AMENDMENT AND RESTATEMENT AGREEMENT relating to a ZAR6,000,000,000 REVOLVING FACILITY AGREEMENT

Exhibit 4.36

 

EXECUTION

 

 

AMENDMENT AND RESTATEMENT AGREEMENT

 

relating to a ZAR6,000,000,000 REVOLVING FACILITY AGREEMENT

 

 

dated    24   August 2018

 

for

 

SIBANYE GOLD LIMITED

 

arranged by

 

NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION)

 

FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)

 

ABSA BANK LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANK DIVISION)

 

THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION)

 

BANK OF CHINA LIMITED JOHANNESBURG BRANCH

as Mandated Lead Arrangers with

 

NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION)

acting as Agent

 

 

 

Table of contents

 

 

Schedule 1 The Existing Obligors

 

Schedule 2

Conditions precedent

 

Annexure 1

Second Amended and Restated Facility Agreement

 

 

 

Amendment and Restatement Agreement relating to a ZAR6,000,000,000 Revolving Facility Agreement

 

This Agreement is dated                                                       2018

 

Between

 

(1)          SIBANYE GOLD LIMITED (Sibanye Gold);

 

(2)          THE SUBSIDIARIES of Sibanye Gold listed in Schedule 1 (The Existing Obligors) as borrowers (together with Sibanye Gold, the Existing Borrowers);

 

(3)          THE SUBSIDIARIES of Sibanye Gold listed in Schedule 1 (The Existing Obligors) as guarantors (together with Sibanye Gold, the Existing Guarantors, and together with the Existing Borrowers, the Existing Obligors); and

 

(4)          NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION) as agent of the other Finance Parties (the Agent).

 

Recitals

 

A.           This Agreement is supplemental to and amends and restates the amended and restated ZAR6,000,000,000 revolving facility agreement originally dated 14 November 2016 and amended and restated on 28 September 2017 between, amongst others, Sibanye Gold, the Lenders, the Agent and the Arrangers (the Facility Agreement).

 

B.           The Parties have agreed to amend and restate the Facility Agreement on the terms and conditions of this Agreement.

 

C.           All Lenders (as defined in the Facility Agreement) have consented to the amendments to the Facility Agreement contemplated by this Agreement. Accordingly, the Agent is authorised to execute this Agreement on behalf of the Finance Parties.

 

It is agreed as follows:

 

1.           Definitions and construction

 

1.1         Definitions

 

Words and expressions defined in the Facility Agreement, as amended and restated by this Agreement, shall have the same meanings in this Agreement unless they are  otherwise defined herein. In addition, in this Agreement:

 

Agreement means this amendment and restatement agreement relating to the Facility Agreement.

 

Amended and Restated Facility Agreement means the Facility Agreement as amended and restated by this Agreement.

 

Continuing Obligor means each Existing Obligor other than Rand Uranium.

 

Effective Date means the date on which the Agent notifies Sibanye Gold in accordance with Clause 2.2 (Conditions precedent).

 

Facility Agreement means the facility agreement referred to in Recital A above.

 

Rand Uranium means Rand Uranium Proprietary Limited.

 

1.2         Construction

 

The principles of construction set out in Clauses 1.2 (Construction) and 1.3 (Currency symbols and definitions) of the Facility Agreement, as amended and restated by this Agreement, shall apply to this Agreement as they apply to the Facility Agreement.

 

1.3         Third party rights

 

The provisions of Clause 1.4 (Third party rights) of the Facility Agreement shall apply to this Agreement as they apply to the Facility Agreement.

 

2.           Amendment and restatement

 

2.1         Amendment and restatement

 

The Parties agree that with effect from the Effective Date, the Facility Agreement shall be amended and restated so as to be in the form set out in Annexure 1 (Amended and Restated Facility Agreement) hereto, so that with effect on the Effective Date, it shall be read and construed for all purposes in accordance with the Amended and Restated Facility Agreement.

 

2.2         Conditions precedent

 

The Agent shall promptly confirm, by written notice to Sibanye Gold, when it has received all of the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and substance satisfactory to it (or shall notify Sibanye Gold that it has, with the consent of the Majority Lenders, waived the receipt of such documents and other evidence).

 

2.3         Resignation of Guarantor

 

(a)          The Parties agree that, on the Effective Date, Rand Uranium Proprietary Limited (Rand Uranium) will be released from its obligations as a Guarantor under the Facility Agreement as contemplated in clause 26.6 (Resignation of Guarantor) of the Facility Agreement.

 

(b)          Sibanye Gold confirms that no Default is continuing as at Signature Date and the Effective Date or would result from such release.

 

(c)          Provided the provisions of this Agreement have been complied with, the conditions for Rand Uranium to be released as a Guarantor contained in the Facility Agreement shall be considered as having been satisfied on the Effective Date.

 

3.           Guarantees

 

3.1         Confirmation

 

Without prejudice to the rights of any Finance Party which have arisen on or before the Effective Date:

 

(a)          each Continuing Obligor confirms that, on and after the Effective Date, the Facility Agreement, as amended and restated by this Agreement, and the other Finance Documents will remain in full force and effect;

 

(b)          each Continuing Obligor shall continue to be bound by all of its obligations, on and after the Effective Date, under (i) the Amended and Restated Facility Agreement and (ii) the other Finance Documents;

 

(c)          each of the Parties confirm that the amendment (if any) of the Finance Documents pursuant to this Agreement or any other document shall not constitute a novation of the Finance Documents; and

 

(d)          each Guarantor that is a Continuing Obligor confirms that, on and after the Effective Date, its guarantee, undertaking and indemnity under Clause 19 (Guarantee and Indemnity) of the Facility Agreement will remain in full force and effect and will extend to each Continuing Obligor's obligations under the Finance Documents (including, without limitation, their obligations under the Amended and Restated Facility Agreement).

 

3.2         New Obligations

 

To the extent that the guarantee, undertaking or indemnity under Clause 19 (Guarantee and Indemnity) of the Facility Agreement of each Guarantor that is a Continuing Obligor is not, for any reason, enforceable on or after the Effective Date in relation to any Obligor's obligations under the Finance Documents (including, without limitation, their obligations under the Amended and Restated Facility Agreement) that Guarantor guarantees to, undertakes with and indemnifies each Finance Party on the terms of that clause in relation to those obligations on and after the Effective Date.

 

4.          Representations and warranties

 

The Repeating Representations are deemed to be repeated by each Obligor by reference to the facts and circumstances then existing on:

 

(a)          the date of this Agreement; and

 

(b)          (in the case of each Continuing Obligor only) the Effective Date.

 

5.           Further action

 

Each Obligor shall, at its own expense, promptly take any action and sign or execute any further documents which the Agent may reasonably require to give effect to the requirements of this Agreement.

 

6.           Costs and expenses

 

Sibanye Gold shall promptly on demand pay any Finance Party the amount of all the costs  and expenses (including legal fees subject to any agreed cap) reasonably incurred by such Finance Party in connection with the negotiation, preparation, printing and execution of this Agreement and any other documents referred to in this Agreement.

 

7.           Variation

 

No agreement to vary, add or cancel this Agreement shall be of any force or effect unless it is entered into in accordance with the provisions of Clause 36 (Amendment and Waiver) of the Amended and Restated Facility Agreement.

 

8.           Counterparts

 

This Agreement may be executed in any number of counterparts and by different Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

 

9.           Governing law and jurisdiction

 

The provisions of Clauses 45 (Governing law) and 46 (Enforcement) of the Facility Agreement shall apply to this Agreement as they apply to the Facility Agreement.

 

10.         Finance Documents

 

This Agreement is designated by the Agent and Sibanye Gold as a Finance Document.

 

This Agreement has been entered into on the date stated at the beginning of this Agreement.

 

 

Schedule 1

 

The Existing Obligors

 

 

 

Schedule 2

 

Conditions precedent

 

The documents and other evidence referred to in Clause 2.2 (Conditions precedent) are as follows:

 

1.           Obligors

 

Copies of each of the following:

 

(a)          A copy of the constitutional documents of each Obligor or, in the case of any such document, that Obligor's written confirmation, as at a date no earlier than the date of this Agreement, that such document has not been amended or varied since it was last provided to the Agent under the Facility Agreement.

 

(b)          A copy of a resolution of the board of directors of each Obligor:

 

(i)          approving the transactions contemplated by this Agreement and the Facility Agreement and resolving that it execute the Facility Agreement and any amendments thereto;

 

(ii)         authorising a specified person or persons to execute the Facility Agreement on its behalf and any amendments thereto; and

 

(iii)        authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Facility Agreement and the Finance Documents to which it is a party.

 

(c)          A specimen of the signature of each person authorised by the resolutions referred to in paragraph (b) above or confirmation that the authorised signatories have not changed since their specimen signatures were last provided to the Agent under the Facility Agreement.

 

(d)         A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Schedule 2 (Conditions Precedent) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.

 

(e)         A certificate of the authorised signatory of Sibanye Gold confirming as at the date of this Agreement that:

 

(i)           no Default has occurred or is continuing or will result from the execution of this Agreement and/or the Finance Documents (as the case may be) or, if a Default has occurred and is continuing, describing that Default and the steps being taken to remedy it; and

 

(ii)          the representations and warranties given by it under this Agreement and/or the Finance Documents (as the case may be) are correct in all respects or, if any such representation or warranty is not correct in all respects, describing the relevant misrepresentation and the steps being taken to remedy it.

 

2.           Finance Documents

 

A duly executed original of this Agreement.

 

3.            Legal opinions

 

(a)          A legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ New York, legal advisers to the Obligors in the State of New York in the United States of America, substantially in the form distributed to the Agent prior to signing this Agreement.

 

(b)          A legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Inc., legal advisers to the Arrangers and the Agent in South Africa, substantially in the form distributed to the Agent prior to signing this Agreement.

 

(c)          A legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ South Africa, legal advisers to the Obligors in South Africa, substantially in the form distributed to the Agent prior to signing this Agreement.

 

4.            Authorisations

 

A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified Sibanye Gold accordingly) in connection with the entry into and performance of the transactions contemplated by this Agreement or for the validity and enforceability of this Agreement and/or any Finance Document.

 

EXECUTION

 

SIBANYE GOLD LIMITED as an EXISTING BORROWER and an EXISTING GUARANTOR

 

/s/ ▇▇▇▇▇ ▇▇▇▇▇▇                                                               

 

By: ▇▇▇▇▇ ▇▇▇▇▇▇

 

Capacity: Director

 

Who warrants his/her authority hereto

 

SIBANYE RUSTENBERG PLATINUM MINES PROPRIETARY LIMITED as an EXISTING GUARANTOR

 

/s/ ▇▇▇▇▇ ▇▇▇▇▇▇                                                               

 

By: ▇▇▇▇▇ ▇▇▇▇▇▇

 

Capacity: Director

 

Who warrants his/her authority hereto

 

KROONDAL OPERATIONS PROPREITARY LIMITED as an EXISTING GUARANTOR

 

/s/ ▇▇▇▇▇ ▇▇▇▇▇▇                                                               

 

By: ▇▇▇▇▇ ▇▇▇▇▇▇

 

Capacity: Authorised Signatory

 

Who warrants his/her authority hereto

 

RAND URANIUM PROPRIETARY LIMITED as an EXISTING GUARANTOR

 

/s/ ▇▇▇▇▇ ▇▇▇▇▇▇                                                               

 

By: ▇▇▇▇▇ ▇▇▇▇▇▇

 

Capacity: Authorised Signatory

 

Who warrants his/her authority hereto

 

 

STILLWATER MINING COMPANY as an EXISTING GUARANTOR

 

/s/ ▇▇▇▇▇ ▇▇▇▇▇▇                                                               

 

By: ▇▇▇▇▇ ▇▇▇▇▇▇

 

Capacity: Director

 

Who warrants his/her authority hereto

 

 

THE AGENT

 

NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION)

 

 /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇                                                              

 

By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇

 

Capacity: Authorised Signatory

 

Who warrants his/her authority hereto

 

/s/ Dirk Jv Rensburg                                                               

 

By: Dirk Jv Rensburg

 

Capacity: Authorised Signatory

 

Who warrants his/her authority hereto

 

 

Annexure 1

 

Second Amended and Restated Facility Agreement

 

 

 

 

Execution

 

 

SECOND AMENDED AND RESTATED FACILITY AGREEMENT

 

 

SECOND AMENDED AND RESTATED REVOLVING FACILITY AGREEMENT

 

ZAR6,000,000,000

 

for

 

SIBANYE GOLD LIMITED

 

 

arranged by

 

 

NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION)

 

FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)

 

ABSA BANK LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANK DIVISION)

 

THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION)

 

BANK OF CHINA LIMITED JOHANNESBURG BRANCH

 

as Mandated Lead Arrangers

 

with

 

NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION)

 

acting as Agent

 

 

CONTENTS

 

 

 

 

THIS AGREEMENT is originally dated 14 November 2016 and amended and  restated on 28 September 2017, and further amended and restated on _ August 2018

 

BETWEEN:

 

(1)       SIBANYE GOLD LIMITED (the Sibanye Gold);

 

(2)       THE SUBSIDIARIES of Sibanye Gold listed in Part 1A of Schedule 1 as original borrowers;

 

(3)       THE SUBSIDIARIES of Sibanye Gold listed in Part 1A of Schedule 1 as original guarantors;

 

(4)       THE SUBSIDIARIES of Sibanye Gold listed in Part 1B of Schedule 1 as additional guarantors;

 

(5)       NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION) as co-ordinator (the Co-ordinator);

 

(6)       NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION), FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), ABSA BANK LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANK DIVISION), THE STANDARD BANK OF SOUTH AFRICA LIMITED (ACTING THROUGH ITS CORPORATE AND INVESTMENT BANKING DIVISION) AND BANK OF CHINA LIMITED JOHANNESBURG BRANCH as mandated lead arrangers (together with the Co-ordinator the Arrangers);

 

(7)       THE FINANCIAL INSTITUTIONS listed in Part 2 of Schedule 1 as lenders (the Original Lenders); and

 

(8)       NEDBANK LIMITED (ACTING THROUGH ITS NEDBANK CORPORATE AND INVESTMENT BANKING DIVISION) as agent of the other Finance Parties (the Agent).

 

IT IS AGREED as follows:

 

1.         DEFINITIONS AND INTERPRETATION

 

1.1            Definitions

 

In this Agreement:

 

1.1.1               Acceptable Bank means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A or higher by Standard & Poor’s Rating Services or Fitch Ratings Ltd or A2 or higher by ▇▇▇▇▇’▇ Investors Service Limited or a comparable rating from an internationally recognised credit rating agency;

 

1.1.2               Accession Letter means a document substantially in the form set out in Schedule 6 (Form of Accession Letter);

 

1.1.3               Accounting Principles means the IFRS as adopted by the International Accounting Standards Board, to the extent applicable to the relevant Financial Statements;

 

1.1.4               Additional Borrower means a company which becomes an Additional Borrower in accordance with Clause 26 (Change of Obligors);

 

1.1.5               Additional Guarantor means each company listed as such in Part 1B of Schedule 1 and any other company which becomes an Additional Guarantor in accordance with Clause 26 (Change of Obligors);

 

1.1.6               Additional Obligor means an Additional Borrower or an Additional Guarantor;

 

1.1.7               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;

 

1.1.8               Annual Financial Statements means the financial statements for a Financial Year delivered pursuant to Clause 21.1.1;

 

1.1.9               Applicable Inter-company Loans means inter-company loans which are fully subordinated to the liabilities of the Obligors under the Finance Documents and are between Obligors;

 

1.1.10             Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration;

 

1.1.11             Availability Period means the period from and including the Signature Date and ending on the earlier of:

 

1.1.11.1                the date on which the Facility is cancelled; and

 

1.1.11.2                the date falling one month prior to the Termination Date;

 

1.1.12             Available Commitment means a Lender’s Commitment minus:

 

1.1.12.1                the amount of its participation in any outstanding Loans; and

 

1.1.12.2                in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date, other than that Lender’s participation in any Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date;

 

1.1.13             Available Facility means the aggregate for the time being of each Lender’s Available Commitment;

 

1.1.14             Borrower means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 26 (Change of Obligors);

 

1.1.15             Break Costs means the amount (if any) by which:

 

1.1.15.1          the interest (excluding the 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;

 

exceeds:

 

1.1.15.2          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 for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period;

 

1.1.16             Burnstone means Sibanye Gold Eastern Operations Proprietary Limited (previously known as Southgold Exploration Proprietary Limited);

 

1.1.17             Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Johannesburg;

 

1.1.18            Code means the US Internal Revenue Code of 1986;

 

1.1.19            Commitment means:

 

1.1.19.1                in relation to an Original Lender, the amount set opposite its name under the heading “Commitment” in Part 2 of Schedule 1(The Original Parties) and the amount of any other Commitment transferred to it under this Agreement; and

 

1.1.19.2                in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement, to the extent not cancelled, reduced or transferred by it under this Agreement;

 

1.1.20              Companies Act means the Companies Act, 2008 of South Africa and all regulations promulgated under that Act;

 

1.1.21              Company means:

 

1.1.21.1                 for the period up to and including the New TopCo Accession Date, Sibanye Gold; and

 

1.1.21.2                 after the New TopCo Accession Date, New Topco;

 

1.1.22             Compliance Certificate means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate);

 

1.1.23             Confidential Information means all information relating to the Company, any Obligor, the Group, the Stillwater Group, the Finance Documents or the 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 the Facility from either:

 

1.1.23.1                any member of the Group or the Stillwater Group or any of their respective advisers; or

 

1.1.23.2                another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or the Stillwater Group or any of their respective advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:

 

1.1.23.3                information that:

 

1.1.23.3.1                    is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 37 (Confidential Information); or

 

1.1.23.3.2                    is identified in writing at the time of delivery as non-confidential by any member of the Group or the Stillwater Group or any of their respective advisers; or

 

1.1.23.3.3                    is known by that Finance Party before the date the information is disclosed to it in accordance with Clause 1.1.23.1 or 1.1.23.2 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

 

1.1.23.3.4                    relates to any Funding Rate;

 

1.1.24             Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Company and the Agent;

 

1.1.25             Consolidated EBITDA has the meaning given to that term in Clause 22.1 (Financial Definitions);

 

1.1.26             Covenant Adjustment Period means the period from and including 30 June 2017 up to and including 31 December 2018;

 

1.1.27             Default means an Event of Default or any event or circumstance specified in Clause 24 (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;

 

1.1.28              Defaulting Lender means any Lender:

 

1.1.28.1                which has failed to make its participation in a Loan available (or has notified the Agent or the Company (which has notified the 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);

 

1.1.28.2                which has otherwise rescinded or repudiated a Finance Document; or

 

1.1.28.3                with respect to which an Insolvency Event has occurred and is continuing, unless, in the case of Clause ▇.▇.▇▇.▇:

 

1.1.28.4                 its failure to pay is caused by:

 

1.1.28.4.1                    administrative or technical error; or

 

1.1.28.4.2                    a Disruption Event; and payment is made within five Business Days of its due date; or

 

1.1.28.5                 the Lender is disputing in good faith whether it is contractually obliged to make the payment in question;

 

1.1.29              Disruption Event means either or both of:

 

1.1.29.1                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

 

1.1.29.2                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:

 

1.1.29.3                from performing its payment obligations under the Finance Documents; or

 

1.1.29.4                from communicating with other Parties in accordance with the terms of the Finance Documents, and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted;

 

1.1.30              DRDGold means DRDGOLD Limited;

 

1.1.31              EBITDA has the meaning given to that term in Clause 22.1 (Financial Definitions);

 

1.1.32             Effective Amendment Date means the Effective Date as defined in the  Second Amendment and Restatement Agreement;

 

1.1.33             Effective Date means the date of the notice given by the Agent pursuant to Clause 4.1 (Initial conditions precedent), being 15 November 2016;

 

1.1.34             Encumbrance means:

 

1.1.34.1                any mortgage, bond, notarial bond, pledge, lien, assignment or cession conferring security, hypothecation, a security interest, preferential right or trust arrangement or other encumbrance of the like securing any obligation of any person; or

 

1.1.34.2                any arrangement under which money or claims to, or for the benefit of, a bank or other account may be applied, set off or made subject to a combination of accounts so as to effect discharge of any sum owed or payable to any person; or

 

1.1.34.3                any other type of preferential agreement or arrangement (including any title transfer and retention arrangement), the effect of which is the creation of a security interest;

 

1.1.35             ERISA means, at any date, the United States Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time, and the regulations promulgated thereunder, as the same may be in effect at such date;

 

1.1.36             ERISA Affiliate means any person that for purposes of Title I and Title IV of ERISA and section 412 of the Code is treated as a single employer with any Obligor under section 414 of the Code or section 4001 of ERISA;

 

1.1.37             Eskom means Eskom Holdings SOC Limited;

 

1.1.38             Event of Default means any event or circumstance specified as such in Clause 24 (Events of Default);

 

1.1.39             Existing Facilities means the term and revolving facilities made available to Sibanye Gold pursuant to a ZAR4,000,000,000 facilities agreement entered into between amongst others, Sibanye Gold, Absa Bank Limited (acting through its Absa Capital Division) Nedbank  Limited (acting through its Nedbank Corporate and Investment Banking Division), The Standard Bank of South Africa Limited (acting through its Corporate and Investment Banking Division), FirstRand Bank Limited (acting through its Rand Merchant Bank division), Bank of China Limited, Johannesburg Branch and Investec Bank Limited (acting through its Corporate and Institutional Banking division), as amended and restated on 6 October 2015;

 

1.1.40              Existing Facilities Repayment Amount means the amount required by Sibanye Gold to fund the prepayment or repayment (as the case may be) of any amounts owing under the Existing Facilities in full;

 

 

1.1.41             Facility means the revolving loan facility made available under this Agreement as described in Clause 2 (The Facility);

 

1.1.42             Facility Office means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement;

 

1.1.43             Fallback Interest Period means a period of one week;

 

1.1.44             FATCA means:

 

1.1.44.1                sections 1471 to 1474 of the Code or any associated regulations;

 

1.1.44.2                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 1.1.44.1; or

 

1.1.44.3                any agreement pursuant to the implementation of any treaty, law or regulation referred to in Clauses 1.1.44.1 or 1.1.44.2 with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;

 

1.1.45             FATCA Application Date means:

 

1.1.45.1                in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;

 

1.1.45.2                in relation to a “withholdable payment” described in section 1473(1)(A)(ii) of the Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources within the US), 1 January 2019; or

 

1.1.45.3                in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within Clauses 1.1.45.1 or 1.1.45.2, 1 January 2019, or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the Signature Date;

 

1.1.46             FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA;

 

1.1.47             FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction;

 

 

1.1.48             Fee Letter means any letter or letters dated on or about the Signature Date between each Original Lender and Sibanye Gold (or the Agent and Sibanye Gold) setting out any of the fees referred to in Clause 13 (Fees);

 

1.1.49             Finance Document means this Agreement, any Fee Letter, the Funds Flow Confirmation Letter, any Accession Letter, any Resignation Letter and any other document designated  as such by the Agent and the Company;

 

1.1.50             Finance Party means the Agent, the Arrangers or a Lender;

 

1.1.51             Financial Half Year has the meaning given to that term in Clause 22.1 (Financial Definitions);

 

1.1.52             Financial Indebtedness means (without double counting) any indebtedness for or in respect of:

 

1.1.52.1                moneys borrowed or credit granted;

 

1.1.52.2                any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;

 

1.1.52.3                any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

 

1.1.52.4                the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with IFRS, be treated as a balance sheet liability (other than any liability in respect of a lease or hire purchase contract which would, in accordance with IFRS in force as at the Signature Date have been treated as an operating lease);

 

1.1.52.5                receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis);

 

1.1.52.6                any amount of liability in respect of any purchase price for assets or services the payment of which is deferred where the deferral of such price is either:

 

1.1.52.6.1                    used primarily as a method of raising credit; or

 

1.1.52.6.2                    not made in the ordinary course of business;

 

1.1.52.7                any agreement or option to re-acquire an asset if one of the primary reasons for entering into such agreement or option is to raise finance;

 

1.1.52.8                any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;

 

1.1.52.9                any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative

 

 

transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that derivative transaction, that amount) shall be taken into account);

 

1.1.52.10              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;

 

1.1.52.11              the amount raised by the issue of redeemable shares to the extent such shares are redeemable prior to the Termination Date; and

 

1.1.52.12              the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in Clauses 1.1.52.1 to 1.1.52.11;

 

1.1.53             Financial Half Year has the meaning given to that term in Clause 22.1 (Financial Definitions);

 

1.1.54             Financial Quarter has the meaning given to that term in Clause 22.1 (Financial Definitions);

 

1.1.55             Financial Statements means any financial statements referred to in Clause 21.1 (Financial Statements);

 

1.1.56             Financial Year has the meaning given to that term in Clause 22.1 (Financial Definitions);

 

1.1.57             Franco-Nevada Loan means the loan owing by Ezulwini Mining Company to Franco- Nevada GLW Holdings Corp., Gold Wheaton Gold Corp., Franco Nevada (Barbados) Corporation (previously known as Gold Wheaton (Barbados Corporation) and/or any one or more of their respective affiliates;

 

1.1.58             Franco-Nevada Loan Agreement means a written gold purchase agreement dated 5 November 2009 concluded amongst Ezulwini Mining Company and Franco-Nevada GLW Holdings Corp., Gold Wheaton Gold Corp. and Franco-Nevada (Barbados) Corporation (previously known as Gold Wheaton (Barbados Corporation) pursuant to which the Franco- Nevada Loan is made available to Ezulwini Mining Company;

 

1.1.59             Funds Flow Confirmation Letter means the written letter agreement entered into between the Finance Parties and Sibanye Gold, pursuant to which certain matters regarding the payments in respect of the first Utilisation are regulated;

 

1.1.60             Funding Rate means any individual rate notified by a Lender to the Agent pursuant to Clause 12.3 (Cost of Funds);

 

1.1.61             Group means the Company and its Subsidiaries for the time being;

 

1.1.62             Group Structure Chart means the group structure chart in agreed form showing at least the following information:

 

 

1.1.62.1                each member of the Group, including current name and company registration number, its jurisdiction of incorporation and/or its jurisdiction of establishment;

 

1.1.62.2                a list of shareholders of each member of the Group; and

 

1.1.62.3                indicating whether it is not a company with limited liability;

 

1.1.63             Guarantor means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 26 (Change of Obligors);

 

1.1.64             Guarantor Threshold Test has the meaning given to that term in Clause 23.20 (Guarantors);

 

1.1.65             Historic Screen Rate means, in relation to any Loan, the most recent applicable Screen Rate for rand and for a period equal in length to the Interest Period of that Loan and which is as of a day which is no more than 3 days before the Quotation Day;

 

1.1.66             Holding Company means, in relation to a person, any other person in respect of which it is a Subsidiary;

 

1.1.67             IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant Financial Statements;

 

1.1.68             Impaired Agent means the Agent at any time when:

 

1.1.68.1                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;

 

1.1.68.2                 the Agent otherwise rescinds or repudiates a Finance Document;

 

1.1.68.3                (if the Agent is also a Lender) it is a Defaulting Lender under Clause 1.1.28.1or 1.1.28.2 or 1.1.28.3 of the definition of “Defaulting Lender”; or

 

1.1.68.4                 an Insolvency Event has occurred and is continuing with respect to the Agent; unless, in the case of Clause ▇.▇.▇▇.▇:

 

1.1.68.5                 its failure to pay is caused by:

 

1.1.68.5.1                    administrative or technical error; or

 

1.1.68.5.2                    a Disruption Event; and

 

1.1.68.6                 payment is made within five Business Days of its due date; or

 

1.1.68.7                 the Agent is disputing in good faith whether it is contractually obliged to make the payment in question;

 

 

1.1.69             Indebtedness for Borrowed Money means Financial Indebtedness save for any indebtedness for or in respect of Clauses 1.1.52.9 and 1.1.52.10 of the definition of “Financial Indebtedness”, or in respect of any guarantee or indemnity of such indebtedness if and to the extent only 1.1.52.9 and 1.1.52.10 are not closed-out and/or called and consequently constitute Financial Indebtedness;

 

1.1.70             Insolvency Event in relation to an entity means that the entity:

 

1.1.70.1                is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

1.1.70.2                becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

 

1.1.70.3                institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

 

1.1.70.4                has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in Clause 1.1.70.3 and:

 

1.1.70.4.1                    results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

1.1.70.4.2                    is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

1.1.70.5                has a resolution passed for its winding-up, official management or liquidation (other  than pursuant to a consolidation, amalgamation or merger);

 

1.1.70.6                seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in Clause 1.1.70.3);

 

1.1.70.7                has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

1.1.70.8                causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in Clauses 1.1.70.1 to 1.1.70.7; or

 

1.1.70.9                takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts;

 

1.1.71             Interest Period means, in relation to a Loan, each period determined in accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 10.3 (Default Interest);

 

1.1.72             Interpolated Historic Screen Rate means, in relation to JIBAR 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:

 

1.1.72.1                the most recent 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

 

1.1.72.2                the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan, each for rand and each of which is as of a day which is no more than 3 days before the Quotation Day;

 

1.1.73             Interpolated Screen Rate means, in relation to 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:

 

1.1.73.1                the most recent 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

 

1.1.73.2                the most recent applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan, each as of the Specified Time for rand;

 

1.1.74             JIBAR means, in relation to any Loan:

 

1.1.74.1                the applicable Screen Rate as of the Specified Time for rand and for a period equal in length to the Interest Period of that Loan; or

 

 

1.1.74.2               as otherwise determined pursuant to Clause 12 (Changes to the Calculation of Interest), and if, in either case, that rate is less than zero, JIBAR shall be deemed to be zero;

 

1.1.75             JSE means the Johannesburg Stock Exchange, a licensed financial exchange in terms of the Financial Markets Act, 2012, as managed by JSE Limited, a public company duly incorporated in accordance with the laws of South Africa with registration number 2005/022939/06, or any other financial exchange which operates as a successor exchange to the Johannesburg Stock Exchange;

 

1.1.76             JSE Listings Requirements means the listings requirements published by the JSE, as amended from time to time;

 

1.1.77             Legal Reservations means:

 

1.1.77.1                the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

 

1.1.77.2                the time barring of claims under the Prescription Act,1969;

 

1.1.77.3                similar principles, rights and defences under the laws of any relevant jurisdiction; and

 

1.1.77.4                any other matters which are set out as qualifications or reservations as to matters of law of general application in the legal opinions delivered to the Agent under Clause 4.1 (Initial Conditions Precedent) or Clause 26 (Changes of Obligors);

 

1.1.78             Lender means:

 

1.1.78.1                any Original Lender; and

 

1.1.78.2                any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 25 (Changes to the Lenders), which in each case has not ceased to be a Party in accordance with the terms of this Agreement;

 

1.1.79             LMA means the Loan Market Association;

 

1.1.80             Loan means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan;

 

1.1.81             Lonmin Merger means the merger of Lonmin Plc and the Company to be effected by a share-for-share exchange between the Company and the shareholders of Lonmin Plc pursuant to the offer by Sibanye Gold initially announced on 14 December 2017, or any revised offer approved by the Facility Agent in writing;

 

 

1.1.82             Majority Lenders means a Lender or Lenders whose Commitments aggregate  more than  66 2/3% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66 2/3% of the Total Commitments immediately prior to the reduction);

 

1.1.83             Margin means:

 

1.1.83.1                 during the Covenant Adjustment Period, the percentage amount determined by reference to the ratio of Consolidated Net Borrowings to Consolidated EBITDA in respect of the most recent Measurement Period (the Relevant Measurement Period) using the table below:

 

 

 

and

 

1.1.83.2                after the Covenant Adjustment Period, 2.40%, provided that during the Covenant Adjustment Period:

 

1.1.83.2.1                    any reduction or increase in the Margin that would otherwise take effect after the start of the Covenant Adjustment Period under Clause 1.1.83.1 shall only take effect from the first day of the Interest Period following receipt by the Agent of the Compliance Certificate pursuant to Clause 21.2 (Compliance Certificate) in respect of the Relevant Measurement Period; and

 

1.1.83.2.2                    if, following receipt by the Agent of the Compliance Certificate related to  the Annual Financial Statements relating to any Relevant Measurement Period, that Compliance Certificate and those Financial Statements do not confirm the basis for the Margin that had been determined by reference to the ratio of Consolidated Net Borrowings to Consolidated EBITDA calculated on the basis of the Compliance Certificate relating to the unaudited financial statements previously delivered to the Agent in respect of that Relevant Measurement Period, then Clause 10.5 shall apply and the Margin shall be the percentage rate determined using the table in Clause 1.1.83.1 and the revised ratio of Consolidated Net Borrowings to Consolidated EBITDA calculated using the figures in the Compliance Certificate related to the relevant Annual Financial Statements;

 

1.1.84             Margin Regulations means Regulations T, U and X issued by the Board of Governors of the United States Federal Reserve System;

 

 

1.1.85             Material Adverse Effect means a material adverse effect on:

 

1.1.85.1                 the business, operations, property or financial condition of the Group taken as a whole; or

 

1.1.85.2                 the ability of the Obligors together to perform their financial or other obligations under the Finance Documents;

 

1.1.86             Material Company means any member of the Group (other than an Obligor and a Project Finance Subsidiary) which:

 

1.1.86.1                has EBITDA (determined on the same basis as Consolidated EBITDA) representing 5% or more of Consolidated EBITDA (provided that any amounts attributable to Project Finance Subsidiaries shall be excluded from the calculation of Consolidated EBITDA); or

 

1.1.86.2                has gross assets representing 10% or more of the gross assets of the Group (excluding assets of Project Finance Subsidiaries) calculated on a consolidated basis; Compliance with the conditions set out in Clauses 1.1.86.1 and 1.1.86.2 shall be determined by reference to the most recent Compliance Certificate supplied by the Company and/or the latest audited annual financial statements or unaudited half-yearly financial statements of that member of the Group (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited annual consolidated financial statements or unaudited half-yearly consolidated financial statements of the Company;

 

1.1.87             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:

 

1.1.87.1                subject to Clause 1.1.87.3 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;

 

1.1.87.2                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; and

 

1.1.87.3                if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end; the above rules will only apply to the last Month of any period;

 

1.1.88             Multiemployer Plan means any Plan which is described in section 4001(A)(3) of ERISA;

 

1.1.89             New Lender has the meaning given to that term in Clause 25 (Changes to the Lenders);

 

 

1.1.90             New TopCo means the company to be incorporated (in South Africa, the United Kingdom or such other jurisdiction approved in writing by the Facility Agent) as a new holding company of Sibanye Gold and interposed between Sibanye Gold and its existing shareholders, and which shall be listed on the ▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ Stock Exchange or London Stock Exchange;

 

1.1.91             New TopCo Accession Date means the date on which New TopCo accedes to this Agreement as a Party, as contemplated in Clause 23.22 (New TopCo accession);

 

1.1.92             Non-Obligor means any person that is not an Obligor or a Project Finance Subsidiary;

 

1.1.93             Non-Obligor Restricted Company means a Restricted Company that is not an Obligor;

 

1.1.94             Non-Project Finance Group Member means any member of the Group other than a Project Finance Subsidiary;

 

1.1.95             NYSE means the New York Stock Exchange;

 

1.1.96             Obligor means a Borrower or a Guarantor;

 

1.1.97             Original Financial Statements means:

 

1.1.97.1                in relation to Sibanye Gold, the audited consolidated financial statements of the Group for the Financial Year ended 31 December 2015;

 

1.1.97.2                in relation to Kroondal Operations Proprietary Limited, its audited financial statements for the Financial Year ended 30 June 2016;

 

1.1.97.3                in relation to Sibanye Rustenburg Platinum Mines Proprietary Limited, its audited financial statements for its Financial Year ended 31 December 2015; and

 

1.1.97.4                in relation  to Stillwater, its audited financial statements for  the  Financial Year  ended  31 December 2016;

 

1.1.98             Original Obligor means an Original Borrower or an Original Guarantor;

 

1.1.99             Party means a party to this Agreement;

 

1.1.100           PBGC means the US Pension Benefit Guaranty Corporation or any entity succeeding to all or any of its functions under ERISA;

 

1.1.101           Permitted Acquisition means:

 

1.1.101.1              the Stillwater Acquisition;

 

1.1.101.2              the Lonmin Merger;

 

1.1.101.3              Project Top Deck;

 

 

1.1.101.4              any transaction in respect of which the disposing entity is a member of the Group if the disposal falls within Clauses 1.1.102.5 or 1.1.102.6 of the definition of Permitted Disposal;

 

1.1.101.5              an acquisition of product from another member of the Group which is to be subsequently disposed of by the acquiring company pursuant to a Streaming Transaction provided that if such disposal is made by a Restricted Company it falls within Clause 1.1.102.3 of the definition of Permitted Disposal;

 

1.1.101.6              an acquisition by Sibanye Gold of shares in K2017449061 (South Africa) Proprietary Limited and subsequent acquisition by Sibanye of shares in DRDGold, initially constituting approximately 38% of the issued share capital of DRDGold, in exchange for shares in K2017449061 (South Africa) Proprietary Limited; or

 

1.1.101.7              any other acquisition which is not classified as a “Category 1 Transaction” of the Company in terms of the JSE Listings Requirements, provided that no acquisition of a company or business that is completed during the Covenant Adjustment Period shall be treated as a Permitted Acquisition under this Clause 1.1.101.7 if (a) it would result in Indebtedness for Borrowed Money of the Group (as determined on a consolidated basis) increasing by more than ZAR 20,000,000 (or its equivalent in other currencies) at the time of its completion (a “Leverage Acquisition”) and (b) the aggregate amount by which Indebtedness for Borrowed Money of the Group (as determined on a consolidated basis) has increased as a result of all Leverage Acquisitions completed during the Covenant Adjustment Period exceeds ZAR 100,000,000 (or its equivalent in other currencies), unless the Company can demonstrate to the satisfaction of the Majority Lenders that:

 

1.1.101.7.1                  Consolidated EBITDA to Consolidated Net Finance Charges for the Measurement Period in which the relevant Leveraged Acquisition completes will be equal to or exceed 5.0:1; and

 

1.1.101.7.2                  Consolidated Net Borrowings to Consolidated EBITDA for that Measurement Period will be equal to or less than 2.5:1, and for the purpose of this definition, Consolidated EBITDA, Consolidated Net Finance Charges and Consolidated Net Borrowings shall be determined after giving pro forma effect to the Leveraged Acquisition giving rise to the need for the determination as if the Leveraged Acquisition had completed, and any resulting increase in Indebtedness for Borrowed Money had been incurred, at the start of the Measurement Period in which the relevant Leveraged Acquisition completes.

 

1.1.102            Permitted Disposal means any sale, lease, transfer or other disposal:

 

1.1.102.1              by a Restricted Company of any other assets which are obsolete, redundant or no longer required for the efficient operation of the business of such Restricted Company

 

 

(including assets associated with discontinued operations or mines that are under care and maintenance and tailings dumps);

 

1.1.102.2              by a Restricted Company in the ordinary course of its day-to-day trading if that sale, lease, transfer or other disposal is not otherwise restricted by a term of any Finance Document;

 

1.1.102.3              by a Restricted Company for cash on arm’s-length terms pursuant to Streaming Transactions (including a disposal of product by a Restricted Company to another member of the Group for cash on arm’s-length terms for the purpose of supplying product for a Streaming Transaction by the acquiring company) provided that the aggregate market value of product delivered to non-Restricted Companies pursuant to all such transactions does not, in aggregate, exceed US$100,000,000 (or its equivalent in any other currency or currencies) in any Financial Year;

 

1.1.102.4              by a Restricted Company pursuant to receivables discounting arrangements or similar transactions provided that: (i) the value of disposals pursuant to such transactions does not, in aggregate, exceed US$300,000,000 (or its equivalent in any other currency or currencies) in any Financial Year; and (ii) to the extent that such transaction gives rise to any Financial Indebtedness, such Financial Indebtedness is incurred in accordance with the terms of this Agreement;

 

1.1.102.5              by an Obligor to another Obligor;

 

1.1.102.6              by a Restricted Company (other than an Obligor) to any other Restricted Company (other than an Obligor);

 

1.1.102.7              by any Non-Project Finance Group Member to any Project Finance Subsidiary on arm’s length terms, provided that the aggregate value of such disposal (whether in a single transaction or a series of transactions) together with all other disposals from all Non- Project Finance Group Members to all Project Finance Subsidiaries, does not:

 

1.1.102.7.1                  in respect of Burnstone, exceed ZAR1.8 billion over the term of the Facility; and

 

1.1.102.7.2                  in respect of other Project Finance Subsidiaries exceed 5% of Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements) at any time over the term of the Facility;

 

1.1.102.8              by a Restricted Company to a Non-Obligor on arm’s length terms, provided that the aggregate value of such disposals (whether in a single transaction or a series of transactions) does not, in aggregate, exceed 15% (fifteen percent) of Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements) in any Financial Year and 25% (twenty five percent) of Consolidated

 

 

Tangible Net Worth (as determined in accordance with the most recent Financial Statements) over the term of the Facility;

 

1.1.102.9              of assets (other than shares or businesses) in exchange for other assets comparable or superior as to type, value and quality;

 

1.1.102.10            of cash equivalent investments for cash or in exchange for other cash equivalent investments;

 

1.1.102.11            arising as a result of any Permitted Encumbrance;

 

1.1.102.12            by Sibanye Gold of its tailings retreatment business to K2017449061 (South Africa) Proprietary Limited in exchange for shares in K2017449061 (South Africa) Proprietary Limited and which shares are then transferred to DRDGold in exchange for shares initially constituting approximately 38% of the issued share capital of DRDGold;

 

1.1.102.13            by Sibanye Gold of its shares in Sibanye Platinum Proprietary Limited to New TopCo pursuant to the implementation of Project Top Deck; or

 

1.1.102.14            for which the Agent (acting on the instructions of the Majority Lenders) has given its prior written consent;

 

1.1.103            Permitted Encumbrance means:

 

1.1.103.1              any Encumbrance created prior to the Signature Date which:

 

1.1.103.1.1                  is disclosed in the Financial Statements of Sibanye Gold delivered to the Agent prior to the Signature Date and

 

1.1.103.1.2                  in all circumstances secures only indebtedness outstanding or a facility available at the Signature Date if the principal amount or original facility thereby secured is not increased after the Signature Date;

 

1.1.103.2              any Encumbrance created prior to the Signature Date in favour of Opiconsivia Trading 305 (RF) Proprietary Limited;

 

1.1.103.3              any netting or set-off arrangement entered into by any Restricted Company in the ordinary course of its banking arrangements (which shall include, for the avoidance of doubt, those pursuant to hedging arrangements (which constitute Permitted Financial Indebtedness) in relation to gold, silver, copper and other commodity prices, foreign exchange rates and interest rates where such arrangements are entered into for the purposes of providing protection against fluctuation in such rates or prices in the ordinary course of business and not for speculative purposes), for the purpose of netting debit and credit balances;

 

 

1.1.103.4              any lien arising by operation of law and in the ordinary course of trading and not by reason of any default (whether in payments or otherwise) of any Restricted Company;

 

1.1.103.5              any Encumbrance or Quasi-Encumbrance over or affecting any asset acquired by a member of the Group after the Signature Date if:

 

1.1.103.5.1                  the Encumbrance or Quasi-Encumbrance was not created in contemplation of the acquisition of that asset by a member of the Group;

 

1.1.103.5.2                  the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and

 

1.1.103.5.3                  the Encumbrance or Quasi-Encumbrance is removed or discharged within six Months from the date of the acquisition of that asset, unless such Encumbrance is otherwise permitted to exist in terms of this definition;

 

1.1.103.6              any Encumbrance or Quasi-Encumbrance over or affecting any asset of any company which becomes a member of the Group after the Signature Date, where the Encumbrance or Quasi-Encumbrance is created prior to the date on which that company becomes a member of the Group, if:

 

1.1.103.6.1                  the Encumbrance or Quasi-Encumbrance was not created in contemplation of the acquisition of that company;

 

1.1.103.6.2                  the principal amount secured has not increased in contemplation of or since the acquisition of that company; and

 

1.1.103.6.3                  the Encumbrance or Quasi-Encumbrance is removed or discharged within six Months from the date on which the relevant company became a member of the Group, unless such Encumbrance is otherwise permitted to exist in terms of this definition;

 

1.1.103.7              any Encumbrance or Quasi-Encumbrance arising under any retention of title, hire purchase or conditional sale arrangement or arrangements having similar effect in respect of goods supplied to a member of the Group in the ordinary course of trading;

 

1.1.103.8              any Encumbrance or Quasi-Encumbrance granted in respect of Financial Indebtedness incurred by a Project Finance Subsidiary over assets of, or the shares in, or any debt or other obligations of, a Project Finance Subsidiary (or the shares in a Holding Company whose only assets are the shares in and claims against a Project Finance Subsidiary);

 

1.1.103.9              any Encumbrances or Quasi-Encumbrance securing the indebtedness under the Franco-Nevada Loan Agreement pursuant to the agreements in the form delivered to the Agent prior to the Signature Date or in a form no more onerous to the Obligors than the form delivered to the Agent;

 

1.1.103.10            any Encumbrance or Quasi-Encumbrance resulting from the rules and regulations of any clearing system or stock exchange over shares and/or other securities held in that clearing system or stock exchange;

 

1.1.103.11            any Encumbrance or Quasi-Encumbrance arising as a result of a disposal which is a Permitted Disposal;

 

1.1.103.12            any Encumbrance or Quasi-Encumbrance arising as a consequence of any finance or capital lease constituting Permitted Financial Indebtedness;

 

1.1.103.13            in respect of Encumbrances or Quasi-Encumbrances over or affecting any asset of any member of the Group who is not a Restricted Company or a Project Finance Subsidiary;

 

1.1.103.14            any Encumbrance or Quasi-Encumbrance securing indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of Encumbrance or Quasi-Encumbrance other than any  permitted under Clauses 1.1.103.1 to 1.1.103.13 and Clauses 1.1.103.15 to 1.1.103.19) does not exceed 5% (five percent) of Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements), as most recently measured before the creation of the Encumbrances or Quasi-Encumbrances, (or its equivalent in another currency) (but adjusted to include the net value of new assets acquired since the last date of the latest set of consolidated annual financial statements of the Group);

 

1.1.103.15            any other Encumbrance or Quasi-Encumbrance as agreed by the Agent (acting on the instructions of the Majority Lenders) in writing;

 

1.1.103.16            any Encumbrance arising pursuant to or permitted under the Finance Documents;

 

1.1.103.17            any Encumbrance in respect of any environmental bond which any member of the Group is required to issue under any applicable environmental law;

 

1.1.103.18            any Encumbrance contemplated in Clause 1.1.104.8 of the definition of “Permitted Financial Indebtedness” provided that the value of the assets encumbered does not exceed US$50,000,000 (or its equivalent in any other currency or currencies) at any time; or

 

1.1.103.19            any Encumbrance contemplated in Clause 1.1.104.10 of the definition of “Permitted Financial Indebtedness”;

 

 

1.1.104            Permitted Financial Indebtedness means any Financial Indebtedness:

 

1.1.104.1              arising under the Finance Documents;

 

1.1.104.2              arising under any environmental bond, rehabilitation bond or guarantee or any similar arrangement which any member of the Group is required to issue under any applicable environmental law;

 

1.1.104.3              arising under any derivative transaction, in the ordinary course of business, which does not have the commercial effect of borrowing, entered into in connection with protection against or benefit from fluctuation in any rate or price but not for speculative purposes (other than any amount which constitutes the marked to market value realised on such derivative transaction that has not been discharged within two Business Days of the date on which such amount arose, and other than any amount due as a result of the termination, close-out, restructure or refinancing of that derivate  transaction that has not been discharged within two Business Days of the date on which such amount arose);

 

1.1.104.4              of the Group existing and available on the Signature Date (including of any person that becomes a member of the Group from time to time, provided that such Financial Indebtedness existed at the time that such person became a member of the Group and was not created in anticipation thereof);

 

1.1.104.5        between Group companies to the extent incurred for:

 

1.1.104.5.1           the purpose of financing general corporate and working capital requirements; or

 

1.1.104.5.2           the purposes of effecting a push down of amounts borrowed under the Stillwater Bridge Facilities to the Subsidiaries of the Company (whether by way of loans, shareholder contributions, the subscription of equity or otherwise) for the purposes of funding the consideration of the Stillwater Acquisition or the refinancing of such borrowed amounts or for payments to be made to the holders of the Stillwater Convertible Bonds;

 

1.1.104.6        not falling within Clauses 1.1.104.1, 1.1.104.2, 1.1.104.3, 1.1.104.4 or 1.1.104.5 and 1.1.104.7 to 1.1.104.10 below provided that the aggregate amount of all Financial Indebtedness (other than Financial Indebtedness of Obligors or Project Finance Subsidiaries) permitted under this Clause 1.1.104.6 does not at the time of the incurrence thereof exceed 7.5% (seven point five percent) of the Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements) (or its equivalent in another currency) (without double counting in the case of Financial Indebtedness in respect of which more than one member of the Group is liable, whether by guarantee or otherwise);

 

 

1.1.104.7              created or incurred with the prior written consent of the Agent (acting on the  instructions of the Majority Lenders);

 

1.1.104.8              arising under or in connection with a guarantee, bond or escrow arrangement required as a confirmation of certainty of funds available in connection with an offer made or to be made by a member of the Group to acquire shares in another person, provided  that:

 

1.1.104.8.1                  such Permitted Financial Indebtedness is incurred by an Obligor; and

 

1.1.104.8.2                  prior to incurring such indebtedness the Company delivers a Compliance Certificate to the Agent confirming that it will be in compliance with its  obligations  under Clause 22 (Financial Covenants) prior to and immediately post incurring such indebtedness;

 

1.1.104.9              arising under the Stillwater Bridge Facilities or the Stillwater Convertible Bonds;

 

1.1.104.10            arising pursuant to a bank guarantee procured by any member of the Group in favour of Eskom required by Eskom as a prerequisite to its continued provision of electricity to any member of the Group;

 

1.1.105           Plan means an employee pension benefit plan which is subject to Title IV of ERISA, section 412 of the Code or section 302 of ERISA and with respect to which any Obligor or any ERISA Affiliate is (or, if such plan were terminated, would under section 4062 of ERISA be deemed to be) an “employer” as defined in section 3(5) of ERISA;

 

1.1.106           Project Finance Subsidiaries means:

 

1.1.106.1              Burnstone;

 

1.1.106.2              K2013164354 Proprietary Limited;

 

1.1.106.3              DRDGold (if it has become a Subsidiary of the Company and the Company notifies the Agent in writing that it wishes to designate DRDGold as a Project Finance Subsidiary), provided that:

 

1.1.106.3.1                  since the date the Company became a direct or indirect shareholder of DRDGold, it has not received distributions, loans, assets, guarantees from any member of the Group;

 

1.1.106.3.2                  the business of DRDGold is a standalone business independent from the businesses operated by other members of the Group; and

 

1.1.106.3.3                  to the extent that DRDGold owes Financial Indebtedness to persons who are not members of the Group, none of the creditors in respect of such Financial

 

 

Indebtedness have recourse in respect of such Financial Indebtedness to any other member of the Group other than by way of security over shares in DRDGold; and

 

1.1.106.4              any other company or other entity (excluding the Obligors):

 

1.1.106.4.1                  that since the Signature Date has not received distributions, loans, assets or guarantees from any member of the Group which in aggregate together with distributions, loans, assets and guarantees received by Project Finance Subsidiaries (other than DRDGold) from any other Restricted Company, exceeds 5% (five percent) of Consolidated Tangible Net Worth at any time;

 

1.1.106.4.2                  whose sole business is, and remains, the ownership, development, construction, refurbishment, commissioning and/or operation of a project; and

 

1.1.106.4.3                  which, to the extent that such company or entity owes Financial Indebtedness to persons who are not members of the Group, has no creditors in respect of such Financial Indebtedness which have recourse in respect of such Financial Indebtedness to any other member of the Group other than that company or entity other than by way of security over shares in or pursuant to obligations owing by such company or entity to other members of the Group;

 

1.1.107           Project Top Deck means:

 

1.1.107.1              the interposition of New TopCo as a new direct Holding Company of Sibanye Gold, holding 100% of the shares in Sibanye Gold, between Sibanye Gold and its existing shareholders; and

 

1.1.107.2              the subsequent transfer of shares in Sibanye Platinum Proprietary Limited from Sibanye Gold to New TopCo;

 

1.1.108           Qualifying Lender has the meaning given to it in Clause 14 (Tax Gross Up and Indemnities);

 

1.1.109           Quasi-Encumbrance means an arrangement or transaction under which:

 

1.1.109.1              an Obligor sells, transfers or otherwise disposes of any of its assets on terms whereby they are or may be leased to or re-acquired by that or any other Obligor;

 

1.1.109.2              an Obligor sells, transfers or otherwise disposes of its receivables on recourse terms; or

 

1.1.109.3              money or the benefit of a bank account of an Obligor may be applied, set-off or made subject to a combination of accounts to, against or with that of a person that is not an Obligor, or any other preferential agreement or arrangement to which an Obligor is a party having a similar effect to that described in Clauses 1.1.109.1 to 1.1.109.3, in circumstances where

 

 

the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness;

 

1.1.110           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 Market in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given on more than one day, the Quotation Day will be the last of those days);

 

1.1.111           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;

 

1.1.112           Relevant Market means the Johannesburg interbank market;

 

1.1.113           Repeating Representations means each of the representations set out in Clause 20 (Representations), other than Clause 20.8 (No Filing or Stamp Taxes), Clause 20.11 (No Misleading Information) and Clause 20.13 (No Proceedings Pending or Threatened);

 

1.1.114           Reportable Event means:

 

1.1.114.1              an event specified as such in section 4043(c) of ERISA, with respect to any Plan (other than a Multiemployer Plan), other than an event in relation to which the requirement to give 30 days’ notice of that event is waived by any regulation;

 

1.1.114.2              the filing of a notice of intent to terminate any Plan, pursuant to section 4041(c) of ERISA (including any such notice with respect to a plan amendment referred to in section 4041(c) of ERISA);

 

1.1.114.3              the institution of proceedings under section 4042 of ERISA by the PBGC for the termination of, or the appointment of a trustee to administer, any Plan;

 

1.1.114.4              an Obligor or an ERISA Affiliate incurring any liability under Title IV of ERISA with respect to any Plan other than premiums due and not delinquent under section 4007 of ERISA); or

 

1.1.114.5              a failure of any Plan (other than a Multiemployer Plan) to meet the minimum funding standard under section 412 or 430 of the Code or section 302 of ERISA, whether or not waived, or to make a required contribution under section 412 or 430 of the Code to any Plan (other than a Multiemployer Plan) that would result in the imposition of an encumbrance;

 

1.1.115            Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian;

 

 

1.1.116           Resignation Letter means a letter substantially in the form set out in Schedule 7 (Form of Resignation Letter);

 

1.1.117           Restricted Company means:

 

1.1.117.1               an Obligor; and

 

1.1.117.2               a Material Company;

 

1.1.118           Rollover Loan means one or more Loans:

 

1.1.118.1              made or to be made on the same day that a maturing Loan is due to be repaid;

 

1.1.118.2              the aggregate amount of which is equal to or less than the amount of the maturing Loan; and

 

1.1.118.3              made or to be made to the same Borrower for the purpose of refinancing that maturing Loan;

 

1.1.119           SA Obligor means an Obligor that is incorporated in South Africa;

 

1.1.120           SA Obligors’ Agent means the Company appointed to act on behalf of each SA Obligor in relation to the Finance Documents pursuant to Clause 2.3 (SA Obligors Agent;

 

1.1.121           Screen Rate means the mid-market rate for deposits in ZAR for the relevant period which appears on the Reuters Screen SAFEY Page alongside the caption YLD at the applicable time. If the agreed page is replaced or service ceases to be available, the Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Majority Lenders;

 

1.1.122           Second Amendment and Restatement Agreement means the amendment and restatement agreement relating to this Agreement entered into between Sibanye Gold, the Agent and others during August 2018;

 

1.1.123           Security means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect;

 

1.1.124           Signature Date means 14 November 2016;

 

1.1.125           Specified Time means a day or time determined in accordance with Schedule 10 (Timetables);

 

1.1.126           Stillwater means Stillwater Mining Company incorporated in the State of Delaware, United States of America;

 

1.1.127           Stillwater Acquisition means the acquisition by Sibanye Gold of all of the outstanding common stock of Stillwater as described in the announcement issued by Sibanye Gold on 9

 

 

December 2016 which was effected by the merger of Thor Mergco Inc., an indirect wholly owned Subsidiary of Sibanye Gold, with and into Stillwater, with Stillwater surviving as an indirect wholly-owned Subsidiary of Sibanye Gold;

 

1.1.128           Stillwater Bridge Facilities means the bridge loan facilities made available to Sibanye Gold and Thor Mergco Inc. by Citibank, N.A., London Branch and HSBC Bank PLC pursuant to a bridge loan facilities agreement dated 9 December 2016 in an aggregate principal amount of up to US$2,650,000,000 for the purposes of funding the consideration payable pursuant to the Stillwater Acquisition, paying fees, costs and expenses, stamp, registration and other Taxes incurred by Sibanye Gold or any other member of the Group in  connection with the Stillwater Acquisition or the related agreements and the refinancing of the Stillwater Convertible Bonds;

 

1.1.129           Stillwater Convertible Bonds means:

 

1.1.129.1               the existing US$335,000,000 1.75% convertible bonds issued by Stillwater which are due in October 2032; and

 

1.1.129.2               the existing US$500,000 8.75% convertible bonds issued by Stillwater which are due in March 2028;

 

1.1.130           Stillwater Group means Stillwater and its Subsidiaries;

 

1.1.131           Streaming Transactions means transactions whereby a right to acquire a specified percentage of a specified product if such product is produced, mined extracted or otherwise recovered or derived by one or more members of the Group in the future, is granted to one or more third party acquirors (each a Third Party Acquiror) in exchange for an upfront cash payment, with or without further ongoing cash payments from the Third Party Acquiror, and in respect of which the Third Party Acquiror does not have any right of recourse against any member of the Group if the specified product is not produced, mined extracted or otherwise recovered or derived (as applicable) by the relevant member of the Group except as a result of the failure of members of the Group to comply with obligations to operate their mines and mining and other production facilities in accordance with good industry practices and procedures, including environmental requirements, and other representations and undertakings of similar effect or purpose (Customary Recourse Arrangements), nor does the Third Party Acquiror have any cash settlement entitlement against any member of the Group if the specified product is not produced, mined extracted or otherwise recovered or derived (as applicable) by the relevant member of the Group except in respect of Customary Recourse Arrangements and on terms that do not require the upfront payment made by the Third Party Acquiror to be refunded to such Third Party Acquiror in the event of the premature termination of the relevant transaction;

 

 

1.1.132           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;

 

1.1.133           Substitute Affiliate Lender Designation Notice has the meaning given to it in Clause 25.9 (Lender Affiliates and Facility Office);

 

1.1.134           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);

 

1.1.135           Termination Date means the third anniversary of the Effective Date;

 

1.1.136           Top Deck Completion Date means the date on which New TopCo becomes the Holding Company of Sibanye Gold in the manner provided in Clause 1.1.107.1;

 

1.1.137           Total Commitments means the aggregate of the Commitments, being ZAR6,000,000,000 at the Signature Date;

 

1.1.138           Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Company;

 

1.1.139           Transfer Date means, in relation to a transfer, the later of:

 

1.1.139.1              the proposed Transfer Date specified in the Transfer Certificate; and

 

1.1.139.2              the date on which the Agent executes the Transfer Certificate;

 

1.1.140           UK or United Kingdom means the United Kingdom of Great Britain and Northern Ireland;

 

1.1.141           Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents;

 

1.1.142           US or United States means the United States of America;

 

1.1.143           US Bankruptcy Law means the United States Bankruptcy Code of 1978 (Title 11 of the United States Code), as amended, or any other United States federal or state bankruptcy, insolvency or similar law;

 

1.1.144           US Debtor means an Obligor that is incorporated or organised under the laws of the United States or any state of the United States (including the District of Columbia) or that has a place of business or property in the United States;

 

1.1.145           US GAAP means the generally accepted accounting principles in the United States;

 

1.1.146           US Guarantor means any Guarantor that is a US Debtor;

 

 

1.1.147            US Tax Obligor means:

 

1.1.147.1               a Borrower which is resident for tax purposes in the US; or

 

1.1.147.2               an Obligor some or all of whose payments under the Finance Documents are from sources within the US for US federal income tax purposes;

 

1.1.148            Utilisation means a utilisation of the Facility;

 

1.1.149            Utilisation Date means the date of a Utilisation, being the date on which a Loan is to be made;

 

1.1.150            Utilisation Request means a notice substantially in the form set out in Schedule 3 (Utilisation Request);

 

1.1.151            VAT means:

 

1.1.151.1               any value added tax imposed in compliance with the Value added ▇▇▇ ▇▇▇, ▇▇▇▇;

 

1.1.151.2               any general service tax; and

 

1.1.151.3               any other tax of a similar nature.

 

1.2             Construction

 

1.2.1                Unless a contrary indication appears, any reference in this Agreement to:

 

1.2.1.1                  the Agent, any Arranger, any Finance Party, any Lender, any Obligor or any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, all or any combination of its rights and/or obligations under the Finance Documents;

 

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;

 

1.2.1.5                  fraudulent transfer law means any applicable United States bankruptcy and fraudulent transfer and conveyance statute of any state of the United States and any related case law;

 

1.2.1.6                  the use of the word including followed by specific examples will not be construed as limiting the meaning of the general wording preceding it, and the eiusdem generis rule

 

 

must not be applied in the interpretation of such general wording or such specific examples;

 

1.2.1.7                  a  group of Lenders includes all the Lenders;

 

1.2.1.8                  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;

 

1.2.1.9                  a  person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

 

1.2.1.10                a  regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

 

1.2.1.11                unconditionally means, in relation to the payment of any amount to a person, where such amount cannot lawfully be required to be repaid or refunded by that person pursuant to the provisions of the Companies ▇▇▇, ▇▇▇▇, the Companies Act, the Insolvency Act, 1936 or any other law relating to insolvency of general application;

 

1.2.1.12                a provision of law is a reference to that provision as amended or re-enacted; and

 

1.2.1.13                a time of day is a reference to Johannesburg time.

 

1.2.2               The determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.

 

1.2.3               Section, Clause and Schedule headings are for ease of reference only.

 

1.2.4               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.

 

1.2.5               A Default is continuing if it has not been remedied or waived.

 

1.2.6               The term including shall be construed to mean "including but not limited to".

 

1.2.7               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.

 

 

1.2.8               Unless inconsistent with the context, an expression in any Finance Document which denotes the singular includes the plural and vice versa.

 

1.2.9               The rule of construction that, in the event of ambiguity, a contract shall be interpreted against the party responsible for the drafting thereof, shall not apply in the interpretation of the Finance Documents.

 

1.2.10             The expiry or termination of any Finance Documents shall not affect those provisions of the Finance Documents that 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.

 

1.2.11             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.

 

1.2.12             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.

 

1.2.13             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             Currency symbols and definitions

 

1.3.1               R,  ZAR and rand denote the lawful currency of the Republic of South Africa.

 

1.3.2               US$ and USD denotes the lawful currency of the United States of America.

 

1.4              Third party rights

 

1.4.1               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.

 

1.4.2               Subject to Clause 36.3 (Other Exceptions) but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

 

 

2.         THE FACILITY

 

2.1              The Facility

 

Subject to the terms of this Agreement, the Lenders make available to the Borrowers a rand revolving loan facility in an aggregate amount equal to the Total 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 in respect of which a Finance Party shall be entitled to enforce its rights in accordance with Clause 2.2.3 below. The rights of each Finance Party include any debt owing to that Finance Party  under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in a Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

 

2.2.3               A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.

 

2.3              SA Obligors Agent

 

2.3.1               Each SA Obligor (other than the Company) by its execution of this Agreement or an Accession Letter irrevocably appoints the Company (acting through one or more authorised signatories) to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

 

2.3.1.1                  the Company on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower that is an SA Obligor, Utilisation Requests), to execute on its behalf any Accession Letter, to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by any SA Obligor notwithstanding that they may affect the SA Obligor, without further reference to or the consent of that SA Obligor; and

 

 

2.3.1.2            each Finance Party to give any notice, demand or other communication in respect of that SA Obligor pursuant to the Finance Documents to the Company, and, subject to any approvals expressly required by applicable law at such time to enable the SA Obligor to be so bound, in each case the SA Obligor shall be bound as though the SA Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.

 

2.3.2               Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the SA Obligors' Agent or given to the SA Obligors' Agent under any Finance Document on behalf of another SA Obligor or in connection with any Finance Document (whether or not known to any other SA Obligor and whether occurring before or after such other SA Obligor became an SA Obligor under any Finance Document) shall be binding for all purposes on that SA Obligor as if that SA Obligor had expressly made, given or concurred with it.

 

2.3.3               The respective liabilities of each of the SA Obligors under the Finance Documents shall not be in any way affected by:

 

2.3.3.1                  any actual or purported irregularity in any act done, or failure to act, by the SA Obligors’ Agent;

 

2.3.3.2                  the SA Obligors’ Agent acting (or purporting to act) in any respect outside any authority conferred upon it by any SA Obligor; or

 

2.3.3.3                  any actual or purported failure by, or inability of, the SA Obligors’ Agent to inform any SA Obligor of receipt by it of any notification under the Finance Documents.

 

2.3.4                     In the event of any conflict between any notices or other communications of the SA Obligors' Agent and any other SA Obligor, those of the SA Obligors' Agent shall prevail.

 

3.         PURPOSE

 

3.1              Purpose

 

Each Borrower shall apply all amounts borrowed by it under the Facility towards:

 

3.1.1                 refinancing the Existing Facilities;

 

3.1.2                 payment of all fees and costs due by the Company under the Finance Documents;

 

3.1.3                 financing the Group’s:

 

3.1.3.1                    on-going capital expenditure;

 

 

3.1.3.2                  working capital; and

 

3.1.3.3                  general corporate expenditure requirements which may include the financing of future acquisitions or business combinations (to the extent such transactions are permitted by the terms of this Agreement).

 

3.2              Monitoring

 

No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.

 

4.         CONDITIONS OF UTILISATION

 

4.1              Initial conditions precedent

 

4.1.1               No Borrower may deliver a Utilisation Request unless the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent. The Agent shall notify the Company and the Lenders promptly upon being so satisfied.

 

4.1.2               Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in Clause 4.1.1, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

 

4.2              Further conditions precedent

 

The Lenders will only be obliged to comply with Clause 5.4 (Lenders’ Participation) if on the date of the Utilisation Request and on the proposed Utilisation Date:

 

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; and

 

4.2.2               the Repeating Representations to be made by each Obligor are true in all material respects.

 

4.3              Maximum number of Loans

 

A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation 15 or more Loans would be outstanding.

 

 

5.         UTILISATION

 

5.1              Delivery of a Utilisation Request

 

A Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time.

 

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                  in respect of all Utilisation Requests delivered in respect of the first Utilisation of the Facilities, such Utilisation Requests are accompanied by the Funds Flow Confirmation Letter;

 

5.2.1.2                  the proposed Utilisation Date is a Business Day within the Availability Period;

 

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 11 (Interest Periods).

 

5.2.2                 Only one Loan may be requested in each Utilisation Request.

 

5.3              Currency and amount

 

5.3.1                 The currency specified in a Utilisation Request must be rand.

 

5.3.2                 The amount of the proposed Loan must be an amount which is not more than the Available Facility and;

 

5.3.2.1                  in respect of all Utilisation Requests delivered in respect of the first Utilisation of the Facilities, the aggregate amount to be advanced pursuant to such Utilisation Requests is not less than the Existing Facilities Repayment Amount; and

 

5.3.2.2                  in respect of each subsequent Utilisation, is a minimum of ZAR50,000,000 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 Loans) each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office by no later than 2:30pm.

 

 

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 Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 30.1 (Payments to the Agent), in each case by the Specified Time.

 

5.5            Cancellation of Commitment

 

The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period.

 

6.         REPAYMENT

 

6.1              Repayment of Loans

 

6.1.1                 Each Borrower which has drawn a Loan shall repay that Loan on the last day of its Interest Period.

 

6.1.2                 Without prejudice to each Borrower’s obligation under Clause 6.1.1 above, if:

 

6.1.2.1                    one or more Loans are to be made available to a Borrower:

 

6.1.2.1.1                      on the same day that a maturing Loan is due to be repaid by that Borrower; and

 

6.1.2.1.2                      in whole or in part for the purpose of refinancing the maturing Loan; and

 

6.1.2.2                  the proportion borne by each Lender’s participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans, the aggregate amount of the new Loans shall, unless the Company notifies the Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Loan so that:

 

6.1.2.3                  if the amount of the maturing Loan exceeds the aggregate amount of the new Loans:

 

6.1.2.3.1                      the relevant Borrower will only be required to make a payment under Clause 30.1 (Payments to the Agent) in an amount in the relevant currency equal to that excess; and

 

6.1.2.3.2                      each Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan and that Lender will not be required to make a

 

 

payment under Clause 30.1 (Payments to the Agent) in respect of its participation in the new Loans; and

 

6.1.2.4                    if the amount of the maturing Loan is equal to or less than the aggregate amount of the new Loans:

 

6.1.2.4.1                      the relevant Borrower will not be required to make a payment under Clause 30.1 (Payments to the Agent); and

 

6.1.2.4.2                      each Lender will be required to make a payment under Clause 30.1 (Payments to the Agent) in respect of its participation in the new Loans only to the extent that its participation in the new Loans exceeds that Lender’s participation in the maturing Loan and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan.

 

7.         ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION

 

7.1              Illegality

 

If, in any applicable jurisdiction, it becomes unlawful for any Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

 

7.1.1                    that Lender shall promptly notify the Agent upon becoming aware of that event;

 

7.1.2                     upon the Agent notifying the Company, the Available Commitment of that Lender will be immediately cancelled; and

 

7.1.3                     to the extent that the relevant Lender’s participation has not been transferred pursuant to Clause 36.6 (Replacement of Lender), each Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Company or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender’s corresponding Commitment shall be cancelled in the amount of the participations repaid.

 

7.2              Voluntary cancellation

 

The Company may, if it gives the Agent not less than 5 Business Days’ prior notice, cancel the whole or any part (being a minimum amount of ZAR50,000,000 and in integral multiples of ZAR10,000,000 of the Available Facility). Any cancellation under this Clause 7.2 (Voluntary Cancellation) shall reduce the Commitments of the Lenders rateably under the Facility.

 

 

7.3                 Voluntary prepayment of Utilisations

 

A Borrower to which a Utilisation has been made may, if it or the Company gives the Agent not less than 5 Business Days’ prior notice, prepay the whole or any part of a Utilisation (but if in part, being an amount that reduces the amount of the Utilisation by a minimum amount of ZAR50,000,000 and in integral multiples of ZAR10,000,000).

 

7.4                 Right of cancellation and repayment in relation to a single Lender

 

7.4.1                     If:

 

7.4.1.1                         any sum payable to any Lender by an Obligor is required to be increased under Clause 14.2 (Tax Gross-Up); or

 

7.4.1.2                         any Lender claims indemnification from the Company or an Obligor under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased Costs), the Company may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment(s) of that Lender and its intention to procure the repayment of that Lender’s participation in the Utilisations.

 

7.4.2                     On receipt of a notice referred to in Clause 7.4.1 in relation to a Lender, the Commitment(s) of that Lender shall immediately be reduced to zero.

 

7.4.3                     On the last day of each Interest Period which ends after the Company has given notice under Clause 7.4.1 in relation to a Lender (or, if earlier, the date specified by the Company in that notice), each Borrower to which a Utilisation is outstanding shall repay that Lender’s participation in that Utilisation together with all interest and other amounts accrued under the Finance Documents.

 

8.         MANDATORY PREPAYMENT AND CANCELLATION

 

8.1              Change of control

 

8.1.1                     If any person or group of persons acting in concert (other than New TopCo pursuant to the implementation of Project Top Deck) gains control of the Company then the procedure referred to in Clause 8.4 (General Procedure in respect of Specified Prepayment Events) shall be followed.

 

8.1.2                     For the purpose of Clause 8.1.1 above control means in relation to the Company:

 

8.1.2.1                        the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:

 

8.1.2.1.1                             cast, or control the casting of, more than:

 

 

8.1.2.1.1.1                          if the shares are not listed, 50% (fifty percent); or

 

8.1.2.1.1.2                          for so long as the shares are listed, unless another person or group of persons acting in concert has the power to cast or control the power of casting a higher percentage of such votes, 35% (thirty-five percent), of the maximum number of votes that might be cast at a general meeting of the Company; or

 

8.1.2.1.2                      appoint or remove all, or the majority, of the directors or other equivalent officers of the Company; or

 

8.1.2.2                   the holding beneficially and legally of more than 50% (fifty percent) of the issued ordinary share capital of the Company.

 

8.1.3               For the purpose of Clause 8.1.1 acting in concert means a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Company by any of them, either directly or indirectly, to obtain or consolidate control of the Company.

 

8.2              Non-Obligor Restricted Companies

 

8.2.1                 Cross Default

 

If:

 

8.2.1.1                  any Financial Indebtedness of a Non-Obligor Restricted Company is not paid when due, or where there is an applicable grace period, within the originally applicable grace period;

 

8.2.1.2                  any Financial Indebtedness of a Non- Obligor Restricted Company is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described);

 

8.2.1.3                  any commitment for any Financial Indebtedness of a Non-Obligor Restricted Company is cancelled or suspended by a creditor of such Non-Obligor Restricted Company as a result of an event of default (however described); or

 

8.2.1.4                  any creditor of a member of a Non-Obligor Restricted Company becomes entitled to declare any Financial Indebtedness of a Non-Obligor Restricted Company due and payable prior to its specified maturity as a result of an event of default (however described); 

 

and the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness arising pursuant to Clauses 8.2.1.1 to 8.2.1.4 above exceeds an amount of

 

 

US$15,000,000 (or its equivalent in any other currency or currencies) then the Company shall comply with Clause 8.4 (General Procedure in respect of Specified Prepayment Events).

 

8.2.2                 Insolvency

 

If:

 

8.2.2.1                  any Non-Obligor Restricted Company is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;

 

8.2.2.2                  the board of directors of a Non-Obligor Restricted Company adopts a resolution declaring that relevant Non-Obligor Restricted Company to be Financially Distressed (as defined in the Companies Act) or the board of that Non-Obligor Restricted Company has not timeously delivered the written notice required in terms of section 129(7) of the Companies Act; or

 

8.2.2.3                  a moratorium is declared or takes effect in respect of any indebtedness of any Non- Obligor Restricted Company; then the Company shall comply with the provisions of Clause 8.4 (General Procedure in respect of Specified Prepayment Events).

 

8.2.3                 Insolvency Proceedings

 

If:

 

8.2.3.1                  any corporate action, legal proceedings or other procedure or step is taken in relation to:

 

8.2.3.1.1                      the suspension of payments, the commencement of business rescue proceedings (whether by any Non-Obligor Restricted Company or by any other person under section 129 of the Companies Act or pursuant to an application by an “affected person” under section 131 of the Companies Act or by the court during any other proceedings in respect of any member of the Group), a moratorium of any Financial Indebtedness, liquidation, winding-up, dissolution, administration, judicial management, or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Non-Obligor Restricted Company;

 

8.2.3.1.2                      a composition, compromise, assignment or arrangement with any creditor of any Non-Obligor Restricted Company;

 

 

8.2.3.1.3                      the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, judicial manager, business rescue practitioner or other similar officer in respect of any Non-Obligor Restricted Company; or

 

8.2.3.1.4                      enforcement of any Encumbrance over any assets of any Non-Obligor Restricted Company; or

 

8.2.3.1.5                      any analogous procedure or step is taken in any jurisdiction, and any such procedure or proceedings are not contested in good faith or discharged within 30 (thirty) days (or such shorter period provided for contesting such procedure or proceedings under the laws of the relevant jurisdiction);

 

8.2.3.2                  a resolution is passed by the board of directors of a Non-Obligor Restricted Company, 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 Non-Obligor Restricted Company or any analogous procedure or step is taken in any jurisdiction, then the Company shall comply with the provisions of Clause 8.4 (General Procedure in respect of Specified Prepayment Events).

 

8.2.4              Creditors’ Process

 

If the operation of an attachment, sequestration, distress or execution that affects a material part of the assets or revenues of a Non-Obligor Restricted Company arises and is not discharged within 21 days of such event occurring, then the Company shall comply with the provisions of Clause 8.4 (General Procedure in respect of Specified Prepayment Events).

 

8.3           Guarantor Threshold Test

 

If:

 

8.3.1               the Guarantor Threshold Test is not met on any date upon which it is tested in accordance with Clause 22.3 (General);

 

8.3.2               at such time all EBITDA contributing wholly-owned Subsidiaries of the Company are or have become Guarantors; and

 

8.3.3               the Company has failed, after using all reasonable endeavours, to procure that such number of non-wholly-owned Subsidiaries as is required to meet the Guarantor Threshold Test, have bound themselves as Additional Guarantors in accordance with the procedure set out in Clause 26.4 (Additional Guarantors) within 30 days of the Compliance Certificate showing that the Guarantor Threshold Test has not been met,

 

 

then the Company shall comply with the provisions of Clause 8.4 (General Procedure in respect of Specified Prepayment Events).

 

8.4                 General procedure in respect of Specified Prepayment Events

 

If any of the events specified in Clause 8.1 (Change of Control), Clause 8.2 (Non-Obligor Restricted Companies) or Clause 8.3 (Guarantor Threshold) occurs, then:

 

8.4.1               the Company shall promptly notify the Agent upon becoming aware of that event;

 

8.4.2               the Company shall enter into negotiations with the Lenders for a period of not more than 60 days from the date of the notice referred to in Clause 8.4.1, with a view to agreeing terms and conditions acceptable to the Company and all of the Lenders for the continuation of the Facility;

 

8.4.3               during the negotiation period referred to in Clause 8.4.2, a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan); and

 

8.4.4               if an agreement is not reached during the negotiation period referred to in Clause 8.4.2, and if a Lender so requires and notifies the Agent after the negotiation period referred to in Clause 8.4.2 has ended, the Agent shall, by not less than 30 days’ notice to the Company, 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 in respect of that Lender due and payable, in which case the Commitment of that Lender will be cancelled and that Lender’s participation in all such outstanding Loans together with accrued interest and all other amounts accrued under the Finance Documents will become due and payable on the date set out in the relevant notice.

 

8.5                 Sanctions

 

8.5.1                 If:

 

8.5.1.1                  a misrepresentation occurs in respect of the representations contained in Clause 20.17 (Anti-Corruption Law and Sanctions); or

 

8.5.1.2                  a breach of the undertakings contained in Clause 23.6 (Anti-corruption law and sanctions) occurs, each Obligor shall notify the Agent promptly upon becoming aware of that event (unless that Obligor is aware that a notification has already been provided by another Obligor).

 

8.5.2                 If any event contemplated by Clause 8.5.1 occurs, the following shall apply:

 

8.5.2.1                 upon the Agent receiving a notice from an Obligor under Clause 8.5.1 or a similar notice from any Finance Party, it shall notify the Lenders as soon as reasonably practicable;

 

 

8.5.2.2                  a Lender shall not be obliged to fund any Utilisation; and

 

8.5.2.3                  if a Lender so requires and notifies the Agent, the Agent shall, by not less than 10 days’ notice to the Company, 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 in respect of that Lender due and payable, in which case the Commitment of that Lender will be cancelled and that Lender’s participation in all such outstanding Loans together with accrued interest and all other amounts accrued under the Finance Documents will become due and payable on the date set out in the relevant notice.

 

9.         RESTRICTIONS

 

9.1              Notices of cancellation or prepayment

 

Any notice of cancellation, prepayment, authorisation or other election given by any Party under Clause 7 (Illegality, Voluntary Prepayment and Cancellation) or Clause 8 (Mandatory Prepayment and Cancellation) shall (subject to the terms of those Clauses) 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.

 

9.2              Interest and other amounts

 

Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.

 

9.3              Reborrowing of the Facility

 

Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid or repaid may be reborrowed in accordance with the terms of this Agreement, other than in circumstances where the prepayment or repayment has been made pursuant to Clause 8 (Mandatory Prepayment and Cancellation), in which event the Commitments shall be reduced by the amount prepaid or repaid.

 

9.4              Prepayment in accordance with Agreement

 

No Borrower shall repay or prepay all or any part of the Utilisations or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

 

9.5              No reinstatement of Commitments

 

No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

 

9.6              Agent’s receipt of notices

 

If the Agent receives a notice under Clause 7 (Illegality, Voluntary Prepayment and Cancellation) or Clause 8 (Mandatory Prepayment and Cancellation), it shall promptly forward a copy of that notice or election to either the Company or the affected Lender, as appropriate.

 

9.7              Application of prepayments

 

Any prepayment of a Utilisation under Clause 7.3 (Voluntary Prepayment of Utilisations) shall be applied pro rata to each Lender’s participation in that Utilisation.

 

10.       INTEREST

 

10.1            Calculation of interest

 

The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

 

10.1.1              Margin; and

 

10.1.2              JIBAR.

 

10.2            Payment of interest

 

The Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period (and, if the Interest Period is longer than six Months, on the dates falling at six monthly intervals after the first day of the Interest Period).

 

10.3            Default interest

 

10.3.1             If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to Clause 10.3.2 below is 2% per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 10.3 shall be immediately payable by the Obligor on demand by the Agent.

 

10.3.2             If any overdue amount 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:

 

10.3.2.1                the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and

 

 

10.3.2.2                the rate of interest applying to the overdue amount during that first Interest Period shall be 2% per annum higher than the rate which would have applied if the overdue amount had not become due.

 

10.3.3             Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.

 

10.4            Notification of rates of interest

 

10.4.1             The Agent shall promptly notify the Lenders and the relevant Borrower of the determination of a rate of interest under this Agreement.

 

10.4.2             The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

 

10.5         Margin Adjustment

 

If the Compliance Certificate received by the Agent which relates to the relevant Annual Financial Statements in relation to a Relevant Measurement Period shows that a higher or lower Margin should have applied during the Covenant Adjustment Period, then the relevant Borrower shall promptly pay to the Agent any amounts, or the Agent shall adjust future payments of interest by amounts (as applicable, in each case necessary to put the Agent and the Lenders and the relevant Borrower in the position they would have been in had the appropriate rate of the Margin applied during such period). Any reduction in interest under this Clause 10.5 will only apply in relation to interest payable to each Lender that, on the date on which such reduced payment is made, retains its participation in the Loans made to the relevant Borrower in respect of which the lower Margin should have applied.

 

11.       INTEREST PERIODS

 

11.1            Selection of Interest Periods

 

11.1.1             A Borrower (or the Company on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan.

 

11.1.2             Subject to this Clause 11, a Borrower (or the Company) may select an Interest Period of one, three or six Months or any other period agreed between the Company, the Agent and all the Lenders.

 

11.1.3             An Interest Period for a Loan shall not extend beyond the Termination Date.

 

11.1.4             Each Interest Period for a Loan shall start on the Utilisation Date.

 

11.1.5             A Loan has one Interest Period only.

 

 

11.2         Non-Business Days

 

If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

 

12.       CHANGES TO THE CALCULATION OF INTEREST

 

12.1            Unavailability of Screen Rate

 

12.1.1              Interpolated Screen Rate

 

If no Screen Rate is available for JIBAR for the Interest Period of a Loan, the applicable JIBAR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

 

12.1.2              Shortened Interest Period

 

If no Screen Rate is available for JIBAR for:

 

12.1.2.1                rand; or

 

12.1.2.2                the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate, the Interest Period of that Loan shall (if it is longer than the applicable Fallback Interest Period) be shortened to the applicable Fallback Interest Period and the applicable JIBAR for that shortened Interest Period shall be determined pursuant to the definition of JIBAR.

 

12.1.3              Shortened Interest Period and Historic Screen Rate

 

If the Interest Period of a Loan is, after giving effect to Clause 12.1.2 above, the applicable Fallback Interest Period and no Screen Rate is available for JIBAR for:

 

12.1.3.1                rand; or

 

12.1.3.2                the Interest Period of that Loan and it is not possible to calculate the Interpolated Screen Rate, the applicable JIBAR shall be the Historic Screen Rate for that Loan.

 

12.1.4              Shortened Interest Period and Interpolated Historic Screen Rate

 

If Clause 12.1.3 above applies but no Historic Screen Rate is available for the Interest Period of the Loan, the applicable JIBAR shall be the Interpolated Historic Screen Rate for a period equal in length to the Interest Period of that Loan.

 

12.1.5              Cost of funds

 

If Clause 12.1.4 above applies but it is not possible to calculate the Interpolated Historic Screen Rate, the Interest Period of that Loan shall, if it has been shortened pursuant to Clause 12.1.2 above, revert to its previous length and there shall be no JIBAR for that Loan and Clause 12.3 (Cost of Funds) shall apply to that Loan for that Interest Period.

 

12.2            Market disruption

 

If before close of business in Johannesburg on the Quotation Day for the relevant Interest Period the Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35% of that Loan) that the cost to it of funding its participation in that Loan from the wholesale market for rand would be in excess of JIBAR then Clause 12.3 (Cost of Funds) shall apply to that Loan for the relevant Interest Period.

 

12.3            Cost of funds

 

12.3.1             If this Clause 12.3 applies, the rate of interest on each Lender’s share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

12.3.1.1                the Margin; and

 

12.3.1.2                the rate notified to the Agent by that Lender as soon as practicable and in any event  by close of business on the date falling two Business Days after the Quotation Day (or, if earlier, on the date falling five Business Days prior to the date on which 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.

 

12.3.2             If this Clause 12.3 applies and the Agent or the Company so requires, the Agent and the Company shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

 

12.3.3             Any alternative basis agreed pursuant to Clause 12.3.2 above shall, with the prior consent  of all the Lenders and the Company, be binding on all Parties.

 

12.4            Break Costs

 

12.4.1             Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

 

12.4.2             Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

 

 

13.       FEES

 

13.1            Commitment fee

 

13.1.1             The Company shall pay, or shall procure that an Obligor shall pay to the Agent (for the account of each Lender) a fee computed at the rate of 0,84% per annum on that Lender’s Available Commitment for the Availability Period.

 

13.1.2             The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

 

13.2            Participation fee

 

The Company shall pay to the Original Lenders an arrangement fee in the amount and at the times agreed in a Fee Letter.

 

13.3            Agency fee

 

The Company shall pay to the Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.

 

14.       TAX GROSS UP AND INDEMNITIES

 

14.1            Definitions

 

14.1.1              In this Agreement:

 

14.1.1.1               Income Tax Act means the Income ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.

 

14.1.1.2               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.

 

14.1.1.3               Qualifying Lender means a Lender which is beneficially entitled to interest as defined in section 24J(1) of the Income Tax Act) payable to that Lender in respect of an advance under a Finance Document and is:

 

14.1.1.3.1                    a Lender which is tax resident in South Africa;

 

14.1.1.3.2                    a Lender which is not tax resident in South Africa if:

 

14.1.1.3.2.1                        such advance in respect of which that interest is paid is effectively connected with or attributable to a permanent establishment of that Lender in South Africa;

 

 

14.1.1.3.2.2                        that Lender is registered as a taxpayer in terms of Chapter 3 of the Tax ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; and

 

14.1.1.3.2.3                        that Lender has by the due date for payment of that interest submitted to the Borrower a declaration (a Tax Declaration) in such form as may be prescribed by the Commissioner for the South African Revenue Service pursuant to section 50E(2) of the Income Tax Act that that Lender is, in terms of section 50D(3) of the Income Tax Act, exempt from the withholding tax on interest in respect of that payment; or

 

14.1.1.3.2.4                        a Treaty Lender.

 

14.1.1.4                Tax Credit means a credit against, relief or remission for, or repayment of any Tax.

 

14.1.1.5                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.

 

14.1.1.6                Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 14.2 (Tax Gross-Up) or a payment under Clause 14.3 (Tax Indemnity).

 

14.1.1.7                Treaty Lender means a Lender which:

 

14.1.1.7.1                    is treated as a resident of a Treaty State for the purposes of a Treaty;

 

14.1.1.7.2                    does not carry on a business in South Africa through a permanent establishment with which that Lender’s participation in the Loan is effectively connected; and

 

14.1.1.7.3                    otherwise qualifies under the terms of a Treaty for full exemption from tax imposed by South Africa on interest.

 

14.1.1.8                Treaty State means a jurisdiction having a double taxation agreement (a Treaty) with South Africa which makes provision for full exemption from Tax imposed by South Africa on interest.

 

14.1.2             Unless a contrary indication appears, in this Clause 14 a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.

 

14.2            Tax gross-up

 

14.2.1             Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

 

14.2.2             The Company shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify  the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in

 

 

respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Company and that Obligor.

 

14.2.3             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.

 

14.2.4             A payment shall not be increased under Clause 14.2.3 above by reason of a Tax Deduction on account of Tax imposed by South Africa, if on the date on which the payment falls due:

 

14.2.4.1                the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

 

14.2.4.2                the relevant Lender is a Qualifying Lender solely by virtue of Clause 14.1.1.3.2 of the definition of Qualifying Lender and the relevant Lender has not given a Tax Declaration to the Borrower by the due date for the relevant interest payment; or

 

14.2.4.3                the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Clause 14.2.7 below.

 

14.2.5             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.

 

14.2.6             Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

 

14.2.7             A Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

 

14.3            Tax indemnity

 

14.3.1             The Company shall (within three Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party

 

 

determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

 

14.3.2             Clause 14.3.1 above shall not apply:

 

14.3.2.1                with respect to any Tax assessed on a Finance Party 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, 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

 

14.3.2.2                to the extent a loss, liability or cost:

 

14.3.2.2.1                    is compensated for by an increased payment under Clause 14.2 (Tax Gross-Up); or

 

14.3.2.2.2                    would have been compensated for by an increased payment under Clause 14.2 (Tax Gross-Up) but was not so compensated solely because one of the exclusions in Clause 14.2.4 of Clause 14.2 (Tax Gross-Up) applied; or

 

14.3.2.2.3                    related to a FATCA Deduction required to be made by a Party.

 

14.3.3             A Protected Party making, or intending to make, a claim under Clause 14.3.1 above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Company.

 

14.3.4             A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3, notify the Agent.

 

14.4            Tax Credit

 

14.4.1              If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

14.4.1.1                a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

14.4.1.2                that Finance Party has obtained and utilised that Tax Credit, the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

 

14.4.2             Each Finance Party and each of its affiliates have sole and absolute discretion as to how they organise their respective Tax affairs and none of them are under any obligation to utilise any amount of the Tax Payment as a Tax Credit.

 

 

14.4.3             Each Finance Party and each of its affiliates have no obligation to disclose any information whatsoever regarding their Tax affairs to any other Party.

 

14.5            Lender status confirmation

 

14.5.1             Each Lender which becomes a Party to this Agreement after the Signature Date shall indicate, in the Transfer Certificate or Substitute Affiliate Lender Designation Notice which it executes on becoming a Party, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:

 

14.5.1.1                not a Qualifying Lender;

 

14.5.1.2                a Qualifying Lender (other than a Treaty Lender); or

 

14.5.1.3                a Treaty Lender.

 

14.5.2             If a New Lender, Replacement Lender or Substitute Affiliate Lender fails to indicate its status in accordance with this Clause 14.5 then such New Lender, Replacement Lender or Substitute Affiliate Lender (as the case may be) shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Company). For the avoidance of doubt, a Transfer Certificate or Substitute Affiliate Lender Designation Notice shall not be invalidated by any failure of a Lender to comply with this Clause 14.5.

 

14.6           Stamp taxes

 

The Company shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.

 

14.7            VAT

 

14.7.1             All amounts 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 any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to Clause 14.7.2 below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such 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 the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

 

14.7.2             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 Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

14.7.2.1                (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient must (where this Clause 14.7.2.1 applies) promptly pay to the Relevant Party an amount  equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

14.7.2.2                (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

 

14.7.3             Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, 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.

 

14.7.4             In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Finance Party’s VAT reporting requirements in relation to such supply.

 

14.8            FATCA Information

 

14.8.1              Subject to Clause 14.8.3 below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

14.8.1.1                 confirm to that other Party whether it is:

 

14.8.1.1.1                    a FATCA Exempt Party; or

 

14.8.1.1.2                    not a FATCA Exempt Party;

 

14.8.1.2                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

 

 

14.8.1.3                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.

 

14.8.2             If a Party confirms to another Party pursuant to Clause 14.8.1.1 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.

 

14.8.3             Clause 14.8.1 above shall not oblige any Finance Party to do anything, and Clause 14.8.1.3 above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

14.8.3.1                 any law or regulation;

 

14.8.3.2                 any fiduciary duty; or

 

14.8.3.3                 any duty of confidentiality.

 

14.8.4             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 Clause 14.8.1.1 or 14.8.1.2 above (including, for the avoidance of doubt, where Clause 14.8.3 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.

 

14.8.5             If a Borrower is a US Tax Obligor or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:

 

14.8.5.1                where an Original Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the Signature Date;

 

14.8.5.2                where a Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date;

 

14.8.5.3                the date a new US Tax Obligor accedes as a Borrower; or

 

14.8.5.4          where a Borrower is not a US Tax Obligor, the date of a request from the Agent, supply to the Agent:

 

14.8.5.5                a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

 

14.8.5.6                any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

 

 

14.8.6             The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to Clause 14.8.5 to the relevant Borrower.

 

14.8.7             If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to Clause 14.8.5 is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent). The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.

 

14.8.8             The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to Clause 14.8.5 or 14.8.7 without further verification. The Agent shall not be liable for any action taken by it under or in connection with Clauses 14.8.5, 14.8.6 or 14.8.7.

 

14.9           FATCA Deduction

 

14.9.1             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.

 

14.9.2             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 Company and the Agent and the Agent shall notify the other Finance Parties.

 

15.       INCREASED COSTS

 

15.1            Increased costs

 

15.1.1             Subject to Clause 15.3 (Exceptions) the Company shall, within three Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the Signature Date or (iii) the implementation or application or compliance with Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

 

15.1.2             In this Agreement Increased Costs means:

 

 

15.1.2.1                a reduction in the rate of return from the Facility or on a Finance Party’s (or its Affiliate’s) overall capital;

 

15.1.2.2                an additional or increased cost; or

 

15.1.2.3                a reduction of any amount due and payable under any Finance Document, which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.

 

15.2            Increased cost claims

 

15.2.1             A Finance Party intending to make a claim pursuant to Clause 15.1 (Increased Costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Company.

 

15.2.2             Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.

 

15.2.3             Each Finance Party providing a certificate in terms of Clause 15.2.2, is not required to disclose any information it deems to be confidential or commercially sensitive.

 

15.3            Exceptions

 

15.3.1              Clause 15.1 (Increased Costs) does not apply to the extent any Increased Cost is:

 

15.3.1.1                attributable to a Tax Deduction required by law to be made by an Obligor;

 

15.3.1.2                attributable to a FATCA Deduction required to be made by a Party;

 

15.3.1.3                compensated for by Clause 14.3 (Tax Indemnity) (or would have been compensated for under Clause 14.3 (Tax Indemnity) but was not so compensated solely because any of the exclusions in Clause 14.3.2 of Clause 14.3 (Tax Indemnity) applied); or

 

15.3.1.4                attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation;

 

15.3.1.5                attributable to the implementation or application of or compliance with 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 Signature Date (but excluding any Increased Costs arising out of Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates)).

 

 

15.3.2              In this Clause 15.3, a reference to:

 

15.3.2.1                 a  Tax Deduction has the same meaning given to that term in Clause 14.1 (Definitions);

 

15.3.2.2                 Basel III means:

 

15.3.2.2.1                    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;

 

15.3.2.2.2                    the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

15.3.2.2.3                    any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”.”

 

15.3.2.3                 CRD IV means:

 

15.3.2.3.1                    Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

 

15.3.2.3.2                    Directive 2013/36/EU of the European Parliament and the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms.

 

16.       OTHER INDEMNITIES

 

16.1            Currency indemnity

 

16.1.1             If any sum due from an Obligor under the Finance Documents (a Sum), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the First Currency) in which that Sum is payable into another currency (the Second Currency) for the purpose of:

 

16.1.1.1                making or filing a claim or proof against that Obligor;

 

16.1.1.2                obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, that Obligor shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability

 

 

arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

16.1.2                   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.

 

16.2            Other indemnities

 

The Company shall (or shall procure that an Obligor will), within three Business Days of  demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:

 

16.2.1             the occurrence of any Event of Default;

 

16.2.2             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 Finance Parties);

 

16.2.3             funding, or making arrangements to fund, its participation in a Loan requested by a 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

 

16.2.4             a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Company.

 

16.3            Environmental Indemnity

 

The Obligors agree to indemnify each Finance Party, each Affiliate of a Finance Party and  their respective directors, officers and employees (together, the Indemnified Parties), within three Business Days of demand, against any cost, loss, damages or liability (actual or contingent) suffered or incurred by that Indemnified Party (including all legal costs incurred by any Finance Party) (except to the extent solely caused by such Indemnified Party’s own gross negligence or wilful default) which arises, directly or indirectly, as a result of or in connection with:

 

16.3.1             the provision by the Lenders of the financing provided pursuant to the Finance Documents and/or the purpose for which such financing was utilised;

 

16.3.2             any litigation commenced against any Indemnified Party arising out of the execution or performance of, or enforcement by the Lenders of any rights under, any Finance Document;

 

 

16.3.3             an environmental claim;

 

16.3.4             any actual or alleged violation of any environmental laws resulting from, or in connection with, the assets or business of the Obligors and/or any transaction financed or to be financed with the proceeds of any advances made under the Finance Documents; or

 

16.3.5             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 Finance Party, which relates to the Group, any assets of the Group or the operation of all or part of the business of the Group (or, in each case, any member of the Group) and which would not have arisen if the Finance Documents or any of them had not been executed by that Finance Party. Any Affiliate or any director, officer or employee of a Finance Party or its Affiliate may rely on this Clause 16.3 as a stipulation for its or his benefit.

 

16.4            Indemnity to the Agent

 

The Company shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

 

16.4.1              investigating any event which it reasonably believes is a Default;

 

16.4.2              acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or

 

16.4.3              instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement.

 

17.       MITIGATION BY THE LENDERS

 

17.1            Mitigation

 

17.1.1             Each Finance Party shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 14 (Tax Gross Up and Indemnities) or Clause 15 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

 

17.1.2             Clause 17.1.1 above does not in any way limit the obligations of any Obligor under the Finance Documents.

 

 

17.2            Limitation of liability

 

17.2.1             The Company 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 17.1 (Mitigation).

 

17.2.2             A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.

 

18.       COSTS AND EXPENSES

 

18.1            Transaction expenses

 

The Company shall promptly on demand pay any Finance Party the amount of all costs and expenses (including legal fees subject to any agreed cap) reasonably incurred by such Finance Party in connection with the negotiation, preparation, printing, execution and syndication of:

 

18.1.1              this Agreement and any other documents referred to in this Agreement; and

 

18.1.2              any other Finance Documents executed after the Signature Date.

 

18.2            Amendment costs

 

If:

 

18.2.1              an Obligor requests an amendment, waiver or consent in respect of a Finance Document or any document referred to in this Agreement; or

 

18.2.2              an amendment is required pursuant to Clause 30.10 (Change of Currency), the Company shall, within three Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees, subject to any agreed cap) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement.

 

18.3            Enforcement costs

 

The Company shall, within three Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

 

 

19.       GUARANTEE AND INDEMNITY

 

19.1            Guarantee and indemnity

 

Each Guarantor irrevocably and unconditionally jointly and severally:

 

19.1.1             guarantees to each Finance Party punctual performance by each Borrower of all that Borrower’s obligations under the Finance Documents;

 

19.1.2             undertakes with each Finance Party that whenever a 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

 

19.1.3             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 it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it 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 19 if the amount claimed had been recoverable on the basis of a guarantee.

 

19.2            Continuing guarantee

 

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

 

19.3            Reinstatement

 

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 19 will continue or be reinstated as if the discharge, release or arrangement had not occurred.

 

19.4            Waiver of defences

 

The obligations of each Guarantor under this Clause 19 will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 19 (without limitation and whether or not known to it or any Finance Party) including:

 

19.4.1              any time, waiver or consent granted to, or composition with, any Obligor or other person;

 

 

19.4.2             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;

 

19.4.3             the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, 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;

 

19.4.4             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;

 

19.4.5             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;

 

19.4.6             any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

 

19.4.7             any insolvency or similar proceedings.

 

19.5            Immediate recourse

 

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 19. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

 

19.6            Appropriations

 

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

 

19.6.1             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

 

19.6.2             hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 19.

 

 

19.7            Deferral of Guarantors’ rights

 

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 19:

 

19.7.1             to be indemnified by an Obligor;

 

19.7.2             to claim any contribution from any other guarantor of any Obligor’s obligations under the Finance Documents;

 

19.7.3             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;

 

19.7.4             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 19.1 (Guarantee and Indemnity);

 

19.7.5             to exercise any right of set-off against any Obligor; and/or

 

19.7.6             to claim or prove as a creditor of any Obligor in competition with any Finance Party.

 

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 30 (Payment Mechanics).

 

19.8            Release of Guarantors’ right of contribution

 

If any Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:

 

19.8.1             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

 

 

19.8.2             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.

 

19.9            Additional security

 

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

 

19.10         US Guarantors

 

Terms used in this Clause 19.10 are to be construed in accordance with any applicable fraudulent transfer laws.

 

19.10.1           Each US Guarantor acknowledges that it will receive valuable direct or indirect benefits as a result of the transactions financed by the Finance Documents.

 

19.10.2           Each Finance Party agrees that each US Guarantor's liability under this Clause 19 is limited so that no obligation of, or transfer by, any US Guarantor under this Clause 19 is subject to avoidance and turnover under any fraudulent transfer law.

 

19.10.3            Each US Guarantor represents and warrants to each Finance Party that:

 

19.10.3.1              the aggregate amount of its debts (including its obligations under the Finance Documents) is less than the aggregate value (being the lesser of fair valuation and present fair saleable value) of its assets;

 

19.10.3.2              its capital is not unreasonably small to carry on its business as it is being conducted;

 

19.10.3.3              it has not incurred and does not intend to incur debts beyond its ability to pay as they mature;

 

19.10.3.4              it has not made a transfer or incurred any obligation under any Finance Document with the intent to hinder, delay or defraud any of its present or future creditors; and

 

19.10.3.5              its obligations under the Finance Documents are not subject to avoidance and turnover under any fraudulent transfer law.

 

19.10.4            Each representation and warranty in this Clause 19.10:

 

19.10.4.1               is made by Stillwater on the date on which it accedes to this Agreement;

 

19.10.4.2               is deemed to be repeated by:

 

 

19.10.4.2.1                  each Additional Guarantor on the date that Additional Guarantor becomes a US Guarantor; and

 

19.10.4.2.2                  each US Guarantor on the date of each Utilisation Request and the first day of each Interest Period; and

 

19.10.4.3               is, when repeated, applied to the circumstances existing at the time of repetition.

 

20.       REPRESENTATIONS

 

Each Obligor makes the representations and warranties in respect of itself and, where expressly provided, each Restricted Company or Subsidiary (as the case may be), set out in this Clause 20 to each Finance Party on the Signature Date.

 

20.1            Status

 

20.1.1             Each Restricted Company is a limited liability company, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

 

20.1.2             Each Restricted Company has the power to own its assets and carry on its business as it is being conducted.

 

20.2            Binding obligations

 

The obligations expressed to be assumed by each Obligor in each Finance Document to which it is a party are, subject to the Legal Reservations, legal, valid, binding and enforceable obligations.

 

20.3            Non-conflict with other obligations

 

The entry into and performance by each Obligor of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not conflict with:

 

20.3.1              any law or regulation applicable to it;

 

20.3.2              its constitutional documents; or

 

20.3.3              any material agreement or instrument binding upon it or any of its assets.

 

20.4            Power and authority

 

Each Obligor has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents.

 

20.5            Validity and admissibility in evidence

 

All Authorisations required or desirable:

 

 

20.5.1             to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and

 

20.5.2             for the validity or enforceability of any Finance Document to which each Obligor is a party or to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation, have been obtained or effected and are in full force and effect including, without limitation, any authorisation required from the South African Reserve Bank.

 

20.6            Governing law and enforcement

 

20.6.1             Subject to the Legal Reservations, the choice of law specified as the governing law of the Finance Documents to which each Obligor is a party will be recognised and enforced in its jurisdiction of incorporation.

 

20.6.2             Subject to the Legal Reservations, any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation.

 

20.7            Insolvency

 

20.7.1             No Restricted Company has taken any corporate action, nor have any legal proceedings or creditors’ process been started or (to the best of its knowledge and belief) threatened against it, for its winding-up, dissolution or business rescue, or for the appointment of a liquidator, business rescue practitioner or similar officer of it or of its assets.

 

20.7.2             No Restricted Company is “financially distressed” (as defined in the Companies Act), to the extent that Applicable Inter-company Loans are excluded from the calculation of the fair value of such Restricted Company’s liabilities.

 

20.8            No filing or stamp taxes

 

Except to the extent set out in any legal opinion provided pursuant to the Finance Documents, under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents to which it is a party be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.

 

20.9            No deduction of Tax

 

As at the Signature Date, it is not required to make any deduction for or on account of tax from any payment it may make under any Finance Document to which it is a party, other than the withholding tax on interest income required to be withheld from interest income payable by South African tax residents to non-Qualifying Lenders.

 

 

20.10         No default

 

20.10.1           As at the Signature Date, the Effective Date and the first Utilisation Date, no Default is continuing or might reasonably be expected to result from the entry into of, or the performance of any transaction contemplated by, the Finance Documents or from its making use of any Utilisation.

 

20.10.2           As at any date falling after the first Utilisation Date, no Event of Default is continuing or  might reasonably be expected to result from the entry into of, or the performance of any transaction contemplated by, the Finance Documents or from it making use of any Utilisation.

 

20.10.3           No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject which could reasonably be expected to have a Material Adverse Effect.

 

20.11         No misleading information

 

20.11.1           Any information provided to the Finance Parties in connection with the Finance Documents was true and accurate in all material respects as at the date of the relevant report or document containing the information or (as the case may be) as at the date the information is expressed to be given.

 

20.11.2           Any financial projections provided to the Finance Parties in connection with the Finance Documents have been prepared on the basis of recent historical information and is believed in good faith to be based on reasonable assumptions.

 

20.11.3           No information provided to the Finance Parties in connection with the Finance Documents omits as at its date any information which, if disclosed, would reasonably be expected to materially and adversely affect the decision of the Lenders in considering whether or not to provide finance to the Borrowers under this Agreement.

 

20.11.4           Nothing has occurred since the date of the provision of information to the Finance Parties in connection with the Finance Documents which, if disclosed, would reasonably be expected to materially and adversely affect the decision of the Lenders in considering whether or not to provide finance to the Borrowers under this Agreement.

 

20.12         Financial statements

 

20.12.1           In relation to the Company, its latest audited annual financial statements were prepared in accordance with IFRS and fairly represent the Group’s financial condition and operations during the relevant financial period (on a consolidated basis, where applicable).

 

20.12.2           In relation to any Obligor other than the Company or, if applicable, any US Debtor, its latest audited annual financial statements were prepared in accordance with IFRS and fairly

 

 

represent its financial condition and operations during the relevant financial period (on a consolidated basis, where applicable).

 

20.12.3           In relation to any US Debtor (after it has become an Obligor), its latest audited annual financial statements were prepared in accordance with US GAAP or IFRS and fairly represent its financial condition and operations during the relevant financial period (on a consolidated basis, where applicable).

 

20.13         No proceedings pending or threatened

 

Other than:

 

20.13.1           as disclosed in its Financial Statements most recently delivered to the Agent; and

 

20.13.2           the potential litigation disclosed in Schedule 11 (Litigation), no litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency have been started or (to the best of its knowledge and belief, after due enquiry) threatened in writing against it which are reasonably expected to have a Material Adverse Effect.

 

20.14         No breach of laws

 

20.14.1           No Restricted Company is, nor is it likely to be as a result of entering into and performing its obligations under the Finance Documents to which it is a party, in violation of any law or in breach of or in default under any agreement to which it is a party or which is binding on it or any of its assets to an extent or in a manner which would be reasonably expected to have a Material Adverse Effect.

 

20.14.2           No Restricted Company has breached any law or regulation (including environmental laws) which breach has or would be reasonably expected to have a Material Adverse Effect.

 

20.15         Environmental laws

 

20.15.1           Each Restricted Company is in compliance with the undertakings given in Clause 23.3 (Environmental compliance) and Clause 23.5 (Environmental Information and  Undertakings) regarding environmental compliance and claims, save to the extent that such non-compliance would not be reasonably expected to have a Material Adverse Effect and (to the best of its knowledge and belief) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or would be reasonably expected to have a Material Adverse Effect.

 

20.15.2           Each Restricted Company has adopted and complies with an environmental policy which requires monitoring of, and all applicable environmental laws and permits applicable to it

 

 

from time to time, unless non-compliance with such policy would not be reasonably expected to cause a Material Adverse Effect.

 

20.15.3           No environmental claim has 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 would reasonably be expected if adversely determined to have a Material Adverse Effect.

 

20.16         Taxation

 

20.16.1           Each Restricted Company has duly and punctually paid and discharged all taxes imposed upon it or its assets within the time period allowed without incurring penalties, except to the extent that:

 

20.16.1.1               payment is being contested in good faith;

 

20.16.1.2               it has maintained adequate reserves for those taxes; and

 

20.16.1.3               payment can be lawfully withheld.

 

20.16.2           The representation in Clause 20.16.1 shall not apply where the representation or statement relates to taxes, which do not in aggregate exceed US$15,000,000 (or its equivalent in any other currency or currencies) in any Financial Year.

 

20.17         Anti-corruption law and sanctions

 

20.17.1           It and its Subsidiaries have conducted their businesses in compliance with applicable anti- corruption and anti-money laundering laws and regulations and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws and regulations.

 

20.17.2            None of the Company or any of its Subsidiaries or any of their respective directors:

 

20.17.2.1              is a Person that is, or is owned or controlled by Persons that are, the subject of any Sanctions; or

 

20.17.2.2              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.

 

20.17.3           For the purpose of this Clause 20.17 (Anti corruption law and sanctions) and Clause 23.6 (Anti corruption law and sanctions):

 

20.17.3.1              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.

 

20.17.3.2              Person means an individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership.

 

20.17.3.3              OFAC means the Office of Foreign Assets Control of the US Department of the Treasury.

 

20.17.3.4              Sanctions means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by any of the Sanctions Authorities.

 

20.17.3.5             Sanctions Authorities means:

 

20.17.3.5.1                  the United States government; 20.17.3.5.2 the United Nations;

 

20.17.3.5.3                  the European Union;

 

20.17.3.5.4                  the United Kingdom; or

 

20.17.3.5.5                  the respective Governmental Authorities of any of the foregoing, including without limitation, OFAC, the US Department of State and Her Majesty’s Treasury of the United Kingdom.

 

20.18         Security and Financial Indebtedness

 

20.18.1           No Encumbrance exists over all or any Restricted Company’s assets except for Permitted Encumbrances.

 

20.18.2           No member of the Group other than an Obligor or a Project Finance Subsidiary has any Financial Indebtedness outstanding other than Permitted Financial Indebtedness.

 

20.19         Pari passu ranking

 

Each Obligor’s payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally in the jurisdiction of its incorporation.

 

20.20         Good title to assets

 

Each Restricted Company has good title to or valid leases or licences of, all of the assets necessary to carry on its business as presently conducted, the absence of which would reasonably be expected to have a Material Adverse Effect.

 

 

20.21         Intellectual property

 

No Restricted Company is aware of any adverse circumstances relating to any intellectual property required for use in its business which has or would be reasonably expected to have a Material Adverse Effect.

 

20.22         Accounting reference date

 

The accounting reference date of each member of the Group (except for a person that has become a member of the Group in the three Months preceding the date on which this representation is made or deemed to be made) is 31 December.

 

20.23         No Material Adverse Effect

 

There has been no material adverse change in the business, operations, properties or financial condition of the Group taken as a whole, in respect of the representations made on the Signature Date, since the date of the audited annual financial statements of the Company for the year ended 31 December 2015 and, in respect of each representation made after the Signature Date, since the date of the most recent audited annual financial statements of the Company.

 

20.24         US Regulations

 

It is not:

 

20.24.1           a public utility (as such term is used in the United States Federal Power Act of 1920) or subject to regulation under the United States Federal Power Act of 1920);

 

20.24.2           required to be registered as an investment company (as such term is used in the United States Investment Company Act of 1940) or subject to regulation under the United States Investment Company Act of 1940; or

 

20.24.3           subject to regulation under any United States Federal or State law or regulation that limits its ability to incur or guarantee indebtedness.

 

20.25         Repetition

 

20.25.1           All the representations and warranties in this Clause are made by the Obligors on the Signature Date and the Effective Date.

 

20.25.2           The Repeating Representations are deemed to be made by the Company and each Obligor in respect of itself, and where expressly stated, in respect of each Restricted Company, by reference to the facts and circumstances then existing on:

 

20.25.2.1               the date of each Utilisation Request and the first day of each Interest Period; and

 

 

20.25.2.2              in the case of an Additional Obligor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Obligor.

 

21.       INFORMATION UNDERTAKINGS

 

The undertakings in this Clause 21 remain in force from the Signature Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

 

21.1            Financial statements

 

The Company shall supply to the Agent in sufficient copies for all the Lenders:

 

21.1.1              as soon as the same become available, but in any event within 120 days after the end of each of its Financial Years:

 

21.1.1.1                 its audited consolidated financial statements for that Financial Year; and

 

21.1.1.2                 the audited financial statements of each Obligor for that Financial Year; and

 

21.1.2              as soon as the same become available, but in any event within 60 days after the end of each of its Financial Half Years:

 

21.1.2.1                 its unaudited condensed consolidated financial statements for that Financial Half Year;

 

21.1.2.2                 the unaudited management accounts of each Obligor for that Financial Half Year; and

 

21.1.3             as soon as they become available, but in any event within 60 days of the end of each Financial Quarter ending on 31 March or 30 September:

 

21.1.3.1                   its unaudited management accounts for that Financial Quarter; and

 

21.1.3.2                   the unaudited management accounts of each Obligor for that Financial Quarter.

 

21.2            Compliance Certificate

 

21.2.1             The Company shall supply to the Agent, with each set of Financial Statements delivered pursuant to Clauses 21.1.1.1, 21.1.2.1 or 21.1.3.1, a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 22 (Financial Covenants) and specify each Material Company as at the date as at which those Financial Statements were drawn up.

 

21.2.2             Each Compliance Certificate shall be signed by two directors of the Company.

 

21.3            Requirements as to financial statements

 

21.3.1             Each set of Financial Statements delivered by the Company pursuant to Clause 21.1 (Financial Statements) shall be certified by a director of the relevant company as fairly

 

 

representing its financial condition (or, if applicable, its consolidated financial condition) as at the date as at which those Financial Statements were drawn up.

 

21.3.2             The Company shall procure that each set of Financial Statements delivered pursuant to Clause 21.1 (Financial Statements) is prepared using IFRS (or, if delivered in respect of a US Debtor, IFRS or US GAAP).

 

21.3.3             The Company shall procure that each set of Financial Statements of an Obligor delivered pursuant to Clause 21.1 (Financial Statements) is prepared using IFRS (or, if delivered in respect of a US Debtor, IFRS or US GAAP), accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of Financial Statements, it notifies the Agent that there has been a change in IFRS (or, if delivered in respect of a US Debtor, IFRS or US GAAP), the accounting practices or reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Agent:

 

21.3.3.1                a description of any change necessary for those Financial Statements to reflect the IFRS or US GAAP, as applicable, accounting practices and reference periods upon which that Obligor’s Original Financial Statements were prepared; and

 

21.3.3.2                sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Lenders to determine whether Clause 22 (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, provided that no such notification shall be required to be provided by the Company to the Agent if the matters referred to in Clauses 21.3.3.1 and 21.3.3.2 are adequately disclosed in those financial statements.

 

21.3.4              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.

 

21.3.5              The accounting reference date referred to in Clause 20.22 (Accounting Reference Date), shall not be changed.

 

21.4            Information: miscellaneous

 

The Company shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

 

21.4.1             if requested by the Agent, a report issued by the Company’s auditors confirming the arithmetic computations and the proper extraction of figures applied in determining which

 

members of the Group are Material Companies and that the Guarantor Threshold Test has been met;

 

21.4.2             all documents dispatched by the Company to its shareholders (or any class of them) or by the Company or any other Obligors to its creditors generally (or any class of them);

 

21.4.3             promptly upon becoming aware of them, details and copies of any changes proposed to be 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;

 

21.4.4             promptly, notice of 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;

 

21.4.5             promptly, upon request by the Agent, such additional information or documentation as the Facility Agent may reasonably require in order to verify that any signatory referred to in Clause 21.4.4 has been duly authorised;

 

21.4.6             promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings, winding-up applications, liquidation applications or business rescue applications which are reasonably likely to be adversely determined and, if so determined, would be reasonably likely to have a Material Adverse Effect;

 

21.4.7             promptly upon it becoming aware of it, of any breach of the terms and conditions of a Streaming Transaction which (a) is reasonably likely to result in a liability for damages or other claim(s) in respect of such breach being imposed on members of the Group in excess of USD50,000,000 (in aggregate) or (b) otherwise has or is reasonably likely to have a Material Adverse Effect;

 

21.4.8             promptly, an updated share register of Sibanye Gold pursuant to the implementation of Project Top Deck;

 

21.4.9             promptly such further information requested by the Facility Agent relating to the Lonmin Merger, Project Top Deck, any acquisition of shares in DRD Gold and any Streaming Transaction; and

 

21.4.10           promptly such further information regarding the financial condition, business and operations of the Group and/or any member of the Group as any Finance Party (through the Agent) may reasonably request.

 

21.5            Notification of default

 

21.5.1             The Company shall promptly notify the Agent of any Default (and the steps, if any, being taken to remedy it) upon becoming aware of its occurrence.

 

 

21.5.2             Promptly upon request by the Agent, the Company shall supply to the 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.

 

21.6            Use of websites

 

21.6.1             The Company may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the Website Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Company and the Agent (the Designated Website) if:

 

21.6.1.1                the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

 

21.6.1.2                both the Company and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

 

21.6.1.3                the information is in a format previously agreed between the Company and the Agent.

 

21.6.2             If any Lender (a Paper Form Lender) does not agree to the delivery of information electronically then the Agent shall notify the Company accordingly and the Company shall supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Company shall supply the Agent with at least one copy in paper form of any information required to be provided by it.

 

21.6.3             The 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 Company and the Agent.

 

21.6.4             The Company shall promptly upon becoming aware of its occurrence notify the Agent if:

 

21.6.4.1                the Designated Website cannot be accessed due to technical failure;

 

21.6.4.2                the password specifications for the Designated Website change;

 

21.6.4.3                any new information which is required to be provided under this Agreement is posted onto the Designated Website;

 

21.6.4.4                any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

 

21.6.4.5                the Company 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.

 

 

21.6.5             If the Company notifies the Agent under Clause 21.6.4.1 or Clause 21.6.4.5 above, all information to be provided by the Company under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

 

21.6.6             Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Company shall comply with any such request within ten Business Days.

 

21.7           “Know your customer” checks

 

21.7.1              If:

 

21.7.1.1                the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signature Date;

 

21.7.1.2                any change in the status of or shareholders of an Obligor (other than the Company) after the Signature Date; or

 

21.7.1.3                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, obliges the Agent or any Lender (or, in the case of Clause 21.7.1.3 above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Agent or any Lender  supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in Clause 21.7.1.3 above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in Clause 21.7.1.3 above, 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 transactions contemplated in the Finance Documents.

 

21.7.2             Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the 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.

 

21.7.3             The Company shall, by not less than 10 Business Days’ prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 26 (Change of Obligors).

 

 

21.7.4             Following the giving of any notice pursuant to Clause 21.7.3 above, if the accession of such Additional Obligor obliges the 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 Company shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the 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 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 Obligor.

 

22.       FINANCIAL COVENANTS

 

22.1            Financial Definitions

 

All accounting expressions which are not otherwise defined in this Agreement shall be construed in accordance with the Accounting Principles and, unless the context dictates otherwise, the accounting expressions set forth below shall bear the following meanings:

 

22.1.1             Consolidated EBITDA means, in respect of any Measurement Period, the consolidated net income of the Group (less the net income of any Project Finance Subsidiaries but including any dividends received in cash by any member of the Group (other than a Project Finance Subsidiary) from a Project Finance Subsidiary), before, without duplication and all as calculated in accordance with IFRS (but adjusted on a pro forma basis to reflect acquisitions and disposals):

 

22.1.1.1                any provision on account of normal, deferred and royalty taxation;

 

22.1.1.2                any interest, commission, discounts or other fees incurred or payable, received or receivable by any member of the Group in respect of indebtedness;

 

22.1.1.3                any other interest received or receivable by any member of the Group on any deposit or bank account;

 

22.1.1.4                any non-cash adjustments to the environment rehabilitation and/or reclamation expenses;

 

22.1.1.5                any amount attributable to the amortisation of intangible assets and depreciation of tangible assets;

 

22.1.1.6                any non-cash gains or losses relating to and resulting from the marked to market valuation of derivative and/or financial instruments;

 

22.1.1.7                any losses from (or gains on the reversal of previously recognised) write-downs or impairments of assets and/or investments;

 

 

22.1.1.8                any gains or losses recognised on the attributable share of results of associates after tax, but including any dividends received in cash by any member of the Group from such an associate;

 

22.1.1.9                 any share-based payments;

 

22.1.1.10               any other extraordinary or exceptional items; and

 

22.1.1.11               any other material non-cash gain or loss that needs to be accounted for under IFRS.

 

22.1.2             Consolidated Net Borrowings means at any time, the aggregate amount of all obligations of the members of the Group, other than Project Finance Subsidiaries (but including, for the avoidance of doubt, any obligations of any other member of the Group in respect of the obligations of a Project Finance Subsidiary), for or in respect of Indebtedness for Borrowed Money but excluding any such obligation to any member of the Group (other than a Project Finance Subsidiary), adjusted to take into account the aggregate amount of freely available cash and cash equivalents held by any member of the Group, other than Project Finance Subsidiaries, and so that no amount shall be included or excluded more than once.

 

22.1.3             Consolidated Net Finance Charges means, in respect of any Measurement Period, the aggregate amount of the interest (including the interest element of leasing and hire purchase payments and capitalised interest), commission, fees, discounts and other finance payments payable by any member of the Group, other than Project Finance Subsidiaries, (including any commission, fees, discounts and other finance payment payable by any member of the Group under any interest rate hedging arrangement but deducting any commission, fees, discounts and other finance payments receivable by any member of the Group (other than a Project Finance Subsidiary) under any interest rate hedging instrument) but deducting any other interest receivable by any member of the Group, other than Project Finance Subsidiaries, on any deposit or bank account.

 

22.1.4             Consolidated Tangible Net Worth means, at any time, the “Total Equity” as reported in the “Consolidated Statement of Changes in Equity” less goodwill and intangibles in the latest audited annual financial statements of the Company delivered to the Agent pursuant to Clause 21.1(Financial Statements).

 

22.1.5             EBITDA means, in respect of any member of the Group, in respect of any Measurement Period, the net income of that member of the Group before, without duplication and all as calculated in accordance with the Accounting Principles (but adjusted on a pro forma basis to reflect acquisitions and disposals):

 

22.1.5.1                any provision on account of normal, deferred and royalty taxation;