ZAR4,000,000,000 AMENDED AND RESTATED TERM AND REVOLVING CREDIT FACILITIES AGREEMENT

1. 

DEFINITIONS AND INTERPRETATION

2. 

THE FACILITIES

3. 

PURPOSE

4. 

CONDITIONS OF UTILISATION

5. 

UTILISATION

6. 

REPAYMENT

7. 

PREPAYMENT AND CANCELLATION

8. 

INTEREST

9. 

INTEREST PERIODS

10. 

CHANGES TO THE CALCULATION OF INTEREST

11. 

FEES

12. 

TAX GROSS UP AND INDEMNITIES

13. 

INCREASED COSTS

14. 

OTHER INDEMNITIES

15. 

MITIGATION BY THE LENDERS

16. 

COSTS AND EXPENSES

17. 

GUARANTEE AND INDEMNITY

18. 

REPRESENTATIONS

19. 

INFORMATION UNDERTAKINGS

20. 

FINANCIAL COVENANTS

21. 

GENERAL UNDERTAKINGS

22. 

EVENTS OF ▇▇▇▇▇▇▇

▇▇. 

CHANGES TO THE LENDERS

24. 

CHANGES TO THE OBLIGORS

25. 

ROLE OF THE ARRANGERS

26. 

CONDUCT OF BUSINESS BY THE FINANCE PARTIES

27. 

SHARING AMONG THE FINANCE PARTIES

28. 

PAYMENT MECHANICS

29. 

SET-OFF

30. 

NOTICES

31. 

CALCULATIONS AND CERTIFICATES

32. 

PARTIAL INVALIDITY

33. 

REMEDIES AND WAIVERS

34. 

AMENDMENTS AND WAIVERS

35. 

CONFIDENTIALITY

36. 

FINANCE PARTY RIGHTS

37. 

RENUNCIATION OF BENEFITS

38. 

COUNTERPARTS

39. 

WAIVER OF IMMUNITY

40. 

SOLE AGREEMENT

41. 

NO IMPLIED TERMS

42. 

EXTENSIONS AND WAIVERS

43. 

INDEPENDENT ADVICE

44. 

GOVERNING LAW AND JURISDICTION

SCHEDULE 1 THE LENDERS AND ADDITIONAL GUARANTORS 

Part I: The Original Facility A Lenders

Part II: The Original Facility B Lenders

Part III: The New Facility A Lenders

Part IV: The Additional Guarantors

SCHEDULE 2 THE ORIGINAL COMMITMENTS

SCHEDULE 3 CONDITIONS PRECEDENT

Part I : Initial Conditions Precedent

Part II: Conditions Precedent Required to be Delivered by an Additional Obligor

SCHEDULE 4 FORM OF UTILISATION REQUEST

SCHEDULE 5 FORM OF CONFIDENTIALITY UNDERTAKING 

SCHEDULE 6 FORM OF TRANSFER CERTIFICATE 

SCHEDULE 7 FORM OF ACCESSION LETTER 

SCHEDULE 8 FORM OF RESIGNATION LETTER 

SCHEDULE 9 FORM OF COMPLIANCE CERTIFICATE 

SCHEDULE 10 TIMETABLES 

SCHEDULE 11 LITIGATION 

SCHEDULE 12 LIST OF PERMITTED TRANSFEREES 

PARTIES:

The Parties to this Agreement are:

(1)

SIBANYE GOLD LIMITED as original borrower;

(2)

BANK OF CHINA LIMITED JOHANNESBURG BRANCH, FIRSTRAND BANK LIMITED (acting through its Rand Merchant Bank division) and NEDBANK LIMITED (acting through its Corporate and Investment Banking division) as mandated lead arrangers (the Mandated Lead Arrangers);

(3)

ABSA BANK LIMITED, INVESTEC BANK LIMITED (acting through its Corporate and Institutional Banking Division) and THE STANDARD BANK OF SOUTH AFRICA LIMITED (acting through its Corporate and Investment Banking division), as co-arrangers (the Co-Arrangers);

(4)

NEDBANK LIMITED (acting through its Corporate and Investment Banking division) as agent of the other Finance Parties (the Facility Agent);  

(5)

THE FINANCIAL INSTITUTIONS listed in Part I, Part II and Part III of Schedule 1 (The Lenders and Additional Guarantors) (the Lenders); and

(6)

THE GUARANTORS listed in Part IV of Schedule 1 (The Lenders and Additional Guarantors) (the Additional Guarantors).

IT IS AGREED AS FOLLOWS:

1.

DEFINITIONS AND INTERPRETATION

1.1.

In this Agreement, unless the context dictates otherwise, the words and expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings:

1.1.1.

Accession Letter means a document substantially in the form set out in Schedule 7 (Form of Accession Letter);

1.1.2.

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

1.1.3.

Additional Borrower means any Subsidiary of the Original Borrower which becomes an Additional Borrower in accordance with Clause 24.2  (Additional Borrowers);

1.1.4.

Additional Guarantor means any Subsidiary of the Original Borrower which becomes an Additional Guarantor in accordance with Clause 24.4  (Additional Guarantors);

1.1.5.

Additional Obligor means an Additional Borrower or an Additional Guarantor;

1.1.6.

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;

1.1.7.

Agreement means this Amended and Restated Term and Revolving Credit Facilities Agreement and its Schedules;

1.1.8.

Amendment and Restatement Agreement means the written agreement entitled “Amendment and Restatement Agreement” entered into or to be entered into amongst the Parties on or about [●] September 2015 and pursuant to which the Original Form Term and Revolving Credit Facilities Agreement is amended and restated to be in the form attached thereto;

1.1.9.

Amendment Date means the “Amendment Date” as defined in the Amendment and Restatement Agreement;

1.1.10.

Annual Financial Statements has the meaning given to that term in Clause 19  (Information Undertakings);

1.1.11.

Arrangers means the Mandated Lead Arrangers and the Co-Arrangers;

1.1.12.

Auditors means as at the Signature Date KPMG, and otherwise one of PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche or alternatively any other firm approved in advance by the Facility Agent (acting reasonably);

1.1.13.

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

1.1.14.

Availability Period means, subject to Clause 4.1  (Initial conditions precedent):

1.1.14.1.

in relation to Facility A, the period commencing on the Effective Date and ending on the earlier of:

1.1.14.1.1.

the date on which Facility A is cancelled in accordance with this Agreement; and

1.1.14.1.2.

the date falling 30 (thirty) days after the Effective Date; and

1.1.14.2.

in relation to Facility B, the period commencing on the Effective Date and ending on the earlier of:

1.1.14.2.1.

the date on which Facility B is cancelled in accordance with this Agreement; and

1.1.14.2.2.

the date falling 1 (one) Month prior to the Final Repayment Date;

1.1.15.

Available Commitment means, in relation to a Facility, a Lender’s Commitment under that Facility minus:

1.1.15.1.

the amount of its participation in any outstanding Loans under that Facility; and

1.1.15.2.

in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,

other than, in relation to any proposed Utilisation under Facility B only, that Lender’s participation in any Facility B Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date;

1.1.16.

Available Facility means, in relation to a Facility, the aggregate for the time being of each Lender’s Available Commitment in respect of that Facility;

1.1.17.

Base Rate means, in relation to the determination of the rate of interest for any Interest Period:

1.1.17.1.

in respect of which the relevant Interest Period is 1 (one) Month, 1 (one) month JIBAR;

1.1.17.2.

in respect of which the relevant Interest Period is 3 (three) Months, 3 (three) month JIBAR; and

1.1.17.3.

in respect of which the relevant Interest Period is 6 (six) Months, 6 (six) month JIBAR,

each in relation to the relevant Loan; provided that for any Broken Period the Base Rate shall be determined in accordance with the following formula:

r = r1 + (t-t1) x (r2-r1) / (t2-t1)

Where:

r               =               the Base Rate to be determined;

r1              =               the JIBAR rate for the period closest to but less than the Broken Period plus, if this would result in r1 being equal to the JIBAR Overnight Deposit Rate, 0,01%;

r2              =               the JIBAR Rate for the period closest to but greater than the Broken Period;

t1              =                the number of days applicable to the period for which r1 is quoted on the first day of the Broken Period;

t2              =               the number of days applicable to the period for which r2 is quoted on the first day of the Broken Period; and

t                =               the number of days in the Broken Period;

1.1.18.

Borrower means:

1.1.18.1.

the Original Borrower; and/or

1.1.18.2.

any Additional Borrower, which in each case has not ceased to be a Borrower in accordance with Clause 24.3  (Resignation of a Borrower);

1.1.19.

Breakage Costs means the amount (if any) by which:

1.1.19.1.

the interest (excluding 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:

1.1.19.2.

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Johannesburg Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period;

1.1.20.

Breakage Gains means the amount (if any) by which the amount referred to in Clause 1.1.19.2 exceeds the amount referred to in Clause 1.1.19.1;

1.1.21.

Broken Period means, in relation to a Loan, the final Interest Period of that Loan, in each case only to the extent it is:

1.1.21.1.

if a 1 (one) Month Interest Period is selected, less than 30 (thirty) days; or

1.1.21.2.

if a 3 (three) Month Interest Period is selected, less than 91 (ninety-one) days;

1.1.21.3.

if a 6 (six) Month Interest Period is selected, less than 180 (one-hundred and eighty) days;

1.1.22.

Business Day means a day (other than a Saturday, a Sunday or official public holiday in South Africa within the meaning of the Public Holidays Act, 1994) on which banks are open for general business in Johannesburg;

1.1.23.

Change of Control means, if any person or group of persons acting in concert gains direct or indirect control of the Original Borrower after the Signature Date.

For the purpose of this Clause 1.1.23:

1.1.23.1.

control means, in relation to the Original Borrower:

1.1.23.1.1.

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

1.1.23.1.1.1.

cast, or control the casting of, more than:

1.1.23.1.1.1.1.

if the shares are not Listed: 50% (fifty percent); or

1.1.23.1.1.1.2.

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 Original Borrower; or

1.1.23.1.1.2.

appoint or remove all, or the majority, of the directors or other equivalent officers of the Original Borrower; or

1.1.23.1.2.

the holding beneficially and legally of more than 50% (fifty percent) of the issued ordinary share capital of the Original Borrower; and

1.1.23.2.

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 Original Borrower by any of them, either directly or indirectly, to obtain or consolidate control of the Original Borrower;

1.1.24.

Commitment means a Facility A Commitment or a Facility B Commitment;

1.1.25.

Companies Act means the Companies ▇▇▇, ▇▇▇▇;

1.1.26.

Compliance Certificate means a certificate substantially in the form set out in Schedule 9 (Form of Compliance Certificate);

1.1.27.

Confidential Information means all non-public information relating to the Original Borrower, any Obligor, the Group, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:

1.1.27.1.

any member of the Group or any of its advisers; or

1.1.27.2.

another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its directors, officers, employees or advisers,

in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

1.1.27.3.

is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 35  (Confidentiality); or

1.1.27.4.

is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its directors, officers, employees or advisers; or

1.1.27.5.

is known by that Finance Party before the date the information is disclosed to it in accordance with Clauses 1.1.27.1 or 1.1.27.2 above or is lawfully obtained by that Finance Party after that date from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality;

1.1.28.

Confidentiality Undertaking means a confidentiality undertaking substantially in the form set out in Schedule 5 (Form of Confidentiality Undertaking) hereto;

1.1.29.

Constitutional Documents means, in respect of any person at any time, the then current and up-to-date constitutional documents of such person at such time (including, without limitation, such person’s memorandum of incorporation, certificate of incorporation, certificate of change of name, commercial registration certificate or trust deed);

1.1.30.

Coverage Test has the meaning given in Clause 21.17  (Guarantors);

1.1.31.

CP Documents means all of the documents and other evidence listed in Part I of Schedule 3 (Conditions Precedent);

1.1.32.

CP Satisfaction Date means the date of the notice given by the Facility Agent pursuant to Clause 4.1  (Initial conditions precedent), being 13 December 2013;

1.1.33.

Debt Guarantor means Opiconsivia Trading 305 (RF) Proprietary Limited, a private company duly incorporated under the laws of South Africa with registration number 2013/013189/07;

1.1.34.

Default means any event specified as an Event of Default or any event or circumstance specified in Clause 22  (Events of Default) which would (with the expiry of any applicable grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) become an Event of Default;

1.1.35.

Discharge Date means the date on which:

1.1.35.1.

all the Facility Outstandings have been fully and unconditionally paid and discharged whether or not as a result of enforcement; and

1.1.35.2.

the Lenders have no commitment, obligations or liability (whether actual or contingent) to lend money or provide other financial accommodation to any Obligor under any Finance Document;

in each case, as confirmed by the Facility Agent (acting on the instructions of all of the Lenders (acting reasonably));

1.1.36.

Disruption Event means either or both of:

1.1.36.1.

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 Facilities (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

1.1.36.2.

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:

1.1.36.2.1.

from performing its payment obligations under the Finance Documents; or

1.1.36.2.2.

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;

1.1.37.

Distribution means any payment by way of interest, principal, dividend, capital reduction, return of capital, fee, royalty or other distribution of whatsoever nature and howsoever described (including a repurchase or redemption of shares and an issue of shares) by or on behalf of a company to or for the account of any member or shareholder of that company, in its capacity as member or shareholder of that company, or in relation to a loan made by such shareholder to the company, in each case whether paid or payable and whether paid or payable in cash or in specie;

1.1.38.

Driefontein Mine means the underground and opencast mining operations of the Original Borrower located in the magisterial district of ▇▇▇▇▇▇▇▇▇▇ in Gauteng Province and known as the Driefontein mining operations; 

1.1.39.

Effective Date means the date which is the earlier of:

1.1.39.1.

the CP Satisfaction Date; or

1.1.39.2.

the date on which the first Loan is made under this Agreement;

1.1.40.

Encumbrance means: 

1.1.40.1.

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;

1.1.40.2.

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

1.1.40.3.

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;

1.1.41.

Environment means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:

1.1.41.1.

air (including, without limitation, air within natural or man-made structures, whether above or below ground);

1.1.41.2.

water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and

1.1.41.3.

land (including, without limitation, land under water);

1.1.42.

Environmental Claim means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law;

1.1.43.

Environmental Law means any applicable law or regulation which relates to:

1.1.43.1.

the pollution or protection of the Environment;

1.1.43.2.

harm to or the protection of human health;

1.1.43.3.

the conditions of the workplace; or

1.1.43.4.

the generation, handling, storage, use, release, emission or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste;

1.1.44.

Environmental Permits means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any Obligor conducted on or from the properties owned or used by any Obligor;

1.1.45.

Eskom means Eskom Holdings SOC Ltd, a public company duly incorporated under the laws of South Africa with registration number 2002/015527/06;

1.1.46.

Eskom Guarantee Facility Agreements means the facility agreements entered into or to be entered into amongst the Eskom Guarantee Facility Providers and members of the Group, pursuant to which the Eskom Guarantee Facility Providers make available guarantee facilities, which in aggregate amount to not more than ZAR500,000,000, to the Group for the sole purpose of issuing guarantees in favour of Eskom, and which in each case shall be entered into on market related terms and terms and conditions usual for guarantee facilities of this nature;  

1.1.47.

Eskom Guarantee Facility Providers means the provider or providers of the guarantee facilities pursuant to the Eskom Guarantee Facility Agreements;

1.1.48.

Event of Default means any event or circumstance specified as such in Clause 22  (Events of Default);

1.1.49.

Existing Borrower Facility Agreement means the written agreement entitled “Term and Revolving Facilities Agreement” concluded amongst the Original Borrower, Nedbank Limited (as facility agent) and the lenders thereto on or about 28 November 2012, as amended and restated on or about 22 August 2013;

1.1.50.

Existing Borrower Indebtedness means, in relation to the Original Borrower the indebtedness owing under the Existing Borrower Facility Agreement;

1.1.51.

Existing Lender has the meaning given to that term in Clause 23.1  (Cessions and delegations by the Lenders);

1.1.52.

Ezulwini Mining Company means Ezulwini Mining Company Proprietary Limited, a private company duly incorporated under the laws of South Africa with registration number 2004/028640/07;

1.1.53.

Facility means Facility A or Facility B and Facilities means Facility A and Facility B;

1.1.54.

Facility A means the term loan facility made available under this Agreement as described in Clause 2  (The Facilities);

1.1.55.

Facility A Commitment means:

1.1.55.1.

in relation to an Original Facility A Lender, the amount set out opposite its name under the heading “Facility A Commitment” in Schedule 2 (The Original Commitments); and

1.1.55.2.

in relation to any other Lender, the amount of any Facility A Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement;

1.1.56.

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

1.1.57.

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

1.1.58.

Facility B Commitment means:

1.1.58.1.

in relation to an Original Facility B Lender, the amount set out opposite its name under the heading “Facility B Commitment”; and

1.1.58.2.

in relation to any other Lender, the amount of any Facility B Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement;

1.1.59.

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

1.1.60.

Facility Outstandings means, at any time, the aggregate of all amounts of principal, accrued and unpaid interest and all and any other amounts due and payable to the Finance Parties under the Finance Documents including, without limitation, any claim for damages or restitution and any claim as a result of any recovery by an Obligor of a payment or discharge on the grounds of preference, and any amounts which would be included in any of the above but for any discharge, non-provability or unenforceability of those amounts in any insolvency or other proceedings;

1.1.61.

Fee Letter means any letter or letters dated on or about the Signature Date between the Arrangers (or any of them) and the Original Borrower (or the Facility Agent and the Original Borrower) setting out any of the fees referred to in Clause 11  (Fees);

1.1.62.

Final Repayment Date means the date falling on the 3rd (third) anniversary of the First Utilisation Date;

1.1.63.

Finance Documents means:

1.1.63.1.

this Agreement;

1.1.63.2.

the Consent Letter;

1.1.63.3.

the Intercreditor Agreement;

1.1.63.4.

any Fee Letter;

1.1.63.5.

any Compliance Certificate;

1.1.63.6.

any Accession Letter;

1.1.63.7.

any Resignation Letter;

1.1.63.8.

any Utilisation Request; and

1.1.63.9.

any other document designated as such by the Facility Agent and the Original Borrower,

1.1.64.

Finance Parties means the Mandated Lead Arrangers, the Co-Arrangers, the Facility Agent, each Lender and, upon accession to this Agreement and Finance Party means, as the context requires, any one of them;

1.1.65.

Financial Covenants means the financial covenants set out in Clause 20.1  (Financial Condition);

1.1.66.

Financial Indebtedness means, without double counting, any indebtedness for or in respect of:

1.1.66.1.

moneys borrowed, or credit granted;

1.1.66.2.

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

1.1.66.3.

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

1.1.66.4.

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a finance or capital lease;

1.1.66.5.

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

1.1.66.6.

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

1.1.66.7.

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 that 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);

1.1.66.8.

any amount raised by the issue of redeemable shares to the extent such shares are redeemable prior to the Final Repayment Date;

1.1.66.9.

any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and

1.1.66.10.

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:

1.1.66.10.1.

used primarily as a method of raising credit; or

1.1.66.10.2.

not made in the ordinary course of business;

1.1.66.11.

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

1.1.66.12.

the amount of any liability (including any contingent liabilities) in respect of any guarantee or indemnity for any of the items referred to in Clauses 1.1.66.1 to 1.1.66.9 above;

1.1.67.

Financial Statements has the meaning given to that term in Clause 19  (Information Undertakings);

1.1.68.

Financial Year means the annual accounting period of the Obligors ending on 31 December in each year;

1.1.69.

First Utilisation Date means the date on which the Lenders advanced the first Loan under the Original Form Term and Revolving Credit Facilities Agreement, being 13 December 2013;

1.1.70.

Franco-Nevada Loan 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;

1.1.71.

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;

1.1.72.

GFL means Gold Fields Limited, a public company duly incorporated under the laws of South Africa with registration number 1968/004880/06;

1.1.73.

Gold One Acquisition means the transaction announced by the Original Borrower in a SENS announcement on 21 August 2013, pursuant to which the Original Borrower may (depending on the fulfilment of certain suspensive conditions set out in the Gold One Agreement), acquire a majority shareholding in Newshelf from Gold One International Limited in exchange for the issuance of shares in the share capital of the Original Borrower;

1.1.74.

Gold One Agreement means the “Merger Agreement” concluded between the Original Borrower, Gold One International Limited and Newshelf on or about 16 August 2013 (as amended), pursuant to which the Original Borrower agrees to acquire a majority shareholding in Newshelf from Gold One International Limited on the terms and subject to the conditions set out therein;

1.1.75.

Gold One Subsidiaries means:

1.1.75.1.

Rand Uranium; and

1.1.75.2.

Ezulwini Mining Company;

1.1.76.

Group means the Original Borrower and each of its Subsidiaries from time to time;

1.1.77.

Guarantor means:

1.1.77.1.

the Original Borrower, with effect from the date upon which any Subsidiary of the Original Borrower becomes an Additional Borrower in accordance with Clause 24.2  (Additional Borrowers);

1.1.77.2.

each Additional Borrower; and

1.1.77.3.

each Additional Guarantor,

unless it has ceased to be a Guarantor in accordance with Clause 24.5  (Resignation of a Guarantor);

1.1.78.

Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary;

1.1.79.

Intercreditor Agreement means the Intercreditor Agreement concluded between the Facility Agent, the Debt Guarantor and the Lenders on or about 10 December 2013;

1.1.80.

Interest Payment Date means, in respect of a Loan, the last day of the Interest Period of that Loan and the Final Repayment Date;

1.1.81.

Interest Period means, in relation to a Loan, each period determined in accordance with Clause 9  (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest);

1.1.82.

JIBAR means, in relation to any Loan:

1.1.82.1.

the applicable Screen Rate; or

1.1.82.2.

(if no Screen Rate is available for the Interest Period of that Loan) the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent, at its request, quoted by the Reference Banks to leading banks in the Johannesburg Interbank Market,

as of the Specified Time on the Quotation Day for the offering of deposits in ZAR for a period comparable to the Interest Period of the relevant Loan;

1.1.83.

Johannesburg Interbank Market means the South African interbank market;

1.1.84.

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;

1.1.85.

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

1.1.86.

Lender means:

1.1.86.1.

any Original Lender; and

1.1.86.2.

any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 23  (Changes to the Lenders),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement;

1.1.87.

Loan means a Facility A Loan or a Facility B Loan;

1.1.88.

Majority Lenders means a Lender or Lenders whose Commitments aggregate more than 662/₃% (sixty six and two thirds of a percent) of the Total Commitments (as reduced or cancelled pursuant to this Agreement);

1.1.89.

Margin means:

1.1.89.1.

in relation to any Facility A Loan, 2.75% (two comma seven five percent) per annum

1.1.89.2.

in relation to any Facility B Loan, 2.85% (two comma eight five percent) per annum;

1.1.90.

Material Adverse Effect means a material adverse effect on:

1.1.90.1.

the business, operations, properties, assets or financial condition of the Group taken as a whole;

1.1.90.2.

the ability of any Obligor to perform any of its financial or other material obligations under the Finance Documents; or

1.1.90.3.

the validity or enforceability of any of the Finance Documents;

1.1.91.

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:

1.1.91.1.

(subject to Clause 1.1.91.3) 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;

1.1.91.2.

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

1.1.91.3.

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;

1.1.92.

New Lender has the meaning given to that term in Clause 23.1  (Cessions and delegations by the Lenders);

1.1.93.

Newshelf means Newshelf 1114 Proprietary Limited, a private company duly incorporated under the laws of South Africa with registration number 2010/018841/07;

1.1.94.

Obligors means the Original Borrower, the Additional Borrowers and each Guarantor and Obligor means each or any of them (as the context may require);

1.1.95.

Original Borrower means Sibanye Gold Limited, a public company duly incorporated under the laws of South Africa with registration number 2002/031431/06;

1.1.96.

Original Facility A Lender means the persons listed in Part I of Schedule 1 (The Lenders and Additional Guarantors);

1.1.97.

Original Facility B Lender means the persons listed in Part II of Schedule 1 (The Lenders and Additional Guarantors);

1.1.98.

Original Financial Statements means, in relation to the Original Borrower, its consolidated audited financial statements for its Financial Year ended 31 December 2012;

1.1.99.

Original Form Term and Revolving Credit Facilities Agreement means the written agreement entitled “Term and Revolving Credit Facilities Agreement” entered into among the Borrower and the Finance Parties on or about 10 December 2013, as amended by a first addendum dated 13 March 2014, a second addendum dated 12 May 2014, a third addendum dated 22 July 2014 and a fourth addendum dated 13 August 2014 and to which the Additional Guarantors acceded on or about 15 August 2014, as further amended by a fifth addendum dated on or about October 2014;

1.1.100.

Original Lenders means:

1.1.100.1.

the Original Facility A Lenders; and

1.1.100.2.

the Original Facility B Lenders,

and Original Lender means, as the context requires, any one of them;

1.1.101.

Parties means:

1.1.101.1.

the Original Borrower;

1.1.101.2.

upon accession to this Agreement, any Additional Borrower;

1.1.101.3.

upon accession to this Agreement, any Additional Guarantor;

1.1.101.4.

the Mandated Lead Arrangers;

1.1.101.5.

the Co-Arrangers;

1.1.101.6.

the Lenders; and

1.1.101.7.

the Facility Agent,

and Party means, as the context requires, any of them;

1.1.102.

Permitted Acquisition means:

1.1.102.1.

the Gold One Acquisition;

1.1.102.2.

any other acquisition which is not classified as a “Category 1 Transaction” of the Original Borrower in terms of the JSE Listings Requirements;

1.1.103.

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

1.1.103.1.

by an Obligor or any member of the Group of obsolete or redundant assets or assets which are no longer required for the efficient operation of the business of such Obligor or such member of the Group;

1.1.103.2.

by an Obligor or any member of the Group in the ordinary course of its day-to-day business if that sale, lease, transfer or other disposal is not otherwise restricted by a term of any Finance Document;

1.1.103.3.

by an Obligor to another Obligor;

1.1.103.4.

by a member of the Group that is not an Obligor to another member of the Group that is not an Obligor;

1.1.103.5.

by an Obligor to another member of the Group that is not an Obligor or a Project Finance Subsidiary on arm’s length terms;

1.1.103.6.

by any member of the Group that is not a Project Finance Subsidiary to any Project Finance Subsidiary on arms' 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 and loans from all other members of the Group that are not Project Finance Subsidiaries does not:

1.1.103.6.1.

in respect of Burnstone, exceed ZAR900,000,000 from the Amendment Date up to the Final Discharge Date; and

1.1.103.6.2.

in respect of other Project Finance Subsidiaries, exceed 5% (five percent) of the Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements) at any time up to the Final Discharge Date;

1.1.103.7.

by any member of the Group to any other person, other than a Project Finance Subsidiary, on arms' length, provided that:

1.1.103.7.1.

aggregate value of such sales, leases, transfers or other disposals (whether in a single transaction or a series of transactions) does not exceed 15% (fifteen percent) of the Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements) in any Financial Year; and

1.1.103.7.2.

the aggregate value of such sales, leases, transfers or other disposals (whether in a single transaction or a series of transactions) does not exceed 25% (twenty five percent) of the Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements), in aggregate during the period commencing on the Amendment Date and ending on the Final Discharge Date;

1.1.103.8.

by any member of the Group of assets (other than shares or its business) in exchange for other assets comparable or superior as to type, value and quality;

1.1.103.9.

by any member of the Group of cash equivalent investments for cash or in exchange for other cash equivalent investments;

1.1.103.10.

by any member of the Group arising as a result of any Permitted Encumbrance; or

1.1.103.11.

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

1.1.104.

Permitted Encumbrance means:

1.1.104.1.

any Encumbrance created prior to the First Utilisation Date which has been disclosed:

1.1.104.1.1.

in writing to the Facility Agent prior to the Signature Date; or

1.1.104.1.2.

in the Original Financial Statements,

and which only secures indebtedness outstanding or facilities available at the First Utilisation Date if the principal amount or original facility thereby secured is not increased after the First Utilisation Date (irrespective of the amount actually drawn under such original facility as at the First Utilisation Date);

1.1.104.2.

any Encumbrances or Quasi-Encumbrances created in favour of the Debt Guarantor on or prior to the Amendment Date provided that the principal amount of all  Financial Indebtedness which benefits from any guarantee or indemnity provided by the Debt Guarantor together with any Financial Indebtedness that benefits from any Encumbrances or Quasi-Encumbrances permitted under Clause 1.1.104.16 does not exceed 5% (five percent) of the Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements), as most recently measured before the creation of such Encumbrance or Quasi-Encumbrance;

1.1.104.3.

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

1.1.104.4.

any Encumbrance or Quasi-Encumbrance arising as a consequence of any title transfer or retention hire purchase or conditional sale arrangement or any other arrangement having similar effect entered into by any Obligor or other member of the Group in respect of goods supplied to a member of the Group or in the normal course of the trading activities of that member of the Group;

1.1.104.5.

any netting or set-off arrangement entered into by any member of the Group amongst themselves and any financial institution in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;

1.1.104.6.

any netting or set-off arrangement pursuant to any hedging transaction entered into by a member of the Group which constitutes Permitted Indebtedness;

1.1.104.7.

any lien arising by operation of law and in the ordinary course of trading and not by reason of any default (whether in payment or otherwise) of any member of the Group;

1.1.104.8.

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

1.1.104.8.1.1.

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

1.1.104.8.1.2.

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

1.1.104.8.1.3.

the Encumbrance or Quasi-Encumbrance is removed or discharged within 6 (six) Months of the date of acquisition of such asset, unless such Encumbrance is otherwise permitted to exist in terms of this Clause 1.1.104;

1.1.104.9.

any Encumbrance or Quasi-Encumbrance over or affecting any asset of any company which becomes a member of the Group after the First Utilisation Date (other than the Gold One Subsidiaries), where the Encumbrance or Quasi-Encumbrance is created prior to the date on which that company becomes a member of the Group, if:

1.1.104.9.1.1.

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

1.1.104.9.1.2.

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

1.1.104.9.1.3.

the Encumbrance or Quasi-Encumbrance is removed or discharged within 6 (six) Months of that company becoming a member of the Group, unless such Encumbrance is otherwise permitted to exist in terms of this Clause 1.1.104;

1.1.104.10.

any Encumbrances or Quasi-Encumbrance granted in respect of Financial Indebtedness or any other debt or obligation incurred by a Project Finance Subsidiary over assets of, or the shares or interest in, or any debt or other obligations of, a Project Finance Subsidiary (or the shares or interests in a holding company whose only assets are the shares or interests in and claims against a Project Finance Subsidiary);

1.1.104.11.

any Encumbrances or Quasi-Encumbrance securing the indebtedness under the Franco-Nevada Loan pursuant to the agreements in the form delivered to the Facility Agent pursuant to condition 4.2 of Schedule 3 (Conditions Precedent) or in a form no more onerous to the Obligors than the form delivered to the Facility Agent pursuant to condition 4.2 of Schedule 3 (Conditions Precedent);

1.1.104.12.

any Encumbrance or Quasi-Encumbrance arising by operation of 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;

1.1.104.13.

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

1.1.104.14.

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

1.1.104.15.

any Encumbrances or Quasi-Encumbrances over or affecting any asset of any member of the Group who is not a Obligor or a Project Finance Subsidiary;

1.1.104.16.

any Encumbrances or Quasi-Encumbrance securing indebtedness the principal amount of which (when aggregated with the principal amount of any Financial Indebtedness that has the benefit of any Encumbrance or Quasi-Encumbrance which shall include an Encumbrance or Quasi-Encumbrance permitted under Clause 1.1.104.2 and exclude an Encumbrance or Quasi-Encumbrance  permitted under the other sub-clauses of this Clause 1.1.104) does not exceed 5% (five percent) of the Consolidated Tangible Net Worth (as determined in accordance with the most recent Financial Statements), as most recently measured before the creation of such Encumbrance or Quasi-Encumbrance;

1.1.104.17.

any Encumbrances or Quasi-Encumbrance over cash in respect of 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; 

1.1.104.18.

any Encumbrance over cash standing to the credit of a bank account in an amount equal to the Financial Indebtedness incurred 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 an Obligor to acquire shares in another person, provided that the aggregate amount of all Encumbrances permitted under this Clause 1.1.104.17 does not exceed the lower of (i) the Financial Indebtedness which is secured thereby and (ii) an aggregate amount of ZAR600,000,000;

1.1.104.19.

arising under the Eskom Guarantee Facility Agreements in the form of an Encumbrance over cash standing to the credit of a bank account and provided in favour of an Eskom Guarantee Facility Provider in connection with the issuance of guarantees by the Eskom Guarantee Facility Provider in favour of Eskom from time to time; and

1.1.104.20.

any other Encumbrance or Quasi-Encumbrance created with the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders);

1.1.105.

Permitted Indebtedness means any Financial Indebtedness:

1.1.105.1.

arising under the Finance Documents;

1.1.105.2.

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; 

1.1.105.3.

arising under any derivative transaction 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 discharge within 2 (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 derivative transaction that has not been discharged within 2 (two) Business Days of the date on which such amount arose); 

1.1.105.4.

of any member of the Group existing and available on the First Utilisation Date;

1.1.105.5.

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;

1.1.105.6.

between members of the Group to the extent incurred for the purpose of financing general corporate and working capital requirements;

1.1.105.7.

arising under the Eskom Guarantee Facility Agreements;

1.1.105.8.

not falling within any of the other sub-clauses of this Clause 1.1.105, provided that the aggregate amount of all Financial Indebtedness (other than Financial Indebtedness of Obligors and Project Finance Subsidiaries) permitted under this Clause 1.1.105.8 does not at the time of 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);  

1.1.105.9.

created or incurred with the prior written consent of the Facility Agent (acting on the instructions of the Majority Lenders) whether prior to or after the Amendment Date;

1.1.106.

Permitted Transferee means any person listed in Schedule 12 (List of Permitted Transferees);

1.1.107.

Project means any undertaking or business enterprise in relation to the development, refurbishment design, construction, erection, commissioning, operation and maintenance of any asset for the Group;

1.1.108.

Project Finance Subsidiaries means, collectively:

1.1.108.1.

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

1.1.108.2.

K2013164354 Proprietary Limited; and

1.1.108.3.

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

1.1.108.3.1.

has not since the Amendment Date received Distributions, loans, assets or the benefit of any guarantees from any member of the Group which in aggregate together with Distributions, loans, assets, and the benefit of any guarantees received by Project Finance Subsidiaries from any other member of the Group exceed 5% of Consolidated Tangible Net Worth; and

1.1.108.3.2.

whose sole business is, and remains a Project,

and to the extent that such company or entity mentioned in this Clause 1.1.108 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 member of the Group other than indebtedness secured only by way of security over shares or interests in or obligations owing by such company or entity and other than Financial Indebtedness not otherwise prohibited by this Agreement and Project Finance Subsidiary means any one of them individually as the context requires;

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, the first day of that period;

1.1.111.

Rand Uranium means Rand Uranium Proprietary Limited, a private company duly incorporated under the laws of South Africa with registration number 2007/007531/07;

1.1.112.

Reference Banks means the principal Johannesburg offices of Absa Bank Limited, FirstRand Bank Limited, Nedbank Limited, Investec Bank Limited and The Standard Bank of South Africa Limited or such other banks as may be appointed by the Facility Agent in consultation with the Original Borrower;

1.1.113.

Repayment Date means each of the dates falling 6 (six), 12 (twelve), 18 (eighteen), 24 (twenty-four) and 30 (thirty) Months after the First Utilisation Date and the Final Repayment Date, provided that if any such date is not a Business Day, then the relevant Repayment Date shall be the next succeeding Business Day unless such next succeeding Business Day falls in the next calendar month, in which event the relevant Repayment Date shall be the immediately preceding Business Day;

1.1.114.

Repayment Instalment means, in respect of Facility A and each Repayment Date, the amount set out alongside such date as set out in the table below:

Repayment Date

Facility A Repayment
Instalment

6 Months anniversary of the First Utilisation Date

ZAR250,000,000

12 Months anniversary of the First Utilisation Date

ZAR250,000,000

18 Months anniversary of the First Utilisation Date

ZAR250,000,000

24 Months anniversary of the First Utilisation Date

ZAR250,000,000

30 Months anniversary of the First Utilisation Date

ZAR250,000,000

Final Repayment Date

ZAR750,000,000

Any prepayment of the Facility A Loan in accordance with Clause 7.6  (Voluntary Prepayment of Loans) shall reduce the Repayment Instalments in order of maturity, with the prepayment amount being applied first to the Repayment Instalment due on the immediately following Repayment Date falling after that prepayment, or in such other order as the Original Borrower may notify the Facility Agent in writing by no later than 5 (five) Business Days prior to the relevant Repayment Date;

1.1.115.

Repeating Representations means each of the representations and warranties set out in Clause 18  (Representations) (other than the representations and warranties set out in Clause 18.9  (No filing or stamp taxes), Clause 18.11  (No misleading information) and Clause 18.14  (No proceedings pending or threatened));

1.1.116.

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

1.1.117.

Resignation Letter means a letter substantially in the form set out in Schedule 8 (Form of Resignation Letter);

1.1.118.

Restricted Party means a person that is: (i) listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List; (ii) located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of, a person located in or organized under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or (iii) otherwise a target of Sanctions (target of Sanctions signifying a person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities);

1.1.119.

Retiring Guarantor has the meaning given to it in Clause 17.8  (Release of Guarantors’ right of contribution);

1.1.120.

Rollover Loan means one or more Facility B Loans:

1.1.120.1.

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

1.1.120.2.

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

1.1.120.3.

made or to be made to the Borrower for the purpose of refinancing a maturing Facility B Loan;

1.1.121.

Sanctions means the economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (i) the United States government, (ii) the United Nations, (iii) the European Union, (iv) the United Kingdom, (v) the Republic of France, (vi) the Council of Europe, (vii) the Commonwealth of Australia or (viii) the respective governmental institutions and agencies of any of the foregoing, including, without limitation, the Office of Foreign Assets Control of the US Department of Treasury (OFAC), the US Department of Commerce, the United States Department of State, Her Majesty’s Treasury (HMT) and the French Ministry of Finance (together, the Sanctions Authorities);

1.1.122.

Sanctions List means the “Specially Designated Nationals and Blocked Persons” list maintained by OFAC, the Consolidated List of Financial Sanctions Targets and the Investment Ban List maintained by HMT, or any similar list maintained by, or public announcement of Sanctions designation made by, any of the Sanctions Authorities, each as amended, supplemented or substituted from time to time;

1.1.123.

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 Facility Agent may specify another page or service displaying the appropriate rate after consultation with the Original Borrower and the Lenders;

1.1.124.

Semi-Annual Financial Statements has the meaning given to that term in Clause 19  (Information Undertakings);

1.1.125.

Shared Services Pty Ltd means Sibanye Gold Shared Services Proprietary Limited, a private company duly incorporated under the laws of South Africa with registration number 2002/020775/07 (previously known as Gold Fields Shared Services Proprietary Limited);

1.1.126.

Signature Date means 10 December 2013;

1.1.127.

South Africa means the Republic of South Africa;

1.1.128.

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

1.1.129.

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;

1.1.130.

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);

1.1.131.

Term means the period commencing on the Effective Date and ending on the Discharge Date;

1.1.132.

[Total Commitments means the aggregate of the Total Facility A Commitments and the Total Facility B Commitments, being ZAR4,000,000,000 (Four Billion Rand) at the Amendment Date;

1.1.133.

Total Facility A Commitments means the aggregate of the Facility A Commitments, being ZAR1,250,000,000 (One Billion Five Hundred Million Rand) as at the Amendment Date;

1.1.134.

Total Facility B Commitments means the aggregate of the Facility B Commitments;

1.1.135.

Transfer has the meaning given to that term in Clause 23.1  (Cessions and delegations by the Lenders);

1.1.136.

Transfer Certificate means a certificate substantially in the form set out in Schedule 6 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the Borrower;

1.1.137.

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

1.1.137.1.

the proposed Transfer Date specified in the Transfer Certificate; and

1.1.137.2.

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

1.1.138.

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

1.1.139.

USD Revolving Credit Facility Agreement means the written agreement entitled "Facility Agreement" entered into or to be entered into between, inter alia, the Original Borrower Bank of America ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Limited and HSBC Bank Plc on or about August 2015 and pursuant to which a revolving credit facility up to USD400,000,000 is made available to, inter alia, the Original Borrower;

1.1.140.

Utilisation means a utilisation of a Facility;

1.1.141.

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

1.1.142.

Utilisation Request means a notice substantially in the form set out in Schedule 4 (Form of Utilisation Request);

1.1.143.

VAT means (i) any value added tax as provided for in the Value Added Tax Act, 1991, (ii) any general service tax and (iii) any other tax of a similar nature; and

1.1.144.

ZAR means South African Rand, the lawful currency of South Africa.

1.2.

Financial Definitions

In this Agreement, the accounting expressions set forth below shall bear the following meanings:

1.2.1.

Cash means cash as determined in accordance with the Accounting Principles and for so long as:

1.2.1.1.

that cash is repayable on demand or within 90 (ninety) days after the relevant date of calculation;

1.2.1.2.

repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition other than notice or demand therefor (but not exceeding the period of demand referred to in Clause 1.2.1.1);

1.2.1.3.

there is no Encumbrance over that cash other than the Permitted Encumbrance referred to in Clause 1.1.104.18 and

1.2.1.4.

the cash is freely and (except as mentioned in Clause 1.2.1.1) immediately available to be applied in repayment or prepayment of the Facilities;

1.2.2.

Cash Equivalents means, at any time, cash equivalents as determined in accordance with the Accounting Principles, in each case to which any member of the Group is alone (or together with other members of the Group beneficially entitled at that time) and which is not issued or guaranteed by any member of the Group or subject to any Encumbrance;

1.2.3.

Consolidated EBITDA means, in respect of any Measurement Period, the consolidated net income of the Group (less the net income of any Project Finance Subsidiary but including dividends received in cash by any member of the Group from a Project Finance Subsidiary) before, without duplication and all as calculated in accordance with the Accounting Principles:

1.2.3.1.

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

1.2.3.2.

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

1.2.3.3.

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

1.2.3.4.

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

1.2.3.5.

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

1.2.3.6.

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

1.2.3.7.

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 associate;

1.2.3.8.

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

1.2.3.9.

any share-based payments;

1.2.3.10.

any other extraordinary or exceptional items; and

1.2.3.11.

any other material non-cash gain or loss that needs to be accounted for under the Accounting Principles;

1.2.4.

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 Financial Indebtedness (other than Financial Indebtedness incurred for or in respect of Clause 1.1.66.7 and Clause 1.1.66.9 to the extent not closed-out and/or called or a demand has been made thereunder and consequently constituting Financial Indebtedness but excluding any such obligations to any member of the Group (other than  a Project Finance Subsidiary), adjusted to take into account the aggregate amount of 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;

1.2.5.

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 under any interest rate hedging instrument) but deducting any other interest receivable by any member of the Group on any deposit or bank account;

1.2.6.

Consolidated Tangible Net Worth means, at any time, the “Total Equity” as reported in the “Consolidated Statement of Changes in Equity” in the latest Annual Financial Statements of the Original Borrower delivered to the Facility Agent pursuant to the Clause 19.3  (Financial Statements)  minus any goodwill and intangibles;

1.2.7.

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:

1.2.7.1.

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

1.2.7.2.

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

1.2.7.3.

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

1.2.7.4.

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

1.2.7.5.

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

1.2.7.6.

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

1.2.7.7.

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

1.2.7.8.

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

1.2.7.9.

any share-based payments;

1.2.7.10.

any other extraordinary or exceptional items; and

1.2.7.11.

any other material non-cash gain or loss that needs to be accounted for under the Accounting Principles; 

1.2.8.

Financial Half Year means the period commencing on the day after the end of a Financial Year and ending on the next Half Year Date;

1.2.9.

Financial Quarter means the period of 3 (three) months ending on each of 31 March, 30 June, 30 September and 31 December of each calendar year;

1.2.10.

Half Year Date means 30 June of each calendar year;

1.2.11.

Measurement Date means the last day of the Original Borrower’s Financial Year and the Half Year Date; and

1.2.12.

Measurement Period means each period of 12 (twelve) months ending on the last day of each of the Original Borrower’s Financial Years occurring after the Signature Date and each period of 12 (twelve) months ending on each Half Year Date occurring after the Signature Date.

1.3.

Construction

1.3.1.

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

1.3.1.1.

any Mandated Lead Arranger,  Co-Arranger, the Facility Agent, any Finance Party, any Lender, any Obligor or any Party shall be construed so as to include its successors in title, permitted cessionaries and permitted transferees;

1.3.1.2.

assets includes present and future properties, revenues and rights of every description;

1.3.1.3.

authority includes any court or any governmental, intergovernmental or supranational body, agency, department or any regulatory, self-regulatory or other authority;

1.3.1.4.

a  Finance Document or any other agreement or instrument includes (without prejudice to any prohibition on amendments) all amendments (however fundamental) to, or novations of, that Finance Document or other agreement or instrument, including any amendment or novation providing for any increase in the amount of a facility or any additional facility or replacement facility;

1.3.1.5.

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;

1.3.1.6.

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;

1.3.1.7.

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

1.3.1.8.

a  regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of law, being of a type with which any person to which it applies is accustomed to comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;

1.3.1.9.

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;

1.3.1.10.

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

1.3.1.11.

a time of day is a reference to Johannesburg time.

1.3.2.

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

1.3.3.

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.

1.3.4.

A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been waived.

1.3.5.

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.

1.3.6.

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

1.3.7.

The Schedules to any Finance Document form an integral part thereof and a reference to a Clause or a Schedule is a reference to a Clause of, or a schedule to, this Agreement. 

1.3.8.

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.

1.3.9.

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.

1.3.10.

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.

1.3.11.

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.

1.3.12.

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.

1.3.13.

For the purposes of Clause 22.8  (Creditors’ process), Clause 22.10  (Loss of Mining Rights) and Clause 22.12  (Expropriation), material part of the assets or revenues of an Obligor shall in relation to the relevant Obligor be construed as assets or revenues, as the case may be, which, together with any other assets or revenues of the Group that have been seized, nationalised, expropriated or compulsorily acquired, or affected by any expropriation, attachment, sequestration, distress or execution, after the Signature Date, comprises not less than 10% (ten percent) of the Consolidated EBITDA or gross assets of the Group or assets which contribute not less than 10% (ten percent) towards the Consolidated EBITDA.

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.

Notwithstanding any term of any Finance Document, the consent of any person who is not a party to that Finance Document is not required to rescind or vary that Finance Document at any time except to the extent that the relevant variation or rescission (as the case may be) relates directly to the right conferred upon any applicable third party under a stipulation for the benefit of that party that has been accepted by that third party.

1.5.

Finance Parties’ rights and obligations

1.5.1.

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.

1.5.2.

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.

1.5.3.

A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents, save that the Lenders shall, when granting approvals, extensions or waivers under the Finance Documents, or issuing any notices (other than legal notices) or communication pursuant to any Finance Document, act through the Facility Agent.

1.6.

Obligors’ Agent

1.6.1.

Each Obligor (other than the Original Borrower) by its execution of this Agreement or an Accession Letter irrevocably appoints the Original Borrower to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:

1.6.1.1.

the Original Borrower 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, Utilisation Requests), to make such agreements and to effect the relevant amendments, supplements and variations capable of being given, made or effected by that Obligor notwithstanding that they may affect that Obligor, without further reference to or the consent of that Obligor; and

1.6.1.2.

each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Original Borrower,

and in each case the Obligor shall be bound as though the 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.

1.6.2.

Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice or other communication given or made by the Original Borrower or given to the Original Borrower under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Original Borrower and any other Obligor, those of the Original Borrower shall prevail.

1.7.

Acknowledgement of Terms of the Intercreditor Agreement

The Obligors hereby expressly acknowledge the terms of the Intercreditor Agreement and confirm that none of them has any rights or obligations thereunder or in respect thereof.

1.8.

Instructions to Facility Agent 

1.8.1.

Unless otherwise expressly stated in this Agreement or any other Finance Document, any action to be taken or expressed to be taken by the Facility Agent under or in respect of this Agreement or any other Finance Document shall be taken by the Facility Agent acting in accordance with the instructions given to it or authority granted to it under the Intercreditor Agreement as read with this Agreement (and the Obligors shall be obliged and entitled to assume without further enquiry that the Facility Agent is acting in accordance with the terms of the Intercreditor Agreement). 

1.8.2.

No Obligor shall be obliged, nor entitled, to act in accordance with any notice given to it pursuant to any Finance Document unless such notice is given by the Facility Agent irrespective of the delivery of any conflicting notice by or on behalf of any other Finance Party.

2.

THE FACILITIES

2.1.

Subject to the terms of this Agreement, the Original Facility A Lenders made available a ZAR term loan facility in an aggregate amount equal to the Total Facility A Commitments.

2.2.

Subject to the terms of this Agreement, the Lenders make available to the Borrower a ZAR revolving loan facility in an aggregate amount equal to the Total Facility B Commitments.

3.

PURPOSE

3.1.

Purpose

The Borrower shall apply amounts borrowed by it under the Facilities in the following manner:

3.1.1.

to repay, in full, the Existing Borrower’s Indebtedness on the First Utilisation Date; and

3.1.2.

the remainder of the Facilities not applied in accordance with Clause 3.1.1,  as well as all amounts that become available for redraw under Facility B following a repayment of a Facility B Loan, shall be applied in financing the Group’s ongoing capital expenditure, working capital and general corporate expenditure requirements.

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

No Lender shall be obliged to make any Loan under any Facility unless the Facility Agent has confirmed, by notice in writing to the other Finance Parties and the Borrower, that:

4.1.1.

all of the CP Documents have been delivered to the Facility Agent in a form and in substance satisfactory to the Facility Agent (acting on the instructions of all of the Lenders (acting reasonably)); or

4.1.2.

to the extent that any CP Documents are not in a form and in substance satisfactory to the Facility Agent (acting on the instructions of all of the Lenders (acting reasonably)) or have not been delivered, the Facility Agent has, pursuant to Clause 4.3  (Waiver or Deferral of Conditions Precedent), waived or deferred delivery of those CP Documents which are not in a form and in substance satisfactory to it or which have not been delivered.

4.2.

Further conditions precedent

Subject to Clause 4.1  (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 5.4  (Lenders’ participation) in relation to a Utilisation if, in the opinion of the Facility Agent (acting on the instructions of all of the Lenders (acting reasonably)), on the date of the Utilisation Request and on the proposed Utilisation Date:

4.2.1.

no Default is continuing or would result from the proposed Utilisation; and

4.2.2.

in relation to the Utilisations made on the First Utilisation Date, all the representations and warranties in Clause 18  (Representations) or, in relation to any other Utilisation, the Repeating Representations to be made by each Obligor are true, accurate and complete in all material respects.

4.3.

Waiver or deferral of conditions precedent

4.3.1.

Satisfaction of any of the conditions set out in Clause 4.1  (Initial Conditions Precedent) and Clause 4.2  (Further Conditions Precedent) may be waived or deferred by the Facility Agent (acting on the instructions of all the Lenders).

4.3.2.

Waiver or deferral of:

4.3.2.1.

the condition of the delivery of any of the CP Documents either at all or in a form and in substance satisfactory to the Facility Agent; or

4.3.2.2.

any of the conditions in any Finance Document,

shall not prejudice the right of the Facility Agent to require subsequent fulfilment of such condition in a written notice to this effect, delivered at the time of such waiver or deferral (as applicable) and, unless otherwise specified in any written notice waiving or deferring fulfilment of such condition, such condition shall be fulfilled by the Borrower within 10 (ten) Business Days of the date of the written notice waiving or deferring fulfilment of such condition.

4.3.3.

The advance of any Loan under any of the Facilities in circumstances where a Lender was not obliged to advance such a Loan because of any condition referred to in or contemplated by Clause 4.1  (Initial Conditions Precedent) or Clause 4.2  (Further Conditions Precedent) not having been satisfied, waived or deferred pursuant to this Clause 4.3 shall constitute a valid advance of such Loan made subject to and in accordance with the provisions of this Agreement and the other relevant Finance Documents.

4.4.

Termination

If the Effective Date has not occurred on or before 13 December 2013, or such later date as may be agreed to in writing between the Facility Agent and the Original Borrower on or before 12 December 2013, then the Facility Agent (acting on the instructions of all the Lenders) shall be entitled to cancel this Agreement and all of the Finance Documents by written notice to the Original Borrower.  Such cancellation shall be without prejudice to any Obligor’s obligations under Clause 16  (Costs and Expenses) to pay any costs, fees, expenses or taxes then due and payable provided for therein and the provisions of Clause 25  (Role of the Arrangers), Clause 28  (Payment Mechanics), Clause 30  (Notices) and Clauses 35  (Confidentiality) to 44  (Governing Law and Jurisdiction) shall remain in force for such purpose.

5.

UTILISATION

5.1.

Delivery of a Utilisation Request

A Borrower (or the Original Borrower on its behalf) may utilise a Facility during the Availability Period by delivery to the Facility Agent of a duly completed Utilisation Request by not later than the Specified Time in relation to the proposed Utilisation Date (or such other time as may be agreed to in writing between the Facility Agent (acting on the instructions of all Lenders under a Facility) and the Borrower).

5.2.

Completion of a Utilisation Request

5.2.1.

Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

5.2.1.1.

it identifies the Facility to be utilised;

5.2.1.2.

the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;

5.2.1.3.

the currency and amount of the Utilisation comply with Clause 5.3  (Currency and amount);

5.2.1.4.

it identifies the proposed first Interest Period and that Interest Period complies with Clause 9  (Interest Periods);

5.2.1.5.

it specifies a bank account in South Africa into which the relevant Borrower wishes the proceeds of the Loan be paid into; and

5.2.1.6.

in respect of the Utilisation Requests relating to Loans to be advanced on the First Utilisation Date, the Original Borrower has specified that the proposed amount to be advanced under Facility A is ZAR2,000,000,000 (Two Billion Rand).

5.2.2.

Only 1 (one) Loan may be requested in each Utilisation Request.

5.2.3.

A maximum of 1 (one) Utilisation Request may be delivered under Facility A.

5.2.4.

Only 1 (one) Utilisation Request in relation to Facility B may be outstanding at any point in time and a maximum of 2 (two) Utilisation Requests may be delivered under Facility B in any Month during the Availability Period.

5.3.

Currency and amount

5.3.1.

The currency specified in a Utilisation Request must be ZAR.

5.3.2.

The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of ZAR50,000,000 (Fifty Million Rand) or, if less, the Available Facility.

5.3.3.

The proposed Loan together with the aggregate of the relevant Loans still outstanding under the relevant Facility on the proposed Utilisation Date must not exceed the amount available under the relevant Facility.

5.4.

Lenders’ participation

5.4.1.

If the conditions set out in this Agreement in relation to a Utilisation have been met, each Lender shall make its participation in each Loan available by the Utilisation Date

5.4.2.

The amount of each Lender’s participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.

5.4.3.

The Facility Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan, in each case, by the Specified Time.

5.5.

Cancellation of Commitment

5.5.1.

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

5.5.2.

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

5.6.

Maximum number of Loans

The Borrower may not deliver a Utilisation Request under Facility B if as a result of the proposed Utilisation (and after consolidation of any Loans pursuant to Clause 9.2  (Consolidation of Facility B Loans) more than 10 (ten) Facility B Loans would be outstanding.

6.

REPAYMENT

6.1.

Repayment of Facility A Loans

6.1.1.

Repayment

The Borrowers shall repay the Facility A Loan to the Lenders in the Repayment Instalments on each Repayment Date such that the Facility Outstandings in respect of Facility A are repaid in full by no later than the Final Repayment Date.

6.1.2.

No Reborrowing

No Borrower may reborrow any part of Facility A which is repaid.

6.2.

Repayment of Facility B Loans

6.2.1.

Repayment

6.2.1.1.

Each Facility B Loan shall be repaid on the earlier of the last day of its then current Interest Period and the Final Repayment Date. In addition, the Borrowers shall on 30 June and 31 December of each year repay an amount equal to the aggregate amount of Facility B Loans outstanding under Facility B that would exceed the Total Facility B Commitments in effect from the day immediately succeeding such date.

6.2.1.2.

Without prejudice to a Borrower’s obligation under this Clause 6.2.1, if one or more Facility B Loans are to be made available to that Borrower:

6.2.1.2.1.

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

6.2.1.2.2.

in whole or in part for the purpose of refinancing the maturing Facility B Loan,

the aggregate amount of the new Facility B Loans shall be treated as if applied in or towards repayment of the maturing Facility B Loan so that:

6.2.1.2.3.

if the amount of the maturing Facility B Loan exceeds the aggregate amount of the new Facility B Loans:

6.2.1.2.3.1.

that Borrower will only be required to pay an amount in cash in ZAR equal to that excess; and

6.2.1.2.3.2.

each Lender’s participation (if any) in the new Facility B Loans shall be treated as having been made available and applied by that Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Facility B Loan and that Lender will not be required to make its participation in the new Facility B Loans available in cash; and

6.2.1.2.4.

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

6.2.1.2.4.1.

that Borrower will not be required to make any payment in cash; and

6.2.1.2.4.2.

each Lender will be required to make its participation in the new Facility B Loans available in cash only to the extent that its participation (if any) in the new Facility B Loans exceeds that Lender’s participation (if any) in the maturing Facility B Loan and the remainder of that Lender’s participation in the new Facility B Loans shall be treated as having been made available and applied by that Borrower in or towards repayment of that Lender’s participation in the maturing Facility B Loan.

6.2.2.

Reborrowing

Any amounts repaid under Facility B, in accordance with Clause 6.2.1  (Repayment), shall be capable of being re-borrowed during the relevant Availability Period.

7.

PREPAYMENT AND CANCELLATION

7.1.

Illegality

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

7.1.1.

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

7.1.2.

upon the Facility Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and

7.1.3.

the Borrower shall repay that Lender’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law).

7.2.

Mandatory prepayment: Coverage Test

If on the expiry of either of the 30 (thirty) day period referred to in Clause 21.17.2 or in the case of an acquisition, the 90 (ninety) day period referred to in Clause 21.17.2, the Coverage Test set out in Clause 21.17.1 is not satisfied:

7.2.1.

the Original Borrower shall promptly notify the Facility Agent in writing upon becoming aware of that event;

7.2.2.

a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan);

7.2.3.

the Lenders and the Original Borrower shall consult about the Coverage Test for a period of 60 (sixty) days after receipt by the Facility Agent of the written notice pursuant to Clause 7.3.1 (the Coverage Test Consultation Period); and

7.2.4.

upon the expiry of the Coverage Test Consultation Period (and unless otherwise agreed in writing between the Original Borrower and a Lender):

7.2.4.1.

a Lender shall be entitled to notify the Facility Agent in writing that its Commitments are to be cancelled and that it requires that its participation in all Loans to be repaid; and

7.2.4.2.

the Commitments of that Lender will be immediately cancelled and the Borrower shall repay that Lender’s participation in the Loans made to that Borrower (together with all accrued and unpaid interest on each such participation) within 30 (thirty) days after the Facility Agent has notified the Original Borrower requesting same.

7.3.

Mandatory prepayment: Change of Control

Upon the occurrence of a Change in Control:

7.3.1.

the Original Borrower shall promptly notify the Facility Agent in writing upon becoming aware of that event;

7.3.2.

a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan);

7.3.3.

the Lenders and the Original Borrower shall consult about the Change of Control for a period of 60 (sixty) days after receipt by the Facility Agent of the written notice pursuant to Clause 7.3.1 (the Consultation Period);

7.3.4.

upon the expiry of the Consultation Period (and unless otherwise agreed in writing between the Original Borrower and that Lender):

7.3.4.1.

that Lender shall be entitled to notify the Facility Agent in writing that its Commitments are to be cancelled and that it requires that its participation in all Loans to be repaid;

7.3.4.2.

30 (thirty) Business Days after the Facility Agent has notified the Original Borrower requesting same, the Commitments of that Lender will be immediately cancelled; and

7.3.4.3.

each Borrower shall repay that Lender’s participation in the Loans made to that Borrower (together with all accrued and unpaid interest on each such participation) within 30 (thirty) Business Days after the Facility Agent has notified the Original Borrower requesting same.

7.4.

Mandatory prepayment: sanctions

If any Obligor:

7.4.1.

breaches the representation and warranty pursuant to Clause 18.22  (Sanctions); or

7.4.2.

fails to comply with the undertakings pursuant to Clause 21.13  (Sanctions),

then:

7.4.3.

any Lender shall be entitled to notify the Facility Agent in writing that its Commitments are to be cancelled and that it requires that its participation in all Loans to be repaid;

7.4.4.

upon the Facility Agent notifying the Original Borrower in writing, the Commitments of that Lender will be immediately cancelled; and

7.4.5.

each Borrower shall repay that Lender’s participation in the Loans made to that Borrower (together with all accrued and unpaid interest on each such participation and any Breakage Costs) within 10 (ten) Business Days (or such later date as agreed between the Original Borrower and that Lender) after the Facility Agent has notified the Original Borrower in accordance with Clause 7.4.4.

7.5.

Voluntary cancellation

During the relevant Availability Period, the Original Borrower may, if it gives the Facility Agent not less than 5 (five) Business Days’ (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum aggregate amount of ZAR50,000,000 (Fifty Million Rand) of the relevant Available Facility.  Any cancellation under this Clause 7.5 shall reduce the Commitments of the Lenders rateably under that Facility.

7.6.

Voluntary prepayment of Loans

7.6.1.

Subject to Clause 7.7  (Right of repayment and cancellation in relation to a single Lender), the Borrower shall be entitled to voluntarily prepay the Loans under any Facility provided the procedure set out in Clause 7.6.2 has been followed.

7.6.2.

In the event that the Borrower wishes to effect a voluntary prepayment of the Loans, or any part thereof, outstanding under the Facilities, the Borrower shall notify the Facility Agent in writing (the Voluntary Prepayment Notice), not less than 5 (five) Business Days prior to the proposed date (the Voluntary Prepayment Date) of such voluntary prepayment, of the amount (the Voluntary Prepayment Amount) it wishes to voluntarily prepay (if in part, being an amount that reduces the amount of that Loan by a minimum amount of R50,000,000 (Fifty Million Rand) or, if less, the aggregate Facility Outstandings under the relevant Facility) (the Relevant Amount) and the Facility to which the voluntary prepayment is to be applied, provided that no voluntary prepayment may be made by the Borrower if an Event of Default is continuing or if such voluntary prepayment would result in a failure to comply with any of the Financial Covenants at any time after the Voluntary Prepayment Date. 

7.6.3.

The Facility Agent shall deliver a copy of the Voluntary Prepayment Notice to the Lenders within 1 (one) Business Day of receipt by the Facility Agent of the Voluntary Prepayment Notice.

7.6.4.

On the Voluntary Prepayment Date, the Borrower shall repay the Facilities by paying the Voluntary Prepayment Amount to the Facility Agent.

7.6.5.

Any prepayment under this Clause 7.6 shall be applied rateably among the participations of all Lenders under the relevant Facility.

7.7.

Right of repayment and cancellation in relation to a single Lender

7.7.1.

If:

7.7.1.1.

any sum payable to any Lender by a Borrower is required to be increased under Clause 12.2.3; or

7.7.1.2.

any Lender claims indemnification from a Borrower under Clause 12.3  (Tax indemnity) or Clause 13  (Increased Costs),

the Original Borrower may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender’s participation in the Loans.

7.7.2.

On receipt of a notice of cancellation referred to in Clause 7.7.1, the Commitment of that Lender shall immediately be reduced to zero.

7.7.3.

On the last day of each Interest Period in relation to a Loan which ends after the Original Borrower has given notice of cancellation under Clause 7.7.1 (or, if earlier, the date specified by the Borrower in that notice), each Borrower to which a Loan is outstanding shall repay that Lender’s participation in that Loan together with interest and all other amounts accrued under the Finance Documents.

7.8.

Restrictions

7.8.1.

Any notice of cancellation or prepayment given by any Party under this Clause  7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.

7.8.2.

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

7.8.3.

No Borrower may reborrow any part of Facility A which is prepaid.

7.8.4.

Unless a contrary indication appears in this Agreement, any part of Facility B which is repaid may be reborrowed in accordance with the terms of this Agreement.

7.8.5.

The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.

7.8.6.

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

7.8.7.

If the Facility Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Original Borrower or the affected Lender, as appropriate.

7.8.8.

If any Lender elects to be prepaid pursuant to Clause 7.3  (Mandatory prepayment: Change of Control), or Clause 7.4  (Mandatory prepayment: sanctions), the Facility Agent shall promptly notify the other Lenders in writing of the election of that Lender.

7.8.9.

If all or part of a Loan under a Facility is repaid or prepaid and is not available for redrawing (other than by operation of Clause 4.2.  (Further conditions precedent)), an amount of the Commitments (equal to the amount of the Loan which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.  Subject to Clauses 7.1, 7.3, and 7.4, any cancellation under this Clause 7.8.9 shall reduce the Commitments of the Lenders rateably under the Facility.

8.

INTEREST

8.1.

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:

8.1.1.

Margin; and

8.1.2.

Base Rate.

8.2.

Payment of interest

The Borrower shall, subject to Clause 8.3  (Default interest), pay accrued interest on each Loan on the last day of each Interest Period.

8.3.

Default interest

8.3.1.

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on that Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to Clause 8.3.2 below, is 2% (two percent) higher than the rate which would have been payable if that Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of that Unpaid Sum for successive Interest Periods, each of a duration of 1 (one) Month.

8.3.2.

Any interest accruing under this Clause 8.3 shall be immediately payable by the Obligor on demand by the Facility Agent.

8.3.3.

If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:

8.3.3.1.

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

8.3.3.2.

the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2% (two percent) higher than the rate which would have applied if that Unpaid Sum had not become due.

8.3.4.

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

8.4.

Notification of rates of interest

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

9.

INTEREST PERIODS

9.1.

Selection of Interest Periods

9.1.1.

The Interest Period for Loans made under Facility A shall be 3 (three) Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders in relation to the relevant Loan) for a Loan made under Facility A in the Utilisation Request for that Loan.

9.1.2.

The Borrower may select an Interest Period of 1 (one) Month, 3 (three) Months or 6 (six) Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders in relation to the relevant Loan) for a Loan made under Facility B in the Utilisation Request for that Loan.

9.1.3.

If the Borrower fails to specify an Interest Period in the Utilisation Request relating to that Loan, the relevant Interest Period will be 3 (three) Months or any other period agreed between the Borrower and the Facility Agent (acting on the instructions of all the Lenders in relation to the relevant Loan) for a Loan made under Facility A and Facility B in the Utilisation Request for that Loan.

9.1.4.

An Interest Period for a Loan shall not extend beyond the Final Repayment Date.

9.1.5.

Each Interest Period for a Loan shall start on the Utilisation Date of that Loan or (if already made) on the last day of its preceding Interest Period.

9.2.

Consolidation of Facility B Loans

9.2.1.

If two or more Interest Periods:

9.2.1.1.

relate to Facility B Loans; and

9.2.1.2.

end on the same date,

those Facility B Loans will be consolidated into, and treated as, a single Facility B Loan on the last day of the current Interest Period.

10.

CHANGES TO THE CALCULATION OF INTEREST

10.1.

Absence of quotations

Subject to Clause 10.2  (Market disruption), if JIBAR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, JIBAR shall be determined on the basis of the quotations of the remaining Reference Banks.

10.2.

Market disruption

10.2.1.

If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender’s share of that Loan for that Interest Period shall be the percentage rate per annum which is the sum of:

10.2.1.1.

the Margin; and

10.2.1.2.

the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source(s) it may reasonably select.

10.2.2.

In this Agreement Market Disruption Event means:

10.2.2.1.

at or about 12.00 am on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine the Base Rate for the relevant Interest Period; or

10.2.2.2.

before close of business in Johannesburg on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from two or more Lenders whose aggregate Commitments under a Facility are greater than 30% (thirty percent) of the Total Commitments under that Facility that the cost to it, or them, as applicable, of obtaining matching deposits in the Johannesburg Interbank Market would be in excess of the Base Rate for the relevant Interest Period.

10.3.

Alternative basis of interest or funding

10.3.1.

Without prejudice to the generality of Clause 10.2.1  (Market disruption), if a Market Disruption Event occurs and the Facility Agent or the Original Borrower so requires, the Facility Agent and the Original Borrower shall enter into negotiations (for a period of not more than 30 (thirty) days) with a view to agreeing a substitute basis for determining the rate of interest.

10.3.2.

Any alternative basis agreed pursuant to Clause 10.3.1 above shall, with the prior consent of all the Lenders and the Original Borrower, be binding on all Parties.

10.4.

Breakage Costs and Breakage Gains

10.4.1.

If any repayment or prepayment of all or any part of a Loan (whether voluntary or mandatory) is made otherwise than on the last day of an Interest Period relative thereto then either:

10.4.1.1.

the relevant Borrower shall pay to the Facility Agent for the account of each Lender participating in that Loan or to whom that Unpaid Sum is owed and in either case which receives such payment or repayment, within 3 (three) Business Days of demand by the Facility Agent (together with a copy of the applicable certificate(s) delivered to the Facility Agent under Clause 10.4.2) a sum equal to the Breakage Costs applicable thereto; or

10.4.1.2.

the relevant Lender realising any Breakage Gains shall, unless such Breakage Gains are realised as a consequence of any prepayment of the relevant Loan due to an Event of Default or a breach by any Obligor of any provision of the Finance Documents, pay to the Borrower within 3 (three) Business Days of demand by that Borrower a sum equal to the Breakage Gains applicable to any prepayment.

10.4.2.

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

11.

FEES

11.1.

Commitment fee

11.1.1.

The Original Borrower shall pay to the Facility Agent (for the account of each Lender) a fee computed at the rate of:

11.1.1.1.

35% (thirty-five percent) of the applicable Margin per annum (excluding VAT) on each Lender’s Available Commitment under Facility A for the Availability Period applicable to Facility A; and

11.1.1.2.

35% (thirty-five percent) of the applicable Margin per annum (excluding VAT) on each Lender’s Available Commitment under Facility B for the Availability Period applicable to Facility B.

11.1.2.

The accrued commitment fee is payable quarterly in arrears on the last day of each successive period of 3 (three) Months which ends during the relevant Availability Period and on the last day of the relevant Availability Period and on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

11.2.

Non-Refundable Origination fee

The Original Borrower shall pay to each of the Mandated Lead Arrangers and the Co-Arrangers (for its own account) a non-refundable origination fee in the amount and at the times agreed in a Fee Letter.

11.3.

Agency fee

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

12.

TAX GROSS UP AND INDEMNITIES

12.1.

Definitions

12.1.1.

In this Agreement:

12.1.1.1.

Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

12.1.1.2.

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

12.1.1.3.

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document.

12.1.1.4.

Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2  (Tax gross-up) or a payment under Clause 12.3  (Tax indemnity).

12.1.2.

Unless a contrary indication appears, in this Clause 12, a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.

12.2.

Tax gross-up

12.2.1.

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

12.2.2.

The Original Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly.  Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender.  If the Facility Agent receives such notification from a Lender it shall notify the Original Borrower and that Obligor.

12.2.3.

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

12.2.4.

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

12.2.5.

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

12.3.

Tax indemnity

12.3.1.

Each Obligor shall (within three Business Days of demand by the Facility Agent) indemnify each Protected Party against, and shall pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

12.3.2.

Clause 12.3.1 above shall not apply:

12.3.2.1.

with respect to any Tax assessed on a Finance Party 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

12.3.2.2.

to the extent a loss, liability or cost is compensated for by an increased payment under Clause 12.2  (Tax gross-up).

12.3.3.

A Protected Party making, or intending to make a claim under Clause 12.3.1 above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Original Borrower or relevant Obligor of such claim.

12.3.4.

A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Facility Agent.

12.4.

Tax Credit

Subject to Clause 26  (Conduct of Business by the Finance Parties), if an Obligor makes a Tax Payment and the relevant Finance Party determines that:

12.4.1.

a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and

12.4.2.

that Finance Party has obtained, utilised and retained 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.

12.5.

Stamp taxes

Each Obligor shall (within 3 (three) Business Days of demand) indemnify each Finance Party against, and shall pay to the relevant Finance Party, any cost, loss or liability that the relevant Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.

12.6.

Value added tax

12.6.1.

All amounts set out or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to Clause 12.6.2, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).

12.6.2.

If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Subject Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT.  The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.

12.6.3.

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

13.

INCREASED COSTS

13.1.

Subject to Clause 13.7  (Exceptions), the Original Borrower shall, within 5 (five) Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the Signature Date, (ii) compliance with any law or regulation made after the Signature Date or (iii) compliance with any aspect of the Basel III Framework (including any law or regulation which implements the Basel III Framework) implemented after the Signature Date, including, without limitation, any such law or regulation (including the Basel III Framework) which imposes or affects minimum capital requirements, liquid asset holding requirements, special deposit requirements or any levy or Taxes.

13.2.

In this Agreement Increased Costs means:

13.2.1.

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

13.2.2.

an additional or increased cost; or

13.2.3.

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.

13.3.

In this Agreement Basel III Framework means:

13.3.1.

the agreements on capital requirements, 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;

13.3.2.

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

13.4.

any other guidance, standards or directives published by the Basel Committee on Banking Supervision relating to "Basel III".

13.5.

The terms law and regulation in Clause 13.1 above shall include, without limitation, any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.

13.6.

Increased cost claims

13.6.1.

A Finance Party intending to make a claim pursuant to Clause 13  (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Original Borrower.

13.6.2.

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

13.7.

Exceptions

13.7.1.

Clause 13  (Increased costs) does not apply to the extent any Increased Cost is:

13.7.1.1.

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

13.7.1.2.

compensated for by Clause 12.3  (Tax indemnity) (or would have been compensated for under Clause 12.3  (Tax indemnity) but was not so compensated solely because any of the exclusions in Clause 12.3.2 applied); or

13.7.1.3.

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

13.8.

In this Clause 13.7, a reference to a Tax Deduction has the same meaning given to the term in Clause 12.1  (Definitions).

14.

OTHER INDEMNITIES

14.1.

The Obligors indemnify each Finance Party against, and shall pay to each Finance Party within 3 (three) Business Days of demand, any cost, loss or liability incurred by that Finance Party as a result of:

14.1.1.

the occurrence of any Default;

14.1.2.

the information produced or approved by any Obligor under or in connection with the Finance Documents being or being alleged to be misleading and/or deceptive in any respect;

14.1.3.

any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement;

14.1.4.

a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 27  (Sharing among the Finance Parties);

14.1.5.

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

14.1.6.

a Loan (or part of a Loan) not being prepaid in accordance with the terms of this Agreement.

14.2.

Each Obligor’s liability in each case includes any loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under any Finance Document or any Loan.

14.3.

Environmental Indemnity

14.3.1.

The Obligors agree to jointly and severally indemnify each Finance Party, each Affiliate of a Finance Party and their respective directors, officers and employees (together, the Indemnified Parties) 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:

14.3.1.1.

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

14.3.1.2.

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;

14.3.1.3.

an Environmental Claim;

14.3.1.4.

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;

14.3.1.5.

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 14.3 as a stipulation for its or his benefit.

14.3.2.

The provisions of Clause 14.3 shall survive an expiration, cancellation or termination of this Agreement for any reason whatsoever.

14.4.

Indemnity to the Facility Agent

Each Obligor shall promptly indemnify the Facility Agent against, and shall pay to the Facility Agent, any cost, loss or liability incurred by the Facility Agent as a result of:

14.4.1.

investigating or taking any other action in connection with any event which it reasonably believes is a Default; or

14.4.2.

acting or relying on any notice, request or instructions which it reasonably believes to be genuine, correct and appropriately authorised.

15.

MITIGATION BY THE LENDERS

15.1.

Mitigation

15.1.1.

Each Finance Party shall, in consultation with the Original Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1  (Illegality), Clause 12  (Tax gross-up and indemnities) or Clause 13  (Increased costs).

15.1.2.

Clause 15.1.1 does not in any way limit the obligations of any Obligor under the Finance Documents.

15.2.

Limitation of liability

15.2.1.

The Original Borrower shall promptly indemnify each Finance Party against, and pay to each such Finance Party, all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1  (Mitigation).

15.2.2.

A Finance Party is not obliged to take any steps under Clause 15.1  (Mitigation) if, in the opinion of that Finance Party (acting reasonably):

15.2.2.1.

any law or regulation would not allow or permit it; or

15.2.2.2.

to do so might be prejudicial to it.

16.

COSTS AND EXPENSES

16.1.

Transaction expenses

The Original Borrower shall within 5 (five) Business Days of demand pay the Facility Agent the amount of all reasonable or necessary documented costs and expenses, including reasonable and agreed legal fees, reasonably incurred by the Facility Agent or the Lenders in connection with the negotiation, preparation, printing, execution and syndication of:

16.1.1.

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

16.1.2.

any other Finance Documents executed after the Signature Date,

provided that no Obligor shall be liable for any cost or expense so incurred (other than relating to the legal fees referred to above) in excess of ZAR20,000 (Twenty Thousand Rand) unless the incurrence of that cost or expense has been approved in writing by the Original Borrower in advance of its incurrence.

16.2.

Amendment costs

16.2.1.

If an Obligor requests an amendment, waiver or consent in relation to any Finance Document, the Original Borrower shall, within 5 (five) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in responding to, evaluating, negotiating or complying with that request or requirement.

16.2.2.

If there is any change in law or any regulation which requires an amendment, waiver or consent under the Finance Documents, the Original Borrower shall, within 5 (five) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in connection with evaluating, negotiating or complying with any such requirement.

16.3.

Enforcement costs

The Obligors shall be responsible (jointly and severally), within 5 (five) Business Days of demand, for the payment to each Finance Party of the amount of all costs and expenses (including legal fees on the scale as between attorney and own client whether incurred before or after judgment) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document and any proceedings instituted by or against any Finance Party as a consequence of enforcing these rights.

17.

GUARANTEE AND INDEMNITY

17.1.

Guarantee and indemnity

17.1.1.

Each Guarantor irrevocably and unconditionally jointly and severally, as a principal obligor and not merely as a surety and on the basis of discrete obligations enforceable against it:

17.1.1.1.

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

17.1.1.2.

undertakes with each Finance Party that whenever an Obligor does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and

17.1.1.3.

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 an Obligor 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 17.1 if the amount claimed had been recoverable on the basis of a guarantee.

17.2.

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.

17.3.

Reinstatement

If any payment by an Obligor or any discharge, release or arrangement given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced for any reason (including, without limitation, as a result of insolvency, business rescue proceedings, liquidation, winding-up or otherwise):

17.3.1.

the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and

17.3.2.

each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.

17.4.

Waiver of defences

The obligations of each Guarantor under Clause 17.1  (Guarantee and indemnity) 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 Clause 17.1  (Guarantee and indemnity) (without limitation and whether or not known to it or any Finance Party) including:

17.4.1.

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

17.4.2.

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

17.4.3.

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

17.4.4.

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

17.4.5.

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

17.4.6.

any unenforceability, illegality, invalidity, suspension or cancellation of any obligation of any person under this Agreement or any other Finance Document or any other document or security;

17.4.7.

any insolvency, liquidation, winding-up, business rescue or similar proceedings (including, but not limited to, receipt of any distribution made under or in connection with those proceedings);

17.4.8.

this Agreement or any other Finance Document not being executed by or binding against any other Guarantor or any other party; or

17.4.9.

any other fact or circumstance arising on which a Guarantor might otherwise be able to rely on a defence based on prejudice, waiver or estoppel.

17.5.

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 Clause 17.1  (Guarantee and indemnity).  This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

17.6.

Appropriations