EXHIBIT 4.18 EXECUTION COPY
GFI-SA LOAN AGREEMENT
Amongst
LEXSHELL 579 INVESTMENTS (PROPRIETARY) LIMITED
(WHICH IS TO BE RENAMED "MVELAPHANDA GOLD (PROPRIETARY)
LIMITED" OR SUCH OTHER NAME SELECTED THAT IS ACCEPTABLE TO THE
REGISTRAR OF COMPANIES)
FIRSTRAND BANK LIMITED
(ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)
GFI MINING SOUTH AFRICA LIMITED
(WHICH IS TO BE CONVERTED TO A PRIVATE COMPANY)
GOLD FIELDS LIMITED
GOLD FIELDS AUSTRALIA PTY LIMITED
and
GOLD FIELDS GUERNSEY LIMITED
[DENEYS REITZ LOGO]
TABLE OF CONTENTS
1. PARTIES........................................................................................... 1
2. DEFINITIONS AND INTERPRETATION.................................................................... 1
2.1 GENERAL DEFINITIONS............................................................................... 1
2.2 FINANCIAL DEFINITIONS............................................................................. 23
2.3 INTERPRETATION AND CONSTRUCTION................................................................... 26
3. INTRODUCTION...................................................................................... 32
4. CONDITIONS........................................................................................ 32
4.1 INITIAL CONDITIONS PRECEDENT...................................................................... 32
4.3 FURTHER CONDITIONS TO ADVANCE OF LOAN AMOUNTS..................................................... 33
4.4 WAIVER OF CONDITIONS PRECEDENT.................................................................... 33
4.5 TERMINATION....................................................................................... 33
5. PURPOSE........................................................................................... 33
5.1 PURPOSE........................................................................................... 33
5.2 MONITORING........................................................................................ 34
6. ARRANGEMENTS BETWEEN THE FINANCE PARTIES.......................................................... 34
6.1 ACKNOWLEDGEMENT OF TERMS OF THE INTERCREDITOR AGREEMENT........................................... 34
6.2 INSTRUCTIONS TO SENIOR AGENT...................................................................... 34
6.3 AMENDMENTS TO THE INTERCREDITOR AGREEMENT AND SUBSTITUTION OF SENIOR AGENT........................ 34
6.4 GFL AS AGENT FOR THE GUARANTORS................................................................... 34
7. LOAN.............................................................................................. 35
8. REPAYMENT......................................................................................... 35
9. INTEREST.......................................................................................... 35
10. GUARANTEE......................................................................................... 35
10.1 GUARANTEE......................................................................................... 35
10.2 TERM OF GUARANTEE................................................................................. 36
10.3 SPECIAL PROVISIONS................................................................................ 36
11. SUBORDINATION..................................................................................... 38
12. PREPAYMENTS....................................................................................... 39
13. INDEMNITY TO THE SENIOR AGENT..................................................................... 40
14. DEFAULT INTEREST.................................................................................. 41
15. COSTS, FEES AND EXPENSES.......................................................................... 41
15.1 STRUCTURING FEE................................................................................... 41
15.2 TRANSACTION EXPENSES.............................................................................. 41
15.3 AMENDMENT COSTS................................................................................... 42
15.4 ENFORCEMENT COSTS................................................................................. 42
15.5 VALUE ADDED TAX................................................................................... 42
16. REPRESENTATIONS AND WARRANTIES.................................................................... 42
16.1 REPRESENTATIONS AND WARRANTIES.................................................................... 43
16.1.1 STATUS............................................................................................ 43
16.1.2 POWER AND AUTHORITY............................................................................... 43
16.1.3 BINDING OBLIGATIONS............................................................................... 43
16.1.4 NON-CONFLICT WITH OTHER OBLIGATIONS............................................................... 43
16.1.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE............................................................ 43
16.1.6 NO DEFAULT........................................................................................ 44
16.1.7 NO MISLEADING INFORMATION......................................................................... 44
16.1.8 FINANCIAL STATEMENTS.............................................................................. 44
16.1.9 PARI PASSU RANKING................................................................................ 45
16.1.10 NO PROCEEDINGS PENDING OR THREATENED.............................................................. 45
16.1.11 NO WINDING-UP..................................................................................... 45
16.1.12 NO ENCUMBRANCES................................................................................... 45
16.1.13 ASSETS............................................................................................ 46
16.1.14 INSURANCE......................................................................................... 46
16.1.15 ENVIRONMENTAL COMPLIANCE.......................................................................... 46
16.1.16 ENVIRONMENTAL CLAIMS.............................................................................. 46
16.1.17 TAXATION.......................................................................................... 46
16.1.18 OWNERSHIP OF GFI-SA............................................................................... 47
16.1.19 NO MATERIAL ADVERSE EFFECT........................................................................ 47
16.2 REPETITION........................................................................................ 47
16.3 RELIANCE.......................................................................................... 48
17. INFORMATION UNDERTAKINGS.......................................................................... 48
17.1 FINANCIAL STATEMENTS.............................................................................. 48
17.2 COMPLIANCE CERTIFICATE............................................................................ 49
17.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS........................................................... 49
17.4 ACCESS TO RECORDS................................................................................. 51
17.5 INFORMATION : MISCELLANEOUS....................................................................... 51
17.6 NOTIFICATION OF DEFAULT........................................................................... 51
18. FINANCIAL COVENANTS............................................................................... 52
18.1 FINANCIAL CONDITION............................................................................... 52
18.2 FINANCIAL TESTING................................................................................. 52
18.3 BREACH OF A FINANCIAL CONDITION UNDERTAKING....................................................... 52
19. GENERAL UNDERTAKINGS.............................................................................. 53
19.1 AUTHORISATION..................................................................................... 53
19.2 COMPLIANCE WITH LAWS.............................................................................. 53
19.3 NEGATIVE PLEDGE................................................................................... 53
19.4 DISPOSALS AND MERGERS............................................................................. 54
19.5 CHANGE OF BUSINESS................................................................................ 55
19.6 INSURANCE......................................................................................... 55
19.7 ENVIRONMENTAL COMPLIANCE.......................................................................... 55
19.8 ENVIRONMENTAL CLAIMS.............................................................................. 56
19.9 TAXATION.......................................................................................... 56
19.10 MAINTENANCE OF LEGAL STATUS....................................................................... 56
19.11 CLAIMS PARI PASSU................................................................................. 56
20. DEFAULT........................................................................................... 57
20.1 EVENTS OF DEFAULT................................................................................. 57
20.1.1 NON-PAYMENT....................................................................................... 57
20.1.2 FINANCIAL COVENANTS............................................................................... 57
20.1.3 OTHER OBLIGATIONS................................................................................. 57
20.1.4 MISREPRESENTATION................................................................................. 58
20.1.5 CROSS-DEFAULT..................................................................................... 58
20.1.6 INSOLVENCY........................................................................................ 59
20.1.7 INSOLVENCY PROCEEDINGS............................................................................ 59
20.1.8 FAILURE TO COMPLY WITH FINAL JUDGEMENT............................................................ 60
20.1.9 CREDITORS' PROCESS................................................................................ 60
20.1.10 UNLAWFULNESS...................................................................................... 60
20.1.11 REPUDIATION AND UNENFORCEABILITY.................................................................. 61
20.1.12 GOVERNMENTAL INTERVENTION......................................................................... 61
20.1.13 BREACH OF TRANSACTION DOCUMENTS................................................................... 61
20.1.14 MATERIAL ADVERSE EFFECT........................................................................... 62
20.1.15 CESSATION OF BUSINESS............................................................................. 62
20.1.16 LITIGATION........................................................................................ 62
20.1.17 CHANGE IN CONTROL................................................................................. 62
20.1.18 OWNERSHIP OF GFI-SA............................................................................... 62
20.2 ACCELERATION...................................................................................... 62
20.3 REMEDY............................................................................................ 64
21. DISCLOSURE OF INFORMATION BY TRANSACTION AGENT AND EXCLUSION OF TRANSACTION AGENT'S LIABILITY..... 64
22. CESSION, DELEGATION AND ASSIGNMENT................................................................ 66
22.1 NO CESSION, DELEGATION OR ASSIGNMENT.............................................................. 66
22.2 SPLITTING OF CLAIMS............................................................................... 66
23. PAYMENT MECHANICS................................................................................. 67
23.1 PAYMENTS.......................................................................................... 67
23.2 NO WITHHOLDING.................................................................................... 67
24. CHANGE IN CIRCUMSTANCES, INCREASED COSTS OR ILLEGALITY............................................ 67
25. CONFIDENTIALITY................................................................................... 68
26. MISCELLANEOUS..................................................................................... 70
26.1 RENUNCIATION OF BENEFITS.......................................................................... 70
26.2 ACCOUNTS AND CERTIFICATES......................................................................... 70
26.3 SOLE AGREEMENT.................................................................................... 70
26.4 NO IMPLIED TERMS.................................................................................. 70
26.5 NO VARIATION...................................................................................... 70
26.5.2 EXTENSIONS AND WAIVERS............................................................................ 71
26.7 FURTHER ASSURANCES................................................................................ 71
26.8 WAIVER OF DEFENCES................................................................................ 71
26.9 INDEPENDENT ADVICE................................................................................ 73
26.10 COUNTERPARTS...................................................................................... 73
26.11 WAIVER OF IMMUNITY................................................................................ 73
27. NOTICES AND DOMICILIA............................................................................. 73
28. GOVERNING LAW..................................................................................... 75
29. JURISDICTION...................................................................................... 75
30. SEVERABILITY...................................................................................... 75
31. STIPULATIONS FOR THE BENEFIT OF TRANSACTION PARTICIPANTS.......................................... 76
SCHEDULE 1 : PART 1 : FINANCIAL CLOSE DOCUMENTS.............................................................. 79
SCHEDULE 1 : PART 2 : FORM OF FORMALITIES CERTIFICATE........................................................ 85
SCHEDULE 2 : PART 1 : ACCEPTANCE OF BENEFITS................................................................. 88
SCHEDULE 2 : PART 2 : FORM OF ACCESSION DEED................................................................. 90
SCHEDULE 3 : FORM OF COMPLIANCE CERTIFICATE.................................................................. 92
SCHEDULE 4 : DISCLOSURE SCHEDULE............................................................................. 94
SCHEDULE 5 : FORM OF LOAN SUPPLEMENT......................................................................... 96
GFI-SA LOAN AGREEMENT
1. PARTIES
1.1 The Parties to this Agreement are:
1.1.1 LEXSHELL 579 INVESTMENTS (PROPRIETARY) LIMITED (WHICH IS TO
BE RENAMED "MVELAPHANDA GOLD (PROPRIETARY) LIMITED" OR SUCH
OTHER NAME SELECTED THAT IS ACCEPTABLE TO THE REGISTRAR OF
COMPANIES);
1.1.2 FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT
BANK DIVISION);
1.1.3 GFI MINING SOUTH AFRICA LIMITED (WHICH IS TO BE CONVERTED
TO A PRIVATE COMPANY)
1.1.4 GOLD FIELDS LIMITED;
1.1.5 GOLD FIELD AUSTRALIA PTY LIMITED; and
1.1.6 GOLD FIELDS GUERNSEY LIMITED.
1.2 The Parties agree as set out below.
2. DEFINITIONS AND INTERPRETATION
2.1 GENERAL DEFINITIONS
In this Agreement, unless the context dictates otherwise, the words
and expressions set forth below shall bear the following meanings
and cognate expressions shall bear corresponding meanings:
"ACCELERATION NOTICE" means a written notice delivered by the
Senior Agent to the GFL Obligors in accordance with clause 20.2
(Acceleration) requiring immediate payment of the amounts specified
in clause 20.2 (Acceleration);
"ACCEPTANCE OF BENEFITS" means, in relation to any Senior Lender,
an acceptance of benefits in the form set out in Part 1 of Schedule
2 (Form of Acceptance of Benefits);
Page 2.
"ACCESSION DEED" means, in relation to any person designated as an
Additional Guarantor, an accession deed in the form set out in Part
2 of Schedule 2 (Form of Accession Deed);
"ACCOUNT BANK" means RMB or such other party replacing RMB as
Account Bank in accordance with the provisions of the Intercreditor
Agreement;
"ACCOUNT BANK AGREEMENT" means the written agreement entitled
"Account Bank Agreement" to be concluded amongst the Account Bank,
Mvela Gold, the Senior Lenders, Mezz SPV and GFI-SA;
"ADDITIONAL GUARANTOR" means any person designated as a Guarantor
from time to time by GFL and having executed and delivered an
Accession Deed to the Senior Agent;
"ADVANCE DATE" means the 1st (first) Business Day after the
Settlement Date;
"AGREEMENT" means this GFI-SA Loan Agreement and its Schedules;
"AUDITORS" means, at any time, the auditors of GFI-SA at that time,
being as at the Signature Date PricewaterhouseCoopers Inc. and any
replacement for those auditors appointed by GFI-SA;
"AUTHORISED SIGNATORY" means a person or persons duly authorised to
bind a GFL Obligor in terms of the Finance Documents and in respect
of whom GFI-SA shall have delivered to the Senior Agent certified
specimens of such person's or persons' signature(s) together with
evidence reasonably satisfactory to the Senior Agent that such
person is duly authorised to bind such GFL Obligor;
"BARCLAYS" means Barclays Bank PLC South Africa branch, an external
company with registration number 1988/005292/10, registered under
the Banks Act, No. 94 of 1990 as a foreign branch of Barclays Bank
PLC, incorporated in the United Kingdom;
"BEATRIX" means Beatrix Mining Ventures Limited (Registration No.
1946/020743/06), a public company duly incorporated according to
the company laws of South Africa;
"BUSINESS DAY" means any day (other than a Saturday, Sunday or an
official public holiday in South Africa within the meaning of the
Public Holidays Act,
Page 3.
No. 36 of 1994) on which banks generally are open for business in
Johannesburg;
"COLLECTION ACCOUNT" means a bank account in the name of Mvela Gold
opened with the Account Bank into which GFI-SA and, if applicable,
each Guarantor shall pay:
(a) all interest payable by GFI-SA under this Agreement;
(b) the Loan Amount on its due date for repayment; and
(c) any other amounts payable by GFI-SA to Mvela Gold under
this Agreement;
"COMPANIES ACT" means the Companies Act, No. 61 of 1973;
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of the letter set out in Schedule 3 (Form of Compliance
Certificate);
"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 and articles of association, certificate of
incorporation, articles of incorporation or commercial registration
certificate);
"COVENANTS AGREEMENT" means the written agreement entitled
"Covenants Agreement" dated 26 November 2003 between Mvela
Resources, GFL, GFI-SA and Mvela Gold;
"CP SATISFACTION DATE" means the date on which the Senior Agent has
received all of the Financial Close Documents and other evidence
referred to in Part 1 of Schedule 1 in the agreed form or waived
delivery of any such Financial Close Documents or any such other
evidence pursuant to clause 4.4 (Waiver of Conditions Precedent)
and has delivered a written notice to that effect to GFI-SA, Mvela
Gold, the Original Senior Lenders and Mezz SPV;
"DEFAULT" means an Event of Default or any event or circumstances
specified in clause 20.1 (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 the
foregoing) be an Event of Default;
Page 4.
"DEFAULT DATE" means the date of delivery by the Senior Agent to
GFI-SA of an Acceleration Notice;
"DEFAULT RATE" means the greater of:
(a) the Interest Rate plus 1% (one percent); or
(b) the Repo Rate plus 1% (one percent); or
(c) JIBAR plus 2% (two percent);
"DISCHARGE DATE" means the date on which all the Liabilities have
been fully paid and discharged whether or not as a result of
enforcement;
"DRIEFONTEIN" means Driefontein Consolidated (Proprietary) Limited
(Registration No. 1993/002956/07), a private company duly
incorporated according to the company laws of South Africa;
"DURATION" means, in relation to, a Nominated Stock or the Future
Interest Payment Amounts, the weighted average maturity of the
future cash flows inherent in that Nominated Stock or the Future
Interest Payment Amounts where the maturity for such cash flow is
the period from the Default Date or Early Settlement Date (as
defined in clause 12.4), as the case may be, to the date of such
cash flow and the weight used for such cash flow is the present
value of the cash flow calculated at the Termination Rate;
"ENCUMBRANCE" means:
(a) any mortgage, pledge, lien, assignment or cession
conferring security, hypothecation, a security interest,
preferential right or trust arrangement or other
encumbrance securing any obligation of any person; or
(b) any arrangement under which money or claims to, or for the
benefit of, a bank or other account may be applied, set off
or made subject to a combination of accounts so as to
effect discharge of any sum owed or payable to any person;
or
(c) any other type of preferential agreement or arrangement
(including any title transfer and retention arrangement),
the effect of which is the creation of a security interest;
Page 5.
"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 GFL Group Company at the relevant time in
any jurisdiction in which that Material GFL 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 and including, without limitation,
the National Environmental Management Act, No. 107 of 1998 and the
National Water Act, No. 36 of 1998;
"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 GFL Group
Company conducted on or from the properties owned or used by that
Material GFL Group Company;
"EVENT OF DEFAULT" means any event or circumstance specified as
such in clause 20.1 (Events of Default);
"FINAL REPAYMENT DATE" means:
(a) the 5th (fifth) anniversary of the Advance Date; or
(b) such earlier date as the Loan Amount is repayable in terms
of the provisions of this Agreement;
"FINANCE DOCUMENTS" means:
(a) this Agreement;
(b) the Loan Supplement;
(c) any other agreement or document at any time designated a
Finance Document by written agreement between the Senior
Agent, Mvela Gold and the GFL Obligors; and
(d) any amendment agreement to any of the Finance Documents
referred to in (a) to (c) above,
and "FINANCE DOCUMENT" means, as the context requires, any of them;
Page 6.
"FINANCIAL CLOSE DOCUMENTS" means all of the documents and other
evidence listed in Part 1 of Schedule 1 (Financial Close
Documents);
"FUTURE INTEREST PAYMENT AMOUNT" means at any time any Interest
Payment Amount hereunder which has not yet fallen due for payment
at that time;
"GFA" means Gold Fields Australia Pty Limited (Registration No.
ABN: 91 098 385 285), a company incorporated according to the laws
of Australia;
"GFG" means Gold Fields Guernsey Limited (Registration No. 24457),
a company incorporated according to the laws of Guernsey;
"GFI-SA" means GFI Mining South Africa Limited (Registration No.
2002/031431/06), a public company duly incorporated according to
the company laws of South Africa which is to be converted to a
private company;
"GFL" means Gold Fields Limited (Registration No. 1968/004880/06),
a public company duly incorporated according to the company laws of
South Africa;
"GFL GROUP" means GFL and its subsidiaries from time to time;
"GFLM PREFERENCE SHARE SUBSCRIPTION AGREEMENT" means the written
agreement entitled "Preference Share Subscription Agreement" to be
concluded between inter alia GFLMS, GFL and Mezz SPV and pursuant
to which GFLMS is to subscribe for preference shares in Mezz SPV
for a total consideration of ZAR200 000 000 (Two Hundred Million
Rand);
"GFLMS" means GFL Mining Services Limited (Registration No.
1997/019961/06), a public company duly incorporated according to
the company laws of South Africa;
"GFL OBLIGOR" means:
(a) GFI-SA; and
(b) any Guarantor;
and "GFL OBLIGORS" means, as the context requires, all of them;
Page 7.
"GUARANTEED OBLIGATIONS" means any and all sums, moneys,
indebtedness, liabilities and obligations (whether now existing or
hereafter arising, whether or not for the payment of money) which
are from time to time due, owing, payable or incurred or expressed
to be due, owing, payable or incurred (whether scheduled, at
maturity, by acceleration, upon one or more dates set for
prepayment or otherwise) from or by GFI-SA under or arising from or
in connection with this Agreement, including the obligation to pay
fees, expenses, post-default interest, the present value of Future
Interest Payment Amounts, the Loan Amount and indemnity payments;
"GUARANTORS" means:
(a) GFL;
(b) GFA;
(c) GFG; and
(d) any Additional Guarantor,
and "GUARANTOR" means, as the context requires, any one of them;
"IFRS" means International Financial Reporting Standards;
"IAS 39" means International Financial Reporting Standard 39,
Financial Instruments: Recognition and Measurement;
"IDC" means Industrial Development Corporation of South Africa
Limited (Registration No. 1940/015201/06), a corporation duly
incorporated according to the Industrial Development Act, No. 22 of
1944 (as amended);
"IDC PREFERENCE SHARE SUBSCRIPTION AGREEMENT" means the written
agreement entitled "Preference Share Subscription Agreement" to be
concluded between the IDC and Mezz SPV and pursuant to which the
IDC is to subscribe for preference shares in Mezz SPV for a total
consideration of ZAR300 000 000 (Three Hundred Million Rand);
"IFC" means International Finance Corporation, an international
organisation established by Articles of Agreement amongst its
member countries including South Africa;
Page 8.
"IFC LOAN AGREEMENT" means the written agreement entitled "Loan
Agreement" to be concluded between the IFC and Mezz SPV and
pursuant to which the IFC is to loan and advance to Mezz SPV the
Rand equivalent on the Settlement Date of US$28 000 000
(Twenty-eight Million United States Dollars) but not more than
ZAR200 000 000 (Two Hundred Million Rand);
"INDWA" means iNdwa Investments Limited (Registration No.
2002/013434/06), a public company duly incorporated according to
the company laws of South Africa;
"INSURANCES" means all contracts and policies of insurance and
re-insurance of any kind which are effected and maintained by or on
behalf of GFI-SA as required under clause 16.1.14 (Insurance);
"INTER-MEZZANINE INVESTORS AGREEMENT" means the written agreement
to be concluded amongst inter alia the Mezzanine Investors setting
out the terms and conditions which are to apply as amongst the
Mezzanine Investors as financiers of Mezz SPV;
"INTERCREDITOR AGREEMENT" means the written agreement entitled
"Intercreditor Agreement" to be concluded amongst the Senior
Lenders, Mvela Gold, Mezz SPV, the Mezz SPV Agent and the Senior
Agent;
"INTEREST PAYMENT AMOUNTS" means in relation to any Interest
Payment Date, the amount of interest payable on that Interest
Payment Date as stipulated in Annexure "A" to the Loan Supplement;
"INTEREST PAYMENT DATES" means the dates upon which interest shall
be payable as specified in Annexure "A" to the Loan Supplement and
"INTEREST PAYMENT DATE" means, as the context requires, any one of
them;
"INTEREST RATE" means the interest rate for the Term as specified
in the Loan Supplement;
"JIBAR" means the 3 (three) month Johannesburg Inter-Bank Agreed
Rate as quoted by the South African Futures Exchange from time to
time and which appears on the Reuters SAFEY Page expressed as a
percentage and converted to a nominal annual compounded monthly in
arrear rate;
"JP MORGAN" means J.P. Morgan Securities South Africa (Proprietary)
Limited (Registration No. 1996/015112/07), a private company duly
incorporated according to the company laws of South Africa;
Page 9.
"JP MORGAN PREFERENCE SHARE SUBSCRIPTION AGREEMENT" means the
written agreement entitled "Preference Share Subscription
Agreement" to be concluded between JP Morgan and Mezz SPV and
pursuant to which JP Morgan is to subscribe for preference shares
in Mezz SPV for a total consideration of ZAR50 000 000 (Fifty
Million Rand);
"KLOOF" means Kloof Gold Mining Company Limited (Registration No.
1964/004462/06), a public company duly incorporated according to
the company laws of South Africa;
"LEGAL ADVISER" means Deneys Reitz Inc. acting on behalf of the
Original Senior Lenders or such other replacement legal adviser as
the Senior Agent may nominate in writing;
"LIABILITIES" means all present and future liabilities and
obligations at any time of a GFL Obligor to Mvela Gold under the
Finance Documents, both actual and contingent and whether incurred
solely or jointly or in any other capacity;
"LOAN" means the loan made or to be made under this Agreement or
(as the context may require) the principal amount outstanding for
the time being of that loan;
"LOAN AMOUNT" means the principal sum of ZAR4 139 000 000 (Four
Billion One Hundred and Thirty-nine Million Rand);
"LOAN SUPPLEMENT" means the loan supplement to be entered into
between Mvela Gold, the Senior Agent and GFI-SA recording the
Interest Rate, the Interest Payment Dates and the Interest Payment
Amounts substantially in the form annexed hereto as Schedule 5
(Form of Loan Supplement).;
"MAJORITY SENIOR LENDERS" means "Majority Senior Lenders" as
defined in the Intercreditor Agreement;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the ability of a GFL Obligor to perform its financial or
other material obligations under the Finance Documents to
which it is a party; or
(b) the validity or enforceability of the Finance Documents or
any of them;
Page 10.
"MATERIAL GFL GROUP COMPANY" means:
(a) the GFL Obligors; and
(b) any member of the GFL Group from time to time that is not a
Non-Material GFL Group Company,
and "MATERIAL GFL GROUP COMPANIES" means, as the context requires,
all of them;
"MEZZ SPV" means Micawber 325 (Proprietary) Limited (Registration
No. 2002/016188/07), a private company duly incorporated according
to the company laws of South Africa;
"MEZZ SPV AGENT" means RMB acting as agent for Mezz SPV under the
Mezz SPV Loan Agreement in accordance with the terms of the Mezz
SPV Loan Agreement and the Inter-Mezzanine Investors Agreement or
any replacement Mezz SPV Agent appointed pursuant to the terms of
the Inter-Mezzanine Investors Agreement;
"MEZZ SPV CESSION IN SECURITY" means the written agreement entitled
"Mezz SPV Cession in Security" to be concluded between Mvela Gold
and Mezz SPV and pursuant to which Mvela Gold is to cede in
securitatem debiti all of its right, title and interest in and to
the Subscription and Share Exchange Agreement to and in favour of
Mezz SPV as security for its obligations under the Mezz SPV Loan
Agreement;
"MEZZ SPV LOAN AGREEMENT" means the written agreement entitled
"Mezz SPV Loan Agreement" to be concluded between Mezz SPV, Mvela
Gold and the Mezz SPV Agent and pursuant to which Mezz SPV is to
loan and advance an amount of ZAR1 100 000 000 (One Billion One
Hundred Million Rand) to Mvela Gold;
"MEZZ SPV REVERSIONARY CESSION IN SECURITY" means the written
agreement entitled "Mezz SPV Reversionary Cession in Security" to
be concluded between Mvela Gold and the Mezz SPV and pursuant to
which Mvela Gold is to cede in securitatem debiti all of its
reversionary right, title and interest in and to the claims it has
for the repayment of the Loan Amount under this Agreement and the
Collection Account to and in favour of Mezz SPV as security for its
obligation s under the Mezz SPV Loan Agreement;
"MEZZANINE INVESTORS" means:
Page 11.
(a) PIC;
(b) IFC;
(c) GFLMS;
(d) IDC;
(e) JP Morgan; and
(f) RMB,
and "MEZZANINE INVESTOR" means, as the context requires, any one of
them;
"MHL" means Mvelaphanda Holdings (Proprietary) Limited
(Registration No. 1997/021524/07), a private company duly
incorporated according to the company laws of South Africa;
"MVELA GOLD" means Lexshell 579 Investments (Proprietary) Limited
(Registration No. 2003/013950/07), a private company duly
incorporated according to the company laws of South Africa, which
is to be renamed "Mvelaphanda Gold (Proprietary) Limited" or such
other name selected that is acceptable to the Registrar of
Companies;
"MVELA RESOURCES" means Mvelaphanda Resources Limited (Registration
No. 1980/001395/06), a public company duly incorporated according
to the company laws of South Africa;
"MVELA RESOURCES PLEDGE" means the written agreement entitled
"Cession and Pledge" to be concluded between Mvela Resources and
Mezz SPV and pursuant to which Mvela Resources is to provide a
cession and pledge in securitatem debiti of the shares held by it
in Mvela Gold as security for its obligations towards Mezz SPV
under the Sponsor Support, Guarantee and Retention Agreement;
"MVELA RESOURCES SUBSCRIPTION AGREEMENT" means the written
agreement entitled "Ordinary Share Subscription Agreement" to be
concluded between Mvela Resources and Mvela Gold and pursuant to
which Mvela Resources is to subscribe for equity in Mvela Gold for
a total consideration of not less than ZAR1 750 000 000 (One
Billion Seven Hundred and Fifty Million Rand);
Page 12.
"NOMINATED STOCK" means the government stock nominated by the
Senior Agent in terms of the definition "TERMINATION Rate";
"NON-MATERIAL GFL GROUP COMPANY" means, at any time, a member of
the GFL Group other than a GFL Obligor which had gross turnover in
its most recently ended Financial Year (on a consolidated basis)
less than or equal to 5% (five percent) of the gross turnover of
the GFL Group (calculated according to the most recent set of
audited consolidated financial statements delivered pursuant to
clause 17.1 (Financial Statements)). Compliance with the
aforementioned condition shall be determined by reference to the
latest audited financial statements of such member of the GFL Group
(consolidated in the case of a member of the GFL Group which itself
has subsidiaries), provided that:
(a) if, in the case of any member of the GFL Group which itself
has subsidiaries, no consolidated financial statements are
prepared and audited, its consolidated turnover shall be
determined on the basis of pro forma consolidated financial
statements of the relevant member of the GFL Group and its
subsidiaries, prepared for this purpose by GFL; and
(b) if any intra-GFL Group transfer or re-organisation takes
place, the audited financial statements of the GFL Group
and all relevant members of the GFL Group shall be adjusted
by GFL in order to take into account such intra-GFL Group
transfer or re-organisation.
Should there be any dispute regarding whether any member of the GFL
Group is or is not a Non-Material Group Company such dispute shall
be referred, at the request of the Senior Agent, to the Auditors
and a report by the Auditors that a member of the GFL Group is or
is not a Non-Material GFL Group Company shall, in the absence of
manifest error, be conclusive and binding on all Parties. The costs
of obtaining the report by the Auditors will be borne by the
unsuccessful party to the dispute;
"ORIGINAL FINANCIAL STATEMENTS" means the audited consolidated
annual financial statements of GFL for the Financial Year ended 30
June 2003 prepared in accordance with IFRS;
"ORIGINAL SENIOR LENDERS" means:
(a) iNdwa; and
(b) Barclays;
Page 13.
and "ORIGINAL SENIOR LENDER" means, as the context requires, either
one of them;
"PARTIES" means:
(a) GFI-SA;
(b) GFL;
(c) GFA;
(d) GFG;
(e) Mvela Gold; and
(f) the Senior Agent,
and "PARTY" means, as the context requires, any one of them;
"PERMITTED DISPOSAL" means any sale, lease, transfer or other
disposal:
(a) by a GFL Obligor or any member of the GFL Group of obsolete
or redundant assets which are no longer required for the
efficient operation of the business of such GFL Obligor or
such member of the GFL Group; or
(b) by a GFL Obligor or any member of the GFL 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 Transaction Document; or
(c) by a GFL Obligor to a GFL Obligor; or
(d) by a member of the GFL Group that is not a GFL Obligor to a
GFL Obligor or by a GFL Obligor to a member of the GFL
Group that is not a GFL Obligor if such sale, lease,
transfer or other disposal is concluded at arm's length; or
(e) by a member of the GFL Group that is not a GFL Obligor to
another member of the GFL Group that is not a GFL Obligor;
or
Page 14.
(f) by any member of the GFL 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 member of the GFL Group
(other than a sale, lease, transfer or other disposal
referred to in (a), (b), (c), (d), (e) and (g)) does not
exceed 10% (ten percent) of the Consolidated Tangible Net
Worth in any Financial Year subject to a maximum of 20%
(twenty percent) of the Consolidated Tangible Net Worth in
aggregate during the Term; or
(g) for which the Senior Agent has given its prior written
consent;
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance created prior to the Signature Date which
(i) is disclosed in the Original Financial Statements, or
(ii) has been disclosed in writing to the Senior Agent
prior to the Signature Date, and (iii) in all circumstances
securing 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;
(b) any title transfer or retention arrangement entered into by
any member of the GFL Group in the normal course of its
trading activities and on terms no worse for that member of
the GFL Group than the standard terms of the relevant
supplier;
(c) any netting or set-off arrangement entered into by any
member of the GFL 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 and silver 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;
(d) any lien arising by operation of law and in the ordinary
course of trading and not by reason of any default (whether
in payment or otherwise), of any member of the GFL Group;
(e) any Encumbrance over or affecting any asset acquired by a
member of the GFL Group after the Signature Date, which
Encumbrance is created to finance the acquisition thereof
if the amount thereby secured is
Page 15.
equivalent to, or less than, the acquisition price of the
asset so acquired and the finance charges related thereto;
(f) any Encumbrance over or affecting any asset acquired by any
member of the GFL Group after the Signature Date where such
Encumbrance already existed over such asset as at the date
of acquisition and has not been increased in contemplation
of, or since the date of, the acquisition of such asset by
such member of the GFL Group;
(g) any Encumbrance or Quasi-Encumbrance granted in respect of
Project Finance Borrowings over assets of, or the shares
in, a Project Finance Subsidiary;
(h) in respect of Encumbrances or Quasi-Encumbrances over or
affecting any asset of any Material GFL Group Company, any
Encumbrance or Quasi-Encumbrance securing indebtedness the
principal amount of which (when aggregated with the
principal amount of any other indebtedness which has the
benefit of Encumbrance or Quasi-Encumbrance other than any
permitted under paragraphs (a) to (g) above) does not at
any time exceed 10% (ten percent) of Consolidated Tangible
Net Worth (measured as from the last set of annual
financial statements delivered to the Senior Agent pursuant
to this Agreement and adjusted to include the net value of
new assets acquired since the last date covered by such
financial statements);
(i) any other Encumbrance or Quasi-Encumbrance as agreed by the
Senior Agent in writing; or
(j) any Encumbrance created pursuant to the Transaction
Documents;
"PIC" means the Public Investment Commissioners in terms of Section
2 of the Public Investment Commissioners Act, No. 45 of 1984;
"PIC LOAN AGREEMENT" means the written agreement entitled "Loan
Agreement" to be concluded between the PIC and Mezz SPV and
pursuant to which the PIC is to loan and advance an amount of
ZAR250 000 000 (Two Hundred and Fifty Million Rand) to Mezz SPV;
"PIC PUT OPTION AGREEMENT" means the written agreement whereby GFL
will agree to acquire PIC's rights and obligations under the PIC
Loan Agreement (including PIC's pro rata share of the security
thereunder) for a consideration of ZAR150 000 000 (One Hundred and
Fifty Million Rand)
Page 16.
plus accrued interest compounded semi-annually at 14,25% (fourteen
comma two five percent), in exchange for a guarantee fee compounded
and accrued semi-annually at 3,75% (three comma seven five percent
per annum) until it is payable (on the date that the loan under the
PIC Loan Agreement is repaid);
"PRE-EMPTIVE RIGHTS AGREEMENT" means the written agreement entitled
"Pre-emptive Rights Agreement" to be concluded between Mvela Gold,
GFI-SA and GFL governing certain pre-emptive rights to be granted
by Mvela Gold in favour of GFL in respect of the shares acquired by
Mvela Gold pursuant to the Subscription and Share Exchange
Agreement;
"PRIME RATE" means the publicly quoted basic rate of interest per
annum, compounded monthly in arrear and calculated on a 365 day
year (irrespective of whether or not the year is a leap year) from
time to time published by a FirstRand Bank Limited as being its
prime overdraft rate as certified by any manager of such bank whose
appointment and designation need not be proved;
"PROJECT FINANCE BORROWINGS" means:
(a) any indebtedness to finance (or re-finance) a project
comprised of the ownership, development, construction
and/or operation of assets which is incurred by a Project
Finance Subsidiary whose principal business is that project
and in respect of which the person or persons making that
indebtedness available to the relevant Project Finance
Subsidiary (whether or not a member of the GFL Group) has
no recourse whatsoever to any member of the GFL Group
(other than to the Project Finance Subsidiary) and with
respect to the shares therein) in respect of that
indebtedness whether directly or indirectly or by way of a
guarantee (financial or completion guarantee or otherwise)
creating an obligation (whether actual or contingent) for
Financial Indebtedness in respect of the Project Finance
Borrowings from any member of the GFL Group; or
(b) any indebtedness the terms and conditions of which have
been approved by the Senior Agent and which the Senior
Agent has agreed in writing to treat as Project Finance
Borrowings for the purposes of this Agreement;
"PROJECT FINANCE SUBSIDIARY" means a single purpose company
(whether or not a member of the GFL Group but excluding the GFL
Obligors) whose business is a project comprised of the ownership,
development and/or operation of an asset and whose principal assets
are constituted by that project and whose liabilities are not
directly or indirectly the subject of a guarantee
Page 17.
(financial or completion guarantee or otherwise) creating an
obligation (whether actual or contingent) for Financial
Indebtedness in respect of the Project Finance Borrowings from any
member of the GFL Group (other than from such single purpose
company or with respect to the shares therein);
"QUASI-ENCUMBRANCE" means any transaction described in clause
19.3.2;
"RAND" and "ZAR" means South African Rand, the lawful currency of
South Africa;
"RECOURSE CLAIMS" means any claim by any Guarantor against GFI-SA
from any cause whatsoever or howsoever arising including on loan
account or arising by virtue of payment by any Guarantor under the
provisions of clause 10 (Guarantee);
"REORGANISATION AGREEMENT" means the written agreement entitled
"Reorganisation Agreement" dated 25 July 2003 between Beatrix,
Driefontein, Kloof, GFLMS, GFL and GFI-SA;
"REPEATING REPRESENTATIONS" means each of those representations and
warranties set out in clause 16.1 (Representations and Warranties)
which are stated as being deemed to be repeated as provided for
pursuant to clause 16.2 (Repetition);
"REPO RATE" means on any particular day, the repurchase tender rate
at close of business on that day as published by the South African
Reserve Bank;
"RMB" means FirstRand Bank Limited (Registration No.
1929/001225/06) (acting through its Rand Merchant Bank division), a
public company and registered bank duly incorporated according to
the company and banking laws of South Africa;
"RMB PREFERENCE SHARE SUBSCRIPTION AGREEMENT" means the written
agreement entitled "Preference Share Subscription Agreement" to be
concluded between RMB and Mezz SPV and pursuant to which RMB is to
subscribe for preference shares in Mezz SPV for total consideration
of ZAR100 000 000 (One Hundred Million Rand);
"SENIOR AGENT" means RMB acting as agent for Mvela Gold under this
Agreement in accordance with the terms of this Agreement and the
Intercreditor Agreement and as agent for the Senior Lenders under
the Senior Loan Agreement in accordance with the terms of the
Senior Loan Agreement
Page 18.
and the Intercreditor Agreement or any replacement Senior Agent
appointed pursuant to the terms of the Intercreditor Agreement;
"SENIOR CESSION IN SECURITY" means the written agreement entitled
"Senior Cession in Security" to be concluded between Mvela Gold and
the Senior Lenders and pursuant to which Mvela Gold is to cede in
securitatem debiti all of its right, title and interest in and to
this Agreement and the Collection Account to and in favour of the
Senior Lenders as security for Mvela Gold's obligations under the
Senior Loan Agreement;
"SENIOR LENDERS" means initially the Original Senior Lenders and
thereafter shall include any person(s) acceding as a Senior Lender
to the Senior Loan Agreement;
"SENIOR LOAN AGREEMENT" means the written agreement entitled
"Senior Loan Agreement" to be concluded amongst the Original Senior
Lenders and Mvela Gold and pursuant to which the Original Senior
Lenders are to loan and advance an amount of approximately ZAR1 349
000 000 (One Billion Three Hundred and Forty-nine Million Rand) to
Mvela Gold;
"SETTLEMENT ACCOUNT" means a bank account in the name of Mvela Gold
held with the Account Bank for the purposes of receiving the
proceeds of (a) the subscription to be effected pursuant to the
Mvela Resources Subscription Agreement, (b) the loan to be advanced
pursuant to the Senior Loan Agreement, and (c) the loan to be
advanced under the Mezz SPV Loan Agreement and having the details
notified in writing by the Senior Agent to the Transaction
Participants not less than 3 (three) Business Days prior to the
Settlement Date;
"SETTLEMENT DATE" means the date which is the later of:
(a) the 5th (fifth) Business Day after the CP Satisfaction
Date; and
(b) the date on which the Senior Agent certifies in writing to
the Transaction Participants that a sum at least equal to
the Loan Amount is standing to the credit of the Settlement
Account, which certification the Senior Agent shall be
obliged to deliver not later than 1 (one) Business Day
after such sum stands to the credit of the Settlement
Account;
"SIGNATURE DATE" means the date of the signature of this Agreement
by the Party signing last in time;
Page 19.
"SOUTH AFRICA" means the Republic of South Africa as constituted
from time to time;
"SPONSOR SUPPORT, GUARANTEE AND RETENTION AGREEMENT" means the
written agreement entitled "Sponsor Support, Guarantee and
Retention Agreement" to be concluded amongst, inter alia, GFL,
GFI-SA, Mvela Resources, MHL, Mvela Gold and Mezz SPV and, inter
alia, pursuant to which:
(a) MHL agrees to retain a holding of not less than 26%
(twenty-six percent) of the equity share capital of Mvela
Resources and to be represented by the majority of
directors on the board of Mvela Resources and Mvela
Resources agrees, subject to the terms of the Mvela
Resources Pledge, to remain the sole owner of Mvela Gold
for so long as any amount is due or outstanding by Mvela
Gold to Mezz SPV or remains outstanding by Mvela Gold in
terms of any Transaction Documents; and
(b) Mvela Resources will provide a partial guarantee to Mezz
SPV for up to ZAR200 000 000 (Two Hundred Million Rand)
which shall become a joint and several guarantee with MHL
under certain conditions; and
(c) Mvela Resources agrees to place Mvela Gold and/or Mezz SPV
in funds to fund:
(i) Tax liabilities of Mvela Gold and/or Mezz SPV, as
the case may be, that arise as a result of any
increase in Tax rates or change in Tax law occurring
after the Advance Date and to the extent that Mvela
Gold is liable for any increased cost pursuant to
the Senior Loan Agreement resulting from the
imposition of or changes in the administration or
interpretation of capital ratio or reserve
requirements on contingent liabilities or other
measures imposed by regulatory authorities; and
(ii) other liabilities incurred by Mvela Gold that are
not authorised by its memorandum and articles of
association to the extent that Mvela Gold does not
do so (after payment of all amounts due by Mvela
Gold under the Senior Loan Agreement and the Mezz
SPV Loan Agreement); and
(d) Mvela Resources indemnifies GFL or GFI-SA for amounts
incurred as a result of the application of clauses 24.1 or
24.2 of this Agreement;
Page 20.
"SUBSCRIPTION AND SHARE EXCHANGE AGREEMENT" means the written
agreement entitled "Subscription and Share Exchange Agreement"
concluded or to be concluded between GFI-SA, GFL and Mvela Gold and
pursuant to which (a) Mvela Gold agrees and is obliged to subscribe
for equity shares which pursuant to their issue will constitute 15%
(fifteen percent) of the equity share capital of GFI-SA, and (b)
Mvela Gold is entitled in certain circumstances to exchange the
shares acquired by it in GFI-SA for shares in GFL;
"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 delay in paying any of the same).
"TERM" means the period commencing on the Signature Date and ending
on the Discharge Date;
"TERMINATION RATE" means the re-investment rate available in the
South African capital market on the Default Date or Early
Settlement Date, as the case may be, on a government stock to be
nominated by the Senior Agent, acting reasonably and timeously
having provided the calculation of the Termination Rate and all
information utilised to calculate the Termination Rate to GFI-SA if
requested by GFI-SA; provided that the Nominated Stock will be the
lowest yielding government investment available having a Duration
which in the reasonable opinion of the Senior Agent approximates
the Duration of the Future Interest Payment Amounts;
"TRANSACTION DOCUMENTS" means:
(a) the Finance Documents;
(b) the Reorganisation Agreement;
(c) the Subscription and Share Exchange Agreement;
(d) the Senior Loan Agreement;
(e) the Mezz SPV Loan Agreement;
(f) the Sponsor Support, Guarantee and Retention Agreement;
(g) the Senior Cession in Security;
Page 21.
(h) the Mvela Resources Subscription Agreement;
(i) the Covenants Agreement;
(j) the Mezz SPV Cession in Security;
(k) the Mezz SPV Reversionary Cession in Security;
(l) the IDC Preference Share Subscription Agreement;
(m) the GFLM Preference Share Subscription Agreement;
(n) the RMB Preference Share Subscription Agreement;
(o) the Mvela Resources Pledge;
(p) the IFC Loan Agreement;
(q) the PIC Loan Agreement;
(r) the JP Morgan Preference Share Subscription Agreement;
(s) the Inter-Mezzanine Investors Agreement;
(t) the Intercreditor Agreement;
(u) the Account Bank Agreement;
(v) the PIC Put Option Agreement;
(w) the Transaction Participant Undertaking;
(x) the Pre-emptive Rights Agreement;
(y) any other agreement or document at any time designated a
Transaction Document by written agreement between the GFL
Obligors, Mvela Gold and the Senior Agent; and
Page 22.
(z) any amendment agreement to any of the Transaction Documents
referred to in (a) to (y) above;
and "TRANSACTION DOCUMENT" means, as the context requires, any of
them;
"TRANSACTION PARTICIPANTS" means:
(a) the Guarantors;
(b) GFI-SA;
(c) Mvela Gold;
(d) Mvela Resources;
(e) MHL;
(f) the Mezzanine Investors;
(g) Mezz SPV;
(h) the Senior Lenders;
(i) the Account Bank;
(j) the Senior Agent (in its capacity as such); and
(k) the Mezz SPV Agent (in its capacity as such),
and "TRANSACTION PARTICIPANT" means, as the context requires, any
one of them;
"TRANSACTION PARTICIPANT UNDERTAKING" means the written undertaking
to be concluded amongst the Transaction Participants and in terms
of which each Transaction Participant undertakes in favour of the
other Transaction Participants not to amend any Transaction
Document(s) to which it is a party without the prior written
consent of all the other Transaction Participants save to the
extent that a Transaction Participant's consent is not required to
amend the terms of any Transaction Document in accordance with the
terms of that Transaction Document;
Page 23.
"UNPAID SUM" means any sum due and payable but unpaid by a GFL
Obligor under the Finance Documents;
"VAT" means value-added tax leviable in terms of the Value-Added
Tax Act, 1991 (as amended);
"WARRANTY DATE" has the meaning given to it in clause 16.2
(Repetition).
2.2 FINANCIAL DEFINITIONS
All accounting expressions which are not otherwise defined in this
Agreement shall be construed in accordance with IFRS and, unless
the context dictates otherwise, the accounting expressions set
forth below shall bear the following meanings:
"CONSOLIDATED EBITDA" means, for any Measurement Period, (having
reversed any entries made due to the new accounting standards (IAS
39) that require the marking to market of hedges that are
undertaken in the normal course of business) Consolidated Profits
Before Interest and Tax before any amount attributable to the
amortisation of intangible assets and depreciation of tangible
assets and before any extraordinary items resulting from the sale
or any impairment of mining assets or restructuring of mining
operations;
"CONSOLIDATED NET BORROWINGS" means, at any time, the aggregate
amount of all obligations of the GFL Group for or in respect of
Indebtedness for Borrowed Money but excluding any such obligation
to any member of the GFL Group, adjusted to take account of the
aggregate amount of freely available cash and cash equivalents held
by any member of the GFL Group (and so that no amount shall be
included or excluded more than once);
"CONSOLIDATED NET FINANCE CHARGES" means, in respect of any
Measurement Period, the aggregate amount of the interest (including
the interest element of leasing and hire purchase payments and
capitalised interest), commission, fees, discounts and other
finance payments payable by any member of the GFL Group (including
any commission, fees, discounts and other finance payment payable
by any member of the GFL Group under any interest rate hedging
arrangement but deducting any commission, fees, discounts and other
finance payments receivable by any member of the GFL Group under
any interest rate hedging instrument) but deducting any other
interest receivable by any member of the GFL Group on any deposit
or bank account;
Page 24.
"CONSOLIDATED PROFITS BEFORE INTEREST AND TAX" means, in respect of
any Measurement Period, the consolidated net income of the GFL
Group (less the net income of any Project Finance Subsidiaries but
including any dividends received in cash by any member of the GFL
Group (other than a Project Finance Subsidiary) from a Project
Finance Subsidiary) before:
(a) any provision on account of normal taxation; and
(b) any interest, commission, discounts or other fees incurred
or payable, received or receivable by any member of the GFL
Group in respect of Indebtedness for Borrowed Money;
"CONSOLIDATED TANGIBLE NET WORTH" means, at any time, the
Shareholders' Equity, as reported in the GFL Group Statement of
Changes in Shareholders' Equity;
"CURRENT ASSETS" means the aggregate of inventory, trade and other
receivables of each member of the GFL Group including sundry
debtors (but excluding cash at bank) maturing within 12 (twelve)
months from the date of computation;
"CURRENT LIABILITIES" means the aggregate of all liabilities
(including trade creditors, accruals and provisions and
prepayments) of each member of the GFL Group falling due within 12
(twelve) months from the date of computation;
"FINANCIAL INDEBTEDNESS" means (without double counting) any
indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with IFRS, be
treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables
to the extent they are sold on a non-recourse basis);
Page 25.
(f) the amount of any 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:
(i) used primarily as a method of raising credit; or
(ii) not made in the ordinary course of business;
(g) 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;
(h) any amount raised under any other transaction (including
any forward sale or purchase agreement) having the
commercial effect of a borrowing;
(i) 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);
(j) 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;
(k) any amount raised by the issue of redeemable shares; and
(l) the amount of any liability in respect of any guarantee or
indemnity for any of its items referred to in paragraphs
(a) to (k) above;
"FINANCIAL YEAR" means, at any time, the financial year of the GFL
Group ending on 30 June in each calendar year;
"INDEBTEDNESS FOR BORROWED MONEY" means Financial Indebtedness save
for any indebtedness for or in respect of paragraphs (i) and (j) of
the definition of "FINANCIAL INDEBTEDNESS";
"MEASUREMENT PERIOD" means each period of 12 (twelve) months ending
on the last day of GFI-SA's Financial Year and each period of 12
(twelve) months ending on the last day of the first half of
GFI-SA's Financial Year;
Page 26.
"NET DEBT SERVICE" means, in respect of any Measurement Period, the
aggregate of:
(a) Consolidated Net Finance Charges; and
(b) the aggregate of scheduled and mandatory payments of any
Indebtedness for Borrowed Money falling due;
"WORKING CAPITAL" means, on any date, Current Assets less Current
Liabilities.
2.3 INTERPRETATION AND CONSTRUCTION
2.3.1 A document in an "AGREED FORM" is a document which has been
initialled as such on or before the CP Satisfaction Date
for the purposes of identification by or on behalf of
GFI-SA, Mvela Gold and the Senior Agent.
2.3.2 Any reference in this Agreement to:
2.3.2.1 an "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;
2.3.2.2 an "AMENDMENT" includes a supplement, novation or
re-enactment and "amended" is to be construed
accordingly;
2.3.2.3 "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% (twenty
percent) of the share capital or similar rights of
ownership;
2.3.2.4 "ASSETS" includes properties, revenues and rights of
every description;
Page 27.
2.3.2.5 "AUDITED" means, in respect of any financial
statement, those financial statements as audited by
the Auditors;
2.3.2.6 "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 Transaction Document or any
transaction contemplated under any Transaction
Document);
2.3.2.7 "AUTHORITY" means any government or governmental,
administrative, fiscal or judicial authority, body,
court, department, commission, tribunal, registry or
any stated owned or controlled authority which
principally performs governmental functions;
2.3.2.8 a "CLAUSE" shall, subject to any contrary
indication, be construed as a reference to a clause
hereof;
2.3.2.9 "CONTINUING", in the context of an Event of Default,
means:
2.3.2.9.1 where the Event of Default or its
consequences are incapable of remedy, that
Event of Default is deemed to be continuing
unless it has been expressly waived in
writing by the Senior Agent and any
conditions of such waiver have been fulfilled
to the reasonable satisfaction of the Senior
Agent;
2.3.2.9.2 in any other case, that Event of Default is
deemed to be continuing unless and until
either:
2.3.2.9.2.1 it has been expressly waived in
writing by the Senior Agent and any
conditions of such waiver have been
fulfilled to the reasonable
satisfaction of the Senior Agent; or
2.3.2.9.2.2 it has been remedied within the
applicable remedy period by any person
and the resulting position is that
which it would have been if such Event
of Default had not occurred or if the
resulting position is reasonably
acceptable to the Senior Agent;
Page 28.
2.3.2.10 "CONTROL" means, in relation to any company or
similar organisation or person, the power (whether
by way of ownership of shares, proxy, contract,
agency or otherwise) to:
2.3.2.10.1 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 that
company or similar organisation or person; or
2.3.2.10.2 appoint or remove all, or the majority, of
the directors or other equivalent officers of
that company or similar organisation or
person;
2.3.2.11 a "HOLDING COMPANY" shall be construed in accordance
with the Companies Act;
2.3.2.12 the words "INCLUDING" and "IN PARTICULAR" are used
by way of illustration or emphasis only and shall
not be construed as, nor shall they take effect as,
limiting the generality of any of the preceding
words;
2.3.2.13 "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;
2.3.2.14 "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,
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;
2.3.2.15 a "MONTH" means a reference to a period starting on
one day in a calendar month and ending on the
numerically corresponding day in the next calendar
month, except that:
Page 29.
2.3.2.15.1 if the numerically corresponding day is not a
Business Day, that period shall end on the
next Business Day in that calendar month in
which that period is to end if there is one,
or if there is not, on the directly preceding
Business Day; and
2.3.2.15.2 if there is no numerically corresponding day
in the calendar month in which that period is
to end, that period shall end on the last
Business Day in that calendar month;
2.3.2.16 the words "OTHER" and "OTHERWISE" shall not be
construed eiusdem generis with any foregoing words
where a wider construction is possible;
2.3.2.17 a "PERSON" shall be construed as a reference to any
person, firm, company, corporation, government,
state or agency of a state or any association or
partnership (whether or not having separate legal
personality) of two or more of the foregoing;
2.3.2.18 a "REGULATION" means any regulation, rule, official
directive, request or guideline (whether or not
having the force of law but complied with generally)
of any governmental, inter-governmental or
supranational body, agency, department or
regulatory, self-regulatory or other authority or
organisation;
2.3.2.19 "REPAY" (or any derivative form of that word)
includes "PREPAY" (or any derivative form of that
word);
2.3.2.20 a "SCHEDULE" shall, subject to any contrary
indication, be construed as a reference to a
Schedule hereof;
2.3.2.21 a "SUBSIDIARY" shall be construed in accordance with
the Companies Act.
2.3.3 Unless inconsistent with the context or save where the
contrary is indicated in this Agreement:
2.3.3.1 if any provision in a definition is a substantive
provision conferring rights or imposing obligations
on any Party, notwithstanding that it appears only
in an interpretation clause, effect shall be given
to it as if it were a substantive provision of this
Agreement;
Page 30.
2.3.3.2 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;
2.3.3.3 in the event that the day for payment of any amount
due in terms of this Agreement should fall on a day
which is not a Business Day, the relevant day for
payment shall be the preceding Business Day;
2.3.3.4 in the event that the day for performance of any
obligation to be performed in terms of this
Agreement (other than a payment obligation) should
fall on a day which is not a Business Day, the
relevant day for performance shall be the succeeding
Business Day;
2.3.3.5 any reference in this Agreement to an enactment is
to that enactment as at the Signature Date and as
amended or re-enacted from time to time;
2.3.3.6 any reference in this Agreement to this Agreement or
any other agreement or document shall be construed
as a reference to this Agreement or, as the case may
be, such other agreement or document as same may
have been, or may from time to time be, amended,
varied, novated or supplemented;
2.3.3.7 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;
2.3.3.8 references to day/s, calendar month/s or year/s
shall be construed as Gregorian calendar day/s,
calendar month/s or year/s;
2.3.3.9 a reference to a Party includes that Party's
successors-in-title and permitted assigns;
2.3.3.10 where any Party is required to provide any consent
or agree to the actions of any other Party, the
request for such consent or agreement shall be in
writing and such consent or agreement shall be in
writing and shall not be unreasonably withheld or
delayed.
Page 31.
2.3.4 The headings to the clauses and Schedules of this Agreement
are for reference purposes only and shall in no way govern
or affect the interpretation of nor modify nor amplify the
terms of this Agreement nor any clause or Schedule thereof.
2.3.5 Unless inconsistent with the context, an expression in this
Agreement denotes:
2.3.5.1 any one gender includes the other genders;
2.3.5.2 a natural person includes an artificial person and
vice versa; and
2.3.5.3 the singular includes the plural and vice versa.
2.3.6 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.
2.3.7 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 any interpretation
clause.
2.3.8 The rule of construction that, in the event of ambiguity, a
contract shall be interpreted against the Party responsible
for the drafting thereof, shall not apply in the
interpretation of this Agreement.
2.3.9 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.
2.3.10 This Agreement shall be binding on and enforceable by the
administrators, trustees, permitted assigns or liquidators
of the Parties as fully and effectually as if they had
signed this Agreement in the first
Page 32.
instance and reference to any Party shall be deemed to
include such Party's administrators, trustees, permitted
assigns or liquidators, as the case may be.
2.3.11 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.
2.3.12 Where figures are referred to in numerals and in words in
this Agreement, if there is any conflict between the two,
the words shall prevail.
3. INTRODUCTION
3.1 GFI-SA wishes to borrow the Loan Amount solely in order to fund in
part the acquisitions pursuant to the Reorganisation Agreement.
3.2 Mvela Gold has agreed to lend the Loan Amount to GFI-SA for the
purposes referred to in clause 3.1 on the terms and conditions set
out in this Agreement.
4. CONDITIONS
4.1 INITIAL CONDITIONS PRECEDENT
4.1.1 Mvela Gold shall not be obliged to lend and advance the
Loan Amount under Agreement unless:
4.1.1.1 all of the Financial Close Documents and other
evidence referred to in Part 1 of Schedule 1
(Financial Close Documents) have been delivered to
the Senior Agent in the agreed form; or
4.1.1.2 to the extent that any Financial Close Documents or
such other evidence are not in the agreed form or
have not been delivered, the Senior Agent has
pursuant to clause 4.4 (Waiver of Conditions
Precedent) waived or deferred delivery of those
Financial Close Documents which are not in the
agreed form or which have not been delivered
pursuant to clause 4.4 (Waiver of Conditions
Precedent);
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4.2 The Senior Agent shall notify GFI-SA, Mvela Gold and the Senior
Lenders promptly in writing once the requirements of clause 4.1.1
have been satisfied.
4.3 FURTHER CONDITIONS TO ADVANCE OF LOAN AMOUNT
4.3.1 Mvela Gold will not be obliged to lend and advance the Loan
Amount or perform any other obligation under this Agreement
unless on the date as contemplated in clause 7 (Loan):
4.3.1.1 no Default is continuing or would result from the
advance of the Loan Amount;
4.3.1.2 the Repeating Representations are true in all
material respects.
4.4 WAIVER OF CONDITIONS PRECEDENT
Satisfaction of any of the conditions set out in clause 4.1
(Initial Conditions Precedent) or clause 4.3 (Further Conditions to
Advance of the Loan Amount) may only be waived by written agreement
between Mvela Gold, the Senior Agent (acting in accordance with the
instructions of the Senior Lenders and Mezz SPV) and GFI-SA.
4.5 TERMINATION
If the CP Satisfaction Date has not occurred on or before 31 March
2004, or such other date as the Parties may agree in writing on or
before that date, then this Agreement, save for the provisions of
clauses 1 (Parties), 2 (Definitions and Interpretation), 15 (Costs
and Expenses), 23 (Payment Mechanics), 24 (Confidentiality), 26
(Miscellaneous), 27 (Notices and Domicilia), 28 (Governing Law), 29
(Jurisdiction) and 30 (Severability) shall lapse and cease to be of
any further force or effect; provided that the provisions of this
clause 4.5 (Termination) shall not apply if Mvela Gold has advanced
the Loan Amount to GFI-SA.
5. PURPOSE
5.1 PURPOSE
GFI-SA shall apply the Loan Amount solely for the purpose of
funding in part the acquisitions pursuant to the Reorganisation
Agreement.
Page 34.
5.2 MONITORING
Mvela Gold is not bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
6. ARRANGEMENTS BETWEEN THE FINANCE PARTIES
6.1 ACKNOWLEDGEMENT OF TERMS OF THE INTERCREDITOR AGREEMENT
Each GFL Obligor hereby expressly acknowledges that it will have no
rights or obligations under the Intercreditor Agreement or, subject
to clause 6.3, in respect thereof.
6.2 INSTRUCTIONS TO SENIOR AGENT
Unless otherwise expressly stated in this Agreement or any other
Finance Document, any action to be taken or expressed to be taken
under or in respect of this Agreement or any other Finance Document
shall be taken solely by the Senior Agent acting in accordance with
the instructions given to it or authority granted to it under the
Intercreditor Agreement (and the GFL Obligors shall be entitled to
assume without further enquiry that the Senior Agent is acting in
accordance with the terms of the Intercreditor Agreement).
6.3 AMENDMENTS TO THE INTERCREDITOR AGREEMENT AND SUBSTITUTION OF
SENIOR AGENT
The consent of the GFL Obligors shall not be required for the
making of any amendment to the Intercreditor Agreement, provided
that the consent of GFI-SA shall be required for:
6.3.1 the substitution of the Senior Agent; and
6.3.2 any amendment of the definition of "MAJORITY SENIOR
LENDERS" to be contained in the Intercreditor Agreement.
6.4 GFL AS AGENT FOR THE GUARANTORS
Each of the Guarantors (with the exception of GFL), hereby appoints
GFL as its attorney and agent in rem suam, for all purposes under
the Finance Documents including for the purposes of receiving and
giving all notices, instructions and consents and agreeing to any
amendments of any Transaction
Page 35.
Document to which the Guarantors are a party on its behalf and
Mvela Gold and the Senior Agent shall be entitled to assume without
any further enquiry that any action by GFL on behalf of the other
Guarantors are issued in accordance with the instructions of such
other Guarantors and all such notices and/or instructions shall be
binding on such Guarantors.
7. LOAN
7.1 On the Advance Date, Mvela Gold will lend and advance the Loan
Amount to GFI-SA.
7.2 The Loan Amount will be paid by the Senior Agent on behalf of Mvela
Gold into a bank account nominated for this purpose in writing by
GFI-SA on or prior to the CP Satisfaction Date.
8. REPAYMENT
The Loan Amount shall be repaid by GFI-SA to Mvela Gold in full on the
Final Repayment Date.
9. INTEREST
9.1 The Loan Amount shall bear interest during the Term at the Interest
Rate.
9.2 All interest on the Loan Amount shall be paid in the Interest
Payment Amounts on each Interest Payment Date.
10. GUARANTEE
10.1 GUARANTEE
With effect from the Advance Date, the Guarantors hereby jointly
and severally irrevocably and unconditionally:
10.1.1 guarantee to Mvela Gold the due and punctual payment and
performance of the Guaranteed Obligations;
10.1.2 undertakes to Mvela Gold that if GFI-SA should fail to pay
when due for any reason, or timely perform, any of the
Guaranteed Obligations, the Guarantors shall pay or perform
on demand to Mvela Gold the Guaranteed Obligations then due
for payment or performance;
Page 36.
10.1.3 indemnify Mvela Gold on demand against any loss, liability
or cost suffered by Mvela Gold if any obligation guaranteed
by the Guarantors is or becomes unenforceable, invalid or
illegal. The amount of that loss, liability or cost shall
be equal to the amount which Mvela Gold would otherwise
have been entitled to recover but for any such
unenforceability, invalidity or illegality.
10.2 TERM OF GUARANTEE
This Guarantee shall be a continuing Guarantee and shall commence
on the Advance Date and shall remain in operation until the
Discharge Date.
10.3 SPECIAL PROVISIONS
10.3.1 All admissions and acknowledgements of indebtedness by
GFI-SA pursuant to the Guaranteed Obligations shall bind
the Guarantors.
10.3.2 This Guarantee is in addition to, and does not prejudice,
nor is it prejudiced by, any other security now or
hereafter held by Mvela Gold in relation to the Guaranteed
Obligations. This Guarantee is not conditional upon other
security being held by Mvela Gold.
10.3.3 Subject to the provisions of clause 26.5 (No Variation),
Mvela Gold may, without prejudice to its rights in terms of
this Guarantee and without notice to, or consent from the
Guarantors grant any indulgence, give extension of time or
make any other concession to, or compound or make any other
arrangement with GFI-SA. The liability of the Guarantors
shall not be affected by such indulgences, extensions of
time, concessions, compounding or arrangements, or by any
dealing which, but for the provisions of this clause
10.3.3, might operate as a discharge of the Guarantors from
the whole or any part of its obligations under this
Guarantee.
10.3.4 If the Guaranteed Obligations are amended or varied in any
manner whatsoever, this Guarantee shall apply in respect of
the Guaranteed Obligations as amended or varied.
10.3.5 If any payment having the effect of reducing or discharging
the liability of the Guarantors under this Guarantee is set
aside or reversed or refunded for any reason, the
Guarantors will remain liable to Mvela Gold in terms of
this Guarantee for the discharge of any obligation arising
from or revised by the occurrence of any such event, even
if it
Page 37.
takes place after the termination of the Guarantors'
liability in terms of this Guarantee in other respects.
10.3.6 No Guarantor shall be entitled to revoke or cancel this
Guarantee before the Discharge Date.
10.3.7 Notwithstanding any indication to the contrary herein, this
Guarantee does not constitute a suretyship and shall be
construed as a primary undertaking giving rise to a
principal obligation by each Guarantor.
10.3.8 Neither the obligations of the Guarantors herein contained
nor the rights, powers and remedies conferred upon Mvela
Gold in respect of the Guarantors shall be discharged,
impaired or otherwise affected by:
10.3.8.1 the winding-up, dissolution, administration or
reorganisation of GFI-SA or any change in GFI-SA's
status, function, control or ownership;
10.3.8.2 any of the Guaranteed Obligations or any security
granted by GFI-SA or any other person in respect of
the Guaranteed Obligations being or becoming
illegal, invalid, unenforceable or ineffective in
any respect;
10.3.8.3 time or other indulgence being granted or agreed to
be granted to GFI-SA by Mvela Gold in respect of the
Guaranteed Obligations or under any security in
respect of the Guaranteed Obligations;
10.3.8.4 any amendment to, or any variation, waiver or
release of, any of the Guaranteed Obligations or any
security in respect thereof;
10.3.8.5 any failure to take, or fully to take, any security
now or hereafter agreed to be taken in relation to
the Guaranteed Obligations;
10.3.8.6 any failure to realise or fully to realise the value
of, or any release, discharge, exchange or
substitution of, any security taken in respect of
the Guaranteed Obligations; or
10.3.8.7 any other act, event or omission which, but for this
clause 10.3.8, might operate to discharge, impair or
otherwise affect any of the obligations of any
Guarantor in terms of this Guarantee or any of the
rights, powers or remedies conferred upon Mvela Gold
by law.
Page 38.
10.3.9 Mvela Gold shall not be obliged before exercising any of
the rights, powers or remedies conferred upon it in respect
of the Guarantors hereby or by law:
10.3.9.1 to make any demand of GFI-SA save as contemplated by
clause 20.2 (Acceleration);
10.3.9.2 to take any action or obtain judgement in any court
against GFI-SA;
10.3.9.3 to make or file any claim or proof in a winding-up
or dissolution of GFI-SA; or
10.3.9.4 to enforce or seek to enforce any security taken in
respect of any of the Guaranteed Obligations.
11. SUBORDINATION
11.1 When any Event of Default has occurred and is continuing each of
the Guarantors acknowledges and agrees that any Recourse Claims it
may have against GFI-SA shall be subordinated to the claims of
Mvela Gold against GFI-SA under this Agreement and so that until
the earlier to occur of the Discharge Date or the remedy of the
Event of Default:
11.1.1 Mvela Gold's claims will rank in priority to the Recourse
Claims; and
11.1.2 no Guarantor will claim, receive or accept, directly or
indirectly, payment of any Recourse Claims;
11.1.3 no Guarantor shall take, accept or receive the benefit of
any Encumbrance from GFI-SA;
11.1.4 no Guarantor shall obtain or enforce any judgement against
GFI-SA in relation to any of the Recourse Claims.
11.2 No Guarantor shall petition or apply for or vote in favour of any
resolution for the winding-up, dissolution or administration or
analogous or similar process with regard to GFI-SA prior to the
Discharge Date;
11.3 In any liquidation of (whether provisional or final) or judicial
management of or compromise of GFI-SA, no Guarantor shall prove or
seek to prove claims
Page 39.
in respect of any Recourse Claims it may have prior to the
Discharge Date if the effect of such proof would be to reduce the
dividend payable to Mvela Gold in relation to Mvela Gold's claims
at the time of such liquidation, judicial management or compromise.
12. PREPAYMENTS
12.1 Except as expressly provided for in clause 12.2 below, GFI-SA shall
not be entitled to prepay the Loan Amount (or any part thereof) or
any Interest Payment Amount (or any part thereof) on any dates
other than as permitted by the terms of this Agreement.
12.2 At any time prior to the Final Repayment Date but not earlier than
12 (twelve) months after the Advance Date, GFI-SA may by giving to
the Senior Agent and Mvela Gold not less than 10 (ten) Business
Days' prior written notice to that effect, prepay all (and not only
some) of the Future Interest Payment Amounts by paying to Mvela
Gold the Early Settlement Amount.
12.3 Any notice of prepayment pursuant to clause 12.2 shall:
12.3.1 be irrevocable;
12.3.2 specify a date upon which such prepayment is to be made;
and
12.3.3 oblige GFI-SA to make such prepayment on such date.
12.4 For the purpose of this clause 12 (Prepayments):
12.4.1 "EARLY SETTLEMENT DATE" means the date on which the Early
Settlement Amount is to be paid as contemplated by clause
12.3.2;
12.4.2 "EARLY SETTLEMENT AMOUNT" means the aggregate of:
12.4.2.1 the present value of each Future Interest Payment
Amount discounted at the Termination Rate from its
due date to the Early Settlement Date together with
interest thereon (if any) at the Default Rate
calculated from the Early Settlement Date to the
actual date of payment; plus
Page 40.
12.4.2.2 all amounts due and payable in terms of this
Agreement on or before the Early Settlement Date
which have not been paid as at the Early Settlement
Date; plus
12.4.2.3 an additional amount (if any), as certified in
writing by the Senior Agent, which may be required
to enable Mvela Gold to settle its obligations to
pay any Tax arising as a consequence of the early
payment of the amounts referred to in clauses
12.4.2.1 and/or 12.4.2.2 to the extent that, after
settlement of Mvela Gold's obligations in full under
the Senior Loan Agreement, it has insufficient cash
resources of its own to pay such Tax; plus
12.4.2.4 interest calculated at the Default Rate on the
amount of all interest payments which are in arrears
under this Agreement as at the Early Settlement Date
calculated from due date to the date of actual
payment.
12.5 GFI-SA shall pay the Early Settlement Amount into the Collection
Account on the Early Settlement Date.
12.6 In the event that GFI-SA prepays the Future Interest Payment Amount
pursuant to this clause 12 (Prepayments) GFI-SA shall repay the
Loan Amount to Mvela Gold on the Early Settlement Date.
12.7 No amount prepaid under this clause 12 (Prepayments) shall be
available to be re-drawn or re-borrowed.
13. INDEMNITY TO THE SENIOR AGENT
13.1 GFI-SA shall promptly indemnify the Senior Agent against any cost,
loss or liability incurred by the Senior Agent (acting reasonably)
as a result of:
13.1.1 investigating any event which it reasonably believes is a
Default; or
13.1.2 acting or relying on any notice, request or instruction
which it reasonably believes to be genuine, correct and
appropriately authorised under this Agreement.
13.2 Each GFL Obligor hereby waives any claim which it may have against
the Senior Agent and absolves the Senior Agent from any liability
where the Senior Agent acts in accordance with clause 13.1.1 or
13.1.2.
Page 41.
14. DEFAULT INTEREST
14.1 If any GFL 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 judgement) at the Default Rate. Any interest
accruing under this clause 14 shall be immediately payable by the
relevant GFL Obligor on demand by the Senior Agent.
14.2 Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount monthly in arrears to that
overdue amount but will remain due and payable on demand.
15. COSTS, FEES AND EXPENSES
15.1 STRUCTURING FEE
GFI-SA shall on the Advance Date pay a structuring fee to Barclays
and RMB (in the ratio of 50:50), calculated as the amount which is
0,25% (zero comma two five percent) of the amount advanced in terms
of the Senior Loan Agreement plus VAT against delivery to GFI-SA of
a tax invoice(s).
15.2 TRANSACTION EXPENSES
Subject to any other written agreement between the relevant Parties
to the contrary, each Party shall bear its own costs and expenses
in connection with:
15.2.1 the negotiation, preparation, printing and execution of:
15.2.1.1 this Agreement, the other Transaction Documents and
the Financial Close Documents; and
15.2.1.2 any other Transaction Document executed after the
Signature Date; and
15.2.2 any filing, notification, registration or recording in
connection with any Transaction Document.
Page 42.
15.3 AMENDMENT COSTS
GFI-SA shall promptly, on demand, pay the Senior Agent the amount
of all costs and expenses (including legal fees on the attorney and
own client scale) reasonably and necessarily incurred by the Senior
Agent or Mvela Gold in connection with any amendment, variation,
supplement, replacement, novation, waiver or consent in relation to
any Transaction Document requested by any GFL Obligor.
15.4 ENFORCEMENT COSTS
Each GFL Obligor shall be jointly and severally liable for payment
of the amount of all costs and expenses (including legal fees on
the scale as between attorney and own client) reasonably and
necessarily incurred by Mvela Gold in connection with the
enforcement of, or the preservation of any rights under, any
Finance Document.
15.5 VALUE ADDED TAX
15.5.1 All consideration payable under a Finance Document by the
GFL Obligors to Mvela Gold shall be deemed to be exclusive
of any VAT. If VAT is chargeable, the relevant GFL Obligor
shall pay to Mvela Gold (in addition to and at the same
time as paying the consideration) an amount equal to the
amount of the VAT.
15.5.2 Where a Finance Document requires a GFL Obligor to
reimburse Mvela Gold for any costs or expenses, the
relevant GFL Obligor shall also at the same time pay and
indemnify Mvela Gold against all VAT incurred by Mvela Gold
in respect of the costs or expenses save to the extent that
Mvela Gold is entitled to repayment or credit in respect of
the VAT.
16. REPRESENTATIONS AND WARRANTIES
16.1 REPRESENTATIONS AND WARRANTIES
Each GFL Obligor makes the representations and warranties set out
in this clause 16.1 to Mvela Gold on each Warranty Date, subject to
the disclosures set out in Schedule 4 (Disclosure Schedule).
Page 43.
16.1.1 STATUS
16.1.1.1 It is a limited liability company, duly incorporated
and validly existing under the laws of the
jurisdiction of its incorporation.
16.1.1.2 It has the power to own its assets and carry on its
business as it is being conducted or is contemplated
to be conducted.
16.1.2 POWER AND AUTHORITY
It has the power to enter into and perform, and has taken
all necessary action to authorise its entry into, and
performance of, the Transaction Documents to which it is
party and the transactions contemplated by those
Transaction Documents.
16.1.3 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each
Transaction Document to which it is a party are legal,
valid, binding and enforceable obligations.
16.1.4 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the
transactions contemplated by, the Transaction Documents to
which it is a party do not and will not conflict with:
16.1.4.1 any law applicable to it;
16.1.4.2 its Constitutional Documents; or
16.1.4.3 any material agreement or instrument binding upon it
or any of its assets.
16.1.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All authorisations required:
16.1.5.1 to enable it lawfully to enter into, exercise its
rights and comply with its obligations under the
Transaction Documents to which it is a party and to
ensure that the obligations expressed to be
Page 44.
assumed by it thereunder are legal, valid, binding
and enforceable; and
16.1.5.2 to make the Transaction Documents to which it is a
party admissible in evidence in its jurisdiction of
incorporation,
have been obtained or effected and are in full force and
effect.
16.1.6 NO DEFAULT
16.1.6.1 No Default is continuing or might reasonably be
expected to result from the advancing of the Loan
Amount to an extent or in a manner which could
reasonably be expected to have a Material Adverse
Effect.
16.1.6.2 It is not, nor is it likely to be as a result of
entering into and performing its obligations under
the Transaction 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.
16.1.7 NO MISLEADING INFORMATION
16.1.7.1 All written information supplied by it to Mvela Gold
and the Senior Agent was true and accurate in all
material respects as at the date it was given and
was not misleading in any material respect at such
date.
16.1.7.2 It has not knowingly withheld any information which,
if disclosed, would reasonably be expected
materially and adversely to affect the decision of
Mvela Gold in considering whether or not to provide
finance to GFI-SA or the decision of the Senior
Lenders to provide finance to Mvela Gold.
16.1.8 FINANCIAL STATEMENTS
16.1.8.1 The Original Financial Statements were prepared in
accordance with IFRS consistently applied.
Page 45.
16.1.8.2 The Original Financial Statements fairly represent
the GFL Group's financial condition and operations
during the relevant financial year.
16.1.9 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at
least pari passu with the claims of all its other unsecured
and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies
generally in the jurisdiction of its incorporation.
16.1.10 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of
or before any court, arbitral body or government agency
which, if adversely determined, might reasonably be
expected to have a Material Adverse Effect have (to the
best of its knowledge and belief) been started or
threatened against it or any Material GFL Group Company.
16.1.11 NO WINDING-UP
No Material GFL Group Company has taken any corporate
action, nor have any other steps been taken or legal
proceedings started or (to the best of its knowledge and
belief, after due enquiry) threatened against any Material
GFL Group Company, for it winding-up, dissolution,
administration or re-organisation or for the enforcement of
any Encumbrance over all or any of its revenues or assets
or for the appointment of a receiver, administrator,
administrative receiver, conservator, custodian, trustee or
similar officer of it or of all or any of its assets which
could reasonably be expected to have a Material Adverse
Effect.
16.1.12 NO ENCUMBRANCES
16.1.12.1 No Encumbrance exists over all or any of the assets
of any Material Group Company except for Permitted
Encumbrances.
16.1.12.2 No Encumbrance would arise as a result of the
execution of and performance of its rights and
obligations under the Transaction Documents.
Page 46.
16.1.13 ASSETS
It and each Material GFL Group Company has good title to or
validly leases or licenses all of the assets necessary and
has all consents and/or authorisations necessary to carry
on its business as conducted to the extent that failure to
comply with this clause 16.1.13 could reasonably be
expected to have a Material Adverse Effect.
16.1.14 INSURANCE
Each GFL Obligor maintains insurances on and in relation to
its business and assets against those risks and to the
extent as is usual for companies in the jurisdiction in
which it conducts its business carrying on substantially
similar business in such jurisdiction.
16.1.15 ENVIRONMENTAL COMPLIANCE
Each Material GFL Group Company has adopted and complies
with an environmental policy which requires monitoring of
and compliance with all applicable Environmental Law and
Environmental Permits applicable to it from time to time
and compliance with such policy will not cause a Material
Adverse Effect.
16.1.16 ENVIRONMENTAL CLAIMS
No Environmental Claim (not of a frivolous or vexatious
nature) has been commenced or (to the best of its knowledge
and belief) is threatened against any Material GFL Group
Company where that claim would be reasonably likely, if
determined against that Material GFL Group Company, to have
a Material Adverse Effect.
16.1.17 TAXATION
16.1.17.1 It has duly and punctually paid and discharged all
Taxes imposed upon it or its assets within a time
period allowed without incurring penalties except to
the extent that:
16.1.17.1.1 payment is being contested in good faith;
16.1.17.1.2 it has maintained adequate reserves for those
Taxes; and
Page 47.
16.1.17.1.3 payment can be lawfully withheld.
16.1.17.2 It is not materially overdue in the filing of any
Tax returns.
16.1.18 OWNERSHIP OF GFI-SA
GFI-SA is, subject to the change in shareholding in GFI-SA
which shall arise on implementation of the Subscription and
Share Exchange Agreement, a wholly-owned subsidiary of GFL.
16.1.19 NO MATERIAL ADVERSE EFFECT
There has been no change in its business, condition
(financial or otherwise), operations, performance,
properties or prospects since:
16.1.19.1 in the case of the Guarantors, 30 June 2003; or
16.1.19.2 in the case of GFI-SA, the date of its
incorporation,
to the extent or in a manner which could reasonably be
expected to have a Material Adverse Effect provided that
the acquisition to be made by GFI-SA in terms of the
Re-organisation Agreement shall not constitute a Material
Adverse Effect.
16.2 REPETITION
16.2.1 The Repeating Representations are deemed to be made on each
Warranty Date by each GFL Obligor by reference to the facts
and circumstances then existing on that Warranty Date.
16.2.2 For the purposes of clause 16.2.1 above:
16.2.2.1 "REPEATING REPRESENTATIONS" means the
representations and warranties contained in clauses
16.1.1 (Status) to 16.1.19 (No Material Adverse
Effect) with the exceptions of clause 16.1.10 (No
Proceedings Pending or Threatened) (which shall not
constitute a Repeating Representation and which
shall only be deemed to have been made on the
Signature Date, the CP Satisfaction Date and the
date on which the Loan Amount is advanced to GFI-SA)
save that the references therein to "THE ORIGINAL
FINANCIAL STATEMENTS" shall, for the purposes of the
Page 48.
Repeating Representations, be construed as
references to the most recent audited consolidated
financial statements of the GFL Group and the
audited financial statements delivered to the Senior
Agent under clause 17.1 (Financial Statements).
16.2.2.2 "WARRANTY DATE" means:
16.2.2.2.1 the CP Satisfaction Date;
16.2.2.2.2 the date on which the Loan Amount is advanced
to GFI-SA; and
16.2.2.2.3 each Interest Payment Date.
16.3 RELIANCE
Mvela Gold has entered into or become party to the Finance
Documents to which it is a party on the strength of, and relying
on, the representations and warranties set out in clause 16.1
(Representations and Warranties), each of which shall be deemed to
be a separate representation and warranty given without prejudice
to any other representation or warranty and deemed to be a material
representation inducing Mvela Gold to enter into the Finance
Documents to which it is a party.
17. INFORMATION UNDERTAKINGS
The undertakings in this clause 17 (Information Undertakings) are given
in favour of Mvela Gold and remain in force from the Signature Date for
so long as any amount is outstanding under the Finance Documents.
17.1 FINANCIAL STATEMENTS
GFL shall supply to the Senior Agent:
17.1.1 as soon as the same become available, but in any event
within 120 (one hundred and twenty) days after the end of
each of its Financial Years:
17.1.1.1 the audited consolidated financial statements of GFL
for that Financial Year;
Page 49.
17.1.1.2 the audited financial statements of each GFL Obligor
for that Financial Year, with the exception of GFG,
only to the extent that there is no legal
requirement to audit its financial statements for
that Financial Year; and
17.1.1.3 the unaudited financial statements of GFG for that
Financial Year;
17.1.2 as soon as the same become available, but in any event
within 60 (sixty) days after the first 6 (six) months of
its Financial Years:
17.1.2.1 the unaudited financial statements of each GFL
Obligor for the first 6 (six) month period of that
Financial Year; and
17.1.2.2 the unaudited consolidated financial statements of
GFL for the first 6 (six) month period of that
Financial Year; and
17.1.3 as soon as the same become available, but in any event
within 45 (forty-five) days after the end of each quarter
of each Financial Year:
17.1.3.1 the unaudited consolidated financial statements of
GFL for that period;
17.1.3.2 the unaudited financial statements of each GFL
Obligor for that period.
17.2 COMPLIANCE CERTIFICATE
17.2.1 GFL shall supply to the Senior Agent, with each set of
financial statements delivered pursuant to clauses 17.1.1
and 17.1.2, a Compliance Certificate setting out (in
reasonable detail) computations as to compliance with
clause 18 (Financial Covenants) as at the date as at which
those financial statements were drawn up.
17.2.2 Each Compliance Certificate shall be signed by 2 (two)
directors of GFL and, if required to be delivered with the
financial statements delivered pursuant to clause 17.1.1,
by the Auditors.
17.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
17.3.1 Each set of financial statements delivered by GFL pursuant
to clause 17.1 (Financial Statements) shall be certified by
a director of the
Page 50.
relevant company as fairly representing its financial
condition as at the date as at which those financial
statements were drawn up.
17.3.2 GFL shall procure that each set of financial statements
delivered pursuant to clause 17.1 (Financial Statements) is
prepared in accordance with IFRS, the requirements of its
jurisdiction of incorporation and accounting practises and
financial reference periods consistent with those applied
in the preparation of the Original Financial Statements.
17.3.3 Clause 17.3.2 shall not apply to the extent that, in
relation to any sets of financial statements, GFL notifies
the Senior Agent that there has been a change in IFRS or
the accounting practices or reference periods and its
Auditors (in the case of its annual audited financial
statements) or GFL (in the case of any of its other
financial statements) delivers to the Senior Agent:
17.3.3.1 a description of any change necessary for those
financial statements to reflect IFRS, accounting
practices and reference periods upon which the
Original Financial Statements were prepared; and
17.3.3.2 sufficient information, in form and substance as may
be reasonably required by the Senior Agent, to
enable the Senior Agent to determine whether clause
18 (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.
17.3.4 If GFL notifies the Senior Agent of a change in accordance
with clause 17.3.3 above, then GFL, GFI-SA and the Senior
Agent shall enter into negotiations in good faith with a
view to agreeing:
17.3.4.1 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
17.3.4.2 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,
Page 51.
and if any amendments are agreed they shall take effect and
be binding on each of the Parties in accordance with their
terms.
17.3.5 Any reference in this Agreement to "financial statements"
shall be construed as a reference to those financial
statements as the same may be adjusted under this clause
17.3 to reflect the basis upon which the Original Financial
Statements were prepared.
17.4 ACCESS TO RECORDS
At any time after the occurrence of a Default and for so long as it
is continuing, upon the request of the Senior Agent or Mvela Gold
each GFL Obligor shall (at that GFL Obligor's expense) provide to
the Senior Agent or any of its representatives and professional
advisors such access to that GFL Obligor's records (including its
general ledger), books and assets as that person may require at
reasonable times and upon reasonable notice.
17.5 INFORMATION : MISCELLANEOUS
Each GFL Obligor shall supply to the Senior Agent, if the Senior
Agent or Mvela Gold so requests in writing:
17.5.1 all documents dispatched by that GFL Obligor to its
shareholders (or any class of them) or its creditors
generally at the same time as they are dispatched;
17.5.2 the details of any litigation, arbitration or
administrative proceedings which are current, threatened or
pending against any member of the GFL Group which, if
adversely determined against it, would be reasonably likely
to have a Material Adverse Effect; and
17.5.3 promptly, such further information (including an extract of
its general ledger) regarding the financial condition,
business and operations of any Material GFL Group Company
as the Senior Agent may reasonably request).
17.6 NOTIFICATION OF DEFAULT
17.6.1 Each GFL Obligor shall notify the Senior Agent, in writing
of any Default (and the steps, if any, being taken to
remedy it) promptly upon becoming aware of its occurrence
(unless that GFL Obligor is aware that a notification has
already been provided by another GFL Obligor).
Page 52.
17.6.2 Promptly upon a written request by the Senior Agent, GFI-SA
shall supply to the Senior 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).
18. FINANCIAL COVENANTS
18.1 FINANCIAL CONDITION
Each GFL Obligor shall ensure that for so long as any amount is
outstanding under any Finance Document:
18.1.1 the ratio of Consolidated EBITDA to Consolidated Net
Finance Charges in respect of any Measurement Period shall
be or shall exceed 6:1;
18.1.2 the ratio of Consolidated EBITDA to Net Debt Service, in
respect of any Measurement Period, shall not at the end of
such Measurement Period be less than 3.5:1;
18.1.3 the ratio of Consolidated Net Borrowings to Consolidated
EBITDA shall not respect of any Measurement Period exceed
2:1; and
18.1.4 Consolidated Tangible Net Worth shall not in respect of any
Measurement Period be less than US$650 000 000 (Six Hundred
and Fifty Million United States Dollars).
18.2 FINANCIAL TESTING
The financial covenants referred to in clause 18.1 (Financial
Condition) shall be tested in each case by reference to each of the
financial statements delivered pursuant to clauses 17.1.1 and
17.1.2 on the last day of each Measurement Period.
18.3 BREACH OF A FINANCIAL CONDITION UNDERTAKING
Immediately upon becoming aware of a breach of any of the Financial
Covenants, a GFL Obligor shall notify the Senior Agent with a copy
to Mvela Gold and provide such details about the breach as the
Senior Agent may request (unless that GFL Obligor is aware that a
notification has already been provided by another GFL Obligor).
Page 53.
19. GENERAL UNDERTAKINGS
The undertakings in this clause 19 (General Undertakings) are given in
favour of Mvela Gold and remain in force from the Signature Date for so
long as any amount is outstanding under the Finance Documents.
19.1 AUTHORISATION
Each GFL Obligor shall promptly:
19.1.1 obtain, comply with and do all that is necessary to
maintain in full force and effect; and
19.1.2 upon written request by the Senior Agent or Mvela Gold,
supply certified copies to the Senior Agent and/or Mvela
Gold, as the case may be, of,
any authorisation required or desirable under any applicable law to
enable it to perform its obligations under the Transaction
Documents to which it is a party (including, without limitation,
the mining authorisations and ministerial consents contemplated by
the Reorganisation Agreement) and to ensure the legality, validity,
enforceability or admissibility in evidence of any Transaction
Document to which it is a party in South Africa.
19.2 COMPLIANCE WITH LAWS
Each GFL Obligor shall comply in all respects with all laws and
regulations to which it may be subject (including, but not limited
to, Environmental Law), if failure so to comply would materially
impair its ability to perform its obligations under the Transaction
Documents to which it is a party.
19.3 NEGATIVE PLEDGE
19.3.1 No GFL Obligor shall (and GFL shall procure that no other
Material GFL Group Company shall) create or permit to
subsist any Encumbrance over any of its assets.
19.3.2 No GFL Obligor shall (and GFL shall ensure that no other
Material GFL Company will):
Page 54.
19.3.2.1 sell, transfer or otherwise dispose of any of its
assets on terms whereby they are or may be leased to
or re-acquired by it or by a GFL Obligor or any
other member of the GFL Group;
19.3.2.2 sell, transfer or otherwise dispose of any of its
receivables on recourse terms;
19.3.2.3 enter into any arrangement under which money or the
benefit of a bank or other account may be applied,
set-off or made subject to a combination of
accounts; or
19.3.2.4 enter into any other preferential arrangement having
a similar effect,
in circumstances where the arrangement or transaction is
entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset.
19.3.3 Clauses 19.3.1 and 19.3.2 above do not apply to Permitted
Encumbrances.
19.4 DISPOSALS AND MERGERS
19.4.1 No GFL Obligor shall (and GFL shall ensure that no other
Material GFL Company will):
19.4.1.1 enter into a single transaction or a series of
transactions (whether related or not) and whether
voluntarily or involuntarily to sell, lease,
transfer or otherwise dispose of any assets;
19.4.1.2 enter into any amalgamation, demerger, merger or
corporate reconstruction.
19.4.2 Clause 19.4.1 does not apply to:
19.4.2.1 Permitted Disposals; or
19.4.2.2 any amalgamation, demerger, merger or corporate
reconstruction of any member of the GFL Group,
without insolvency, if:
Page 55.
19.4.2.2.1 in respect of the GFL Obligors or the
successors-in-title or assignees of the GFL
Obligors, the Transaction Documents are
preserved as binding upon the amalgamated,
demerged, merged and/or reconstructed members
of the GFL Group; and
19.4.2.2.2 the amalgamated, demerged, merged and/or
reconstructed companies will be members of
the GFL Group; and
19.4.2.2.3 such amalgamation, demerger, merger and/or
corporate reconstruction not have a Material
Adverse Effect.
19.5 CHANGE OF BUSINESS
Each GFL Obligor shall procure that no substantial change is made
to the general nature of its business or the business of the GFL
Group from that carried on at the Signature Date.
19.6 INSURANCE
Each GFL Obligor shall (and GFL shall ensure that each Material GFL
Group Company will) maintain insurances on and in relation to its
business, properties and assets with reputable underwriters or
insurance companies against those risks and to the extent as is
usual for companies carrying on the same or substantially similar
business.
19.7 ENVIRONMENTAL COMPLIANCE
19.7.1 Each GFL Obligor shall (and GFL shall ensure that each
Material GFL Group Company will) substantially comply in
all material respects with all Environmental Law and obtain
and maintain any Environmental Permits and take all
reasonable steps in anticipation of known or expected
future changes to or obligations under the same.
19.7.2 GFL shall ensure, in respect of the operations and assets
of any Material GFL Group Company (including, without
limitation, GFI-SA), that such operations and assets
substantially comply with all the material provisions of
ISO 14001 and the all the material provisions of the World
Bank Group Environment, Health and Safety Guidelines.
Page 56.
19.8 ENVIRONMENTAL CLAIMS
Each GFL Obligor shall inform the Senior Agent with a copy to Mvela
Gold, in writing as soon as reasonably practical upon becoming
aware of the same:
19.8.1 if any Environmental Claim (not of a frivolous or vexatious
nature) has been commenced or (to the best of its knowledge
and belief) threatened against any Material GFL Group
Company; or
19.8.2 of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim (not of a
frivolous or vexatious nature) being commenced or
threatened against any Material GFL Group Company,
where the claim would be reasonably likely, if determined against
that Material GFL Group Company, to have a Material Adverse Effect.
19.9 TAXATION
Each GFL Obligor shall duly and punctually pay and discharge all
Taxes imposed upon it or its assets within the time period allowed
without incurring penalties save to the extent that:
19.9.1 payment is being contested in good faith;
19.9.2 adequate reserves are being maintained for those Taxes; and
19.9.3 where such payment can be lawfully withheld.
19.10 MAINTENANCE OF LEGAL STATUS
Each GFL Obligor shall do all such things as are necessary to
maintain its existence as a legal person and shall maintain its
books and records in good order and make all necessary corporate
filings with the relevant authorities in its jurisdiction of
incorporation.
19.11 CLAIMS PARI PASSU
Each GFL Obligor shall ensure that at all times the claims of Mvela
Gold against it under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors save those
Page 57.
whose claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application in its
jurisdiction of incorporation.
20. DEFAULT
20.1 EVENTS OF DEFAULT
Each of the events set out in this clause 20.1 (Events of Default)
is an Event of Default (whether or not caused by any reason
whatsoever outside the control of GFI-SA or GFL or any other
person).
20.1.1 NON-PAYMENT
20.1.1.1 A GFL Obligor does not pay on the due date any
amount (other than the Loan Amount) payable pursuant
to a Finance Document at the place at and in the
currency in which it is expressly payable unless:
20.1.1.1.1 its failure to pay is caused by
administrative or technical error; and
20.1.1.1.2 payment is made within 3 (three) Business
Days of its due date.
20.1.1.2 GFI-SA or any Guarantor does not repay the Loan
Amount in full within 3 (three) Business Days of its
due date.
20.1.2 FINANCIAL COVENANTS
Any requirement of clause 18 (Financial Covenants) is not
satisfied.
20.1.3 OTHER OBLIGATIONS
20.1.3.1 Subject to clause 20.3 (Remedy), a GFL Obligor does
not comply with any provision of the Finance
Documents (other than those referred to in clause
20.1.1 (Non-Payment) and clause 20.1.2 (Financial
Covenants)).
20.1.3.2 No Event of Default will occur under clause 20.1.3.1
if the Taxes not duly and punctually paid and
discharged and in respect of which the undertaking
contained in clause 19.9 is given do not
Page 58.
exceed an amount of ZAR25 000 000 (Twenty-five
Million Rand).
20.1.4 MISREPRESENTATION
20.1.4.1 Subject to clause 20.3 (Remedy), any representation
or statement made or deemed to be made by any GFL
Obligor in the Finance Documents or any other
document delivered by or on behalf of any GFL
Obligor under or in connection with any Finance
Document is or proves to have been incorrect or
misleading in any material and adverse respect when
made or deemed to be made.
20.1.4.2 No Event of Default will occur under clause 20.1.4.1
if the Taxes in respect of which the
representation(s) contained in clauses 16.1.17.1 and
16.1.17.2 was/were made does/do not exceed an amount
of ZAR25 000 000 (Twenty-five Million Rand).
20.1.5 CROSS-DEFAULT
20.1.5.1 Any Financial Indebtedness of any Material GFL Group
Company (other than a Project Finance Subsidiary) is
not paid when due, nor where there is an applicable
grace period, within the earlier to expire of the
originally applicable grace period and a period of 5
(five) days starting at the same time as the
originally applicable grace period.
20.1.5.2 Any Financial Indebtedness of any Material GFL Group
Company (other than a Project Finance Subsidiary) is
declared to be or otherwise becomes due and payable
prior to its specified maturity as a result of an
event of default (however described).
20.1.5.3 Any commitment for any Financial Indebtedness of any
Material GFL Group Company (other than a Project
Finance Subsidiary) is cancelled or suspended by a
creditor of any Material GFL Group Company as a
result of an event of default (however described).
20.1.5.4 Any creditor of any Material GFL Group Company
becomes entitled to declare any Financial
Indebtedness of any Material GFL Group Company
(other than a Project Finance Subsidiary) due and
payable prior to its specified maturity as a result
of an event of default (however described).
Page 59.
20.1.5.5 No Event of Default will occur under this clause
20.1.5 if the aggregate amount of Financial
Indebtedness or commitment for Financial
Indebtedness falling within clauses 20.1.5.1 to
20.1.5.4 above is less than ZAR75 000 000
(Seventy-five Million Rand).
20.1.6 INSOLVENCY
20.1.6.1 Any Material GFL Group Company is unable or admits
inability to pay its debts as they fall due,
suspends making payments on any of its debts or, by
reason of actual or anticipated financial
difficulties, commences negotiations with one or
more of its classes of creditors with a view to
rescheduling any of its Financial Indebtedness which
in the case of a Material GFL Group Company (other
than a GFL Obligor) could reasonably be expected to
have a Material Adverse Effect.
20.1.6.2 The value of the assets of any Material GFL Group
Company is less than its liabilities (taking into
account contingent and prospective liabilities)
which in the case of a Material GFL Group Company
(other than a GFL Obligor) could reasonably be
expected to have a Material Adverse Effect.
20.1.6.3 A moratorium is declared in respect of any Financial
Indebtedness of any GFL Obligor.
20.1.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other similar
procedure or steps taken in relation to:
20.1.7.1 the suspension of payments, a moratorium of any
Financial Indebtedness, winding-up, dissolution,
administration or re-organisation (by way of
voluntary arrangement, scheme of arrangement or
otherwise) of any GFL Obligor;
20.1.7.2 a composition, compromise, assignment or arrangement
with any creditor or class of creditors of any GFL
Obligor;
20.1.7.3 the appointment of a liquidator, receiver,
administrator, administrative receiver, judicial
manager, compulsory manager or other similar officer
in respect of any GFL Obligor or any of its assets;
or
Page 60.
20.1.7.4 enforcement of any Encumbrance over any assets of
any GFL Obligor,
or any analogous procedure or step is taken in any
jurisdiction and any such procedure or proceedings are not
contested in good faith nor discharged within 30 (thirty)
days (or such shorter period provided for contesting such
procedure or proceedings under the laws of the relevant
jurisdiction).
20.1.8 FAILURE TO COMPLY WITH FINAL JUDGEMENT
Any Material GFL Group Company fails within 5 (five)
Business Days of the due date to comply with or pay any sum
due from it under any material final judgement or any final
order made or given by any court of competent jurisdiction.
For the purposes of this clause 20.1.8, a "MATERIAL FINAL
JUDGEMENT" shall be any judgement for the payment of a sum
of money in excess of ZAR75 000 000 (Seventy-five Million
Rand).
20.1.9 CREDITORS' PROCESS
Any expropriation (other than an expropriation where fair
compensation is received) or the operation of the
attachment, sequestration, distress or execution affects
any material asset of a Material GFL Group Company and is
not discharged within 21 (twenty-one) days. For the
purposes of this clause 20.1.9 a "MATERIAL ASSET" is any
single income producing asset of the relevant Material GFL
Group Company which contributes not less than 5% (five
percent) towards the gross turnover of the GFL Group
(calculated according to the most recent set of audited
consolidated financial statements delivered pursuant to
clause 17.1 (Financial Statements) provided that any loss
of mineral rights arising as a result of the operation of
the Mineral and Petroleum Resources Development Act, No. 28
of 2002 substantially in its current form as at the
Signature Date and/or the operation of the Minerals and
Petroleum Royalty Bill in substantially its current form
once enacted shall not constitute an expropriation for the
purposes of this clause 20.1.9.
20.1.10 UNLAWFULNESS
It is or becomes unlawful for a GFL Obligor to perform any
of its obligations under the Transaction Documents or such
obligations cease to be legal, valid, binding or
enforceable obligations.
Page 61.
20.1.11 REPUDIATION AND UNENFORCEABILITY
A GFL Obligor repudiates a Transaction Document or any
Transaction Document is declared to be or is otherwise
unenforceable against a GFL Obligor by a court of the
jurisdiction of incorporation of the relevant GFL Obligor.
20.1.12 GOVERNMENTAL INTERVENTION
By or under the authority of any government:
20.1.12.1 the management of any Material GFL Group Company is
wholly or partially displaced or the authority of any
Material GFL Group Company in the conduct of its
business is wholly or partially taken over; or
20.1.12.2 all or a majority of the issued shares of any
Material GFL Group Company or material part of its
revenues or assets is seized, nationalised,
expropriated or compulsorily acquired. For the
purposes of this clause 20.1.12.2 "MATERIAL PART OF
ITS REVENUES OR ASSETS" shall in relation to the
relevant Material GFL Group Company be construed as
revenues comprising not less than 5% (five percent)
of the gross turnover of the GFL Group calculated
mutatis mutandis in accordance with the provisions of
clause 20.1.9 or assets which contribute not less
than 5% (five percent) towards the gross turnover of
the GFL Group calculated mutatis mutandis accordance
with the provisions of clause 20.1.9, provided that
neither the implementation of the Mineral and
Petroleum Resources Development Act, No. 28 of 2002
substantially in its current form as at the Signature
Date nor the implementation of the Minerals and
Petroleum Royalty Bill in substantially its current
form once enacted shall constitute a seizure,
nationalisation, expropriation or compulsory
acquisition as contemplated by this clause 20.1.12.2.
20.1.13 BREACH OF TRANSACTION DOCUMENTS
Any GFL Obligor breaches any material provision of any
Transaction Documents (other than the Reorganisation
Agreement) and, if capable of remedy, fails to remedy such
breach within the applicable remedy period.
Page 62.
20.1.14 MATERIAL ADVERSE EFFECT
Any change occurs in the business, condition (financial or
otherwise), operations, performance, properties or
prospects of any GFL Obligor or the GFL Group as a whole
since the date of the last set of annual financial
statements provided to the Senior Agent in accordance with
this Agreement in relation to such GFL Obligor or the GFL
Group, as appropriate which would be reasonably likely to
have a Material Adverse Effect.
20.1.15 CESSATION OF BUSINESS
Any GFL Obligor ceases to carry on the business which it
undertakes at the Signature Date.
20.1.16 LITIGATION
Any litigation, arbitration, administrative proceedings or
governmental or regulatory investigations or proceedings
against any Material GFL Group Company or its respective
assets or revenues is reasonably expected to be adversely
determined, and if so determined, could reasonably be
expected to have a Material Adverse Effect.
20.1.17 CHANGE IN CONTROL
Any change in control of GFL occurs without the prior
written consent of the Senior Agent acting on the
instructions of the Majority Senior Lenders in
circumstances where such change in control could reasonably
be expected to have a Material Adverse Effect.
20.1.18 OWNERSHIP OF GFI-SA
GFI-SA ceases to be a wholly owned subsidiary of GFL at any
time prior to the Discharge Date.
20.2 ACCELERATION
20.2.1 On and at any time after the occurrence of an Event of
Default which is continuing the Senior Agent (and only the
Senior Agent in accordance with the terms of the
Intercreditor Agreement) may by written notice to
Page 63.
the GFL Obligors (with a copy to Mvela Gold) on behalf of
Mvela Gold:
20.2.1.1 demand immediate repayment of the Loan Amount which
shall thereupon become immediately due and payable;
and
20.2.1.2 claim and recover, and demand immediate payment, from
GFI-SA of the present value of each Future Interest
Payment Amount, which shall be calculated by
discounting the face value of each such Future
Interest Payment Amount at the Termination Rate from
its due date to the Default Date together with (if
applicable) interest thereon at the Default Rate
calculated from the Default Date to the actual date
of payment; and
20.2.1.3 claim and recover, and demand immediate payment, from
GFI-SA of an additional amount (if any), as certified
in writing by the Senior Agent, which may be required
to enable Mvela Gold to settle its obligations to pay
any Tax arising as a consequence of the early payment
of the amounts referred to in clauses 20.2.1.1,
20.2.1.2 and/or 20.2.1.3 to the extent that, after
settlement of Mvela Gold's obligations in full under
the Senior Loan Agreement, it has insufficient cash
resources of its own to pay such Tax; and
20.2.1.4 demand immediate payment of all amounts due and
payable by GFI-SA in terms of this Agreement which
have not been paid at the Default Date, plus
20.2.1.5 demand immediate payment of interest calculated at
the Default Rate on all amounts of interest which are
in arrears as at the Default Date under this
Agreement calculated from due date to date of actual
payment.
20.2.2 Without prejudice to any claim(s) which Mvela Gold may have
for specific performance as against any GFL Obligor(s)
including without limitation, payment of interest, the
acceleration remedy as set out in clause 20.2.1 shall be
the sole and exclusive remedy available to Mvela Gold
hereunder in relation to an Event of Default and may only
be exercised by the Senior Agent on behalf of Mvela Gold.
20.2.3 Notwithstanding the provisions of clause 26.5.2, the Senior
Agent will be obliged to exercise all of the rights under
clause 20.2.1 simultaneously and may not partially exercise
such rights.
Page 64.
20.3 REMEDY
20.3.1 No Event of Default under this clause 20 (Default) (other
than those referred to in clause 20.1.1 (Non-Payment) and
20.1.2 (Financial Covenants)) will occur if the failure to
comply or circumstance giving rise to the same is capable
of remedy and is remedied by a GFL Obligor within 10 (ten)
days of the Senior Agent giving notice to the GFL Obligors
or any GFL Obligor becoming aware of the failure to comply.
20.3.2 For the purposes of clause 20.3.1 above, the events or
circumstances referred to in clause 20.1.5 (Cross-Default),
clause 20.1.6 (Insolvency), clause 20.1.7 (Insolvency
Proceedings), clause 20.1.8 (Failure to Comply with Final
Judgement), clause 20.1.10 (Unlawfulness), clause 20.1.11
(Repudiation and Unenforceability), clause 20.1.12
(Governmental Intervention), clause 20.1.14 (Material
Adverse Change) and clause 20.1.15 (Cessation of Business)
shall be deemed to be incapable of remedy save to the
extent set out therein unless the Senior Agent determines
otherwise.
21. DISCLOSURE OF INFORMATION BY TRANSACTION AGENT AND EXCLUSION OF
TRANSACTION AGENT'S LIABILITY
21.1 The Senior Agent shall be entitled (in accordance with the terms
of the Intercreditor Agreement) to disclose all information and to
copy all such documentation received by it hereunder from the GFL
Obligors to the Transaction Participants and the GFL Obligors
hereby consent to such information being disclosed and
documentation being made available by the Senior Agent to the
Transaction Participants. To the extent that the Senior Agent does
not disclose any such information and/or make available
documentation received by it hereunder to the Transaction
Participants or any one of them, then the Transaction Participants
or any one of them shall be entitled to enforce their right to
receive such information and documentation directly against the
GFL Obligors and the GFL Obligors shall notwithstanding that such
information and/or documentation may have been made available
and/or disclosed to the Senior Agent, nevertheless be obliged to
disclose such information and/or make available such
documentation, as the case may be, to the Transaction Participants
or any one of them as if the Transaction Participants or any one
of them were the Senior Agent.
21.2 Unless caused directly by its gross negligence, wilful default or
fraud, the Senior Agent shall not accept responsibility or be
liable for:
Page 65.
21.2.1 the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the
Senior Agent, a GFL Obligor or any other person given in or
in connection with any Finance Document;
21.2.2 the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any
Finance Document;
21.2.3 any losses to any person or any liability arising as a
result of taking or refraining from taking any action in
accordance with the Finance Documents in relation to any of
the Finance Documents or otherwise, whether in accordance
with an instruction pursuant to the Intercreditor
Agreement;
21.2.4 the exercise of, or the failure to exercise, (in each case
in accordance with the Finance Documents) any judgement,
discretion or power given to it by or in connection with
any of the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the
Finance Documents;
21.2.5 the form, substance, adequacy or scope of any legal
opinions addressed to it or to Mvela Gold; or
21.2.6 any error of judgement made in good faith by any officer or
employee of the Senior Agent assigned by the Senior Agent
to administer the matters contemplated by this Agreement
and the Finance Documents.
21.3 Clause 21.1 above does not apply in respect of any document
produced by the Senior Agent in its capacity as such for the
purposes of the Finance Documents, but, if such document is to be
relied on by any other Party, only if the Senior Agent expressly
agrees to be responsible for such document.
21.4 Without limiting clause 21.5 below, the Senior Agent will not be
liable for any action taken by it under or in connection with any
Finance Document, unless directly caused by its gross negligence
or wilful misconduct.
21.5 No Party (other than the Senior Agent) may take any proceedings
against any director, officer, employee or agent of the Senior
Agent (in their personal capacity) in respect of any claim it
might have against the Senior Agent or in
Page 66.
respect of any act or omission of any kind of that director,
officer, employee or agent in relation to any Finance Document and
the provisions of this clause 21.5 constitutes stipulations for
the benefit of such directors, officers, employees and/or agents.
21.6 The Senior Agent shall have regard to the interests only of Mvela
Gold as regards the exercise and performance of all powers,
authorities, duties and discretions of the Senior Agent under this
Agreement and the other Finance Documents to which it is a party.
21.7 In performing or carrying out its duties, obligations and
responsibilities, the Senior Agent shall be considered to be
acting only in a mechanical and administrative capacity (save as
expressly provided in this Agreement and the other Finance
Documents to which it is a party) and shall not have or be deemed
to have any duty, obligation or responsibility to, or relationship
of trust or agency with Mvela Gold or any GFL Obligor.
22. CESSION, DELEGATION AND ASSIGNMENT
22.1 NO CESSION, DELEGATION OR ASSIGNMENT
Save pursuant to the Senior Cession in Security and the Mezz SPV
Reversionary Cession in Security (which cessions in security by
Mvela Gold are hereby consented to by the GFL Obligors), no Party
may cede or assign any of its rights or delegate or transfer any
of its obligations in respect of any Finance Documents or the
Liabilities without the prior written consent of the other
Parties.
22.2 SPLITTING OF CLAIMS
The GFL Obligors consent to any splitting of claims that may arise
pursuant to any cession, assignment and/or delegation effected in
accordance with the provisions of the Senior Cession in Security
and the Mezz SPV Reversionary Cession in Security..
Page 67.
23. PAYMENT MECHANICS
23.1 PAYMENTS
Any payment to be made by any GFL Obligor under this Agreement or
any other Finance Document shall be made to the Collection Account
by no later than 14h00 on its due date.
23.2 NO WITHHOLDING
All payments to be made by a GFL Obligor under the Finance
Documents shall be calculated and made on due date in immediately
available, freely transferable, cleared funds free and clear of
any deduction, set-off or counterclaim.
24. CHANGE IN CIRCUMSTANCES, INCREASED COSTS OR ILLEGALITY
24.1 In the event that Mvela Gold is liable for any increased costs
pursuant to the terms of the Senior Loan Agreement resulting from
the imposition of, or changes in the administration or
interpretation of, capital ratio or reserve requirements on
contingent liabilities or other measures imposed by regulatory
authorities (each a "CHANGE IN CIRCUMSTANCES") and Mvela Resources
or Mvela Gold fails to compensate the Senior Lenders directly for
such increased costs, then there will be an increase in the
Interest Rate to place Mvela Gold in the same position it would
have been in but for any Change in Circumstances.
24.2 In the event there is a change in the income tax rate for normal
tax applicable to Mvela Gold and/or Mezz SPV or a change in any
Tax law or any change in the administration or interpretation of
any Tax law resulting in an increase or decrease in Mvela Gold's
and/or Mezz SPV's net taxable income or a new tax which was not
applicable as at the Signature Date (each a "CHANGE IN TAX
CIRCUMSTANCES") then there will be an increase or decrease in the
Interest Rate to place Mvela Gold and/or Mezz SPV, as the case may
be, in the same position it would have been in but for any Change
in Tax Circumstances; provided that there will be no such increase
in the Interest Rate unless Mvela Resources has failed to perform
its obligations under the Sponsor Support, Guarantee and Retention
Agreement.
24.3 If any introduction, change in interpretation, variation or
imposition of any law makes it unlawful or impossible without
breach of such law (but this Agreement is still legal, valid and
enforceable) for Mvela Gold to provide the
Page 68.
Loan hereunder, or to make all or any part of the Advance, or to
allow any part of the Loan to be outstanding, or to carry out any
of its obligations hereunder, or to charge or receive interest at
the Interest Rate in terms of this Agreement, then GFI-SA shall
repay or prepay, without penalty, to Mvela Gold the amount
calculated mutatis mutandis in accordance with the provisions of
clause 20.2, on the next Interest Payment Date or such earlier
date as may be required by law provided that the amount which
GFI-SA is required to repay or prepay in terms of this clause
shall be limited to the amount required to cure the illegality or
impossibility as the case may be.
25. CONFIDENTIALITY
25.1 Without the prior written consent of the other Parties, each Party
will keep confidential and will not disclose to any person:
25.1.1 the details of any document, the details of the
negotiations leading to any document, and the information
handed over to such Party during the course of
negotiations, as well as the details of all the
transactions or Agreements contemplated in any document;
and
25.1.2 all information relating to the business or the operations
and affairs of the Parties (together "CONFIDENTIAL
INFORMATION").
25.2 The Parties agree to keep all Confidential Information
confidential and to disclose it only to their officers, directors,
employees, consultants, shareholders, professional advisers and
any person to whom the Parties wish to cede any or their
respective rights or delegate any of their respective obligations
under any of the Finance Documents who:
25.2.1 have a need to know (and then only to the extent that each
such person has a need to know);
25.2.2 are aware of the disclosing Party's undertaking in relation
to such information in terms of this Agreement; and
25.2.3 have been directed by the disclosing Party to keep the
Confidential Information confidential and have undertaken
to keep the Confidential Information confidential.
Furthermore, if any Party so requires, the disclosing Party
shall procure that each of its employees to whom such
disclosure is made, provides a written undertaking of
confidentiality to the requesting Party, on terms which
meet with that Party's reasonable satisfaction.
Page 69.
25.3 The obligations of the Parties in relation to the maintenance and
non-disclosure of Confidential Information in terms of this
Agreement do not extend to information that:
25.3.1 is disclosed to the receiving Party in terms of this
Agreement but at the time of such disclosure such
information is known to be in the lawful possession or
control of that Party and not subject to an obligation of
confidentiality; or
25.3.2 is or becomes public knowledge, otherwise than pursuant to
a breach of this Agreement by the Party who received such
Confidential Information; or
25.3.3 is required by the provisions of any law, statute or
regulation or during any court proceedings, or by the rules
or regulations of any recognised stock exchange to be
disclosed and subject to the provisions of clause 25.4, the
Party required to make the disclosure has taken all
reasonable steps to limit, as far as reasonably possible,
the extent of such disclosure and has consulted with the
other Party prior to making such disclosure; or
25.3.4 is disclosed generally to professional advisors who are
either under a duty to maintain the privilege of such
Confidential Information or who have agreed to keep such
Confidential Information confidential; or
25.3.5 is disclosed to any Transaction Participant.
25.4 Before any announcement or statement relating to Confidential
Information only is made as required by any law, statute or
regulation, or the rules or regulations of any recognised stock
exchange, the Parties shall use their reasonable endeavours to
provide the other Party with a written draft of the proposed
announcement or statement at least 48 (forty eight) hours before
the proposed time of the announcement and the Parties shall also
use their reasonable endeavours to agree the wording and timing of
all public announcements and statements relating to Confidential
Information. If a written draft of the proposed announcement
cannot be provided to the other Party or agreement cannot be
reached, by the time that any such announcement or statement must
be made, the Party in question shall be free to make the relevant
announcement or statement notwithstanding that such agreement has
not been reached, but in so doing it shall not disclose more than
the minimum information that it is compelled to disclose. Copies
of any public announcement or statement shall be given to the
other Party in the most expeditious manner reasonably available.
Page 70.
26. MISCELLANEOUS
26.1 RENUNCIATION OF BENEFITS
Each GFL Obligor renounces, to the extent permitted under
applicable law, the benefits of each of the legal exceptions of
excussion, division, revision of accounts, no value received,
errore calculi, non causa debiti, non numeratae pecuniae and
cession of actions, and declares that it understands the meaning
of each such legal exception and the effect of such renunciation.
26.2 ACCOUNTS AND CERTIFICATES
Any certificate issued, and signed by any manager or director
(whose appointment, designation and authority as such it shall not
be necessary to prove) of the Senior Agent shall, save for
manifest error, be prima facie proof of the amounts from time to
time owing by any GFL Obligor under the Finance Documents.
26.3 SOLE AGREEMENT
This Agreement constitutes the sole record of the agreement
between the Parties in regard to the subject matter hereof.
26.4 NO IMPLIED TERMS
No Party shall be bound by any express or implied term,
representation, warranty, promise or the like, not recorded in
this Agreement.
26.5 NO VARIATION
26.5.1 No addition to, amendment to, variation or consensual
cancellation of this Agreement and no extension of time,
waiver or relaxation or suspension of any of the provisions
or terms of this Agreement shall be of any force or effect
unless in writing and signed by or on behalf of all the
Parties.
26.5.2 Notwithstanding the provisions of clause 26.5.1, Mvela Gold
hereby agrees that:
26.5.2.1 the Senior Agent and the GFL Obligors may amend or
vary; and/or
Page 71.
26.5.2.2 the Senior Agent may in its sole discretion grant
extensions of time, waivers, relaxations or suspend,
the provisions of clauses 16 (Representations and
Warranties) (other than clauses 16.1.1 (Status), 16.1.2
(Power and Authority), 16.1.3 (Binding Obligations), 16.1.4
(Non-Conflict with other Obligations) and 16.1.5 (Validity
and Admissibility in Evidence) and 16.1.9 (Pari Passu
Ranking)), 18 (Financial Covenants), 19 (General
Undertakings) (other than clauses 19.1 (Authorisation) and
19.11 (Claims Pari Passu)) and 20 (Default) (other than
clause 20.2 (Acceleration) but without prejudice to the
Senior Agent's right to deliver, defer the delivery of or
not to deliver the Acceleration Notice under clause 20.2
(Acceleration) in accordance with the terms of the
Intercreditor Agreement) without requiring Mvela Gold's
consent and any such amendment or variation or extension of
time, waiver, relaxation or suspension shall be binding on
Mvela Gold.
26.6 EXTENSIONS AND WAIVERS
No latitude, extension of time or other indulgence which may be
given or allowed by any Party to any other Party in respect of the
performance of any obligation hereunder or enforcement of any
right arising from this Agreement and no single or partial
exercise of any right by any Party shall under any circumstances
be construed to be an implied consent by such Party or operate as
a waiver or a novation of, or otherwise affect any of that Party's
rights in terms of or arising from this Agreement or estop such
Party from enforcing, at any time and without notice, strict and
punctual compliance with each and every provision or term of this
Agreement.
26.7 FURTHER ASSURANCES
The Parties undertake at all times to do all such things, to
perform all such acts and to take all such steps and to procure
the doing of all such things, the performance of all such actions
and the taking of all such steps as may be open to them and
necessary for or incidental to the putting into effect or
maintenance of the terms, conditions and import of this Agreement.
26.8 WAIVER OF DEFENCES
The provisions of this Agreement will not be affected by an act,
omission, matter or thing which, but for this clause 26.8, would
reduce, release or prejudice the subordination and priorities in
this Agreement including:
Page 72.
26.8.1 any time, waiver or consent granted to, or composition with
any person;
26.8.2 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
Mvela Gold 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;
26.8.3 any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of any person;
26.8.4 any amendment (however fundamental) or replacement of a
Finance Document or any other document or security;
26.8.5 any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security; or
26.8.6 any intermediate payment or discharge of any of the
Liabilities in whole or in part.
26.9 INDEPENDENT ADVICE
Each of the Parties acknowledges that they have been free to
secure independent legal and other advice as to the nature and
effect of all of the provisions of this Agreement and that they
have either taken such independent legal and other advice or
dispensed with the necessity of doing so. Further, each of the
Parties acknowledges that all of the provisions of this Agreement
and the restrictions therein contained are fair and reasonable in
all the circumstances and are part of the overall intention of the
Parties in connection with this Agreement.
26.10 COUNTERPARTS
This Agreement may be executed in any number of counterparts and
by different parties thereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all
of which when taken together shall constitute one and the same
agreement.
Page 73.
26.11 WAIVER OF IMMUNITY
Each GFL Obligor waives generally all immunity it or its assets or
revenues may otherwise have in any jurisdiction, including
immunity in respect of:
26.11.1 the giving of any relief by way of interdict or order for
specific performance or for the recovery of assets or
revenues; and
26.11.2 the issue of any process against its assets or revenues for
the enforcement of a judgement or, in an action in rem, for
the arrest, detention or sale of any of its assets and
revenues.
27. NOTICES AND DOMICILIA
27.1 NOTICES
27.1.1 Each Party chooses the addresses set out opposite its name
below as its addresses to which any written notice in
connection with this Agreement to which they are a party,
may be addressed.
27.1.1.1 MVELA GOLD:
Physical Address: 1 Albury Park
First Floor South Wing
Magalieszicht Avenue
DUNKELD WEST
Telefax No: (011) 325-5320
e-mail: jean@mvelares.co.za
Attention: The Company Secretary
27.1.1.2 GFI-SA:
Physical Address: 24 St Andrews Road
PARKTOWN
Johannesburg
Telefax No: (011) 484-5842
e-mail: cain.farrell@goldfields.co.za
Attention: The Company Secretary
Page 74.
27.1.1.3 GFL:
Physical Address: 24 St Andrews Road
PARKTOWN
Johannesburg
Telefax No: (011) 484-5842
e-mail: cain.farrell@goldfields.co.za
Attention: The Company Secretary
27.1.1.4 SENIOR AGENT:
Physical Address: 1 Merchant Place
1 Fredman Drive
SANDTON
Telefax No: (011) 282-8328
e-mail: brian.longley@rmb.co.za
Attention: Head of Structured Finance
27.1.2 Any notice or communication required or permitted to be
given in terms of this Agreement shall be valid and
effective only if in writing but it shall be competent to
give notice by telefax.
27.1.3 Any Party may by written notice to the other Parties change
its chosen address, e-mail address and/or telefax number
for the purposes of clause 27.1.1 to any other address,
e-mail address and/or telefax number, provided that the
change shall become effective on the fourteenth day after
the receipt of the notice by the addressee.
27.1.4 Any notice given in terms of this Agreement shall:
27.1.4.1 if sent by a courier service, be deemed to have been
received by the addressee on the 7th (seventh)
Business Day following the date of such sending;
27.1.4.2 if delivered by hand, be deemed to have been received
by the addressee on the date of delivery;
27.1.4.3 if transmitted by facsimile, be deemed to have been
received by the addressee on the first Business Day
after the date of transmission,
Page 75.
unless the contrary is proved.
27.1.5 Notwithstanding anything to the contrary herein contained,
a written notice or communication actually received by a
Party shall be an adequate written notice or communication
to it, notwithstanding that it was not sent to or delivered
at its chosen address and/or telefax number.
27.2 DOMICILIA
27.2.1 Each of the Parties chooses its address referred to in
clause 27.1 as its domicilium citandiet executandi at
which documents in legal proceedings in connection with
this Agreement may be served.
27.2.2 Any Party may by written notice to the other Parties change
its domicilium from time to time to another address, not
being a post office box or a poste restante, in South
Africa; provided that any such change shall only be
effective on the fourteenth day after deemed receipt of the
notice by the other Party pursuant to clause 27.1.4 and
27.1.5, as the case may be.
28. GOVERNING LAW
The entire provisions of this Agreement shall be governed by and
construed in accordance with the laws of South Africa.
29. JURISDICTION
The Parties hereby irrevocably and unconditionally consent to the
non-exclusive jurisdiction of the Witwatersrand Local Division of the
High Court of South Africa (or any successor to that division) in
regard to all matters arising from this Agreement.
30. SEVERABILITY
Each provision in this Agreement is severable from all others,
notwithstanding the manner in which they may be linked together or
grouped grammatically, and if in terms of any judgment or order, any
provision, phrase, sentence, paragraph or clause is found to be
defective or unenforceable for any reason, the remaining provisions,
phrases, sentences, paragraphs and clauses shall nevertheless continue
to be of full force. In particular, and without limiting the generality
of the aforegoing, the Parties acknowledge their intention to continue
to be bound by this Agreement notwithstanding that any provision may be
found to be unenforceable or void or
Page 76.
voidable, in which event the provision concerned shall be severed from
the other provisions, each of which shall continue to be of full force
but provided always that the overall commercial intent and purpose of
the transaction constituted by the Transaction Documents is preserved
notwithstanding the severance of such provision(s).
31. STIPULATIONS FOR THE BENEFIT OF TRANSACTION PARTICIPANTS
The provisions of this Agreement which confer rights or benefits on any
Transaction Participant constitute stipulations in favour of each of
such Transaction Participant and shall be deemed to have been accepted
by such Transaction Participant and to constitute a binding agreement
in favour of such Transaction Participant (notwithstanding that the
Transaction Participant shall not have executed this Agreement ) by the
execution by such Transaction Participant of an Acceptance of Benefits
and delivery thereof to the Senior Agent at any time.
SIGNED at _________________ on this the _________ day of _____________ 2003.
For and on behalf of
GFI MINING SOUTH AFRICA LIMITED
____________________________
Name:
Capacity:
Who warrants his authority hereto
SIGNED at _________________ on this the _________ day of _____________ 2003.
For and on behalf of
GOLD FIELDS LIMITED
____________________________
Name:
Capacity:
Who warrants his authority hereto
Page 77.
SIGNED at _________________ on this the _________ day of _____________ 2003.
For and on behalf of
GOLD FIELDS AUSTRALIA PTY LIMITED
____________________________
Name:
Capacity:
Who warrants his authority hereto
SIGNED at _________________ on this the _________ day of _____________ 2003.
For and on behalf of
GOLD FIELDS GUERNSEY LIMITED
____________________________
Name:
Capacity:
Who warrants his authority hereto
SIGNED at __________________ on this the _________ day of _____________ 2003.
For and on behalf of
LEXSHELL 579 INVESTMENTS
(PROPRIETARY) LIMITED
____________________________
Name:
Capacity:
Who warrants his authority hereto
Page 78.
SIGNED at __________________ on this the _________ day of _____________ 2003.
For and on behalf of
FIRSTRAND BANK LIMITED (ACTING
THROUGH ITS RAND MERCHANT BANK
DIVISION)
____________________________
Name:
Capacity:
Who warrants his authority hereto
____________________________
Name:
Capacity:
Who warrants his authority hereto
Page 79.
SCHEDULE 1
FINANCIAL CLOSE DOCUMENTS
PART 1 : FINANCIAL CLOSE DOCUMENTS
1. A Formalities Certificate in the form of Part 2 of Schedule 1
(Financial Close Documents) in respect of:
1.1 GFI-SA,
1.1.1 attaching:
1.1.1.1 a true copy of a resolution of the board of directors
of GFI-SA:
(a) approving the terms of, and the transactions
contemplated by, the Transaction Documents to
which it is a party and resolving that it
execute those Transaction Documents;
(b) authorising a specified person or persons to
execute the Transaction Documents to which it
is a party on its behalf; and
(c) authorising a specified person or persons, on
its behalf, to sign and/or despatch all
documents and notices to be signed and/or
despatched by it under or in connection with
the Transaction Documents to which it is a
party;
1.1.1.2 a specimen of the signature of each person authorised
by the resolution referred to in paragraph 1.1.1.1
above;
1.1.2 containing a statement:
1.1.2.1 that borrowing the Loan Amount would not cause any
borrowing or similar limit in its Constitutive
Documents to be exceeded;
1.1.2.2 that as at the date of the Formalities Certificate no
Default has occurred or is continuing;
Page 80.
1.1.2.3 that as at the date of the Formalities Certificate
the representations and warranties in clause 16.1
(Representations and Warranties) of this Agreement
are correct in all material respects.
1.2 THE GUARANTORS,
1.2.1 attaching:
1.2.1.1 a true copy of a resolution of the board of directors
of each Guarantor:
(a) approving the terms of, and the transactions
contemplated by, the Transaction Documents to
which it is a party and resolving that it
execute those Transaction Documents;
(b) authorising a specified person or persons to
execute the Transaction Documents to which it
is a party on its behalf; and
(c) authorising a specified person or persons, on
its behalf, to sign and/or despatch all
documents and notices to be signed and/or
despatched by it under or in connection with
the Transaction Documents to which it is a
party;
1.2.1.2 a specimen of the signature of each person authorised
by the resolution referred to in paragraph 1.2.1.1
above;
1.2.2 containing a statement:
1.2.2.1 that guaranteeing payment of the Loan Amount would
not cause any borrowing or similar limit in its
Constitutive Documents to be exceeded;
1.2.2.2 that as at the date of the Formalities Certificate no
Default has occurred or is continuing;
1.2.3 that as at the date of the Formalities Certificate the
representations and warranties in clause 16.1
(Representations and Warranties) of this Agreement are
correct in all material respects.
Page 81.
2. LEGAL OPINIONS
2.1 A legal opinion of Edward Nathan & Friedland (Proprietary) Limited
in respect of the GFL Obligors with the exception of GFA and GFG
in an agreed form.
2.2 A legal opinion from foreign counsel in respect of GFA and GFG in
an agreed form.
2.3 A legal opinion of Werksmans Inc. in respect of Mvela Resources,
Mvela Gold and MHL in an agreed form.
2.4 A legal opinion for a Senior Counsel acceptable to the Senior
Lenders, GFL and Mvela Gold confirming that the transactions as
contemplated by the Transaction Documents do not contravene
Section 38 of the Companies Act.
3. TRANSACTION DOCUMENTS
A duly executed original of each of the following:
3.1 the Finance Documents;
3.2 the Reorganisation Agreement;
3.3 the Subscription and Share Exchange Agreement;
3.4 the Senior Loan Agreement;
3.5 the Mezz SPV Loan Agreement;
3.6 the Senior Cession in Security;
3.7 the Mvela Resources Subscription Agreement;
3.8 the Covenants Agreement;
3.9 the Sponsor Support, Guarantee and Retention Agreement;
3.10 the Mezz SPV Cession in Security;
Page 82.
3.11 the Mezz SPV Reversionary Cession in Security;
3.12 the IDC Preference Share Subscription Agreement;
3.13 the GFLM Preference Share Subscription Agreement;
3.14 the RMB Preference Share Subscription Agreement;
3.15 the Mvela Resources Pledge;
3.16 the IFC Loan Agreement;
3.17 the PIC Loan Agreement;
3.18 the JP Morgan Preference Share Subscription Agreement;
3.19 the Inter Mezzanine Investors Agreement;
3.20 the Intercreditor Agreement;
3.21 the Account Bank Agreement;
3.22 the Transaction Participant Undertaking;
3.23 the PIC Put Option Agreement; and
3.24 the Pre-emptive Rights Agreement.
4. INSURANCES
A copy of an insurance certificate in the agreed form from GFI-SA's
insurance brokers in relation to the cover in effect for the GFL
Group's business confirming (among other things) that insurances are in
place against such risks, in such amounts, with such insurers and upon
such terms as are consistent with the provisions of clause 21.14
(Insurance).
5. ORIGINAL FINANCIAL STATEMENTS
A copy of the Original Financial Statements.
Page 83.
6. OTHER DOCUMENTS AND EVIDENCE
6.1 Evidence reasonably satisfactory to the Transaction Participants
that all suspensive conditions suspending the operation of each of
the Transaction Documents have, save to the extent that the
unconditionality of this Agreement is a suspensive condition, been
fulfilled or waived and that accordingly all of the Transaction
Documents are unconditional and will be implemented in accordance
with their respective terms.
6.2 Written consent by the bank and the agent of the lenders to GFL
under the syndicated loan facility dated 26 November 2001 to the
providing of the guarantee by the Guarantors under this Agreement.
6.3 Written consent by ANZ Bank under the general banking facility to
GFA and its Australian subsidiaries to the providing of the
guarantee by GFA under this Agreement.
7. REGULATORY APPROVALS AND RULINGS
7.1 A written ruling from the South African Revenue Services
confirming that the interest on the Loan and on the loan advanced
under the Senior Loan Agreement respectively is deductible in
full.
7.2 The Exchange Control Department of the South African Reserve Bank
has (to the extent necessary) approved the provisions of the
guarantees by all of the non-resident Guarantors in respect of
this Agreement.
8. AMENDMENT OF CONSTITUTIVE DOCUMENTS
The Memorandum and Articles of Association of each of Mvela Gold and
Mezz SPV have been amended (which amendment is of full force and effect
pursuant to the necessary special resolutions having been registered by
the Registrar of Companies) in a manner satisfactory to the Senior
Agent in order to render Mvela Gold and Mezz SPV "insolvency remote" by
limiting the capacity of the aforesaid companies and the powers and
authority of the directors of the aforesaid companies.
9. MVELA RESOURCES PRIVATE PLACEMENT
Mvela Resources has raised an amount of at least ZAR1 750 000 000 (One
Billion Seven Hundred and Fifty Million Rand) by way of a private
placement of ordinary shares in the share capital of Mvela Resources or
settlement of such private placement has been underwritten by
underwriters.
Page 84.
10. SHAREHOLDER RESOLUTIONS
A certified copy of any shareholder resolutions required to be passed
by the shareholders of any of the GFL Obligors which may be required to
allow the relevant GFL Obligor(s) to enter into and perform its/their
rights and obligations under the Transaction Documents to which it/they
is/are a party and where any such resolution is required to be
registered, evidence acceptable to the Senior Agent that such
resolution has been registered by the Registrar of Companies.
Page 85.
SCHEDULE 1
FINANCIAL CLOSE DOCUMENTS
PART 2 : FORM OF FORMALITIES CERTIFICATE
(TO APPEAR ON THE LETTERHEAD OF GFI MINING SOUTH AFRICA LIMITED)
To: FirstRand Bank Limited
(acting through its Rand Merchant Bank division)
(as Senior Agent)
Attention : [INSERT]
[Date]
Dear Sirs
GFI MINING SOUTH AFRICA LIMITED : GFI-SA LOAN AGREED DATED [-] 2003
We [ ] and [ ] being [respectively a Director and Secretary/Directors] of
GFI Mining South Africa Limited ( the "BORROWER") being duly authorised by the
Borrower to deliver this Certificate hereby make the following certifications.
Capitalised terms not otherwise defined herein shall, unless the context
otherwise requires, have the meanings ascribed to them in the written agreement
entitled "Loan Agreement", entered into between Lexshell 579 Investments
(Proprietary) Limited, FirstRand Bank Limited (acting through its Rand Merchant
Bank Division) (as Senior Agent), GFI Mining South Africa Limited, Gold Fields
Limited, Gold Fields Australia Pty Limited and Gold Fields Guernsey Limited (the
"GUARANTORS").
1. CONSTITUTIONAL DOCUMENTS
Attached hereto are true, complete and up-to-date copies of:
1.1 the Certificate to Commence Business of GFI-SA and each Guarantor;
1.2 the Certificate of Incorporation of GFI-SA and each Guarantor;
Page 86.
1.3 all Certificates of Change of Name of GFI-SA and each Guarantor;
1.4 the Memorandum and Articles of Association of GFI-SA and each
Guarantor.
2. BOARD RESOLUTIONS
Attached hereto are a true copy of the minutes of meetings of the
respective Board of Directors of GFI-SA and each Guarantor duly
convened and held recording resolutions passed at such meeting (which
resolutions are in full force and effect and have not been rescinded or
varied and which approve the execution and performance by GFI-SA and
each Guarantor of the Transaction Documents to which it is a party and
all transactions contemplated thereby.
3. NO BREACH OF BORROWING LIMIT
We have examined the terms of all loan agreements, trust deeds and
similar borrowing instruments and all other relevant instruments and
agreements to which GFI-SA and each Guarantor is a party together with
the Constitutive Documents of GFI-SA and each Guarantor (the "RELEVANT
DOCUMENTS") and we can confirm to you that the entering into by GFI-SA
and each Guarantor of the Transaction Documents to which it is a party,
and the borrowing by GFI-SA and the guaranteeing by each Guarantor of
all sums capable of being drawn under the Loan Agreement (the "MAXIMUM
DRAWINGS") will not infringe the terms of the Relevant Documents and
that the borrowing of the Maximum Drawings when aggregated with any
other indebtedness of GFI-SA and the guaranteeing of the Maximum
Drawings when aggregated with any other indebtedness of the Guarantors:
3.1 are and will be within the corporate powers of GFI-SA and each
Guarantor; and
3.2 does not or will not cause to be exceeded any limit or restriction
on any of the powers of GFI-SA and each Guarantor (whether
contained in any relevant documents or otherwise) or the right or
ability of the Directors of GFI-SA and each Guarantor to exercise
such powers.
4. NO DEFAULT
We, having made all due enquiries, can confirm to you that as at the
date of this Certificate no Default has occurred and is continuing.
Page 87.
5. REPRESENTATIONS AND WARRANTIES
We, having made all due enquiries, can confirm to you that as at the
date of this certificate the representations and warranties given by
GFI-SA and each Guarantor in clause 16.1 (Representations and
Warranties) of the Loan Agreement are correct in all material respects.
Yours faithfully
_____________________ __________________________
[Director] [Director/Secretary]
Page 88.
SCHEDULE 2
PART 1 : ACCEPTANCE OF BENEFITS
To: FirstRand Bank Limited (acting through its Rand Merchant Bank
division)
(as Senior Agent)
16th Floor
1 Merchant Place
1 Fredman Drive
SANDTON
From: [INSERT NAME OF SENIOR LENDER] (the "ACCEPTING PARTY")
Date: [insert]
Dear Sirs
GFI MINING SOUTH AFRICA LIMITED : GFI-SA LOAN AGREEMENT DATED [-] 2003 ("THE
LOAN AGREEMENT"): ACCEPTANCE OF BENEFITS
1. We refer to the Loan Agreement. This is an Acceptance of Benefits and
terms used in this Acceptance of Benefits have the same meaning as in
the Loan Agreement.
2. This Acceptance of Benefits is delivered to you pursuant to clause 31
of the Loan Agreement.
3. We hereby:
3.1 advise you that we are a Transaction Participant under the
Transaction Documents; and;
3.2 accept all benefits conferred on us as a Transaction Participant
pursuant to the terms of the Loan Agreement.
4. For the purposes of clause 27 of the Loan Agreement our administrative
details are as follows:
Physical Address: [ ]
[ ]
[ ]
Page 89.
Telefax No: [ ]
e-mail: [ ]
Attention: [ ]
5. This Acceptance of Benefits has been executed on the date stated above
and shall be governed by and construed in accordance with the laws of
South Africa.
__________________________________
For: [ACCEPTING PARTY]
Name:
Capacity:
Who warrants his authority hereto
Page 90.
SCHEDULE 2
PART 2 : FORM OF ACCESSION DEED
To: FirstRand Bank Limited (acting through its Rand Merchant Bank
division)
(as Senior Agent)
16th Floor
1 Merchant Place
1 Fredman Drive
SANDTON
From: [INSERT NAME OF ADDITIONAL GUARANTOR]
Date: [insert]
Dear Sirs
GFI MINING SOUTH AFRICA LIMITED : GFI-SA LOAN AGREEMENT DATED [-] 2003 ("THE
LOAN AGREEMENT"): ACCESSION DEED
1. We refer to the Loan Agreement. This is an Accession Deed and terms
used in this Accession Deed have the same meaning as in the Loan
Agreement.
2. We, [INSERT NAME OF ADDITIONAL GUARANTOR], agree to become an
Additional Guarantor and to be bound by the terms of the Loan Agreement
as an Additional Guarantor. We, [INSERT NAME OF ADDITIONAL GUARANTOR],
are a company duly incorporated under the laws of [NAME OF RELEVANT
JURISDICTION].
3. For the purposes of clause 27 of the Loan Agreement our administrative
details are as follows:
Physical Address: [ ]
[ ]
[ ]
Telefax No: [ ]
e-mail: [ ]
Attention: [ ]
5. This Accession Deed has been executed on the date stated above and
shall be governed by and construed in accordance with the laws of South
Africa.
Page 91.
_________________________________
For: [ADDITIONAL GUARANTOR]
Name:
Capacity:
Who warrants his authority hereto
Page 92.
SCHEDULE 3
FORM OF COMPLIANCE CERTIFICATE
(TO APPEAR ON THE LETTERHEAD OF GFI MINING SOUTH AFRICA LIMITED)
To: FirstRand Bank Limited
(acting through its Rand Merchant Bank division)
(as Senior Agent)
16th Floor
1 Merchant Place
1 Fredman Drive
SANDTON
Attention: [INSERT]
[DATE]
Dear Sirs
GFI MINING SOUTH AFRICA LIMITED - GFI-SA LOAN AGREEMENT DATED [-] 2003 (THE
"LOAN AGREEMENT")
1. We refer to the Loan Agreement. Terms defined in the Loan Agreement
shall have the same meaning when used herein.
2. This is a Compliance Certificate.
3. We confirm that as at [INSERT DATE]:
3.1 CONSOLIDATED EBITDA TO CONSOLIDATED NET FINANCE CHARGES
the ratio of Consolidated EBITDA to Consolidated Net Finance
Charges for the Measurement Period ending on [INSERT DATE], was :
[ ] : 1;
3.2 CONSOLIDATED EBITDA TO NET DEBT SERVICE
the ratio of Consolidated EBITDA to Net Debt Service for the
Measurement Period ending on [INSERT DATE], was: [ ] : 1;
Page 93.
3.3 CONSOLIDATED NET BORROWINGS TO CONSOLIDATED EBITDA
the ration of Consolidated Net Borrowings to Consolidated EBITDA
for the Measurement Period ending on [INSERT DATE], was : [ ]
: 1; and
3.4 CONSOLIDATED TANGIBLE NET WORTH
Consolidated Tangible Net Worth was US$[ ],
and attach calculations showing how these figures were calculated.
4. We [CONFIRM THAT NO DEFAULT IS CONTINUING.] *
Signed: ___________________
Director: _________________
Signed: ___________________
Director: _________________
[INSERT APPLICABLE CERTIFICATION LANGUAGE]
____________________________
For and on behalf of
[NAME OF AUDITORS OF GFI-SA]
[NOTE: AUDITORS TO SIGN CERTIFICATE RELATING TO FINANCIAL YEAR STATEMENTS.]
- ---------------
* If this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy it.
Page 94.
SCHEDULE 4
DISCLOSURE SCHEDULE
1. LITIGATION
On 6 May 2003, a lawsuit was filed by Zalumi Singleton Mtwesi against
Gold Fields Limited ("Gold Fields") in the State of New York. Mr.
Mtwesi alleges that during the apartheid era in South Africa he was
subjected to human rights violations while employed by Gold Fields of
South Africa Limited ("GFSA"). With effect from January 1, 1998,
substantially all of the gold mining assets and interests previously
held by GFSA were acquired by GFL Mining Services Limited, a wholly
owned subsidiary of Gold Fields. Mr. Mtwesi filed the lawsuit on behalf
of himself and as representative of all other victims and all other
persons similarly situated. Mr. Mtwesi and the plaintiffs' class have
demanded an order certifying the plaintiffs' class and compensatory
damages from Gold Fields in the amount of $7 billion. A complaint has
not been served on Gold Fields. Should the lawsuit proceed, defending
it may be costly and time consuming and there can be no assurance that
Gold Fields will be successful. If Gold Fields is unsuccessful in
defending the lawsuit considerable compensatory damages or other
penalties may be imposed on Gold Fields that may have a material
adverse effect on Gold Fields' business, operating results and
financial condition.
2. GOLD FIELDS GHANA LIMITED ("GFG")
2.1 MINERAL RIGHTS
Under Ghanaian law, the Tarkwa property mining leases are subject
to the ratification of parliament. The Minerals Commission, the
statutory corporation overseeing the mining operations on behalf
of the government of Ghana, has submitted the Tarkwa property
leases for parliamentary ratification, but they have not yet been
ratified as required by law. To the extent that failure to ratify
these leases adversely affects their validity, there may be a
material adverse effect on GFG's business, operating results and
financial condition.
Under the provisions of the Minerals and Mining Law, the size of
an area in respect of which a mining lease may be granted cannot
exceed 50 square kilometers for any single grant or 150 square
kilometers in the aggregate for any company. Gold Fields Ghana's
mining leases cover approximately 207 square kilometers and
Abosso's mining lease covers approximately 52 square
Page 95.
kilometers. GFG has identified land at the Tarkwa and Damang sites
that is not viable for GFG's desired use and plans to give up that
land so as to come within the prescribed limits prior to the end
of 2004.
2.2 ENVIRONMENTAL
GFG has an environmental permit for the Tarkwa property. However,
it still needs to obtain an environmental certificate for this
property. An application for an environmental certificate has been
made to the Ghanaian Environmental Protection Agency, or EPA, for
the Tarkwa property. The EPA has advised GFG that an environmental
certificate for the Tarkwa property will be issued in due course.
As part of the process of obtaining an environmental certificate,
GFG has posted a reclamation bond for Tarkwa and has submitted an
environmental management plan.
Regarding the Teberebie property, GFG received an environmental
permit in April 2002. GFG submitted a fully costed reclamation
plan for both Tarkwa and Teberebie. GFG has provided a reclamation
bond to cover both properties pursuant to discussions with the
EPA.
Abosso has an environmental permit for the Damang mine. Abosso has
applied for an environmental certificate for the Damang mine,
which it has been advised will be issued in due course, and has
posted a reclamation bond of $2.0 million.
Page 96.
SCHEDULE 5
FORM OF LOAN SUPPLEMENT
Amongst
LEXSHELL 579 INVESTMENTS (PROPRIETARY) LIMITED
(WHICH IS TO BE RENAMED "MVELAPHANDA GOLD (PROPRIETARY) LIMITED"
OR SUCH OTHER NAME SELECTED THAT IS ACCEPTABLE TO THE REGISTRAR OF COMPANIES)
and
GFI MINING SOUTH AFRICA LIMITED
(WHICH IS TO BE CONVERTED TO A PRIVATE COMPANY)
and
FIRSTRAND BANK LIMITED
(ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)
(IN ITS CAPACITY AS SENIOR AGENT)
Page 97.
1. This document constitutes the Loan Supplement contemplated by the
GFI-SA Loan Agreement ("the Loan Agreement") dated [INSERT] 2003
entered into between inter alia Lexshell 579 Investments (Proprietary)
Limited, GFI Mining South Africa Limited and FirstRand Bank Limited
(acting through its Rand Merchant Bank division). Terms defined in the
Loan Supplement and used herein shall bear the same meanings as defined
in the Loan Agreement. The Loan Supplement must be read in conjunction
with, and forms part of, the Loan Agreement.
2. The Parties agree that the Interest Rate shall be [%] nominal annual
compounded semi-annually in arrears.
3. The Parties agree that Annexure A hereto sets out the Interest Payment
Dates and the Interest Payment Amounts payable on each such dates.
4. This Loan Supplement may be executed by each Party signing a separate
copy hereof and each of the copies together shall constitute the Loan
Supplement.
SIGNED at ________________ on this the ______ day of __________________ 2003.
For and on behalf of
LEXSHELL 579 INVESTMENTS
(PROPRIETARY) LIMITED
__________________________________
Name:
Capacity:
Who warrants his authority hereto
SIGNED at ________________ on this the ______ day of __________________ 2003.
For and on behalf of
GFI MINING SOUTH AFRICA
LIMITED
__________________________________
Name:
Capacity:
Who warrants his authority hereto
Page 98.
SIGNED at ________________ on this the ______ day of __________________ 2003.
For and on behalf of
FIRSTRAND BANK LIMITED (ACTING
THROUGH ITS RAND MERCHANT BANK
DIVISION)
__________________________________
Name:
Capacity:
Who warrants his authority hereto
__________________________________
Name:
Capacity:
Who warrants his authority hereto
Page 99.
ANNEXURE "A"
INTEREST PAYMENT DATE INTEREST PAYMENT AMOUNT
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