ZAR REVOLVING CREDIT FACILITY AGREEMENT GFI JOINT VENTURE HOLDINGS PROPRIETARY LIMITED and GOLD FIELDS OPERATIONS LIMITED (as Original Borrowers) GOLD FIELDS LIMITED (as Parent) THE SUBSIDIARIES OF THE PARENT LISTED IN SCHEDULE 1 (as Original...

1.

DEFINITIONS AND INTERPRETATION

2.

THE FACILITY

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 FACILITY AGENT, THE MANDATED LEAD ARRANGER AND THE REFERENCE BANKS

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.

CONFIDENTIAL INFORMATION

36.

CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS

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

45.

JURISDICTION

SCHEDULE 1 THE ORIGINAL PARTIES

SCHEDULE 2: PART I CONDITIONS PRECEDENT TO INITIAL UTILISATION

PART II: CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL BORROWER

PART III: CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL GUARANTOR

SCHEDULE 3 UTILISATION REQUEST

SCHEDULE 4 FORM OF TRANSFER CERTIFICATE

SCHEDULE 5 FORM OF ACCESSION LETTER

SCHEDULE 6 FORM OF RESIGNATION LETTER

SCHEDULE 7 FORM OF COMPLIANCE CERTIFICATE

SCHEDULE 8 TIMETABLE

SCHEDULE 9 LMA FORM OF CONFIDENTIALITY UNDERTAKING

SCHEDULE 10 FORM OF INCREASE CONFIRMATION

GOLD FIELDS LIMITED, a public company incorporated under the laws of South Africa with registration number 1968/004880/06 (the Parent);

GFI JOINT VENTURE HOLDINGS PROPRIETARY LIMITED, a private company incorporated under the laws of South Africa with registration number 1998/023354/07, as borrower (GFI Joint Venture);

GOLD FIELDS OPERATIONS LIMITED, a public company incorporated under the laws of South Africa with registration number 1959/003209/06, as borrower (Gold Fields Operations, together with GFI Joint Venture, the Original Borrowers);

THE SUBSIDIARIES of the Parent listed in Schedule 1 (The Original Parties) as guarantors (together with the Parent, the Original Guarantors);

FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as mandated lead arranger (the Mandated Lead Arranger);

FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as lender (the Original Lender); and

FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as facility agent (the Facility Agent).

DEFINITIONS AND INTERPRETATION

Definitions

Accession Letter means a document substantially in the form set out in Schedule 5 (Form of Accession Letter);

Additional Borrower means a company which becomes an Additional Borrower in accordance with Clause 24 (Changes to the Obligors);

Additional Guarantor means a company which becomes an Additional Guarantor in accordance with Clause 24 (Changes to the Obligors);

Additional Obligor means an Additional Borrower or an Additional Guarantor;

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;

Agreement means this agreement and the Schedules annexed hereto;

Anti-Corruption Laws means:

the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997 (the OECD Convention);

the US Foreign Corrupt Practices Act of 1977 (as amended by the Foreign Corrupt Practices Act Amendments of 1988 and 1998, and as may be further amended and supplemented from time to time) or the rules and regulations thereunder (the FCPA);

the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇;

the following South African laws:

the South African Prevention and Combating of Corrupt Activities Act, 2004;

the South African Prevention of Organised Crime ▇▇▇ ▇▇▇▇; and

the South African Protection of Constitutional Democracy Against Terrorist Related ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇; and

any other applicable law in any applicable jurisdiction (including any (i) statute, ordinance, rule or regulation; (ii) order of any court, tribunal or any other judicial body; and (iii) rule, regulation, guideline or order of any public body, or any other administrative requirement) which:

prohibits the conferring of any gift, payment or other benefit on any person or any officer, employee, agent or adviser of such person; and/or

is broadly equivalent to the FCPA and/or the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or was intended to enact the provisions of the OECD Convention or which has as its objective the prevention of corruption;

Associate has the meaning given to such term in Clause 20.1 (Financial definitions) of this Agreement;

Auditors means, at any time, the auditors of the Parent at that time, being as at the Signature Date, PricewaterhouseCoopers, and any replacement for those auditors appointed by the Parent;

Availability Period means the period commencing on the CP Satisfaction Date and ending on the date which is 1 (one) Month prior to the Termination Date;

Available Commitment means a Lender’s Commitment minus:

the amount of its participation in any outstanding Loans; and

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

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

Base Rate means:

in respect of each Interest Period (other than a Broken Interest Period) for the Loan, JIBAR;

in respect of each Broken Interest Period of the Loan, the Base Rate determined in accordance with the following formula:

the Base Rate to be determined in respect of that Broken Interest Period;

JIBAR for the period closest to, but less than, that Broken Interest Period plus, if this would result in R₁ being equal to the JIBAR Overnight Deposit Rate, 0.10%;

JIBAR for the period closest to, but greater than, that Broken Interest Period;

the total number of days in that Broken Interest Period;

the number of days in the period for which R₁ is quoted on the first day of that Broken Interest Period; and

the number of days in the period for which R₂ is quoted on the first day of that Broken Interest Period;

Basel III has the meaning set out in Clause 13.1.3.1 of Clause 13.1 (Increased costs);

Borrower means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 24 (Changes to the Obligors);

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

the interest (excluding the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

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;

Broken Interest Period means a period that is less than the relevant Interest Period;

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

Cerro Corona Operation means the gold and copper mine in Peru owned and operated by the Cerro Corona Subsidiary;

Cerro Corona Subsidiary means Gold Fields La Cima S.A.;

Code means the US Internal Revenue Code of 1986;

Commitment means:

in relation to the Original Lender, ZAR500,000,000 (five hundred million Rand) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and

in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase),

Companies Act means the Companies Act, 2008 and all regulations promulgated under that Act;

Compliance Certificate means a certificate substantially in the form set out in Schedule 7 (Form of Compliance Certificate);

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

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

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

information that:

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

is identified in writing at the time of delivery as non-confidential by the Parent; or

is known by that Finance Party before the date the information is disclosed to it in accordance with Clauses 1.1.25.3.1 and 1.1.25.3.2 above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and

any Funding Rate or Reference Bank Quotation;

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

Consolidated EBITDA has the meaning set out in Clause 20.1 (Financial Definitions);

Consolidated Tangible Net Worth means, at any time, the Total equity, as reported in the Statement of financial position in the last set of annual consolidated financial statements of the Parent delivered to the Facility Agent pursuant to this Agreement;

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 and articles of association, certificate of incorporation, articles of incorporation or commercial registration certificate);

CP Satisfaction Date means the date on which the Facility Agent issues a notice pursuant to Clause 4.1 (Initial conditions precedent) to the Original Borrowers;

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

Defaulting Lender means any Lender:

which has failed to make its participation in a Loan available or has notified the Facility Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4.1 (Lenders’ participation);

which has otherwise rescinded or repudiated a Finance Document; or

with respect to which an Insolvency Event has occurred and is continuing, unless, in the case of Clause 1.1.32.1 above:

its failure to pay is caused by:

administrative or technical error; or

a Disruption Event, and

payment is made within 5 (five) Business Days of its due date; or:

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

Designated Website has the meaning given to it in Clause 19.8.1 of Clause 19.8 (Use of websites);

Disruption Event means either or both of:

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

the occurrence of any other event which results in a disruption (of a technical or system-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

from performing its payment obligations under the Finance Documents; or

from communicating with other Parties in accordance with the terms of the Finance Documents,

Eligible Institution means any Lender or other bank, financial institution, trust, fund or other entity (other than a member of the Group) selected by the Parent;

Encumbrance means any mortgage, 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;

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

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

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

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

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

Environmental Law means any law applicable to the business conducted by a Material Group Company at the relevant time in any jurisdiction in which that Material Group Company conducts business which relates to the pollution, degradation or protection of the Environment or harm to or the protection of human health or the health of animals or plants;

Environmental Permits means any permit, licence, consent, approval 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 Material Group Company conducted on or from the properties owned or used by that Material Group Company;

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

Existing Lender has the meaning given to it in Clause 23.1 (Transfers by the Lenders);

Facility means the revolving credit facility made available to the Borrowers under this Agreement as described in Clause 2 (The Facility);

Facility Office means the office(s) notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 5 (five) Business Days’ written notice) as the office(s) through which it will perform its obligations under this Agreement;

FATCA means:

sections 1471 to 1474 of the Code and any associated regulations;

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in Clause 1.1.45.1 above; and

any agreement pursuant to the implementation of any treaty, law or regulation referred to in Clauses 1.1.45.1 or 1.1.45.2 above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;

FATCA Application Date means:

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

in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within Clause 1.1.46.1 above, the first date from which such payment may become subject to a deduction or withholding required by FATCA;

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

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

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

Finance Document means:

this Agreement;

any Fee Letter;

any Accession Letter;

any Resignation Letter; and

any other document designated as such by the Facility Agent and the Parent;

Finance Party means the Facility Agent, the Mandated Lead Arranger or a Lender;

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

moneys borrowed;

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

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

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability;

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

the 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:

used primarily as a method of raising credit; or

not made in the ordinary course of business;

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

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

any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account);

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;

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

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

Financial Year means, at any time, the financial year of the Group ending on 31 December in each calendar year;

Funding Rate means any individual rate notified by a Lender to the Facility Agent pursuant to Clause 10.2 (Market Disruption);

GAAP means the generally accepted accounting principles set out in IFRS;

GF Holdings means Gold Fields Holdings Company Limited, a company incorporated with limited liability under the laws of the British Virgin Islands with company number 651406;

GF Orogen means Gold Fields Orogen Holding (BVI) Limited, a company incorporated with limited liability under the laws of the British Virgin Islands with company number 184982;

GF Ghana means Gold Fields Ghana Holdings (BVI) Limited, a company incorporated with limited liability under the laws of the British Virgin Islands with company number 651405;

Ghanaian Companies means Gold Fields Ghana Limited and Abosso Goldfields Limited;

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

Group Company means a member of the Group;

Guarantor means an Original Guarantor or an Additional Guarantor unless, in the case of an Additional Guarantor, it has ceased to be a Guarantor in accordance with Clause 24 (Changes to the Obligors);

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

IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements;

Impaired Facility Agent means the Facility Agent at any time when:

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

the Facility Agent otherwise rescinds or repudiates a Finance Document;

(if the Facility Agent is also a Lender) it is a Defaulting Lender under Clauses 1.1.32.1 and 1.1.32.2 of the definition of Defaulting Lender; or

an Insolvency Event has occurred and is continuing with respect to the Facility Agent;

its failure to pay is caused by:

administrative or technical error; or

a Disruption Event; and

payment is made within 5 (five) Business Days of its due date; or

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

Increase Confirmation means a confirmation substantially in the form set out in Schedule 10 (Form of Increase Confirmation);

Increased Costs has the meaning given to it in Clause 13.1.4 of Clause 13.1 (Increased costs);

Increase Lender has the meaning given to that term in Clause 2.2 (Increase);

Indebtedness for Borrowed Money means Financial Indebtedness save for any indebtedness for or in respect of Clauses 1.1.52.1 and 1.1.52.10 of the definition of Financial Indebtedness;

Information has the meaning given to such term in Clause 18.11.1 of Clause 18.11 (No misleading information);

Insolvency Event in relation to an entity, means that entity:

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

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

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

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

has instituted against it a proceeding seeking placement into business rescue, a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in Clause 1.1.71.4 above and:

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

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

seeks or becomes subject to the appointment of a curator pursuant to Chapter V of the Banks Act 1990 and/or has instituted against it a bank insolvency proceeding pursuant to that act;

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

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, business rescue practitioner or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in Clause 1.1.71.4 above);

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

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

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

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);

JIBAR means, for the relevant Interest Period of any Loan or Unpaid Sum:

the applicable Screen Rate; or

if no Screen Rate is available for the Interest Period of that Loan or Unpaid Sum, 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,

JIBAR Overnight Deposit Rate means, for a Broken Interest Period in relation to any Loan or an Unpaid Sum:

the applicable Screen Rate; or

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

Johannesburg Interbank Market means the South African interbank market;

Legal Opinion means any legal opinion delivered to the Facility Agent under Clause 4.1 (Initial conditions precedent) or Clause 24 (Changes to the Obligors);

Legal Reservations means:

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

the Prescription Act, 1969;

similar principles, rights and defences under the laws of any jurisdiction in which an Obligor is incorporated; and

any other matters which are set out as qualifications or reservations as to matters of law of general application in the Legal Opinions;

Lender means:

the Original Lender; and

any bank or financial institution which has become a Party as a Lender in accordance with Clause 2.2 (Increase) or Clause 23 (Changes to the Lenders),

LMA means the Loan Market Association;

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

Majority Lenders means:

at any time there are only three Lenders, a Lender or Lenders whose Commitments aggregate 66²⁄₃% or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 66²⁄₃% or more of the Total Commitments immediately prior to the reduction); and

at any other time a Lender or Lenders whose Commitments aggregate more than 66²⁄₃% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66²⁄₃% of the Total Commitments immediately prior to the reduction);

Margin means 2.15% per annum;

Market Capitalisation means the product obtained as a result of multiplying (A) by (B), where (A) is the average closing price for the issued shares of the Parent on the Johannesburg Stock Exchange during the 30 (thirty) day period prior to the date the relevant Obligor or Material Group Company has entered into a legally binding commitment to make the relevant acquisition or investment or the relevant sale, lease, transfer or other disposal (as applicable) and (B) is the total number of shares (including, without double counting those represented by American depository receipts) issued by the Parent;

Material Adverse Effect means a material adverse effect on:

the business or financial condition of the Group taken as a whole;

the ability of an Obligor to perform its payment obligations or financial covenant obligations under any Finance Document to which it is a party; or

the validity or enforceability of the Finance Documents or any of them;

Material Group Company means:

the Obligors; and

any member of the Group from time to time that is not a Non-Material Group Company;

Mining Charter has the meaning given to it in Clause 22.9 (Creditors’ process);

Moody’s means ▇▇▇▇▇’▇ Investor Services Inc., or any successor to its rating agency function;

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:

(subject to Clause 1.1.88.3 below) 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;

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

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;

MPRDA has the meaning given to it in Clause 22.9 (Creditors’ Process);

New Lender has the meaning given to it in Clause 23.1 (Transfers by the Lenders);

Newshelf means Newshelf 899 Proprietary Limited, a company incorporated under the laws of South Africa;

Non-Material Group Company means, at any time, a member of the Group (other than an Obligor) which had EBITDA (determined on the same basis as Consolidated EBITDA) and gross assets in its most recently ended Financial Year (on a consolidated basis taking into account it and its Subsidiaries only) less than 10% of Consolidated EBITDA (but including, for these purposes only, the net income of any Project Finance Subsidiaries) and gross assets of the Group (calculated according to the most recent set of audited consolidated financial statements delivered pursuant to Clause 19.1 (Financial Statements)). Compliance with the aforementioned condition shall be determined by reference to the latest audited financial statements of such member of the Group (consolidated in the case of a member of the Group which itself has Subsidiaries), provided that:

if, in the case of any member of the Group which itself has Subsidiaries, no consolidated financial statements are prepared and audited, its consolidated EBITDA and gross assets shall be determined on the basis of pro forma consolidated financial statements of the relevant member of the Group and its Subsidiaries, prepared for this purpose by the Parent;

if any intra-Group transfer or re-organisation takes place, the audited financial statements of the Group Company and all relevant members of the Group shall be adjusted by the Parent in order to take into account such intra-Group transfer or re-organisation; and

the audited financial statements of the Group and any relevant member of the Group shall be adjusted in such a manner as the Auditors think fair and appropriate to take account of the acquisition or disposal of any member of the Group or any business of any member of the Group, after the date or at which the audited financial statements of the Group are made up;

Obligor means a Borrower or a Guarantor;

Original Financial Statements means the audited consolidated financial statements of the Parent for the Financial Year ended 31 December 2019;

Paper Form Lender has the meaning given to it in Clause 19.8.1 of Clause 19.8 (Use of websites);

Party means a party to this Agreement;

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

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

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;

by an Obligor to another Obligor (other than to an Additional Obligor);

by an Obligor to an Additional Obligor or to a member of the Group that is not an Obligor if such sale, lease, transfer or other disposal is concluded at arm’s length;

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

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

by any member of the Group to any other person where the higher of the market value or consideration receivable when aggregated with the higher of the market value or consideration receivable for any other sale, lease, transfer or other disposal by any Material Group Company (other than a sale, lease, transfer or other disposal referred to in the preceding Clauses) does not exceed (at the time of the relevant disposal) 20% of Market Capitalisation in any Financial Year and does not exceed (at the time of the relevant disposal), in aggregate during the period from the Signature Date to the Termination Date, 30% of Market Capitalisation;

Permitted Encumbrance means:

any Encumbrance created prior to the Signature Date which (i) is disclosed in the Original Financial Statements and (ii) in all circumstances secures only indebtedness outstanding or a facility available at the Signature Date if the principal amount or original facility thereby secured is not increased after the Signature Date;

any title transfer or retention arrangement entered into by any member of the Group in the normal course of its trading activities and on terms no worse for that member of the Group than the standard terms of the relevant supplier;

any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements (which shall include, for the avoidance of doubt, those pursuant to hedging arrangements in relation to gold, silver, copper and other commodity prices, foreign exchange rates and interest rates where such arrangements are entered into for the purposes of providing protection against fluctuation in such rates or prices in the ordinary course of business), for the purpose of netting debit and credit balances;

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

any Encumbrance over or affecting (or transaction described in Clauses 21.3.2 of Clause 21.3 (Negative pledge) (Quasi-Encumbrance) affecting) any asset acquired by a member of the Group after the Signature Date if:

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

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

the Encumbrance or Quasi-Encumbrance is (other than an Encumbrance or Quasi-Encumbrance otherwise permitted pursuant to Clauses 1.1.98.2, 1.1.98.3 and 1.1.98.4 above or, 1.1.98.6, 1.1.98.7, 1.1.98.8, 1.1.98.9 or 1.1.98.10 below) removed or discharged within 6 (six) Months of the date of acquisition of such asset;

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

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

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

the Encumbrance or Quasi-Encumbrance is (other than an Encumbrance or Quasi-Encumbrance otherwise permitted pursuant to Clauses 1.1.98.2, 1.1.98.3, 1.1.98.4 or 1.1.98.5 above or 1.1.98.7, 1.1.98.9 or 1.1.98.10 below) removed or discharged within six (6) Months of that company becoming a member of the Group;

any Encumbrance or Quasi-Encumbrance granted in respect of Project Finance Borrowings over assets of, or the shares in, a Project Finance Subsidiary (other than the Cerro Corona Subsidiary);

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

in respect of Encumbrances or Quasi-Encumbrances over or affecting any asset of any Material Group Company (other than the Cerro Corona Subsidiary), any Encumbrance or Quasi-Encumbrance securing Financial Indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of any Encumbrance or Quasi-Encumbrance other than any permitted under Clauses 1.1.98.1 to 1.1.98.8 above and 1.1.98.10 and 1.1.98.11 below), does not at any time exceed 12% of Consolidated Tangible Net Worth (or its equivalent in another currency) (but adjusted to include the net value of new assets acquired since the last date of the latest set of consolidated annual financial statements of the Group);

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

any Encumbrance or Quasi-Encumbrance granted in respect of Financial Indebtedness incurred in connection with the Cerro Corona Operation over the business or assets of the Cerro Corona Subsidiary or over the Ownership Interests in the Cerro Corona Subsidiary provided that the amount of Financial Indebtedness secured by all such Encumbrances or Quasi-Encumbrances permitted by this Clause 1.1.98.11 does not at any time in aggregate exceed $200,000,000 (Two Hundred Million Dollars) (or its equivalent). In this Clause 1.1.98.11 Ownership Interests means (i) the shares issued by the Cerro Corona Subsidiary, (ii) any shareholder loans made to the Cerro Corona Subsidiary (iii) to the extent required by Peruvian law, the shares in the Holding Company which directly owns the shares issued by the Cerro Corona Subsidiary provided that such Holding Company’s sole assets are shares issued by, and any loans made by it to, the Cerro Corona Subsidiary and its sister company, Minera Gold Fields S.A.;

Permitted Financial Indebtedness means any Financial Indebtedness:

arising under the Finance Documents;

arising under any environmental bond which any member of the Group is required to issue by any applicable law;

arising in connection with the Cerro Corona Operation provided that, the aggregate amount of all such Financial Indebtedness does not at any time exceed $200,000,000 (Two Hundred Million Dollars) (or its equivalent);

arising under any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price but not for speculative purposes;

incurred by Gruyere Holdings Pty Ltd to the extent that the aggregate amount of all such Financial Indebtedness does not at any time exceed A$600,000,000;

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

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

in respect of any lease or hire purchase contract entered into at any time which:

would, in accordance with GAAP immediately after the adoption of IFRS 16, be treated as a balance sheet liability; and

would not, in accordance with GAAP in force immediately before the adoption of IFRS 16, have been treated as a balance sheet liability;

incurred pursuant to any counter-indemnity obligation in respect of any guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in favour of Tshiamiso Trust to the extent that the aggregate amount of all such Financial Indebtedness does not at any time exceed ZAR357,500,000 (Three Hundred and Fifty Seven Million Five Hundred Thousand Rand); or

not falling within the preceding Clauses provided that the aggregate amount of all Financial Indebtedness (excluding, for the avoidance of doubt, any Financial Indebtedness incurred by a Guarantor or a Project Finance Subsidiary permitted under this Clause1.1.99 does not at any time exceed $300,000,000 (Three Hundred Million Dollars) (or its equivalent));

Permitted Guarantee means:

any guarantee of any Financial Indebtedness of any member of the Group;

any guarantee given in respect of the netting or set-off arrangements permitted pursuant to Clause 1.1.98.3 of the definition of Permitted Encumbrance;

any guarantees or indemnities outstanding on the Signature Date;

any guarantee constituting Financial Indebtedness which is not prohibited by Clause 21.11 (Financial Indebtedness); or

any guarantees not falling within the preceding Clauses so long as the aggregate amount of such guarantees outstanding at any time when aggregated with the amount of any loans permitted pursuant to Clause 1.1.101.6 of Permitted Loan does not exceed $300,000,000 (Three Hundred Million Dollars) (or its equivalent) at any time;

Permitted Loan means:

any trade credit extended by any member of the Group to its customers on normal commercial terms and in the ordinary course of its trading activities;

Financial Indebtedness which is referred to in the definition of, or otherwise constitutes, Permitted Financial Indebtedness (except under Clause 1.1.99.4 of that definition);

a loan made by an Obligor to another Obligor or made by a Material Group Company which is not an Obligor to another Material Group Company;

any loan between Group Companies to the extent made for the purposes of financing general corporate and working capital requirements;

any loan made by an Obligor or Material Group Company which is outstanding on the Signature Date; or

any loan not falling within the preceding Clauses so long as the aggregate amount of the Financial Indebtedness under any such loans when aggregated with the amount of any guarantees permitted pursuant to Clause 1.1.101.5 of Permitted Guarantee does not exceed $300,000,000 (Three Hundred Million Dollars) (or its equivalent) at any time;

Project Finance Borrowings means:

any indebtedness to finance (or re-finance) a project comprised of the ownership, development, construction, refurbishment, commissioning and/or operation of assets which is incurred by a Project Finance Subsidiary in connection with such project and in respect of which the recourse of the person(s) making any such finance (or re-finance) available to that Project Finance Subsidiary for the payment, repayment and prepayment of such indebtedness is limited to (i) the Project Finance Subsidiary and its assets and/or the shares in that Project Finance Subsidiary and/or (ii) during the period prior to successful completion of the relevant completion tests applicable to such project guarantees from any one or more members of the Group; or

any indebtedness the terms and conditions of which have been approved by the Facility Agent and which the Facility Agent has agreed in writing (acting on the instructions of the Majority Lenders) to treat as a Project Finance Borrowing for the purposes of the Finance Documents;

Project Finance Subsidiary means a single purpose company or other entity (excluding the Obligors) whose sole business is a project comprised of the ownership, development, construction, refurbishment, commissioning and/or operation of an asset which has incurred Project Finance Borrowings;

Qualifying Lender has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities);

Quotation Day means, in relation to any period for which an interest rate is to be determined, the first day of that period, unless market practice differs in the Johannesburg Interbank Market, in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the Johannesburg Interbank Market (and if quotations would normally be given by leading banks in the Johannesburg Interbank Market on more than one day, the Quotation Day will be the last of those days);

Recipient has the meaning given to it in Clause 12.2.1 of Clause 12.7 (Value added tax);

Recovered Amount has the meaning given to it in Clause 27.1 (Payments to Finance Parties);

Recovering Finance Party has the meaning given to it in Clause 27.1 (Payments to Finance Parties);

Redistributed Amount has the meaning given to it in Clause 27.4 (Reversal of redistribution);

Reference Bank Quotation means any quotation supplied to the Facility Agent by a Reference Bank;

Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks as either:

if:

the Reference Bank is a contributor to the Screen Rate; and

it consists of a single figure,

in any other case, the rate at which the relevant Reference Bank could fund itself in ZAR for the relevant period with reference to the unsecured wholesale funding market;

Reference Banks means the principal Johannesburg offices of such banks as may be appointed by the Facility Agent in consultation with the Parent at the relevant time and provided that such banks have accepted such appointment;

Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund;

Repeating Representations means each of the representations set out in Clause 18.1 (Status) to Clause 18.24 (Sanctions) inclusive, other than Clause 18.3 (Binding obligations), Clause 18.6 (Governing law and enforcement), Clause 18.7 (Deduction of Tax), Clause 18.8 (No filing or stamp taxes), Clauses 18.11.1 and 18.11.2 of Clause 18.11 (No misleading information), Clause 18.14 (No proceedings pending or threatened), Clause 18.18 (Insurance), Clause 18.21 (Taxation) and Clause 18.24.2 of Clause 18.24 (Sanctions);

Replacement Lender has the meaning given to it in Clause 34.6.1 of Clause 34.6 (Replacement of a Defaulting Lender);

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

Resignation Letter means a letter substantially in the form set out in Schedule 6 (Form of Resignation Letter);

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

Rollover Loan means one or more Loans:

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

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

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

Sanctions means any economic, financial or trade sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by the United States government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a specially designated national or blocked person), the United Nations Security Council, the European Union, the government of Australia, the government of Canada, the government of Japan, the government of the United Kingdom (including, without limitation Her Majesty’s Treasury), the government of the Republic of France, the government of the Republic of South Africa or any other relevant sanctions authority which replaces, or is a successor to, any of the foregoing;

Sanctioned Country means a country, territory or region that is the target of Sanctions;

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 YIELD at the applicable time (or any replacement Reuters page which displays that rate, or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters). If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the appropriate rate after consultation with the Parent;

Sharing Finance Parties has the meaning given to it in Clause 27.2 (Redistribution of payments);

Sharing Payment has the meaning given to it in Clause 27.1 (Payments to Finance Parties);

Signature Date means the date of the signature of the Party last signing this Agreement in time, provided that all Parties have signed this Agreement;

South African Obligors means:

the Parent;

the Original Borrowers; or

any Additional Obligor incorporated in South Africa;

Specified Time means a time determined in accordance with Schedule 8 (Timetable);

Standard & Poor’s means Standard & Poor’s, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., or any successor to its rating agency function;

Subject Party has the meaning given to it in Clause 12.2.2 of Clause 12.7 (Value added tax);

Subsidiary means, in relation to any company or corporation, a company or corporation:

which is controlled, directly or indirectly, by the first mentioned company or corporation;

more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or

which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,

Supplier has the meaning given to it in Clause 12.2.2 of Clause 12.7 (Value added tax);

Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including, without limitation, any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same);

Tax Credit has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities);

Tax Declaration has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities);

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction;

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);

Termination Date means the third anniversary of the CP Satisfaction Date;

Total Commitments means the aggregate of the Commitments, being ZAR500,000,000 (Five Hundred Million Rand) at the Signature Date;

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

Transfer Date means, in relation to a transfer:

the proposed Transfer Date specified in the relevant Transfer Certificate; or

in the event that no Transfer Date is specified in the relevant Transfer Certificate, the date on which the Facility Agent executes the relevant Transfer Certificate;

Treaty Lender has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities);

Treaty State has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities);

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

US means the United States of America;

Utilisation means a utilisation of the Facility;

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

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

VAT means any value added tax as provided for in the South African Value Added Tax Act, 1991 and any other tax of a similar nature; and

Website Lenders has the meaning given to it in Clause 19.8.1 of Clause 19.8 (Use of websites).

Construction

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

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

arm’s length means terms that are fair and reasonable to the counterparty of a transaction and no more or less favourable to the other party to the relevant transaction as could reasonably be expected to be obtained in a comparable arm’s length transaction with a person that is not the ultimate Holding Company of such counterparty or an entity of which such counterparty or its ultimate Holding Company has direct or indirect control, or owns directly or indirectly more than 20% of the share capital or similar rights of ownership;

an amendment includes an amendment, modification, supplement, novation, re-enactment, replacement, restatement or variation and amend will be construed accordingly;

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

audited means, in respect of any financial statement, those financial statements as audited by the Auditors;

authorisations mean any authorisation, consent, registration, filing agreement, notarisation, certificate, licence, approval, resolution, permit and/or authority or any exemption from any of the aforesaid, by, with or from any authority (including, without limitation, any approvals required from the South African Reserve Bank in relation to any Finance Document or any transaction contemplated under any Finance Document);

a Clause or Schedule shall, subject to any contrary indication, be construed as a reference to a Clause or Schedule of this Agreement;

a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated;

a group of Lenders includes all the Lenders;

a guarantee means (other than in Clause 17 (Guarantee and Indemnity)), any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent to purchase or assume any indebtedness of any person or to make any investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

indebtedness shall be construed so as to include any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;

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;

law shall be construed as any law (including statutory, common or customary law), statute, constitution, decree, judgment, treaty, regulation, directive, by-law, order, other legislative measure, directive, requirement, request or guideline (whether or not having the force of law but, if not having the force of law, is generally complied with by the persons to whom it is addressed or applied) of any government, supranational, local government, statutory or regulatory or self-regulatory or similar body or authority or court and the common law, as amended, replaced, re-enacted, restated or reinterpreted from time to time;

the words other and otherwise shall not be construed eiusdem generis with any foregoing words where a wider construction is possible;

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

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

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

a time of day is a reference to Johannesburg time.

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

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

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.

Unless inconsistent with the context or a contrary indication appears, in this Agreement:

if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party to this Agreement, notwithstanding that it appears only in a definition, effect shall be given to it as if it were a substantive provision of this Agreement;

when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day;

where any Party to this Agreement is required to provide any consent or approval or agree to the actions of any other Party to this Agreement, the request for such consent or approval or agreement shall be in writing and such consent or approval or agreement, in order to be an effective consent, approval or agreement for the purposes of this Agreement, shall be in writing;

any obligation of an Obligor not to do something under this Agreement shall include an obligation not to vote in favour of or to exercise any discretion or to contract, agree or take any action with a view to bringing that thing about (unless such contract or agreement is conditional upon the consent of the Facility Agent).

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

The headings to the Clauses and Schedules of this Agreement are for reference purposes only and shall in no way affect or govern the interpretation of nor modify nor amplify the terms of this Agreement nor any Clause or Schedule hereof.

The Schedules to this Agreement form an integral part thereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such Schedules. To the extent that there is any conflict between the Schedules to this Agreement and the provisions of this Agreement, the provisions of this Agreement shall prevail.

Where any term is defined within the context of any particular Clause in this Agreement, the term so defined, unless it is clear from the Clause in question that the term so defined has limited application to the relevant Clause, shall bear the same meaning as ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this Clause 1.2.9.

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

The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the Clauses themselves do not expressly provide for this.

This Agreement shall to the extent permitted by applicable law be binding on and enforceable by the administrators, trustees, permitted assigns, permitted transferees or liquidators of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Party’s administrators, trustees, permitted assigns, permitted transferees or liquidators, as the case may be.

The use of any expression in this Agreement covering a process available under South African law such as winding-up (without limitation eiusdem generis) shall, if any of the Parties to this Agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such other jurisdiction.

Currency Symbols and Definitions

Third party rights

Except as expressly provided for in this Agreement, no provision of this Agreement constitutes a stipulation for the benefit of any person who is not a Party to this Agreement.

Subject to Clause 34.2.2 of Clause 34.2 (Exceptions), but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.

THE FACILITY

The Facility

Increase

The Parent may by giving prior notice to the Facility Agent after the effective date of a cancellation of the Commitment of a Lender in accordance with:

Clause 7.1 (Illegality); or

Clause 7.5.1 of Clause 7.5 (Right of replacement or repayment and cancellation in relation to a single Lender),

the increased Commitments will be assumed by one or more Eligible Institutions (each an Increase Lender) each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments;

each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;

each Increase Lender shall become a Party as a Lender and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume;

the Commitments of the other Lenders shall continue in full force and effect; and

any increase in the Commitments shall take effect on the date specified by the Parent in the notice referred to above or any later date on which the Facility Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender.

The Facility Agent shall, subject to Clause 2.2.3 below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.

The Facility Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender.

Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.

The Parent shall promptly on demand pay the Facility Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2.

The Increase Lender shall, on the date upon which the increase takes effect, pay to the Facility Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 23.4 (Transfer fee) if the increase was a transfer pursuant to Clause 23.6 (Procedure for transfer) and if the Increase Lender was a New Lender.

The Parent may pay to the Increase Lender a fee in the amount and at the times agreed between the Parent and the Increase Lender in a letter between the Parent and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this Clause 2.2.7;

Neither the Facility Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents.

Clause 23.5 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to:

an Existing Lender were references to all the Lenders immediately prior to the relevant increase;

the New Lender were references to that Increase Lender; and

a re-transfer were references to a transfer.

Finance Parties’ rights and obligations

The obligations of each Finance Party under the Finance Documents are several. 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.

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 is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with Clause 2.3.3 below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party’s participation in the Facility or its role under a Finance Document (including any such amount payable to the Facility Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

PURPOSE

Purpose

The Original Borrowers shall apply all amounts borrowed by them under the Facility towards the general corporate and working capital purposes of the Group.

Each Additional Borrower shall apply all amounts borrowed by it under the Facility towards the purposes specified in the Accession Letter to which it is a party as Additional Borrower.

Monitoring

CONDITIONS OF UTILISATION

Initial conditions precedent

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

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

Further conditions precedent

in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Rollover Loan, and in the case of any other Loan, no Default is continuing or would result from the proposed Loan; and

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

Failure to close

UTILISATION

Delivery of a Utilisation Request

Completion of a Utilisation Request

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

the currency and amount of the Utilisation comply with Clause 5.4 (Currency and amount);

the proposed Interest Period complies with Clause 9 (Interest Periods); and

in respect of the Original Borrowers, it is a joint request made by the Original Borrowers in one Utilisation Request and one Loan is requested by each Original Borrower in the same Utilisation Request.

Maximum number of Loans and Utilisation Requests

The Borrowers may not deliver a Utilisation Request if as a result of the proposed Utilisation more than 20 Loans would be outstanding.

The Borrowers may not deliver more than two Utilisation Requests in one Month.

Currency and amount

The currency specified in a Utilisation Request must be in ZAR.

The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of ZAR10,000,000 (Ten Million Rand) or, if less, the Available Facility.

Lenders’ participation

If the conditions set out in this Agreement have been met and subject to Clause 6 (Repayment), each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.

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 that Loan.

The Facility Agent shall notify each Lender of the amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 28.1 (Payments to the Facility Agent), in each case by the Specified Time.

Cancellation of Commitment

REPAYMENT

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

Without prejudice to each Borrower’s obligation under Clause 6.1 above, if:

one or more Loans under the Facility are to be made available to a Borrower:

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

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

the proportion borne by each Lender’s participation in the maturing Loan to the amount of that maturing Loan is the same as the proportion borne by that Lender’s participation in the new Loans to the aggregate amount of those new Loans,

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

the relevant Borrower will only be required to make a payment under Clause 28.1 (Payments to the Facility Agent) in an amount in the relevant currency equal to that excess; and

each Lender’s participation (if any) in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation (if any) in the maturing Loan and that Lender will not be required to make a payment under Clause 28.1 (Payments to the Facility Agent) in respect of its participation in the new Loans; and

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

the relevant Borrower will not be required to make a payment under Clause 28.1 (Payments to the Facility Agent); and

each Lender will be required to make a payment under Clause 28.1 (Payments to the Facility Agent) in respect of its participation in the new Loans only to the extent that its participation in the new Loans exceeds that Lender’s participation in the maturing Loan and the remainder of that Lender’s participation in the new Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender’s participation in the maturing Loan.

PREPAYMENT AND CANCELLATION

Illegality

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

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

each Borrower shall repay that Lender’s participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Parent 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) and that Lender’s corresponding Commitments shall be cancelled in the amount of the participations repaid.

Change of control

If any person or group of persons acting in concert gains control of the Parent:

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

a Lender shall not be obliged to fund a Utilisation (except for a Rollover Loan) and the Facility Agent and the Parent shall consult about the change of control;

if the Majority Lenders so require after a period of 45 (forty-five) days from receipt of the notice referred to in Clause 7.2.1.1 above (provided, for the avoidance of doubt, failure of the Parent to provide such notice shall not prevent the Lenders from taking the following actions), the Facility Agent shall by notice to the Parent, (such notice to be delivered no later than 60 (sixty) days from receipt of the notice referred to in Clause 7.2.1.1 above), cancel the Total Commitments and declare all outstanding Loans, together with accrued interest and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Total Commitments will be cancelled and all such outstanding amounts will become immediately due and payable; and

if the Majority Lenders do not require cancellation and prepayment in accordance with Clause 7.2.1.3 above, a Lender may by notice to the Facility Agent which shall be delivered not earlier than 45 (forty-five) days nor later than 60 (sixty) days from receipt of the notice referred to in Clause 7.2.1.1 above, whereupon the Facility Agent shall by notice to the Parent (such notice to be delivered promptly after receipt of such Lender notification), cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest thereon and all other amounts due to such Lender under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable.

For the purpose of Clause 7.2.1 above control means:

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

cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the Parent;

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

give directions with respect to the operating and financial policies of the Parent which the directors or other equivalent officers of the Parent are obliged to comply with; or

the holding of more than one-half of the issued share capital of the Parent (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).

For the purpose of Clause 7.2.1 above 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 by any of them, either directly or indirectly, of shares in the Parent, to obtain or consolidate control of the Parent.

Voluntary cancellation

Voluntary Prepayment of Loans

Right of replacement or repayment and cancellation in relation to a single Lender

If:

any sum payable to any Lender by an Obligor is required to be increased under Clause 12.2.3 of Clause 12.2 (Tax gross-up); or

any Lender claims indemnification from the Parent under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs),

On receipt of a notice of cancellation referred to in Clause 7.5.1 above, the Commitment of that Lender shall immediately be reduced to zero whereupon the Total Commitments shall be reduced by the same amount.

On the last day of each Interest Period which ends after the Parent has given notice of cancellation under Clause 7.5.1 above (or, if earlier, the date specified by the Parent in that notice), each Borrower to which a Loan is outstanding shall repay that Lender’s participation in that Loan.

The Parent may, if the circumstances set out in Clause 7.5.1 above apply to a Lender or if an Obligor becomes obliged to pay any amount in accordance with Clause 7.1 (Illegality) to any Lender, on 5 (five) Business Days’ prior notice to the Facility Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 23 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 23 (Changes to the Lenders) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender’s participation in the outstanding Loans and all accrued interest (to the extent that the Facility Agent has not given a notification under Clause 23.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.

The replacement of a Lender pursuant to Clause 7.5.4 above shall be subject to the following conditions:

the Parent shall have no right to replace the Facility Agent;

neither the Facility Agent nor any Lender shall have any obligation to find a replacement Lender;

in no event shall the Lender replaced under Clause 7.5.4 above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and

the Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 7.5.4 above once it is satisfied that it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to that transfer and the Lender shall perform such know your customer or other similar checks as soon as reasonably practicable following delivery of a notice referred to in Clause 7.5.4 above and shall notify the Facility Agent and the Parent when it is satisfied that it has complied with those checks.

Restrictions

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.

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

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

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.

Subject to Clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

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

If all or part of any Lender’s participation in a Loan under the 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 that Lender’s Commitment (equal to the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment.

Application of prepayments

Right of cancellation in relation to a Defaulting Lender

If any Lender becomes a Defaulting Lender, the Parent may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent 5 (five) Business Days’ notice of cancellation of each Available Commitment of that Lender.

On the notice referred to in Clause 7.8.1 above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.

The Facility Agent shall as soon as practicable after receipt of a notice referred to in Clause 7.8.1 above, notify all the Lenders.

INTEREST

Calculation of interest

the Margin; and

the Base Rate.

Payment of interest

Default interest

If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject Clause 8.3.2 below, is 1% per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 shall be immediately payable by that Obligor on demand by the Facility Agent.

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

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

the rate of interest applying to the overdue amount during that first Interest Period shall be 1% per annum higher than the rate which would have applied if the overdue amount had not become due.

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

Notification of rates of interest

INTEREST PERIODS

Selection of Interest Periods

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

Subject to this Clause 9, a Borrower may select an Interest Period of 1 (one), 3 (three), 6 (six) or 12 (twelve) Months or any other period agreed between the Borrower (or the Parent) and the Facility Agent (acting on the instructions of all the Lenders) in relation to the relevant Loan.

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

A Loan has one Interest Period only.

Consolidation of Loans

Non-Business Days

CHANGES TO THE CALCULATION OF INTEREST

Absence of Quotations

Market Disruption

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

the Margin; and

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

In this Agreement, Market Disruption Event means:

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

before close of business in Johannesburg on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35% of that Loan) that:

the cost to it or them of funding its or their participation in that Loan from the Johannesburg Interbank Market would be in excess of JIBAR;

the cost to it or them of obtaining matching deposits in the Johannesburg Interbank Market would be in excess of JIBAR for the relevant Interest Period; or

matching deposits will not be available to them in the Johannesburg Interbank Market in the ordinary course of business to fund their participation in that Loan for the relevant Interest Period.

Notification to Parent

Break Costs

Each Borrower shall, within 3 (three) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

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

FEES

Commitment fee

The Original Borrowers shall, jointly and severally, pay to the Facility Agent (for the account of each Lender) a fee (in ZAR) computed at the rate of 33% of the Margin per annum on that Lender’s Available Commitment accruing from the CP Satisfaction Date.

The accrued commitment fee in respect of the Facility is payable on:

the last day of each successive period of 3 (three) Months commencing from the CP Satisfaction Date;

on the last day of the relevant Availability Period; and

if cancelled in full, on the cancelled amount of the relevant Lender’s Commitment at the time the cancellation is effective.

No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender.

Non-Refundable Deal Structuring Fee

TAX GROSS-UP AND INDEMNITIES

Definitions

In this Clause 12:

Income Tax Act means the Income Tax Act no 58 of 1962, as amended of South Africa;

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

a Lender which is tax resident in South Africa;

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

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

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

that Lender has by the due date for payment of that interest submitted to the Borrower a Tax Declaration; or

a Treaty Lender that has by the due date for payment of that interest submitted to the relevant Borrower a Tax Declaration;

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

Tax Declaration means, in respect of a Qualifying Lender and a payment of interest from a South African Obligor to that Qualifying Lender:

in the case of a Qualifying Lender referred to in Clause 12.1.1.2.2 of the definition of Qualifying Lender, a declaration in such form as may be prescribed by the Commissioner for the South African Revenue Service pursuant to section 50E(2) of the Income Tax Act that that Lender is, in terms of section 50D(3) of the Income Tax Act, exempt from the withholding tax on interest in respect of that payment; and

in the case of a Qualifying Lender referred to in Clause 12.1.1.2.3 of the definition of Qualifying Lender, a declaration in such form as may be prescribed by the Commissioner for the South African Revenue Service pursuant to section 50E(3) of the Income Tax Act that that payment of interest is, in terms of section 50E(3) of the Income Tax Act, subject to a rate of withholding tax reduced to zero as a result of any applicable Treaty;

Treaty Lender means a Lender which:

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

does not carry on a business in South Africa through a permanent establishment, as defined in the Income Tax Act, with which that Lender’s participation in the Loan is effectively connected; and

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

Treaty State means a jurisdiction having an agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income (a Treaty) with South Africa which makes provision for full exemption from Tax imposed by South Africa on interest.

Unless this Clause expressly provides to the contrary a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.

Tax gross-up

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

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

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.

A payment shall not be increased under Clause 12.2.3 above by reason of a Tax Deduction on account of Tax imposed by South Africa if, on the date on which the payment falls due the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority.

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.

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.

A Qualifying Lender (or a Lender who would be a Qualifying Lender but for the fact that it has not submitted a Tax Declaration) and each Obligor which makes a payment to which that Qualifying Lender (or a Lender who would be a Qualifying Lender but for the fact that it has not submitted a Tax Declaration) is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction (including the submission of any Tax Declaration to the relevant Borrower required to benefit from an exemption from withholding tax on interest).

Tax indemnity

An Obligor shall (within 3 (three) Business Days of demand by the Facility Agent) pay to a Finance Party an amount equal to the loss, liability or cost which that Finance Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Finance Party in respect of a Finance Document.

Clause 12.3.1 above shall not apply:

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; or

under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,

to the extent a loss, liability or cost:

is compensated for by an increased payment under Clause 12.2 (Tax gross-up);

would have been compensated for by an increased payment under Clause 12.2 (Tax gross-up) but was not so compensated solely because the exclusion in Clause 12.2.5 of Clause 12.2 (Tax gross-up) applied; or

relates to a FATCA Deduction required to be made by a Party.

A Finance 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 that Obligor.

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

Tax Credit

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

that Finance Party has obtained and utilised that Tax Credit,

Lender status confirmation

Each Lender which is not an Original Lender shall indicate, in the documentation which it executes on becoming a Party as a Lender, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:

not a Qualifying Lender;

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

a Treaty Lender.

If such a Lender fails to indicate its status in accordance with this Clause 12.5 then that Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Obligors). For the avoidance of doubt, the documentation which a Lender executes on becoming a Party as a Lender shall not be invalidated by any failure of a Lender to comply with this Clause 12.5.

Stamp taxes

Value added tax

All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for any 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 12.7.2 below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party shall pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).

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.

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

Any reference in this Clause 12.7 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction which is not a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be).

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

FATCA Information

Subject to Clause 12.8.3 below, each Party shall, within ten (10) Business Days of a reasonable request by another Party:

confirm to that other Party whether it is:

a FATCA Exempt Party; or

not a FATCA Exempt Party;

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime.

If a Party confirms to another Party pursuant to Clause 12.8.1.1 above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

Clause 12.8.1 above shall not oblige any Finance Party to do anything, and Clause 12.8.1.3 above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

any law or regulation;

any fiduciary duty; or

any duty of confidentiality.

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with Clauses 12.8.1.1 or 12.8.1.2 above (including, for the avoidance of doubt, where Clause 12.8.3 above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

FATCA Deduction

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Parent, the Facility Agent and the other Finance Parties.

INCREASED COSTS

Increased costs

Subject to Clause 13.3 (Exceptions) the Borrowers shall, within 20 (twenty) Business Days of a demand by the Facility Agent, jointly and severally, 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:

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

compliance with any law or regulation made after the Signature Date; or

the implementation or application of, or compliance with, Basel III or any law or regulation that implements or applies Basel III (except, in each case, to the extent that any such costs were reasonably capable of being calculated by the relevant Finance Party as at the Signature Date or the date on which it became a party to this Agreement).

In this Agreement:

Basel III means:

the agreements on capital requirements, a leverage ratio and liquidity standards contained in Basel III: A global regulatory framework for more resilient banks and banking systems, Basel III: International framework for liquidity risk measurement, standards and monitoring and Guidance for national authorities operating the countercyclical capital buffer published by the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated;

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

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

Increased Costs means:

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

an additional or increased cost; or

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.

Increased cost claims

A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information), following which the Facility Agent shall promptly notify each Borrower.

Each Finance Party shall, together with the notification in Clause 13.2.1 above, provide a certificate to the Facility Agent:

confirming the amount of its Increased Costs;

outlining the basis of its calculation (in reasonable detail) (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information or information or detail that the Finance Party is not legally allowed to disclose (even if the recipient has given appropriate confidentiality undertakings)); and

confirming that it is the policy of that Finance Party to make claims from similar borrowers under similar facilities (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information or information or detail that the Finance Party is not legally allowed to disclose (even if the recipient has given appropriate confidentiality undertakings)), (for the avoidance of doubt, a written statement by a Finance Party confirming that it is the policy of that Finance Party to make claims from similar borrowers under similar facilities will be sufficient evidence and no Finance Party will be required to provide any further evidence or otherwise substantiate its position concerning Basel III),

Exceptions

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

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

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 of Clause 12.3 (Tax indemnity) applied);

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

attributable to the implementation or application of or compliance with the International Convergence of Capital Measurement and Capital Standards, a Revised Framework published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the Signature Date (but excluding any amendment arising out of Basel III) (Basel II) or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates).

OTHER INDEMNITIES

Currency indemnity

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

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

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.

Other indemnities

the occurrence of any Event of Default;

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);

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

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

Indemnity in relation to electronic signatures

each Obligor:

waives any claim which it may have or may acquire against a Finance Party and shall promptly indemnify each of the Finance Parties against any loss, claim, liability, damages, penalties, actions, judgments, rulings, interest, costs, expenses or disbursements, whether directly or indirectly, and which could be lodged by an Obligor or any third party, as a result of a Finance Party receiving and acting upon the Finance Documents which were signed by Electronic Signature, unless such loss, claim or damage resulted from the gross negligence and wilful misconduct of a Finance Party; and

indemnifies each of the Finance Parties against all demands, claims, actions, losses and damage of whatever nature caused in relation to that Finance Party’s (i) malfunctions, failures or unavailability of any hardware, software or equipment, (ii) damage arising from any event beyond that Finance Party’s control, (iii) damage arising from the sending of fraudulent Electronic Signatures and (iv) damage caused by the misplacement or loss, however caused, of any electronically signed Finance Documents sent to a Finance Party by email, unless such demands, claims, actions, losses and damage resulted from the gross negligence and wilful misconduct of that Finance Party; and

each Finance Party waives any claim which it may have or may acquire against any Obligor and indemnifies each of the Obligors against any loss, claim, liability, damages, penalties, actions, judgments, rulings, interest, costs, expenses or disbursements, which could be lodged by a Finance Party or any third party, as a result of an Obligor receiving and acting upon the Finance Documents which were signed by Electronic Signature, if such loss, claim or damage resulted from the gross negligence or wilful misconduct of a Finance Party or from the sending of fraudulent Electronic Signatures by a Finance Party.

Indemnity to the Facility Agent

investigating any event which it reasonably believes is a Default;

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

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

MITIGATION BY THE LENDERS

Mitigation

Each Finance Party shall, in consultation with the Parent, 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) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.

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

Limitation of liability

The Parent shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).

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), to do so might be prejudicial to it.

COSTS AND EXPENSES

Transaction expenses

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

any other Finance Documents executed after the Signature Date,

Amendment costs

Enforcement costs

GUARANTEE AND INDEMNITY

Guarantee and indemnity

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

undertakes with each Finance Party that whenever a Borrower or the Parent 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

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 (and shall make the relevant payment within 5 (five) Business Days of demand) against any cost, loss or liability it incurs as a result of a Borrower or the Parent 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 if the amount claimed had been recoverable on the basis of a guarantee.

Continuing guarantee

Reinstatement

Waiver of defences

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

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;

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

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;

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;

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

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

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

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.

Immediate recourse

Appropriations

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor’s liability under this Clause 17.

Deferral of Guarantors’ rights

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 17:

to be indemnified by an Obligor;

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

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);

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

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

If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 28 (Payment Mechanics).

Release of Guarantors’ right of contribution

that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

Additional security

REPRESENTATIONS

Status

It is a limited liability company, duly incorporated and validly existing under the law of its jurisdiction of incorporation.

It has the power to own its assets and carry on its business as it is being conducted or is contemplated to be conducted.

Power and authority

Binding obligations

Non-conflict with other obligations

any applicable law of its jurisdiction of incorporation;

its Constitutional Documents; or

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

Validity and admissibility in evidence

to enable it lawfully to enter into, exercise its rights and comply with its obligations under the Finance Documents to which it is a party and to ensure that the obligations expressed to be assumed by it thereunder are legal, valid, binding and enforceable; and

to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,

Governing law and enforcement

the choice of governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation;

its:

submission under this Agreement to the jurisdiction of the Gauteng ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇; and

agreement not to claim any immunity to which it or its assets may be entitled,

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

Deduction of Tax

No filing or stamp taxes

BVI Tax and Licencing

No Obligor incorporated under the laws of the British Virgin Islands or any of their Subsidiaries owns any interest in any land in the British Virgin Islands.

No Obligor incorporated under the laws of the British Virgin Islands is carrying on any business or carrying on any other activity in or from within the British Virgin Islands requiring a licence, approval or authorisation, including without limitation under the Business, Professions and Trade Licenses ▇▇▇ ▇▇▇▇.

No default

No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.

It is not, nor is it likely to be as a result of entering into and performing its obligations under the Finance Documents, in violation of any law or in breach of or in default under any agreement to which it is a party or which is binding on it or any of its assets to an extent or in a manner which could reasonably be expected to have a Material Adverse Effect.

No misleading information

All written factual information supplied by it to the Finance Parties and the Facility Agent in connection with the Finance Documents, (excluding any equity analysts reports and the reports from the credit rating agencies) (the Information) was true and accurate in all material respects as at the date it was given or as at the date (if any) at which it was stated and was not misleading in any material respect at such date.

The financial projections and forecasts contained in the Information have been prepared in good faith on the basis of recent historical information and on the basis of reasonable assumptions.

It has not knowingly withheld any information which, if disclosed, could reasonably be expected materially and adversely to affect the decision of the Finance Parties in considering whether or not to provide finance to each Borrower.

Financial statements

The Original Financial Statements were prepared in accordance with GAAP.

The Original Financial Statements fairly present the Group’s financial condition and its results of operations during the relevant financial year.

Pari passu ranking

No proceedings pending or threatened

No winding-up

No encumbrances

No Encumbrance exists over all or any of the assets of any Material Group Company except for Permitted Encumbrances.

No Encumbrance would arise as a result of the execution of and performance of its rights and obligations under the Finance Documents.

Assets

Insurance

Environmental Compliance

Environmental Claims

Taxation

It and each Material Group Company has duly and punctually paid and discharged all Taxes imposed upon it or its assets within the time period allowed without incurring penalties except to the extent that:

payment is being contested in good faith, it has maintained adequate reserves for those Taxes and payment can be lawfully withheld; or

the aggregate amount of Taxes being withheld does not exceed US$30,000,000 (Thirty Million Dollars) (or its equivalent).

It is not and no Material Group Company is materially overdue in the filing of any Tax returns.

Ownership of Material Group Companies

Each existing Material Group Company on the Signature Date (other than the Cerro Corona Subsidiary, Newshelf, the Ghanaian Companies and the Original Borrowers) is a wholly-owned Subsidiary of the Parent and any member of the Group which becomes a Material Group Company after the Signature Date will be a wholly or partially owned Subsidiary of the Parent and the members of the Group holding the shares in such Material Group Company have not reduced their shareholding in such Subsidiary below the level of their shareholding at the time such Subsidiary became a Material Group Company.

The Parent holds at least 74% of the issued share capital of Newshelf.

Newshelf holds at least 74% of the issued share capital of each of the Original Borrowers.

The Parent indirectly holds at least 90% of the issued share capital of each Ghanaian Company.

The Parent indirectly holds at least 99% of the common shares in the share capital of the Cerro Corona Subsidiary (which equates to 98.5% of the issued and outstanding shares in the share capital of the Cerro Corona Subsidiary).

No Material Adverse Effect

Sanctions

Neither the Parent nor any Subsidiary of the Parent, nor any director or officer of the Parent or any Subsidiary of the Parent, nor to the best of the Parent’s knowledge and belief, any employee, agent, affiliate or representative of the Parent or any Subsidiary is an individual or entity currently the subject or target of any Sanctions (in place as at the Signature Date) nor is the Parent or any Subsidiary of the Parent located, organised, resident or operating in any Sanctioned Country (designated as such as at the Signature Date).

For the past 5 (five) years, neither the Parent nor any Subsidiary has knowingly engaged in, nor is now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.

Anti-corruption

Times when representation made

All the representations and warranties in this Clause 18 are made by each Obligor on the Signature Date and, in the case of each Additional Obligor, on the date of accession of such Additional Obligor (by reference to the facts and circumstances then existing) (other than the representations in Clause 18.11.1 of Clause 18.11 (No misleading information) which are deemed to be made on the date the Information is provided by the relevant Obligor.

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

the CP Satisfaction Date;

the date of each Utilisation Request;

on each Utilisation Date; and

on the first day of each Interest Period,

INFORMATION UNDERTAKINGS

Financial statements

as soon as the same become available, but in any event within one hundred and 120 (one hundred and twenty) days after the end of each of its Financial Years the audited consolidated financial statements of the Parent for that Financial Year;

as soon as the same become available, but in any event within 150 (one hundred and fifty) days after the end of each of its Financial Years:

the audited financial statements of each Obligor (other than GF Holdings, GF Orogen and GF Ghana unless there is a legal requirement to audit its financial statements and any other Obligor which is not legally required to audit its financial statements) for that Financial Year; and

if the audited financial statements of GF Holdings, GF Orogen and/or GF Ghana and/or any other Obligor which is not legally required to audit its financial statements (as the case may be) are not delivered under Clause 19.1.2.1 above, the unaudited financial statements of GF Holdings, GF Orogen and/or GF Ghana and/or any other Obligor which is not legally required to audit its financial statements (as the case may be) for that Financial Year;

as soon as the same become available, but in any event within 60 (sixty) days after the first 6 (six) Months of each of its Financial Years:

the unaudited financial statements of each Obligor for the first 6 (six) Month period of that Financial Year; and

the unaudited consolidated financial statements of the Parent for the first 6 (six) Month period of that Financial Year.

Compliance Certificate

The Parent shall supply to the Facility Agent, with each set of consolidated financial statements delivered pursuant to Clauses 19.1.1 and 19.1.3 of Clause 19.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) as at the date as at which those financial statements were drawn up.

Each Compliance Certificate shall be signed by 2 (two) directors or executive officers of the Parent and, if required to be delivered with the audited consolidated financial statements delivered pursuant to Clause 19.1.1 of Clause 19.1 (Financial statements), reported on by the Auditors.

Requirements as to financial statements

Each set of financial statements delivered by the Parent pursuant to Clause 19.1 (Financial statements) shall be certified by a director of the relevant company as fairly presenting its financial condition as at the date as at which those financial statements were drawn up.

Subject to Clause 19.3.3 below, the Parent shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared in accordance with GAAP, the requirements of its jurisdiction of incorporation and accounting practices and financial reference periods, in each case consistent with those applied in the preparation of the Original Financial Statements, unless the Parent notifies the Facility Agent that in relation to any sets of financial statements, there has been a change in GAAP or the accounting practices or reference periods and its Auditors (in the case of its annual audited financial statements) or the Parent (in the case of any of its other financial statements) delivers to the Facility Agent:

a description of any change necessary for those financial statements to reflect GAAP, accounting practices and reference periods upon which the Original Financial Statements were prepared; and

sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Facility Agent to determine whether Clause 20 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.

There shall be no requirement for the Parent to notify the Facility Agent pursuant to Clause 19.3.2 above that there has been a change in GAAP as a result of the implementation of IFRS 16 since the date of the Original Financial Statements nor to provide any of the items referred to in Clauses 19.3.2.1 or 19.3.2.2 above in relation to the implementation of IFRS 16 and each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) shall, subject to Clause 19.4 (IFRS 16 treatment), be prepared taking into account the implementation of IFRS 16.

If the Parent notifies the Facility Agent of a change in accordance with Clause 19.3.2 above, then the Parent and the Facility Agent shall enter into negotiations in good faith with a view to agreeing:

whether or not the change might result in material alteration in the commercial effect of any of the terms of this Agreement or any other Finance Document; and

if so, any amendments to this Agreement or any other Finance Document which may be necessary to ensure that the change does not result in any material alteration in the commercial effect of those terms, and if any amendments are agreed they shall take effect and be binding on each of the Parties in accordance with their terms.

Any reference in the Finance Documents to financial statements shall be construed as a reference to those financial statements as the same may be adjusted under this Clause 19.3 to reflect the basis upon which the Original Financial Statements were prepared.

IFRS 16 treatment

The Parent may, at any time, deliver to the Facility Agent a notice (the IFRS 16 Notice) stating:

that it wishes to amend this Agreement and/or any other Finance Document in order to ensure compliance with any financial covenant; basket; de-minimis amount; threshold; calculation; and/or other requirement, representation or undertaking in connection with the adoption of IFRS 16 or its application to the terms of this Agreement; and

the changes it wishes to make to this Agreement and/or any other Finance Document in connection therewith.

If the Parent delivers an IFRS 16 Notice in accordance with Clauses 19.4.1 above, then the Parent and the Facility Agent (acting on the instructions of the Majority Lenders) shall negotiate in good faith for a period of 20 (twenty) Business Days (commencing on the date falling 3 (three) Business Days after the date of the IFRS 16 Notice) or such other period as the Parent and the Agent may agree (the IFRS 16 Negotiation Period) with a view to agreeing any amendments to this Agreement or any other Finance Document in connection with the adoption of IFRS 16 or its application to the terms of this Agreement.

If, pursuant to Clause19.4.2 above, amendments to this Agreement and/or the Finance Documents are agreed by the Parent and the Facility Agent (acting on the instructions of the Majority Lenders) by the end of the IFRS 16 Negotiation Period, the Parent and the Facility Agent shall, as soon as reasonably practicable, execute all necessary documentation in order to implement such changes and such changes shall take effect and be binding on each of the Parties in accordance with their terms.

Access to records

Information: miscellaneous

if the Facility Agent so requests, all documents dispatched by that Obligor to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;

the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group which, if adversely determined against it, would be reasonably likely to have a Material Adverse Effect; and

promptly, such further information regarding the financial condition, business and operations of any Material Group Company as any Finance Party (through the Facility Agent) may reasonably request.

Notification of default

Each Obligor shall notify the Facility Agent, of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).

Promptly upon a request by the Facility Agent, each Borrower shall supply to the Facility Agent, a certificate signed by 2 (two) of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing specifying the Default and the steps, if any, being taken to remedy it).

Use of websites

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

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

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

the information is in a format previously agreed between the Parent and the Facility Agent.

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

The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Parent and the Agent.

The Parent shall promptly upon becoming aware of its occurrence notify the Facility Agent if:

the Designated Website cannot be accessed due to technical failure;

the password specifications for the Designated Website change;

any new information which is required to be provided under the Finance Documents is posted onto the Designated Website;

any existing information which has been provided under the Finance Documents and posted onto the Designated Website is amended; or

the Parent becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.

If the Parent notifies the Facility Agent under Clauses 19.8.4.1 or 19.8.4.5 above, all information to be provided by the Parent under the Finance Documents after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

Any Website Lender may request, through the Facility Agent, 1 (one) paper copy of any information required to be provided under the Finance Documents which is posted onto the Designated Website. The Parent shall comply with any such request within 10 (ten) Business Days.

Know your customer checks

If:

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

any change in the status of an Obligor or of a Holding Company of an Obligor or the composition of the shareholders of an Obligor after the Signature Date; or

a proposed transfer by a Lender of any of its rights and obligations under the Finance Documents to a party that is not a Lender prior to such transfer,

Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

The Parent shall, by not less than 10 (ten) Business Days’ prior written notice to the Facility Agent, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to the terms of the Finance Documents.

Following the giving of any notice pursuant to Clause 19.9.3 above, if the accession of such Additional Obligor obliges the Facility Agent or any Lender to comply with know your customer or similar identification procedures in circumstances where the necessary information is not readily available to it, the Parent shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective Lender) in order for the Facility Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to the Finance Documents as an Additional Obligor.

FINANCIAL COVENANTS

Financial definitions:

In this Clause 20:

Consolidated EBITDA means, in respect of any Measurement Period, the consolidated net income of the Group (less the net income of any Project Finance Subsidiaries but including any dividends received in cash by any member of the Group (other than a Project Finance Subsidiary) from a Project Finance Subsidiary), before, without duplication and all as calculated in accordance with GAAP, the requirements of its jurisdiction of incorporation and accounting practices and financial reference periods, in each case consistent with those applied in preparation of the applicable financial statements delivered pursuant to Clause 19.1 (Financial statements):

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

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

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

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

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

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

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

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

any share-based payments;

any other extraordinary or exceptional items; and

any other material non-cash gain or loss that needs to be accounted for under GAAP, the requirements of its jurisdiction of incorporation and accounting practices and financial reference periods, in each case consistent with those applied in preparation of the applicable financial statements delivered pursuant to Clause 19.1 (Financial statements).