab shall, subject to AngloGold providing Harmony Moab with such documentation evidencing amounts that may be due and payable by Harmony Moab in respect of the Rates Clearance Figures (VR) paid by AngloGold, refund AngloGold in respect of that part of any payment made by AngloGold to the local authority that relates to the period between the Closing Date and the relevant Transfer Date, and only in relation to the period after the relevant Transfer Date to the extent that Harmony Moab is credited with such advance payments by the relevant local authority concerned and such amounts are not refunded by the relevant local authority concerned to AngloGold. AngloGold shall, subject to Harmony Moab providing AngloGold with such documentation evidencing amounts that may be due and payable by Harmony Moab in respect of the Rates Clearance Figures (VR) paid by Harmony Moab, shall refund Harmony Moab in respect of that part of any payment made by Harmony Moab in respect of the Rates Clearance Figures (VR) that relates to the period between the Closing Date and the relevant Transfer Date, to the extent that, after the relevant Transfer Date, AngloGold is refunded such amounts by the relevant local authority and such amounts are actually received by AngloGold.
|
29.3.11.
|
Harmony Moab shall, on written request by AngloGold, refund AngloGold for any and all deposits made by AngloGold in relation to the Immoveable Properties (VR) and/or the Infrastructure (VR) to the extent that Harmony Moab is credited with and has received such deposits by the relevant local authority concerned and such amounts are not refunded by the relevant local authority concerned to AngloGold.
|
29.3.12.
|
AngloGold undertakes to Harmony Moab that it shall, at its cost, do all such things as may be necessary (including providing relevant documentation for the Transfer (VR)) to obtain all consents and/or approval, as registered owner of the Immoveable Properties (VR), that are required to give effect to the Transfers (VR) contemplated in this clause 29.3, including (without limitation), procuring the consent and/or approval of the relevant local authority or any third party to the Transfers (VR).
|
29.3.13.
|
The Parties undertake in favour of each other that:
|
29.3.13.1.
|
the Parties shall procure that 1 (one) of their Authorised Representatives (VR) signs all documents required to give effect to the Transfer (VR) without delay and to provide all documents and information and do all things necessary in order to effect the Transfer (VR); and
|
29.3.13.2.
|
each Party shall take all steps, pay all amounts and do and procure the doing of all such things as are reasonable in the circumstance so
|
29.3.14.
|
All costs, taxes, fees and disbursements (including transfer duty and VAT, if any) incurred to effect the transfer of the Immoveable Properties (VR) and Infrastructure (VR) to Harmony Moab shall be paid by Harmony Moab within 7 (seven) calendar days after being requested to do so by the Conveyancer in writing and on receipt of a VAT invoice from the Conveyancers.
|
29.3.15.
|
Subject to the Warranties, the Parties agree that the Immoveable Properties (VR) and Infrastructure (VR) are sold to the extent as they now lie, voetstoots, subject to all conditions, servitudes, Surface Right Permits (VR) and any Encumbrances mentioned or referred to in the current and/or prior title deeds of the Immoveable Properties (VR) and any town planning scheme applicable thereto and further, without limitation, subject to –
|
29.3.15.1.
|
all rights that Harmony Moab or Harmony already have to, in respect of or affecting the Immovable Properties (VR), whether pursuant to the Harmony Sale Agreement or otherwise;
|
29.3.15.2.
|
the subdivision and transfer to SANRAL of the SANRAL Portions (VR) for purposes of the national road as more fully dealt with in clause 29.3.20 hereof;
|
29.3.15.3.
|
the subdivision and transfer to the North West Tourism Board of the Hotel School Property as more fully dealt with in clause 29.3.22 hereof;
|
29.3.15.4.
|
the subdivision and transfer to Traxtion of the Traxtion Railway Workshop as more fully dealt with in clause 29.3.23 hereof;
|
29.3.15.5.
|
the execution of the notarial deed of servitude and registration of the Traxtion Rail Link Servitude as more fully dealt with in clause 29.3.24 hereof.
|
29.3.15.6.
|
the execution of the notarial deeds of servitude and registration of the Harmony Servitudes as more fully dealt with in clause 29.3.20 hereof.
|
29.3.16.
|
The Parties record that the Infrastructure (VR) was erected for mining purposes pursuant to surface right permits and/or mining rights granted to AngloGold and that there are no approved building plans or electricity compliance certificates in terms of the Electrical Installation Regulations promulgated under the Occupational Health and Safety Act No. 85 of 1993 in respect thereof.
|
29.3.17.
|
AngloGold shall be obliged to procure the issue of a valid and up to date certificate of compliance in respect of each of the freehold residential properties included in the Immoveable Properties (VR) referred to in Annexure Pas contemplated in terms of the Electrical Installation Regulations 2009 promulgated under the Occupational Health and Safety Act No. 85 of 1993, (the "Compliance Certificate (VR)") (to the extent that AngloGold is not already in possession of a valid Compliance Certificate (VR) which is less than 2 (two) years old)) and deliver the valid and up to date Compliance Certificates (VR) for each such freehold residential property to Harmony Moab on or before the Closing Date (and, to the extent not delivered on the Closing Date, as soon as reasonably possible after the Closing Date but before the respective Transfer Date). AngloGold shall be liable for the cost of procuring the issue of the said Compliance Certificates (VR) (to the extent that it is necessary to procure the issue of an updated Compliance Certificate (VR)), including without limitation the cost of any necessary electrical work.
|
29.3.18.
|
In relation to the Immoveable Property Period (VR), Harmony Moab shall, without limitation, be liable for:
|
29.3.18.1.
|
all costs of water, electricity, gas, refuse removal, sewage and any other services provided in respect of: (a) the Immoveable Properties (VR), for the Immoveable Property Period (VR); and (b) Infrastructure (VR), for the Infrastructure Period (VR), (including any deposits payable in connection therewith);
|
29.3.18.2.
|
all costs in relation to the maintenance and upkeep of: (a) the Infrastructure (VR), for the Infrastructure Period (VR); and (b) all other improvements and structures on the Immoveable Properties (VR), for the Immoveable Properties Period (VR), to the extent that such maintenance and upkeep is required by Harmony Moab; and
|
29.3.18.3.
|
all rates and taxes and other imposts levied by any local authority in respect of the: (a) Immoveable Properties (VR) for the Immoveable Property Period (VR); and (b) Infrastructure (VR), for the Infrastructure Period (VR),
|
29.3.19.
|
During the Immovable Property Period (VR), Harmony Moab shall be responsible for taking out any insurance it requires in relation to the Immoveable Properties (VR) or the Infrastructure (VR) with effect from the Closing Date.
|
29.3.20.
|
Harmony Servitudes
|
29.3.20.1.
|
The Parties record that AngloGold has pursuant to the Harmony Sale Agreement granted to Harmony Moab the following servitudes (the "Harmony Servitudes"):
|
29.3.20.1.1.
|
a perpetual right of use and access servitude for core yard purposes over Portion 200 of the farm Nooitgedacht 434 IP on the terms and conditions set out in the draft deed of servitude with draft servitude diagram, filed under folder 1.3.9.6.2.0.4 in the Data Room;
|
29.3.20.1.2.
|
a perpetual right of use and access servitude for transport yard purposes over RE Portion 3 of the farm Vaalkop 439 IP on the terms and conditions set out in the draft deed of servitude with draft servitude diagram, filed under folder 1.3.9.6.2.0.8 in the Data Room;
|
29.3.20.1.3.
|
a perpetual right of use and access servitude for mine garage purposes over RE Portion 3 of the farm Vaalkop 439 IP on the terms and conditions set out in the draft deed of servitude with draft servitude diagram, filed under folder 1.3.9.6.2.0.5 in the Data Room;
|
29.3.20.1.4.
|
a perpetual right of use and access servitude for waste disposal site purposes over RE Portion 3 of the farm Vaalkop 439 IP and RE Portion 4 of the farm Modderfontein 440 IP on the terms and conditions set out in the draft deed of servitude with draft servitude diagram, filed under folder 1.3.9.6.2.0.6 in the Data Room; and
|
29.3.20.1.5.
|
a perpetual right of use and access servitude for mining purposes over RE Portion 4 of the farm Modderfontein 440 IP on the terms and conditions set out in the draft deed of servitude with draft servitude
|
29.3.20.2.
|
It is recorded that:
|
29.3.20.2.1.
|
the Harmony Servitudes are awaiting registration in the Deeds Registry; and
|
29.3.20.2.2.
|
upon registration of transfer of the relevant properties set out in clause 29.3.20.1.1 to 29.3.20.1.5 which are included in the Immovable Properties (VR), in the name of Harmony Moab, the Harmony Servitudes will lapse by merger.
|
29.3.20.3.
|
The Parties agree that, whilst the Harmony Servitudes should be registered without unreasonable delay, in the event that any of the Harmony Servitudes fail to be registered before the registration of transfer in the name of Harmony Moab of the relevant properties reflected in clauses 29.3.20.1.1 to 29.3.20.1.5, it will not be possible, nor feasible, to proceed with the registration of the Harmony Servitudes as the aforesaid properties will be registered in the name of Harmony Moab pursuant to this Agreement.
|
29.3.21.
|
SANRAL Portions (VR):
|
29.3.21.1.
|
AngloGold concluded agreements with SANRAL to transfer at no consideration to SANRAL the following subdivided portions on which the national road is located:
|
29.3.21.1.1.
|
Portion 224 (a portion of Portion 39) of the farm Nooitgedacht 434 IP;
|
29.3.21.1.2.
|
Portion 226 (a portion of Portion 41) of the farm Nooitgedacht 434 IP;
|
29.3.21.1.3.
|
Portion 227 (a portion of Portion 42) of the farm Nooitgedacht 434 IP;
|
29.3.21.1.4.
|
Portion 228 (a portion of Portion 40) of the farm Nooitgedacht 434 IP; and
|
29.3.21.1.5.
|
Portion 229 (a portion of Portion 216) of the farm Nooitgedacht 434 IP;
|
29.3.21.2.
|
Harmony Moab acquires the Remainder of Portion 39, 41, 42, 40 and Portion 216 of the farm Nooitgedacht 434 IP, which are included in the Immoveable Properties (VR), subject to AngloGold’s agreement with SANRAL in relation to the SANRAL Portions (VR), the subdivisions to create the SANRAL Portions (VR) and the subsequent registration of transfer by AngloGold of the SANRAL Portions (VR) into the name of SANRAL. The Parties agree that registration of transfer of the SANRAL Portions (VR) to SANRAL shall be registered before or simultaneously with the registration of transfer in the name of Harmony Moab of Remainder of the farm Nooitgedacht 434 IP as contemplated in this clause 29.3 and that all costs and disbursements associated with the subdivisions and transfers of the SANRAL Portions (VR) to SANRAL shall be borne by AngloGold or SANRAL as agreed between them.
|
29.3.22.
|
North West Tourism Board:
|
29.3.22.1.
|
AngloGold concluded a deed of donation with the North West Tourism Board and the Provincial Government: North West Province Department: Tourism, filed under folder 1.3.9.11.0.1 in the Data Room (the "Hotel School Deed of Donation"), in terms whereof AngloGold, together with other property, donated to the North West Tourism Board:
|
29.3.22.1.1.
|
Portion 2 of the Remaining Extent of Erf 1290 Orkney Township, Registration Division IP;
|
29.3.22.1.2.
|
Portion 3 of Erf 2 Orkney Township, Registration Division IP; and
|
29.3.22.1.3.
|
Portion 105 (a portion of Portion 2) of Erf 2 Orkney Township, Registration Division IP as more fully reflected on subdivision diagram SG No 38/2019 hereto filed under folder 1.3.9.11.0.1 in the Data Room,
|
29.3.22.2.
|
Harmony Moab acquires the Remaining Extent of Erf 1290 Orkney Township, Portion 3 of Erf 2 Orkney Township and Portion 2 of Erf 2 Orkney Township, which are included in the Immoveable Properties (VR), subject to the disposal of the Hotel School Properties to the North West Tourism Board and the obligation to subdivide the
|
29.3.22.3.
|
With effect from the Closing Date AngloGold cedes, assigns and delegates to Harmony Moab all of its rights, title and interests in and to and all prospective obligations in respect of the Hotel School Deed of Donation, and Harmony Moab hereby accepts such assignment, cession and delegation, to the extent that: (a) the other parties to the Hotel School Deed of Donation consent thereto; or (b) the consents of the other parties to the Hotel School Deed of Donation are not required. AngloGold undertakes to use all reasonable endeavours to procure the assignment of the Hotel School Deed of Donation, and the related cession and delegation of rights, title, interests and obligations, to Harmony Moab as aforesaid.
|
29.3.22.4.
|
The Parties:
|
29.3.22.4.1.
|
record that the Provincial Government: North West Province Department: Tourism has at its cost obtained the required consents to subdivision and approved subdivisional diagrams;
|
29.3.22.4.2.
|
record that the Provincial Government: North West Province Department: Tourism shall be liable for all costs relative to the subdivision and registration of transfer of the Hotel School Properties in the name of the North West Tourism Board, all arrear rates, municipal water and electricity accounts and all sums required to obtain the relevant rates clearance certificates from the local authority;
|
29.3.22.4.3.
|
record that registration of transfer of the Hotel School Properties will be effected as soon as practicable after the North West Tourism Board (as assisted by the North West Province Department of Tourism) at their sole cost: (a) have secured the direct supply by relevant local municipality of all external bulk services, including water, electricity and sewer to the Hotel School Properties; (b) have secured the required municipal connections of all services to the Hotel School Properties; and (c) installed or arranged
|
29.3.22.4.4.
|
agree that Harmony Moab shall, to the extent that the registration of the Hotel School Properties has not occurred prior to the Closing Date, effect registration of transfer of the Hotel School Properties in the name of the North West Tourism Board after or simultaneously with the registration of transfer in the name of Harmony Moab of Erf 1290 Orkney Township, Portion 3 of Erf 2 Orkney Township and Portion 2 of Erf 2 Orkney Township.
|
29.3.23.
|
Traxtion Railway Workshop:
|
29.3.23.1.
|
AngloGold concluded a sale agreement with Traxtion on or about 27 November 2018 (the "Traxtion Agreement"), filed under folder 1.3.12.4.5 in the Data Room, in terms of which, inter alia, AngloGold sold a portion of the Remaining Extent of Portion 3 of the farm Vaalkop 439 IP, which is still to be subdivided, as depicted on the sketch plan annexed to the Traxtion Agreement (the "Traxtion Railway Workshop Property").
|
29.3.23.2.
|
Harmony Moab acquires Remaining Extent of Portion 3 of the farm Vaalkop 439 IP, which is included in the Immoveable Properties (VR), subject to the disposal thereof to Traxtion and the obligation to subdivide it to create the Traxtion Railway Workshop Property.
|
29.3.23.3.
|
With effect from the Closing Date AngloGold cedes, assigns and delegates to Harmony Moab all of its rights, title and interests in and to and all prospective obligations in respect of the Traxtion Agreement, and Harmony Moab hereby accepts such assignment, cession and delegation, to the extent that: (a) the other parties to the Traxtion Agreement consent thereto; or (b) the consents of the other parties to the Traxtion Agreement are not required. AngloGold undertakes to use all reasonable endeavours to procure the assignment of the Traxtion Agreement, and the related cession and delegation of rights, title, interests and obligations, to Harmony Moab as aforesaid.
|
29.3.23.4.
|
The Parties:
|
29.3.23.4.1.
|
record that Traxtion has already been placed in occupation of the Traxtion Railway Workshop Property;
|
29.3.23.4.2.
|
record that registration of transfer of the Traxtion Railway Workshop Property in the name of Traxtion will be effected as soon as practicable after the approval by the local authority of the subdivision, the fulfilment of all conditions of subdivision and the approval by the Surveyor General of the subdivision diagram;
|
29.3.23.4.3.
|
agree that registration of transfer of the Traxtion Railway Workshop Property shall be registered simultaneously with or after the registration of transfer in the name of Harmony Moab of the remainder of the Remaining Extent of Portion 3 of the farm Vaalkop 439 IP; and
|
29.3.23.4.4.
|
if the local authority does not approve of the aforesaid subdivision, Traxtion is entitled to conclude a long term lease in respect of the Traxtion Railway Workshop Property.
|
29.3.24.
|
Traxtion Rail Link Servitude:
|
29.3.24.1.
|
AngloGold has, by virtue of the Traxtion Agreement referred to in clause 29.3.23.1, granted to Traxtion a perpetual right of way, use and access servitude not exceeding 15 (fifteen) metres in width, for purposes of a railway line along the existing location of the railway line (the "Traxtion Rail Link Servitude") over:
|
29.3.24.1.1.
|
Portion 200 of the farm Nooitgedacht 434, Registration Division IP;
|
29.3.24.1.2.
|
Remaining Extent of Portion 1 of the farm Witkop 438, Registration Division IP;
|
29.3.24.1.3.
|
Remaining Extent of Portion 2 of the farm Witkop 438, Registration Division IP;
|
29.3.24.1.4.
|
Remaining Extent of Portion 4 (a portion of Portion 1) of the farm Witkop 438, Registration Division IP;
|
29.3.24.1.5.
|
Remaining Extent of the farm Vaalkop 439, Registration Division IP;
|
29.3.24.1.6.
|
Remaining Extent of Portion 3 of the farm Vaalkop 439, Registration Division IP; and
|
29.3.24.1.7.
|
Remaining Extent of Portion 4 of the farm Modderfontein 440, Registration Division IP,
|
29.3.24.2.
|
Harmony Moab shall take transfer of the Traxtion Rail Link Servitude Properties, which are included in Immovable Properties (VR), subject to the grant of the Traxtion Rail Link Servitude, which servitude is still to be registered in the Deeds Registry. The Parties agree that registration of the Traxtion Rail Link Servitude shall be registered before or simultaneously with the registration of transfer in the name of Harmony Moab of the Traxtion Rail Link Servitude Properties.
|
29.3.25.
|
Municipal Valuations, Objections and Appeals
|
29.3.25.1.
|
In the event that the City of Matlosana Local Municipality ("Matlosana Municipality") publishes a general municipal valuation roll, and thereafter causes and publishes supplementary valuations, in which new municipal values may be accorded to the Immoveable Properties (VR), Surface Right Permits (VR) and/or the Infrastructure (VR) (all such new municipal values are hereinafter referred to as the "Municipal New Values (VR)") AngloGold in respect of Municipal New Values (VR) accorded before Closing Date may lodge in terms of section 50 of the Rates Act objections against the Municipal New Values (VR) (the "Municipal Objections (VR)") and may lodge an appeal, in terms of section 54(1)(a) of the Rates Act, to the valuation appeal board against any decision of the municipal valuer regarding the Municipal Objections (VR) (the "Municipal Appeals (VR)").
|
29.3.25.2.
|
With effect from the Closing Date (including, for the avoidance of doubt, any period on and after the Transfer (VR)), in respect of all Municipal Objections (VR) and Municipal Appeals (VR), the following provisions shall apply:
|
29.3.25.2.1.
|
Harmony Moab shall, from the Closing Date if in its sole discretion it so chooses (but without limiting the rights of AngloGold under clause 29.3.25.2.2),:
|
29.3.25.2.2.
|
notwithstanding the foregoing, and whilst AngloGold shall have no obligation to do so whatsoever, AngloGold shall be entitled (but not obliged), during the Immoveable Property Period (VR) to: (a) lodge all and any Municipal Objections (VR) and Municipal Appeals (VR) as it may, in its sole discretion, so choose; and (b) prosecute, administer and pursue (in all or any respects) all or any Municipal Objections (VR) and Municipal Appeals (VR) to finality, at its cost, until no further objections, reviews and appeals are possible.
|
29.3.25.3.
|
Harmony Moab hereby indemnifies AngloGold and holds AngloGold harmless against any and all claims, losses, damages, proceedings, liabilities and expenses (including, but not limited to legal costs and costs awarded against it), charges, compensation, awards, fines, actions and demands arising after the Closing Date in relation to any Municipal Objections (VR) and/or Municipal Appeals (VR) (and the processes relating thereto) contemplated in clause 29.3.25.2 which are incurred by AngloGold during the Immovable Property Period (VR) as a result of any action pursued after the Closing Date by Harmony Moab as contemplated in clause 29.3.25.2from the Closing Date, whether under power of attorney granted by AngloGold or in its own name.
|
29.3.25.4.
|
Without derogating from any other provisions in this Agreement, if and to the extent that any Municipal Objection (VR) or Municipal Appeal (VR) is successful and the result thereof is that any portion of any
|
29.4.
|
Servitudes (VR)
|
29.4.1.
|
With effect from the Closing Date, against payment of the Cash Portion (VR) in terms of clause 34.2.2, AngloGold hereby cedes, assigns and delegates, to the extent that it has not already occurred, to Harmony Moab all of its rights, title and interests in and to and all prospective obligations in respect of the Servitudes (VR), and the Purchaser hereby accepts such assignment, cession and delegation, to the extent that: (a) the other parties to such Servitudes (VR) consent thereto; or (b) the consents of the other parties to such Servitudes (VR) are not required. AngloGold undertakes to use all reasonable endeavours to procure the registration in the Deeds Registry of the notarial deeds of cession of servitude in respect of the Servitudes (VR), and the related cession and delegation of rights, title, interests and obligations, to Harmony Moab as aforesaid as well as registration thereof in the Deeds Registry.
|
29.4.2.
|
AngloGold concluded an agreement with Kopanang Gold Mining Company Proprietary Limited (the "VMR") to sell and transfer a portion of Portion 27 Pretorius Kraal 53 Viljoenskroon RD Free State (the "VMR Portions") to VMR subject to simultaneously granting to AngloGold rights of use and access to those parts of the VMR Portions, on which, amongst others, the Kopanang Gold Plant, the Consumable Stores (VR) and the Critical Spares (VR) are located.
|
29.4.3.
|
The Parties agree that AngloGold shall on registration of transfer the VMR Portions to VMR ensure that, as a condition of transfer of the VMR Portions to VMR, VMR simultaneously grants, and registers in the Deeds Registry, in favour of Harmony Moab a perpetual right of use and access servitude over the VMR Portions (the "Kopanang Gold Plant Servitude"). The Kopanang Gold Plant Servitude shall grant to Harmony Moab, its employees, agents, contractors and other invitees the
|
29.4.4.
|
It is the intention of the Parties that the registration of the Kopanang Gold Plant Servitude in the Deeds Registry takes place as soon as reasonably possible after the Closing Date. To give effect to this intention, the Parties agree that the Conveyancer is hereby authorised on behalf of both Parties to and shall immediately after the Signature Date prepare the notarial deed of servitude in respect of the Kopanang Gold Plant Servitude on terms and conditions consistent with this clause 29.4.12 and all other documents necessary for the lodgement of the Kopanang Gold Plant Servitude in the relevant Deeds Registry as soon as reasonably possible after the Closing Date.
|
29.4.5.
|
On the Closing Date, against payment of the Cash Portion (VR) in terms of clause 34.2.2, occupation and possession of the servitude areas of the Servitudes (VR) and the VMR Portions will be granted by AngloGold to Harmony Moab on the Closing Date, to the extent that it has not already occurred. From the Closing Date until the date of registration of the notarial deeds of cession and assignment in respect of each of the respective Servitudes (VR) and the Kopanang Gold Plant Servitude in the relevant Deeds Registry (both dates inclusive), all risk in and benefit attaching to such Servitudes (VR) and the VMR Portions shall vest in Harmony Moab and Harmony Moab shall, free of rental cost, have full and unfettered rights, subject to the terms and conditions of the respective servitudes as well as those terms and conditions set out in this clause 29.4 to use and occupy the servitude areas of the Servitudes (VR) and the VMR Portions.
|
29.4.6.
|
It is the intention of the Parties that the registration of the notarial deeds of cession and assignment of the Servitude (VR) in the relevant Deeds Registry takes place as soon as reasonably possible after the Closing Date. To give effect to this intention, the Parties agree that the Conveyancer is hereby authorised on behalf of all of the Parties to and shall during the Interim Period prepare all documents necessary for the notarial execution and lodgement of the notarial deeds of cession and assignment of the Servitude (VR) in the relevant Deeds Registry as soon as reasonably possible after the Closing Date.
|
29.4.7.
|
On the Closing Date and against payment of the Cash Portion (VR) in terms of clause 34.2.2:
|
29.4.7.1.
|
and to the extent that it has not already done so, AngloGold shall hand over to the Conveyancer all the original notarial deeds of servitude in respect of the Servitudes (VR) and the Kopanang Gold Plant Servitude, or signed applications for substituting copies in respect of all lost deeds and all other documentation, as requested by the Conveyancer, to give effect to the provisions of this clause 29.3.20; and
|
29.4.7.2.
|
AngloGold and Harmony shall each provide their respective Authorised Representatives (VR) with a power of attorney or delegation of authority to act on their behalf for purposes of completing and/or signing all documents necessary to effect the execution of the notarial deeds of cession and assignment of the Servitudes (VR) and the Kopanang Gold Plant Servitude and registration thereof in the relevant Deeds Registry.
|
29.4.8.
|
As soon as possible after the Closing Date, AngloGold shall furnish to
|
29.4.9.
|
VMR the required notices under its agreement with VMR in relation to the VMR Portions to procure the notarial execution and registration of the Kopanang Gold Plant Servitude.
|
29.4.10.
|
AngloGold and Harmony undertake in favour of each other that:
|
29.4.10.1.
|
each of them shall procure that 1 (one) of their Authorised Representatives (VR) signs all documents required to give effect to the cession and assignment of the Servitudes (VR) and the registration of the Kopanang Gold Plant Servitude without delay and to provide all documents and information and do all things necessary in order to effect the registration thereof in the relevant Deeds Registry; and
|
29.4.10.2.
|
each of them shall take all steps, pay all amounts and do and procure the doing of all such things as are reasonable in the circumstance so as to place the Conveyancer in a position to, and to ensure that the Conveyancer, effect registration of the notarial deeds of cession and assignment and the Kopanang Gold Plant Servitude in the relevant Deeds Registry without unnecessary delay or hindrance.
|
29.4.11.
|
All costs, taxes, fees and disbursements (including transfer duty and VAT, if any) incurred in order to effect the execution and registration of the notarial deeds of cession and assignment of the Servitudes (VR) and the Kopanang Gold Plant Servitude in the relevant Deeds Registry to Harmony Moab shall be paid by Harmony Moab within 7 (seven) calendar days after being requested to do so by the Conveyancer in writing and on receipt of a VAT invoice from the Conveyancers.
|
29.4.12.
|
In relation to the period from the Closing Date until the date of registration of the notarial deeds of cession and assignment for each of the respective Servitudes (VR) (both dates inclusive), Harmony Moab shall, without limitation, be liable for:
|
29.4.12.1.
|
all cost of compliance with the obligations of AngloGold in terms of the deeds of servitude of the Servitudes (VR);
|
29.4.12.2.
|
all costs of any services provided in respect of the Servitudes (VR); and
|
29.4.12.3.
|
all costs in relation to the maintenance and upkeep of the improvements and structures, to the extent that such maintenance and upkeep is required by Harmony Moab, on the servitude areas of the Servitudes (VR);
|
29.5.
|
Surface Right Permits (VR)
|
29.5.1.
|
On the Closing Date, against payment of the Cash Portion (VR) in terms of clause 34.2.2, to the extent that it has not already done so:
|
29.5.1.1.
|
AngloGold shall provide Harmony Moab with all documents, in its possession or under its control or, alternatively, signed applications for the issue of substituting guarantee copies of all lost Surface Right Permits (VR), necessary in order to procure the transfer of the Surface Right Permits (VR) from AngloGold to Harmony Moab; and
|
29.5.1.2.
|
the Parties will on the Closing Date each provide their respective Authorised Representatives (VR) with a power of attorney or delegation of authority to act on their behalf for purposes of completing and/or signing all documents necessary to effect the transfer of the Surface Right Permits (VR) in the Mining Titles Office.
|
29.5.2.
|
Within 30 (thirty) Business Days after the Closing Date or as soon as possible thereafter,, the Conveyancer shall on behalf of Harmony Moab, at Harmony Moab’s cost, lodge, or procure the lodgement of, all necessary documents to procure the registration of such transfers at the Mining Titles Office within the 90‑day period contemplated in item 9(3) to Schedule II of the MPRDA.
|
29.5.3.
|
AngloGold shall, upon written request by Harmony Moab, give all reasonable assistance and take all such action as may be reasonably required by Harmony Moab to give effect to the provisions of this clause 29.5.
|
29.5.4.
|
Occupation and possession of the Surface Right Permits (VR) areas will be provided to Harmony Moab on the Closing Date against payment of the Cash Portion (VR) in terms of clause 34.2.2. From the Closing Date until the date of registration of transfer of the Surface Right Permits (VR) in the Mining Titles Office (both dates inclusive), all risk in and benefit attaching to the Surface Right Permit (VR) areas and all and any structures erected pursuant thereto (inclusive of the Environmental Obligations (VR)), shall vest in Harmony Moab and Harmony Moab shall, free of rental cost, have full and unfettered rights, subject to the terms and conditions set out in this clause 29.5, to use and occupy the Surface Right Permit (VR) areas and the structures erected pursuant thereto.
|
29.5.5.
|
In relation to the period from the Closing Date until the date of registration of transfer of each of the Surface Right Permits (VR) in the Mining Titles Office (both dates inclusive), Harmony Moab shall, without limitation, be liable for–
|
29.5.5.1.
|
all costs of water, electricity, gas, refuse removal, sewage and any other services provided in respect of the buildings and infrastructure erected on the Surface Right Permit (VR) areas (including any deposits payable in connection therewith);
|
29.5.5.2.
|
all costs in relation to the maintenance and upkeep of the buildings and infrastructure erected on the Surface Right Permit (VR) areas; and
|
29.5.5.3.
|
all rates and taxes and other imposts levied by any Governmental Entity in respect of the Surface Right Permits (VR).
|
29.5.6.
|
With effect from the Closing Date Harmony Moab shall be responsible for taking out any insurance it requires in relation to the buildings and infrastructure erected on the Surface Right Permit (VR) areas.
|
29.5.7.
|
The Parties record that the buildings constructed within the Surface Right Permit (VR) areas were constructed for mining purposes and that there are no approved building plans or electricity compliance certificates in respect thereof.
|
29.6.
|
Consumable Stores (VR)
|
29.7.
|
Critical Spares (VR)
|
29.8.
|
Tailings Storage Facilities (VR)
|
29.8.1.
|
With effect from the Closing Date, against payment of the Cash Portion (VR) in terms of clause 34.2.2 to the extent that it has not already occurred, ownership and possession in respect of the Tailings Storage Facilities (VR) shall transfer to and be acquired by Harmony Moab and accordingly, AngloGold shall deliver the Tailings Storage Facilities (VR) to Harmony Moab by constructive delivery, by providing Harmony Moab with ongoing access and use of to the VR Storage Facilities Sites (including by providing Harmony Moab with a key, if any, to gain such access and continued use), and, thereby, ownership and possession of the Tailings Storage Facilities (VR) shall pass from AngloGold to Harmony Moab.
|
29.8.2.
|
The Parties hereby record and agree that the Tailings Storage Facilities (VR) constitute moveable property in that:
|
29.8.2.1.
|
the Tailings Storage Facilities (VR) are clearly identifiable;
|
29.8.2.2.
|
the Parties intention is to deliver the Tailings Storage Facilities (VR) from AngloGold to Harmony Moab by means of constructive delivery as contemplated in clause 29.8.1; and
|
29.8.2.3.
|
with effect from the Closing Date, Harmony Moab will be capable of exercising physical control over the Tailings Storage Facilities (VR) and has the intention to be the owner of the Tailings Storage Facilities (VR).
|
29.9.
|
MOD (VR)
|
29.9.1.
|
With effect from the Closing Date, against payment of the Cash Portion (VR) in terms of clause 34.2.2, ownership and possession in respect of the MOD (VR) shall transfer to and be acquired by Harmony Moab. AngloGold shall deliver the MOD (VR) to Harmony Moab by constructive delivery, by providing Harmony Moab with ongoing access to the MOD (VR) Sites (including by providing Harmony Moab with a key, if any, to gain such access), and, thereby, ownership and possession of the MOD (VR) shall pass from AngloGold to Harmony Moab.
|
29.9.2.
|
The Parties hereby record and agree that the MOD (VR) constitute moveable property in that:
|
29.9.2.1.
|
the MOD (VR) are clearly identifiable;
|
29.9.2.2.
|
the Parties intention is to deliver the MOD (VR) from AngloGold to Harmony Moab by means of constructive delivery as contemplated in clause 29.9.1; and
|
29.9.2.3.
|
with effect from the Closing Date, Harmony Moab will be capable of exercising physical control over the MOD (VR) and has the intention to be the owner of the MOD (VR).
|
29.10.
|
Gold In Lock Up (VR) and Gold In Process (VR)
|
29.10.1.
|
Ownership of all Gold In Lock Up (VR) and Gold In Process (VR) shall transfer to Harmony Moab on the Closing Date, against payment of the Cash Portion (VR) in terms of clause 34.2.2, by such mode of actual or constructive delivery as shall be appropriate in the circumstances, including by virtue of Harmony Moab taking occupation and possession of the Kopanang Gold Plant.
|
29.11.
|
Wrong Pockets
|
29.11.1.
|
If, after the Closing Date, any person makes any payment to: (a) AngloGold and if the payment is in respect of any amount due to the relevant Purchaser in terms of this Agreement relating to the VR Package, AngloGold shall, as soon as reasonably possible thereafter, notify the relevant Purchaser thereof and transfer an amount equal to such payment into a bank account to be nominated by the relevant Purchaser in writing; or (b) the relevant Purchaser and if the payment is in respect of any amount due to AngloGold in terms of this Agreement relating to the VR Package, then the relevant Purchaser shall, as soon as reasonably possible thereafter, notify AngloGold thereof and transfer an amount equal to such payment into a bank account to be nominated by AngloGold in writing.
|
29.11.2.
|
Without derogating from the generality of clause 29.11.1, if AngloGold: (a) has paid to any municipality (or other Governmental Entity) any amount prior to the Closing Date which pertains to a period after the Closing Date, then the relevant Purchaser shall reimburse AngloGold an amount limited to the pro rata portion for the period after the Closing Date; or (b) has overpaid any amount to any municipality (or other Governmental Entity) prior to the Closing Date, then the relevant Purchaser shall reimburse AngloGold an amount limited to any such excess payment, in each case on written demand by AngloGold.
|
29.12.
|
Remaining Delivery
|
29.12.1.
|
If any of the Parties at any time after the Closing Date, becomes aware that any Sale Asset (VR) (including any books, documents and records in relation to the VR Remaining Business), Sale Liability (VR) or Environmental Obligation (VR) has not been duly transferred to Harmony Moab for whatsoever reason, such Party shall be entitled (but not obliged) to notify the other Parties in writing accordingly and, upon delivery of any such written notice, the Parties undertake to use their respective reasonable endeavours to procure the due and valid transfer of the relevant Sale Asset (VR) (as well as all books, documents and records in relation thereto in the manner contemplated in clause 29.1.5), Sale Liability (VR) and/or Environmental Obligation (VR), to Harmony Moab, at no additional cost over and above what would have been payable by Harmony Moab in terms of this Agreement had the relevant Sale Asset (VR), Sale Liability (VR) and/or Environmental Obligation (VR) duly transferred to Harmony Moab on the Closing Date, as soon as reasonably practicable following the delivery of such written notice; provided that no such written notice may be delivered by any Party later than the date falling: (a) 365 (three hundred and sixty five) calendar days following the Closing Date in the case of Surface Right Permits (VR) and Servitudes (VR) held by AngloGold; and (b) 180 (one hundred and eighty) calendar days following the Closing Date
|
29.12.2.
|
If AngloGold at any time after the Closing Date becomes aware that any Sale Asset (VR), Sale Liability (VR), or Environmental Obligation (VR) has not been duly transferred to Harmony Moab for whatsoever reason, AngloGold shall be required to notify Harmony Moab promptly in writing accordingly within the aforementioned 365 (three hundred and sixty five) calendar day period, or 180 (one hundred and eighty) calendar day period, as the case may be, as referred to clause 29.12.1 above, to enable, amongst other things, Harmony Moab to exercise its rights under this clause 29.12.
|
29.12.3.
|
Notwithstanding anything to the contrary contained in this Agreement, if the Parties are unable to procure the due and valid transfer of the relevant Sale Asset (VR), the Sale Liabilities (VR) and/or Environmental Obligation (VR) to Harmony Moab, the Parties undertake to meet and negotiate in good faith to determine a mechanism in terms of which the risk and benefit in respect of the relevant Sale Asset (VR), Sale Liability (VR) and/or Environmental Obligation (VR) vests in Harmony Moab.
|
29.12.4.
|
Without limiting anything in clause 29.12.3, in the event that: (a) any Sale Asset (VR), Sale Liability (VR) and/or Environmental Obligation (VR) has not been duly transferred to Harmony Moab for whatsoever reason on and with effect from the Closing Date, notwithstanding the provisions of this Agreement; and (b) AngloGold intends to Dispose of such Sale Asset (VR), Sale Liability (VR) and/or Environmental Obligation (VR) to any third party at any time during the 365 (three hundred and sixty five) calendar day period, or 180 (one hundred and eighty) calendar day period, as the case may be, as referred to clause 29.12.1 above, AngloGold shall not be entitled to Dispose of the relevant Sale Asset (WW), Sale Liability (VR) and/or Environmental Obligation (VR) without obtaining Harmony Moab’s prior written consent and in such circumstances AngloGold shall be required to notify Harmony Moab promptly in writing of the intended Disposal.
|
29.12.5.
|
Notwithstanding anything to the contrary contained in this Agreement, if no written notice is delivered by Harmony Moab or AngloGold as contemplated in clause 29.12.1 during the aforementioned 180 (one hundred and eighty) or 365 (three hundred and sixty five) calendar day period (as the case may be) as contemplated in clause 29.12.1, the provisions of clause 29.12.1 will cease to apply and Harmony Moab shall have no claims against AngloGold as a result of any Sale Asset (VR), Sale Liability (VR) and/or Environmental Obligation (VR) that has not been duly transferred to Harmony Moab for whatsoever reason.
|
29.12.6.
|
Notwithstanding anything to the contrary contained in this Agreement, to the extent that the transfer and/or use of any Environmental Approvals (VR) in respect of the VR Remaining Business has not expressly been dealt with in this Agreement, AngloGold shall have no liability in respect of this Agreement as a result of the Purchaser requiring the transfer and/or use of such Environmental Approvals (VR) and such Environmental Approvals (VR) not being valid and subsisting in full force and effect or having been suspended, cancelled, revoked, varied or surrendered in favour of any third party.
|
30.
|
GOVERNMENTAL PERMITS
|
30.1.
|
As soon as reasonably possible (and no later than 20 (twenty) Business Days) following the Signature Date, Harmony Moab shall provide AngloGold with a detailed list of all Permits (VR) it requires to operate the VR Remaining Business and AngloGold will use all reasonable endeavours to assist Harmony Moab with preparing such list and provide copies of such Permits (VR) to Harmony Moab. Harmony Moab and AngloGold shall work together in good faith and use reasonable endeavours to determine and agree in writing as soon as reasonably possible (and no later than 20 (twenty) Business Days) after the Signature Date whether each such Permit (VR) is legally capable of being transferred (whether by endorsement or otherwise) from AngloGold to Harmony Moab and, therefore, constitutes as a: (a) "Transferable Permit (VR)" failing which it shall be deemed to constitute a (b) a "Non-Transferable Permit (VR)".
|
30.2.
|
Non-Transferable Permits (VR)
|
30.2.1.
|
Harmony Moab (or any agent appointed by it) shall, as soon as reasonably possible after the Signature Date, prepare with the assistance and cooperation of AngloGold (or any agent appointed by AngloGold), all submissions, applications and documents which are required to be furnished to the relevant Governmental Entities in order to obtain Substitutionary Permits (VR) with effect from or after the Closing Date for each of the Non-Transferable Permits (VR), in regard to which Harmony Moab may procure the assistance of any technical consultants where required at Harmony Moab's expense.
|
30.2.2.
|
Harmony Moab shall at all times permit AngloGold to review and comment on any written submissions, applications and documents (including the applications for the Substitutionary Permits (VR)) to be made to the relevant Governmental Entities in connection with obtaining the Substitutionary Permits (VR). Any approaches to, liaison with, or documents filed with, the relevant Governmental Entities in connection with the Non-Transferable Permits (VR) and/or the related Substitutionary Permits (VR) shall, to the extent permitted by Law, take place or be submitted or filed, as the case may be, only after consultation between the Parties, in a coordinated fashion and, as far as reasonably practicable, on a joint
|
30.2.3.
|
All filing fees payable in connection with the submission of the applications for the Substitutionary Permits (VR) shall be borne by Harmony Moab. Save for the aforegoing, each Party shall bear its own costs of and incidental to the preparation and submission of the applications, including the legal fees and costs of its advisors in the preparation of the applications and engagement with the relevant Governmental Entities.
|
30.2.4.
|
AngloGold undertakes to use its reasonable endeavours to provide all such documents and information (to the extent that it is in possession or control of same), sign all documents and to do everything that may be required from time to time to facilitate the compilation, lodgement, registration and implementation of the applications for the Substitutionary Permits (VR) to be obtained by Harmony Moab in relation to the Non-Transferable Permits (VR), as soon as reasonably required after the Signature Date.
|
30.2.5.
|
AngloGold and Harmony Moab shall use their reasonable endeavours to:
|
30.2.5.1.
|
procure that all written submissions, applications and documents to be made to the relevant Governmental Entities in connection with any Substitutionary Permits (VR) are submitted to the relevant Governmental Entity, as soon as possible after the Signature Date, but no later than 80 (eighty) Business Days after the Signature Date; and
|
30.2.5.2.
|
do everything reasonably required by the relevant Governmental Entities in order to enable the applications in respect of the Substitutionary Permits (VR) to be dealt with as soon as reasonably possible after the Signature Date, to the extent that it is within their power to do so.
|
30.2.6.
|
Harmony Moab agrees to keep AngloGold informed of the progress in relation to the applications for the Substitutionary Permits (VR) in relation to the VR Remaining Business and to provide updates as and when reasonably requested by AngloGold or its representatives.
|
30.2.7.
|
Upon any Substitutionary Permit (VR) being issued to Harmony Moab in relation to any of the Non-Transferable Permits (VR), Harmony Moab shall immediately
|
30.3.
|
Transferable Permits (VR)
|
30.3.1.
|
Harmony Moab (or any agent appointed by it) shall, as soon as reasonably possible after the Signature Date, prepare in consultation with AngloGold (or any agent appointed by it) all submissions, applications and documents (including any applications for any new Governmental Approvals) which are required to be furnished to the relevant Governmental Entities in order to transfer each Transferable Permit (VR) (and its associated rights) from AngloGold to Harmony Moab (including, if applicable, by way of endorsement) with effect from the Closing Date (such rights being hereby agreed to be transferred to Harmony Moab at no additional cost). In this regard, the Parties shall co-operate with each other and AngloGold shall timeously provide Harmony Moab with all documents and information (to the extent that it is in possession or control of same) as Harmony Moab may reasonably require. To the extent that any technical experts are reasonably required for purposes of transferring any of the Transferable Permits (VR) to Harmony Moab, such technical experts shall be appointed by Harmony Moab and any fees or costs charged by any such technical expert shall be paid by Harmony Moab.
|
30.3.2.
|
Harmony Moab shall at all times permit AngloGold to review and comment on any written submissions, applications and documents (including any applications for the cession, assignment and/or transfer of any rights held by AngloGold under any of the Transferable Permits (VR)) to be made to the relevant Governmental Entities in connection with transferring each Transferable Permit (VR) from AngloGold to Harmony Moab with effect from the Closing Date. Each of Harmony Moab and AngloGold agrees, and shall procure, that no submissions, applications and documents (including any applications for the cession, assignment and/or transfer of any rights held by AngloGold under any of the Transferable Permits (VR)) which are required to be furnished to any Governmental Entity in order to transfer each Transferable Permit (VR) from AngloGold to Harmony Moab with effect from the Closing Date as contemplated in clause 30.3.1 will be submitted to any Governmental Entity without both Harmony Moab and AngloGold first having approved of such filing, submission, application or document (as applicable), in writing, which approval shall not be unreasonably withheld or delayed.
|
30.3.3.
|
Any approaches to, liaison with, or documents filed with, the relevant Governmental Entities in connection with the Transferable Permits (VR) and the transfer thereof shall, to the extent permitted by Law, take place or be submitted or filed, as the
|
30.3.4.
|
AngloGold and Harmony Moab shall use their reasonable endeavours to procure that all written submissions, applications and documents (including any applications for the cession, assignment, endorsement and/or transfer of any rights held by AngloGold under any of the Transferable Permits (VR)) to be made to the relevant Governmental Entities in connection with transferring each Transferable Permit from AngloGold to Harmony Moab with effect from the Closing Date as contemplated in clause 30.3.1 are submitted to the relevant Governmental Entity within as soon as possible after the Signature Date, but no later than 80 (eighty) Business Days after the Signature Date.
|
30.3.5.
|
All filing fees payable in connection with the submission of the applications for transferring each Transferable Permit (VR) from AngloGold to Harmony Moab with effect from the Closing Date as contemplated in clause 30.3.1 shall be borne by Harmony Moab. Save for the aforegoing, each Party shall bear its own costs of and incidental to the preparation and submission of the applications, including the legal fees and costs of its advisors in the preparation of the applications and engagement with the relevant Governmental Entities.
|
30.3.6.
|
Each of AngloGold and Harmony Moab shall –
|
30.3.6.1.
|
provide all such documents and information (to the extent that it is in possession or control of same), sign all documents and do everything that may be required from time to time;
|
30.3.6.2.
|
use its reasonable endeavours and shall take all such steps and render all such assistance to each other as may be reasonably necessary from a process point of view; and
|
30.3.6.3.
|
do everything reasonably required by any relevant Governmental Entity from a process point of view,
|
30.4.
|
It is recorded and agreed that, in the event that: (a) any application for, or granting of, any Substitutionary Permit (VR) has not been granted or obtained (as applicable) prior to the Closing
|
30.4.1.
|
in the event that Harmony Moab has not obtained, prior to the Closing Date, a new water use licence/s to the extent required to operate the VR Remaining Assets, the 2nd (second) anniversary of the Closing Date; or
|
30.4.2.
|
in relation to the Refining Licence (VR), the 1st (first) anniversary of the Closing Date; or
|
30.4.3.
|
in every other case, the 1st (first) anniversary of the Closing Date,
|
30.5.
|
To the extent (and for the period) that Harmony Moab after the Closing Date operates the VR Remaining Business under any Permit (VR) held by AngloGold (as contemplated in clause 30.4), and provided Harmony Moab is given a copy of such Permit (VR) (together with all related amendments, rulings and conditions) in accordance with clause 30.1, Harmony Moab hereby undertakes that it shall, in all respects, adhere to and comply with the provisions of such Permit (VR) and any related Environmental Law (VR), and if Harmony Moab breaches such undertaking, and does not remedy such breach within: (a) any reasonable time period stipulated by AngloGold (or such later date as the Parties may agree in writing) in the case of a material breach; or (b) 30 (thirty) Business Days (or such later date as the Parties may agree in writing) in the case of a non-material breach, after AngloGold delivers written notice thereof, AngloGold shall be entitled to immediately withdraw the right granted to Harmony Moab in terms of clause 30.4 in relation to the relevant Permit (VR) without further action or liability to AngloGold and Harmony Moab hereby waives any and all other remedies, rights, claims and causes of action (including a claim for damages) which it may have against AngloGold in this regard.
|
30.6.
|
Harmony Moab hereby indemnifies and holds AngloGold harmless against all and any losses incurred or suffered by AngloGold by reason of, or arising directly or indirectly out of, or in connection with any breach of Harmony Moab’s undertaking in clause 30.5. Subject to the Warranties, it is recorded and agreed that Harmony Moab shall have no claim against AngloGold on the basis that the Permits (VR) issued to AngloGold in relation to the VR Remaining Business do not adequately cover the operations conducted by the VR Remaining Business or the operations to be conducted by Harmony Moab.
|
31.
|
EMPLOYEES (VR)
|
31.1.
|
It is hereby recorded and agreed that the Transferring Employees (VR) are dedicated to, primarily employed by or significantly connected to the VR Businesses. Accordingly, the Parties acknowledge that because the sale of the VR Remaining Business (and the indirect sale of the VR Equity Businesses, through the sale of the FUSA Equity) by AngloGold to Harmony Moab constitutes the transfer of the whole or part of a business, trade or undertaking as a going concern, as defined in section 197(1) of the LRA, the provisions of section 197 of the LRA apply to the Transferring Employees (VR).
|
31.2.
|
Remaining Employees (VR)
|
31.2.1.
|
Notwithstanding clause 31.2, AngloGold shall, prior to the Closing Date, utilise its reasonable endeavours to conclude Section 197(6) Agreements, with the Remaining Employees (VR) and in terms of which (inter alia) –
|
31.2.1.1.
|
Harmony Moab will not be substituted in the place of AngloGold in respect of the Remaining Employees' (VR) contracts of employment and the Remaining Employees' (VR) employment will not transfer to
|
31.2.1.2.
|
the Remaining Employees (VR) will remain employed by AngloGold after the Closing Date.
|
31.2.2.
|
If AngloGold is unable to conclude a Section 197(6) Agreement with any of the Remaining Employees (VR) prior to the Closing Date, then Harmony Moab shall automatically be substituted as the employer of those Remaining Employees (VR) on the Closing Date and the provisions of clause 31.2 below shall then apply thereto.
|
31.3.
|
Transferring Employees (VR)
|
31.3.1.
|
It is recorded and agreed that those Remaining Employees (VR) that concluded Section 197(6) Agreements will remain employees of AngloGold after the Closing Date (as contemplated in clause 13.2). Those Remaining Employees (VR) who do not conclude Section 197(6) Agreements prior to the Closing Date will then transfer with the Transferring Employees (VR) on the basis contemplated in this clause 31.3.1 and shall, for the purposes of this Agreement, be dealt with as "Transferring Employees (VR)").
|
31.3.2.
|
Harmony Moab and AngloGold therefore acknowledge and agree that with effect from the Closing Date –
|
31.3.2.1.
|
Harmony Moab shall be automatically substituted in the place of AngloGold in respect of the Transferring Employees (VR) contracts of employment in existence immediately prior to the Closing Date;
|
31.3.2.2.
|
all the rights and obligations between AngloGold and the Transferring Employees (VR) as at the Closing Date shall continue in force as if they had been rights and obligations between Harmony Moab and the Transferring Employees (VR);
|
31.3.2.3.
|
anything done before the transfer by AngloGold in relation to a Transferring Employee (VR), including the dismissal of any Transferring Employee (VR) or the commission of any unfair labour practice or act of unfair discrimination in respect of a Transferring Employee (VR), will be considered to have been done by or in relation to Harmony Moab;
|
31.3.2.4.
|
the transfer does not interrupt the Transferring Employees (VR) continuity of employment and the Transferring Employees (VR)
|
31.3.2.5.
|
Harmony Moab shall employ the Transferring Employees (VR) on terms and conditions of employment that are on the whole not less favourable to the Transferring Employees (VR) than those on which they were employed by AngloGold. If any Transferring Employee’s (VR) terms and conditions of employment are governed by a collective agreement, then Harmony Moab shall comply with the terms of that collective agreement; and
|
31.3.2.6.
|
no agreement as contemplated in section 197(6) of the LRA has been concluded in respect of the Transferring Employees (VR).
|
31.3.3.
|
Harmony Moab shall honour the terms of and be bound by all collective agreements to which AngloGold is, immediately before the Closing Date and in respect of the Transferring Employees (VR), bound in terms of section 23 of the LRA and/or in terms of section 32 of the LRA, unless a commissioner acting in terms of section 62 of the LRA decides otherwise.
|
31.3.4.
|
On or before the Closing Date, AngloGold shall prepare a schedule reflecting the number of years of service of the Transferring Employees (VR) as at the Closing Date, annual leave pay accrued to the Transferring Employees (VR) at the Closing Date, the estimated value of the Post-Retirement Medical Aid Promise (VR) of the Transferring Employees (VR) at the Closing Date, the hypothetical severance pay amounts that would have been payable to the Transferring Employees (VR) had they been retrenched by AngloGold on the Closing Date and any other amounts accrued to the Transferring Employees (VR) as at the Closing Date which have not been paid to the Transferring Employees (VR) by AngloGold on the Closing Date.
|
31.3.5.
|
The Parties agree that, pursuant to section 197(7)(b)(a) of the LRA, Harmony Moab shall be solely liable to the Transferring Employees (VR) for the payment of all and any amounts referred to in clause 31.3.4 (other than any Excluded Liabilities) with effect from the Closing Date and shall pay those amounts as and when they fall due for payment to the Transferring Employees (VR). For the sake of clarity, AngloGold has no obligation to pay any amount contemplated in clause 31.3.4 to the Transferring Employees (VR) or Harmony Moab in respect of any of the Transferring Employees (VR) (other than in respect of any Excluded Liabilities).
|
31.3.6.
|
AngloGold undertakes to discharge its obligations to the Transferring Employees (VR) up to the Closing Date. Without limiting the generality of the aforegoing,
|
31.3.7.
|
The Parties record that the Transferring Employees (VR) are in service and contributing members of either the MineWorkers Provident Fund, the Sentinel Retirement Fund or the Old Mutual Superfund Pension Fund.
|
31.3.8.
|
Subject to the rules of the Sentinel Retirement Fund and the MineWorkers Provident Fund, those Transferring Employees (VR) who are members of these funds shall remain members thereof on and after the Closing Date and Harmony Moab shall pay the required contributions to these funds on behalf of those Transferring Employees (VR).
|
31.3.9.
|
Subject to the rules of the Old Mutual Superfund Pension Fund, AngloGold shall use its reasonable endeavours to procure that the Transferring Employees (VR) who are members of the Old Mutual Superfund Pension Fund as at the Closing Date become members of a retirement fund registered in terms of the PFA nominated by Harmony Moab with effect from the Closing Date, and as soon as practically possible after the Closing Date. AngloGold undertakes to use its reasonable endeavours to procure that the Old Mutual Superfund Pension Fund permits the Transferring Employees (VR) to remain members of it pending the commencement of their membership in the fund nominated by Harmony Moab.
|
31.3.10.
|
AngloGold undertakes to cooperate with Harmony Moab and to do all such things and to sign and provide all such documents as may reasonably be required by Harmony Moab to: (a) ensure the continuous membership of the Transferring Employees (VR) who are members of the Sentinel Retirement Fund and the Mineworkers Provident Fund; and (b) to use its reasonable endeavours to procure, if applicable, the transfer after the Closing Date of all the Transferring Employees (VR) who are members of the Old Mutual Superfund Pension Fund to the retirement fund nominated by Harmony Moab and to ensure their continuous membership of the Old Mutual Superfund Pension Fund until such time as the relevant Transferring Employees (VR) are transferred to the retirement fund nominated by Harmony Moab, as the case may be.
|
31.3.11.
|
The Parties record that certain of the Transferring Employees (VR) are members of the Discovery Health Medical Scheme. Subject to the rules of the Discovery Health Medical Scheme, such Transferring Employees (VR) will remain members thereof on and after the Closing Date and Harmony Moab shall pay the required contributions to the Discovery Health Medical Scheme on behalf of the Transferring Employees (VR), if any.
|
31.3.12.
|
AngloGold and Harmony Moab shall, during the Interim Period, inform and consult with the Transferring Employees (VR) and/or their representative bodies (if any), as may be required in terms of the LRA.
|
31.3.13.
|
Harmony Moab indemnifies AngloGold and holds AngloGold harmless against any and all Claims, losses, damages, proceedings, liabilities and expenses (including, but not limited to reasonable legal costs), charges, compensation, awards, fines, actions and demands which AngloGold may suffer or incur arising out of or in connection with:
|
31.3.13.1.
|
any claim by any Transferring Employee (VR) (whether in contract or in delict or under statute for any remedy including, without limitation, for breach of contract, unfair dismissal, equal pay, unfair discrimination, deduction of wages, or of any other nature) as a result of the liability contemplated in clauses 31.3.5;
|
31.3.13.2.
|
anything done or omitted to be done by Harmony Moab in relation to the Transferring Employees (VR) employment on and as from the Closing Date; or
|
31.3.13.3.
|
a breach of any employment legislation after the Closing Date.
|
32.
|
ELECTRICITY SUPPLY
|
32.1.
|
Harmony Moab shall, as soon as reasonably possible after the Signature Date, use its reasonable endeavours to negotiate and enter into an electricity supply agreement with Eskom for the supply of electricity. AngloGold shall use reasonable endeavours in supporting Harmony Moab to conclude such electricity supply agreement with Eskom.
|
32.2.
|
It is recorded and agreed that, in the event that Harmony Moab has not entered into an electricity supply agreement with Eskom by the Closing Date, then, subject to the prior written consent of Eskom being obtained, for a period of 3 (three) months from the Closing Date or until such time as Harmony Moab has entered into an electricity supply agreement with Eskom, whichever is the earlier, AngloGold shall supply Harmony Moab, at cost, with such quantity of electricity as which Harmony Moab may reasonably require, provided that AngloGold shall not be required to provide Harmony Moab with any quantity in excess of that which it receives in respect of the
|
32.3.
|
AngloGold shall supply Harmony Moab with electricity on the same terms and conditions contained in the Eskom Agreements (the provisions of which apply to the supply of electricity by AngloGold to Harmony Moab mutatis mutandis) as well as on any additional terms and conditions imposed by Eskom. Harmony Moab hereby warrants, represents and undertakes that it is aware of the provisions of the Eskom Agreements and that it will, at all times in all respects: (a) adhere to and comply with the provisions of such Eskom Agreements; and (b) if AngloGold has breached a provision of the Eskom Agreements as a result of any action or omission of Harmony Moab, that it will rectify and cure such breach within: (i) a reasonable time period stipulated by AngloGold, or such later date as the Parties may agree in writing, in the case of a material breach; or (ii) 20 (twenty) Business Days of its occurrence, or such later date as the Parties may agree in writing, in the case of a non-material breach, failing which AngloGold will be entitled to immediately withdraw the right granted to Harmony Moab in terms of clause 14.2 above without further action or liability to AngloGold and Harmony Moab hereby waives any and all other remedies, rights, claims and causes of action (including a claim for damages) which it may have against AngloGold in this regard.
|
32.4.
|
Upon receipt by AngloGold of an invoice from Eskom pursuant to the Eskom Agreements in relation to the VR Businesses, AngloGold shall provide a valid tax invoice to Harmony Moab for all costs incurred by AngloGold in relation to the supply of electricity to Harmony Moab in relation to the VR Businesses, including without limitation, Harmony Moab's pro rata portion of the cost of electricity plus VAT at the applicable rate. Harmony Moab undertakes to settle such invoice within 7 (seven) Business Days upon receipt from AngloGold of such invoice. For the avoidance of doubt, it is recorded and agreed that AngloGold supply Harmony Moab with electricity under the Eskom Agreements at cost and AngloGold charge no additional margin for this service.
|
32.5.
|
Harmony Moab hereby indemnifies and holds AngloGold harmless against all and any losses incurred or suffered by AngloGold by reason of, or arising directly or indirectly out of, or in connection with the supply by AngloGold of electricity to Harmony Moab from the electricity AngloGold receives in terms of the Eskom Agreement in relation to the VR Businesses.
|
33.
|
WATER SUPPLY
|
33.1.
|
Harmony Moab shall, as soon as reasonably possible after the Signature Date, use its reasonable endeavours to negotiate and enter into a water supply agreement for the supply of water to Harmony Moab and for such water supply agreement to take effect on or as soon as reasonably possible after the Closing Date.
|
33.2.
|
It is recorded and agreed that, in the event that Harmony Moab has not entered into a water supply agreement by the Closing Date, then, subject to the prior written consent of the Water Supplier (VR) being obtained, for a period of 3 (three) months from the Closing Date or until such time as Harmony Moab has entered into a water supply agreement with the Water Supplier (VR), or any other water supplier, whichever is the earlier, AngloGold shall supply Harmony Moab, at cost, with such quantity of water as Harmony Moab may reasonably require, provided that AngloGold shall not be required to provide Harmony Moab with any quantity in excess of that which it receives in respect of the VR Businesses in the ordinary and regulator prior to the Closing Date, from the water AngloGold receives in terms of existing water supply agreements. AngloGold hereby undertakes to use all reasonable endeavours to obtain the consent of the Water Supplier (VR) in this regard as soon as reasonably possible after the Signature Date, provided that any terms and conditions imposed by such the Water Supplier (VR) shall be for Harmony Moab's account and cost, including the costs of water. For the avoidance of doubt, to the extent that the Water Supplier's (VR) consent is subject to the provision of an additional guarantee or the like, Harmony Moab shall be required to provide same.
|
33.3.
|
AngloGold shall supply Harmony Moab with water on the same terms and conditions contained in its existing water supply agreements with the Water Supplier (VR) (the provisions of which apply to the supply of electricity by AngloGold to Harmony Moab mutatis mutandis) as well as on any additional terms and conditions imposed by the Water Supplier (VR). Harmony Moab hereby warrants, represents and undertakes that it is aware of the provisions of the relevant existing water supply agreements with the Water Supplier (VR) and that it will, at all times in all respects: (a) adhere to and comply with the provisions of such agreements; and (b) if AngloGold has breached a provision of such agreements as a result of any action or omission of Harmony Moab, that it will rectify and cure such breach within: (i) a reasonable time period stipulated by AngloGold, or such later date as the Parties may agree in writing, in the case of a material breach; or (ii) 20 (twenty) Business Days of its occurrence, or such later date as the Parties may agree in writing, in the case of a non-material breach, failing which AngloGold will be entitled to immediately withdraw the right granted to Harmony Moab in terms of clause 33.2 above without further action or liability to AngloGold and Harmony Moab hereby waives any and all other remedies, rights, claims and causes of action (including a claim for damages) which it may have against AngloGold in this regard.
|
33.4.
|
Upon receipt by AngloGold of an invoice from the Water Supplier (VR), AngloGold shall provide a valid tax invoice to Harmony Moab for all costs incurred by AngloGold in relation to the supply of water to Harmony Moab in relation to the VR Businesses, including without limitation,
|
33.5.
|
Harmony Moab hereby indemnifies and holds AngloGold, harmless against all and any losses incurred or suffered by AngloGold by reason of, or arising directly or indirectly out of, or in connection with the supply by AngloGold of water to Harmony Moab from the water AngloGold receives in terms of its existing water supply agreements with the Water Supplier in relation to the VR Businesses.
|
34.
|
CONSIDERATION AND PAYMENT
|
34.1.
|
Purchase Price (VR)
|
34.1.1.
|
The aggregate purchase price (the "Purchase Price (VR)") payable by Harmony and Harmony Moab for the VR Package is: (a) an amount equal to the ZAR equivalent of US$20 000 000 (twenty million Dollars) (calculated in terms of the Spot Rate as at the date falling 2 (two) Business Days immediately prior to the Closing Date) (the "Cash Portion (VR)"); plus (b) an amount equal to the face value of the Sale Liabilities (VR) (or as such Sale Liabilities (VR) are otherwise accounted for in accordance with IFRS) (the "Sale Liability Portion (VR)"), which Purchase Price (VR) will be apportioned as follows:
|
34.1.1.1.
|
to the FUSA Sale Claims, an amount equal to the ZAR equivalent of US$1 (one Dollar) (calculated in terms of the Spot Rate as at the date falling 2 (two) Business Days immediately prior to the Closing Date);
|
34.1.1.2.
|
to the FUSA Sale Shares, an amount equal to the ZAR equivalent of US$1 (one Dollar) (calculated in terms of the Spot Rate as at the date falling 2 (two) Business Days immediately prior to the Closing Date); and
|
34.1.1.3.
|
to the VR Remaining Business, the Purchase Price (VR) less the aggregate of the amounts contemplated in clauses 34.1.1.1 and 34.1.1.2 (the "Remaining Purchase Price (VR)").
|
34.1.2.
|
No amount will be allocated to the unknown and non-quantifiable Sale Liabilities (VR) or for other rights acquired, or obligations assumed, by Harmony Moab under this Agreement.
|
34.2.
|
Discharge of the Purchase Price (VR)
|
34.2.1.
|
in respect of the Sale Liability Portion, Harmony Moab shall assume the Sale Liabilities (VR) in accordance with the provisions of clause 29.1.6. It is specifically recorded that in consideration for assuming the Sale Liabilities (VR) by Harmony Moab, AngloGold transfers an equal amount of Sale Assets (VR) to Harmony Moab; and
|
34.2.2.
|
in respect of the balance of the Purchase Price (VR), being an amount equal to the ZAR equivalent of the Cash Portion (VR), shall be paid in ZAR on the Closing Date, by electronic funds transfer of same day immediately available funds, free of any deductions or set-off whatsoever, into a ZAR denominated bank account in South Africa nominated in writing by AngloGold no later than 5 (five) Business Days prior to the Closing Date.
|
34.3.
|
DMRE Effective Valuation
|
34.3.1.
|
Harmony Moab and AngloGold acknowledge that, given the nature of the VR Remaining Business, the Director General will be required, pursuant to the provisions of section 37 of the Income Tax Act, to determine the values as at the Closing Date (such valuation, the "DG Valuation (VR)") for the mining property and capital assets (as defined in section 37 of the Income Tax Act) forming part of the VR Remaining Business (the "s37 Valuation Property (VR)") and that this process will take place after the Closing Date.
|
34.3.2.
|
The Parties agree and acknowledge that the valuation of the s37 Valuation Property (VR) and related allocation, in each case as reflected in Annexure BB, is as at the Closing Date. The Parties agree and acknowledge that the aforesaid values and allocations, as they relates to the s37 Valuation Property (VR), are for purposes of assisting the Parties to calculate any amount of Tax in the event that the DG Valuation (VR) is not finalised by the time that the Parties need to pay any amount of Tax following the Closing Date. The Parties acknowledge that these values will be updated to accord with the decision of the Independent Valuer.
|
34.3.3.
|
In order to assist with obtaining the DG Valuation (VR), Harmony Moab and AngloGold hereby agree to appoint, as soon as possible after the Signature Date, George Lennox, or, if George Lennox is not willing or is unable to accept the mandate, another suitably qualified independent valuer (agreed between Harmony Moab and AngloGold or failing such agreement, within 10 (ten) Business Days after Harmony Moab or AngloGold requests such agreement on written notice to
|
34.3.4.
|
Once the s37 Supporting Valuation (VR) and allocation is complete, and following the Closing Date, Harmony Moab and AngloGold shall apply to the Director General for the DG Valuation (VR) and will provide the s37 Supporting Valuation (VR) to the Director General. Harmony Moab and AngloGold undertake to use their reasonable endeavours to assist the Director General in this regard and shall make appropriate submissions to the effect that the effective value of the s37 Valuation Property is as determined by the Independent Valuer in terms of clause 34.3.3.
|
34.3.5.
|
The DG Valuation (VR) will be final and binding on Harmony Moab and AngloGold for the purposes of section 37 of the Income Tax Act. If the DG Valuation (VR) results in allocations which differ from those allocated in Annexure BB, the relevant amounts and percentages allocated in Annexure BB will be adjusted automatically to accord with those in the DG Valuation (VR), and Annexure BB updated accordingly.
|
34.3.6.
|
To the extent that applicable Law requires that: notice of the s37 Supporting Valuation (VR) and the DG Valuation (VR) must be provided to SARS; approval must be obtained from SARS or SARS must be consulted in relation to anything set out in this clause 34.3.6, then AngloGold and Harmony Moab shall comply with such requirement.
|
34.4.
|
Securities Transfer Tax
|
35.
|
VALUE ADDED TAX
|
35.1.
|
AngloGold and Harmony Moab agree that the VR Remaining Business is disposed of as a going concern and, for the purposes of section 11(1)(e) of the VAT Act, agree that:
|
35.1.1.
|
the VR Remaining Business constitutes, as at the Signature Date, and will constitute as at the Closing Date, an income-earning activity and will be transferred as such;
|
35.1.2.
|
the transfer of the VR Remaining Business constitutes the sale of an enterprise which is capable of separate operation;
|
35.1.3.
|
the assets which are necessary for carrying on such VR Remaining Business have been disposed of by AngloGold to Harmony Moab in terms of this Agreement; and
|
35.1.4.
|
the Purchase Price (VR) payable in respect of the VR Remaining Business as contemplated in clause 34.1.1.3 is inclusive of VAT at the rate of 0% (zero per cent).
|
35.2.
|
AngloGold and Harmony Moab each warrant that they will, at the Closing Date, be registered vendors under the VAT Act.
|
35.3.
|
If, notwithstanding the aforegoing or for any other reason, VAT is payable in respect of the VR Remaining Business or any of the assets sold in terms hereof at a rate exceeding 0% then the Purchase Price (VR) in respect of the VR Remaining Business (or any of the assets sold in terms hereof) shall be deemed to be exclusive of VAT and Harmony Moab shall, within 10 (ten) Business Days after receiving a written demand from AngloGold for payment, pay such VAT to AngloGold.
|
35.4.
|
AngloGold and Harmony Moab undertake to furnish all such information as the Commissioner for SARS may require in terms of section 9(15) of the Transfer Duty Act No. 40 of 1949 in order to ensure that the disposal of the Sale Assets (VR) in respect of the VR Remaining Business is exempt from transfer duty.
|
36.
|
MINERAL ROYALTY
|
36.1.
|
AngloGold and Harmony Moab agree that the VR Remaining Business is disposed of as a going concern for the purposes of section 9(1) of the Mineral and Petroleum Resources Royalty Act.
|
36.2.
|
AngloGold and Harmony Moab agree that they are each "extractors" and are registered for royalties tax in accordance with the Mineral and Petroleum Resources Royalty Act.
|
37.
|
INTERIM PERIOD
|
37.1.
|
AngloGold shall procure during the Interim Period: (a) that it shall, and shall procure that the VR Companies shall, carry on the VR Businesses in the ordinary and regular course of business
|
37.1.1.
|
continue to maintain the VR Businesses as a going concern, without materially altering the nature or scope of any such businesses;
|
37.1.2.
|
preserve ownership of those Sale Assets (VR) which it owns as at the Signature Date (other than Sale Assets (VR) Disposed of in the ordinary and regular course) and continue to maintain development and capital expenditure levels in the ordinary and regular course so as to maintain a level of development mineable ore reserves consistent with past practice, at all times in compliance with all material applicable Laws;
|
37.1.3.
|
procure that existing insurance policies in relation to the VR Businesses shall be maintained (without material adverse or prejudicial modification) in force at all times, and not do or allow to be done anything which would render such insurance void or voidable;
|
37.1.4.
|
preserve ownership of the Sale Assets (VR) that it owns as at the Signature Date and use reasonable endeavours to: (a) maintain the Sale Assets (VR) in accordance with reasonable standards, in working condition for their purpose (fair wear and tear excepted) as required in the ordinary and regular course of business; and (b) remedy any structural or other material deficiencies or failings in any of the Tailings Storage Facilities (VR) to the extent that such Tailings Storage Facilities (VR) are in breach of any applicable Law and the COP;
|
37.1.5.
|
continue to manage the VR Businesses in accordance with its business and trading policies and practices up to the Signature Date, except as may be necessary to comply with any changes in Law;
|
37.1.6.
|
pay all creditors and Taxes of the VR Businesses in the ordinary course of business;
|
37.1.7.
|
maintain and/or use its reasonable efforts to apply for, obtain, amend or renew (as applicable) any and all material Governmental Approvals which the VR Businesses are obliged to have in place from time to time (including without limitation, Permits (VR), Surface Right Permits (VR) and all Environmental Approvals (VR)) and act promptly to rectify any non-compliance with any applicable Laws;
|
37.1.8.
|
not create, or agree or permit to be created, any Encumbrance over the whole or any part of the VR Remaining Businesses or any of the Sale Assets (VR);
|
37.1.9.
|
not alter any of the constitutional documents of any of the VR Companies in a manner prejudicial to the Purchaser’s Group;
|
37.1.10.
|
incur or assume, or agree to incur or assume, any new or increased material Sale Liabilities (VR), other than in the ordinary and regular course of business;
|
37.1.11.
|
not alter any of the rights attaching to any of the FUSA Sale Equity;
|
37.1.12.
|
not alter the number of any of the authorised or issued shares of any of the VR Companies, or create any obligation (contingent or otherwise) to do so;
|
37.1.13.
|
not, in respect of the VR Companies, acquire or enter into any agreement to acquire (whether by one transaction or a series of transactions) the whole or a substantial or material part of the business, undertaking or assets of any other persons if and to the extent that such business, undertaking or asset would be material to the VR Companies;
|
37.1.14.
|
not Dispose of (or remove from the VR Region or any Immoveable Properties (VR), as applicable) or enter into any agreement to Dispose of (or remove from the VR Region or any Immoveable Properties (VR), as applicable) (whether by one transaction or by a series of transactions) any Sale Assets (VR) (other than, in relation to such Disposals, in the ordinary and regular course) or the whole or any substantial or material part of any of the VR Remaining Business;
|
37.1.15.
|
not incur or agree to incur any capital or operational expenditure other than in the normal and ordinary course of business of the VR Businesses in a manner consistent with past practice;
|
37.1.16.
|
not waive any material rights under any of the Contracts (VR);
|
37.1.17.
|
not enter into or commit to entering into any material transaction, agreement or arrangement in connection with the VR Businesses other than on arms' length terms and for full and proper consideration;
|
37.1.18.
|
(i) procure that each of the Transferring Employees (VR) transfers to Harmony Moab as at the Closing Date (other than in circumstances where such Transferring Employee (VR) resigns, or are dismissed with cause, during the Interim Period); and (ii) not terminate the employment of any Transferring Employees (VR) without cause, or otherwise change the terms of employment, remuneration or benefits of any of the Transferring Employees (VR);
|
37.1.19.
|
not enter into or agree to enter into any new death, retirement, profit-sharing, bonus, share option, share incentive or other scheme for the benefit of any of the Transferring Employees (VR) or make any amendment (including, but without limitation, any increase in the rates of contribution) to any such existing scheme;
|
37.1.20.
|
not clean any of the mills or replace any of the liners used in or relating to any Sale Assets (VR) or any of the VR Businesses other than in accordance with existing schedules in the ordinary and regular course of business;
|
37.1.21.
|
commence, compromise, discontinue, settle or agree to settle any Claim (other than routine debt collection) in connection with any Sale Assets (VR) or any of the Businesses;
|
37.1.22.
|
incur any new, additional or increased debt, borrowing, lending or other financing facilities or commitments (or similar arrangements) in whatsoever form, or relating to any of, the VR Companies, other than in accordance with the ordinary and regular course of business;
|
37.1.23.
|
not make any changes to the accounting policies and procedures of the VR Companies, unless required to do so under any applicable Laws or applicable accounting rules; and
|
37.1.24.
|
not declare, authorise, make or pay any dividend or other distribution (as such term is defined in the Companies Act) by any of the VR Companies, or reduce, purchase or redeem any share capital of any of the VR Companies.
|
37.2.
|
Clause 37.1 shall not apply in respect of and shall not operate so as to restrict or prevent:
|
37.2.1.
|
any act which relates to "Project Omega" as referred to in pages 16 and 18 of the management presentation provided to Harmony by AngloGold on or about 10 July 2019 and 25 October 2019;
|
37.2.2.
|
any act or omission or other matter as may be required to give effect to any provision of this Agreement or otherwise provided for in this Agreement;
|
37.2.3.
|
any action taken to comply with any order or obligation of any Governmental Entity;
|
37.2.4.
|
any act or matter listed in and/or ancillary to the matters listed in the business plan included in the Data Room under folders 1.3.1.1 and 1.3.1.2;
|
37.2.5.
|
any action taken to comply with AngloGold’s health, environmental or safety related legal obligations; or
|
37.2.6.
|
any other matter that is outside of the ordinary and regular course of business in respect of which the relevant Purchaser has given its prior written consent (such consent not to be unreasonably withheld or delayed), provided that prior to seeking any written consent from the relevant Purchaser, AngloGold shall obtain advice from South African legal counsel that the relevant action will not result in any Party acting in a manner which is contrary to Chapter 3 of the Competition Act,
|
37.3.
|
Nothing in this clause 37 will compel or be construed as compelling AngloGold to do anything, or refrain from doing anything, which AngloGold may be advised by its legal advisors constitutes any act or omission in contravention of any anti-trust or competition legislation and, to the extent that AngloGold’s legal advisors do so advise, such provision in this clause 37 will be deemed to be pro non scripto.
|
37.4.
|
During the Interim Period, and without limiting the generality of clause 37.1, AngloGold undertakes to and shall:
|
37.4.1.
|
provide Harmony promptly with monthly management accounts in respect of each of the VR Businesses, provided that, to the extent that any of these documents and information referred to in this clause 37.3 contains any competitively sensitive and/or legally privileged information, such information will be redacted prior to such documents and information being provided to Harmony and its authorised representatives;
|
37.4.2.
|
prepare (or cause to be prepared) and deliver to Harmony Moab as soon as possible following the Signature Date and no later than the Closing Date: (a) the audited financial statements of Chemwes as at and in respect of the financial year ended 31 December 2019; (b) the unaudited financial statements of MWS as at and in respect of the financial year ended 31 December 2019; and (c) the unaudited financial statements of FUSA as at and in respect of the financial year ended 31 Decemeber 2019.
|
37.5.
|
Contracts (VR)
|
37.5.1.
|
Within a period of, and not later than, 5 (five) Business Days after the Signature Date, AngloGold (to the extent not already provided) shall provide to Harmony Moab, in addition to the contracts listed in Annexure J, a detailed list and copies of all contracts concluded by AngloGold on or before the Signature Date which, in AngloGold's opinion (acting reasonably) are material to the VR Businesses (and any other contracts relating to the VR Businesses which AngloGold would prefer Harmony Moab to take assignment of) (the "Proposed Contracts (VR)"), including
|
37.5.1.1.
|
determine and agree in writing, in respect of each Proposed Contract (VR) contract to be provided to Harmony Moab in terms of clause 37.5.1, within a period of 40 (forty) Business Days following the later of: (a) the Signature Date; and (b) the date on which a copy of such contract is provided to Harmony Moab in terms of clause 37.5.1, whether Proposed Contract (VR) (and the rights and obligations contained therein) will: (i) be retained by AngloGold; (ii) be ceded, assigned and transferred to Harmony Moab with effect from the Closing Date; provided that (save for the Contracts (VR) listed in Annexure J) none of the Purchasers shall be required to accept any cession, assignment, delegation or transfer of any contract (or any rights or obligations relating thereto) unless it has expressly agreed in writing to such cession, assignment, delegation or transfer (as applicable); and
|
37.5.1.2.
|
implement the actions determined by: (a) Harmony Moab and AngloGold in accordance with clause 37.5.1.1; and (b) by Harmony Moab in accordance with clause 37.5.2 (including in such circumstances to procure the assignment, cession and delegation of such contracts to Harmony Moab with effect from the Closing Date, in which case the provisions of clause 29.1.1.1 shall apply), in each case as soon as reasonably possible after the Signature Date.
|
37.5.2.
|
Notwithstanding the aforegoing, in relation to any contracts which are material to the VR Businesses, Harmony Moab shall be entitled in its discretion, by notice in writing to AngloGold within 40 (forty) Business Days following the later of: (a) the Signature Date; and (b) the date on which the last of the copies of contracts to be provided to Harmony Moab in terms of clause 37.5.1 has been received by Harmony Moab, to determine whether such material contracts will be ceded, assigned and delegated to Harmony Moab with effect from the Closing Date.
|
37.5.3.
|
AngloGold shall notify Harmony Moab, and provide Harmony Moab with a copy, of any new contract entered into by AngloGold during the Interim Period which
|
37.5.4.
|
Notwithstanding any provision in this clause 37.5, should any contract to which this clause 37.5 relates contain a confidentiality undertaking such that AngloGold is only entitled to disclose such contract to Harmony Moab following obtaining approval from any third party (a "Confidential Contract (VR)"), AngloGold will use reasonable endeavours to obtain all such approvals as soon as reasonably possible after the Signature Date.
|
37.6.
|
VR Environmental Authorisation Application
|
37.6.1.
|
At any time during the Interim Period, AngloGold shall co-operate and use its reasonable endeavours to assist Harmony to procure the appointment by MWS of an environmental assessment practitioner ("EAP") nominated in writing by Harmony and at Harmony’s cost to prepare the VR EA Application.
|
37.6.2.
|
AngloGold and Harmony acknowledge that, pursuant to clause 37.6.1, AngloGold shall co-operate and use its reasonable endeavours to procure that, at any time during the Interim Period, MWS allows the EAP to access the relevant sites and locations in order to prepare the VR EA Application for submission after the Closing Date.
|
37.6.3.
|
The Parties agree that neither AngloGold nor MWS is required to, nor shall (without Harmony Moab’s prior written consent), file the VR EA Application at any time prior to the Closing Date.
|
37.6.4.
|
Notwithstanding anything to the contrary in this clause 37.6above, AngloGold undertakes in consultation with Harmony to engage with the Chief Director: Mineral Regulation, Western Regions and, in consultation with Harmony, take all reasonable measures necessary to uplift or withdraw, prior to the Closing Date, the approval granted on 24 May 2018 by the Chief Director to AngloGold in respect of the Sale Assets (VR).
|
37.7.
|
Observer
|
37.7.1.
|
be entitled to conduct telephone discussions and/or hold meetings with the management of AngloGold in respect of the VR Businesses on a monthly basis; and
|
37.7.2.
|
be entitled, upon reasonable written request, to have reasonable access (during normal business hours) to, ‑
|
37.7.2.1.
|
and retain copies of, any and all documents and information relating to the VR Businesses and their affairs; provided that, in the event that the VR Transaction lapses due to the non-fulfilment of any Condition Precedent or is cancelled or terminated for any other reason whatsoever, Harmony shall destroy and/or erase or procure the destruction and/or erasing of all electronic and/or printed versions or copies of any information in its possession or control pursuant to this clause 19.6.2, and shall not retain any copies, extracts or other reproductions, in whole or in part, of such information;
|
37.7.2.2.
|
the premises and areas on which the VR Businesses are conducted, subject at all times to AngloGold policies and procedures; and
|
37.7.2.3.
|
the officers and senior employees of the VR Businesses,
|
37.8.
|
Integration Meetings
|
37.8.1.
|
Subject to all applicable Laws, Harmony shall be entitled to appoint 2 (two) appropriate representatives employed by Harmony ("Purchaser's Integration Representatives (VR)"), who each have the authority, right and power to act for and on Harmony's behalf in respect of all the matters contemplated under clauses 37.8.1 to 37.8.10 (both inclusive).
|
37.8.2.
|
AngloGold shall be entitled to appoint 2 (two) appropriate representatives employed by Harmony ("Seller's Integration Representatives (VR)") who each
|
37.8.3.
|
Harmony or AngloGold may change their respective representatives at any time and from time to time provided (a) it gives prior written notice to the other Party of such change and (b) such change is acceptable to the other Party (acting reasonably).
|
37.8.4.
|
During the Interim Period until the Closing Date or the earlier termination of this Agreement in accordance with its terms, the Purchaser’s Integration Representatives (VR) shall meet once each calendar month, or at any other time as reasonably requested by any Purchaser’s Integration Representative (VR) (on an exception only basis), (each an "Integration Meeting (VR)") with the Seller’s Integration Representatives (VR) (or other appropriate persons) at which meetings AngloGold and Harmony shall co-operate and work together in good faith, and provide the necessary resources, to agree, oversee and manage the preparation of an overall operational migration plan and timetable (with appropriate milestone deliverables) to enable the complete implementation of the overall integration, migration and transition of the VR Remaining Business to the relevant Purchasers, by no later than the Closing Date, limited to the following operational migration work streams (each an "Integration Work Stream (VR)"): operational finance; human resources and payroll (including administration); procurement and logistics (including warehousing); information technology (all systems, hardware and software); mining, metallurgy, reserves, resources and engineering (underground and surface); transport; financial and management accounting; taxation; legal and regulatory; electricity access and supply; water access and supply; communication; health, safety and medical; environmental; social and labour; and housing and accommodation, as well as any additional operational migration work streams AngloGold agrees to, acting reasonably.
|
37.8.5.
|
The first Integration Meeting (VR) shall be held within 14 (fourteen) calendar days following the Signature Date. The Parties hereby agree that no competitively sensitive information and/or legally privileged information will be shared with the Purchaser’s Integration Representatives (VR) at any Integration Meeting (VR).
|
37.8.6.
|
To the extent that Harmony requires AngloGold's assistance with the preparation and implementation of the operational migration plan and the Integration Work Streams (VR), AngloGold undertakes to use reasonable endeavours, at Harmony's cost, to provide any assistance reasonably requested by Harmony, provided that such assistance does not place any unreasonable resource constraints on AngloGold’s ability to run its business and operations during the Interim Period.
|
37.8.7.
|
To the extent that AngloGold incurs any costs in this regard, not relating to time spent, it will provide a valid tax invoice to Harmony for such costs plus VAT at the applicable rate. Harmony undertakes to settle such invoice within 30 (thirty) calendar days upon receipt from AngloGold of such invoice.
|
37.8.8.
|
Each request for an Integration Meeting (VR) will be accompanied by a clear and ascertainable agenda that will be delivered to AngloGold at least 10 (ten) Business Days prior to the relevant Integration Meeting (VR). For the avoidance of doubt, Harmony shall not be entitled to materially deviate from the agenda for each Integration Meeting (VR) once same has been delivered to AngloGold.
|
37.8.9.
|
The Purchaser’s Integration Representatives (VR) may from time to time ask the Seller's Integration Representatives (VR) questions in relation to, or request information from the Seller's Integration Representatives (VR) regarding matters related to the VR Remaining Business to the extent that it reasonably requires same in order to plan the integration of the VR Remaining Business into the Purchaser's Group with effect from the Closing Date by submitting such requests in writing to the Seller's Integration Representatives ("Information Requests (VR)").
|
37.8.10.
|
The Seller's Integration Representatives (VR) shall use reasonable endeavours to obtain responses to any Information Request (VR) as soon as practicable and such responses shall be forwarded to the Purchaser’s Integration Representatives (VR) as soon as practicable, provided that no competitively sensitive and/or legally privileged information will be shared with the Purchaser’s Integration Representatives (VR) or with any other representatives of Harmony.
|
37.8.11.
|
Notwithstanding anything to the contrary contained herein, Harmony acknowledges that AngloGold has a business to conduct and agree that Information Requests (VR) shall be reasonable and shall not be unnecessarily overbearing or frequent.
|
37.9.
|
Integration Work Streams
|
37.9.1.
|
Harmony shall nominate 1 (one) person as its representative for each Integration Work Stream (VR) (each a "Purchaser’s Integration Work Stream Representative (VR)") who shall each have the authority, right and power to act for and on Harmony's behalf in respect of all the matters contemplated under this clause 37.9 in relation to such Integration Work Stream (VR).
|
37.9.2.
|
AngloGold shall nominate 1 (one) person as its representative for each Integration Work Stream (VR) (each a "Seller’s Integration Work Stream Representative (VR)") who each have the authority, right and power to act for and on AngloGold's
|
37.9.3.
|
Harmony or AngloGold may change their respective representatives at any time and from time to time provided (a) it gives prior written notice to the other Party of such change; and (b) such change is acceptable to the other Party (acting reasonably).
|
37.9.4.
|
Harmony and AngloGold shall use reasonable endeavours to ensure that the Purchaser’s Integration Work Stream Representative (VR) and the Seller’s Integration Work Stream Representative (VR) nominated for each Integration Work Stream shall meet every two weeks during the Interim Period or more frequently subject to AngloGold's consent (which consent cannot be unreasonably withheld or delayed) and use reasonable endeavours to oversee, manage, prepare and effect the implementation of the components of the operational migration plan and timetable that relate to the relevant Integration Work Stream (VR) (including where appropriate, by conducting a gaps analysis and assessment of AngloGold’s systems against those of Harmony and the relevant Purchaser, implementing a solution to address any such gaps identified and installing any systems to the extent reasonably required to ensure a smooth transition with effect from the Closing Date, and provide regular updates to the Seller’s Integration Representatives (VR) and the Purchaser’s Integration Representatives (VR) (including by providing formal feedback at each Integration Meeting (VR)) in reasonable detail such that such Persons can reasonably monitor and oversee the implementation of the relevant Integration Work Stream (VR) against the overall operational migration plan and timetable (with appropriate milestone deliverables) agreed in terms of clause 37.8.4.
|
37.9.5.
|
Harmony and AngloGold shall use reasonable endeavours to ensure that, as soon as reasonably possible following the Signature Date, but in no event later than 1 (one) calendar month following the Signature Date, the Purchaser’s Integration Work Stream Representative (VR) and the Seller’s Integration Work Stream Representative of each Integration Work Stream (VR) have (a) agreed on a transition plan (including a timetable (with appropriate milestone deliverables)) setting out all of the material steps necessary to ensure the complete integration and transition of the VR Remaining Business to the relevant Purchasers, by no later than the Closing Date, with respect to the specific responsibilities of the respective Integration Work Stream (VR) and (b) provided such agreed transition plan to the Purchaser’s Integration Representatives (VR) and the Seller’s Integration Representatives (VR). Harmony and AngloGold shall use reasonable endeavours to ensure the complete and timely implementation of the relevant
|
38.
|
PURCHASER WARRANTIES, REPRESENTATIONS AND UNDERTAKINGS
|
39.
|
RELEASE FROM GUARANTEES, SURETYSHIPS AND INDEMNITIES
|
39.1.
|
The relevant Purchaser shall, as soon as practicable after the Closing Date, procure the release of AngloGold as well as any of its Affiliates (as applicable), from their obligations under all of the guarantees, suretyships and indemnities given by AngloGold and/or its relevant Affiliates (as applicable) for, or in relation to, the VR Package. Without limiting anything in this clause 39, the relevant Purchaser shall furnish any substitute guarantees, suretyships, indemnities and undertakings necessary or reasonably required to procure such release and discharge of AngloGold and its Affiliates.
|
39.2.
|
The relevant Purchaser shall indemnify AngloGold and each of its Affiliates, with effect from the Closing Date, against:
|
39.2.1.
|
any liabilities which AngloGold or the relevant Affiliate may incur under any such guarantee, suretyship or indemnities in question; and
|
39.2.2.
|
all costs, losses, liabilities, Claims, demands, damages, fines and expenses reasonably and necessarily incurred by AngloGold and/or the relevant Affiliate in connection with any such liability or Claim, including costs awarded against it.
|
39.3.
|
This clause 39 constitutes a stipulatio alteri in favour of each relevant Affiliate of AngloGold capable of acceptance in writing at any time by such Affiliate on written notice to the relevant Purchaser.
|
40.
|
WARRANTIES AND UNDERTAKINGS
|
40.1.
|
AngloGold gives to each of the Purchasers:
|
40.1.1.
|
the Warranties in Annexure B1 in respect of the FUSA Sale Equity;
|
40.1.2.
|
the Warranties in Annexure B2 in respect of the Chemwes;
|
40.1.3.
|
the Warranties in Annexure B3 in respect of the MWS; and
|
40.1.4.
|
the Warranties in Annexure B4 in respect of the VR Remaining Business,
|
40.1.5.
|
is a separate Warranty and is not limited or restricted by reference to or inference from the terms of any other Warranty;
|
40.1.6.
|
save where any Warranty is expressly limited to a particular date, is given as at the Signature Date, CP Fulfilment Date and Closing Date.
|
40.1.7.
|
shall continue and remain in force notwithstanding the completion of one or more of the Transactions.
|
40.2.
|
Any Warranty given in terms of this Agreement as at the Signature Date or the CP Fulfilment Date (as the case may be) which is breached as at the Signature Date or the CP Fulfilment Date (as the case may be) shall (subject to and without limiting, the rights of the Purchaser at any time (whether before or after the CP Fulfilment Date) to terminate in terms of clause 50.4.3), nevertheless, be deemed not to have been breached if it is not breached as at the Closing Date,
|
40.3.
|
AngloGold’s liability for any Claim by any of the Purchasers in respect of any Warranty under this Agreement, is limited and qualified to the extent to which disclosure of any fact or circumstance concerning such Claim has been made in –
|
40.3.1.
|
this Agreement;
|
40.3.2.
|
the Data Room Documents;
|
40.3.3.
|
the Disclosure Schedule (VR) in Annexure E;
|
40.3.4.
|
any other document or written material provided by AngloGold, any member of the Group, any of the Purchasers and/or any of the Purchaser's Representatives before 05:00 (South African time) on 12 February 2020, that forms part of the Data Room Documents;
|
40.3.5.
|
any written presentation made to Harmony or any of the Purchaser’s Representatives before the Signature Date; and
|
40.3.6.
|
any written responses provided by AngloGold, any member of the Group, and/or any of their officers, employees, agents or advisers to any queries raised by Harmony or any of the Purchaser’s Representatives during the course of the Due Diligence Investigation (VR),
|
40.4.
|
.AngloGold’s liability in respect of any Warranty (VR) under this Agreement is further limited and qualified by -
|
40.4.1.
|
anything which arises as a result of any change in any applicable Law or its interpretation; and/or
|
40.4.2.
|
anything to the extent that it is within the actual knowledge of Harmony, the relevant Purchaser and/or any of the Purchaser's Representatives as at the Signature Date.
|
40.5.
|
Save for those warranties or indemnities expressly given or made by AngloGold in this Agreement or in Annexure B1, Annexure B2, Annexure B3 or Annexure B4 hereto, (a) no other warranties or indemnities and no representations whatsoever are given or made by AngloGold in respect of either the VR Package or otherwise, whether express, tacit or implied, and (b) the VR Package is sold on a voetstoots basis.
|
41.
|
LIMITATION OF LIABILITY
|
41.1.
|
In addition to the limitations set out below and elsewhere in this Agreement, AngloGold's liability is in respect of a Warranty (VR) is further limited by the limitations set out in Annexure C in respect of the VR Transaction and the VR Package.
|
41.2.
|
Reductions
|
41.2.1.
|
any amount recovered by the Purchasers, the Purchaser's Affiliates and/or the VR Companies from any third party in respect thereof, less: (a) any portion thereof that the VR Companies, the Purchasers and/or the Purchaser's Affiliates may, in terms of any insurance contract, be obliged to pay to any insurer; (b) any reasonable out of pocket expenses incurred by the Purchasers, the Purchaser's Affiliates and/or the VR Companies in recovering the sum; and (c) any Tax attributable to or suffered in respect of the sum recovered; and
|
41.2.2.
|
any amount by which the Purchasers, the Purchaser’s Affiliates or the VR Companies have otherwise been compensated for without cost to the Purchasers, the Purchaser's Affiliates and/or the VR Companies.
|
41.3.
|
Contingent liabilities
|
41.4.
|
Losses
|
41.5.
|
Matters Arising
|
41.5.1.
|
any matter or thing done or omitted to be done pursuant to and in compliance with this Agreement or otherwise at the request in writing or with the approval in writing of the Purchasers;
|
41.5.2.
|
any act, omission or transaction of the Purchasers or the VR Companies or each of their respective directors, officers, employees or agents or successors in title, after the Closing Date;
|
41.5.3.
|
the passing of, or any change in, after the Signature Date, any Law or administrative practice of any Governmental Entity (and in the case of any Environmental Law or mining Law, any change in any generally accepted interpretation or application thereof) including (without prejudice to the generality of the foregoing) any increase in the rates of Taxation or any imposition of Taxation or any withdrawal of relief from Taxation not actually (or prospectively) in effect at the Signature Date;
|
41.5.4.
|
any change in internationally accepted accounting policy, bases or practice introduced or having effect after the Signature Date.
|
41.6.
|
Mitigation of losses
|
41.7.
|
No double recovery
|
41.8.
|
Fraud
|
41.9.
|
Projections, Forward Looking Statements and Financial Estimates
|
41.10.
|
Financial provisions
|
41.11.
|
Environmental Approvals (VR)
|
41.11.1.
|
if the relevant Purchaser requires the transfer and/or use of any Environmental Approvals (VR) in respect of the VR Businesses which has not been dealt with in this Agreement and such Environmental Approval (VR) is not valid and subsisting in full force and effect or has been suspended, cancelled, revoked, varied or surrendered in favour of any third party; or
|
41.11.2.
|
on the basis that the Environmental Approvals (VR) issued to AngloGold in relation to the VR Businesses do not adequately cover the operations conducted by the VR Businesses or the operations to be conducted by the relevant Purchaser.
|
42.
|
INDEMNITIES
|
42.1.
|
Environmental Obligations (VR)
|
42.1.1.
|
Notwithstanding anything to the contrary contained herein, AngloGold, Harmony and Harmony Moab record and agree that, by virtue of the fact that Harmony and Harmony Moab are acquiring the VR Package, Harmony or Harmony Moab as applicable, shall become liable for the embedded Environmental Obligations (VR) in relation thereto in accordance with Environmental Law.
|
42.1.2.
|
The Parties record and agree that Harmony and Harmony Moab shall, as applicable, with effect from the Closing Date, duly assume or punctually pay, satisfy, discharge, perform or fulfil (as the case may be) all of the Environmental Obligations (VR) and that AngloGold shall have no further obligation in respect of the Environmental Obligations (VR).
|
42.1.3.
|
Harmony hereby, with effect from the Closing Date, indemnifies AngloGold (and any of its Affiliates, directors, and/or senior management) (collectively the "AngloGold Indemnified Persons (VR)") against and holds it harmless from any and all: (a) Claims of whatsoever nature (including legal costs on the scale as between attorney and own client) that may be made against the AngloGold Indemnified Persons (VR) as a result of Harmony or Harmony Moab’s failure, as applicable, to comply with its obligations in terms of clause 42.1.2; and (b) Environmental Obligations (VR) , as applicable (an "Environmental Indemnified Liability Loss (VR)").
|
42.1.4.
|
Harmony shall be obliged to pay the AngloGold Indemnified Person (VR) the amount of any Environmental Indemnified Liability Loss (VR), as applicable, suffered or incurred as soon as: (a) the AngloGold Indemnified Person (VR) is obliged to pay the amount thereof (in the case of any Environmental Indemnified Liability Loss (VR) which involves a payment by the AngloGold Indemnified Person (VR) to any third party) or the AngloGold Indemnified Person (VR) incurs the Environmental Indemnified Liability Loss (VR) (in the case of an Environmental Indemnified Liability Loss (VR) which does not involve a payment by the AngloGold Indemnified Person (VR) to any third party); and (b) Harmony has received a written notice from the AngloGold Indemnified Person (VR) demanding payment with respect to an Environmental Indemnified Liability Loss (VR).
|
42.2.
|
Sale Liabilities (VR) indemnity by Harmony Moab
|
42.2.1.
|
Harmony Moab hereby, with effect from the Closing Date, indemnifies each of the relevant AngloGold Indemnified Person (VR) and holds them harmless against all Sale Liabilities (VR) and all and any Losses incurred or suffered by the AngloGold Indemnified Person (VR) (including all reasonable disbursements and fees of legal advisors incurred in connection with the investigation of, preparation for, defence and/or settlement of, any pending or threatened claim and any litigation or other proceeding arising therefrom, whether or not the AngloGold Indemnified Person (VR) is a party) by reason of, or arising directly or indirectly out of, or in connection with the Sale Liabilities (VR) (the "Indemnified Liability Loss (VR)").
|
42.2.2.
|
Harmony Moab shall be obliged to pay to the AngloGold Indemnified Person (VR) the amount of any Indemnified Liability Loss (VR) incurred or suffered by the AngloGold Indemnified Person (VR) as soon as: (a) the AngloGold Indemnified Person (VR) is obliged to pay the amount thereof (in the case of any Indemnified Liability Loss (VR) that involves a payment by the AngloGold Indemnified Person (VR)), or as soon as the AngloGold Indemnified Person (VR) incurs or suffers the Indemnified Liability Loss (VR) (in the case of an Indemnified Liability Loss (VR) that does not involve a payment by the AngloGold Indemnified Person (VR)); and (b) the Purchaser has received a written notice from the AngloGold Indemnified Person (VR) demanding payment with respect to an Indemnified Liability Loss (VR).
|
42.2.3.
|
Should any Party fail to discharge any of the liabilities for which it indemnifies any other Party in terms of clause 42.1 or 42.2 (as applicable) (the "Relevant Liabilities (VR)") as and when they fall due for payment and the other indemnified Party is held liable therefor, such indemnified Party shall, when it becomes aware thereof, without prejudice to its other rights in applicable Law or in terms of this Agreement, be entitled ‑
|
42.2.3.1.
|
to require the relevant indemnifying Party, which will be obliged, to immediately settle such Relevant Liabilities (VR); or
|
42.2.3.2.
|
should the relevant indemnifying Party fail to settle any of the Relevant Liabilities (VR), to settle such Relevant Liabilities (VR) and to recover the amount of any such Relevant Liabilities (VR) so settled on behalf of the indemnified Party, and all reasonable costs incurred in so doing, from the relevant indemnifying Party in terms of clause 42.1 or 42.2 (as the case may be).
|
42.2.4.
|
The provisions of this clause 42 shall constitute a stipulatio alteri in favour of each of the AngloGold Indemnified Persons (VR), which shall be capable of acceptance by the AngloGold Indemnified Persons (VR) at any time on written notice to Harmony Moab.
|
43.
|
STEP IN RIGHTS
|
43.1.
|
AngloGold shall, in respect of any Claim by it (of any other person constituting an AngloGold Indemnified Person (VR) under any of the indemnities in clauses 42.1 or 42.2, and each of the Purchasers shall, in respect of any Claim by it or under a breach of any of the Warranties contemplated in this Agreement, (AngloGold or the relevant Purchaser, as aforesaid, being the "Indemnified Party (VR)") shall promptly notify the other of AngloGold or the relevant Purchaser (as the case may be) (the "Indemnifying Party (VR)") in writing of the Claim in question (the "Indemnified Claim (VR)") within a reasonable time of the Indemnified Party (VR) becoming aware thereof, to enable the Indemnifying Party (VR) to take steps to contest it.
|
43.2.
|
The Indemnifying Party (VR) shall have the right, at its sole option and expense, within 10 (ten) Business Days after the receipt of written notice under clause 43.1, to elect in writing to contest (which shall include an appeal) any Indemnified Claim (VR) and shall be entitled to control the defence against, negotiate, settle or otherwise deal with the Indemnified Claim (VR) provided that:
|
43.2.1.
|
it delivers a written indemnity to the Indemnified Party (VR), indemnifying the Indemnified Party (VR) against all charges and all legal costs which may be incurred or awarded as a consequence of such steps;
|
43.2.2.
|
the Indemnifying Party (VR) shall defend the Indemnified Claim (VR) on the same basis as it would act in circumstances where it were defending a dispute in its own name and shall at all stages and in all respects act in the best interests of the Indemnified Party (VR) (as if the relevant indemnity contemplated in this clause 43 did not exist) when defending the Indemnified Claim (VR), taking into account, without limitation, the effect of the dispute on the Indemnified Party (VR), the Indemnified Party’s (VR) reasonable input and the advice of the Indemnified Party’s (VR) and the Indemnifying Party’s (VR) professional advisers;
|
43.2.3.
|
the Indemnified Party (VR) shall give all reasonable assistance and information to the Indemnifying Party (VR) in the efforts of the Indemnifying Party (VR) to defend the Indemnified Claim (VR). The Indemnified Party (VR) will allow the Indemnifying Party’s (VR) authorised representatives reasonable access to its accounts, documents and records limited to the issues concerned to the extent that they are available, on the basis that all relevant copies may be made by the Indemnifying
|
43.2.4.
|
the Indemnifying Party (VR) shall deliver to the Indemnified Party (VR) all correspondence and court documents relating to the dispute prior to submitting same and shall consider all reasonable comments of the Indemnified Party (VR) in relation to the content and sending of any written communications in respect of the Indemnified Claim (VR);
|
43.2.5.
|
the Indemnified Party (VR) shall be entitled on reasonable notice to meet or have calls with the Indemnifying Party (VR) and its professional advisers when it deems fit in order to obtain an update on the progress in respect of the Indemnified Claim (VR);
|
43.2.6.
|
the Indemnifying Party (VR) may not concede, settle, compromise and/or abandon the Indemnified Claim (VR) without the prior written approval of the Indemnified Party (VR) (not to be unreasonably withheld or delayed), provided that where: (a) the Indemnifying Party (VR) has recommended that the Indemnified Party (VR) concede, settle, compromise and/or abandon the Indemnified Claim (the "Recommendation (VR)"); and (b) the Indemnified Party (VR) does not approve the Recommendation (VR), and thereafter the matter proceeds, the liability of Indemnifying Party (VR) in respect of the Indemnified Claim (VR) shall be proportionately reduced in respect of any amount of actual Loss suffered by the Indemnified Party (VR) which it can be established would not have been suffered had the Indemnified Party (VR) approved the Recommendation (VR); and
|
43.2.7.
|
the Indemnifying Party (VR) shall not be liable to the extent that the relevant liability arises as a result of or is increased by any action or omission by the Indemnified Party (VR) or the management of the Indemnified Party (VR). For the avoidance of doubt, to the extent that the relevant liability does not arise as a result of any action or omission by the Indemnified Party (VR) or the management of the Indemnified Party (VR) and is only increased by such action or omission, the Indemnifying Party (VR) shall remain liable in respect of the relevant liability but shall not be liable in respect of such increase.
|
43.3.
|
If the Indemnifying Party (VR) elects not to control the defence against, negotiate, settle or otherwise deal with any Indemnified Claim (VR) (including by not delivering to the Indemnified Party (VR) the necessary written election within the 10 (ten) Business Day period contemplated in clause 43.2), which relates to any matter indemnified against by it or any matter in relation to which it has provided any Warranties under this Agreement, the Indemnified Party (VR) may control the defence against, negotiate, settle or otherwise deal with such Indemnified Claim (VR), provided that the Indemnified Party (VR) shall take all reasonable steps to ensure that:
|
Part D.
|
GENERAL PROVISIONS
|
44.
|
GENERAL WARRANTIES
|
44.1.
|
it has the necessary power and legal capacity to enter into and perform its obligations under this Agreement and all matters contemplated herein, to sue and be sued in its own name, to carry on the business which it conducts and to own its assets;
|
44.2.
|
it has taken all necessary corporate and/or internal action to authorise the execution and performance of this Agreement;
|
44.3.
|
the provisions of this Agreement are and shall remain legally binding on it and the obligations imposed on it pursuant to this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their terms; and
|
44.4.
|
the execution of this Agreement and performance of its obligations hereunder does not and shall not:
|
44.4.1.
|
contravene any Law or regulation to which it is subject; or
|
44.4.2.
|
contravene any provision of its constitutional documents; or
|
44.4.3.
|
conflict with, or result in a breach of any of the terms of, or constitute a default under any agreement or other instrument to which it is a party, or any licence or other authorisation to which it is subject, or by which it or any of its property or revenues are bound,
|
45.
|
PAYMENTS AND INTEREST
|
46.
|
SECTION 34 NOTICE
|
46.1.
|
The Parties hereby agree that notice of the sale of the Sale Package contemplated in this Agreement will not be published in terms of section 34 of the Insolvency Act. In consideration for the Purchasers agreeing to this, AngloGold hereby indemnifies the Purchasers and holds them harmless against any loss or damage of whatsoever nature which may be sustained or incurred by the Purchasers as a result of the provisions of section 34 of the Insolvency Act being invoked by any creditor of AngloGold.
|
46.2.
|
AngloGold hereby, in addition to any other warranties given by AngloGold under this Agreement, warrants in favour of the Purchasers that –
|
46.2.1.
|
as at the Signature Date, so far as AngloGold is aware, no person has instituted any proceedings of whatsoever nature against AngloGold as contemplated in section 34(3)(b) of the Insolvency Act; and
|
46.2.2.
|
as at the Signature Date, so far as AngloGold is aware, no such proceedings are proposed to be instituted against AngloGold during the Interim Period and, so far as AngloGold is aware, if any such proceedings are instituted during the Interim Period, they will not be in respect of any valid or legitimate claim.
|
46.3.
|
AngloGold undertakes, in the event that proceedings contemplated in clause 46.2 are instituted against AngloGold during the Interim Period, as soon as reasonably practicable to furnish the Purchasers with written details of –
|
46.3.1.
|
the name of the party instituting such proceedings ("Claimant");
|
46.3.2.
|
the nature and basis of the Claimant's claim;
|
46.3.3.
|
the name, address and telephone number of the Claimant's attorney;
|
46.3.4.
|
the case number applicable to the proceedings; and
|
46.3.5.
|
copies of any and all court and other papers served on AngloGold in respect of such claim and/or in terms of which such claim has been instituted,
|
46.4.
|
If any proceedings contemplated in section 34(3) of the Insolvency Act are instituted against AngloGold before the Closing Date, then AngloGold hereby agrees and undertakes to: (a) discharge the claim/s made against it in those proceedings; or (b) if AngloGold wishes to defend those proceedings, it shall make such arrangements as may be reasonably required by the Purchasers in all the circumstances to secure the payment of the claim/s in question, in either case so as to ensure that this Agreement shall not become void against the claimant/s in those proceedings.
|
47.
|
INDIVISIBILITY
|
48.
|
PARENT COMPANY GUARANTEE
|
49.
|
EXPERT DETERMINATION
|
49.1.
|
the Expert shall be Marsh, or if Marsh is not willing or able to accept the mandate, Snowdon Consulting Limited or if the Snowden Consulting Limited is not willing or able to accept the mandate such other expert agreed in writing by AngloGold and the Purchaser, or, failing such
|
49.2.
|
the Expert shall act as an expert and not as an arbitrator;
|
49.3.
|
the Expert shall be entitled to determine the quantum of his charges, which quantum shall be paid on demand, in the amounts and manner determined by the Expert;
|
49.4.
|
the Expert shall be entitled to determine such methods and processes as he may, in his sole discretion, deem appropriate in the circumstances;
|
49.5.
|
the Expert shall consult with the Parties prior to rendering a determination. The Expert shall afford the Parties the opportunity to make such written, or at its discretion, oral representations as the Parties wish, subject to such reasonable time and other limits as the Expert may prescribe and the Expert shall have regard to any such representations but not be bound by them;
|
49.6.
|
the Parties shall fully co-operate with the Expert and do all such things as may be necessary to assist the Expert with his determination;
|
49.7.
|
having regard to the sensitivity of any confidential information, the Expert shall be entitled to take advice from any person considered by him to have expert knowledge with reference to the matter in question;
|
49.8.
|
having considered the Parties’ respective representations as contemplated in clause 49.5, the Expert shall make his determination in as short a time as is reasonably possible in the circumstances and further must acknowledge that he will do so in his mandate; and
|
49.9.
|
in the absence of manifest error, the Expert’s determination will be final and binding on the Parties.
|
50.
|
BREACH AND TERMINATION
|
50.1.
|
If a Party (the "Defaulting Party") commits any breach of this Agreement and fails to remedy such breach (subject to clause 50.2) within 20 (twenty) Business Days (the "Notice Period") of written notice requiring the breach to be remedied by the expiry of the Notice Period, then the Party giving the notice (the "Aggrieved Party") will be entitled, at its option, to:
|
50.1.1.
|
claim immediate specific performance by the Defaulting Party of the obligations which it has breached, with or without claiming damages; or
|
50.1.2.
|
subject to clause 50.4, cancel this Agreement, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the date on which the notice is
|
50.2.
|
If the Notice Period would, but for this clause 50.2, expire after the Closing Date, then the Closing Date shall be extended to the last Business Day of the month immediately succeeding the month in which the Closing Date would have occurred but for this clause 50.2.
|
50.3.
|
The Aggrieved Party’s remedies in terms of this clause 50 are, subject to the other provisions of this clause 50, without prejudice to any other remedies to which the Aggrieved Party may be entitled in Law.
|
50.4.
|
This Agreement may be terminated prior to the Closing Date by any of the Purchasers:
|
50.4.1.
|
in accordance with clause 7;
|
50.4.2.
|
if AngloGold, any of the WW Companies or any of the VR Companies is provisionally or finally liquidated or becomes subject to any other statutory business rescue process (or any application is launched in that regard, save for frivolous or vexatious applications);
|
50.4.3.
|
if the Purchasers become aware that there is a breach of any one or more of the Warranties given by AngloGold under this Agreement, or any combination of them, provided that it is reasonably likely that the Purchasers (individually or collectively, in aggregate) will suffer a Loss, in aggregate, of at least USD60 000 000 (sixty million Dollars) if the transactions contemplated under this Agreement were implemented on the Closing Date, and AngloGold does not cure such breach or breaches within the Notice Period.
|
50.5.
|
This Agreement may be terminated by AngloGold prior to the Closing Date if:
|
50.5.1.
|
any of the Purchasers are provisionally or finally liquidated or becomes subject to any other statutory business rescue process (or any application is launched in that regard, save for frivolous or vexatious applications); or
|
50.5.2.
|
AngloGold becomes aware that there is a breach of any one or more of the warranties given by the Purchasers under this Agreement, or any combination of them, provided that it is reasonably likely that AngloGold will suffer a Loss, in aggregate, of at least USD60 000 000 (sixty million Dollars) if the transactions contemplated under this Agreement were implemented on the Closing Date, and the Purchasers do not cure such breach or breaches within the Notice Period.
|
50.6.
|
At any time prior to the Closing Date, any Party shall inform the other of the happening of any matter, thing or event which occurs or arises, or may become known to it which is, or could
|
50.7.
|
In the event of termination of this Agreement pursuant to clause 7.3, 50.4 or 50.5 by the Purchasers or AngloGold, as the case may be, written notice thereof shall forthwith be given to the other Party, and this Agreement shall terminate, and the purchase of the Sale Package hereunder shall be abandoned, without further action by the Purchasers or AngloGold.
|
50.8.
|
In the event that this Agreement is validly terminated in accordance with clause 7.3, 50.4 or 50.5, each of the Parties shall be relieved of its respective duties and obligations arising under this Agreement from and after the date of such termination, and such termination shall be without liability to the Purchasers or AngloGold; provided that no such termination shall relieve any Party from liability (including any liability for damages) for any breach of this Agreement or other liability arising prior to termination hereof; and provided further that the provisions and obligations of the Parties set out in clauses 1, 2 and 50 to 62 (both inclusive) shall survive any such termination and shall be enforceable under this Agreement.
|
50.9.
|
Notwithstanding the aforegoing, no Party shall be entitled to cancel this Agreement after Closing on the Closing Date.
|
50.10.
|
No Purchaser shall be entitled to any remedies under or in respect of this Agreement as a result of a breach by the other of them.
|
51.
|
ARBITRATION
|
51.1.
|
Save as specifically provided to the contrary in this Agreement, any disputes or claims arising out of or in connection with this Agreement or its subject matter, formation or validity (including non-contractual disputes or claims) shall be submitted to and decided by arbitration in accordance with the commercial rules of AFSA.
|
51.2.
|
That arbitration shall be held in Sandton, South Africa.
|
51.3.
|
It is the intention that the arbitration shall, where possible, be held and concluded as soon as reasonably possible after it has been demanded. The Parties shall use their best endeavours to procure the expeditious completion of the arbitration.
|
51.4.
|
There shall be 3 (three) arbitrators who shall, if the question in issue is:
|
51.4.1.
|
primarily an accounting matter, each be an independent chartered accountant with not less than 10 (ten) years’ experience as a chartered accountant;
|
51.4.2.
|
primarily a legal matter, each be a practising senior counsel or, alternatively, a retired judge; or
|
51.4.3.
|
any other matter, suitably qualified persons,
|
51.5.
|
The Parties shall agree the appointment of the arbitrators in writing or, failing agreement by the Parties within 5 (five) Business Days after the request for arbitration, the arbitrators shall be appointed in accordance with the commercial rules of AFSA.
|
51.6.
|
The Parties shall keep the evidence in the arbitration proceedings and any award made by the arbitrators confidential save only to the extent necessary to enable that award to be made an order of any court of competent jurisdiction.
|
51.7.
|
The arbitrators shall be obliged to give their award in writing supported by reasons.
|
51.8.
|
The Parties irrevocably agree that the decision of the arbitrators shall be final and binding on the Parties to the dispute, shall be carried into effect and may be made an order of any court of competent jurisdiction.
|
51.9.
|
No Party to the arbitration may appeal the decision of the arbitrators.
|
51.10.
|
The provisions of this clause are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated or declared invalid for any reason.
|
51.11.
|
Nothing in this clause shall preclude any Party from applying to a duly constituted court of competent jurisdiction for urgent interim relief (including but not limited to): (a) to compel arbitration; (b) to obtain interim measures of protection prior to or pending arbitration; (c) to seek such injunctive relief as may be necessary and appropriate, and to this end, the Parties hereby consent to the non-exclusive jurisdiction of the High Court of South Africa (Gauteng, Local Division)
|
52.
|
CONFIDENTIALITY
|
52.1.
|
Any information obtained by any Party in terms, or arising from the implementation, of this Agreement as well as the existence and terms of this Agreement shall be treated as confidential by the Parties and shall not be used, divulged or permitted to be divulged to any person not being a Party to this Agreement, without the prior written consent of the other Party save that:
|
52.1.1.
|
each Party shall be entitled to disclose such information to its employees, and to its directors, shareholders, professional advisors and funders, in each case who have a need to know for purposes of implementing the transactions contemplated by this Agreement and who have been directed by the disclosing Party to keep such information confidential and have undertaken to keep such information confidential;
|
52.1.2.
|
each Party shall be entitled to disclose any information which is required to be furnished by Law or regulation or by any recognised stock exchange (in the case of a recognised stock exchange, the provisions of clause 52.3 shall apply);
|
52.1.3.
|
no Party shall be precluded from using or divulging such information in order to pursue any legal remedy available to it;
|
52.1.4.
|
each Party shall be entitled to disclose such information if such information is or becomes generally available to the public other than by the negligence or default of such Party or by the breach of this Agreement by such Party;
|
52.1.5.
|
each Party shall be entitled to disclose such information if the Party which disclosed same confirms in writing that it is disclosed on a non-confidential basis;
|
52.1.6.
|
each Party shall be entitled to disclose such information if such information has lawfully become known by or come into the possession of such Party on a non-confidential basis from a source other than the Party having the legal right to disclose same.
|
52.2.
|
In the event that a Party is required to disclose information as contemplated in clause 52.1.2, such Party will:
|
52.2.1.
|
advise any Party/ies in respect of whom such information relates (the "Relevant Party/ies") in writing prior to disclosure, if possible;
|
52.2.2.
|
take such steps to limit the disclosure to the minimum extent required to satisfy such requirement and to the extent that it lawfully and reasonably can;
|
52.2.3.
|
afford the Relevant Party/ies a reasonable opportunity, if possible, to intervene in the proceedings;
|
52.2.4.
|
comply with the Relevant Party/ies’ reasonable requests as to the manner and terms of such disclosure; and
|
52.2.5.
|
notify the Relevant Party/ies of the recipient of, and the form and extent of, any such disclosure or announcement immediately after it was made.
|
52.3.
|
The Parties understand and agree that Parties are listed on one or more recognised stock exchanges and may be required, in terms of the laws of South Africa and/or the requirements of any such stock exchange, as applicable, to issue a public announcement outlining the terms of this Agreement following the Signature Date, and that the transactions contemplated in this Agreement will be made public. Each Party shall make a copy of such public announcement available to the other Party prior to making such announcement with a view to the Parties
|
52.4.
|
The Parties shall use reasonable endeavours to procure that their respective directors, employees, shareholders, professional advisors and funders observe a corresponding obligation of confidence to that set out in clauses 52.1 to 52.3 (both inclusive) in relation to the Parties themselves.
|
53.
|
DOMICILIA CITANDI ET EXECUTANDI
|
53.1.
|
The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option), the following addresses:
|
53.1.1.
|
the Purchasers:
|
Physical:
|
Randfontein Office Park
|
53.1.2.
|
AngloGold:
|
Physical:
|
76 Rahima Moosa Street
|
53.2.
|
Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, provided that:
|
53.2.1.
|
it shall not be competent to give notice by email only, unless receipt of such email has been acknowledged by the recipient thereof (it being recorded and agreed that an automatic email response shall not be deemed to be acknowledged); and
|
53.2.2.
|
in respect of any notice delivered by hand, an email is also sent to the chosen email address stipulated in clause 53.1 relating to the subject matter thereof, irrespective of whether or not such email has been received or acknowledged by the recipient thereof.
|
53.3.
|
Each Party may by notice to the other Parties change the physical address or email address chosen as its domicilium citandi et executandi vis-à-vis that Party to another physical address or email address, provided that the change shall become effective vis-à-vis that addressee on the 10th (tenth) Business Day from the receipt of the notice by the addressee.
|
53.4.
|
Any notice to a Party delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery.
|
53.5.
|
Any notice to a Party sent by email to the chosen email address stipulated in clause 53.1 shall (subject to clause 53.2) be deemed to have been received on the date of dispatch (unless the contrary is proved).
|
53.6.
|
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 domicilium citandi et executandi.
|
54.
|
GOVERNING LAW
|
54.1.
|
This Agreement and the rights and obligations of the Parties arising under or in connection with this Agreement shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the law of South Africa.
|
54.2.
|
For purposes of applying for urgent relief and in respect of any matters which cannot be resolved in accordance with clause 51, the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa (Gauteng Local Division, Johannesburg) in any dispute arising from or in connection with this Agreement.
|
55.
|
COSTS
|
56.
|
SEVERABILITY
|
57.
|
WHOLE AGREEMENT, NO AMENDMENT
|
57.1.
|
This Agreement, together with the WW Business Deferred Consideration Agreements, constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof.
|
57.2.
|
No addition to, novation, amendment or consensual cancellation of this Agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver, relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of this Agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver, relaxation or suspension). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given. The Parties agree that email correspondence between them shall not give effect to any addition to, novation, amendment or consensual cancellation of this Agreement.
|
57.3.
|
No oral pactum de non petendo shall be of any force or effect.
|
57.4.
|
No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate neither as an estoppel against any Party in respect of its rights under this Agreement, nor so as to preclude such Party (save as to any extension, waiver or relaxation actually given) thereafter from exercising its rights strictly in accordance with this Agreement.
|
57.5.
|
To the extent permissible by law no Party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced a Party to enter into the Agreement and/or whether it was negligent or not.
|
58.
|
NO CESSION OR ASSIGNMENT
|
59.
|
STIPULATIO ALTERI
|
59.1.
|
Without derogating from any other provisions in this Agreement which expressly provide that they constitute a stipulatio alteri in favour of any persons who are not a Party to this Agreement (the "Grantees"), the provisions of clauses 21 and 39 shall constitute a stipulatio alteri to and in favour of Affiliates of each member of the Purchaser’s Group and AngloGold, respectively, who are not a Party which shall be capable of express acceptance at a time, in writing, by any such Affiliate who may then enforce the relevant provisions of this Agreement as though it were a signatory hereto. Notwithstanding the foregoing, the consent of any Grantee or any Affiliate
|
59.2.
|
Subject to clause 59.1, no part of this Agreement shall constitute a stipulatio alteri in favour of any person who is not a Party unless the provision in question expressly provides that it does constitute a stipulatio alteri.
|
60.
|
FURTHER ASSURANCES
|
61.
|
REMEDIES
|
62.
|
COUNTERPARTS
|
For:
|
ANGLOGOLD ASHANTI LIMITED
|
|
Signature:
|
/s/ Pierre Chenard
|
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
Pierre Chenard
|
|
Date:
|
12/2/2020
|
|
Place:
|
Sandton
|
|
For:
|
HARMONY GOLD MINING COMPANY LIMITED
|
|
Signature:
|
/s/ Peter Steenkamp
|
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
Peter Steenkamp
|
|
Date:
|
12/2/2020
|
|
Place:
|
Sandton
|
|
Signature:
|
/s/ Frank Abbott
|
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
Frank Abbott
|
|
Date:
|
12/2/2020
|
|
Place:
|
Sandton
|
|
For:
|
HARMONY MOAB KHOTSONG OPERATIONS PROPRIETARY LIMITED
|
|
Signature:
|
/s/ Herman Perry
|
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
Herman Perry
|
|
Date:
|
12/2/2020
|
|
Place:
|
Sandton
|
|
Signature:
|
/s/ Phillip Tobias
|
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
Phillip Tobias
|
|
Date:
|
12/2/2020
|
|
Place:
|
Sandton
|
|
For:
|
GOLDEN CORE TRADE AND INVEST PROPRIETARY LIMITED
|
|
Signature:
|
/s/ Neil Terblanche
|
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
Neil Terblanche
|
|
Date:
|
12/2/2020
|
|
Place:
|
Sandton
|
|
Signature:
|
/s/ Melanie Naidoo-Vermaak
|
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
Melanie Naidoo-Vermaak
|
|
Date:
|
12/2/2020
|
|
Place:
|
Sandton
|
|
Annexure A
|
Warranties (WW)
|
1.
|
references to “the Agreement” shall be references to the sale agreement to which this Annexure A is attached;
|
2.
|
words and expressions defined in the Agreement shall bear the same meaning in this Annexure A;
|
3.
|
the warranties contained in this Annexure A are given by AngloGold in relation to the WW Package on the basis set out in clause 22 of the Agreement; and
|
4.
|
where a warranty is qualified with "so far as {an entity} is aware", or any similar expression (whether that entity is AngloGold or any of the WW Companies), it shall mean the actual knowledge of each or any of the following persons in relation to the relevant Warranties: Cindy Chater, Shawn Snell, Johann Snyman, Yusuf Kharbhai, Charl Human, Durant Archery, Raymond Ranta, Moses Modondo, George Trollipe, Gelishan Naidoo, Richard Mack and Vaughn Chamberlain.
|
1.
|
Corporate Information
|
1.1.
|
AngloGold –
|
1.1.1.
|
is the sole legal and beneficial owner of the Covalent Sale Shares and the Covalent Sale Claims and is reflected as the sole registered holder of the Covalent Sale Shares in the securities register of Covalent, and no person has any right to obtain an order for the rectification of such register;
|
1.1.2.
|
is entitled to Dispose of the Covalent Sale Shares and the Covalent Sale Claims to the Purchaser; and
|
1.1.3.
|
has the right to exercise all voting and other rights over the Covalent Sale Shares.
|
1.2.
|
Covalent is duly incorporated in South Africa as a profit company with limited liability, and no steps have been taken in respect of its deregistration in terms of section 82(3) of the Companies Act.
|
1.3.
|
Covalent has all requisite power and authority to own, lease and operate its properties and to carry on its business as presently conducted.
|
1.4.
|
The Covalent Sale Shares comprise 100% (one hundred percent) of the total issued and allotted shares of Covalent, have been properly and validly issued and allotted and are each fully paid.
|
1.5.
|
Other than as set out in the memorandum of incorporation of Covalent, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer, amortisation, redemption or repayment of any share or loan capital or any other security giving rise to a right over, or an interest in, Covalent under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.6.
|
There are no Encumbrances on the Covalent Sale Shares or the Covalent Sale Claims.
|
1.7.
|
Covalent has no Subsidiaries and does not hold any equity in any other entity.
|
2.
|
Constitutional Documents, Corporate Registers and Minute Books
|
2.1.
|
The memorandum of incorporation, certificate to commence business and certificate of incorporation of Covalent in the Data Room are true, accurate and up to date copies and include all amendments thereto to date, all of which amendments were duly made in terms of the Companies Act and there have not been and are not any breaches by Covalent of its constitutional documents which would have a material adverse effect on the Covalent Business.
|
2.2.
|
The registers, statutory books, minute books and books of account required to be maintained by Covalent under applicable Law are, in all material respects, up to date; in the possession of Covalent in terms of section 25 of the Companies Act; and are properly completed in accordance with the applicable Law.
|
2.3.
|
All filings, publications, registrations and other formalities required by applicable Law to be delivered or made by Covalent in South Africa have been duly delivered.
|
3.
|
Accounts
|
3.1.
|
show a true and fair view of Covalent's trading transactions and its financial, contractual and trading position;
|
3.2.
|
comply with the requirements of the Companies Act, to the extent applicable to management accounts; and
|
3.3.
|
are accurate in all material respects.
|
4.
|
No Undisclosed Liabilities
|
5.
|
Extraordinary and exceptional items
|
6.
|
Financial Obligations
|
7.
|
Taxes
|
7.1.
|
All returns that may have become due by Covalent from time to time under any Law administered by the SARS Commissioner have been duly made.
|
7.2.
|
During the 3 (three) year period prior to the Signature Date, the SARS Commissioner has not reopened any existing Tax assessment in respect of Covalent.
|
7.3.
|
Covalent is not: (i) and has not at any time during the 3 (three) year period prior to the Signature Date, been in material breach of any Law relating to Tax; or (ii) liable to pay any penalty or interest in connection with any claim for Tax.
|
8.
|
Assets
|
8.1.
|
All assets included or reflected in the Covalent Accounts:
|
8.1.1.
|
are legally (save to the extent otherwise indicated in the Covalent Accounts) and beneficially owned by Covalent; and
|
8.1.2.
|
are, where capable of possession, in the possession or under the control of Covalent and, so far as AngloGold is aware, there are no circumstances which might result in any Governmental Entity expropriating any such assets.
|
8.2.
|
None of the assets contemplated in paragraph 8.1.1 are the subject of any factoring arrangement, conditional sale, instalment, lease, hire-purchase or credit agreement and all such assets are free of any and all Encumbrances.
|
8.3.
|
No person has any right (whether pursuant to any option, preferential right or right of first refusal or otherwise) to purchase or acquire (whether as security or otherwise) or claim delivery, ownership or transfer or the use, occupation, possession or enjoyment of or used in any of the assets of the Covalent Business.
|
8.4.
|
The assets relating to the Covalent Business and reflected in the Covalent Accounts comprise all the assets which: (i) are owned by Covalent and used in the Covalent Business, except to the extent replaced with an equivalent asset owned by Covalent or no longer material for the Covalent Business, and (ii) are necessary to carry on and continue the Covalent Business as it is carried on by Covalent and AngloGold, as applicable, as at the Signature Date and the 12 (twelve) months preceding the Signature Date. The Covalent Business does not materially
|
8.5.
|
The material assets, as reflected in the Covalent Accounts, or to the extent replaced, an equivalent asset, relating to the Covalent Business, have been maintained in accordance with reasonable standards, are in working condition for their purpose (fair wear and tear excepted) and are used exclusively in connection with the WW Businesses.
|
9.
|
Data Room
|
10.
|
Contracts
|
10.1.
|
Covalent is not a party to or subject to any contract in respect of which the consideration payable or receivable will exceed US$1 000 000 (one million Dollars).
|
10.2.
|
Covalent is not a party to or subject to any contract, agreement, dealings or similar arrangements with a Designated Party.
|
10.3.
|
There are no agreements or arrangements (other than agreements or arrangements referred to or contemplated in this Agreement) between AngloGold or any of its Affiliates, on the one hand, and Covalent on the other.
|
10.4.
|
Covalent is not in breach of any material terms of the contracts contemplated in paragraph 10.1 above.
|
10.5.
|
Covalent is not a party to any forward sale agreements which endure for a period longer than 12 (twelve) months.
|
10.6.
|
For so long as AngloGold has held an equity interest in Covalent, no other material contracts are required for the running of the Covalent Business other than the contracts to which Covalent is a party.
|
11.
|
Joint Ventures etc.
|
12.
|
Covalent Employees
|
12.1.
|
The spreadsheet contained in folder 1.2.3.2.1.0.5 of the Data Room contains materially complete, accurate and up to date details of –
|
12.1.1.
|
the total number of Covalent’s employees including those who are on maternity or other statutory leave or other long-term leave of absence and who have or may have a right to return to work for Covalent;
|
12.1.2.
|
the name, date of start of employment, period of continuous employment, salary, bonus entitlements, grade, age of each of Covalent’s employees, and the immigration controls applicable to each of Covalent’s employees;
|
12.1.3.
|
the leave pay accrued to each of Covalent’s employees at the Closing Date; and
|
12.1.4.
|
the hypothetical severance pay amounts that would have been payable to Covalent’s employees had they been retrenched by AngloGold on the Closing Date.
|
12.2.
|
No Covalent employee is subject to any secondment arrangements.
|
12.3.
|
No Covalent employee is employed by any Affiliate of AngloGold or any third party.
|
12.4.
|
None of Covalent’s employees will become entitled by virtue of their contract of service to any enhancement in or improvement to their remuneration, benefits or terms and conditions of service only by reason of the execution of this Agreement or the completion of the sale and purchase of the Covalent Sale Equity under or pursuant to this Agreement.
|
12.5.
|
Covalent owes no amount to any of its employees which has not been disclosed in the spreadsheet listed in folder 1.2.3.2.1.0.5 of the Data Room.
|
12.6.
|
Covalent has maintained up to date, full and accurate records regarding employment of each of its employees (including, without limitation, details of terms of employment, training records, payments of statutory or other payments, income tax and other contributions, disciplinary, grievance, medical or health records and health and safety matters) and termination of employment and all such records will be delivered in accordance with clause 10.1.2 on or before the Closing Date.
|
12.7.
|
Termination of Employment
|
12.7.1.
|
During the 90 (ninety) calendar day period prior to the Signature Date, Covalent has not received written notice of the intention of any employee of Covalent who holds the role of head of department or any more senior position in respect of the Covalent Business (the "Covalent Key Employees") to terminate his or her employment or provision of services.
|
12.7.2.
|
During the 90 (ninety) calendar day period prior to the Signature Date, Covalent has not issued written notification to terminate the employment or provision of services of any Covalent Key Employees.
|
12.8.
|
Employee Representative Bodies
|
12.8.1.
|
The Data Room lists all trade unions and employee representative bodies with which Covalent habitually deals and formally recognises in respect of the Covalent Business.
|
12.8.2.
|
As at the Signature Date, AngloGold is not involved in and, so far as AngloGold is aware, no fact or circumstance exists which is likely to give rise to a dispute with a trade union or employee representative body representing any of Covalent’s employees.
|
12.9.
|
Collective Bargaining Agreements etc.
|
12.10.
|
Bonus or other Profit-related Schemes
|
12.11.
|
Compliance with Employment Laws
|
12.11.1.
|
So far as AngloGold is aware, there is no investigation or enquiry outstanding by any Governmental Entity or regulatory body in connection with Covalent’s employees or any former employees or consultants of the Covalent Business.
|
12.11.2.
|
Covalent, in connection with the Covalent Business, is not involved in any active, pending or threatened court, tribunal or arbitration proceedings in respect of any of its employees or their dependants other than in the ordinary course of business or in relation to the Silicosis Class Action Settlement Agreement.
|
12.12.
|
Employee Benefits
|
12.12.1.
|
Covalent has made all contributions which it is obliged to make in respect of the MineWorkers Provident Fund, the Sentinel Retirement Fund and the Old Mutual Superfund Pension Fund as the case may be ("Retirement Funds") in respect of Covalent’s employees. In respect of those Covalent employees that are primary members of a medical scheme arising out of their employment with Covalent (but specifically excluding those of Covalent’s employees that are dependants belonging to their spouses’ medical scheme), Covalent has made all contributions which it is obliged to make to the Discovery Health Medical Scheme or Bonitas Medical Fund, as the case may be ("Medical Funds").
|
12.12.2.
|
All Covalent employees are members of at least one of the Retirement Funds.
|
12.12.3.
|
The Retirement Funds and the Medical Funds (collectively referred to as the "Funds") are the only schemes to which Covalent makes, or is liable to make, payments of contributions or premiums for providing retirement, death, disability or life assurance benefits or medical benefits in respect of Covalent’s employees and Covalent has not provided or promised to provide any such benefits in respect of any such employees except under the Funds.
|
12.12.4.
|
As at the Signature Date and so far as AngloGold is aware, there are no pending, existing or threatened disputes, actions, claims or litigation against Covalent regarding any actual or alleged non-compliance with applicable Law or actual or alleged breach of contract in respect of any benefit payable under the Funds in respect of any Covalent employees and there are no circumstances known to AngloGold which might give rise to any such dispute, action, claims or litigation.
|
12.12.5.
|
Except for the CAWMS Liability and the Post-Retirement Medical Aid Promise:
|
12.12.5.1.
|
as at the Closing Date there is no unfunded deficit in respect of any future liability of the Funds or any other contractual or post termination benefits to which an employee or former employee of Covalent is entitled;
|
12.12.5.2.
|
Covalent has no obligation to pay or contribute towards or otherwise fund in any way the payment of post-retirement medical aid benefits for any of the Covalent employees nor will this transaction trigger or vest any such obligation; and
|
12.12.5.3.
|
no Covalent employee is entitled or may become entitled before the Closing Date to any form of subsidisation of medical aid contributions
|
12.13.
|
Outstanding undischarged liabilities in relation to Covalent employees
|
12.13.1.
|
There is no outstanding undischarged liability to pay any Governmental Entity in any jurisdiction any contribution, taxation or other duty arising in connection with the employment or engagement of any of Covalent’s employees, other than in the ordinary and regular course.
|
12.13.2.
|
As at the Signature Date, Covalent has, in connection with the Covalent Business, no outstanding liability for breach or termination of an employment contract between it and Covalent employees.
|
12.14.
|
Employee Loans
|
13.
|
Compliance with Laws
|
13.1.
|
there is no order, decree, decision or judgment of, any court, tribunal or arbitrator in which Covalent is defendant and which is outstanding and is not subject to a further right of appeal or review and which will, or could reasonably, have a material adverse effect upon the Covalent Business;
|
13.2.
|
Covalent is in substantial compliance in all material respects with all applicable Laws which are material to the Covalent Business; and
|
13.3.
|
Covalent has not received any written notice, during the 12 (twelve) month period prior to the Signature Date, from any court, tribunal, arbitrator, Governmental Entity or regulatory body with respect to, any violation of and/or failure to comply with any applicable Law or regulation on the part of Covalent, or requiring it to take or omit any action which in any case will have an effect on the Covalent Business.
|
14.
|
Environment
|
14.1.
|
Covalent has not received written notice from any Environmental Authority during the 12 (twelve) calendar month prior to the Signature Date of any material non-compliance (including, without limitation, conduct or incidents that potentially threatened, in a significant manner, the
|
14.2.
|
all material Environmental Approvals required by Covalent for the carrying on or conduct of the Covalent Business (i) have been duly obtained in accordance with all applicable Laws, and (ii) are valid and subsisting in full force and effect. All material terms and/or conditions applicable to any such material Environmental Approvals (WW) have been and are complied with by Covalent, and, as at the Signature Date, AngloGold has no knowledge of any reason why, any Environmental Approval (WW) should be suspended, cancelled, revoked or adversely varied.
|
15.
|
Insurance
|
15.1.
|
As at the Signature Date, all insurance policies in respect of Covalent have been uploaded to the Data Room.
|
15.2.
|
All premiums payable to date in respect of the aforesaid insurance policies have been paid.
|
16.
|
Litigation
|
16.1.
|
So far as AngloGold is aware, Covalent is not a party to any claims, actions, demands, written proceedings, litigation, summons or subpoena or arbitration (other than as claimant in the collection of debts arising in the ordinary and regular course) which would be likely to have a material adverse effect on Covalent.
|
16.2.
|
As at the Signature Date and so far as AngloGold is aware, Covalent is not a party to any investigation which will, or could reasonably, have a material adverse effect on Covalent.
|
16.3.
|
Covalent is not in default under or with respect to any judgement, order or award, interdict, decree or any similar pronouncement of any court or other similar tribunal (including administrative authority or body) having jurisdiction in respect of them.
|
16.4.
|
So far as AngloGold is aware, Covalent has not been charged with, nor has Covalent committed, any crime (which crime carries a minimum fine of ZAR 5 000 000 (five million Rand) or a penalty of imprisonment without the option of a fine) or been subject to any criminal investigation in respect of such a crime.
|
16.5.
|
As at the Signature Date and so far as AngloGold is aware, no such Claim that would fall within paragraphs 16.1, 16.2, 16.3 and 16.4 above is pending or threatened in writing by or against Covalent.
|
17.
|
Insolvency
|
18.
|
Disclosure
|
1.
|
Corporate Information
|
1.1.
|
AngloGold –
|
1.1.1.
|
is the sole legal and beneficial owner of the AngloGold Security Services Sale Shares and is reflected as the sole registered holder of the AngloGold Security Services Sale Shares in the securities register of AngloGold Security Services, and no person has any right to obtain an order for the rectification of such register;
|
1.1.2.
|
is entitled to Dispose of the AngloGold Security Services Sale Shares to the Purchaser; and
|
1.1.3.
|
has the right to exercise all voting and other rights over the AngloGold Security Services Sale Shares.
|
1.2.
|
AngloGold Security Services is duly incorporated in South Africa as a profit company with limited liability, and no steps have been taken in respect of its deregistration in terms of section 82(3) of the Companies Act.
|
1.3.
|
AngloGold Security Services has all requisite power and authority to own, lease and operate its properties and to carry on its business as presently conducted.
|
1.4.
|
The AngloGold Security Services Sale Shares comprise 100% (one hundred percent) of the total issued and allotted shares of AngloGold Security Services, have been properly and validly issued and allotted and are each fully paid.
|
1.5.
|
Other than as set out in the memorandum of incorporation of AngloGold Security Services, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer, amortisation, redemption or repayment of any share or loan capital or any other security giving rise to a right
|
1.6.
|
There are no Encumbrances on the AngloGold Security Services Sale Shares.
|
1.7.
|
AngloGold Security Services has no Subsidiaries and does not hold any equity in any other entity.
|
2.
|
Constitutional Documents, Corporate Registers and Minute Books
|
2.1.
|
The memorandum of incorporation, certificate to commence business and certificate of incorporation of AngloGold Security Services in the Data Room are true, accurate and up to date copies and include all amendments thereto to date, all of which amendments were duly made in terms of the Companies Act and there have not been and are not any breaches by AngloGold Security Services of its constitutional documents which would have a material adverse effect on the AngloGold Security Services Business.
|
2.2.
|
The registers, statutory books, minute books and books of account required to be maintained by AngloGold Security Services under applicable Law are, in all material respects, up to date; in the possession of AngloGold Security Services in terms of section 25 of the Companies Act; and are properly completed in accordance with the applicable Law.
|
2.3.
|
All filings, publications, registrations and other formalities required by applicable Law to be delivered or made by AngloGold Security Services in South Africa have been duly delivered.
|
3.
|
Accounts
|
3.1.
|
show a true and fair view of AngloGold Security Services' trading transactions and its financial, contractual and trading position;
|
3.2.
|
comply with the requirements of the Companies Act, to the extent applicable to management accounts; and
|
3.3.
|
are accurate in all material respects.
|
4.
|
No Undisclosed Liabilities
|
5.
|
Extraordinary and exceptional items
|
6.
|
Financial Obligations
|
7.
|
Taxes
|
7.1.
|
All returns that may have become due by AngloGold Security Services from time to time under any Law administered by the SARS Commissioner have been duly made.
|
7.2.
|
During the 3 (three) year period prior to the Signature Date, the SARS Commissioner has not reopened any existing Tax assessment in respect of AngloGold Security Services.
|
7.3.
|
AngloGold Security Services is not: (i) and has not at any time during the 3 (three) year period prior to the Signature Date, been in material breach of any Law relating to Tax; or (ii) liable to pay any penalty or interest in connection with any claim for Tax.
|
8.
|
Assets
|
8.1.
|
All assets included or reflected in the AngloGold Security Services Accounts:
|
8.1.1.
|
are (save to the extent otherwise indicated in the AngloGold Security Services Accounts) legally and beneficially owned by AngloGold Security Services; and
|
8.1.2.
|
are, where capable of possession, in the possession or under the control of AngloGold Security Services and, so far as AngloGold is aware, there are no circumstances which might result in any Governmental Entity expropriating any such assets.
|
8.2.
|
None of the assets contemplated in paragraph 8.1.1 are the subject of any factoring arrangement, conditional sale, instalment, lease, hire-purchase or credit agreement and all such assets are free of any and all Encumbrances.
|
8.3.
|
No person has any right (whether pursuant to any option, preferential right or right of first refusal or otherwise) to purchase or acquire (whether as security or otherwise) or claim delivery, ownership or transfer or the use, occupation, possession or enjoyment of or used in any of the assets of the AngloGold Security Services Business.
|
8.4.
|
The assets relating to the AngloGold Security Services Business and reflected in the AngloGold Security Services Accounts comprise all the assets which: (i) are owned by AngloGold Security Services and used in the AngloGold Security Services Business, except to the extent replaced with an equivalent asset owned by AngloGold Security Services or no longer material for the AngloGold Security Services Business, and (ii) are necessary to carry on and continue the AngloGold Security Services Business as it is carried on by AngloGold Security Services and AngloGold, as applicable, as at the Signature Date and the 12 (twelve) months preceding the Signature Date. The AngloGold Security Services Business does not materially depend on the use of any assets owned by, or facilities provided by, AngloGold or any Affiliate, or any other third party, which are not being acquired by the Purchasers under this Agreement.
|
8.5.
|
The material assets, as reflected in the AngloGold Security Services Accounts, or to the extent replaced, an equivalent asset, relating to the AngloGold Security Services Business, have been maintained in accordance with reasonable standards, are in working condition for their purpose (fair wear and tear excepted) and are used exclusively in connection with the WW Businesses.
|
9.
|
Data Room
|
10.
|
Contracts
|
10.1.
|
AngloGold Security Services is not a party to or subject to any contract in respect of which the consideration payable or receivable will exceed US$5 000 000 (five million Dollars).
|
10.2.
|
AngloGold Security Services is not a party to or subject to any contract, agreement, dealings or similar arrangements with a Designated Party.
|
10.3.
|
There are no agreements or arrangements (other than agreements or arrangements referred to or contemplated in this Agreement) between AngloGold or any of its Affiliates, on the one hand, and AngloGold Security Services on the other.
|
10.4.
|
AngloGold Security Services is not in breach of any material terms of the contracts contemplated in paragraph 10.1 above.
|
10.5.
|
AngloGold Security Services is not a party to any forward sale agreements which endure for a period longer than 12 (twelve) months.
|
10.6.
|
No other material contracts are required for the running of the AngloGold Security Services Business other than the contracts to which AngloGold Security Services is a party.
|
11.
|
Joint Ventures etc.
|
12.
|
AngloGold Security Services Employees
|
13.
|
Compliance with Laws
|
13.1.
|
there is no order, decree, decision or judgment of, any court, tribunal or arbitrator in which AngloGold Security Services is defendant and which is outstanding and is not subject to a further right of appeal or review and which will, or could reasonably, have a material adverse effect upon the AngloGold Security Services Business;
|
13.2.
|
AngloGold Security Services is in substantial compliance in all material respects with all applicable Laws which are material to the AngloGold Security Services Business;
|
13.3.
|
AngloGold Security Services has not received any written notice, during the 12 (twelve) month period prior to the Signature Date, from any court, tribunal, arbitrator, Governmental Entity or regulatory body with respect to, any violation of and/or failure to comply with any applicable Law or regulation on the part of AngloGold Security Services, or requiring it to take or omit any action which in any case will have an effect on the AngloGold Security Services Business; and
|
13.4.
|
save for the Government Approvals uploaded to the Data Room, there are no other Government Approvals required by AngloGold Security Services for the carrying on or conduct of the AngloGold Security Services Business.
|
14.
|
Litigation
|
14.1.
|
So far as AngloGold is aware, AngloGold Security Services is not a party to any claims, actions, demands, written proceedings, litigation, summons or subpoena or arbitration (other than as claimant in the collection of debts arising in the ordinary and regular course) which would be likely to have a material adverse effect on AngloGold Security Services.
|
14.2.
|
As at the Signature Date and so far as AngloGold is aware, AngloGold Security Services is not a party to any investigation which will, or could reasonably, have a material adverse effect on AngloGold Security Services.
|
14.3.
|
AngloGold Security Services is not in default under or with respect to any judgement, order or award, interdict, decree or any similar pronouncement of any court or other similar tribunal (including administrative authority or body) having jurisdiction in respect of them.
|
14.4.
|
So far as AngloGold is aware, AngloGold Security Services has not been charged with, nor has AngloGold Security Services committed, any crime (which crime carries a minimum fine of ZAR5 000 000 (five million Rand) or a penalty of imprisonment without the option of a fine) or been subject to any criminal investigation in respect of such a crime.
|
14.5.
|
As at the Signature Date and so far as AngloGold is aware, no such Claim that would fall within paragraphs 16.1, 16.2, 16.3 and 16.4 above is pending or threatened in writing by or against AngloGold Security Services.
|
15.
|
Insolvency
|
16.
|
Disclosure
|
1.
|
Corporate Information
|
1.1.
|
AngloGold –
|
1.1.1.
|
is the sole legal and beneficial owner of the Masakhisane Sale Shares and is reflected as the sole registered holder of the Masakhisane Sale Shares in the securities register of Masakhisane, and no person has any right to obtain an order for the rectification of such register;
|
1.1.2.
|
is entitled to Dispose of the Masakhisane Sale Shares to the Purchaser; and
|
1.1.3.
|
has the right to exercise all voting and other rights over the Masakhisane Sale Shares.
|
1.2.
|
Masakhisane is duly incorporated in South Africa as a profit company with limited liability, and no steps have been taken in respect of its deregistration in terms of section 82(3) of the Companies Act.
|
1.3.
|
Masakhisane has all requisite power and authority to own, lease and operate its properties and to carry on its business as presently conducted.
|
1.4.
|
The Masakhisane Sale Shares comprise 100% (one hundred percent) of the total issued and allotted shares of Masakhisane, have been properly and validly issued and allotted and are each fully paid.
|
1.5.
|
Other than as set out in the memorandum of incorporation of Masakhisane, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer, amortisation, redemption or repayment of any share or loan capital or any other security giving rise to a right over, or an interest in, Masakhisane under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.6.
|
There are no Encumbrances on the Masakhisane Sale Shares.
|
1.7.
|
Masakhisane has no Subsidiaries and does not hold any equity in any other entity.
|
2.
|
Constitutional Documents, Corporate Registers and Minute Books
|
2.1.
|
The memorandum of incorporation, certificate to commence business and certificate of incorporation of Masakhisane in the Data Room are true, accurate and up to date copies and include all amendments thereto to date, all of which amendments were duly made in terms of
|
2.2.
|
The registers, statutory books, minute books and books of account required to be maintained by Masakhisane under applicable Law are, in all material respects, up to date; in the possession of Masakhisane in terms of section 25 of the Companies Act; and properly completed in accordance with the applicable Law.
|
2.3.
|
All filings, publications, registrations and other formalities required by applicable Law to be delivered or made by Masakhisane in South Africa have been duly delivered.
|
3.
|
Accounts
|
3.1.
|
show a true and fair view of Masakhisane's trading transactions and its financial, contractual and trading position;
|
3.2.
|
comply with the requirements of the Companies Act, to the extent applicable to management accounts; and
|
3.3.
|
are accurate in all material respects.
|
4.
|
No Undisclosed Liabilities
|
5.
|
Extraordinary and exceptional items
|
6.
|
Financial Obligations
|
7.
|
Taxes
|
7.1.
|
All returns that may have become due by Masakhisane from time to time under any Law administered by the SARS Commissioner have been duly made.
|
7.2.
|
During the 3 (three) year period prior to the Signature Date, the SARS Commissioner has not reopened any existing Tax assessment in respect of Covalent.
|
7.3.
|
Masakhisane is not: (i) and has not at any time during the 3 (three) year period prior to the Signature Date, been in material breach of any Law relating to Tax; or (ii) liable to pay any penalty or interest in connection with any claim for Tax.
|
8.
|
Assets
|
8.1.
|
All assets included or reflected in the Masakhisane Accounts:
|
8.1.1.
|
are (save to the extent otherwise indicated in the Masakhisane Accounts) legally and beneficially owned by Masakhisane; and
|
8.1.2.
|
are, where capable of possession, in the possession or under the control of Masakhisane and, so far as AngloGold is aware, there are no circumstances which might result in any Governmental Entity expropriating any such assets.
|
8.2.
|
None of the assets contemplated in paragraph 8.1.1 are the subject of any factoring arrangement, conditional sale, instalment, lease, hire-purchase or credit agreement and all such assets are free of any and all Encumbrances.
|
8.3.
|
No person has any right (whether pursuant to any option, preferential right or right of first refusal or otherwise) to purchase or acquire (whether as security or otherwise) or claim delivery, ownership or transfer or the use, occupation, possession or enjoyment of or used in any of the assets of the Masakhisane Business.
|
8.4.
|
The assets relating to the Masakhisane Business and reflected in the Masakhisane Accounts comprise all the assets which: (i) are owned by Masakhisane and used in the Masakhisane Business, except to the extent replaced with an equivalent asset owned by Masakhisane or no longer material for the Masakhisane Business, and (ii) are necessary to carry on and continue the Masakhisane Business as it is carried on by Masakhisane and AngloGold, as applicable, as at the Signature Date and the 12 (twelve) months preceding the Signature Date. The Masakhisane Business does not materially depend on the use of any assets owned by, or facilities provided by, AngloGold or any Affiliate, or any other third party, which are not being acquired by the Purchasers under this Agreement.
|
9.
|
Data Room
|
10.
|
Contracts
|
10.1.
|
Masakhisane is not a party to or subject to any contract in respect of which the consideration payable or receivable will exceed US$1 000 000 (one million Dollars).
|
10.2.
|
Masakhisane is not a party to or subject to any contract, agreement, dealings or similar arrangements with a Designated Party.
|
10.3.
|
Other than in the ordinary and regular course of business, there are no agreements or arrangements (other than agreements or arrangements referred to or contemplated in this Agreement) between AngloGold or any of its Affiliates, on the one hand, and Masakhisane on the other.
|
10.4.
|
Masakhisane is not in breach of any material terms of the contracts contemplated in paragraph 10.1 above.
|
10.5.
|
No other material contracts are required for the running of the Masakhisane Business other than the contracts to which Masakhisane is a party.
|
11.
|
Joint Ventures etc.
|
12.
|
Masakhisane Employees
|
13.
|
Compliance with Laws
|
13.1.
|
there is no order, decree, decision or judgment of, any court, tribunal or arbitrator in which Masakhisane is defendant and which is outstanding and is not subject to a further right of appeal or review and which will, or could reasonably, have a material adverse effect upon the Masakhisane Business;
|
13.2.
|
Masakhisane is in substantial compliance in all material respects with all applicable Laws which are material to the Masakhisane Business;
|
13.3.
|
Masakhisane has not received any written notice, during the 12 (twelve) month period prior to the Signature Date, from any court, tribunal, arbitrator, Governmental Entity or regulatory body with respect to, any violation of and/or failure to comply with any applicable Law or regulation on the part of Masakhisane, or requiring it to take or omit any action which in any case will have an effect on the Masakhisane Business; and
|
13.4.
|
no Government Approvals are required by Masakhisane for the carrying on or conduct of the Masakhisane Business.
|
14.
|
Litigation
|
14.1.
|
So far as AngloGold is aware, Masakhisane is not a party to any claims, actions, demands, written proceedings, litigation, summons or subpoena or arbitration (other than as claimant in the collection of debts arising in the ordinary and regular course) which would be likely to have a material adverse effect on Masakhisane.
|
14.2.
|
As at the Signature Date and so far as AngloGold is aware, Masakhisane is not a party to any investigation which will, or could reasonably, have a material adverse effect on Masakhisane.
|
14.3.
|
Masakhisane is not in default under or with respect to any judgement, order or award, interdict, decree or any similar pronouncement of any court or other similar tribunal (including administrative authority or body) having jurisdiction in respect of them.
|
14.4.
|
So far as AngloGold is aware, Masakhisane has not been charged with, nor has Masakhisane committed, any crime or been subject to any criminal investigation (which crime carries a minimum fine of ZAR 5 000 000 (five million Rand) or a penalty of imprisonment without the option of a fine) or been subject to any criminal investigation in respect of such a crime.
|
14.5.
|
As at the Signature Date and so far as AngloGold is aware, no such Claim that would fall within paragraphs 14.1, 14.2, 14.3 and 14.4 above is pending or threatened in writing by or against Masakhisane.
|
15.
|
Insolvency
|
16.
|
Disclosure
|
1.
|
Title
|
1.1.
|
AngloGold –
|
1.1.1.
|
is the sole legal and beneficial owner of the Sale Assets (WW); and
|
1.1.2.
|
has full and unrestricted right, title and authority to Dispose of all of the full legal and beneficial rights, title and interests of and to the Sale Assets (WW) to the Purchaser, to the exclusion of all others, on and with effect from the Closing Date.
|
1.2.
|
No person has any present or future right or option or right of first refusal over all or any part of the WW Mining Business other than the WW Mining Sale Assets.
|
1.3.
|
No person has any present or future right or option or right of first refusal over all or any part of the material WW Mining Sale Assets.
|
1.4.
|
As at Closing Date, there will not be any Encumbrance over all or substantially all of the Sale Assets (WW);
|
1.5.
|
None of the Sale Assets (WW), other than the WW Mining Sale Assets, are the subject of any factoring arrangement, conditional sale or credit agreement.
|
1.6.
|
None of the material WW Mining Sale Assets is the subject of any factoring arrangement, conditional sale or credit agreement.
|
1.7.
|
All material Sale Assets (WW) are free of any and all Encumbrances.
|
1.8.
|
So far as AngloGold is aware, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the Disposal of the WW Mining Business, any of the material Sale Assets (WW) (other than the WW Mining Sale Assets) or any other security giving rise to a right or Encumbrance over, or an interest in, the assets of the WW Mining Business other than the WW Mining Sale Assets under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.9.
|
So far as AngloGold is aware, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the Disposal of any of the material WW Mining Sale Assets or any other security giving rise to a right or Encumbrance over, or an interest in, any of the material WW Mining Sale Assets under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.10.
|
As at the Signature Date, there are no Claims pending or, so far as AngloGold is aware, threatened that are reasonably likely to prohibit or restrain the ability of AngloGold to enter into this Agreement or consummate the transactions contemplated hereby.
|
2.
|
Accounts
|
2.1.
|
give a true and fair view of the state of affairs of the WW Mining Business and of the profit and loss of the WW Mining Business for the period to which the AGA Accounts relate; and
|
2.2.
|
have been prepared in accordance with SAICA Financial Reporting Guides as issued by the Accounting Practices Committee and Financial Reporting Pronouncements as issued by the Financial Reporting Standards Council.
|
3.
|
Books and records
|
3.1.
|
have been prepared and maintained as required by Law, and will be so kept to the Closing Date, in all material respects;
|
3.2.
|
are accurate in all material respects;
|
3.3.
|
in respect of the accounting records, show a true and fair view of its trading transactions and its financial, contractual and trading position; and
|
3.4.
|
are in the possession or under the control of AngloGold.
|
4.
|
Taxes
|
5.
|
Financial Obligations
|
6.
|
Business and Assets
|
6.1.
|
General
|
6.1.1.
|
The Sale Assets (WW) include all rights (including without limitation, real rights, limited real rights, personal or contractual rights, or otherwise), properties, assets, facilities and services which are held by AngloGold, or to which AngloGold is entitled if and to the extent that they are: (a) used in the WW Mining Business; and (b) necessary for the effective carrying on and continuation of the WW Mining Business as it is carried on by AngloGold as at the Signature Date and the 12 (twelve) months preceding the Signature Date.
|
6.1.2.
|
Following Closing, AngloGold will have no rights or interests in any contract with any Qualifying Employee in respect of the WW Package.
|
6.1.3.
|
None of the Immoveable Properties (WW) are subject to, nor is there agreement to create, any Encumbrance apart from the servitudes, real rights, personal rights and restrictive conditions of title registered against the title deeds of the Immoveable Properties (WW) on Signature Date, and the surface right permits registered in the Mining Titles Office that pertains to the Immoveable Properties (WW) on Signature Date.
|
6.1.4.
|
As at the Signature Date, no notice has been received by AngloGold of the intention of any Governmental Entity to expropriate any of the Immoveable Properties (WW) or any portion/s thereof nor, so far as AngloGold is aware, is there any intention to expropriate any of the Immoveable Properties (WW) or any portion/s thereof by any such Governmental Entity.
|
6.1.5.
|
So far as AngloGold is aware, as at the Signature Date, no claims are pending, nor are any claims intended, under the Restitution of Land Rights Act, No. 22 of 1944, as amended, against any of the Immoveable Properties (WW) or any portion/s thereof.
|
6.1.6.
|
The Sale Assets (WW) have been maintained in accordance with reasonable standards, are in working condition for their purpose (fair wear and tear excepted) and are used exclusively or primarily in connection with the WW Mining Business.
|
6.1.7.
|
AngloGold has not for the period of 12 (twelve) months prior to the Signature Date, other than in the ordinary and regular course of business, sold or otherwise
|
6.1.8.
|
So far as AngloGold is aware, the Immoveable Properties (WW) and Infrastructure (WW) comprise of all the land and buildings owned by AngloGold in respect of the WW Mining Business.
|
6.1.9.
|
The MOD (WW) and the Tailings Storage Facilities (WW) were created prior to 1 May 2004.
|
6.2.
|
Title to the Immoveable Properties (WW) and Sale Assets (WW)
|
6.2.1.
|
AngloGold is the registered owner of and is entitled to occupy the Immoveable Properties (WW), save in relation to land and buildings forming part of the Immoveable Properties (WW) which are leased to third parties in terms of the lease agreements uploaded to the Data Room and in respect of which the relevant third parties to such lease agreements have the right to occupy same. All lease agreements to which AngloGold is a party as at the Signature Date in respect of the Immoveable Properties (WW) form part of the Data Room Documents.
|
6.2.2.
|
None of the Sale Assets (WW) are owned by any Affiliate of AngloGold or any third party.
|
6.2.3.
|
AngloGold has not Disposed of any of the Immoveable Properties (WW) or Sale Assets (WW), nor has it granted to any third party the right to acquire, either by way of option or right of pre-emption, any of the Immoveable Properties (WW) or Sale Assets (WW) or any right or interest therein.
|
6.2.4.
|
The Immoveable Properties (WW) are not subject to any servitude, whether personal or praedial, other than the servitudes recorded against the title deeds of the relevant Immoveable Properties (WW), and no agreement will have been entered into whereby any restrictive condition or servitude is to be attached to any of the Immoveable Properties (WW), excluding any servitudes, rights of way, access or similar rights granted in favour of the Purchaser and/or as may be granted by the Purchaser or provided for pursuant to the Agreement or an SLA (WW).
|
6.2.5.
|
The use of the freehold residential properties listed in Annexure Q are not subject to any restrictions imposed as a result of the presence of a major hazard installation (as defined in the Occupational Health and Safety Act, No 85 of 1993).
|
6.2.6.
|
AngloGold has in a manner consistent with past practice, and/or in accordance with the terms and conditions of any settlement, set off or other payment arrangements entered into with the relevant local authority, made all payments in respect of municipal and/or other assessment rates, taxes and other imposts of whatsoever nature in respect of the Immoveable Properties (WW), and all charges in respect of water, sewerage, gas and electricity supplied to or consumed on the Immoveable Properties (WW).
|
6.2.7.
|
No person has any right (including any option, preferential right or right of first refusal) to acquire or claim delivery, ownership or transfer or the use, occupation, possession or enjoyment of any of the Immoveable Properties (WW) or Sale Assets (WW) other than in terms of the Lease Agreements (WW).
|
6.2.8.
|
So far as AngloGold is aware, the freehold residential properties listed in Annexure Q and all buildings and erections thereon comply in every material respect with all material Governmental Entities’ requirements relating thereto. So far as AngloGold is aware, it is not under any obligation in terms of any Laws or Governmental Entities' requirements to make any alterations, repairs or additions to the freehold residential properties listed in Annexure Q or to any buildings or erections thereon.
|
6.2.9.
|
AngloGold is the owner of and is entitled to occupy the Immoveable Properties (WW); and sell the Immoveable Properties (WW) to the Purchaser under the Agreement.
|
7.
|
Data Room
|
8.
|
Contracts
|
8.1.
|
AngloGold is not in breach of any material terms of any material contract in respect of the WW Mining Business.
|
8.2.
|
AngloGold is not bound to any exclusivity, right of first refusal, restraint of trade or similar arrangement in respect of any contract in respect of the WW Mining Business.
|
9.
|
WW Mining Business employees and employee benefits
|
9.1.
|
Transferring Employees (WW)
|
9.1.1.
|
As at the Signature Date, the spreadsheet contained in folders 1.2.3.2.11.0.2 and 1.2.3.2.11.0.3 of the Data Room contains materially complete, accurate and up to date details of –
|
9.1.1.1.
|
the total number of the Transferring Employees (WW) including those who are on maternity or other statutory leave or other long-term leave of absence and who have or may have a right to return to work in the WW Mining Business;
|
9.1.1.2.
|
the name, date of start of employment, period of continuous employment, salary, bonus entitlements, grade, age of each Transferring Employee (WW), and the immigration controls applicable to each Transferring Employee (WW);
|
9.1.1.3.
|
the leave pay accrued to the Transferring Employees (WW) at the Closing Date; and
|
9.1.1.4.
|
the hypothetical severance pay amounts that would have been payable to the Transferring Employees (WW) had they been retrenched by AngloGold on the Closing Date.
|
9.1.2.
|
All contracts of service of any of the Transferring Employees (WW) are terminable on not more than 3 (three) months’ notice without compensation, other than compensation payable in accordance with the Basic Conditions of Employment Act, No. 75 of 1997, as amended.
|
9.1.3.
|
No Transferring Employee (WW) is subject to any secondment arrangements.
|
9.1.4.
|
No Transferring Employee (WW) is employed by any Affiliate of AngloGold or any third party.
|
9.1.5.
|
None of the Transferring Employees (WW) will become entitled by virtue of their contract of service to any enhancement in or improvement to their remuneration, benefits or terms and conditions of service only by reason of the execution of this Agreement or the completion of the sale and purchase of the VR Remaining Business under or pursuant to this Agreement.
|
9.1.6.
|
As at 3 February 2020, AngloGold owes no amount to any of the Transferring Employees (WW) which has not been disclosed in the spreadsheet contained in folder 1.2.3.2.1.0.7.
|
9.1.7.
|
AngloGold has maintained up to date, full and accurate records regarding employment of each of the Transferring Employees (WW) (including, without limitation, details of terms of employment, training records, payments of statutory
|
9.1.8.
|
As at the Signature Date: (a) all of the persons listed in Annexure O are Qualifying Employees in respect of the WW Businesses; and (b) there are no Qualifying Employees in respect of the WW Businesses who are not listed in Annexure O and Annexure JJ.
|
9.2.
|
Termination of Employment
|
9.2.1.
|
During the 90 (ninety) calendar day period prior to the Signature Date, AngloGold has not received written notice of the intention of any employee of AngloGold who holds the role of head of department or any more senior position in respect of the WW Mining Business (the "Key Employees (WW)") to terminate his or her employment or provision of services.
|
9.2.2.
|
During the 90 (ninety) calendar day period prior to the Signature Date, AngloGold has not issued written notification to terminate the employment or provision of services of any Key Employees (WW).
|
9.3.
|
Employee Representative Bodies
|
9.3.1.
|
The Data Room lists all trade unions and employee representative bodies with which AngloGold habitually deals and formally recognises in respect of the WW Mining Business.
|
9.3.2.
|
As at the Signature Date, AngloGold is not involved in and, so far as AngloGold is aware, no fact or circumstance exists which is likely to give rise to a dispute with a trade union or employee representative body representing any of the Transferring Employees (WW).
|
9.4.
|
Collective Bargaining Agreements etc.
|
9.5.
|
Bonus or other Profit-related Schemes
|
9.6.
|
Employee Benefits
|
9.6.1.
|
AngloGold has made all contributions which it is obliged to make in respect of the MineWorkers Provident Fund, the Sentinel Retirement Fund and the Old Mutual Superfund Pension Fund ("Retirement Funds") in respect of the Transferring Employees (WW). In respect of those Transferring Employees (WW) that are primary members of a medical scheme arising out of their employment with AngloGold (but specifically excluding those Transferring Employees (WW) that are dependants belonging to their spouses’ medical scheme), AngloGold has made all contributions which it is obliged to make to the Discovery Health Medical Scheme or Bonitas Medical Fund, as the case may be ("Medical Funds").
|
9.6.2.
|
All Transferring Employees (WW) are members of at least one of the Retirement Funds.
|
9.6.3.
|
The Retirement Funds and the Medical Funds (collectively referred to as the "Funds") are the only schemes to which AngloGold makes, or is liable to make, payments of contributions or premiums for providing retirement, death, disability or life assurance benefits or medical benefits in respect of the Transferring Employees and AngloGold has not provided or promised to provide any such benefits in respect of any such Transferring Employees (WW) except under the Funds.
|
9.6.4.
|
As at the Signature Date and so far as AngloGold is aware, there are no pending, existing or threatened disputes, actions, claims or litigation against AngloGold regarding any actual or alleged non-compliance with applicable Law or actual or alleged breach of contract in respect of any benefit payable under the Funds in respect of any Transferring Employee (WW) and there are no circumstances known to AngloGold which might give rise to any such dispute, action, claims or litigation.
|
9.6.5.
|
Save as disclosed under Annexure D and except for the CAWMS Liability and the Post-Retirement Medical Aid Promise:
|
9.6.5.1.
|
as at the Closing Date, there is no unfunded deficit in respect of any future liability of the Funds or any other contractual or post termination benefits to which an employee or former employee of AngloGold is entitled;
|
9.6.5.2.
|
AngloGold has no obligation to pay or contribute towards or otherwise fund in any way the payment of post-retirement medical aid benefits for any of the Transferring Employees (WW) nor will this transaction trigger or vest any such obligation; and
|
9.6.5.3.
|
no Transferring Employee (WW) is entitled or may become entitled before the Closing Date to any form of subsidisation of medical aid contributions or medical expenses upon the termination of their employment for any reason whatsoever.
|
9.7.
|
Outstanding undischarged liabilities in relation to the Transferring Employees (WW)
|
9.7.1.
|
There is no outstanding undischarged liability to pay any Governmental Entity in any jurisdiction any contribution, taxation or other duty arising in connection with the employment or engagement of any of the Transferring Employees (WW), other than in the ordinary and regular course.
|
9.7.2.
|
As at the Signature Date, AngloGold has no outstanding liability for breach or termination of an employment contract between it and the Transferring Employees (WW).
|
9.8.
|
Employee Loans
|
9.9.
|
Compliance with employment Laws
|
9.9.1.
|
So far as AngloGold is aware, there is no investigation or enquiry outstanding by any Governmental Entity or regulatory body in connection with the Transferring Employees (WW) or any former employees or consultants of the WW Mining Business.
|
9.9.2.
|
AngloGold, in connection with the WW Mining Business, is not involved in any active, pending or threatened court, tribunal or arbitration proceedings in respect of the Transferring Employees (WW) or any former employees or consultants of AngloGold or their dependants other than in the ordinary and regular course or in relation to the Silicosis Class Action Settlement Agreement and so far as AngloGold is aware, there are no facts or circumstances that are likely to give rise to such proceedings, save as aforesaid.
|
10.
|
WW Mining Rights
|
10.1.
|
On the Closing Date, AngloGold is the lawful holder and sole beneficial owner of the WW Mining Rights which is duly executed, have been registered in the Mining Titles Office, is valid, enforceable and in good standing.
|
10.2.
|
No other person has claimed to be entitled to a mining right in respect of all or part of the areas covered by the WW Mining Rights and there is no dispute between AngloGold, the DMRE or Minister or any third party regarding the grant of any of the WW Mining Rights. AngloGold knows no reason that would make the Mining Titles Office refuse to register the Notarial Deeds of Cession.
|
10.3.
|
None of the WW Mining Rights have been offered as security to any person nor are they the subject of an Encumbrance which would in any way limit the ability of AngloGold to enter into this Agreement.
|
10.4.
|
AngloGold is not aware of, nor has any notice been given of, any actions, suits or legal, administrative or other proceedings or investigations, pending or threatened before any court, agency or other tribunal in respect of the WW Mining Areas or the WW Mining Rights which might adversely affect the WW Mining Areas or the WW Mining Rights.
|
10.5.
|
AngloGold is not aware of any pending or contemplated or threatened suspension or cancellation of the WW Mining Rights and is not aware of any facts or circumstances which may give rise to a suspension or cancellation of the WW Mining Rights.
|
10.6.
|
As at the Signature Date, AngloGold is not aware of any pending or contemplated or threatened suspension or cancellation of the WW Mining Rights and is not aware of any facts or circumstances which may give rise to a suspension or cancellation of the WW Mining Rights.
|
10.7.
|
No notice to suspend, cancel or revoke the WW Mining Rights has been received by AngloGold.
|
11.
|
Surface Right Permits
|
12.
|
Compliance with Laws
|
12.1.
|
AngloGold has filed all reports and returns which it is required to submit in terms of the MPRDA or in terms of the conditions of the WW Mining Rights and is not in any breach of any condition
|
12.2.
|
there is no order, decree, decision or judgment of, any court, tribunal or arbitrator in which AngloGold is defendant and which is outstanding, and which will have a material adverse effect upon the WW Mining Business;
|
12.3.
|
as at the Signature Date, AngloGold does not know of any material non-compliances with, or material contraventions of, nor has it received during the 24 (twenty four) months period prior to the Signature Date written notice from any regulatory authority or Governmental Entity that the premises on and from which AngloGold carries on the WW Mining Business does not materially comply with, any material applicable Laws;
|
12.4.
|
AngloGold is in compliance in all material respects with all applicable Laws which are material in respect of the WW Mining Business;
|
12.5.
|
no written notice to suspend or revoke any of AngloGold’s Governmental Approvals in respect of the WW Mining Business has been received by AngloGold;
|
12.6.
|
AngloGold has not received any written notice during the 12 (twelve) month period preceding the Signature Date from any court, tribunal, arbitrator, Governmental Entity or regulatory body with respect to, any violation of and/or failure to comply with any applicable Law, regulation or requiring it to take or omit any action which in any case would have a material adverse effect on the WW Mining Business;
|
12.7.
|
neither AngloGold nor any member of the Group is a party to any agreement, arrangement, understanding or practice in respect of the WW Mining Business, whether or not legally enforceable which infringes, or has infringed, any applicable competition Law; and
|
12.8.
|
no bribe or other corrupt payment was made by any member of the Group or any other Affiliate to any Government Official or any other person during the course of the conduct of the WW Mining Business.
|
13.
|
Environment
|
13.1.
|
So far as AngloGold is aware, AngloGold has not received written notice from any Environmental Authority during the 12 (twelve) month period prior to the Signature Date, of any material non-compliance with Environmental Law in respect of the WW Mining Business that is outstanding as at the Signature Date.
|
13.2.
|
AngloGold is conducting the WW Mining Business in material compliance with all Environmental Laws, and in particular, AngloGold:
|
13.2.1.
|
has taken all reasonable measures to prevent and/or remediate any significant pollution or significant degradation of the Environment occurring as a result of the mining operations or emanating from the WW Region; and
|
13.2.2.
|
other than closure rehabilitation obligations, does not have any outstanding obligations under any Environmental Law to remedy any Environmental harm, remediate any land, demolish any buildings or structures or to make any alterations, repairs or additions to any immovable property.
|
13.2.3.
|
all Environmental Approvals (WW): (i) have been duly obtained in accordance with all applicable Laws, and (ii) are valid and subsisting in full force and effect. All material terms and/or conditions applicable to any such licences, certificates and permits have been and are complied with by AngloGold and AngloGold has no knowledge of any reason why any of them should be suspended, cancelled, revoked or adversely varied.
|
14.
|
Insurance
|
14.1.
|
All insurance policies in respect of the WW Mining Business have been uploaded to the Data Room.
|
14.2.
|
All premiums payable to date in respect of the aforesaid insurance policies have been paid.
|
15.
|
Litigation
|
15.1.
|
So far as AngloGold is aware, AngloGold is not a party to any litigation, mediation, expropriation or arbitration proceedings (other than as a claimant in the collection of debts arising in the ordinary and regular course) which would be likely to have a material adverse effect on the WW Mining Business.
|
15.2.
|
So far as AngloGold is aware, AngloGold has not been charged with, nor has AngloGold committed, any crime or been subject to any criminal investigation which would be likely to have a material adverse effect on the WW Mining Business.
|
15.3.
|
AngloGold is not in default under or with respect to any judgement, order or award, interdict, decree or any similar pronouncement of any court or other similar tribunal (including administrative authority or body) having jurisdiction in respect of them.
|
15.4.
|
As at the Signature Date and so far as AngloGold is aware, no such litigation, mediation, expropriation or arbitration that would fall within paragraph 14.1 above is pending or threatened in writing by or against all or any part of the WW Mining Business.
|
16.
|
Insolvency
|
17.
|
Disclosure
|
Annexure B
|
Warranties (VR)
|
1.
|
references to “the Agreement” shall be references to the sale agreement to which this Annexure B is attached;
|
2.
|
words and expressions defined in the Agreement shall bear the same meaning in this Annexure B;
|
3.
|
the warranties contained in this Annexure B are given by AngloGold in relation to the VR Package on the basis set out in clause 40 of the Agreement; and
|
4.
|
where a warranty is qualified with "so far as {an entity} is aware", or any similar expression (whether that entity is AngloGold or any of the WW Companies), it shall mean the actual knowledge of each of any of the following persons in relation to the relevant Warranties: Cindy Chater, Shawn Snell, Johann Snyman, Yusuf Kharbhai, Charl Human, Durant Archery, Raymond Ranta, Moses Modondo, George Trollipe, Gelishan Naidoo, Richard Mack and Vaughn Chamberlain.
|
1.
|
Corporate Information
|
1.1.
|
AngloGold –
|
1.1.1.
|
is the sole legal and beneficial owner of the FUSA Sale Shares and the FUSA Sale Claims and is reflected as the sole registered holder of the FUSA Sale Shares in the securities register of FUSA, and no person has any right to obtain an order for the rectification of such register;
|
1.1.2.
|
is entitled to Dispose of the FUSA Sale Shares and the FUSA Sale Claims to the Purchaser; and
|
1.1.3.
|
has the right to exercise all voting and other rights over the FUSA Sale Shares.
|
1.2.
|
FUSA is duly incorporated in South Africa as a profit company with limited liability, and no steps have been taken in respect of its deregistration in terms of section 82(3) of the Companies Act.
|
1.3.
|
FUSA has all requisite power and authority to own, lease and operate its properties and to carry on its business as presently conducted.
|
1.4.
|
The FUSA Sale Shares comprise 100% (one hundred percent) of the total issued and allotted shares of FUSA, have been properly and validly issued and allotted and are each fully paid.
|
1.5.
|
Other than as set out in the memorandum of incorporation of FUSA, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer, amortisation, redemption or repayment of any share or loan capital or any other security giving rise to a right over, or an interest in FUSA under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.6.
|
There are no Encumbrances on the FUSA Sale Shares or the FUSA Sale Claims.
|
2.
|
Constitutional Documents, Corporate Registers and Minute Books
|
2.1.
|
The memorandum of incorporation, certificate to commence business and certificate of incorporation of FUSA in the Data Room are true, accurate and up to date copies and include all amendments thereto to date, all of which amendments were duly made in terms of the Companies Act and there have not been and are not any breaches by FUSA of its constitutional documents which would have a material adverse effect on the FUSA Business.
|
2.2.
|
The registers, statutory books, minute books and books of account required to be maintained by FUSA under applicable Law are, in all material respects, up to are up to date; in the
|
2.3.
|
All filings, publications, registrations and other formalities required by applicable Law to be delivered or made by FUSA in South Africa have been duly delivered.
|
3.
|
Accounts
|
3.1.
|
show a true and fair view of FUSA's trading transactions and its financial, contractual and trading position;
|
3.2.
|
comply with the requirements of the Companies Act, to the extent applicable to management accounts; and
|
3.3.
|
are accurate in all material respects.
|
4.
|
No Undisclosed Liabilities
|
5.
|
Extraordinary and exceptional items
|
6.
|
Financial Obligations
|
7.
|
Taxes
|
7.1.
|
All returns that may have become due by FUSA from time to time under any Law administered by the SARS Commissioner have been duly made.
|
7.2.
|
During the 3 (three) year period prior to the Signature Date, the SARS Commissioner has not reopened any existing Tax assessment in respect of FUSA.
|
7.3.
|
FUSA is not: (i) and has not at any time during the 3 (three) year period prior to the Signature Date, been in material breach of any Law relating to Tax; or (ii) liable to pay any penalty or interest in connection with any claim for Tax.
|
8.
|
Assets
|
8.1.
|
All assets included or reflected in the FUSA Accounts:
|
8.1.1.
|
are (save to the extent otherwise indicated in the FUSA Accounts) legally and beneficially owned by FUSA; and
|
8.1.2.
|
are, where capable of possession, in the possession or under the control of FUSA and, so far as AngloGold is aware, there are no circumstances which might result in any Governmental Entity expropriating any such assets.
|
8.2.
|
None of the assets contemplated in paragraph 8.1.1 are the subject of any factoring arrangement, conditional sale, instalment, lease, hire-purchase or credit agreement and all such assets are free of any and all Encumbrances.
|
8.3.
|
No person has any right (whether pursuant to any option, preferential right or right of first refusal or otherwise) to purchase or acquire (whether as security or otherwise) or claim delivery, ownership or transfer or the use, occupation, possession or enjoyment of or used in any of the assets of the FUSA Business.
|
8.4.
|
The assets relating to the FUSA Business and reflected in the FUSA Accounts comprise all the assets which: (i) are owned by FUSA and used in the FUSA Business, except to the extent replaced with an equivalent asset owned by FUSA or no longer material for the FUSA Business, and (ii) are necessary to carry on and continue the FUSA Business as it is carried on by Covalent and AngloGold, as applicable, as at the Signature Date and the 12 (twelve) months preceding the Signature Date. The FUSA Business does not materially depend on the use of any assets owned by, or facilities provided by, AngloGold or any Affiliate, or any other third party, which are not being acquired by the Purchasers under this Agreement.
|
9.
|
Data Room
|
10.
|
Contracts
|
10.1.
|
FUSA is not a party to or subject to any contract in respect of which the consideration payable or receivable will exceed US$5 000 000 (five million Dollars).
|
10.2.
|
FUSA is not a party to or subject to any contract, agreement, dealings or similar arrangements with a Designated Party.
|
10.3.
|
There are no agreements or arrangements (other than agreements or arrangements referred to or contemplated in this Agreement) between AngloGold or any of its Affiliates, on the one hand, and FUSA on the other.
|
10.4.
|
FUSA is not in breach of any material terms of the contracts contemplated in paragraph 10.1 above.
|
10.5.
|
FUSA is not a party to any forward sale agreements which endure for a period longer than 12 (twelve) months.
|
10.6.
|
No other material contracts are required for the running of the FUSA Business other than the contracts to which FUSA is a party.
|
11.
|
Joint Ventures etc.
|
12.
|
FUSA Employees
|
13.
|
Compliance with Laws
|
13.1.
|
there is no order, decree, decision or judgment of, any court, tribunal or arbitrator in which FUSA is defendant and which is outstanding and is not subject to a further right of appeal or
|
13.2.
|
FUSA is in substantial compliance in all material respects with all applicable Laws which are material to the FUSA Business;
|
13.3.
|
FUSA has not received any written notice, during the 12 (twelve) months period prior to the Signature Date, from any court, tribunal, arbitrator, Governmental Entity or regulatory body with respect to, any violation of and/or failure to comply with any applicable Law or regulation on the part of FUSA, or requiring it to take or omit any action which in any case will have an effect on the FUSA Business; and
|
13.4.
|
all material Governmental Approvals required by FUSA for the carrying on or conduct of the FUSA Business: (i) have been duly obtained and continue to be held by FUSA in accordance with all applicable Laws; and (ii) are valid and subsisting in full force and effect.
|
14.
|
Insurance
|
14.1.
|
As at the Signature Date, all insurance policies in respect of FUSA have been uploaded to the Data Room.
|
14.2.
|
All premiums payable to date in respect of the aforesaid insurance policies have been paid.
|
15.
|
Litigation
|
15.1.
|
So far as AngloGold is aware, FUSA is not a party to any claims, actions, demands, written proceedings, litigation, summons or subpoena or arbitration (other than as claimant in the collection of debts arising in the ordinary and regular course) which would be likely to have a material adverse effect on FUSA.
|
15.2.
|
As at the Signature Date and so far as AngloGold is aware, FUSA is not a party to any investigation which will, or could reasonably, have a material adverse effect on FUSA.
|
15.3.
|
FUSA is not in default under or with respect to any judgement, order or award, interdict, decree or any similar pronouncement of any court or other similar tribunal (including administrative authority or body) having jurisdiction in respect of them.
|
15.4.
|
So far as AngloGold is aware, FUSA has not been charged with, nor has FUSA committed, any crime or been subject to any criminal investigation (which crime carries a minimum fine of ZAR 5 000 000 (five million Rand) or a penalty of imprisonment without the option of a fine) or been subject to any criminal investigation in respect of such a crime.
|
15.5.
|
As at the Signature Date and so far as AngloGold is aware, no such Claim that would fall within paragraphs 16.1, 16.2, 16.3 and 16.4 above is pending or threatened in writing by or against FUSA.
|
16.
|
Insolvency
|
17.
|
Disclosure
|
1.
|
Corporate Information
|
1.1.
|
FUSA –
|
1.1.1.
|
is the sole legal and beneficial owner of 100% (one hundred percent) of the total issued and allotted shares of MWS, which have been properly and validly issued and allotted and are each fully paid (the "MWS Shares");
|
1.1.2.
|
is reflected as the sole registered holder of the MWS Shares in the securities register of MWS, and no person has any right to obtain an order for the rectification of such register; and
|
1.1.3.
|
has the right to exercise all voting and other rights over the MWS Shares.
|
1.2.
|
MWS is duly incorporated in South Africa as a profit company with limited liability, and no steps have been taken in respect of its deregistration in terms of section 82(3) of the Companies Act.
|
1.3.
|
MWS has all requisite power and authority to own, lease and operate its properties and to carry on its business as presently conducted.
|
1.4.
|
The MWS Shares comprise 100% (one hundred percent) of the total issued and allotted shares of MWS, have been properly and validly issued and allotted and each fully paid.
|
1.5.
|
Other than as set out in the memorandum of incorporation of MWS, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer, amortisation, redemption or repayment of any share or loan capital or any other security giving rise to a right over, or an interest in MWS under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.6.
|
There are no Encumbrances on the MWS Shares.
|
1.7.
|
Other than Chemwes, MWS has no Subsidiaries and does not hold any equity interest in any other entity.
|
2.
|
Constitutional Documents, Corporate Registers and Minute Books
|
2.1.
|
The memorandum of incorporation, certificate to commence business and certificate of incorporation of MWS in the Data Room are true, accurate and up to date copies and include all amendments thereto to date, all of which amendments were duly made in terms of the Companies Act and there have not been and are not any breaches by MWS of its constitutional documents which would have a material adverse effect on the MWS Business.
|
2.2.
|
The registers, statutory books, minute books and books of account required to be maintained by MWS under applicable Law are, in all material respects, up to date, in the possession of MWS in terms of section 25 of the Companies Act; and properly completed in accordance with the applicable Law.
|
2.3.
|
All filings, publications, registrations and other formalities required by applicable Law to be delivered or made by MWS in South Africa have been duly delivered.
|
3.
|
Accounts
|
3.1.
|
show a true and fair view of MWS's trading transactions and its financial, contractual and trading position;
|
3.2.
|
comply with the requirements of the Companies Act to the extent applicable to management accounts; and
|
3.3.
|
are accurate in all material respects.
|
4.
|
No Undisclosed Liabilities
|
5.
|
Extraordinary and exceptional items
|
6.
|
Financial Obligations
|
7.
|
Taxes
|
7.1.
|
All returns that may have become due by MWS from time to time under any Law administered by the SARS Commissioner have been duly made.
|
7.2.
|
During the 3 (three) years period prior to the Signature Date, the SARS Commissioner has not reopened any existing Tax assessment in respect of MWS.
|
7.3.
|
MWS is not: (i) and has not at any time during the 3 (three) years period prior to the Signature Date been in material breach of any Law relating to Tax; or (ii) liable to pay any penalty or interest in connection with any claim for Tax.
|
8.
|
Assets
|
8.1.
|
So far as AngloGold is aware, MWS’s only assets are the shares it holds in Chemwes and the following licences (the "MWS Licences"), namely:
|
8.1.1.
|
the NEMA Authorisation, as amended, contained in folder 1.3.5.4.1 of the Data Room; and
|
8.1.2.
|
the NNRA Certificate contained in folder 1.3.5.6.2 of the Data Room.
|
8.2.
|
The MWS Licences: (i) have been duly obtained in accordance with all applicable Laws; and (ii) are valid and subsisting in full force and effect. All material terms and/or conditions applicable to any such licences, certificates and permit have been and are complied with by AngloGold and AngloGold has no knowledge of any reason why, any of them should be suspended, cancelled, revoked or adversely varied.
|
8.3.
|
All assets included or reflected in the MWS Accounts:
|
8.3.1.
|
are legally and beneficially owned by MWS; and
|
8.3.2.
|
are, where capable of possession, in the possession or under the control of MWS and, so far as AngloGold is aware, there are no circumstances which might result in any Governmental Entity expropriating any such assets.
|
8.4.
|
None of the assets contemplated in paragraph 8.3 are the subject of any factoring arrangement, conditional sale, instalment, lease, hire-purchase or credit agreement and all such assets are free of any and all Encumbrances.
|
8.5.
|
No person has any right (whether pursuant to any option, preferential right or right of first refusal or otherwise) to purchase or acquire (whether as security or otherwise) or claim delivery, ownership or transfer or the use, occupation, possession or enjoyment of or used in any of the assets of the MWS Business.
|
8.6.
|
The assets relating to the MWS Business and reflected in the MWS Accounts comprise all the assets which: (i) are owned by MWS and used in the MWS Business, except to the extent replaced with an equivalent asset owned by MWS or no longer material for the MWS Business, and (ii) are necessary to carry on and continue the MWS Business as it is carried on by MWS and AngloGold, as applicable, as at the Signature Date and the 12 (twelve) months preceding the Signature Date. The MWS Business does not materially depend on the use of any assets owned by, or facilities provided by, AngloGold or any Affiliate, or any other third party, which are not being acquired by the Purchasers under this Agreement.
|
9.
|
Data Room
|
10.
|
Contracts
|
10.1.
|
MWS is not a party to or subject to any contract in respect of which the consideration payable or receivable will exceed US$5 000 000 (five million Dollars).
|
10.2.
|
MWS is not a party to or subject to any contract, agreement, dealings or similar arrangements with a Designated Party.
|
10.3.
|
There are no agreements or arrangements (other than agreements or arrangements referred to or contemplated in this Agreement) between AngloGold or any of its Affiliates, on the one hand, and MWS on the other.
|
10.4.
|
MWS is not in breach of any material terms of the contracts contemplated in paragraph 10.1 above.
|
10.5.
|
MWS is not a party to any forward sale agreements which endure for a period longer than 12 (twelve) months.
|
10.6.
|
No other material contracts are required for the running of the MWS Business other than the contracts to which MWS is a party.
|
11.
|
Joint Ventures etc.
|
12.
|
MWS Employees
|
13.
|
Compliance with Laws
|
13.1.
|
there is no order, decree, decision or judgment of, any court, tribunal or arbitrator in which MWS is defendant and which is outstanding and is not subject to a further right of appeal or review and which will, or could reasonably, have a material adverse effect upon the MWS Business;
|
13.2.
|
MWS is in substantial compliance in all material respects with all applicable Laws which are material to the MWS Business;
|
13.3.
|
MWS has not received any written notice, during the 12 (twelve) month period prior to the Signature Date, from any court, tribunal, arbitrator, Governmental Entity or regulatory body with respect to, any violation of and/or failure to comply with any applicable Law or regulation on the part of MWS, or requiring it to take or omit any action which in any case will have an effect on the MWS Business; and
|
13.4.
|
all material Governmental Approvals (including, without limitation, from DWS) required by MWS for the carrying on or conduct of the MWS Business (i) have been duly obtained and continue to be held by MWS in accordance with all applicable Laws, and (ii) are valid and subsisting in full force and effect.
|
14.
|
Environment
|
14.1.
|
MWS has not received written notice from any Environmental Authority during the 12 (twelve) month period prior to the Signature Date of any material non-compliance (including, without limitation, conduct or incidents that potentially threatened, in a significant manner, the Environment or human health or safety) with Environmental Law that is outstanding as at the Signature Date; and
|
14.2.
|
all material Environmental Approvals required by MWS for the carrying on or conduct of the MWS Business (i) have been duly obtained in accordance with all applicable Laws, and (ii) are valid and subsisting in full force and effect. All material terms and/or conditions applicable to any such material Environmental Approvals (VR) have been and are complied with by MWS, and, as at the Signature Date, AngloGold has no knowledge of any reason why, any Environmental Approval (VR) should be suspended, cancelled, revoked or adversely varied.
|
15.
|
Insurance
|
15.1.
|
As at the Signature Date, all insurance policies in respect of MWS have been uploaded to the Data Room.
|
15.2.
|
All premiums payable to date in respect of the aforesaid insurance policies have been paid.
|
16.
|
Litigation
|
16.1.
|
So far as AngloGold is aware, MWS is not a party to any claims, actions, demands, written proceedings, litigation, summons or subpoena or arbitration (other than as claimant in the collection of debts arising in the ordinary and regular course) which would be likely to have a material adverse effect on MWS.
|
16.2.
|
As at the Signature Date and so far as AngloGold is aware, MWS is not a party to any investigation which will, or could reasonably, have a material adverse effect on MWS.
|
16.3.
|
MWS is not in default under or with respect to any judgement, order or award, interdict, decree or any similar pronouncement of any court or other similar tribunal (including administrative authority or body) having jurisdiction in respect of them.
|
16.4.
|
So far as AngloGold is aware, MWS has not been charged with, nor has MWS committed, any crime or been subject to any criminal investigation (which crime carries a minimum fine of ZAR 5 000 000 (five million Rand) or a penalty of imprisonment without the option of a fine) or been subject to any criminal investigation in respect of such a crime.
|
16.5.
|
As at the Signature Date and so far as AngloGold is aware, no such Claim that would fall within paragraphs 16.1, 16.2, 16.3 and 16.4 above is pending or threatened in writing by or against MWS.
|
17.
|
Insolvency
|
18.
|
Disclosure
|
1.
|
Corporate Information
|
1.1.
|
MWS –
|
1.1.1.
|
is the sole legal and beneficial owner of 100% (one hundred percent) of the total issued and allotted shares of Chemwes, which have been properly and validly issued and allotted and are each fully paid (the "Chemwes Shares");
|
1.1.2.
|
is reflected as the sole registered holder of the Chemwes Shares in the securities register of Chemwes, and no person has any right to obtain an order for the rectification of such register; and
|
1.1.3.
|
has the right to exercise all voting and other rights over the Chemwes Shares.
|
1.2.
|
Chemwes is duly incorporated in South Africa as a profit company with limited liability, and no steps have been taken in respect of its deregistration in terms of section 82(3) of the Companies Act.
|
1.3.
|
Chemwes has all requisite power and authority to own, lease and operate its properties and to carry on its business as presently conducted.
|
1.4.
|
The Chemwes Shares comprise 100% (one hundred percent) of the total issued and allotted shares of Chemwes, have been properly and validly issued and allotted and are each fully paid.
|
1.5.
|
Other than as set out in the memorandum of incorporation of Chemwes, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the allotment, conversion, issue, registration, sale or transfer, amortisation, redemption or repayment of any share or loan capital or any other security giving rise to a right over, or an interest in, the capital of Chemwes under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.6.
|
There are no Encumbrances on the Chemwes Shares.
|
1.7.
|
Chemwes has no Subsidiaries and does not hold any equity in any other entity.
|
2.
|
Constitutional Documents, Corporate Registers and Minute Books
|
2.1.
|
The memorandum of incorporation, certificate to commence business and certificate of incorporation of Chemwes in the Data Room are true, accurate and up to date copies and include all amendments thereto to date, all of which amendments were duly made in terms of the Companies Act and there have not been and are not any breaches by Chemwes of its
|
2.2.
|
The registers, statutory books, minute books and books of account required to be maintained by Chemwes under applicable Law, in all material respects, are up to date, in the possession of Chemwes in terms of section 25 of the Companies Act; and properly completed in accordance with the applicable Law.
|
2.3.
|
All filings, publications, registrations and other formalities required by applicable Law to be delivered or made by Chemwes in South Africa have been duly delivered.
|
3.
|
Accounts
|
3.1.
|
show a true and fair view of Chemwes's trading transactions and its financial, contractual and trading position;
|
3.2.
|
comply with the requirements of the Companies Act, to the extent applicable to management accounts; and
|
3.3.
|
are accurate in all material respects.
|
4.
|
No Undisclosed Liabilities
|
5.
|
Extraordinary and exceptional items
|
6.
|
Financial Obligations
|
7.
|
Taxes
|
7.1.
|
All returns that may have become due by Chemwes from time to time under any Law administered by the SARS Commissioner have been duly made.
|
7.2.
|
During the 3 (three) year period prior to the Signature Date, the SARS Commissioner has not reopened any existing Tax assessment in respect of Chemwes.
|
7.3.
|
Chemwes is not: (i) and has not at any time during the 3 (three) year period prior to the Signature Date, been in material breach of any Law relating to Tax; or (ii) liable to pay any penalty or interest in connection with any claim for Tax.
|
8.
|
Assets
|
8.1.
|
All assets included or reflected in the Chemwes Accounts:
|
8.1.1.
|
are legally (save to the extent otherwise indicated in the Chemwes Accounts) and beneficially owned by Chemwes; and
|
8.1.2.
|
are, where capable of possession, in the possession or under the control of Chemwes and, so far as AngloGold is aware, there are no circumstances which might result in any Governmental Entity expropriating any such assets.
|
8.2.
|
None of the assets contemplated in paragraph 8.1.1 are the subject of any factoring arrangement, conditional sale, instalment, lease, hire-purchase or credit agreement and all such assets are free of any and all Encumbrances.
|
8.3.
|
No person has any right (whether pursuant to any option, preferential right or right of first refusal or otherwise) to purchase or acquire (whether as security or otherwise) or claim delivery, ownership or transfer or the use, occupation, possession or enjoyment of or used in any of the assets of the Chemwes Business.
|
8.4.
|
The assets relating to the Chemwes Business and reflected in the Chemwes Accounts comprise all the assets which: (i) are owned by Chemwes and used in the Chemwes Business, except to the extent replaced with an equivalent asset owned by Chemwes or no longer material for the Chemwes Business, and (ii) are necessary to carry on and continue the Chemwes Business as it is carried on by Chemwes and AngloGold, as applicable, as at the Signature Date and the 12 (twelve) months preceding the Signature Date. The Chemwes Business does not materially depend on the use of any assets owned by, or facilities provided by, AngloGold or any Affiliate, or any other third party, which are not being acquired by the Purchasers under this Agreement.
|
8.5.
|
The material assets, as reflected in the Chemwes Accounts, or to the extent replaced, an equivalent asset, relating to the Chemwes Business have been maintained in accordance with
|
9.
|
Data Room
|
10.
|
Contracts
|
10.1.
|
Chemwes is not a party to or subject to any contract in respect of which the consideration payable or receivable will exceed US$5 000 000 (five million Dollars).
|
10.2.
|
Chemwes is not a party to or subject to any contract, agreement, dealings or similar arrangements with a Designated Party.
|
10.3.
|
There are no agreements or arrangements (other than agreements or arrangements referred to or contemplated in this Agreement) between AngloGold or any of its Affiliates, on the one hand, and Chemwes on the other.
|
10.4.
|
Chemwes is not in breach of any material terms of the contracts contemplated in paragraph 10.1 above.
|
10.5.
|
Chemwes is not a party to any forward sale agreements which endure for a period longer than 12 (twelve) months.
|
10.6.
|
No other material contracts are required for the running of the Chemwes Business other than the contracts to which Chemwes is a party.
|
11.
|
Joint Ventures etc.
|
12.
|
Chemwes Employees
|
13.
|
Compliance with Laws
|
13.1.
|
there is no order, decree, decision or judgment of, any court, tribunal or arbitrator in which Chemwes is defendant and which is outstanding and is not subject to a further right of appeal or review and which will, or could reasonably, have a material adverse effect upon the Chemwes Business;
|
13.2.
|
Chemwes is in substantial compliance in all material respects with all applicable Laws which are material to the Chemwes Business;
|
13.3.
|
Chemwes has not received any written notice, during the 12 (twelve) month period prior to the Signature Date, from any court, tribunal, arbitrator, Governmental Entity or regulatory body with respect to, any violation of and/or failure to comply with any applicable Law or regulation on the part of Chemwes, or requiring it to take or omit any action which in any case will have an effect on the Chemwes Business; and
|
13.4.
|
all material Governmental Approvals (including, without limitation, from DWS) required by Chemwes for the carrying on or conduct of the Chemwes Business (i) have been duly obtained and continue to be held by Chemwes in accordance with all applicable Laws, and (ii) are valid and subsisting in full force and effect.
|
14.
|
Environment
|
14.1.
|
Chemwes has not received written notice from any Environmental Authority during the 12 (twelve) month period prior to the Signature Date of any material non-compliance (including, without limitation, conduct or incidents that potentially threatened, in a significant manner, the Environment or human health or safety) with Environmental Law that is outstanding as at the Signature Date; and
|
14.2.
|
all material Environmental Approvals required by Chemwes for the carrying on or conduct of the Chemwes Business (i) have been duly obtained in accordance with all applicable Laws, and (ii) are valid and subsisting in full force and effect. All material terms and/or conditions applicable to any such material Environmental Approvals (VR) have been and are complied with by Chemwes, and, as at the Signature Date, AngloGold has no knowledge of any reason why, any Environmental Approval (VR) should be suspended, cancelled, revoked or adversely varied.
|
15.
|
Insurance
|
15.1.
|
As at the Signature Date, all insurance policies in respect of Chemwes have been uploaded to the Data Room.
|
15.2.
|
All premiums payable to date in respect of the aforesaid insurance policies have been paid.
|
16.
|
Litigation
|
16.1.
|
So far as AngloGold is aware, Chemwes is not a party to any claims, actions, demands, written proceedings, litigation, summons or subpoena or arbitration (other than as claimant in the collection of debts arising in the ordinary and regular course) which would be likely to have a material adverse effect on Chemwes.
|
16.2.
|
As at the Signature Date and so far as AngloGold is aware, Chemwes is not a party to any investigation which will, or could reasonably, have a material adverse effect on Chemwes.
|
16.3.
|
Chemwes is not in default under or with respect to any judgement, order or award, interdict, decree or any similar pronouncement of any court or other similar tribunal (including administrative authority or body) having jurisdiction in respect of them.
|
16.4.
|
So far as AngloGold is aware, Chemwes has not been charged with, nor has Chemwes committed, any crime or been subject to any criminal investigation (which crime carries a minimum fine of ZAR 5 000 000 (five million Rand) or a penalty of imprisonment without the option of a fine) or been subject to any criminal investigation in respect of such a crime.
|
16.5.
|
As at the Signature Date and so far as AngloGold is aware, no such Claim that would fall within paragraphs 16.1, 16.2, 16.3 and 16.4 above is pending or threatened in writing by or against Chemwes.
|
17.
|
Insolvency
|
18.
|
Disclosure
|
1.
|
Title
|
1.1.
|
AngloGold –
|
1.1.1.
|
is the sole legal and beneficial owner of the Sale Assets (VR); and
|
1.1.2.
|
has full and unrestricted right, title and authority to Dispose of all of the full legal and beneficial rights, title and interests of and to the Sale Assets (VR) to the Purchaser, to the exclusion of all others, on and with effect from the Closing Date.
|
1.2.
|
No person has any present or future right or option or right of first refusal over all or any part of the VR Remaining Business other than the VR Remaining Sale Assets.
|
1.3.
|
No person has any present or future right or option or right of first refusal over all or any part of the material VR Remaining Sale Assets.
|
1.4.
|
As at Closing Date, there will not be any Encumbrance over all or substantially all of the Sale Assets (VR);
|
1.5.
|
None of the Sale Assets (VR), other than the VR Remaining Sale Assets, are the subject of any factoring arrangement, conditional sale or credit agreement.
|
1.6.
|
None of the material VR Remaining Sale Assets is the subject of any factoring arrangement, conditional sale or credit agreement.
|
1.7.
|
All material Sale Assets (VR) are free of any and all Encumbrances.
|
1.8.
|
So far as AngloGold is aware, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the Disposal of the VR Remaining Business, any of the material Sale Assets (VR) (other than the VR Remaining Sale Assets) or any other security giving rise to a right or Encumbrance over, or an interest in, the assets of VR Remaining Business other than the VR Remaining Sale Assets under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.9.
|
So far as AngloGold is aware, no person has the right (whether exercisable now or in the future and whether contingent or not) to call for the Disposal of any of the material VR Remaining Assets or any other security giving rise to a right or Encumbrance over, or an interest in, any of the material VR Remaining Assets under any option, agreement or other arrangement (including conversion rights and rights of pre-emption).
|
1.10.
|
As at the Signature Date, there are no Claims pending or, so far as AngloGold is aware, threatened that are reasonably likely to prohibit or restrain the ability of AngloGold to enter into this Agreement or consummate the transactions contemplated hereby.
|
2.
|
Accounts
|
2.1.
|
give a true and fair view of the state of affairs of the VR Remaining Business and of the profit and loss of the VR Remaining Business for the period to which the AGA Accounts relate; and
|
2.2.
|
have been prepared in accordance with SAICA Financial Reporting Guides as issued by the Accounting Practices Committee and Financial Reporting Pronouncements as issued by the Financial Reporting Standards Council.
|
3.
|
Books and records
|
3.1.
|
have been prepared and maintained as required by Law, and will be so kept to the Closing Date, in all material respects;
|
3.2.
|
are accurate in all material respects;
|
3.3.
|
in respect of the accounting records, show a true and fair view of its trading transactions and its financial, contractual and trading position; and
|
3.4.
|
are in the possession or under the control of AngloGold.
|
4.
|
Taxes
|
5.
|
Financial Obligations
|
6.
|
Business and Assets
|
6.1.
|
General
|
6.1.1.
|
The Sale Assets (VR) include all rights (including without limitation, real rights, limited real rights, personal or contractual rights, or otherwise), properties, assets, facilities and services which are held by AngloGold, or to which AngloGold is entitled, if and to the extent that they are: (a) used in the VR Remaining Business; and (b) necessary for the effective carrying on and continuation of the VR Remaining Business as it is carried on by AngloGold as at the Signature Date and the 12 (twelve) months preceding the Signature Date.
|
6.1.2.
|
Following Closing, AngloGold will have no rights or interests in any contract with any Qualifying Employee in respect of the VR Package.
|
6.1.3.
|
None of the Immoveable Properties (VR) are subject to, nor is there agreement to create, any Encumbrance apart from the servitudes, real rights, personal rights and restrictive conditions of title registered against the title deeds of the Immoveable Properties (VR) on Signature Date, and the surface right permits registered in the Mining Titles Office that pertains to the Immoveable Properties (VR) on Signature Date.
|
6.1.4.
|
As at the Signature Date, no notice has been received by AngloGold of the intention of any Governmental Entity to expropriate any of the Immoveable Properties (VR) or any portion/s thereof nor, so far as AngloGold is aware, is there any intention to expropriate any of the Immoveable Properties (VR) or any portion/s thereof by any such Governmental Entity.
|
6.1.5.
|
So far as AngloGold is aware, as at the Signature Date, no claims are pending, nor are any claims intended, under the Restitution of Land Rights Act, No. 22 of 1944, as amended, against any of the Immoveable Properties (VR) or any portion/s thereof.
|
6.1.6.
|
The Sale Assets (VR) have been maintained in accordance with reasonable standards, are in working condition for their purpose (fair wear and tear excepted) and used exclusively or primarily in connection with the VR Remaining Business.
|
6.1.7.
|
AngloGold has not for the period of 12 (twelve) month period prior to the Signature Date, other than in the ordinary and regular course of business, sold or otherwise Disposed of any asset owned or held by AngloGold which is critical to the operation of the VR Remaining Business, except to the extent replaced with an equivalent asset.
|
6.1.8.
|
So far as AngloGold is aware, the Immoveable Properties (VR) and Infrastructure (VR) comprise of all the land and buildings owned by AngloGold in respect of the VR Remaining Business.
|
6.1.9.
|
The MOD (VR) and the Tailings Storage Facilities (VR) were created prior to 1 May 2004.
|
6.2.
|
Title to the Immoveable Properties (VR) and Sale Assets (VR)
|
6.2.1.
|
AngloGold is the registered owner of and is entitled to occupy the Immoveable Properties (VR), save in relation to land and buildings forming part of the Immoveable Properties (VR) which are leased to third parties in terms of the lease agreements uploaded to the Data Room and in respect of which the relevant third parties to such lease agreements have the right to occupy same. All lease agreements to which AngloGold is a party as at the Signature Date in respect of the Immoveable Properties (VR) form part of the Data Room Documents.
|
6.2.2.
|
None of the Sale Assets (VR) are owned by any Affiliate of AngloGold or any third party.
|
6.2.3.
|
AngloGold has not Disposed of any of the Immoveable Properties (VR) or Sale Assets (VR), nor has it granted to any third party the right to acquire, either by way of option or right of pre-emption, any of the Immoveable Properties (VR) or Sale Assets (VR) or any right or interest therein.
|
6.2.4.
|
The Immoveable Properties (VR) are not subject to any servitude, whether personal or praedial, other than the servitudes recorded against the title deeds of the relevant Immoveable Properties (VR), and no agreement will have been entered into whereby any restrictive condition or servitude is to be attached to any of the Immoveable Properties (VR), excluding any servitudes, rights of way, access or similar rights granted in favour of the Purchaser and/or as may be granted by the Purchaser or provided for pursuant to the Agreement or an SLA (VR).
|
6.2.5.
|
The use of the freehold residential properties listed in Annexure R are not subject to any restrictions imposed as a result of the presence of a major hazard installation (as defined in the Occupational Health and Safety Act, No 85 of 1993).
|
6.2.6.
|
AngloGold has in a manner consistent with past practice, and/or in accordance with the terms and conditions of any settlement, set off or other payment arrangements entered into with the relevant local authority, made all payments in respect of municipal and/or other assessment rates, taxes and other imposts of whatsoever nature in respect of the Immoveable Properties (VR), and all charges
|
6.2.7.
|
No person has any right (including any option, preferential right or right of first refusal) to acquire or claim delivery, ownership or transfer or the use, occupation, possession or enjoyment of any of the Immoveable Properties (VR) or Sale Assets (VR) other than in terms of the Lease Agreements (VR).
|
6.2.8.
|
So far as AngloGold is aware, the freehold residential properties listed in Annexure R and all buildings and erections thereon comply in every material respect with all material Governmental Entities’ requirements relating thereto. So far as AngloGold is aware, it is not under any obligation in terms of any Laws or Governmental Entities' requirements to make any alterations, repairs or additions to the freehold residential properties listed in Annexure R or to any buildings or erections thereon.
|
6.2.9.
|
AngloGold is the owner of and is entitled to occupy the Immoveable Properties (VR) and sell the Immoveable Properties (VR) to the Purchaser under the Agreement.
|
7.
|
Data Room
|
8.
|
Contracts
|
8.1.
|
AngloGold is not in breach of any material terms of any material contract in respect of the VR Remaining Business.
|
8.2.
|
AngloGold is not bound to any exclusivity, right of first refusal, restraint of trade or similar arrangement in respect of any contract in respect of the VR Remaining Business.
|
9.
|
VR Remaining Business employees and employee benefits
|
9.1.
|
Transferring Employees (VR)
|
9.1.1.
|
As at the Signature Date, the spreadsheet contained in folders 1.3.3.2.11.0.1 and 1.2.3.2.11.0.2 of the Data Room contains materially complete, accurate and up to date details of –
|
9.1.1.1.
|
the total number of the Transferring Employees (VR) including those who are on maternity or other statutory leave or other long-term leave
|
9.1.1.2.
|
the name, date of start of employment, period of continuous employment, salary, bonus entitlements, grade, age of each Transferring Employee (VR), and the immigration controls applicable to each Transferring Employee (VR);
|
9.1.1.3.
|
the leave pay accrued to the Transferring Employees (VR) at the Closing Date; and
|
9.1.1.4.
|
the hypothetical severance pay amounts that would have been payable to the Transferring Employees (VR) had they been retrenched by AngloGold on the Closing Date.
|
9.1.2.
|
All contracts of service of any of the Transferring Employees (VR) are terminable on not more than 3 (three) months’ notice without compensation, other than compensation payable in accordance with the Basic Conditions of Employment Act, No. 75 of 1997, as amended.
|
9.1.3.
|
No Transferring Employee (VR) is subject to any secondment arrangements.
|
9.1.4.
|
No Transferring Employee (VR) is employed by any Affiliate of AngloGold or any third party.
|
9.1.5.
|
None of the Transferring Employees (VR) will become entitled by virtue of their contract of service to any enhancement in or improvement to their remuneration, benefits or terms and conditions of service only by reason of the execution of this Agreement or the completion of the sale and purchase of the VR Remaining Business under or pursuant to this Agreement.
|
9.1.6.
|
As at 3 February 2020, AngloGold owes no amount to any of the Transferring Employees (VR) which has not been disclosed in the spreadsheet contained in folder 1.2.3.2.1.0.7.
|
9.1.7.
|
AngloGold has maintained up to date, full and accurate records regarding employment of each of the Transferring Employees (VR) (including, without limitation, details of terms of employment, training records, payments of statutory or other payments, income tax and other contributions, disciplinary, grievance, medical or health records and health and safety matters) and termination of employment and all such records will be delivered in accordance with clause 11.1.4 on or before the Closing Date.
|
9.1.8.
|
As at the Signature Date, (i) all of the persons listed in Annexure P are Qualifying Employees in respect of the VR Businesses, and (ii) there are no Qualifying Employees in respect of the VR Businesses who are not listed in Annexure P and Annexure II.
|
9.2.
|
Termination of Employment
|
9.2.1.
|
During the 90 (ninety) calendar day period prior to the Signature Date, AngloGold has not received written notice of the intention of any employee of AngloGold who holds the role of head of department or any more senior position in respect of the VR Remaining Business (the "Key Employees (VR)") to terminate his or her employment or provision of services.
|
9.2.2.
|
During the 90 (ninety) calendar day period prior to the Signature Date, AngloGold has not issued written notification to terminate the employment or provision of services of any Key Employees (VR).
|
9.3.
|
Employee Representative Bodies
|
9.3.1.
|
The Data Room lists all trade unions and employee representative bodies with which AngloGold habitually deals and formally recognises in respect of the VR Remaining Business.
|
9.3.2.
|
As at the Signature Date, AngloGold is not involved in and, so far as AngloGold is aware, no fact or circumstance exists which is likely to give rise to a dispute with a trade union or employee representative body representing any of the Transferring Employees (VR).
|
9.4.
|
Collective Bargaining Agreements etc.
|
9.5.
|
Bonus or other Profit-related Schemes
|
9.6.
|
Employee Benefits
|
9.6.1.
|
AngloGold has made all contributions which it is obliged to make in respect of the MineWorkers Provident Fund, the Sentinel Retirement Fund and the Old Mutual
|
9.6.2.
|
All Transferring Employees (VR) are members of at least one of the Retirement Funds.
|
9.6.3.
|
The Retirement Funds and the Medical Funds (collectively referred to as the "Funds") are the only schemes to which AngloGold makes, or is liable to make, payments of contributions or premiums for providing retirement, death, disability or life assurance benefits or medical benefits in respect of the Transferring Employees and AngloGold has not provided or promised to provide any such benefits in respect of any such Transferring Employees (VR) except under the Funds.
|
9.6.4.
|
As at the Signature Date and so far as AngloGold is aware, there are no pending, existing or threatened disputes, actions, claims or litigation against AngloGold regarding any actual or alleged non-compliance with applicable Law or actual or alleged breach of contract in respect of any benefit payable under the Funds in respect of any Transferring Employee (VR) and there are no circumstances known to AngloGold which might give rise to any such dispute, action, claims or litigation.
|
9.6.5.
|
Save for as disclosed under Annexure E and except for the CAWMS Liability and the Post-Retirement Medical Aid Promise:
|
9.6.5.1.
|
as at the Closing Date there is no unfunded deficit in respect of any future liability of the Funds or any other contractual or post termination benefits to which an employee or former employee of AngloGold is entitled;
|
9.6.5.2.
|
AngloGold has no obligation to pay or contribute towards or otherwise fund in any way the payment of post-retirement medical aid benefits for any of the Transferring Employees (VR) nor will this transaction trigger or vest any such obligation; and
|
9.6.5.3.
|
no Transferring Employee (VR) is entitled or may become entitled before the Closing Date to any form of subsidisation of medical aid contributions or medical expenses upon the termination of their employment for any reason whatsoever.
|
9.7.
|
Outstanding undischarged liabilities in relation to the Transferring Employees (VR)
|
9.7.1.
|
There is no outstanding undischarged liability to pay any Governmental Entity in any jurisdiction any contribution, taxation or other duty arising in connection with the employment or engagement of any of the Transferring Employees (VR), other than in the ordinary and regular course.
|
9.7.2.
|
As at the Signature Date, AngloGold has no outstanding liability for breach or termination of an employment contract between it and the Transferring Employees (VR).
|
9.8.
|
Employee Loans
|
9.9.
|
Compliance with employment Laws
|
9.9.1.
|
So far as AngloGold is aware, there is no investigation or enquiry outstanding by any Governmental Entity or regulatory body in connection with the Transferring Employees (VR) or any former employees or consultants of the VR Remaining Business.
|
9.9.2.
|
AngloGold, in connection with the VR Remaining Business, is not involved in any active, pending or threatened court, tribunal or arbitration proceedings in respect of the Transferring Employees (VR) or any former employees or consultants of AngloGold or their dependants other than in the ordinary and regular course or in relation to the Silicosis Class Action Settlement Agreement and so far as AngloGold is aware, there are no facts or circumstances that are likely to give rise to such proceedings, save as aforesaid.
|
10.
|
Surface Right Permits
|
11.
|
Compliance with Laws
|
11.1.
|
there is no order, decree, decision or judgment of, any court, tribunal or arbitrator in which AngloGold is defendant and which is outstanding and which will have a material adverse effect upon the VR Remaining Business;
|
11.2.
|
as at the Signature Date, AngloGold does not know of any material non-compliances with, or material contraventions of, nor has it received during the 24 (twenty four) month period prior to the Signature Date written notice from any regulatory authority or Governmental Entity that the premises on and from which AngloGold carries on the VR Remaining Business does not materially comply with, any material applicable Laws;
|
11.3.
|
AngloGold is in compliance in all material respects with all applicable Laws which are material in respect of the VR Remaining Business;
|
11.4.
|
no written notice to suspend or revoke any of AngloGold’s Governmental Approvals in respect of the VR Remaining Business has been received by AngloGold;
|
11.5.
|
AngloGold has not received any written notice during the last 12 (twelve) month period preceding the Signature Date from any court, tribunal, arbitrator, Governmental Entity or regulatory body with respect to, any violation of and/or failure to comply with any applicable Law, regulation or requiring it to take or omit any action which in any case would have a material adverse effect on the VR Remaining Business;
|
11.6.
|
neither AngloGold nor any member of the Group is a party to any agreement, arrangement, understanding or practice in respect of the VR Remaining Business, whether or not legally enforceable which infringes, or has infringed, any applicable competition Law; and
|
11.7.
|
no bribe or other corrupt payment was made by any member of the Group or any other Affiliate to any Government Official or any other person during the course of the conduct of the VR Remaining Business.
|
12.
|
Environment
|
12.1.
|
So far as AngloGold is aware, AngloGold has not received written notice from any Environmental Authority during the 12 (twelve) month period prior to the Signature Date, of any material non-compliance with Environmental Law in respect of the VR Remaining Business that is outstanding at the Signature Date.
|
12.2.
|
AngloGold is conducting the VR Remaining Business in material compliance with all Environmental Laws, and in particular, AngloGold:
|
12.2.1.
|
has taken all reasonable measures to prevent and/or remediate any significant pollution or significant degradation of the Environment occurring as a result of the mining operations or emanating from the VR Region; and
|
12.2.2.
|
other than closure rehabilitation obligations, does not have any outstanding obligations under any Environmental Law to remedy any Environmental harm, remediate any land, demolish any buildings or structures or to make any alterations, repairs or additions to any immovable property.
|
12.2.3.
|
all Environmental Approvals (VR): (i) have been duly obtained in accordance with all applicable Laws, and (ii) are valid and subsisting in full force and effect. All material terms and/or conditions applicable to any such licences, certificates and permits have been and are complied with by AngloGold and AngloGold has no knowledge of any reason why, any of them should be suspended, cancelled, revoked or adversely varied.
|
13.
|
Insurance
|
13.1.
|
All insurance policies in respect of VR Remaining Business have been uploaded to the Data Room.
|
13.2.
|
All premiums payable to date in respect of the aforesaid insurance policies have been paid.
|
14.
|
Litigation
|
14.1.
|
So far as AngloGold is aware, AngloGold is not a party to any litigation, mediation, expropriation or arbitration proceedings (other than as a claimant in the collection of debts arising in the ordinary and regular course) which would be likely to have a material adverse effect on VR Remaining Business.
|
14.2.
|
So far as AngloGold is aware, AngloGold has not been charged with, nor has AngloGold committed, any crime or, been subject to any criminal investigation (which crime carries a minimum fine of ZAR 5 000 000 (five million Rand) or a penalty of imprisonment without the option of a fine) or been subject to any criminal investigation in respect of such a crime.
|
14.3.
|
AngloGold is not in default under or with respect to any judgement, order or award, interdict, decree or any similar pronouncement of any court or other similar tribunal (including administrative authority or body) having jurisdiction in respect of them.
|
14.4.
|
As at the Signature Date and so far as AngloGold is aware, no such litigation, mediation, expropriation or arbitration that would fall within paragraph 14.1 above is pending or threatened in writing by or against all or any part of the VR Remaining Business.
|
15.
|
Insolvency
|
16.
|
Disclosure
|
Annexure C
|
Limitations of Liability
|
1.
|
Time limitation for claims
|
1.1.
|
AngloGold shall not be liable for any Claim for a breach of any Warranty which breach has not been remedied by the relevant cure periods as provided for in the Agreement (the "Purchaser Claim"), unless the relevant Purchaser:
|
1.1.1.
|
has notified AngloGold in writing (the "Claim Notice") no later than 60 (sixty) calendar days after the relevant Purchaser first becomes aware of the circumstances giving rise to such Purchaser Claim, including the information required to be included in a Claim Notice in terms of paragraph 1.1.1.1 and 1.1.1.2. The Claim Notice must provide:
|
1.1.1.1.
|
reasonable detail of the Purchaser Claim, the specific grounds therefor and the amount of any loss and/or anticipated loss; and
|
1.1.1.2.
|
the specific breach under the Agreement in respect of which it is based; and
|
1.1.2.
|
delivers the Claim Notice to AngloGold within 18 (eighteen) months after the Closing Date.
|
1.2.
|
Upon receipt of a Claim Notice by AngloGold, AngloGold shall notify the Purchaser thereof within 2 (two) months of receipt of the relevant Claim Notice (the "Response Notice") to the extent that it accepts it is liable as contemplated under the Claim Notice. Pending the Response Notice, the Purchaser shall not be entitled to institute any further process in respect of the relevant Purchaser Claim. If the Response Notice is not delivered during the aforementioned 2 (two) month time period, then AngloGold shall be deemed to have disputed the relevant Purchaser Claim referred to in the Claim Notice and shall have no liability in respect of the relevant Purchaser Claim (the "Disputed Claim") unless the Purchaser has instituted legal or arbitration proceedings in respect of any Disputed Claim within: (a) 12 (twelve) months of the expiry of the aforementioned 2 (two) month time period if the relevant Purchaser Claim involves a third party claim asserted by any third party; or (b) 9 (nine) months of the expiry of the aforementioned 2 (two) month time period in any other case.
|
2.
|
Minimum Claims and Maximum Liability
|
2.1.
|
Notwithstanding the warranties and indemnities given by AngloGold, no liability shall attach to AngloGold in relation to any Purchaser Claims –
|
2.1.1.
|
which, taking into account any reduction in terms of clauses 23.2 and 41.2 of the Agreement, individually is less than an amount equal to USD500 000 (five hundred thousand Dollars), provided that when such individual Purchaser Claim exceeds
|
2.1.2.
|
which, taking into account any reduction in terms of clauses 23.2 and 41.2 of the Agreement, are less than an amount equal to USD2 000 000 (two million Dollars), provided that when such aggregate Purchaser Claims exceed the said amount, AngloGold shall, subject to paragraph 2.2, be liable for the full amount of such Purchaser Claims and not only for the amount in excess of the said amount; and
|
2.1.3.
|
which:
|
2.1.3.1.
|
in relation to a breach by AngloGold of the warranties set out in paragraph 1.6 of Annexure A1, paragraph 1.4 of Annexure A4, paragraph 1.6 of Annexure B1, paragraph 1.6 of Annexure B2, paragraph 1.6 of Annexure B3, and paragraph 1.4 of Annexure B4 in aggregate exceed an amount equal to USD200 000 000 (two hundred million Dollars);
|
2.1.3.2.
|
save as contemplated in paragraph 2.1.3.1 above, in relation to a breach by AngloGold of any of the warranties set out in paragraphs 1.1.1, 1.1.2, 1.1.3, 1.4 and 1.5 of Annexure A1, paragraphs 1.1.1, 1.1.2, 1.2, 1.3, 1.6, 1.7, 1.9, 1.10 and 10.1 of Annexure A4, paragraphs 1.1.1, 1.1.2, 1.1.3, 1.3, 1.4 and 1.5 of Annexure B1, paragraphs 1.1.1, 1.1.2, 1.1.3, 1.4 and 1.5 of Annexure B2, paragraphs 1.1.1, 1.1.2, 1.1.3, 1.4 and 1.5 of Annexure B3, and paragraphs 1.1.1, 1.1.2, 1.2, 1.3, 1.6, 1.7, 1.9 and 1.10 of Annexure B4 in aggregate exceed an amount equal to USD100 000 000 (one hundred million Dollars); and
|
2.1.3.3.
|
save as contemplated in paragraph 2.1.3.1 and 2.1.3.2 above, in relation to a breach by AngloGold of any of the Warranties, in aggregate exceed an amount equal to USD60 000 000 (sixty million Dollars) of the Purchase Price.
|
2.2.
|
Under no circumstances will AngloGold’s liability in respect of breaches of Warranties and/or Interim Period Undertakings under the Agreement be in excess of USD100 000 000 (one hundred million Dollars), unless there is a breach of Warranty contemplated in paragraph 2.1.3.1, in which circumstances AngloGold’s liability for breaches of any of the Warranties and/or Interim Period Undertakings under the Agreement in aggregate will not exceed USD200 000 000 (two hundred million Dollars).
|
2.3.
|
Notwithstanding anything to the contrary contained herein, no liability shall attach to AngloGold in relation to any Purchaser Claims until Closing has occurred on the Closing Date and the relevant Purchaser has complied with its obligations under clauses 16.2.2 and 34.2.2.
|
Annexure D
|
Disclosure Schedule (WW)
|
1.
|
Introduction
|
1.1.
|
All words and expressions defined in the Agreement will, unless the context otherwise requires or the contrary is indicated, have the same meaning when used in this Disclosure Schedule (WW).
|
1.2.
|
If any inconsistency or conflict arises between the Agreement and this Disclosure Schedule (WW), this Disclosure Schedule (WW) shall prevail to the extent of such inconsistency or conflict.
|
1.3.
|
The disclosure of any matter in this Disclosure Schedule (WW) shall not be taken or construed in any way as an admission or evidence that the matter disclosed would otherwise give rise to any liability under the Agreement, or as a representation, warranty or undertaking not expressly given in the Agreement, nor as extending the scope of any warranty and/or undertaking given in the Agreement.
|
1.4.
|
All disclosures are made generally in relation to the Agreement and are not to be related to any particular warranty, undertaking, obligation or other matter.
|
2.
|
Disclosures
|
2.1.
|
In addition, by way of general disclosures, the following matters are disclosed to the Purchaser –
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
ANNEXURE A1 - COVALENT
|
||
i.
|
Including, without limitation, paragraphs 4 and 6
|
Covalent is not a holder of a mining right in terms of the MPRDA and, as such, Covalent is not required to make financial provision in terms of NEMA. Accordingly, there are no rehabilitation obligations reflected in or described in the Covalent Accounts.
|
ii.
|
Including, without limitation paragraph 6
|
Covalent currently stands as a guarantor in favour of Eskom in terms of an electricity supply agreement entered into between (inter alia) Eskom and Covalent on 7 August 2018 terminable on 12 (twelve) calendar months’ notice in writing by either party, and which agreement is uploaded under folders 1.2.10.2.1.0.1, 1.2.10.2.1.0.2 and 1.2.10.2.1.0.3 of the Data Room. Please see a copy of the guarantee uploaded under folder 1.2.10.2.1.1.0.2 of the Data Room. Covalent will not be released from this guarantee by the Closing Date.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
iii.
|
Including, without limitation, paragraphs 8 and 13
|
Covalent operates at the 4 and 6 shafts of the historical Blyvooruitzicht Mine in relation to which Blyvoor Gold Capital (Pty) Ltd ("Blyvoor Gold Capital") currently holds a mining right in terms of the MPRDA. Covalent accesses and operates at the 4 and 6 shafts pursuant to a servitude granted to Covalent by the liquidators of Blyvooruitzicht Mine and in terms of the Covalent Water Directive. Covalent understands that Blyvoor Gold Capital may hold servitudes and/or usufructs over and/or around the areas on which the Covalent Business is conducted. Please see the documents uploaded under folders 1.2.12.5.1 and 1.2.5.5.2 of the Data Room.
Blyvoor Gold Capital has issued Covalent's employees with statutory appointments under the Mine Health and Safety Act No. 29 of 1996 to operate on the Blyvoor Gold mining area.
A new pipeline is in the process of being constructed for the purposes of rerouting water located at the Blyvoor Gold mining area from the water pumping infrastructure located at the Savuka Gold Plant area, which will result in costs savings of approximately R5 000 000.00 (five million Rand) per month. The pipeline will begin at the area over which the Covalent Business (the "Covalent Area") is conducted and end at the area over which the WW Mining Business is conducted. The pipeline will run through the property of a third party and thus a servitude agreement is in the purpose of being prepared.
Covalent has experienced various security incidents relating to illegal mining at the Covalent Area. Conductors for one of the electricity lines have been stolen at the Covalent Area resulting in short term supply. There are no backup generators at the Covalent Area to supply back-up power capacity.
|
iv.
|
Including, without limitation, paragraph 10
|
Covalent and AngloGold have entered into service level agreement in terms of which AngloGold provides services to Covalent for no consideration. This service agreement has been uploaded under folder 1.2.12.5.1.0.8 of the Data Room.
The above service agreement forms part of the Contracts (WW) and will be transferred, ceded and assigned by AngloGold to the WW Purchaser with effect from the Closing Date.
|
2.
|
Including, without limitation paragraph 12
|
Pursuant to an investigation conducted by AngloGold Security Services into illegal mining activity, Covalent initiated disciplinary procedures against AngloGold's 4 (four) employees on or about October 2019. But for one person, all disciplinary proceedings have been settled between the respective employees and Covalent. Details of the outstanding disciplinary proceeding has been uploaded under folder 1.2.3.2.10.0.2 of the Data Room.
|
3.
|
Including, without limitation paragraph 12
|
Covalent currently employs persons who are foreign nationals. Please see the documents uploaded under folder 1.2.3.2.1.0.5 of the Data Room for the material details regarding such employees. Covalent does not hold the requisite permit from the Department of Home Affairs which entitles Covalent to employ such foreign nationals as employees of Covalent. However, as Covalent cannot dismiss these employees due to their foreign national status, Covalent replaces such persons with South African nationals as and when such employees’ employment with Covalent terminates.
|
4.
|
Including, without limitation paragraph 12
|
In addition to the Medical Funds, 76 (seventy six) employees of Covalent who are classified as "category 4-8 employees (lower level employees)" utilise services provided by AngloGold / Life Facility ("Life Facility"). In respect of such employees, AngloGold pays a per capita fee per employee and Life Facility provides primary health care services to such employees (to the exclusion of their spouses and dependents).
|
5.
|
Including, without limitation 12
|
Japie Harmse, the General Manager of Covalent, is entitled to Post-Medical Aid Promise with effect from his retirement as an employee of Covalent.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
vii.
|
Including, without limitation, paragraph 7
|
Please see the SARS correspondence uploaded under folder 1.2.11.2.3.4.1 of the Data Room regarding the revised 2017 tax assessment in respect of Masakhisane.
|
viii.
|
Including, without limitation, paragraph 8
|
Please see the documents uploaded under folder 1.2.11.2.1.3.0.3 of the Data Room.
|
ix.
|
Including, without limitation, paragraph 8 and 10
|
Masakhisane was an entity incorporated by AngloGold for the sole purposes of implementing a local economic development project pursuant to AngloGold's approved social and labour plan. Masakhisane is not a self-sufficient entity and is entirely and materially dependent on AngloGold for all services, infrastructure, facilities and/or funding required in order to operate and maintain the Masakhisane Business.
4.
|
x.
|
Including, without limitation paragraph 12
|
5. Those AngloGold employees working in the Masakhisane Business are Transferring Employees (WW).
|
xi.
|
Including, without limitation paragraph 14
|
6. Masakhisane issued a letter of demand to Tasnathrea Connexion (Pty) Ltd on 9 December 2019 for the repayment of approximately R165 064 (one hundred and sixty five thousand and sixty four Rand).
|
xii.
|
Including, without limitation, paragraph 14
|
AngloGold on 23 October 2019, received a letter from Mr Simeon Mighty Moloko ("Moloko"), a former employee of AngloGold and director of Masakhisane, in terms of which (inter alia) Moloko made various allegations against AngloGold and requests for action from AngloGold relating to Masakhisane. A copy of this letter was uploaded under folders 1.2.8.8.4.0.9, 1.2.8.8.4.0.10 and 1.2.8.8.4.0.11 of the Data Room. AngloGold considered it unnecessary to issue a response to the letter as the allegations made are denied by AngloGold and have no legal basis. Further, the DMRE did not raise any concerns regarding AngloGold's social and labour plan compliance pursuant to its full audit in respect thereof which was completed in July 2019 nor did the DMRE raise any concerns regarding the amounts loaned to small and medium enterprises by Masakhisane.
The DMRE unofficially provided AngloGold with correspondence dated 23 November 2019 from Moloko addressed to the DMRE. A copy of this correspondence is uploaded under folder 1.2.12.4.3.1.2.0.1 of the Data Room. As the DMRE did not officially provide AngloGold with this correspondence AngloGold, AngloGold was not requested by the DMRE to formally respond to this correspondence.
|
xiii.
|
Including, without limitation, paragraphs 9 and 16
|
AngloGold has not uploaded into the Data Room: (a) copies of certain title deeds which were made available for the Purchasers review at the offices of AngloGold 22 and 25 October 2019; (b) certain title deeds which were not in the physical possession of AngloGold by virtue of them being lodged at a Governmental Entity or conveyancer; and (c) copies of documents which required third parties to consent to the disclosure of the document to the Purchasers and which consent was unable to be procured by AngloGold.
|
7. Annexure A4 – WW Mining Business
|
||
xiv.
|
Including, without limitation, paragraphs 1and 6
|
The Immoveable Property (WW) is subject to leases, surface right permits, restrictive conditions and servitudes, copies of which have been uploaded under folder 1.2.9 of the Data Room.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xv.
|
Including, without limitation, paragraphs 1and 6
|
Some consumables in the Consumables Stores (WW) are placed at the disposal of AngloGold on a pay as you use / consignment basis. Ownership does not transfer to AngloGold until such consumables are used.
|
xvi.
|
Including, without limitation, paragraphs 3 and 6
|
8. As regards the WW Business properties, the electricity, water and rental arrears due to AngloGold is as follows (in total): (a) separated employees (whether retrenched or have concluded voluntary severance packages who occupy AngloGold-owned accommodation), R2 757 526.06 (two million seven hundred and fifty seven five hundred and twenty six Rand and six cents) and (b) commercial leases R1 696 919.19 (one million six hundred and ninety six thousand nine hundred and nineteen Rand and nineteen cents).
|
xvii.
|
Including, without limitation, paragraph 5
|
AngloGold currently stands as a guarantor in favour of Eskom in terms of an electricity agreement entered into between (inter alia) Eskom and AngloGold on 6 August 2007 terminable on 3 (three) calendar months’ notice in writing by either party, and which agreement has been uploaded under folders 1.2.10.2.1.0.1, 1.2.10.2.1.0.2 and 1.2.10.2.1.0.3 of the Data Room. Please see a copy of the guarantee uploaded under folder 1.2.10.2.1.1.0.1 of the Data Room. Covalent will not be released from this guarantee by the Closing Date.
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Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xix.
|
Including without limitation paragraph 6
|
When the initial AngloGold employee home ownership scheme started, AngloGold became aware that banks in certain regions were not financing units containing asbestos material.
AngloGold then embarked on an asbestos assessment process. ENSA Environmental SA (Pty) Ltd ("ENSA") was appointed to assist with the inspection of the properties. These inspection are carried out by ENSA with consulting occupational hygienists.
The 1st assessment was conducted on the 12 July 2016 which determined that 62 (sixty two) properties contained more than 70% (seventy percent) asbestos material (ceilings, fascia’s, barge boards and/or wall panels). The 70% (seventy percent) asbestos homes are pre-fabricated homes.
The 2nd assessment was conducted on the 10 October 2016, which determined that 53 of the 58 properties assessed contained up to 40% (forty percent) asbestos material (ceilings, fascia’s and/or barge boards). The 40% (forty percent) asbestos houses are constructed of brick.
These two assessments indicated that the majority of the AngloGold properties contained some level of asbestos materials. The reason for this is that the use of asbestos materials in construction was extremely widespread in the 1960’s to the 1980’s when the AngloGold properties were built.
AngloGold has decided that the 70% (seventy percent) asbestos material homes will be demolished and/or will be vacated and no longer rented. When a 40% (forty percent) asbestos material home is identified (e.g. when it is to be sold to an employee), AngloGold remediates the home by having ENSA remove the asbestos material, whereafter AngloGold’s maintenance team replaces the items in question with other material. ENSA then issues an asbestos clearance certificate in respect of the home.
In terms of AngloGold’s findings, the properties containing asbestos materials are safe for continued habitation. The risk of harm arises when asbestos fibres become airborne, which could happen when an affected house is renovated or drilling of the affected materials takes place. No asbestos related claims have been made against AngloGold arising out of the occupation of the affected homes.
As at 10 February 2020, 590 employee apply-to-buy properties containing up to 40% asbestos material have been remediated at an average cost of R20,000 per unit. It is planned that the remainder of the phases will continue for all apply to buy units. Consequently, there are no pre-fabricated homes left.
9. AngloGold believes it is very likely that the homes to be transferred to the relevant Purchasers under the Agreement which have not yet been assessed will have a similar asbestos material profile to the assessed homes discussed above, i.e. most of the homes will contain up to 40% (forty percent) asbestos material. In the event that the houses are remediated, the Purchaser will need to ensure compliance with the National Environmental Management: Waste Act, 2008 and the Regulations for prohibition over use, manufacturing, import and export of asbestos and asbestos containing material, 2008, which incorporate by reference the asbestos regulations, 2001 under OHSA.
|
xx.
|
Including, without limitation, paragraphs 6 and 15
|
Please see the documents uploaded under folder 1.2.12.1.2 of the Data Room which details the status of AngloGold's proceedings against Merafong in respect of the water tariff litigation.
|
xxi.
|
Including without limitation paragraphs 6 and 9
|
Some of the Transferring Employees (WW) are entitled to rights of use pursuant to:
• the AngloGold employee ownership housing scheme; and
• the commercial leases uploaded in the Data Room at folder 1.2.9.5.
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Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xxii.
|
Including without limitation paragraph 9
|
The following employees will cease to be employed by AngloGold with effective from on or about March 2020: K Craigen (Senior Human Resources Manager - Surface Ops and Closure Business), PR Botha (Security Manager - Central Services) and ES de Waal (Manager - Central Services).
In terms of AngloGold practice, employees may apply for an advance on salary up to a maximum of 50% (fifty percent) of the salary already accrued to the employee (generally up to one month’s salary). These advances must be motivated to and authorised by AngloGold. Few employees receive such advances.
|
xxiii.
|
Including without limitation paragraph 9
|
The health records in relation to the Transferring Employees (WW) will be transferred to the Purchaser but these records have been maintained and stored by AngloGold Ashanti Health (Pty) Ltd.
|
xxiv.
|
Including, without limitation, paragraph 9
|
10. Ramon Pienaar (Maintenance Control System Advisor) has been seconded to AngloGold's Obuasi Mine in Ghana. Ramon Pienaar's secondment will not have terminated by the Closing Date.
|
xxv.
|
Including, without limitation, paragraph 9
|
11. Please see the documents uploaded under folder 1.2.3.2.10.0.3 of the Data Room in respect of disciplinary procedures instituted against senior employees which form part of the Transferring Employees (WW).
|
xxvi.
|
Including, without limitation, paragraph 9
|
12. 137 (one hundred and thirty seven) of the Transferring Employees (WW) do not belong to a Retirement Fund. Such employees consist of MOA Learners and fixed term employees.
|
xxvii.
|
Including, without limitation, paragraph 9 and 9
|
13. The details of employment-related matters which are currently being heard at the CCMA have been uploaded under folder 1.2.3.10.0.4 of the Data Room.
|
xxviii.
|
Including, without limitation, paragraph 9
|
14. The details regarding Moloko’s CCMA case have been uploaded under folder 1.2.3.2.10.0.3 of the Data Room.
|
xxix.
|
Including without limitation paragraph 9
|
The health records in relation to the Transferring Employees (WW) will be transferred to the Purchaser but these records have been maintained and stored by AngloGold Ashanti Health (Pty) Ltd.
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Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xxx.
|
Including without limitation paragraphs 8 and 10
|
The notices issued by the DMR during the period 2016 to 2020 in respect of the WW Mining Areas or the WW Mining Rights and WW Mining Right 11 MR have been uploaded in the Data Room at folder 1.2.12.4. AngloGold has not responded to the notice issued by the DMR dated 8 January 2020 uploaded in the Data Room at folder 1.2.12.4.0.1, which response is due on 15 March 2020.
Please see the documents uploaded under folder 1.2.12.4.3.1 of the Data Room for correspondence and documentation relating to the BEE Amendment Application submitted in response to the directive issued in terms of section 93 of the MPRDA and dated 25 February 2019.
Please see the documents uploaded under folder 1.2.12.4.2 of the Data Room for correspondence and documentation relating to monthly reports that AngloGold currently submits to the DMR as directed by the DMR in terms of section 52 of the MPRDA.
1991 Agreement:
An agreement was concluded in 1991 between Driefontein Consolidated Limited, Blyvooruitzicht Gold Mining Company Limited and Western Deep Levels Limited (the "1991 Agreement"). AngloGold is in dispute with Sibanye Gold Limited t/a Sibanye-Stillwater ("Sibanye-Stillwater") regarding the validity and enforceability of the 1991 Agreement in its entirety, and/or in part, insofar as it relates to Western Deep Levels Limited and/or AngloGold.
In the course of the bid process, AngloGold uploaded relevant documentation and information regarding the 1991 Agreement and the dispute between AngloGold and Sibanye-Stillwater. Notwithstanding the disclosure of relevant information and documentation regarding, amongst others, the dispute between AngloGold and Sibanye-Stillwater regarding the 1991 Agreement and/or the management of water, at the West Wits Operations, AngloGold makes no representations, warranties or commitments whatsoever regarding the validity and the enforceability of the 1991 Agreement entirely, or in part.
To the extent that AngloGold engages and/or negotiates the disposal of its South African operations, with any parties whatsoever, such engagements, negotiations, and, in the event that a commercial agreement is entered into, does not in any manner constitute an admission by AngloGold that it is bound by any provisions of the 1991 Agreement and its rights to dispute the validity and enforceability of the 1991 Agreement on any grounds whatsoever, are reserved.
Blyvoor Supply and Use of Water Agreement :
A draft Supply and Use of Water Agreement (which is yet to be signed) to be entered into between AngloGold and Blyvoor Gold Capital provides for underground processed water of up to 2Ml (two mega litres) per day at Savuka underground pumping infrastructure for dust suppression of the Blyvoor tailings storage facility ("TSF").
Blyvoor Offer to Acquire the Savuka Gold Plant and the Savuka TSF:
On or about 31 January 2019, AngloGold received an offer from Blyvoor Gold Capital to acquire the Savuka Gold Plant and the Savuka TSF ("Savuka Assets"). AngloGold has advised Blyvoor Gold Capital that the Savuka Assets form part of the WW Package to be disposed by AngloGold pursuant to the announcement published by AngloGold on 9 May 2019 and accordingly, Blyvoor should (if it wishes to acquire the Savuka Assets) approach the acquirer thereof once the sale process has been concluded.
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Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xxxi.
|
Including without limitation paragraph 12
|
AngloGold lodged an application with Gauteng Department of Agriculture and Rural Development ("GDARD") for renewal of the waste management licence Gaut 002/09 10/W0011 ("WML") on 9 July 2019. The WML relates to operation of the Mponeng waste disposal facility. GDARD issued AngloGold with a letter dated 12 August 2019 stipulating that the DMRE is now the competent authority for the renewal application. After consultation with the DMRE, AngloGold submitted the renewal application with the DMRE on 13 December 2019 which renewal application remains pending. AngloGold is currently operating the Mponeng waste disposal facility in accordance with the terms and conditions of the WML while the renewal is pending.
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xxxii.
|
Including without limitation paragraphs 7 and 17
|
The physical due diligence on the title deeds in respect of the Immovable Properties (WW) was conducted by the relevant members of the Purchaser’s Group (and/or their representatives and/or their advisors) between 22-25 October 2019 at AngloGold premises.
AngloGold has not uploaded into the Data Room: (a) copies of certain title deeds which were made available for the Purchasers review at the offices of AngloGold 22 and 25 October 2019; (b) certain title deeds which were not in the physical possession of AngloGold by virtue of them being lodged at a Governmental Entity or conveyancer; and (c) copies of documents which required third parties to consent to the disclosure of the document to the Purchasers and which consent was unable to be procured by AngloGold.
|
Annexure E
|
Disclosure Schedule (VR)
|
1.
|
Introduction
|
1.1.
|
All words and expressions defined in the Agreement will, unless the context otherwise requires or the contrary is indicated, have the same meaning when used in this Disclosure Schedule (VR).
|
1.2.
|
If any inconsistency or conflict arises between the Agreement and this Disclosure Schedule (VR), this Disclosure Schedule (VR) shall prevail to the extent of such inconsistency or conflict.
|
1.3.
|
The disclosure of any matter in this Disclosure Schedule (VR) shall not be taken or construed in any way as an admission or evidence that the matter disclosed would otherwise give rise to any liability under the Agreement, or as a representation, warranty or undertaking not expressly given in the Agreement, nor as extending the scope of any warranty and/or undertaking given in the Agreement.
|
1.4.
|
All disclosures are made generally in relation to the Agreement and are not to be related to any particular warranty, undertaking, obligation or other matter.
|
2.
|
Disclosures
|
2.1.
|
In addition, by way of general disclosures, the following matters are disclosed to the Purchaser –
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
ANNEXURE B1 - FUSA
|
||
i.
|
Including, without limitation, paragraph 10
|
Please see the documents uploaded under folders 1.3.10.1.1, 1.3.10.1.2.0.1 and 1.3.13.1.2.1 of the Data Room.
|
ii.
|
Including, without limitation, paragraph 10
|
Please see the agreement entered into with Franco – Nevada Corporation uploaded under folder 1.3.10.1.1.0.6 in the Data Room.
|
iii.
|
Including, without limitation paragraph 12
|
Those AngloGold employees working in the FUSA Business are Transferring Employees (VR).
|
iv.
|
Including, without limitation paragraphs 9 and 17
|
AngloGold has not uploaded into the Data Room: (a) copies of certain title deeds which were made available for the Purchasers review at the offices of AngloGold 22 and 25 October 2019; (b) certain title deeds which were not in the physical possession of AngloGold by virtue of them being lodged at a Governmental Entity or conveyancer; and (c) copies of documents which required third parties to consent to the disclosure of the document to the Purchasers and which consent was unable to be procured by AngloGold.
|
Annexure B2 - MWS
|
||
v.
|
Including, without limitation, paragraph 4 and 6
|
MWS is not a holder of a mining right in terms of the MPRDA and, as such, MWS is not required to make financial provision in terms of NEMA. Accordingly, there are no rehabilitation obligations reflected in or described in the MWS Accounts.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
vi.
|
Including, without limitation, paragraph 4
|
In terms of a notarial lease (Registration No. K5876/2009L) as amended (Registration No. K5876/2009L), MWS (as lessee) has rented from Wildebeestpan (Portion 9 and 10) Communal Property Association (as lessor) the Remaining Extent of the Farm Wildebeestpan 442 IP for a term of 99 (ninety years) years at an escalating rental. The lease may be terminated by the parties before the expiration of the term, provided that the lessee will be liable to pay a penalty (the terms of which to be agreed by the parties). Please see the documents uploaded under folders 1.3.9.4.1.0.3 and 1.3.9.4.1.0.2 of the Data Room.
|
vii.
|
Including, without limitation, paragraph 10
|
Please see the agreement entered into with Franco – Nevada Corporation uploaded under folder 1.3.10.1.1.0.6 in the Data Room.
|
viii.
|
Including, without limitation paragraph 12
|
Those AngloGold employees working in the MWS Business are Transferring Employees (VR).
|
ix.
|
Including, without limitation paragraph 14
|
The NEMA Authorisation is held in the name of MWS for purposes of the operations of the MWS Business and/or the Chemwes Business.
The NNR Certificate is held in the name of MWS for purposes of the operations of the MWS Business and/or the Chemwes Business.
|
x.
|
Including, without limitation paragraphs 9 and 18
|
AngloGold has not uploaded into the Data Room: (a) copies of certain title deeds which were made available for the Purchasers review at the offices of AngloGold on 22 and 25 October 2019; (b) certain title deeds which were not in the physical possession of AngloGold by virtue of them being lodged at a Governmental Entity or conveyancer; and (c) copies of documents which required third parties to consent to the disclosure of the document to the Purchasers and which consent was unable to be procured by AngloGold.
|
ANNEXURE B3 – Chemwes
|
||
xi.
|
3. Including, without limitation, paragraph 6
|
AngloGold currently stands as a guarantor in favour of Eskom in terms of an electricity supply agreement entered into between (inter alia) Eskom and Chemwes on 13 May 2011 terminable on 3 (three) calendar months’ notice in writing by either party, and which agreement is uploaded under folder 1.3.10.3.1.3.0.1 of the Data Room. Please see a copy of the guarantee uploaded under folder 1.3.10.3.1.1.0 of the Data Room. AngloGold will not be released from this guarantee by the Closing Date.
|
xii.
|
4. Including, without limitation, paragraph 7
|
5. Please see the settlement agreement entered into with SARS which is uploaded under folder 1.3.11.2.3.1.4.0.1 of the Data Room.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xiii.
|
6. Including, without limitation, paragraphs 8 and 16
|
The Chemwes Property is subject to leases, surface right permits, restrictive conditions and servitudes copies of which have been uploaded in the Data Room.
Mrs Sally Barraclough:
There is an informal arrangement between Chemwes and Mrs Sally Barraclough, owner of the property south of Kareerand (Remaining Extents 3,16 and 17 of the Farm Kromdraai 420 IP) for winter grazing of cattle on the Remaining Extent of Portions 0 and 1 of the Farm Umfula 575 IP (which is owned by Chemwes). This a continuation of the informal agreement concluded between Chemwes and Mrs Sally Barraclough when a portion of the farm Kromdraai was purchased to construct the Kareerand Tailings Storage Facility.
Tailings and Mining Right Agreement:
The Tailings and Mining Right Agreement concluded between Buffelsfontein Gold Mines Limited ("BGM") and Chemwes in 2008 provides for servitudes in favour of Chemwes for purposes of transmitting tailings by means of pipelines over certain portions of BGM’s farm Hartebeestfontein No 422. A notarial deed of servitude has been prepared but has not been signed yet.
A notarial deed of abandonment ("Abandonment Deed") was executed by Buffelsfontein Gold Mine Limited on 4 April 2017 in terms of which Buffelsfontein Gold Mine Limited abandoned from the mining right (DMRE reference: 30/5/1/2/2/323 MR) the part of the mining area on which the following are located: Harties 5 & 6 TSF; Harties 1 and 2 TSF; Buffels 5 TSF; Buffels 1, 2, 3, and 4 TSF; Harties 7 TSF. The Abandonment Deed has not been lodged at the MPTRO.
Remaining Extent of Portion 31 of the Farm Stilfontein No 408:
A portion of the Remaining Extent of Portion 31 of the Farm Stilfontein No 408 (which forms part of the subdivided portions on which the national road is located (the "SANRAL Portion")) has been disposed by Chemwes to SANRAL. As Chemwes cannot register a servitude in its favour at the deeds office, a servitude has been granted by Chemwes in favour of MWS over the Remaining Extent of Portion 31 of the Farm Stilfontein No 408 (including the SANRAL Portion) in order to secure the pipeline servitude over the SANRAL Portion. A notarial deed of servitude will be lodged at the deeds office imminently.
Margaret Village:
At the time of acquisition of Portion 24 of the Farm Hartebeestfontein 422 IP by Chemwes sometime in 2012, a settlement known as the "Margaret Village" was located. Margaret Village is not a formal, legal township or development and as far as AngloGold is aware, the buildings were constructed in former years as part of a mining village by another mining entity, but have since fallen into disuse for mining purposes. Potable water, electricity and sewerage services have been supplied by Chemwes and/or MWS to Margaret Village. A majority of the buildings are derelict and a sinkhole (caused by the underground pipelines) has been identified in the area. AngloGold has considered various options to remedy the situation (including upgrading the village, resettlement and incorporation into the municipal boundary) however, no action has been taken. Please see the document uploaded under folder 1.3.8.5.5 of the Data Room.
Portion 57 of the Farm Hartebeestfontein:
Chemwes has acquired a portion of Portion 57 of the Farm Hartebeestfontein 422 (measuring 378,4068 hectares) from BGM. The requisite documents for the purposes of the transfer of the aforesaid portion have been prepared however, the lodging of such documents at the deeds office has been delayed due to tracing the existing bondholder (whose consent is required for the transfer) in respect of the aforesaid portion.
Margaret and Scott Rock Dumps Property:
The portions of land (Remaining Extent of Portion 24 of the Farm Hartebeestfontein 422 IP) on which the Margaret and Scott Rock Dumps are located (the "Margaret and Scott Rock Dumps Property") have been disposed by Chemwes to OMV Proprietary Limited ("OMV"). The subdivision and diagrams in respect of the Margaret and Scott Dumps Property have been approved and the requisite documents for the purposes of the transfer of the Margaret and Scott Rock Dumps Property have been prepared and will be lodged at the deeds office imminently, together with the registration of a servitude in favour of AngloGold and Chemwes for purposes of access, use and right of way over the Margaret and Scott Dumps Property. In addition, certain servitudes of right of way and engineering services will be reserved in favour of Chemwes. Please see the document uploaded under folder 1.3.12.4.1.1 of the Data Room.
Mr Pele:
A Mr Pele has been occupying a portion of Portion 25 of the Farm Stilfontein 408 IP for an undetermined period (apparently as a farmworker for the previous owner of the property) and also grazes his cattle there. External trespassers were recently removed from the property. Steps have commenced to identify the legal nature of Mr Pele’s informal rights (if any) thereafter, the way forward will be determined.
Tim’s Haven Community Water:
A servitude in favour of Portion 40 Kromdraai (Tim’s Haven community) has been registered for the purposes of a water pipeline (measuring 3m wide) over RE Portion 4 Kromdraai 420 IP. As far as AngloGold is aware, there is no servitude registered over Portion 40 Kromdraai.
Metrimix Sale:
The Remaining Extent of Portion 21 of the Farm Stilfontein 408 (measuring approximately 2,0234 (two comma zero two three four) hectares) and a certain portion of the Remaining Extent of Portion 33 of the Farm Stilfontein 408 (measuring approximately 1,0811 (one comma zero eight one one) hectares) have been disposed by Chemwes to Metrimix Proprietary Limited (a member of the OMV group). The consent for the subdivision of the property as well as the reinstatement agreement remain outstanding.
Wildebeestpan Servitude:
There is a historic servitude letter (since August 2010) in place between Chemwes and Wildebeestpan (Portions 9 and 10) Communal Property Association relating to a servitude in favour of Chemwes over the Remaining Extent of the Farm Wildebeestpan 442 IP for purposes of a road, pipeline and power cables. The consideration payable by Chemwes to Wildebeestpan CPA for the aforesaid arrangement is the construction of a house at a cost not exceeding R200 000.00 (two hundred thousand Rand). The servitude arrangement has not been implemented.
Rand Leases Servitude:
2 (two) servitudes in respect of the Remaining Extent of Portion 21 and the Remaining Extent of Portion 33 of the Farm Stilfontein 408 have been registered in favour of Chemwes (Registration No. K863/05S and Registration No. K864/05S respectively) and correctly endorsed against the servient properties of Rand Leases Properties Limited (which properties were subsequently transferred to the Klaas Goudriaan Familie Trust) in favour of certain areas over which the Chemwes Business is conducted. However, each of the deeds of servitude erroneously provide that the owner of the servient property grants the servitude in favour the servient property, whereas the deeds of servitude should reflect that the servitude is granted in favour of the dominant tenement. Accordingly, such error will be rectified by means of a notarial deed of amendment, with the co-operation of the Klaas Goudriaan Familie Trust.
Mr Muller Lease :
A lease agreement was concluded between Chemwes (as lessor) and Mr Muller (as lessee) in respect of a game farm located at certain portions of the Farm Buffelsfontein 443 IP on or about 2013. Notwithstanding the expiry of the written lease agreement and a failure to renew same, the parties continued with the lease on a month-to-month basis. Mr Muller has failed to pay rental since September 2016 but continues to occupy the leased premises. Chemwes has accordingly terminated the lease due to a breach thereof by Mr Muller and has commenced with proceedings against Mr Muller for eviction from the leased premises, payment of arrear rentals and damages. There are settlement discussions currently taking place between the parties however, no settlement has been reached yet. Please see the documents uploaded under folder 1.3.9.4.1 of the Data Room.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xviii.
|
Including, without limitation, paragraphs 1.4, 1.7, 6 and 14
|
The Immoveable Property (VR) is subject to leases, surface right permits, restrictive conditions and servitudes copies of which have been uploaded under folder 1.3.9 of the Data Room.
Pringle Reservoir:
In terms of a service level agreement concluded between AngloGold and Kopanang Gold Mining Company Proprietary Limited ("VMR"), AngloGold has granted a right of first refusal in favour of VMR in respect of a reservoir known as the "Pringle Reservoir". Please see the document uploaded under folder 1.3.12.4.2.0.4 of the Data Room.
VMR Right of First Refusal – Rail Link and Rolling Stock:
In terms of a service level agreement concluded between AngloGold and VMR, AngloGold granted a right of first refusal in favour of VMR in respect of the Rail Link and any component thereof. VMR relinquished the right of first refusal in respect of the Rail Link, which resulted in the conclusion of the Traxtion Agreement. VMR’s right of first refusal in respect of the rolling stock or any component thereof, has not yet been exercised. Please see the document uploaded under folder 1.3.12.4.2.0.4 of the Data Room.
VMR Right of First Refusal - Tailings:
In terms of a service level agreement concluded between AngloGold and VMR, AngloGold has granted a right of first refusal in favour of VMR in respect of the depositing of the tailings produced at West Gold Plant located at the West Complex and West Extension tailings storage facilities. Please see the document uploaded under folder 1.3.12.4.2.0.4 of the Data Room.
CAPM Surface Right Permits Agreement and CAPM Servitude Agreement:
A Surface Right Permit Agreement to be entered into between AngloGold, African Rainbow Minerals Gold Limited, the liquidators of Pamodzi Gold Orkney Proprietary Limited and CAPM African Precious Metals Proprietary Limited ("CAPM") has been prepared (but not signed yet), in terms of which (inter alia) (a) certain SRPs relating to CAPM’s operations] will be abandoned or partially abandoned and be replaced by servitudes and (b) 7 (seven) SRPs relating to CAPM’s operations will be transferred to CAPM.
It is recorded that (a) certain infrastructure located at certain areas over which the VR Remaining Business is conducted is required by CAPM for its operational purposes and AngloGold is thus required to register servitudes in favour of CAPM over such areas and (b) certain infrastructure located at certain areas over which CAPM’s business is conducted is required by AngloGold for its operational purposes and CAPM is thus required to register servitudes in favour of AngloGold over such areas. Accordingly, a servitude agreement has been negotiated and requires sketch plans to be finalised for signature whereafter, implementation thereof will be required.
Orkney Winze Area:
As regards the area located at a certain portion of Portion 4 of the Farm Witkop (the "Orkney Winze Area"), there used to be a CAPM vent shaft located on the Orkney Winze Area which vent shaft has since been closed by CAPM. Following an informal arrangement between AngloGold and Mr van Wyk, Mr van Wyk currently grazes his cattle on a certain portion of the Orkney Winze Area. In addition, there is a biodiversity as well as a heritage site located on the Orkney Winze Area.
The entrance to the Winze vent shaft is now utilised by illegal miners to access the underground workings of CAPM 6 Shaft. Several attempts to enclose the holing’s failed as the illegal miners continue to re-open the entrance to the Winze vent shaft. CAPM appointed a security company "Joint Effort Security" in an attempt to prevent illegal miners entering the holing.
Westvaal Hospital:
A sale agreement was concluded between (inter alia) AngloGold and Westvaal Hospital Proprietary Limited (the "Westvaal Hospital Company"), in terms of which (inter alia) AngloGold disposed of the Westvaal Hospital to the Westvaal Hospital Company, subject to the fulfilment of certain conditions precedent. Due to the non-fulfilment of certain conditions precedent, the sale agreement was never implemented and a lease agreement was thus concluded between AngloGold and Westvaal Hospital Company in respect of the Westvaal Hospital, pending the sourcing of funding by the Westvaal Hospital Company for purposes of acquiring the Westvaal Hospital. This lease agreement was cancelled by AngloGold due to a breach thereof by the Westvaal Hospital Company, which currently occupies the Westvaal Hospital and has refused to hand over possession of the Westvaal Hospital to AngloGold. Accordingly, AngloGold is in the process of instituting eviction proceedings against the Westvaal Hospital Company.
In term of the aforesaid lease (which has since been cancelled), the Westvaal Hospital company leased some of the private rooms to medical practitioners (such as occupational therapists and physiotherapists) (the "West Vaal Medical Practitioners"). Although AngloGold terminated its lease with the Westvaal Hospital Company AngloGold did not however terminate the leases with West Vaal Medical Practitioners nor does it intend to do so prior to the Closing Date.
It is noted that the movable assets of the Westvaal Hospital are owned by AGA Health Proprietary Limited (a wholly owned subsidiary of AngloGold). Further, 15 (fifteen) out of 23 (twenty three) houses in the area of the Westvaal Hospital are occupied by former employees of the Westvaal Hospital Company and thus short-term leases are in the process of being concluded between AngloGold and such former employees who are currently occupying the aforesaid houses . Some of the vacant houses have been vandalised. The houses have not been included in the potential sale of the Westvaal Hospital to RH Managers, as dealt with below.
AngloGold has received an offer from RH Managers to acquire the Westvaal Hospital, which offer has been accepted by AngloGold, subject to the payment by RH Managers of a deposit and the conclusion of a written sale agreement. The offer provides for the installation and linking of, the Westvaal Hospital property to municipal services prior to the registration of transfer. The sale will not be concluded and the Westvaal Hospital will accordingly form part of the VR Remaining Business Assets to be sold to Harmony Moab.
8.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
|
Orkney Flats:
AngloGold disposed the Orkney Flats located to VMR. Approximately 6 (six) units of the Orkney Flats are currently occupied by VR Remaining Business employees. A draft head lease agreement has been prepared however such draft is yet to be executed. Please see the documents uploaded under folders 1.3.12.4.2.0.17 and 1.3.12.4.2.0.18 of the Data Room.
Kopanang Gold Plant:
Pursuant to the sale agreement (the "Kopanang Gold Plant Area Agreement") concluded between AngloGold and VMR, the area on which the Kopanang Gold Plant is located (Portion 27 of the Farm Pretoriuskraal) (the "Kopanang Gold Plant Area") was sold to VMR, subject to the conclusion of a short-term written lease agreement between AngloGold (as lessee) and VMR (as lessor) in respect of the aforesaid property. A draft lease agreement has been prepared however such draft is yet to be executed.
There have been further discussions relating to the registration of a servitude of use and access in favour of AngloGold over the Kopanang Gold Plant Area as well as rights of access and use over the Kopanang Gold Plant Area roads and pipeline areas located on Portion 27 and Portion 6 of the Farm Pretoriuskraal. Accordingly, these servitude provisions have been incorporated into a draft third addendum to the Kopanang Gold Plant Area Agreement, which is yet to be executed. In addition, Portion 27 of the Farm Pretoriuskraal has not been transferred to VMR yet as a subdivision of the portion thereof (which was previously disposed by AngloGold to OMV) is required to be approved and registered.
Kopanang Hostel lease:
In terms of a lease agreement concluded between AngloGold and VMR, a number of Kopanang Gold Plant employees are accommodated in certain rooms at the VMR hostel. This lease agreement has been uploaded under folder 1.3.12.4.2.0.6 of the Data Room.
West Gold Plant:
Pursuant to the sale agreement concluded between AngloGold and VMR (the "West Gold Plant Agreement"), the West Gold Plant located on Portion 200 Nooitgedacht 438 IP was disposed by AngloGold to VMR. A short-term lease agreement has been concluded between AngloGold and VMR in respect of the aforesaid property (under folder 1.3.12.4.20.2 of the Data Room). VMR has requested a servitude in respect of the loading pad, the Million dam, the change house and the offices at WAFU, and the residue pump station. These servitude provisions have been incorporated into a draft third addendum to the West Gold Plant Agreement which is yet to be signed.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
|
Flatted Houses:
Harmony Moab acquired from AngloGold certain residential units, including the Flatted Houses, indicated as located on Portion 2 of Erf 2 Orkney, which property was transferred to Harmony Moab. However, the Flatted Houses are not located on Portion 2 of Erf 2 Orkney but are located on Erf 2871 Orkney which have also been duly sold and transferred to Harmony Moab. The 23 houses known as the "West Housing" that serve the Westvaal Hospital are in fact located on Portion 2 of Erf 2 Orkney, as well as part of the North West Tourism Board Hotels School premises. A rectification transfer was envisaged but will no longer be necessary, provided that Portion 2 of Erf 2 Orkney is included in the list of the Immovable Properties (VR) to be sold pursuant to the Agreement.
Midvaal Servitudes:
Midvaal pipelines traverse Immovable Properties (VR) but no servitudes have been registered. Awaiting Midvaal to take the registration process further. Please see the documents uploaded under folder 1.3.9.6.2.1 of the Data Room.
Ariston:
Following allegations of contaminated ground water in the area known as "Ariston Holdings", AngloGold acquired a number of the properties that could potentially be affected by contaminated ground water and demolished all improvements on those properties.
A water pipeline agreement was also concluded between AngloGold and Matlosana Municipality on 26 January 1988 with regard to the construction of a municipal water pipeline and the provision of water by the local authority to 8 (eight) portions of the Farm Nooitgedacht 434 (four hundred and thirty four) (which have subsequently been subdivided into more portions) in the area known as "Ariston", and AngloGold has acquired some of the aforesaid portions. In terms of the aforesaid agreement (which is terminable on 6 (six) calendar months’ notice), AngloGold also undertook to pay to the local authority the rates for the actual water consumed on those AngloGold properties, subject to a maximum of 50 (fifty) kilo litres per month. Please see the documents uploaded under folder 1.3.9.13 of the data Room.
Sometime in 2014, AngloGold made offers to 3 (three) Ariston Plot owners to acquire their properties which offers were rejected. In 2019 however, Mr B Williams (Portion 57 of Ariston) and JH Stehlick (Portion 215 of Ariston) approached AngloGold indicating their willingness to sell their properties. A revaluation of the properties is currently being undertaken however, no mandate or offer to purchase has been finalised.
Encroachment:
Mr Moleko, the owner of Erf 3347 Orkney has encroached on AngloGold’s Erf 3348
Orkney with the construction of his boundary wall plus gate and the building of his house within the building line restriction right up to the actual boundary. He has further encroached on AngloGold’s Erf 3346 Orkney with the construction of his boundary wall over AngloGold’s stand. Mr Moleko made certain proposals to have the matter rectified and valuations are awaited.
Donations:
AngloGold has resolved to donate various properties in the area over which the VR Remaining Business is conducted. Such donations are currently in process. Mandates in respect of the donations have been uploaded under folder 1.3.9.11 of the Data Room.
Occupancy Leases:
AngloGold has entered into residential leases with various employees of the VR Remaining Business. Please refer to the schedule of documents uploaded under folder 1.3.9.2.0.29 of the Data Room.
Residential Properties:
AngloGold understands that there is a general approved master building plan for all residential properties and buildings and erections in the area over which the VR Remaining Business is conducted in accordance with municipal custom where volumes of similar buildings are constructed. However, there are certain residential properties and all buildings and erections thereon that do not comply in every material respect with all material Governmental Entities’ requirements relating thereto.
Engagements have commenced for the disposal of the various recreation clubs, including Caravan Club, Boating Club, Gliding Club and Transawl Riverside Resort situated in the VR Region however, no mandates or work has commenced in this regard.
Moab Sale:
Draft Third Addendum has been prepared and would have been shared with Harmony Moab shortly. Amendments to the draft Third Addendum may be required following the Closing Date.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xxi.
|
Including, without limitation, paragraphs 3 and 6
|
As regards the VR Remaining Business properties, the electricity, water and rental arrears due to AngloGold is as follows (in total):
• Margaret Village, R1 657 736 (one million six hundred and fifty seven thousand seven hundred and thirty six Rand);
• separated employees (whether retrenched or have concluded voluntary severance packages who occupy AngloGold-owned accommodation), R1 603 721 (one million six hundred and three thousand seven hundred and twenty one Rand); and
• commercial leases, R4 173 611 (four million one hundred and seventy three thousand six hundred and eleven Rand).
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xxii.
|
Including, without limitation, paragraph 5
|
AngloGold currently stands as a guarantor in favour of Eskom in terms of an electricity supply agreement entered into between (inter alia) Eskom and AngloGold on 28 February 2018 terminable on 12 (twelve) calendar months’ notice in writing by either party, and which agreement is uploaded under folder 1.3.10.3.1.2.0.2 of the Data Room. Please see a copy of the guarantee uploaded under folder 1.3.10.3.1.2.0 in the Data Room. AngloGold will not be released from this guarantee by the Closing Date.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xxiii.
|
Including without limitation paragraph 6.2.5
|
When the initial AngloGold employee home ownership scheme started, AngloGold became aware that banks in certain regions were not financing units containing asbestos material. In response, AngloGold embarked on an asbestos assessment process. ENSA Environmental SA (Pty) Ltd ("ENSA") was appointed by AngloGold to assist with the inspection of the properties. These inspection are carried out by ENSA with consulting occupational hygienists.
The 1st assessment was conducted on the 12 July 2016 which determined that 62 (sixty two) properties contained more than 70% (seventy percent) asbestos material (ceilings, fascia’s, barge boards and/or wall panels). The 70% (seventy percent) asbestos homes are pre-fabricated homes.
The 2nd assessment was conducted on the 10 October 2016, which determined that 53 (fifty three) of the 58 (fifty eight) properties assessed contained up to 40% (forty percent) asbestos material (ceilings, fascia’s and/or barge boards). The 40% (forty percent) asbestos houses are constructed of brick.
These two assessments indicated that the majority of the AGA properties contained some level of asbestos materials. The reason for this is that the use of asbestos materials in construction was extremely widespread in the 1960’s to the 1980’s when the AGA properties were built.
AngloGold has decided that The 70% (seventy percent) asbestos material homes will be demolished and/or will be vacated and no longer rented. When a 40% (forty percent) asbestos material home is identified (e.g. when it is to be sold to an employee), AngloGold remediates the home by having ENSA remove the asbestos material, whereafter AngloGold’s maintenance team replaces the items in question with other material. ENSA then issues an asbestos clearance certificate in respect of the home.
In terms of AngloGold’s findings, the properties containing asbestos materials are safe for continued habitation. The risk of harm arises when asbestos fibres become airborne, which could happen when an affected house is renovated or drilling of the affected materials takes place. No asbestos related claims have been made against AngloGold arising out of the occupation of the affected homes.
As at 10 February 2020, 360 (three hundred and sixty) employee apply-to-buy properties containing up to 40% a (forty percent) sbestos material have been remediated at an average cost of R20,000 (twenty thousand Rand) per unit. It is planned that the next removal phase will continue for all apply to buy units. The pre-fabricated 70% (seventy percent) asbestos material properties have all been demolished. consequently, there are no pre-fabricated homes left.
AngloGold believes it is very likely that the homes to be transferred to the relevant Purchasers under the Agreement which have not yet been assessed will have a similar asbestos material profile to the assessed homes discussed above, i.e. most of the homes will contain up to 40% (forty percent) asbestos material. In the event that the houses are remediated, the Purchaser will need to ensure compliance with the National Environmental Management: Waste Act, 2008 and the Regulations for prohibition over use, manufacturing, import and export of asbestos and asbestos containing material, 2008, which incorporate by reference the asbestos regulations, 2001 under OHSA.
|
Item No.
|
Warranty Reference (without limitation)
|
Disclosure
|
xxiv.
|
Including without limitation paragraph 6
|
Some of the Transferring Employees (VR) are entitled to rights of use pursuant to:
• the AngloGold employee ownership housing scheme; and
• the commercial leases uploaded in the Data Room at folder 1.3.9.5.
|
xxv.
|
Including without limitation paragraphs 8 and 16
|
The physical due diligence on the title deeds in respect of the Immovable Properties (VR) was conducted by the relevant members of the Purchaser’s Group (and/or their representatives and/or their advisors) between 22 and 25 October 2019 at AngloGold premises.
AngloGold has not uploaded into the Data Room: (a) copies of certain title deeds which were made available for the Purchasers review at the offices of AngloGold on 22 and 25 October 2019; (b) certain title deeds which were not in the physical possession of AngloGold by virtue of them being lodged at a Governmental Entity or conveyancer; and (c) copies of documents which required third parties to consent to the disclosure of the document to the Purchasers and which consent was unable to be procured by AngloGold.
|
xxvi.
|
Including without limitation paragraph 9
|
In terms of AngloGold practice, employees may apply for an advance on salary up to a maximum of 50% (fifty per cent) of the salary already accrued to the employee (generally up to one month’s salary). These advances must be motivated to and authorised by AngloGold. Few employees receive such advances.
|
xxvii.
|
Including, without limitation, paragraph 9.1.3
|
Ramon Pienaar (Maintenance Control System Advisor) has been seconded to AngloGold's Obuasi Mine in Ghana. Ramon Piennar's secondment will not have terminated by the Closing Date.
|
xxviii.
|
Including, without limitation, paragraph 9
|
Please see the documents uploaded under folder 1.2.3.2.10.0.3 of the Data Room in respect of disciplinary procedures instituted against senior employees which form part of the Transferring Employees (VR).
|
xxix.
|
Including, without limitation, paragraph 9
|
On 25 October 2019, AngloGold issued final written warnings to 195 (one hundred and ninety five) of the Transferring Employees (VR) who participated in an unprotected strike at MWS. AngloGold anticipates such employees to dispute the issuance of final written warnings.
|
xxx.
|
Including, without limitation, paragraph 9.6.2
|
11 (eleven) of the Transferring Employees (VR) do not belong to a Retirement Fund as noted in the payroll documentation uploaded under folder 1.2.3.2.1.0.7 of the Data Room. Such employees consist of "MOA Learners" and fixed term employees.
|
xxxi.
|
Including, without limitation, paragraph 9
|
The details of employment-related matters which are currently being heard at the CCMA have been uploaded under folders 1.2.3.2.10.0.4 and 1.3.3.2.10.0.2 of the Data Room.
|
xxxii.
|
Including without limitation paragraph 9
|
The health records in relation to the Transferring Employees (VR) will be transferred to the Purchaser but these records have been maintained and stored by an outsourced healthcare provider (Laboransan Occupational Health (Pty) Ltd).
|
Annexure F
|
WW Mining Sale Assets
|
1.
|
The following mines and related infrastructure (the "WW Mines"):
|
1.1.
|
the Mponeng Mine operated by AngloGold, being the mining operation and related infrastructure, in the municipalities of Merafong City Local Municipality, Gauteng, South Africa established to access and mine minerals per the WW Mining Rights, as depicted as such in Annexure W, comprising of the underground mining operation and associated infrastructure related thereto, including the shaft area, comprising all buildings, consumable and critical spares stores, fixed and movable mining equipment and associated fixtures and fittings located on the mines as at the Closing Date, being (as at the Signature Date) the assets listed in folder 1.2.11.2.2.0.6in the Data Room (the "Mponeng Mine");
|
1.2.
|
the Tau Tona Mine in preparation for orderly closure, being the mining operation and related infrastructure, in the municipalities of Merafong City Local Municipality, Gauteng, South Africa established to access and mine minerals per the WW Mining Rights, as depicted as such in Annexure W, including the shaft area and associated infrastructure related thereto (to the extent applicable), comprising all buildings, fixed and movable mining equipment and associated fixtures and fittings located on the mine as at the Closing Date, being (as at the Signature Date) the assets listed in folder 1.2.11.2.2.0.6 in the Data Room; and
|
1.3.
|
the Savuka Mine in preparation for orderly closure, being the mining operation and related infrastructure, in the municipalities of Merafong City Local Municipality, Gauteng, South Africa established to access and mine minerals per the WW Mining Rights, as depicted as such in Annexure W, comprising of water pumping infrastructure and equipment, including the shaft area and associated infrastructure related thereto (to the extent applicable), comprising all buildings, consumable and critical spares stores, fixed and movable equipment and associated fixtures and fittings including fixed and movable equipment and associated fixtures and fittings for the pumping of water located on the mine as at the Closing Date, being (as at the Signature Date) the assets listed in folder 1.2.11.2.2.0.6 in the Data Room.
|
2.
|
The Mponeng Gold Plant, as depicted as such in Annexure W, and all other fixed and movable equipment and infrastructure owned and used by AngloGold in or in connection with the Mponeng Gold Plant, as at the Closing Date, being (as at the Signature Date) the assets listed in folder 1.2.11.2.2.0.6 of the Data Room (the "WW Gold Plant").
|
3.
|
The Savuka Gold Plant, as depicted as such in Annexure W, and all other fixed and movable equipment and infrastructure owned and used by AngloGold in or in connection with the Savuka Gold Plant, as at the Closing Date, being (as at the Signature Date) the assets listed in folder 1.2.11.2.2.0.6 of the Data Room (the "Savuka Gold Plant").
|
4.
|
All of the buildings, training units and accommodation units / housing and all other fixed and moveable equipment and infrastructure owned and used by AngloGold, as at the Closing Date, which, as at the Closing Date, are situated in the WW Region (the "Infrastructure (WW)"), and include but are not limited to:
|
4.1.
|
the high density accommodation units which house employees working at the WW Mines and includes the Ntshongalanga Residence, the Motabeng Residence and the Ekhayalihle Residence, the details of which are set out in folder 1.2.11.2.2.0.6 of the Data Room and which are depicted in Annexure W and labelled thereon as "Ntshongalanga Residence", the "Motabeng Residence" and the "Ekhayalihle Residence";
|
4.2.
|
the West Wits Village which is depicted in Annexure W and labelled thereon as "West Wits Village";
|
4.3.
|
all infrastructure, as at the Closing Date, forming part of the WW Region district offices as situated on the WW Mining Areas, the details of which are set out in folder 1.2.11.2.2.0.6 of the Data Room;
|
4.4.
|
all of the buildings, training units and accommodation units / housing and all other fixed and moveable equipment and infrastructure located on the Kraalkop Game Reserve, which is depicted in Annexure W and labelled thereon as "Kraalkop Game Reserve", as well as all of the game animals which are listed under folder 1.2.9.14 of the Data Room;
|
4.5.
|
the WW Region compulsory training units, which include the ATDS Training Centres, the details of which are set out in folder 1.2.11.2.2.0.6of the Data Room and are depicted in Annexure W and labelled thereon as "ATDS Training Centres";
|
4.6.
|
all infrastructure and equipment (other than infrastructure and equipment owned by third parties) relating to security services relating directly to the WW Mines, the Mponeng Gold Plant and the Savuka Gold Plant, the details of which are listed under folder 1.2.11.2.2.0.6 of the Data Room;
|
4.7.
|
the South African Region Offices and the West Wits Regional Offices situated on the WW Mining Areas, as depicted in Annexure W; and
|
4.8.
|
any and all buildings and infrastructure required for mining purposes in terms of the WW Mining Rights.
|
5.
|
3 (three) armoured security vehicles with registration numbers ZPP702GP, ZHV568GP and ZHV480GP respectively.
|
6.
|
The WW Mining Right 11 MR and all operations conducted by AngloGold in the area referred to by AngloGold in its relevant plans and programmes as "Block 1C11".
|
7.
|
The firearms listed in folder 1.2.7.2.0.8 of the Data Room.
|
Annexure G
|
VR Remaining Sale Assets
|
1.
|
All of the buildings, training units and accommodation units / housing and all other fixed and moveable equipment and infrastructure owned and used by AngloGold, as at the Closing Date, which, as at the Closing Date, are situated in the VR Region (the "Infrastructure (VR)"), and include, but are not limited to:
|
1.1.
|
all infrastructure, as at the Closing Date, forming part of the VR Region district offices, the details of which are set out in folder 1.2.11.2.2.0.6 of the Data Room and which are depicted in Annexure X and labelled thereon as "Regional Offices";
|
1.2.
|
the primary healthcare centre located on the Kopanang Gold Plant as depicted in Annexure X;
|
1.3.
|
the Westvaal Hospital and all related buildings and infrastructure situated at 1 Hospital Road, Orkney, North West Province, South Africa on a portion of Remaining Extent of Portion 4 (a portion of Portion 1) of the farm Witkop 438 Registration Division IP North West Province (the "Westvaal Hospital") and all other fixed and moveable assets, equipment and infrastructure located, as at the Closing Date, at the Westvaal Hospital as depicted in Annexure X; and
|
1.4.
|
all infrastructure and equipment (other than infrastructure and equipment owned by third parties) relating to security services, the details of which are listed under folder 1.2.11.2.2.0.6 of the Data Room.
|
2.
|
The Kopanang Gold Plant, as depicted as “Kopanang Plant” in Annexure X, located on the VMR Portions, and all other fixed and movable equipment and infrastructure owned and used by AngloGold in or in connection with the Kopanang Gold Plant, as at the Closing Date, being (as at the Signature Date) the assets listed in folder 1.2.11.2.2.0.6 of the Data Room (the "Kopanang Gold Plant").
|
3.
|
The Airwing helicopter (Registration No. ZS - HFE) manufactured in 2010.
|
4.
|
3 (three) armoured security vehicles with registration numbers CHK101NW, DZV955NW and DVD917NW respectively.
|
5.
|
The firearms listed in folder 1.3.7.3.0.4 of the Data Room
|
Annexure H
|
SLAs (VR)
|
1.
|
AngloGold to Harmony Services Agreement entered into entered into between Harmony and AngloGold on 28 February 2018.
|
2.
|
Harmony to AngloGold Services Agreement entered into between Harmony and AngloGold on 28 February 2018.
|
3.
|
VMR SPV to AngloGold Services Agreement entered into between VMR and AngloGold on 21 February 2018.
|
4.
|
AngloGold to VMR SPV Services Agreement entered into between VMR and AngloGold on 21 February 2018.
|
5.
|
Supply of Rail Services Agreement entered into between AngloGold and Traxtion on 30 November 2018.
|
6.
|
Bulk Services Agreement entered into, or to be entered into, between AngloGold and SGS South Africa Proprietary Limited (a copy of which is uploaded under folder of 1.3.12.4.4.0.3 of the Data Room).
|
7.
|
Potable Water Supply Agreement entered into between AngloGold and CAPM, last signed on 1 March 2018 (a copy of which is uploaded under folder of 1.3.12.4.7.0.4 of the Data Room).
|
Annexure I
|
Contracts (WW)
|
Item No.
|
Contract (WW)
|
Data Room Reference (where applicable)
|
Sustainability MOUs
|
||
1.
|
Memorandum of Agreement concluded between Mining Qualification Authority and AngloGold on 5 March 2018 detailing the parties’ collaboration in relation to the management and disbursement of bursary funds to 30 students.
|
1.2.8.2.0.1
|
2.
|
Memorandum of Understanding concluded between AngloGold and with Merafong City Local Municipality on 09 June 2014 for establishment of an Enterprise Development Centre with the objective of developing community based entrepreneurs and employment opportunities are recorded on the further terms and conditions set out therein.
|
1.2.8.4.3.0.5
|
3.
|
Memorandum of Understanding concluded between AngloGold and with the West Rand District Municipality on or about 30 August 2011 detailing their agreement to coordinate development under AngloGold’s social and labour plan and the Municipality’s integrated development plan.
|
1.2.8.4.2.0.1
|
4.
|
Memorandum of Understanding concluded between AngloGold and with the OR Tambo District Municipality on or about 10 January 2012 detailing their agreement to coordinate development under AngloGold’s social and labour plan and the Municipality’s integrated development plan.
|
1.2.8.4.1.0.1
|
Memorandum of Agreement
|
||
5.
|
Memorandum of Agreement between AngloGold and Driefontein Consolidated Proprietary Limited ("DCP") on 28 July 2003 for the supply of non-potable water by DCP to AngloGold are recorded on the further terms and conditions set out therein.
|
1.2.10.2.2
|
6.
|
Amendment to the Memorandum of Agreement between AngloGold and DCP on 23 July 2004 for the extension of the term for the supply of non-potable water by DCP to AngloGold are recorded on the further terms and conditions set out therein
|
1.2.10.2.2
|
Home Ownership Scheme
|
||
7.
|
Memorandum of Understanding entered into between AngloGold and the National Union of Mineworkers, Association of Mineworkers Union, UASA and Solidarity on 5 November 2014 whereby AngloGold makes available for sale stands and houses in Matlosana and Merafong Municipalities to employees on the further terms and conditions set out therein.
|
1.2.9.9.0.2
|
Covalent
|
||
8.
|
Pipeline Agreement between AngloGold and Covalent for provision of water pumping operations for the benefit of AngloGold in order to prevent flooding AGA’s mines.
|
1.2.12.5.1.0.9
|
9.
|
Service Agreement between AngloGold and Covalent on 9 June 2014 provision of water pumping services for the benefit of AngloGold in order to prevent flooding on the further terms and conditions set out therein.
|
1.2.12.5.1.0.8
|
Western Deep Levels
|
||
10.
|
Agreement concluded between Western Deep Levels Limited, Blyvooruitzight Gold Mining Company Limited and Driefontein Consolidated Limited on 20 June 1991 for the pumping, removal and disposal of underground water emanating from 5 shaft-west complex (now called 10-shaft complex).
|
1.2.5.8.0.1
|
11.
|
Mining Services Participation Agreements concluded between Western Ultra Deep Levels Limited, Western Deep Levels Limited and Witwatersrand Deep Limited dated 1954 (as amended in 1963), 18 July 1975 and 11 July 1980.
|
1.2.12.2.2.0.1, 1.2.12.2.2.0.2, 1.2.12.2.2.0.3 and 1.2.12.2.2.0.9
|
12.
|
Agreement concluded between Western Deep Levels Limited, Blyvooruitzight Gold Mining Company Limited, Doornfontein Gold Mining Company Limited on 21 March 1968 for, inter alia, the maintenance of the Blyvoor Channel on the further terms and conditions set out therein.
|
1.2.9.13
|
Annexure J
|
Contracts (VR)
|
Item No.
|
Contract (VR)
|
Data Room Reference (where applicable)
|
Sustainability MOUs
|
||
1.
|
Memorandum of understanding entered into between AngloGold and Matlosana Municipality in or about 2011 in terms of which (inter alia) the parties thereto detailing their agreement in aligning the social and labour plan in the VR Region and the Matlosana Municipality’s integrated development plan on the further terms and conditions set out therein.
|
1.3.8.4.1.0.1
|
2.
|
Memorandum of Understanding concluded between AngloGold and with the OR Tambo District Municipality on or about 10 January 2012 detailing their agreement to coordinate development under AngloGold’s social and labour plan and the Municipality’s integrated development plan
|
1.3.8.4.2.0.1
|
Deeds of Donation
|
||
3.
|
Offer of Donation entered into between AngloGold and Matlosana Municipality on or about 6 July 2019 in terms of which (inter alia) the donation of Kanana SAPS Offices by AngloGold to Matlosana are recorded on the further terms and conditions set out therein.
|
1.3.9.11.0.4
|
4.
|
Deed of Donation entered into between AngloGold and the North West Tourism Board and the Provincial Government – North West Province: Tourism on 30 May 2018 in terms of which (inter alia) the donation of the Hotel School Properties are recorded on the further terms and conditions set out therein.
|
1.3.9.11.0.1
|
5.
|
Mandate Donation of entered into between AngloGold and 42 Burns Ave, Orkney Child Welfare 002-023 NPO on or about 31 July 2019 in terms of which (inter alia) the donation of the house located on Erf 118, Orkney) by AngloGold are recorded on the further terms and conditions set out therein.
|
1.3.9.11.0.6
|
Ariston Contracts
|
||
6.
|
Agreement entered into between the Town Council of Orkney and AngloGold (then named Vaal Reefs Exploration and Mining Company Limited) on 26 January 1988 in terms of which (inter alia) AngloGold agrees to assist Town Council of Orkney with the supply of water (installation of pipes) on the further terms and conditions set out therein.
|
1.3.9.13.0.1
|
7.
|
Memorandum of Agreement entered into between AngloGold (then named Vaal Reefs Exploration and Mining Company Limited), Daniel Jacobus Hanekon, Carel Lodewyk Pieterse and Willem Jacobus Bouwer in or about June 1975 in terms of which (inter alia) AngloGold agreed to supply potable water to various plot holders in the Ariston area on the further terms and conditions set out therein.
|
1.3.9.13.0.3
|
8.
|
Agreement entered into between AngloGold and the City Council Klerksdorp on 19 June 2003 for (inter alia) the supply of water (installation of pipes) to the area known as the "Ariston Plots" on the further terms and conditions set out therein.
|
1.3.9.13.0.6
|
Ellaton Dump
|
||
9.
|
Sale of Tailings Dump Agreement entered into between Shiva Uranium Proprietary Limited and AngloGold Ashanti Limited on 27 February 2013 in terms of which (inter alia) Shiva Uranium Proprietary Limited sold the Ellaton Tailings Dump to AngloGold on the further terms and conditions set out therein.
|
1.3.10.1.2.0.8
|
Kopanang Sale Agreement
|
||
10.
|
Sale Agreement entered into between AngloGold and VMR, previously named K2017449111 (Pty) Ltd, on or about 18 October 2017 in terms of which (inter alia) Kopanang Gold Plant and other Sale Assets were sold to VMR on the further terms and conditions set out therein ("Kopanang Sale Agreement").
|
1.3.12.4.2.0.19
|
11.
|
First Addendum to the Kopanang Sale Agreement between AngloGold and VMR on or about 23 February 2018.
|
1.3.12.4.2.0.20
|
12.
|
Second Addendum to the Kopanang Sale Agreement between AngloGold and VMR on or about 28 February 2018.
|
3.12.4.2.0.21
|
13.
|
Rock Dump Sale Agreement entered into between AngloGold and Village Main Reef (Pty) Ltd ("VMR Co") in terms of which (inter alia) VMR Co sold certain rock dumps to AngloGold on the further terms and conditions set out therein.
|
1.3.12.4.2.0.3
|
14.
|
Mispah Tailings Agreement between AngloGold, VMR, Coreland Property Investment Company Proprietary Limited and Harmony Gold Mining Company Limited on 18 October 2017 for (inter alia) sale and purchase of the Mispah Tailings Facility 7 on the further terms and conditions set out therein.
|
1.3.12.4.2.0.13
|
VR Laboratories Sale to SGS
|
||
15.
|
Sale Agreement entered into between AngloGold and SGS South Africa (Pty) Ltd on 31 October 2018 for (inter alia) the sale and purchase of Vaal River Laboratories on the further terms and conditions set out therein.
|
1.3.12.4.4.0.1
|
Rail Network Sale to Traxtion
|
||
16.
|
Sale Agreement entered into between AngloGold and Traxtion Sheltam Proprietary Limited on 27 November 2018 for (inter alia) the sale and purchase of the Rail Network as well as related movable assets and property (defined in this agreement) on the further terms and conditions set out therein.
|
1.3.12.4.5.0.1
|
CAPM
|
||
17.
|
Potable Water Supply Agreement between AngloGold and CAPM African Precious Metals Proprietary Limited (“CAPM”) on 1 March 2018 in terms of which AngloGold would supply water to CAPM employees on the further terms and conditions set out therein.
|
1.3.12.4.7.0.4
|
Finance
|
||
18.
|
Loan Recordal Agreement entered into between AngloGold and Chemwes on 25 April 2014 in terms of which (inter alia) AngloGold loaned and advanced to Chemwes on the further terms and conditions set out therein.
|
1.3.12.6.0.1
|
Home Ownership Scheme
|
||
19.
|
Memorandum of understanding entered into between AngloGold and the National Union of Mineworkers, Association of Mineworkers Union, UASA and Solidarity on 5 November 2014 whereby AngloGold makes available for sale stands and houses in Matlosana and Merafong Municipalities to employees.
|
1.3.9.9.0.2
|
Annexure K
|
Lease Agreements (WW)
|
Annexure L
|
Lease Agreements (VR)
|
Annexure M
|
MOD (WW)
|
Annexure N
|
MOD (VR)
|
Annexure O
|
Transferring Employees (WW)
|
Annexure P
|
Transferring Employees (VR)
|
Annexure Q
|
Immoveable Properties (WW)
|
Annexure R
|
Immoveable Properties (VR)
|
Annexure S
|
Servitudes (WW)
|
Annexure T
|
Servitudes (VR)
|
Annexure U
|
Sale Liabilities (WW)
|
1.
|
All obligations and liabilities, other than the Environmental Obligations (WW), in respect of, relating to or arising from the Sale Assets (WW) and whether contingent, existing or arising and whether arising before or after the Closing Date.
|
2.
|
All health and safety obligations and liabilities (but excluding any liability for which AngloGold is liable under the Silicosis Class Action Settlement Agreement) in respect of, relating to or arising from the Sale Assets (WW) and whether contingent, existing or arising and whether arising before or after the Closing Date.
|
3.
|
All employee obligations and liabilities relating to the Transferring Employees (WW), which obligations and liabilities shall include (without limitation):
|
3.1.
|
any benefit, contribution or payment made on behalf of or to any Transferring Employee (WW) who becomes entitled to receive such benefit, contribution or payment in respect of any post-retirement medical aid benefit or in respect of a Post-Retirement Medical Aid Promise (WW) or any liability of CAWMS (excluding all liabilities and obligations arising from, or relating to. the CAWMS Liability, which constitutes an Excluded Liability), after the Closing Date, which includes (but is not limited to) the Post-Retirement Medical Aid Promise (WW) amounts reflected in the schedule contemplated in clause 13.3.3 of the Agreement;
|
3.2.
|
any Claim, award, contribution, payment liabilities, expenses (including, but not limited to, legal costs), compensation, fines, actions and demands made on behalf of or by any Transferring Employee (WW) in relation to any Occupational Lung Disease (as defined in section 1 of the Occupational Diseases in Mines Works Act 78 of 1073) and of the diseases listed in section A2 and A3 of schedule 3 to the Compensation for Occupational Injuries and Diseases Act 130 of 1993, other than for any liability that AngloGold has undertaken to be liable for under the Silicosis Class Action Settlement Agreement (which constitutes an Excluded Liability);
|
3.3.
|
unpaid salary, pension, medical benefits, long service awards and any other applicable employee benefits not paid, pertaining to the Transferring Employees (WW) contemplated in clause 13.3.4,
|
4.
|
All contractual obligations and liabilities in respect of, relating to or arising from the Contracts (WW) and whether contingent, existing or arising and whether arising before or after the Closing Date.
|
5.
|
All obligations and liabilities for assessment rates for Immoveable Properties (WW) and Infrastructure (WW) whether contingent, existing or arising and whether arising before or after the Closing Date.
|
6.
|
All obligations and liabilities for industry charges (including without limitation refining charges, Mineral Council subscriptions, Ubank cash and recruitment services, SIMRAC levies, software licence fees, CPU Charges, GSMI, ODMWA levies), charged directly to or allocated to the Sale Assets (WW) whether contingent, existing or arising and whether arising before or after the Closing Date
|
Annexure V
|
Sale Liabilities (VR)
|
1.
|
All obligations and liabilities, other than the Environmental Obligations (VR), in respect of, relating to or arising from the Sale Assets (VR) and whether contingent, existing or arising and whether arising before or after the Closing Date.
|
2.
|
All health and safety obligations and liabilities (but excluding any liability for which AngloGold is liable under the Silicosis Class Action Settlement Agreement) in respect of, relating to or arising from the Sale Assets (VR) and whether contingent, existing or arising and whether arising before or after the Closing Date.
|
3.
|
All employee obligations and liabilities relating to the Transferring Employees (VR), which obligations and liabilities, shall include (without limitation)
|
3.1.
|
any benefit, contribution or payment made on behalf of or to any Transferring Employee (VR) who becomes entitled to receive such benefit, contribution or payment in respect of any post-retirement medical aid benefit or in respect of a Post-Retirement Medical Aid Promise (VR) or any liability of CAWMS (excluding all liabilities and obligations arising from, or relating to. the CAWMS Liability, which constitutes an Excluded Liability), the Closing Date, which includes (but is not limited to) the Post-Retirement Medical Aid Promise (VR) amounts reflected in the schedule contemplated in clause 31.3.8 of the Agreement;
|
3.2.
|
any Claim, award, contribution, payment, liabilities, expenses (including, but not limited to, legal costs), compensation, fines, actions and demands made on behalf of or by any Transferring Employee (VR) in relation to any Occupational Lung Disease (as defined in section 1 of the Occupational Diseases in Mines Works Act 78 of 1073) and of the diseases listed in section A2 and A3 of schedule 3 to the Compensation for Occupational Injuries and Diseases Act 130 of 1993, other than for any liability that AngloGold has undertaken to be liable for under the Silicosis Class Action Settlement Agreement (which constitutes an Excluded Liability);
|
3.3.
|
unpaid salary, pension, medical benefits, long service awards and any other applicable employee benefits not paid), pertaining to the Transferring Employees (VR) contemplated in clause 31.3.4,
|
4.
|
All contractual obligations and liabilities in respect of, relating to or arising from the Contracts (VR) and whether contingent, existing or arising and whether arising before or after the Closing Date.
|
5.
|
All obligations and liabilities for assessment rates for Immoveable Properties (VR) and Infrastructure (VR) whether contingent, existing or arising and whether arising before or after the Closing Date.
|
6.
|
All obligations and liabilities for industry charges (including without limitation refining charges, Mineral Council subscriptions, Ubank cash and recruitment services, SIMRAC levies, software licence fees, CPU Charges, GSMI, ODMWA levies), charged directly to or allocated to the Sale Assets (VR) whether contingent, existing or arising and whether arising before or after the Closing Date.
|
Annexure W
|
WW Region Plan
|
Annexure X
|
VR Region Plan
|
Annexure Y
|
Surface Right Permits (WW)
|
Item No.
|
Old Permit No.
|
New Permit No.
|
R.M.T.No.
|
Description
|
1.
|
C.7/61
|
3352/2005
|
478
|
A 3'6" electric mine railway on Driefontein 113 IQ, district Oberholzer
|
2.
|
C.42/62
|
3454/2005
|
658
|
A waste rock dump with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
3.
|
C.8/63
|
3350/2005
|
659
|
Compound with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
4.
|
C.13/63
|
3344/2005
|
680
|
1. Reservoir with fencing 2. 10' wide strip of land for water pipe lines on Blyvooruitzicht 116 IQ, district Oberholzer
|
5.
|
C.18/63
|
3361/2005
|
683
|
One inch water pipeline on Blyvooruitzicht 116 IQ and Elandsfontein 115 IQ, district Oberholzer
|
6.
|
C.22/63
|
3343/2005
|
686
|
A water pipe line on Blyvooruitzicht 116 IQ, district Oberholzer
|
7.
|
C.24/63
|
3357/2005
|
697 with C23/63
|
Underground electric cables on Blyvooruitzicht 116 IQ, district Oberholzer
|
8.
|
C.23/63
|
3357/2005
|
697
|
Underground electric cables and switch house on Blyvooruitzicht 116 IQ, district Oberholzer
|
9.
|
C.27/63
|
3358/2005
|
700 with 28/63
|
A strip of ground 40’ wide for mine road, overhead electric power lines, underground electric cables, water pipe lines , telephone lines, sewage pipe lines and storm water drains with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
10.
|
C.28/63
|
3358/2005
|
700
|
A strip of land 40' wide for access road, water pipe lines , sewage Pipe lines , telephone lines, stormwater drain with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
11.
|
C.31/63
|
3353/2005
|
696
|
Extension to residential quarters with fencing on Blyvooruitzicht 116 IQ and Elandsfontein 115 IQ, districts Oberholzer and Potchefstroom
|
12.
|
C.36/63
|
3348/2005
|
713
|
Water pipe line on the farm Blyvooruitzicht No. 116 IQ, district Oberholzer
|
13.
|
C.37/63
|
3348/2005
|
711
|
Electric sub-station with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
14.
|
C.6/64
|
3356/2005
|
730
|
Electric sub-station with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
15.
|
C.7/64
|
3346/2005
|
666
|
1. Mine Railway Line. 2. Marshalling yard. 3. Strip of ground fifty feet wide for private mine access road, telephone and communication lines, overhead electric power lines, underground electric cables, water pipe lines , sewage pipe lines and other line services incidental to mining operations, with fencing. 4. Strips of ground 40 feet wide, for private mine access roads, telephone and communication lines, overhead electric power lines, underground electric cables, water pipe lines, sewage pipe lines and other line services incidental to mining operations, with fencing on Blyvooruitzicht 116 IQ and Driefontein 113 IQ, district Oberholzer
|
16.
|
C.9/64
|
3345/2005
|
654
|
Reduction plant with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
17.
|
C.10/64
|
3360/2005
|
655
|
Residential quarters with fencing and recreational facilities with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
18.
|
C.14/64
|
3359/2005
|
734
|
Main administrative offices and gardens with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
19.
|
C.15/64
|
3351/2005
|
653
|
Slimes dam with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
20.
|
C.17/64
|
3355/2005
|
689
|
Storm water drain (10' wide) with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
21.
|
C.40/64
|
3347/2005
|
737
|
An area for shafts and shaft equipment with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
22.
|
C.42/64
|
2104/2005
|
660
|
1. Waste rock dump with fencing. 2. Disposal works with fencing. 3. Salvage yard with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
23.
|
C.43/64
|
2105/2005
|
747
|
Strip of ground 10 feet wide for canalisation of water with fencing, 10 inch water pipeline and area for dam and pump house with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
24.
|
C.44/64
|
1997/2005
|
736
|
Area for workshops and stores with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
25.
|
C.41/64
|
2480/2005
|
717
|
1. Married quarters with fencing. 2. Compound with fencing. 3. Hospital with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
26.
|
C.54/64
|
1998/2005
|
681
|
Sewage pipe line on Blyvooruitzicht 116 IQ, district Oberholzer
|
27.
|
C.57/64
|
2102/2005
|
761
|
Areas for shafts and shaft equipment with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
28.
|
C.58/64
|
2293/2005
|
677
|
Training centre with fencing Blyvooruitzicht 116 IQ, district Oberholzer
|
29.
|
C.2/65
|
2111/2005
|
762
|
Extensions to residential quarters with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
30.
|
C.17/65
|
2112/2005
|
793
|
Mine roads on Blyvooruitzicht 116 IQ, district Oberholzer
|
31.
|
C.20/65
|
2200/2005
|
735
|
Post Office with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
32.
|
C.22/65
|
2100/2005
|
816
|
Sewer pipe line on Blyvooruitzicht 116 IQ, district Oberholzer
|
33.
|
C.23/65
|
1999/2005
|
817
|
Water pipe lines on Blyvooruitzicht 116 IQ, district Oberholzer
|
34.
|
C.36/65
|
2107/2005
|
815
|
Core sheds, offices and garages with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
35.
|
C.37/65
|
2108/2005
|
814
|
Stormwater drain with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
36.
|
C.48/65
|
2109/2005
|
822
|
Residue pipe line on Blyvooruitzicht 116 IQ, district Oberholzer
|
37.
|
C.19/66
|
2110/2005
|
763
|
1. Water pipe lines 2. Underground cables, sewer-air-water and residue pipe lines with fencing 3. Reservoir with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
38.
|
C.31/66
|
2106/2005
|
811
|
Extension to compound with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
39.
|
C.16/67
|
2113/2005
|
871
|
1. Slimes dam with fencing 2. Evaporation dam with fencing 3. Strip of ground for drains with fencing and 4. 24" diameter water pipe line on Blyvooruitzicht 116 IQ, district Oberholzer
|
40.
|
C.21/67
|
2103/2005
|
883
|
Agriculture with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
41.
|
C.31/67
|
2126/2005
|
901
|
1. Diversion weir 2. 24" water pipe line on Blyvooruitzicht 116 IQ, district Oberholzer
|
42.
|
104/68
|
2125/2005
|
922
|
Timber yard with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
43.
|
125/68
|
2123/2005
|
032/68
|
Extension to area for dam with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
44.
|
130/68
|
2127/2005
|
011/68
|
Sportsfield with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
45.
|
161/68
|
2124/2005
|
095/68
|
Water storage dams with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
46.
|
166/68
|
2120/2005
|
921
|
Extension to hospital with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
47.
|
182/68
|
2114/2005
|
065/68
|
Water pipe lines, reservoirs, pump house, pressure release tanks on Blyvooruitzicht 116 IQ, district Oberholzer
|
48.
|
47/69
|
2294/2005
|
0121/68
|
Railway tracks, bridge and a concrete drain on Blyvooruitzicht 116 IQ, district Oberholzer
|
49.
|
38/72
|
2115/2005
|
0.183/71
|
Underground electric cable, overhead powerlines and area for radio mast with fencing on Oog van Elandsfontein 114 IQ, and Blyvooruitzicht 116 IQ, district Oberholzer
|
50.
|
97/72
|
2116/2005
|
0.200/71
|
Area for training centre and married quarters for senior male employees on Blyvooruitzicht 116 IQ, district Oberholzer
|
51.
|
32/73
|
2117/2005
|
0.65/70
|
1. Underground electric cable and slimes pipe lines 2. Overhead electric powerline an Blyvooruitzicht 116 IQ, district Oberholzer
|
52.
|
51/73
|
2132/2005
|
0.186/72
|
Extension to residential quarters with fencing Blyvooruitzicht 116 IQ, district Oberholzer and Elandsfontein 115 IQ, district Potchefstroom
|
53.
|
75/74
|
2131/2005
|
0.29/74
|
1. Extensions to shaft equipment with fencing 2. Access road on Blyvooruitzicht 116 IQ, district Oberholzer
|
54.
|
153/74
|
2130/2005
|
0.224/74
|
Uranium plant with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
55.
|
13/75
|
2118/2005
|
0.195/74
|
Recreation with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
56.
|
14/75
|
2119/2005
|
0.110/74
|
Extension to slimes dam with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
57.
|
41/75
|
2129/2005
|
0.28/75
|
Residential quarters with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
58.
|
92/75
|
2122/2005
|
0.119/75
|
Store yard with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
59.
|
179/75
|
2121/2005
|
0.240/75
|
Extension to core sheds with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
60.
|
183/75
|
2128/2005
|
0.241/75
|
Extension to residential quarters with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
61.
|
200/75
|
3492/2005
|
0.286/75
|
Extension to hostel with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
62.
|
145/76
|
3493/2005
|
0.183/75
|
Extension to hostel with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
63.
|
28/77
|
3494/2005
|
0.100/76
|
Mine security police barracks with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
64.
|
202/77
|
3491/2005
|
0.215/77
|
1. Store yards with fencing 2. Access road on Blyvooruitzicht 116 IQ, district Oberholzer
|
65.
|
238/78
|
3495/2005
|
0.170/78
|
Mine road on Elandsfontein 115 IQ, district Potchefstroom
|
66.
|
10/79
|
3496/2005
|
0.465/77
|
Sewer pipe lines on Blyvooruitzicht 116 IQ, district Oberholzer
|
67.
|
80/79
|
3498/2005
|
0.162/78
|
Mine roads with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
68.
|
110/79
|
3497/2005
|
0.440/77
|
1. Sportsfield for employees with fencing 2. Mine roads 3. Underground electric cables 4. Stormwater drains and sewer pipe with fencing 5. Mine road 6. Underground electric cables 7. Sewer pipe line on Blyvooruitzicht 116 IQ
|
69.
|
11/80
|
3490/2005
|
0.109/79
|
Mine roads with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
70.
|
54/80
|
3489/2005
|
0.64/79
|
Extension to hospital with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
71.
|
133/80
|
3505/2005
|
0.104/80
|
Uranium plant with fencing and extension to slimes dam on Blyvooruitzicht 116 IQ, district Oberholzer
|
72.
|
189/80
|
3500/2005
|
0.296/78
|
Fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
73.
|
36/81
|
2466/2005
|
0.13/81
|
Transit reception centre for male employees with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
74.
|
124/81
|
2467/2005
|
0.127/81
|
Residential quarters and Amenities incidental thereto with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
75.
|
141/81
|
2468/2005
|
0.26/81
|
Recreation ground for employees with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
76.
|
164/81
|
2469/2005
|
0.183/81
|
General offices with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
77.
|
46/82
|
2470/2005
|
0.188/81
|
Shaft equipment with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
78.
|
66/82
|
2471/2005
|
0.45/82
|
Access road and off-loading bay with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
79.
|
101/82
|
|
0.102/82
|
Extension to residential quarters for employees with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
80.
|
6/83
|
2473/2005
|
0.127/82
|
Extension to mine security and police barracks and incidental amenities with fencing, shaft equipment with fencing, buried sewer pipe line, access road and access road with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
81.
|
7/83
|
2474/2005
|
0.163/81
|
Extension to uranium plant with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
82.
|
10/83
|
2475/5002
|
0.131/82
|
Extension to residential quarters for employees with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
83.
|
123/86
|
2476/2005
|
0.116/86
|
Explosives magazines with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
84.
|
31/87
|
2477/2005
|
0.135/86
|
Security barracks for employees with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
85.
|
78/88
|
2478/2005
|
0.145/88
|
Post office building with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
86.
|
30/89
|
2479/2005
|
0.212/88
|
Roads and filling station for mine vehicles, with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
87.
|
61/89
|
1913/2005
|
0.172/88
|
Extension to residential quarters for employees with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
88.
|
70/89
|
1920/2005
|
0.70/89
|
Sewage disposal works with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
89.
|
80/89
|
1911/2005
|
0.143/88
|
Administrative offices with fencing on Blyvooruitzicht 116 IQ and Elandsfontein 115 IQ, districts Oberholzer & Potchefstroom
|
90.
|
101/89
|
1905/2005
|
0.71/89
|
Slimes Pipe lines on Elandsfontein 115 IQ, district Potchefstroom
|
91.
|
135/89
|
1921/2005
|
0.95/89
|
Extension to area for shaft equipment with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
92.
|
136/89
|
1919/2005
|
0.94/89
|
Reduction works with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
93.
|
161/89
|
1909/2005
|
0132/89
|
Parking garages for mine vehicles, change houses and engagement centre, with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
94.
|
178/89
|
1908/2005
|
0.186/89
|
Stores and access road with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
95.
|
215/89
|
1904/2005
|
0.77/88
|
Transport depot with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
96.
|
244/89
|
1906/2005
|
0.97/89
|
Mine nursery with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
97.
|
371/89
|
1922/2005
|
0.132/88
|
Mine road and access road on Blyvooruitzicht 116 IQ, district Oberholzer
|
98.
|
455/89
|
1910/2005
|
0.169/89
|
Extension to area for security barracks for employees with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
99.
|
33/90
|
1912/2005
|
0.58/90
|
Overhead electric powerline with underground electric cable on Elandsfontein 115 IQ, district Potchefstroom
|
100.
|
34/90
|
1914/2005
|
0.59/90
|
Visiting centre for wives of mine employees with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
101.
|
88/90
|
1915/2005
|
0.98/90
|
Extension to residential quarters for employees with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
102.
|
90/90
|
1918/2005
|
0.99/90
|
Extension to residential quarters for employees with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
103.
|
219/90
|
1917/2005
|
0.198/90
|
Extension to shaft equipment area with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
104.
|
91/91
|
1916/2005
|
0.37/90
|
Mine road with fencing on Blyvooruitzicht 116 IQ, district Oberholzer
|
105.
|
121/93
|
1907/2005
|
0.123/92
|
Slimes dam with fencing on Doornfontein 118 IQ and Blyvooruitzicht 116 IQ, district Oberholzer
|
106.
|
211/89
|
|
0.141/89
|
Extension to residential quarters and incidental amenities, with fencing on Elandsfontein 115 IQ, district Potchefstroom
|
Annexure Z
|
Surface Right Permits (VR)
|
14.
|
C25-58
|
Uranium plant with fencing
|
Nooitgedacht 434 IP, district Klerksdorp
|
208/2006
|
390
|
15.
|
C1-59
|
Settling dams
|
Nooitgedacht 434 IP, district Klerksdorp
|
209/2006
|
375
|
16.
|
C22-59
|
Uranium plant effluent evaporation area
|
Witkop 438 IP and Vaalkop 439 IP, district Klerksdorp
|
134/2006
|
378
|
17.
|
C46-59
|
Extension to slimes dam with fencing
|
Modderfontein 440 IP, district Klerksdorp
|
183/2006
|
464
|
18.
|
C19-60
|
Water pipeline
|
Witkop 438 IP and Nooitgedacht 434 IP, district Klerksdorp
|
211/2006
|
444
|
19.
|
C32-60
|
Waste rock dump
|
Modderfontein 440 IP, district Klerksdorp
|
|
485
|
20.
|
C42-60
|
Compressed air pipelines and water pipeline
|
Modderfontein 440 and Vaalkop 439 IP, district Klerksdorp
|
|
490
|
28.
|
C90-61
|
1) Uranium plant effluent disposal drain, 2) Evaporation dam with fencing
|
Nooitgedacht 434 IP and Witkop 438 IP, district Klerksdorp
|
213/2006
|
380
|
29.
|
C92-61
|
Bantu married quarters with fencing
|
Nooitgedacht 434 IP, district Klerksdorp
|
214/2006
|
578
|
30.
|
C95-61
|
An underground electric power cable
|
Witkop 438 IP, district Klerksdorp
|
238/2006
|
376
|
31.
|
C13-62
|
Bantu mine hospital with fencing
|
Witkop 438 IP, district Klerksdorp
|
231/2006
|
498
|
32.
|
C19-62
|
Extension to Bantu married quarters with fencing
|
Vaalkop 439 IP, district Klerksdorp
|
|
595
|
33.
|
C20-62
|
A slimes pipe column
|
Vaalkop 439, Nooitgedacht 434, Witkop 438 and Modderfontein 440 IP, district Klerksdorp
|
180/2006
|
609
|
34.
|
C25-62
|
Extension to Bantu compound with fencing
|
Vaalkop 439 IP, district Klerksdorp
|
174/2006
|
621
|
42.
|
C62-65
|
1) Extension to waste rock dump 2) Extension to sewerage disposal works with fencing 3) Extension to shaft equipment with fencing
|
Vaalkop 439 IP, district Klerksdorp
|
139/2006
|
831
|
43.
|
C63-65
|
Timber storage yard with fencing
|
Goedgenoeg 433 and Nooitgedacht 434 IP, district Klerksdorp
|
194/2006
|
823
|
44.
|
C65-65
|
1) Mine railway line 2) Extension to reduction plant with fencing 3) Slimes pipe column 4) Sewer pipeline.
|
Vaalkop 439 IP, and Modderfontein 440 IP, district Klerksdorp
|
179/2006
|
832
|
45.
|
C24-66
|
Extension to waste rock dump and a mine road
|
Nooitgedacht 434 IP, district Klerksdorp
|
215/2006
|
843
|
46.
|
C37-67
|
Water catchment area with fencing 8" water pipeline
|
Modderfontein 440 IP, Vaalkop 439 IP district Klerksdorp
|
202/2006
|
910
|
47.
|
103-68
|
1) Waste rock dump, 2) Pipeline
|
Vaalkop 439 IP, Witkop 438 IP and Nooitgedacht 434 IP, district Klerksdorp
|
217/2006
|
917
|
48.
|
C18-67
|
Mine railways lines
|
Nooitgedacht 434 IP and Witkop 438 IP, district Klerksdorp
|
216/2006
|
861
|
49.
|
83-68
|
Aerodrome with fencing and 20' mine road situate
|
Goedgenoeg 433 IP and Witkop 438 IP, district Klerksdorp
|
Re-registered number not evident
|
729
|
50.
|
64-69
|
Compressed air column 5' wide
|
Nooitgedacht 434 IP and Witkop 438 IP, district Klerksdorp
|
218/2006
|
0.188/68
|
51.
|
111-69
|
Extension to bantu residential quarters with fencing
|
Vaalkop 439 IP, district Klerksdorp
|
135/2006
|
0.178/68
|
52.
|
133-69
|
Slimes dams, catchment dam and effluent drain
|
Modderfontein 440 IP, district Klerksdorp
|
195/2006
|
0.66/69
|
53.
|
153-69
|
Slimes and water pipelines
|
Modderfontein 440 IP, district Klerksdorp
|
171/2006
|
0.79/69
|
54.
|
65-70
|
1) Sewer pipeline and underground electric cable 2) Sewer pipeline, water pipeline and underground electric cable 3) Water pipeline 4) Road and water pipeline 5) Water pipeline
|
Nooitgedacht 434 IP, district Klerksdorp
|
241/2006
|
0.192/69
|
55.
|
139-71
|
Extension to waste rock dump area
|
Nooitgedacht 434 IP, district Klerksdorp
|
220/2006
|
0.212.71
|
63.
|
31-76
|
European recreation with fencing
|
Witkop 438 IP, district Klerksdorp
|
230/2006
|
0.68/76
|
64.
|
54-76
|
Extension to shaft equipment with fencing, compressed air and sludge pipelines
|
Vaalkop 439 IP and Witkop 438 IP
|
Re-registered number not evident
|
0.61/76
|
65.
|
114-76
|
Bantu cemetery with fencing
|
Nooitgedacht 434 IP, district Klerksdorp
|
225/2006
|
0.281/75
|
66.
|
118-76
|
Agriculture
|
Nooitgedacht 434 IP, district Klerksdorp
|
226/2006
|
0.282/75
|
67.
|
134-76
|
Underground electric cable
|
Witkop 438 IP, district Klerksdorp
|
186/2006
|
0.44/76
|
68.
|
210-76
|
Water pipelines and underground electric cables
|
Witkop 438 IP, district Klerksdorp
|
187/2006
|
0.377/76
|
69.
|
54-77
|
Mine road with fencing
|
Nooitgedacht 434 IP, district Klerksdorp
|
189/2006
|
0.176/71
|
77.
|
311-79
|
Compressed air pipeline
|
Modderfontein 440 IP, district Klerksdorp
|
Re-registered number not evident
|
0.23/79
|
78.
|
66-80
|
Overhead electric powerline and pump station
|
Nooitgedacht 434 IP and Witkop 438 IP, district Klerksdorp
|
245/2006
|
0.60/80
|
79.
|
121-80
|
Mine road
|
Nooitgedacht 434 IP, district Klerksdorp
|
244/2006
|
0.172/80
|
80.
|
115-80
|
Agriculture
|
Nooitgedacht 434 IP, district Klerksdorp
|
243/2006
|
0.52/79
|
81.
|
31-80
|
Slimes dam
|
Modderfontein 440 IP, district Klerksdorp
|
166/2006
|
0.12/80
|
82.
|
179-80
|
Extension to timber yard
|
Goedgenoeg 433 IP, district Klerksdorp
|
129/2006
|
0.275/80
|
83.
|
4-81
|
Surface sewer pipeline and buried sewer pipeline
|
Modderfontein 440 IP, district Klerksdorp
|
165/2006
|
0.335/80
|
84.
|
218-80
|
Pollution control dams with fencing
|
Modderfontein 440 IP, district Klerksdorp
|
164/2006
|
0.184/80
|
85.
|
20-81
|
Mine railway, road, compressed air and sewer pipelines
|
Modderfontein 440 IP, district Klerksdorp
|
Re-registered number not evident
|
0.268/80
|
86.
|
49-81
|
Compressed air and sewer pipelines, mine roads and railway line
|
Modderfontein 440 IP, district Klerksdorp
|
163/2006
|
0.33/81
|
87.
|
119-81
|
Game reserve with fencing
|
Vaalkop 439 IP and Witkop 438 IP, district Klerksdorp
|
177/2006
|
0.81/81
|
88.
|
129-81
|
Extension to waste rock dump, sewage disposal works and rifle range all with fencing
|
Modderfontein 440 IP, district Klerksdorp
|
162/2006
|
0.91/81A
|
89.
|
133-81
|
Surface compressed air pipeline and buried water pipeline
|
Modderfontein 440 IP, district Klerksdorp
|
[2070/2005]
|
0.9/81
|
90.
|
173-81
|
1) Extension to residential quarters for Blacks with fencing 2) Extension to shaft equipment area with fencing 3) Mine roads
|
Nooitgedacht 434 IP, district Klerksdorp
|
250/2006
|
0.284/80
|
91.
|
174-81
|
Drains, water, compressed air and sludge pipelines, underground electric cables and extension to slimes dam
|
Modderfontein 440 IP, district Klerksdorp
|
161/2006
|
0.136/81
|
92.
|
34-82
|
Visiting centre for wives of black mine employees with fencing
|
Witkop 438 IP, district Klerksdorp
|
229/2006
|
0.27/82
|
93.
|
74-82
|
Recreation grounds for blacks with fencing
|
Nooitgedacht 434 IP, district Klerksdorp
|
190/2006
|
0.75/82
|
94.
|
84-82
|
Water pipeline and drain
|
Modderfontein 440 IP, district Klerksdorp
|
160/2006
|
0.78/82
|
95.
|
2-83
|
Extension to waste rock dump with fencing
|
Witkop 438 IP, district Klerksdorp
|
228/2006
|
0.128/82
|
96.
|
9-84
|
Hostel for contractor's Black employees with fencing
|
Vaalkop 439 IP, district Klerksdorp
|
146/2006
|
0.112/83
|
97.
|
52-84
|
Geophone site with fencing
|
Doornkom Oost 447
|
Re-registered number not evident
|
0.65/84
|
98.
|
61-84
|
Gold recovery plant with fencing
|
Pretoriuskraal 53, district Viljoenskroon
|
424/2006
|
0.50/84
|
99.
|
35-85
|
1) Extension to shaft equipment with fencing 2) Extension to waste rock dump
|
Vaalkop 439 IP, district Klerksdorp
|
147/2006
|
0.8/85
|
100.
|
41-85
|
Extensions to shaft equipment areas and store yard with fencing, water compressed air and sludge pipelines, railway and overhead telephone lines, bridge, roads and buried electric cables
|
Vaalkop 439 IP, district Klerksdorp
|
Re-registered number not evident
|
0.30/84
|
101.
|
6-86
|
Timber-storage yard with fencing
|
Vaalkop 439 IP, district Klerksdorp
|
149/2006
|
0.197/85
|
102.
|
75-86
|
1) Extension to residue dam 2) Extension to recreation grounds for blacks with fencing
|
Vaalkop 439 IP and Modderfontein 440 IP, district Klerksdorp
|
Re-registered number not evident
|
0.115/85
|
103.
|
79-86
|
Rifle range with fencing
|
Nooitgedacht 434 IP, district Klerksdorp
|
192/2006
|
0.141.85
|
104.
|
115-86
|
1) Mine security administration 2) Regional head offices with fencing
|
Vaalkop 439 IP, district Klerksdorp
|
150/2006
|
0.151/85
|
105.
|
9-87
|
Industrial Stand No. 1/86 for explosives factory and purposes incidental thereto
|
Modderfontein 440 IP, district Klerksdorp
|
205/2006
|
S.13/85
|
106.
|
106-87
|
Slimes dam with fencing
|
Witkop 438 IP, Vaalkop 439 IP and Nooitgedacht 434 IP, district Klerksdorp
|
188/2006
|
0.137/86
|
107.
|
77-88
|
Extension to rifle range with fencing
|
Nooitgedacht 434 IP, district Klerksdorp
|
191/2006
|
0.1/88
|
108.
|
109-89
|
Mine road, water pipelines, slimes pipe columns, underground electric cables and back-fill pacuka with fencing
|
Modderfontein 440 IP, district Klerksdorp
|
182/2006
|
0.61/89
|
109.
|
C25-57
|
Reduction plant with fencing
|
Modderfontein [45] and Vaalkop 439 IP, district Klerksdorp
|
Re-registered number not evident
|
335
|
Annexure AA
|
WW Mining Business Purchase Price
|
Annexure BB
|
VR Remaining Business Purchase Price
|
Annexure CC
|
Template Share Transfer Form
|
Annexure DD
|
Template Director Resignation Letter
|
1.
|
the Closing Date (as defined in the agreement entered into between AngloGold Ashanti Limited, Harmony Gold Mining Company Limited, Harmony Moab Khotsong Operations Proprietary Limited and Golden Core Trade and Invest Proprietary Limited on or about []); and
|
2.
|
the appointment of any one of [], [] or [] to the board of directors of the Company.
|
Annexure EE
|
Template trustee resignation letter
|
Annexure FF
|
Template Board of Directors Resolution
|
1.
|
AngloGold Ashanti Limited (Registration No. 1944/017354/06) ("AngloGold") and [] (the "Purchaser") have entered into an agreement in terms of which, inter alia, AngloGold has agreed to: (i) sell and transfer 100% (one hundred percent) of the issued shares of the Company (the "Sale Shares")[; and (b) sell, cede and transfer 100% (one hundred percent) of its claims on loan account against the Company (the "Sale Claims"),] to the Purchaser, on the terms and conditions contained therein (the "Agreement).
|
2.
|
[], [] and [] shall resign as directors of the Company with effect from the later of: (a) the Closing Date (as defined in the Agreement); and (b) any one of [], [] or [] being appointed as a director of the Company.
|
3.
|
The Company notes the appointment of [], [] and [] as directors of the Company by the sole shareholder of the Company, with effect from the Closing Date (as defined in the Agreement). In this regard, the board of directors of the Company (the "Board") have received written letters of consent to serve as a director from each of [], [] and [], as well as a written resolution signed by the sole shareholder of the Company electing [], [] and [] for appointment as directors of the Company.
|
4.
|
An execution version of the Agreement has been circulated to the Board together with this round robin resolution and have been considered by the Board.
|
1.
|
RESOLUTION NUMBER 1 – SALE OF [] SALE EQUITY
|
(i)
|
The sale, registration and transfer by AngloGold of the Sale Shares [and the sale and cession of the Sale Claims] to the Purchaser pursuant to the terms and conditions of the Agreement be and is hereby unconditionally approved and noted;
|
(ii)
|
the Purchaser’s name be duly entered in the Company’s securities register as the registered owner of the Sale Shares pursuant to the sale and transfer of the Sale Shares to it in terms of the Agreement;
|
(iii)
|
the existing share certificate/s which reflect AngloGold as the registered owner of the Sale Shares be cancelled;
|
(iv)
|
a new share certificate be issued to the Purchaser in respect of the Sale Shares pursuant to the implementation of the Agreement; and
|
(v)
|
any two directors of the Company (acting together) or the company secretary be and are hereby authorised to sign the share certificate referred to in resolution 1(iv) above.
|
2.
|
RESOLUTION NUMBER 2 – RESIGNATION OF [] AS DIRECTOR OF THE COMPANY
|
3.
|
RESOLUTION NUMBER 3 – RESIGNATION OF [] AS DIRECTOR OF THE COMPANY
|
4.
|
RESOLUTION NUMBER 4 – APPOINTMENT OF [] AS DIRECTOR OF THE COMPANY
|
5.
|
RESOLUTION NUMBER 5 – APPOINTMENT OF [] AS DIRECTOR OF THE COMPANY
|
6.
|
RESOLUTION NUMBER 6 – APPOINTMENT OF [] AS DIRECTOR OF THE COMPANY
|
7.
|
RESOLUTION NUMBER 7 – GENERAL AUTHORISATION AND RATIFICATION
|
(i)
|
any 1 (one) director of the Company be and is hereby directed, authorised and empowered for and on behalf of the Company to sign and to do all such things and take all such things and take all such actions as may be necessary and/or required to give effect to and implement the resolutions above (including, but not limited to, any letters, addenda, documents, resolutions and company secretarial forms); and
|
(ii)
|
to the extent that anything referred to in the resolutions above has been done prior to the date of this resolution then the relevant such action (and the relevant director’s conduct in this regard) is hereby unconditionally and irrevocably ratified and approved.
|
Director
Name: []
Date: []
|
|
|
Director
Name: []
Date: []
|
|
|
Annexure GG
|
Template Shareholder Resolution
|
1.
|
ORDINARY RESOLUTION 1
|
2.
|
ORDINARY RESOLUTION 2
|
3.
|
ORDINARY RESOLUTION 3
|
4.
|
ORDINARY RESOLUTION 4
|
Annexure HH
|
Template Trustee Resolution
|
1.
|
[], [] and [] wish to resign as trustees of the Trust with effect from the date on which the new letters of authority in respect of the Trust are to be issued in accordance with the agreement entered into between AngloGold Ashanti Limited, Harmony Gold Mining Company Limited, Harmony Moab Khotsong Operations Proprietary Limited and Golden Core Trade and Invest Proprietary Limted on or about [] (the "Agreement").
|
2.
|
The Trust wishes to appoint [] and [] as trustees of the Trust with effect from the Closing Date (as defined in the Agreement).
|
3.
|
RESOLUTION NUMBER 1 – RESIGNATION OF [] AS TRUSTEE OF THE TRUST
|
4.
|
RESOLUTION NUMBER 2 – RESIGNATION OF [] AS TRUSTEE OF THE TRUST
|
5.
|
RESOLUTION NUMBER 3 – APPOINTMENT OF [] AS TRUSTEE OF THE TRUST
|
6.
|
RESOLUTION NUMBER 4 – APPOINTMENT OF [] AS TRUSTEE OF THE TRUST
|
7.
|
RESOLUTION NUMBER 5 – GENERAL AUTHORISATION AND RATIFICATION
|
(i)
|
any 1 (one) trustee of the Trust be and is hereby directed, authorised and empowered for and on behalf of the Trust to sign and to do all such things and take all such things and take all such actions as may be necessary and/or required to give effect to and implement the resolutions above (including, but not limited to, any letters, addenda, documents, resolutions and company secretarial forms); and
|
(i)
|
to the extent that anything referred to in the resolutions above has been done prior to the date of this resolution then the relevant such action (and the relevant trustee's conduct in this regard) is hereby unconditionally and irrevocably ratified and approved.
|
Trustee
Name: []
Date: []
|
|
|
|
|
|
|
|
|
Trustee
Name: []
Date: []
|
|
|
Trustee
Name: []
Date: []
|
|
|
Annexure II
|
Remaining Employees (VR)
|
Annexure JJ
|
Remaining Employees (WW)
|
Annexure KK
|
Index of Data Room Document
|
2
|
DEFINITIONS AND INTERPRETATION 2
|
36
|
THE FACILITY 36
|
PURPOSE 36
|
CONDITIONS OF UTILISATION 37
|
38
|
UTILISATION 38
|
40
|
REPAYMENT 40
|
PREPAYMENT AND CANCELLATION 44
|
50
|
INTEREST 50
|
INTEREST PERIODS 51
|
CHANGES TO THE CALCULATION OF INTEREST 52
|
FEES 53
|
54
|
TAX GROSS UP AND INDEMNITIES 54
|
INCREASED COSTS 57
|
OTHER INDEMNITIES 59
|
MITIGATION BY THE LENDERS 61
|
COSTS AND EXPENSES 61
|
63
|
GUARANTEE AND INDEMNITY 63
|
67
|
REPRESENTATIONS 67
|
INFORMATION UNDERTAKINGS 73
|
FINANCIAL COVENANTS 79
|
GENERAL UNDERTAKINGS 80
|
APPLICATION OF SANCTIONS PROVISIONS TO THE LENDERS 87
|
ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS 88
|
EVENTS OF DEFAULT 89
|
95
|
CHANGES TO THE LENDERS 95
|
CHANGES TO THE OBLIGORS 98
|
100
|
ROLE OF THE FACILITY AGENT, THE GLOBAL COORDINATORS AND BOOKRUNNERS 100
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES 106
|
SHARING AMONG THE FINANCE PARTIES 106
|
109
|
PAYMENT MECHANICS 109
|
SET OFF 112
|
NOTICES 113
|
CALCULATIONS AND CERTIFICATES 122
|
PARTIAL INVALIDITY 122
|
REMEDIES AND WAIVERS 123
|
AMENDMENTS AND WAIVERS 123
|
CONFIDENTIALITY 128
|
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS 131
|
RENUNCIATION OF BENEFITS 132
|
COUNTERPARTS 133
|
WAIVER OF IMMUNITY 133
|
SOLE AGREEMENT 133
|
NO IMPLIED TERMS 133
|
EXTENSIONS AND WAIVERS 133
|
INDEPENDENT ADVICE 133
|
134
|
GOVERNING LAW 134
|
JURISDICTION 134
|
SERVICE OF PROCESS 134
|
135
|
135
|
136
|
137
|
137
|
141
|
143
|
144
|
146
|
147
|
148
|
149
|
149
|
150
|
152
|
153
|
154
|
155
|
159
|
160
|
160
|
160
|
161
|
161
|
(1)
|
Harmony Gold Mining Company Limited (the Borrower);
|
(2)
|
The Subsidiaries of the Borrower listed in Part I of Schedule 1 as original guarantors (the Original Guarantors);
|
(3)
|
Absa Bank Limited (acting through its Corporate and Investment Banking division) and Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) as global coordinators (whether acting individually or together, the Global Coordinators);
|
(4)
|
Absa Bank Limited (acting through its Corporate and Investment Banking division) and Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) as bookrunners (whether acting individually or together, the Bookrunners);
|
(5)
|
Absa Bank Limited (acting through its Corporate and Investment Banking division) (as mandated lead arranger), Nedbank Limited (acting through its London branch) (as mandated lead arranger), FirstRand Bank Limited (London Branch) (as lead arranger), J.P. Morgan Securities plc (as lead arranger), Citibank N.A., South Africa Branch (as lead arranger), HSBC Bank plc – Johannesburg Branch (as lead arranger) and State Bank of India (acting through its Johannesburg branch) (as arranger);
|
(6)
|
The Financial Institutions listed in Part II of Schedule 1 as original lenders (the Original Lenders);
|
(7)
|
The Financial Institutions listed in Part II of Schedule 1 as hedge providers (the Original Hedge Providers); and
|
(8)
|
Absa Bank Limited (acting through its Corporate and Investment Banking division) as agent of the other Finance Parties (the Facility Agent).
|
(i)
|
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
1.1.1
|
2002 ISDA Master Agreement means the 2002 Master Agreement as published by the International Swaps and Derivatives Association, Inc.
|
1.1.2
|
Acceptable Bank means:
|
1.1.2.1
|
any of the Lenders;
|
1.1.2.2
|
Bank of South Pacific Limited, Australia and New Zealand Banking Group Limited, Westpac Banking Corporation, Westpac Bank PNG Ltd, The Standard Bank of South Africa Limited, FirstRand Bank Limited and, Investec Bank Limited;
|
1.1.2.3
|
a bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of bbb- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or baa3 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or
|
1.1.2.4
|
any other bank or financial institution approved by the Facility Agent.
|
1.1.3
|
Accession Letter means a document substantially in the form set out Schedule 5 (Form of Accession Letter).
|
1.1.4
|
Additional Guarantor means a company which becomes an Additional Guarantor in accordance with Clause 26 (Changes to the Obligors).
|
1.1.5
|
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.
|
1.1.6
|
Agreement means this term and revolving credit facilities agreement, including its Schedules.
|
1.1.7
|
Alternative Institution has the meaning given to that term in Clause 6.3 (Extension Option).
|
1.1.8
|
Anti-Corruption Laws means all laws, rules and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
|
1.1.9
|
Applicable Margin means:
|
1.1.9.1
|
in respect of Facility A, 3,05% (three point zero five per cent), nacq; and
|
1.1.9.2
|
in respect of Facility B, 2,90% (two point nine zero per cent):
|
1.1.9.2.1
|
nacq (if the applicable Interest Period is 3 (three) Months);
|
1.1.9.2.2
|
nacs (if the applicable Interest Period is 6 (six) Months),
|
1.1.10
|
Auditors means one of PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche or any other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed).
|
1.1.11
|
AUSD means Australian Dollars, the lawful currency of Australia.
|
1.1.12
|
Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration.
|
1.1.13
|
Availability Period means:
|
1.1.13.1
|
in relation to Facility A, the period from and including Financial Close to and including the date which is the earlier of:
|
1.1.13.1.1
|
the date on which all of the Commitments are cancelled in terms of this Agreement; and
|
1.1.13.1.2
|
1 (one) Month after Financial Close; and
|
1.1.13.2
|
in relation to Facility B, the period from and including Financial Close to and including the date which is the earlier of:
|
1.1.13.2.1
|
the date on which all of the Commitments are cancelled in terms of this Agreement; and
|
1.1.13.2.2
|
1 (one) Month prior to the Final Repayment Date.
|
1.1.14
|
Available Commitment means, in relation to a Facility, a Lender's Commitment under that Facility minus:
|
1.1.14.1
|
the amount of its participation in any outstanding Loans under that Facility; and
|
1.1.14.2
|
in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,
|
1.1.15
|
Available Facility means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.
|
1.1.16
|
Basel II Accord means the International Convergence of Capital Measurement and Capital Standards, a Revised Framework published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement.
|
1.1.17
|
Basel II Approach means either the Standardised Approach or the relevant Internal Ratings Based Approach (each as defined in the Basel II Accord) adopted by that Finance Party (or any of its Affiliates) for the purposes of implementing or complying with the Basel II Accord.
|
1.1.18
|
Basel II Regulation means:
|
1.1.18.1
|
any applicable law implementing the Basel II Accord; or
|
1.1.18.2
|
any Basel II Approach;
|
1.1.19
|
Basel III means:
|
1.1.19.1
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in Basel III: A global regulatory framework for more resilient banks and banking systems, Basel III: International framework for liquidity risk measurement, standards and monitoring and Guidance for national authorities operating the countercyclical capital buffer published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
1.1.19.2
|
the rules for global systemically important banks contained in Global systemically important banks: assessment methodology and the additional loss absorbency requirement on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
1.1.19.3
|
any Basel III Regulation; and
|
1.1.19.4
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III.
|
1.1.20
|
Basel III Increased Cost means an Increased Cost which is attributable to the implementation or application of or compliance with or any change in (or in the interpretation, administration or application of or compliance with) Basel III (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates), including but not limited to the Capital Requirements Directive (CRD IV).
|
1.1.21
|
Basel III Regulation means any applicable law implementing Basel III save and to the extent that it re-enacts a Basel II Regulation.
|
1.1.22
|
BEE means broad-based black economic empowerment, as contemplated in the BEE Act;
|
1.1.23
|
BEE Act means the Broad-Based Black Economic Empowerment Act, 53 of 2003, as amended, together with any regulations promulgated thereunder, the Codes, and any relevant sector charter(s) or codes applicable to the business of the BEE Entity published in terms thereof, all as amended from time to time;
|
1.1.24
|
BEE Entity means a special purpose entity incorporated under the laws of South Africa and established in order to consummate a BEE transaction pursuant to which such entity may acquire up to 3% (three per cent) of the issued ordinary shares of Harmony Moab;
|
1.1.25
|
Breakage Costs means the amount (if any) by which:
|
1.1.25.1
|
the interest excluding the Applicable Margin which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
1.1.25.2
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
1.1.26
|
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Johannesburg, London and New York;
|
1.1.27
|
Buy-In Option means the right of Papua New Guinea exercisable at any time prior to the commencement of mining to make a single purchase of up to a 30% (thirty per cent) equitable interest in any mineral discovery arising from any or all of Exploration Licences No EL 440 and EL 1105 and Exploration Licence Application ELA 1927 at a price pro-rata to the accumulated exploration expenditure thereon.
|
1.1.28
|
Cash means, at any time, cash denominated in ZAR, USD, PNGK or AUSD in hand or in a bank account and (in the latter case) credited to an account in the name of a member of the Group with an Acceptable Bank and to which a member of the Group is alone (or together with other members of the Group) beneficially entitled and for so long as:
|
1.1.28.1
|
that cash is repayable within 90 (ninety) days after the relevant date of calculation;
|
1.1.28.2
|
repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;
|
1.1.28.3
|
there is no Security over that cash except for any Permitted Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements; and
|
1.1.28.4
|
the cash is freely and (except as mentioned in Clause 1.1.28.1 above) immediately available to be applied in repayment or prepayment of the Facility.
|
1.1.29
|
Cash Equivalent Investments means at any time:
|
1.1.29.1
|
certificates of deposit maturing within 1 (one) year after the relevant date of calculation, issued by an Acceptable Bank;
|
1.1.29.2
|
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investor Services Limited, (ii) which invest substantially all their assets in securities of the types described in Clause 1.1.29.1 above and (iii) can be turned into cash on not more than 90 (ninety) days' notice; or
|
1.1.29.3
|
any other debt security or investment approved by the Majority Lenders,
|
1.1.30
|
Code means the US Internal Revenue Code of 1986.
|
1.1.31
|
Codes means the Codes of Good Practice on Black Economic Empowerment gazetted on 9 February 2007 by the Department of Trade and Industry in terms of the BEE Act and the Codes of Good Practice on Black Economic Empowerment gazetted on 11 October 2013 by the Department of Trade and Industry in terms of the BEE Act, and in each case, any replacement or amended Codes of Good Practice;
|
1.1.32
|
Commitment means, in relation to each Lender, its Facility A Commitment or Facility B Commitment, as the case may be.
|
1.1.33
|
Companies Act means the Companies Act, 2008.
|
1.1.34
|
Compliance Certificate means a certificate substantially in the form set out in Schedule 7 (Form of Compliance Certificate).
|
1.1.35
|
Confidential Information means all information relating to the Borrower, any Obligor, the Group, the Joint Ventures, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:
|
1.1.35.1
|
any member of the Group or any of its advisers; or
|
1.1.35.2
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
1.1.35.3
|
information that:
|
1.1.35.3.1
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 37 (Confidentiality); or
|
1.1.35.3.2
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
1.1.35.3.3
|
is known by that Finance Party before the date the information is disclosed to it in accordance with Clauses 1.1.35.1 or 1.1.35.2 above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
|
1.1.35.4
|
any Funding Rate or Reference Bank Quotation.
|
1.1.36
|
Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Borrower and the Facility Agent.
|
1.1.37
|
Control means:
|
1.1.37.1
|
in relation to a company the shares of which are not listed on a stock exchange where another company or legal entity or person (whether alone or pursuant to an agreement with others):
|
1.1.37.1.1
|
holds or controls more than 50% (fifty per cent) of the voting rights (taking into account when such voting rights can be exercised) in that company; or
|
1.1.37.1.2
|
has the right to appoint or remove the majority of that company’s board of directors; or
|
1.1.37.1.3
|
has the power to ensure the majority of that company’s board of directors will act in accordance with its wishes; or
|
1.1.37.2
|
in relation to a company the shares of which are listed on a stock exchange:
|
1.1.37.2.1
|
the holding of shares or the aggregate of holdings of shares or other securities in a company entitling the holder thereof to exercise, or cause to be exercised 35% (thirty five per cent) or more of the voting rights at shareholder meetings of the company irrespective of whether such holding or holdings confers de facto control, provided that should there be other shareholders holding more than 35% (thirty five per cent), 35% (thirty five per cent) shall be read to refer to the largest percentage shareholding held at the time;
|
1.1.37.2.2
|
the holding or control by a shareholder or member alone or pursuant to an agreement with other shareholders or members of more than 35% (thirty five per cent) of the voting rights in the company irrespective of whether such holding or holdings confers de facto control, provided that should there be other shareholders holding more than 35% (thirty five per cent), 35% (thirty five per cent) shall be read to refer to the largest percentage shareholding held at the time;
|
1.1.38
|
Default means an Event of Default or any event or circumstance specified in Clause 21.19 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
|
1.1.39
|
Defaulting Lender means any Lender:
|
1.1.39.1
|
which has failed to make its participation in a Loan available (or has notified the Facility Agent or the Borrower (which has notified the Facility Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation);
|
1.1.39.2
|
which has otherwise rescinded or repudiated a Finance Document; or
|
1.1.39.3
|
in respect of which an insolvency event as contemplated in Clauses 24.6 and 24.7 has occurred and is continuing,
|
1.1.39.4
|
its failure to pay, is caused by:
|
1.1.39.4.1
|
administrative or technical error; or
|
1.1.39.4.2
|
a Disruption Event, and
|
1.1.39.5
|
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
1.1.40
|
Derivatives Transaction means a contract, agreement or transaction which is a rate swap, basis swap, forward rate transaction, bond option, interest rate option, cap, collar or floor, gold derivative, foreign exchange transaction or any other similar transaction and/or any combination of such transaction, in each case, whether on-exchange or otherwise, and which shall include the Gold Price Derivative Transactions concluded under the Hedging Documents.
|
1.1.41
|
Disruption Event means either or both of:
|
1.1.41.1
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
1.1.41.2
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
1.1.41.2.1
|
from performing its payment obligations under the Finance Documents; or
|
1.1.41.2.2
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
1.1.42
|
Distribution means any payment by way of interest, principal, dividend, fee, royalty or other distribution or payment by or on behalf of the Borrower to or for the account of any shareholder or member of the Borrower or any person that directly or indirectly controls or is controlled by any shareholder or member of the Borrower.
|
1.1.43
|
EBITDA means, in respect of any person, and any period, the consolidated operating profit before income tax for such period:
|
1.1.43.1
|
(to the extent not already excluded) before interest received or receivable and interest paid or payable;
|
1.1.43.2
|
(to the extent not already excluded) adjusted to exclude any gain or loss realised on the disposal of fixed assets (whether tangible or intangible);
|
1.1.43.3
|
(to the extent not already excluded) before deducting any extraordinary costs and before including extraordinary income’
|
1.1.43.4
|
after deducting operating lease expenses relating to lease or hire purchase contracts that would have been treated as an operating lease in accordance with GAAP in force prior to 1 January 2019;
|
1.1.43.5
|
dividends received in cash from companies consolidated by the equity accounted method to the extent not already taken into account; and
|
1.1.43.6
|
depreciation and amortisation of any property plant and equipment and Intangible Assets.
|
1.1.44
|
Environment means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:
|
1.1.44.1
|
air (including, without limitation, air within natural or man-made structures, whether above or below ground);
|
1.1.44.2
|
water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
|
1.1.44.3
|
land (including, without limitation, land under water).
|
1.1.45
|
Environmental Claim means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.
|
1.1.46
|
Environmental Law means any applicable law or regulation which relates to:
|
1.1.46.1
|
the pollution or protection of the Environment;
|
1.1.46.2
|
the conditions of the workplace; or
|
1.1.46.3
|
the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.
|
1.1.47
|
Environmental Permits means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group.
|
1.1.48
|
Equator Principles means the standards entitled "A financial industry benchmark for determining, assessing and managing environmental and social risk in projects" dated June 2013 and adopted by certain financial institutions, as the same may be amended or supplemented from time to time.
|
1.1.49
|
Eskom Guarantees means any guarantees or indemnities given by or on behalf of the Borrower or any member of the Group to Eskom Holdings SOC Limited in an aggregate amount not exceeding ZAR700 000 000 (seven hundred million Rand) at any time.
|
1.1.50
|
Event of Default means any event or circumstance specified as such in Clause 21.19 (Events of Default).
|
1.1.51
|
Existing USD Facilities Refinancing Date means the date of the first Utilisation under the Facilities, being the date upon which the Financial Indebtedness under the Existing USD Facility Agreement which is outstanding as at such first Utilisation Date is to be refinanced with the Loans borrowed under the Facilities;
|
1.1.52
|
Existing USD Facility Agreement means the written agreement entitled ‘Term and Revolving Credit Facilities Agreement of up to USD 350 000 000’ dated 22 July 2017, as amended and restated by an amendment and restatement agreement dated 8 November 2018.
|
1.1.53
|
Existing USD Facility Outstandings means the aggregate of all advances or deemed advances together with all interest and charges due thereon in accordance with the terms of the Existing USD Facility Agreement, which at any time and from time to time have not been prepaid or repaid irrevocably, unconditionally and in full.
|
1.1.54
|
Existing USD Finance Documents means the Finance Documents as defined in the Existing USD Facility Agreement;
|
1.1.55
|
Exploration Portfolio Joint Venture means the joint venture constituted by the joint venture agreement between Morobe Consolidated Goldfields Limited, Wafi Mining Limited, Morobe Exploration Limited, Newcrest PNG 3 Limited and Morobe Exploration Services Limited dated 22 May 2008.
|
1.1.56
|
Extended Repayment Date means the date falling 1 (one) year after the Initial Repayment Date.
|
1.1.57
|
Extending Replacement Lender has the meaning given to that term in Clause 6.3 (Extension Option).
|
1.1.58
|
Extension Acceptance Notice has the meaning given to that term in Clause 6.3 (Extension option).
|
1.1.59
|
Extending Lenders has the meaning given to that term in Clause 6.3 (Extension option).
|
1.1.60
|
Extension Request has the meaning given to that term in Clause 6.3 (Extension option).
|
1.1.61
|
Facility means Facility A or Facility B and Facilities means, both of them.
|
1.1.62
|
Facility A means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).
|
1.1.63
|
Facility A Commitment means:
|
1.1.63.1
|
in relation to an Original Lender, the amount set opposite its name under the heading Facility A Commitment in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility A Commitment transferred to it under this Agreement;
|
1.1.63.2
|
in relation to any other Lender, the amount of any Facility A Commitment transferred to it under this Agreement,
|
1.1.64
|
Facility A Loan means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.
|
1.1.65
|
Facility B means the revolving credit facility made available under this Agreement as described in Clause 2 (The Facility).
|
1.1.66
|
Facility B Commitment means:
|
1.1.66.1
|
in relation to an Original Lender, the amount set opposite its name under the heading Facility B Commitment in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility B Commitment transferred to it under this Agreement;
|
1.1.66.2
|
in relation to any other Lender, the amount of any Facility B Commitment transferred to it under this Agreement,
|
1.1.67
|
Facility B Loan means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.
|
1.1.68
|
Facility Office means:
|
1.1.68.1
|
in respect of a Lender the office or offices notified by that Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 5 (five) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; or
|
1.1.68.2
|
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
1.1.69
|
FATCA means
|
1.1.69.1
|
sections 1471 to 1474 of the Code or any associated regulations;
|
1.1.69.2
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in Clause 1.1.69.1 above; or
|
1.1.69.3
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in Clause 1.1.69.1 or 1.1.69.2 above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
1.1.70
|
FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.
|
1.1.71
|
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
|
1.1.72
|
Fee Letters means the written fee letters entered into or to be entered into from time to time between the Borrower, the Original Lenders and/or the Facility Agent relating to the fees payable in respect of the Facility as contemplated in Clause 11 (Fees) below, and Fee Letter means any one of them as the context requires.
|
1.1.73
|
Final Repayment Date means the Initial Repayment Date or, if extended in accordance with Clause 6.3 (Extension option), the Extended Repayment Date (as appropriate).
|
1.1.74
|
Finance Document means:
|
1.1.74.1
|
this Agreement;
|
1.1.74.2
|
the Flow of Funds Agreement;
|
1.1.74.3
|
each Security Document;
|
1.1.74.4
|
each Hedging Document (subject to the proviso set out below);
|
1.1.74.5
|
the Mandate Letter;
|
1.1.74.6
|
each Fee Letter;
|
1.1.74.7
|
the Extension Request;
|
1.1.74.8
|
any Accession Letter;
|
1.1.74.9
|
any Resignation Letter;
|
1.1.74.10
|
and any other agreement or document that may be designated as a Finance Document by written agreement between the Facility Agent and the Borrower; and
|
1.1.74.11
|
any amendment or restatement agreement to any Finance Document listed in Clauses 1.1.74.1 to 1.1.74.10 above,
|
1.1.74.12
|
the definition of Material Adverse Effect;
|
1.1.74.13
|
the definition of Secured Document;
|
1.1.74.14
|
the definition of Transaction Document;
|
1.1.74.15
|
Clause 1.2 (Construction);
|
1.1.74.16
|
Clause 14.2 (Other indemnities);
|
1.1.74.17
|
Clause 16 (Costs and expenses);
|
1.1.74.18
|
Clause 17 (Guarantee and Indemnity);
|
1.1.74.19
|
Clause 18 (Representations);
|
1.1.74.20
|
Clause 21.17 (Further assurance);
|
1.1.74.21
|
Clause 21.19 (Events of Default) (other than Clause 24.12 (Repudiation) and Clause 24.17 (Acceleration)); and
|
1.1.74.22
|
Clause 31 (Set off).
|
1.1.75
|
Finance Parties means the Facility Agent, the Global Coordinators, the Bookrunners, each Lender and, subject to the remainder of this Clause, each Hedge Provider and Finance Party means each or any of them (as the context may require); provided that a Hedge Provider shall be a Finance Party only for the purposes of:
|
1.1.75.1
|
the Security Documents;
|
1.1.75.2
|
the definition of Secured Parties;
|
1.1.75.3
|
Clause 1.1.114.3 of the definition for Material Adverse Effect;
|
1.1.75.4
|
Clause 1.2 (Construction);
|
1.1.75.5
|
Clause 14.2 (Other indemnities);
|
1.1.75.6
|
Clause 16 (Costs and expenses);
|
1.1.75.7
|
Clause 17 (Guarantee and Indemnity);
|
1.1.75.8
|
Clause 18 (Representations);
|
1.1.75.9
|
Clause 21.17 (Further assurance); and
|
1.1.75.10
|
Clause 28 (Conduct of business by the Finance Parties).
|
1.1.76
|
Financial Close means the date on which the Facility Agent gives the notification under Clause 4.1 (Conditions precedent to first Utilisation) of this Agreement.
|
1.1.77
|
Financial Indebtedness means any indebtedness for or in respect of:
|
1.1.77.1
|
moneys borrowed;
|
1.1.77.2
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
1.1.77.3
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
1.1.77.4
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with IFRS, be treated as balance sheet liability;
|
1.1.77.5
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
1.1.77.6
|
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
1.1.77.7
|
any Derivatives Transaction (and, when calculating the value of any derivative transaction, only the marked to market value or actual net amount payable thereunder shall be taken into account);
|
1.1.77.8
|
any amount raised by the issue of shares which are redeemable;
|
1.1.77.9
|
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
1.1.77.10
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in Clauses 1.1.77.1 to 1.1.77.9 above.
|
1.1.78
|
Financial Year means, at any time, the annual accounting period of the Group ending on 30 June in each calendar year.
|
1.1.79
|
Flow of Funds Agreement means the written flow of funds agreement entered into amongst the Original Lenders (as defined in the Existing USD Facility Agreement), the Finance Parties and the Borrower on or about the Signature Date.
|
1.1.80
|
Fundamental Control Event means any of the following:
|
1.1.80.1
|
any person or group of persons acting in concert gain(s) Control of the Borrower or the Borrower is no longer listed on the JSE Securities Exchange;
|
1.1.80.2
|
a change in Control of any of the Material Obligors where the purchase consideration is not in cash, without the prior written consent of the Lenders;
|
1.1.80.3
|
a change in ownership or interests in any of the Joint Ventures from such ownership or interests as constituted at the date of this Agreement, but shall exclude:
|
1.1.80.3.1
|
a change in ownership or interests which arises as a result of the relevant Obligor that holds such ownership or interests at the date of this Agreement subsequently transferring such ownership or interests to another Material Obligor (including to a person that becomes a Material Obligor in accordance with the provisions of this Agreement on or before the date of such transfer of ownership), to the extent it is permitted to do so; and
|
1.1.80.3.2
|
a change in ownership or interests resulting from Papua New Guinea exercising its Buy-In Option.
|
1.1.81
|
Fundamental Disposal Event means a disposal (whether by way of sale, lease, license, transfer, loan or other disposal) of any Material Asset for a purchase consideration other than cash, without the prior written consent of the Lenders.
|
1.1.82
|
Funding Rate means any individual rate notified by a Lender to the Facility Agent pursuant to Clause 10.2.1.2.
|
1.1.83
|
Gold Price Derivative Transaction(s) means any gold price derivative transaction(s) entered into between the Borrower and a Hedge Provider under a Hedging Document as permitted in terms of Clause 21.16 (Gold Price Derivative Transactions) of this Agreement.
|
1.1.84
|
Governmental Authority means the government of any jurisdiction, or any political subdivision thereof, whether provincial, state or local, and any department, ministry, agency, instrumentality, authority, body, court, central bank or other entity lawfully exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
|
1.1.85
|
Group means:
|
1.1.85.1
|
the Borrower;
|
1.1.85.2
|
each Guarantor; and
|
1.1.85.3
|
each Subsidiary of the Borrower or a Guarantor for the time being.
|
1.1.86
|
Group Structure Chart means the group structure chart in agreed form showing at least the following information: each member of the Group, including current name and company registration number, its jurisdiction of incorporation and/or its jurisdiction of establishment, a list of shareholders and indicating whether a company is not a company with limited liability.
|
1.1.87
|
Guarantor means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 26 (Changes to the Obligors).
|
1.1.88
|
Hedge Provider means the Original Hedge Providers and/or each other Lender (or any Affiliate of any Lender) in each case which has entered into or will enter into a Gold Price Derivative Transaction with the Borrower in accordance with the Hedging Documents and which has acceded to this Agreement and the Intercreditor Agreement by delivering to the Facility Agent each duly completed and executed Hedge Provider Accession Undertaking, and Hedge Providers means all of them as the context requires.
|
1.1.89
|
Hedge Provider Accession Undertaking means a document substantially in the form set out in Schedule 2 (Form of Hedge Provider Accession Undertaking) of the Intercreditor Agreement.
|
1.1.90
|
Hedging Documents means any 2002 ISDA Master Agreement (including any amendment agreement, annexure, schedule or confirmation) evidencing or otherwise relating specifically to the Gold Price Derivative Transaction(s) concluded or to be concluded between the Borrower and the Hedge Providers from time to time, and Hedging Document means any one of them as the context requires.
|
1.1.91
|
Hidden Valley Joint Venture means the joint venture constituted by the joint venture agreement between Morobe Consolidated Goldfields Limited, Harmony PNG 20 Limited and Hidden Valley Services Limited dated 22 May 2008, as terminated on or about 30 June 2017.
|
1.1.92
|
Hidden Valley Mine means the gold and silver mining operations conducted on Mining Lease 151 at Hidden Valley, Lae Province, Papua New Guinea.
|
1.1.93
|
HMT means Her Majesty’s Treasury of the United Kingdom.
|
1.1.94
|
Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
|
1.1.95
|
IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
|
1.1.96
|
Impaired Facility Agent means the Facility Agent at any time when:
|
1.1.96.1
|
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
|
1.1.96.2
|
the Facility Agent otherwise rescinds or repudiates a Finance Document;
|
1.1.96.3
|
(if the Facility Agent is also a Lender) it is a Defaulting Lender under Clause 1.1.39.1, 1.1.39.2 or 1.1.39.3; or
|
1.1.96.4
|
an insolvency event as contemplated in Clauses 24.6 and 24.7 has occurred and is continuing with respect to the Facility Agent,
|
1.1.96.5
|
its failure to pay is caused by:
|
1.1.96.5.1
|
administrative or technical error; or
|
1.1.96.5.2
|
a Disruption Event; and
|
1.1.96.6
|
the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
1.1.97
|
Initial Repayment Date means the date falling on the third anniversary date of Financial Close.
|
1.1.98
|
Intangible Assets means intangible assets as per the financial statements delivered in terms of Clause 19.1 (Financial statements).
|
1.1.99
|
Intellectual Property Rights means any patents, trademarks, service marks, designs, trading or business names, copyrights, design rights, moral rights, inventions, confidential information, know-how, domain names, topographical or similar rights, database or other intellectual property rights and interests and the benefit of all applications and rights to use (including by way of licence) such assets of each Obligor, in each case whether registered or unregistered.
|
1.1.100
|
Intercreditor Agreement means the written intercreditor agreement concluded on or about the Signature Date amongst the Secured Parties and relating to their relationship as creditors of the Borrower and the other Obligors.
|
1.1.101
|
Interest Cover Ratio means, in respect of any Ratio Test Period:
|
1.1.101.1
|
EBITDA;
|
1.1.101.2
|
divided by Total Interest.
|
1.1.102
|
Interest Period means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).
|
1.1.103
|
Interpolated Screen Rate means, in relation to LIBOR for any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
|
1.1.103.1
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
1.1.103.2
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
1.1.104
|
Joint Venture Agreements means the joint venture agreements constituting the Wafi-Golpu Joint Venture and the Exploration Portfolio Joint Venture.
|
1.1.105
|
Joint Ventures means the Exploration Portfolio Joint Venture and the Wafi-Golpu Joint Venture.
|
1.1.106
|
Legal Reservations means:
|
1.1.106.1
|
the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
1.1.106.2
|
the time barring of claims based on prescription laws that apply in the jurisdiction of incorporation of a member of the Group;
|
1.1.106.3
|
any other matters which are set out as qualifications or reservations as to matters of law of general application in any of the legal opinions delivered pursuant to Clause 4.1 (Conditions precedent to first Utilisation) or Clause 26 (Changes to the Obligors).
|
1.1.107
|
Lender means:
|
1.1.107.1
|
any Original Lender; and
|
1.1.107.2
|
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 25 (Changes to the Lenders),
|
1.1.108
|
Leverage Ratio means, at any time, the ratio of Total Net Debt to EBITDA.
|
1.1.109
|
LIBOR means, in relation to any Loan:
|
1.1.109.1
|
the applicable Screen Rate;
|
1.1.109.2
|
(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
|
1.1.109.3
|
if:
|
1.1.109.3.1
|
no Screen Rate is available for USD; or
|
1.1.109.3.2
|
no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,
|
1.1.109.4
|
as of, in the case of Clauses 1.1.109.1 and 1.1.109.3 above, the Specified Time on the Quotation Day for USD and for a period equal in length to the Interest Period of that Loan and, if that rate is less than zero, LIBOR shall be deemed to be zero.
|
1.1.110
|
LMA means the Loan Market Association.
|
1.1.111
|
Loan means a Facility A Loan or a Facility B Loan.
|
1.1.112
|
Majority Lenders means:
|
1.1.112.1
|
if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate at least 66,67% (sixty six point six seven per cent) of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 66,67% (sixty six point six seven per cent) of the Total Commitments immediately prior to the reduction); or
|
1.1.112.2
|
at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate at least 66,67% (sixty six point six seven per cent) of all the Loans then outstanding.
|
1.1.113
|
Mandate Letter means the mandate letter dated 24 April 2019 between the Global Coordinators, Bookrunners and the Obligors relating to, amongst others, the appointment of the Global Coordinators as exclusive arrangers and bookrunners in respect of the Facilities under this Agreement.
|
1.1.114
|
Material Adverse Effect means a material adverse effect on:
|
1.1.114.1
|
the business, operations, property or condition (financial or otherwise) of the Borrower, any Guarantor and/or the Group taken as a whole;
|
1.1.114.2
|
the ability of any Obligor to perform any of its obligations under the Finance Documents; or
|
1.1.114.3
|
the validity or enforceability of any of the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
1.1.115
|
Material Assets means:
|
1.1.115.1
|
the mining operations comprising the following mine shafts namely Kusasalethu (DMR Ref no. GP30/5/1/2/07MR), Tshepong and Phakisa (DMR Ref no. FS30/5/1/2/2/84MR), Doornkop (DMR Ref no. GP30/5/1/2/2/09MR), Masimong (DMR Ref no. FS30/5/1/2/2/82MR), Target 1 (DMR Ref no. FS30/5/1/2/2/14MR), Bambanani (DMR Ref no. FS30/5/1/2/2/83MR), Joel (DMR Ref no. FS30/5/1/2/2/13MR) and Harmony Moab (License No. NW30/5/1/2/2/15MR & 16MR);
|
1.1.115.2
|
the interests of Wafi Mining Limited in the Wafi-Golpu Joint Venture, being its rights under the Wafi-Golpu Joint Venture Agreement, its participating interest therein and its right to take its share in production thereof; and
|
1.1.115.3
|
the interests of Morobe Consolidated Goldfields Limited in the Hidden Valley Mine.
|
1.1.116
|
Material Group Company means at any time:
|
1.1.116.1
|
an Obligor; and
|
1.1.116.2
|
any member of the Group which has earnings before interest, tax, depreciation and amortisation calculated on the same basis as EBITDA representing 5% (five per cent) or more of EBITDA of the Group or has gross assets or turnover (excluding intra-group items) representing 5% (five per cent) or more of the gross assets or turnover of the Group, in each case, calculated on a consolidated basis (a Material Subsidiary);
|
1.1.117
|
Material Obligors means each of the Obligors, other than Avgold Limited.
|
1.1.118
|
MINEFI means the French Ministry of Finance.
|
1.1.119
|
Mining Law means any applicable law or regulation which relates to the conduct of prospecting, exploration and mining operations, including (in respect of operations in South Africa) the Mineral and Petroleum Resources Development Act, 2002 and (in respect of operations in Papua New Guinea) the Mining Act 1992 (PNG).
|
1.1.120
|
Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
|
1.1.120.1
|
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
1.1.120.2
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.
|
1.1.121
|
Obligors means the Borrower and each Guarantor, and Obligor means each or any of them (as the context may require).
|
1.1.122
|
OFAC means the Office of Foreign Assets Control of the Department of Treasury of the United States of America.
|
1.1.123
|
Original Financial Statements means:
|
1.1.123.1
|
in relation to the Borrower, the audited consolidated financial statements of the Group for the financial year ended 30 June 2018;
|
1.1.123.2
|
in relation to Harmony Gold (PNG Services) Pty Ltd, Aurora Gold Ltd, Abelle Ltd, their audited financial statements for their financial years ended 30 June 2018; and
|
1.1.123.3
|
in relation to each Original Obligor other than the Borrower, Harmony Gold (PNG Services) Pty Ltd, Aurora Gold Ltd, Abelle Ltd and Aurora Gold (Wafi) (Pty) Ltd, its audited financial statements for its financial year ended 30 June 2018.
|
1.1.124
|
Original Obligor means the Borrower or an Original Guarantor.
|
1.1.125
|
Papua New Guinea means the Independent State of Papua New Guinea.
|
1.1.126
|
Party means a party to this Agreement.
|
1.1.127
|
Permitted Guarantees means:
|
1.1.127.1
|
any guarantee under, or given in connection with, the Existing USD Finance Documents, but only until the Existing USD Facilities Refinancing Date;
|
1.1.127.2
|
any guarantees or indemnities given by the Borrower or any member of the Group on behalf of any member of the Group in the ordinary course of its operational business requirements in an aggregate amount not exceeding USD35 000 000 (thirty five million United States Dollars) or its equivalent in any other currency or currencies;
|
1.1.127.3
|
any indemnity or guarantee granted in terms of the Finance Documents;
|
1.1.127.4
|
any indemnity or guarantee which constitutes Permitted Indebtedness;
|
1.1.127.5
|
the Eskom Guarantees;
|
1.1.127.6
|
the Silicosis Settlement Guarantee;
|
1.1.127.7
|
the USD Environmental Guarantees;
|
1.1.127.8
|
the ZAR Environmental Guarantees;
|
1.1.127.9
|
any guarantee given by Harmony Gold Australia in favour of any of the Relevant Subsidiaries to enable such Relevant Subsidiary to obtain a class order that will reduce the IFRS and statutory audit requirements applicable to it; and
|
1.1.127.10
|
any other guarantee or indemnity granted with the prior written approval of the Facility Agent.
|
1.1.128
|
Permitted Indebtedness means:
|
1.1.128.1
|
arising under any of the Existing USD Finance Documents but only until the Existing USD Facilities Refinancing Date;
|
1.1.128.2
|
any Financial Indebtedness in respect of a lease or hire purchase contract concluded in the ordinary course of trading which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease;
|
1.1.128.3
|
any Financial Indebtedness of a member of the Group in respect of Permitted Guarantees;
|
1.1.128.4
|
any Financial Indebtedness of a member of the Group in respect of Permitted Loans; and
|
1.1.128.5
|
any Financial Indebtedness not included in Clauses 1.1.128.1 to 1.1.128.4 including that incurred pursuant to the Hedging Documents, that does not result in Total Net Debt exceeding ZAR2 500 000 000 (two billion five hundred million Rand) at any time plus the ZAR equivalent of USD450 000 000 (four hundred and fifty million United States Dollars), converted at the then prevailing exchange rate into a ZAR amount;
|
1.1.128.6
|
any other Financial Indebtedness incurred with the prior written approval of the Facility Agent,
|
1.1.129
|
Permitted Loans means:
|
1.1.129.1
|
loans made by the Borrower to any other member of the Group utilising the proceeds of any Utilisation under a Facility in order to fund a purpose referred to in Clause 3 (Purpose) (Borrower On Loans) and including on-loans made by any other member of the Group to any other member of the Group directly or indirectly from the proceeds of Borrower On Loans in order to fund a purpose referred to in Clause 3 (Purpose);
|
1.1.129.2
|
loans made by the Borrower to any other member of the Group utilising the proceeds of any utilisation under the ZAR Facility Agreement in order to fund a purpose referred to in the ZAR Facility Agreement (Borrower ZAR On Loans) and including on-loans made by any other member of the Group to any other member of the Group directly or indirectly from the proceeds of Borrower ZAR On Loans in order to fund a purpose referred to in the ZAR Facility Agreement;
|
1.1.129.3
|
trade credit granted in the ordinary course of an Obligor’s day-to-day business upon terms usual for such trade;
|
1.1.129.4
|
loans by an Obligor existing prior to the Signature Date and which have been (i) disclosed in Schedule 11 (Disclosed Loans) hereto, or (ii) in the Original Financial Statements;
|
1.1.129.5
|
loans by a member of the Group which is not an Obligor existing prior to the Signature Date and which have been disclosed in the Original Financial Statements;
|
1.1.129.6
|
loans granted by any member of the Group to any other member of the Group other than pursuant to 1.1.129.1 or 1.1.129.2 above or as disclosed in 1.1.129.4 or 1.1.129.5 above, which do not at any time (on a consolidated basis taking into account all such loans) exceed ZAR300 000 000 (three hundred million Rand) or its equivalent in any other currency or currencies per Financial Year;
|
1.1.129.7
|
loans made by one member of the Group to any other member of the Group for the purposes of enabling the Borrower or any other Obligor to meet its payment obligations under the Finance Documents;
|
1.1.129.8
|
a loan made by any member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group does not exceed ZAR40 000 000 (forty million Rand) or its equivalent in any other currency or currencies or to an employee or director of the Borrower in terms of an approved employee share option scheme provided that on establishment, such scheme does not involve a net outflow of cash from the Group;
|
1.1.129.9
|
loans made by the Borrower to Harmony Moab and on-lent by Harmony Moab, or loans made directly by the Borrower or Harmony Moab, to the BEE Entity for the purposes of financing the acquisition by the BEE Entity of up to 3% (three per cent) of the issued ordinary share capital of Harmony Moab pursuant to a BEE transaction in respect of Harmony Moab, provided that the amount of such loans shall not exceed ZAR100 000 000 (one hundred million Rand) or its equivalent in any other currencies in aggregate;
|
1.1.129.10
|
loans made by the Borrower to any entity acquiring shares in a Group company pursuant to a BEE transaction in respect of that Group company, provided that the amount of such loans shall not exceed ZAR150 000 000 (one hundred and fifty million Rand) in aggregate; and
|
1.1.129.11
|
any other loans made with the prior written approval of the Facility Agent.
|
1.1.130
|
Permitted Security means:
|
1.1.130.1
|
any Security created in respect of the Existing USD Finance Documents but only until the Existing USD Facilities Refinancing Date;
|
1.1.130.2
|
Security created over any new asset, plant, machinery, equipment or property acquired and/or developed by any Obligor to secure Permitted Indebtedness incurred for the purpose of financing the acquisition of such new asset, plant, machinery, equipment or property or the development, as the case may be, but not for the replacement or refurbishment or maintenance of an existing asset, plant, machinery, equipment or property;
|
1.1.130.3
|
Security created over any asset or property of a member of the Group which is not an Obligor in order to secure Permitted Indebtedness;
|
1.1.130.4
|
Security created over any asset or property of an Obligor in order to secure Permitted Indebtedness for an aggregate amount (aggregated across all of the Obligors) not exceeding ZAR200 000 000 (two hundred million Rand) or its equivalent in any other currency or currencies;
|
1.1.130.5
|
Security created by operation of law, including without limitation any Environmental Law or Mining Law, and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;
|
1.1.130.6
|
any Security which is existing prior to the Signature Date and which has been disclosed (i) Schedule 8: Part A (Existing Security) hereto, or (ii) in the Original Financial Statements and in all circumstances securing only indebtedness outstanding at the Signature Date if the principal amount or original facility thereby secured is not increased after the Signature Date;
|
1.1.130.7
|
any Security which is existing prior to the Signature Date and which has been disclosed Schedule 8: Part B hereto;
|
1.1.130.8
|
any netting or set-off arrangement entered into by a member of the Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances, and only such arrangements that are in existence at the Signature Date;
|
1.1.130.9
|
any Security entered into pursuant to any Finance Document as contemplated in the Finance Documents;
|
1.1.130.10
|
any cash collateralisation arrangements arising under:
|
1.1.130.10.1
|
the Eskom Guarantees provided that the amount provided as Security under those arrangements does not exceed ZAR210,000,000 at any time;
|
1.1.130.10.2
|
the ZAR Environmental Guarantees provided that the amount provided as Security under those arrangements does not exceed ZAR210,000,000 at any time;
|
1.1.130.10.3
|
the USD Environmental Guarantees provided that the amount provided as Security under those arrangements does not exceed USD20,000,000 at any time; and
|
1.1.130.10.4
|
the Silicosis Settlement Guarantee provided that the amount provided as Security under those arrangements does not exceed ZAR200,000,000 at any time.
|
1.1.130.11
|
any other Security created with the prior written approval of the Facility Agent.
|
1.1.131
|
Permitted Share Issue means
|
1.1.131.1
|
an issue of ordinary shares by an Obligor to its Holding Company where the newly-issued shares also become subject to the Transaction Security on the same terms;
|
1.1.131.2
|
an issue by Harmony Moab to a BEE entity for the purpose of financing the acquisition by a BEE entity of up to 3% (three per cent) of the issued ordinary share capital of Harmony Moab.
|
1.1.132
|
Permitted Transferee means any person referred to Schedule 12 (Permitted Transferees), including any Affiliate of any such person.
|
1.1.133
|
PNGK means Papua New Guinea Kina, the lawful currency of Papua New Guinea.
|
1.1.134
|
Pre-Financial Close Material Adverse Change means a material adverse change prior to Financial Close, in the reasonable opinion of the Lenders (arrived at after consultation with the Borrower), in or on:
|
1.1.134.1
|
the debt, loan, financial and/or capital markets applicable to any Facility or in any markets relevant to the Borrower’s industry;
|
1.1.134.2
|
the South African or international monetary, financial, political or economic conditions;
|
1.1.134.3
|
the condition (financial or otherwise) of the business or operations or prospects of the Obligors taken as a whole;
|
1.1.134.4
|
has rendered, or will or is reasonably likely to render it unlawful for the Lenders (or any of them) to advance any portion of a Facility;
|
1.1.134.5
|
has materially adversely affected, or will or is reasonably likely to materially adversely affect, the risk profile attributed by the Lenders (or any of them) to the Obligors taken as a whole or the Lenders’ (or any of them) ability to fund, or maintain its funding of, any portion of its participation in a Facility; and/or
|
1.1.134.6
|
increases the cost to the Lenders (or any of them) of funding or maintaining its or their funding of any portion of its or their participation in a Facility, and the Borrower has elected not to bear such increased cost.
|
1.1.135
|
Quotation Day means, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
|
1.1.136
|
Ratio Test Date means the last day of March, June, September and December.
|
1.1.137
|
Ratio Test Period means each period of 12 (twelve) months ending on a Ratio Test Date.
|
1.1.138
|
Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in USD and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.
|
1.1.139
|
Reference Bank Quotation means any quotation supplied to the Facility Agent by a Reference Bank.
|
1.1.140
|
Reference Banks means the principal London offices of up to three banks agreed between the Facility Agent and the Borrower from time to time, subject to the consent of the relevant banks.
|
1.1.141
|
Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
|
1.1.142
|
Release Agreements means :
|
1.1.142.1
|
the written agreement entitled “Release Agreement”, entered into on or about the Signature Date amongst the Secured Parties, African Rainbow Minerals Gold Limited and the Borrower;
|
1.1.142.2
|
the written agreement entitled “Deed of Release of Security (PNG)”, entered into on or about the Signature Date entered into between, amongst others, Nedbank Limited (acting through its Corporate and Investment Banking division) (as Security Trustee under the Existing USD Finance Documents), and the Borrower; and
|
1.1.142.3
|
the written agreement entitled “Deed of Release of Security”, entered into on or about the Signature Date entered into between, amongst others, Nedbank Limited (acting through its Corporate and Investment Banking division) (as Security Trustee under the Existing USD Finance Documents), and the Borrower.
|
1.1.143
|
Relevant Interbank Market means in relation to USD, the London interbank market.
|
1.1.144
|
Relevant Subsidiaries means:
|
1.1.144.1
|
Harmony Gold Securities Pty Ltd – ABN 69 087 480 902;
|
1.1.144.2
|
New Hampton Goldfields Ltd – ABN 53 009 193 999;
|
1.1.144.3
|
Harmony Gold WA Pty Ltd – ABN 84 099 119 918;
|
1.1.144.4
|
Harmony Gold Operations Ltd – ABN 44 005 482 842;
|
1.1.144.5
|
Abelle Limited – ABN 69 087 480 902;
|
1.1.144.6
|
Aurora Gold Limited – ABN 82 006 568 850; and
|
1.1.144.7
|
Harmony Gold (PNG Services) Limited – ABN 23 083 828 853.
|
1.1.145
|
Repeating Representations means each of the representations set out in Clause 18.1 (Status) to Clause 18.6 (Validity and admissibility in evidence), other than 18.5 (Benefit), Clause 18.10.1, Clause 18.11.1, Clause 18.11.2, Clause 18.12 (Financial statements), Clause 18.15 (Security Interest), Clause 18.16 (Pari passu ranking), Clause 18.21 (Authorised Signatures), Clause 18.22 (No immunity) and Clause 18.23 (Sanctions and anti-corruption); save that the references in Clause 18.12 to Original Financial Statements shall, for the purposes of this Repeating Representation, be construed as references to the most recent audited consolidated financial statements of the Group delivered to the Facility Agent under Clause 19.1 (Financial statements).
|
1.1.146
|
Representative means any representative, delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
|
1.1.147
|
Resignation Letter means a letter substantially in the form set out Schedule 6 (Form of Resignation Letter).
|
1.1.148
|
Retiring Guarantor has the meaning given to it in Clause 17.8 (Release of Guarantors' right of contribution).
|
1.1.149
|
Rollover Loan means one or more Facility B Loans:
|
1.1.149.1
|
made or to be made on the same day that a maturing Facility B Loan is due to be repaid;
|
1.1.149.2
|
the aggregate amount of which is equal to or less than the amount of the maturing Facility B Loan; and
|
1.1.149.3
|
made or to be made to the Borrower for the purpose of refinancing a maturing Facility B Loan.
|
1.1.150
|
Sanctioned Entity means:
|
1.1.150.1
|
any person, country or territory which is listed on a Sanctions List or is subject to Sanctions, including without limitation and as at the date of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria;
|
1.1.150.2
|
any person which is ordinarily resident in a country or territory which is listed on a Sanctions List or is subject to Sanctions;
|
1.1.150.3
|
any person listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;
|
1.1.150.4
|
any person located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or operating in or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or
|
1.1.150.5
|
any person otherwise a target of Sanctions (being any person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).
|
1.1.151
|
Sanctions means general trade, economic or financial sanctions, laws, regulations, trade embargoes or restrictive measures imposed, administered or enforced from time to time by any Sanctions Authority, and more specifically:
|
1.1.151.1
|
the Specially Designated Nationals and Blocked Persons List, the Sectoral Sanctions Identifications List and the List of Foreign Sanctions Evaders, each administered and enforced by OFAC;
|
1.1.151.2
|
the Financial Sanctions: Consolidated List of Targets and the Ukraine: list of persons subject to restrictive measures in view of Russia's actions destabilising the situation in Ukraine administered and enforced by HMT; or
|
1.1.151.3
|
any other list or public announcement or sanctions designation made by OFAC, HMT or any Sanctions Authority, in respect of the targets or scope of the Sanctions that are administered and enforced by a Sanctions Authority.
|
1.1.152
|
Sanctions Authority means each of:
|
1.1.152.1
|
the United Nations Security Council;
|
1.1.152.2
|
the European Union;
|
1.1.152.3
|
the Council of Europe (founded under the Treaty of London, 1946);
|
1.1.152.4
|
the government of the United States of America;
|
1.1.152.5
|
the government of the United Kingdom;
|
1.1.152.6
|
the government of the Republic of France;
|
1.1.152.7
|
the Hong Kong Monetary Authority;
|
1.1.152.8
|
the government of the Commonwealth of Australia,
|
1.1.153
|
Sanctions List means any of the lists maintained by any Sanctions Authority and any similar list maintained, or a public announcement of a Sanctions designation made, by any Sanctions Authority, in each case as amended, supplemented or substituted from time to time.
|
1.1.154
|
Screen Rate means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for USD for the relevant period displayed on page LIBOR01 or LIBOR02 (as the case may be) of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate), or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
|
1.1.155
|
Secured Document means the Finance Documents, the ZAR Facility Agreement and the other Finance Documents as defined in the ZAR Facility Agreement.
|
1.1.156
|
Secured Parties means the Secured Parties as defined in the Intercreditor Agreement.
|
1.1.157
|
Security means a mortgage, notarial bond, bond, cession in security, charge, security assignment, pledge, hypothec, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
|
1.1.158
|
Security Document means:
|
1.1.158.1
|
in respect of the Original Obligors, the documents listed in Clause 3 of Part I of Schedule 2 (Conditions Precedent); and
|
1.1.158.2
|
any other security document that may at any other time be given as security for the liabilities pursuant to or in connection with any Secured Document.
|
1.1.159
|
Settlement Agreement means the written settlement agreement concluded on or about 3 May 2018 between, inter alia, the Borrower and the lawyers representing the claimants in the silicosis class action litigation referred to in such agreement.
|
1.1.160
|
Signature Date means the date of the signature of the Party last signing this Agreement in time.
|
1.1.161
|
Silicosis Settlement Guarantee means the guarantee facility of up to ZAR1 100 000 000 (one billion one hundred million Rand) in terms of which a guarantee will be issued on behalf of the Borrower in favour of a trust to be established pursuant to the Settlement Agreement.
|
1.1.162
|
Specified Time means a time determined in accordance with Schedule 9 (Timetables).
|
1.1.163
|
Subsidiary means a subsidiary as defined in the Companies Act and shall include any person who would, but for not being a company under the Companies Act, qualify as a subsidiary as defined in the Companies Act.
|
1.1.164
|
Tangible Net Worth means Total Equity less Intangible Assets.
|
1.1.165
|
Tangible Net Worth to Total Net Debt means, at any time, the ratio of Tangible Net Worth to Total Net Debt.
|
1.1.166
|
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
|
1.1.167
|
Total Commitments means the aggregate of the Total Facility A Commitment and the Total Facility B Commitment.
|
1.1.168
|
Total Facility A Commitments means the aggregate of the Facility A Commitments, being USD200 000 000 (two hundred million United States Dollars) at the Signature Date.
|
1.1.169
|
Total Facility B Commitments means the aggregate of the Facility B Commitments, being USD200 000 000 (two hundred million United States Dollars) at the Signature Date.
|
1.1.170
|
Total Equity means the total aggregate issued share capital of the Borrower from time to time.
|
1.1.171
|
Total Interest means, in respect of any period, the aggregate accruing during such period (without duplication and whether or not paid or payable within such period) of, in respect of the Group on a consolidated basis (and whether or not the principal or capital obligation by reference to which any of the following are determined is an obligation of the Group):
|
1.1.171.1
|
all interest, acceptance commission, guarantee fees and any other continuing, regular or periodic costs and expenses in the nature of interest (whether paid, payable or capitalised) incurred in effecting, servicing or maintaining Financial Indebtedness;
|
1.1.171.2
|
amounts payable (as reduced by amounts receivable) in respect of any Derivatives Transaction which is an interest rate hedging arrangement entered into to hedge risks arising in the normal course of business; and
|
1.1.171.3
|
the interest element of, and ancillary fees payable under, any finance leases (other than a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease).
|
1.1.172
|
Total Net Debt means, at any time, the aggregate amount of all obligations of members of the Group for or in respect of Financial Indebtedness but:
|
1.1.172.1
|
excluding any such obligations to any other member of the Group;
|
1.1.172.2
|
excluding any liability of any member of the Group relating to the ZAR Environmental Guarantees;
|
1.1.172.3
|
excluding any liability of any member of the Group relating to the USD Environmental Guarantees;
|
1.1.172.4
|
excluding any liability of any member of the Group arising from the Eskom Guarantees;
|
1.1.172.5
|
excluding any liability of any member of the Group arising from the Silicosis Guarantee;
|
1.1.172.6
|
including, in the case of any lease or hire purchase contract, which would in accordance with IFRS, be treated as a finance or capital lease (other than a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease), their capitalised value; and
|
1.1.172.7
|
deducting the aggregate amount of Cash and Cash Equivalent Investments held by any member of the Group at that time.
|
1.1.173
|
Transaction Security means the Security created or expressed to be created in favour of the Secured Parties pursuant to the Security Documents.
|
1.1.174
|
Transfer has the meaning given to it in Clause 25.1 (Cessions and delegations by the Lenders).
|
1.1.175
|
Transfer Certificate means a certificate substantially in the form set out Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the Borrower.
|
1.1.176
|
Transfer Date means, in relation to a Transfer, the later of:
|
1.1.176.1
|
the proposed Transfer Date specified in the Transfer Certificate; and
|
1.1.176.2
|
the date on which the Facility Agent executes the Transfer Certificate.
|
1.1.177
|
Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.
|
1.1.178
|
USD means United States Dollars, the lawful currency of the United States of America.
|
1.1.179
|
USD Environmental Guarantees means any Financial Indebtedness relating to compliance with environmental and mining legislation in Papua New Guinea arising from rehabilitation operations in the form of environmental guarantees and financial security under such legislation in an aggregate amount not exceeding USD100 000 000 (one hundred million United Stated Dollars) at any time.
|
1.1.180
|
Utilisation means a utilisation of a Facility.
|
1.1.181
|
Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made.
|
1.1.182
|
Utilisation Fee has the meaning given to it in Clause 5.6.
|
1.1.183
|
Utilisation Request means a notice substantially in the form set out Schedule 3 (Form of Utilisation Request).
|
1.1.184
|
VAT means value added tax as provided for in the Value Added Tax Act, 1991 and any other tax of a similar nature.
|
1.1.185
|
Wafi-Golpu Joint Venture means the joint venture constituted by the joint venture agreement between Wafi Mining Limited, Newcrest PNG 2 Limited and Wafi-Golpu Services Limited dated 22 May 2008.
|
1.1.186
|
ZAR means South African Rand, the lawful currency of South Africa.
|
1.1.187
|
ZAR Environmental Guarantees means any Financial Indebtedness relating to compliance with environmental legislation in South Africa arising from rehabilitation operations in the form of environmental guarantees in an aggregate amount not exceeding ZAR600 000 000 (six hundred million Rand) at any time.
|
1.1.188
|
ZAR Facility Agreement means the written agreement entitled ‘ZAR2 000 000 000 Term and Revolving Credit Facilities Agreement’ between the Borrower, Obligors and the ZAR Facility Finance Parties as amended from time to time.
|
1.1.189
|
ZAR Facility Finance Parties means the Finance Parties as defined in the ZAR Facility Agreement.
|
1.2
|
Construction
|
1.2.1
|
Unless a contrary indication appears, any reference in this Agreement to:
|
1.2.1.1
|
any Global Coordinator, any Bookrunner, the Facility Agent, any Finance Party, any Lender, any Secured Party, any Hedge Provider, any Obligor or any Party shall be construed so as to include its successors in title, permitted cessionaries and permitted transferees;
|
1.2.1.2
|
assets includes present and future properties, revenues and rights of every description;
|
1.2.1.3
|
authority includes any court or any governmental, intergovernmental or supranational body, agency, department or any regulatory, self-regulatory or other authority;
|
1.2.1.4
|
a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated from time to time;
|
1.2.1.5
|
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
1.2.1.6
|
a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
1.2.1.7
|
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law, being one with which the relevant person is accustomed to comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
|
1.2.1.7.1
|
a provision of law is a reference to that provision as amended or re-enacted; and
|
1.2.1.7.2
|
a time of day is a reference to Johannesburg time.
|
1.2.1.8
|
Section, Clause and Schedule headings are for ease of reference only.
|
1.2.1.9
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
1.2.1.10
|
A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been waived.
|
1.2.1.11
|
If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in an interpretation Clause, effect shall be given to it as if it were a substantive provision of the relevant Finance Document.
|
1.2.1.12
|
Unless inconsistent with the context, an expression in any Finance Document which denotes the singular includes the plural and vice versa.
|
1.2.2
|
The Schedules to any Finance Document form an integral part thereof.
|
1.2.3
|
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 the Finance Documents.
|
1.2.4
|
The expiry or termination of any Finance Documents shall not affect such of the provisions of the Finance Documents as expressly provide that they will operate after any such expiry or termination or which of necessity must continue to have effect after such expiry or termination, notwithstanding that the Clauses themselves do not expressly provide for this.
|
1.2.5
|
The Finance Documents shall to the extent permitted by applicable law be binding on and enforceable by the administrators, trustees, permitted cessionaries, business rescue practitioners or liquidators of the Parties as fully and effectually as if they had signed the Finance Documents in the first instance and reference to any Party shall be deemed to include such Party’s administrators, trustees, permitted cessionaries, business rescue practitioners or liquidators, as the case may be.
|
1.2.6
|
The use of any expression in any Finance Document covering a process or proceeding available under South African law such as winding-up or business rescue (without limitation eiusdem generis) shall, if any of the Parties to the Finance Documents is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous process or proceedings under the law of such other jurisdiction.
|
1.2.7
|
Where figures are referred to in numerals and in words in any Finance Document, if there is any conflict between the two, the words shall prevail.
|
1.2.8
|
Unless a contrary indication appears, where any number of days is to be calculated from a particular day, such number shall be calculated as including that particular day and excluding the last day of such period.
|
1.3
|
Third party rights
|
1.3.1
|
Except as expressly provided for in this Agreement or in any other Finance Document, no provision of any Finance Document constitutes a stipulation for the benefit of any person who is not a party to that Finance Document.
|
1.3.2
|
Notwithstanding any term of any Finance Document, the consent of any person who is not a party to that Finance Document is not required to rescind or vary that Finance Document at any time except to the extent that the relevant variation or rescission (as the case may be) relates directly to the right conferred upon any applicable third party under a stipulation for the benefit of that party that has been accepted by that third party.
|
2.
|
THE FACILITY
|
2.1
|
The Facility
|
2.1.1
|
a USD committed term loan facility in an aggregate amount equal to the Total Facility A Commitments; and
|
2.1.2
|
a USD committed revolving credit facility in an aggregate amount equal to the Total Facility B Commitments.
|
2.2
|
Finance Parties' rights and obligations
|
2.2.1
|
The obligations of each Finance Party under the Finance Documents are separate and independent. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
2.2.2
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
2.2.3
|
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
2.2.4
|
The Borrower is entitled to receive a copy of the signed Intercreditor Agreement; however neither the Borrower nor any other Obligor has any rights or obligations under the Intercreditor Agreement.
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
3.1.1
|
the repayment in full of the Existing USD Facility Outstandings; and
|
3.1.2
|
the Group’s exploration activities, feasibility costs, capital costs, operational costs, other corporate expenses and other strategic objectives relating to the Group outside of South Africa.
|
3.2
|
Monitoring
|
4.
|
CONDITIONS OF UTILISATION
|
4.1
|
Conditions precedent to First Utilisation
|
4.2
|
Conditions precedent to Utilisations generally
|
4.2.1
|
in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan;
|
4.2.2
|
the Repeating Representations to be made by each Obligor are true in all material respects;
|
4.2.3
|
in relation to the first Utilisation only, the representations referred to in Clause 18.17 (No proceedings pending or threatened) are true in all material respects and for this purpose, the representations referred to in Clause 18.17 (No proceedings pending or threatened) shall be deemed to be made by each Obligor by reference to the facts and circumstances existing on the first Utilisation Date.
|
5.
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
5.2
|
Completion of a Utilisation Request
|
5.2.1
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
5.2.1.1
|
it identifies the Facility to be utilised;
|
5.2.1.2
|
the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;
|
5.2.1.3
|
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
|
5.2.1.4
|
the proposed Interest Period complies with Clause 9 (Interest Periods).
|
5.2.2
|
Only one Loan may be requested in each Utilisation Request.
|
5.2.3
|
Only one Utilisation Request may be submitted in any calendar month in respect of Facility B and only one Utilisation request may be submitted in respect of Facility A.
|
5.2.4
|
The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than five Loans would be outstanding at any point in time and to this effect, the Facility Agent will consolidate two or more outstanding Loans made from the same Facility maturing on the same date, such that the relevant Rollover Loan made to refinance such maturing Loans will be in respect of such outstanding Loans as consolidated into one Loan.
|
5.3
|
Currency and amount
|
5.3.1
|
The currency specified in a Utilisation Request must be USD.
|
5.3.2
|
The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of USD30 000 000 (thirty million United States Dollars) or, if less, the Available Facility.
|
5.4
|
Lenders' participation
|
5.4.1
|
If the conditions set out in this Agreement have been met, and subject to Clause 6.1 (Repayment of Facility B Loans) each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
5.4.2
|
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
|
5.4.3
|
The Facility Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan by the Specified Time.
|
5.5
|
Cancellation of Commitment
|
5.5.1
|
If Financial Close has not occurred by the date which is no later than 40 (forty) days after the Signature Date (or within such further period as the Lenders may have agreed to in writing before the lapse of the period of 40 (forty) days after the Signature Date), the Commitments shall be immediately cancelled.
|
5.5.2
|
The Facility A Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility A.
|
5.5.3
|
The Facility B Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility B.
|
5.6
|
Utilisation Fee
|
% of Facility B Commitments
|
Utilisation Fee
|
Less than or equal to 33.33%
|
0.10%
|
Greater than 33.33% but less than or equal to 66.67%
|
0.20%
|
Greater than 66.67%
|
0.30%
|
5.7
|
The Utilisation Fee shall be calculated on a day to day basis and shall be payable quarterly in arrears on the last day of each successive period of 3 (three) Months, with the first such period commencing on Financial Close.
|
6.
|
REPAYMENT
|
6.1
|
Repayment of Facility A Loans
|
6.1.1
|
The Borrower shall repay the Facility A Loans made to it in full on the Final Repayment Date.
|
6.1.2
|
The Borrower may not re-borrow any part of Facility A which is repaid.
|
6.2
|
Repayment of Facility B Loans
|
6.2.1
|
Rollover Loans
|
6.2.1.1
|
Without prejudice to the Borrower's obligation under Clause 6.2.1.3 below, if one or more Facility B Loans are to be made available to the Borrower:
|
6.2.1.1.1
|
on the same day that a maturing Facility B Loan is due to be repaid by the Borrower; and
|
6.2.1.1.2
|
in whole or in part for the purpose of refinancing the maturing Facility B Loan,
|
6.2.1.2
|
Any Rollover Loans shall be utilised as follows:
|
6.2.1.2.1
|
if the amount of a maturing Facility B Loan exceeds the aggregate amount of the new Facility B Loans (Excess):
|
6.2.1.2.1.1
|
the Borrower will only be required to repay an amount in cash equal to the Excess (in repayment of the maturing Facility B Loan), and
|
6.2.1.2.1.2
|
the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of the Lender's participation (if any) in the maturing Facility B Loan and the Lender will not be required to make new Facility B Loans available in cash; and
|
6.2.1.2.2
|
if the amount of the maturing Facility B Loan is equal to or less than the aggregate amount of the new Facility B Loans:
|
6.2.1.2.2.1
|
the Borrower will not be required to make any repayment in cash on account of the maturing Facility B Loan; and
|
6.2.1.2.2.2
|
the Lender will be required to make the new Facility B Loans available in cash only to the extent that the new Facility B Loans exceed the maturing Facility B Loan and the remainder of the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of the maturing Facility B Loan.
|
6.2.1.3
|
The Borrower shall repay all Loans outstanding under the Facilities (including accrued and unpaid interest thereon) in full by no later than the Final Repayment Date.
|
6.2.1.4
|
The Borrower may re-borrow any part of Facility B which is repaid.
|
6.3
|
Extension option
|
6.3.1
|
The Borrower may, by giving notice to the Facility Agent substantially in the form set out in Part 1 of Schedule 14 (Form of Extension Documents), (an Extension Request) not less than 100 (one hundred) days (and not more than 120 (one hundred and twenty) days) before the first anniversary of Financial Close, request that the Initial Repayment Date be extended to the Extended Repayment Date.
|
6.3.2
|
The Facility Agent must promptly, but in any event by no later than 2 (two) Business Days following receipt, notify the Lenders of the receipt of an Extension Request.
|
6.3.3
|
Each Lender shall notify the Facility Agent and the Borrower of its decision whether or not to consent to the Extension Request not more than 20 (twenty) Business Days after being notified by the Facility Agent of the Extension Request (the Extension Request End Date). A Lender who has consented to the Extension Request (the Extending Lenders), shall deliver a written notice to the Facility Agent substantially in the form set out in Part 2 of Schedule 14 (Form of Extension Documents) (an Extension Acceptance Notice). If a Lender has not delivered an Extension Acceptance Notice on or before the Extension Request End Date, it shall be deemed to have refused to consent to the Extension Request (together with a Lender who has explicitly refused to consent to an Extension Request, the Non-Extending Lenders).
|
6.3.4
|
Each Non-Extending Lender shall, on the Business Day immediately following the Extension Request End Date, be deemed to have offered all (and not part only) its Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans (together with all its rights and obligations under the Finance Documents) to each Extending Lender pro rata in accordance with Clause 6.3.6 below. The Facility Agent shall inform all Extending Lenders of such offer by issuing a notice (the Lender Replacement Notice) within two Business Days of such date. The offer made pursuant to this Clause 6.3.4 shall immediately lapse at the end of the Business Day immediately preceding the commencement of the Replacement Lender Offer Period (as defined below).
|
6.3.5
|
An Extending Lender may, within 15 (fifteen) Business Days of receipt of a Lender Replacement Notice (the Replacement Notice End Date) deliver a further Extension Acceptance Notice to the Facility Agent and the Borrower pursuant to which it confirms its willingness to assume (i) its pro rata share of each such Non-Extending Lender’s Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans and (ii) all the rights and obligations of each Non-Extending Lender (the Initial Pro Rata Participation) for a purchase price in cash payable at the time of transfer in an amount equal to its pro rata share of the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans and all accrued interest, Breakage Costs and other amounts payable in relation thereto under the Finance Documents. If an Extending Lender has not notified the Facility Agent in writing of its consent on or before such date, it shall be deemed to have declined its Initial Pro Rata Participation. An Extending Lender may, in its further Extension Acceptance Notice, indicate whether it wishes to assume, in addition to its Initial Pro Rata Participation, any additional amount of a Non-Extending Lender’s Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans (the Participation Headroom).
|
6.3.6
|
If an Extending Lender has declined or is deemed to have declined:
|
6.3.6.1
|
its Initial Pro Rata Participation, the Facility Agent shall notify the other Extending Lenders within 2 Business Days of the Replacement Notice End Date and each such other Extending Lender may deliver a further Extension Acceptance Notice within 3 Business Days, pursuant to which it confirms its willingness to assume its pro rata share of that Initial Pro Rata Participation (the Additional Pro Rata Participation). If an Extending Lender has not delivered a further Extension Acceptance Notice on or before such date, it shall be deemed to have declined its Additional Pro Rata Participation; or
|
6.3.6.2
|
its Additional Pro Rata Participation, any other Extending Lender which has provided its Participation Headroom shall, within 3 Business Days of such event occurring, assume either (i) an amount not exceeding its Participation Headroom or (ii) such other amount (not exceeding the Additional Pro Rata Participation) as notified by the Borrower to the Facility Agent (in the event that more than one Extending Lender has provided its Participation Headroom and such amount exceeds the Additional Pro Rata Participation),
|
6.3.7
|
If following the procedure set out in Clause 6.3.6 any Non-Extending Lender’s Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans remains available the Borrower may, within 20 (twenty) Business Days (the Replacement Lender Offer Period), replace a Non-Extending Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer to:
|
6.3.7.1
|
a Permitted Transferee; or
|
6.3.7.2
|
subject to the consent of the Extending Lenders (which consent shall not be unreasonably withheld or delayed), any other bank or financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (an Alternative Institution).
|
6.3.8
|
If at the end of the Replacement Lender Offer Period, Available Commitments and participation in all outstanding Loans of the Non-Extending Lenders, in an aggregate amount not exceeding USD25, 000,000 have not been transferred to an Extending Replacement Lender, the Borrower may, within 2 Business Days after the end of Replacement Lender Offer Period give the Facility Agent notice of cancellation of the Commitments of those Non-Extending Lenders and its intention to procure the repayment of those Non-Extending Lender's participation in the Loans. On receipt of such a notice of cancellation, the Commitments of those Non-Extending Lenders shall immediately be reduced to zero and the Borrower shall repay those Non-Extending Lenders’ participation in that Loan by no later than the date falling 3 (three) Business Days prior to the Initial Repayment Date (the Permitted Non-Extending Lender Repayment).
|
6.3.9
|
The replacement of a Non-Extending Lender pursuant to Clause 6.3.4 to 6.3.8 shall be subject to the following conditions:
|
6.3.9.1
|
such transfer shall be effect pursuant to Clause 25 (Changes to the Lenders);
|
6.3.9.2
|
no Lender shall have any obligation to the Borrower to find an Extending Replacement Lender;
|
6.3.9.3
|
in no event shall the Non-Extending Lender be required to pay or surrender to such Extending Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and
|
6.3.9.4
|
the Non-Extending Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 6.3.4 to 6.3.8 once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.
|
6.3.10
|
A Non-Extending Lender shall perform the checks described in Clause 6.3.9.4 as soon as reasonably practicable and shall notify the Facility Agent and the Borrower when it is satisfied that it has complied with those checks.
|
6.3.11
|
If following the completion of the procedure set out in Clauses 6.3.1 to 6.3.10:
|
6.3.11.1
|
the Borrower has either received Extension Acceptance Notices from all the Lenders or has replaced all Non-Extending Lenders with an Extending Replacement Lender or has effected a Permitted Non-Extending Lender Repayment, each Lender’s Available Commitments and participation in all outstanding Loans shall be extended to the Extended Repayment Date; or
|
6.3.11.2
|
the Available Commitments and participation in all outstanding Loans of a Non-Extending Lender have not been transferred to an Extending Replacement Lender or the Borrower has been unable to effect a Permitted Non-Extending Lender Repayment, each Lender’s:
|
6.3.11.2.1
|
Available Commitments shall be reduced to zero and cancelled; and
|
6.3.11.2.2
|
participation in all outstanding Loans shall be repaid together with accrued interest and all other amounts outstanding in relation to such participation,
|
6.3.12
|
The Borrower shall pay to:
|
6.3.12.1
|
each Extending Lender, a fee computed at the percentage rate equal to 0.15 per cent. of each Extending Lender’s Available Commitment and participation in all outstanding Loans (excluding any Initial Pro Rata Participation, Additional Pro Rata Participation or Participation Headroom). Such fee is payable on the 3rd Business Day after the last date on which an the process set out in Clause 6.3.1 to 6.3.10 has been completed; or
|
6.3.12.2
|
each Extending Lender that has participated in respect of its Initial Pro Rata Participation, Additional Pro Rata Participation or Participation Headroom (as applicable), a participation fee in the amount and at the times agreed in a Fee Letter; or
|
6.3.12.3
|
each Alternative Institution that has become an Extending Replacement Lender, a participation fee in the amount and at the times agreed in a Fee Letter.
|
7.
|
PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
7.1.1
|
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
7.1.2
|
upon the Facility Agent notifying the Borrower, the Commitment of that Lender or its Affiliate will be immediately cancelled; and
|
7.1.3
|
to the extent that the Lender’s or its Affiliate’s participation has not been transferred pursuant to Clause 36.3 (Replacement of Lender), the Borrower shall repay that Lender's or its Affiliate’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender or its Affiliate in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's or its Affiliate’s corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.
|
7.2
|
Fundamental Control Event or Fundamental Disposal Event
|
7.2.1
|
If any Fundamental Control Event or Fundamental Disposal Event occurs:
|
7.2.1.1
|
the Borrower shall promptly notify the Facility Agent upon becoming aware of that event;
|
7.2.1.2
|
a Lender shall not be obliged to fund a Utilisation; and
|
7.2.1.3
|
if the Majority Lenders so require, the Facility Agent shall, by notice to the Borrower, cancel the Total Commitments and declare all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Total Commitments will be cancelled and all such outstanding amounts will become immediately due and payable or due and payable on the date referred to in the notice.
|
7.2.1.4
|
Notwithstanding Clause 7.2.1.3, if a Fundamental Control Event described in Clause 1.1.80.1 occurs and if any Lender so requires, the Facility Agent shall, by notice to the Borrower, cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable or due and payable on the date referred to in the notice.
|
7.3
|
Material Disposal Proceeds
|
7.3.1
|
The Borrower shall notify the Facility Agent of the receipt of any Material Disposal Proceeds promptly upon the relevant member of the Group becoming entitled to receive such Material Disposal Proceeds. If the Majority Lenders so require, the Facility Agent shall notify the Borrower that all or a specified amount of the Available Material Disposal Proceeds are required to be applied to repay the outstanding Loans and on receipt of such notice the Borrower shall, subject to Clause 7.7.7 below, be obliged to repay the Loans (so they are reduced by the same proportions and rateably amongst the Lenders) in an amount equal to the Available Material Disposal Proceeds or the specified amount of the Available Material Disposal Proceeds, as applicable on the last day of the Interest Period of each such Loan, provided that if an Event of Default occurs prior to the last day of an Interest Period of a Loan, the amount of the relevant prepayment shall be immediately due and payable.
|
7.3.2
|
For purposes of this Clause 7.3:
|
7.3.2.1
|
Available Material Disposal Proceeds means that portion of the Material Disposal Proceeds which are available to be applied under this Agreement which shall be determined as the aggregate of (x) the USD Facility Percentage of the Material Disposal Proceeds, and (y) any Material Disposal Proceeds which would otherwise have been available to be applied as a prepayment under the ZAR Facility Agreement but were not in fact so applied.
|
7.3.2.2
|
USD Facility Percentage means the ratio (expressed as a percentage) of (x) the aggregate Available Commitments and Loans to (y) the sum of the aggregate Available Commitments and Loans and the USD equivalent of the aggregate available commitments and loans under the ZAR Facility Agreement converted at prevailing exchange rates to the USD equivalent amount.
|
7.3.2.3
|
Disposal Proceeds means the cash consideration received by any member of the Group in respect of the Disposal of (x) a Material Asset or any portion or part of a Material Asset or (y) the shares in a company or interests in any other entity which owns the Material Asset (including any amount received in repayment of intercompany debt pursuant to the Disposal of a Material Asset and any amount received by any member of the Group pursuant to an exercise by Papua New Guinea of the Buy-In Option) or (z) all or any portion or part of the joint venture property of the Wafi-Golpu Joint Venture, at any time after the Signature Date but prior to the date of full and final repayment of the Loans, and after deducting:
|
7.3.2.3.1
|
any reasonable expenses which are incurred by any member of the Group with respect to that Disposal to persons who are not members of the Group; and
|
7.3.2.3.2
|
any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance).
|
7.3.2.4
|
Disposal means a sale, lease, license, transfer, loan or other disposal by a person (whether by a voluntary or involuntary single transaction or series of transactions).
|
7.3.2.5
|
Material Disposal Proceeds means that portion of Disposal Proceeds which when aggregated with any other Disposal Proceeds previously received by any member of the Group is in excess of ZAR1 000 000 000 (one billion Rand) or the equivalent thereof in any other currency or currencies, excluding any Disposal Proceeds received by any member of the Group pursuant to an exercise by Papua New Guinea of the Buy-In Option but only to the extent that such Disposal Proceeds are reinvested by the relevant member of the Group in the relevant operations relating to the Buy-In Option or in the business of another Obligor or otherwise retained by an Obligor and not used to make any Distribution.
|
7.4
|
Cancellation
|
7.5
|
Voluntary prepayment of Loans
|
7.5.1
|
The Borrower may, if it gives the Facility Agent not less than 5 (five) Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of USD30 000 000 (thirty million United States Dollars)).
|
7.5.2
|
Any prepayment under this Clause 7.5 shall be applied rateably among the participations of all Lenders under that Facility.
|
7.5.3
|
The Borrower may only re-borrow any part of the Facility B which is prepaid under this Clause 7.5.
|
7.6
|
Right of repayment and cancellation in relation to a single Lender
|
7.6.1
|
If:
|
7.6.1.1
|
any sum payable to any Lender by an Obligor is required to be increased under Clause 12.2.3; or
|
7.6.1.2
|
any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs),
|
7.6.2
|
On receipt of a notice of cancellation referred to in Clause 7.6.1 above, the Commitment of that Lender shall immediately be reduced to zero.
|
7.6.3
|
On the last day of each Interest Period in relation to a Loan which ends after the Borrower has given notice of cancellation under Clause 7.6.1 above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in that Loan.
|
7.7
|
Restrictions and Early Settlement Fees
|
7.7.1
|
Any notice of cancellation or prepayment given by any Party under this Clause 6.3 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
7.7.2
|
Any prepayment of a Loan under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Breakage Costs payable under Clause 10.4 (Breakage Costs) (if applicable) and save as otherwise provided for in Clause 7.7.8 or elsewhere in this Agreement, without premium or penalty.
|
7.7.3
|
The Borrower may not re-borrow any part of Facility B which is prepaid (other than in accordance with Clause 7.5 (Voluntary prepayment of Loans)).
|
7.7.4
|
The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
7.7.5
|
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
7.7.6
|
If the Facility Agent receives a notice under this Clause 6.3 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.
|
7.7.7
|
If all or part of a Loan is prepaid (other than in accordance with Clause 7.5 (Voluntary prepayment of Loans)), an amount of the Commitments (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this Clause 7.7.7 shall reduce the Commitments of the Lenders rateably.
|
7.7.8
|
If all or part of a Loan is repaid or prepaid directly or indirectly by utilising Financial Indebtedness incurred by any member of the Group, (the Refinanced Loan Portion), the Borrower shall make payment of early settlement fees to the Facility Agent for the account of each Lender (other than a Non-Extending Lender) as follows:
|
7.7.8.1
|
2,50% (two point five zero per cent) of the Refinanced Loan Portion where the prepayment occurs at any time after Financial Close but prior to the first anniversary of Financial Close;
|
7.7.8.2
|
1,50% of the Refinanced Loan Portion where the prepayment occurs at any time on or after the first anniversary of Financial Close but prior to the second anniversary of Financial Close; and
|
7.7.8.3
|
provided that the Initial Repayment Date has been extended to the Extended Repayment Date pursuant to Clause 6.3 (Extension Option), 0,50% (zero point five zero per cent) of the Refinanced Loan Portion where the prepayment occurs at any time on or after the second anniversary of Financial Close but prior to the third anniversary of Financial Close,
|
7.8
|
Right of cancellation in relation to a Defaulting Lender
|
7.8.1
|
If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent 5 (five) Business Days' notice of cancellation of each Available Commitment of that Lender.
|
7.8.2
|
On the notice referred to in Clause 7.8.1 above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.
|
7.8.3
|
The Facility Agent shall as soon as practicable after receipt of a notice referred to in Clause 7.8.1 above, notify all the Lenders.
|
8.
|
INTEREST
|
8.1
|
Calculation of interest
|
8.1.1
|
Applicable Margin; and
|
8.1.2
|
LIBOR.
|
8.2
|
Payment of interest
|
8.3
|
Default interest
|
8.3.1
|
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on that Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to Clause 8.3.2 below, is 2% (two per cent) higher than the rate which would have been payable if that Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of that Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 shall be immediately payable by the Obligor on demand by the Facility Agent.
|
8.3.2
|
If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
8.3.2.1
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
8.3.2.2
|
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2% (two per cent) higher than the rate which would have applied if that Unpaid Sum had not become due.
|
8.3.3
|
Default interest (if unpaid) arising on any Unpaid Sum will be compounded with that Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
8.4
|
Notification of rates of interest
|
8.4.1
|
The Facility Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.
|
8.4.2
|
The Facility Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.
|
9.
|
INTEREST PERIODS
|
9.1
|
Selection of Interest Periods
|
9.1.1
|
Each Loan in respect of Facility A shall have successive Interest Periods of 3 (three) Months.
|
9.1.2
|
The Borrower shall select an Interest Period for a Loan in respect of Facility B, in the Utilisation Request for that Loan.
|
9.1.3
|
Subject to this Clause 9 (Interest Periods) the Borrower may, for a Loan in respect of Facility B, select an Interest Period of three or 6 (six) Months, as specified in the Utilisation Request (or such other period as may be agreed between the Borrower and the Lenders, provided that such other period shall not be longer than 6 (six) Months).
|
9.1.4
|
An Interest Period for a Loan shall not extend beyond the Final Repayment Date.
|
9.1.5
|
The Interest Period for a Loan shall start on the Utilisation Date of that Loan.
|
9.1.6
|
Subject to this Clause 9 (Interest Periods), the Borrower may select a different Interest Period for a Rollover Loan than the Interest Period of the Loan being refinanced by that Rollover Loan in the Utilisation Request delivered for that Rollover Loan.
|
9.1.7
|
If the Borrower fails to select an Interest Period for a Loan in the Utilisation Request for that Loan, the Interest Period for the applicable Loan shall be 3 (three) Months.
|
9.2
|
Non-Business Days
|
9.3
|
Consolidation of Loans
|
10.
|
CHANGES TO THE CALCULATION OF INTEREST
|
10.1
|
Absence of quotations
|
10.2
|
Market disruption
|
10.2.1
|
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender's share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
10.2.1.1
|
the Applicable Margin; and
|
10.2.1.2
|
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
10.2.2
|
In this Agreement, Market Disruption Event means:
|
10.2.2.1
|
at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for the relevant Interest Period; or
|
10.2.2.2
|
before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35% (thirty five per cent) of that Loan) that the cost to it or them of funding its or their participation in that Loan from whatever source it or they may reasonably select would be in excess of LIBOR.
|
10.3
|
Alternative basis of interest or funding
|
10.3.1
|
Without prejudice to the generality of Clause 10.2.1 above, if a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than 30 (thirty) days) with a view to agreeing a substitute basis for determining the rate of interest.
|
10.3.2
|
Any alternative basis agreed pursuant to Clause 10.3.1 above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties for the relevant Interest Period and thereafter for so long as the Market Disruption Event continues to apply.
|
10.4
|
Breakage Costs
|
10.4.1
|
The Borrower shall, within 3 (three) Business Days of demand by a Finance Party, pay to that Finance Party its Breakage Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum. No Breakage Cost shall be payable in relation to the prepayment of a Loan pursuant to the provisions of Clause 7.1 (Illegality) or Clause 7.6 (Right of repayment and cancellation in relation to a single Lender).
|
10.4.2
|
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Breakage Costs for any Interest Period in which they accrue.
|
11.
|
FEES
|
11.1
|
Commitment fee
|
11.1.1
|
The Borrower shall pay to the Facility Agent (for the account of each Lender) a fee computed at the rate of 40% (forty per cent) of the Applicable Margin per annum on each Lender's Available Commitment for the Availability Period and which fee shall accrue on a daily basis.
|
11.1.2
|
The accrued commitment fee is payable on the last day of each successive period of 3 (three) Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
|
11.1.3
|
For the avoidance of doubt, no commitment fees will be payable if Financial Close does not occur.
|
11.2
|
Agency fee
|
11.3
|
Participation fee
|
11.4
|
Extension fee
|
12.
|
TAX GROSS UP AND INDEMNITIES
|
12.1
|
Definitions
|
12.1.1
|
In this Agreement:
|
12.1.1.1
|
Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
|
12.1.1.2
|
Tax Credit means a credit against, relief or remission for, or repayment of any Tax.
|
12.1.1.3
|
Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document other than a FATCA Deduction.
|
12.1.1.4
|
Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).
|
12.1.2
|
Unless a contrary indication appears, in this Clause 12 a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.
|
12.2
|
Tax gross-up
|
12.2.1
|
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
12.2.2
|
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
12.2.3
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
12.2.4
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
12.2.5
|
Within 30 (thirty) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
12.3
|
Tax indemnity
|
12.3.1
|
The Borrower shall (within 3 (three) Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
12.3.2
|
Clause 12.3.1 above shall not apply:
|
12.3.2.1
|
with respect to any Tax assessed on a Finance Party (A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes or (B) under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction, if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
|
12.3.2.2
|
to the extent a loss, liability or cost is compensated for by an increased payment under Clause 12.2 (Tax gross-up).
|
12.3.3
|
A Protected Party making, or intending to make a claim under Clause 12.3.2.1 above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
|
12.3.4
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Facility Agent.
|
12.4
|
Tax Credit
|
12.4.1
|
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
|
12.4.2
|
that Finance Party has obtained and utilised that Tax Credit,
|
12.5
|
Stamp taxes
|
12.6
|
Value added tax
|
12.6.1
|
All amounts set out, or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to Clause 12.6.2 below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).
|
12.6.2
|
If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Subject Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.
|
12.6.3
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
12.7
|
FATCA Information
|
12.7.1
|
Subject to Clause 12.7.3 below, each Party shall, within 10 (ten) Business Days of a reasonable request by another Party:
|
12.7.1.1
|
confirm to that other Party whether it is:
|
12.7.1.1.1
|
a FATCA Exempt Party; or
|
12.7.1.1.2
|
not a FATCA Exempt Party;
|
12.7.1.2
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
12.7.1.3
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
12.7.2
|
If a Party confirms to another Party pursuant to Clause 12.7.1 above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
12.7.3
|
Clause 12.7.1 above shall not oblige any Finance Party to do anything, and Clause 12.7.1.3 above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
12.7.3.1
|
any law or regulation;
|
12.7.3.2
|
any fiduciary duty; or
|
12.7.3.3
|
any duty of confidentiality.
|
12.7.4
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with Clauses 12.7.1.1.1 or 12.7.1.1.2 above (including, for the avoidance of doubt, where Clause 12.7.3 above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
12.8
|
FATCA Deduction
|
12.8.1
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
12.8.2
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower
|
13.
|
INCREASED COSTS
|
13.1
|
Increased costs
|
13.1.1
|
Subject to Clause 13.3 (Exceptions) the Borrower shall, within 3 (three) Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party as a result of (i) the introduction of or any change in (or in the interpretation, administration or application by any authority or by financial institutions generally of) any law or regulation, after the Signature Date, (ii) the interpretation, administration or application by any authority or by financial institutions generally after the Signature Date of any law or regulation introduced prior to the Signature Date or (iii) compliance with any law or regulation made after the Signature Date, and shall include without any limitation, any Basel III Increased Cost (Change in Law).
|
13.1.2
|
In this Agreement Increased Costs means:
|
13.1.2.1
|
a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital (including, without limitation, as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Finance Party);
|
13.1.2.2
|
an additional or increased cost; or
|
13.1.2.3
|
a reduction of any amount due and payable under any Finance Document,
|
13.1.3
|
The terms law and regulation in this Clause 13.1 shall include, without limitation, any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.
|
13.2
|
Increased cost claims
|
13.2.1
|
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
|
13.2.2
|
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3
|
Exceptions
|
13.3.1
|
Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
13.3.1.1
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
13.3.1.2
|
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in Clause 12.3.2 applied); or
|
13.3.1.3
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation or the failure by the relevant Finance Party to make any required filing with any regulatory authority.
|
13.3.2
|
In this Clause 13.3, a reference to a Tax Deduction has the same meaning given to the term in Clause 12.1 (Definitions).
|
14.
|
OTHER INDEMNITIES
|
14.1
|
Currency indemnity
|
14.1.1
|
if any sum due from an Obligor under the Finance Documents (Sum), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (First Currency) in which that Sum is payable into another currency (Second Currency) for the purpose of:
|
14.1.1.1
|
making or filing a claim or proof against that Obligor; or
|
14.1.1.2
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
14.1.2
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
14.2
|
Environmental indemnity
|
14.2.1
|
any breach of any Environmental Law (whether by the Borrower or any other member of the Group);
|
14.2.2
|
an Environmental Claim; or
|
14.2.3
|
any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Environmental Claim and any other enquiry, investigation, subpoena (or similar order) or litigation in respect of any breach of any Environmental Law that has or is reasonably likely to give rise to a liability for any Indemnified Party,
|
14.3
|
Other indemnities
|
14.3.1
|
the occurrence of any Event of Default;
|
14.3.2
|
any information produced or approved by the Borrower/any Obligor/any member of the Group being misleading and/or deceptive in any respect;
|
14.3.3
|
any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement except as may otherwise be ordered by a court of competent jurisdiction in circumstances where the relevant Finance Party was the plaintiff or applicant in such proceedings;
|
14.3.4
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 29 (Sharing among the Finance Parties);
|
14.3.5
|
funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
14.3.6
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
14.4
|
Indemnity to the Facility Agent
|
14.4.1
|
investigating or taking any other action in connection with any event which it reasonably believes is an Event of Default; or
|
14.4.2
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
14.5
|
Default
|
15.
|
MITIGATION BY THE LENDERS
|
15.1
|
Mitigation
|
15.1.1
|
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross up and indemnities) or Clause 13 (Increased costs).
|
15.1.2
|
Clause 15.1.1 above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2
|
Limitation of liability
|
15.2.1
|
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
|
15.2.2
|
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably):
|
15.2.2.1
|
any law or regulation would not allow or permit it; or
|
15.2.2.2
|
to do so might be prejudicial to it.
|
16.
|
COSTS AND EXPENSES
|
16.1
|
Transaction expenses
|
16.1.1
|
this Agreement and any other documents referred to in this Agreement; and
|
16.1.2
|
any other Finance Documents executed after the Signature Date.
|
16.2
|
Amendment costs
|
16.2.1
|
If an Obligor requests an amendment, waiver or consent, the Borrower shall, within 3 (three) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in responding to, evaluating, negotiating or complying with that request or requirement.
|
16.2.2
|
If there is any change in law or any regulation which requires an amendment, waiver or consent under the Finance Documents, the Borrower shall, within 3 (three) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in connection with evaluating, negotiating or complying with any such requirement.
|
16.3
|
Enforcement costs
|
17.
|
GUARANTEE AND INDEMNITY
|
17.1
|
Guarantee and indemnity
|
17.1.1
|
guarantees to each Finance Party punctual performance by the Borrower of its payment obligations under the Finance Documents;
|
17.1.2
|
undertakes in favour of each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
|
17.1.3
|
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability that Finance Party incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by the Borrower under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on the basis of a guarantee.
|
17.2
|
Continuing guarantee
|
17.3
|
Reinstatement
|
17.3.1
|
the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and
|
17.3.2
|
each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.
|
17.4
|
Waiver of defences
|
17.4.1
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
17.4.2
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
17.4.3
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
17.4.4
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
17.4.5
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
17.4.6
|
any unenforceability, illegality, invalidity suspension or cancellation of any obligation of any person under this Agreement or any other Finance Document or any other document or security;
|
17.4.7
|
any insolvency, liquidation, winding-up, business rescue or similar proceedings; or
|
17.4.8
|
this Agreement or any other Finance Document not being executed by or binding against any other Guarantor or any other party.
|
17.5
|
Immediate recourse
|
17.6
|
Appropriations
|
17.6.1
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
|
17.6.2
|
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 17.
|
17.7
|
Deferral of Guarantors' rights
|
17.7.1
|
to be indemnified by an Obligor;
|
17.7.2
|
to claim any contribution from any other guarantor of or provider of security for any Obligor's obligations under the Finance Documents;
|
17.7.3
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
17.7.4
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);
|
17.7.5
|
to exercise any right of set-off against any Obligor; and/or
|
17.7.6
|
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
|
17.8
|
Release of Guarantors' right of contribution
|
17.8.1
|
that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and
|
17.8.2
|
each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.
|
17.9
|
Additional security
|
18.
|
REPRESENTATIONS
|
18.1
|
Status
|
18.1.1
|
It is a corporation, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.
|
18.1.2
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
18.2
|
Binding obligations
|
18.3
|
Non-conflict with other obligations
|
18.3.1
|
any law or regulation applicable to it;
|
18.3.2
|
its constitutional documents; or
|
18.3.3
|
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets and where this applies to its Subsidiaries or its Subsidiaries’ assets only, in a manner which would have a Material Adverse Effect.
|
18.4
|
Power and authority
|
18.5
|
Benefit
|
18.6
|
Validity and admissibility in evidence
|
18.6.1
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;
|
18.6.2
|
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation;
|
18.6.3
|
for it to carry on its business; and
|
18.6.4
|
for its Subsidiaries to carry on their respective businesses, but only to the extent such are material Authorisations,
|
18.7
|
Governing law and enforcement
|
18.7.1
|
the choice of South African law as the governing law of the Finance Documents expressed to be governed by South African law will be recognised and enforced in its jurisdiction of incorporation;
|
18.7.2
|
any judgment obtained in South Africa in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation; and
|
18.7.3
|
in respect of an Obligor incorporated in Papua New Guinea, any judgment obtained in Papua New Guinea in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
|
18.8
|
Deduction of Tax
|
18.9
|
No filing or stamp taxes
|
18.10
|
No default
|
18.10.1
|
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
18.10.2
|
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which might have a Material Adverse Effect.
|
18.11
|
No misleading information
|
18.11.1
|
All information supplied by the Borrower, any Obligor or any other member of the Group to the Facility Agent or any other Finance Party is true, complete and accurate in all material respects as at the date it was given and is not misleading in any respect.
|
18.11.2
|
It has not knowingly withheld information which, if disclosed, would reasonably be expected to materially and adversely affect the decisions of the Lenders to provide finance to the Borrower.
|
18.12
|
Financial statements
|
18.12.1
|
Its Original Financial Statements were prepared in accordance with IFRS consistently applied.
|
18.12.2
|
Its Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Borrower) during the relevant Financial Year.
|
18.12.3
|
The most recent financial statements delivered pursuant to Clause 19.1 (Financial statements) have been prepared in accordance with IFRS as applied to the Original Financial Statements and give a true and fair view of (if audited) or fairly present (if unaudited) the Group’s consolidated financial condition and each Obligor’s financial condition as at the end of, and consolidated results of operations for, the period to which they relate.
|
18.12.4
|
Since the date of the Original Financial Statements there has been no material adverse change in the business, assets or financial condition of the Group.
|
18.13
|
Insurance
|
18.14
|
Assets and Intellectual Property Rights
|
18.14.1
|
It has good title to or valid leases or licenses over all of the assets necessary and material to carry on its business.
|
18.14.2
|
As far as it is aware, it will not nor will any of its Subsidiaries, in carrying on its business, infringe any Intellectual Property Rights of any third party in any way which is likely to have a Material Adverse Effect.
|
18.15
|
Security Interest
|
18.15.1
|
Subject in each case to any registration specifically required by law, and subject to any Legal Reservations:
|
18.15.1.1
|
each Security Document to which it is a party validly creates the security interest which is expressed to be created by that Security Document; and
|
18.15.1.2
|
the Transaction Security created by each Security Document to which it is a party :
|
18.15.1.2.1
|
ranks and will rank, in respect of all other security interests granted or to be granted by any Obligor in favour of any person other than the Finance Parties, in the order of priority it is expressed to rank in the relevant Security Document; and
|
18.15.1.2.2
|
is not subject to avoidance in the event of any winding-up, dissolution or administration involving any Obligor.
|
18.15.2
|
It is the sole, absolute, legal and, where applicable, beneficial owner of all assets made subject to the Transaction Security created by each Security Document to which it is a party.
|
18.16
|
Pari passu ranking
|
18.17
|
No proceedings pending or threatened
|
18.18
|
Insolvency and Financial Distress
|
18.18.1
|
No:
|
18.18.1.1
|
corporate action, legal proceeding or other procedure or step described in Clause 24.7 (Insolvency and business rescue proceedings); or
|
18.18.1.2
|
creditors' process described in Clause 24.8 (Creditor’s process),
|
18.18.2
|
Neither it nor any member of the Group is Financially Distressed (as defined in section 128 of the Companies Act), or, given similar meaning under any applicable company legislation and regulations in Australia or Papua New Guinea).
|
18.18.3
|
The representations and warranties set out in this Clause 18.18 do not apply to the members of the Group listed Schedule 13 (Companies to be wound up/reorganised).
|
18.19
|
No breach of laws
|
18.19.1
|
It has not (and to the best of its knowledge and belief (having made due and careful enquiry) none of its Subsidiaries has) breached any law or regulation which breach has or might reasonably be expected to have a Material Adverse Effect.
|
18.19.2
|
No labour disputes or industrial action are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against any member of the Group which have or might reasonably be expected to have a Material Adverse Effect.
|
18.20
|
Environmental laws
|
18.20.1
|
Save to the extent disclosed Schedule 10 (Disclosed Potential Environmental Claim), each member of the Group is in compliance with Clause 21.3 (Environmental compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or might reasonably be expected to have a Material Adverse Effect.
|
18.20.2
|
Save to the extent disclosed Schedule 10 (Disclosed Potential Environmental Claim), no Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against any member of the Group where that claim has or might reasonably be expected, if determined against that member of the Group, to have a Material Adverse Effect.
|
18.21
|
Authorised signatures
|
18.22
|
No immunity
|
18.23
|
Sanctions and anti-corruption
|
18.23.1
|
Neither the Borrower, nor any other member of the Group:
|
18.23.1.1
|
is a Sanctioned Entity and nor, to the knowledge of the Borrower, any other member of the Group or any of their directors, officers or employees, is any agent of the Borrower or any other member of the Group that will act in any capacity in connection with or benefit from the credit facility established hereby, a Sanctioned Entity;
|
18.23.1.2
|
is using, nor will use the proceeds of any Facility for the purpose of financing or making funds available directly or indirectly to any Sanctioned Entity, to the extent such financing or provision of funds would currently be prohibited by Anti-Corruption Laws or applicable Sanctions or would otherwise cause any person to be in breach of Anti-Corruption Laws or Sanctions; or
|
18.23.1.3
|
is contributing, nor will contribute or otherwise make available the proceeds of any Facility to any other person or entity for the purpose of financing the activities of any Sanctioned Entity, to the extent such contribution or provision of proceeds would currently be prohibited by Sanctions or would otherwise cause any person to be in breach of Sanctions.
|
18.23.2
|
None of the Borrower, any member of the Group, any director or officer of the Borrower or any other member of the Group:
|
18.23.2.1
|
has been or is targeted under any Sanctions, or has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority; or
|
18.23.2.2
|
has violated or is violating any applicable Sanctions.
|
18.23.3
|
The Borrower has and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its and its Subsidiaries respective employees and agents are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Borrower being designated as a Sanctioned Entity.
|
18.23.4
|
None of the Borrower, any member of the Group, any director or officer, or any employee, agent, or Affiliate, of the Borrower or any member of the Group:
|
18.23.4.1
|
is a person that is, or is owned or controlled by persons that are, the subject of any Sanctions; or
|
18.23.4.2
|
is located, organised or resident in a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
|
18.24
|
Guarantors
|
18.24.1
|
The Borrower and each other Material Group Company is or will be a Guarantor on the Signature Date and on Financial Close.
|
18.24.2
|
The aggregate of earnings before interest, tax, depreciation and amortisation (calculated on the same basis as EBITDA), the aggregate gross assets and the aggregate turnover of the Obligors on Financial Close (calculated on an unconsolidated basis and excluding all intra-Group items) is equal to or exceeds 85% (eighty five per cent) of EBITDA, the consolidated gross assets and the consolidated turnover of the Group.
|
18.25
|
Repetition
|
18.25.1
|
Financial Close, the date of each Utilisation Request and the first day of each Interest Period;
|
18.25.2
|
the date of the Extension Request and the date of each Extension Acceptance Notice; and
|
18.25.3
|
in the case of an Additional Guarantor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Guarantor.
|
19.
|
INFORMATION UNDERTAKINGS
|
19.1
|
Financial statements
|
19.1.1
|
as soon as the same become available, but in any event within 120 (one hundred and twenty) days after the end of each of its Financial Years, its audited consolidated financial statements for that Financial Year;
|
19.1.2
|
as soon as the same became available, but in any event within 150 (one hundred and fifty) days after the end of each of its Financial Years, the audited financial statements of each Obligor for that Financial Year; and
|
19.1.3
|
as soon as the same become available, but in any event within 60 (sixty) days after the end of each half of each of its Financial Years, its consolidated financial statements for that financial half year.
|
19.2
|
Compliance Certificate
|
19.2.1
|
The Borrower shall supply to the Facility Agent, with each set of financial statements delivered pursuant to Clause 19.1 (Financial statements), a Compliance Certificate:
|
19.2.1.1
|
setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) as at the date as at which those financial statements were drawn up;
|
19.2.1.2
|
certifying whether there has been any change in the members of the Group which are Material Group Companies as at the date as at which those financial statements were drawn up;
|
19.2.1.3
|
confirming compliance with the requirements of Clause 21.19 (Guarantor coverage) as at the date as at which those financial statements were drawn up together with computations setting out such compliance in reasonable detail; and
|
19.2.1.4
|
confirming that no Default has occurred and is continuing or, if a Default has occurred, what Default has occurred and the steps being taken to remedy that Default.
|
19.2.2
|
Each Compliance Certificate shall be signed by the chief financial officer or the financial director of the Borrower.
|
19.2.3
|
In the event that a set of financial statements delivered pursuant to Clauses 19.1.1 and 19.1.2 is restated, the Borrower must submit a new Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) as at the date at which those financial statements were restated.
|
19.3
|
Requirements as to financial statements
|
19.3.1
|
Each set of financial statements delivered by the Borrower pursuant to Clause 19.1 (Financial statements) shall be certified by a director of the relevant company as giving a true and fair view if audited, or fairly representing, if unaudited, its financial condition as at the date as at which those financial statements were drawn up.
|
19.3.2
|
The Borrower shall procure that each set of consolidated financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using IFRS.
|
19.3.3
|
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using IFRS (to the extent IFRS was applied), accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in IFRS (to the extent IFRS was applied), the accounting practices or reference periods and its Auditors (or, if appropriate, the Auditors of the Obligor) deliver to the Facility Agent:
|
19.3.3.1
|
a description of any change necessary for those financial statements to reflect the IFRS (to the extent IFRS was applied), accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
|
19.3.3.2
|
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
|
19.3.4
|
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
|
19.4
|
Financial year-end
|
19.5
|
Information: miscellaneous
|
19.5.1
|
all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
|
19.5.2
|
promptly upon becoming aware of them, details and copies of any material and substantive changes (excluding for the avoidance of doubt, administrative or procedural changes) proposed to or made to its constitutional documents or the constitutional documents of it or any other Obligor, including the filing of any Memorandum of Incorporation under the Companies Act or under any applicable company legislation and regulations in Australia or Papua New Guinea;
|
19.5.3
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of becoming aware of them, the details of any litigation, arbitration, administrative proceedings, liquidation applications, winding up applications or business rescue applications which are current, threatened or pending against it or any other member of the Group, and which may, if adversely determined, have a Material Adverse Effect;
|
19.5.4
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of being requested by the Facility Agent, such further information regarding the financial condition, business and operations of it or any other member of the Group as any Finance Party (through the Facility Agent) may reasonably request in order to assess the Borrower’s or any other Obligor’s ability to perform its obligations under the Finance Documents;
|
19.5.5
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of it becoming aware of any transfer or issue or proposed transfer or issue of shares of any member of the Group or other corporate action or proposed corporate action that would constitute a Fundamental Control Event or Fundamental Disposal Event;
|
19.5.6
|
regular updates (at intervals of no less than 6 (six) months or sooner as and when such information becomes available) on the progress of applications for all Environmental Permits and Authorisations required for its operations or proposed operations in Papua New Guinea;
|
19.5.7
|
promptly; notice of any suspension or cancellation of any Authorisation relating to its operations where given by the relevant Minister under the Mineral and Petroleum Resources Development Act, 2002 or other Mining Law (other than temporary stoppages under the Mine Health and Safety Act, 1996) or similar legislation in Papua New Guinea;
|
19.5.8
|
such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any other Finance Party) in order for the Facility Agent and each other Finance Party to demonstrate compliance with the Equator Principles in respect of their lending or any other financial exposure to the Borrower under the Finance Documents;
|
19.5.9
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of (but in any event prior to any notices being given by an authorised signatory) any change in authorised signatories of it or any other Obligor signed by a director or company secretary of it or such other Obligor (as the case may be) accompanied by specimen signatures of any new authorised signatories;
|
19.5.10
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of request by the Facility Agent such additional information or documentation as the Facility Agent may require in order to verify that any signatory referred to in Clause 19.5.9 above has been duly authorised; and
|
19.5.11
|
as soon as reasonably practicable, but in any event within 1 (one) Month after the end of each of its Financial Years, its annual business plan as approved by the board of directors of the Borrower.
|
19.6
|
Notification of Default
|
19.6.1
|
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
19.6.2
|
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
19.7
|
Use of websites
|
19.7.1
|
The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (Website Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Borrower and the Facility Agent (Designated Website) if:
|
19.7.1.1
|
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
19.7.1.2
|
both the Borrower and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
19.7.1.3
|
the information is in a format previously agreed between the Borrower and the Facility Agent.
|
19.7.2
|
If any Lender (Paper Form Lender) does not agree to the delivery of information electronically then the Facility Agent shall notify the Borrower accordingly and the Borrower shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Borrower shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
|
19.7.3
|
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrower and the Facility Agent.
|
19.7.4
|
The Borrower shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
19.7.4.1
|
the Designated Website cannot be accessed due to technical failure;
|
19.7.4.2
|
the password specifications for the Designated Website change;
|
19.7.4.3
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
19.7.4.4
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
19.7.4.5
|
the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
19.7.5
|
If the Borrower notifies the Facility Agent under Clause 19.7.4.1 or Clause 19.7.4.5 above, all information to be provided by the Borrower under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
|
19.7.6
|
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Borrower shall comply with any such request within 10 (ten) Business Days.
|
19.8
|
Know your customer checks
|
19.8.1
|
If:
|
19.8.1.1
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signature Date;
|
19.8.1.2
|
any change in the status of an Obligor after the Signature Date; or
|
19.8.1.3
|
a proposed Transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such Transfer,
|
19.8.2
|
Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
19.8.3
|
The Borrower shall, by not less than 10 (ten) Business Days' prior written notice to the Facility Agent in respect of any Subsidiary, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Guarantor pursuant to Clause 26 (Changes to the Obligors).
|
19.8.4
|
Following the giving of any notice pursuant to Clause 19.8.3 above, if the accession of such Additional Guarantor obliges the Facility Agent or any Lender to comply with know your customer or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrower shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Facility Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Guarantor.
|
20.
|
FINANCIAL COVENANTS
|
20.1
|
Financial Covenants
|
20.1.1
|
the Interest Cover Ratio shall not be less than 5 times in respect of any Ratio Test Period;
|
20.1.2
|
the Tangible Net Worth to Total Net Debt shall not be less than 4 times at any time; and
|
20.1.3
|
the Leverage Ratio shall be less than 2,5 times for any Ratio Test Date.
|
20.2
|
Financial testing
|
20.2.1
|
subject to the remaining provisions of this Clause 20.2, the financial covenants shall be calculated in accordance with IFRS and tested by reference to each of the financial statements delivered pursuant to Clause 19.1 (Financial statements) and/or such other information required in relation to certain of the components of the financial covenants where required and/or each Compliance Certificate delivered pursuant to Clause 19.2 (Compliance Certificate); and
|
20.2.2
|
the Borrower shall deliver a reconciliation between the financial statements delivered pursuant to Clause 19.1 (Financial Statements) and such financial statements as adjusted so as to exclude Financial Indebtedness in respect of a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease and calculate the financial covenants pursuant to this Clause.
|
21.
|
GENERAL UNDERTAKINGS
|
21.1
|
Authorisations
|
21.1.1
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
21.1.2
|
supply certified copies to the Facility Agent on request of,
|
21.2
|
Compliance with laws
|
21.2.1
|
Each Obligor shall (and the Borrower shall ensure that each other member of the Group will) comply in all respects with all laws (including in connection with any Anti-Corruption Laws and any Sanctions) to which it may be subject where failure to do so has or might reasonably be expected to have a Material Adverse Effect.
|
21.2.2
|
The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
|
21.3
|
Environmental compliance
|
21.3.1
|
comply with all Environmental Law;
|
21.3.2
|
obtain, maintain and ensure compliance with all requisite Environmental Permits;
|
21.3.3
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
21.4
|
Environmental Claims
|
21.4.1
|
any Environmental Claim against it or any other member of the Group which is current, pending or threatened; and
|
21.4.2
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against it or any other member of the Group.
|
21.5
|
Insurance
|
21.6
|
Negative pledge
|
21.6.1
|
No Obligor shall (and the Borrower shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets and/or shares.
|
21.6.2
|
No Obligor shall (and the Borrower shall ensure that no other member of the Group will):
|
21.6.2.1
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
|
21.6.2.2
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
21.6.2.3
|
enter into or permit to subsist any title retention arrangement;
|
21.6.2.4
|
enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
21.6.2.5
|
enter into or permit to subsist any other preferential arrangement having a similar effect,
|
21.6.3
|
Clauses 21.6.1 and 21.6.2 above do not apply to any Permitted Security.
|
21.7
|
Disposals
|
21.7.1
|
No Obligor shall (and the Borrower shall ensure that no other member of the Group will), enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.
|
21.7.2
|
Clause 21.7.1 above does not apply to any sale, lease, transfer or other disposal:
|
21.7.2.1
|
made in the ordinary course of business of the disposing entity;
|
21.7.2.2
|
of assets in exchange for other assets comparable or superior as to type, value and quality and for a similar purpose;
|
21.7.2.3
|
made between Material Obligors except to the extent it involves the transfer of any shares or other assets which form part of the Transaction Security without the prior written consent of the Facility Agent;
|
21.7.2.4
|
of Cash or Cash Equivalent Investments not prohibited by the Finance Documents;
|
21.7.2.5
|
of obsolete or redundant assets;
|
21.7.2.6
|
made pursuant to the Buy-In Option;
|
21.7.2.7
|
made pursuant to a Permitted Security;
|
21.7.2.8
|
of shares in any member of the Group listed Schedule 13 (Companies to be wound up/reorganised) in order to bring about a solvent corporate restructure or winding up of that member of the Group;
|
21.7.2.9
|
funded by way of a Permitted Loan as set out in Clause 1.1.129.9 and 1.1.129.10;
|
21.7.2.10
|
of any other assets (including any Material Assets) on arm’s length terms, for full market value and for cash consideration which is not deferred beyond a period of 1 (one) year from the date of effective transfer or conditional and subject always to the Borrower's obligations under Clause 7.3 (Material Disposal Proceeds); or
|
21.7.2.11
|
made with the prior written approval of the Facility Agent (acting on behalf of the Lenders).
|
21.8
|
Change of business
|
21.9
|
Loans or credit
|
21.9.1
|
Except as permitted under Clause 21.9.2 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) be a creditor in respect of any Financial Indebtedness.
|
21.9.2
|
Clause 21.9.1 above does not apply to:
|
21.9.2.1
|
such arrangements existing as at the Signature Date and disclosed in the Original Financial Statements;
|
21.9.2.2
|
Permitted Loans;
|
21.9.2.3
|
any guarantee or indemnity given in respect of Permitted Indebtedness; or
|
21.9.2.4
|
Financial Indebtedness owed by one Obligor to another Obligor.
|
21.10
|
No Guarantees or indemnities
|
21.10.1
|
Except as permitted under Clause 21.10.2 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.
|
21.10.2
|
Clause 21.10.1 above does not apply to a guarantee or indemnity:
|
21.10.2.1
|
falling within the definition of Financial Indebtedness and which constitutes Permitted Indebtedness; or
|
21.10.2.2
|
which constitutes a Permitted Guarantee.
|
21.11
|
Financial Indebtedness
|
21.11.1
|
Except as permitted under Clause 21.11.3 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) incur or allow to remain outstanding any Financial Indebtedness.
|
21.11.2
|
None of Morobe Consolidated Goldfields Limited, Wafi Mining Limited or Morobe Exploration Limited shall incur or allow to remain outstanding any Financial Indebtedness other than:
|
21.11.2.1
|
in an aggregate amount at any time not exceeding USD30 000 000 (thirty million United States Dollars) or its equivalent in any other currency or currencies (when aggregated across all three abovementioned entities);
|
21.11.2.2
|
in respect of Permitted Loans where Morobe Consolidated Goldfields Limited, Wafi Mining Limited or Morobe Exploration Limited is the borrower and another member of the Group the lender and the ultimate source of such funds is not directly or indirectly derived from Financial Indebtedness incurred by a member of the Group towards a person other than the Lenders.
|
21.11.3
|
Clause 21.11.1 above does not apply to Financial Indebtedness which is Permitted Indebtedness.
|
21.12
|
Auditors
|
21.13
|
Sanctions and anti-corruption
|
21.13.1
|
Each Obligor (and each Obligor shall ensure that each other member of the Group) shall maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
|
21.13.2
|
Each Obligor (and each Obligor shall ensure that each other member of the Group) shall not use (or otherwise make available) the proceeds of any Loan (i) for the purpose of financing directly or indirectly the activities of any Sanctioned Entity, to the extent such contribution or provision of proceeds would at that time be prohibited by Sanctions or would otherwise cause any person to be in breach of Sanctions, (ii) in furtherance of an offer, payment, promise to pay or authorisation of the payment or giving of money, or anything else of value, to any person in violation of any Anti-Corruption Laws or (iii) in any manner that would result in the violation of any Sanctions applicable to any party to this Agreement.
|
21.13.3
|
Each Obligor (and each Obligor will ensure that each other member of the Group) shall ensure that appropriate controls and safeguards are in place designed to prevent any proceeds of any Loan from being used contrary to Clause 21.13.2 above.
|
21.14
|
Distributions
|
21.14.1
|
the Tangible Net Worth to Total Net Debt is less than 6 times, or would, following such Distribution, be less than 6 times; or
|
21.14.2
|
an Event of Default is continuing at the time.
|
21.15
|
Acquisitions
|
21.15.1
|
No Obligor shall (and the Borrower shall ensure that no other member of the Group shall) acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them) in excess of:
|
21.15.1.1
|
in relation to South African acquisitions, ZAR1 000 000 000 (one billion Rand) (or its equivalent in any other currency) in aggregate prior to the Final Repayment Date; or
|
21.15.1.2
|
in relation to acquisitions anywhere outside of South Africa, USD80 000 000 (eighty million United States Dollars) (or its equivalent in any other currency) in aggregate prior to the Final Repayment Date.
|
21.15.2
|
Clause 21.15.1 above does not apply to:
|
21.15.2.1
|
an acquisition of securities or investments which are Cash Equivalent Investments;
|
21.15.2.2
|
an acquisition by a Material Obligor of an asset, business or undertaking from another Obligor other than shares or assets which form part of the Transaction Security, without the prior written consent of the Facility Agent;
|
21.15.2.3
|
an acquisition of shares or securities pursuant to a Permitted Share Issue;
|
21.15.2.4
|
any acquisition financed by issuing shares of the Borrower as consideration for the purchase price of the acquired asset; and
|
21.15.2.5
|
an acquisition made with the prior written approval of the Facility Agent.
|
21.16
|
Gold Price Derivative Transactions
|
21.16.1
|
a maximum amount of up to the lower of:
|
21.16.1.1
|
30% (thirty per cent) of its total annual gold production as per its most recent Financial Year, per annum; and
|
21.16.1.2
|
3 500kg of gold per quarter;
|
21.16.2
|
a maximum period of 24 (twenty four) Months from the date of entering into each gold price derivative transaction; and
|
21.16.3
|
a minimum price of:
|
21.16.3.1
|
ZAR550 000 (five hundred and fifty thousand Rand) per kilogram of gold for ZAR gold price derivative transactions; or
|
21.16.3.2
|
USD1 200 (one thousand two hundred United States Dollars) per ounce of gold for USD gold price derivative transactions.
|
21.17
|
Further assurance
|
21.17.1
|
Each Obligor shall (and the Borrower shall procure that each member of the Group will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Facility Agent may reasonably specify (and in such form as the Facility Agent may reasonably require in favour of the Finance Parties and/or the Secured Parties):
|
21.17.1.1
|
to provide more effective Security over any property and assets the subject of the Transaction Security;
|
21.17.1.2
|
to perfect the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Finance Parties provided by or pursuant to the Finance Documents or by law; and/or
|
21.17.1.3
|
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.
|
21.17.2
|
Each Obligor shall (and the Borrower shall procure that each member of the Group shall) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Finance Parties and/or the Secured Parties by or pursuant to the Finance Documents.
|
21.18
|
Share capital
|
21.18.1
|
issue any shares except pursuant to a Permitted Share Issue;
|
21.18.2
|
alter any rights attaching to its issued shares in existence at the Signature Date without the prior written consent of the Facility Agent;
|
21.18.3
|
take any action to convert its shares into uncertificated shares without the prior written consent of the Facility Agent;
|
21.18.4
|
repurchase, cancel, redeem, reduce or otherwise acquire any of its share capital or grant or acquire any option, warrant or other right over its share capital without the prior written consent of the Facility Agent;
|
21.18.5
|
permit any sale or other transfer of its shares (other than as permitted under this Agreement) without the prior written consent of the Facility Agent.
|
21.19
|
Guarantor coverage
|
21.19.1
|
Each Obligor shall ensure that:
|
21.19.1.1
|
each Material Group Company as at Financial Close is a Guarantor; and
|
21.19.1.2
|
any member of the Group which becomes a Material Group Company after Financial Close becomes a Guarantor in accordance with Clause 26.2 (Additional Guarantors).
|
21.19.2
|
Each Obligor shall ensure that the aggregate of earnings before interest, tax, depreciation and amortisation (calculated on the same basis as EBITDA) and the aggregate gross assets and the aggregate turnover of the Obligors (calculated on an unconsolidated basis and excluding all intra-Group items) is not less than 85% (eighty five per cent) of EBITDA, the consolidated gross assets and turnover of the Group (the Guarantor Coverage Test), provided that in relation to an acquisition of an entity permitted under Clause 21.15 (Acquisitions) (an Acquired Entity) it reasonably appears that the Guarantor Coverage Test will not be satisfied immediately following such acquisition, such Acquired Entity, shall promptly, but by no later than the date falling 30 days after date on which it becomes a member of the Group become a Guarantor in accordance with Clause 26.2 (Additional Guarantors) to ensure that the Guarantor Coverage Test is satisfied (calculated as if such Acquired Entity had been a Guarantor for the purposes of the relevant test and provided that, if the Guarantor Coverage Test is satisfied within such time period, no Default, Event of Default or other breach of the Finance Documents shall arise in respect thereof).
|
21.20
|
Ownership
|
22.
|
APPLICATION OF SANCTIONS PROVISIONS TO THE LENDERS
|
22.1
|
A Lender shall notify the Facility Agent if the representations and undertakings under Clause 18.23 (Sanctions and anti-corruption) and 21.13 (Sanctions and anti-corruption) (together the Sanctions Provisions) result in a violation of or conflict with any anti-boycott laws or regulations applicable to that Lender (Anti-Boycott Regulations).
|
22.2
|
In relation to each Lender that notifies the Facility Agent pursuant to Clause 22.1 above (each a Restricted Lender), the Sanctions Provisions shall apply only for the benefit of that Restricted Lender to the extent that it would not result in any violation of, conflict with or liability under any Anti-Boycott Regulations.
|
22.3
|
In connection with any amendment, waiver, determination or direction relating to any part of Sanctions Provision of which a Restricted Lender does not have the benefit pursuant to Clause 22.2 above, the Commitments of that Restricted Lender will be excluded for the purpose of determining whether the consent of the Majority Lenders has been obtained or whether the determination or direction of the Majority Lenders has been made.
|
23.
|
ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS
|
23.1
|
To the extent that the Finance Documents provide support, through a guarantee or otherwise, for Hedging Documents or any other agreement or instrument that is a QFC (such support, QFC Credit Support and each such QFC a Supported QFC), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the U.S. Special Resolution Regimes) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Finance Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States:
|
23.1.1
|
in the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
|
23.1.2
|
For the purpose of this Clause 23:
|
23.1.2.1
|
BHC Act Affiliate of a party means an “affiliate” (as that term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party;
|
23.1.2.2
|
Covered Entity means any of the following:
|
23.1.2.2.1
|
a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
|
23.1.2.2.2
|
a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
|
23.1.2.2.3
|
a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b);
|
23.1.2.3
|
Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and
|
23.1.2.4
|
QFC has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
|
24.
|
EVENTS OF DEFAULT
|
24.1
|
Non-payment
|
24.1.1
|
its failure to pay is caused by:
|
24.1.1.1
|
administrative or technical error; or
|
24.1.1.2
|
a Disruption Event; and
|
24.1.1.3
|
payment is made within 2 (two) Business Days of its due date.
|
24.2
|
Financial covenants
|
24.3
|
Other obligations
|
24.3.1
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.1 (Non-payment) and Clause 24.2 (Financial covenants)).
|
24.3.2
|
No Event of Default under Clause 24.3.1 above will occur if the failure to comply is capable of remedy and is remedied within 15 (fifteen) Business Days of the earlier of (A) the Facility Agent giving notice to the Borrower and (B) the board of directors of the Borrower becoming aware of the failure to comply.
|
24.4
|
Misrepresentation
|
24.5
|
Cross default
|
24.5.1
|
Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period or in respect of Financial Indebtedness between members of the Group in respect of Permitted Loans within any relevant grace period agreed to by the relevant members of the Group.
|
24.5.2
|
Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable, or becomes capable of being declared due and payable, prior to its specified maturity as a result of an event of default (however described).
|
24.5.3
|
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).
|
24.5.4
|
No Event of Default will occur under this Clause 24.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within Clauses 24.5.1 to 24.5.3 above is less than ZAR10 000 000 (ten million Rand) (or its equivalent in any other currency or currencies).
|
24.6
|
Insolvency
|
24.6.1
|
A member of the Group is or is deemed by any authority or legislation to be unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
24.6.2
|
A member of the Group is or is deemed by any authority or legislation to be Financially Distressed (as defined in section 128 of the Companies Act, or, given similar meaning under any applicable company legislation and regulations in Australia or Papua New Guinea).
|
24.6.3
|
The value of the assets of any member of the Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
24.6.4
|
A moratorium is declared in respect of any indebtedness of any member of the Group.
|
24.7
|
Insolvency and business rescue proceedings
|
24.7.1
|
Other than in relation to the members of the Group listed Schedule 13 (Companies to be wound up/reorganised) any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
24.7.1.1
|
the suspension of payments, a moratorium of any indebtedness, liquidation, winding-up, dissolution, administration, business rescue or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor;
|
24.7.1.2
|
the deregistration of any member of the Group under the Corporations Act 2011 (Cth);
|
24.7.1.3
|
a composition, compromise, assignment or arrangement with any creditor of any member of the Group;
|
24.7.1.4
|
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrative receiver, administrator, compulsory manager, business rescue practitioner or other similar officer in respect of any member of the Group or any of its assets; or
|
24.7.1.5
|
enforcement of any Security over any assets of any member of the Group,
|
24.7.2
|
Other than in relation to the members of the Group listed Schedule 13 (Companies to be wound up/reorganised) a meeting is proposed or convened by the directors of any member of the Group, a resolution is proposed or passed, application is made or an order is applied for or granted, to authorise the entry into or implementation of any business rescue proceedings (or any similar proceedings) in respect of any member of the Group or any analogous procedure or step is taken in any jurisdiction.
|
24.8
|
Creditors' process
|
24.9
|
Unlawfulness
|
24.10
|
Cessation of business
|
24.11
|
Audit qualification
|
24.12
|
Repudiation
|
24.13
|
Governmental intervention
|
24.13.1
|
the management of any Obligor is wholly or substantially replaced or the authority of any Obligor in the conduct of its business is wholly or substantially curtailed;
|
24.13.2
|
all or a majority of the issued shares of any Obligor, or the whole or any part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired; or
|
24.13.3
|
the management of any joint venture (including any Joint Venture) in respect of which an Obligor is a joint venture participant is wholly or substantially replaced or the authority of the joint venture participants in the conduct of the business of the joint venture (including any Joint Venture) is wholly or substantially curtailed.
|
24.14
|
Failure to maintain Authorisations
|
24.14.1
|
to enable any Obligor to lawfully conduct its business, or enter into, exercise its rights under and perform the obligations expressed to be assumed by it in any Finance Document to which it is a party;
|
24.14.2
|
to ensure that the obligations expressed to be assumed by any Obligor in any Finance Document to which it is a party are legal, valid and binding; or
|
24.14.3
|
to make any Finance Document to which any Obligor is a party admissible in evidence,
|
24.15
|
Material Adverse Effect
|
24.16
|
Material litigation
|
24.17
|
Acceleration
|
24.17.1
|
cancel the Total Commitments whereupon they shall immediately be cancelled;
|
24.17.2
|
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
|
24.17.3
|
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Facility Agent on the instructions of the Majority Lenders; and/or
|
24.17.4
|
require the termination of any Gold Price Derivative Transaction(s) entered into under any Hedging Document.
|
25.
|
CHANGES TO THE LENDERS
|
25.1
|
Cessions and delegations by the Lenders
|
25.2
|
Conditions of Transfer
|
25.2.1
|
The consent of the Borrower is required for a Transfer unless the transfer is:
|
25.2.1.1
|
to any Permitted Transferee;
|
25.2.1.2
|
to any other Existing Lender or an Affiliates of an Existing Lender; or
|
25.2.1.3
|
to any other prospective transferee whilst an Event of Default is continuing.
|
25.2.2
|
Where the consent of the Borrower to a Transfer is required in terms of Clause 25.2.1 above, that consent must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent 5 (five) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
25.2.3
|
A Transfer will only be effective if the procedure set out in Clause 25.4 (Procedure for Transfer) is complied with.
|
25.2.4
|
If:
|
25.2.4.1
|
a Lender Transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
25.2.4.2
|
as a result of circumstances existing at the date the Transfer or change occurs, an Obligor would be obliged to make a payment to the new Lender or Lender acting through its new Facility Office under Clause 12 (Tax gross up and indemnities) or Clause 13 (Increased costs),
|
25.2.5
|
Each new Lender, by executing the relevant Transfer Certificate confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Transfer becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
25.3
|
Limitation of responsibility of Existing Lenders
|
25.3.1
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a new Lender for:
|
25.3.1.1
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
25.3.1.2
|
the financial condition of any Obligor;
|
25.3.1.3
|
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
25.3.1.4
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
25.3.2
|
Each new Lender confirms to the Existing Lender and the other Finance Parties that it:
|
25.3.2.1
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
|
25.3.2.2
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
25.3.3
|
Nothing in any Finance Document obliges an Existing Lender to:
|
25.3.3.1
|
accept a re-Transfer from a new Lender of any of the rights and obligations Transferred under this Clause 25; or
|
25.3.3.2
|
support any losses directly or indirectly incurred by the new Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
25.4
|
Procedure for Transfer
|
25.4.1
|
Subject to the conditions set out in Clause 25.2 (Conditions of Transfer) a Transfer is effected in accordance with Clause 25.4.2 below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the new Lender. The Facility Agent shall, subject to Clause 25.4.2 below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
25.4.2
|
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the new Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations that apply to it (if any) in relation to the transfer to such new Lender.
|
25.4.3
|
On the Transfer Date:
|
25.4.3.1
|
the Transfer shall take effect under the Finance Documents so that the rights and/or obligations which are the subject of the Transfer shall be ceded and delegated by the Existing Lender to the new Lender (Transferred Rights and Obligations);
|
25.4.3.2
|
each of the Obligors shall perform their obligations and exercise their rights in relation to the Transferred Rights and Obligations in favour of or against the new Lender, as the case may be;
|
25.4.3.3
|
the Facility Agent, the Global Coordinators, the Bookruners, the new Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the new Lender been an Original Lender with the rights and/or obligations comprising the Transferred Rights and Obligations;
|
25.4.3.4
|
the Existing Lender shall be released from further obligations to each other Lender under the Finance Documents to the extent of the Transferred Rights and Obligations; and
|
25.4.3.5
|
the new Lender shall become a Party as a Lender.
|
25.5
|
Copy of Transfer Certificate to Borrower
|
26.
|
CHANGES TO THE OBLIGORS
|
26.1
|
Cessions and delegations by Obligors
|
26.2
|
Additional Guarantors
|
26.2.1
|
Subject to compliance with the provisions of Clauses 19.8.3 and 19.8.4 above, the Borrower may cause any of its Subsidiaries to become an Additional Guarantor and that Subsidiary shall become an Additional Guarantor.
|
26.2.2
|
The Borrower shall procure that any other member of the Group which is a Material Group Company shall become an Additional Guarantor, as soon as possible after becoming a Material Group Company, but in any event within 30 (thirty) days of the delivery of the relevant Compliance Certificate evidencing that it has become a Material Group Company.
|
26.2.3
|
A member of the Group shall become an Additional Guarantor if:
|
26.2.3.1
|
the Borrower delivers to the Facility Agent a duly completed and executed Accession Letter; and
|
26.2.3.2
|
the Facility Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Facility Agent.
|
26.2.4
|
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part II as applicable) of Schedule 2 (Conditions precedent).
|
26.3
|
Repetition of representations
|
26.4
|
Resignation of a Guarantor
|
26.4.1
|
The Borrower may request that a Guarantor ceases to be a Guarantor by delivering to the Facility Agent a Resignation Letter.
|
26.4.2
|
The Facility Agent shall accept a Resignation Letter and notify the Borrower and the Lenders of its acceptance if:
|
26.4.2.1
|
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Borrower has confirmed this is the case);
|
26.4.2.2
|
all the Lenders have consented to the Borrower's request.
|
26.5
|
Release of Transaction Security
|
27.
|
ROLE OF THE FACILITY AGENT, THE GLOBAL COORDINATORS AND BOOKRUNNERS
|
27.1
|
Appointment of the Facility Agent
|
27.1.1
|
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
|
27.1.2
|
Each other Finance Party authorises the Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
27.2
|
Duties of the Facility Agent
|
27.2.1
|
Subject to Clause 27.2.2 below, the Facility Agent shall forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party as soon as reasonably practicable after having received that original or copy document as the case may be.
|
27.2.2
|
Without prejudice to Clause 25.5 (Copy of Transfer Certificate to Borrower), Clause 27.2.1 above shall not apply to any Transfer Certificate.
|
27.2.3
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
27.2.4
|
If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.
|
27.2.1
|
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent or the Global Coordinators or the Bookrunners) under this Agreement it shall promptly notify the other Finance Parties.
|
27.2.2
|
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
27.3
|
Role of the Global Coordinators and Bookrunners
|
27.4
|
No fiduciary duties
|
27.4.1
|
Nothing in this Agreement constitutes any of the Facility Agent, the Global Coordinators or Bookrunners as a trustee or fiduciary of any other person.
|
27.4.2
|
Neither the Facility Agent nor the Global Coordinators nor the Bookrunners shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
27.5
|
Business with the Group
|
27.6
|
Rights and discretions of the Facility Agent
|
27.6.1
|
The Facility Agent may rely on:
|
27.6.1.1
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
27.6.1.2
|
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
27.6.2
|
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
27.6.2.1
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 24.1 (Non-payment));
|
27.6.2.2
|
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
|
27.6.2.3
|
any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
27.6.3
|
The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
27.6.4
|
The Facility Agent may act in relation to the Finance Documents through its personnel and agents.
|
27.6.5
|
The Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
27.6.6
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor either Global Coordinator nor either Bookrunner is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
27.7
|
Majority Lenders' instructions
|
27.7.1
|
Unless a contrary indication appears in a Finance Document, the Facility Agent shall (i) exercise any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Facility Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.
|
27.7.2
|
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.
|
27.7.3
|
The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.
|
27.7.4
|
In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Facility Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.
|
27.7.5
|
The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
|
27.8
|
Responsibility for documentation
|
27.8.1
|
are responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, the Global Coordinators, the Bookrunners or an Obligor or any other person given in or in connection with any Finance Document;
|
27.8.2
|
is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document; or
|
27.8.3
|
is responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
27.9
|
Exclusion of liability
|
27.9.1
|
Without limiting Clause 27.9.2 below, the Facility Agent will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
|
27.9.2
|
No Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Facility Agent may rely on this Clause as a stipulation for their benefit as contemplated by Clause 1.3 (Third party rights).
|
27.9.3
|
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
27.9.4
|
Nothing in this Agreement shall oblige the Facility Agent or either Global Coordinator or Bookrunner to carry out any know your customer or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent, the Global Coordinators and the Bookrunners that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or either Global Coordinator or either Bookrunner.
|
27.10
|
Lenders' indemnity to the Facility Agent
|
27.11
|
Resignation of the Facility Agent
|
27.11.1
|
The Facility Agent may resign and appoint one of its Affiliates acting through an office in South Africa as successor by giving notice to the other Finance Parties and the Borrower.
|
27.11.2
|
Alternatively the Facility Agent may resign by giving 30 (thirty) days' notice (or, at any time the Facility Agent is an Impaired Facility Agent, by giving any shorter notice determined by the Majority Lenders) to the other Finance Parties and the Borrower, in which case the Majority Lenders (after consultation with the Borrower) may appoint a successor Facility Agent.
|
27.11.3
|
If the Majority Lenders have not appointed a successor Facility Agent in accordance with Clause 27.11.2 above within 30 (thirty) days after notice of resignation was given, the retiring Facility Agent (after consultation with the Borrower) may appoint a successor Facility Agent (acting through an office in South Africa).
|
27.11.4
|
The retiring Facility Agent or Impaired Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
27.11.5
|
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
27.11.6
|
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 27. Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
27.11.7
|
After consultation with the Borrower, the Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with Clause 27.11.2 above. In this event, the Facility Agent shall resign in accordance with Clause 27.11.2 above.
|
27.12
|
Confidentiality
|
27.12.1
|
In acting as agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
27.12.2
|
If information is received by another division or department of the Facility Agent, it may be treated as confidential to that division or department and the Facility Agent shall not be deemed to have notice of it.
|
27.13
|
Relationship with the Lenders
|
27.13.1
|
The Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
27.13.1.1
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
27.13.1.2
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
27.13.2
|
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 32.2.6) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 32.2 (Addresses) and Clause 32.6.1.1 and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
27.14
|
Credit appraisal by the Lenders
|
27.14.1
|
the financial condition, status and nature of each member of the Group;
|
27.14.2
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
27.14.3
|
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
27.14.4
|
the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document.
|
27.15
|
Facility Agent's management time
|
27.16
|
Deduction from amounts payable by the Facility Agent
|
28.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
28.1
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
28.2
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
28.3
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
29.
|
SHARING AMONG THE FINANCE PARTIES
|
29.1
|
Payments to Finance Parties
|
29.1.1
|
the Recovering Finance Party shall, within 3 (three) Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
29.1.2
|
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 30 (Payment mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
29.1.3
|
the Recovering Finance Party shall, within 3 (three) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (Sharing Payment) equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 30.5 (Partial payments).
|
29.2
|
Redistribution of payments
|
29.3
|
Recovering Finance Party's rights
|
29.4
|
Reversal of redistribution
|
29.4.1
|
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (Redistributed Amount); and
|
29.4.2
|
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
29.5
|
Exceptions
|
29.5.1
|
This Clause 29 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
29.5.2
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
29.5.2.1
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
29.5.2.2
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
30.
|
PAYMENT MECHANICS
|
30.1
|
Payments to the Facility Agent
|
30.1.1
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document (other than under any Hedging Document except as expressly provided for in this Agreement where a payment is required to be made to the Facility Agent under a Hedging Document), that Obligor or Lender shall make the same available to the Facility Agent (unless a contrary indication appears in a Finance Document) in USD for value by no later than 12h00 (Johannesburg time) on the due date and in such funds specified by the Facility Agent by way of a funds flow schedule or otherwise.
|
30.1.2
|
Payment shall be made to such account in South Africa with such bank as the Facility Agent specifies.
|
30.2
|
Distributions by the Facility Agent
|
30.3
|
Distributions to an Obligor
|
30.4
|
Clawback
|
30.4.1
|
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
30.4.2
|
If the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
30.5
|
Partial payments
|
30.5.1
|
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
30.5.1.1
|
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Facility Agent under the Finance Documents;
|
30.5.1.2
|
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
|
30.5.1.3
|
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
30.5.1.4
|
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
30.5.2
|
The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in Clauses 30.5.1.3 to 30.5.1.4 above.
|
30.5.3
|
Clauses 30.5.1.1 and 30.5.1.2 above will override any appropriation made by an Obligor.
|
30.6
|
No set-off by Obligors
|
30.7
|
Business Days
|
30.7.1
|
Any payment which is due to be made in terms of any Finance Document on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
30.7.2
|
In the event that the day for performance of any obligation (other than a payment obligation) to be performed in terms of any Finance Document should fall on a day which is not a Business Day, the relevant day for performance shall be the succeeding Business Day.
|
30.7.3
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
30.8
|
Currency of account
|
30.8.1
|
Subject to Clauses 30.7.2 and 30.7.3 below, USD is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
30.8.2
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
30.8.3
|
Any amount expressed to be payable in a currency other than USD shall be paid in that other currency.
|
30.9
|
Disruption to Payment Systems etc.
|
30.9.1
|
the Facility Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of a Facility as the Facility Agent may deem necessary in the circumstances;
|
30.9.2
|
the Facility Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in Clause 30.9.1 if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
30.9.3
|
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in Clause 30.9.1 but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
30.9.4
|
any such changes agreed upon by the Facility Agent and the Borrower shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 36 (Amendments and waivers);
|
30.9.5
|
the Facility Agent shall not be liable for any damages, costs or losses whatsoever arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 30.9; and
|
30.9.6
|
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to Clause 30.9.4 above.
|
30.10
|
Impaired Facility Agent
|
30.10.1
|
If, at any time, the Facility Agent becomes an Impaired Facility Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Facility Agent in accordance with Clause 30.1 (Payments to the Facility Agent) may instead either:
|
30.10.1.1
|
pay that amount direct to the required recipient(s); or
|
30.10.1.2
|
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with an Acceptable Bank within the meaning of Clause 1.1.2.1 and in relation to which no insolvency event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the Paying Party) and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the Recipient Party or Recipient Parties).
|
30.10.2
|
In each of Clauses 30.10.1.1 and 30.10.1.2 such payments must be made on the due date for payment under the Finance Documents.
|
30.10.3
|
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements.
|
30.10.4
|
A Party which has made a payment in accordance with this Clause 30.10 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
|
30.10.5
|
Promptly upon the appointment of a successor Agent in accordance with Clause 27.11 (Resignation of the Facility Agent), each Paying Party shall (other than to the extent that that Party has given an instruction pursuant to Clause 30.10.6 below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 30.2 (Distributions by the Facility Agent).
|
30.10.6
|
A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
|
30.10.6.1
|
that it has not given an instruction pursuant to Clause 30.10.5 above; and
|
30.10.6.2
|
that it has been provided with the necessary information by that Recipient Party,
|
31.
|
SET OFF
|
32.
|
NOTICES
|
32.1
|
Communications in writing
|
32.2
|
Addresses
|
32.2.1
|
in the case of the Borrower and each Original Guarantor incorporated as a company in South Africa:
|
32.2.2
|
in the case of Morobe Consolidated Goldfields Limited and Wafi Mining Limited:
|
32.2.3
|
in the case of Absa Bank Limited (acting through its Corporate and Investment Banking division) in its capacity as Global Coordinator, Bookrunner, Mandated Lead Arranger, Original Lender and Original Hedge Provider:
|
32.2.4
|
in the case of Nedbank Limited (acting through its London Branch) in its capacity as Mandated Lead Arranger and Original Lender:
|
32.2.5
|
in the case of Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) in its capacity as Global Coordinator, Bookrunner and Original Hedge Provider:
|
32.2.6
|
in the case of Absa Bank Limited (acting through its Corporate and Investment Banking division) as Facility Agent:
|
32.2.7
|
in the case of HSBC Bank plc - Johannesburg Branch in its capacity as Lead Arranger: and Original Lender
|
32.2.8
|
in the case of HSBC Bank plc in its capacity as Original Hedge Provider:
|
Marked for the attention of:
|
Global Banking and Markets Legal - General Counsel
|
32.2.9
|
in the case of FirstRand Bank Limited (London Branch) in its capacity as Lead Arranger:
|
32.2.10
|
in the case of JPMorgan Chase Bank, N.A., London Branch in its capacity as Original Lender:
|
32.2.11
|
in the case of J.P. Morgan Securities plc in its capacity as Lead Arranger:
|
32.2.12
|
in the case of JPMorgan Chase Bank, N.A. in its capacity as Original Hedge Provider:
|
32.2.13
|
in the case of Citibank N.A., South Africa Branch in its capacity as Lead Arranger:
|
32.2.14
|
in the case of State Bank of India (acting through its Johannesburg Branch) in its capacity as Arranger:
|
32.2.15
|
in the case of Federated Project and Trade Finance Core Fund in its capacity as Original Lender:
|
32.2.16
|
in the case of Federated Project and Trade Finance Tender Fund in its capacity as Original Lender:
|
32.2.17
|
in the case of Federated Redwood Trade Finance Core Fund in its capacity as Original Lender:
|
32.2.18
|
in the case of Bank of China Limited, Johannesburg Branch in its capacity as Original Lender:
|
32.2.19
|
in the case of Goldman Sachs International Bank in its capacity as Original Lender:
|
32.2.20
|
in the case of Citibank N.A., London Branch in its capacity as Original Hedge Provider:
|
32.2.21
|
in the case of any other Lender or any other Obligor, that notified in writing to the Facility Agent on or prior to the date on which it becomes a Party,
|
32.3
|
Domicilia
|
32.3.1
|
Each of the Parties, other than, Morobe Consolidated Goldfields Limited and Wafi Mining Limited, chooses its physical address provided under or in connection with Clause 32.2 (Addresses) as its domicilium citandi et executandi at which documents in legal proceedings in South Africa in connection with this Agreement or any other Finance Document may be served.
|
32.3.1.1
|
Each of Morobe Consolidated Goldfields Limited and Wafi Mining Limited, chooses the physical address of the Borrower provided under or in connection with Clause 32.2 (Addresses) as its domicilium citandi et executandi at which documents in legal proceedings in South Africa in connection with this Agreement or any other Finance Document may be served.
|
32.3.1.2
|
Any Party may by written notice to the other Parties 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 14th day after deemed receipt of the notice by the other Parties pursuant to Clause 32.4 (Delivery).
|
32.4
|
Delivery
|
32.4.1
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will:
|
32.4.1.1
|
if by way of fax, be deemed to have been received on the first Business Day following the date of transmission provided that the fax is received in legible form;
|
32.4.1.2
|
if delivered by hand, be deemed to have been received at the time of delivery; and
|
32.4.1.3
|
if by way of courier service, be deemed to have been received on the seventh Business Day following the date of such sending,
|
32.4.2
|
Any communication or document to be made or delivered to the Facility Agent will be effective only when actually received by the Facility Agent and then only if it is expressly marked for the attention of the department or officer identified with the Facility Agent's signature below (or any substitute department or officer as the Facility Agent shall specify for this purpose).
|
32.4.3
|
All notices from or to an Obligor shall be sent through the Facility Agent.
|
32.4.4
|
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
32.5
|
Notification of address and fax number
|
32.6
|
Electronic communication
|
32.6.1
|
Any communication to be made between the Facility Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Facility Agent and the relevant Lender:
|
32.6.1.1
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
32.6.1.2
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
32.6.1.3
|
notify each other of any change to their address or any other such information supplied by them.
|
32.6.2
|
Any electronic communication made between the Facility Agent and a Lender will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
32.7
|
English language
|
32.8
|
Communication when Agent is Impaired Facility Agent
|
33.
|
CALCULATIONS AND CERTIFICATES
|
33.1
|
Accounts
|
33.2
|
Certificates and Determinations
|
33.3
|
Day count convention
|
34.
|
PARTIAL INVALIDITY
|
35.
|
REMEDIES AND WAIVERS
|
36.
|
AMENDMENTS AND WAIVERS
|
36.1
|
Required consents
|
36.1.1
|
Subject to Clause 36.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.
|
36.1.2
|
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
|
36.1.3
|
No amendment or waiver contemplated by this Clause 36 shall be of any force or effect unless in writing and signed by or on behalf of the relevant Parties.
|
36.1.4
|
For the avoidance of doubt, any extension of the Facility in accordance with Clause 6.3 (Extension Option) shall be effected in accordance with the relevant Clause and shall not be an amendment or waiver for the purposes of this Clause 36.
|
36.2
|
Exceptions
|
36.2.1
|
An amendment or waiver that has the effect of changing or which relates to:
|
36.2.1.1
|
the definition of Majority Lenders in Clause 1.1 (Definitions);
|
36.2.1.2
|
a change to the date of payment of any amount under the Finance Documents;
|
36.2.1.3
|
a reduction in the Applicable Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
36.2.1.4
|
an increase in or an extension of any Commitment;
|
36.2.1.5
|
a change to the Borrower or any Guarantors other than in accordance with Clause 26 (Changes to the Obligors);
|
36.2.1.6
|
any provision which expressly requires the consent of all the Lenders;
|
36.2.1.7
|
Clause 2.2 (Finance Parties’ rights and obligations);
|
36.2.1.8
|
Clause 3.1 (Purpose);
|
36.2.1.9
|
Clause 12.3 (Tax indemnity);
|
36.2.1.10
|
Clause 13 (Increased costs);
|
36.2.1.11
|
the nature or scope of the guarantee and indemnity granted under Clause 17 (Guarantee and indemnity);
|
36.2.1.12
|
Clause 25 (Changes to the Lenders);
|
36.2.1.13
|
Clause 46 (Governing law);
|
36.2.1.14
|
Clause 47 (Jurisdiction), or
|
36.2.1.15
|
the nature and scope of the Transaction Security;
|
36.2.2
|
An amendment or waiver which relates to the rights or obligations of the Facility Agent, the Global Coordinators or the Bookrunners (each in their capacity as such) may not be effected without the consent of the Facility Agent or, as the case may be, the Global Coordinators or Bookrunners.
|
36.3
|
Replacement of Lender
|
36.3.1
|
If:
|
36.3.1.1
|
any Lender becomes a Non-Consenting Lender (as defined in Clause 36.3.4 below) or a Defaulting Lender; or
|
36.3.1.2
|
an Obligor becomes obliged to repay any amount in accordance with Clause 7.1 (Illegality) or to pay additional amounts pursuant to Clause 13.1 (Increased costs), Clause 12.2 (Tax gross-up) or Clause 12.3 (Tax indemnity) to any Lender,
|
36.3.2
|
The replacement of a Lender pursuant to this Clause 36.3 shall be subject to the following conditions:
|
36.3.2.1
|
the Borrower shall have no right to replace the Facility Agent;
|
36.3.2.2
|
neither the Facility Agent nor the Lender or the Defaulting Lender shall have any obligation to the Borrower to find a Replacement Lender;
|
36.3.2.3
|
in the event of a replacement of a Non-Consenting Lender or a Defaulting Lender such replacement must take place no later than 10 (ten) Business Days after the date on which that Lender is deemed a Non-Consenting Lender and in the case of a Defaulting Lender, after the notice referred in 36.3.1;
|
36.3.2.4
|
in no event shall the Lender replaced under this Clause 36.3 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and
|
36.3.2.5
|
the Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 36.3.1 above once it is satisfied that it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to that transfer.
|
36.3.3
|
A Lender shall perform the checks described in Clause 36.3.2.5 above as soon as reasonably practicable following delivery of a notice referred to in Clause 36.3.1 above and shall notify the Facility Agent and the Borrower when it is satisfied that it has complied with those checks.
|
36.3.4
|
In the event that:
|
36.3.4.1
|
the Borrower or the Facility Agent (at the request of the Borrower) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;
|
36.3.4.2
|
the consent, waiver or amendment in question requires the approval of all the Lenders; and
|
36.3.4.3
|
Lenders whose Commitments aggregate, in the case of a consent, waiver or amendment requiring the approval of all the Lenders, more than 80% (eighty per cent) of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 80% (eighty per cent) of the Total Commitments prior to that reduction), have consented or agreed to such waiver or amendment,
|
36.4
|
Disenfranchisement of Defaulting Lenders
|
36.4.1
|
For so long as a Defaulting Lender has any Available Commitment, in ascertaining:
|
36.4.1.1
|
the Majority Lenders; or
|
36.4.1.2
|
whether:
|
36.4.1.2.1
|
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments under the relevant Facility/ies; or
|
36.4.1.2.2
|
the agreement of any specified group of Lenders,
|
36.4.2
|
For the purposes of this Clause 36.4, the Facility Agent may assume that the following Lenders are Defaulting Lenders:
|
36.4.2.1
|
any Lender which has notified the Facility Agent that it has become a Defaulting Lender;
|
36.4.2.2
|
any Lender in relation to which it is aware that any of the events or circumstances referred to in Clauses 1.1.39.1, 1.1.39.2, 1.1.39.3 or 1.1.39.5,
|
36.5
|
Replacement of Screen Rate
|
36.5.1
|
Subject to Clause 34.2 (Exceptions), if a Screen Rate Replacement Event has occurred in relation to any Screen Rate for a currency which can be selected for a Loan, any amendment or waiver which relates to:
|
36.5.1.1
|
providing for the use of a Replacement Benchmark; and
|
36.5.1.2
|
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
36.5.1.2.1
|
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);
|
36.5.1.2.2
|
implementing market conventions applicable to that Replacement Benchmark;
|
36.5.1.2.3
|
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
|
36.5.1.2.4
|
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
36.5.2
|
For the purpose of this Clause 34.5:
|
36.5.2.1
|
Relevant Nominating Body means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
|
36.5.2.2
|
Replacement Benchmark means a benchmark rate which is:
|
36.5.2.2.1
|
formally designated, nominated or recommended as the replacement for a Screen Rate by:
|
36.5.2.2.1.1
|
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or
|
36.5.2.2.1.2
|
any Relevant Nominating Body,
|
36.5.2.2.2
|
in the opinion of the Majority Lenders and the Borrower, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
|
36.5.2.2.3
|
in the opinion of the Majority Lenders and the Borrower, an appropriate successor to a Screen Rate.
|
36.5.2.3
|
Screen Rate Replacement Event means, in relation to a Screen Rate:
|
36.5.2.3.1
|
the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders and the Borrower, materially changed;
|
36.5.2.3.2
|
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent provided that, at that time, there is no successor administrator to continue to provide that Screen Rate; or
|
36.5.2.3.3
|
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent, provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate
|
36.5.2.3.4
|
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
36.5.2.3.5
|
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or
|
36.5.2.3.6
|
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or
|
36.5.2.3.7
|
in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
37.
|
CONFIDENTIALITY
|
37.1
|
Confidential Information
|
37.2
|
Disclosure of Confidential Information
|
37.2.1
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this Clause 37.2.1 is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
37.2.2
|
to any other person:
|
37.2.2.1
|
to (or through) whom it Transfers (or may potentially Transfer) all or any of its rights and obligations under this Agreement and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
37.2.2.2
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation or other credit participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
37.2.2.3
|
appointed by any Finance Party or by a person to whom Clause 37.2.2.1 or Clause 37.2.2.2 above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
37.2.2.4
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in Clause 37.2.2.1 or Clause 37.2.2.2 above;
|
37.2.2.5
|
to whom information is required (or which a Finance Party reasonably believes is required) or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
37.2.2.6
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
37.2.2.7
|
who is a Party; or
|
37.2.2.8
|
with the consent of the Borrower,
|
37.2.2.8.1
|
in relation to Clauses 37.2.2.1, 37.2.2.2 or 37.2.2.3 above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
37.2.2.8.2
|
in relation to Clause 37.2.2.4 above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; and
|
37.2.2.8.3
|
in relation to Clause 37.2.2.5 or Clause 37.2.2.6 above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
37.2.3
|
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
37.3
|
Entire agreement
|
37.4
|
Inside information
|
37.5
|
Notification of disclosure
|
37.5.1
|
of the circumstances of any disclosure of Confidential Information made pursuant to Clause 37.2.2.5 except where such disclosure is made to any of the persons referred to in that Clause during the ordinary course of its supervisory or regulatory function; and
|
37.5.2
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 37.
|
37.6
|
Continuing obligations
|
37.6.1
|
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
37.6.2
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
38.
|
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS
|
38.1
|
Confidentiality and disclosure
|
38.1.1
|
The Facility Agent may disclose:
|
38.1.1.1
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrower pursuant to Clause 8.4 (Notification of rates of interest); and
|
38.1.1.2
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender or Reference Bank, as the case may be.
|
38.1.2
|
The Facility Agent may disclose any Funding Rate or any Reference Bank Quotation, and the Borrower may disclose any Funding Rate, to:
|
38.1.2.1
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this Clause 38.1.2.1 is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
38.1.2.2
|
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the Borrower, as the case may be, it is not practicable to do so in the circumstances;
|
38.1.2.3
|
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the Borrower, as the case may be, it is not practicable to do so in the circumstances; and
|
38.1.2.4
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
38.1.3
|
The Facility Agent's obligations in this Clause 38 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 8.4 (Notification of rates of interest), provided that (other than pursuant to Clause 38.1.1.1 above) the Facility Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.
|
38.2
|
Related obligations
|
38.2.1
|
The Facility Agent and the Borrower acknowledge that each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facility Agent and the Borrower undertake not to use any Funding Rate or, in the case of the Facility Agent, any Reference Bank Quotation for any unlawful purpose.
|
38.2.2
|
The Facility Agent and the Borrower agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:
|
38.2.2.1
|
of the circumstances of any disclosure made pursuant to Clause 38.1.2.2 above except where such disclosure is made to any of the persons referred to in that Clause during the ordinary course of its supervisory or regulatory function; and
|
38.2.2.2
|
upon becoming aware that any information has been disclosed in breach of this Clause 38.
|
39.
|
RENUNCIATION OF BENEFITS
|
40.
|
COUNTERPARTS
|
41.
|
WAIVER OF IMMUNITY
|
42.
|
SOLE AGREEMENT
|
43.
|
NO IMPLIED TERMS
|
44.
|
EXTENSIONS AND WAIVERS
|
45.
|
INDEPENDENT ADVICE
|
46.
|
GOVERNING LAW
|
47.
|
JURISDICTION
|
47.1
|
The Parties hereby irrevocably and unconditionally consent to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg (or any successor to that division) in regard to all matters arising from the Finance Documents (including a dispute relating to the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a Dispute).
|
47.2
|
The Parties agree that the court referred to above is the most appropriate and convenient court to settle Disputes and accordingly:
|
47.2.1
|
no Obligor will argue to the contrary;
|
47.2.1
|
each Obligor hereby waives any objection to the jurisdiction of that court on the grounds of venue or forum non conveniens or any similar grounds; and
|
47.2.2
|
each Obligor consents to service of process in any manner set out in Clause 48 (Service of Process) and any other manner permitted by applicable law.
|
47.3
|
This Clause 47 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
48.
|
SERVICE OF PROCESS
|
48.1
|
irrevocably appoints the Borrower, as its agent for service of process in relation to any proceedings before the courts of South Africa in connection with any Finance Document; and
|
48.2
|
agrees that failure by an agent for service of process to notify the relevant Obligor of the process does not invalidate the proceedings concerned.
|
Name of Borrower
|
Registration number (or equivalent, if any)
|
Harmony Gold Mining Company Limited
|
1950/038232/06
|
|
|
Name of Original Guarantor
|
Registration number (or equivalent, if any)
|
African Rainbow Minerals Gold Limited
|
1997/015869/06
|
Freegold (Harmony) Proprietary Limited (formerly known as ARMgold/Harmony Freegold Joint Venture Company Proprietary Limited)
|
2001/029602/07
|
Randfontein Estates Limited
|
1889/000251/06
|
Avgold Limited
|
1990/007025/06
|
Harmony Copper Limited
|
2014/121930/06
|
Morobe Consolidated Goldfields Limited
|
1 - 12047
|
Wafi Mining Limited
|
1 - 11452
|
Harmony Moab Khotsong Operations Proprietary Limited
|
2006/039120/07
|
Name of Original Lender
|
Title
|
Facility A Commitment (USD)
|
Facility B Commitment (USD)
|
Absa Bank Limited (acting through its Corporate and Investment Banking division)
|
Mandated Lead Arranger
|
53,500,000
|
59,000,000
|
Nedbank Limited, London Branch
|
Mandated Lead Arranger
Original Lender
|
32,500,000
|
35,000,000
|
FirstRand Bank Limited (London Branch)
|
Lead Arranger
|
17,500,000
|
19,500,000
|
Citibank N.A., South Africa Branch
|
Lead Arranger
|
17,500,000
|
19,500,000
|
HSBC Bank plc - Johannesburg Branch
|
Lead Arranger
Original Lender
|
17,500,000
|
19,500,000
|
State Bank of India (acting through its Johannesburg Branch)
|
Arranger
|
10,500,000
|
12,000,000
|
JPMorgan Chase Bank, N.A., London Branch
|
Original Lender and J.P. Morgan Securities plc as Lead Arranger
|
17,500,000
|
19,500,000
|
Federated Project and Trade Finance Core Fund
|
Original Lender
|
11,965,910
|
_
|
Federated Project and Trade Finance Tender Fund
|
Original Lender
|
1,329,545
|
_
|
Federated Redwood Trade Finance Fund
|
Original Lender
|
6,204,545
|
_
|
Bank of China Limited, Johannesburg Branch
|
Original Lender
|
7,000,000
|
8,000,000
|
Goldman Sachs International Bank
|
Original Lender
|
7,000,000
|
8,000,000
|
Name of Original Hedge Provider
|
|
Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division)
|
|
Absa Bank Limited (acting through its Corporate and Investment Banking division)
|
|
JPMorgan Chase Bank, N.A.
|
|
HSBC Bank plc
|
|
Citibank N.A., London Branch
|
|
1.
|
Constitutional Documents and corporate authorisations
|
1.1
|
A copy of the constitutional documents of each Original Obligor.
|
1.2
|
A copy of a resolution of the board of directors of each Original Obligor:
|
1.2.1
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
1.2.2
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf;
|
1.2.3
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; and
|
1.2.4
|
as may be required to comply with Section 45 and 46 of the Companies Act or any provision of any applicable company legislation and regulations in Papua New Guinea.
|
1.3
|
A specimen of the signature of each person authorised by the resolution referred to in Clause 1.2.2 above.
|
1.4
|
To the extent required with reference to the constitutional documents of an Obligor or by law (including under Section 45 and 46 of the Companies Act), a copy of a resolution duly passed by the holders of the issued shares of that Obligor, approving the terms of, and the transactions contemplated by, the Finance Documents to which that Obligor is a party.
|
1.5
|
A certificate from each Original Obligor (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.
|
1.6
|
A certificate of an authorised signatory of the relevant Original Obligor certifying that each copy document relating to it specified in this Part I of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Signature Date.
|
2.
|
Finance Documents other than Security Documents
|
2.1
|
This Agreement duly executed by the members of the Group expressed to be a party to this Agreement.
|
2.2
|
The Flow of Funds Agreement duly executed by the parties thereto.
|
2.3
|
The Mandate Letter duly executed by the Borrower.
|
2.4
|
Each Fee Letter duly executed by the Borrower.
|
3.
|
Security Documents
|
3.1
|
A cession in security and pledge in favour of the Secured Parties governed by the laws of South Africa by the Borrower in respect of the shares and loan claims held by it in the Original Guarantors incorporated in South Africa including the delivery of any and all documents required in connection with such Security which shall include share certificates, signed and undated transfer forms in blank as to transferee and resolutions by the board of directors of the relevant member of the Group whose shares are given as Transaction Security and resolving to give effect to any transfer of
|
3.2
|
A cession in security and pledge in favour of the Secured Parties governed by the laws of South Africa by African Rainbow Minerals Gold Limited in respect of the shares and loan claims held by it in respect of the Original Guarantors incorporated in South Africa including the delivery of any and all documents required in connection with such Security which shall include share certificates, signed and undated transfer forms in blank as to transferee and resolutions by the board of directors of the relevant member of the Group whose shares are given as Transaction Security and resolving to give effect to any transfer of such shares following enforcement of such Transaction Security (as amended pursuant to the provisions of this Agreement).
|
3.3
|
All documents and evidence required, pursuant to the terms of any of the Security Documents, to be delivered promptly upon execution of such Security Document or otherwise prior to the first Utilisation Date. Such documents and evidence include originals of all required notices, share certificates and blank share transfer forms.
|
4.
|
Legal opinions
|
4.1
|
A legal opinion of Bowmans, legal advisers to the Global Coordinators, Bookrunners and the Facility Agent in South Africa, in a form acceptable to each Original Lender, in respect of the legality, validity and enforceability of this Agreement, the Intercreditor Agreement and the South African law governed Security Documents.
|
4.2
|
A legal opinion of Cliffe Dekker Hofmeyr, legal advisers to the Original Obligors in South Africa, in a form acceptable to each Original Lender, in respect of the capacity, power and authority of each South African Obligor to enter into the Finance Documents to which it is a party.
|
4.3
|
A legal opinion of Ashurst PNG, legal advisers to the Original Obligors in Papua New Guinea, in a form acceptable to each Original Lender, in respect of the capacity, power and authority of each Papua New Guinean Obligor to enter into the Finance Documents to which it is a party.
|
4.4
|
A legal opinion of Ashurst Australia, legal advisers to the Original Obligors in Australia, in a form acceptable to each Original Lender, in respect of the capacity, power and authority of each Australian Obligor to enter into the Finance Documents to which it is a party.
|
5.
|
Other documents and evidence
|
5.1
|
Each Release Agreement duly executed by the parties thereto.
|
5.2
|
Evidence to the satisfaction of the Facility Agent that each Release Agreement has become unconditional and of full force and effect (save for any condition requiring this Agreement to have first become unconditional).
|
5.3
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document, including but not limited to:
|
5.3.1
|
any approvals required from the Financial Surveillance Department of the South African Reserve Bank;
|
5.3.2
|
any approvals required from the Bank of Papua New Guinea.
|
5.4
|
The Original Financial Statements of each Original Obligor.
|
5.5
|
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
|
5.6
|
The Group Structure Chart.
|
5.7
|
The Borrower has delivered to the Facility Agent a certificate signed by two directors of the Borrower (one of whom must be the financial director) certifying which members of the Group are Material Group Companies.
|
5.8
|
Such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any other Finance Party) in order for the Facility Agent and each other Finance Party to carry out and be satisfied it has complied with all necessary know your customer or similar identification procedures under applicable laws and regulations (including the Financial Intelligence Centre Act, 2001) pursuant to the transactions contemplated in the Finance Documents.
|
5.9
|
A copy of the Intercreditor Agreement duly executed by each of the Secured Parties.
|
5.10
|
Confirmation from the Original Lenders that there has not been a Pre-Financial Close Material Adverse Change.
|
5.11
|
Each Original Lender has provided the Facility Agent with all such necessary documentation and other evidence as is reasonably requested by the Facility Agent.
|
1.
|
An Accession Letter, duly executed by the Additional Guarantor and the Borrower.
|
2.
|
A copy of the constitutional documents of the Additional Guarantor.
|
3.
|
A copy of a resolution of the board of directors of the Additional Guarantor:
|
3.1
|
approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter;
|
3.2
|
authorising a specified person or persons to execute the Accession Letter on its behalf;
|
3.3
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents; and
|
3.4
|
as may be required to comply with Section 45 and 46 of the Companies Act or any provision of any applicable company legislation and regulations in Australia or Papua New Guinea.
|
4.
|
A specimen of the signature of each person authorised by the resolution referred to in Clause 3 above.
|
5.
|
To the extent required with reference to the constitutional documents of an Additional Guarantor or by law (including under Section 45 and 46 of the Companies Act), a copy of a resolution duly passed by the holders of the issued shares of that Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which that Additional Guarantor is a party.
|
6.
|
A certificate of the Additional Guarantor (signed by a director) confirming that guaranteeing, as appropriate, the Total Commitments would not cause any guaranteeing or similar limit binding on it to be exceeded.
|
7.
|
A certificate of an authorised signatory of the Additional Guarantor certifying that each copy document listed in this Part II of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter.
|
8.
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document.
|
9.
|
If available, the latest audited financial statements of the Additional Guarantor.
|
10.
|
A legal opinion of Bowmans, legal advisers to the Global Coordinators. Bookrunners and the Facility Agent in South Africa.
|
11.
|
A legal opinion of Cliffe Dekker Hofmeyr, legal advisers to the Original Obligors and the Additional Guarantor in South Africa.
|
12.
|
If the Additional Guarantor is incorporated in a jurisdiction other than South Africa, a legal opinion of the legal advisers to the Facility Agent in the jurisdiction in which the Additional Guarantor is incorporated.
|
13.
|
If the Additional Guarantor is incorporated in a jurisdiction other than South Africa, a legal opinion of the legal advisers to the Original Obligors and the Additional Guarantor in the jurisdiction in which the Additional Guarantor is incorporated.
|
1.
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2.
|
We wish to borrow a Loan on the following terms:
|
3.
|
We confirm that each condition specified in Clause 4.2 (Conditions precedent to Utilisations generally) is satisfied on the date of this Utilisation Request.
|
4.
|
The proceeds of this Loan should be credited to [account].
|
5.
|
[The Interest Period for this Loan is [3/6] Months] .
|
6.
|
This Utilisation Request is irrevocable.
|
1.
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2.
|
We refer to Clause 25.4 (Procedure for Transfer):
|
2.1
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by cession and delegation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 25.4 (Procedure for Transfer).
|
2.2
|
The proposed Transfer Date is [●].
|
2.3
|
The Facility Office and address through which the New Lender will perform its obligations, fax number and attention details for notices of the New Lender for the purposes of Clause 32.2 (Addresses) are set out in the Schedule.
|
3.
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in Clause 25.3.3 (Limitation of responsibility of Existing Lenders).
|
4.
|
The New Lender agrees that it shall assume the same obligations towards each other Finance Party under the Finance Documents as if it had been an Original Lender.
|
5.
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
6.
|
This Transfer Certificate is governed by South African law.
|
7.
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
1.
|
We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.
|
2.
|
[Subsidiary] agrees to become an Additional Guarantor and to be bound by the terms of the Agreement as an Additional Guarantor pursuant to Clause 26.2 (Additional Guarantors) of the Agreement. [Subsidiary] is a company duly incorporated under the laws of [name of relevant jurisdiction].
|
2.1
|
[Subsidiary's] administrative details are as follows:
|
2.2
|
This Accession Letter is governed by South African law.
|
1.
|
We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.
|
2.
|
Pursuant to Clause 26.4 (Resignation of a Guarantor), we request that [resigning Guarantor] be released from its obligations as a Guarantor under the Agreement.
|
3.
|
We confirm that:
|
3.1
|
no Default is continuing or would result from the acceptance of this request; and
|
3.2
|
[●]
|
4.
|
This Resignation Letter is governed by South African law.
|
1.
|
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2.
|
We confirm that: [Insert details of covenants to be certified with reference to Clause 20.1(Financial Covenants)]
|
3.
|
We confirm compliance with the requirements of Clause 21.19 (Guarantor coverage) of the Agreement.
|
4.
|
[We confirm that no Default is continuing.]
|
Name of Group Member
|
Security
|
Total Principal Amount of Indebtedness Secured at Signature Date
|
Harmony Gold Mining Co Ltd
|
Agreement for Sale of Interest in Royalty Deed dated 10 November 2008 between the Borrower, Abelle Limited, Wafi Mining Limited and Rio Tinto Limited (ABE0063003)(WAF0002013)
|
Contingent Liability (Deferred Cash Consideration of US$10,000,000 payable on occurrence of decision to mine/commencement of infrastructure construction)
|
Wafi Mining Ltd
|
Deed of Extinguishment of Royalty - Wafi Golpu Project dd 16 February 2009 between Wafi Mining Limited and the Borrower (WAF0002015)
|
Contingent Liability (Payment by Wafi Mining Limited to the Borrower of US$10,000,000 within 21 days after payment by the Borrower of Deferred Cash Consideration to Rio Tinto)
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)
|
as of 11am Johannesburg time on the date which is 5 (five) Business Days prior to the proposed Utilisation Date
|
Facility Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders' participation)
|
as of 11am Johannesburg time on the date which is 3 Business Days prior to the proposed Utilisation Date
|
LIBOR is fixed
|
Quotation Day as of 11:00 a.m. London time
|
1. Local banks
|
Absa Bank Limited
FirstRand Bank Limited
The Standard Bank of South Africa Limited
Nedbank Limited
Investec Bank Limited
Any fund managed and/or controlled by any of the aforesaid local banks
|
2. Foreign banks
|
ABN Amro Bank N.V.
Deutsche Bank Group AG
Standard Chartered Bank
Barclays Bank PLC
UBS
Citibank
SMBC (Sumitomo Mitsui Banking Corporation)
Fortis
Royal Bank of Scotland
HSBC Bank plc
Bank of China Limited, Johannesburg Branch
Bank of Taiwan
China Construction Bank
China Development Bank
Industrial & Commercial Bank of China (ICBC)
Credit Agricole
Bank of Taiwan
BNP Paribas
West LB
Allied Irish
Societe Generale
Goldman Sachs
JPMorgan Chase Bank, N.A., London Branch
Credit Suisse
Macquarie Bank
Westpac Banking Corporation
National Australia Bank
Australia and New Zealand Banking Group Limited
State Bank of India
Bank of America Merill Lynch
Natixis
The Bank of Tokyo-Mitsubishi Limited\
First Bank of Nigeria
Ecobank
Zenith Bank
Bank of South Pacific Limited
ICIC Bank
Caterpillar Financial Services Corporation
|
3. DFIs
|
African Development Bank
DEG – Deutsche Investitions- und Entwicklungsgesellschaft mbH
Emerging Africa Infrastructure Fund
European Investment Bank (EIB)
NEDERLANDSE FINANCIERINGS-MAATSCHAPPIJ VOOR ONTWIKKELINGSLANDEN N.V. (“FMO”)
International Finance Corporation (IFC)
Kreditanstalt fuer Wiederaufbau (KfW)
Kreditanstalt fuer Wiederaufbau – IPEX
OPEC Fund for International Development (OFID)
Development Bank of Southern Africa (DBSA)
Industrial Development Corporation (IDC)
Proparco
African Finance Corporation (AFC)
PTA Bank
Any fund managed and/or controlled by any of the aforesaid financial institutions
|
4. Other financial institutions
|
Old Mutual Specialised Finance (Proprietary) Limited
Old Mutual Life Assurance Company (South Africa) Limited
Sanlam Capital Markets Limited
Sanlam Life Insurance Limited
Futuregrowth Asset Management (Pty) Ltd
Liberty Group Limited
MMI Holdings Limited
Mergence Investment Managers (Pty) Ltd
Metropolitan Insurance Company Limited
Metropolitan Life Limited
Taquanta Asset Management
Coronation Fund Managers Limited
RMB Asset Management
Mezzanine Partners 1 GP (Proprietary) Limited
Titan Share Dealers (Proprietary) Limited
Venfin Share Dealers (Proprietary) Limited
Investec Asset Management (Proprietary) Limited
Public Investment Corporation
Absa Asset Managers
Stanlib
Vantage Capital Group (Proprietary) Limited
Prudential Portfolio Managers South Africa (Proprietary) Limited
Fairtree Asset Management
Saffron Asset Management
Cadiz Asset Management
Tantulum Asset Management
Atlantic Asset Management
Momentum Asset Managers
Hollard Group
Peregrine Holdings
Any fund managed and/or controlled by any of the aforesaid financial institutions. Any affiliates, subsidiaries or holding companies of and of the banks or financial institutions listed in this 0 and any trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets.
|
1.
|
To be de-registered/wound up (South Africa):
|
1.1
|
Harmony Gold Management Services Proprietary Limited
|
1.2
|
Potchefstroom Gold Holdings Proprietary Limited
|
1.3
|
Coreland Property Management Company Proprietary Limited
|
1.4
|
Potchefstroom Gold Areas Limited
|
1.5
|
Virginia Salvage Proprietary Limited
|
1.6
|
Harmony Engineering Proprietary Limited
|
1.7
|
Musuku Benefication Systems Proprietary Limited
|
1.8
|
Remaining Extent of Portion 15 Wildebeesfotein Proprietary Limited
|
1.9
|
Harmony Precision Casting Proprietary Limited
|
1.10
|
Harmony Pharmacies Proprietary Limited
|
2.
|
To be de-registered/wound up (Australia and/or PNG):
|
2.1
|
New Hampton Goldfields Limited ACN 53 009 193 999
|
2.2
|
Harmony Gold Securities Pty Limited ACN 099 119 909
|
2.3
|
Harmony Gold W.A. Pty Limited ACN 099 119 918
|
2.4
|
Harmony Gold Operations Limited ACN 005 482 842
|
1.
|
We refer to Clause 6.3 (Extension option) of the Agreement. This is an Extension Request. Terms defined in the Agreement have the same meaning in this notice unless given a different meaning in this notice.
|
2.
|
Pursuant to 6.3.1 Extension option) of the Agreement, we request that the Initial Repayment Date be extended for a further period of 1 (one) year.
|
3.
|
We confirm that:
|
3.1
|
no Default is continuing; and
|
3.2
|
the Repeating Representations are true in all material respects.
|
4.
|
This Extension Request is irrevocable.
|
5.
|
This notice and any non-contractual obligations arising out of or in connection with it are governed by South African law.
|
1.
|
We refer to [Clause 6.3.3 (Extension option)]. This is an Extension Acceptance Notice. Terms defined in the Agreement have the same meaning in this notice unless given a different meaning in this notice.
|
2.
|
We hereby [accept the extensions offered to the Extending Lenders pursuant to Clause 6.3 (Extension option)] or [confirm that we intend to accept the extension in relation to our [Initial Pro Rata Participation/Additional Pro Rata Participation] of the Agreement].
|
3.
|
We hereby confirm that in addition to our Initial Pro Rata Participation, we would be willing to assume up to [ USD [●] ] Non-Extending Lender’s Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans.]
|
4.
|
This notice and any non-contractual obligations arising out of or in connection with it are governed by South African law.
|
|
For and on behalf of
HARMONY GOLD MINING COMPANY LIMITED (AS BORROWER)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Chief Executive Officer
Who warrants his authority hereto
/s/ Frank Abbott
Signatory: Frank Abbott
Capacity: Financial Director
Who warrants his authority hereto
|
|
For and on behalf of
AFRICAN RAINBOW MINERALS GOLD LIMITED (AS ORIGINAL GUARANTOR)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Director
Who warrants his authority hereto
/s/ Frank Abbott
Signatory: Frank Abbott
Capacity: Director
Who warrants his authority hereto
|
|
For and on behalf of
FREEGOLD (HARMONY) PROPRIETARY LIMITED (FORMERLY KNOWN AS ARMGOLD/HARMONY FREEGOLD JOINT VENTURE COMPANY PROPRIETARY LIMITED (AS ORIGINAL GUARANTOR)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Director
Who warrants his authority hereto
/s/ Frank Abbott
Signatory: Frank Abbott
Capacity: Director
Who warrants his authority hereto
|
|
For and on behalf of
RANDFONTEIN ESTATES LIMITED (AS ORIGINAL GUARANTOR)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Director
Who warrants his authority hereto
/s/ Frank Abbott
Signatory: Frank Abbott
Capacity: Director
Who warrants his authority hereto
|
|
For and on behalf of
AVGOLD LIMITED (AS ORIGINAL GUARANTOR)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Director
Who warrants his authority hereto
/s/ Frank Abbott
Signatory: Frank Abbott
Capacity: Director
Who warrants his authority hereto
|
|
For and on behalf of
HARMONY COPPER LIMITED (AS ORIGINAL GUARANTOR)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Director
Who warrants his authority hereto
/s/ Frank Abbott
Signatory: Frank Abbott
Capacity: Director
Who warrants his authority hereto
|
|
For and on behalf of
MOROBE CONSOLIDATED GOLDFIELDS LIMITED (AS ORIGINAL GUARANTOR)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Director
Who warrants his authority hereto
/s/ Frank Abbott
Signatory: Frank Abbott
Capacity: Director
Who warrants his authority hereto
|
|
For and on behalf of
WAFI MINING LIMITED (AS ORIGINAL GUARANTOR)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Director
Who warrants his authority hereto
/s/ Frank Abbott
Signatory: Frank Abbott
Capacity: Director
Who warrants his authority hereto
|
|
For and on behalf of
HARMONY MOAB KHOTSONG OPERATIONS PROPRIETARY LIMITED (AS ORIGINAL GUARANTOR)
/s/ Herman Machiel Perry
Signatory: Herman Machiel Perry
Capacity: Director
Who warrants his authority hereto
/s/ Phillip Velile Tobias
Signatory: Phillip Velile Tobias
Capacity: Director
Who warrants his authority hereto
|
|
For and on behalf of
ABSA BANK LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION)
(AS GLOBAL COORDINATOR, BOOKRUNNER MANDATED LEAD ARRANGER AND ORIGINAL LENDER)
/s/ G Casewell____
Signatory: G Casewell
Capacity: Authorised
Who warrants his authority hereto
/s/ A Sam________
Signatory: A Sam
Capacity: Authorised
Who warrants his authority hereto
|
|
For and on behalf of
ABSA BANK LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION)
(AS ORIGINAL HEDGE PROVIDER)
/s/ Saloshni Pllay___________
Signatory: Saloshni Pillay
Capacity: Managing Principle
Who warrants his authority hereto
/s/ Opy Ramaremisa ________
Signatory: Opy Ramaremisa
Capacity: Principle
Who warrants his authority hereto
|
|
For and on behalf of
ABSA BANK LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION)
(AS FACILITY AGENT)
/s/ AG van Rooyen_____________________
Signatory: AG van Rooyen
Capacity: Authorised Signatory
Who warrants his authority hereto
/s/ LF Tsekelele_______________________
Signatory: LF Tsekelele
Capacity: Authorised Signatory
Who warrants his authority hereto
|
|
For and on behalf of
NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION)
(AS GLOBAL COORDINATOR, BOOKRUNNER AND ORIGINAL HEDGE PROVIDER)
/s/ GL Webber_______________
Signatory: GL Webber
Capacity: Authorised Signatory
Who warrants his authority hereto
/s/ P A van Kerckhoven ________
Signatory: P A van Kerckhoven
Capacity: Authorised Signatory
Who warrants his authority hereto
|
|
For and on behalf of
NEDBANK LIMITED (ACTING THROUGH ITS LONDON BRANCH) (AS MANDATED LEAD ARRANGER AND ORIGINAL LENDER)
/s/ Kevin Charles Ryder_____________
Signatory: Kevin Charles Ryder
Capacity: UK Country Head
Who warrants his authority hereto
/s/ David Sidgwick __________________
Signatory: David Sidgwick
Capacity: Chief Operating Officer
Who warrants his authority hereto
|
|
For and on behalf of
FIRSTRAND BANK LIMITED (LONDON BRANCH) (AS LEAD ARRANGER)
/s/ Brendan Battle__________
Signatory: Brendan Battle
Capacity: Authorised Signatory
Who warrants his authority
|
|
/s/ Colin Wakefield______________
Signatory: Colin Wakefield
Capacity: Authorised Signatory
Who warrants his authority
|
|
For and on behalf of
J.P. MORGAN SECURITIES PLC (AS LEAD ARRANGER)
/s/ Stuart Fraser___________
Signatory: Stuart Fraser
Capacity: VIce President
Who warrants his authority hereto
|
|
For and on behalf of
CITIBANK, N.A., SOUTH AFRICA BRANCH (AS LEAD ARRANGER)
/s/ Thomas Lambourn______________
Signatory: Thomas Lambourn
Capacity:
Who warrants his authority hereto
|
|
For and on behalf of
HSBC BANK PLC - JOHANNESBURG BRANCH (AS LEAD ARRANGER AND ORIGINAL LENDER)
/s/ Dean Radbourne_______
Signatory: Dean Radbourn
Capacity: Authorised Signatory
Who warrants his authority hereto
|
|
For and on behalf of
STATE BANK OF INDIA (ACTING THROUGH ITS JOHANNESBURG BRANCH) (AS ARRANGER)
/s/ Madhu Ramankutty_________
Signatory: Madhu Ramankutty
Capacity: Authorised Signatory
Who warrants his authority hereto
|
|
For and on behalf of
JPMORGAN CHASE BANK, N.A., LONDON BRANCH (AS ORIGINAL LENDER)
/s/ Stuart Fraser___________
Signatory: Stuart Fraser
Capacity: Vice President
Who warrants his authority hereto
____________________________
Signatory:
Capacity:
Who warrants his authority hereto
|
|
For and on behalf of
FEDERATED PROJECT AND TRADE FINANCE CORE FUND (AS ORIGINAL LENDER)
/s/ Ihab L Salib______________
Signatory: Ihab L Sahib
Capacity: Authorised Signatory: Senior Vice President
Who warrants his authority hereto
|
|
For and on behalf of
FEDERATED PROJECT AND TRADE FINANCE TENDER FUND (AS ORIGINAL LENDER)
/s/ Ihab L Salib______________
Signatory: Ihab L Sahib
Capacity: Authorised Signatory: Senior Vice President
Who warrants his authority hereto
|
|
For and on behalf of
FEDERATED REDWOOD TRADE FINANCE CORE FUND (AS ORIGINAL LENDER)
/s/ Ihab L Salib______________
Signatory: Ihab L Sahib
Capacity: Authorised Signatory: Senior Vice President
Who warrants his authority hereto
|
|
For and on behalf of
BANK OF CHINA LIMITED, JOHANNESBURG BRANCH (AS ORIGINAL LENDER)
/s/ Tony Taljaard______________________
Signatory: Tony Taljaard
Capacity: Senior Vice President / Head
Who warrants his authority hereto
/s/ Quanlei Liu________________
Signatory: Quanlei Liu
Capacity: Senior Executive Vice President
Who warrants his authority hereto
|
|
For and on behalf of
GOLDMAN SACHS INTERNATIONAL BANK (AS ORIGINAL LENDER)
/s/ Colette Pithie_______________
Signatory: Colette Pithie
Capacity: Authorised Signatory
Who warrants his authority hereto
|
|
For and on behalf of
HSBC BANK PLC (AS ORIGINAL HEDGE PROVIDER)
/s/ Jurgen Tulkens______________
Signatory: Jurgen Tulkens
Capacity: Authorised Signatory
Who warrants his authority hereto
|
|
For and on behalf of
JPMORGAN CHASE BANK, N.A. (AS ORIGINAL HEDGE PROVIDER)
/s/ Stuart Fraser________________
Signatory: Suart Fraser
Capacity: Vice President
Who warrants his authority hereto
____________________________
Signatory:
Capacity:
Who warrants his authority hereto
|
|
For and on behalf of
CITIBANK N.A., LONDON BRANCH (AS ORIGINAL HEDGE PROVIDER)
/s/ R Ennis______________________
Signatory: R Ennis
Capacity: Delegated Signatory
Who warrants his authority hereto
|
1
|
DEFINITIONS AND INTERPRETATION 1
|
31
|
THE FACILITY 31
|
PURPOSE 31
|
CONDITIONS OF UTILISATION 31
|
33
|
UTILISATION 33
|
35
|
REPAYMENT 35
|
PREPAYMENT AND CANCELLATION 35
|
41
|
INTEREST 41
|
INTEREST PERIODS 42
|
CHANGES TO THE CALCULATION OF INTEREST 42
|
FEES 43
|
45
|
TAX GROSS UP AND INDEMNITIES 45
|
INCREASED COSTS 48
|
OTHER INDEMNITIES 50
|
MITIGATION BY THE LENDERS 52
|
COSTS AND EXPENSES 52
|
54
|
GUARANTEE AND INDEMNITY 54
|
57
|
REPRESENTATIONS 57
|
INFORMATION UNDERTAKINGS 63
|
FINANCIAL COVENANTS 69
|
GENERAL UNDERTAKINGS 69
|
APPLICATION OF SANCTIONS PROVISIONS TO THE LENDERS 76
|
EVENTS OF DEFAULT 77
|
83
|
CHANGES TO THE LENDERS 83
|
CHANGES TO THE OBLIGORS 85
|
86
|
ROLE OF THE FACILITY AGENT 86
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES 94
|
SHARING AMONG THE FINANCE PARTIES 94
|
CONTRACTUAL RECOGNITION OF BAIL-IN 95
|
ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS 97
|
99
|
PAYMENT MECHANICS 99
|
SET OFF 102
|
NOTICES 102
|
CALCULATIONS AND CERTIFICATES 106
|
PARTIAL INVALIDITY 107
|
REMEDIES AND WAIVERS 107
|
AMENDMENTS AND WAIVERS 107
|
CONFIDENTIALITY 113
|
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS 115
|
RENUNCIATION OF BENEFITS 117
|
COUNTERPARTS 117
|
WAIVER OF IMMUNITY 117
|
SOLE AGREEMENT 117
|
NO IMPLIED TERMS 117
|
EXTENSIONS AND WAIVERS 117
|
INDEPENDENT ADVICE 118
|
119
|
GOVERNING LAW 119
|
JURISDICTION 119
|
SERVICE OF PROCESS 119
|
120
|
120
|
121
|
122
|
125
|
125
|
126
|
128
|
129
|
129
|
130
|
131
|
132
|
133
|
137
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(1)
|
Harmony Gold Mining Company Limited (the Parent);
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(2)
|
Harmony Moab Khotsong Operations Proprietary Limited and Golden Core Trade and Invest Proprietary Limited (the Borrowers);
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(3)
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Absa Bank Limited (acting through its Corporate and Investment Banking division) as Mandated Lead Arranger, Bookrunner and Original Lender;
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(4)
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Absa Bank Limited (acting through its Corporate and Investment Banking division) as agent of the other Finance Parties (the Facility Agent);
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(5)
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Citibank, N.A., London Branch as Mandated Lead Arranger and Bookrunner;
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(6)
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Citibank, N.A., Jersey Branch as Original Lender;
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(7)
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FirstRand Bank Limited (London Branch) as Mandated Lead Arranger, Bookrunner and Original Lender;
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(8)
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J.P. Morgan Securities Plc as Mandated Lead Arranger and Bookrunner; and
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(9)
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JPMorgan Chase Bank, N.A., London Branch as Original Lender.
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(i)
|
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
1.1.1
|
Acceptable Bank means:
|
1.1.1.1
|
any of the Lenders;
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1.1.1.2
|
Bank of South Pacific Limited, Australia and New Zealand Banking Group Limited, Westpac Banking Corporation, Westpac Bank PNG Ltd, Nedbank Limited, Absa Bank Limited, Citibank N.A., JPMorgan Chase Bank, N.A., London Branch, The Standard Bank of South Africa Limited, FirstRand Bank Limited, Investec Bank Limited, HSBC plc and HSBC Johannesburg Branch;
|
1.1.1.3
|
a bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of bbb- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or baa3 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or
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1.1.1.4
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any other bank or financial institution approved by the Facility Agent.
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1.1.2
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Acquisition means the acquisition by the Obligors of the applicable Acquisition Assets pursuant to the Acquisition Documents and as contemplated by the Funds Flow Statement.
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1.1.3
|
Acquisition Agreement means the written agreement entitled “Sale Agreement” concluded between AngloGold and the Original Obligors, dated 12 February 2020, in relation to the Acquisition, as amended pursuant to the written agreement entitled “First Addendum” concluded between AngloGold and the Original Obligors, dated 30 April 2020.
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1.1.4
|
Acquisition Assets means the sale equity, mining businesses, assets and liabilities comprising the Sale Package.
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1.1.5
|
Acquisition CP Fulfilment Date means the date on which the Acquisition Documents have become fully unconditional in accordance with their terms.
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1.1.6
|
Acquisition Costs means all fees, costs and expenses, stamp, registration and other Taxes incurred by an Obligor in connection with the Acquisition or the Acquisition Documents.
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1.1.7
|
Acquisition Documents means:
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1.1.7.1
|
the Acquisition Agreement;
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1.1.7.2
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any other agreement or document that may be designated as an Acquisition Document by written agreement between the Facility Agent and the Parent; and
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1.1.7.3
|
any amendment or restatement agreement to any Acquisition Document listed in Clauses 1.1.7.1 and 1.1.7.2 above.
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1.1.8
|
Acquisition Price means the “Purchase Price” as defined in the Acquisition Agreement.
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1.1.9
|
Acquisition Structure Chart means the structure chart describing the Acquisition prepared by the Parent.
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1.1.10
|
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.
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1.1.11
|
Agreement means this bridge facility agreement, including its Schedules.
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1.1.12
|
AngloGold means AngloGold Ashanti Limited (registration number 1944/017354/06), a public company duly incorporated in accordance with the company laws of South Africa.
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1.1.13
|
Anti-Corruption Laws means all laws, rules and regulations of any jurisdiction applicable to any Obligor or its Subsidiaries from time to time concerning or relating to bribery or corruption.
|
1.1.14
|
Applicable Margin means:
|
1.1.14.1
|
for the period commencing on the Signature Date and ending on (but excluding) the First Margin Step-up Date, 1,8% (nominal annual compounded quarterly);
|
1.1.14.2
|
for the period commencing on the First Margin Step-up Date and ending on (but excluding) the Second Margin Step-up Date, 2,4% (nominal annual compounded quarterly); and
|
1.1.14.3
|
for the period commencing on the Second Margin Step-up Date and ending on (but excluding) the Final Repayment Date, 3% (nominal annual compounded quarterly).
|
1.1.15
|
Auditors means one of PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche or any other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed).
|
1.1.16
|
AUSD means Australian Dollars, the lawful currency of Australia.
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1.1.17
|
Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration.
|
1.1.18
|
Availability Period means the period from and including the Signature Date to and including the date which is the earlier to occur of:
|
1.1.18.1
|
the date on which the Available Facility has been reduced to zero;
|
1.1.18.2
|
the date on which all of the Commitments are cancelled in accordance with the terms of this Agreement;
|
1.1.18.3
|
the date on which the Acquisition Agreement is terminated;
|
1.1.18.4
|
the last date on which the Acquisition can be completed in accordance with the terms of the Acquisition Documents, including any permitted extensions; and
|
1.1.18.5
|
31 December 2020.
|
1.1.19
|
Available Commitment means a Lender's Commitment minus:
|
1.1.19.1
|
the amount of its participation in any outstanding Loan; and
|
1.1.19.2
|
in relation to any proposed Utilisation, the amount of its participation in any Loan that are due to be made on or before the proposed Utilisation Date.
|
1.1.20
|
Available Facility means, the aggregate for the time being of each Lender's Available Commitment.
|
1.1.21
|
Basel II Accord means the International Convergence of Capital Measurement and Capital Standards, a Revised Framework published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement.
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1.1.22
|
Basel II Approach means either the Standardised Approach or the relevant Internal Ratings Based Approach (each as defined in the Basel II Accord) adopted by that Finance Party (or any of its Affiliates) for the purposes of implementing or complying with the Basel II Accord.
|
1.1.23
|
Basel II Regulation means:
|
1.1.23.1
|
any applicable law implementing the Basel II Accord; or
|
1.1.23.2
|
any Basel II Approach.
|
1.1.24
|
Basel III means:
|
1.1.24.1
|
the agreements on capital requirements, a leverage ratio and liquidity standards contained in Basel III: A global regulatory framework for more resilient banks and banking systems, Basel III: International framework for liquidity risk measurement, standards and monitoring and Guidance for national authorities operating the countercyclical capital buffer published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
1.1.24.2
|
the rules for global systemically important banks contained in Global systemically important banks: assessment methodology and the additional loss absorbency requirement on Banking Supervision in December 2010, each as amended, supplemented or restated;
|
1.1.24.3
|
any Basel III Regulation; and
|
1.1.24.4
|
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III.
|
1.1.25
|
Basel III Increased Cost means an Increased Cost which is attributable to the implementation or application of or compliance with or any change in (or in the interpretation, administration or application of or compliance with) Basel III (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates), including but not limited to the Capital Requirements Directive (CRD IV).
|
1.1.26
|
Basel III Regulation means any applicable law implementing Basel III save and to the extent that it re-enacts a Basel II Regulation.
|
1.1.27
|
BEE means broad-based black economic empowerment, as contemplated in the BEE Act.
|
1.1.28
|
BEE Act means the Broad-Based Black Economic Empowerment Act, 53 of 2003, as amended, together with any regulations promulgated thereunder, the Codes, and any relevant sector charter(s) or codes applicable to the business of the Harmony Moab BEE Entity and a Golden Core BEE Partner published in terms thereof, all as amended from time to time.
|
1.1.29
|
BEE Entity means a special purpose entity incorporated under the laws of South Africa and established in order to consummate a BEE transaction pursuant to which such entity may acquire up to 3% (three per cent) of the issued ordinary shares of Harmony Moab;
|
1.1.30
|
Breakage Costs means the amount (if any) by which:
|
1.1.30.1
|
the interest excluding the Applicable Margin which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
1.1.30.2
|
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
1.1.31
|
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Johannesburg, London and New York.
|
1.1.32
|
Buy-In Option means the right of Papua New Guinea exercisable at any time prior to the commencement of mining to make a single purchase of up to a 30% (thirty per cent) equitable interest in any mineral discovery arising from any or all of Exploration Licences No EL 440 and EL 1105 and Exploration Licence Application ELA 1927 at a price pro-rata to the accumulated exploration expenditure thereon.
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1.1.33
|
Cash means, at any time, cash denominated in ZAR, USD, PNGK or AUSD in hand or in a bank account and (in the latter case) credited to an account in the name of a member of the Group with an Acceptable Bank and to which a member of the Group is alone (or together with other members of the Group) beneficially entitled and for so long as:
|
1.1.33.1
|
that cash is repayable within 90 (ninety) days after the relevant date of calculation;
|
1.1.33.2
|
repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;
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1.1.33.3
|
there is no Security over that cash except for any Permitted Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements; and
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1.1.33.4
|
the cash is freely and (except as mentioned in Clause 1.1.33.1 above) immediately available to be applied in repayment or prepayment of the Facility.
|
1.1.34
|
Cash Equivalent Investments means at any time:
|
1.1.34.1
|
certificates of deposit maturing within 1 (one) year after the relevant date of calculation, issued by an Acceptable Bank;
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1.1.34.2
|
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investor Services Limited, (ii) which invest substantially all their assets in securities of the types described in Clause 1.1.34.1 above and (iii) can be turned into cash on not more than 90 (ninety) days' notice; or
|
1.1.34.3
|
any other debt security or investment approved by the Majority Lenders,
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1.1.35
|
Closing Date has the meaning given to that term in the Acquisition Document.
|
1.1.36
|
Code means the US Internal Revenue Code of 1986.
|
1.1.37
|
Codes means the Codes of Good Practice on Black Economic Empowerment gazetted on 9 February 2007 by the Department of Trade and Industry in terms of the BEE Act and the Codes of Good Practice on Black Economic Empowerment gazetted on 11 October 2013 by the Department of Trade and Industry in terms of the BEE Act, and in each case, any replacement or amended Codes of Good Practice.
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1.1.38
|
Commitment means:
|
1.1.38.1
|
in relation to an Original Lender, the amount set opposite its name under the heading Commitment in Part II of Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement;
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1.1.38.2
|
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
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1.1.39
|
Companies Act means the Companies Act, 2008.
|
1.1.40
|
Compliance Certificate means a certificate substantially in the form set out in Schedule 6 (Form of Compliance Certificate).
|
1.1.41
|
Confidential Information means all information relating to the Parent, any other Obligor, the Group, the Joint Ventures, the Finance Documents, the Facility, the Acquisition Documents and the Acquisition Assets of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either:
|
1.1.41.1
|
any member of the Group or any of its advisers; or
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1.1.41.2
|
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
1.1.41.3
|
information that:
|
1.1.41.3.1
|
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 38 (Confidentiality); or
|
1.1.41.3.2
|
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
1.1.41.3.3
|
is known by that Finance Party before the date the information is disclosed to it in accordance with Clauses 1.1.41.1 or 1.1.41.2 above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
|
1.1.41.4
|
any Funding Rate or Reference Bank Quotation.
|
1.1.42
|
Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Parent and the Facility Agent.
|
1.1.43
|
Control means:
|
1.1.43.1
|
in relation to a company the shares of which are not listed on a stock exchange where another company or legal entity or person (whether alone or pursuant to an agreement with others):
|
1.1.43.1.1
|
holds or controls more than 50% (fifty per cent) of the voting rights (taking into account when such voting rights can be exercised) in that company; or
|
1.1.43.1.2
|
has the right to appoint or remove the majority of that company’s board of directors; or
|
1.1.43.1.3
|
has the power to ensure the majority of that company’s board of directors will act in accordance with its wishes; or
|
1.1.43.2
|
in relation to a company the shares of which are listed on a stock exchange:
|
1.1.43.2.1
|
the holding of shares or the aggregate of holdings of shares or other securities in a company entitling the holder thereof to exercise, or cause to be exercised 35% (thirty five per cent) or more of the voting rights at shareholder meetings of the company irrespective of whether such holding or holdings confers de facto control, provided that should there be other shareholders holding more than 35% (thirty five per cent), 35% (thirty five per cent) shall be read to refer to the largest percentage shareholding held at the time;
|
1.1.43.2.2
|
the holding or control by a shareholder or member alone or pursuant to an agreement with other shareholders or members of more than 35% (thirty five per cent) of the voting rights in the company irrespective of whether such holding or holdings confers de facto control, provided that should there be other shareholders holding more than 35% (thirty five per cent), 35% (thirty five per cent) shall be read to refer to the largest percentage shareholding held at the time,
|
1.1.44
|
Default means an Event of Default or any event or circumstance specified in Clause 22 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
|
1.1.45
|
Defaulting Lender means any Lender:
|
1.1.45.1
|
which has failed to make its participation in a Loan available (or has notified the Facility Agent or the Parent (which has notified the Facility Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation);
|
1.1.45.2
|
which has otherwise rescinded or repudiated a Finance Document; or
|
1.1.45.3
|
in respect of which an insolvency event as contemplated in Clauses 23.6 and 23.7 has occurred and is continuing,
|
1.1.45.4
|
its failure to pay, is caused by:
|
1.1.45.4.1
|
administrative or technical error; or
|
1.1.45.4.2
|
a Disruption Event, and
|
1.1.45.5
|
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
|
1.1.46
|
Derivatives Transaction means a contract, agreement or transaction which is a rate swap, basis swap, forward rate transaction, bond option, interest rate option, cap, collar or floor, gold derivative, foreign exchange transaction or any other similar transaction and/or any combination of such transaction, in each case, whether on-exchange or otherwise, and which shall include the 'Gold Price Derivative Transactions' as defined in and concluded under the Hedging Documents.
|
1.1.47
|
Disruption Event means either or both of:
|
1.1.47.1
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
|
1.1.47.2
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
|
1.1.47.2.1
|
from performing its payment obligations under the Finance Documents; or
|
1.1.47.2.2
|
from communicating with other Parties in accordance with the terms of the Finance Documents,
|
1.1.48
|
Distribution means any payment by way of interest, principal, dividend, fee, royalty or other distribution or payment by or on behalf of the Parent to or for the account of any shareholder or member of the Parent or any person that directly or indirectly controls or is controlled by any shareholder or member of the Parent.
|
1.1.49
|
EBITDA means, in respect of any person, and any period, the consolidated operating profit before income tax for such period:
|
1.1.49.1
|
(to the extent not already excluded) before interest received or receivable and interest paid or payable;
|
1.1.49.2
|
(to the extent not already excluded) adjusted to exclude any gain or loss realised on the disposal of fixed assets (whether tangible or intangible);
|
1.1.49.3
|
(to the extent not already excluded) before deducting any extraordinary costs and before including extraordinary income;
|
1.1.49.4
|
after deducting operating lease expenses relating to lease or hire purchase contracts that would have been treated as an operating lease in accordance with GAAP in force prior to 1 January 2019;
|
1.1.49.5
|
dividends received in cash from companies consolidated by the equity accounted method to the extent not already taken into account; and
|
1.1.49.6
|
depreciation and amortisation of any property plant and equipment and Intangible Assets.
|
1.1.50
|
Environment means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:
|
1.1.50.1
|
air (including, without limitation, air within natural or man-made structures, whether above or below ground);
|
1.1.50.2
|
water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
|
1.1.50.3
|
land (including, without limitation, land under water).
|
1.1.51
|
Environmental Claim means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.
|
1.1.52
|
Environmental Law means any applicable law or regulation which relates to:
|
1.1.52.1
|
the pollution or protection of the Environment;
|
1.1.52.2
|
the conditions of the workplace; or
|
1.1.52.3
|
the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.
|
1.1.53
|
Environmental Permits means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group.
|
1.1.54
|
Equator Principles means the standards entitled "A financial industry benchmark for determining, assessing and managing environmental and social risk in projects" dated June 2013 and adopted by certain financial institutions, as the same may be amended or supplemented from time to time.
|
1.1.55
|
Eskom Guarantees means any guarantees or indemnities given by or on behalf of the Parent or any member of the Group to Eskom Holdings SOC Limited in an aggregate amount not exceeding ZAR900 000 000 (nine hundred million Rand) at any time.
|
1.1.56
|
Event of Default means any event or circumstance specified as such in Clause 22 (Events of Default).
|
1.1.57
|
Existing Facilities means the Existing USD Facilities and the Existing ZAR Facilities and Existing Facility means, as the context requires, either one of them.
|
1.1.58
|
Existing USD Facilities means the term and revolving credit facilities made available to the Parent pursuant to the Existing USD Facility Agreement.
|
1.1.59
|
Existing USD Facility Agreement means the written agreement entitled ”Term and Revolving Credit Facilities Agreement of up to USD400 000 000” concluded between, amongst others, the Parent and the USD Finance Parties, dated 19 August 2019, as amended from time to time.
|
1.1.60
|
Existing ZAR Facility Agreement means the written agreement entitled “First Amended and Restated ZAR2 000 000 000 Term and Revolving Credit Facilities Agreement” concluded between, amongst others, the Parent and the ZAR Facility Finance Parties, dated 26 September 2019, as amended from time to time.
|
1.1.61
|
Existing ZAR Facilities means the term and revolving credit facilities made available to the Parent pursuant to the Existing ZAR Facility Agreement.
|
1.1.62
|
Exploration Portfolio Joint Venture means the joint venture constituted by the joint venture agreement between Morobe Consolidated Goldfields Limited, Wafi Mining Limited, Morobe Exploration Limited, Newcrest PNG 3 Limited and Morobe Exploration Services Limited dated 22 May 2008.
|
1.1.63
|
Extension means an extension of the Final Repayment Date a described in Clause 6.2.
|
1.1.64
|
Extension Date means the date on which any Extension occurs.
|
1.1.65
|
Extended Final Repayment Date has the meaning given to it in Clause 6.2.1.1.
|
1.1.66
|
Facility means the bridge term loan facility made available under this Agreement as described in Clause 2 (The Facility).
|
1.1.67
|
Facility Office means:
|
1.1.67.1
|
in respect of a Lender the office or offices notified by that Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 5 (five) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; or
|
1.1.67.2
|
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
|
1.1.68
|
FATCA means
|
1.1.68.1
|
sections 1471 to 1474 of the Code or any associated regulations;
|
1.1.68.2
|
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in Clause 1.1.68.1 above; or
|
1.1.68.3
|
any agreement pursuant to the implementation of any treaty, law or regulation referred to in Clause 1.1.68.1 or 1.1.68.2 above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
1.1.69
|
FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.
|
1.1.70
|
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
|
1.1.71
|
Fee Letters means the written fee letters entered into or to be entered into from time to time between the Borrowers, the Parent, the Original Lenders and/or the Facility Agent relating to the fees payable in respect of the Facility as contemplated in Clause 11 (Fees) below, and Fee Letter means any one of them as the context requires.
|
1.1.72
|
Final Repayment Date means the Initial Repayment Date or, if an Extension occurs, the Extended Final Repayment Date or the Second Extended Final Repayment Date, as applicable;
|
1.1.73
|
Finance Document means:
|
1.1.73.1
|
this Agreement;
|
1.1.73.2
|
the Funds Flow Statement;
|
1.1.73.3
|
each Security Document;
|
1.1.73.4
|
each Fee Letter;
|
1.1.73.5
|
the Utilisation Request;
|
1.1.73.6
|
each Compliance Certificate;
|
1.1.73.7
|
and any other agreement or document that may be designated as a Finance Document by written agreement between the Facility Agent and the Parent; and
|
1.1.73.8
|
any amendment or restatement agreement to any Finance Document listed in Clauses 1.1.73.1 to 1.1.73.7 above,
|
1.1.74
|
Finance Parties means the Facility Agent, Mandated Lead Arrangers and each Lender and Finance Party means each or any of them (as the context may require.
|
1.1.75
|
Financial Close means the date on which the Facility Agent gives the notification under Clause 4.1 (Conditions precedent to first Utilisation) of this Agreement.
|
1.1.76
|
Financial Indebtedness means any indebtedness for or in respect of:
|
1.1.76.1
|
moneys borrowed;
|
1.1.76.2
|
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
|
1.1.76.3
|
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
|
1.1.76.4
|
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
|
1.1.76.5
|
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
|
1.1.76.6
|
any Derivatives Transaction (and, when calculating the value of any derivative transaction, only the marked to market value or actual net amount payable thereunder shall be taken into account);
|
1.1.76.7
|
any amount raised by the issue of shares which are redeemable;
|
1.1.76.8
|
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
|
1.1.76.9
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in Clauses 1.1.76.1 to 1.1.76.8 above.
|
1.1.77
|
Financial Year means, at any time, the annual accounting period of the Group ending on 30 June in each calendar year.
|
1.1.78
|
First Margin Step-up Date means the date falling 6 (six) Months after the Signature Date;
|
1.1.79
|
Fundamental Control Event means any of the following:
|
1.1.79.1
|
any person or group of persons acting in concert gain(s) Control of the Parent, or the Parent is no longer listed on the JSE Securities Exchange;
|
1.1.79.2
|
a change in Control of any of the Material Obligors where the purchase consideration is not in cash, without the prior written consent of the Lenders;
|
1.1.79.3
|
a change in ownership or interests in any of the Joint Ventures from such ownership or interests as constituted at the date of this Agreement, but shall exclude:
|
1.1.79.3.1
|
a change in ownership or interests which arises as a result of the relevant Obligor that holds such ownership or interests at the date of this Agreement subsequently transferring such ownership or interests to another Material Obligor (including to a person that becomes a Material Obligor in accordance with the provisions of this Agreement on or before the date of such transfer of ownership), to the extent it is permitted to do so; and
|
1.1.79.3.2
|
a change in ownership or interests resulting from Papua New Guinea exercising its Buy-In Option.
|
1.1.80
|
Fundamental Disposal Event means a disposal (whether by way of sale, lease, license, transfer, loan or other disposal) of any Material Asset for a purchase consideration other than cash, without the prior written consent of the Lenders.
|
1.1.81
|
Funding Rate means any individual rate notified by a Lender to the Facility Agent pursuant to Clause 10.2.1.2 (Market disruption).
|
1.1.82
|
Funds Flow Statement means the funds flow statement in the agreed form delivered to the Facility Agent pursuant to Clause 4.1 (Initial conditions precedent).
|
1.1.83
|
Golden Core means Golden Core Trade and Invest Proprietary Limited (registration number 2019/547039/07), a private company duly incorporated in accordance with the company laws of South Africa.
|
1.1.84
|
Golden Core BEE Partner means a community trust registered at the Master’s Office under the laws of South Africa and/or a share incentive or other scheme for the benefit of any employees, and established in order to comply with the terms of the Section 11 Ministerial Consent, pursuant to which such entities may acquire up to 10% (ten per cent) of the issued ordinary shares of Golden Core.
|
1.1.85
|
Golden Core BEE Transaction means the acquisition by a Golden Core BEE Partner of up to 10% (ten per cent) of the issued ordinary share capital of Golden Core as contemplated in the Section 11 Ministerial Consent;
|
1.1.86
|
Golden Core Disposal means any sale, lease, licence, transfer or other disposal by the Parent of up to 10% (ten per cent) of the issued ordinary shares of Golden Core under or in connection with the Golden Core BEE Partner, subject to compliance with the provisions of Clause 21.20 (Golden Core BEE Transaction).
|
1.1.87
|
Governmental Authority means the government of any jurisdiction, or any political subdivision thereof, whether provincial, state or local, and any department, ministry, agency, instrumentality, authority, body, court, central bank or other entity lawfully exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
|
1.1.88
|
Group means:
|
1.1.88.1
|
the Parent and each Borrower; and
|
1.1.88.2
|
each other Subsidiary of the Parent and each of the Borrowers for the time being.
|
1.1.89
|
Harmony Moab means Harmony Moab Khotsong Operations Proprietary Limited (registration number 2006/039120/07), a private company duly incorporated in accordance with the company laws of South Africa.
|
1.1.90
|
Harmony Moab BEE Entity means a special purpose entity incorporated under the laws of South Africa and established in order to consummate a BEE transaction pursuant to which such entity may acquire up to 3% (three per cent) of the issued ordinary shares of Harmony Moab.
|
1.1.91
|
Hedging Documents bears the meaning assigned to such definition in the Existing Facilities.
|
1.1.92
|
Hidden Valley Joint Venture means the joint venture constituted by the joint venture agreement between Morobe Consolidated Goldfields Limited, Harmony PNG 20 Limited and Hidden Valley Services Limited dated 22 May 2008, as terminated on or about 30 June 2017.
|
1.1.93
|
Hidden Valley Mine means the gold and silver mining operations conducted on Mining Lease 151 at Hidden Valley, Lae Province, Papua New Guinea.
|
1.1.94
|
HMT means Her Majesty’s Treasury of the United Kingdom.
|
1.1.95
|
Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
|
1.1.96
|
IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
|
1.1.97
|
Impaired Facility Agent means the Facility Agent at any time when:
|
1.1.97.1
|
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
|
1.1.97.2
|
the Facility Agent otherwise rescinds or repudiates a Finance Document;
|
1.1.97.3
|
(if the Facility Agent is also a Lender) it is a Defaulting Lender under Clause 1.1.45.1, 1.1.45.2 or 1.1.45.3; or
|
1.1.97.4
|
an insolvency event as contemplated in Clauses 23.6 and 23.7 has occurred and is continuing with respect to the Facility Agent,
|
1.1.97.5
|
its failure to pay is caused by:
|
1.1.97.5.1
|
administrative or technical error; or
|
1.1.97.5.2
|
a Disruption Event; and
|
1.1.97.6
|
the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
|
1.1.98
|
Initial Repayment Date means the date falling 6 (six) Months from the Signature Date.
|
1.1.99
|
Intangible Assets means intangible assets as per the financial statements delivered in terms of Clause 19.1 (Financial statements).
|
1.1.100
|
Intellectual Property Rights means any patents, trademarks, service marks, designs, trading or business names, copyrights, design rights, moral rights, inventions, confidential information, know-how, domain names, topographical or similar rights, database or other intellectual property rights and interests and the benefit of all applications and rights to use (including by way of licence) such assets of each Obligor, in each case whether registered or unregistered.
|
1.1.101
|
Interest Cover Ratio means, in respect of any Ratio Test Period:
|
1.1.101.1
|
EBITDA;
|
1.1.101.2
|
divided by Total Interest.
|
1.1.102
|
Interest Period means, in relation to a Loan, each period of 3 (three) Months, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).
|
1.1.103
|
Interpolated Screen Rate means, in relation to LIBOR for any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
|
1.1.103.1
|
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
|
1.1.103.2
|
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
|
1.1.104
|
Joint Venture Agreements means the joint venture agreements constituting the Wafi-Golpu Joint Venture and the Exploration Portfolio Joint Venture.
|
1.1.105
|
Joint Ventures means the Exploration Portfolio Joint Venture and the Wafi-Golpu Joint Venture.
|
1.1.106
|
Legal Reservations means:
|
1.1.106.1
|
the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
|
1.1.106.2
|
the time barring of claims based on prescription laws that apply in the jurisdiction of incorporation of a member of the Group;
|
1.1.106.3
|
any other matters which are set out as qualifications or reservations as to matters of law of general application in any of the legal opinions delivered pursuant to Clause 4.1 (Conditions precedent to first Utilisation).
|
1.1.107
|
Lender means:
|
1.1.107.1
|
any Original Lender; and
|
1.1.107.2
|
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 24 (Changes to the Lenders),
|
1.1.108
|
Leverage Ratio means, at any time, the ratio of Total Net Debt to EBITDA.
|
1.1.109
|
LIBOR means, in relation to any Loan:
|
1.1.109.1
|
the applicable Screen Rate;
|
1.1.109.2
|
(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
|
1.1.109.3
|
if:
|
1.1.109.3.1
|
no Screen Rate is available for USD; or
|
1.1.109.3.2
|
no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,
|
1.1.109.4
|
as of, in the case of Clauses 1.1.109.1 and 1.1.109.3 above, the Specified Time on the Quotation Day for USD and for a period equal in length to the Interest Period of that Loan and, if that rate is less than zero, LIBOR shall be deemed to be zero.
|
1.1.110
|
LMA means the Loan Market Association.
|
1.1.111
|
Loan means the Loan made or to be made under the Facility.
|
1.1.112
|
Majority Lenders means:
|
1.1.112.1
|
if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate at least 66,67% (sixty six point six seven per cent) of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 66,67% (sixty six point six seven per cent) of the Total Commitments immediately prior to the reduction); or
|
1.1.112.2
|
at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate at least 66,67% (sixty six point six seven per cent) of all the Loans then outstanding.
|
1.1.113
|
Master’s Office means the relevant office of the Master of the High Court of South Africa.
|
1.1.114
|
Material Adverse Effect means a material adverse effect on:
|
1.1.114.1
|
the business, operations, property or condition (financial or otherwise) of the Parent, the Borrowers and/or the Group taken as a whole;
|
1.1.114.2
|
the ability of any Obligor to perform any of its obligations under the Finance Documents; or
|
1.1.114.3
|
the validity or enforceability of any of the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
|
1.1.115
|
Material Assets means:
|
1.1.115.1
|
the mining operations comprising the following mine shafts namely Kusasalethu (DMR Ref no. GP30/5/1/2/07MR), Tshepong and Phakisa (DMR Ref no. FS30/5/1/2/2/84MR), Doornkop (DMR Ref no. GP30/5/1/2/2/09MR), Masimong (DMR Ref no. FS30/5/1/2/2/82MR), Target 1 (DMR Ref no. FS30/5/1/2/2/14MR), Bambanani (DMR Ref no. FS30/5/1/2/2/83MR), Joel (DMR Ref no. FS30/5/1/2/2/13MR) and Harmony Moab (License No. NW30/5/1/2/2/15MR & 16MR);
|
1.1.115.2
|
the interests of Wafi Mining Limited in the Wafi-Golpu Joint Venture, being its rights under the Wafi-Golpu Joint Venture Agreement, its participating interest therein and its right to take its share in production thereof; and
|
1.1.115.3
|
the interests of Morobe Consolidated Goldfields Limited in the Hidden Valley Mine.
|
1.1.116
|
Material Obligors has the meaning given to that term in the Existing USD Facility Agreement.
|
1.1.117
|
MINEFI means the French Ministry of Finance.
|
1.1.118
|
Mining Law means any applicable law or regulation which relates to the conduct of prospecting, exploration and mining operations, including (in respect of operations in South Africa) the Mineral and Petroleum Resources Development Act, 2002 and (in respect of operations in Papua New Guinea) the Mining Act 1992 (PNG).
|
1.1.119
|
Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
|
1.1.119.1
|
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
1.1.119.2
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.
|
1.1.120
|
Obligors means the Borrowers and the Parent , and Obligor means each or any of them (as the context may require).
|
1.1.121
|
OFAC means the Office of Foreign Assets Control of the Department of Treasury of the United States of America.
|
1.1.122
|
Original Financial Statements means the audited consolidated financial statements of the Parent and Harmony Moab for the financial year ended 30 June 2019.
|
1.1.123
|
Original Obligor means each Borrower and the Parent.
|
1.1.124
|
Papua New Guinea means the Independent State of Papua New Guinea.
|
1.1.125
|
Parent means Harmony Gold Mining Company Limited (registration number 1950/038232/06), a public company duly incorporated in accordance with the company laws of South Africa.
|
1.1.126
|
Party means a party to this Agreement.
|
1.1.127
|
Permitted Guarantees means:
|
1.1.127.1
|
any guarantee under, or given in connection with the Existing Facilities;
|
1.1.127.2
|
any guarantees or indemnities given by any member of the Group (other than Golden Core) on behalf of any member of the Group in the ordinary course of its operational business requirements in an aggregate amount not exceeding USD35 000 000 (thirty five million United States Dollars) or its equivalent in any other currency or currencies;
|
1.1.127.3
|
any indemnity or guarantee granted in terms of the Finance Documents;
|
1.1.127.4
|
any guarantee required in terms of the Acquisition Documents to be provided by the Parent for the obligations of each other Obligor under the Acquisition Documents;
|
1.1.127.5
|
any guarantee which constitutes Permitted Indebtedness;
|
1.1.127.6
|
the Eskom Guarantees;
|
1.1.127.7
|
the Silicosis Settlement Guarantee;
|
1.1.127.8
|
the USD Environmental Guarantees;
|
1.1.127.9
|
the ZAR Environmental Guarantees;
|
1.1.127.10
|
any guarantee given by Harmony Gold Australia in favour of any Relevant Subsidiaries to enable such Relevant Subsidiary to obtain a class order that will reduce the IFRS and statutory audit requirements applicable to it; and
|
1.1.127.11
|
any other guarantee or indemnity granted with the prior written approval of the Facility Agent.
|
1.1.128
|
Permitted Indebtedness means:
|
1.1.128.1
|
any Financial Indebtedness arising under any of the Existing Facilities;
|
1.1.128.2
|
any Financial Indebtedness incurred pursuant to the Hedging Documents;
|
1.1.128.3
|
any Financial Indebtedness in respect of a lease or hire purchase contract concluded in the ordinary course of trading which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease;
|
1.1.128.4
|
any Financial Indebtedness of a member of the Group in respect of Permitted Guarantees;
|
1.1.128.5
|
any Financial Indebtedness of a member of the Group in respect of Permitted Loans;
|
1.1.128.6
|
any Financial Indebtedness of any member of the Group not included in Clauses 1.1.128.2 to 1.1.128.5, that does not result in Total Net Debt (including the Financial Indebtedness in Clause 1.1.128.1) of the Group exceeding the aggregate of :
|
1.1.128.6.1
|
ZAR2 500 000 000 (two billion five hundred million Rand) at any time plus the ZAR equivalent of USD450 000 000 (four hundred and fifty million United States Dollars), converted at the then prevailing exchange rate into a ZAR amount, provided that Golden Core shall not be permitted to incur Financial Indebtedness under this Clause 1.1.128.6.1; and
|
1.1.128.6.2
|
the ZAR equivalent amount of the Facility as at the Signature Date, calculated by converting the amount of the Facility into ZAR at the then prevailing exchange rate, provided that such amount may only be incurred under the Facility;
|
1.1.128.7
|
any Financial Indebtedness incurred by Golden Core provided that the aggregate amount of all such Financial Indebtedness does not exceed ZAR10 000 000 (ten million Rand) or its equivalent in any other currency or currencies;
|
1.1.128.8
|
any other Financial Indebtedness incurred with the prior written approval of the Facility Agent,
|
1.1.129
|
Permitted Loans means:
|
1.1.129.1
|
loans made by a Borrower to the Parent utilising the proceeds of any Utilisation under the Facility in order to fund a purpose referred to in Clause 3 (Purpose);
|
1.1.129.2
|
loans made by the Parent to any other member of the Group utilising the proceeds of any utilisation under the Existing Facilities in order to fund a permitted purpose under the Existing Facilities (Parent On Loans) and including on-loans made by any other member of the Group to any other member of the Group directly or indirectly from the proceeds of Parent On Loans;
|
1.1.129.3
|
trade credit granted in the ordinary course of a member of the Group’s day-to-day business upon terms usual for such trade;
|
1.1.129.4
|
loans by members of the Group existing prior to the Signature Date and which have been (i) disclosed in Schedule 10 (Disclosed Loans) hereto, or (ii) in the Original Financial Statements;
|
1.1.129.5
|
loans by a member of the Group which is not an Obligor existing prior to the Signature Date and which have been disclosed in the Original Financial Statements;
|
1.1.129.6
|
loans granted by any member of the Group to any other member of the Group other than as disclosed in 1.1.129.4 or 1.1.129.5 above, which do not at any time (on a consolidated basis taking into account all such loans) exceed ZAR300 000 000 (three hundred million Rand) or its equivalent in any other currency or currencies per Financial Year;
|
1.1.129.7
|
loans made by one member of the Group to any other member of the Group for the purposes of enabling the Borrowers or any other Obligor to meet its payment obligations under the Finance Documents;
|
1.1.129.8
|
a loan made by any member of the Group (other than Golden Core) to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group (other than Golden Core) does not exceed ZAR40 000 000 (forty million Rand) or its equivalent in any other currency or currencies or to an employee or director of a Borrower in terms of an approved employee share option scheme provided that on establishment, such scheme does not involve a net outflow of cash from the Group;
|
1.1.129.9
|
loans made by the Parent to Golden Core and on-lent by Golden Core, or loans made directly by the Parent, to a Golden Core BEE Partner for the purposes of financing the acquisition by that Golden Core BEE Partner of up to 10% (ten per cent) of the issued ordinary share capital of Golden Core as contemplated in the Section 11 Ministerial Consent, provided that the amount of such loans shall not exceed ZAR100 000 000 (one hundred million Rand) or its equivalent in any other currencies in aggregate;
|
1.1.129.10
|
loans made by the Parent to Harmony Moab and on-lent by Harmony Moab, or loans made directly by the Parent, to a Harmony Moab BEE Entity for the purposes of financing the acquisition by the Harmony Moab BEE Entity of up to 3% (three per cent) of the issued ordinary share capital of Harmony Moab pursuant to a BEE transaction in respect of Harmony Moab, provided that the amount of such loans shall not exceed ZAR100 000 000 (one hundred million Rand) or its equivalent in any other currencies in aggregate;
|
1.1.129.11
|
loans made by the Parent to any entity acquiring shares in a Group company pursuant to a BEE transaction in respect of that Group company, provided that the amount of such loans shall not exceed ZAR150 000 000 (one hundred and fifty million Rand) in aggregate; and
|
1.1.129.12
|
any other loans made with the prior written approval of the Facility Agent.
|
1.1.130
|
Permitted Security means:
|
1.1.130.1
|
any Security created in respect of the Existing Facilities;
|
1.1.130.2
|
Security created over any new asset, plant, machinery, equipment or property acquired and/or developed by any member of the Group to secure Permitted Indebtedness incurred for the purpose of financing the acquisition of such new asset, plant, machinery, equipment or property or the development, as the case may be, but not for the replacement or refurbishment or maintenance of an existing asset, plant, machinery, equipment or property;
|
1.1.130.3
|
Security created over any asset or property of an member of the Group (other than Golden Core) in order to secure Permitted Indebtedness for an aggregate amount (aggregated across all of the members of the Group (other than Golden Core)) not exceeding ZAR200 000 000 (two hundred million Rand) or its equivalent in any other currency or currencies;
|
1.1.130.4
|
Security created by operation of law, including without limitation any Environmental Law or Mining Law, and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;
|
1.1.130.5
|
any Security which is existing prior to the Signature Date and which has been disclosed (i) in Schedule 7: (Existing Security) hereto, or (ii) in the Original Financial Statements and in all circumstances securing only indebtedness outstanding at the Signature Date if the principal amount or original facility thereby secured is not increased after the Signature Date;
|
1.1.130.6
|
any netting or set-off arrangement entered into by a member of the Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances, and only such arrangements that are in existence at the Signature Date;
|
1.1.130.7
|
any Security entered into pursuant to any Finance Document as contemplated in the Finance Documents;
|
1.1.130.8
|
any cash collateralisation arrangements arising under:
|
1.1.130.8.1
|
the Eskom Guarantees provided that the amount provided as Security under those arrangements does not exceed ZAR210,000,000 at any time;
|
1.1.130.8.2
|
the ZAR Environmental Guarantees provided that the amount provided as Security under those arrangements does not exceed ZAR210,000,000 at any time;
|
1.1.130.8.3
|
the USD Environmental Guarantees provided that the amount provided as Security under those arrangements does not exceed USD20 000 000 at any time; and
|
1.1.130.8.4
|
the Silicosis Guarantee Facility and/or the Silicosis Settlement Guarantee ;
|
1.1.130.9
|
any other Security created with the prior written approval of the Facility Agent.
|
1.1.131
|
Permitted Share Issue means:
|
1.1.131.1
|
an Equity Raise;
|
1.1.131.2
|
an issue of ordinary shares by an Obligor to its Holding Company where, in the case of Golden Core, it has granted Transaction Security over all its issued shares, the newly-issued shares also become subject to the Transaction Security on the same terms;
|
1.1.131.3
|
an issue by Harmony Moab to a Harmony Moab BEE Entity for the purpose of financing the acquisition by a Harmony Moab BEE Entity of up to 3% (three per cent) of the issued ordinary share capital of Harmony Moab;
|
1.1.131.4
|
an issue by Golden Core to a Golden Core BEE Partner for the purpose of financing the acquisition by a Golden Core BEE Partner of up to 10% (ten per cent) of the issued ordinary share capital of Golden Core as contemplated in the Section 11 Ministerial Consent, subject to compliance with the provisions of Clause 21.20 (Golden Core BEE Transaction); and
|
1.1.131.5
|
a “Permitted Share Issue” as defined in the Existing Facilities.
|
1.1.132
|
Permitted Transferee means any person referred to Schedule 11 (Permitted Transferees), including any Affiliate of any such person.
|
1.1.133
|
PNGK means Papua New Guinea Kina, the lawful currency of Papua New Guinea.
|
1.1.134
|
Quotation Day means, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
|
1.1.135
|
Ratio Test Date means the last day of March, June, September and December.
|
1.1.136
|
Ratio Test Period means each period of 12 (twelve) months ending on a Ratio Test Date.
|
1.1.137
|
Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in USD and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.
|
1.1.138
|
Reference Bank Quotation means any quotation supplied to the Facility Agent by a Reference Bank.
|
1.1.139
|
Reference Banks means the principal London offices of up to three banks agreed between the Facility Agent and the Parent from time to time, subject to the consent of the relevant banks.
|
1.1.140
|
Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
|
1.1.141
|
Relevant Interbank Market means in relation to USD, the London interbank market.
|
1.1.142
|
Relevant Subsidiaries means:
|
1.1.142.1
|
Harmony Gold Securities Pty Ltd – ABN 69 087 480 902;
|
1.1.142.2
|
New Hampton Goldfields Ltd – ABN 53 009 193 999;
|
1.1.142.3
|
Harmony Gold WA Pty Ltd – ABN 84 099 119 918;
|
1.1.142.4
|
Harmony Gold Operations Ltd – ABN 44 005 482 842;
|
1.1.142.5
|
Abelle Limited – ABN 69 087 480 902;
|
1.1.142.6
|
Aurora Gold Limited – ABN 82 006 568 850; and
|
1.1.142.7
|
Harmony Gold (PNG Services) Limited – ABN 23 083 828 853.
|
1.1.143
|
Repeating Representations means each of the representations set out in Clause 18.1 (Status) to Clause 18.6 (Validity and admissibility in evidence), other than 18.5 (Benefit), Clause 18.10.1, Clause 18.11.1, Clause 18.11.2, Clause 18.12 (Financial statements), Clause 18.15 (Security Interest), Clause 18.16 (Pari passu ranking), Clause 18.21 (Authorised Signatures), Clause 18.22 (No immunity) and Clause 18.23 (Sanctions and anti-corruption); save that the references in Clause 18.12 to Original Financial Statements shall, for the purposes of this Repeating Representation, be construed as references to the most recent audited consolidated financial statements of the Group delivered to the Facility Agent under Clause 19.1 (Financial statements).
|
1.1.144
|
Representative means any representative, delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
|
1.1.145
|
Sale Package has the meaning given to that term in the Acquisition Document.
|
1.1.146
|
Sanctioned Entity means:
|
1.1.146.1
|
any person, country or territory which is listed on a Sanctions List or is subject to Sanctions, including without limitation and as at the date of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria;
|
1.1.146.2
|
any person which is ordinarily resident in a country or territory which is listed on a Sanctions List or is subject to Sanctions;
|
1.1.146.3
|
any person listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;
|
1.1.146.4
|
any person located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or operating in or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or
|
1.1.146.5
|
any person otherwise a target of Sanctions (being any person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).
|
1.1.147
|
Sanctions means general trade, economic or financial sanctions, laws, regulations, trade embargoes or restrictive measures imposed, administered or enforced from time to time by any Sanctions Authority, and more specifically:
|
1.1.147.1
|
the Specially Designated Nationals and Blocked Persons List, the Sectoral Sanctions Identifications List and the List of Foreign Sanctions Evaders, each administered and enforced by OFAC;
|
1.1.147.2
|
the Financial Sanctions: Consolidated List of Targets and the Ukraine: list of persons subject to restrictive measures in view of Russia's actions destabilising the situation in Ukraine administered and enforced by HMT; or
|
1.1.147.3
|
any other list or public announcement or sanctions designation made by OFAC, HMT or any Sanctions Authority, in respect of the targets or scope of the Sanctions that are administered and enforced by a Sanctions Authority.
|
1.1.148
|
Sanctions Authority means each of:
|
1.1.148.1
|
the United Nations Security Council;
|
1.1.148.2
|
the European Union;
|
1.1.148.3
|
the Council of Europe (founded under the Treaty of London, 1946);
|
1.1.148.4
|
the government of the United States of America;
|
1.1.148.5
|
the government of the United Kingdom;
|
1.1.148.6
|
the government of the Republic of France;
|
1.1.148.7
|
the Hong Kong Monetary Authority;
|
1.1.148.8
|
the government of the Commonwealth of Australia,
|
1.1.149
|
Sanctions List means any of the lists maintained by any Sanctions Authority and any similar list maintained, or a public announcement of a Sanctions designation made, by any Sanctions Authority, in each case as amended, supplemented or substituted from time to time.
|
1.1.150
|
Second Extended Final Repayment Date has the meaning given to it in Clause 6.2.1.2.
|
1.1.151
|
Second Margin Step-up Date means the date falling 3 (three) Months after the First Margin Step-up Date;
|
1.1.152
|
Screen Rate means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for USD for the relevant period displayed on page LIBOR01 or LIBOR02 (as the case may be) of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate), or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with the Parent.
|
1.1.153
|
Section 11 Ministerial Consent has the meaning given to that term in the Acquisition Document.
|
1.1.154
|
Secured Assets means the assets which are expressed to be the subject of the Transaction Security.
|
1.1.155
|
Secured Parties means the Finance Parties (other than the Facility Agent).
|
1.1.156
|
Security means a mortgage, notarial bond, bond, cession in security, charge, security assignment, pledge, hypothec, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
|
1.1.157
|
Security Document means the written agreement entitled “Cession and Pledge in Security” , dated on or about the Signature Date pursuant to which a cession in securitatem debiti is given in favour of each Lender by the Parent over the Shares in Golden Core and all current and future claims the Parent may have against Golden Core in respect of the Shares, whether in the form of shareholder loans or otherwise and the benefit of any security interest for the time being held by the Parent in respect of such claims.
|
1.1.158
|
Settlement Agreement means the written settlement agreement concluded on or about 3 May 2018 between, inter alia, the Parent and the lawyers representing the claimants in the silicosis class action litigation referred to in such agreement.
|
1.1.159
|
Shares means all or any shares held by the Parent in Golden Core.
|
1.1.160
|
Signature Date means the date of the signature of the Party last signing this Agreement in time.
|
1.1.161
|
Silicosis Guarantee Facility means the guarantee facility of up to R1,083,000,000 (one billion eighty three million Rand) concluded between Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) and the Parent on or about 18 December 2019.
|
1.1.162
|
Silicosis Settlement Guarantee means the guarantee issued under the Silicosis Guarantee Facility in favour of a trust established pursuant to the Settlement Agreement.
|
1.1.163
|
Specified Time means a time determined in accordance with Schedule 8 (Timetables).
|
1.1.164
|
Subsidiary means a subsidiary as defined in the Companies Act and shall include any person who would, but for not being a company under the Companies Act, qualify as a subsidiary as defined in the Companies Act.
|
1.1.165
|
Tangible Net Worth means Total Assets less Intangible Assets less Total Liabilities.
|
1.1.166
|
Tangible Net Worth to Total Net Debt means, at any time, the ratio of Tangible Net Worth to Total Net Debt.
|
1.1.167
|
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
|
1.1.168
|
Total Assets means total assets as per the financial statements delivered in terms of Clause 19.1 (Financial statements).
|
1.1.169
|
Total Commitments means the aggregate of the Commitments being USD200 000 000 at the Signature Date.
|
1.1.170
|
Total Interest means, in respect of any period, the aggregate accruing during such period (without duplication and whether or not paid or payable within such period) of, in respect of the Group on a consolidated basis (and whether or not the principal or capital obligation by reference to which any of the following are determined is an obligation of the Group):
|
1.1.170.1
|
all interest, acceptance commission, guarantee fees and any other continuing, regular or periodic costs and expenses in the nature of interest (whether paid, payable or capitalised) incurred in effecting, servicing or maintaining Financial Indebtedness;
|
1.1.170.2
|
amounts payable (as reduced by amounts receivable) in respect of any Derivatives Transaction which is an interest rate hedging arrangement entered into to hedge risks arising in the normal course of business; and
|
1.1.170.3
|
the interest element of, and ancillary fees payable under, any finance leases (other than a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease).
|
1.1.171
|
Total Liabilities means total non-current liabilities plus total current liabilities as per the financial statements delivered in terms of Clause 19.1 (Financial statements).
|
1.1.172
|
Total Net Debt means, at any time, the aggregate amount of all obligations of members of the Group for or in respect of Financial Indebtedness but:
|
1.1.172.1
|
excluding any such obligations to any other member of the Group;
|
1.1.172.2
|
excluding any liability of any member of the Group relating to the ZAR Environmental Guarantees;
|
1.1.172.3
|
excluding any liability of any member of the Group relating to the USD Environmental Guarantees;
|
1.1.172.4
|
excluding any liability of any member of the Group arising from the Eskom Guarantees;
|
1.1.172.5
|
excluding any liability of any member of the Group arising from the Silicosis Guarantee Facility and/or the Silicosis Settlement Guarantee;
|
1.1.172.6
|
including, in the case of any lease or hire purchase contract, which would in accordance with IFRS, be treated as a finance or capital lease (other than a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease), their capitalised value; and
|
1.1.172.7
|
deducting the aggregate amount of Cash and Cash Equivalent Investments held by any member of the Group at that time.
|
1.1.173
|
Transaction Documents means the Finance Documents and the Acquisition Documents.
|
1.1.174
|
Transaction Security means the Security created or expressed to be created in favour of the Lenders pursuant to the Security Document.
|
1.1.175
|
Transfer has the meaning given to it in Clause 24.1 (Cessions and delegations by the Lenders).
|
1.1.176
|
Transfer Certificate means a certificate substantially in the form set out Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the Borrowers.
|
1.1.177
|
Transfer Date means, in relation to a Transfer, the later of:
|
1.1.177.1
|
the proposed Transfer Date specified in the Transfer Certificate; and
|
1.1.177.2
|
the date on which the Facility Agent executes the Transfer Certificate.
|
1.1.178
|
Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.
|
1.1.179
|
USD means United States Dollars, the lawful currency of the United States of America.
|
1.1.180
|
USD Environmental Guarantees means any Financial Indebtedness relating to compliance with environmental and mining legislation in Papua New Guinea arising from rehabilitation operations in the form of environmental guarantees and financial security under such legislation in an aggregate amount not exceeding USD100 000 000 (one hundred million United Stated Dollars) at any time.
|
1.1.181
|
Utilisation means a utilisation of the Facility.
|
1.1.182
|
Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made.
|
1.1.183
|
Utilisation Request means a notice substantially in the form set out Schedule 3 (Form of Utilisation Request).
|
1.1.184
|
VAT means value added tax as provided for in the Value Added Tax Act, 1991 and any other tax of a similar nature.
|
1.1.185
|
Wafi-Golpu Joint Venture means the joint venture constituted by the joint venture agreement between Wafi Mining Limited, Newcrest PNG 2 Limited and Wafi-Golpu Services Limited dated 22 May 2008.
|
1.1.186
|
ZAR means South African Rand, the lawful currency of South Africa.
|
1.1.187
|
ZAR Environmental Guarantees means any Financial Indebtedness relating to compliance with environmental legislation in South Africa arising from rehabilitation operations in the form of environmental guarantees in an aggregate amount not exceeding ZAR1,300 000 000 (one billion three hundred million Rand) at any time.
|
1.2
|
Construction
|
1.2.1
|
Unless a contrary indication appears, any reference in this Agreement to:
|
1.2.1.1
|
any Arranger, Bookrunner, the Facility Agent, any Finance Party, any Lender, any Obligor or any Party shall be construed so as to include its successors in title, permitted cessionaries and permitted transferees;
|
1.2.1.2
|
assets includes present and future properties, revenues and rights of every description;
|
1.2.1.3
|
authority includes any court or any governmental, intergovernmental or supranational body, agency, department or any regulatory, self-regulatory or other authority;
|
1.2.1.4
|
a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated from time to time;
|
1.2.1.5
|
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
1.2.1.6
|
a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
1.2.1.7
|
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law, being one with which the relevant person is accustomed to comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
|
1.2.1.7.1
|
a provision of law is a reference to that provision as amended or re-enacted; and
|
1.2.1.7.2
|
a time of day is a reference to Johannesburg time.
|
1.2.1.8
|
Section, Clause and Schedule headings are for ease of reference only.
|
1.2.1.9
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
1.2.1.10
|
A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been waived.
|
1.2.1.11
|
If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in an interpretation Clause, effect shall be given to it as if it were a substantive provision of the relevant Finance Document.
|
1.2.1.12
|
Unless inconsistent with the context, an expression in any Finance Document which denotes the singular includes the plural and vice versa.
|
1.2.2
|
The Schedules to any Finance Document form an integral part thereof.
|
1.2.3
|
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 the Finance Documents.
|
1.2.4
|
The expiry or termination of any Finance Documents shall not affect such of the provisions of the Finance Documents as expressly provide that they will operate after any such expiry or termination or which of necessity must continue to have effect after such expiry or termination, notwithstanding that the Clauses themselves do not expressly provide for this.
|
1.2.5
|
The Finance Documents shall to the extent permitted by applicable law be binding on and enforceable by the administrators, trustees, permitted cessionaries, business rescue practitioners or liquidators of the Parties as fully and effectually as if they had signed the Finance Documents in the first instance and reference to any Party shall be deemed to include such Party’s administrators, trustees, permitted cessionaries, business rescue practitioners or liquidators, as the case may be.
|
1.2.6
|
The use of any expression in any Finance Document covering a process or proceeding available under South African law such as winding-up or business rescue (without limitation eiusdem generis) shall, if any of the Parties to the Finance Documents is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous process or proceedings under the law of such other jurisdiction.
|
1.2.7
|
Where figures are referred to in numerals and in words in any Finance Document, if there is any conflict between the two, the words shall prevail.
|
1.2.8
|
Unless a contrary indication appears, where any number of days is to be calculated from a particular day, such number shall be calculated as including that particular day and excluding the last day of such period.
|
1.3
|
Third party rights
|
1.3.1
|
Except as expressly provided for in this Agreement or in any other Finance Document, no provision of any Finance Document constitutes a stipulation for the benefit of any person who is not a party to that Finance Document.
|
1.3.2
|
Notwithstanding any term of any Finance Document, the consent of any person who is not a party to that Finance Document is not required to rescind or vary that Finance Document at any time except to the extent that the relevant variation or rescission (as the case may be) relates directly to the right conferred upon any applicable third party under a stipulation for the benefit of that party that has been accepted by that third party.
|
2.
|
THE FACILITY
|
2.1
|
The Facility
|
2.2
|
Finance Parties' rights and obligations
|
2.2.1
|
The obligations of each Finance Party under the Finance Documents are separate and independent. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
2.2.2
|
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
2.2.3
|
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
3.
|
PURPOSE
|
3.1
|
Purpose
|
3.1.1
|
(directly or indirectly) funding the Acquisition and Acquisition Costs, substantially in the manner contemplated in the Funds Flow Statement; and
|
3.1.2
|
for any other purpose agreed in writing between the Borrowers and the Facility Agent (acting on the instructions of all the Lenders).
|
3.2
|
Monitoring
|
4.
|
CONDITIONS OF UTILISATION
|
4.1
|
Conditions precedent to First Utilisation
|
4.2
|
Conditions precedent to Utilisations generally
|
4.2.1
|
no Default is continuing or would result from the proposed Loan; and
|
4.2.2
|
the Repeating Representations to be made by each Obligor are true in all material respects.
|
5.
|
UTILISATION
|
5.1
|
Delivery of a Utilisation Request
|
5.2
|
Completion of a Utilisation Request
|
5.2.1
|
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
5.2.1.1
|
the proposed Utilisation Date is a Business Day within the Availability Period;
|
5.2.1.2
|
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
|
5.2.1.3
|
the Interest Period complies with Clause 9 (Interest Periods).
|
5.2.2
|
Only one Loan may be requested in each Utilisation Request.
|
5.2.3
|
No more than 5 (five) Utilisation Requests may be submitted in respect of the Facility.
|
5.2.4
|
The Borrowers may not deliver a Utilisation Request if as a result of the proposed Utilisation more than 5 (five) Loans would be outstanding at any point in time.
|
5.3
|
Currency and amount
|
5.3.1
|
The currency specified in a Utilisation Request must be USD.
|
5.3.2
|
The amount of the proposed Loan must be an amount which is a minimum of USD10 000 000 (ten million United States Dollars) (in integral multiples thereof) or, if less, the Available Facility.
|
5.4
|
Lenders' participation
|
5.4.1
|
If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
|
5.4.2
|
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
|
5.4.3
|
The Facility Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan by the Specified Time.
|
5.5
|
Cancellation of Commitment
|
5.5.1
|
If Financial Close has not occurred by the date which is no later than 10 (ten) days after the Closing Date (or within such other period as the Lenders may have agreed to in writing before the lapse of such period), the Commitments shall be immediately cancelled.
|
5.5.2
|
The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.
|
6.
|
REPAYMENT
|
6.1
|
Repayment
|
6.1.1
|
The Borrowers shall repay the Loan made to them in full on the Final Repayment Date.
|
6.1.2
|
The Borrowers may not re-borrow any part of the Facility which is repaid.
|
6.2
|
Extension
|
6.2.1
|
Subject to the provisions of Clauses 6.2.2 and 6.2.3 below, no more than 60 days and not less than 30 days prior to the –
|
6.2.1.1
|
Initial Repayment Date, the Borrowers may, by notice to the Facility Agent, request an extension of the Final Repayment Date to the date falling 3 (three) Months after the Initial Repayment Date (Extended Final Repayment Date); or
|
6.2.1.2
|
Extended Final Repayment, Date the Borrowers may, by notice to the Facility Agent request an extension of the Final Repayment Date to the date falling 3 (three) Months after the Extended Final Repayment Date (Second Extended Final Repayment Date).
|
6.2.2
|
If the Facility has not then been cancelled in accordance with the terms of this Agreement and the Utilisation Date has not occurred on or prior to the date falling 30 days prior to the Initial Repayment Date or the Extended Final Repayment Date, as applicable (such date being the Relevant Date), the Borrowers shall be automatically deemed to have delivered a notice to the Facility Agent on the Relevant Date requesting the extensions referred to in Clause 6.2.1 (and the requirements of Clause 33 (Notices) shall not apply to such a deemed notice). The Facility Agent shall notify all the Lenders upon the occurrence of the Relevant Date.
|
6.2.3
|
The Borrowers shall pay or procured the payment of the relevant extension fee in accordance with Clause 11.4 (Extension fee).
|
6.2.4
|
Subject and without prejudice to the other terms of this Agreement, provided that a notice requesting the extension has been delivered (or deemed to be delivered) in accordance with Clauses 6.2.1 or 6.2.2 above and provided that the condition set out in Clause 6.2.3 above is satisfied, each extension of the Final Repayment Date shall become effective on the Relevant Date. The Facility Agent shall inform the Borrowers and the Lenders on the effectiveness of the extension of the Final Repayment Date promptly following these conditions being satisfied.
|
7.
|
PREPAYMENT AND CANCELLATION
|
7.1
|
Illegality
|
7.1.1
|
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
|
7.1.2
|
upon the Facility Agent notifying the Borrowers, the Commitment of that Lender or its Affiliate will be immediately cancelled; and
|
7.1.3
|
to the extent that the Lender’s or its Affiliate’s participation has not been transferred pursuant to Clause 37.3 (Replacement of Lender), the Borrowers shall repay that Lender's or its Affiliate’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Borrowers or, if earlier, the date specified by the Lender or its Affiliate in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's or its Affiliate’s corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.
|
7.2
|
Fundamental Control Event or Fundamental Disposal Event
|
7.2.1
|
If any Fundamental Control Event or Fundamental Disposal Event occurs:
|
7.2.1.1
|
the Borrowers shall promptly notify the Facility Agent upon becoming aware of that event;
|
7.2.1.2
|
a Lender shall not be obliged to fund a Utilisation; and
|
7.2.1.3
|
if the Majority Lenders so require, the Facility Agent shall, by notice to the Borrowers, cancel the Total Commitments and declare all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Total Commitments will be cancelled and all such outstanding amounts will become immediately due and payable or due and payable on the date referred to in the notice.
|
7.2.2
|
Notwithstanding Clause 7.2.1.3, if a Fundamental Control Event described in Clause 1.1.79.1 occurs and if any Lender so requires, the Facility Agent shall, by notice to the Borrowers, cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable or due and payable on the date referred to in the notice.
|
7.3
|
Certain definitions
|
7.3.1
|
For purposes of the Clauses below and any other relevant provisions of this Agreement:
|
7.3.1.1
|
Disposal means a sale, lease, transfer or other disposal by a person of any asset (whether by a voluntary or involuntary single transaction or series of transactions).
|
7.3.1.2
|
Disposal Proceeds means the cash proceeds received by any member of the Group in respect of any Disposal of any of: (a) the shares or other ownership interests in Golden Core; or (b) the Acquisition Assets, made by any member of the Group to any person who is not a member of the Group (in each case) after deducting any relevant costs and expenses reasonably and properly incurred in connection with the relevant Disposal.
|
7.3.1.3
|
Equity Raise means any issuance, after the date of this Agreement, by the Parent of newly issued shares (including, without limitation, any ordinary or preference shares) for cash consideration or any issuance by the Parent of any other equity or equity-linked instrument(s) (including, without limitation, any hybrid instrument or instruments or securities convertible or exchangeable into newly issued shares in the Parent) to any person outside the Group for cash consideration.
|
7.3.1.4
|
Excluded Insurance Proceeds means the proceeds of any insurance claim:
|
7.3.1.4.1
|
which are, or are to be, applied to meet third party liability, public liability or directors liability claims;
|
7.3.1.4.2
|
which are, or are to be, applied to cover operating losses in respect of which the relevant insurance claim was made;
|
7.3.1.4.3
|
which are, or are to be, applied in the replacement, reinstatement and/or repair of the assets or otherwise in amelioration of the loss in respect of which the relevant insurance claim was made;
|
7.3.1.4.4
|
which are equal to or less than ZAR10 000 000 (or its equivalent in another currency or currencies) in respect of any individual insurance claim; or
|
7.3.1.4.5
|
which, when aggregated with the proceeds of each other insurance claim, do not exceed ZAR30 000 000 (or its equivalent in another currency or currencies) in any Financial Year.
|
7.3.2
|
Insurance Proceeds means the cash proceeds (except for Excluded Insurance Proceeds) of any insurance claim made under any insurance maintained by any Obligor in respect of the Acquisition Assets and received by that Obligor after deducting any relevant costs and expenses reasonably and properly incurred in connection with the relevant claim.
|
7.3.3
|
Net Fundraising Proceeds means an amount equal to any cash proceeds received by any member of the Group (irrespective of the currency in which such proceeds are received):
|
7.3.3.1
|
as a result of any Equity Raise; and/or
|
7.3.3.2
|
at any time from any loan or other debt facility, or any issue, sale, public offering or private placement of any debt security issued or, as applicable, borrowed by any member of the Group to or, as applicable, from any person who is not a member of the Group,
|
7.3.4
|
Prepayment Proceeds means, as the context requires, Net Fundraising Proceeds, Disposal Proceeds and/or Insurance Proceeds.
|
7.4
|
Mandatory prepayment: Disposal Proceeds
|
7.5
|
Mandatory prepayment: Net Fundraising Proceeds
|
7.6
|
Mandatory prepayment: Insurance Proceeds
|
7.7
|
Application of proceeds
|
7.7.1
|
Any amounts to be applied in prepayment and/or cancellation of the Facility pursuant to Clause 7.4 (Mandatory prepayment: Disposal Proceeds), Clause 7.5 (Mandatory prepayment: Net Fundraising Proceeds) or Clause 7.6 (Mandatory prepayment: Insurance Proceeds) shall be applied as follows:
|
7.7.1.1
|
first, the Available Facility shall be cancelled in an amount equal to the lower of the amount of the Available Facility and the amount of the relevant Prepayment Proceeds (and the Available Commitments of the Lenders shall be reduced rateably); and
|
7.7.1.2
|
second, an amount of such Prepayment Proceeds as is equal to the lower of the amount of the Loan or the amount of such Prepayment Proceeds shall be applied in prepayment of the Loan.
|
7.7.2
|
Any:
|
7.7.2.1
|
cancellation of the Available Facility under Clause 7.7.1.1 above; and
|
7.7.2.2
|
amount to be applied in prepayment of the Loan and cancellation of corresponding Commitments under Clause 7.7.1.2 above,
|
7.7.2.3
|
(in the case of Clause 7.7.2.1 above) take effect immediately on the date of receipt of the relevant Prepayment Proceeds; and
|
7.7.2.4
|
(in the case of Clause 7.7.2.2 above) be applied immediately on the date of receipt of the relevant Prepayment Proceeds by the applicable member of the Group.
|
7.7.3
|
Any Prepayment Proceeds received by any member of the Group in a currency other than USD shall, for the purposes of determining the amount by which the Available Facility is cancelled pursuant to Clause 7.7 (Application of proceeds), be notionally converted into USD using the Facility Agent’s Spot Rate of Exchange on the date on which the relevant proceeds were first received by the relevant member of the Group. For the purpose of this Clause “Facility Agent's Spot Rate of Exchange” means the Facility Agent's spot rate of exchange (or if the Facility Agent does not have a spot rate of exchange, any other publicly available spot rate of exchange selected by the Facility Agent (acting reasonably)), for the purchase of USD with the relevant currency in the London foreign exchange market at or about 11:00 a.m. on any relevant day.
|
7.8
|
Cancellation
|
7.9
|
Voluntary prepayment of Loans
|
7.9.1
|
A Borrower may, if it gives the Facility Agent not less than 5 (five) Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of USD10 000 000 (ten million United States Dollars).
|
7.9.2
|
Any prepayment under this Clause 7.9 shall be applied rateably among the participations of all Lenders under the Facility.
|
7.10
|
Right of repayment and cancellation in relation to a single Lender
|
7.10.1
|
If:
|
7.10.1.1
|
any sum payable to any Lender by an Obligor is required to be increased under Clause 12.2.3; or
|
7.10.1.2
|
any Lender claims indemnification from the Borrowers under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs),
|
7.10.2
|
On receipt of a notice of cancellation referred to in Clause 7.10.1 above, the Commitment of that Lender shall immediately be reduced to zero.
|
7.10.3
|
On the last day of each Interest Period in relation to a Loan which ends after a Borrower has given notice of cancellation under Clause 7.10.1 above (or, if earlier, the date specified by that Borrower in that notice), that Borrower shall repay that Lender's participation in that Loan.
|
7.11
|
Restrictions
|
7.11.1
|
Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
7.11.2
|
Any prepayment of a Loan under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Breakage Costs payable under Clause 10.4 (Breakage Costs) (if applicable), without premium or penalty.
|
7.11.3
|
The Borrowers may not re-borrow any part of the Facility which is prepaid.
|
7.11.4
|
The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
7.11.5
|
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
7.11.6
|
If the Facility Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Borrowers or the affected Lender, as appropriate.
|
7.11.7
|
If all or part of a Loan is prepaid an amount of the Commitments (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this Clause 7.11.7 shall reduce the Commitments of the Lenders rateably.
|
7.12
|
Right of cancellation in relation to a Defaulting Lender
|
7.12.1
|
If any Lender becomes a Defaulting Lender, the Borrowers may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent 5 (five) Business Days' notice of cancellation of each Available Commitment of that Lender.
|
7.12.2
|
On the notice referred to in Clause 7.12.1 above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.
|
7.12.3
|
The Facility Agent shall as soon as practicable after receipt of a notice referred to in Clause 7.12.1 above, notify all the Lenders.
|
8.
|
INTEREST
|
8.1
|
Calculation of interest
|
8.1.1
|
Applicable Margin; and
|
8.1.2
|
LIBOR.
|
8.2
|
Payment of interest
|
8.3
|
Default interest
|
8.3.1
|
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on that Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to Clause 8.3.2 below, is 2% (two per cent) higher than the rate which would have been payable if that Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of that Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 shall be immediately payable by the Obligor on demand by the Facility Agent.
|
8.3.2
|
If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
8.3.2.1
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
8.3.2.2
|
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2% (two per cent) higher than the rate which would have applied if that Unpaid Sum had not become due.
|
8.3.3
|
Default interest (if unpaid) arising on any Unpaid Sum will be compounded with that Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
8.4
|
Notification of rates of interest
|
8.4.1
|
The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest under this Agreement.
|
8.4.2
|
The Facility Agent shall promptly notify the Borrowers of each Funding Rate relating to a Loan.
|
9.
|
INTEREST PERIODS
|
9.1.1
|
Each Interest Period for a Loan shall be 3 (three) Months (or such shorter period as the Majority Lenders may agree).
|
9.1.2
|
An Interest Period for a Loan shall not extend beyond the Final Repayment Date.
|
9.1.3
|
The Interest Period for a Loan shall start on the Utilisation Date of that Loan or (if already made) on the last day of its preceding Interest Period.
|
9.2
|
Non-Business Days
|
9.3
|
Consolidation of Loans
|
10.
|
CHANGES TO THE CALCULATION OF INTEREST
|
10.1
|
Absence of quotations
|
10.2
|
Market disruption
|
10.2.1
|
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender's share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
|
10.2.1.1
|
the Applicable Margin; and
|
10.2.1.2
|
the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.
|
10.2.2
|
In this Agreement, Market Disruption Event means:
|
10.2.2.1
|
at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for the relevant Interest Period; or
|
10.2.2.2
|
before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35% (thirty five per cent) of that Loan) that the cost to it or them of funding its or their participation in that Loan from whatever source it or they may reasonably select would be in excess of LIBOR.
|
10.3
|
Alternative basis of interest or funding
|
10.3.1
|
Without prejudice to the generality of Clause 10.2.1 above, if a Market Disruption Event occurs and the Facility Agent or a Borrower so requires, the Facility Agent and the Borrowers shall enter into negotiations (for a period of not more than 30 (thirty) days) with a view to agreeing a substitute basis for determining the rate of interest.
|
10.3.2
|
Any alternative basis agreed pursuant to Clause 10.3.1 above shall, with the prior consent of all the Lenders and the Borrowers, be binding on all Parties for the relevant Interest Period and thereafter for so long as the Market Disruption Event continues to apply.
|
10.4
|
Breakage Costs
|
10.4.1
|
The Borrowers shall, within 3 (three) Business Days of demand by a Finance Party, pay to that Finance Party their Breakage Costs attributable to all or any part of a Loan or Unpaid Sum being paid by a Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum. No Breakage Cost shall be payable in relation to the prepayment of a Loan pursuant to the provisions of Clause 7.1 (Illegality) or Clause 7.10 (Right of repayment and cancellation in relation to a single Lender).
|
10.4.2
|
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Breakage Costs for any Interest Period in which they accrue.
|
11.
|
FEES
|
11.1
|
Commitment fee
|
11.1.1
|
The Parent shall pay to the Facility Agent (for the account of each Lender) an aggregate fee computed at the rate set out in the second column in the table below, on each Lender's Available Commitment for each of the time periods during the Availability Period as set out in the first column in the table below, which fee shall accrue on a daily basis.
|
11.1.2
|
The accrued commitment fee is payable on the last day of each successive period of 3 (three) Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
|
11.2
|
Agency fee
|
11.3
|
Arranging fee
|
11.4
|
Extension fee
|
12.
|
TAX GROSS UP AND INDEMNITIES
|
12.1
|
Definitions
|
12.1.1
|
In this Agreement:
|
12.1.1.1
|
Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
|
12.1.1.2
|
Tax Credit means a credit against, relief or remission for, or repayment of any Tax.
|
12.1.1.3
|
Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document other than a FATCA Deduction.
|
12.1.1.4
|
Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).
|
12.1.2
|
Unless a contrary indication appears, in this Clause 12 a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.
|
12.2
|
Tax gross-up
|
12.2.1
|
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
12.2.2
|
The Parent shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Parent and that Obligor.
|
12.2.3
|
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
12.2.4
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
12.2.5
|
Within 30 (thirty) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
12.3
|
Tax indemnity
|
12.3.1
|
The Borrowers shall (within 3 (three) Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
12.3.2
|
Clause 12.3.1 above shall not apply:
|
12.3.2.1
|
with respect to any Tax assessed on a Finance Party (A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes or (B) under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction, if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
|
12.3.2.2
|
to the extent a loss, liability or cost is compensated for by an increased payment under Clause 12.2 (Tax gross-up).
|
12.3.3
|
A Protected Party making, or intending to make a claim under Clause 12.3.2.1 above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrowers.
|
12.3.4
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Facility Agent.
|
12.4
|
Tax Credit
|
12.4.1
|
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
|
12.4.2
|
that Finance Party has obtained and utilised that Tax Credit,
|
12.5
|
Stamp taxes
|
12.6
|
Value added tax
|
12.6.1
|
All amounts set out, or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to Clause 12.6.2 below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).
|
12.6.2
|
If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Subject Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.
|
12.6.3
|
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
12.7
|
FATCA Information
|
12.7.1
|
Subject to Clause 12.7.3 below, each Party shall, within 10 (ten) Business Days of a reasonable request by another Party:
|
12.7.1.1
|
confirm to that other Party whether it is:
|
12.7.1.1.1
|
a FATCA Exempt Party; or
|
12.7.1.1.2
|
not a FATCA Exempt Party;
|
12.7.1.2
|
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
12.7.1.3
|
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
12.7.2
|
If a Party confirms to another Party pursuant to Clause 12.7.1 above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
12.7.3
|
Clause 12.7.1 above shall not oblige any Finance Party to do anything, and Clause 12.7.1.3 above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
|
12.7.3.1
|
any law or regulation;
|
12.7.3.2
|
any fiduciary duty; or
|
12.7.3.3
|
any duty of confidentiality.
|
12.7.4
|
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with Clauses 12.7.1.1.1 or 12.7.1.1.2 above (including, for the avoidance of doubt, where Clause 12.7.3 above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
12.8
|
FATCA Deduction
|
12.8.1
|
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
|
12.8.2
|
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrowers
|
13.
|
INCREASED COSTS
|
13.1
|
Increased costs
|
13.1.1
|
Subject to Clause 13.3 (Exceptions) the Borrowers shall, within 3 (three) Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party as a result of (i) the introduction of or any change in (or in the interpretation, administration or application by any authority or by financial institutions generally of) any law or regulation, after the Signature Date, (ii) the interpretation, administration or application by any authority or by financial institutions generally after the Signature Date of any law or regulation introduced prior to the Signature Date or (iii) compliance with any law or regulation made after the Signature Date, and shall include without any limitation, any Basel III Increased Cost (Change in Law).
|
13.1.2
|
In this Agreement Increased Costs means:
|
13.1.2.1
|
a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital (including, without limitation, as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Finance Party);
|
13.1.2.2
|
an additional or increased cost; or
|
13.1.2.3
|
a reduction of any amount due and payable under any Finance Document,
|
13.1.3
|
The terms law and regulation in this Clause 13.1 shall include, without limitation, any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.
|
13.2
|
Increased cost claims
|
13.2.1
|
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrowers.
|
13.2.2
|
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
|
13.3
|
Exceptions
|
13.3.1
|
Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:
|
13.3.1.1
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
13.3.1.2
|
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in Clause 12.3.2 applied); or
|
13.3.1.3
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation or the failure by the relevant Finance Party to make any required filing with any regulatory authority.
|
13.3.2
|
In this Clause 13.3, a reference to a Tax Deduction has the same meaning given to the term in Clause 12.1 (Definitions).
|
14.
|
OTHER INDEMNITIES
|
14.1
|
Currency indemnity
|
14.1.1
|
if any sum due from an Obligor under the Finance Documents (Sum), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (First Currency) in which that Sum is payable into another currency (Second Currency) for the purpose of:
|
14.1.1.1
|
making or filing a claim or proof against that Obligor; or
|
14.1.1.2
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
14.1.2
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
14.2
|
Environmental indemnity
|
14.2.1
|
any breach of any Environmental Law (whether by the Borrowers or any other member of the Group);
|
14.2.2
|
an Environmental Claim; or
|
14.2.3
|
any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Environmental Claim and any other enquiry, investigation, subpoena (or similar order) or litigation in respect of any breach of any Environmental Law that has or is reasonably likely to give rise to a liability for any Indemnified Party,
|
14.3
|
Other indemnities
|
14.3.1
|
the occurrence of any Event of Default;
|
14.3.2
|
any information produced or approved by the Borrowers/any Obligor/any member of the Group being misleading and/or deceptive in any respect;
|
14.3.3
|
any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the Acquisition or the receipt of proceeds in relation to the Acquisition Assets, unless such loss or liability is caused by the gross negligence or wilful misconduct of that Finance Party or its Affiliate (or employee or officer of that Finance Party or Affiliate). Any Affiliate or any officer or employee of a Finance Party or its Affiliate may rely on this Clause 14.3;
|
14.3.4
|
any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement except as may otherwise be ordered by a court of competent jurisdiction in circumstances where the relevant Finance Party was the plaintiff or applicant in such proceedings;
|
14.3.5
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 28 (Sharing among the Finance Parties);
|
14.3.6
|
funding, or making arrangements to fund, its participation in a Loan requested by the Borrowers in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
|
14.3.7
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrowers.
|
14.4
|
Indemnity to the Facility Agent
|
14.4.1
|
investigating or taking any other action in connection with any event which it reasonably believes is an Event of Default; or
|
14.4.2
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
14.5
|
Default
|
15.
|
MITIGATION BY THE LENDERS
|
15.1
|
Mitigation
|
15.1.1
|
Each Finance Party shall, in consultation with the Borrowers, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross up and indemnities) or Clause 13 (Increased costs).
|
15.1.2
|
Clause 15.1.1 above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2
|
Limitation of liability
|
15.2.1
|
The Borrowers shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
|
15.2.2
|
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably):
|
15.2.2.1
|
any law or regulation would not allow or permit it; or
|
15.2.2.2
|
to do so might be prejudicial to it.
|
16.
|
COSTS AND EXPENSES
|
16.1
|
Transaction expenses
|
16.1.1
|
this Agreement and any other documents referred to in this Agreement; and
|
16.1.2
|
any other Finance Documents executed after the Signature Date.
|
16.2
|
Amendment costs
|
16.2.1
|
If an Obligor requests an amendment, waiver or consent, the Parent shall, within 3 (three) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in responding to, evaluating, negotiating or complying with that request or requirement.
|
16.2.2
|
If there is any change in law or any regulation which requires an amendment, waiver or consent under the Finance Documents, the Parent shall, within 3 (three) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in connection with evaluating, negotiating or complying with any such requirement.
|
16.3
|
Enforcement costs
|
17.
|
GUARANTEE AND INDEMNITY
|
17.1
|
Guarantee and indemnity
|
17.1.1
|
guarantees to each Finance Party punctual performance by the Borrowers of their payment obligations under the Finance Documents;
|
17.1.2
|
undertakes in favour of each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, the Parent shall immediately on demand pay that amount as if it was the principal obligor; and
|
17.1.3
|
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability that Finance Party incurs as a result of the Borrowers not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by the Borrowers under any Finance Document on the date when it would have been due. The amount payable by the Parent under this indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on the basis of a guarantee.
|
17.2
|
Continuing guarantee
|
17.3
|
Reinstatement
|
17.3.1
|
the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and
|
17.3.2
|
each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.
|
17.4
|
Waiver of defences
|
17.4.1
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
17.4.2
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
17.4.3
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
17.4.4
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
17.4.5
|
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
17.4.6
|
any unenforceability, illegality, invalidity suspension or cancellation of any obligation of any person under this Agreement or any other Finance Document or any other document or security;
|
17.4.7
|
any insolvency, liquidation, winding-up, business rescue or similar proceedings; or
|
17.4.8
|
this Agreement or any other Finance Document not being executed by or binding against the Parent or any other party.
|
17.5
|
Immediate recourse
|
17.6
|
Appropriations
|
17.6.1
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and the Parent shall not be entitled to the benefit of the same; and
|
17.6.2
|
hold in an interest-bearing suspense account any moneys received from the Parent or on account of its liability under this Clause 17.
|
17.7
|
Deferral of Guarantors' rights
|
17.7.1
|
to be indemnified by an Obligor;
|
17.7.2
|
to claim any contribution from any other guarantor of or provider of security for any Obligor's obligations under the Finance Documents;
|
17.7.3
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
17.7.4
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which it has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);
|
17.7.5
|
to exercise any right of set-off against any Obligor; and/or
|
17.7.6
|
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
|
17.8
|
Additional security
|
18.
|
REPRESENTATIONS
|
18.1
|
Status
|
18.1.1
|
It is a corporation, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.
|
18.1.2
|
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
18.2
|
Binding obligations
|
18.3
|
Non-conflict with other obligations
|
18.3.1
|
any law or regulation applicable to it;
|
18.3.2
|
its constitutional documents; or
|
18.3.3
|
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets and where this applies to its Subsidiaries or its Subsidiaries’ assets only, in a manner which would have a Material Adverse Effect.
|
18.4
|
Power and authority
|
18.5
|
Benefit
|
18.6
|
Validity and admissibility in evidence
|
18.6.1
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party;
|
18.6.2
|
to make the Transaction Documents to which it is a party admissible in evidence in its jurisdiction of incorporation;
|
18.6.3
|
for it to carry on its business; and
|
18.6.4
|
for its Subsidiaries to carry on their respective businesses, but only to the extent such are material Authorisations,
|
18.7
|
Governing law and enforcement
|
18.7.1
|
the choice of South African law as the governing law of the Transaction Documents expressed to be governed by South African law will be recognised and enforced in its jurisdiction of incorporation;
|
18.7.2
|
any judgment obtained in South Africa in relation to a Transaction Document will be recognised and enforced in its jurisdiction of incorporation; and
|
18.8
|
Deduction of Tax
|
18.9
|
No filing or stamp taxes
|
18.10
|
No default
|
18.10.1
|
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
18.10.2
|
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which might have a Material Adverse Effect.
|
18.11
|
No misleading information
|
18.11.1
|
All information supplied by the Borrowers, any Obligor or any other member of the Group to the Facility Agent or any other Finance Party is true, complete and accurate in all material respects as at the date it was given and is not misleading in any respect.
|
18.11.2
|
It has not knowingly withheld information which, if disclosed, would reasonably be expected to materially and adversely affect the decisions of the Lenders to provide finance to the Borrowers.
|
18.12
|
Financial statements
|
18.12.1
|
Its Original Financial Statements were prepared in accordance with IFRS consistently applied.
|
18.12.2
|
Its Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Borrower) during the relevant Financial Year.
|
18.12.3
|
The most recent financial statements delivered pursuant to Clause 19.1 (Financial statements) have been prepared in accordance with IFRS as applied to the Original Financial Statements and give a true and fair view of (if audited) or fairly present (if unaudited) the Group’s consolidated financial condition and each Obligor’s financial condition as at the end of, and consolidated results of operations for, the period to which they relate.
|
18.12.4
|
Since the date of the Original Financial Statements there has been no material adverse change in the business, assets or financial condition of the Group.
|
18.13
|
Insurance
|
18.14
|
Assets and Intellectual Property Rights
|
18.14.1
|
It has good title to or valid leases or licenses over all of the assets necessary and material to carry on its business.
|
18.14.2
|
As far as it is aware, it will not nor will any of its Subsidiaries, in carrying on its business, infringe any Intellectual Property Rights of any third party in any way which is likely to have a Material Adverse Effect.
|
18.15
|
Security Interest
|
18.15.1
|
Subject in each case to any registration specifically required by law, and subject to any Legal Reservations:
|
18.15.1.1
|
each Security Document to which it is a party validly creates the security interest which is expressed to be created by that Security Document; and
|
18.15.1.2
|
the Transaction Security created by each Security Document to which it is a party :
|
18.15.1.2.1
|
ranks and will rank, in respect of all other security interests granted or to be granted by any Obligor in favour of any person other than the Finance Parties, in the order of priority it is expressed to rank in the relevant Security Document; and
|
18.15.1.2.2
|
is not subject to avoidance in the event of any winding-up, dissolution or administration involving any Obligor.
|
18.15.2
|
It is the sole, absolute, legal and, where applicable, beneficial owner of all assets made subject to the Transaction Security created by each Security Document to which it is a party.
|
18.15.3
|
The shares which are subject to the Transaction Security are fully paid and not subject to any option to purchase or claims, third party rights or competing interests. The constitutional documents of Golden Core do not and could not restrict or inhibit any transfer of those shares on creation or enforcement of the Transaction Security.
|
18.16
|
Pari passu ranking
|
18.17
|
No proceedings pending or threatened
|
18.18
|
Insolvency and Financial Distress
|
18.18.1
|
No:
|
18.18.1.1
|
corporate action, legal proceeding or other procedure or step described in Clause 23.7 (Insolvency and business rescue proceedings); or
|
18.18.1.2
|
creditors' process described in Clause 23.8 (Creditor’s process),
|
18.18.2
|
Neither it nor any member of the Group is Financially Distressed (as defined in section 128 of the Companies Act), or, given similar meaning under any applicable company legislation and regulations in Australia or Papua New Guinea).
|
18.18.3
|
The representations and warranties set out in this Clause 18.18 do not apply to the members of the Group listed Schedule 12 (Companies to be wound up/reorganised).
|
18.19
|
No breach of laws
|
18.19.1
|
It has not (and to the best of its knowledge and belief (having made due and careful enquiry) none of its Subsidiaries has) breached any law or regulation which breach has or might reasonably be expected to have a Material Adverse Effect.
|
18.19.2
|
No labour disputes or industrial action are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against any member of the Group which have or might reasonably be expected to have a Material Adverse Effect.
|
18.20
|
Environmental laws
|
18.20.1
|
Save to the extent disclosed Schedule 9 (Disclosed Potential Environmental Claim), each member of the Group is in compliance with Clause 21.3 (Environmental compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or might reasonably be expected to have a Material Adverse Effect.
|
18.20.2
|
Save to the extent disclosed in Schedule 9 (Disclosed Potential Environmental Claim), no Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against any member of the Group where that claim has or might reasonably be expected, if determined against that member of the Group, to have a Material Adverse Effect.
|
18.21
|
Authorised signatures
|
18.22
|
No immunity
|
18.23
|
Sanctions and anti-corruption
|
18.23.1
|
Neither the Parent, nor any other member of the Group:
|
18.23.1.1
|
is a Sanctioned Entity and nor, to the knowledge of the Parent, any other member of the Group or any of their directors, officers or employees, is any agent of the Parent or any other member of the Group that will act in any capacity in connection with or benefit from the credit facility established hereby, a Sanctioned Entity;
|
18.23.1.2
|
is using, nor will use the proceeds of any Facility for the purpose of financing or making funds available directly or indirectly to any Sanctioned Entity, to the extent such financing or provision of funds would currently be prohibited by Anti-Corruption Laws or applicable Sanctions or would otherwise cause any person to be in breach of Anti-Corruption Laws or Sanctions; or
|
18.23.1.3
|
is contributing, nor will contribute or otherwise make available the proceeds of any Facility to any other person or entity for the purpose of financing the activities of any Sanctioned Entity, to the extent such contribution or provision of proceeds would currently be prohibited by Sanctions or would otherwise cause any person to be in breach of Sanctions.
|
18.23.2
|
None of the Parent, any member of the Group, any director or officer of the Parent or any other member of the Group:
|
18.23.2.1
|
has been or is targeted under any Sanctions, or has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority; or
|
18.23.2.2
|
has violated or is violating any applicable Sanctions.
|
18.23.3
|
The Parent has and maintains in effect policies and procedures designed to ensure compliance by the Parent, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Parent, its Subsidiaries and their respective officers and employees and, to the knowledge of the Parent, its and its Subsidiaries respective employees and agents are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Parent being designated as a Sanctioned Entity.
|
18.23.4
|
None of the Parent, any member of the Group, any director or officer, or any employee, agent, or Affiliate, of the Parent or any member of the Group:
|
18.23.5
|
is a person that is, or is owned or controlled by persons that are, the subject of any Sanctions; or
|
18.23.6
|
is located, organised or resident in a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
|
18.24
|
Acquisition Documents, disclosures and other Documents
|
18.24.1
|
The Acquisition Documents contain all relevant terms of and disclosures in relation to the Acquisition.
|
18.24.2
|
There is no disclosure to the Acquisition Documents which has or may have a Material Adverse Effect on in interests of the Finance Parties.
|
18.24.3
|
To the best of its knowledge no representation or warranty given by any party to the Acquisition Document is untrue or misleading in any respect, save where expressly qualified in writing in the Acquisition Document.
|
18.24.4
|
No amendments, variations, novations, supplements, waiver or termination of the Acquisition Document, including, for the avoidance of doubt, any amendment to the Acquisition Price, has or will be made without the prior written approval of the Finance Parties except to the extent such amendments, variations, novations, supplements, waiver would not be materially adverse to the interests of the Finance Parties under the Finance Documents.
|
18.24.5
|
The Acquisition Document is in full force and effect, subject to the fulfilment or waiver of any condition precedent to the Acquisition Document.
|
18.24.6
|
It is not in breach of any of its obligations under the Acquisition Document in such a manner that would entitle any party (other than the Parent) to cancel the Acquisition Document.
|
18.24.7
|
There is no material dispute between the parties to the Acquisition Document (other than the Parent) on the one hand and the Parent on the other hand under the Acquisition Document.
|
18.24.8
|
The Acquisition Structure Chart contains all the material steps in relation to the financing and implementation of the Acquisition.
|
18.25
|
Repetition
|
18.25.1
|
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:
|
18.25.1.1
|
Financial Close, the date of each Utilisation Request and the first day of each Interest Period; and
|
18.25.1.2
|
the date of an Extension.
|
18.25.2
|
The Repeating Representation set out in Clause 18.24 (Acquisition Documents, disclosures and other Documents) are deemed to be made by each Obligor by reference to the facts and circumstances then existing on Financial Close, the Acquisition CP Fulfilment Date and the Closing Date.
|
19.
|
INFORMATION UNDERTAKINGS
|
19.1
|
Financial statements
|
19.1.1
|
as soon as the same become available, but in any event within 120 (one hundred and twenty) days after the end of its Financial Year, its audited consolidated financial statements for that Financial Year;
|
19.1.2
|
as soon as the same became available, but in any event within 150 (one hundred and fifty) days after the end of each of their Financial Years, the audited financial statements of each Obligor for that Financial Year; and
|
19.1.3
|
as soon as the same become available, but in any event within 60 (sixty) days after the end of each half of each of its Financial Years, its consolidated financial statements for that financial half year.
|
19.2
|
Compliance Certificate
|
19.2.1
|
The Parent shall supply to the Facility Agent, with each set of financial statements delivered pursuant to Clause 19.1 (Financial statements), a Compliance Certificate:
|
19.2.1.1
|
setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) as at the date as at which those financial statements were drawn up; and
|
19.2.1.2
|
confirming that no Default has occurred and is continuing or, if a Default has occurred, what Default has occurred and the steps being taken to remedy that Default.
|
19.2.2
|
Each Compliance Certificate shall be signed by the chief financial officer or the financial director of the Borrower.
|
19.2.3
|
In the event that a set of financial statements delivered pursuant to Clauses 19.1.1 and 19.1.2 is restated, the Parent must submit a new Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) as at the date at which those financial statements were restated.
|
19.3
|
Requirements as to financial statements
|
19.3.1
|
Each set of financial statements delivered by the Parent pursuant to Clause 19.1 (Financial statements) shall be certified by a director of the relevant company as giving a true and fair view if audited, or fairly representing, if unaudited, its financial condition as at the date as at which those financial statements were drawn up.
|
19.3.2
|
The Parent shall procure that each set of consolidated financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using IFRS.
|
19.3.3
|
The Parent shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using IFRS (to the extent IFRS was applied), accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in IFRS (to the extent IFRS was applied), the accounting practices or reference periods and its Auditors (or, if appropriate, the Auditors of the Obligor) deliver to the Facility Agent:
|
19.3.3.1
|
a description of any change necessary for those financial statements to reflect the IFRS (to the extent IFRS was applied), accounting practices and reference periods upon which the Original Financial Statements were prepared; and
|
19.3.3.2
|
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
|
19.3.4
|
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
|
19.4
|
Financial year-end
|
19.5
|
Information: miscellaneous
|
19.5.1
|
all documents dispatched by the Parent to its shareholders (or any class of them) or by the Parent and/or any Obligor to its creditors generally at the same time as they are dispatched;
|
19.5.2
|
promptly upon becoming aware of them, details and copies of any material and substantive changes (excluding for the avoidance of doubt, administrative or procedural changes) proposed to or made to its constitutional documents or the constitutional documents of it or any other Obligor, including the filing of any Memorandum of Incorporation under the Companies Act;
|
19.5.3
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of becoming aware of them, the details of any litigation, arbitration, administrative proceedings, liquidation applications, winding up applications or business rescue applications which are current, threatened or pending against it or any other member of the Group, and which may, if adversely determined, have a Material Adverse Effect;
|
19.5.4
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of being requested by the Facility Agent, such further information regarding the financial condition, business and operations of it or any other member of the Group as any Finance Party (through the Facility Agent) may reasonably request in order to assess a Borrower’s or any other Obligor’s ability to perform its obligations under the Finance Documents;
|
19.5.5
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of it becoming aware of any transfer or issue or proposed transfer or issue of shares of any member of the Group or other corporate action or proposed corporate action that would constitute a Fundamental Control Event or Fundamental Disposal Event;
|
19.5.6
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of it becoming aware of the relevant claim, the details of any claim against (i) a Borrower or any other person in respect of the Acquisition Documents and (ii) details of any disposal or insurance claim which will require a prepayment or cancellation to be made under Clause 7.4 (Mandatory Prepayment: Disposal Proceeds) and Clause 7.6 (Mandatory Prepayment: Insurance Proceeds).
|
19.5.7
|
as soon as reasonably practicable, details of any proposed (A) Equity Raise or (B) any loan or other debt facility, or any issue, sale, public offering or private placement of any debt security issued or, as applicable, borrowed by any member of the Group to or, as applicable, from any person who is not a member of the Group for the purpose of refinancing the Facility and any corporate action or proposed corporate action for the purposes of the Parent effecting any Equity Raise together with copies of any related notices to its shareholders in respect of any such corporate action and copies of any resolutions passed at any general meeting for the purposes of approving the applicable transaction;
|
19.5.8
|
regular updates (at intervals of no less than 6 (six) months or sooner as and when such information becomes available) on the progress of applications for all Environmental Permits and Authorisations required for its operations or proposed operations in Papua New Guinea;
|
19.5.9
|
promptly; notice of any suspension or cancellation of any Authorisation relating to its operations which were given by the relevant Minister under the Mineral and Petroleum Resources Development Act, 2002 or other Mining Law (other than temporary stoppages under the Mine Health and Safety Act, 1996);
|
19.5.10
|
such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any other Finance Party) in order for the Facility Agent and each other Finance Party to demonstrate compliance with the Equator Principles in respect of their lending or any other financial exposure to the Borrowers under the Finance Documents;
|
19.5.11
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of (but in any event prior to any notices being given by an authorised signatory) any change in authorised signatories of it or any other Obligor signed by a director or company secretary of it or such other Obligor (as the case may be) accompanied by specimen signatures of any new authorised signatories;
|
19.5.12
|
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of request by the Facility Agent such additional information or documentation as the Facility Agent may require in order to verify that any signatory referred to in Clause 19.5.11 above has been duly authorised; and
|
19.5.13
|
as soon as reasonably practicable, but in any event within 1 (one) Month after the end of each of its Financial Years, its annual business plan as approved by the board of directors of the Parent; and
|
19.5.14
|
promptly upon becoming aware thereof, details of any material breach under or termination, rescission or repudiation of any Acquisition Document as well as any other information in relation to the Acquisition and the status and progress thereof as the Facility Agent may reasonably request from time to time.
|
19.6
|
Notification of Default
|
19.6.1
|
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
19.6.2
|
Promptly upon a request by the Facility Agent, the Borrowers shall supply to the Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
19.7
|
Use of websites
|
19.7.1
|
The Borrowers may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (Website Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Borrowers and the Facility Agent (Designated Website) if:
|
19.7.1.1
|
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
|
19.7.1.2
|
both the Borrowers and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
19.7.1.3
|
the information is in a format previously agreed between the Borrowers and the Facility Agent.
|
19.7.2
|
If any Lender (Paper Form Lender) does not agree to the delivery of information electronically then the Facility Agent shall notify the Borrowers accordingly and the Borrowers shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Borrowers shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
|
19.7.3
|
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrowers and the Facility Agent.
|
19.7.4
|
The Borrowers shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
|
19.7.4.1
|
the Designated Website cannot be accessed due to technical failure;
|
19.7.4.2
|
the password specifications for the Designated Website change;
|
19.7.4.3
|
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
19.7.4.4
|
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
19.7.4.5
|
the Borrowers become aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
19.7.5
|
If a Borrower notifies the Facility Agent under Clause 19.7.4.1 or Clause 19.7.4.5 above, all information to be provided by the Borrowers under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
|
19.7.6
|
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Borrowers shall comply with any such request within 10 (ten) Business Days.
|
19.8
|
Know your customer checks
|
19.8.1
|
If:
|
19.8.1.1
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signature Date;
|
19.8.1.2
|
any change in the status of an Obligor after the Signature Date; or
|
19.8.1.3
|
a proposed Transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such Transfer,
|
19.8.2
|
Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
|
20.
|
FINANCIAL COVENANTS
|
20.1
|
Financial Covenants
|
20.1.1
|
the Interest Cover Ratio shall not be less than 5 times in respect of any Ratio Test Period;
|
20.1.2
|
the Tangible Net Worth to Total Net Debt shall not be less than 2 times for the June 2020, September 2020 and December 2020 Ratio Test Dates and 4 times thereafter; and
|
20.1.3
|
the Leverage Ratio shall be less than 2.5 times for any Ratio Test Date.
|
20.2
|
Financial testing
|
20.2.1
|
subject to the remaining provisions of this Clause 20.2, the financial covenants shall be calculated in accordance with IFRS and tested by reference to each of the financial statements delivered pursuant to Clause 19.1 (Financial statements) and/or such other information required in relation to certain of the components of the financial covenants where required and/or each Compliance Certificate delivered pursuant to Clause 19.2 (Compliance Certificate); and
|
20.2.2
|
the Parent shall deliver a reconciliation between the financial statements delivered pursuant to Clause 19.1 (Financial Statements) and such financial statements as adjusted so as to exclude Financial Indebtedness in respect of a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease and calculate the financial covenants pursuant to this Clause.
|
21.
|
GENERAL UNDERTAKINGS
|
21.1
|
Authorisations
|
21.1.1
|
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
21.1.2
|
supply certified copies to the Facility Agent on request of,
|
21.2
|
Compliance with laws
|
21.2.1
|
Each Obligor shall (and the Parent shall ensure that each other member of the Group will) comply in all respects with all laws (including in connection with any Anti-Corruption Laws and any Sanctions) to which it may be subject where failure to do so has or might reasonably be expected to have a Material Adverse Effect.
|
21.2.2
|
The Parent will maintain in effect and enforce policies and procedures designed to ensure compliance by the Parent, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
|
21.3
|
Environmental compliance
|
21.3.1
|
comply with all Environmental Law;
|
21.3.2
|
obtain, maintain and ensure compliance with all requisite Environmental Permits;
|
21.3.3
|
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
|
21.4
|
Environmental Claims
|
21.4.1
|
any Environmental Claim against it or any other member of the Group which is current, pending or threatened; and
|
21.4.2
|
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against it or any other member of the Group.
|
21.5
|
Insurance
|
21.6
|
Negative pledge
|
21.6.1
|
No Obligor shall (and the Parent shall ensure that each member of the Group will) create or permit to subsist any Security over any of its assets and/or shares.
|
21.6.2
|
No Obligor shall (and the Parent shall ensure that each member of the Group will):
|
21.6.2.1
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
|
21.6.2.2
|
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
|
21.6.2.3
|
enter into or permit to subsist any title retention arrangement;
|
21.6.2.4
|
enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
21.6.2.5
|
enter into or permit to subsist any other preferential arrangement having a similar effect,
|
21.6.3
|
Clauses 21.6.1 and 21.6.2 above do not apply to any Permitted Security.
|
21.7
|
Disposals
|
21.7.1
|
No Obligor shall (and the Parent shall ensure that each member of the Group will) enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.
|
21.7.2
|
Clause 21.7.1 above does not apply to any sale, lease, transfer or other disposal:
|
21.7.2.1
|
made in the ordinary course of business of the disposing entity;
|
21.7.2.2
|
of assets in exchange for other assets comparable or superior as to type, value and quality and for a similar purpose;
|
21.7.2.3
|
made between Material Obligors except to the extent it involves the transfer of any shares or other assets which form part of the Transaction Security without the prior written consent of the Facility Agent;
|
21.7.2.4
|
of Cash or Cash Equivalent Investments not prohibited by the Finance Documents;
|
21.7.2.5
|
of obsolete or redundant assets;
|
21.7.2.6
|
made pursuant to the Buy-In Option;
|
21.7.2.7
|
made pursuant to a Permitted Security;
|
21.7.2.8
|
of shares in any member of the Group listed Schedule 12 (Companies to be wound up/reorganised) in order to bring about a solvent corporate restructure or winding up of that member of the Group;
|
21.7.2.9
|
funded by way of a Permitted Loan as set out in Clause 1.1.129.11 and 1.1.129.11;
|
21.7.2.10
|
of any other assets (including any Material Assets) on arm’s length terms, for full market value and for cash consideration which is not deferred beyond a period of 1 (one) year from the date of effective transfer or conditional, and subject always to the Borrowers' obligations under Clause 7.4 (Mandatory prepayment: Disposal Proceeds);
|
21.7.2.11
|
the Golden Core Disposal; or
|
21.7.2.12
|
made with the prior written approval of the Facility Agent (acting on behalf of the Lenders).
|
21.8
|
Change of business
|
21.9
|
Loans or credit
|
21.9.1
|
Except as permitted under Clause 21.9.2 below, no Obligor shall (and the Parent shall ensure that no other member of the Group will) be a creditor in respect of any Financial Indebtedness.
|
21.9.2
|
Clause 21.9.1 above does not apply to:
|
21.9.2.1
|
such arrangements existing as at the Signature Date and disclosed in the Original Financial Statements;
|
21.9.2.2
|
Permitted Loans;
|
21.9.2.3
|
any guarantee or indemnity given in respect of Permitted Indebtedness; or
|
21.9.2.4
|
Financial Indebtedness owed by one Obligor to another Obligor.
|
21.10
|
No Guarantees or indemnities
|
21.10.1
|
Except as permitted under Clause 21.10.2 below, no Obligor shall (and the Parent shall ensure that each member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.
|
21.10.2
|
Clause 21.10.1 above does not apply to a guarantee or indemnity:
|
21.10.2.1
|
falling within the definition of Financial Indebtedness and which constitutes Permitted Indebtedness; or
|
21.10.2.2
|
which constitutes a Permitted Guarantee.
|
21.11
|
Financial Indebtedness
|
21.11.1
|
Except as permitted under Clause 21.11.2 below, no Obligor shall (and the Parent shall ensure that each member of the Group will) incur or allow to remain outstanding any Financial Indebtedness.
|
21.11.2
|
Clause 21.11.1 above does not apply to Financial Indebtedness which is Permitted Indebtedness.
|
21.12
|
Auditors
|
21.13
|
Sanctions and anti-corruption
|
21.13.1
|
Each Obligor (and the Parent shall ensure that each other member of the Group) shall maintain in effect and enforce policies and procedures designed to ensure compliance by the Obligors and their Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
|
21.13.2
|
Each Obligor (and the Parent shall ensure that each other member of the Group) shall not use (or otherwise make available) the proceeds of any Loan (i) for the purpose of financing directly or indirectly the activities of any Sanctioned Entity, to the extent such contribution or provision of proceeds would at that time be prohibited by Sanctions or would otherwise cause any person to be in breach of Sanctions, (ii) in furtherance of an offer, payment, promise to pay or authorisation of the payment or giving of money, or anything else of value, to any person in violation of any Anti-Corruption Laws or (iii) in any manner that would result in the violation of any Sanctions applicable to any party to this Agreement.
|
21.13.3
|
Each Obligor (and the Parent will ensure that each other member of the Group) shall ensure that appropriate controls and safeguards are in place designed to prevent any proceeds of any Loan from being used contrary to Clause 21.13.2 above.
|
21.14
|
Distributions
|
21.14.1
|
the Tangible Net Worth to Total Net Debt is less than 6 times, or would, following such Distribution, be less than 6 times; or
|
21.14.2
|
an Event of Default is continuing at the time.
|
21.15
|
Acquisitions
|
21.15.1
|
No Obligor shall (and the Parent shall ensure that no other member of the Group shall) acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them) in excess of:
|
21.15.1.1
|
in relation to South African acquisitions, ZAR1 000 000 000 (one billion Rand) (or its equivalent in any other currency) in aggregate prior to the Final Repayment Date; or
|
21.15.1.2
|
in relation to acquisitions anywhere outside of South Africa, USD80 000 000 (eighty million United States Dollars) (or its equivalent in any other currency) in aggregate prior to the Final Repayment Date.
|
21.15.2
|
Clause 21.15.1 above does not apply to:
|
21.15.2.1
|
an acquisition of securities or investments which are Cash Equivalent Investments;
|
21.15.2.2
|
an acquisition by a Material Obligor of an asset, business or undertaking from another Obligor other than shares or assets which form part of the Transaction Security, without the prior written consent of the Facility Agent;
|
21.15.2.3
|
an acquisition of shares or securities pursuant to a Permitted Share Issue;
|
21.15.2.4
|
any acquisition financed by issuing shares of the Parent as consideration for the purchase price of the acquired asset; and
|
21.15.2.5
|
an acquisition made with the prior written approval of the Facility Agent.
|
21.16
|
Acquisition Documents
|
21.16.1
|
The Obligors shall comply with all applicable laws and regulations in respect of the Acquisition and the terms of the Acquisition Document;
|
21.16.2
|
The Parent shall promptly supply to the Lenders:
|
21.16.2.1
|
all information in connection with the Acquisition (including information regarding progress of the Acquisition) that any Lender may reasonably request;
|
21.16.2.2
|
notification of any amendment to any Acquisition Document, including, for the avoidance of doubt, any amendment to the Acquisition Price; and
|
21.16.2.3
|
notification of any waiver of any condition precedent or other condition of or in relation to the Acquisition;
|
21.16.3
|
The Obligors shall not, without the prior written consent of the all the Lenders, waive, amend or revoke any term or condition of the Acquisition or any Acquisition Document if such amendment or waiver could be materially adverse to the interests of the Finance Parties under the Finance Documents.
|
21.16.4
|
The Obligors shall take all reasonable and practical steps to preserve and enforce their rights and pursue any claims and remedies arising under any Acquisition Documents.
|
21.17
|
Further assurance
|
21.17.1
|
Each Obligor shall promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Facility Agent may reasonably specify (and in such form as the Facility Agent may reasonably require in favour of the Finance Parties
|
21.17.1.1
|
to provide more effective Security over any property and assets the subject of the Transaction Security;
|
21.17.1.2
|
to perfect the Security created or intended to be created under or evidenced by the Security Document (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Finance Parties provided by or pursuant to the Finance Documents or by law; and/or
|
21.17.1.3
|
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.
|
21.17.2
|
Each Obligor shall take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Finance Parties by or pursuant to the Finance Documents.
|
21.18
|
Share capital
|
21.18.1
|
issue any shares except pursuant to a Permitted Share Issue;
|
21.18.2
|
alter any rights attaching to its issued shares in existence at the Signature Date without the prior written consent of the Facility Agent;
|
21.18.3
|
take any action to convert its shares into uncertificated shares without the prior written consent of the Facility Agent;
|
21.18.4
|
repurchase, cancel, redeem, reduce or otherwise acquire any of its share capital or grant or acquire any option, warrant or other right over its share capital without the prior written consent of the Facility Agent;
|
21.18.5
|
permit any sale or other transfer of its shares (other than as permitted under this Agreement) without the prior written consent of the Facility Agent.
|
21.19
|
Ownership
|
21.20
|
Golden Core BEE Transaction
|
21.20.1
|
The Parent shall procure that any shares of Golden Core acquired by a Golden Core BEE Partner under and in accordance with the terms of the Golden Core BEE Transaction become subject to the Transaction Security in form and substance satisfactory to the Facility Agent (acting on the instructions of all the Lenders), by no later than the date on which the Golden Core BEE Transaction is implemented.
|
21.20.2
|
The Parent shall deliver all documents required to be delivered under the Transaction Security, including but not limited to the original share certificates in respect of the shares of Golden Core acquired by a Golden Core BEE Partner under and in accordance with the terms of the Golden Core BEE Transaction, to the Facility Agent by no later than the date on which the Golden Core BEE Transaction is implemented.
|
21.21
|
Section 11 Ministerial Consent
|
22.
|
APPLICATION OF SANCTIONS PROVISIONS TO THE LENDERS
|
22.1
|
A Lender shall notify the Facility Agent if the representations and undertakings under Clause 18.23 (Sanctions and anti-corruption) and 21.13 (Sanctions and anti-corruption) (together the Sanctions Provisions) result in a violation of or conflict with any anti-boycott laws or regulations applicable to that Lender (Anti-Boycott Regulations).
|
22.2
|
In relation to each Lender that notifies the Facility Agent pursuant to Clause 22.1 above (each a Restricted Lender), the Sanctions Provisions shall apply only for the benefit of that Restricted Lender to the extent that it would not result in any violation of, conflict with or liability under any Anti-Boycott Regulations.
|
22.3
|
In connection with any amendment, waiver, determination or direction relating to any part of Sanctions Provision of which a Restricted Lender does not have the benefit pursuant to Clause 22.2 above, the Commitments of that Restricted Lender will be excluded for the purpose of determining whether the consent of the Majority Lenders has been obtained or whether the determination or direction of the Majority Lenders has been made.
|
23.
|
EVENTS OF DEFAULT
|
23.1
|
Non-payment
|
23.1.1
|
its failure to pay is caused by:
|
23.1.1.1
|
administrative or technical error; or
|
23.1.1.2
|
a Disruption Event; and
|
23.1.1.3
|
payment is made within 2 (two) Business Days of its due date.
|
23.2
|
Financial covenants
|
23.3
|
Other obligations
|
23.3.1
|
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 23.1 (Non-payment) and Clause 23.2 (Financial covenants)).
|
23.3.2
|
No Event of Default under Clause 23.3.1 above will occur if the failure to comply is capable of remedy and is remedied within 15 (fifteen) Business Days of the earlier of (A) the Facility Agent giving notice to a Borrower and (B) the board of directors of a Borrower becoming aware of the failure to comply.
|
23.4
|
Misrepresentation
|
23.5
|
Cross default
|
23.5.1
|
Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period or in respect of Financial Indebtedness between members of the Group in respect of Permitted Loans within any relevant grace period agreed to by the relevant members of the Group.
|
23.5.2
|
Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable, or becomes capable of being declared due and payable, prior to its specified maturity as a result of an event of default (however described).
|
23.5.3
|
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).
|
23.5.4
|
No Event of Default will occur under this Clause 23.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within Clauses 23.5.1 to 23.5.3 above is less than ZAR10 000 000 (ten million Rand) (or its equivalent in any other currency or currencies).
|
23.6
|
Insolvency
|
23.6.1
|
A member of the Group is or is deemed by any authority or legislation to be unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
23.6.2
|
A member of the Group is or is deemed by any authority or legislation to be Financially Distressed (as defined in section 128 of the Companies Act) or, given similar meaning under any applicable company legislation and regulations in Australia or Papua New Guinea.
|
23.6.3
|
The value of the assets of any member of the Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
23.6.4
|
A moratorium is declared in respect of any indebtedness of any member of the Group.
|
23.7
|
Insolvency and business rescue proceedings
|
23.7.1
|
Other than in relation to the members of the Group listed Schedule 12 (Companies to be wound up/reorganised) any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
23.7.1.1
|
the suspension of payments, a moratorium of any indebtedness, liquidation, winding-up, dissolution, administration, business rescue or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor;
|
23.7.1.2
|
the deregistration of any member of the Group under the Companies Act or, under any similar company legislation and regulations in Australia or Papua New Guinea;
|
23.7.1.3
|
a composition, compromise, assignment or arrangement with any creditor of any member of the Group;
|
23.7.1.4
|
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrative receiver, administrator, compulsory manager, business rescue practitioner or other similar officer in respect of any member of the Group or any of its assets; or
|
23.7.1.5
|
enforcement of any Security over any assets of any member of the Group,
|
23.7.2
|
Other than in relation to the members of the Group listed Schedule 12 (Companies to be wound up/reorganised) a meeting is proposed or convened by the directors of any member of the Group, a resolution is proposed or passed, application is made or an order is applied for or granted, to authorise the entry into or implementation of any business rescue proceedings (or any similar proceedings) in respect of any member of the Group or any analogous procedure or step is taken in any jurisdiction.
|
23.8
|
Creditors' process
|
23.9
|
Unlawfulness
|
23.10
|
Cessation of business
|
23.11
|
Audit qualification
|
23.12
|
Repudiation
|
23.13
|
Governmental intervention
|
23.13.1
|
the management of any Obligor is wholly or substantially replaced or the authority of any Obligor in the conduct of its business is wholly or substantially curtailed;
|
23.13.2
|
all or a majority of the issued shares of any Obligor, or the whole or any part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired; or
|
23.13.3
|
the management of any joint venture (including any Joint Venture) in respect of which an Obligor is a joint venture participant is wholly or substantially replaced or the authority of the joint venture participants in the conduct of the business of the joint venture (including any Joint Venture) is wholly or substantially curtailed.
|
23.14
|
Failure to maintain Authorisations
|
23.14.1
|
to enable any Obligor to lawfully conduct its business, or enter into, exercise its rights under and perform the obligations expressed to be assumed by it in any Finance Document to which it is a party;
|
23.14.2
|
to ensure that the obligations expressed to be assumed by any Obligor in any Finance Document to which it is a party are legal, valid and binding; or
|
23.14.3
|
to make any Finance Document to which any Obligor is a party admissible in evidence,
|
23.15
|
Material Adverse Effect
|
23.16
|
Material litigation
|
23.17
|
Condition Subsequent
|
23.18
|
Acceleration
|
23.18.1
|
cancel the Total Commitments whereupon they shall immediately be cancelled;
|
23.18.2
|
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
|
23.18.3
|
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Facility Agent on the instructions of the Majority Lenders.
|
23.19
|
Clean-Up Period
|
23.19.1
|
Notwithstanding any other provision of any Finance Document:
|
23.19.1.1
|
any breach of a representation under Clause 18 (Representations);
|
23.19.1.2
|
any breach of an undertaking under Clause 21 (General Undertakings); or
|
23.19.1.3
|
any Event of Default,
|
23.19.1.3.1
|
it would have been (if it were not for this provision) a breach of representation or warranty, a breach of undertaking or an Event of Default only by reason of circumstances relating exclusively to the Acquisition of the Acquisition Assets;
|
23.19.1.3.2
|
it is capable of remedy and reasonable steps are being taken to remedy it;
|
23.19.1.3.3
|
it occurs and is remedied within 90 days of the date on which the Acquisition is completed (the Clean-up Date);
|
23.19.1.3.4
|
the circumstances giving rise to it have not been procured by or approved by any Obligor;
|
23.19.1.3.5
|
it is not reasonably likely to have a Material Adverse Effect.
|
23.19.2
|
If the relevant circumstances are continuing on or after the Clean-up Date, there shall be a breach of representation or warranty, breach of covenant or Event of Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties).
|
24.
|
CHANGES TO THE LENDERS
|
24.1
|
Cessions and delegations by the Lenders
|
24.2
|
Conditions of Transfer
|
24.2.1
|
The consent of the Borrower is required for a Transfer unless the transfer is:
|
24.2.1.1
|
to any Permitted Transferee;
|
24.2.1.2
|
to any other Existing Lender or an Affiliates of an Existing Lender; or
|
24.2.1.3
|
to any other prospective transferee whilst an Event of Default is continuing.
|
24.2.2
|
Where the consent of the Borrower to a Transfer is required in terms of Clause 24.2.1 above, that consent must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent 5 (five) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
|
24.2.3
|
A Transfer will only be effective if the procedure set out in Clause 24.4 (Procedure for Transfer) is complied with.
|
24.2.4
|
If:
|
24.2.4.1
|
a Lender Transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
24.2.4.2
|
as a result of circumstances existing at the date the Transfer or change occurs, an Obligor would be obliged to make a payment to the new Lender or Lender acting through its new Facility Office under Clause 12 (Tax gross up and indemnities) or Clause 13 (Increased costs),
|
24.2.5
|
Each new Lender, by executing the relevant Transfer Certificate confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Transfer becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
24.3
|
Limitation of responsibility of Existing Lenders
|
24.3.1
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a new Lender for:
|
24.3.1.1
|
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
24.3.1.2
|
the financial condition of any Obligor;
|
24.3.1.3
|
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
24.3.1.4
|
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
24.3.2
|
Each new Lender confirms to the Existing Lender and the other Finance Parties that it:
|
24.3.2.1
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
|
24.3.2.2
|
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
24.3.3
|
Nothing in any Finance Document obliges an Existing Lender to:
|
24.3.3.1
|
accept a re-Transfer from a new Lender of any of the rights and obligations Transferred under this Clause 24; or
|
24.3.3.2
|
support any losses directly or indirectly incurred by the new Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
24.4
|
Procedure for Transfer
|
24.4.1
|
Subject to the conditions set out in Clause 24.2 (Conditions of Transfer) a Transfer is effected in accordance with Clause 24.4.2 below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the new Lender. The Facility Agent shall, subject to Clause 24.4.2 below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
|
24.4.2
|
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the new Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations that apply to it (if any) in relation to the transfer to such new Lender.
|
24.4.3
|
On the Transfer Date:
|
24.4.3.1
|
the Transfer shall take effect under the Finance Documents so that the rights and/or obligations which are the subject of the Transfer shall be ceded and delegated by the Existing Lender to the new Lender (Transferred Rights and Obligations);
|
24.4.3.2
|
each of the Obligors shall perform their obligations and exercise their rights in relation to the Transferred Rights and Obligations in favour of or against the new Lender, as the case may be;
|
24.4.3.3
|
the Facility Agent, the new Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the new Lender been an Original Lender with the rights and/or obligations comprising the Transferred Rights and Obligations;
|
24.4.3.4
|
the Existing Lender shall be released from further obligations to each other Lender under the Finance Documents to the extent of the Transferred Rights and Obligations; and
|
24.4.3.5
|
the new Lender shall become a Party as a Lender.
|
24.5
|
Copy of Transfer Certificate to Borrower
|
25.
|
CHANGES TO THE OBLIGORS
|
25.1
|
Cessions and delegations by Obligors
|
26.
|
ROLE OF THE FACILITY AGENT
|
26.1
|
Appointment of the Facility Agent
|
26.1.1
|
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents and the Security Document.
|
26.1.2
|
Each other Finance Party authorises the Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under or in connection with the Finance Documents and the Security Document together with any other incidental rights, powers, authorities and discretions.
|
26.2
|
Duties of the Facility Agent
|
26.2.1
|
Subject to Clause 26.2.2 below, the Facility Agent shall forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party as soon as reasonably practicable after having received that original or copy document as the case may be.
|
26.2.2
|
Without prejudice to Clause 24.5 (Copy of Transfer Certificate to Borrower), Clause 26.2.1 above shall not apply to any Transfer Certificate.
|
26.2.3
|
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
26.2.4
|
If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.
|
26.2.1
|
If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent) under this Agreement it shall promptly notify the other Finance Parties.
|
26.2.2
|
The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
26.3
|
Role of the Facility Agent
|
26.4
|
Role of the Mandated Lead Arrangers
|
26.5
|
No fiduciary duties
|
26.5.1
|
Nothing in this Agreement constitutes any of the Facility Agent or the Mandated Lead Arrangers as a trustee or fiduciary of any other person.
|
26.5.2
|
Neither the Facility Agent nor the Mandated Lead Arrangers shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
26.6
|
Business with the Group
|
26.7
|
Rights and discretions of the Facility Agent
|
26.7.1
|
The Facility Agent may rely on:
|
26.7.1.1
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
26.7.1.2
|
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
26.7.2
|
The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that:
|
26.7.2.1
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (Non-payment));
|
26.7.2.2
|
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and
|
26.7.2.3
|
any notice or request made by the Borrowers (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
26.7.3
|
The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
26.7.4
|
The Facility Agent may act in relation to the Finance Documents through its personnel and agents.
|
26.7.5
|
The Facility Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, the right and title that the Parent may have to any of the Secured Assets and shall not be liable for or bound to require the Parent to remedy any defect in its right or title.
|
26.7.6
|
The Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
26.7.7
|
Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor any Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
26.8
|
Majority Lenders' instructions
|
26.8.1
|
Unless a contrary indication appears in a Finance Document, the Facility Agent shall (i) exercise any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Facility Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.
|
26.8.2
|
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.
|
26.8.3
|
The Facility Agent may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) until it has received such security as it may require for any cost, loss or liability (together with any associated VAT) which it may incur in complying with the instructions.
|
26.8.4
|
In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Facility Agent may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.
|
26.8.5
|
The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
|
26.9
|
Responsibility for documentation
|
26.9.1
|
Neither the Facility Agent nor the Mandated Lead Arrangers:
|
26.9.1.1
|
are responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, the Mandated Lead Arrangers, an Obligor or any other person given in or in connection with any Finance Document;
|
26.9.1.2
|
is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document; or
|
26.9.1.3
|
is responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
26.9.2
|
The Facility Agent shall not be responsible or liable for (without prejudice to the following provisions) any failure or omission to perfect, or defect in perfecting, the Transaction Security, including:
|
26.9.2.1
|
failure to obtain any Authorisation for the execution, validity, enforceability or admissibility in evidence of the Security Document; or
|
26.9.2.2
|
failure to effect or procure registration of or otherwise protect or perfect the Transaction Security under any laws in any territory;
|
26.9.2.3
|
ascertaining whether all deeds and documents which should have been deposited with it under or pursuant to the Security Document have been so deposited;
|
26.9.2.4
|
investigating or making any enquiry into the title of the Parent to the Transaction Security;
|
26.9.2.5
|
the failure to register any of the Security Document with any public office;
|
26.9.2.6
|
the failure to register the Security Document in accordance with the provisions of the documents of title of the Parent to the Transaction Security;
|
26.9.2.7
|
the failure to take or require the Parent to take any steps to render any of the Security Document effective;
|
26.9.2.8
|
(save as otherwise provided in this Clause 26.9) taking or omitting to take any other action under or in relation to the Security Document;
|
26.9.2.9
|
the failure of the Facility Agent to perform or discharge any of its duties or obligations under the relevant Finance Documents; or
|
26.9.2.10
|
any shortfall which arises on the enforcement or realisation of the Transaction Security or the exercise any of the rights, powers, discretions and remedies vested in it under any of the Finance Documents to which it is a party.
|
26.9.3
|
Exclusion of liability
|
26.9.4
|
Without limiting Clause 26.9.5 below, the Facility Agent will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
|
26.9.5
|
No Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Facility Agent may rely on this Clause as a stipulation for their benefit as contemplated by Clause 1.3 (Third party rights).
|
26.9.6
|
The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose.
|
26.9.7
|
Nothing in this Agreement shall oblige the Facility Agent or any Mandated Lead Arranger to carry out any know your customer or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent and the Mandated Lead Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or any Arranger.
|
26.10
|
Additional protection for the Facility Agent in relation to Transaction Security
|
26.10.1
|
The Facility Agent shall not be responsible for any unsuitability, inadequacy or unfitness of any Security for any or all of the obligations under the Finance Documents and shall not be obliged to make any investigation into, and shall be entitled to assume, the suitability, adequacy and fitness of any Security for any or all of the obligations under the Finance Documents.
|
26.10.2
|
The Facility Agent shall not be responsible for investigating, monitoring or supervising the observance or performance by any person in respect of the Finance Documents or otherwise.
|
26.10.3
|
Without prejudice to the obligations of the Obligors relating to insurance under the Finance Documents, the Facility Agent shall not be under any obligation to insure the Secured Assets or any deeds or documents of title or other evidence in respect of the Secured Assets or to require any other person to maintain any such insurance or monitor the adequacy of such insurance and shall not be responsible for any liability which may be suffered as a result of the lack of or inadequacy of any such insurance.
|
26.10.4
|
The Facility Agent shall not be obliged (whether or not directed by the Secured Parties) to perfect the legal title to the Transaction Security in its name if, in its opinion, such perfection would or might result in the Facility Agent becoming liable to or incurring any obligation to the Parent under the Transaction Security and/or in its opinion, there is or would be insufficient cash to discharge, in accordance with the provisions of the Finance Documents, such liabilities or obligations as and when they arise.
|
26.10.5
|
The Facility Agent shall not have any duty:
|
26.10.5.1
|
to ensure that any payment or other financial benefit in respect of any of the Secured Assets is duly and punctually paid, received or collected; or
|
26.10.5.2
|
to ensure the taking up of any (or any offer of any) stocks, shares, rights, monies or other property accruing or offered at any time by way of interest, dividend, redemption, bonus, rights, preference, option, warrant or otherwise in respect of any of the Secured Assets.
|
26.11
|
Lenders' indemnity to the Facility Agent
|
26.11.1
|
the taking, holding, protection or enforcement of the Transaction Security;
|
26.11.2
|
any matter or thing done or omitted in any way in accordance with the terms of the Finance Documents relating to the Secured Assets or the provisions of the Security Document;
|
26.11.3
|
the exercise or purported exercise of any of the rights, powers, discretions and remedies vested in the Facility Agent by the Finance Documents or by law;
|
26.11.4
|
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents;
|
26.11.5
|
a claim of any kind made or asserted against the Facility Agent which would not have arisen but for the execution or enforcement of one or more Finance Documents; or
|
26.11.6
|
which otherwise relate to any of the Transaction Security or the performance of the terms of this Agreement.
|
26.12
|
Resignation of the Facility Agent
|
26.12.1
|
The Facility Agent may resign and appoint one of its Affiliates acting through an office in South Africa as successor by giving notice to the other Finance Parties and the Borrowers.
|
26.12.2
|
Alternatively the Facility Agent may resign by giving 30 (thirty) days' notice (or, at any time the Facility Agent is an Impaired Facility Agent, by giving any shorter notice determined by the Majority Lenders) to the other Finance Parties and the Borrowers, in which case the Majority Lenders (after consultation with the Borrowers) may appoint a successor Facility Agent.
|
26.12.3
|
If the Majority Lenders have not appointed a successor Facility Agent in accordance with Clause 26.12.2 above within 30 (thirty) days after notice of resignation was given, the retiring Facility Agent (after consultation with the Borrowers) may appoint a successor Facility Agent (acting through an office in South Africa).
|
26.12.4
|
The retiring Facility Agent or Impaired Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents.
|
26.12.5
|
The Facility Agent's resignation notice shall only take effect upon the appointment of a successor.
|
26.12.6
|
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 26. Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
26.12.7
|
After consultation with the Borrowers, the Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with Clause 26.12.2 above. In this event, the Facility Agent shall resign in accordance with Clause 26.12.2 above.
|
26.13
|
Confidentiality
|
26.13.1
|
In acting as agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
26.13.2
|
If information is received by another division or department of the Facility Agent, it may be treated as confidential to that division or department and the Facility Agent shall not be deemed to have notice of it.
|
26.14
|
Relationship with the Lenders
|
26.14.1
|
The Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office:
|
26.14.1.1
|
entitled to or liable for any payment due under any Finance Document on that day; and
|
26.14.1.2
|
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
|
26.14.2
|
Any Lender may by notice to the Facility Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or dispatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 33.2.9) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 33.2 (Addresses) and Clause 33.6.1.1 and the Facility Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
26.15
|
Credit appraisal by the Lenders
|
26.15.1
|
the financial condition, status and nature of each member of the Group;
|
26.15.2
|
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
26.15.3
|
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
26.15.4
|
the adequacy, accuracy and/or completeness of any information provided by the Facility Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; and
|
26.15.5
|
the right or title of any person in or to, or the value or sufficiency of any part of the charged property under the Security Document, the priority of any of the Transaction Security or the existence of any Security affecting the charged property under the Security Document.
|
26.16
|
Facility Agent's management time
|
26.17
|
Deduction from amounts payable by the Facility Agent
|
27.
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
27.1
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
27.2
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
27.3
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
28.
|
SHARING AMONG THE FINANCE PARTIES
|
28.1
|
Payments to Finance Parties
|
28.1.1
|
the Recovering Finance Party shall, within 3 (three) Business Days, notify details of the receipt or recovery, to the Facility Agent;
|
28.1.2
|
the Facility Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 31 (Payment mechanics), without taking account of any Tax which would be imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
|
28.1.3
|
the Recovering Finance Party shall, within 3 (three) Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (Sharing Payment) equal to such receipt or recovery less any amount which the Facility Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 31.5 (Partial payments).
|
28.2
|
Redistribution of payments
|
28.3
|
Recovering Finance Party's rights
|
28.4
|
Reversal of redistribution
|
28.4.1
|
each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (Redistributed Amount); and
|
28.4.2
|
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
|
28.5
|
Exceptions
|
28.5.1
|
This Clause 28 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor.
|
28.5.2
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
28.5.2.1
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
28.5.2.2
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
29.
|
CONTRACTUAL RECOGNITION OF BAIL-IN
|
29.1
|
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
|
29.1.1
|
any Bail-In Action in relation to any such liability, including (without limitation):
|
29.1.2
|
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;
|
29.1.3
|
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and
|
29.1.4
|
a cancellation of any such liability; and
|
29.1.5
|
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability."
|
29.2
|
For the purposes of this Clause 29:
|
29.2.1
|
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
|
29.2.2
|
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
|
29.2.3
|
"Bail-In Legislation" means:
|
29.2.3.1
|
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time ;and
|
29.2.3.2
|
in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
|
29.2.4
|
"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
|
29.2.5
|
"EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
|
29.2.6
|
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
|
29.2.7
|
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
|
29.2.8
|
"Write-down and Conversion Powers" means:
|
29.2.8.1
|
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;
|
29.2.8.2
|
in relation to any other applicable Bail-In Legislation:
|
29.2.8.2.1
|
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and
|
29.2.8.2.2
|
any similar or analogous powers under that Bail-In Legislation; and
|
29.2.8.3
|
in relation to any UK Bail-In Legislation:
|
29.2.8.3.1
|
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and
|
29.2.8.3.2
|
any similar or analogous powers under that UK Bail-In Legislation.
|
30.
|
ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS
|
30.1
|
To the extent that the Finance Documents provide support, through a guarantee or otherwise, for Hedging Documents or any other agreement or instrument that is a QFC (such support, QFC Credit Support and each such QFC a Supported QFC), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the U.S. Special Resolution Regimes) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Finance Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States:
|
30.1.1
|
in the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
|
30.2
|
For the purpose of this Clause 30:
|
30.2.1
|
BHC Act Affiliate of a party means an “affiliate” (as that term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party;
|
30.2.2
|
Covered Entity means any of the following:
|
30.2.2.1
|
a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
|
30.2.2.2
|
a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
|
30.2.2.3
|
a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b);
|
30.2.2.4
|
Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and
|
30.2.2.5
|
QFC has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
|
31.
|
PAYMENT MECHANICS
|
31.1
|
Payments to the Facility Agent
|
31.1.1
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document that Obligor or Lender shall make the same available to the Facility Agent (unless a contrary indication appears in a Finance Document) in USD for value by no later than 12h00 (Johannesburg time) on the due date and in such funds specified by the Facility Agent by way of a funds flow schedule or otherwise.
|
31.1.2
|
Payment shall be made to such account in South Africa with such bank as the Facility Agent specifies.
|
31.2
|
Distributions by the Facility Agent
|
31.3
|
Distributions to an Obligor
|
31.4
|
Clawback
|
31.4.1
|
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
31.4.2
|
If the Facility Agent pays an amount to another Party and it proves to be the case that the Facility Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand refund the same to the Facility Agent together with interest on that amount from the date of payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect its cost of funds.
|
31.5
|
Partial payments
|
31.5.1
|
If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
31.5.1.1
|
first, in or towards payment pro rata of any unpaid fees, costs and expenses of the Facility Agent under the Finance Documents;
|
31.5.1.2
|
secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;
|
31.5.1.3
|
thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and
|
31.5.1.4
|
fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
31.5.2
|
The Facility Agent shall, if so directed by the Majority Lenders, vary the order set out in Clauses 31.5.1.3 to 31.5.1.4 above.
|
31.5.3
|
Clauses 31.5.1.1 and 31.5.1.2 above will override any appropriation made by an Obligor.
|
31.6
|
No set-off by Obligors
|
31.7
|
Business Days
|
31.7.1
|
Any payment which is due to be made in terms of any Finance Document on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
31.7.2
|
In the event that the day for performance of any obligation (other than a payment obligation) to be performed in terms of any Finance Document should fall on a day which is not a Business Day, the relevant day for performance shall be the succeeding Business Day.
|
31.7.3
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
31.8
|
Currency of account
|
31.8.1
|
Subject to Clauses 31.7.2 and 31.7.3 below, USD is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
31.8.2
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
31.8.3
|
Any amount expressed to be payable in a currency other than USD shall be paid in that other currency.
|
31.9
|
Disruption to Payment Systems etc.
|
31.9.1
|
the Facility Agent may, and shall if requested to do so by the Borrowers, consult with the Borrowers with a view to agreeing with the Borrowers such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;
|
31.9.2
|
the Facility Agent shall not be obliged to consult with the Borrowers in relation to any changes mentioned in Clause 31.9.1 if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;
|
31.9.3
|
the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in Clause 31.9.1 but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;
|
31.9.4
|
any such changes agreed upon by the Facility Agent and the Borrowers shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 37 (Amendments and waivers);
|
31.9.5
|
the Facility Agent shall not be liable for any damages, costs or losses whatsoever arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 31.9; and
|
31.9.6
|
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to Clause 31.9.4 above.
|
31.10
|
Impaired Facility Agent
|
31.10.1
|
If, at any time, the Facility Agent becomes an Impaired Facility Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Facility Agent in accordance with Clause 31.1 (Payments to the Facility Agent) may instead either:
|
31.10.1.1
|
pay that amount direct to the required recipient(s); or
|
31.10.1.2
|
if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or the relevant part of that amount to an interest-bearing account held with an Acceptable Bank within the meaning of Clause 1.1.1 and in relation to which no insolvency event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the Paying Party) and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the Recipient Party or Recipient Parties).
|
31.10.2
|
In each of Clauses 31.10.1.1 and 31.10.1.2 such payments must be made on the due date for payment under the Finance Documents.
|
31.10.3
|
All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements.
|
31.10.4
|
A Party which has made a payment in accordance with this Clause 31.10 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.
|
31.10.5
|
Promptly upon the appointment of a successor Agent in accordance with Clause 26.12 (Resignation of the Facility Agent), each Paying Party shall (other than to the extent that that Party has given an instruction pursuant to Clause 31.10.6 below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 31.2 (Distributions by the Facility Agent).
|
31.10.6
|
A Paying Party shall, promptly upon request by a Recipient Party and to the extent:
|
31.10.6.1
|
that it has not given an instruction pursuant to Clause 31.10.5 above; and
|
31.10.6.2
|
that it has been provided with the necessary information by that Recipient Party,
|
32.
|
SET OFF
|
33.
|
NOTICES
|
33.1
|
Communications in writing
|
33.2
|
Addresses
|
33.2.1
|
in the case of the Borrowers and the Parent:
|
33.2.2
|
in the case of Absa Bank Limited (acting through its Corporate and Investment Banking division) in its capacity as Mandated Lead Arranger, Bookrunner and Lender:
|
33.2.3
|
in the case of Citibank, N.A., London Branch in its capacity as Mandated Lead Arranger and Bookrunner:
|
33.2.4
|
in the case of Citibank, N.A., Jersey Branch in its capacity as Lender:
|
33.2.5
|
in the case of FirstRand Bank Limited (London Branch) in its capacity as Mandated Lead Arranger, Bookrunner and Lender:
|
Physical address:
|
Austin Friars House,
|
Telephone number:
|
+4420 793917777
|
33.2.6
|
in the case of J.P. Morgan Securities Plc in its capacity as Mandated Lead Arranger and Bookrunner:
|
Physical address:
|
25 Bank Street, Canary Wharf, Floor 24, London, E14 5JP, United Kingdom
|
33.2.7
|
in the case of JPMorgan Chase Bank, N.A., London branch in its capacity as Lender:
|
Physical address:
|
25 Bank Street, Canary Wharf, Floor 24, London, E14 5JP, United Kingdom
|
33.2.8
|
in the case of Absa Bank Limited (acting through its Corporate and Investment Banking division) as Facility Agent:
|
33.2.9
|
in the case of any other Lender or any other Obligor, that notified in writing to the Facility Agent on or prior to the date on which it becomes a Party,
|
33.3
|
Domicilia
|
33.3.1
|
Each of the Parties, chooses its physical address provided under or in connection with Clause 33.2 (Addresses) as its domicilium citandi et executandi at which documents in legal proceedings in South Africa in connection with this Agreement or any other Finance Document may be served.
|
33.3.2
|
Any Party may by written notice to the other Parties 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 14th day after deemed receipt of the notice by the other Parties pursuant to Clause 33.4 (Delivery).
|
33.4
|
Delivery
|
33.4.1
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will:
|
33.4.1.1
|
if by way of fax, be deemed to have been received on the first Business Day following the date of transmission provided that the fax is received in legible form;
|
33.4.1.2
|
if delivered by hand, be deemed to have been received at the time of delivery; and
|
33.4.1.3
|
if by way of courier service, be deemed to have been received on the seventh Business Day following the date of such sending,
|
33.4.2
|
Any communication or document to be made or delivered to the Facility Agent will be effective only when actually received by the Facility Agent and then only if it is expressly marked for the attention of the department or officer identified with the Facility Agent's signature below (or any substitute department or officer as the Facility Agent shall specify for this purpose).
|
33.4.3
|
All notices from or to an Obligor shall be sent through the Facility Agent.
|
33.4.4
|
Any communication or document made or delivered to a Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
33.5
|
Notification of address and fax number
|
33.6
|
Electronic communication
|
33.6.1
|
Any communication to be made between the Facility Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Facility Agent and the relevant Lender:
|
33.6.1.1
|
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
33.6.1.2
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
33.6.1.3
|
notify each other of any change to their address or any other such information supplied by them.
|
33.6.2
|
Any electronic communication made between the Facility Agent and a Lender will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Facility Agent only if it is addressed in such a manner as the Facility Agent shall specify for this purpose.
|
33.7
|
English language
|
33.8
|
Communication when Agent is Impaired Facility Agent
|
34.
|
CALCULATIONS AND CERTIFICATES
|
34.1
|
Accounts
|
34.2
|
Certificates and Determinations
|
34.3
|
Day count convention
|
35.
|
PARTIAL INVALIDITY
|
36.
|
REMEDIES AND WAIVERS
|
37.
|
AMENDMENTS AND WAIVERS
|
37.1
|
Required consents
|
37.1.1
|
Subject to Clause 37.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.
|
37.1.2
|
The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
|
37.1.3
|
No amendment or waiver contemplated by this Clause 37 shall be of any force or effect unless in writing and signed by or on behalf of the relevant Parties.
|
37.1.4
|
For the avoidance of doubt, any extension of the Facility in accordance with Clause 6.2 (Extension) shall not be an amendment or waiver for the purposes of this Clause 37.
|
37.2
|
Exceptions
|
37.2.1
|
An amendment or waiver that has the effect of changing or which relates to:
|
37.2.1.1
|
the definition of Majority Lenders in Clause 1.1 (Definitions);
|
37.2.1.2
|
a change to the date of payment of any amount under the Finance Documents;
|
37.2.1.3
|
a reduction in the Applicable Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
37.2.1.4
|
an increase in or an extension of any Commitment;
|
37.2.1.5
|
a change to or release of the Borrowers or the Parent;
|
37.2.1.6
|
any provision which expressly requires the consent of all the Lenders;
|
37.2.1.7
|
Clause 2.2 (Finance Parties’ rights and obligations);
|
37.2.1.8
|
Clause 3.1 (Purpose);
|
37.2.1.9
|
Clause 12.3 (Tax indemnity);
|
37.2.1.10
|
Clause 13 (Increased costs);
|
37.2.1.11
|
the nature or scope of the guarantee and indemnity granted under Clause 17 (Guarantee and indemnity);
|
37.2.1.12
|
Clause 24 (Changes to the Lenders);
|
37.2.1.13
|
Clause 47 (Governing law);
|
37.2.1.14
|
Clause 48 (Jurisdiction), or
|
37.2.1.15
|
the nature and scope of the Transaction Security;
|
37.2.1.16
|
the release of any guarantee and indemnity granted under Clause 17 (Guarantee and Indemnity) or of any Transaction Security or relating to a sale or disposal of an asset which is the subject of the Transaction Security,
|
37.2.2
|
An amendment or waiver which relates to the rights or obligations of the Facility Agent or any Arranger (each in its capacity as such) may not be effected without the consent of the Facility Agent or the relevant Arranger, as the case may be.
|
37.3
|
Replacement of Lender
|
37.3.1
|
If:
|
37.3.1.1
|
any Lender becomes a Non-Consenting Lender (as defined in Clause 37.3.4 below) or a Defaulting Lender; or
|
37.3.1.2
|
an Obligor becomes obliged to repay any amount in accordance with Clause 7.1 (Illegality) or to pay additional amounts pursuant to Clause 13.1 (Increased costs), Clause 12.2 (Tax gross-up) or Clause 12.3 (Tax indemnity) to any Lender,
|
37.3.2
|
The replacement of a Lender pursuant to this Clause 37.3 shall be subject to the following conditions:
|
37.3.2.1
|
the Borrowers shall have no right to replace the Facility Agent;
|
37.3.2.2
|
neither the Facility Agent nor the Lender or the Defaulting Lender shall have any obligation to the Borrowers to find a Replacement Lender;
|
37.3.2.3
|
in the event of a replacement of a Non-Consenting Lender or a Defaulting Lender such replacement must take place no later than 10 (ten) Business Days after the date on which that Lender is deemed a Non-Consenting Lender and in the case of a Defaulting Lender, after the notice referred in 37.3.1;
|
37.3.2.4
|
in no event shall the Lender replaced under this Clause 37.3 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and
|
37.3.2.5
|
the Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 37.3.1 above once it is satisfied that it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to that transfer.
|
37.3.3
|
A Lender shall perform the checks described in Clause 37.3.2.5 above as soon as reasonably practicable following delivery of a notice referred to in Clause 37.3.1 above and shall notify the Facility Agent and the Borrowers when it is satisfied that it has complied with those checks.
|
37.3.4
|
In the event that:
|
37.3.4.1
|
the Borrowers or the Facility Agent (at the request of the Borrowers) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;
|
37.3.4.2
|
the consent, waiver or amendment in question requires the approval of all the Lenders; and
|
37.3.4.3
|
Lenders whose Commitments aggregate, in the case of a consent, waiver or amendment requiring the approval of all the Lenders, more than 80% (eighty per cent) of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 80% (eighty per cent) of the Total Commitments prior to that reduction), have consented or agreed to such waiver or amendment,
|
37.4
|
Disenfranchisement of Defaulting Lenders
|
37.4.1
|
For so long as a Defaulting Lender has any Available Commitment, in ascertaining:
|
37.4.1.1
|
the Majority Lenders; or
|
37.4.1.2
|
whether:
|
37.4.1.2.1
|
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments under the Facility; or
|
37.4.1.2.2
|
the agreement of any specified group of Lenders,
|
37.4.2
|
For the purposes of this Clause 37.4, the Facility Agent may assume that the following Lenders are Defaulting Lenders:
|
37.4.2.1
|
any Lender which has notified the Facility Agent that it has become a Defaulting Lender;
|
37.4.2.2
|
any Lender in relation to which it is aware that any of the events or circumstances referred to in Clauses 1.1.45.1, 1.1.45.2, 1.1.45.3 or 1.1.45.5,
|
37.5
|
Changes to the Interest Rate Benchmark
|
37.5.1
|
The interest rate on a Loan denominated in USD may be derived from an interest rate benchmark that is, or may in the future become, the subject of regulatory reform. Regulators have signalled the need to use alternative benchmark reference rates for some of these interest rate benchmarks and, as a result, such interest rate benchmarks (i) may cease to comply with applicable laws and regulations, (ii) may be permanently discontinued, and/or (iii) the basis on which they are calculated may change. LIBOR is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel any LIBOR panel bank, being a bank which contributes submissions to ICE LIBOR, to provide quotations to ICE Benchmark Administration Limited (together with any successor to ICE Benchmark Administration Limited, the IBA) for the purposes of the IBA administering LIBOR after 2021. As a result, it is possible that, commencing in 2022, LIBOR may no longer be available or deemed an appropriate reference rate upon which to determine the interest rate on Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of LIBOR. Similar initiatives are already, or may in the future be, underway to identify new or alternative reference rates or, in some cases, adjust methodology for other interest rate benchmarks.
|
37.5.2
|
The Parties acknowledge that as a result of the circumstances described above:
|
37.5.2.1
|
LIBOR may no longer be available or LIBOR may no longer be deemed an appropriate reference rate for the purposes of calculating interest under this Agreement; and
|
37.5.2.2
|
amendments or waivers may be required in accordance with Clause 37.6 (Replacement of Screen Rate).
|
37.5.3
|
The Lenders do not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to LIBOR or another interest rate benchmark or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, any such alternative, successor or replacement rate implemented pursuant to Clause 37.6 (Replacement of Screen Rate)), including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, LIBOR or such other interest rate benchmark or that it will have the same volume or liquidity as LIBOR or such other interest rate benchmark did prior to its discontinuance or unavailability.
|
37.6
|
Replacement of Screen Rate
|
37.6.1
|
Subject to Clause 34.2 (Exceptions), if a Screen Rate Replacement Event has occurred in relation to any Screen Rate for a currency which can be selected for a Loan, any amendment or waiver which relates to:
|
37.6.1.1
|
providing for the use of a Replacement Benchmark; and
|
37.6.1.2
|
aligning any provision of any Finance Document to the use of that Replacement Benchmark;
|
37.6.1.2.1
|
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);
|
37.6.1.2.2
|
implementing market conventions applicable to that Replacement Benchmark;
|
37.6.1.2.3
|
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or
|
37.6.1.2.4
|
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
|
37.6.2
|
For the purpose of this Clause 34.5:
|
37.6.2.1
|
Relevant Nominating Body means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
|
37.6.2.2
|
Replacement Benchmark means a benchmark rate which is:
|
37.6.2.2.1
|
formally designated, nominated or recommended as the replacement for a Screen Rate by:
|
37.6.2.2.1.1
|
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or
|
37.6.2.2.1.2
|
any Relevant Nominating Body,
|
37.6.2.2.2
|
in the opinion of the Majority Lenders and the Borrowers, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to a Screen Rate; or
|
37.6.2.2.3
|
in the opinion of the Majority Lenders and the Borrowers, an appropriate successor to a Screen Rate.
|
37.6.2.3
|
Screen Rate Replacement Event means, in relation to a Screen Rate:
|
37.6.2.3.1
|
the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders and the Borrowers, materially changed;
|
37.6.2.3.2
|
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent provided that, at that time, there is no successor administrator to continue to provide that Screen Rate; or
|
37.6.2.3.3
|
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent, provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
37.6.2.3.4
|
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate;
|
37.6.2.3.5
|
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or
|
37.6.2.3.6
|
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or
|
37.6.2.3.7
|
in the opinion of the Majority Lenders and the Borrowers, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.
|
38.
|
CONFIDENTIALITY
|
38.1
|
Confidential Information
|
38.2
|
Disclosure of Confidential Information
|
38.2.1
|
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this Clause 38.2.1 is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
38.2.2
|
to any other person:
|
38.2.2.1
|
to (or through) whom it Transfers (or may potentially Transfer) all or any of its rights and obligations under this Agreement and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
38.2.2.2
|
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation or other credit participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
38.2.2.3
|
appointed by any Finance Party or by a person to whom Clause 38.2.2.1 or Clause 38.2.2.2 above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf;
|
38.2.2.4
|
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in Clause 38.2.2.1 or Clause 38.2.2.2 above;
|
38.2.2.5
|
to whom information is required (or which a Finance Party reasonably believes is required) or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
|
38.2.2.6
|
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;
|
38.2.2.7
|
who is a Party; or
|
38.2.2.8
|
with the consent of the Borrowers,
|
38.2.2.8.1
|
in relation to Clauses 38.2.2.1, 38.2.2.2 or 38.2.2.3 above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
38.2.2.8.2
|
in relation to Clause 38.2.2.4 above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; and
|
38.2.2.8.3
|
in relation to Clause 38.2.2.5 or Clause 38.2.2.6 above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
38.2.3
|
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
38.3
|
Entire agreement
|
38.4
|
Inside information
|
38.5
|
Notification of disclosure
|
38.5.1
|
of the circumstances of any disclosure of Confidential Information made pursuant to Clause 38.2.2.5 except where such disclosure is made to any of the persons referred to in that Clause during the ordinary course of its supervisory or regulatory function; and
|
38.5.2
|
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 38.
|
38.6
|
Continuing obligations
|
38.6.1
|
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
38.6.2
|
the date on which such Finance Party otherwise ceases to be a Finance Party.
|
39.
|
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS
|
39.1
|
Confidentiality and disclosure
|
39.1.1
|
The Facility Agent may disclose:
|
39.1.1.1
|
any Funding Rate (but not, for the avoidance of doubt, any Reference Bank Quotation) to the Borrowers pursuant to Clause 8.4 (Notification of rates of interest); and
|
39.1.1.2
|
any Funding Rate or any Reference Bank Quotation to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Facility Agent and the relevant Lender or Reference Bank, as the case may be.
|
39.1.2
|
The Facility Agent may disclose any Funding Rate or any Reference Bank Quotation, and the Borrowers may disclose any Funding Rate, to:
|
39.1.2.1
|
any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate or Reference Bank Quotation is to be given pursuant to this Clause 39.1.2.1 is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of that Funding Rate or Reference Bank Quotation or is otherwise bound by requirements of confidentiality in relation to it;
|
39.1.2.2
|
any person to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the Borrowers, as the case may be, it is not practicable to do so in the circumstances;
|
39.1.2.3
|
any person to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes if the person to whom that Funding Rate or Reference Bank Quotation is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Facility Agent or the Borrowers, as the case may be, it is not practicable to do so in the circumstances; and
|
39.1.2.4
|
any person with the consent of the relevant Lender or Reference Bank, as the case may be.
|
39.1.3
|
The Facility Agent's obligations in this Clause 39 relating to Reference Bank Quotations are without prejudice to its obligations to make notifications under Clause 8.4 (Notification of rates of interest), provided that (other than pursuant to Clause 39.1.1.1 above) the Facility Agent shall not include the details of any individual Reference Bank Quotation as part of any such notification.
|
39.2
|
Related obligations
|
39.2.1
|
The Facility Agent and the Borrowers acknowledge that each Funding Rate (and, in the case of the Facility Agent, each Reference Bank Quotation) is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Facility Agent and the Borrowers undertake not to use any Funding Rate or, in the case of the Facility Agent, any Reference Bank Quotation for any unlawful purpose.
|
39.2.2
|
The Facility Agent and the Borrowers agree (to the extent permitted by law and regulation) to inform the relevant Lender or Reference Bank, as the case may be:
|
39.2.2.1
|
of the circumstances of any disclosure made pursuant to Clause 39.1.2.2 above except where such disclosure is made to any of the persons referred to in that Clause during the ordinary course of its supervisory or regulatory function; and
|
39.2.2.2
|
upon becoming aware that any information has been disclosed in breach of this Clause 39.
|
40.
|
RENUNCIATION OF BENEFITS
|
41.
|
COUNTERPARTS
|
42.
|
WAIVER OF IMMUNITY
|
43.
|
SOLE AGREEMENT
|
44.
|
NO IMPLIED TERMS
|
45.
|
EXTENSIONS AND WAIVERS
|
46.
|
INDEPENDENT ADVICE
|
47.
|
GOVERNING LAW
|
48.
|
JURISDICTION
|
48.1
|
The Parties hereby irrevocably and unconditionally consent to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg (or any successor to that division) in regard to all matters arising from the Finance Documents (including a dispute relating to the existence, validity or termination of any Finance Document or any non-contractual obligation arising out of or in connection with any Finance Document) (a Dispute).
|
48.2
|
The Parties agree that the court referred to above is the most appropriate and convenient court to settle Disputes and accordingly:
|
48.2.1
|
no Obligor will argue to the contrary;
|
48.2.1
|
each Obligor hereby waives any objection to the jurisdiction of that court on the grounds of venue or forum non conveniens or any similar grounds; and
|
48.2.2
|
each Obligor consents to service of process in any manner set out in Clause 49 (Service of Process) and any other manner permitted by applicable law.
|
48.3
|
This Clause 48 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
49.
|
SERVICE OF PROCESS
|
49.1
|
irrevocably appoints the Parent, as its agent for service of process in relation to any proceedings before the courts of South Africa in connection with any Finance Document; and
|
49.2
|
agrees that failure by an agent for service of process to notify the relevant Obligor of the process does not invalidate the proceedings concerned.
|
Name of Borrowers
|
Registration number (or equivalent, if any)
|
Golden Core Trade and Invest Proprietary Limited
|
2019/547039/07
|
Harmony Moab Khotsong Operations Proprietary Limited
|
2006/039120/07
|
Name of Original Guarantor
|
Registration number (or equivalent, if any)
|
Harmony Gold Mining Company Limited
|
1950/038232/06
|
Name of Original Lender
|
Commitment (USD)
|
Absa Bank Limited (acting through its Corporate and Investment Banking division)
|
50 000 000
|
FirstRand Bank Limited (London Branch)
|
50 000 000
|
|
|
JPMorgan Chase Bank, N.A., London Branch
|
50 000 000
|
|
|
Citibank, N.A., Jersey Branch
|
50 000 000
|
1.
|
Constitutional Documents and corporate authorisations
|
1.1
|
A copy of the constitutional documents of each Original Obligor.
|
1.2
|
A copy of a resolution of the board of directors of each Original Obligor:
|
1.2.1
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
1.2.2
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf;
|
1.2.3
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party; and
|
1.2.4
|
as may be required to comply with Section 45 and 46 of the Companies Act.
|
1.3
|
A specimen of the signature of each person authorised by the resolution referred to in Clause 1.2.2 above.
|
1.4
|
To the extent required with reference to the constitutional documents of an Obligor or by law (including under Section 45 and 46 of the Companies Act), a copy of a resolution duly passed by the holders of the issued shares of that Obligor, approving the terms of, and the transactions contemplated by, the Finance Documents to which that Obligor is a party.
|
1.5
|
A certificate from each Original Obligor (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.
|
1.6
|
A certificate of an authorised signatory of the relevant Original Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Signature Date.
|
2.
|
Finance Documents
|
2.1
|
A duly executed copy of this Agreement and the Security Document.
|
2.2
|
Each Fee Letter duly executed by the Original Obligors.
|
2.3
|
The Funds Flow Statement.
|
3.
|
Security Documents
|
3.1
|
Resolutions by the board of directors of Golden Core resolving to give effect to any transfer of the shares following enforcement of the Transaction Security.
|
3.2
|
All documents and evidence required, pursuant to the terms of any of the Security Document, to be delivered promptly upon execution of such Security Document or otherwise prior to the first Utilisation Date. Such documents and evidence include originals of all required notices, share certificates and blank share transfer forms.
|
4.
|
Acquisition
|
4.1
|
Copies of all the duly executed Acquisition Documents.
|
4.2
|
A copy of each of the following relating to the Acquisition:
|
4.2.1
|
the Acquisition Structure Chart;
|
4.2.2
|
the latest base case financial model prepared by the Parent.
|
4.3
|
A certificate signed by a director of the Parent confirming that:
|
4.3.1
|
the Acquisition Documents have become unconditional and effective in accordance with their terms, save for any condition requiring that this Agreement must first become unconditional;
|
4.3.2
|
there has been no default under any Acquisition Document; and
|
4.3.3
|
there has been no amendment, variation, termination, cancellation or repudiation of any Acquisition Document (other than as disclosed to the Facility Agent).
|
5.
|
Legal opinions
|
5.1
|
A legal opinion of Bowmans, legal advisers to the Finance Parties, in a form acceptable to each Original Lender, in respect of the legality, validity and enforceability of the Finance Documents.
|
5.2
|
A legal opinion of Cliffe Dekker Hofmeyr, legal advisers to the Original Obligors in South Africa, in a form acceptable to each Original Lender, in respect of the capacity, power and authority of each Original Obligor to enter into the Finance Documents to which it is a party.
|
6.
|
Other documents and evidence
|
6.1
|
Evidence that all relevant waivers and/or consents required under the Existing Facilities in connection with the Facility have been obtained.
|
6.2
|
A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document, including but not limited to any approvals required from the Financial Surveillance Department of the South African Reserve Bank.
|
6.3
|
The Original Financial Statements of the Parent and Harmony Moab.
|
6.4
|
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11 (Fees) and Clause 16 (Costs and expenses) have been paid or will be paid by the first Utilisation Date.
|
6.5
|
Such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any other Finance Party) in order for the Facility Agent and each other Finance Party to carry out and be satisfied it has complied with all necessary know your customer or similar identification procedures under applicable laws and regulations (including the Financial Intelligence Centre Act, 2001) pursuant to the transactions contemplated in the Finance Documents.
|
1.
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2.
|
We wish to borrow a Loan on the following terms:
|
3.
|
We confirm that each condition specified in Clause 4.2 (Conditions precedent to Utilisations generally) is satisfied on the date of this Utilisation Request.
|
4.
|
The proceeds of this Loan should be credited to [account].
|
5.
|
The Interest Period for this Loan is 3 Months.
|
6.
|
This Utilisation Request is irrevocable.
|
1.
|
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2.
|
We refer to Clause 24.4 (Procedure for Transfer):
|
2.1
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by cession and delegation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 24.4 (Procedure for Transfer).
|
2.2
|
The proposed Transfer Date is [●].
|
2.3
|
The Facility Office and address through which the New Lender will perform its obligations, fax number and attention details for notices of the New Lender for the purposes of Clause 33.2 (Addresses) are set out in the Schedule.
|
3.
|
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in Clause 24.3.3 (Limitation of responsibility of Existing Lenders).
|
4.
|
The New Lender agrees that it shall assume the same obligations towards each other Finance Party under the Finance Documents as if it had been an Original Lender.
|
5.
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
6.
|
This Transfer Certificate is governed by South African law.
|
7.
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
1.
|
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
|
2.
|
We confirm that: [Insert details of covenants to be certified with reference to Clause 20.1(Financial Covenants)]
|
3.
|
[We confirm that no Default is continuing.]
|
Name of Group Member
|
Security
|
Total Principal Amount of Indebtedness Secured at Signature Date
|
Harmony Gold Mining Co Ltd
|
Agreement for Sale of Interest in Royalty Deed dated 10 November 2008 between the Parent, Abelle Limited, Wafi Mining Limited and Rio Tinto Limited (ABE0063003)(WAF0002013)
|
Contingent Liability (Deferred Cash Consideration of US$10,000,000 payable on occurrence of decision to mine/commencement of infrastructure construction)
|
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)
|
as of 11am Johannesburg time on the date which is 4 (four ) Business Days prior to the proposed Utilisation Date
|
Facility Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders' participation)
|
as of 11am Johannesburg time on the date which is 3 (three) Business Days prior to the proposed Utilisation Date
|
LIBOR is fixed
|
Quotation Day as of 11:00 a.m. London time
|
1. Local banks
|
Absa Bank Limited
FirstRand Bank Limited
The Standard Bank of South Africa Limited
Nedbank Limited
Investec Bank Limited
Any fund managed and/or controlled by any of the aforesaid local banks
|
2. Foreign banks
|
ABN Amro Bank N.V.
Deutsche Bank Group AG
Standard Chartered Bank
Barclays Bank PLC
UBS
Citibank
SMBC (Sumitomo Mitsui Banking Corporation)
Fortis
Royal Bank of Scotland
HSBC Bank plc
Bank of China Limited, Johannesburg Branch
Bank of Taiwan
China Construction Bank
China Development Bank
Industrial & Commercial Bank of China (ICBC)
Credit Agricole
Bank of Taiwan
BNP Paribas
West LB
Allied Irish
Societe Generale
Goldman Sachs
J.P. Morgan
Credit Suisse
Macquarie Bank
Westpac Banking Corporation
National Australia Bank
Australia and New Zealand Banking Group Limited
State Bank of India
Bank of America Merill Lynch
Natixis
The Bank of Tokyo-Mitsubishi Limited\
First Bank of Nigeria
Ecobank
Zenith Bank
Bank of South Pacific Limited
ICIC Bank
Caterpillar Financial Services Corporation
|
3. DFIs
|
African Development Bank
DEG – Deutsche Investitions- und Entwicklungsgesellschaft mbH
Emerging Africa Infrastructure Fund
European Investment Bank (EIB)
Nederlandse Financierings-Maatschappij Voor Ontwikkelingslanden N.V. (“FMO”)
International Finance Corporation (IFC)
Kreditanstalt fuer Wiederaufbau (KfW)
Kreditanstalt fuer Wiederaufbau – IPEX
OPEC Fund for International Development (OFID)
Development Bank of Southern Africa (DBSA)
Industrial Development Corporation (IDC)
Proparco
African Finance Corporation (AFC)
PTA Bank
Any fund managed and/or controlled by any of the aforesaid financial institutions
|
4. Other financial institutions
|
Old Mutual Specialised Finance (Proprietary) Limited
Old Mutual Life Assurance Company (South Africa) Limited
Sanlam Capital Markets Limited
Sanlam Life Insurance Limited
Futuregrowth Asset Management (Pty) Ltd
Liberty Group Limited
MMI Holdings Limited
Mergence Investment Managers (Pty) Ltd
Metropolitan Insurance Company Limited
Metropolitan Life Limited
Taquanta Asset Management
Coronation Fund Managers Limited
RMB Asset Management
Mezzanine Partners 1 GP (Proprietary) Limited
Titan Share Dealers (Proprietary) Limited
Venfin Share Dealers (Proprietary) Limited
Investec Asset Management (Proprietary) Limited
Public Investment Corporation
Absa Asset Managers
Stanlib
Vantage Capital Group (Proprietary) Limited
Prudential Portfolio Managers South Africa (Proprietary) Limited
Fairtree Asset Management
Saffron Asset Management
Cadiz Asset Management
Tantulum Asset Management
Atlantic Asset Management
Momentum Asset Managers
Hollard Group
Peregrine Holdings
Any fund managed and/or controlled by any of the aforesaid financial institutions. Any affiliates, subsidiaries or holding companies of and of the banks or financial institutions listed in this 0 and any trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets.
|
1.
|
To be de-registered/wound up (South Africa):
|
1.1
|
Harmony Gold Management Services Proprietary Limited
|
1.2
|
Potchefstroom Gold Holdings Proprietary Limited
|
1.3
|
Coreland Property Management Company Proprietary Limited
|
1.4
|
Potchefstroom Gold Areas Limited
|
1.5
|
Virginia Salvage Proprietary Limited
|
1.6
|
Harmony Engineering Proprietary Limited
|
1.7
|
Musuku Benefication Systems Proprietary Limited
|
1.8
|
Remaining Extent of Portion 15 Wildebeesfotein Proprietary Limited
|
1.9
|
Harmony Precision Casting Proprietary Limited
|
1.10
|
Harmony Pharmacies Proprietary Limited
|
2.
|
To be de-registered/wound up (Australia and/or PNG):
|
2.1
|
New Hampton Goldfields Limited ACN 53 009 193 999
|
2.2
|
Harmony Gold Securities Pty Limited ACN 099 119 909
|
2.3
|
Harmony Gold W.A. Pty Limited ACN 099 119 918
|
2.4
|
Harmony Gold Operations Limited ACN 005 482 842
|
•
|
SIGNATURE PAGES -
|
|
For and on behalf of
HARMONY MOAB KHOTSONG OPERATIONS PROPRIETARY LIMITED (AS BORROWER)
/s/ Herman Machiel Perry
Signatory: Herman Machiel Perry
Capacity:
Who warrants his authority hereto
/s/ Velile Phillip Tobias
Signatory: Velile Phillip Tobias
Capacity:
Who warrants his authority hereto
|
|
For and on behalf of
GOLDEN CORE TRADE AND INVEST PROPRIETARY LIMITED (AS BORROWER)
/s/ Melanie Naidoo-Vermaak
Signatory:Melanie Naidoo-Vermaak
Capacity:
Who warrants his authority hereto
/s/ Neil Terblanche
Signatory: Neil Terblanche
Capacity:
Who warrants his authority hereto
|
|
For and on behalf of
HARMONY GOLD MINING COMPANY LIMITED (AS PARENT)
/s/ Peter William Steenkamp
Signatory: Peter William Steenkamp
Capacity: Chief Executive Officer
Who warrants his authority hereto
/s/ Boipelo Lebuka
Signatory: Boipelo Lebuka
Capacity: Financial Director
Who warrants his authority hereto
|
|
For and on behalf of
ABSA BANK LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION)
(AS MANDATED LEAD ARRANGER, BOOKRUNNER AND ORIGINAL LENDER)
/s/ Matthew Duggan
Signatory: Matthew Duggan
Capacity: Head of Syndicate
Who warrants his authority hereto
/s/ Shalani De Andrade
Signatory: Shalani De Andrade
Capacity: Principle Syndicate
Who warrants his authority hereto
|
|
For and on behalf of
ABSA BANK LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION)
(AS FACILITY AGENT)
/s/ Ameeth Lakhani
Signatory: Ameeth Lakhani
Capacity: Authorised
Who warrants his authority hereto
/s/ Theresho Mathete
Signatory: Theresho Mathete
Capacity: Authorised
Who warrants his authority hereto
|
|
For and on behalf of
FIRSTRAND BANK LIMITED (LONDON BRANCH) (AS MANDATED LEAD ARRANGER, BOOKRUNNER AND ORIGINAL LENDER)
/s/ Colin Wakefield
Signatory: Colin Wakefield
Capacity: Authorised Signatory
Who warrants his authority hereto
/s/ Diane Giddy
Signatory: Diane Giddy
Capacity: Authorised Signatory
Who warrants his authority hereto
|
|
For and on behalf of
CITIBANK, N.A., LONDON BRANCH (AS MANDATED LEAD ARRANGER AND BOOKRUNNER)
/s/ Adrian Bain
Signatory: Adrian Bain
Capacity: Vice President
Who warrants his authority hereto
|
|
For and on behalf of
CITIBANK, N.A., JERSEY BRANCH (AS ORIGINAL LENDER)
/s/ Jitendra Pal
Signatory: Jitendra Pal
Capacity: Vice President
Who warrants his authority hereto
|
|
For and on behalf of
JPMORGAN CHASE BANK, N.A., LONDON BRANCH (AS ORIGINAL LENDER)
/s/ Isabelle Nino
Signatory: Isabelle Nino
Capacity: Executive Director
Who warrants his authority hereto
|
|
For and on behalf of
J.P. MORGAN SECURITIES PLC (AS MANDATED LEAD ARRANGER AND BOOKRUNNER)
/s/ Isabelle Nino
Signatory: Isabelle Nino
Capacity: Executive Director
Who warrants his authority hereto
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NAME OF SUBSIDIARY
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PERCENTAGE HELD
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COUNTRY OF INCORPORATION
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Freegold (Harmony) Proprietary Limited
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100
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%
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South Africa
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Avgold Limited
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100
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%
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South Africa
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Harmony Gold Australia Proprietary Limited
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100
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%
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Australia
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Kalahari Goldridge Mining Company Limited
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100
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%
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South Africa
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Randfontein Estates Limited
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100
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%
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South Africa
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African Rainbow Minerals Gold Limited
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100
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%
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South Africa
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Harmony Moab Khotsong Operations Proprietary Limited
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100
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%
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South Africa
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1.
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I have reviewed this annual report on Form 20-F of Harmony Gold Mining Company Limited;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
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4.
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The Company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have:
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and
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5.
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The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
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1.
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I have reviewed this annual report on Form 20-F of Harmony Gold Mining Company Limited;
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2.
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Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
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3.
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Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Company as of, and for, the periods presented in this report;
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4.
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The Company’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Company and have:
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(a)
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Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
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(b)
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Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
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(c)
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Evaluated the effectiveness of the Company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
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(d)
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Disclosed in this report any change in the Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and
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5.
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The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’s board of directors (or persons performing the equivalent functions):
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(a)
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All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information; and
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(b)
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Any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
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(1)
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the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
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(2)
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the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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(1)
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the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
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(2)
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the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
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About this report
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Corporate profile
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Business model - how we create value
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Delivering on our strategy
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Our leadership
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Chairman’s vision
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Chief executive’s review
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Our business context
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Our external operating environment
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Our risks and opportunities
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Stakeholder engagement and material issues
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Sustainable development - delivering on responsible stewardship and SDGs
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Ensuring stability, employee safety and well-being
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Safety and health
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Employee relations
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Delivering profitable ounces
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Operational performance
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Exploration and projects
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Managing our social and environmental stewardship
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Socio-economic development
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Environmental management and stewardship
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Mining charter III compliance scorecard
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Corporate governance
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Remuneration report
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Audit and risk committee: chairperson’s report
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Social and ethics committee: chairperson’s report
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•
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International Integrated Reporting Framework
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•
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King Report on Corporate Governance for South Africa, 2016 (King IV)
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•
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Global Reporting Initiative (GRI) Standards for sustainability reporting
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United Nations Sustainable Development Goals (SDGs)
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International Council on Mining and Metals - 10 principles
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•
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United Nations Global Compact
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•
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Voluntary Principles on Security and Human Rights
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•
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JSE Listings Requirements
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•
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World Gold Council’s Responsible Mining Principles
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•
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Form 20-F
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•
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Global Reporting Initiative Scorecard
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Operational Report 2020
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UNDERGROUND
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West Rand: Doornkop / Kusasalethu
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Klerksdorp goldfield: Moab Khotsong
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Free State*: Tshepong operations / Bambanani / Target 1 / Joel / Masimong
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Surface
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North West: Kalgold
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Free State: Surface sources**
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* Closure is currently underway at Unisel, where stoping activities are scaling down
** Includes the Tswelopele Beneficiation Operation (Proprietary) Limited in which Harmony has a holding of 75%
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Hidden Valley (open-pit gold and silver mine)
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Wafi-Golpu (copper-gold joint operation - 50%)
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Multiple exploration areas
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INPUTS
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Natural Capital
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Manufactured Capital
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The natural resources, such as our orebodies, water and energy, that are used in the functioning of the business
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This pertains to the physical infrastructure or technology used by the company
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- Mineral Reserve of 36.50Moz of gold and gold equivalents (FY19: 36.45Moz)
- Land under management
- Volume of ore milled 25.43Mt (FY19: 25.98Mt)
- Resources consumed:
- Water used for primary activities 19 692 000m3 (FY19: 23 158 000m3)
- Group electricity consumption 3 171 000 MWh (FY19: 3 340 677MWh)
See Mineral Resources and Reserves and Environmental management and stewardship for more information.
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- Operational infrastructure, associated infrastructure and equipment
- Production costs R22.05 billion
(FY19: R20.32 billion)
- Mining rights and leases
- Exploration and growth projects
- Exploration spend, including Wafi-Golpu, R259 million (FY19: R498 million)
See Operational performance and Exploration and projects for more information.
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Human Capital
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Financial Capital
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The skills and know-how of an organisation’s workforce
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The traditional yardstick of performance, this capital includes funds obtained through financing or generated by means of productivity
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- A total of 39 714 permanent and contract employees across the Group (FY19: 39 773)
- A transformation that endeavours to create a more gender diverse and racially representative workforce with a focus on recruiting from local communities
See Employee relations and Remuneration report for more information.
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- Total equity R23.4 billion
(FY19: R22.6 billion)
- Placement of ordinary shares to raise equity capital of $200 million
- Cash generated by operating activities R4 723 million (FY19: R4 679 million)
See Financial director’s report for more information.
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Intellectual Capital
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Social and Relationship Capital
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This accounts for the intangibles associated with the brand and reputation, organisational systems and related procedures
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This encompasses the relationships between the company and all its stakeholders
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- The requisite skills and expertise required in being the global leader in deep-level gold mining
- Digitisation of the organisation is underway, including upgrades to enterprise resource planning and human resources systems
- Systems and processes
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- Values and code of ethics guiding stakeholder engagement
- Governance and corporate responsibilities
- Stakeholders include: investors, employees, government and regulators, communities and suppliers
See Socio-economic development and ESG report for more information.
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•
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Safety
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•
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Grade and volume mined
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•
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Costs, efficiencies and productivity
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•
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Stakeholder relations
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•
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Gold price and global market
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•
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Exchange rate volatility
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•
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Regulatory policy and political uncertainty
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•
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Mounting community expectation and socio-economic challenges
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Human capital
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r
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Tragically, there were six loss-of-life incidents
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a
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Recorded an overall improvement of 33.3% in the fatal injury frequency rate compared to FY19
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a
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A year of no strikes indicates a strong and mature relationship with the unions
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a
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Focus on gender diversity
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a
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A transformed workforce in South Africa, with 60% of management across all levels being HDPs
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a
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R11.7 billion (US$744 million) spent on wages and salaries
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a
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R458 million spent on skills training and human resource development (FY19: R484 million)
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a
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Rapid, proactive Covid-19 response and mitigation strategies
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Financial capital
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a
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Our share price increased by 126% during FY20 positively influencing our market capitalisation, which closed at R43.3 billion on 30 June 2020
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a
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Net debt decreased to R1.36 billion (US$79 million) (FY19: R4.92 billion; US$348 million)
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a
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Production profit - R7.2 billion (US$459 million) (FY19: R6.6 billion; US$465 million)
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Social and relationship capital
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a
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Invested R65 million and R36 million in South Africa and Papua New Guinea respectively, in our social licence to operate, which included mine community development initiatives
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a
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Focused on preferential/local procurement, spending R5.08 billion in South Africa and R1.25 billion in Papua New Guinea
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a
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R342 million paid in taxes and royalties
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a
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Improved relationship with host community stakeholders
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a
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Hygiene products, food parcels and other essential supplies provided to the most vulnerable households in host communities
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a
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Constructive relations with the governments of South Africa and Papua New Guinea
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Manufactured capital
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a
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Acquisition of Mponeng mine and Mine Waste Solutions (deal concluded post-year-end in September 2020)
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a
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Progressed our 30MW Nyala solar generation project to reduce our dependency on fossil fuel-generated electricity
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Intellectual capital
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a
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A total of 31 533 employees completed training in FY20
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a
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Supported 84 bursaries at tertiary level
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a
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More digitised business equipped to operate effectively in the twenty-first century
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Natural capital
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a
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The Group spent R161 million (US$10 million) (FY19: R199 million; US$14 million) on land rehabilitation initiatives and environmental stewardship
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a
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44.19ha was rehabilitated
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FY20 – what we did
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Outlook
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Responsible stewardship
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• Embed proactive safety culture
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Improvement evident in safety performance – the fatal injury frequency rate improved by 33% (six fatalities versus 11 in FY19).
However, more remains to be done as the lost-time injury frequency rate regressed by 2.7% to 6.33 per million hours worked.
Our safety strategy is to instil a proactive safety culture
focused on:
• Leadership
• Risk management
• Prevention of repeat incidents
• Rewarding safe behaviour
• Zero tolerance for non-compliance with safety protocols
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To continue with implementation and embedding of our four-phase pro-active safety culture.
To achieve our objective of zero harm and zero loss of life incidents.
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For more information on our safety performance, targets and outlook, see Safety and health
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• Manage the Covid-19 pandemic
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• Measures to manage, contain and prevent the Covid-19 pandemic were aimed at ensuring a safe and risk-free workplace for employees. These measures were extended to host communities
• A standard operating procedure was speedily developed and implemented, supported by a focused communication campaign
• An employee messaging app was introduced to aid monitoring and communication
• Company facilities were made available for self-isolation and quarantine
• Community outreach projects were aimed at the most vulnerable in society
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For as long as the Covid-19 disease continues to pose a threat to our employees and host communities, we will continue with our preventative and mitigating measures to manage the pandemic.
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For more information on what we have done to address the Covid-19 pandemic, see Safety and health and Socio-economic development
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• Maintain strong stakeholder relations
For more information on stakeholder engagement, see Stakeholder engagement and material issues
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Our response to the pandemic reinforced our commitment to the “S” in ESG. In addition to engaging with employees and unions, management of the pandemic involved collaborating and engaging with many other stakeholders including various levels of government, community representatives, industry bodies and our peers in the mining sector.
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We will continue to prioritise engagements with our various stakeholders to ensure we maintain healthy and robust relationships.
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• Continue responsible
ESG practices |
This encompasses our activities principally in relation to the environment, our host communities and the regulatory environment in which we operate. All our decisions and actions are governed by our corporate governance framework, code of ethics, values and the policies and frameworks in place.
Our third generation social and labour plan projects are well under way.
Environmental performance, climate change, land rehabilitation and water conservation remain focus areas.
We have adopted the Task Force for Climate-related Financial Disclosure (TCFD), and are now reporting in terms of its financial requirements/guidelines.
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Retaining our social licence to operate is crucial. As this hinges on responsible ESG practices, we will endeavour to ensure that our performance in this regard continues to strive
for excellence. |
For more information on our ESG performance, see Socio-economic development, Environmental management and Corporate governance
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Operational excellence
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• Continue operating:
o safely
o optimally
o meeting/exceeding plans
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Overall, Harmony demonstrated its expertise as a world leader in deep-level, mature asset mining `and re-affirmed its resilience to survive in times of social and economic uncertainty.
Regarding safety, see above – strategic pillar 1, Responsible stewardship and embedding a proactive safety culture.
Key features of our operational performance were:
• Better-than-expected operational performance in the fourth quarter of the year, despite the Covid-19 pandemic
• A 15% decline in annual gold production to 1.2Moz
• 106% increase in operating free cash flow
In addition, exploration and several projects are underway which will contribute to our resource and reserve pipeline in the longer term. See below strategic pillar 4, Capital allocation.
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Planned group production for FY21 is estimated at:
• 1.26Moz to 1.3Moz at an all-in sustaining cost of R690 000/kg to R710 000/kg
• Including Mponeng and Mine Waste Solutions, planned production is 1.6Moz
Completion of the acquisition of Mponeng and Mine Waste Solutions will further enhance production in the medium term contributing around 350 000oz annually.
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For more information, see Operational performance in this report as well as the separate report, Operational performance 2020, for more detailed information by operation
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• Integrate Mponeng and Mine Waste Solutions
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The transaction to acquire these assets was concluded on
30 September with their acquisition effective from 1 October 2020. |
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Following the conclusion of this transaction, the focus in FY21 will be to ensure their smooth integration within Harmony. The organisational management structures are in place in readiness. These operations are expected to make an immediate contribution to production and to operating cash flows from
1 October 2020. |
For further detail, see Chief executive officer’ review
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• Returns
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Each of our capital allocations decisions are aimed at ensuring total shareholder return - both share appreciation and dividends. The decision to pay a dividend is based on the company’s operational and financial performance, as well as the strategic direction being pursued. Dividends are paid from profits only. The company is currently in a growth phase and our priority remains to first repay our debt.
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At current gold price levels it is likely that we will repay our debt in the next 12 to 18 months.
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Strategic pillar
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Capitals increased/enhanced
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Capitals depleted
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RESPONSIBLE STEWARDSHIP
Being mindful of and managing and limiting the impacts of our activities on employees, host communities and the environment
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HUMAN CAPITAL
Acted on our duty of care in terms of employee safety and health
NATURAL CAPITAL
Mitigated and managed the environmental impact of our activities
SOCIAL AND RELATIONSHIP CAPITAL
Engaged with stakeholders, investing in communities, paying taxes and royalties, and regulatory compliance
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FINANCIAL CAPITAL
Costs incurred in carrying out our stewardship responsibilities – for employee healthcare expenditure and to manage Covid-19 in particular, and on environmental management, among others
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OPERATIONAL EXCELLENCE
Prioritising safety, strict cost control, management of grade mined, together with disciplined mining, to improve productivity and efficiencies
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HUMAN CAPITAL
Invested in employees in terms of safety, skills development
and training
INTELLECTUAL CAPITAL
Invested in technology upgrades, and in system and process improvements to optimise and increase efficiencies and productivity
MANUFACTURED CAPITAL
Invested in the maintenance of mining infrastructure (plant, machinery and equipment) and to sustain the business
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FINANCIAL CAPITAL
Financial expenditure incurred to promote operational excellence and to deliver on our strategic pillar of ‘Cash certainty’
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CASH CERTAINTY
Ensuring cash flow certainty by delivering on operational plans, supported by current hedging strategy
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FINANCIAL CAPITAL
The aim of this strategic pillar is to enhance financial capital – to preserve cash and to reduce costs and debt
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EFFECTIVE CAPITAL ALLOCATION
Evaluating and prioritising organic growth opportunities and safe, value-accretive acquisitions to generate positive stakeholder returns and increase margins
Investing in the future
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MANUFACTURED CAPITAL
Acquired infrastructure and assets (Mponeng and Mine Waste Solutions)
NATURAL CAPITAL
• Developing a project pipeline to ensure availability of Ore Reserves to be mined
• Acquired resources and reserves (Mponeng and Mine Waste Solutions)
FINANCIAL CAPITAL
In the longer term, these acquisitions and projects will contribute positively to operational cash flows and margins
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FINANCIAL CAPITAL
The total cost of the acquisitions, the debt incurred and of project development is balanced against the longer-term financial benefits
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•
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Audit and risk committee
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•
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Remuneration committee
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•
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Social and ethics committee
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•
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Investment committee
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•
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Nomination committee
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•
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Technical committee
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Non-executive chairman
Dr Patrice Motsepe (58)
BA, LLB, Doctorate of Commerce (Honorius Causa), Doctor of Management and Commerce (Honorius Causa)
Appointed non-independent non-executive chairman on 23 September 2003
Member: Nomination committee
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Non-executive deputy chairman
Modise Motloba (54)
BSc, Diploma in Strategic Management
Appointed 30 July 2004
Chairperson: Investment committee
Member: Nomination committee, Technical committee, Social and ethics committee
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Lead independent non-executive director
Mavuso Msimang (79)
MBA (Project Management), BSc
Appointed 26 March 2011
Chairman: Nomination committee
Member: Social and ethics committee
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Chief executive officer
Peter Steenkamp (60)
BEng (Mining), Mine Manager’s Certificate Metal Mines, Mine Manager’s Certificate Fiery Mines, CPIR, MDP, BLDP
Appointed chief executive officer on 1 January 2016
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Financial director
Boipelo Lekubo (37)
BCom (Hons), CA(SA)
Joined Harmony in June 2017 and appointed financial director on 3 March 2020
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Executive director: stakeholder relations and corporate affairs
Mashego Mashego (56)
BA (Education), BA (Hons)
(Human Resources Management), Joint Management Development Programme, Global Executive Development Programme
Joined Harmony in 2005 and appointed an executive director on 24 February 2010
|
Joaquim Chissano (81)
PhD (Honorius Causa)
Appointed 20 April 2005
Member: Investment committee, Social and ethics committee, Nomination committee
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Fikile De Buck (60)
BA (Economics), FCCA
Appointed 30 March 2006
Chairperson: Audit and risk committee
Member: Nomination committee, Social and ethics committee, Remuneration committee
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Dr Simo Lushaba (54)
BSc (Hons), MBA, DBA, CD (SA)
Appointed 18 October 2002
Chairperson: Social and ethics committee
Member: Investment committee, Remuneration committee, Audit and risk committee
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Grathel Motau (46)
BCompt, BCompt Hon, CA(SA),
Mphil (Development Finance)
Appointed 13 May 2019
Member: Investment committee
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Karabo Nondumo (42)
BAcc, HDip (Acc), CA(SA)
Appointed 3 May 2013
Member: Technical committee, Investment committee, Audit and risk committee
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Vishnu Pillay (63)
BSc (Hon), MSc
Appointed 8 May 2013
Chairperson: Remuneration committee
Member: Nomination committee, Technical committee, Investment committee
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Given Sibiya (52)
BComm, BAcc, CA(SA)
Appointed 13 May 2019
Member: Audit and risk committee
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John Wetton (71)
CA(SA), FCA
Appointed 1 July 2011
Member: Investment committee, Social and ethics committee, Remuneration committee, Audit and risk committee
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|
André Wilkens (71)
Mine Manager’s Certificate of Competency, MDPA, RMIIA, Mini MBA Oil and Gas
Appointed 7 August 2007
Chairperson: Technical committee
Member: Remuneration committee, Social committee
|
Chief operating officer: South Africa
Beyers Nel (43)
BEng (Mining Engineering), MBA, Pr. Eng, Mine Manager’s Certificate of Competency
|
Chief executive officer: South-East Asia
Johannes van Heerden (48)
BCompt (Hons), CA(SA)
|
Chief operating officer: new business development, corporate strategy and projects
Phillip Tobias (50)
BSc (Mining Engineering), International Executive Development Programme, Advanced Management Programme, Pr Eng and Mine Manager’s Certificate of Competence
|
Enterprise risk and investor relations
Marian van der Walt (47)
MBA (Oxford), BCom (Law), LLB, Higher Diploma in Tax, Diplomas in Corporate Governance and Insolvency Law, Certificates in Business Leadership and Investor Relations (UK)
Appointed a senior executive on 14 August 2020
|
Chief audit executive
Besky Maluleka-Ngunjiri (44)
BCompt (Hons), CTA, CIA, CCSA
|
Sustainable development
Melanie Naidoo-Vermaak (46)
BSc (Hons) (Industrial Microbiology), MSc (Sustainable Development), MBA
|
Chief financial officer: Treasury
Herman Perry (48)
BCom (Hons), CA(SA)
|
Special projects
Abré van Vuuren (60)
BCom, Development Programme in Labour Relations, Management Development Programme, Advanced Labour Law Programme, Board Leadership Programme
|
Shela Mohatla (35)
FCIS (CGISA), BAdmin IR, PGDIP Corporate Law, PGDIP General Management, Certificate in Management Development (PMD)
|
Beyers Nel
Chief operating officer: South Africa
Jaco Boshoff
Ore reserve management
Anton Buthelezi
Human resources
Robert Hart
Technical services and engineering
Dr Tumi Legobye
Health
Danie Muller
Chief financial officer (South Africa)
Tom van den Berg
Safety and technology
Regional managers
Francois Janse van Rensburg
Free State operations
Moses Motlhageng
Mponeng, Kusasalethu and Kalgold
Zweli Ndese
Moab Khotsong and Doornkop
|
Johannes van Heerden
Chief executive officer: South-East Asia
Bryan Baillie
Projects
Stan Bierschenk
Engineering and asset management
Gary Davies
Papua New Guinea operations
Mike Humphries
Exploration
Greg Job
New business and technical services
Aubrey Testa
Chief financial officer (South-East Asia)
Richard Wills
Corporate Affairs
Kepas Wali
Stakeholder relations and corporate affairs
Papua New Guinea
|
•
|
increase production to around 1.5Moz per year
|
•
|
add quality ounces to reduce all-in sustaining costs
|
OVERSIGHT OF RISK
GOVERNANCE PROCESS |
|
EXECUTIVE MANAGEMENT
|
|
IMPLEMENTATION AND
DAY-TO-DAY MANAGEMENT |
Board
Top strategic, operational and safety-specific risks and mitigating factors
are reported quarterly to the board by committees |
|
Conducts quarterly reviews of Harmony’s strategic risk profile to:
• assess its completeness
• consider those external and internal factors which could lead to any new/emerging risks and opportunities
• revisit the likelihood and impact/ consequence of existing risks and to similarly assess any new or emerging risks and opportunities to determine a residual rating for each
• review the completeness, effectiveness and/or relevance of mitigating actions implemented and to evaluate the resulting residual risk ranking
|
|
Operational management teams
Implement and oversee day-to-day
risk management |
Audit and risk committee
Responsible for oversight of risk governance and ensuring that strategic risks are appropriately addressed and managed. Reviews and evaluates related policies, systems and processes in place to identify, monitor and manage risk, including our risk management policy, methodology and planning, formal risk assessment, internal controls and assurance processes, our risk appetite and tolerance, and our responses to the risks identified
|
|
Safety
A four-layered risk-based approach to actively manage safety adopted in both South Africa and Papua New Guinea – for further information on this risk-based approach to safety, see Safety and health in this report
|
||
Technical committee
Monitors safety and operation-
specific risks |
|
Operations
Each operation maintains, updates
and regularly reviews its risk register. These operational risk registers are formally reviewed weekly by the regional general managers together with country-based executive and management teams |
||
Other board committees
Review specific risks falling within the ambit of their responsibilities
|
|
•
|
Identifying risks and analysing the most effective strategies or initiatives (which we refer to as golden controls) to mitigate those risks
|
•
|
Implementing those golden controls with routine inspection and maintenance
|
•
|
Continuous monitoring to assess the effectiveness of controls, with regular analysis and reporting, and action management on all failures
|
•
|
Identifying and defining any improvements that could be made to any of our risk management initiatives
|
•
|
Harmony is in the business of gold mining – in South Africa, the rest of Africa and Papua New Guinea. Gold mining is a high-risk, high-reward business
|
•
|
We are involved in the entire gold mining value chain – from exploration, feasibility studies, building and buying mines, operating mines and closing and rehabilitating mines at the end of their operating life
|
•
|
We are exposed to gold price and exchange rate volatility and, where appropriate, will mitigate some of this exposure through hedging programmes
|
•
|
We operate well in emerging economies and are able to deal with associated socio-political dispensations
|
•
|
Exploration remains one of the most effective ways to grow an orebody and create value and, for this reason, we continue to invest in exploration
|
•
|
We have an appetite for change and continuous improvement, and are continuously looking for innovative ways to improve our existing mines and acquire mines that we can improve on operationally
|
•
|
Deep-level, narrow-reef gold mining in South Africa is very labour intensive and we have the skills to deal with the challenges of multi-stakeholder labour relations
|
•
|
Our experienced teams have strong values and are committed to deliver
|
•
|
We will tolerate no deviation from the Harmony values
|
•
|
Group net debt balance shall not exceed a multiple of one times annual EBITDA
|
•
|
We have zero tolerance for corruption, bribes, and other under-handed transactions
|
•
|
Any unforeseen damage to the environment must be prevented and remedied immediately should this occur
|
•
|
Establishment of community engagement structures, where they did not exist previously or re-establishing them in instances in which they did not adhere to the community/stakeholder engagement principles of inclusivity, legitimacy, transparency or had an acceptable governance framework
|
•
|
Scheduled meetings with host municipalities, specifically executive mayors and municipal managers
|
•
|
Breakfast meetings with the provincial executive councils
|
•
|
develop relationships founded on integrity, transparency and trust
|
•
|
support government by establishing collaborative partnerships with stakeholders
|
•
|
balance and align our goals and stakeholder expectations
|
•
|
establish accountability
|
•
|
improve stakeholder understanding of Harmony’s challenges, requirements and concerns
|
•
|
support value creation by maintaining awareness of broader economic and ESG issues
|
•
|
Extent of their contribution to our efforts to deliver on our strategic goals
|
•
|
Their potential to impact our performance
|
•
|
Significance of the risk of not engaging with them
|
INVESTORS AND FINANCIERS
(Includes capital providers, current and future shareholders and, indirectly, investment analysts and financial media)
Significance: provide financial capital
|
|||
Aims of engagement
|
Form of engagement
|
Concerns
|
Response
|
• Reporting on all aspects of our performance
• Managing expectations relating to our financial, operating and ESG performance
• Providing guidance on delivery against our strategic objectives
|
• Results presentations
• Annual reporting
• Website
• One-on-one calls and industry conferences
• Meetings, including the annual general meeting
• Regulatory announcements
• E-mails sent to our database
|
• Safety performance
• Power security in South Africa
• All-in sustaining costs and the impact of higher social demands. Management of Covid-19 pandemic and related implications
• Conclusion of acquisition of Mponeng and Mine Waste Solutions and possible synergies to unlock value
|
• Continued implementation of risk-based management strategy to improve safety performance
• Plans put in place to access solar power
• Higher production results in lower costs, allowing Harmony to share profits with all stakeholders
• Acquisition concluded on 14 September 2020, with Harmony taking effective control on 1 October 2020
• Rights issue to fund acquisition successfully completed in June
• This acquisition will support our long-term sustainability
• Detailed communication on action taken to address Covid-19 pandemic – viability of company and livelihoods of surrounding communities ensured
|
SUPPLIERS
Significance: provide raw materials, inputs and services essential to the conduct of our business.
|
|||
Aims of engagement
|
Form of engagement
|
Concerns
|
Response
|
• Managing costs and aligning with our policies on the environment and climate change, transformation and enterprise development, thus helping us to deliver on our strategic objectives and supporting our long-term viability
• In South Africa, such engagement is essential in helping us meet procurement targets in relation to our mining rights
|
• One-on-one, issues-based meetings
• Email and website
• Industry meetings
• Contracts and service agreements
|
• Long-term sustainability and continuity of our business
• Preferential procurement
• Alignment with Harmony’s values, policies and practices (human rights, labour relations, safety and environmental)
• Ethical conduct, bribery and corruption
|
• Continuing engagement with key suppliers
• Dedicated initiatives in place giving preference to local suppliers and the historically disadvantaged
• In South Africa, initiatives are in place to support local small business by means of supplier days and a significant portion of our social and labour plan budget allocation is aimed at promoting entrepreneurial skills and small, medium and micro business development, especially among women and youth
• Contracts and service agreements are aligned with policies on ethical conduct
|
•
|
Our risk profile
|
•
|
Our external operating context
|
•
|
Stakeholder feedback
|
•
|
Any emerging industry issues
|
TIER 1: DESCRIPTION
|
|
3
|
Ensure good health and promote the well-being of all
|
5
|
Promote gender equality and empower women and girls
|
8
|
Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work
|
12
|
Ensure sustainable, responsible consumption and production patterns
|
13
|
Take urgent action to combat climate change and its impacts
|
15
|
Protect, restore and promote the sustainable use of terrestrial ecosystems, halt and reverse land degradation, and halt biodiversity loss
|
TIER 2: DESCRIPTION
|
|
1
|
End poverty in all its forms everywhere
|
2
|
End hunger, achieve food security and promote sustainable agriculture
|
4
|
Ensure inclusive and equitable quality education and promote lifelong learning opportunities
|
11
|
Make cities and human settlements inclusive, safe, resilient and sustainable
|
COLLABORATING FOR THE SDGs
|
|
17
|
Collaboration with various stakeholders
|
GOAL
|
WHAT HARMONY IS DOING
|
3 Good health and well being
|
The safety, health and well-being of employees is a priority. In many instances, this extends to our communities where many of our employees reside. More recently, combatting the Covid-19 pandemic in both countries in which we operate has taken precedence.
See Safety and health for more information
|
5 Gender equality
|
In recent years, gender equality has become an increasingly important aspect of our human resources policy. Gender diversity targets are in place and we are actively engaged in increasing the number of women employed across the company, at all levels.
See Employee relations and Corporate governance for more information
|
8 Decent work and economic growth
|
We provide employment for approximately 40 000 people. We aim to be a fair and responsible employer, to deliver on our business strategy and ensure our long-term viability, and to respect the rights of employees to associate freely. Training and development programmes empower employees to contribute to the company and society.
See Employee relations for more information
|
12 Responsible consumption and production
|
A key pillar of our business strategy is operational excellence. This includes optimising our processes, grade management and costs to improve productivity and efficiencies. This inherently involves the efficient use of natural resources, responsible waste management and sustainable procurement practices. In addition, it includes regular sustainable development reporting.
See Operational performance and Environmental management for more information
|
13 Climate action
|
Reducing our impact on climate change is vital. In South Africa, where much of the energy we consume is fossil fuel, long-term targets aim to reduce energy consumption, improve related efficiencies and reduce greenhouse gas emissions. In Papua New Guinea, a significant portion of energy used is renewable (hydro-power) energy.
See Environmental management and TCFD report 2020 for more information
|
15 Life on land
|
Our environmental strategy and related policies and procedures seek to mitigate the environmental impacts of our mining activities. In South Africa, a rigorous land rehabilitation programme is under way.
See Environmental management for more information
|
GOAL
|
WHAT HARMONY IS DOING
|
1 No poverty
|
Harmony employs around 40 000 people who in turn support their families, and the local businesses and municipalities in the communities in which they live. Many of our socio-economic initiatives are aimed at creating and supporting sustainable economic activities - see SDG 11 - and also help to combat poverty.
|
2 Zero hunger
|
We support broad-based agriculture and commercial agricultural ventures to establish alternative, sustainable economic activities that will endure once mining ceases and to contribute to food security. In South Africa, our focus is on the cultivation of grains and vegetables. In Papua New Guinea, the cocoa and coffee projects are progressing well.
|
4 Quality education
|
In South Africa, we focus on advancing mathematics, science and technology at secondary school level. In addition, at community level, we promote training in entrepreneurial and portable skills as well as information and communication technology among the youth.
|
11 Sustainable cities and communitites
|
Our recently revised socio-economic development strategy focuses on agricultural, infrastructure and sustainable energy projects, which have greater potential to deliver sustainable long-term benefits to communities. This strategy is supported by preferential and local procurement, and enterprise and supplier development. The overall aim is to help establish sustainable communities that are economically viable once mining has ceased. Infrastructure projects (such as roads in South Africa and water and sanitation in Papua New Guinea) help to boost the resilience of host communities.
|
For more information on Harmony’s contribution to these tier 2 SDGs, see Socio-economic development
|
17 Partnerships for the goals
|
Partnering to aid delivery on the SDGs entails strengthening the means of implementation and revitalising partnerships - with communities, local municipalities, small businesses and various levels of government - for sustainable development. This we strive to do at both local and regional levels.
|
Employees
|
Other stakeholders engaged include governmental and regulators
|
|
|
|
|
Strategic pillars:
|
Related risk:
|
Operational excellence
|
• Covid-19 pandemic – spread of infection and potential impact on business sustainability (risk 1)
|
Responsible stewardship
|
• Failure to eliminate fatalities and improve safety performance (risk 2)
|
•
|
Ensuring that leadership at all levels leads by example and creates an enabling environment for driving continuous improvement in safety performance
|
•
|
Ensuring that high-risk safety and health exposures are managed through focused strategies with risk management as the bedrock
|
•
|
Promoting the health of our employees by pro-actively supporting their physical, psychological and emotional well-being
|
•
|
Providing an integrated, proactive healthcare service by making primary, occupational and wellness facilities easily accessible to employees at work
|
•
|
Ensuring that Harmony manages community health exposures and promotes the well-being of our host communities
|
•
|
Upgrade of Syncromine to include risk management, which continued into FY20
|
•
|
Implementation of optical character recognition software, which enables the complete scanning of all documents to speedily identify certain risks and hazards. Before the introduction of this software, inspections
|
•
|
Implementation of risk management call centres at each operation. These are essentially a “one-stop-shop” for employees to collect and return all risk management-related checklists and forms, and a mechanism through which employees can direct risk management strategy and safety-related queries
|
•
|
Reinforcement of the right of all employees to refuse dangerous work and to leave a dangerous workplace. This is in accordance with the Mine Health and Safety Act, sections 22, 23 and 83. It is vital that our employees understand their rights, are engaged and feel safe to perform their duties, and that supervisors, in
|
•
|
Identification of the most serious unwanted events and assigning responsibility and ownership for these at an executive level. As these identified events have the potential to cause significant loss of life and shifts, they require far more focussed attention by all management levels
|
•
|
Reinforcement of our safety mascot, Thibakotsi, and associated safety messages, signs and symbols
|
•
|
Introduction of a daily work note to ensure that the frontline workforce is provided with the relevant information to proactively plan tasks at the start of each shift
|
•
|
A far more thorough scanning and analysis of daily safe declaration data as a means of assessing workplace conditions and raising awareness of risks and to address repetitive failures
|
Matrix of benefits
|
Description
|
Provision of coffin and funeral services (cat 4-8 only)
|
At no cost to the family
|
Transport of body (cat 4-8 only)
|
At no cost to the family
|
Mine delegation to funeral
|
At least 2 senior managers
|
Union delegation to funeral
|
8 union members, paid leave
|
Mourners in hearse
|
Maximum of 6
|
Co-workers transport
|
Up to 1 x 60-seater bus, paid leave
|
On mine memorial service
|
For all employees to attend
|
Mine Workers Provident Fund (MWPF) advance
|
R40 000
|
Rand Mutual Assurance (RMA) Funeral Policy
|
R30 000
|
Company donation - provided as soon as possible
|
R20 000
|
Accommodation of family on mine to attend to affairs of the deceased
|
For 6 family members
|
Enrolment of children in Harmony Education Fund as per policy
|
No limitation on number of children
|
Offer of employment
|
Immediate offer of employment at the underground entry level
|
Fatality- and injury-free shifts worked
|
|
More than 6 million shifts
|
Free State operations (rail-bound equipment): 16 million shifts
Target (rail-bound equipment): 9 million shifts
Tshepong (rail-bound equipment): 8 million shifts
Bambanani/Unisel (rail-bound equipment): 7.5 million shifts
South African operations (fall-of-ground): 7 million shifts
Moab Khotsong (fall-of-ground): 6.5 million shifts
Tshepong (rail-bound equipment): 6.5 million shifts
|
3 million - 6 million shifts
|
Doornkop (rail-bound equipment): 5.5 million shifts
Kusasalethu (rail-bound equipment): 5 million shifts
Unisel (fall-of-ground): 4.5 million shifts
Free State operations (fall-of-ground): 3.5 million shifts
Phakisa (rail-bound equipment): 3.5 million shifts
|
3 million shifts
|
South African underground operations: 3 million shifts
Masimong (rail-bound equipment): 3 million shifts
|
2 million shifts
|
Hidden Valley: 2.5 million shifts
Free State operations: 2 million shifts
Harmony One Plant: 2 million shifts
Kusasalethu (fall-of-ground): 2 million shifts
Moab Khotsong (rail-bound equipment): 2 million shifts
|
1 - 2 million shifts
|
Target: 1 million shifts
Tshepong operations: 1 million shifts
Tshepong operations (fall-of-ground): 1.5 million shifts
Joel (fall-of-ground): 1 million shifts
Masimong (fall-of-ground): 1.5 million shifts
Bambanani/Unisel unit (fall-of ground): 1 million shifts
Phakisa (fall-of-ground): 1 million shifts
|
Other significant safety performance
|
|
More than three years
|
Saaiplaas Plant: 13 years reportable injury free
South Uranium Plant: seven years lost-time injury free
Saaiplaas Plant: four years lost-time injury free
|
Three years
|
Central Plant: reportable injury free
|
One year
|
Central Plant: lost-time-injury free
Doornkop: fatality free
|
•
|
Digitising information to allow us to make informed decisions as and when circumstances that may compromise safety are identified
|
•
|
Accessing and including industry-wide best practice learning material and methodologies through the International Mining Standards Hub - in which Harmony participates as a founder member
|
•
|
Detailed analyses of our responses - on integrated platforms - to identify opportunities to improve and mitigate safety risks
|
•
|
map out critical production processes and align inter-disciplinary processes (process mapping) and documentation to provide assurance that our legal and social obligations are addressed. This will be achieved by embedding the identification of risks and controls into our risk and legal documentation. The aim is to have a single source of content related to task assessment (procedures, training, risk assessment, continuous monitoring and reporting)
|
•
|
integrate specified routines - ensuring an integrated approach in identifying potential risks during
|
•
|
the planning phase as well as in identifying mitigating controls and monitoring actions prior to the start of work. This will include the introduction of integrated services work planning and monitoring for phase 3
|
•
|
further engage all leadership, including organised labour, as partners to advance our behaviour-oriented strategy (phase 4). This will also involve developing and implementing a behaviour tracking and monitoring programme to allow leaders real time access to critical behaviour data from a safety improvement perspective
|
•
|
Education, awareness and promotion of good health
|
•
|
Disease prevention and risk management
|
•
|
Clinical intervention (treatment programmes)
|
•
|
Continuous risk profiling
|
•
|
Preventative personal hygiene procedures
|
•
|
The compulsory use of preventative personal protection equipment, particularly face masks, in the workplace and especially at the mine and shaft entrance, at crush turnstiles, in the lamp rooms, in shaft conveyances, underground station, and at our various offices
|
•
|
Increased hand washing and social distancing (minimising personal contact, refraining from all unnecessary travel and staying away from social gatherings where there would be more than 100 people) communication and awareness campaigns (for both employees and communities)
|
•
|
Identification, care and counselling of high-risk employees (especially those who have not tested and do not know their TB and HIV status, those on anti-retroviral medicine, those older than 60 and employees with pre-existing medical conditions)
|
•
|
Stressing the identification of symptoms and the urgency of self-isolation if displaying symptoms
|
•
|
Rigorous screening as employees return to work and when at work; and, if employees show Covid-19 symptoms, the testing and treatment of these employees for Covid-19
|
•
|
The establishment of three quarantine sites which can accommodate a total of 448 employees who have contracted Covid-19 or have come into contact with Covid-19-positive individuals, and who are not in need of hospitalisation
|
•
|
Isolating employees who test positive for the virus in one of four specially established and accredited isolation sites - one in Welkom (Free State) with 150 rooms, one in Gauteng with 50 rooms, and two facilities with 60 rooms each in the Klerksdorp area (southern North West Province)
|
•
|
Increased frequency in occupational health visits and inspections by the Department of Health and the Department of Mineral Resources and Energy to monitor Covid-19 compliance
|
•
|
Thermal screening of all individuals who enter our operations, and of employees at all key points
|
•
|
The reduction of the number of workers in a single crew to a maximum of 15 to assist with social distancing while underground
|
•
|
Each employee is given their own hand sanitizer for every shift before going underground
|
•
|
Customising lift shafts and their operation to ensure appropriate social distancing in the cages to reduce the capacity to 75%
|
•
|
Capacity on road transport reduced to 60-70% of licensed capacity
|
•
|
Frequent spraying of waiting areas with disinfectants and the sanitising of all hard surfaces such as handrails, turnstiles and door handles several times a day
|
•
|
Placement of hand sanitisers and additional hand washing stations on surface, at the entrances to all operations and outside the mine at taxi gathering areas and in company transportation
|
•
|
All equipment and machinery is sanitized at the start and end of each shift underground
|
•
|
Isolation, which is the separation of employees who are infected and have tested positive, accounted for 0.7% of labour unavailability
|
•
|
Quarantine, which is the separation of employees who might have been exposed, accounted for 0.6% of labour unavailability
|
•
|
Main tips - tip foggers (98.8%), tip covers (88.4%) and tip filters (92.7%)
|
•
|
Main intake haulages - airway sprays (100%), spray cars (94.9%) and footwall treatment (67.3%)
|
•
|
Stopes - winch covers (98.9%) and stope atomisers (85.8%)
|
•
|
Continuous real time monitors (92.7%)
|
•
|
Preventative personal hygiene measures - regular hand washing and social distancing - accompanied by focused employee communication campaign
|
•
|
Compulsory use of preventative personal protection equipment - face masks, gloves - in the workplace
|
•
|
Compiled longer, fatigue-friendly work rosters to reduce the possibility of on-site exposure
|
•
|
Regular temperature checks
|
•
|
Sanitisation and cleaning of high-risk areas including transport
|
•
|
Ongoing employee and community hygiene awareness campaigns
|
•
|
Restricted overseas travel
|
•
|
Removal from site of non-essential and high-risk personnel
|
•
|
Stage 1 - questionnaire
|
•
|
Stage 2 - rapid Covid-19 test
|
•
|
Stage 3 - full clinical polymerase chain reaction test
|
•
|
maintaining and upholding the principle of fairness and following our equity employment policy and practice through personalised development and training to empower individuals to contribute to the company and society in general
|
•
|
recognising and capitalising on the rich diversity of our people while continuously ensuring that local communities have preferential recruitment opportunities
|
•
|
aiming to return benefits through our employee shareholder schemes in South Africa
|
•
|
where Harmony is expanding its geographic footprint,
|
•
|
ensuring that we respect the customs, traditions and needs of the local people
|
•
|
ensuring freedom of association for all employees and recognising the value of organised labour to business improvement
|
|
GENDER EQUALITY
|
|
DECENT WORK AND ECONOMIC GROWTH
|
• In recent years, gender equality has become an increasingly important aspect of our human resources policy
• Gender diversity targets are in place and we are actively engaged in increasing the number of women employed across the company, at all levels. A particular focus is women in mining – in South Africa and increasingly in Papua New Guinea
|
• As a responsible employer, providing decent work includes ensuring that everything possible is done to safeguard employees, ensure that workplaces are safe and to prevent injury or harm so that employees return home, safe and well
• Employees have the right to refuse to work when they consider a workplace unsafe
• Training and other support are provided to encourage safe behaviour and conduct
|
Key human resource metrics - FY20
|
South Africa
|
Papua New Guinea
|
Employee characteristics
|
|
|
Total workforce
|
37 343
|
2 371
|
Historically disadvantaged persons* (South Africa) / local (Papua New Guinea)
|
|
|
- Total workforce (%)
|
71
|
96
|
- Senior management (%)
|
55
|
**14
|
Female employees (%)
|
15
|
14
|
Employee turnover (%)
|
6
|
11
|
Employee remuneration
|
|
|
Employee wages and benefits paid (Rm)
|
11 300
|
369
|
Ratio of minimum wage to average wage paid (%)
|
56
|
2.5
|
Training spend per employee (R)
|
12 910
|
16 708
|
* Includes women
** Harmony South-East Asia executive committee, excluding joint ventures and operations
|
|
|
Region
|
Permanent employees
|
Contractors
|
% of employees drawn from local communities
|
||||||
|
FY20
|
FY19
|
FY18
|
FY20
|
FY19
|
FY18
|
FY20
|
FY19
|
FY18
|
South Africa 1
|
31 502
|
31 201
|
32 520
|
5 841
|
6 159
|
5 951
|
76
|
79
|
75
|
Papua New Guinea 2
|
1 589
|
1 675
|
1 397
|
782
|
738
|
818
|
96
|
96
|
96
|
Harmony - total
|
33 091
|
32 876
|
33 917
|
6 623
|
6 897
|
6 769
|
|
|
|
1 Includes all South African underground and surface operations
2 Excludes employees of the Wafi-Golpu joint venture
|
|
Historically disadvantaged persons 1
|
Women
|
||||
Occupation category
|
Target (%)
|
Actual (%) FY19
|
Actual (%) FY20
|
Target (%)
|
Actual (%) FY19
|
Actual (%) FY20
|
Board
|
50
|
65
|
67
|
20
|
24
|
28
|
Executive management
|
50
|
58
|
50
|
20
|
32
|
25
|
Senior management
|
60
|
52
|
55
|
25
|
28
|
29
|
Middle management
|
60
|
52
|
53
|
25
|
23
|
23
|
Junior management
|
70
|
63
|
65
|
30
|
17
|
18
|
Core and critical skills
|
60
|
68
|
70
|
N/A
|
N/A
|
N/A
|
Persons with disabilities
|
1.5
|
0.4
|
0.4
|
N/A
|
N/A
|
N/A
|
Impact of Covid-19 in South Africa
The spread of the Covid-19 pandemic to South Africa in March 2020 had a significant impact on our business, not least from a labour profile perspective. Level 5 of the nationwide lockdown that was implemented on 26 March and endured until 16 April compelled the suspension of all mining and processing activities. Only emergency services, and care and maintenance staff were allowed to continue working. This meant that most of our employees had to return to their homes until we could resume operations.
In May 2020, as part of the phased reopening of the economy, the mining industry was permitted to operate at a reduced capacity of not more than 50%; and in June, the industry was permitted to resume operating at 100% capacity. However, the ramp-up was hampered by bottlenecks in the official permitting process that was required to allow our employees to travel inter-provincially to return to work. The ramp-up was further inhibited by the Covid-19 preventative measures, which required all our returning employees to be quarantined for 14 days before they could rejoin the workforce.
The greatest challenge brought about by the state of disaster and national lockdown, however, was the absence of our 5 000-strong foreign miner complement. The closure of South Africa’s borders meant that our foreign miners who had been compelled to return home when lockdown level 5 was imposed were unable to re-enter the country and return to work. Most of our foreign miners - the majority of whom are from Lesotho and Mozambique - are highly-skilled and their absence of these skills had a noticeable impact on our operations. At the time of writing, most of our foreign miner complement had returned safely to work.
Such has been the impact on our labour force that, during the last quarter the financial year, Doornkop, Joel, Kusasalethu, Masimong, Moab Khotsong, Tshepong and Unisel operated with less than 50% of their workforce complement. Moab Khotsong was the most impacted having just 40% of its workforce on site in the last quarter. More significantly, given the disruptions to our operations, particularly with our foreign employees prevented from returning to work, and our local employees having to isolate and quarantine before resuming their posts, all of our existing mining teams had to be broken up and 700 new mining crews were formed across all of our operations. Each of these new mining crews were assigned new supervisors and new working places, all while we made every effort to manage all safety hazards.
|
Impact of Covid-19 in Papua New Guinea
The impact of the Covid-19 global pandemic wrought considerable change to our working conditions and operating structure at Hidden Valley. The initial lockdown was for six weeks. The first case of Covid-19 in the country was an employee, who was tested within the country and then flown out. Immediate measures were taken to address the possible spread of the disease and the fear and anxiety caused. We began an employee education campaign and contract tracing, which returned negative test results, and management and the employees representative committee working closely together. The measures taken were successful in preventing the spread of the disease on site and protecting employees. See Safety and health for further information on the measures taken.
Operationally, to effectively manage the impacts of the pandemic, we amended the site rosters for Hidden Valley. Local employees were placed on a six week on, three weeks-off roster, while our international employees were moved to an eight weeks on, four weeks off roster. Both rosters were designed to include time for necessary screening and quarantining before arrival at the mine site (prior to the pandemic, most employees worked according to a 14-day roster with seven days on and seven days off).
This change was implemented with a high level of acceptance among employees. However, there is understanding that such long shifts will place strain on our employees, as a result of fatigue and longer periods away from home. We have put in place several initiatives to mitigate the inevitable fatigue and mental strain, including internal breaks during the week and the construction of a baseball field for some leisure activity on site.
|
Bursary programme
|
On completion of their studies, student bursars can apply for Harmony’s graduate development bursary programme. In all, 73 bursaries (FY19: 81) were awarded to students studying at tertiary institutions, with 14 of these being for core disciplines and the remainder for non-core discipline bursaries. Ten of the 73 bursaries were awarded to the Free State Top 100 achievers which exceeded our normal bursary allocations. The majority (97%) of the bursaries were awarded to students from host communities. Currently, online contact sessions are being conducted with bursar students to offer support and encouragement during these unprecedented times and they are completing online assessments instead of actual written examinations at the various institutions. Results will only be available in the next quarter to track the pass rate.
|
Mathematics, science and language enhancement project
|
In recognition of the need for learners to achieve excellent results in mathematics and physical science, and the important role teachers play, Harmony has pioneered various initiatives since 2010. In FY20, R2 million was allocated to the Welkom Department of Education District’s mathematics and science intervention programme. This is in addition to the current mathematics and science school projects, underway at Matlosana and Moqhaka, that Harmony supports. This is a three-year learner support programme aimed at accelerating the mathematics and science performance of grade 10, 11 and 12 learners in township and rural areas to enable them to qualify for careers in the spheres of professional science, technology, engineering and mathematics. These learners attend extra mathematics and science tuition on Fridays (after school), Saturdays, Sundays and public holidays and during the school holidays as well. A total of 80 (40 Matlosana and 40 Moqhaka) grade 12 learners are registered.
|
Graduate development programme
|
In order to ensure alignment of current talent development plans with future leadership needs, Harmony has committed to providing a graduate development programme for sponsored bursars studying in the fields of mining, surveying and geology. Six graduates, of whom four were women, participated in the programme in the 2019 calendar year.
|
Study assistance programme
|
In FY20, Harmony provided R1.7 million in study assistance to support 102 employees undertaking various courses, diplomas and degrees.
|
Social plan programme
|
We continue to provide alternative skills training to employees, current and retrenched, through our social plan programme, which was facilitated by the framework agreement between Harmony and NUM in 2003. This training enables people to remain economically active beyond mining, cushioning the economic impact of unavoidable retrenchments or the loss of employment when mines reach the end of their lives.
|
•
|
career path development
|
•
|
production
|
•
|
safety compliance
|
•
|
National Training Accreditation Council compliance
|
•
|
professional development
|
•
|
computer software
|
•
|
supervisor development
|
Engagement during the Covid-19 pandemic
It is a testament to the strength and maturity of the relationship we have built and maintained with our individual trade unions over the years that the employee relations environment remained stable in spite of the immense challenges resulting from the Covid-19 pandemic and associated national lockdown. Moreover, Harmony reaped the benefits of its honest and open trade union relationships during this period.
We established a central Covid-response team to manage our engagement with the unions during the national lockdown. Throughout the national lockdown, this team engaged with the unions and ensured they were actively involved in all the decision making that would significantly impact our employees. This included all aspects relating to the safe transportation, accommodation during isolation and quarantine, wage remuneration, and safe operating procedures on the mines.
|
Impact of Covid-19 pandemic on wages and salaries
The Covid-19 pandemic has had an unprecedented impact on our society and economy, both in South Africa and in Papua New Guinea. Along with every other business, Harmony faced the very difficult task of sustaining itself in a severely disrupted business environment, including the compulsory suspension of business operations, either partial or absolute, across all operations. In the face of these challenges, Harmony was resolute in maintaining transparency with our employees, particularly in terms of wage remuneration.
In South Africa, different pay arrangements were negotiated and agreed to by organised labour for the period between April and end June 2020. These arrangements included:
• Paying employees at home on special leave their full salaries for April on the basis that those who had not
been able to work as a result of the lockdown would work back 12 days and use six days of their annual leave
• Paying between 30% and 50% of basic pay to employees who were not required to work owing to the
lockdown restrictions in place during May and June
• That the 2020 Christmas break discussions be re-opened with a view to substantially shortening this break to
the duration of the Christmas long weekend
The payment of the living out allowance, pension/provident fund top up to 100% and the payment of employees’ medical aid premiums remained in place for the May and June salary months.
In addition to this, Harmony also made an application on behalf of all employees to the Unemployment Insurance Fund (UIF) for the Temporary Employees/Employers Relief Scheme (TERS) for the months of May through to August. To date the payment for May has been received. The applications submitted on behalf of our foreign national employees had not, at the time of writing, been processed and Harmony is in daily contact with the fund, either directly or via the Minerals Council.
|
Human rights
Respect for human rights is entrenched in and underpins our values. While we uphold the United Nations’ Global Compact’s principles on human rights and labour, human rights are specifically catered for in our human resource policies, charters and contracts of engagement. The human resources function and community engagement managers closely monitor our human rights performance at operational level.
|
OUTLOOK FY21
Our employee relations will continue to focus on managing the impact and fall-out of the Covid-19 epidemic and improving our gender diversity profile.
In South Africa:
• The next round of gold mining sector wage negotiations for the three-year period beginning July 2021 is due to
begin in October 2020
• Focus on meeting Mining Charter III targets on HDP and female representation
In Papua New Guinea:
We will continue to work towards improving gender diversity and working conditions for female employees. Our self-determined targets for FY21 are:
• Female representation of at least 17%
• At least 70% of employees to be based in Morobe Province
• More than 45% of lower management and superintendent level employees to be citizens of Papua New
Guinea
• More than 44% of tier 1 and 2 employees to come from local communities
|
•
|
The spread of the Covid-19 infection and its potential impact on our employees and business sustainability
|
•
|
Failure to eliminate loss of life incidents and improve safety performance
|
•
|
Depleting ore reserve base
|
•
|
Continue our journey of embedding a proactive safety culture
|
•
|
Ensure that we meet our operational plans and generate free cash flow
|
•
|
Integrate Mponeng and Mine Waste Solutions and create synergies in the West Wits region that will unlock value
|
•
|
Pursue organic brownfields growth strategy
|
•
|
Continue to drive down unit costs by improving our safety performance, delivering on our production plans, and increasing the productivity of our mining teams
|
1
|
Excludes Wafi-Golpu
|
2
|
At an exchange rate of R15.55/US$
|
3
|
At an underground recovered grade of ~5.47g/t to 5.53g/t
|
4
|
Includes deferred stripping
|
*
|
Guidance on Mponeng and Mine Waste Solutions will be shared in February 2021, once the assets have been integrated into our portfolio
|
|
|
FY20
|
FY19
|
FY18*
|
Number of employees
|
|
|
|
|
- Permanent
|
|
8 224
|
8 091
|
8 347
|
- Contractors
|
|
792
|
724
|
673
|
Total
|
|
9 016
|
8 815
|
9 020
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
1 417
|
1 612
|
1 716
|
|
(000t) (imperial)
|
1 562
|
1 777
|
1 893
|
Gold produced
|
(kg)
|
7 293
|
7 967
|
9 394
|
|
(oz)
|
234 475
|
256 146
|
302 026
|
Gold sold
|
(kg)
|
7 399
|
7 922
|
9 338
|
|
(oz)
|
237 882
|
254 698
|
300 223
|
Grade
|
(g/t)
|
5.15
|
4.94
|
5.47
|
|
(oz/t)
|
0.150
|
0.144
|
0.160
|
Productivity
|
(g/TEC)
|
73.24
|
84.62
|
93.93
|
Development results
|
|
|
|
|
- Total metres
|
|
17 551
|
23 259
|
23 089
|
- Reef metres
|
|
3 131
|
3 323
|
3 159
|
- Capital metres
|
|
140
|
809
|
588
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
5 452
|
4 685
|
5 389
|
|
(US$m)
|
348
|
330
|
419
|
Average gold price received
|
(R/kg)
|
736 863
|
591 331
|
577 058
|
|
(US$/oz)
|
1 463
|
1 297
|
1 397
|
Cash operating cost
|
(Rm)
|
4 252
|
4 008
|
3 829
|
|
(US$m)
|
271
|
283
|
298
|
Production profit
|
(Rm)
|
1 154
|
712
|
1 590
|
|
(US$m)
|
74
|
50
|
123
|
Capital expenditure
|
(Rm)
|
930
|
1 130
|
1 008
|
|
(US$m)
|
59
|
80
|
78
|
Operating free cash flow 1
|
(Rm)
|
270
|
(453)
|
552
|
|
(US$m)
|
17
|
(32)
|
43
|
Cash operating cost
|
(R/kg)
|
583 018
|
503 033
|
407 575
|
|
(US$/oz)
|
1 158
|
1 103
|
987
|
All-in sustaining cost
|
(R/kg)
|
713 202
|
636 281
|
514 537
|
|
(US$/oz)
|
1 416
|
1 396
|
1 245
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
2
|
4
|
2
|
Lost-time injury frequency rate
|
per million hours worked
|
5.05
|
7.75
|
7.80
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
549
|
466
|
454
|
Water consumption - primary activities
|
(ML)
|
2 813
|
2 778
|
2 701
|
Greenhouse gas emissions
|
(000t CO2e)
|
581
|
535
|
441
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.39
|
0.29
|
0.26
|
- water
|
|
1.98
|
1.72
|
1.57
|
- greenhouse gas emissions
|
|
0.41
|
0.33
|
0.26
|
Number of reportable environmental incidents
|
|
0
|
0
|
0
|
Community
|
|
|
|
|
Local economic development 2
|
(Rm)
|
32
|
18
|
9
|
Training and development
|
(Rm)
|
94
|
86
|
92
|
*
|
From FY18, the Tshepong and Phakisa mines were integrated and reported on as a single entity, Tshepong operations
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
2
|
Figures include R25 million spent on the local economic development projects
|
Other salient features
|
|
Status of operation
|
Steady state operation: development continues
|
Life of mine
|
20 years
|
Nameplate hoisting capacity (per month)
|
283 000 tonnes (312 000 tons)
|
Compliance and certification
|
● New order mining right - December 2007
● ISO 14001
● ISO 9001
|
|
|
FY20
|
FY19
|
FY18*
|
Number of employees
|
|
|
|
|
- Permanent
|
|
5 343
|
5 421
|
5 804
|
- Contractors
|
|
1 086
|
1 036
|
1 014
|
Total
|
|
6 551
|
6 457
|
6 818
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
746
|
970
|
327
|
|
(000t) (imperial)
|
822
|
1 069
|
360
|
Gold produced
|
(kg)
|
6 592
|
7 928
|
3 296
|
|
(oz)
|
211 938
|
254 891
|
105 969
|
Gold sold
|
(kg)
|
6 799
|
7 794
|
3 165
|
|
(oz)
|
218 592
|
250 583
|
101 757
|
Grade
|
(g/t)
|
8.84
|
8.17
|
10.08
|
|
(oz/t)
|
0.258
|
0.238
|
0.294
|
Productivity
|
(g/TEC)
|
102.76
|
120.67
|
135.17
|
Development results
|
|
|
|
|
- Total metres
|
|
8 815
|
10 472
|
9 527
|
- Reef metres
|
|
1 173
|
1 202
|
1 328
|
- Capital metres
|
|
1 363
|
1 432
|
380
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
5 008
|
4 470
|
1 672
|
|
(US$m)
|
320
|
315
|
130
|
Average gold price received
|
(R/kg)
|
736 533
|
573 522
|
528 387
|
|
(US$/oz)
|
1 463
|
1 258
|
1 279
|
Cash operating cost
|
(Rm)
|
3 283
|
3 167
|
1 037
|
|
(US$m)
|
210
|
223
|
81
|
Production profit
|
(Rm)
|
1 664
|
1 369
|
720
|
|
(US$m)
|
106
|
96
|
56
|
Capital expenditure
|
(Rm)
|
498
|
559
|
173
|
|
(US$m)
|
32
|
39
|
13
|
Operating free cash flow 1
|
(Rm)
|
1 228
|
745
|
462
|
|
(US$m)
|
78
|
53
|
36
|
Cash operating cost
|
(R/kg)
|
497 953
|
399 414
|
314 526
|
|
(US$/oz)
|
989
|
876
|
761
|
All-in sustaining cost
|
(R/kg)
|
566 942
|
477 581
|
420 286
|
|
(US$/oz)
|
1 126
|
1 048
|
1 017
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
1
|
1
|
1
|
Lost-time injury frequency rate
|
per million hours worked
|
7.95
|
9.75
|
11.18
|
Environment 2
|
|
|
|
|
Electricity consumption
|
(GWh)
|
738
|
766
|
114
|
Water consumption - primary activities
|
(ML)
|
5 975
|
6 898
|
1 702
|
Greenhouse gas emissions
|
(000t CO2e)
|
784
|
700
|
110
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.99
|
0.79
|
0.35
|
- water
|
|
8.01
|
7.11
|
5.20
|
- greenhouse gas emissions
|
|
0.81
|
0.72
|
0.35
|
Number of reportable environmental incidents
|
|
0
|
0
|
0
|
Community
|
|
|
|
|
Local economic development 3
|
(Rm)
|
22
|
19
|
7
|
Training and development
|
(Rm)
|
56
|
48
|
13
|
*
|
Incorporated into Harmony’s portfolio from 1 March 2018. The figures reported for FY18 are for the four months from March 2018 to June 2018
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
2
|
Note: figures include Nufcor
|
3.
|
Figures include R5 million spent on the local economic development projects
|
Other salient features
|
|
Status of operation
|
Steady state operation: development continues
|
Life of mine
|
8 years
|
Nameplate hoisting capacity (per month)
|
160 000 tonnes (176 000 tons)
|
Compliance and certification
|
● New order mining right
● ISO 14001
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
1 561
|
1 513
|
1 568
|
- Contractors
|
|
129
|
157
|
163
|
Total
|
|
1 690
|
1 661
|
1 731
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
200
|
230
|
233
|
|
(000t) (imperial)
|
221
|
254
|
257
|
Gold produced
|
(kg)
|
2 132
|
2 515
|
2 821
|
|
(oz)
|
68 545
|
80 860
|
90 698
|
Gold sold
|
(kg)
|
2 162
|
2 495
|
2 804
|
|
(oz)
|
69 510
|
80 216
|
90 151
|
Grade
|
(g/t)
|
10.66
|
10.93
|
12.11
|
|
(oz/t)
|
0.310
|
0.318
|
0.353
|
Productivity
|
(g/TEC)
|
112.43
|
135.22
|
150.60
|
Development results
|
|
|
|
|
- Total metres
|
|
1 184
|
1 173
|
1 495
|
- Reef metres
|
|
0
|
0
|
0
|
- Capital metres
|
|
0
|
0
|
0
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
1 591
|
1 477
|
1 616
|
|
(US$m)
|
102
|
104
|
126
|
Average gold price received
|
(R/kg)
|
735 972
|
591 962
|
576 398
|
|
(US$/oz)
|
1 461
|
1 299
|
1 395
|
Cash operating cost
|
(Rm)
|
1 025
|
985
|
905
|
|
(US$m)
|
65
|
69
|
70
|
Production profit
|
(Rm)
|
551
|
483
|
720
|
|
(US$m)
|
36
|
34
|
56
|
Capital expenditure
|
(Rm)
|
50
|
61
|
64
|
|
(US$m)
|
3
|
4
|
5
|
Operating free cash flow 1
|
(Rm)
|
517
|
431
|
647
|
|
(US$m)
|
33
|
30
|
51
|
Cash operating cost
|
(R/kg)
|
480 620
|
391 550
|
320 724
|
|
(US$/oz)
|
954
|
859
|
776
|
All-in sustaining cost
|
(R/kg)
|
522 990
|
441 226
|
360 462
|
|
(US$/oz)
|
1 039
|
968
|
873
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
1
|
1
|
Lost-time injury frequency rate
|
per million hours worked
|
2.71
|
2.65
|
2.43
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
132
|
146
|
145
|
Water consumption - primary activities
|
(ML)
|
1 120
|
1 470
|
1 527
|
Greenhouse gas emissions
|
(000t CO2e)
|
140
|
133
|
141
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.66
|
0.63
|
0.62
|
- water
|
|
5.6
|
6.39
|
6.60
|
- greenhouse gas emissions
|
|
0.70
|
0.57
|
0.62
|
Number of reportable environmental incidents
|
|
1
|
0
|
0
|
Community
|
|
|
|
|
Local economic development 2
|
(Rm)
|
8
|
4
|
11
|
Training and development
|
(Rm)
|
23
|
26
|
25
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
2.
|
Figures include R5 million spent on the local economic development projects
|
Other salient features
|
|
Status of operation
|
Mature operation with focus on mining of the shaft pillar for the next few
|
Life of mine
|
3 years
|
Nameplate hoisting capacity (per month)
|
32 000 tonnes (35 000 tons)
|
Compliance and certification
|
● New order mining right - December 2007
● ISO 14001 - not certified but operates according to standards requirements
● ISO 9001
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
3 249
|
3 133
|
3 073
|
- Contractors
|
|
585
|
751
|
669
|
Total
|
|
3 924
|
3 884
|
3 742
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
681
|
730
|
696
|
|
(000t) (imperial)
|
750
|
805
|
767
|
Gold produced
|
(kg)
|
2 994
|
3 273
|
3 429
|
|
(oz)
|
96 259
|
105 229
|
110 245
|
Gold sold
|
(kg)
|
3 038
|
3 255
|
3 404
|
|
(oz)
|
97 673
|
104 650
|
109 440
|
Grade
|
(g/t)
|
4.40
|
4.48
|
4.93
|
|
(oz/t)
|
0.128
|
0.131
|
0.144
|
Productivity
|
(g/TEC)
|
74.83
|
85.07
|
94.97
|
Development results
|
|
|
|
|
- Total metres
|
|
6 042
|
8 834
|
9 595
|
- Reef metres
|
|
1 474
|
1 621
|
1 478
|
- Capital metres
|
|
315
|
497
|
806
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
2 270
|
1 931
|
1 958
|
|
(US$m)
|
145
|
136
|
152
|
Average gold price received
|
(R/kg)
|
747 282
|
593 301
|
575 077
|
|
(US$/oz)
|
1 484
|
1 302
|
1 392
|
Cash operating cost
|
(Rm)
|
1 699
|
1 593
|
1 418
|
|
(US$m)
|
109
|
112
|
110
|
Production profit
|
(Rm)
|
540
|
367
|
547
|
|
(US$m)
|
35
|
26
|
43
|
Capital expenditure
|
(Rm)
|
281
|
308
|
274
|
|
(US$m)
|
18
|
22
|
21
|
Operating free cash flow 1
|
(Rm)
|
290
|
30
|
266
|
|
(US$m)
|
19
|
2
|
21
|
Cash operating cost
|
(R/kg)
|
567 632
|
486 795
|
413 586
|
|
(US$/oz)
|
1 127
|
1 068
|
1 001
|
All-in sustaining cost
|
(R/kg)
|
649 041
|
572 132
|
508 065
|
|
(US$/oz)
|
1 289
|
1 255
|
1 230
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
1
|
2
|
0
|
Lost-time injury frequency rate
|
per million hours worked
|
6.10
|
5.22
|
6.78
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
204
|
212
|
193
|
Water consumption - primary activities
|
(ML)
|
2 665
|
266
|
344
|
Greenhouse gas emissions
|
(000t CO2e)
|
217
|
193
|
199
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.3
|
0.29
|
0.28
|
- water
|
|
0.98
|
0.36
|
0.49
|
- greenhouse gas emissions
|
|
0.32
|
0.26
|
0.27
|
Number of reportable environmental incidents
|
|
0
|
0
|
0
|
Community
|
|
|
|
|
Local economic development 3
|
(Rm)
|
9
|
8
|
6
|
Training and development
|
(Rm)
|
41
|
46
|
47
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
2
|
Year on year decrease due to the installation of the 5ML recycling plant
|
3.
|
Figures include R3 million spent on the local economic development projects
|
Other salient features
|
|
Status of operation
|
Mining takes place on the South Reef at this single-shaft operation
|
Life of mine
|
16 years
|
Nameplate hoisting capacity (per month)
|
103 000 tonnes (113 000 tons)
|
|
Proved
|
Probable
|
Total
|
||||||
Reserves (metric)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
|
5.2
|
5.33
|
28
|
4.6
|
5.03
|
23
|
9.8
|
5.19
|
51
|
Reserves (imperial)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
|
5.8
|
0.155
|
896
|
5.1
|
0.147
|
742
|
10.8
|
0.151
|
1 638
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
1 883
|
1 867
|
1 914
|
- Contractors
|
|
131
|
115
|
184
|
Total
|
|
2 014
|
1 982
|
2 098
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
349
|
429
|
454
|
|
(000t) (imperial)
|
384
|
473
|
501
|
Gold produced
|
(kg)
|
1 391
|
1 567
|
1 635
|
|
(oz)
|
44 722
|
50 379
|
52 566
|
Gold sold
|
(kg)
|
1 412
|
1 612
|
1 656
|
|
(oz)
|
45 397
|
51 827
|
53 242
|
Grade
|
(g/t)
|
3.99
|
3.65
|
3.60
|
|
(oz/t)
|
0.116
|
0.107
|
0.105
|
Productivity
|
(g/TEC)
|
64.01
|
78.10
|
82.23
|
Development results
|
|
|
|
|
- Total metres
|
|
2 734
|
3 378
|
3 331
|
- Reef metres
|
|
832
|
1 288
|
431
|
- Capital metres
|
|
0
|
0
|
620
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
1 037
|
957
|
954
|
|
(US$m)
|
66
|
67
|
74
|
Average gold price received
|
(R/kg)
|
734 620
|
593 531
|
576 023
|
|
(US$/oz)
|
1 459
|
1 302
|
1 394
|
Cash operating cost
|
(Rm)
|
999
|
967
|
910
|
|
(US$m)
|
64
|
68
|
71
|
Production profit
|
(Rm)
|
27
|
(14)
|
34
|
|
(US$m)
|
2
|
(2)
|
3
|
Capital expenditure
|
(Rm)
|
151
|
187
|
250
|
|
(US$m)
|
10
|
13
|
19
|
Operating free cash flow 1
|
(Rm)
|
(113)
|
(197)
|
(206)
|
|
(US$m)
|
(8)
|
(14)
|
(16)
|
Cash operating cost
|
(R/kg)
|
718 024
|
617 116
|
556 468
|
|
(US$/oz)
|
1 426
|
1 354
|
1 347
|
All-in sustaining cost
|
(R/kg)
|
826 970
|
701 644
|
661 921
|
|
(US$/oz)
|
1 642
|
1 539
|
1 602
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
2
|
Lost-time injury frequency rate
|
per million hours worked
|
2.03
|
3.16
|
2.87
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
85
|
87
|
81
|
Water consumption - primary activities
|
(ML)
|
853
|
838
|
788
|
Greenhouse gas emissions
|
(000t CO2e)
|
90
|
80
|
79
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.24
|
0.20
|
0.18
|
- water
|
|
2.44
|
1.95
|
1.74
|
- greenhouse gas emissions
|
|
0.26
|
0.19
|
0.18
|
Number of reportable environmental incidents
|
|
0
|
0
|
0
|
Community
|
|
|
|
|
Local economic development 2
|
(Rm)
|
6
|
4
|
5
|
Training and development
|
(Rm)
|
18
|
19
|
23
|
Other salient features
|
|
Status of operation
|
Twin-shaft operation - technically challenging, decline project nearing completion
|
Life of mine
|
10 years
|
Nameplate hoisting capacity (per month)
|
60 000 tonnes (83 000 tons)
|
Compliance and certification
|
● New order mining right - December 2007
● ISO 14001 - not certified but operates according to the standard’s requirements
● ISO 9001
● SAS 18001
|
•
|
Installation and commission of Bulkhead 2 & 5, 137 level tip 2 & 5 and escape way
|
•
|
Installation of the 129 - 137 level chairlift
|
•
|
Decline steel barricade
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
1 682
|
1 604
|
1 663
|
- Contractors
|
|
380
|
335
|
284
|
Total
|
|
2 062
|
1 939
|
1 947
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
543
|
588
|
680
|
|
(000t) (imperial)
|
598
|
650
|
749
|
Gold produced
|
(kg)
|
2 244
|
2 653
|
2 854
|
|
(oz)
|
72 146
|
85 296
|
91 758
|
Gold sold
|
(kg)
|
2 237
|
2 685
|
2 828
|
|
(oz)
|
71 921
|
86 324
|
90 922
|
Grade
|
(g/t)
|
4.13
|
4.51
|
4.20
|
|
(oz/t)
|
0.121
|
0.131
|
0.123
|
Productivity
|
(g/TEC)
|
108.58
|
132.94
|
146.90
|
Development results
|
|
|
|
|
- Total metres
|
|
2 152
|
3 378
|
3 883
|
- Reef metres
|
|
96
|
118
|
431
|
- Capital metres
|
|
191
|
179
|
620
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
1 524
|
1 585
|
1 630
|
|
(US$m)
|
97
|
112
|
127
|
Average gold price received
|
(R/kg)
|
681 388
|
590 298
|
576 316
|
|
(US$/oz)
|
1 353
|
1 295
|
1 395
|
Cash operating cost
|
(Rm)
|
1 505
|
1 478
|
1 334
|
|
(US$m)
|
96
|
104
|
104
|
Production profit
|
(Rm)
|
25
|
94
|
312
|
|
(US$m)
|
1
|
7
|
24
|
Capital expenditure
|
(Rm)
|
347
|
297
|
309
|
|
(US$m)
|
22
|
21
|
24
|
Operating free cash flow 1
|
(Rm)
|
(327)
|
(190)
|
(13)
|
|
(US$m)
|
(21)
|
(13)
|
(1)
|
Cash operating cost
|
(R/kg)
|
670 647
|
557 264
|
467 271
|
|
(US$/oz)
|
1 332
|
1 222
|
1 131
|
All-in sustaining cost
|
(R/kg)
|
817 066
|
662 816
|
582 200
|
|
(US$/oz)
|
1 623
|
1 454
|
1 409
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
1
|
Lost-time injury frequency rate
|
per million hours worked
|
9.62
|
6.35
|
10.18
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
212
|
173
|
187
|
Water consumption - primary activities
|
(ML)
|
471
|
474
|
553
|
Greenhouse gas emissions
|
(000t CO2e)
|
229
|
162
|
189
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.39
|
0.29
|
0.23
|
- water
|
|
0.87
|
0.81
|
0.81
|
- greenhouse gas emissions
|
|
0.42
|
0.28
|
0.27
|
Number of reportable environmental incidents
|
|
0
|
0
|
0
|
Community
|
|
|
|
|
Local economic development 2
|
(Rm)
|
8
|
6
|
4
|
Training and development
|
(Rm)
|
38
|
45
|
41
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
2
|
Figures include R6 million spent on the local economic development projects
|
Other salient features
|
|
Status of operation
|
Crusher and related infrastructure project well underway
|
Life of mine
|
7 years
|
Nameplate hoisting capacity (per month)
|
97 000 tonnes (107 000 tons)
|
|
Proved
|
Probable
|
Total
|
||||||
Reserves (metric)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
|
3.3
|
4.31
|
14
|
1.9
|
4.23
|
8
|
5.1
|
4.28
|
22
|
Reserves (imperial)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
|
3.6
|
0.126
|
452
|
2.1
|
0.123
|
255
|
5.7
|
0.125
|
707
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
4 237
|
4 011
|
3 980
|
- Contractors
|
|
603
|
930
|
692
|
Total
|
|
4 840
|
4 941
|
4 672
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
615
|
742
|
670
|
|
(000t) (imperial)
|
678
|
817
|
738
|
Gold produced
|
(kg)
|
3 015
|
4 989
|
4 429
|
|
(oz)
|
96 934
|
160 400
|
142 395
|
Gold sold
|
(kg)
|
3 085
|
5 028
|
4 301
|
|
(oz)
|
99 185
|
161 653
|
138 281
|
Grade
|
(g/t)
|
4.90
|
6.72
|
6.61
|
|
(oz/t)
|
0.143
|
0.196
|
0.193
|
Productivity
|
(g/TEC)
|
57.08
|
98.94
|
91.54
|
Development results
|
|
|
|
|
- Total metres
|
|
3 039
|
5 437
|
4 016
|
- Reef metres
|
|
1 019
|
1 217
|
776
|
- Capital metres
|
|
0
|
0
|
0
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
2 293
|
2 975
|
2 483
|
|
(US$m)
|
146
|
210
|
193
|
Average gold price received
|
(R/kg)
|
743 153
|
591 742
|
577 313
|
|
(US$/oz)
|
1 476
|
1 298
|
1 397
|
Cash operating cost
|
(Rm)
|
2 562
|
2 377
|
2 091
|
|
(US$m)
|
164
|
168
|
163
|
Production profit
|
(Rm)
|
(284)
|
580
|
457
|
|
(US$m)
|
(19)
|
41
|
35
|
Capital expenditure
|
(Rm)
|
188
|
316
|
289
|
|
(US$m)
|
12
|
22
|
22
|
Operating free cash flow 1
|
(Rm)
|
(458)
|
282
|
103
|
|
(US$m)
|
(29)
|
20
|
8
|
Cash operating cost
|
(R/kg)
|
849 782
|
476 417
|
472 177
|
|
(US$/oz)
|
1 687
|
1 045
|
1 143
|
All-in sustaining cost
|
(R/kg)
|
923 054
|
556 621
|
554 302
|
|
(US$/oz)
|
1 833
|
1 221
|
1 342
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
2
|
3
|
5
|
Lost-time injury frequency rate
|
per million hours worked
|
10.72
|
9.05
|
6.25
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
599
|
624
|
595
|
Water consumption - primary activities
|
(ML)
|
2 720
|
3 205
|
2 609
|
Greenhouse gas emissions
|
(000t CO2e)
|
635
|
569
|
577
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.97
|
0.84
|
0.90
|
- water
|
|
4.42
|
4.32
|
3.89
|
- greenhouse gas emissions
|
|
1.03
|
0.77
|
0.3
|
Number of reportable environmental incidents
|
|
0
|
0
|
2
|
Community
|
|
|
|
|
Local economic development 2
|
(Rm)
|
9
|
9
|
6
|
Training and development
|
(Rm)
|
38
|
52
|
33
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
2
|
Figures include R6 million spent on the local economic development projects
|
Other salient features
|
|
Status of operation
|
Mature, steady state operation positioned for profitability
|
Life of mine
|
4 years
|
Nameplate hoisting capacity (per month)
|
172 000 tonnes (190 000 tons)
|
Compliance and certification
|
● New order mining right - December 2007
● ISO 14001
● ISO 9001
● Cyanide Code
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
2 083
|
2 247
|
2 432
|
- Contractors
|
|
135
|
120
|
108
|
Total
|
|
2 218
|
2 367
|
2 540
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
489
|
602
|
647
|
|
(000t) (imperial)
|
539
|
664
|
714
|
Gold produced
|
(kg)
|
1 999
|
2 309
|
2 623
|
|
(oz)
|
64 269
|
74 237
|
84 332
|
Gold sold
|
(kg)
|
2 027
|
2 291
|
2 609
|
|
(oz)
|
65 169
|
73 657
|
83 882
|
Grade
|
(g/t)
|
4.09
|
3.84
|
4.05
|
|
(oz/t)
|
0.119
|
0.112
|
0.118
|
Productivity
|
(g/TEC)
|
79.22
|
82.48
|
92.82
|
Development results
|
|
|
|
|
- Total metres
|
|
2 246
|
3 167
|
5 287
|
- Reef metres
|
|
759
|
765
|
2 067
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
1 401
|
1 359
|
1 505
|
|
(US$m)
|
89
|
96
|
117
|
Average gold price received
|
(R/kg)
|
691 282
|
593 003
|
576 729
|
|
(US$/oz)
|
1 373
|
1 301
|
1 396
|
Cash operating cost
|
(Rm)
|
1 241
|
1 214
|
1 161
|
|
(US$m)
|
79
|
86
|
90
|
Production profit
|
(Rm)
|
143
|
154
|
351
|
|
(US$m)
|
9
|
11
|
27
|
Capital expenditure
|
(Rm)
|
24
|
109
|
129
|
|
(US$m)
|
2
|
8
|
10
|
Operating free cash flow 1
|
(Rm)
|
136
|
36
|
215
|
|
(US$m)
|
8
|
2
|
17
|
Cash operating cost
|
(R/kg)
|
620 804
|
525 703
|
442 586
|
|
(US$/oz)
|
1 233
|
1 153
|
1 071
|
All-in sustaining cost
|
(R/kg)
|
655 888
|
593 408
|
513 197
|
|
(US$/oz)
|
1 302
|
1 302
|
1 242
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
1
|
Lost-time injury frequency rate
|
per million hours worked
|
7.51
|
5.88
|
8.61
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
138
|
161
|
173
|
Water consumption - primary activities
|
(ML)
|
510
|
721
|
824
|
Greenhouse gas emissions
|
(000t CO2e)
|
146
|
147
|
167
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.28
|
0.27
|
0.27
|
- water
|
|
1.04
|
1.20
|
1.27
|
- greenhouse gas emissions
|
|
0.3
|
0.24
|
0.27
|
Number of reportable environmental incidents
|
|
0
|
0
|
2
|
Community
|
|
|
|
|
Local economic development 2
|
(Rm)
|
11
|
6
|
6
|
Training and development
|
(Rm)
|
23
|
26
|
27
|
Other salient features
|
|
Status of operation
|
Mature, single shaft operation nearing the end of its life of mine
|
Life of mine
|
1.5 years
|
Nameplate hoisting capacity (per month)
|
112 000 tonnes (124 000 tons)
|
Compliance and certification
|
● New order mining right - December 2007
● ISO 14001
● ISO 9001
● OHSAS 18001
|
|
Proved
|
Probable
|
Total
|
|||||||||||||||
Reserves (metric)
|
Tonnes
(Mt)
|
|
Grade
(g/t)
|
|
Gold
(000kg)
|
|
Tonnes
(Mt)
|
|
Grade
(g/t)
|
|
Gold
(000kg)
|
|
Tonnes
(Mt)
|
|
Grade
(g/t)
|
|
Gold
(000kg)
|
|
|
0.8
|
|
4.26
|
|
3
|
|
0.02
|
|
2.95
|
|
0.1
|
|
0.8
|
|
4.23
|
|
3
|
|
Reserves (imperial)
|
Tons
(Mt)
|
|
Grade
(oz/t)
|
|
Gold
(000oz)
|
|
Tons
(Mt)
|
|
Grade
(oz/t)
|
|
Gold
(000oz)
|
|
Tons
(Mt)
|
|
Grade
(oz/t)
|
|
Gold
(000oz)
|
|
|
0.9
|
|
0.124
|
|
108
|
|
0.03
|
|
0.086
|
|
2
|
|
0.9
|
|
0.123
|
|
110
|
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
750
|
880
|
1 016
|
- Contractors
|
|
77
|
52
|
80
|
Total
|
|
827
|
932
|
1 096
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
219
|
256
|
376
|
|
(000t) (imperial)
|
242
|
283
|
415
|
Gold produced
|
(kg)
|
982
|
1 212
|
1 280
|
|
(oz)
|
31 573
|
38 966
|
41 152
|
Gold sold
|
(kg)
|
994
|
1 207
|
1 272
|
|
(oz)
|
31 958
|
38 807
|
40 896
|
Grade
|
(g/t)
|
4.48
|
4.73
|
3.40
|
|
(oz/t)
|
0.130
|
0.138
|
0.099
|
Productivity
|
(g/TEC)
|
98.59
|
110.50
|
70.04
|
Development results
|
|
|
|
|
- Total metres
|
|
1 048
|
2 035
|
2 921
|
- Reef metres
|
|
299
|
1 177
|
1 325
|
- Capital metres
|
|
0
|
0
|
1 028
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
681
|
713
|
733
|
|
(US$m)
|
43
|
50
|
57
|
Average gold price received
|
(R/kg)
|
684 727
|
590 468
|
576 222
|
|
(US$/oz)
|
1 360
|
1 295
|
1 395
|
Cash operating cost
|
(Rm)
|
573
|
569
|
774
|
|
(US$m)
|
37
|
40
|
60
|
Production profit
|
(Rm)
|
101
|
149
|
(38)
|
|
(US$m)
|
6
|
10
|
(3)
|
Capital expenditure
|
(Rm)
|
7
|
45
|
85
|
|
(US$m)
|
0
|
3
|
7
|
Operating free cash flow 1
|
(Rm)
|
100
|
99
|
(126)
|
|
(US$m)
|
6
|
7
|
(10)
|
Cash operating cost
|
(R/kg)
|
583 274
|
469 108
|
604 311
|
|
(US$/oz)
|
1 158
|
1 029
|
1 463
|
All-in sustaining cost
|
(R/kg)
|
613 382
|
523 823
|
678 436
|
|
(US$/oz)
|
1 218
|
1 149
|
1 642
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
0
|
Lost-time injury frequency rate
|
per million hours worked
|
1.66
|
4.02
|
10.86
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
51
|
62
|
99
|
Water consumption - primary activities
|
(ML)
|
414
|
367
|
488
|
Greenhouse gas emissions
|
(000t CO2e)
|
54
|
57
|
96
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.23
|
0.03
|
0.26
|
- water
|
|
1.89
|
0.36
|
1.30
|
- greenhouse gas emissions
|
|
0.25
|
0.04
|
0.26
|
Number of reportable environmental incidents
|
|
0
|
1
|
0
|
Community
|
|
|
|
|
Local economic development 2
|
(Rm)
|
4
|
3
|
5
|
Training and development
|
(Rm)
|
8
|
11
|
19
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
2
|
Figures include R10 million spent on the local economic development
|
Other salient features
|
|
Status of operation
|
Mature operation reaching the end of its life of mine. Mining focused on higher grade areas of shaft pillar
|
Life of mine
|
3 months
|
Nameplate hoisting capacity (per month)
|
63 000 tonnes (69 000 tons)
|
Compliance and certification
|
● New order mining right - December 2007
● ISO 9001
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
253
|
238
|
237
|
- Contractors
|
|
361
|
346
|
334
|
Total
|
|
614
|
584
|
571
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
1 541
|
1 619
|
1 550
|
|
(000t) (imperial)
|
1 700
|
1 785
|
1 709
|
Gold produced
|
(kg)
|
1 153
|
1 249
|
1 250
|
|
(oz)
|
37 070
|
40 156
|
40 189
|
Gold sold
|
(kg)
|
1 151
|
1 263
|
1 231
|
|
(oz)
|
37 006
|
40 605
|
39 577
|
Grade
|
(g/t)
|
0.75
|
0.77
|
0.81
|
|
(oz/t)
|
0.022
|
0.022
|
0.024
|
Productivity
|
(g/TEC)
|
128.80
|
150.85
|
147.96
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
855
|
750
|
710
|
|
(US$m)
|
55
|
53
|
55
|
Average gold price received
|
(R/kg)
|
742 533
|
593 482
|
576 630
|
|
(US$/oz)
|
1 474
|
1 302
|
1 396
|
Cash operating cost
|
(Rm)
|
674
|
695
|
565
|
|
(US$m)
|
43
|
49
|
44
|
Production profit
|
(Rm)
|
183
|
50
|
157
|
|
(US$m)
|
12
|
3
|
12
|
Capital expenditure
|
(Rm)
|
99
|
61
|
108
|
|
(US$m)
|
6
|
4
|
8
|
Operating free cash flow 1
|
(Rm)
|
84
|
(4)
|
34
|
|
(US$m)
|
6
|
0
|
3
|
Cash operating cost
|
(R/kg)
|
584 218
|
556 283
|
452 365
|
|
(US$/oz)
|
1 160
|
1 220
|
1 095
|
All-in sustaining cost
|
(R/kg)
|
690 239
|
624 147
|
552 032
|
|
(US$/oz)
|
1 371
|
1 369
|
1 336
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
0
|
Lost-time injury frequency rate
|
per million hours worked
|
1.65
|
0.88
|
0
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
54
|
54
|
53
|
Water consumption - primary activities
|
(ML)
|
307
|
583
|
324
|
Greenhouse gas emissions
|
(000t CO2e)
|
72
|
66
|
51
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.04
|
0.03
|
0.03
|
- water
|
|
0.2
|
0.36
|
0.21
|
- greenhouse gas emissions
|
|
0.05
|
0.04
|
0.03
|
Number of reportable environmental incidents
|
|
0
|
1
|
0
|
Community
|
|
|
|
|
Local economic development 2
|
(Rm)
|
8
|
9
|
3
|
Training and development
|
(Rm)
|
9
|
5
|
6
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
2
|
Figures include R3 million spent on the local economic development projects
|
|
Proved
|
Probable
|
Total
|
||||||
Reserves (metric)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
Tonnes
(Mt)
|
Grade
(g/t)
|
Gold
(000kg)
|
|
6.7
|
0.93
|
6
|
13.2
|
1.14
|
15
|
19.9
|
1.07
|
21
|
Reserves (imperial)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
Tons
(Mt)
|
Grade
(oz/t)
|
Gold
(000oz)
|
|
7.4
|
0.027
|
201
|
14.5
|
0.033
|
482
|
21.9
|
0.031
|
683
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
83
|
87
|
87
|
- Contractors
|
|
261
|
249
|
252
|
Total
|
|
344
|
336
|
339
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
6 227
|
6 133
|
5 962
|
|
(000t) (imperial)
|
6 866
|
6 762
|
6 575
|
Gold produced
|
(kg)
|
818
|
756
|
737
|
|
(oz)
|
26 299
|
24 306
|
23 695
|
Gold sold
|
(kg)
|
823
|
750
|
739
|
|
(oz)
|
26 459
|
24 113
|
23 759
|
Grade
|
(g/t)
|
0.131
|
0.123
|
0.124
|
|
(oz/t)
|
0.004
|
0.004
|
0.004
|
Productivity
|
(g/TEC)
|
385.12
|
185.84
|
183.88
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
589
|
433
|
397
|
|
(US$m)
|
38
|
31
|
31
|
Average gold price received
|
(R/kg)
|
715 787
|
577 889
|
537 547
|
|
(US$/oz)
|
1 421
|
1 268
|
1 301
|
Cash operating cost
|
(Rm)
|
363
|
344
|
326
|
|
(US$m)
|
23
|
24
|
25
|
Production profit
|
(Rm)
|
223
|
92
|
71
|
|
(US$m)
|
14
|
7
|
5
|
Capital expenditure
|
(Rm)
|
7
|
6
|
3
|
|
(US$m)
|
0
|
0
|
0
|
Operating free cash flow 1
|
(Rm)
|
219
|
83
|
68
|
|
(US$m)
|
14
|
7
|
6
|
Cash operating cost
|
(R/kg)
|
443 972
|
455 370
|
442 526
|
|
(US$/oz)
|
882
|
999
|
1 071
|
All-in sustaining cost
|
(R/kg)
|
453 937
|
462 579
|
446 268
|
|
(US$/oz)
|
901
|
1 015
|
1 080
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
0
|
Lost-time injury frequency rate
|
per million hours worked
|
0
|
0
|
0
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
40
|
41
|
41
|
Water consumption - primary activities
|
(ML)
|
320
|
304
|
260
|
Greenhouse gas emissions
|
(000t CO2e)
|
43
|
37
|
40
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.01
|
0.007
|
0.007
|
- water
|
|
0.05
|
0.05
|
0.04
|
- greenhouse gas emissions
|
|
0.01
|
0.006
|
0.007
|
Number of reportable environmental incidents
|
|
0
|
1
|
0
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
Other salient features
|
|
Status of operation
|
Retreatment of tailings
|
Life of mine
|
8 years
|
|
|
FY20
|
FY19
|
FY18
|
Number of employees
|
|
|
|
|
- Permanent
|
|
97
|
99
|
100
|
- Contractors
|
|
151
|
136
|
182
|
Total
|
|
248
|
235
|
282
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
4 020
|
3 872
|
3 810
|
|
(000t) (imperial)
|
4 433
|
4 269
|
4 201
|
Gold produced
|
(kg)
|
625
|
579
|
502
|
|
(oz)
|
20 094
|
18 615
|
16 139
|
Gold sold
|
(kg)
|
625
|
577
|
508
|
|
(oz)
|
20 093
|
18 551
|
16 333
|
Grade
|
(g/t)
|
0.155
|
0.150
|
0.132
|
|
(oz/t)
|
0.005
|
0.004
|
0.004
|
Productivity
|
(g/TEC)
|
325.83
|
307.23
|
261.72
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
468
|
342
|
293
|
|
(US$m)
|
30
|
24
|
23
|
Average gold price received
|
(R/kg)
|
749 216
|
592 359
|
576 829
|
|
(US$/oz)
|
1 488
|
1 299
|
1 396
|
Cash operating cost
|
(Rm)
|
234
|
212
|
191
|
|
(US$m)
|
15
|
15
|
15
|
Production profit
|
(Rm)
|
234
|
130
|
98
|
|
(US$m)
|
15
|
9
|
8
|
Capital expenditure
|
(Rm)
|
12
|
7
|
22
|
|
(US$m)
|
1
|
1
|
2
|
Operating free cash flow 1
|
(Rm)
|
222
|
123
|
80
|
|
(US$m)
|
14
|
8
|
6
|
Cash operating cost
|
(R/kg)
|
373 798
|
366 364
|
381 131
|
|
(US$/oz)
|
742
|
804
|
923
|
All-in sustaining cost
|
(R/kg)
|
389 611
|
378 038
|
420 016
|
|
(US$/oz)
|
774
|
829
|
1 017
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
0
|
Lost-time injury frequency rate
|
per million hours worked
|
0
|
2.09
|
0
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
24
|
23
|
24
|
Water consumption - primary activities
|
(ML)
|
171
|
191
|
180
|
Greenhouse gas emissions
|
(000t CO2e)
|
25
|
21
|
23
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.01
|
0.01
|
0.01
|
- water
|
|
0.04
|
0.05
|
0.05
|
- greenhouse gas emissions
|
|
0.01
|
0.005
|
0.006
|
Number of reportable environmental incidents
|
|
0
|
0
|
1
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
Other salient features
|
|
Status of operation
|
Retreatment of tailings
|
Life of mine
|
15 years
|
|
|
FY20
|
FY19
|
FY18
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
4 476
|
4 307
|
2 821
|
|
(000t) (imperial)
|
4 936
|
4 749
|
3 110
|
Gold produced
|
(kg)
|
1 753
|
1 515
|
1 081
|
|
(oz)
|
56 630
|
48 708
|
34 755
|
Gold sold
|
(kg)
|
1 780
|
1 497
|
1 074
|
|
(oz)
|
57 229
|
48 129
|
34 530
|
Grade
|
(g/t)
|
0.392
|
0.352
|
0.383
|
|
(oz/t)
|
0.011
|
0.010
|
0.011
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
1 388
|
879
|
610
|
|
(US$m)
|
89
|
62
|
47
|
Average gold price received
|
(R/kg)
|
779 835
|
587 483
|
567 737
|
|
(US$/oz)
|
1 549
|
1 289
|
1 374
|
Cash operating cost
|
(Rm)
|
853
|
692
|
450
|
|
(US$m)
|
54
|
49
|
35
|
Production profit
|
(Rm)
|
527
|
195
|
164
|
|
(US$m)
|
34
|
14
|
13
|
Capital expenditure
|
(Rm)
|
2
|
8
|
3
|
|
(US$m)
|
0
|
1
|
0
|
Operating free cash flow 1
|
(Rm)
|
533
|
179
|
157
|
|
(US$m)
|
34
|
12
|
12
|
Cash operating cost
|
(R/kg)
|
486 792
|
456 473
|
415 993
|
|
(US$/oz)
|
967
|
1 001
|
1 007
|
All-in sustaining cost
|
(R/kg)
|
484 507
|
462 178
|
417 462
|
|
(US$/oz)
|
962
|
1 014
|
1 010
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
0
|
Lost-time injury frequency rate
|
per million hours worked
|
0
|
0
|
0
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
*
|
*
|
*
|
Water consumption - primary activities
|
(ML)
|
*
|
*
|
*
|
Greenhouse gas emissions
|
(000t CO2e)
|
*
|
*
|
*
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
*
|
*
|
*
|
- water
|
|
*
|
*
|
*
|
- greenhouse gas emissions
|
|
*
|
*
|
*
|
Number of reportable environmental incidents
|
|
0
|
0
|
0
|
*
|
Electricity and water consumption and related emission and intensity data for the respective plants at which the waste rock dumps are processed
|
1
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
Other salient features
|
|
Status of operation
|
Processing of waste rock dumps is dependent on the availability of spare plant capacity and plant requirements for grinding material
|
Life of mine
|
± 1 year
|
|
|
FY20
|
FY19
|
FY181
|
Number of employees
|
|
|
|
|
- Permanent
|
|
1 434
|
1 391
|
1 295
|
- Contractors
|
|
748
|
709
|
790
|
Total
|
|
2 182
|
2 100
|
2 085
|
Operational
|
|
|
|
|
Volumes milled
|
(000t) (metric)
|
3 906
|
3 886
|
2 499
|
|
(000t) (imperial)
|
4 307
|
4 285
|
2 757
|
Gold produced
|
(kg)
|
4 872
|
6 222
|
2 862
|
|
(oz)
|
156 639
|
200 042
|
92 015
|
Gold sold
|
(kg)
|
4 949
|
6 192
|
2 763
|
|
(oz)
|
159 113
|
199 077
|
88 833
|
Grade
|
(g/t)
|
1.25
|
1.60
|
1.36
|
|
(oz/t)
|
0.036
|
0.047
|
0.039
|
Financial
|
|
|
|
|
Revenue
|
(Rm)
|
3 748
|
3 591
|
409
|
|
(US$m)
|
239
|
253
|
31
|
Average gold price received
|
(R/kg)
|
757 348
|
579 902
|
550 956
|
|
(US$/oz)
|
1 504
|
1 272
|
1 283
|
Cash operating cost
|
(Rm)
|
1 696
|
1 371
|
228
|
|
(US$m)
|
108
|
97
|
17
|
Production profit
|
(Rm)
|
2 109
|
2 229
|
175
|
|
(US$m)
|
134
|
157
|
14
|
Capital expenditure
|
(Rm)
|
959
|
1 591
|
1 563
|
|
(US$m)
|
61
|
112
|
122
|
Operating free cash flow 2
|
(Rm)
|
871
|
573
|
(1 374)
|
|
(US$m)
|
56
|
40
|
(107)
|
Cash operating cost
|
(R/kg)
|
348 054
|
220 323
|
287 028
|
|
(US$/oz)
|
691
|
483
|
669
|
All-in sustaining cost
|
(R/kg)
|
562 648
|
497 399
|
466 256
|
|
(US$/oz)
|
1 120
|
1 090
|
1 094
|
Average exchange rate
|
(R/US$)
|
15.66
|
14.18
|
12.85
|
Safety
|
|
|
|
|
Number of fatalities
|
|
0
|
0
|
0
|
Lost-time injury frequency rate
|
per million hours worked
|
0.68
|
0.35
|
0
|
Environment
|
|
|
|
|
Electricity consumption
|
(GWh)
|
120
|
117
|
59
|
Water consumption - primary activities
|
(ML)
|
1 810
|
1 827
|
1 359
|
Greenhouse gas emissions
|
(000t CO2e)
|
165
|
208
|
57
|
Intensity data per tonne treated
|
|
|
|
|
- energy
|
|
0.04
|
0.03
|
0.02
|
- water
|
|
0.46
|
0.47
|
0.54
|
- greenhouse gas emissions
|
|
0.04
|
0.05
|
0.02
|
Number of reportable environmental incidents
|
|
7
|
2
|
0
|
1
|
FY18 gold produced includes 2 068kg (66 499oz) and gold sold 2 021kg (64 976oz) capitalised as part of pre-stripping of stages 5 and 6
|
2
|
Operating free cash flow = revenue - cash operating cost - capital expenditure ± impact of run of mine (ROM) costs as per operating results
|
Other salient features
|
|
Status of operation
|
Open-pit mining operation producing gold and silver (by-product). Post reinvestment, the pre-stripping of stage 5 commenced in October 2016. Commercial levels of production were achieved in the June 2018 production month. Stage 6 stripping began in FY19
|
Life of mine
|
4 years
|
•
|
Lower gold production in FY20 as a result of lower mined grade as the mine transitioned between various stages of the open pit
|
•
|
Higher inventory adjustments and additional costs due to Covid-19 controls, offset by reduced operating and sustaining capital expenditure year on year
|
Brownfield exploration at Hidden Valley investigating the optimisation of existing operations and extending mine life
|
Wafi-Golpu project - currently in feasibility stage although its development has been hampered by permitting delays
|
Kalgold - advanced feasibility study underway aimed at optimising the existing open pit and extending mine life
|
Brownfield exploration currently underway at several underground operations
|
Greenfields exploration in progress at Target North
|
Papua New Guinea
|
South Africa
|
R203 million (US$13 million) was spent on
exploration, driven largely by Wafi-Golpu related activities (FY19: R397 million; US$28 million). Expenditure of R183 million
(US$13 million) is planned for FY21
|
R56 million (US$4 million) was spent on
exploration of R96 million (US$7 million)
planned for FY21
|
•
|
Estimated operating life of mine of more than 28 years (potential to extend to 40 years)
|
•
|
Steady-state production, using the block cave mining method, is estimated at 161 000t of copper, 266 000oz of gold (more than 1.4Moz of gold equivalent ounces annually)
|
•
|
Above average grades with gold at 0.90g/t and copper at 1.27%
|
•
|
Expressed in terms of gold production, all-in sustaining costs are estimated to be US$2 128/oz; for copper, production costs of US$0.26lb are in the lowest decile
|
•
|
SML the environmental impact statement and all other necessary tenements and permits required in support of project development have been granted
|
•
|
All required agreements with the State and landowners have been signed
|
•
|
All necessary approvals have been received from the boards of directors of the ultimate holding companies of the partners in the joint venture, namely Harmony and Newcrest
|
•
|
Initial activities post granting of the special mining lease will focus on development of site access roads and bridges, reconstituting the project team, and the construction of the Nambonga and Watut declines.
|
•
|
Implementation of the Great Noligwa shaft pillar extraction project, which is based on the partial extraction of reef blocks with a central stabilising pillar to maintain the integrity of both shaft barrels, progressed in FY20 and by financial year-end, 428 metres had been developed. Moreover, refurbishment of the backfill plant was completed and the 73-76 level transfer system commissioned
|
•
|
A prefeasibility study to investigate the possibility of mining a new orebody below the current Moab Khotsong middle mine was concluded and indicated that it could contribute positive value through the application of a twin-decline system. A feasibility study has begun but has been delayed by the impact of Covid-19
|
•
|
A prefeasibility study to investigate the viability of reclaiming gold from the Mispah 1 tailings storage facility was completed. Pending completion of the acquisition of Mine Waste Solutions and other surface facilities from AngloGold Ashanti, a feasibility study will be conducted to investigate the use of their current infrastructure to circumvent the residue deposition issues identified in the Mispah prefeasibility study
|
|
NO POVERTY
|
|
QUALITY EDUCATION
|
|
SUSTAINABLE CITIES AND COMMUNITIES
|
Our focus is on implementing broad-based agriculture and viable commercial agricultural ventures to promote food security, sustain livelihoods and contribute to alternative, sustainable economic activities that will endure once mining ceases
|
-Education is a key aspect of our strategy
-At secondary school level, we promote mathematics, science and technology
-A2At tertiary level and in communities, our focus is to develop entrepreneurial and portable skills, especially in the field of information and communication technology
|
-The promotion of preferential local procurement and enterprise and supplier development helps to uplift communities and sustain them economically
-C2Infrastructure projects (roads in South Africa and water and sanitation in Papua New Guinea) help to enhance community resilience and functionality
|
•
|
contribute to areas that will have the most meaningful socio-economic impact on our communities, namely infrastructure, education and skills development, job creation and entrepreneurial development
|
•
|
enhance broad-based local and community economic empowerment and enterprise development initiatives
|
•
|
facilitate socio-economic development in local communities by means of our social and labour plans (SLPs) and our corporate social responsibility programmes
|
•
|
support arts, culture, and sports and recreation
|
•
|
build relationships based on trust with our host communities, the basis of which must be transparent dialogue and the delivery of mutually-agreed promises
|
Rationale for focus areas of third generation social and labour plan projects
|
Expenditure in FY20
|
|
|
Youth and small, medium and micro enterprise development
Meaningful, long-lasting socio-economic development can only be achieved by empowering individuals and communities with the most appropriate skills and resources. The upskilling of the youth and the nurturing of small, medium and micro enterprises within our communities is thus the priority focus of our mine community development plan. Our related initiatives range from incubation hubs, where we provide support and resources to companies, particularly those owned by young and female entrepreneurs, to the provision of workshops and commercial spaces in which these companies can conduct their businesses.
|
R31.61 million
|
|
Agriculture
For most in our poorest communities, obtaining fresh, healthy food is not always possible, particularly from a cost perspective. To help alleviate this hardship, the second pillar of our mine community development strategy focuses on promoting agricultural initiatives - both broad-based livelihood and commercial ventures. Not only does this ensure improved access to healthy food, which will promote better health and well-being in our communities, the sale of excess produce also assists in alleviating poverty.
|
R8.15 million
|
|
Infrastructure
Infrastructure plays an important role in facilitating the upliftment of communities. Harmony believes that good road infrastructure is particularly vital as it allows ease of movement of goods and people and it promotes economic activity. Infrastructure projects themselves generate employment opportunities. It is on this basis that we have embarked on an infrastructure programme to improve the roads connecting our host communities with the larger towns in the Free State.
|
R25.24 million
|
|
Information communication technology
In this modern, technological-driven age, access to the internet, and particularly computers, is an absolute necessity. To help our host communities access such technology, we have introduced a mobile computer centre that can be accessed by young residents or fledgling businesses.
|
R0.21 million
|
Impact of Covid-19 in South Africa
The black swan event of the Covid-19 pandemic and the subsequent socio-economic lockdowns that were enforced from 27 March had a significant impact on Harmony’s ability to fulfil its socio-economic commitments for FY20. Owing to the national lockdown, some of the projects could not be completed, however an additional 7% were spent during the first three months of the new financial year to accommodate for the lockdown period. Harmony was thus able to spend 90% of its full R78 million budgeted financial commitment.
The lockdown imposed on South Africa, particularly levels 5 and 4, effectively restricted the movement of most people in the country and, thus, prevented Harmony and its partners from accessing sites and completing projects. Although the lockdown curtailed engagement with stakeholders, suppliers and service providers, resulting in some of Harmony’s social and labour plan commitments being delayed, we managed - with the approval of the Department of Mineral Resources and Energy - to accelerate implementation of these projects. We anticipate completing the remaining 17% spend by the end of September 2020. However, the Department of Mineral Resources and Energy proactively recognised the impacts of the pandemic and passed regulations extending the compliance date relative to the period of lockdown.
While Covid-19 has wreaked socio-economic havoc, the pandemic has come with a silver lining of sorts as it presented Harmony with the opportunity to become far more relevant to communities. In particular, we have supported the most impoverished members of our host communities - the Matlosana Local Municipality in North West Province in particular - by providing essential goods such as food packages, sanitation supplies, fresh water and face masks. We also provided personal protective equipment to hospitals in host communities. In addition, we looked beyond our immediate communities and donated care kits to the Amampondo Kingdom in the Eastern Cape, a labour-sending area. In total, we contributed R100.5 million towards Covid-19-related equipment, supplies and assistance for both employees and communities.
|
•
|
signing a 12-month renewable memorandum of understanding with the Papua New Guinea Cocoa Board to work together to develop the cocoa industry in the project impact area
|
•
|
providing assistance, in the form of a storage shed and improved access to water, to the Babuaf Cocoa Farmers’ Cooperative to expand their nursery at Wames so that they could more easily supply planting material to other farmers throughout the project impact area
|
•
|
sponsoring the Kumul Bilong Morobe Cocoa Show of Excellence held in Lae in July 2019. This show drew about 5 000 cocoa farmers, distributors and other interested stakeholders from around the country.
|
•
|
sponsoring the 2019 Morobe Agricultural Show, which had the added bonus of showcasing our Wafi-Golpu project and our social development programmes in the area
|
•
|
Maintenance of critical sections of the Lae-Bulolo highway and
|
•
|
Wau-Bulolo access road
|
•
|
Repair of the Mabung and Kwembu bridges, giving access to landowner villages in the Hidden Valley area and the Hekeng footbridge in the Wafi-Golpu project area
|
•
|
Upgrade to the Bulolo police station that included the provision of fencing, and the installation of water supply and sanitation to previously condemned parts of the facility
|
•
|
Providing assistance to households in the form of solar lighting kits, biomass stoves and the WonderBag cooking system
|
•
|
Provision of clean water, toilets, washing facilities and maintenance training for the villages of Nambongo, Venembele, Hekeng, Bavaga, Gingen, Kendik and Zindaga. These fell under our Water, Sanitation and Hygiene (WaSH) project umbrella
|
•
|
Another WaSH project began at Zimake and was approximately 30% complete before work was halted for Covid-19 safety reasons
|
•
|
Minor health facility maintenance, some which had started in FY19, was completed at the Wafi Clinic, Zifasing, Zindaga, and Papas Aid Posts during the year, in line with the National Health Standards
|
Impact of Covid-19 in Papua New Guinea
Unfortunately, implementation of most of our socio-economic development projects in Papua New Guinea slowed or stopped completely in the wake of the global Covid-19 pandemic. In their stead, Harmony pursued several smaller initiatives to alleviate the impact of the virus on our communities. These initiatives included the provision of:
• material to the women of the local villages to make masks
• food parcels
• water and sanitation supplies
The Papua New Guinea team has also endeavoured to educate local communities on the virus, particularly in terms of symptoms, containing its spread and prevention.
|
•
|
Supporting existing non-compliant suppliers (those who do not comply with the minimum black economic empowerment ownership targets set out in Mining Charter III) to comply and transform, or moving procurement spend to compliant suppliers
|
•
|
Enhancing Harmony’s current supply-chain model and ensuring that preferential procurement is embedded within the sourcing process
|
•
|
Creating a pipeline of small and medium enterprises to participate in the supply chain with an emphasis on women and youth suppliers of core mining and engineering services
|
Mining Charter procurement requirements in South Africa
Mining Charter III emphasises the need to increase the inclusion of historically disadvantaged persons, women, and youth in procurement opportunities, in addition to the Mining Charter II requirements around spend on black economic empowerment-compliant businesses.
There is a strong drive to create South African manufacturing capability through the inclusion of local-content requirements in the procurement targets for mining goods. According to these requirements, mining companies should focus on purchasing mining goods with local content of at least 60% and, after an initial two-year grace period, all goods supplied in the mining supply chain should carry a local content certificate, issued by accredited service providers or South African Bureau of Standards. Expenditure on fuel is no longer included in the overall calculations, which has a significant impact on the scores of larger mines and/or opencast operations.
Mining Charter III now categorises all spend in two categories - mining services and mining goods.
Compliance with Mining Charter III - FY20
While the revisions to Harmony’s procurement strategy did allow us to make significant strides in preferential procurement during FY20, we fell short of achieving full compliance for the procurement of services in terms of Mining Charter III. Regarding the procurement of goods, Harmony performed well, achieving total spend of R14.2 billion (66% of which was preferential procurement). Total procurement expenditure with black economic empowered entities as defined by Mining Charter III was R5.08 billion against total discretionary spend of R7.68 billion. R373 million was spent on 51% black women-owned businesses.
See Mining III - Compliance scorecard
|
Impact of Covid-19 on procurement in South Africa
The spread of the Covid-19 pandemic to South Africa in March 2020 had a profound impact on Harmony during the second half of the reporting year, particularly in the area of procurement. While we were able to stockpile certain goods critical to our operations just before the lockdown was enforced on 27 March, there was a pronounced shortage in the availability of certain other products with a resultant increase in prices. This was particularly the case for personal protective equipment. Supply restrictions compelled Harmony to buy from new or unknown suppliers. Extended delivery lead times also posed significant challenges.
What was of greater concern, however, was the impact of the pandemic and the resultant lockdown on our supplier base, particularly those operating within host communities. There was, and remains, a deep concern that some of our local suppliers may not be able to survive the effects of the lockdown. To help alleviate their challenges, Harmony has lowered the interest rate on small loans made through our Leano initiative, issued payment holidays on instalments for small and medium enterprises and companies owned by historically disadvantaged persons, and provided a special seven-day payment term for our black economic empowerment micro-enterprises to assist them with their cash flows. In addition, interest charges were suspended for the duration of the lockdown. The cash flow relief stemming from this amounted to almost R3 million.
To mitigate the worst effects of the pandemic, Harmony issued force majeure letters to both large and small suppliers who were not classified as essential service providers. This was done to protect both Harmony and the companies against defaulting on contracts during the lockdown. In the event the goods and services from the companies are demanded again during the lockdown period, the force majeure will be lifted, and an essential services letter will be issued accordingly.
Harmony’s suppliers also benefited from a Government relief programme through which an initial grant of R25 000 was provided along with other financial support through the Unemployment Insurance Fund.
|
•
|
Localisation - given the need to increase the percentage of the local content and value add of goods procured, Harmony has agreed to include several local manufacturers in its enterprise and supplier development programme so that value chains may be opened and accessible to Harmony suppliers
|
•
|
Industrialisation - this will focus on fostering the establishment of new, local competitive industries, particularly in the realm of manufacturing
|
•
|
Supplier development - Harmony is working with its small, medium and micro enterprise suppliers to meet minimum quality standards in order to encourage and facilitate their progression to national and international suppliers
|
•
|
Mining and related value chain
|
•
|
Fuel and chemicals
|
•
|
Metal commodities
|
•
|
Engineering products and services
|
•
|
Manufacturing of mining related products
|
•
|
Education
|
•
|
Health
|
•
|
Sports recreation, arts and culture
|
•
|
Socio-economic development
|
•
|
Enactus, which promotes the development of entrepreneurial skills at the tertiary education level and was identified as a constructive way to assist in combating unemployment, poverty and inequality. Harmony remains a platinum sponsor
|
•
|
South African Agency for Science and Technology Advancement (SAASTA), which is active in 20 high schools, advancing the subjects of science, technology and mathematics
|
•
|
ensure a primary means for formal community engagement in the areas that host our operations or projects
|
•
|
align and co-ordinate stakeholder engagement efforts across all our operations
|
•
|
create shared value and sustain our social licence to operate
|
Impact of Covid-19 on corporate social investment in South Africa
The Covid-19 pandemic and associated lockdown imposed to lessen the spread of the virus, left many communities vulnerable without any source of income. Some families did not have food to put on the table. To alleviate some of the hardships being experienced, Harmony assisted affected families within our communities by providing food parcels, care kits and face masks. The target for food parcels was child and/or youth-headed households, while the target for care kits was senior citizens and child-headed households. Much of this work continues into FY21.
Between the start of the lockdown on 27 March 2020 until the end of FY20, Harmony provided the following assistance to host communities:
Gauteng
-Provided food parcels to 1 699 child-headed households
-Donated 3 000 care product kits and face masks. These were distributed to senior citizens and child-headed households
-Provided 100 mattresses to the Merafong municipality to assist in accommodating the homeless in a local community hall
-Empowered one local supplier by procuring 2 500 face masks
Free State
-Provided 1 200 food parcels to vulnerable families in the Matjhabeng and Masilonyana municipalities
-Donated 3 000 care product kits and face masks to senior citizens and child-headed households
North West Province
-Provided food parcels to 915 child-headed households
-Donated 3 270 face masks to the Triest training centre for people with intellectual disabilities and to the departments of Social Development and of Health for distribution to senior citizens in the Matlosana and Ratlou communities
-Donated 1 000 hand sanitisers to the Ratlou community
-Provided shelter and food to 100 homeless people in the Matlosana community
-Empowered two local, historically disadvantaged person-related companies by procuring food parcels
-Empowered one local supplier from Madibogo by procuring 1 000 face masks
-Provided diesel to a local hospital in Matlosana
Additionally, nine local historically disadvantaged suppliers were empowered through the procurement of essential items.
|
OUTLOOK FY21
Socio-economic development
We will maintain our focus on and continue with our infrastructure development, enterprise development, agricultural and educational programmes.
Procurement and enterprise development
Work will continue on the new entrepreneur incubation programme to support and nurture fledgling enterprises to become suppliers of mining and manufacturing commodities and services. We will also focus on expanding their market access, both within Harmony and beyond, by means of additional value chain channels.
Corporate social investment
The South African socio-economic landscape as it was at the start of FY20 has altered irrevocably, as have the challenges we face. It is in this context, that going into FY21, the corporate social investment team will re-evaluate its priorities. Our ultimate objective will be to ease the scars that will be left by this pandemic.
|
|
RESPONSIBLE CONSUMPTION AND PRODUCTION
|
|
CLIMATE ACTION
|
|
LIFE ON LAND
|
|
LIFE BELOW WATER
|
• Water and energy efficiency programmes to optimise usage
• Efficient and responsible waste management, including tailings disposal
|
• Energy efficiency programmes to optimise usage efficiencies and limit related emissions
• Renewable (solar) energy programme in South Africa
|
• Focused rehabilitation programme to restore land to viability post-mining
• Biodiversity action plans being developed to similarly restore biodiversity and limit losses
|
• The aim of this goal is to conserve and sustainably use the oceans, seas and marine resources for sustainable development
• Taking all possible steps to prevent any harm to the ocean and marine life as a result of the deep see tailings placement for the Wafi-Golpu project
|
•
|
Our environmental footprint, biodiversity and conservation
|
•
|
Energy consumption and greenhouse gas emissions (climate change)
|
•
|
Water consumption and management
|
•
|
Waste generation and management
|
•
|
Air quality
|
•
|
Regulatory compliance
|
•
|
Preventing pollution where practicable wherever we operate or otherwise minimising, mitigating and remediating the harmful effects of our operation on the environment
|
•
|
Compliance with applicable host country environmental laws and regulations
|
•
|
Promoting active partnerships with government, community, labour and non-governmental organisations for environmental protection and conservation at international, national, regional and local levels
|
◦
|
Continual improvement that is driven by environmental management systems that focus on
|
◦
|
setting and achieving targets that promote the efficient use of resources and that reduce environmental exposure, and reporting on progress made to relevant internal and external stakeholders
|
◦
|
managing hazardous substances safely and responsibly
|
•
|
Contributing to biodiversity protection and considering ecological values and land-use aspects in investment, operational and closure activities
|
•
|
Ensuring transparent communications with our communities on environmental issues
|
•
|
A revised mine closure policy with provision for financial assurance as security for closure costs
|
•
|
The introduction of a biodiversity offsets policy, which includes a mechanism for biodiversity offset payments to support national biodiversity incentives
|
•
|
The introduction of a National Oceans Policy, which aims to develop and establish an integrated ocean management system and will include consideration of issues associated with offshore mining and extractive industries and deep-sea tailings placement in order to safeguard the health of Papua New Guinea
|
•
|
all capital expenditure on the bio-energy project had been completed in FY19
|
•
|
all capital investment in water treatment plants was completed in FY19
|
•
|
there were restrictions on movement following the Covid-19-related national lockdowns in South African and Papua New Guinea
|
|
FY20
|
FY19
|
|||
Rand millions
|
US$ millions
|
Rand millions
|
US$ millions
|
||
South Africa
|
|||||
Mine rehabilitation projects
|
64
|
4.1
|
90
|
6.3
|
|
Total
|
62
|
4.1
|
79
|
5.6
|
|
Papua New Guinea
|
|
|
|
|
|
Implementation of environmental control
|
32
|
2.1
|
30
|
2.1
|
|
Harmony - Total
|
159
|
10.3
|
199
|
14.0
|
Impact of Covid-19
The major impact of Covid-19 was felt in the last quarter of the financial year when national lockdowns were implemented in South Africa and Papua New Guinea.
In terms of our environmental activities in South Africa, the major impact was on our day-to-day activities, which improved as lockdown restrictions were eased, and delays in licensing applications. Of these, those for Kalgold are especially critical and we are engaging with the Department of Minerals and Energy to expedite the process.
Regarding our operations in Papua New Guinea, the main impacts manifested as a rationalisation of our environmental monitoring programmes and a slowing down in the progress of the Wafi-Golpu project permitting process, particularly with those requiring public consultation.
|
|
Description
|
|
Location
|
Water overflowed from dam 33 into the Sand River on 6 June 2020. This was a result of an increase in the volumes of water pumped from the Witpan municipal dam into the dam 13 water complex, to sustain the freeboard levels of the municipal dam. This increased volumes and depleted holding capacity in the mines reticulation system resulting in an overflow of excess water into the Sand River.
Monitoring of water quality at the discharge point indicated higher but not adverse concentrations of both untreated municipal effluent and mining process water. Sampling further downstream indicated that the impact of the overflow on the receiving environment was minimal.
|
Harmony is assisting the Matjhabeng Local Municipality to ensure adequate pumping facilities at the Witpan municipal dam. However, Harmony is not liable for the quality or the quantity of water pumped from the Witpan dam.
|
•
|
A pre-compliance notice was issued on 3 March 2020 for the Target mine in terms of the National Environmental Management Act on the basis that general waste was not being managed in an appropriate manner and that soil contamination had been observed on site. Proof of remediation was subsequently provided to the Department of Mineral Resources and Energy on 17 March 2020
|
•
|
A pre-compliance notice was issued on 25 March 2020 for the old President Steyn South shaft in terms of the National Environmental Management Act as the approved mining area was being used as an illegal domestic dumping site. Remedial measures have been implemented and the waste was removed from site. At the same time, a request was submitted to the municipality to ensure more adequate waste management measures are implemented in the neighbouring communities. Appropriate sign boards will be placed on site to deter further illegal dumping
|
RESPONSIBLE STEWARDSHIP: SUPPLIERS AND MARKET
|
Suppliers
Suppliers in our expansive supply chain indirectly contribute to our Scope 3 greenhouse gas emissions. It is for this reason, combined with compliance requirements in the National Environmental Management Act (Act 107 as amended), that each supplier that provides goods or services to Harmony is required to adhere to our environmental management clause. By necessitating such compliance, we ensure that companies within our supply chain adhere to laws and regulations governing water and air quality, and will use all reasonable measures to avoid polluting and degrading the environment.
Furthermore, Harmony engaged its top 20 suppliers with the purpose of sensitising them to their carbon and water footprints. Such engagement was undertaken on the basis that their activities, combined with our own mining and processing activities, result in the emission of greenhouse gas and, thus, require re-evaluation to improve processes and reduce the impact of climate change.
Market
Rand Refinery smelts, evaluates, refines and fabricates the gold we produce for investment and retail clients. Harmony has a 10% stake in the organisation, with one of our executive directors performing a role at Rand Refinery as non-executive director and chair of the social and ethics committee. Thus, Rand Refinery is similarly committed to improving its environmental performance and operating to high degree of compliance. Rand Refinery is also committed to internationally-accepted responsible sourcing practices in terms of the London Bullion Market Association Responsible Gold Guidance as well as the Organisation for Economic Co-operation and Development Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas. The certified gold chain of custody is also audited independently in line with the requirements of independent bodies and enacted legislation.
Rand Refinery is ISO accredited in terms of 45001:2018, which replaced the OHSAS 18001:2007, ISO 9001:2015 and ISO 14001:2015 certification.
|
|
Current targets
|
|||||
Group aggregate targets
|
||||||
|
|
FY20
|
FY19
|
|||
5-year target:
FY18 - FY22 (%)
|
Actual (%)
|
Target (%)
|
Achieved
|
10-year target:
FY18 - FY27 (%)
|
||
Energy
|
|
|
|
|||
Reduce absolute electricity consumption (MW)
|
5
|
3
|
7
|
a
|
7
|
|
Electricity intensity (kwh/tonne milled)
|
5
|
3
|
19
|
a
|
7
|
|
Total carbon emission intensity reduction
(t CO2/tonne milled)
|
5
|
3
|
7
|
a
|
5
|
|
Renewable energy
(% of total electricity consumed)
|
10
|
10
|
3
|
x
|
30% of energy mix
|
|
Diesel intensity (kL/tonne milled)
|
2
|
1.2
|
4
|
a
|
|
|
Petrol intensity (kL/tonne milled)
|
2
|
1.2
|
10
|
x
|
|
|
Water
|
|
|
|
|
|
|
Reduce water used for primary activities (kL)
|
7
|
4.2
|
21.2
|
a
|
80% recycled and zero discharge
|
|
Water intensity (kL/tonne milled)
|
7
|
4.2
|
31
|
a
|
||
Water recycling (%)
|
6
|
3.6
|
16
|
a
|
||
Waste
|
|
|
|
|
|
Hydrocarbon* recycling (% reduction)
|
80
|
80
|
33
|
a
|
Zero to landfill
|
|
Water intensity (kL/tonne milled)
|
80
|
6
|
28
|
x
|
||
Land, biodiversity
|
|
|
|
|
|
|
Reduce the land impacted footprint (available for rehabilitation)
|
80
|
80
|
33
|
x
|
One offset project per region where there is a residual impact
|
|
Environmental fines
|
80
|
6
|
28
|
a
|
||
Implement biodiversity action plans
|
80
|
6
|
28
|
x
|
•
|
Target 1: instability on northern flank of the tailings storage facility. Remedial action involved construction of a buttress that was completed in May 2020
|
•
|
Central Plant Reclamations: instability on southern flank of Dam 23. Remedial action involved construction of a buttress that was completed in August 2020
|
•
|
FSS 8: instability on the tailings storage facility complex compelled us to decommission the facility at the end of November 2019 and the deposition was re-routed to other tailings storage dams
|
Nature of tailings
storage facilities
|
Tailings management strategy
|
|||
Operation
|
Inspection
|
Monitoring
|
Periodic review
|
|
Operating (14 locations)
|
a
|
a
|
a
|
a
|
Re-mined (3 locations)
|
a
|
a
|
|
|
Dormant (28 locations)
|
|
a
|
a
|
a
|
•
|
Certification temporarily withdrawn from Kalgold while upgrading plant infrastructure
|
•
|
Certification of the Saaiplaas Plant was voluntarily withdrawn from the Cyanide Code programme in January 2014 until process improvements necessary to meet the requirements have been made International Mining Industry Underwriters (IMIU) also conducts annual audits on all our operating tailings storage facilities, while the International Cyanide Management Institute (ICMI) undertakes an audit every 18 months. In addition, mine residue deposits updates are provided every two years to the Department of Mineral Resources and Energy. On the basis of these audits, most of our South African operations are in good standing. However, as it relates to cyanide management, Kalgold and Saaiplaas were not certified in FY20 owing to the fact that they were unable to meet the required standard set for using cyanide within metallurgical plants.
|
|
FY20
|
FY19
|
FY18
|
FY17
|
FY16
|
Oils and grease waste generated
|
|
|
|
|
|
Grease used (tonnes)
|
424
|
426
|
121
|
384
|
504
|
Lubricating and hydraulic oil used (million litres)
|
2.5
|
3.2
|
2.7
|
2.8
|
2.291
|
Oils to repurpose hydrocarbons to landfill - Oil recycled (000 litres)
|
813
|
978
|
N/A
|
N/A
|
N/A
|
Hazardous waste generated
|
0.12
|
0.12
|
0.11
|
0.14
|
0.13
|
Tailings (million tonnes)
|
24.1
|
24.2
|
21.4
|
19.8
|
18.3
|
Hazardous waste to landfill (tonnes)
|
250
|
399.24
|
343.7
|
N/A
|
N/A
|
|
FY20
|
FY19
|
FY18
|
FY17
|
FY16
|
Timber
|
1 868
|
2 377
|
1 085
|
1 504
|
N/A
|
Steel
|
5 863
|
7 765
|
5 699
|
6 944
|
6 229
|
Plastic
|
509
|
479
|
314
|
459
|
N/A
|
Total
|
8 240
|
10 621
|
7 098
|
8 907
|
6 229
|
•
|
Optimising electrical energy and carbon resource consumption and therefore efficiency within the operations while identifying opportunities for improving the energy mix in the group
|
•
|
Improving energy efficiency by continuously establishing and implementing effective energy management programmes that support the mining operations while providing a safe and healthy work environment
|
•
|
Promoting the efficient use of renewable and non-renewable carbon resources
|
•
|
Reducing greenhouse gas emissions, measuring progress and reporting results
|
•
|
Developing appropriate responses to climate change by way of adaptation and mitigation
|
•
|
Encouraging continuous energy conservation by employees in their work and personal activities
|
•
|
Engaging government in developing policies and strategies to address energy efficiency and greenhouse gas reduction
|
|
FY20
|
FY19
|
FY18
|
FY17
|
FY16
|
South Africa
|
3 051
|
3 209
|
2 458
|
2 538
|
2 542
|
Papua New Guinea
|
120
|
2 131
|
3 90
|
90
|
55
|
Total
|
3 171
|
1 3 341
|
2 549
|
2 629
|
2 597
|
Consumption intensity (MWh/tonne treated)
|
0.12
|
0.12
|
0.11
|
0.14
|
0.13
|
CLIMATE CHANGE
|
|
|
In line with global best practice, this year we have produced a separate report on our carbon-related performance, and related risks, concerns and opportunities. This, our first such report, is aligned with the Task Force on Climate-related Financial Disclosures and available at www.har.co.za. The report focuses on four key areas - governance, strategy, risk management, and metrics and targets. In previous years, we reported in line with the CDP Climate Change.
In line with the principles and requirements of the Task Force on Climate-related Financial Disclosures, the South African Carbon Tax and related updates received from National Treasury have been incorporated into our financial modelling to enhance our understanding of the likely impact on our business. In addition, carbon pricing has been included in our strategic and operational plans.
We have a good understanding of the tax’s regulatory risks and financial and operational implications. Initial indications are that the tax may compromise the longevity and life of mine of our assets. We have commissioned a scenario planning assessment to aid understanding of the implications for each of Harmony’s three operating regions in South Africa. This assessment will inform planning on the measures and action to be taken to mitigate and adapt to these risks in terms of what is best for Harmony and for local communities.
|
Phakisa
|
Leak fixing on compressed air network
|
Large wastages identified and rectified
|
R8.0 million
|
Bambanani
|
Compressed air network inefficiencies underground
|
Identified inefficiencies and repaired leaks. One surface compressor switched off during off-peak mining periods
|
R7.2 million
|
Masimong
|
Ventilation sealing plan
|
Sealing of old areas to reduce demand for fresh ventilation air. Project may result in the reduction of main fans required
|
R8.0 million
|
Masimong
|
Compressed air network optimisation
|
Isolating the compressed air line between 5 and 4 shafts. The addition of standalone compressors at 4 shaft will reduce the demand for compressed air from 5 shaft. It is estimated that only one compressor needs be run during off-peak mining periods
|
R8.0 million
|
•
|
Controlled run-off of rainfall to prevent erosion and sediment entering the river system
|
•
|
Recycling of site water to limit the volumes of water stored on the tailings storage facility and requiring treatment and release to the environment
|
•
|
Treatment of wastewater prior to discharge
|
|
2017
|
2018
|
2019
|
|||
Plant
|
SOx
|
NOx
|
SOx
|
NOx
|
SOx
|
NOx
|
Harmony One
|
0
|
0.859
|
0
|
1.077
|
0.201
|
2.181
|
Central
|
0
|
0
|
0.289
|
1.100
|
0.005
|
0.811
|
Target
|
0
|
0
|
0.020
|
0.001
|
0
|
0.337
|
Moab Khotsong
|
0
|
0
|
0
|
0.216
|
0.200
|
8.496
|
Kalgold
|
0.003
|
0.010
|
0
|
0.003
|
0
|
0
|
Total
|
0.003
|
0.869
|
0.309
|
2.397
|
0.406
|
11.825
|
•
|
Using land for carbon offset and biodiversity purposes, where feasible, and, in other instances, for the cultivation of food that can be sold commercially
|
•
|
Managing vegetation planted on rehabilitated areas in a sustainable and environmentally sensitive manner
|
•
|
Devising and implementing projects in such a way that enhances socio-economic benefits to host communities, particularly in terms of preferential procurement and enterprise and supplier development
|
•
|
Ensuring that rehabilitation underscores our social licence to operate
|
REHABILITATION AND SOCIO-ECONOMIC DEVELOPMENT
The rehabilitation and reclamation of land, tailings dams and waste rock dumps offer a unique opportunity to marry our imperatives of environmental stewardship and socio-economic development.
Socio-economic development projects currently underway on rehabilitated land include:
- The labour-intensive invasive alien vegetation removal project in the vicinity of Kusasalethu and Doornkop. This
project, begun in 2016 at Kusasalethu, is being implemented in phases. To date, 5 000ha have been cleared
and are free of invader species. Regular follow-up monitoring of previously cleared areas is conducted
- Establishment of commercially viable agricultural projects as opposed to subsistence agriculture in Gauteng,
Carletonville and Matlosana
See the Socio-economic development - uplifting our communities section in this report for further details on these projects and initiatives.
In addition, the process of reclaiming and rehabilitating old tailings dam is labour-intensive, requiring many hours for grafting, weeding, planting and maintenance. In FY20, we began the first phase of this initiative, which created some 300 jobs for people in our host communities.
The reclamation of waste rock dumps is progressing well at Kalgold, Kusasalethu and at several sites at our Free State operations. As waste rock is considered a resource by the aggregate industry, several related community initiatives are in place at Kalgold and in the Welkom area. See Waste rock under Mineral waste in this section.
Additionally, a feasibility study is currently being conducted to determine the viability of repurposing old mine-site buildings for alternative accommodation facilities for our host communities.
|
OUTLOOK FY21
Our focus from an environmental perspective for FY21 will be as follows:
- Following up on delays in licence approvals as a result of the national lockdown, such as the water use licences
for Moab Khotsong and Doornkop
- Following the acquisition of Mponeng and Mine Waste Solutions post year-end and their incorporation within the
company we will focus on:
- adjusting our long-term environmental targets to allow for their inclusion
- ensuring licensing approvals for Mine Waste Solutions
- optimising these two assets in relation to water, an important focal area. The Margaret Water Company and
the related Covalent Water Company represent an opportunity to transform this water for the benefit of
broader society and the environment
- Finalising the closure plans for those mines reaching the end of their operating life - Unisel and Masimong are
expected to close during the course of FY21, Hidden Valley in FY24 (in the absence of any potential mine
extension)
- With the completion of the public participation process for St Helena 10 shaft, beginning the closure application
process with the Department of Mineral Resources and Energy
- Beginning the public participation process on Kusasalethu’s formal closure plan
- Advancing the permitting of the Wafi-Golpu project
|
We report on our performance in relation to the Mining Charter throughout this Integrated Annual Report.
The Mining Charter serves as a guiding policy document to the industry, focusing on the transformation of the South African mining industry as a whole. The main objectives of the Charter are to promote equal access to and ownership of the industry, expand business opportunities for historically disadvantaged persons (HDPs), redress the imbalances of historical injustices, and enhance the social and economic welfare of employees and mine communities.
The Mining Charter is not a static document having been debated and revised a number of times. It is now in its third iteration.
|
•
|
Minimum spend of 70% of total mining goods on South African-manufactured goods with 60% local content,
|
•
|
44% of which must be spent with BEE-compliant companies
|
•
|
21% must be spent on goods produced by HDPs and 5% on goods produced by women- or youth-controlled companies
|
•
|
Minimum spend of 80% on services with South African-based companies, 50% of which must be supplied by HDPs and 10% by BEE-compliant companies
|
•
|
15% of the services budget must be spent with women-owned and controlled companies, and 5% with youth-owned and controlled companies
|
•
|
Board: 50% HDPs with proportional exercisable voting rights, 20% of whom must be women
|
•
|
Executive management (Exco): 50% HDPs, 20% of whom must be women
|
•
|
Senior management: 60% HDPs, 25% of whom must be women
|
•
|
Middle management: 60% HDPs, 25% of whom must be women
|
•
|
Junior management: 70% HDPs, 30% of whom must be women
|
•
|
Core and critical skills (i.e. science, technology, engineering and mathematical skills, across all organisational levels): 60% HDPs
|
•
|
Employees with disabilities must make up at least 1.5% of all employees
|
•
|
Ethical culture and responsible corporate citizenship
|
•
|
Good performance and value creation
|
•
|
Effective control
|
•
|
Legitimacy
|
•
|
adhere to sound corporate governance principles
|
•
|
enable strong, experienced management teams
|
•
|
promote a culture of shared value
|
•
|
Adopted a risk-based approach to managing the impact of Covid-19 on the safety and health of employees
|
•
|
Provision of social, health and economic support to employees and communities
|
•
|
Implementation of prudent cash preservation measures including a successful share placement to fund the Mponeng and Mine Waste Solutions acquisition
|
•
|
Embracing virtual platforms to conduct board meetings and the June 2020 extraordinary general meeting
|
|
Composition and tenure
|
Independence
|
|
|
Board independence, diversity and experience
(as at 23 October 2020)
|
Total members 15
Chairman and lead independent director Yes
Average age (years) 59
|
60%
|
9 members of the board are independent, non-executive directors
|
|
|
|
|||
Transformation
|
Female representation
|
|||
73%
|
11 members of the board are historically disadvantaged persons
|
33%
|
5 members of the board are women
|
|
|
|
|||
Core skills and experience
|
|
|||
|
||||
Governance and
compliance policies
|
• Terms of reference for the board
• Terms of reference for board committees
• Board delegation of authority
• Code of conduct
• Behavioural code
• Corporate governance and compliance policy and framework
|
• Internal audit charter
• Disclosure Required by Section 303A.11 of the NYSE Listed Company Manual
• Public Access to Information Act manual (PAIA)
• Whistleblower policy
|
Foundation of corporate governance compliance
|
• Companies Act, JSE Listing Requirements (primary), New York Stock Exchange requirements, Memorandum of Incorporation, King IV Report
• Voluntary compliance with the principles of the United Nations Global Compact, International Council on Mining and Metals, Global Reporting Initiative and the International Cyanide Management Code for the Manufacture, Transport and Use of Cyanide in the Production of Gold (Cyanide Code)
|
|||
Overarching principle
|
• Responsible corporate citizenship and commitment to ethical leadership
|
•
|
Ethical culture and responsible corporate citizenship
|
•
|
Good performance and value creation
|
•
|
Effective control
|
•
|
Legitimacy
|
Ethical culture and responsible corporate citizenship
|
|
Ethical leadership
The board fully appreciates that it has to lead by example. Each member of the board is therefore expected to exhibit, at all times, the characteristics of integrity, competence, responsibility, accountability, fairness and transparency in his or her conduct. Collectively, the board’s conduct, activities and decision-making are characterised by these attributes, which also form part of the regular assessment of the board and individual directors’ performance. The board recognises that ethics is one of the pillars of sustainable business practice.
The board charter elaborates on the standard of conduct expected from board members. In addition, the board policy on the declaration of interests not only limits the potential for a conflict of interest but also ensures that, in cases where conflict cannot be avoided, it is properly disclosed and proactively managed within the boundaries of the law and principles of good governance.
|
|
Organisational ethics
The board sets the group’s approach to ethics. Oversight and monitoring of organisational ethics is the mandated responsibility of the social and ethics committee which fulfils this role on behalf of the board. Details of the arrangements for governing and managing ethics, key focus areas during the reporting period, measures taken to monitor organisational ethics and planned areas of future focus are contained in the Social and ethics committee: chairperson’s report.
In the previous year, the Ethics Institute of South Africa conducted an ethics opportunity and risk assessment and reported its findings to the social and ethics committee of the board. This assessment will be undertaken again next year. The purpose of the assessment was to determine Harmony’s current ethics opportunity and risk profile. The outcome of the assessment further informed the contents of our ethics management strategy and determined the scope and contents of ethics management interventions going forward. Key action items identified included:
•To increase the awareness of corruption and adopt a zero tolerance thereof
•To action steps taken against transgressors
•To promote and emphasise the fair treatment of employees despite their status, age, gender or rank
•To communicate a clear process flow chart indicating how whistle blower concerns are addressed within the organisation, and ensure anonymity when using the whistle blowing line
•To implement additional training opportunities within the organisation on ethical topics
•To develop a process to monitor all disciplinary actions taken to ensure consistency and fair treatment of employees
|
Responsible corporate citizenship
The mining industry introduces a unique responsibility and opportunity to the group to be a responsible corporate citizen. Although the board sets the tone and direction for the manner in which corporate citizenship should be approached and managed, ongoing oversight and monitoring of the group’s performance against set targets also forms part of the mandate of the social and ethics committee.
Extensive detail and information on the consequences of the group’s activities and outputs, which affect its status as a responsible corporate citizen with relevant measures and targets, are given elsewhere in the integrated annual report relating to the following areas:
•Workplace - See Safety and health, Employee relations, Socio-economic development - uplifting communities and Remuneration report
•Economy - See Employee relations and Socio-economic development - uplifting communities
•Society - See Employee relations and Socio-economic development - uplifting communities which includes reports on corporate social investment and human rights
•Environment - See Environmental management and stewardship
|
|
Good performance and value creation
|
Strategy
The board is responsible for approving the group’s short-, medium- and long-term strategy as formulated and developed by management. In doing so, the board focuses on numerous critical aspects of the strategy including, among others, the legitimate and reasonable needs, interests and expectations of material stakeholders as well as the impact of the group’s activities and output on the various forms of capital employed as part of the business process. The risks and opportunities connected to the triple context (economy, society and the environment) within which the group operates are integral to the board’s strategic reviews of the business.
Policies and operational plans that support the approved strategy are submitted regularly by management for review and formal board approval. The board attends an annual strategy session called a “bosberaad” - specifically dedicated to confirm and review the company’s strategy. However, due to the Covid-19 pandemic and restrictions placed on social gatherings to adhere to social distancing protocols, the annual bosberaad was not held in FY20.
Strategy is part of the ongoing conversation in the boardroom. Ongoing oversight of the implementation of the company’s strategies and operational plans takes place against agreed performance measures and targets.
As the company’s reputation as a responsible corporate citizen is an invaluable attribute and asset, the consequences of activities and outputs, in terms of the various capitals employed, are continuously assessed by the board through its subsidiary committees. This will ensure that we are able to respond responsibly and limit any negative consequences of our activities, to the extent reasonably possible. In addition, the board continuously monitors the reliance of the group on these capital inputs - our natural capital (including mineral resources and reserves), employees, financial capital, communities and society at large, our mining infrastructure and our intellectual and technological know-how - as well as the solvency, liquidity and going concern status of Harmony.
|
Reporting
In protecting and enhancing the legitimacy and reputation of the group, the board ensures that comprehensive reporting is done on different platforms. In addition to this Integrated Annual Report, a separate Report to shareholders as well as a Financial report and a Mineral Resources and Mineral Reserves Report are published. The group’s sustainable development performance, as measured against the Global Reporting Initiative Content Index, available online at www.har.co.za.
It is the board’s intention to not only meet minimum legal requirements but also the legitimate and reasonable information needs of material stakeholders. The board is satisfied with management’s bases for determining materiality for the purposes of deciding what information should be included in our external reports. The audit and risk committee, with the assistance of the social and ethics committee, has also been tasked with reviewing all external reports to verify the integrity of the information contained therein.
|
Political donations
Harmony supports the democratic processes in South Africa and Papua New Guinea, and contributes to their political parties. A policy relating to political donations has been adopted by the company. During FY20 review, there were no substantial donations made by Harmony.
|
Effective control - Governing structures and processes
|
|
Role of the board
The board exercises its leadership role by:
• Steering the group and setting its strategic direction
• Approving policy and planning that gives effect to the direction provided
• Overseeing and monitoring implementation and execution by management
• Ensuring accountability for the group’s performance by means of, among others, reporting and disclosures
The role and function of the board, including guidelines relating to the board’s composition and procedures, are documented in detail in the board charter, which is reviewed regularly to ensure that it remains relevant and applicable.
A protocol is in place to be followed in the event of any of the board members or committees needing to obtain independent, external professional advice at the cost of the company on matters within the scope of their duties. Non-executive directors are also aware of the protocol to be followed for requisitioning documentation from, and setting up meetings with, management. Notwithstanding, board members have direct and unfettered access to the chief audit executive, the company secretary and members of executive management.
Based on its annual work plan, the board is satisfied that it fulfilled its responsibilities during the period under review in accordance with its charter.
Information on the number of board meetings held by the board and attendance can be found in this report.
|
Board committees
The board has delegated particular roles and responsibilities to standing committees based on relevant legal requirements as well as on what is appropriate for the group and to achieve the objectives of delegation. The board recognises that duties and responsibilities can be delegated but that accountability cannot be abdicated. The board, therefore, remains ultimately accountable.
The following committees have been established:
• Audit and risk committee
• Investment committee
• Nomination committee
• Remuneration committee
• Social and ethics committee
• Technical committee
Formal terms of reference have been adopted for each board committee and are reviewed annually (and when necessary) to ensure that the content remains appropriate and relevant. The terms of reference address, as a minimum, the recommended items in King IV.
|
Effective control - Functional areas
|
|
Risk governance
The board appreciates that risk is integral to the way it makes decisions and executes its duties. Risk governance encompasses both risks and opportunities as well as a consideration of the potential positive and negative effects of any risks on the achievement of the group’s objectives. The group’s risk appetite and tolerance levels, which support its strategic objectives, are considered annually. The board is supported in this area by the audit and risk committee.
Responsibility for implementing and executing effective risk management is delegated by the board to management. The board acknowledges the need to integrate and embed risk management in the business activities and culture of the group. The audit and risk committee is tasked with ensuring independent assurance on the effectiveness of risk management in the group, and when deemed necessary and appropriate.
Detail on the nature and extent of the top strategic risks and opportunities of the group and an overview of the arrangements for governing and managing risk is disclosed in Managing our risks and opportunities.
|
Technology and information governance
The board accepts responsibility for governing technology and information in a way that supports the group in setting and achieving its strategic objectives. The board is supported in this area by the audit and risk committee.
A technology and information steering committee, chaired by Boipelo Lekubo (appointed as financial director in March 2020) and with its membership covering the head of information services and members of the group executive committee, has a well-defined charter and is responsible for the oversight of technology and information direction, investment and alignment with business strategy and priorities.
Management adopted the Control Objectives for Information and Related Technologies (COBIT), a framework published by the Information Systems Audit and Control Association (ISACA) for IT management and IT governance. COBIT provides a set of recommended best practices for governance and control processes of information systems and technology to align IT with business. COBIT is positioned at a high level and has been aligned and harmonised with other, more detailed IT standards and good practices.
Internal audit provides assurance to management and the audit and risk committee on the effectiveness of the governance of technology and information, and Ernst and Young (EY) on the upgrade of the enterprise resource planning (ERP) system as well as on the implementation of the human resource management system.
|
Compliance governance
Being an ethical and responsible corporate citizen requires zero tolerance for any incidences of legislative non-compliance. In addition, compliance with adopted, non-binding rules, codes and standards is essential in supporting the achievement of strategic business objectives.
The foundation of our corporate governance is in compliance with:
• The Companies Act
• The requirements of the JSE, where we have our primary listing
• The requirements of the New York Stock Exchange, where we have our secondary listing
• King IV Report and related principles and codes of good corporate governance
Harmony also complies voluntarily with the principles of the:
• United Nations Global Compact
• International Council on Mining and Metals
• Global Reporting Initiative
• International Cyanide Management Code for the Manufacture, Transport and Use of Cyanide in the Production of Gold (Cyanide Code)
Code of conduct
Our code of conduct commits Harmony, our employees and our contractors to the highest moral standards, free from conflicts of interest. The board reviews the code of conduct at least every second year, while its application within Harmony is continually monitored by management. The code of conduct will be reviewed and updated during FY21. Our ethics programme is also subject to independent assurance as part of the internal audit coverage plan. The code of conduct addresses critical issues including anti-corruption, gifts and entertainment and declarations of interests. It encourages employees and other stakeholders to report any suspected irregularities. This can be done anonymously through a 24-hour hotline (which is managed by an independent consulting firm), as well as other channels. All incidents reported are investigated and monitored by the white-collar crime committee, which comprises managers representing various disciplines in the company and reports to the management ethics committee.
|
Whistleblowing policy
Our whistleblowing policy encourages shareholders, employees, service providers, contractors and members of the public to report practices at any of our workplaces that are in conflict with any law, regulation, legal obligation, ethical codes or governance policies. It also provides a mechanism for our stakeholders to report these practices internally, in confidence, independent of line management, and anonymously if they so wish. The whistleblowing policy informs whistle blowers of their rights.
The identity of any employee or stakeholder who reports non-compliance with the code of conduct is protected. Our anonymous ethics hotline numbers, which are widely advertised throughout the organisation, are:
• South Africa: +27 (0) 800 204 256
• Papua New Guinea: +675 (0) 00 861 239
• Australia: +61 (1) 800 940 949
Ethics officer and ethics management committee
Harmony has a permanent ethics officer who ensures that the ethics management plan and programme is executed sufficiently and is duly communicated throughout the organisation. Our ethics management committee monitors our ethical culture and integrity with the assistance of the ethics officer. The following processes were introduced and developed further during the past financial year:
• Verification processes to identify politically exposed persons
• Verification processes for purposes of doing business with international companies
• Effective reporting format to the social and ethics committee
• Integrated electronic ethics management system
• Centralisation of all ethics management activities over the group
The ethics management committee also assesses declarations of interest in terms of the code of conduct and provides feedback to the executive committee, which then reports to the board’s social and ethics committee. As a result, ethics are discussed and examined at every level of management within the company. An external ethics risk assessment was also conducted by the Ethics Institute of South Africa.
Protection of Personal Information Act
Although the Protection of Personal Information Act, 4 of 2013 (POPIA) is enacted but not in force as yet, Harmony is committed to implementing measures in adherence to requirements stipulated by POPIA in support of good governance. Creating POPIA awareness within the organisation is ongoing.
In accordance with POPIA, the information and compliance officer manages the company’s information, ensures compliance with POPIA, manages the company’s records and archives and ensures compliance with the company’s regulatory environment in general. The information and compliance officer compiles information and reports on the status of legislative compliance at the audit and risk committee meetings.
Promotion of Access to Information Act
Harmony complies with the Promotion of Access to Information Act, which protects the constitutional right to information that is required to exercise or protect a right. The purpose of this legislation is to foster a culture of transparency and accountability in public and private bodies, and to promote a society in which all South Africans are enabled to enjoy their rights. For more on this see, our website: www.harmony.co.za/ sustainability/governance#policies
Requests for human resource, medical and other related information are provided in accordance with PAIA regulations. The company received 18 requests for access to information in terms of this legislation during FY20.
Broad-Based Black Economic Empowerment Act
The annual compliance report in line with section 13G(2) of this Act can be found on pages 125 to 127 of this report.
Dealing in Harmony shares
During price-sensitive periods, our employees and directors are prohibited from dealing in Harmony shares. Written notice of these restricted periods is communicated to employees and directors by the company secretary. In terms of regulatory and governance standards, directors and employees are required to disclose any dealings in Harmony shares in accordance with the JSE Listings Requirements. The clearance procedure for directors and the company secretary to deal in Harmony shares is regulated by the company’s policy on trading in shares and insider trading. The policy is reviewed every second year.
|
Remuneration governance
Attracting and retaining the required skills depends, to a large extent, on the remuneration levels and practices in any business. It is therefore vital to ensure that the group remunerates fairly, responsibly and transparently so as to promote the achievement of strategic objectives and positive outcomes in the short, medium and long term. The board is supported in this area by the remuneration committee. Extensive detail on group remuneration is provided in the Remuneration report.
Provision has been made in the notice of the 2020 annual general meeting for a non-binding advisory vote of shareholders on both the remuneration policy as well as on the remuneration implementation report see the Report to Shareholders 2020.
|
Legitimacy
|
Inclusive stakeholder-engagement model
The board sets the direction for the group’s approach to stakeholder relationships. An inclusive stakeholder-engagement approach considers whether the legitimate needs, interests and expectations of all material stakeholders have been adopted.
Information on the material stakeholders and the manner in which relationships with stakeholders are managed, governed and monitored is provided in Stakeholder engagement and material issues.
Shareholders are encouraged to attend the Harmony annual general meeting, details of which are contained in the notice of the 2020 annual general meeting in the Report to Shareholders 2020.
|
Board of directors
|
|||||
The board exercises its leadership role over the group by:
• Steering its strategic direction
• Approving policy and planning that gives effect to the strategy
• Overseeing and monitoring implementation and execution by management
• Ensuring accountability for performance through reporting and disclosure
|
|||||
Board committees
|
•
|
highly effective
|
•
|
appropriately positioned to discharge their governance responsibilities
|
•
|
well supported by its committees
|
•
|
working as a cohesive unit and that the highest ethical standards are applied in deliberations and decision-making, thus enabling the board to provide effective leadership based on an ethical foundation
|
•
|
communicates consistently and effectively with all of Harmony’s stakeholders
|
•
|
created and implemented an effective strategy, supported by management
|
•
|
demonstrates ethical and transparent leadership by living the company’s culture and reinforcing its values
|
•
|
Although the board was satisfied with its diversity in terms of knowledge, skills, experience, culture and race, the board acknowledged the need to improve representation in terms of age and technical mining experience. In the prior year, the board appointed two additional women to the board and another woman during the year under review.
|
•
|
Harmony’s continuous training and development for board members should be more formalised.
|
•
|
Long-standing board members should continue to be tested for independence
|
In memoriam
Ms Riana Bisschoff sadly passed away in January 2020 following a short illness.
The board and management of Harmony pay tribute to Ms Bisschoff’s leadership, integrity, exuberance and outstanding dedication to the group. She had occupied the position of Harmony’s group company secretary since 1 March 2012.
|
|
|
|
|
Attendance by committee
|
|
|
|||||
Name
|
Age (years)
|
Appointed director
|
Independent
|
*Audit and risk committee
|
** Social and ethics committee
|
** Technical committee
|
** Investment committee
|
Remuneration committee
|
Nomination committee
|
Attendance at board meetings
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-executive directors
|
|||||||||||
Dr Patrice Motsepe (Chairman)
|
58
|
2003
|
|
|
|
|
|
|
4/4
|
4/4
|
100%
|
Mr Modise Motloba (Deputy chairperson)
|
54
|
2004
|
|
(a) 2/7
|
5/6
|
(a) 4/6
|
7/7
|
|
3/4
|
3/4
|
75%
|
Mr Mavuso Msimang (lead independent)
|
79
|
2011
|
|
|
4/6
|
|
|
|
3/4
|
2/4
|
50%
|
Dr Simo Lushaba
|
54
|
2002
|
|
7/7
|
6/6
|
|
7/7
|
4/4
|
|
4/4
|
100%
|
Ms Fikile De Buck
|
60
|
2006
|
|
7/7
|
5/6
|
|
|
4/4
|
4/4
|
4/4
|
100%
|
Ms Karabo Nondumo
|
42
|
2013
|
|
7/7
|
|
6/6
|
7/7
|
|
|
4/4
|
100%
|
Mr Ken Dicks ^
|
81
|
2008
|
|
|
|
6/6
|
6/7
|
|
|
4/4
|
100%
|
Mr John Wetton
|
71
|
2011
|
|
7/7
|
6/6
|
|
7/7
|
4/4
|
|
4/4
|
100%
|
Mr Max Sisulu ^
|
75
|
2018
|
|
|
0/6
|
|
|
|
|
0/4
|
0%
|
Mr Vishnu Pillay
|
63
|
2013
|
|
|
|
6/6
|
7/7
|
4/4
|
(f) 2/4
|
4/4
|
100%
|
Mr Joaquim Chissano
|
81
|
2005
|
|
|
5/6
|
|
(b) 3/7
|
|
(b) 2/4
|
3/4
|
75%
|
Mr André Wilkens
|
71
|
2007
|
|
|
|
4/6
|
4/7
|
4/4
|
|
4/4
|
100%
|
Ms Grathel Motau
|
45
|
2019
|
|
|
|
|
(c) 5/7
|
|
|
4/4
|
100%
|
Ms Given Sibiya
|
52
|
2019
|
|
(d) 7/7
|
|
|
|
|
|
4/4
|
100%
|
Executive directors
|
|||||||||||
Mr Peter Steenkamp
|
60
|
2016
|
|
|
|
|
|
|
|
4/4
|
100%
|
Ms Boipelo Lekubo (e)
|
37
|
2020
|
|
|
|
|
|
|
|
4/4
|
100%
|
Mr Frank Abbott #
|
66
|
2012
|
|
|
|
|
|
|
|
4/4
|
100%
|
Mr Harry Mashego
|
56
|
2010
|
|
|
|
|
|
|
|
3/4
|
75%
|
•
|
Audit and risk committee
|
•
|
Investment committee
|
•
|
Nomination committee
|
•
|
Remuneration committee
|
•
|
Social and ethics committee
|
•
|
Technical committee
|
Member
|
Committee tenure
|
Fikile De Buck (Chairperson)*
|
14 years
|
John Wetton
|
9 years
|
Karabo Nondumo
|
7 years
|
Dr Simo Lushaba
|
17 years
|
Given Sibiya
|
1 year
|
Modise Motloba
|
**
|
* Appointed as chairperson on 10 May 2018
**Resigned as member on 21 October 2019
|
Primary functions
|
• Monitors the operation of an adequate system of internal control and control processes
• Monitors the preparation of accurate financial reporting and statements in compliance with all applicable legal and corporate governance requirements and accounting standards
• Monitors risk management, ensures that significant risks identified are appropriately addressed and supports the board in the overall governance of risk
|
Key activities and actions in FY20
|
• For the actions of the audit and risk committee in FY20 refer to the Audit and risk committee: chairperson’s report
• Reviewed the company’s quarterly and annual financial results
• Evaluated and considered Harmony’s risks, as well as measures taken to mitigate those risks
• Monitored the internal control environment in Harmony and found it to be effective
• Discussed the appropriateness of accounting principles, critical accounting policies, management judgments, estimates and impairments, all of which were found to be appropriate
• Ensured that the appropriate financial reporting procedures, which include consideration of all entities included in the consolidated group IFRS financial statements, have been established and that these procedures are operating *
• Ensured that it has access to all the financial information of Harmony to allow the Company to effectively prepare and report on its financial statements *
• Considered the appointment of the external auditor, PricewaterhouseCoopers Inc, as the registered independent auditor for the ensuing year
• Considered the suitability of the external audit partner firm following assessment of the information provided by the external audit firm, in terms of paragraph 22.15(h) of the JSE Listings requirements, to determine the suitability of their appointment as the external audit firm and of the designated individual partner
• Satisfied itself that the external audit firm, PricewaterhouseCoopers Inc, was suitable and independent from the company
• Evaluated the independence and effectiveness of the internal audit function
• Evaluated and coordinated the internal audit, external audit and sustainability assurance processes
• Received and considered reports from the external and internal auditors
• Reviewed and approved internal and external audit plans, terms of engagement and fees, as well as the nature and extent of non-audit services rendered by the external auditors
• Considered the appropriateness, expertise and experience of the financial director, Boipelo Lekubo, as well as that of the finance function - both were found to be adequate and appropriate
• Considered whether information technology risks are adequately addressed and whether appropriate controls are in place to address these risks. The committee oversees and monitors the governance of information technology on behalf of the board, a task it views as a critical aspect of risk management.
• Considered and confirmed the company as a going concern
• Considered the JSE‘s most recent report on the proactive monitoring of financial statements
• Reviewed and recommended changes to the committee’s terms of reference to the board for approval
• Reviewed the corporate governance and compliance policy and framework for board approval
• Updated and recommended the company’s delegation of authority policy for board approval
• Considered funding for the Mponeng and Mine Waste Solution acquisition and considerations related to Covid-19
|
* In terms of new JSE Listings Requirements
|
Member
|
Committee tenure
|
Dr Simo Lushaba (Chairperson)*
|
2 years
|
Modise Motloba
|
15 years
|
John Wetton
|
9 years
|
Mavuso Msimang
|
9 years
|
Joaquim Chissano
|
14 years
|
Fikile De Buck
|
14 years
|
Max Sisulu**
|
2 years
|
*Appointed as chairperson on 10 May 2018
**Resigned as member and director on 30 September 2020
|
Primary functions
|
• Oversees policy and strategies pertaining to occupational health and employee well-being, environmental management, corporate social responsibility, human resources, public safety and ethics management
• Monitors implementation of policies and strategies by executives and their management teams for each discipline referred to above
• Assesses Harmony’s compliance against relevant regulations
• Reviews material issues in each of the above disciplines to evaluate their relevance in the reporting period, and to identify additional material issues that warrant reporting, including sustainability-related key performance indicators and levels of assurance
|
Key activities and actions in FY20
|
• Reviewed and recommended the social and ethics committee report to be included in the integrated annual report
• Reviewed and considered the social, economic, human capital and environmental issues affecting the company’s business and stakeholders
• Reviewed and considered the effect that the company’s operations had on the economic, social and environmental well-being of communities, as well as significant risks within the ambit of the committee’s responsibilities
• Approved material elements of sustainability reporting and the key performance indicators which were externally assured
• Considered and monitored the company’s internal and external stakeholder relations
• Reviewed and recommended changes to the committee’s terms of reference to the board for approval
• Considered and approved the company’s health and safety policy
• Considered and approved the company’s preferential procurement policy
• Considered and approved the company’s environmental policy
• Considered and approved the company’s ethics management strategy and plan
• Attended a site visit for environmental management and social and labour plans at Doornkop mine
• Reviewed and recommended the committee’s terms of reference to the board for approval
•Considered and reviewed the impact of Covid-19
See Social and ethics committee: chairperson’s report
|
Member
|
Committee tenure
|
André Wilkens (Chairperson)*
|
|
Ken Dicks**
|
12 years
|
Karabo Nondumo
|
12 years
|
Vishnu Pillay
|
4 years
|
Modise Motloba
|
7 years
|
*Appointed as chairperson on 22 January 2008
** Resigned as member and director on 30 September 2020
|
Primary functions
|
• Provides a platform to discuss strategy, performance against targets, operational results, projects and safety
• Informs the board of key developments, progress against objectives and the challenges facing operations
• Reviews strategic plans before recommending such to the board for approval
• Provides technical guidance and support to management
|
Key activities and actions in FY20
|
• Monitored safety across all operations
• Monitored exploration and ore reserves in South Africa and Papua New Guinea
• Monitored all South African and Papua New Guinean operations
• Considered and approved the company’s health and safety policy
• Reviewed and recommended to the board the company’s annual budget and business plans for FY21
• Attended a site visit for a detailed discussion on the company’s enterprise risk management
• Considered investments, proposals, projects and proposed acquisitions from a technical point of view
• Reviewed and recommended the committee’s terms of reference to the board for approval
• Considered and reviewed the impact of Covid-19
• Reviewed and recommended the acquisition of Mponeng and Mine Waste Solution to the board for approval
|
Member
|
Committee tenure
|
Modise Motloba (Chairperson)*
|
2 years
|
Dr Simo Lushaba
|
16 years
|
John Wetton
|
9 years
|
Karabo Nondumo
|
7 years
|
Ken Dicks**
|
12 years
|
Vishnu Pillay
|
7 years
|
André Wilkens
|
13 years
|
Grathel Motau
|
1 year
|
Joaquim Chissano
|
Appointed 26 November 2019
|
*Appointed as chairperson on 10 May 2018
** Resigned as member and director on 30 September 2020
|
Primary functions
|
• Considers projects, acquisitions and disposals in line with Harmony’s strategy and ensures that due diligence procedures are followed
• Conducts other investment-related functions designated by the board
|
Key activities and actions in FY20
|
• Considered investments, proposals, projects and proposed acquisitions in line with the board’s approved delegation of authority and the committee’s terms of reference
• Attended a site visit for a detailed discussion on the company’s enterprise risk management
• Reviewed and recommended the budget and business plans for FY21
• Reviewed and recommended the committee’s terms of reference to the board for approval
• Considered and reviewed the impact of Covid-19
• Reviewed and recommended the acquisition of Mponeng and Mine Waste Solution to the board for approval
|
Member
|
Committee tenure
|
Vishnu Pillay (Chairperson)*
|
5 years
|
Fikile De Buck
|
10 years
|
John Wetton
|
9 years
|
Dr Simo Lushaba
|
15 years
|
André Wilkens
|
13 years
|
* Appointed as chairperson on 11 May 2017
|
Primary functions
|
• Ensures directors and executive management are fairly rewarded for their contribution to Harmony’s performance
• Assists the board in monitoring, reviewing and approving Harmony’s compensation policies and practices, and in the administration of its share incentive schemes
• Operates as an independent overseer of the group remuneration policy and makes recommendations to the board for final approval
|
Key activities and actions in FY20
|
• Reviewed the benefits and remuneration principles as applied to Harmony executive management
• Received and discussed a summary of the total suite of Harmony executive management incentive schemes in order to obtain a holistic view
• Reviewed and recommended the committee’s terms of reference to the board for approval
• Reviewed and recommended the company’s Total Incentive Plan policy to the board for approval
• Reviewed and recommended the travel policy for non-executive directors to the board for approval
• Reviewed the company’s consolidated paper on retention
• Considered and recommended the remuneration policy and implementation report to the board for inclusion in the notice of annual general meeting for consideration by the shareholders as non-binding advisory resolutions (see Remuneration report)
• Reviewed executive directors’ and executive management’s remuneration benchmarks and recommended their annual salary increases to the board for approval (see Remuneration report)
• Reviewed the annual salary increases of the company secretary and chief audit executive
• Reviewed the annual salary increases of the company secretary and chief audit executive
• Reviewed the non-executive director fees with the assistance of an independent service provider
• Considered and reviewed the impact of Covid-19 on the remuneration of employees
• Considered and recommended the company’s Total Incentive Plan Balanced Scorecard for FY21 for board approval
|
Member
|
Committee tenure
|
Mavuso Msimang (Chairperson)*
|
8 years
|
Dr Patrice Motsepe
|
17 years
|
Joaquim Chissano**
|
13 years
|
Modise Motloba
|
10 years
|
Fikile De Buck
|
10 years
|
Vishnu Pillay
|
Appointed 21 November 2019
|
*Appointed as chairperson on 10 May 2018
** Resigned as member on 21 November 2019
|
Primary functions
|
• Ensures that procedures governing board appointments are formal and transparent
• Makes recommendations to the board on all new board appointments
• Reviews succession planning for directors and other members of the executive team and oversees the board’s self-assessment process
|
Key activities and actions in FY20
|
• Reviewed succession planning for directors and other members of the executive team and oversaw the board’s self-assessment process
• Reviewed and recommended for re-election directors who retire by rotation in terms of the company’s memorandum of incorporation
• Reviewed and made recommendations on the composition, structure and size of the board and board committees, in line with the board’s policy on gender and race diversity
• Considered the positions of the chairman and the deputy chairperson of the board and the lead independent director and made recommendations to the board
• Reviewed and recommended the independence of non-executive directors (especially independent non-executives serving on the board for longer than nine years)
• Reviewed and recommended immediate and long-term succession plans for the board, the chairman of the board, the chief executive officer, executive management and the company secretary
• Considered the appointment of the financial director and the group company secretary and made recommendations to the board
• Considered the programme in place for the professional development of directors and regular briefings on legal and corporate governance developments, risks and changes in the external operating environment of the organisation
• Considered the policy on the promotion of broader diversity at board level, specifically focusing on the promotion of the diversity attributes of gender, race, culture, age, field of knowledge, skills and experience
|
Element
|
|
Description
|
|
Guaranteed pay
|
Guaranteed pay excludes short- and long-term incentives. To compete effectively for skills in a challenging employment market, we identify the target market to use in benchmarking guaranteed pay. This target market includes organisations or companies that employ similar skills sets to those we require. Comparisons are made predominantly within the mining sector to ensure that Harmony remains competitive. The median of the target market is used as the basis of our pay ranges.
|
||
Participation factor
|
Employee
|
% guaranteed pay
|
|
Chief executive officer
|
250%
|
||
Chief financial officer, other executive directors and prescribed officers
|
230%
|
|
Scorecard component
|
Group
(%)
|
South Africa operations
(%)
|
South-East Asia operations
(%)
|
Shareholder value
|
Total shareholder return (absolute)
|
8.34
|
6.67
|
6.67
|
Total shareholder return (relative to JSE Gold Index)
|
8.33
|
6.67
|
6.67
|
|
Total shareholder return (relative to FTSE Gold Mines Index)
|
8.33
|
6.66
|
6.66
|
|
Financial and operational
|
Production
|
20
|
35
|
35
|
Total production cost (South Africa operations)
|
12
|
20
|
-
|
|
All-in sustaining cost per kg (South-east Asia operations)
|
3
|
-
|
20
|
|
Free cash flow
|
10
|
-
|
-
|
|
Growth
|
Development
|
-
|
10
|
10
|
Additions to mineral reserves
|
10
|
-
|
-
|
|
Project execution (for future measurement)
|
-
|
-
|
-
|
|
Sustainability
|
Safety performance: lost-time injury frequency rate
|
15
|
15
|
15
|
Environment, social and governance (ESG)
|
5
|
-
|
-
|
|
Total
|
|
100
|
100
|
100
|
•
|
Group: Prescribed officers, executives in the office of the chief executive officer and all off-shaft services operational managers (South Africa)
|
•
|
South Africa operations: Operational executive managers and all on-shaft operational managers
|
•
|
South-East Asia operations: Operational executive managers and all operational managers
|
SCORECARD COMPONENTS:
Total shareholder return
Shareholder value is measured as total shareholder return over a trailing three-year period (measurements are generally taken at the end of August). It comprises two components:
• Absolute performance: which takes into account:
• The value of the growth in the company’s share price
• The value of dividends paid
• Over the measurement period, compared to the company’s cost of equity target
• Relative performance of the company compared to that of the JSE Gold Index and the FTSE Gold Mines Index
over the measurement period
Production
Means total gold production against the board approved business plan for the year.
Total production cost
Means total cash operating cost and total capital expenditure for the year.
All-in-sustaining cost per kilogram (South-East Asia)
Means all-in-sustaining costs. For purposes of calculating “all-in-sustaining costs”, “operating cost” is used as a base and all costs related to sustaining production are incorporated. This includes all sustaining capital expenditure, deferred stripping, overhead costs associated with corporate office structures and services that support operations, local economic development cost and net rehabilitation costs. It excludes the non-cash share based payment charge. To arrive at the all-in-sustaining cost per unit, the sum of these cost metrics is divided by the kilograms of gold sold.
Free cash flow
Means cash flow generated by operations adjusted for exploration capital, dividends and the effect of commodity price and exchange rate changes in excess of 10% (higher or lower).
Development
Development is measured against the board-approved business plan of ongoing capital development - the development of reef and waste metres (South Africa) and waste tonnes (South-East Asia) for the financial year.
Addition to mineral reserves
Addition to mineral reserves through acquisitions and major capital projects is calculated for the financial year.
Safety performance: Lost-time injury frequency rate
The lost-time injury frequency rate will be measured against the board-approved plan.
Environment, social and governance (ESG)
ESG will be measured on the basis of continued inclusion in the FTSE4Good Index as verified by FTSE Russell.
|
•
|
50% (fifty percent) of the shares which will vest to a prescribed officer shall, immediately prior to the applicable vesting date, be automatically locked up on the terms and in accordance with the minimum shareholding requirement
|
•
|
the lock-up shall apply for as long as the relevant target minimum shareholding requirement applicable to the prescribed officer has not been met
|
•
|
a prescribed officer may elect to voluntarily lock up shares that vest in terms of the 2006 share plan in order to meet his target minimum shareholding requirement
|
•
|
once the relevant target minimum shareholding requirement has been met, any deferred shares which subsequently vest in and are settled to a prescribed officer shall vest and be settled in accordance with the terms of the deferred share plan
|
•
|
a prescribed officer may elect to voluntarily lock up shares that vest in terms of the 2006 share plan or the deferred share plan even if it results in the lock-up of shares being in excess of the target minimum shareholding requirement - if the locked-up shares exceed the target minimum shareholding requirement, the excess shares will remain in lock-up until the next vesting date (in terms of any relevant Harmony share incentive plans applicable at the time) at which point the excess shares will be released from lock-up and settled in accordance with the terms of the deferred share plan
|
•
|
a prescribed officer must communicate his election to voluntarily lock up his shares that vest in terms of the 2006 share plan or the deferred share plan before the relevant vesting date
|
•
|
exercise all voting rights in respect of such shares
|
•
|
receive all distributions payable in respect of such shares
|
AVERAGE MONTHLY WAGES AND BENEFITS
|
|||
CATEGORY 4-8 EMPLOYEES
|
|||
FY20 policy*
|
|||
Total remuneration
|
Category 4 (%)
|
Category 8 (%)
|
|
Fixed earnings
|
61
|
59
|
|
Company benefits
|
12
|
11
|
|
Guaranteed pay
|
73
|
70
|
|
Variable income
|
27
|
30
|
|
Total remuneration
|
100
|
100
|
|
Each component includes the following:
Fixed earning: Basic pay, service increment, 13th cheque, living out allowance
Variable income: Average overtime, shift allowance, average bonus, meal allowance, Unemployment Insurance Fund/skills development levy, insurance benefit
Company benefits: Employer provident/pension fund and medical aid
|
•
|
there is reasonable evidence of misbehaviour or material error by a prescribed officer or executive manager (as the case may be) or
|
•
|
the financial performance of the group, the company, the employer company or the relevant business unit for any financial year, used to determine an award, have subsequently appeared to be materially inaccurate or
|
•
|
the group, the company, the employer company or the relevant business unit suffers a material downturn in its financial performance for which the prescribed officer or executive manager (as the case may be) can be seen to have some liability or
|
•
|
the group, the company, the employer company or the relevant business unit suffers a material failure of risk management for which the prescribed officer or executive manager (as the case may be) can be seen to have some liability or in any other circumstances if the remuneration committee determines that it is reasonable to subject the awards of one or more prescribed officers or executive managers (as the case may be) to reduction or forfeiture
|
|
Fixed earnings (R)
|
|
Company benefits (R)
|
|
Variable income (R)
|
|
Total per month (R)
|
|
Category 4 underground employee (general worker)
|
13 468
|
|
2 720
|
|
5 897
|
|
22 085
|
|
Category 8 underground employee (team leader)
|
17 525
|
|
3 280
|
|
8 753
|
|
29 558
|
|
|
Salary and benefits
|
|
Retirement savings and contributions
|
|
Total Incentive Cash Portion Accrued
|
|
Total Incentive Deferred Share Portion Accrued
|
|
Total Single Figure of Remuneration
|
|
Less: Amount accrued not settled in FY20
|
|
Plus: Amount of previous accruals settled in FY20
|
|
Total Cash Remuneration
|
|
Executive directors
|
|
|
|
|
|
|
|
|
||||||||
PW Steenkamp
|
8 034 124
|
|
1 453 961
|
|
6 192 246
|
|
9 288 369
|
|
24 968 700
|
|
(15 480 616
|
)
|
2 433 227
|
|
11 921 311
|
|
F Abbott 1
|
5 677 957
|
|
668 000
|
|
3 370 779
|
|
5 056 169
|
|
14 772 905
|
|
(8 426 948
|
)
|
1 438 036
|
|
7 783 993
|
|
BP Lekubo 2
|
1 704 528
|
|
132 252
|
|
3 754 244
|
|
5 631 366
|
|
11 222 391
|
|
(9 385 610
|
)
|
—
|
|
1 836 781
|
|
HE Mashego
|
4 148 738
|
|
614 024
|
|
2 747 848
|
|
4 121 772
|
|
11 632 382
|
|
(6 869 620
|
)
|
1 037 758
|
|
5 800 520
|
|
Prescribed officers
|
|
|
|
|
|
|
|
|
||||||||
B Nel
|
4 544 176
|
|
790 819
|
|
2 774 704
|
|
4 162 057
|
|
12 271 756
|
|
(6 936 761
|
)
|
1 030 833
|
|
6 365 828
|
|
P Tobias
|
4 699 062
|
|
667 460
|
|
3 204 488
|
|
4 806 731
|
|
13 377 741
|
|
(8 011 219
|
)
|
1 210 213
|
|
6 576 736
|
|
J van Heerden 3
|
8 294 000
|
|
261 000
|
|
4 004 670
|
|
6 007 005
|
|
18 566 676
|
|
(10 011 676
|
)
|
2 003 000
|
|
10 558 000
|
|
1 Retired 30 September 2020
2 Appointed financial director 3 March 2020
3 Salary is paid in AU$ and is influenced by the movement in the exchange rate
|
|
Share Award
|
Award Date
|
Vesting Date
|
Award Price R
|
|
Opening
|
Awarded
|
Number Forfeited
|
Settled
|
Closing
|
Cash on Settlement R
|
Year-end Fair Value R
|
|
Executive directors
|
|
|
|
|
|
|
|
|
|
|
|||
Peter Steenkamp
|
Performance Shares
|
|
|
|
|
|
|
|
|
|
|
||
|
2016 Performance Shares
|
Nov-16
|
Nov-19
|
32.12
|
|
420 423
|
|
420 423
|
|
|
|
0
|
|
|
2017 Performance Shares
|
Nov-17
|
Nov-20
|
24
|
|
596 427
|
|
|
|
596 427
|
|
34 527 159
|
|
|
Deferred Shares
|
|
|
|
|
|
|
|
|
|
|
||
|
2019 Deferred Shares tranche 1
|
Sep-19
|
Sep-20
|
46.89
|
|
|
15 567
|
|
|
15 567
|
|
901 174
|
|
|
2019 Deferred Shares tranche 2
|
Sep-19
|
Sep-21
|
46.89
|
|
|
15 567
|
|
|
15 567
|
|
901 174
|
|
|
2019 Deferred Shares tranche 3
|
Sep-19
|
Sep-22
|
46.89
|
|
|
15 568
|
|
|
15 568
|
|
901 232
|
|
|
2019 Deferred Shares tranche 4
|
Sep-19
|
Sep-23
|
46.89
|
|
|
15 568
|
|
|
15 568
|
|
901 232
|
|
|
2019 Deferred Shares tranche 5
|
Sep-19
|
Sep-24
|
46.89
|
|
|
15 568
|
|
|
15 568
|
|
901 232
|
|
|
Vested Awards Pledged towards the minimum shareholding requirement
|
|
|
|
|
|
|
|
|
|
|
||
|
2016 Performance Shares Pledge
|
|
|
|
512 000
|
|
|
|
512 000
|
|
29 639 680
|
|
|
Total
|
|
|
|
|
1 528 850
|
77 838
|
420 423
|
0
|
1 186 265
|
0
|
68 672 881
|
|
|
Deferred Shares
|
|
|
|
|
|
|
|
|
|
|
||
|
2019 Deferred Shares tranche 1
|
Sep-19
|
Sep-20
|
46.89
|
|
|
6 595
|
|
|
6 595
|
|
381 785
|
|
|
2019 Deferred Shares tranche 2
|
Sep-19
|
Sep-21
|
46.89
|
|
|
6 595
|
|
|
6 595
|
|
381 785
|
|
|
2019 Deferred Shares tranche 3
|
Sep-19
|
Sep-22
|
46.89
|
|
|
6 595
|
|
|
6 595
|
|
381 785
|
|
|
2019 Deferred Shares tranche 4
|
Sep-19
|
Sep-23
|
46.89
|
|
|
6 595
|
|
|
6 595
|
|
381 785
|
|
|
2019 Deferred Shares tranche 5
|
Sep-19
|
Sep-24
|
46.89
|
|
|
6 596
|
|
|
6 596
|
|
381 842
|
|
|
Vested Awards Pledged towards the minimum shareholding requirement
|
|
|
|
|
|
|
|
|
|
|
||
|
2014 Performance Shares Pledge
|
|
|
|
24 933
|
|
|
|
24 933
|
|
1 443 371
|
|
|
Total
|
|
|
|
|
584 725
|
32 976
|
177 366
|
63 939
|
376 396
|
1 225 247
|
21 789 564
|
|
|
Phillip Tobias
|
Share appreciation rights
|
|
|
|
|
|
|
|
|
|
|
||
|
2014 SARs tranche 1 and 2
|
Nov-14
|
Nov-17
|
18.41
|
|
31 232
|
|
|
31 232
|
|
963 244
|
|
|
|
2014 SARs tranche 3
|
Nov-14
|
Nov-19
|
18.41
|
|
15 618
|
|
|
|
15 618
|
|
616 599
|
|
|
Performance Shares
|
|
|
|
|
|
|
|
|
|
|
||
|
2016 Performance Shares
|
Nov-16
|
Nov-19
|
32.12
|
|
177 366
|
|
177 366
|
|
|
|
0
|
|
|
2017 Performance Shares
|
Nov-17
|
Nov-20
|
24
|
|
324 720
|
|
|
|
324 720
|
|
18 798 041
|
|
|
Deferred Shares
|
|
|
|
|
|
|
|
|
|
|
||
|
2019 Deferred Shares tranche 1
|
Sep-19
|
Sep-20
|
46.89
|
|
|
7 742
|
|
|
7 742
|
|
448 184
|
|
|
2019 Deferred Shares tranche 2
|
Sep-19
|
Sep-21
|
46.89
|
|
|
7 743
|
|
|
7 743
|
|
448 242
|
|
|
2019 Deferred Shares tranche 3
|
Sep-19
|
Sep-22
|
46.89
|
|
|
7 743
|
|
|
7 743
|
|
448 242
|
|
|
2019 Deferred Shares tranche 4
|
Sep-19
|
Sep-23
|
46.89
|
|
|
7 743
|
|
|
7 743
|
|
448 242
|
|
|
2019 Deferred Shares tranche 5
|
Sep-19
|
Sep-24
|
46.89
|
|
|
7 743
|
|
|
7 743
|
|
448 242
|
|
|
Vested Awards Pledged towards the minimum shareholding requirement
|
|
|
|
|
|
|
|
|
|
|
||
|
2014 Performance Shares Pledge
|
|
|
|
31 166
|
|
|
|
31 166
|
|
893 529
|
|
|
Total
|
|
|
|
|
580 102
|
38 714
|
177 366
|
31 232
|
410 218
|
963 244
|
22 549 322
|
|
|
Johannes van Heerden
|
Share appreciation rights
|
|
|
|
|
|
|
|
|
|
|
||
|
2013 SARs tranche 1, 2 and 3
|
Nov-13
|
Nov-18
|
33.18
|
|
38 212
|
|
|
38 212
|
|
595 221
|
|
|
|
2014 SARs tranche 3
|
Nov-14
|
Nov-19
|
18.41
|
|
15 305
|
|
|
15 305
|
|
731 827
|
|
|
|
Performance Shares
|
|
|
|
|
|
|
|
|
|
|
||
|
2016 Performance Shares
|
Nov-16
|
Nov-19
|
32.12
|
|
152 091
|
|
152 091
|
|
|
|
0
|
|
|
2017 Performance Shares
|
Nov-17
|
Nov-20
|
24
|
|
293 554
|
|
|
|
293 554
|
|
16 993 841
|
|
|
Deferred Shares
|
|
|
|
|
|
|
|
|
|
|
||
|
2019 Deferred Shares tranche 1
|
Sep-19
|
Sep-20
|
46.89
|
|
|
12 313
|
|
|
12 313
|
|
712 800
|
|
|
2019 Deferred Shares tranche 2
|
Sep-19
|
Sep-21
|
46.89
|
|
|
12 313
|
|
|
12 313
|
|
712 800
|
|
|
2019 Deferred Shares tranche 3
|
Sep-19
|
Sep-22
|
46.89
|
|
|
12 313
|
|
|
12 313
|
|
712 800
|
|
|
2019 Deferred Shares tranche 4
|
Sep-19
|
Sep-23
|
46.89
|
|
|
12 313
|
|
|
12 313
|
|
712 800
|
|
|
2019 Deferred Shares tranche 5
|
Sep-19
|
Sep-24
|
46.89
|
|
|
12 314
|
|
|
12 314
|
|
712 857
|
|
Total
|
|
|
|
|
499 162
|
61 566
|
152 091
|
53 517
|
355 120
|
1 327 048
|
20 557 897
|
|
Director (R000)
|
Note
|
1 2020
|
1 2019
|
Dr Patrice Motsepe
|
|
1 377
|
1 365
|
Joachim Chissano
|
|
611
|
570
|
Fikile De Buck
|
|
1 479
|
1 486
|
Ken Dicks 2
|
|
670
|
769
|
Dr Simo Lushaba
|
|
1 205
|
1 153
|
Grathel Motau
|
|
572
|
79
|
Modise Motloba
|
|
1 592
|
1 406
|
Mavuso Msimang
|
|
822
|
960
|
Karabo Nondumo
|
|
852
|
969
|
Vishnu Pillay
|
|
1 023
|
1 096
|
Given Sibiya
|
|
669
|
79
|
Max Sisulu 2
|
|
382
|
508
|
John Wetton
|
|
1 033
|
1 031
|
André Wilkens
|
|
933
|
971
|
Total
|
|
13 220
|
12 442
|
Notes
1 Directors’ remuneration excludes value-added tax
2 Resigned 30 September 2020
|
|
|
|
•
|
Shareholders were consulted extensively about the single incentive approach before it was adopted and an overwhelming majority (99.3%) voted to approve the Plan
|
•
|
The longer-term performance alignment is achieved by the 60% portion of the single incentive that is delivered in shares over a five year vesting period. This point is acknowledged by Glass Lewis
|
•
|
Our minimum shareholding requirements policy further enhances the long term nature and shareholder alignment of the executive Reward Policy
|
•
|
The long-term incentive awards are legacy awards, which will no longer be awarded in the future, and their performance conditions and targets were disclosed in the policy section of previous reports
|
•
|
Considerable detail is already provided on the measures and the weightings for the Deferred Incentive and the percentage achievement of the actuals vs the targets
|
•
|
to ensure the integrity of financial statements and related reporting, that they comply with IFRS and fairly represent the financial position of the group, the company and our operations
|
•
|
to monitor internal controls, the internal audit function, combined assurance, and matters pertaining to the external auditors
|
•
|
to oversee corporate governance, particularly in relation to legislative and regulatory compliance
|
•
|
to oversee the management of risk, as well cyber security
|
•
|
Integrated Annual Report and its related FY20 suite of reports
|
•
|
Mineral Resource and Mineral Reserve statement
|
•
|
Annual financial statements and accounting practices
|
•
|
Annual report filed on Form 20-F with the United States Securities and Exchange Commission
|
•
|
Ensuring that the group’s internal audit function is independent and has the necessary resources, standing and authority within the group to enable it to perform its duties
|
•
|
Overseeing co-operation between internal audit and the external auditors, and serving as a link between the board of directors and these functions
|
•
|
Enabling an effective internal control environment
|
•
|
Supporting the integrity of information used for internal decision-making by management, the board and its committees
|
•
|
Supporting the integrity of external reports
|
•
|
Minimising assurance fatigue
|
•
|
World Gold Council Responsible Gold Mining Principles
|
•
|
Reporting on the Task Force on Climate-related Financial Disclosures
|
•
|
Sustainable Development Goals
|
Harmony Gold Mining Company Limited Page
|
Page
|
|
|
Report of the Independent Registered Public Accounting Firm
|
|
Group Income Statement for the years ended 30 June 2020, 2019 and 2018
|
|
Group Statement of Comprehensive Income for the years ended 30 June 2020, 2019 and 2018
|
|
Group Balance Sheet at 30 June 2020 and 2019
|
|
Group Statement of Changes in Shareholders’ Equity for the years ended 30 June 2020, 2019 and 2018
|
|
Group Cash Flow Statement for the years ended 30 June 2020, 2019 and 2018
|
|
Notes to the Group Financial Statements
|
|
|
SA Rand
|
|||||
Figures in million
|
Notes
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|
|||
Revenue
|
5
|
29 245
|
|
26 912
|
|
20 452
|
|
Cost of sales
|
6
|
(25 908
|
)
|
(28 869
|
)
|
(23 596
|
)
|
|
|
|
|
|
|||
Production costs
|
|
(22 048
|
)
|
(20 324
|
)
|
(15 084
|
)
|
Amortisation and depreciation
|
|
(3 508
|
)
|
(4 054
|
)
|
(2 570
|
)
|
Impairment of assets
|
|
—
|
|
(3 898
|
)
|
(5 336
|
)
|
Other items
|
|
(352
|
)
|
(593
|
)
|
(606
|
)
|
|
|
|
|
|
|||
Gross profit/(loss)
|
|
3 337
|
|
(1 957
|
)
|
(3 144
|
)
|
Corporate, administration and other expenditure
|
|
(611
|
)
|
(731
|
)
|
(813
|
)
|
Exploration expenditure
|
|
(205
|
)
|
(148
|
)
|
(135
|
)
|
Gains/(losses) on derivatives
|
18
|
(1 678
|
)
|
484
|
|
99
|
|
Other operating expenses
|
7
|
(1 201
|
)
|
(186
|
)
|
(667
|
)
|
|
|
|
|
|
|||
Operating loss
|
|
(358
|
)
|
(2 538
|
)
|
(4 660
|
)
|
Share of profits from associate
|
20
|
94
|
|
59
|
|
38
|
|
Acquisition-related costs
|
12
|
(45
|
)
|
—
|
|
(98
|
)
|
Investment income
|
8
|
375
|
|
308
|
|
343
|
|
Finance costs
|
9
|
(661
|
)
|
(575
|
)
|
(330
|
)
|
|
|
|
|
|
|||
Loss before taxation
|
|
(595
|
)
|
(2 746
|
)
|
(4 707
|
)
|
Taxation
|
10
|
(255
|
)
|
139
|
|
234
|
|
|
|
|
|
|
|||
Net loss for the year
|
|
(850
|
)
|
(2 607
|
)
|
(4 473
|
)
|
|
|
|
|
|
|||
Attributable to:
|
|
|
|
|
|||
Non-controlling interest
|
|
28
|
|
—
|
|
—
|
|
Owners of the parent
|
|
(878
|
)
|
(2 607
|
)
|
(4 473
|
)
|
|
|
|
|
|
|||
Loss per ordinary share (cents)
|
|
|
|
|
|||
Total loss
|
11
|
(164
|
)
|
(498
|
)
|
(1 003
|
)
|
|
|
|
|
|
|||
Diluted loss per ordinary share (cents)
|
|
|
|
|
|||
Total diluted loss
|
11
|
(166
|
)
|
(500
|
)
|
(1 004
|
)
|
|
|
SA Rand
|
|||||
Figures in million
|
Notes
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|
|||
Net loss for the year
|
|
(850
|
)
|
(2 607
|
)
|
(4 473
|
)
|
Other comprehensive income for the year, net of income tax
|
|
(1 958
|
)
|
(684
|
)
|
(660
|
)
|
|
|
|
|
|
|||
Items that may be reclassified subsequently to profit or loss
|
24
|
(1 998
|
)
|
(677
|
)
|
(647
|
)
|
|
|
|
|
|
|||
Foreign exchange translation gain/(loss)
|
|
1 199
|
|
(50
|
)
|
83
|
|
Remeasurement of gold hedging contracts
|
|
(3 197
|
)
|
(627
|
)
|
(730
|
)
|
|
|
|
|
|
|||
Items that will not be reclassified to profit or loss:
|
24
|
40
|
|
(7
|
)
|
(13
|
)
|
Gain on assets measured at fair value through other comprehensive income
|
|
25
|
|
—
|
|
—
|
|
Remeasurement of retirement benefit obligation
|
|
|
|
|
|||
Actuarial gain/(loss) recognised during the year
|
|
17
|
|
(7
|
)
|
(11
|
)
|
Deferred taxation thereon
|
|
(2
|
)
|
—
|
|
(2
|
)
|
|
|
|
|
|
|||
Total comprehensive income for the year
|
|
(2 808
|
)
|
(3 291
|
)
|
(5 133
|
)
|
|
|
|
|
|
|||
Attributable to:
|
|
|
|
|
|||
Non-controlling interest
|
|
12
|
|
—
|
|
—
|
|
Owners of the parent
|
|
(2 820
|
)
|
(3 291
|
)
|
(5 133
|
)
|
|
|
SA Rand
|
|||
Figures in million
|
Notes
|
At 30 June
2020 |
|
At 30 June
2019 |
|
|
|
|
|
||
ASSETS
|
|
|
|
||
|
|
|
|
||
Non-current assets
|
|
|
|
||
|
|
|
|
||
Property, plant and equipment
|
13
|
29 186
|
|
27 749
|
|
Intangible assets
|
14
|
536
|
|
533
|
|
Restricted cash
|
15
|
107
|
|
92
|
|
Restricted investments
|
16
|
3 535
|
|
3 301
|
|
Investments in associates
|
20
|
146
|
|
110
|
|
Inventories
|
22
|
47
|
|
43
|
|
Deferred tax assets
|
10
|
531
|
|
1
|
|
Other non-current assets
|
17
|
388
|
|
333
|
|
Derivative financial assets
|
18
|
50
|
|
197
|
|
|
|
|
|
||
Total non-current assets
|
|
34 526
|
|
32 359
|
|
|
|
|
|
||
Current assets
|
|
|
|
||
|
|
|
|
||
Inventories
|
22
|
2 421
|
|
1 967
|
|
Restricted cash
|
15
|
62
|
|
44
|
|
Trade and other receivables
|
19
|
1 308
|
|
1 064
|
|
Derivative financial assets
|
18
|
18
|
|
309
|
|
Cash and cash equivalents
|
|
6 357
|
|
993
|
|
|
|
|
|
||
Total current assets
|
|
10 166
|
|
4 377
|
|
Total assets
|
|
44 692
|
|
36 736
|
|
|
|
|
|
||
EQUITY AND LIABILITIES
|
|
|
|
||
|
|
|
|
||
Share capital and reserves
|
|
|
|
||
|
|
|
|
||
Attributable to equity holders of the parent company
|
|
23 371
|
|
22 614
|
|
Share capital and premium
|
23
|
32 937
|
|
29 551
|
|
Other reserves
|
24
|
3 017
|
|
4 773
|
|
Accumulated loss
|
|
(12 583
|
)
|
(11 710
|
)
|
Non-controlling interest
|
|
4
|
|
—
|
|
|
|
|
|
||
Total equity
|
|
23 375
|
|
22 614
|
|
|
|
|
|
||
Non-current liabilities
|
|
|
|
||
|
|
|
|
||
Deferred tax liabilities
|
10
|
996
|
|
688
|
|
Provision for environmental rehabilitation
|
25
|
3 408
|
|
3 054
|
|
Provision for silicosis settlement
|
26
|
717
|
|
942
|
|
Retirement benefit obligation
|
27
|
193
|
|
201
|
|
Borrowings
|
30
|
7 463
|
|
5 826
|
|
Other non-current liabilities
|
29
|
101
|
|
5
|
|
Derivative financial liabilities
|
18
|
879
|
|
172
|
|
|
|
|
|
||
Total non-current liabilities
|
|
13 757
|
|
10 888
|
|
|
|
|
|
||
Current liabilities
|
|
|
|
||
|
|
|
|
||
Provision for silicosis settlement
|
26
|
175
|
|
—
|
|
Borrowings
|
30
|
255
|
|
89
|
|
Trade and other payables
|
31
|
3 006
|
|
2 875
|
|
Derivative financial liabilities
|
18
|
4 124
|
|
270
|
|
|
|
|
|
||
Total current liabilities
|
|
7 560
|
|
3 234
|
|
Total equity and liabilities
|
|
44 692
|
|
36 736
|
|
|
Number of ordinary shares issued
|
|
Share capital and premium
|
|
Accumulated loss
|
|
Other reserves
|
|
Non controlling interest
|
|
Total
|
|
|
|
|
|
|
|
|
||||||
Notes
|
23
|
|
23
|
|
|
24
|
|
34
|
|
|
||
|
|
|
|
|
|
|
||||||
Figures in million (SA Rand)
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Balance – 30 June 2017
|
439 957 199
|
|
28 336
|
|
(4 486
|
)
|
5 441
|
|
—
|
|
29 291
|
|
|
|
|
|
|
|
|
||||||
Issue of shares
|
|
|
|
|
|
|
||||||
– Shares issued and fully paid
|
55 055 050
|
|
1 004
|
|
—
|
|
—
|
|
—
|
|
1 004
|
|
– Exercise of employee share options
|
5 239 502
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Share-based payments
|
—
|
|
—
|
|
—
|
|
374
|
|
—
|
|
374
|
|
Net loss for the year
|
—
|
|
—
|
|
(4 473
|
)
|
—
|
|
—
|
|
(4 473
|
)
|
Other comprehensive income for the year
|
—
|
|
—
|
|
—
|
|
(660
|
)
|
—
|
|
(660
|
)
|
Reclassification from other reserves
|
—
|
|
—
|
|
10
|
|
(10
|
)
|
—
|
|
—
|
|
Dividends paid
|
—
|
|
—
|
|
(154
|
)
|
—
|
|
—
|
|
(154
|
)
|
|
|
|
|
|
|
|
||||||
Balance – 30 June 2018
|
500 251 751
|
|
29 340
|
|
(9 103
|
)
|
5 145
|
|
—
|
|
25 382
|
|
|
|
|
|
|
|
|
||||||
Impact of adopting IFRS 9
|
—
|
|
—
|
|
—
|
|
82
|
|
—
|
|
82
|
|
|
|
|
|
|
|
|
||||||
Re-presented opening balance - 1 July 2018
|
500 251 751
|
|
29 340
|
|
(9 103
|
)
|
5 227
|
|
—
|
|
25 464
|
|
|
|
|
|
|
|
|
||||||
Issue of shares
|
|
|
|
|
|
|
||||||
– Shares issued and fully paid
|
11 032 623
|
|
211
|
|
—
|
|
—
|
|
—
|
|
211
|
|
– Exercise of employee share options
|
21 856 821
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
– Harmony ESOP Trust
|
6 700 000
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Share-based payments
|
—
|
|
—
|
|
—
|
|
230
|
|
—
|
|
230
|
|
Net loss for the year
|
—
|
|
—
|
|
(2 607
|
)
|
—
|
|
—
|
|
(2 607
|
)
|
Other comprehensive income for the year
|
—
|
|
—
|
|
—
|
|
(684
|
)
|
—
|
|
(684
|
)
|
|
|
|
|
|
|
|
||||||
Balance – 30 June 2019
|
539 841 195
|
|
29 551
|
|
(11 710
|
)
|
4 773
|
|
—
|
|
22 614
|
|
|
|
|
|
|
|
|
||||||
Issue of shares
|
|
|
|
|
|
|
||||||
– Shares issued and fully paid
|
60 278 260
|
|
3 386
|
|
—
|
|
—
|
|
—
|
|
3 386
|
|
– Exercise of employee share options
|
3 023 251
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Share-based payments
|
—
|
|
—
|
|
—
|
|
186
|
|
—
|
|
186
|
|
Recognition of non-controlling interest
|
—
|
|
—
|
|
5
|
|
—
|
|
(5
|
)
|
—
|
|
Net loss for the year
|
—
|
|
—
|
|
(878
|
)
|
—
|
|
28
|
|
(850
|
)
|
Other comprehensive income for the year
|
—
|
|
—
|
|
—
|
|
(1 942
|
)
|
(16
|
)
|
(1 958
|
)
|
Dividends paid
|
—
|
|
—
|
|
—
|
|
—
|
|
(3
|
)
|
(3
|
)
|
|
|
|
|
|
|
|
||||||
Balance – 30 June 2020
|
603 142 706
|
|
32 937
|
|
(12 583
|
)
|
3 017
|
|
4
|
|
23 375
|
|
|
|
SA Rand
|
|||||
Figures in million
|
Notes
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|
|||
CASH FLOW FROM OPERATING ACTIVITIES
|
|
|
|
|
|||
|
|
|
|
|
|||
Cash generated by operations
|
32
|
5 031
|
|
5 052
|
|
4 289
|
|
Interest received
|
|
86
|
|
69
|
|
82
|
|
Interest paid
|
|
(370
|
)
|
(387
|
)
|
(180
|
)
|
Income and mining taxes paid
|
|
(24
|
)
|
(55
|
)
|
(307
|
)
|
|
|
|
|
|
|||
Cash generated by operating activities
|
|
4 723
|
|
4 679
|
|
3 884
|
|
|
|
|
|
|
|||
CASH FLOW FROM INVESTING ACTIVITIES
|
|
|
|
|
|||
|
|
|
|
|
|||
Increase in restricted cash
|
|
(21
|
)
|
(15
|
)
|
(32
|
)
|
Decrease in amounts invested in restricted investments
|
16
|
5
|
|
187
|
|
—
|
|
Acquisition of Moab Khotsong
|
12
|
—
|
|
—
|
|
(3 474
|
)
|
Additions to intangible assets
|
14
|
(8
|
)
|
(1
|
)
|
(9
|
)
|
Redemption of preference shares from associates
|
20
|
59
|
|
32
|
|
—
|
|
Capital distributions from investments
|
17
|
7
|
|
30
|
|
—
|
|
Proceeds from disposal of property, plant and equipment
|
|
2
|
|
5
|
|
2
|
|
Additions to property, plant and equipment
|
|
(3 602
|
)
|
(5 035
|
)
|
(4 562
|
)
|
|
|
|
|
|
|||
Cash utilised by investing activities
|
|
(3 558
|
)
|
(4 797
|
)
|
(8 075
|
)
|
|
|
|
|
|
|||
CASH FLOW FROM FINANCING ACTIVITIES
|
|
|
|
|
|||
|
|
|
|
|
|||
Borrowings raised
|
30
|
6 541
|
|
1 522
|
|
6 937
|
|
Borrowings repaid
|
30
|
(5 661
|
)
|
(1 353
|
)
|
(4 063
|
)
|
Proceeds from the issue of shares
|
23
|
3 466
|
|
211
|
|
1 003
|
|
Dividends paid
|
11
|
(3
|
)
|
—
|
|
(154
|
)
|
Lease payments
|
28
|
(38
|
)
|
—
|
|
—
|
|
|
|
|
|
|
|||
Cash generated from financing activities
|
|
4 305
|
|
380
|
|
3 723
|
|
Foreign currency translation adjustments
|
|
(106
|
)
|
25
|
|
(72
|
)
|
Net increase/(decrease) in cash and cash equivalents
|
|
5 364
|
|
287
|
|
(540
|
)
|
Cash and cash equivalents - beginning of year
|
|
993
|
|
706
|
|
1 246
|
|
|
|
|
|
|
|||
Cash and cash equivalents - end of year
|
|
6 357
|
|
993
|
|
706
|
|
1
|
GENERAL INFORMATION
|
2
|
ACCOUNTING POLICIES
|
•
|
The group has elected to recognise the right-of-use assets at an amount equal to the lease liability at 1 July 2019 together with the ability to set off deferred tax assets and liabilities resulting from the leased assets and liabilities. The lease liabilities were measured at the present value of the remaining lease payments at 1 July 2019 and discounted using the relevant incremental borrowing rate; and
|
•
|
The accounting for operating leases with a remaining lease term of less than 12 months as at date of adoption have been classified as short-term leases and have not been recorded on the balance sheet.
|
2
|
ACCOUNTING POLICIES continued
|
•
|
The low value lease exemption - the group has elected to take the low value exemption with a value of R50 000 for the individual leased asset value and also applied its accounting policy on capitalisation of assets based on IAS 1 materiality assessment;
|
•
|
The short-term lease exemption - leases with a duration of less than a year will be expensed in the income statement on a straight-line basis;
|
•
|
Use of hindsight, such as in determining the lease term if the contract contains options to extend or terminate the lease where appropriate;
|
•
|
Non-lease components - the group has applied the practical expedient not to separate non-lease components from lease components, and instead account for each lease component and any associated non-lease components as a single lease component for the classes of underlying asset where it is appropriate to do so; and
|
•
|
Exclusion of initial direct costs for the measurement of the right-of-use asset at the date of initial application.
|
2
|
ACCOUNTING POLICIES continued
|
•
|
Confirm that a business must include inputs and a process, and clarified that: (i) the process must be substantive and (ii) the inputs and process must together significantly contribute to creating outputs;
|
•
|
Narrow the definitions of a business by focusing the definition of outputs on goods and services provided to customers and other income from ordinary activities, rather than on providing dividends or other economic benefits directly to investors or lowering costs; and
|
•
|
Add a test that makes it easier to conclude that a company has acquired a group of assets, rather than a business, if the value of the assets acquired is substantially all concentrated in a single asset or group of similar assets.
|
•
|
The highly probable requirement;
|
•
|
Prospective assessments; and
|
•
|
Separately identifiable risk components.
|
2
|
ACCOUNTING POLICIES continued
|
2.1
|
Consolidation
|
2
|
ACCOUNTING POLICIES continued
|
2.1
|
Consolidation continued
|
2.2
|
Foreign currency translation
|
2
|
ACCOUNTING POLICIES continued
|
2.2
|
Foreign currency translation continued
|
•
|
Assets and liabilities for each balance sheet presented are translated at the closing rate at the date of that balance sheet while equity items are translated at historic rates;
|
•
|
Income and expenses for each income statement are translated at average exchange rates (the rate on the date of the transaction is used if the average is not a reasonable rate for the translation of the transaction);
|
•
|
All resulting exchange differences are recognised as a separate component of other comprehensive income.
|
2.3
|
Derivatives and hedging activities
|
2
|
ACCOUNTING POLICIES continued
|
2.4
|
Exploration expenditure
|
2.5
|
Impairment of non-financial assets
|
2
|
ACCOUNTING POLICIES continued
|
2.5
|
Impairment of non-financial assets continued
|
2.6
|
Operating profit
|
3
|
CRITICAL ACCOUNTING ESTIMATES AND JUDGEMENTS
|
•
|
Estimate of taxation – note 10;
|
•
|
Recognition of deferred tax asset – note 10;
|
•
|
Gold mineral reserves and resources – note 13;
|
•
|
Production start date – note 13;
|
•
|
Stripping activities – note 13;
|
•
|
Impairment of assets – note 13;
|
•
|
Depreciation of property plant and equipment – note 13;
|
•
|
Exploration and evaluation assets – note 13;
|
•
|
Impairment of goodwill – note 14;
|
•
|
Valuation of interest in associate – note 20;
|
•
|
Provision for stock obsolescence - note 22;
|
•
|
Estimate of exposure and liabilities with regard to rehabilitation costs – note 25;
|
•
|
Estimate of provision for silicosis settlement – note 26;
|
•
|
Estimate of employee benefit liabilities – note 27;
|
•
|
Leases - note 28;
|
•
|
Fair value of share-based payments – note 34;
|
•
|
Assessment of contingencies – note 36; and
|
•
|
Valuation of derivative financial instruments – note 37.
|
4.
|
COVID-19 IMPACT
|
4.
|
COVID-19 IMPACT continued
|
•
|
a risk awareness campaign through various communication channels;
|
•
|
identification of high-risk employees;
|
•
|
the compulsory use of preventative personal protection equipment, which includes face masks, in designated areas in the workplace, increased hand washing and social distancing;
|
•
|
the sanitation of common areas and surfaces on a regular basis during the day;
|
•
|
placement of hand sanitisers and additional hand washing stations at the surface areas of the mines;
|
•
|
group meetings are avoided and where possible, meetings are conducted virtually in the form of tele-conferences or video-conferences;
|
•
|
implementation of work from home practices for central services and corporate office;
|
•
|
implementation of a comprehensive employee wellness monitoring and support programme, which includes a COVID-19 hotline.
|
4.
|
COVID-19 IMPACT continued
|
4.
|
COVID-19 IMPACT continued
|
5
|
REVENUE
|
|
|
1
|
Derived from the Hidden Valley operation in Papua New Guinea.
|
2
|
Derived from the Moab Khotsong operation.
|
3
|
Relates to the realised effective portion of the hedge-accounted gold derivatives. Refer to note 18 for further information.
|
4
|
A geographical analysis of revenue is provided in the segment report in note 39.
|
• Gold: South Africa
|
Gold is delivered and certificate of sale is issued.
|
• Gold and silver: Hidden Valley
|
For sales up to 13 February 2019: metal is delivered and metal account credited by the customer.
|
|
Sales from 14 February 2019 onwards: metal is collected from Hidden Valley and a confirmation of collection is sent to and accepted by the customer.
|
• Uranium
|
Confirmation of transfer is issued.
|
5
|
REVENUE continued
|
1
|
The gold price includes the realised effective portion of the hedge-accounted gold derivatives.
|
6
|
COST OF SALES
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Production costs (a)
|
22 048
|
|
20 324
|
|
15 084
|
|
Amortisation and depreciation of mining assets (b)
|
3 409
|
|
3 961
|
|
2 468
|
|
Amortisation and depreciation of assets other than mining assets (b)
|
99
|
|
93
|
|
102
|
|
Rehabilitation expenditure (c)
|
47
|
|
33
|
|
67
|
|
Care and maintenance costs of restructured shafts
|
146
|
|
134
|
|
128
|
|
Employment termination and restructuring costs (d)
|
40
|
|
242
|
|
208
|
|
Share-based payments (e)
|
130
|
|
155
|
|
244
|
|
Impairment of assets (f)
|
—
|
|
3 898
|
|
5 336
|
|
Other
|
(11
|
)
|
29
|
|
(41
|
)
|
|
|
|
|
|||
Total cost of sales
|
25 908
|
|
28 869
|
|
23 596
|
|
(a)
|
Production costs include mine production and transport and refinery costs, applicable general administrative costs, movement in inventories and ore stockpiles, ongoing environmental rehabilitation costs and transfers for stripping activities. Employee termination costs are included, except for employee termination costs associated with major restructuring and shaft closures, which are separately disclosed.
|
6
|
COST OF SALES continued
|
(a)
|
Production costs continued
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Labour costs, including contractors
|
13 004
|
|
12 715
|
|
9 750
|
|
Consumables
|
5 441
|
|
5 532
|
|
3 418
|
|
Water and electricity
|
3 664
|
|
3 398
|
|
2 551
|
|
Insurance
|
154
|
|
126
|
|
86
|
|
Transportation
|
377
|
|
354
|
|
121
|
|
Change in inventory
|
(70
|
)
|
(166
|
)
|
(211
|
)
|
Capitalisation of mine development costs
|
(1 485
|
)
|
(1 880
|
)
|
(1 552
|
)
|
Stripping activities
|
(675
|
)
|
(1 197
|
)
|
(167
|
)
|
Royalty expense
|
327
|
|
193
|
|
121
|
|
Other
|
1 311
|
|
1 249
|
|
967
|
|
|
|
|
|
|||
Total production costs
|
22 048
|
|
20 324
|
|
15 084
|
|
(b)
|
Lower production volumes during the 2020 year, partially due to the closure of underground mines following the announcement of the South African national lockdown due to COVID-19, impacted on the depreciation recorded and contributed to the decrease year on year. The completion of the mining of Stage 5 at Hidden Valley during the December 2019 quarter also contributed to the decrease. The impairments recognised on certain operations in South Africa during the 2019 year significantly impacted on the base which depreciation is calculated on and the lower carrying values contributed to the lower total compared to the comparative period.
|
(c)
|
For the assumptions used to calculate the rehabilitation costs, refer to note 25. This expense includes the change in estimate for the rehabilitation provision where an asset no longer exists as well as costs related to the rehabilitation process. For 2020, R47 million (2019: R86 million) (2018: R94 million) was spent on rehabilitation in South Africa. Refer to note 25.
|
(d)
|
The employment termination and restructuring expenditure for 2020, 2019 and 2018 relates to the voluntary severance program in place to reduce labour costs.
|
(e)
|
Refer to note 34 for details on the share-based payment schemes implemented by the group.
|
(f)
|
Management performed an assessment for impairment triggers as well as indications of reversal of previously recorded impairment losses at 30 June 2020. Due to the uncertainty of the impact of the COVID-19 pandemic and the South African national lockdown would have on the South African underground operations, as well as the increase in the short-term gold price, the recoverable amounts for these cash-generating units (CGUs) were calculated.
|
6
|
COST OF SALES continued
|
(f)
|
Impairment continued
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Tshepong Operations
|
—
|
|
2 254
|
|
988
|
|
Kusasalethu
|
—
|
|
690
|
|
579
|
|
Target 1
|
—
|
|
312
|
|
699
|
|
Target 3
|
—
|
|
318
|
|
—
|
|
Joel
|
—
|
|
198
|
|
160
|
|
Other mining assets
|
—
|
|
120
|
|
319
|
|
Bambanani
|
—
|
|
6
|
|
—
|
|
Doornkop
|
—
|
|
—
|
|
317
|
|
Unisel
|
—
|
|
—
|
|
487
|
|
Masimong
|
—
|
|
—
|
|
329
|
|
Target North
|
—
|
|
—
|
|
1 458
|
|
|
|
|
|
|||
Total impairment of assets
|
—
|
|
3 898
|
|
5 336
|
|
|
SA Rand
|
|||||
|
Recoverable amount
|
|||||
Figures in million
|
Life-of-Mine plan
|
|
Resource base
|
|
Total
|
|
|
|
|
|
|||
Tshepong Operations
|
|
|
|
|||
The impairment was due to the increased costs to exploit the resource base as well as a lower expected recovered grade. The decrease in the recovery grade is as a result of the change in the dilution factors applied to the outside life of mine resources.
|
3 811
|
|
2 055
|
|
5 866
|
|
Kusasalethu
|
|
|
|
|||
The decrease in grade and increased estimated costs in the resource base resulted in a lower recoverable amount. The decrease in the recovery grade is as a result of the change in the dilution factors applied to the outside life of mine resources.
|
1 297
|
|
—
|
|
1 297
|
|
Target 1
|
|
|
|
|||
The recoverable amount decreased as a result of increased costs and decrease in grade in the resource base together with the estimated impact of carbon tax. The increase in discount rate due to increased risk factors also negatively impacted on the recoverable amount.
|
467
|
|
609
|
|
1 076
|
|
Target 3
|
|
|
|
|||
The operation remained under care and maintenance. A change in valuation method from discounted cash flow model to resource multiple approach reduced the recoverable amount.
|
None
|
|
182
|
|
182
|
|
Joel
|
|
|
|
|||
The increased capital costs in the resource base together with carbon tax negatively impacted the net present value of expected cash flows.
|
765
|
|
87
|
|
852
|
|
Other mining assets
|
|
|
|
|||
The updated life-of-mine plans for the CGUs in Freegold and Avgold resulted in the impairment of other mining assets.
|
335
|
|
None
|
|
335
|
|
Bambanani
|
|
|
|
|||
The impairment of goodwill reduced the carrying amount of intangible assets. As goodwill is not depreciated, it resulted in an impairment as the life of the operation shortens.
|
763
|
|
None
|
|
763
|
|
|
|
|
|
6
|
COST OF SALES continued
|
(f)
|
Impairment continued
|
|
SA Rand
|
|||||
|
Recoverable amount
|
|||||
Figures in million
|
Life-of-Mine plan
|
|
Resource base
|
|
Total
|
|
|
|
|
|
|||
Tshepong Operations
|
|
|
|
|||
The impairment was mainly driven by sensitivity to fluctuations in the gold price. Furthermore the updated life-of-mine for the Tshepong operations presented a marginal decrease in recovered grade.
|
4 279
|
|
3 147
|
|
7 426
|
|
Kusasalethu
|
|
|
|
|||
Kusasalethu's old section of the mine at the operation was excluded in the FY19 life-of-mine plan.
|
1 019
|
|
1 119
|
|
2 138
|
|
Target 1
|
|
|
|
|||
Exploration drilling results during the year pointed towards lower grade estimates within certain blocks that have now been excluded from the life-of-mine plans.
|
471
|
|
746
|
|
1 217
|
|
Joel
|
|
|
|
|||
The updated life-of-mine for the Joel operation presented a marginal decrease in recovered grade.
|
540
|
|
336
|
|
876
|
|
Other mining assets
|
|
|
|
|||
The updated life-of-mine plans for the CGUs in Freegold and Harmony resulted in the impairment of other mining assets.
|
366
|
|
None
|
|
366
|
|
Doornkop
|
|
|
|
|||
The impairment of Doornkop is primarily as a result of a decrease in the Kimberley Reef's resource values.
|
1 552
|
|
1 178
|
|
2 730
|
|
Unisel
|
|
|
|
|||
Excluded the Leader Reef from the life-of-mine plan to focus on the higher grade Basal Reef. This reduced the life-of-mine from four years to eighteen months.
|
38
|
|
None
|
|
38
|
|
Masimong
|
|
|
|
|||
The impairment at Masimong was as a result of the depletion of the higher grade B Reef and subsequent reduced life-of-mine.
|
58
|
|
None
|
|
58
|
|
Target North
|
|
|
|
|||
The impairment of Target North was as a result of a decrease in resource values.
|
None
|
|
3 681
|
|
3 681
|
|
|
|
|
|
7
|
OTHER OPERATING EXPENSES
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Social investment expenditure
|
143
|
|
155
|
|
73
|
|
Loss on scrapping of property, plant and equipment (a)
|
62
|
|
21
|
|
1
|
|
Foreign exchange translation loss (b)
|
892
|
|
86
|
|
682
|
|
Silicosis settlement provision/(reversal of provision) (c)
|
36
|
|
(62
|
)
|
(68
|
)
|
Reversal of provision for ARM BBEE Trust loan (d)
|
—
|
|
—
|
|
(43
|
)
|
Loss allowance
|
63
|
|
7
|
|
12
|
|
Other (income)/expenses - net
|
5
|
|
(21
|
)
|
10
|
|
|
|
|
|
|||
Total other operating expenses
|
1 201
|
|
186
|
|
667
|
|
(a)
|
These losses arise from the derecognition of property, plant and equipment that is no longer in use. No future economic benefits are expected from the use or disposal of these assets. Refer to note 13 for further detail.
|
(b)
|
The foreign exchange loss is driven primarily by the prevailing exchange rates at the drawdown and repayment dates of the US$-denominated loans as well as the exchange rate movements during the year. Refer to note 30 for the details of the foreign exchange translation loss on the US$ borrowings.
|
(c)
|
Refer to note 26 for details on the movement in the silicosis settlement provision.
|
7
|
OTHER OPERATING EXPENSES continued
|
(d)
|
Pursuant to the adoption of IFRS 9 on 1 July 2018, the ARM BBEE Trust loan is carried at fair value through profit or loss with the movement in fair value recognised in net gains on financial instruments (refer to note 8). In 2018, the provision was reversed following an increase in African Rainbow Minerals Limited's share price and dividends paid in the period between July 2017 and June 2018, which form part of the recoverability test at 30 June 2018. Refer to note 17 for further details on the loan.
|
8
|
INVESTMENT INCOME
|
|
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Interest income from financial assets at amortised cost
|
257
|
|
244
|
|
272
|
|
Net gain on financial instruments1
|
118
|
|
64
|
|
71
|
|
|
|
|
|
|||
Total investment income
|
375
|
|
308
|
|
343
|
|
1
|
Primarily relates to the environmental trust funds and the Social Trust Fund (refer to note 16) and also includes the fair value movement of the ARM BBEE Trust loan (refer to note 17).
|
9
|
FINANCE COSTS
|
|
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Financial liabilities
|
|
|
|
|||
|
|
|
|
|||
Borrowings
|
424
|
|
402
|
|
227
|
|
Other creditors and liabilities
|
9
|
|
2
|
|
1
|
|
|
|
|
|
|||
Total finance costs from financial liabilities
|
433
|
|
404
|
|
228
|
|
|
|
|
|
|||
Non-financial liabilities
|
|
|
|
|||
|
|
|
|
|||
Post-retirement benefits
|
19
|
|
17
|
|
18
|
|
Time value of money component of silicosis settlement provision
|
69
|
|
79
|
|
76
|
|
Time value of money and inflation component of rehabilitation costs
|
194
|
|
208
|
|
191
|
|
|
|
|
|
|||
Total finance costs from non-financial liabilities
|
282
|
|
304
|
|
285
|
|
Total finance costs before interest capitalised
|
715
|
|
708
|
|
513
|
|
Interest capitalised (a)
|
(54
|
)
|
(133
|
)
|
(183
|
)
|
|
|
|
|
|||
Total finance costs
|
661
|
|
575
|
|
330
|
|
9
|
FINANCE COSTS continued
|
(a)
|
The capitalisation rate used to determine capitalised borrowing costs is:
|
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Capitalisation rate
|
9.4
|
%
|
10.4
|
%
|
10.5
|
%
|
|
|
|
|
10
|
TAXATION
|
|
|
|
10
|
TAXATION continued
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
SA taxation
|
|
|
|
|||
|
|
|
|
|||
Mining tax (a)
|
(56
|
)
|
(19
|
)
|
(42
|
)
|
- current year
|
(61
|
)
|
(14
|
)
|
(42
|
)
|
- prior year
|
5
|
|
(5
|
)
|
—
|
|
|
|
|
|
|||
Non-mining tax (b)
|
(2
|
)
|
(124
|
)
|
(163
|
)
|
- current year
|
(2
|
)
|
(121
|
)
|
(163
|
)
|
- prior year
|
—
|
|
(3
|
)
|
—
|
|
|
|
|
|
|||
Deferred tax (c)
|
(197
|
)
|
282
|
|
439
|
|
- current year
|
(197
|
)
|
282
|
|
439
|
|
|
|
|
|
|||
Total taxation (expense)/credit
|
(255
|
)
|
139
|
|
234
|
|
(a)
|
Mining tax on gold mining taxable income in South Africa is determined according to a formula, based on the taxable income from mining operations. 5% of total revenue is exempt from taxation while the remainder is taxable at a higher rate (34%) than non-mining income (28%) as a result of applying the gold mining formula. Mining and non-mining income of Australian entities and PNG operation are taxed at a standard rate of 30%.
|
(b)
|
Non-mining taxable income of mining companies and the taxable income for non-mining companies are taxed at the statutory corporate rate of 28%.The expense for the 2019 and 2018 years relates to non-mining tax arising from derivative gains (realised and unrealised) recognised on the foreign currency derivatives as well as the realised gains on the commodity forward sale contracts. During 2020, the losses on the derivative contracts resulted in non-mining tax losses. See discussion on deferred tax below. Refer to note 18 for details on the group's derivative gains and losses recorded.
|
(c)
|
The deferred tax rate used to calculate deferred tax is based on the current estimate of future profitability when temporary differences will reverse based on tax rates and tax laws that have been enacted at the balance sheet date. Depending on the profitability of the operations, the deferred tax rate can consequently be significantly different from year to year.
|
•
|
The change in rates on temporary differences at the individual company level, other than hedge accounted derivatives, resulted in an increase in the deferred tax expense and liability to the amount of R493 million.
|
•
|
Unwinding of temporary differences related to unredeemed capital expenditure balance resulted in an increase of R298 million in the deferred tax expense.
|
•
|
The weakening of the Rand against the US$ and the increase in the commodity prices negatively impacted on the valuation of the derivative financial instruments. Refer to notes 18 and 37 for detail. The temporary differences related to the Rand gold derivatives changed from taxable temporary differences (ie resulting in a deferred tax liability) to deductible temporary differences (resulting in a deferred tax asset). Management assessed the rates at which the temporary differences are expected to reverse and as the expected non-mining losses can be set off against the mining profits, the rates have been revised from the non-mining tax rate of 28% to the weighted average deferred tax rate. This accounts for R510 million of the deferred tax credit directly charged to other comprehensive income.
|
10
|
TAXATION continued
|
(c)
|
Deferred tax continued
|
•
|
The net deferred tax positions for each of the group's entities are assessed separately. Two companies have net deferred tax asset positions and therefore recoverability of these assets was considered. The position at 30 June 2020 was as follows:
|
|
SA Rand
|
|||
Figures in million
|
Harmony Company
|
|
Randfontein Estates
|
|
|
|
|
||
Deductible/(taxable) temporary differences
|
1 079
|
|
(155)
|
|
Tax losses
|
574
|
|
534
|
|
Total
|
1 653
|
|
379
|
|
|
|
|
||
Deferred tax rate
|
29.8
|
%
|
10.1
|
%
|
Deferred tax asset
|
492
|
|
39
|
|
|
|
|
10
|
TAXATION continued
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Tax on net loss at the mining statutory tax rate
|
202
|
|
934
|
|
1 600
|
|
Non-allowable deductions
|
(221
|
)
|
(241
|
)
|
(513
|
)
|
|
|
|
|
|||
Share-based payments
|
(62
|
)
|
(70
|
)
|
(104
|
)
|
Impairment of assets
|
—
|
|
(2
|
)
|
(219
|
)
|
Loan-related costs
|
(19
|
)
|
(18
|
)
|
(24
|
)
|
Exploration expenditure
|
(55
|
)
|
(36
|
)
|
(74
|
)
|
Finance costs
|
(76
|
)
|
(68
|
)
|
(54
|
)
|
Other
|
(9
|
)
|
(47
|
)
|
(38
|
)
|
|
|
|
|
|||
Movement in temporary differences related to property, plant and equipment
|
(355
|
)
|
(1 388
|
)
|
(1 248
|
)
|
Movements in temporary differences related to other assets and liabilities
|
(452
|
)
|
98
|
|
55
|
|
Difference between effective mining tax rate and statutory mining rate on mining income
|
10
|
|
(175
|
)
|
(550
|
)
|
Difference between non-mining tax rate and statutory mining rate on non-mining income
|
—
|
|
19
|
|
35
|
|
Effect on temporary differences due to changes in effective tax rates1
|
(469
|
)
|
83
|
|
675
|
|
Prior year adjustment
|
5
|
|
(8
|
)
|
—
|
|
Capital allowances2
|
766
|
|
684
|
|
604
|
|
Deferred tax asset not recognised3
|
34
|
|
133
|
|
(424
|
)
|
Deferred tax asset previously not recognised now recorded4
|
225
|
|
—
|
|
—
|
|
|
|
|
|
|||
Income and mining taxation
|
(255
|
)
|
139
|
|
234
|
|
Effective income and mining tax rate (%)
|
(43
|
)
|
5
|
|
5
|
|
1
|
This mainly relates to movements in the deferred tax rate related to Harmony (25.7% to 29.8%) (2019: 10.5% to 25.7%) (2018: 19.4% to 10.5%), Freegold (8.1% to 11.4%) (2019: 8.7% to 8.1%) (2018: 12.5% to 8.7%), Randfontein Estates Limited (Randfontein) (4.5% to 10.1%) (2019: 1.8% to 4.5%) (2018: 3.8% to 1.8%) and Moab (4.7% to 17.3%) (2019: 9.1% to 4.7%) (2018: 9.1%).
|
2
|
This relates to the additional capital allowance that may be deducted from taxable income from mining operations in South Africa. A significant portion relates to Avgold Limited (Avgold) which has a 0% effective tax rate.
|
3
|
This relates to tax losses and deductible temporary differences for which future taxable profits are uncertain and are not considered probable.
|
4
|
Harmony company has sufficient future profits as well as taxable temporary differences which the deductible temporary differences can be reversed against. Therefore the deferred tax asset not recognised in the 2019 year has been recognised.
|
10
|
TAXATION continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Deferred tax assets
|
(1 803
|
)
|
(550
|
)
|
Deferred tax asset to be recovered after more than 12 months
|
(1 091
|
)
|
(49
|
)
|
Deferred tax asset to be recovered within 12 months
|
(712
|
)
|
(501
|
)
|
|
|
|
||
Deferred tax liabilities
|
2 268
|
|
1 237
|
|
Deferred tax liability to be recovered after more than 12 months
|
2 034
|
|
1 125
|
|
Deferred tax liability to be recovered within 12 months
|
234
|
|
112
|
|
|
|
|
||
Net deferred tax liability
|
465
|
|
687
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Gross deferred tax liabilities
|
2 268
|
|
1 237
|
|
|
|
|
||
Amortisation and depreciation
|
2 211
|
|
1 229
|
|
Other
|
57
|
|
8
|
|
|
|
|
||
Gross deferred tax assets
|
(1 803
|
)
|
(550
|
)
|
|
|
|
||
Unredeemed capital expenditure1
|
(4 923
|
)
|
(4 044
|
)
|
Provisions, including non-current provisions
|
(1 156
|
)
|
(844
|
)
|
Derivative financial instruments
|
(505
|
)
|
(88
|
)
|
Tax losses2
|
(1 718
|
)
|
(1 209
|
)
|
Deferred tax asset not recognised3
|
6 499
|
|
5 635
|
|
|
|
|
||
Net deferred tax liability
|
465
|
|
687
|
|
1
|
Unredeemed capital expenditure mainly consists of Hidden Valley R4 555 million (2019: R3 745 million).
|
2
|
The majority of the amount relates to Hidden Valley's tax losses of R1 327 million (2019: R1 066 million).
|
3
|
The majority of the deferred tax asset not recognised of R6 499 million relates to Harmony's PNG operations (2019: R5 293 million).
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
687
|
|
1 145
|
|
Expense/(credit) per income statement
|
197
|
|
(282
|
)
|
Tax directly charged to other comprehensive income
|
(419
|
)
|
(177
|
)
|
|
|
|
||
Balance at end of year
|
465
|
|
687
|
|
Deferred tax asset per balance sheet
|
(531
|
)
|
(1
|
)
|
Deferred tax liability per balance sheet
|
996
|
|
688
|
|
10
|
TAXATION continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
As at 30 June, the group had the following potential future tax deductions:
|
|
|
||
|
|
|
||
Unredeemed capital expenditure available for utilisation against future mining taxable income1
|
43 395
|
|
39 725
|
|
Tax losses carried forward utilisable against mining taxable income2
|
7 356
|
|
5 494
|
|
Capital Gains Tax (CGT) losses available to be utilised against future CGT gains4
|
570
|
|
571
|
|
|
|
|
||
|
|
|
||
As at 30 June, the group has not recognised the following deferred tax asset amounts relating to the above:
|
14 618
|
|
12 935
|
|
|
|
|
||
The unrecognised temporary differences are:
|
|
|
||
Unredeemed capital expenditure3
|
40 330
|
|
35 038
|
|
Tax losses2
|
5 156
|
|
5 109
|
|
CGT losses4
|
570
|
|
571
|
|
|
|
|
1
|
Includes Avgold R21 483 million (2019: R19 086 million), Randfontein R2 261 million (2019: R2 134 million), Moab Khotsong R625 million (2019: R1 755 million) and Hidden Valley R18 847 million (2019: R16 333 million). These have an unlimited carry-forward period.
|
2
|
Relates mainly to Hidden Valley and the PNG exploration operations. These have an unlimited carry-forward period.
|
3
|
Relates to Avgold and Hidden Valley.
|
4
|
The CGT losses relate to the gross CGT losses available to be utilised against future CGT gains.
|
11
|
EARNINGS/(LOSS) PER SHARE
|
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Ordinary shares in issue ('000)
|
603 143
|
|
539 841
|
|
500 252
|
|
Adjustment for weighted number of ordinary shares in issue ('000)
|
(61 306
|
)
|
(12 974
|
)
|
(54 304
|
)
|
|
|
|
|
|||
Weighted number of ordinary shares in issue ('000)
|
541 837
|
|
526 867
|
|
445 948
|
|
Treasury shares ('000)
|
(6 501
|
)
|
(3 058
|
)
|
(52
|
)
|
|
|
|
|
|||
Basic weighted average number of ordinary shares in issue ('000)
|
535 336
|
|
523 809
|
|
445 896
|
|
|
|
|
|
|||
|
SA Rand
|
|||||
|
2020
|
|
2019
|
|
2018
|
|
Total net loss attributable to shareholders (million)
|
(878
|
)
|
(2 607
|
)
|
(4 473
|
)
|
Total basic loss per share (cents)
|
(164
|
)
|
(498
|
)
|
(1 003
|
)
|
11
|
EARNINGS/(LOSS) PER SHARE continued
|
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Weighted average number of ordinary shares in issue ('000)
|
535 336
|
|
523 809
|
|
445 896
|
|
Potential ordinary shares1 ('000)
|
11 858
|
|
9 537
|
|
19 423
|
|
|
|
|
|
|||
Weighted average number of ordinary shares for diluted earnings per share1 ('000)
|
547 194
|
|
533 346
|
|
465 319
|
|
|
SA Rand
|
|||||
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Total diluted loss per share (cents)2
|
(166
|
)
|
(500
|
)
|
(1 004
|
)
|
1
|
Due to the net loss attributable to shareholders, the inclusion of the share options as potential ordinary shares had an anti-dilutive effect on the loss. The issue price and the exercise price of share options issued to employees include the fair value of any service to be supplied to the entity in the future under the share option or other share-based payment arrangement.
|
2
|
The dilution is as a result of the potential reduction in earnings attributable to equity holders of the parent company as a result of the exercise of the Tswelopele Beneficiation Operation (TBO) option. TBO contributed a profit for the six months ended 31 December 2019 and therefore the reduction in earnings attributable to Harmony would increase the loss and loss per share. Following the vesting of the option (refer to note 34), there has been no further impact.
|
|
|
•
|
On 17 August 2017, the board declared a final dividend of 35 cents for the year ended 30 June 2017. R154 million million was paid on 16 October 2017. No dividends were paid on ordinary shares by Harmony during the 2020 and 2019 financial year. The payment in 2020 relates to the non-controlling interest in Tswelopele Beneficiation Operation. Refer to note 34.
|
•
|
Harmony declares an annual preference share dividend to the Harmony Gold Community Trust (the Trust). On 30 July 2019, Harmony declared a preference dividend of R9 million to the Trust which was paid on 2 September 2019. As the Trust is consolidated by Harmony, the dividend is eliminated on consolidation.
|
|
SA Rand
|
|||||
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Dividend declared (millions)
|
—
|
|
—
|
|
154
|
|
Dividend per share (cents)
|
—
|
|
—
|
|
35
|
|
12
|
ACQUISITIONS AND BUSINESS COMBINATIONS
|
•
|
The Mponeng mine and its associated assets and liabilities;
|
•
|
The Tau Tona and Savuka mines and associated rock-dump and tailings storage facility reclamation sites, mine rehabilitation and closure activities located in the West Wits region and their associated assets and liabilities;
|
•
|
First Uranium (Pty) Limited which owns Mine Waste Solutions (Pty) Limited and Chemwes (Pty) Limited as well as associated tailings assets and liabilities (the FUSA Group);
|
•
|
Covalent Water Company (Pty) Limited (CWC), AngloGold Security Services (Pty) Limited and Masakhisane Investments (Pty) Limited; and
|
•
|
Certain rock-dump reclamation, mine rehabilitation and closure activities located in the Vaal River region and their associated assets and liabilities (the VR Remaining assets).
|
12.
|
ACQUISITIONS AND BUSINESS COMBINATIONS continued
|
•
|
US$260 per ounce payable on all underground production from the Mponeng, Savuka and Tau Tona mines in excess of 250 000 ounces per year for six years commencing 1 January 2021; and
|
•
|
US$20 per ounce payable on underground production from the Mponeng, Savuka and Tau Tona mines sourced from levels
|
•
|
A general authority to issue ordinary shares for cash, subject to the restrictions set out in the JSE Listings Requirements including that only public shareholders may participate;
|
•
|
A vendor consideration placement as set out in the JSE Listings Requirements, which would enable non-public shareholders to participate subject to certain conditions; and
|
•
|
Or a combination of the above.
|
13
|
PROPERTY, PLANT AND EQUIPMENT
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Mining assets
|
22 174
|
|
20 549
|
|
Mining assets under construction
|
2 714
|
|
2 964
|
|
Undeveloped properties
|
4 024
|
|
3 965
|
|
Other non-mining assets
|
274
|
|
271
|
|
|
|
|
||
Total property, plant and equipment
|
29 186
|
|
27 749
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
•
|
Asset carrying values may be affected due to changes in estimated cash flows;
|
•
|
Scrapping of assets to be recorded in the income statement following the derecognition of assets as no future economic benefit expected;
|
•
|
Depreciation and amortisation charged in the income statement may change as they are calculated on the units-of-production method;
|
•
|
Environmental provisions may change as the timing and/or cost of these activities may be affected by the change in mineral reserves; and
|
•
|
Useful life and residual values may be affected by the change in mineral reserves.
|
|
|
•
|
The level of capital expenditure compared to the total project cost estimates;
|
•
|
The ability to produce gold in a saleable form (where more than an insignificant amount of gold has been produced); and
|
•
|
The ability to sustain the ongoing production of gold.
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
South Africa
|
Hidden Valley
|
||||||||||
US dollar per ounce
|
2020
|
|
2019
|
|
2018
|
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|
|
|
||||||
Measured
|
25.00
|
|
25.00
|
|
25.00
|
|
n/a
|
|
n/a
|
|
n/a
|
|
Indicated
|
8.00
|
|
8.00
|
|
8.00
|
|
8.00
|
|
8.00
|
|
5.84
|
|
Inferred
|
2.80
|
|
2.80
|
|
2.80
|
|
n/a
|
|
n/a
|
|
5.84
|
|
|
|
|
|
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
•
|
Infection rates and the timing of the expected peaks in the provinces that Harmony's operations are situated in, based on models prepared by the South African government;
|
•
|
Expected disruptions to production together with the mitigation strategies management has in place;
|
•
|
Potential duration of the impact of the virus and the related restrictions in operations; and
|
•
|
Potential changes of the timing of various cash flows due to shortened production breaks.
|
•
|
The potential impact on production and therefore on the revenue cash flows, based on historical trends that have been extrapolated to account for varying disruption levels;
|
•
|
The duration of potential disruptions to production, ranging from 12 months to 24 months;
|
•
|
The infection rates and associated costs. Where infections were assumed to continue into Year 2, the rate was dependant on the assumed infections in Year 1, with a higher rate in Year 1 resulting in a lower rate in Year 2, and vice versa.
|
•
|
Changes to proved and probable ore reserves;
|
•
|
Economical recovery of resources;
|
•
|
The grade of the ore reserves may vary significantly from time to time;
|
•
|
Review of strategy;
|
•
|
Unforeseen operational issues at the mines;
|
•
|
Differences between actual commodity prices and commodity price assumptions;
|
•
|
Changes in the discount rate and foreign exchange rates;
|
•
|
Changes in capital, operating mining, processing and reclamation costs;
|
•
|
Mines' ability to convert resources into reserves;
|
•
|
Potential production stoppages for indefinite periods;
|
•
|
The impact of the COVID-19 pandemic on the global economy, commodity prices and exchange rates, as well as the impact in the countries the group operates in, resulting in production curtailment; and
|
•
|
Carbon tax.
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
- 10% decrease
|
|
|
||
Tshepong Operations
|
3 352
|
|
7 155
|
|
Target 1
|
804
|
|
1 278
|
|
Joel
|
716
|
|
984
|
|
Kusasalethu
|
441
|
|
1 962
|
|
Bambanani1
|
94
|
|
331
|
|
Other Freegold assets
|
20
|
|
—
|
|
Moab Khotsong1
|
15
|
|
2 758
|
|
Unisel
|
6
|
|
45
|
|
Doornkop
|
—
|
|
1 350
|
|
Hidden Valley
|
—
|
|
749
|
|
Target 3
|
—
|
|
337
|
|
Target North
|
—
|
|
291
|
|
Other surface operations
|
—
|
|
178
|
|
Masimong
|
—
|
|
105
|
|
Kalgold
|
—
|
|
39
|
|
|
|
|
||
+ 10% increase
|
|
|
||
Target 3
|
—
|
|
300
|
|
|
|
|
1
|
The carrying amounts of these CGUs include goodwill and any impairment losses are allocated first to goodwill and then to the identifiable assets.
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
53 629
|
|
49 741
|
|
Fully depreciated assets no longer in use derecognised
|
—
|
|
(302
|
)
|
Additions1
|
3 180
|
|
4 113
|
|
Disposals
|
(85
|
)
|
(16
|
)
|
Scrapping of assets
|
(268
|
)
|
(117
|
)
|
Adjustment to rehabilitation asset
|
(48
|
)
|
(439
|
)
|
Transfers and other movements
|
1 348
|
|
801
|
|
Translation
|
1 980
|
|
(152
|
)
|
|
|
|
||
Balance at end of year
|
59 736
|
|
53 629
|
|
|
|
|
||
Accumulated depreciation and impairments
|
|
|
||
|
|
|
||
Balance at beginning of year
|
33 080
|
|
25 538
|
|
Fully depreciated assets no longer in use derecognised
|
—
|
|
(302
|
)
|
Impairment of assets
|
—
|
|
3 880
|
|
Disposals
|
(70
|
)
|
(16
|
)
|
Scrapping of assets
|
(206
|
)
|
(96
|
)
|
Depreciation
|
3 563
|
|
4 184
|
|
Translation
|
1 195
|
|
(108
|
)
|
|
|
|
||
Balance at end of year
|
37 562
|
|
33 080
|
|
Net carrying value
|
22 174
|
|
20 549
|
|
1
|
Included in additions for 2020 is an amount of R97 million (2019: R173 million) for capitalised depreciation associated with stripping activities at the Hidden Valley operations.
|
•
|
Capital expenditure is 98% of project cost estimates;
|
•
|
More than an insignificant amount of gold is being produced in a saleable form; and
|
•
|
The level has the ability to sustain the ongoing production of gold.
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
5 437
|
|
5 446
|
|
Translation
|
62
|
|
(9
|
)
|
|
|
|
||
Balance at end of year
|
5 499
|
|
5 437
|
|
|
|
|
||
Accumulated depreciation and impairments
|
|
|
||
|
|
|
||
Balance at beginning and end of year
|
1 472
|
|
1 472
|
|
Translation
|
3
|
|
—
|
|
|
|
|
||
Balance at end of year
|
1 475
|
|
1 472
|
|
Net carrying value
|
4 024
|
|
3 965
|
|
|
•
|
Vehicles at 20% per year.
|
•
|
Computer equipment at 33.3% per year.
|
•
|
Furniture and equipment at 16.67% per year.
|
|
13
|
PROPERTY, PLANT AND EQUIPMENT continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
658
|
|
609
|
|
Fully depreciated assets no longer in use derecognised
|
—
|
|
(9
|
)
|
Additions
|
39
|
|
59
|
|
Transfers and other movements
|
—
|
|
1
|
|
Translation
|
6
|
|
(2
|
)
|
|
|
|
||
Balance at end of year
|
703
|
|
658
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Accumulated depreciation and impairments
|
|
|
||
|
|
|
||
Balance at beginning of year
|
387
|
|
345
|
|
Fully depreciated assets no longer in use derecognised
|
—
|
|
(9
|
)
|
Depreciation
|
38
|
|
39
|
|
Impairment
|
—
|
|
12
|
|
Translation
|
4
|
|
—
|
|
|
|
|
||
Balance at end of year
|
429
|
|
387
|
|
Net carrying value
|
274
|
|
271
|
|
14
|
INTANGIBLE ASSETS
|
|
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Goodwill
|
520
|
|
520
|
|
Technology-based assets
|
16
|
|
13
|
|
Total intangible assets
|
536
|
|
533
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning and end of year
|
2 675
|
|
2 675
|
|
|
|
|
||
Accumulated amortisation and impairments
|
|
|
||
|
|
|
||
Balance at beginning of year
|
2 155
|
|
2 149
|
|
Impairment1
|
—
|
|
6
|
|
|
|
|
||
Balance at end of year
|
2 155
|
|
2 155
|
|
Net carrying value
|
520
|
|
520
|
|
|
|
|
||
The net carrying value of goodwill has been allocated to the following cash generating units:
|
|
|
||
Bambanani
|
218
|
|
218
|
|
Moab Khotsong
|
302
|
|
302
|
|
|
|
|
||
Net carrying value
|
520
|
|
520
|
|
1
|
In 2020 no impairment on goodwill was recorded as the recoverable amounts exceeded the carrying values. In 2019 an impairment of R6 million on goodwill was recorded for Bambanani as the carrying values exceeded the recoverable values of the related cash generating units. Refer to note 6 for further details on the impairment assessment.
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Cost
|
|
|
||
|
|
|
||
Balance at beginning of year
|
39
|
|
48
|
|
Fully depreciated assets no longer in use derecognised
|
—
|
|
(10
|
)
|
Additions
|
8
|
|
1
|
|
|
|
|
||
Balance at end of year
|
47
|
|
39
|
|
14
|
INTANGIBLE ASSETS continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Accumulated amortisation and impairments
|
|
|
||
|
|
|
||
Balance at beginning of year
|
26
|
|
29
|
|
Fully depreciated assets no longer in use derecognised
|
—
|
|
(10
|
)
|
Amortisation charge
|
5
|
|
7
|
|
|
|
|
||
Balance at end of year
|
31
|
|
26
|
|
Net carrying value
|
16
|
|
13
|
|
|
Financial asset category
|
Description
|
|
|
Debt instruments at amortised cost
|
Financial assets at amortised cost consist of restricted cash, restricted investments, loans, trade receivables and cash and cash equivalents. Interest income from these financial assets is included in investment income using the effective interest rate method. Any gain or loss arising on derecognition is recognised directly in profit or loss. Impairment losses are presented in other operating expenses in the income statement.
|
Debt instruments at fair value through profit or loss
|
Equity-linked investments which are held to meet rehabilitation liabilities are classified as FVTPL. Debt instruments where the contractual cash flows fail to meet the solely payments of principal and interest (SPPI) criteria are also classified as FVTPL. A gain or loss on a debt investment that is subsequently measured at FVTPL is recognised in profit or loss and presented net within investment income in the period in which it arises. On derecognition of a financial asset, the difference between the proceeds received or receivable and the carrying amount of the asset is included in profit or loss.
|
Equity instruments designated at fair value through OCI
|
The group's equity investments are designated as FVTOCI. The group subsequently measures all equity investments at fair value. Where the group's management has elected to present fair value gains and losses on equity investments in OCI, there is no subsequent reclassification of fair value gains and losses to profit or loss following the derecognition of the investment. Dividends from such investments are recognised when the group’s right to receive payments is established either in profit or loss as other income or as a deduction against the asset if the dividend clearly represents a recovery of part of the cost of the investment. Residual values in OCI are reclassified to retained earnings on derecognition of the related FVTOCI instruments.
|
|
|
|
•
|
Loans and receivables are non-derivative financial assets with fixed or determinable payments that are not quoted in an active market. They arise when the group provides money, goods or services directly to a debtor with no intention of trading the receivable. Loans and receivables are subsequently measured at amortised cost using the effective interest method. Loans and receivables include trade and other receivables (excluding VAT and prepayments), restricted cash and cash and cash equivalents.
|
|
Cash and cash equivalents are defined as cash on hand, deposits held at call with banks and short-term highly liquid investments with original maturities of three months or less. Cash and cash equivalents exclude restricted cash.
|
|
Trade and other receivables are recognised initially at fair value and subsequently measured at amortised cost using the effective interest method, less provision for impairment. If collection of the trade receivable is expected in one year or less it is classified as current assets. If not, it is presented as non-current assets. A provision for impairment of receivables is established when there is objective evidence that the group will not be able to collect all amounts due according to the original terms of receivables. The amount of the provision is the difference between the asset’s carrying amount and the present value of estimated future cash flows, discounted at the effective interest rate. The carrying amount of the asset is reduced through the use of a provision for impairment (allowance account) and the amount of the loss is recognised in the income statement. When a trade receivable is uncollectible, it is written off against the allowance account for trade receivables. Subsequent recoveries of amounts previously written off are credited in the income statement.
|
•
|
Available-for-sale financial assets are non-derivatives that are either designated in this category or not classified in any of the other categories. They are included in non-current assets unless the investment matures or management intends to dispose of the investment within 12 months of the balance sheet date. Available-for-sale financial assets are subsequently carried at fair value. The fair values of quoted investments are based on current bid prices. If the fair value for a financial instrument cannot be obtained from an active market, the group establishes fair value by using valuation techniques. The group assesses at each balance sheet date whether there is objective evidence that a financial asset or a group of financial assets is impaired.
|
•
|
Held-to-maturity investments are non-derivative financial assets with fixed or determinable payments and fixed maturities that the group’s management has the positive intention and ability to hold to maturity. The group’s held-to-maturity investments are subsequently measured at amortised cost using the effective interest method. The group assesses at the end of each reporting period whether there is objective evidence that a held-to-maturity investment is impaired as a result of an event.
|
•
|
Financial assets at fair value through profit or loss have two sub-categories: financial assets held-for-trading, and those designated at fair value through profit or loss at inception. Derivative assets are categorised as held for trading unless designated as hedging instruments (refer to note 2.3). These assets are subsequently measured at fair value with gains or losses arising from changes in fair value recognised in the income statement in the period in which they arise.
|
|
15
|
RESTRICTED CASH
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Non-current (a)
|
107
|
|
92
|
|
Current (b)
|
62
|
|
44
|
|
|
|
|
||
Total restricted cash
|
169
|
|
136
|
|
(a)
|
The amount primarily relates to funds set aside to serve as collateral against guarantees made to the Department of Mineral Resources and Energy (DMRE) in South Africa for environmental and rehabilitation obligations. Refer to note 25. The funds are invested in short-term money market funds and call accounts.
|
(b)
|
Cash of R22 million (2019: R20 million) relates to monies released from the environmental trusts as approved by the DMRE which may only be used for further rehabilitation. Cash of R32 million (2019: R24 million) relates to monies set aside for affected communities in the group’s PNG operations. Cash of R8 million relates to monies held by Harmony Gold Community Trust.
|
16
|
RESTRICTED INVESTMENTS
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Investments held by environmental trust funds
|
3 513
|
|
3 273
|
|
Investments held by the Social Trust Fund
|
22
|
|
28
|
|
|
|
|
||
Total restricted investments
|
3 535
|
|
3 301
|
|
|
|
16
|
RESTRICTED INVESTMENTS continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
3 273
|
|
3 238
|
|
Interest income
|
163
|
|
168
|
|
Fair value gain
|
77
|
|
48
|
|
Equity-linked deposits (matured)/acquired
|
(490
|
)
|
300
|
|
(Maturity)/acquisition of fixed deposits
|
456
|
|
(481
|
)
|
Net transfer of cash and cash equivalents
|
34
|
|
183
|
|
Withdrawal of funds for rehabilitation work performed
|
—
|
|
(183
|
)
|
|
|
|
||
Balance at end of year
|
3 513
|
|
3 273
|
|
17
|
OTHER NON-CURRENT ASSETS
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Debt instruments
|
311
|
|
274
|
|
Loans to associates (a)
|
116
|
|
116
|
|
Loan to ARM BBEE Trust (b)
|
306
|
|
271
|
|
Other loans
|
5
|
|
3
|
|
Loss allowance (a)
|
(116
|
)
|
(116
|
)
|
|
|
|
||
Equity instruments
|
77
|
|
59
|
|
Rand Mutual Assurance (c)
|
69
|
|
52
|
|
Other investments
|
8
|
|
7
|
|
|
|
|
||
Total other non-current assets
|
388
|
|
333
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
116
|
|
119
|
|
Impact of adoption of IFRS 9 (b)
|
—
|
|
(3
|
)
|
|
|
|
||
Balance at end of year
|
116
|
|
116
|
|
(a)
|
A loan of R116 million (2019: R116 million) owed by Pamodzi Gold Limited (Pamodzi) who were placed into liquidation during 2009 was provided for in full. Harmony is a concurrent creditor in the Pamodzi Orkney liquidation.
|
17
|
OTHER NON-CURRENT ASSETS continued
|
(b)
|
During 2016, Harmony advanced R200 million to the ARM BBEE Trust, a shareholder of African Rainbow Minerals Limited (ARM). The trust is controlled and consolidated by ARM, who holds 12.38% of Harmony's shares at 30 June 2020. Harmony is a trustee of the ARM BBEE Trust. The loan is subordinated and unsecured. The interest is market related (3 months JIBAR plus 4.25%) and is receivable on the maturity of the loan on 31 December 2022.
|
(c)
|
On adoption of IFRS 9 on 1 July 2018, an irrevocable election was made to classify the equity instruments previously classified as available-for-sale as at FVOCI. The new standard impacted the measurement of the group's unquoted equity investments as IFRS 9 eliminated the exemption provided under IAS 39 where unquoted equity investments were measured at cost when fair value could not be reliably measured. This change resulted in revaluing the unlisted investment in Rand Mutual Assurance, which had a cost of Rnil to fair value of R82 million in 2019. The difference between the carrying amounts of financial instruments before the adoption of IFRS 9 and the new carrying amount calculated in accordance with the standard at 1 July 2018 was recognised directly in the opening balance of equity. Refer to the statements of changes in equity.
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
52
|
|
—
|
|
Fair value on adoption of IFRS 9
|
—
|
|
82
|
|
Capital dividend received
|
(7
|
)
|
(30
|
)
|
Fair value gain
|
24
|
|
—
|
|
|
|
|
||
Balance at end of year
|
69
|
|
52
|
|
18
|
DERIVATIVE FINANCIAL INSTRUMENTS
|
Figures in million (SA Rand)
|
Rand gold hedging contracts (a)
|
|
US$ gold hedging contracts (b)
|
|
US$ silver contracts (b)
|
|
Foreign exchange contracts (c)
|
|
Rand gold derivative contracts (a)
|
|
Total
|
|
|
|
|
|
|
|
|
||||||
At 30 June 2020
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Derivative financial assets
|
19
|
|
8
|
|
11
|
|
30
|
|
—
|
|
68
|
|
|
|
|
|
|
|
|
||||||
Non-current
|
10
|
|
5
|
|
5
|
|
30
|
|
—
|
|
50
|
|
Current
|
9
|
|
3
|
|
6
|
|
—
|
|
—
|
|
18
|
|
|
|
|
|
|
|
|
||||||
Derivative financial liabilities
|
(3 626
|
)
|
(356
|
)
|
(4
|
)
|
(760
|
)
|
(257
|
)
|
(5 003
|
)
|
|
|
|
|
|
|
|
||||||
Non-current
|
(717
|
)
|
(96
|
)
|
(1
|
)
|
(65
|
)
|
—
|
|
(879
|
)
|
Current
|
(2 909
|
)
|
(260
|
)
|
(3
|
)
|
(695
|
)
|
(257
|
)
|
(4 124
|
)
|
|
|
|
|
|
|
|
||||||
Net derivative financial instruments
|
(3 607
|
)
|
(348
|
)
|
7
|
|
(730
|
)
|
(257
|
)
|
(4 935
|
)
|
|
|
|
|
|
|
|
||||||
Unamortised day one net loss included above
|
18
|
|
8
|
|
—
|
|
—
|
|
—
|
|
26
|
|
Unrealised losses included in other reserves, net of tax
|
3 053
|
|
342
|
|
—
|
|
—
|
|
—
|
|
3 395
|
|
|
|
|
|
|
|
|
||||||
Movements for the year ended 30 June 2020
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Realised losses included in revenue
|
(1 263
|
)
|
(134
|
)
|
—
|
|
—
|
|
—
|
|
(1 397
|
)
|
Unrealised losses on gold contracts recognised in other comprehensive income
|
(4 820
|
)
|
(391
|
)
|
—
|
|
—
|
|
—
|
|
(5 211
|
)
|
|
|
|
|
|
|
|
||||||
Gains/(losses) on derivatives
|
—
|
|
—
|
|
6
|
|
(1 235
|
)
|
(174
|
)
|
(1 403
|
)
|
Unrealised losses reclassified to profit or loss as a result of discontinuance of hedge accounting
|
(235
|
)
|
—
|
|
—
|
|
—
|
|
—
|
|
(235
|
)
|
Day one loss amortisation
|
(34
|
)
|
(6
|
)
|
—
|
|
—
|
|
—
|
|
(40
|
)
|
|
|
|
|
|
|
|
||||||
Total gains/(losses) on derivatives
|
(269
|
)
|
(6
|
)
|
6
|
|
(1 235
|
)
|
(174
|
)
|
(1 678
|
)
|
|
|
|
|
|
|
|
||||||
Hedge effectiveness
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Changes in the fair value of the hedging instrument used as the basis for recognising hedge ineffectiveness
|
(4 820
|
)
|
(391
|
)
|
—
|
|
—
|
|
—
|
|
(5 211
|
)
|
Changes in the fair value of the hedged item used as the basis for recognising hedge ineffectiveness
|
4 820
|
|
391
|
|
—
|
|
—
|
|
—
|
|
5 211
|
|
|
|
|
|
|
|
|
18
|
DERIVATIVE FINANCIAL INSTRUMENTS continued
|
Figures in million (SA Rand)
|
Rand gold hedging contracts (a)
|
|
US$ gold hedging contracts (b)
|
|
US$ silver contracts (b)
|
|
Foreign exchange contracts (c)
|
|
Rand gold derivative contracts (a)
|
|
Total
|
|
|
|
|
|
|
|
|
||||||
At 30 June 2019
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Derivative financial assets
|
45
|
|
5
|
|
—
|
|
456
|
|
—
|
|
506
|
|
|
|
|
|
|
|
|
||||||
Non-current
|
23
|
|
1
|
|
—
|
|
173
|
|
—
|
|
197
|
|
Current
|
22
|
|
4
|
|
—
|
|
283
|
|
—
|
|
309
|
|
|
|
|
|
|
|
|
||||||
Derivative financial liabilities
|
(322
|
)
|
(55
|
)
|
(2
|
)
|
(2
|
)
|
(61
|
)
|
(442
|
)
|
|
|
|
|
|
|
|
||||||
Non-current
|
(158
|
)
|
(14
|
)
|
—
|
|
—
|
|
—
|
|
(172
|
)
|
Current
|
(164
|
)
|
(41
|
)
|
(2
|
)
|
(2
|
)
|
(61
|
)
|
(270
|
)
|
|
|
|
|
|
|
|
||||||
Net derivative financial instruments
|
(277
|
)
|
(50
|
)
|
(2
|
)
|
454
|
|
(61
|
)
|
64
|
|
|
|
|
|
|
|
|
||||||
Unamortised day one net loss included above
|
36
|
|
5
|
|
—
|
|
—
|
|
—
|
|
41
|
|
Unrealised losses included in other reserves, net of tax
|
165
|
|
49
|
|
—
|
|
—
|
|
—
|
|
214
|
|
|
|
|
|
|
|
|
||||||
Movements for the year ended 30 June 2019
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Realised gains included in revenue
|
453
|
|
—
|
|
—
|
|
—
|
|
—
|
|
453
|
|
Unrealised gain/loss on gold contracts recorded in other comprehensive income
|
(302
|
)
|
(49
|
)
|
—
|
|
—
|
|
—
|
|
(351
|
)
|
|
|
|
|
|
|
|
||||||
Gains/(losses) on derivatives
|
—
|
|
—
|
|
13
|
|
554
|
|
(51
|
)
|
516
|
|
Day one loss amortisation
|
(31
|
)
|
(1
|
)
|
—
|
|
—
|
|
—
|
|
(32
|
)
|
|
|
|
|
|
|
|
||||||
Total gains/(losses) on derivatives
|
(31
|
)
|
(1
|
)
|
13
|
|
554
|
|
(51
|
)
|
484
|
|
|
|
|
|
|
|
|
||||||
Hedge effectiveness
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Changes in the fair value of the hedging instrument used as the basis for recognising hedge ineffectiveness
|
(302
|
)
|
(49
|
)
|
—
|
|
—
|
|
—
|
|
(351
|
)
|
Changes in the fair value of the hedging instrument used as the basis for recognising hedge ineffectiveness
|
302
|
|
49
|
|
—
|
|
—
|
|
—
|
|
351
|
|
|
|
|
|
|
|
|
Figures in million (SA Rand)
|
Rand gold hedging contracts (a)
|
|
US$ gold derivative contracts (b)
|
|
US$ silver contracts (b)
|
|
Foreign exchange contracts (c)
|
|
Rand gold derivative contracts (a)
|
|
Total
|
|
|
|
|
|
|
|
|
||||||
Movements for the year ended 30 June 2018
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Realised gains included in revenue
|
1 197
|
|
—
|
|
—
|
|
—
|
|
—
|
|
1 197
|
|
|
|
|
|
|
|
|
||||||
Unrealised gains on gold contracts recognised in other comprehensive income
|
413
|
|
—
|
|
—
|
|
—
|
|
—
|
|
413
|
|
|
|
|
|
|
|
|
||||||
Gains/(losses) on derivatives
|
(12
|
)
|
29
|
|
6
|
|
113
|
|
—
|
|
136
|
|
Day one loss amortisation
|
(37
|
)
|
—
|
|
—
|
|
—
|
|
—
|
|
(37
|
)
|
|
|
|
|
|
|
|
||||||
Total gains/(losses) on derivatives
|
(49
|
)
|
29
|
|
6
|
|
113
|
|
—
|
|
99
|
|
18
|
DERIVATIVE FINANCIAL INSTRUMENTS continued
|
(a)
|
Rand gold contracts
|
(b)
|
US$ commodity contracts
|
(c)
|
Foreign exchange contracts
|
18
|
DERIVATIVE FINANCIAL INSTRUMENTS continued
|
|
FY2021
|
FY2022
|
|
TOTAL
|
||||||||||||||
|
Q1
|
|
Q2
|
|
Q3
|
|
Q4
|
|
Q1
|
|
Q2
|
|
Q3
|
|
Q4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Foreign exchange contracts
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
Zero cost collars
|
|
|
|
|
|
|
|
|
|
|||||||||
US$m
|
116
|
|
115
|
|
99
|
|
65
|
|
47
|
|
42
|
|
27
|
|
—
|
|
511
|
|
Average Floor
|
15.36
|
|
15.40
|
|
15.44
|
|
15.91
|
|
16.32
|
|
16.93
|
|
17.99
|
|
—
|
|
15.81
|
|
Average Cap
|
16.45
|
|
16.58
|
|
16.62
|
|
17.28
|
|
17.90
|
|
18.54
|
|
19.65
|
|
—
|
|
17.09
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Forward contracts
|
|
|
|
|
|
|
|
|
|
|||||||||
US$m
|
66
|
|
44
|
|
35
|
|
12
|
|
9
|
|
9
|
|
8
|
|
—
|
|
183
|
|
Average Forward rate
|
15.83
|
|
15.82
|
|
16.13
|
|
16.93
|
|
18.18
|
|
18.41
|
|
18.71
|
|
—
|
|
16.38
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
R/gold
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
'000 oz - restructured
|
8
|
|
8
|
|
8
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
24
|
|
'000 oz - cash flow hedge
|
80
|
|
78
|
|
77
|
|
71
|
|
61
|
|
44
|
|
25
|
|
10
|
|
446
|
|
Average R'000/kg
|
673
|
|
679
|
|
691
|
|
737
|
|
806
|
|
851
|
|
950
|
|
1037
|
|
743
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
US$/gold
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
'000 oz - cash flow hedge
|
12
|
|
12
|
|
12
|
|
12
|
|
12
|
|
12
|
|
10
|
|
5
|
|
87
|
|
Average US$/oz
|
1 413
|
|
1 442
|
|
1 489
|
|
1 521
|
|
1 561
|
|
1 606
|
|
1 710
|
|
1 760
|
|
1 543
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
Total gold
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
'000 oz
|
100
|
|
98
|
|
97
|
|
83
|
|
73
|
|
56
|
|
35
|
|
15
|
|
557
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
US$/silver
|
|
|
|
|
|
|
|
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||
'000 oz
|
360
|
|
340
|
|
300
|
|
270
|
|
230
|
|
90
|
|
10
|
|
—
|
|
1 600
|
|
Average Floor
|
17.47
|
|
17.87
|
|
18.01
|
|
18.17
|
|
18.21
|
|
17.86
|
|
18.40
|
|
—
|
|
17.91
|
|
Average Cap
|
18.92
|
|
19.37
|
|
19.50
|
|
19.70
|
|
19.75
|
|
19.44
|
|
20.15
|
|
—
|
|
19.41
|
|
|
|
|
|
|
|
|
|
|
|
19
|
TRADE AND OTHER RECEIVABLES
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Financial assets
|
|
|
||
|
|
|
||
Trade receivables (metals)
|
623
|
|
448
|
|
Other trade receivables
|
215
|
|
230
|
|
Loss allowance
|
(135
|
)
|
(68
|
)
|
|
|
|
||
Trade receivables - net
|
703
|
|
610
|
|
Interest and other receivables
|
88
|
|
7
|
|
Employee receivables
|
13
|
|
10
|
|
|
|
|
||
Non-financial assets
|
|
|
||
|
|
|
||
Prepayments
|
79
|
|
67
|
|
Value added tax and general sales tax
|
425
|
|
281
|
|
Income and mining taxes
|
—
|
|
89
|
|
|
|
|
||
Total trade and other receivables
|
1 308
|
|
1 064
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
68
|
|
60
|
|
Increase in loss allowance recognised during the year
|
104
|
|
47
|
|
Reversal of loss allowance during the year
|
(37
|
)
|
(39
|
)
|
|
|
|
||
Balance at end of year
|
135
|
|
68
|
|
|
SA Rand
|
|||
Figures in million
|
Gross
|
|
Loss allowance
|
|
|
|
|
||
30 June 2020
|
|
|
||
|
|
|
||
Not past due1
|
702
|
|
31
|
|
Past due by 1 to 30 days
|
9
|
|
3
|
|
Past due by 31 to 60 days
|
5
|
|
3
|
|
Past due by 61 to 90 days
|
21
|
|
8
|
|
Past due by more than 90 days
|
51
|
|
45
|
|
Past due by more than 361 days
|
50
|
|
45
|
|
|
|
|
||
|
838
|
|
135
|
|
|
|
|
||
30 June 2019
|
|
|
||
|
|
|
||
Not past due1
|
562
|
|
—
|
|
Past due by 1 to 30 days
|
3
|
|
—
|
|
Past due by 31 to 60 days
|
30
|
|
—
|
|
Past due by 61 to 90 days
|
9
|
|
—
|
|
Past due by more than 90 days
|
12
|
|
11
|
|
Past due by more than 361 days
|
62
|
|
57
|
|
|
|
|
||
|
678
|
|
68
|
|
1
|
The gross amount includes the full trade receivables (metals) balance, which has no attributable loss allowance.
|
19
|
TRADE AND OTHER RECEIVABLES continued
|
20
|
INVESTMENTS IN ASSOCIATES
|
|
|
(a)
|
Harmony acquired a 32.4% interest in Pamodzi on 27 February 2008, initially valued at R345 million. Pamodzi was listed on the JSE and had interests in operating gold mines in South Africa. Pamodzi was placed in liquidation in March 2009. As at 30 June 2020, the liquidation process has not been concluded. Refer to note 17(a) for details of the loan and provision of impairment of the loan.
|
(b)
|
Rand Refinery provides precious metal smelting and refining services in South Africa. Harmony holds a 10.38% share in Rand Refinery. This investment is a strategic investment for the group as Rand Refinery is the only company that provides such services in South Africa. Although the group holds less than 20% of the equity shares of Rand Refinery, the group is able to exercise significant influence by virtue of having a right to appoint a director on the board. Through the 10.38% shareholding and the right to appoint a director on the board, the investment has been accounted for as an associate.
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
110
|
|
84
|
|
Redemption of preference shares
|
(58
|
)
|
(32
|
)
|
Share of profit in associate
|
94
|
|
59
|
|
|
|
|
||
Balance at end of year
|
146
|
|
110
|
|
21
|
INVESTMENT IN JOINT OPERATIONS
|
22
|
INVENTORIES
|
|
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Gold in lock-up
|
47
|
|
43
|
|
Gold in-process, ore stockpiles and bullion on hand (a)
|
936
|
|
780
|
|
Consumables at weighted average cost (net of provision) (b)
|
1 485
|
|
1 187
|
|
|
|
|
||
Total inventories
|
2 468
|
|
2 010
|
|
Non-current portion of gold in lock-up and gold in-process
|
(47
|
)
|
(43
|
)
|
|
|
|
||
Total current portion of inventories
|
2 421
|
|
1 967
|
|
|
|
|
||
Included in the balance above is:
|
|
|
||
Inventory valued at net realisable value
|
47
|
|
334
|
|
(a)
|
The run-of-mine (ROM) stock at the Hidden Valley operations increased R294 million year on year following the commencement of the stage 6 cut-back. The increase includes approximately R72 million which is attributable to translation. This was offset by gold in-process which decreased R169 million year on year due to the lower production during the last quarter of the 2020 financial year as well as the plants being cleaned out during the South African COVID-19 national lockdown.
|
(b)
|
The consumables’ balance increased R298 million year on year, primarily as a result of the impact of the weakening of the Rand against the Australian dollar from R9.91/A$1 at 30 June 2019 to R11.96/A$1 at 30 June 2020 and the resultant movement when translating the balance for the Hidden Valley operations at year-end.
|
23
|
SHARE CAPITAL
|
|
|
23
|
SHARE CAPITAL continued
|
|
Number of shares
|
|||
|
2020
|
|
2019
|
|
|
|
|
||
Ordinary shares
|
|
|
||
Lydenburg Exploration Limited1
|
335
|
|
335
|
|
Kalgold Share Trust2
|
47 046
|
|
47 046
|
|
Harmony ESOP Trust2
|
6 335 629
|
|
6 592 900
|
|
|
|
|
||
Convertible preference shares
|
|
|
||
Harmony Gold Community Trust3
|
4 400 000
|
|
4 400 000
|
|
|
|
|
1
|
A wholly-owned subsidiary.
|
2
|
Trust controlled by the group.
|
3
|
The issue of the convertible preference shares did not impact the group's consolidated financial statements as the Harmony Gold Community Trust is controlled by the group.
|
24
|
OTHER RESERVES
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Foreign exchange translation reserve (a)
|
3 588
|
|
2 389
|
|
Hedge reserve (b)
|
(3 395
|
)
|
(214
|
)
|
Share-based payments (c)
|
2 950
|
|
2 764
|
|
Post-retirement benefit actuarial gain/(loss) (d)
|
(4
|
)
|
(19
|
)
|
Acquisition of non-controlling interest in subsidiary (e)
|
(381
|
)
|
(381
|
)
|
Equity component of convertible bond (f)
|
277
|
|
277
|
|
Repurchase of equity interest (g)
|
(98
|
)
|
(98
|
)
|
Equity instruments designated at fair value through other comprehensive income (h)
|
104
|
|
79
|
|
Other
|
(24
|
)
|
(24
|
)
|
|
|
|
||
Total other reserves
|
3 017
|
|
4 773
|
|
(a)
|
The balance of the foreign exchange translation reserve movement represents the cumulative translation effect of the group's off-shore operations.
|
(b)
|
Harmony has entered into gold hedging contracts. Cash flow hedge accounting is applied to these contracts, resulting in the effective portion of the unrealised gains and losses being recorded in other comprehensive income (other reserves). Refer to note 18 for further information.
|
24
|
OTHER RESERVES continued
|
(b)
|
Hedge reserve continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
(214
|
)
|
413
|
|
|
|
|
||
Remeasurement of gold hedging contracts
|
(3 197
|
)
|
(627
|
)
|
Unrealised gain/(loss) on gold hedging contracts
|
(5 211
|
)
|
(351
|
)
|
Unrealised losses reclassified to profit or loss as a result of discontinuance of hedge accounting
|
235
|
|
—
|
|
Released to revenue on maturity of the gold hedging contracts
|
1 397
|
|
(453
|
)
|
Foreign exchange translation
|
(37
|
)
|
—
|
|
Deferred taxation thereon
|
419
|
|
177
|
|
Attributable to non-controlling interest
|
16
|
|
—
|
|
|
|
|
||
Balance at end of year
|
(3 395
|
)
|
(214
|
)
|
|
|
|
||
Attributable to:
|
|
|
||
Rand gold hedging contracts
|
(3 053
|
)
|
(165
|
)
|
US dollar gold hedging contracts
|
(342
|
)
|
(49
|
)
|
|
|
|
(c)
|
The reconciliation of the movement in the share-based payments is as follows:
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
2 764
|
|
2 534
|
|
Share-based payments expensed (i)
|
186
|
|
230
|
|
|
|
|
||
Balance at end of year
|
2 950
|
|
2 764
|
|
(i)
|
The group issues equity-settled instruments to certain qualifying employees under an employee share option scheme and employee share ownership plan (ESOP) to award shares from the company’s authorised but unissued ordinary shares. Equity share-based payments are measured at the fair value of the equity instruments at the grant date and are expensed over the vesting period, based on the group’s estimate of the shares that are expected to vest. Refer to note 34 for more details.
|
(d)
|
The actuarial gains or losses related to the post-retirement benefit obligation will not be reclassified to the income statement. The movement is as follows:
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
(19
|
)
|
(12
|
)
|
Actuarial gain/(loss)
|
17
|
|
(7
|
)
|
Deferred tax
|
(2
|
)
|
—
|
|
|
|
|
||
Balance at end of year
|
(4
|
)
|
(19
|
)
|
(e)
|
On 15 March 2004, Harmony announced that it had made an off-market cash offer to acquire all the ordinary shares, listed and unlisted options of Abelle Limited, held by non-controlling interests. The excess of the purchase price of R579 million over the carrying amount of non-controlling interest acquired, amounting to R381 million, has been accounted for under other reserves.
|
(f)
|
On 24 May 2004, the group issued a convertible bond. The amount representing the value of the equity conversion component is included in other reserves, net of deferred income taxes. The equity conversion component is determined on the issue of the bonds and is not changed in subsequent periods. The convertible bonds were repaid in 2009.
|
24
|
OTHER RESERVES continued
|
(g)
|
On 19 March 2010, Harmony Gold Mining Company Limited concluded an agreement with African Vanguard Resources (Proprietary) Limited (AVRD), for the purchase of its 26% share of the mining titles of the Doornkop South Reef. The original sale of the 26% share in the mining titles was accounted for as an in-substance call option by AVRD over the 26% mineral right. The agreement to purchase AVRD's 26% interest during the 2010 financial year was therefore considered to be a repurchase of the option (equity interest). The 26% interest was transferred from AVRD to Harmony in exchange for Harmony repaying the AVRD Nedbank loan and the issue of 2 162 359 Harmony shares. The difference between the value of the shares issued of R152 million, the liability to the AVRD and transaction costs, have been taken directly to equity.
|
(h)
|
Includes R106 million (2019: R82 million) related to the fair value movement of Harmony's interest in Rand Mutual Assurance. Refer to note 17.
|
|
|
25
|
PROVISION FOR ENVIRONMENTAL REHABILITATION
|
|
|
25
|
PROVISION FOR ENVIRONMENTAL REHABILITATION continued
|
|
|
2020
|
2019
|
2018
|
|
%
|
%
|
%
|
|
|
|
|
South African operations
|
|
|
|
Inflation rate
|
|
|
|
- short term (Year 1 and Year 2)
|
4.50
|
5.25
|
5.50
|
- long term (Year 3 onwards)
|
5.00
|
5.25
|
5.50
|
Discount rates
|
|
|
|
- 12 months
|
3.90
|
6.50
|
6.70
|
- one to five years
|
5.55
|
6.85
|
7.00
|
- six to nine years
|
8.20
|
8.50
|
8.20
|
- ten years or more
|
10.95
|
9.60
|
8.60
|
|
|
|
|
PNG operations:
|
|
|
|
Inflation rate
|
6.28
|
5.00
|
6.00
|
Discount rate
|
5.50
|
6.25
|
6.25
|
|
|
|
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
3 054
|
|
3 309
|
|
Change in estimate - Balance sheet1
|
(48
|
)
|
(439
|
)
|
Change in estimate - Income statement
|
47
|
|
33
|
|
Utilisation of provision
|
(47
|
)
|
(86
|
)
|
Time value of money and inflation component of rehabilitation costs
|
194
|
|
208
|
|
Transfer
|
—
|
|
37
|
|
Translation
|
208
|
|
(8
|
)
|
|
|
|
||
Balance at end of year
|
3 408
|
|
3 054
|
|
25
|
PROVISION FOR ENVIRONMENTAL REHABILITATION continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Future net undiscounted obligation
|
|
|
||
|
|
|
||
Ultimate estimated rehabilitation cost
|
4 600
|
|
4 139
|
|
Amounts invested in environmental trust funds (refer to note 16)
|
(3 513
|
)
|
(3 273
|
)
|
|
|
|
||
Total future net undiscounted obligation
|
1 087
|
|
866
|
|
|
|
26
|
PROVISION FOR SILICOSIS SETTLEMENT continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
942
|
|
925
|
|
Change in estimate
|
36
|
|
(62
|
)
|
Time value of money and inflation component
|
69
|
|
79
|
|
Payments to Tshiamso Trust and claimant attorneys
|
(155
|
)
|
—
|
|
|
|
|
||
Balance at end of year
|
892
|
|
942
|
|
|
|
|
||
Current portion of silicosis settlement provision
|
175
|
|
—
|
|
Non-current portion of silicosis settlement provision
|
717
|
|
942
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Effect of an increase in the assumption:
|
|
|
||
|
|
|
||
Change in benefit take-up rate1
|
72
|
|
66
|
|
Change in silicosis prevalence2
|
72
|
|
66
|
|
Change in disease progression rates3
|
36
|
|
33
|
|
|
|
|
||
|
|
|
||
Effect of a decrease in the assumption:
|
|
|
||
|
|
|
||
Change in benefit take-up rate1
|
(72
|
)
|
(66
|
)
|
Change in silicosis prevalence2
|
(72
|
)
|
(66
|
)
|
Change in disease progression rates3
|
(36
|
)
|
(33
|
)
|
|
|
|
1
|
Change in benefit take-up rate: the take-up rate does not affect the legal cost allocation, but a 10% change results in a proportionate change in the other values.
|
2
|
Change in the silicosis prevalence: the assumptions that will result in a change in the estimated number of cases are either a 10% change in the assumed labour number or a 10% change in the disease risk.
|
3
|
Change in disease progression rates: a 10% shorter/longer disease progression period was used. This assumption is not applicable to the dependant or TB classes.
|
27
|
RETIREMENT BENEFIT OBLIGATION
|
|
|
27
|
RETIREMENT BENEFIT OBLIGATION continued
|
|
|
•
|
It is assumed that all Continuation and Widow Members (CAWMs) will remain on the current benefit option and income band. For employed members, post-employment contributions were assumed to be equal to the average payable for the current CAWMs membership;
|
•
|
It is assumed that not all employed members will remain employed until retirement therefore estimated resignation and ill-health retirement rates are also taken into account;
|
•
|
It is assumed that 90% of employed members will be married at retirement or earlier death and that wives are four years younger than their husbands.
|
•
|
Change in bond yields: A decrease in the bond yields will increase the plan liability.
|
•
|
Inflation risk: The obligation is linked to inflation and higher inflation will lead to a higher liability.
|
•
|
Life expectancy: The obligation is to provide benefits for the life of the member, so increases in life expectancy will result in an increase in the plan’s liabilities.
|
27
|
RETIREMENT BENEFIT OBLIGATION continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Present value of all unfunded obligations
|
193
|
|
201
|
|
|
|
|
||
Current employees
|
56
|
|
54
|
|
Retired employees
|
137
|
|
147
|
|
|
|
|
||
|
|
|
||
The movement in the retirement benefit obligation is as follows:
|
|
|
||
|
|
|
||
Balance at beginning of year
|
201
|
|
186
|
|
Contributions paid
|
(12
|
)
|
(12
|
)
|
Other expenses included in staff costs/current service cost
|
2
|
|
3
|
|
Finance costs
|
19
|
|
17
|
|
Net actuarial (gain)/loss recognised in other comprehensive income during the year
|
(17
|
)
|
7
|
|
|
|
|
||
Balance at end of year
|
193
|
|
201
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
The net liability of the defined benefit plan is as follows:
|
|
|
||
|
|
|
||
Present value of defined benefit obligation
|
193
|
|
201
|
|
Fair value of plan assets
|
—
|
|
—
|
|
|
|
|
||
Net liability of defined benefit plan
|
193
|
|
201
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Effect of a 1% increase on:
|
|
|
||
|
|
|
||
Aggregate of service cost and finance costs
|
3
|
|
2
|
|
Defined benefit obligation
|
22
|
|
23
|
|
|
|
|
||
|
|
|
||
Effect of a 1% decrease on:
|
|
|
||
|
|
|
||
Aggregate of service cost and finance costs
|
(2
|
)
|
(2
|
)
|
Defined benefit obligation
|
(19
|
)
|
(19
|
)
|
|
|
|
|
•
|
Fixed lease payments (including in-substance fixed payments), less any lease incentives;
|
•
|
Variable lease payments that depend on an index or rate, initially measured using the index or rate at the commencement date;
|
•
|
The amount expected to be payable by the lessee under residual value guarantees;
|
•
|
The exercise price of purchase options, if the lessee is reasonably certain to exercise the options; and
|
•
|
Payments of penalties for terminating the lease, if the lease term reflects the exercise of an option to terminate the lease.
|
•
|
The lease term has changed or there is a change in the assessment of exercise of a purchase option, in which case the lease liability is remeasured by discounting the revised lease payments using a revised discount rate;
|
•
|
The lease payments change due to changes in an index or rate or a change in expected payment under a guaranteed residual value, in which cases the lease liability is remeasured by discounting the revised lease payments using the initial discount rate (unless the lease payments change is due to a change in a floating interest rate, in which case a revised discount rate is used).
|
•
|
A lease contract is modified and the lease modification is not accounted for as a separate lease, in which case the lease liability is remeasured by discounting the revised lease payments using a revised discount rate.
|
•
|
Periods covered by an option to extend the lease if management is reasonably certain to make use of that option; and / or
|
•
|
Periods covered by an option to terminate the lease, if management is reasonably certain not to make use of that option.
|
|
28
|
LEASES continued
|
|
•
|
Assessing whether an arrangement contains a lease: various factors are considered, including whether a service contract includes the implicit right to the majority of the economic benefit from assets used in providing the service;
|
•
|
Determining the lease term: management considers all facts and circumstances that create an economic incentive to exercise an extension option, or not exercise a termination option. Extension options (or periods after termination options) are only included in the lease term if the lease is reasonably certain to be extended (or not terminated). The assessment is reviewed if a significant event or a significant change in circumstances occurs which affects this assessment and that is within the control of the lessee. The company applies the considerations for short-term leases where leases are modified to extend the period by 12 months or less on expiry and these modifications are assessed on a standalone basis; and
|
•
|
Determining the discount rate: in determining the incremental borrowing rates, management considers the term of the lease, the nature of the asset being leased, in country borrowings as well as other sources of finance.
|
|
|
SA Rand
|
|
Figures in million
|
2020
|
|
|
|
|
Balance at beginning of year
|
—
|
|
Impact of adopting IFRS 16 at 1 July 2019
|
81
|
|
Additions
|
106
|
|
Depreciation
|
(45
|
)
|
Terminations
|
(8
|
)
|
Translation
|
17
|
|
|
|
|
Balance at end of year
|
151
|
|
|
SA Rand
|
|
Figures in million
|
2020
|
|
|
|
|
Balance at beginning of year
|
—
|
|
Impact of adopting IFRS 16 at 1 July 2019
|
81
|
|
Additions
|
93
|
|
Interest expense on lease liabilities
|
8
|
|
Lease payments made
|
(46
|
)
|
Terminations
|
(8
|
)
|
Translation
|
13
|
|
|
|
|
Balance at end of year
|
141
|
|
|
|
|
Current portion of lease liabilities
|
60
|
|
Non-current portion of lease liabilities
|
81
|
|
|
SA Rand
|
|
Figures in million
|
2020
|
|
|
|
|
Less than and including one year
|
67
|
|
Between one and five years
|
86
|
|
Five years and more
|
—
|
|
|
|
|
Total
|
153
|
|
|
SA Rand
|
|
Figures in million
|
2020
|
|
|
|
|
Lease commitments at 30 June 20191
|
38
|
|
Effect of options to extend the lease term
|
64
|
|
Discounting of lease liabilities
|
(21
|
)
|
|
|
|
Impact of adopting IFRS 16 at 1 July 2019
|
81
|
|
1
|
The lease commitments represent solely payments under non-cancellable periods per the contracts and exclude any options to extend the lease term.
|
|
SA Rand
|
|
Figures in million
|
2020
|
|
|
|
|
Depreciation of right-of-use assets1
|
45
|
|
Interest expense on lease liabilities2
|
8
|
|
Short-term leases expensed3, 4
|
96
|
|
Leases of low value assets expensed3
|
19
|
|
Variable lease payments expensed3, 5
|
690
|
|
|
|
1
|
Included in depreciation and amortisation.
|
2
|
Included in finance costs.
|
3
|
Included in production costs and corporate, administration and other expenditure.
|
4
|
The amount includes leases that expire within 12 months of adoption as management elected the short-term expedient.
|
5
|
These payments relate mostly to mining and drilling contracts. Variable lease payments made comprise 81% of the total lease payments made during the period. The majority of the variable lease payments made relate to the contracting of specialists for mining operations at Harmony's open pit mines and are determined on a per tonne or square metre basis.
|
|
SA Rand
|
|
Figures in million
|
2020
|
|
|
|
|
Lease payments made for lease liabilities
|
46
|
|
Short-term lease payments
|
96
|
|
Lease payments of low value assets leased
|
19
|
|
Variable lease payments
|
690
|
|
|
|
|
Total cash outflows for leases
|
850
|
|
29
|
OTHER NON-CURRENT LIABILITIES
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Sibanye Beatrix ground swap royalty1
|
15
|
|
2
|
|
Lease liability - non-current2
|
81
|
|
—
|
|
Provision for Harmony Education Benefit Fund
|
5
|
|
3
|
|
|
|
|
||
Total non-current liabilities
|
101
|
|
5
|
|
1
|
The increase is mainly due to the estimated gold allocation increasing from 220kgs to 1 862kgs based on approved life-of-mine plans.
|
2
|
Refer to note 28 for an analysis of the lease liability.
|
|
•
|
Borrowings are initially recognised at fair value net of transaction costs incurred and subsequently measured at amortised cost, comprising original debt less principal payments and amortisation, using the effective yield method. Any difference between proceeds (net of transaction cost) and the redemption value is recognised in the income statement over the period of the borrowing using the effective interest rate method.
|
•
|
Trade and other payables are recognised initially at fair value and subsequently measured at amortised cost using the effective interest method. Payables are classified as current liabilities if payment is due within a year or less. If not, they are presented as non-current liabilities.
|
|
30
|
BORROWINGS
|
SUMMARY OF FACILITIES' TERMS
|
|||||||||
|
Commenced
|
Tenor (Years)
|
Matures
|
Secured
|
Security
|
Interest payment basis
|
Interest charge
|
Repayment term
|
Repaid
|
|
|
|
|
|
|
|
|
|
|
Existing
|
|
|
|
|
|
|
|
|
|
R2 billion facility
|
November 2018
|
Four
|
November 2022
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
|
|
n/a
|
- R600 million term loan
|
|
|
|
|
|
|
JIBAR + 2.9%
|
Eight equal quarterly instalments starting from February 2021 with the final instalment on maturity
|
|
- R1.4 billion revolving credit facility
|
|
|
|
|
|
|
JIBAR + 2.8%
|
On maturity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US$400 million facility
|
September 2019
|
Three
|
September 20231
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
|
On maturity
|
n/a
|
- US$200 million revolving credit facility
|
|
Extendable by 1 Year
|
|
|
|
|
LIBOR + 2.9%
|
|
|
- US$200 million term loan
|
|
|
|
|
|
|
LIBOR + 3.05%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US$24 million Westpac loan
|
July 2018
|
Four
|
July 2022
|
Yes
|
Cession and pledge of vehicles and machinery
|
Variable
|
LIBOR + 3.2%
|
Quarterly instalments
|
n/a
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US$200 million bridge loan
|
June 2020
|
One
|
June 20212
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
|
On maturity
|
n/a
|
|
|
|
|
|
|
First 6 months
|
LIBOR + 1.8%
|
|
|
|
|
|
|
|
|
Next 3 months
|
LIBOR + 2.4%
|
|
|
|
|
|
|
|
|
Last 3 months
|
LIBOR + 3.0%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SUMMARY OF FACILITIES' TERMS
|
|||||||||
|
Commenced
|
Tenor (Years)
|
Matures
|
Secured
|
Security
|
Interest payment basis
|
Interest charge
|
Repayment term
|
Repaid
|
|
|
|
|
|
|
|
|
|
|
Matured
|
|
|
|
|
|
|
|
|
|
R1 billion revolving credit facility
|
February 2017
|
Three
|
February 2020
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
JIBAR + 3.15%
|
On maturity
|
November 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US$350 million facility
|
July 2017
|
Three
|
July 2020
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
|
On maturity
|
October 2019
|
- US$175 million revolving credit facility
|
|
|
|
|
|
|
LIBOR + 3.00%
|
|
|
- US$175 million term loan
|
|
|
|
|
|
|
LIBOR + 3.15%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US$200 million bridge loan
|
October 2017
|
One
|
October 2018
|
Yes
|
Cession and pledge of operating subsidiaries' shares and claims
|
Variable
|
|
On maturity
|
July 2018
|
|
|
|
|
|
|
First 6 months
|
LIBOR + 2.5%
|
|
|
|
|
|
|
|
|
Next 3 months
|
LIBOR + 3.0%
|
|
|
|
|
|
|
|
|
Last 3 months
|
LIBOR + 3.5%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
|
The syndicate of lenders for the US$400 million facility agreed to the one year extension during July 2020, extending the maturity date to September 2023. Refer to note 38 for details on subsequent events.
|
2
|
This facility was subsequently cancelled on 6 July 2020. Refer to note 38 for details on subsequent events.
|
30
|
BORROWINGS continued
|
•
|
The group's interest cover ratio shall be more than five times (EBITDA1/ Total interest paid);
|
•
|
Tangible Net Worth2 to total net debt ratio shall not be less than four times or six times when dividends are paid;
|
•
|
Leverage3 shall not be more than 2.5 times.
|
1
|
Earnings before interest, taxes, depreciation and amortisation (EBITDA) as defined in the agreement excludes unusual items such as impairment and restructuring cost.
|
2
|
Tangible Net Worth is defined as total equity less intangible assets. During June 2020, lenders agreed to relax the Tangible Net Worth to total net debt covenant from four times to two times until December 2020, in order to provide flexibility to the group following the disruptions from the COVID-19 pandemic.
|
3
|
Leverage is defined as total net debt to EBITDA.
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Non-current borrowings
|
|
|
||
|
|
|
||
R1 billion revolving credit facility
|
—
|
|
—
|
|
|
|
|
||
Balance at beginning of year
|
—
|
|
497
|
|
Draw down
|
—
|
|
500
|
|
Refinancing
|
—
|
|
(997
|
)
|
|
|
|
||
R2 billion facility
|
1 351
|
|
1 489
|
|
|
|
|
||
Balance at beginning of year
|
1 489
|
|
—
|
|
Refinancing
|
—
|
|
1 000
|
|
Draw down
|
1 100
|
|
700
|
|
Repayments
|
(1 100
|
)
|
(200
|
)
|
Transferred to current liabilities
|
(150
|
)
|
—
|
|
Issue cost
|
—
|
|
(16
|
)
|
Amortisation of issue cost
|
12
|
|
5
|
|
|
|
|
||
Westpac fleet loan
|
132
|
|
194
|
|
|
|
|
||
Balance at beginning of year
|
194
|
|
—
|
|
Draw down
|
—
|
|
322
|
|
Repayments
|
(96
|
)
|
(64
|
)
|
Transferred to current liabilities
|
(16
|
)
|
(89
|
)
|
Translation
|
50
|
|
25
|
|
|
|
|
||
US$350 million facility
|
—
|
|
4 143
|
|
|
|
|
||
Balance at beginning of year
|
4 143
|
|
4 427
|
|
Repayments
|
(4 465
|
)
|
(422
|
)
|
Amortisation of issue costs
|
24
|
|
44
|
|
Translation
|
298
|
|
94
|
|
|
|
|
||
US$400 million facility
|
5 980
|
|
—
|
|
|
|
|
||
Draw down
|
5 441
|
|
—
|
|
Issue cost
|
(95
|
)
|
—
|
|
Amortisation of issue costs
|
12
|
|
—
|
|
Translation
|
622
|
|
—
|
|
|
|
|
||
Total non-current borrowings
|
7 463
|
|
5 826
|
|
30
|
BORROWINGS continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Current borrowings
|
|
|
||
|
|
|
||
R1 billion revolving credit facility
|
—
|
|
—
|
|
|
|
|
||
Balance at beginning of year
|
—
|
|
3
|
|
Refinancing
|
—
|
|
(3
|
)
|
|
|
|
||
R2 billion facility
|
150
|
|
—
|
|
|
|
|
||
Transferred from non-current liabilities
|
150
|
|
—
|
|
|
|
|
||
Westpac fleet loan
|
105
|
|
89
|
|
|
|
|
||
Balance at beginning of year
|
89
|
|
—
|
|
Transferred from non-current liabilities
|
16
|
|
89
|
|
|
|
|
||
US$200 million bridge loan
|
—
|
|
—
|
|
|
|
|
||
Balance at beginning of year
|
—
|
|
687
|
|
Repayments
|
—
|
|
(667
|
)
|
Translation
|
—
|
|
(20
|
)
|
|
|
|
||
Total current borrowings
|
255
|
|
89
|
|
|
|
|
||
Total interest-bearing borrowings
|
7 718
|
|
5 915
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
The maturity of borrowings is as follows:
|
|
|
||
|
|
|
||
Current
|
255
|
|
89
|
|
Between one to two years
|
405
|
|
4 232
|
|
Between two to four years
|
7 058
|
|
1 594
|
|
|
|
|
||
|
7 718
|
|
5 915
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Undrawn committed borrowing facilities
|
|
|
||
|
|
|
||
Expiring within one year
|
—
|
|
—
|
|
Expiring after one year
|
1 366
|
|
1 277
|
|
|
|
|
||
|
1 366
|
|
1 277
|
|
30
|
BORROWINGS continued
|
|
2020
|
2019
|
|
%
|
%
|
|
|
|
R1 billion revolving credit facility
|
—
|
10.1
|
R2 billion facility
|
9.3
|
10.0
|
Westpac fleet loan
|
4.4
|
5.5
|
US$400 million facility
|
3.7
|
—
|
US$350 million facility
|
5.6
|
5.6
|
US$200 million bridge loan
|
—
|
5.1
|
|
|
|
31
|
TRADE AND OTHER PAYABLES
|
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Financial liabilities
|
|
|
||
|
|
|
||
Trade payables
|
706
|
|
763
|
|
Lease liability - current1
|
60
|
|
—
|
|
Other liabilities (a)
|
204
|
|
167
|
|
|
|
|
||
Non-financial liabilities
|
|
|
||
|
|
|
||
Payroll accruals
|
616
|
|
548
|
|
Leave liabilities (b)
|
537
|
|
540
|
|
Shaft related accruals
|
585
|
|
556
|
|
Other accruals
|
213
|
|
148
|
|
Value added tax
|
85
|
|
98
|
|
Income and mining tax
|
—
|
|
55
|
|
|
|
|
||
Total trade and other payables
|
3 006
|
|
2 875
|
|
(a)
|
Includes a loan from Village Main Reef Limited of R55 million. The loan was taken on with the acquisition of the Moab Khotsong operations. The loan is unsecured, interest free and has no fixed terms of payment.
|
(b)
|
Employee entitlements to annual leave are recognised on an ongoing basis. An accrual is made for the estimated liability for annual leave as a result of services rendered by employees up to the balance sheet date. The movement in the liability recognised in the balance sheet is as follows:
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
540
|
|
504
|
|
Benefits paid
|
(567
|
)
|
(537
|
)
|
Total expense per income statement
|
538
|
|
575
|
|
Translation (gain)/loss
|
26
|
|
(2
|
)
|
|
|
|
||
Balance at end of year
|
537
|
|
540
|
|
32
|
CASH GENERATED BY OPERATIONS
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Reconciliation of loss before taxation to cash generated by operations:
|
|
|
|
|||
|
|
|
|
|||
Loss before taxation
|
(595
|
)
|
(2 746
|
)
|
(4 707
|
)
|
Adjustments for:
|
|
|
|
|||
Amortisation and depreciation
|
3 508
|
|
4 054
|
|
2 570
|
|
Impairment of assets
|
—
|
|
3 898
|
|
5 336
|
|
Share-based payments
|
180
|
|
230
|
|
363
|
|
Net decrease in provision for post-retirement benefits
|
(12
|
)
|
(12
|
)
|
(10
|
)
|
Net decrease in provision for environmental rehabilitation
|
—
|
|
(53
|
)
|
(27
|
)
|
Loss on scrapping of property, plant and equipment
|
62
|
|
21
|
|
1
|
|
Profit from associates
|
(94
|
)
|
(59
|
)
|
(38
|
)
|
Investment income
|
(375
|
)
|
(308
|
)
|
(343
|
)
|
Finance costs
|
661
|
|
575
|
|
330
|
|
Inventory adjustments
|
(70
|
)
|
(166
|
)
|
(211
|
)
|
Foreign exchange translation difference
|
989
|
|
95
|
|
668
|
|
Non cash portion of gains/losses on derivatives
|
1 382
|
|
(429
|
)
|
549
|
|
Day one loss amortisation
|
40
|
|
32
|
|
37
|
|
Silicosis settlement provision
|
(119
|
)
|
(62
|
)
|
(68
|
)
|
Other non-cash adjustments
|
22
|
|
(16
|
)
|
(72
|
)
|
|
|
|
|
|||
Effect of changes in operating working capital items
|
|
|
|
|||
|
|
|
|
|||
(Increase)/decrease in Receivables
|
(349
|
)
|
32
|
|
(106
|
)
|
(Increase)/decrease in Inventories
|
(150
|
)
|
(88
|
)
|
(351
|
)
|
Increase/(decrease) in Payables
|
(49
|
)
|
54
|
|
368
|
|
|
|
|
|
|||
Cash generated by operations
|
5 031
|
|
5 052
|
|
4 289
|
|
(a)
|
Acquisitions of investments/business
|
(b)
|
Principal non-cash transactions
|
33
|
EMPLOYEE BENEFITS
|
|
•
|
Pension, provident and medical benefit plans are funded through monthly contributions. The group pays fixed contributions into a separate entity in terms of the defined contribution pension, provident and medical plans which are charged to the income statement in the year to which they relate. The group's liability is limited to its monthly determined contributions and it has no further liability, legal or constructive, if the fund does not hold sufficient assets to pay all employees the benefits relating to employee service in the current and prior periods. Refer to note 27 for details of the post-retirement medical benefit plan.
|
•
|
Termination benefits are payable when employment is terminated before the normal retirement date, or whenever an employee accepts voluntary redundancy in exchange for these benefits. The group recognises termination benefits at the earlier of the following dates: (a) when the group can no longer withdraw the offer of those benefits; and (b) when the entity recognises costs for a restructuring that is within the scope of IAS 37, Provisions, Contingent Liabilities and Contingent Assets, and involves the payment of termination benefits. In the case of an offer made to encourage voluntary redundancy, the termination benefits are measured based on the number of employees expected to accept the offer. Benefits falling due more than 12 months after balance sheet date are discounted to present value.
|
|
1
|
The Wafi-Golpu joint operation's employees included in the total is 81 (2019: 194).
|
2
|
These amounts have been included in cost of sales, corporate expenditure and capital expenditure.
|
34
|
SHARE-BASED PAYMENTS
|
|
•
|
The 2006 equity-settled share-based payments plan;
|
•
|
The equity-settled Sisonke Employee Share Ownership Plan (ESOP) awarded in 2019; and
|
•
|
The equity-settled Management Deferred Share Plan (DSP) awarded during the 2020 financial year.
|
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
2006 share plan
|
83
|
|
197
|
|
Sisonke ESOP
|
73
|
|
33
|
|
Management DSP
|
30
|
|
—
|
|
|
|
|
||
Total employee share-based payments
|
186
|
|
230
|
|
34
|
SHARE-BASED PAYMENTS continued
|
• Fault
|
All unvested and unexercised SARs and all PS and RS not yet vested are lapsed and cancelled.
|
• No fault
|
Accelerated vesting occurs and all unvested and unexercised share options are settled in accordance with the rules of the plan.
|
|
SARs
|
PS
|
RS
|
|||||
Activity on options and rights granted but not yet exercised
|
Number of options and rights
|
|
Weighted average option price (SA Rand)
|
|
Number of rights
|
|
Number of rights
|
|
|
|
|
|
|
||||
For the year ended 30 June 2020
|
|
|
|
|
||||
|
|
|
|
|
||||
Balance at beginning of year
|
6 713 044
|
|
26.45
|
|
21 007 596
|
|
—
|
|
Options exercised
|
(6 086 252
|
)
|
50.16
|
|
—
|
|
—
|
|
Options forfeited and lapsed
|
(249 459
|
)
|
23.97
|
|
(8 592 572
|
)
|
—
|
|
|
|
|
|
|
||||
Balance at end of year
|
377 333
|
|
18.41
|
|
12 415 024
|
|
—
|
|
34
|
SHARE-BASED PAYMENTS continued
|
|
SARs
|
PS
|
RS
|
|||||
Activity on options and rights granted but not yet exercised
|
Number of options and rights
|
|
Weighted average option price (SA Rand)
|
|
Number of rights
|
|
Number of rights
|
|
|
|
|
|
|
||||
For the year ended 30 June 2019
|
|
|
|
|
||||
|
|
|
|
|
||||
Balance at beginning of year
|
9 847 860
|
|
50.20
|
|
42 427 284
|
|
550 996
|
|
Options exercised
|
(1 564 486
|
)
|
27.50
|
|
(20 166 093
|
)
|
(550 996
|
)
|
Options forfeited and lapsed
|
(1 570 330
|
)
|
56.29
|
|
(1 253 595
|
)
|
—
|
|
|
|
|
|
|
||||
Balance at end of year
|
6 713 044
|
|
26.45
|
|
21 007 596
|
|
—
|
|
|
SARs
|
PS and RS
|
||||||
Options and rights vested but not exercised at year end
|
2020
|
|
2019
|
|
2020
|
|
2019
|
|
|
|
|
|
|
||||
Options and rights vested but not exercised
|
377 333
|
|
5 692 965
|
|
—
|
|
—
|
|
Weighted average option price (SA rand)
|
18.41
|
|
27.89
|
|
n/a
|
|
n/a
|
|
|
|
|
|
|
List of options and rights granted but not yet exercised (listed by grant date)
|
Number of options and rights
|
|
Award price (SA Rand)
|
|
Remaining life (years)
|
|
|
|
|
||
As at 30 June 2020
|
|
|
|
||
|
|
|
|
||
Share appreciation rights
|
|
|
|
||
17 November 2014
|
377 333
|
|
18.41
|
|
0.4
|
|
|
|
|
||
|
377 333
|
|
|
|
|
|
|
|
|
||
Performance shares
|
|
|
|
||
15 November 2017
|
12 415 024
|
|
n/a
|
|
0.4
|
|
|
|
|
||
|
12 415 024
|
|
|
|
|
|
|
|
|
||
Total options and rights granted but not yet exercised
|
12 792 357
|
|
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Gain realised by participants on options and rights traded during the year
|
142
|
|
484
|
|
|
|
|
||
Fair value of options and rights exercised during the year
|
144
|
|
489
|
|
34
|
SHARE-BASED PAYMENTS continued
|
•
|
Facilitate economic empowerment of Harmony’s employees;
|
•
|
Incentivise Harmony’s employees, so as to promote the shared interests of employees and shareholders in the value growth of Harmony; and
|
•
|
Further align the interests of the Harmony shareholders and those of the employees of Harmony.
|
Award
|
Vesting
|
Performance criteria
|
|
|
|
PU*
|
The PU will vest after three years from the date on which the service period commenced
|
The participant is still employed within the group
|
*
|
The term Participation Units means the vested rights of a beneficiary to an equal number of Harmony shares held by the Trust.
|
• Fault
|
All unvested and unexercised DS not yet vested are lapsed and cancelled.
|
• No fault
|
Accelerated vesting occurs and all unvested and unexercised DS are settled in accordance with the rules of the plan.
|
|
Number of PU
|
|||
Activity on PU granted but not exercised
|
2020
|
|
2019
|
|
|
|
|
||
Balance at beginning of year
|
6 819 025
|
|
—
|
|
Options granted
|
366 960
|
|
6 974 500
|
|
Options vested
|
(257 271
|
)
|
(107 100
|
)
|
Options forfeited and lapsed
|
(160 152
|
)
|
(48 375
|
)
|
|
|
|
||
Balance at end of year
|
6 768 562
|
|
6 819 025
|
|
|
2020
|
|
2019
|
|
|
|
|
||
Gain realised by participants on options exercised during the year (R'million)
|
12
|
|
3
|
|
Weighted average share price at the date of exercise (SA Rand)
|
48.21
|
|
27.16
|
|
Remaining life (years)
|
1.5
|
|
2.5
|
|
|
|
|
34
|
SHARE-BASED PAYMENTS continued
|
Award
|
Vesting
|
Performance criteria
|
|
|
|
DS*
|
The awards will vest at a rate of 20% per annum over the following five years for executive directors and prescribed officers, and one-third per annum over the following three years for qualifying management.
|
The participant is still employed within the group
|
*
|
Deferred shares
|
• Fault
|
All unvested and unexercised DS not yet vested are lapsed and cancelled.
|
• No fault
|
Accelerated vesting occurs and all unvested and unexercised DS are settled in accordance with the rules of the plan.
|
|
Number of DS
|
|
Activity on DS granted but not exercised
|
2020
|
|
|
|
|
Balance at beginning of year
|
—
|
|
Options granted
|
1 218 013
|
|
Options exercised
|
—
|
|
Options forfeited and lapsed
|
(55 861
|
)
|
|
|
|
Balance at end of year
|
1 162 152
|
|
List of options granted but not yet exercised (listed by grant date)
|
Number of options
|
|
Remaining life (years)
|
|
|
|
|
As at 30 June 2020
|
|
|
|
|
|
|
|
Deferred shares
|
|
|
|
18 September 2019 - 3 years
|
871 859
|
|
2.2
|
18 September 2019 - 5 years
|
290 293
|
|
4.2
|
|
|
|
|
Total options granted but not yet exercised
|
1 162 152
|
|
|
34
|
SHARE-BASED PAYMENTS continued
|
35
|
RELATED PARTIES
|
|
SA Rand
|
|||
Figures in million
|
Executive directors
|
|
Non- executive directors
|
|
|
|
|
||
2020
|
|
|
||
|
|
|
||
Salaries
|
19
|
|
—
|
|
Retirement contributions
|
3
|
|
—
|
|
Bonuses
|
5
|
|
—
|
|
Exercise/settlement of share options
|
9
|
|
—
|
|
Directors' fees
|
—
|
|
13
|
|
|
|
|
||
|
36
|
|
13
|
|
|
|
|
||
2019
|
|
|
||
|
|
|
||
Salaries
|
18
|
|
—
|
|
Retirement contributions
|
3
|
|
—
|
|
Bonuses
|
14
|
|
—
|
|
Exercise/settlement of share options
|
30
|
|
—
|
|
Directors' fees
|
—
|
|
12
|
|
|
|
|
||
|
65
|
|
12
|
|
35
|
RELATED PARTIES continued
|
|
Number of shares
|
|||
Name of director/prescribed officer
|
2020
|
|
2019
|
|
|
|
|
||
Directors
|
|
|
||
|
|
|
||
Peter Steenkamp
|
512 000
|
|
512 000
|
|
Andre Wilkens
|
101 301
|
|
101 301
|
|
Frank Abbott1
|
1 142 010
|
|
1 142 010
|
|
Harry 'Mashego' Mashego2
|
—
|
|
593
|
|
Ken Dicks3
|
35 000
|
|
35 000
|
|
|
|
|
||
Prescribed officers
|
|
|
||
|
|
|
||
Beyers Nel
|
42 486
|
|
42 486
|
|
Johannes van Heerden
|
160 000
|
|
160 000
|
|
Philip Tobias
|
169 294
|
|
169 294
|
|
|
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Sales and services rendered to related parties
|
|
|
||
|
|
|
||
Joint operations
|
3
|
|
3
|
|
|
|
|
||
Total
|
3
|
|
3
|
|
36
|
COMMITMENTS AND CONTINGENCIES
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Capital expenditure commitments
|
|
|
||
|
|
|
||
Contracts for capital expenditure
|
262
|
|
313
|
|
Share of joint operation's contracts for capital expenditure
|
106
|
|
105
|
|
Authorised by the directors but not contracted for
|
1 314
|
|
1 499
|
|
Total capital commitments
|
1 682
|
|
1 917
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Guarantees
|
|
|
||
|
|
|
||
Guarantees and suretyships
|
143
|
|
143
|
|
Environmental guarantees1
|
479
|
|
479
|
|
|
|
|
||
Total guarantees
|
622
|
|
622
|
|
|
|
(a)
|
On 1 December 2008, Harmony issued 3 364 675 Harmony shares to Rio Tinto Limited (Rio Tinto) for the purchase of Rio Tinto’s rights to the royalty agreement entered into prior to our acquisition of the Wafi deposits in PNG. The shares were valued at R242 million on the transaction date. An additional US$10 million in cash will be payable when the decision to mine is made. Of this amount, Harmony is responsible for paying the first US$6 million, with the balance of US$4 million being borne equally by the joint operators.
|
36
|
COMMITMENTS AND CONTINGENCIES continued
|
(b)
|
The group may have a potential exposure to rehabilitate groundwater and radiation that may exist where the group has and/or continues to operate. The group has initiated analytical assessments to identify, quantify and mitigate impacts if and when (or as and where) they arise. Numerous scientific, technical and legal studies are underway to assist in determining the magnitude of the contamination and to find sustainable remediation solutions. The group has instituted processes to reduce future potential seepage and it has been demonstrated that Monitored Natural Attenuation (MNA) by the existing environment will contribute to improvement in some instances. Water treatment facilities were successfully implemented at Doornkop, Tshepong Operations and Kusasalethu. These facilities are now assisting in reducing our dependency on state supplied potable water and will be key in managing any post closure decant should it arise.
|
(c)
|
Due to the interconnected nature of mining operations in South Africa, any proposed solution for potential flooding and potential decant risk posed by deep groundwater needs to be a combined one, supported by all the mines located in these goldfields. As a result, the Department of Mineral Resources and Energy and affected mining companies require the development of a regional mine closure strategy. Harmony operations have conducted a number of specialist studies and the risk of surface decant due to rising groundwater levels has been obviated at the entire Free State region and Kalgold. In addition, the decant from the KOSH groundwater system tied with our Moab Khotsong operation has been managed through an appropriate groundwater closure plan and sufficient provision has been set aside for this. Therefore, there is no contingency arising from these operations. Additional studies have been commissioned at Doornkop and Kusasalethu. Studies that have been conducted indicate that there is no risk of decant from Doornkop and Kusasalethu, but it is recommended that confirmatory studies be completed. In view of the limitation of current information for accurate estimation of a liability, no reliable estimate can be made for these operations.
|
(d)
|
The individual Harmony mining operations have applied for the respective National Water Act, Section 21 Water Use Licenses (WUL) to the Department of Water and Sanitation (DWS). The respective Water Use License Applications (WULA’s) have subsequently not yet been approved by DWS. Two WUL have been issued by DWS for Kalgold and Kusasalethu (amendment currently being drafted for both operations), with neither licence having any material impact to the operation. The remaining WULA’s have not yet been approved by DWS. The WUL conditions for the respective operations are subsequently not yet known and the subsequent potential water resource impact liability as part of the mine rehabilitation and closure process (to which DWS is an important participant and decision maker) is uncertain. The existing WUL for Moab Khotsong, which was recently acquired by Harmony, has already been approved by the DWS. The transferral of the licence and its conditions to Harmony is currently being processed. All operations continue to operate legally and responsibly.
|
(e)
|
In terms of the sale agreements entered into with Rand Uranium, Harmony retained financial exposure relating to environmental disturbances and degradation caused by it before the effective date, in excess of R75 million of potential claims. Rand Uranium is therefore liable for all claims up to R75 million and retains legal liability. The likelihood of potential claims cannot be determined presently and no provision for any liability has been made in the financial statements.
|
37
|
FINANCIAL RISK MANAGEMENT
|
Figures in million (SA Rand)
|
Debt instruments at amortised cost
|
|
Equity instruments designated at fair value through OCI
|
|
Derivatives designated as cash flow hedges
|
|
Derivatives at fair value through profit or loss
|
|
Debt instruments at fair value through profit or loss
|
|
Financial liabilities at amortised cost
|
|
|
|
|
|
|
|
|
||||||
At 30 June 2020
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Financial assets
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Restricted cash
|
169
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Restricted investments
|
2 698
|
|
—
|
|
—
|
|
—
|
|
837
|
|
—
|
|
Other non-current assets
|
5
|
|
77
|
|
—
|
|
—
|
|
306
|
|
—
|
|
Non-current derivative financial instruments
|
—
|
|
—
|
|
15
|
|
35
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
10
|
|
—
|
|
—
|
|
—
|
|
- US$ gold hedging contracts
|
—
|
|
—
|
|
5
|
|
—
|
|
—
|
|
—
|
|
- US$ silver contracts
|
—
|
|
—
|
|
—
|
|
5
|
|
—
|
|
—
|
|
- Foreign exchange contracts
|
—
|
|
—
|
|
—
|
|
30
|
|
—
|
|
—
|
|
- Rand gold derivative contracts
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Current derivative financial instruments
|
—
|
|
—
|
|
12
|
|
6
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
9
|
|
—
|
|
—
|
|
—
|
|
- US$ gold hedging contracts
|
—
|
|
—
|
|
3
|
|
—
|
|
—
|
|
—
|
|
- US$ silver contracts
|
—
|
|
—
|
|
—
|
|
6
|
|
—
|
|
—
|
|
Trade and other receivables
|
804
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Cash and cash equivalents
|
6 357
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
|
|
|
|
|
|
||||||
Financial liabilities
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Non-current derivative financial instruments
|
—
|
|
—
|
|
813
|
|
66
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
717
|
|
—
|
|
—
|
|
—
|
|
- US$ gold hedging contracts
|
—
|
|
—
|
|
96
|
|
—
|
|
—
|
|
—
|
|
- US$ silver contracts
|
—
|
|
—
|
|
—
|
|
1
|
|
—
|
|
—
|
|
- Foreign exchange contracts
|
—
|
|
—
|
|
—
|
|
65
|
|
—
|
|
—
|
|
Current derivative financial instruments
|
—
|
|
—
|
|
3 169
|
|
955
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
2 909
|
|
—
|
|
—
|
|
—
|
|
- US$ gold hedging contracts
|
|
|
260
|
|
—
|
|
—
|
|
—
|
|
||
- US$ silver contracts
|
—
|
|
—
|
|
—
|
|
3
|
|
—
|
|
—
|
|
- Foreign exchange contracts
|
—
|
|
—
|
|
—
|
|
695
|
|
—
|
|
—
|
|
- Rand gold derivative contracts
|
—
|
|
—
|
|
—
|
|
257
|
|
—
|
|
—
|
|
Borrowings
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
7 718
|
|
Other non-current liabilities
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
96
|
|
Trade and other payables
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
970
|
|
|
|
|
|
|
|
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
Figures in million (SA Rand)
|
Debt instruments at amortised cost
|
|
Equity instruments designated at fair value through OCI
|
|
Derivatives designated as cash flow hedges
|
|
Derivatives at fair value through profit or loss
|
|
Debt instruments at fair value through profit or loss
|
|
Financial liabilities at amortised cost
|
|
|
|
|
|
|
|
|
||||||
At 30 June 2019
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Financial assets
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Restricted cash
|
136
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Restricted investments
|
2 045
|
|
—
|
|
—
|
|
—
|
|
1 256
|
|
—
|
|
Other non-current assets
|
3
|
|
59
|
|
—
|
|
—
|
|
271
|
|
—
|
|
Non-current derivative financial instruments
|
—
|
|
—
|
|
24
|
|
173
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
23
|
|
—
|
|
—
|
|
—
|
|
- US$ gold hedging contracts
|
—
|
|
—
|
|
1
|
|
—
|
|
—
|
|
—
|
|
- Foreign exchange contracts
|
—
|
|
—
|
|
—
|
|
173
|
|
—
|
|
—
|
|
Current derivative financial instruments
|
—
|
|
—
|
|
26
|
|
283
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
22
|
|
—
|
|
—
|
|
—
|
|
- US$ gold hedging contracts
|
—
|
|
—
|
|
4
|
|
—
|
|
—
|
|
—
|
|
- US$ silver contracts
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
- Foreign exchange contracts
|
—
|
|
—
|
|
—
|
|
283
|
|
—
|
|
—
|
|
Trade and other receivables
|
627
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
Cash and cash equivalents
|
993
|
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
|
|
|
|
|
|
|
||||||
Financial liabilities
|
|
|
|
|
|
|
||||||
|
|
|
|
|
|
|
||||||
Non-current derivative financial instruments
|
—
|
|
—
|
|
172
|
|
—
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
158
|
|
—
|
|
—
|
|
—
|
|
- US$ gold hedging contracts
|
—
|
|
—
|
|
14
|
|
—
|
|
—
|
|
—
|
|
Current derivative financial instruments
|
—
|
|
—
|
|
205
|
|
65
|
|
—
|
|
—
|
|
- Rand gold hedging contracts
|
—
|
|
—
|
|
164
|
|
—
|
|
—
|
|
—
|
|
- US$ gold hedging contracts
|
—
|
|
—
|
|
41
|
|
—
|
|
—
|
|
—
|
|
- US$ silver contracts
|
—
|
|
—
|
|
—
|
|
2
|
|
—
|
|
—
|
|
- Foreign exchange contracts
|
—
|
|
—
|
|
—
|
|
2
|
|
—
|
|
—
|
|
- Rand gold derivative contracts
|
—
|
|
—
|
|
—
|
|
61
|
|
—
|
|
—
|
|
Borrowings
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
5 915
|
|
Other non-current liabilities
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
2
|
|
Trade and other payables
|
—
|
|
—
|
|
—
|
|
—
|
|
—
|
|
930
|
|
|
|
|
|
|
|
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Sensitivity analysis - borrowings
|
|
|
||
|
|
|
||
Rand against US$
|
|
|
||
|
|
|
||
Balance at 30 June
|
5 990
|
|
4 143
|
|
Strengthen by 10%
|
599
|
|
414
|
|
Weaken by 10%
|
(599
|
)
|
(414
|
)
|
|
|
|
||
Closing rate
|
17.32
|
|
14.13
|
|
|
|
|
||
US$ against Kina
|
|
|
||
|
|
|
||
Balance at 30 June
|
237
|
|
283
|
|
Strengthen by 10%
|
21
|
|
26
|
|
Weaken by 10%
|
(27
|
)
|
(31
|
)
|
|
|
|
||
Closing rate
|
0.29
|
|
0.30
|
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Sensitivity analysis - financial instruments
|
|
|
||
|
|
|
||
Rand against US$
|
|
|
||
|
|
|
||
Balance at 30 June
|
(731
|
)
|
454
|
|
Strengthen by 10%
|
954
|
|
567
|
|
Weaken by 10%
|
(1 106
|
)
|
(1 511
|
)
|
|
|
|
||
Closing rate
|
17.32
|
|
14.13
|
|
|
|
|
||
US$ against AUD
|
|
|
||
|
|
|
||
Balance at 30 June
|
339
|
|
—
|
|
Strengthen by 10%
|
31
|
|
—
|
|
Weaken by 10%
|
(38
|
)
|
—
|
|
|
|
|
||
Closing rate
|
0.69
|
|
0.70
|
|
|
|
|
||
US$ against Kina
|
|
|
||
|
|
|
||
Balance at 30 June
|
—
|
|
211
|
|
Strengthen by 10%
|
—
|
|
19
|
|
Weaken by 10%
|
—
|
|
(23
|
)
|
|
|
|
||
Closing rate
|
0.29
|
|
0.30
|
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Sensitivity analysis
|
|
|
||
|
|
|
||
Rand gold derivatives
|
|
|
||
|
|
|
||
Profit or loss
|
|
|
||
Increase by 10%
|
(91
|
)
|
(76
|
)
|
Decrease by 10%
|
102
|
|
79
|
|
|
|
|
||
Other comprehensive income
|
|
|
||
Increase by 10%
|
(1 279
|
)
|
(1 162
|
)
|
Decrease by 10%
|
1 433
|
|
1 174
|
|
|
|
|
||
|
|
|
||
US$ gold derivatives
|
|
|
||
|
|
|
||
Profit or loss
|
|
|
||
Increase by 10%
|
—
|
|
(20
|
)
|
Decrease by 10%
|
—
|
|
20
|
|
|
|
|
||
Other comprehensive income
|
|
|
||
Increase by 10%
|
(258
|
)
|
(110
|
)
|
Decrease by 10%
|
279
|
|
113
|
|
|
|
|
||
|
|
|
||
US$ silver derivatives
|
|
|
||
|
|
|
||
Profit or loss
|
|
|
||
Increase by 10%
|
(40
|
)
|
—
|
|
Decrease by 10%
|
41
|
|
4
|
|
|
|
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Sensitivity analysis - borrowings (finance costs)
|
|
|
||
|
|
|
||
Increase by 100 basis points
|
(77
|
)
|
(59
|
)
|
Decrease by 100 basis points
|
77
|
|
59
|
|
|
|
|
||
|
|
|
||
Sensitivity analysis - financial assets (interest received)
|
|
|
||
|
|
|
||
Increase by 100 basis points (a)
|
58
|
|
44
|
|
Decrease by 100 basis points (a)
|
(58
|
)
|
(44
|
)
|
|
|
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Cash and cash equivalents
|
|
|
||
|
|
|
||
AA
|
—
|
|
671
|
|
AA-
|
6 357
|
|
322
|
|
|
|
|
||
|
6 357
|
|
993
|
|
|
|
|
||
Restricted cash
|
|
|
||
|
|
|
||
AA
|
—
|
|
109
|
|
AA-
|
169
|
|
27
|
|
|
|
|
||
|
169
|
|
136
|
|
|
|
|
||
Restricted investments (environmental trusts)
|
|
|
||
|
|
|
||
AA
|
—
|
|
3 273
|
|
AA-
|
3 513
|
|
—
|
|
|
|
|
||
|
3 513
|
|
3 273
|
|
|
|
|
||
Derivative financial assets
|
|
|
||
|
|
|
||
AA
|
10
|
|
393
|
|
AA-
|
41
|
|
69
|
|
A+
|
15
|
|
44
|
|
|
|
|
||
|
66
|
|
506
|
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA Rand
|
|||
Figures in million
|
Current
|
|
More than 1 year
|
|
|
|
|
||
2020
|
|
|
||
|
|
|
||
Other non-current liabilities
|
—
|
|
101
|
|
Trade and other payables (excluding non-financial liabilities)
|
969
|
|
—
|
|
Derivative financial liabilities
|
4 238
|
|
962
|
|
Borrowings
|
|
|
||
Due between 0 to six months
|
257
|
|
—
|
|
Due between six to 12 months
|
399
|
|
—
|
|
Due between one to two years
|
—
|
|
779
|
|
Due between two to four years
|
—
|
|
7 536
|
|
|
|
|
||
|
5 863
|
|
9 378
|
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
|
SA Rand
|
|||
Figures in million
|
Current
|
|
More than 1 year
|
|
|
|
|
||
2019
|
|
|
||
|
|
|
||
Other non-current liabilities
|
—
|
|
2
|
|
Trade and other payables (excluding non-financial liabilities)
|
930
|
|
—
|
|
Derivative financial liabilities
|
280
|
|
194
|
|
Borrowings
|
|
|
||
Due between 0 to six months
|
242
|
|
—
|
|
Due between six to 12 months
|
241
|
|
—
|
|
Due between one to two years
|
—
|
|
4 578
|
|
Due between two to four years
|
—
|
|
1 624
|
|
|
|
|
||
|
1 693
|
|
6 398
|
|
|
SA Rand
|
|||
Figures in million
|
2020
|
|
2019
|
|
|
|
|
||
Cash and cash equivalents
|
6 357
|
|
993
|
|
Borrowings
|
(7 718
|
)
|
(5 915
|
)
|
|
|
|
||
Net debt
|
(1 361
|
)
|
(4 922
|
)
|
37
|
FINANCIAL RISK MANAGEMENT continued
|
Level 1:
|
Quoted prices (unadjusted) in active markets;
|
Level 2:
|
Inputs other than quoted prices included within level 1 that are observable for the asset, either directly (that is, as prices) or indirectly (that is, derived from other prices);
|
Level 3:
|
Inputs for the asset that are not based on observable market data (that is, unobservable inputs).
|
|
SA Rand
|
|||||||
Figures in million
|
At 30 June 2020
|
|
At 30 June 2019
|
|
||||
|
|
|
|
|
||||
|
Level 2
|
Level 3
|
Level 2
|
Level 3
|
||||
|
|
|
|
|
||||
Fair value through other comprehensive income
|
|
|
|
|
||||
Other non-current assets (a)
|
—
|
|
77
|
|
—
|
|
59
|
|
Fair value through profit or loss
|
|
|
|
|
||||
Restricted investments (b)
|
837
|
|
—
|
|
1 256
|
|
—
|
|
Derivative financial assets (c)
|
68
|
|
—
|
|
506
|
|
—
|
|
Derivative financial liabilities (c)
|
(5 003
|
)
|
—
|
|
(422
|
)
|
—
|
|
Loan to ARM BBEE Trust (d)
|
—
|
|
306
|
|
—
|
|
271
|
|
|
|
|
|
|
(a)
|
The increase in level 3 fair value measurement relates to the equity investment in Rand Mutual Assurance previously carried at cost. The fair value of the investment was estimated with reference to an independent valuation. A combination of the "Embedded Valuation" and "Net Asset Value" techniques were applied to revalue the investment as at 30 June 2020. In evaluating the group's share of the business, common practice marketability and minority discounts as well as additional specific risk discounts were applied.
|
(b)
|
The majority of the balance is directly derived from the Top 40 index on the JSE, and is discounted at market interest rate. This relates to equity-linked deposits in the group's environmental rehabilitation trust funds. The balance of the environmental trust funds are carried at amortised cost and therefore not disclosed here.
|
(c)
|
The mark-to market remeasurement of the derivative contracts was determined as follows:
|
•
|
Foreign exchange contracts comprise of zero cost collars and FECs: The zero cost collars were valued using a Black-Scholes valuation technique derived from spot Rand/US$ exchange rate inputs, implied volatilities on the Rand/US$ exchange rate, Rand/US$ inter-bank interest rates and discounted at market interest rate (zero-coupon interest rate curve). The value of the FECs is derived from the forward Rand/US$ exchange rate and discounted at market interest rate (zero-coupon interest rate curve).
|
•
|
Rand gold contracts (forward sale contracts): spot Rand/US$ exchange rate, Rand and dollar interest rates (forward points), spot US$ gold price, differential between the US interest rate and gold lease interest rate which is discounted at market interest rate.
|
•
|
US$ gold contracts (forward sale contracts): spot US$ gold price, differential between the US interest rate and gold lease interest rate and discounted at market interest rate.
|
•
|
Silver contracts (zero cost collars): a Black-Scholes valuation technique, derived from spot US$ silver price, strike price, implied volatilities, time to maturity and interest rates and discounted at market interest rate.
|
(d)
|
The increase in level 3 fair value measurement relates to the ARM BBEE loan that was carried at amortised cost prior to 1 July 2018. Refer to note 17. The fair value was calculated using a discounted cash flow model taking into account projected interest payments and the projected share price for African Rainbow Minerals Limited (ARM) on the expected repayment date. A 10% change in the discount rate of 9.8% would not cause a material change to the fair value of the loan. The fair value of the loan balance is limited to the sum of the capital amounts plus cumulative interest not paid, being R316 million.
|
38
|
SUBSEQUENT EVENTS
|
(a)
|
On 6 July 2020 Harmony and its subsidiaries cancelled the bridge loan of US$200 million (refer to note 30). The cancellation followed the successful equity raise on 24 June 2020 (refer to note 12).
|
(b)
|
On 6 July 2020 a payment of R300 million was made on the R2 billion facility while two payments of US$20 million each were made on 2 July 2020 (R340 million) and 8 July 2020 (R339 million) respectively on the US$400 million facility. Additional payments were made on the R2 billion facility and US$400 million facility of R600 million on 6 October 2020 and of US$30 million (R497 million) on 8 October 2020 respectively.
|
(c)
|
The syndicate of lenders for the US$400 million million facility agreed to the one year extension during July 2020, extending the maturity date to September 2023.
|
(d)
|
On 14 August 2020, Ms Shela Mohatla was appointed as Group Company Secretary by the board of directors. At the same time Mrs Marian van der Walt was appointed as Senior Group Executive: Enterprise Risk and Investor Relations and will be regarded as a prescribed officer going forward.
|
(e)
|
By 1 September 2020, Harmony had completed the recall of all operational employees.
|
(f)
|
The last condition precedent for the acquisition of AGA's remaining South African assets (refer note 12 for further detail) was fulfilled during September 2020. The cash consideration of US$200 million was paid on 30 September 2020 and amounted to R3.366 billion based on the average exchange rate set out in the agreement. Control transferred to Harmony on 1 October 2020.
|
(g)
|
On 30 September 2020, Harmony announced the resignations of Mr Ken Dicks and Mr Max Sisulu as independent non-executive directors as well as the retirement of Mr Frank Abbott as executive director with immediate effect.
|
39
|
SEGMENT REPORT
|
|
|
39
|
SEGMENT REPORT continued
|
|
Revenue
30 June
|
Production cost
30 June
|
Production profit/(loss)
30 June
|
Mining assets
30 June
|
Capital expenditure#
30 June
|
Kilograms produced*
30 June
|
Tonnes milled*
30 June
|
|||||||||||||||||||||||||||||||||||
|
2020
|
2019
|
2018
|
2020
|
2019
|
2018
|
2020
|
2019
|
2018
|
2020
|
2019
|
2018
|
2020
|
2019
|
2018
|
2020
|
2019
|
2018
|
2020
|
2019
|
2018
|
|||||||||||||||||||||
|
Rand million
|
Rand million
|
Rand million
|
Rand million
|
Rand million
|
Kg
|
t'000
|
|||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
South Africa
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Underground
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Tshepong Operations
|
5 452
|
|
4 685
|
|
5 389
|
|
4 298
|
|
3 973
|
|
3 799
|
|
1 154
|
|
712
|
|
1 590
|
|
6 733
|
|
6 297
|
|
8 078
|
|
930
|
|
1 130
|
|
1 008
|
|
7 293
|
|
7 967
|
|
9 394
|
|
1 417
|
|
1 612
|
|
1 716
|
|
Moab Khotsong
|
5 008
|
|
4 470
|
|
1 672
|
|
3 344
|
|
3 101
|
|
952
|
|
1 664
|
|
1 369
|
|
720
|
|
3 842
|
|
3 634
|
|
3 670
|
|
498
|
|
559
|
|
173
|
|
6 592
|
|
7 928
|
|
3 296
|
|
746
|
|
970
|
|
327
|
|
Bambanani
|
1 591
|
|
1 477
|
|
1 616
|
|
1 040
|
|
994
|
|
896
|
|
551
|
|
483
|
|
720
|
|
443
|
|
562
|
|
659
|
|
50
|
|
61
|
|
64
|
|
2 132
|
|
2 515
|
|
2 821
|
|
200
|
|
230
|
|
233
|
|
Joel
|
1 037
|
|
957
|
|
954
|
|
1 010
|
|
971
|
|
920
|
|
27
|
|
(14
|
)
|
34
|
|
1 080
|
|
947
|
|
995
|
|
151
|
|
187
|
|
250
|
|
1 391
|
|
1 567
|
|
1 635
|
|
349
|
|
429
|
|
454
|
|
Doornkop
|
2 270
|
|
1 931
|
|
1 958
|
|
1 730
|
|
1 564
|
|
1 411
|
|
540
|
|
367
|
|
547
|
|
2 841
|
|
2 759
|
|
2 721
|
|
281
|
|
308
|
|
274
|
|
2 994
|
|
3 273
|
|
3 429
|
|
681
|
|
730
|
|
696
|
|
Target 1
|
1 524
|
|
1 585
|
|
1 630
|
|
1 499
|
|
1 491
|
|
1 318
|
|
25
|
|
94
|
|
312
|
|
1 276
|
|
1 076
|
|
1 260
|
|
347
|
|
297
|
|
309
|
|
2 244
|
|
2 653
|
|
2 854
|
|
543
|
|
588
|
|
680
|
|
Kusasalethu
|
2 293
|
|
2 975
|
|
2 483
|
|
2 577
|
|
2 395
|
|
2 026
|
|
(284
|
)
|
580
|
|
457
|
|
1 253
|
|
1 300
|
|
2 151
|
|
188
|
|
316
|
|
289
|
|
3 015
|
|
4 989
|
|
4 429
|
|
615
|
|
742
|
|
670
|
|
Masimong
|
1 401
|
|
1 359
|
|
1 505
|
|
1 258
|
|
1 205
|
|
1 154
|
|
143
|
|
154
|
|
351
|
|
41
|
|
106
|
|
57
|
|
24
|
|
109
|
|
129
|
|
1 999
|
|
2 309
|
|
2 623
|
|
489
|
|
602
|
|
647
|
|
Unisel
|
681
|
|
713
|
|
733
|
|
580
|
|
564
|
|
771
|
|
101
|
|
149
|
|
(38
|
)
|
6
|
|
46
|
|
38
|
|
7
|
|
45
|
|
85
|
|
982
|
|
1 212
|
|
1 280
|
|
219
|
|
256
|
|
376
|
|
Surface
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
All other surface operations
|
3 302
|
|
2 403
|
|
2 009
|
|
2 135
|
|
1 938
|
|
1 521
|
|
1 167
|
|
465
|
|
488
|
|
745
|
|
724
|
|
553
|
|
118
|
|
84
|
|
136
|
|
4 349
|
|
4 099
|
|
3 570
|
|
16 264
|
|
15 931
|
|
14 143
|
|
Total South Africa
|
24 559
|
|
22 555
|
|
19 949
|
|
19 471
|
|
18 196
|
|
14 768
|
|
5 088
|
|
4 359
|
|
5 181
|
|
18 260
|
|
17 451
|
|
20 182
|
|
2 594
|
|
3 096
|
|
2 717
|
|
32 991
|
|
38 512
|
|
35 331
|
|
21 523
|
|
22 090
|
|
19 942
|
|
International
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Hidden Valley (a)
|
3 748
|
|
3 591
|
|
409
|
|
1 639
|
|
1 362
|
|
234
|
|
2 109
|
|
2 229
|
|
175
|
|
3 810
|
|
3 694
|
|
3 884
|
|
959
|
|
1 591
|
|
1 563
|
|
4 872
|
|
6 222
|
|
2 862
|
|
3 906
|
|
3 886
|
|
2 499
|
|
Total international
|
3 748
|
|
3 591
|
|
409
|
|
1 639
|
|
1 362
|
|
234
|
|
2 109
|
|
2 229
|
|
175
|
|
3 810
|
|
3 694
|
|
3 884
|
|
959
|
|
1 591
|
|
1 563
|
|
4 872
|
|
6 222
|
|
2 862
|
|
3 906
|
|
3 886
|
|
2 499
|
|
Total operations
|
28 307
|
|
26 146
|
|
20 358
|
|
21 110
|
|
19 558
|
|
15 002
|
|
7 197
|
|
6 588
|
|
5 356
|
|
22 070
|
|
21 145
|
|
24 066
|
|
3 553
|
|
4 687
|
|
4 280
|
|
37 863
|
|
44 734
|
|
38 193
|
|
25 429
|
|
25 976
|
|
22 441
|
|
Reconciliation of segment information to the consolidated income statement and balance sheet
|
938
|
|
766
|
|
94
|
|
938
|
|
766
|
|
82
|
|
—
|
|
—
|
|
12
|
|
22 622
|
|
15 591
|
|
15 455
|
|
|
|
|
|
|
|
|
|
|
|||||||||
|
29 245
|
|
26 912
|
|
20 452
|
|
22 048
|
|
20 324
|
|
15 084
|
|
7 197
|
|
6 588
|
|
5 368
|
|
44 692
|
|
36 736
|
|
39 521
|
|
3 553
|
|
4 687
|
|
4 280
|
|
37 863
|
|
44 734
|
|
38 193
|
|
25 429
|
|
25 976
|
|
22 441
|
|
#
|
Capital expenditure for international operations excludes expenditure spent on Wafi-Golpu of R54 million (2019: R350 million) (2018: R288 million).
|
(a)
|
Capital expenditure for 2018 comprises of expenditure of R2 609 million net of capitalised revenue of R1 046 million. No revenue was capitalised in 2019 or 2020.
|
*
|
Production statistics are unaudited.
|
40
|
RECONCILIATION OF SEGMENT INFORMATION TO CONSOLIDATED INCOME STATEMENTS AND BALANCE SHEETS
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Reconciliation of production profit to consolidated profit/(loss) before taxation
|
|
|
|
|||
|
|
|
|
|||
Revenue per segment report
|
28 307
|
|
26 146
|
|
20 358
|
|
Revenue per income statement
|
29 245
|
|
26 912
|
|
20 452
|
|
Other metal sales treated as by-product credits in the segment report
|
(938
|
)
|
(766
|
)
|
(93
|
)
|
Other adjustments
|
—
|
|
—
|
|
(1
|
)
|
|
|
|
|
|||
Production costs per segment report
|
(21 110
|
)
|
(19 558
|
)
|
(15 002
|
)
|
Production costs per income statement
|
(22 048
|
)
|
(20 324
|
)
|
(15 084
|
)
|
Other metal sales treated as by-product credits in the segment report
|
938
|
|
766
|
|
93
|
|
Other adjustments
|
—
|
|
—
|
|
(11
|
)
|
|
|
|
|
|||
|
|
|
|
|||
Production profit per segment report
|
7 197
|
|
6 588
|
|
5 356
|
|
Revenue not included in segments
|
—
|
|
—
|
|
1
|
|
Production costs adjustments not included in segments
|
—
|
|
—
|
|
11
|
|
Cost of sales items other than production costs
|
(3 860
|
)
|
(8 545
|
)
|
(8 512
|
)
|
|
|
|
|
|||
Amortisation and depreciation of mining assets
|
(3 409
|
)
|
(3 961
|
)
|
(2 468
|
)
|
Amortisation and depreciation of assets other than mining assets
|
(99
|
)
|
(93
|
)
|
(102
|
)
|
Rehabilitation expenditure
|
(47
|
)
|
(33
|
)
|
(67
|
)
|
Care and maintenance cost of restructured shafts
|
(146
|
)
|
(134
|
)
|
(128
|
)
|
Employment termination and restructuring costs
|
(40
|
)
|
(242
|
)
|
(208
|
)
|
Share-based payments
|
(130
|
)
|
(155
|
)
|
(244
|
)
|
Impairment of assets
|
—
|
|
(3 898
|
)
|
(5 336
|
)
|
Other
|
11
|
|
(29
|
)
|
41
|
|
|
|
|
|
|||
Gross profit/(loss)
|
3 337
|
|
(1 957
|
)
|
(3 144
|
)
|
Corporate, administration and other expenditure
|
(611
|
)
|
(731
|
)
|
(813
|
)
|
Exploration expenditure
|
(205
|
)
|
(148
|
)
|
(135
|
)
|
Gains/(losses) on derivatives
|
(1 678
|
)
|
484
|
|
99
|
|
Other operating expenses
|
(1 201
|
)
|
(186
|
)
|
(667
|
)
|
|
|
|
|
|||
Operating loss
|
(358
|
)
|
(2 538
|
)
|
(4 660
|
)
|
Share on profit from associate
|
94
|
|
59
|
|
38
|
|
Acquisition-related costs
|
(45
|
)
|
—
|
|
(98
|
)
|
Investment income
|
375
|
|
308
|
|
343
|
|
Finance costs
|
(661
|
)
|
(575
|
)
|
(330
|
)
|
|
|
|
|
|||
Loss before taxation
|
(595
|
)
|
(2 746
|
)
|
(4 707
|
)
|
40
|
RECONCILIATION OF SEGMENT INFORMATION TO CONSOLIDATED INCOME STATEMENTS AND BALANCE SHEETS continued
|
|
SA Rand
|
|||||
Figures in million
|
2020
|
|
2019
|
|
2018
|
|
|
|
|
|
|||
Reconciliation of total segment assets to consolidated assets includes the following:
|
|
|
|
|||
|
|
|
|
|||
Non-current assets
|
|
|
|
|||
|
|
|
|
|||
Property, plant and equipment
|
7 116
|
|
6 604
|
|
6 903
|
|
Intangible assets
|
536
|
|
533
|
|
545
|
|
Restricted cash
|
107
|
|
92
|
|
77
|
|
Restricted investments
|
3 535
|
|
3 301
|
|
3 271
|
|
Investments in associates
|
146
|
|
110
|
|
84
|
|
Inventories
|
47
|
|
43
|
|
46
|
|
Deferred tax assets
|
531
|
|
1
|
|
—
|
|
Other non-current assets
|
388
|
|
333
|
|
264
|
|
Derivative financial assets
|
50
|
|
197
|
|
84
|
|
|
|
|
|
|||
Current assets
|
|
|
|
|||
|
|
|
|
|||
Inventories
|
2 421
|
|
1 967
|
|
1 759
|
|
Restricted cash
|
62
|
|
44
|
|
38
|
|
Trade and other receivables
|
1 308
|
|
1 064
|
|
1 139
|
|
Derivative financial assets
|
18
|
|
309
|
|
539
|
|
Cash and cash equivalents
|
6 357
|
|
993
|
|
706
|
|
|
|
|
|
|||
|
22 622
|
|
15 591
|
|
15 455
|
|