EX-4.54 5 exhibit454term_rcaxexecuti.htm EXHIBIT 4.54 Exhibit
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EXECUTION



TERM AND REVOLVING CREDIT FACILITIES AGREEMENT OF UP TO USD400 000 000



between

HARMONY GOLD MINING COMPANY LIMITED

arranged by

ABSA BANK LIMITED
(acting through its Corporate and Investment Banking division)

NEDBANK LIMITED
(acting through its Nedbank Corporate and Investment Banking division)

with

Absa Bank Limited (acting through its Corporate and Investment Banking division)
acting as Facility Agent








CONTENTS
2
DEFINITIONS AND INTERPRETATION    2
36
THE FACILITY    36
PURPOSE    36
CONDITIONS OF UTILISATION    37
38
UTILISATION    38
40
REPAYMENT    40
PREPAYMENT AND CANCELLATION    44
50
INTEREST    50
INTEREST PERIODS    51
CHANGES TO THE CALCULATION OF INTEREST    52
FEES    53
54
TAX GROSS UP AND INDEMNITIES    54
INCREASED COSTS    57
OTHER INDEMNITIES    59
MITIGATION BY THE LENDERS    61
COSTS AND EXPENSES    61
63
GUARANTEE AND INDEMNITY    63
67
REPRESENTATIONS    67
INFORMATION UNDERTAKINGS    73
FINANCIAL COVENANTS    79
GENERAL UNDERTAKINGS    80
APPLICATION OF SANCTIONS PROVISIONS TO THE LENDERS    87
ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS    88
EVENTS OF DEFAULT    89
95
CHANGES TO THE LENDERS    95
CHANGES TO THE OBLIGORS    98
100
ROLE OF THE FACILITY AGENT, THE GLOBAL COORDINATORS AND BOOKRUNNERS    100
CONDUCT OF BUSINESS BY THE FINANCE PARTIES    106
SHARING AMONG THE FINANCE PARTIES    106
109
PAYMENT MECHANICS    109
SET OFF    112
NOTICES    113
CALCULATIONS AND CERTIFICATES    122
PARTIAL INVALIDITY    122
REMEDIES AND WAIVERS    123
AMENDMENTS AND WAIVERS    123
CONFIDENTIALITY    128
CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS    131
RENUNCIATION OF BENEFITS    132
COUNTERPARTS    133
WAIVER OF IMMUNITY    133
SOLE AGREEMENT    133
NO IMPLIED TERMS    133
EXTENSIONS AND WAIVERS    133
INDEPENDENT ADVICE    133
134
GOVERNING LAW    134
JURISDICTION    134
SERVICE OF PROCESS    134
135
135
136
137
137
141
143
144
146
147
148
149
149
150
152
153
154
155
159
160
160
160
161
161



PARTIES:
This Agreement is made between:
(1)
Harmony Gold Mining Company Limited (the Borrower);
(2)
The Subsidiaries of the Borrower listed in Part I of Schedule 1 as original guarantors (the Original Guarantors);
(3)
Absa Bank Limited (acting through its Corporate and Investment Banking division) and Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) as global coordinators (whether acting individually or together, the Global Coordinators);
(4)
Absa Bank Limited (acting through its Corporate and Investment Banking division) and Nedbank Limited (acting through its Nedbank Corporate and Investment Banking division) as bookrunners (whether acting individually or together, the Bookrunners);
(5)
Absa Bank Limited (acting through its Corporate and Investment Banking division) (as mandated lead arranger), Nedbank Limited (acting through its London branch) (as mandated lead arranger), FirstRand Bank Limited (London Branch) (as lead arranger), J.P. Morgan Securities plc (as lead arranger), Citibank N.A., South Africa Branch (as lead arranger), HSBC Bank plc – Johannesburg Branch (as lead arranger) and State Bank of India (acting through its Johannesburg branch) (as arranger);
(6)
The Financial Institutions listed in Part II of Schedule 1 as original lenders (the Original Lenders);
(7)
The Financial Institutions listed in Part II of Schedule 1 as hedge providers (the Original Hedge Providers); and
(8)
Absa Bank Limited (acting through its Corporate and Investment Banking division) as agent of the other Finance Parties (the Facility Agent).


(i)

IT IS AGREED AS FOLLOWS:
SECTION 1
INTERPRETATION
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
1.1.1
2002 ISDA Master Agreement means the 2002 Master Agreement as published by the International Swaps and Derivatives Association, Inc.
1.1.2
Acceptable Bank means:
1.1.2.1
any of the Lenders;
1.1.2.2
Bank of South Pacific Limited, Australia and New Zealand Banking Group Limited, Westpac Banking Corporation, Westpac Bank PNG Ltd, The Standard Bank of South Africa Limited, FirstRand Bank Limited and, Investec Bank Limited;
1.1.2.3
a bank or financial institution which has a rating for its long-term unsecured and non-credit-enhanced debt obligations of bbb- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or baa3 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency; or
1.1.2.4
any other bank or financial institution approved by the Facility Agent.
1.1.3
Accession Letter means a document substantially in the form set out Schedule 5 (Form of Accession Letter).
1.1.4
Additional Guarantor means a company which becomes an Additional Guarantor in accordance with Clause 26 (Changes to the Obligors).
1.1.5
Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
1.1.6
Agreement means this term and revolving credit facilities agreement, including its Schedules.
1.1.7
Alternative Institution has the meaning given to that term in Clause 6.3 (Extension Option).
1.1.8
Anti-Corruption Laws means all laws, rules and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption.
1.1.9
Applicable Margin means:
1.1.9.1
in respect of Facility A, 3,05% (three point zero five per cent), nacq; and
1.1.9.2
in respect of Facility B, 2,90% (two point nine zero per cent):
1.1.9.2.1
nacq (if the applicable Interest Period is 3 (three) Months);
1.1.9.2.2
nacs (if the applicable Interest Period is 6 (six) Months),
as may be specified in the Utilisation Request relating to each Utilisation.
1.1.10
Auditors means one of PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte & Touche or any other firm approved in advance by the Majority Lenders (such approval not to be unreasonably withheld or delayed).
1.1.11
AUSD means Australian Dollars, the lawful currency of Australia.
1.1.12
Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration.
1.1.13
Availability Period means:
1.1.13.1
in relation to Facility A, the period from and including Financial Close to and including the date which is the earlier of:
1.1.13.1.1
the date on which all of the Commitments are cancelled in terms of this Agreement; and
1.1.13.1.2
1 (one) Month after Financial Close; and
1.1.13.2
in relation to Facility B, the period from and including Financial Close to and including the date which is the earlier of:
1.1.13.2.1
the date on which all of the Commitments are cancelled in terms of this Agreement; and
1.1.13.2.2
1 (one) Month prior to the Final Repayment Date.
1.1.14
Available Commitment means, in relation to a Facility, a Lender's Commitment under that Facility minus:
1.1.14.1
the amount of its participation in any outstanding Loans under that Facility; and
1.1.14.2
in relation to any proposed Utilisation, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,
other than, in relation to any proposed Utilisation under Facility B only, that Lender's participation in any Facility B Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.
1.1.15
Available Facility means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.
1.1.16
Basel II Accord means the International Convergence of Capital Measurement and Capital Standards, a Revised Framework published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement.
1.1.17
Basel II Approach means either the Standardised Approach or the relevant Internal Ratings Based Approach (each as defined in the Basel II Accord) adopted by that Finance Party (or any of its Affiliates) for the purposes of implementing or complying with the Basel II Accord.
1.1.18
Basel II Regulation means:
1.1.18.1
any applicable law implementing the Basel II Accord; or
1.1.18.2
any Basel II Approach;
1.1.19
Basel III means:
1.1.19.1
the agreements on capital requirements, a leverage ratio and liquidity standards contained in Basel III: A global regulatory framework for more resilient banks and banking systems, Basel III: International framework for liquidity risk measurement, standards and monitoring and Guidance for national authorities operating the countercyclical capital buffer published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
1.1.19.2
the rules for global systemically important banks contained in Global systemically important banks: assessment methodology and the additional loss absorbency requirement on Banking Supervision in December 2010, each as amended, supplemented or restated;
1.1.19.3
any Basel III Regulation; and
1.1.19.4
any further guidance or standards published by the Basel Committee on Banking Supervision relating to Basel III.
1.1.20
Basel III Increased Cost means an Increased Cost which is attributable to the implementation or application of or compliance with or any change in (or in the interpretation, administration or application of or compliance with) Basel III (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates), including but not limited to the Capital Requirements Directive (CRD IV).
1.1.21
Basel III Regulation means any applicable law implementing Basel III save and to the extent that it re-enacts a Basel II Regulation.
1.1.22
BEE means broad-based black economic empowerment, as contemplated in the BEE Act;
1.1.23
BEE Act means the Broad-Based Black Economic Empowerment Act, 53 of 2003, as amended, together with any regulations promulgated thereunder, the Codes, and any relevant sector charter(s) or codes applicable to the business of the BEE Entity published in terms thereof, all as amended from time to time;
1.1.24
BEE Entity means a special purpose entity incorporated under the laws of South Africa and established in order to consummate a BEE transaction pursuant to which such entity may acquire up to 3% (three per cent) of the issued ordinary shares of Harmony Moab;
1.1.25
Breakage Costs means the amount (if any) by which:
1.1.25.1
the interest excluding the Applicable Margin which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
1.1.25.2
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
1.1.26
Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Johannesburg, London and New York;
1.1.27
Buy-In Option means the right of Papua New Guinea exercisable at any time prior to the commencement of mining to make a single purchase of up to a 30% (thirty per cent) equitable interest in any mineral discovery arising from any or all of Exploration Licences No EL 440 and EL 1105 and Exploration Licence Application ELA 1927 at a price pro-rata to the accumulated exploration expenditure thereon.
1.1.28
Cash means, at any time, cash denominated in ZAR, USD, PNGK or AUSD in hand or in a bank account and (in the latter case) credited to an account in the name of a member of the Group with an Acceptable Bank and to which a member of the Group is alone (or together with other members of the Group) beneficially entitled and for so long as:
1.1.28.1
that cash is repayable within 90 (ninety) days after the relevant date of calculation;
1.1.28.2
repayment of that cash is not contingent on the prior discharge of any other indebtedness of any member of the Group or of any other person whatsoever or on the satisfaction of any other condition;
1.1.28.3
there is no Security over that cash except for any Permitted Security constituted by a netting or set-off arrangement entered into by members of the Group in the ordinary course of their banking arrangements; and
1.1.28.4
the cash is freely and (except as mentioned in Clause 1.1.28.1 above) immediately available to be applied in repayment or prepayment of the Facility.
1.1.29
Cash Equivalent Investments means at any time:
1.1.29.1
certificates of deposit maturing within 1 (one) year after the relevant date of calculation, issued by an Acceptable Bank;
1.1.29.2
any investment in money market funds which (i) have a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investor Services Limited, (ii) which invest substantially all their assets in securities of the types described in Clause 1.1.29.1 above and (iii) can be turned into cash on not more than 90 (ninety) days' notice; or
1.1.29.3
any other debt security or investment approved by the Majority Lenders,
in each case, denominated in ZAR, USD, AUSD or PNGK and to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security.
1.1.30
Code means the US Internal Revenue Code of 1986.
1.1.31
Codes means the Codes of Good Practice on Black Economic Empowerment gazetted on 9 February 2007 by the Department of Trade and Industry in terms of the BEE Act and the Codes of Good Practice on Black Economic Empowerment gazetted on 11 October 2013 by the Department of Trade and Industry in terms of the BEE Act, and in each case, any replacement or amended Codes of Good Practice;
1.1.32
Commitment means, in relation to each Lender, its Facility A Commitment or Facility B Commitment, as the case may be.
1.1.33
Companies Act means the Companies Act, 2008.
1.1.34
Compliance Certificate means a certificate substantially in the form set out in Schedule 7 (Form of Compliance Certificate).
1.1.35
Confidential Information means all information relating to the Borrower, any Obligor, the Group, the Joint Ventures, the Finance Documents or a Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or a Facility from either:
1.1.35.1
any member of the Group or any of its advisers; or
1.1.35.2
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes:
1.1.35.3
information that:
1.1.35.3.1
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 37 (Confidentiality); or
1.1.35.3.2
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
1.1.35.3.3
is known by that Finance Party before the date the information is disclosed to it in accordance with Clauses 1.1.35.1 or 1.1.35.2 above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and
1.1.35.4
any Funding Rate or Reference Bank Quotation.
1.1.36
Confidentiality Undertaking means a confidentiality undertaking substantially in a recommended form of the LMA or in any other form agreed between the Borrower and the Facility Agent.
1.1.37
Control means:
1.1.37.1
in relation to a company the shares of which are not listed on a stock exchange where another company or legal entity or person (whether alone or pursuant to an agreement with others):
1.1.37.1.1
holds or controls more than 50% (fifty per cent) of the voting rights (taking into account when such voting rights can be exercised) in that company; or
1.1.37.1.2
has the right to appoint or remove the majority of that company’s board of directors; or
1.1.37.1.3
has the power to ensure the majority of that company’s board of directors will act in accordance with its wishes; or
1.1.37.2
in relation to a company the shares of which are listed on a stock exchange:
1.1.37.2.1
the holding of shares or the aggregate of holdings of shares or other securities in a company entitling the holder thereof to exercise, or cause to be exercised 35% (thirty five per cent) or more of the voting rights at shareholder meetings of the company irrespective of whether such holding or holdings confers de facto control, provided that should there be other shareholders holding more than 35% (thirty five per cent), 35% (thirty five per cent) shall be read to refer to the largest percentage shareholding held at the time;
1.1.37.2.2
the holding or control by a shareholder or member alone or pursuant to an agreement with other shareholders or members of more than 35% (thirty five per cent) of the voting rights in the company irrespective of whether such holding or holdings confers de facto control, provided that should there be other shareholders holding more than 35% (thirty five per cent), 35% (thirty five per cent) shall be read to refer to the largest percentage shareholding held at the time;
provided that if the prescribed percentage of securities for the making of a mandatory offer under section 123 (Mandatory offers) of the Companies Act is changed to a threshold higher or lower than 35% (thirty five per cent), then the references above to 35% (thirty five per cent) shall be to that higher or lower prescribed percentage.
1.1.38
Default means an Event of Default or any event or circumstance specified in Clause 21.19 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
1.1.39
Defaulting Lender means any Lender:
1.1.39.1
which has failed to make its participation in a Loan available (or has notified the Facility Agent or the Borrower (which has notified the Facility Agent) that it will not make its participation in a Loan available) by the Utilisation Date of that Loan in accordance with Clause 5.4 (Lenders' participation);
1.1.39.2
which has otherwise rescinded or repudiated a Finance Document; or
1.1.39.3
in respect of which an insolvency event as contemplated in Clauses 24.6 and 24.7 has occurred and is continuing,
unless, in the case of Clause 1.1.39.1 above:
1.1.39.4
its failure to pay, is caused by:
1.1.39.4.1
administrative or technical error; or
1.1.39.4.2
a Disruption Event, and
payment is made within 10 (ten) Business Days of its due date; or
1.1.39.5
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
1.1.40
Derivatives Transaction means a contract, agreement or transaction which is a rate swap, basis swap, forward rate transaction, bond option, interest rate option, cap, collar or floor, gold derivative, foreign exchange transaction or any other similar transaction and/or any combination of such transaction, in each case, whether on-exchange or otherwise, and which shall include the Gold Price Derivative Transactions concluded under the Hedging Documents.
1.1.41
Disruption Event means either or both of:
1.1.41.1
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with a Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or
1.1.41.2
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:
1.1.41.2.1
from performing its payment obligations under the Finance Documents; or
1.1.41.2.2
from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
1.1.42
Distribution means any payment by way of interest, principal, dividend, fee, royalty or other distribution or payment by or on behalf of the Borrower to or for the account of any shareholder or member of the Borrower or any person that directly or indirectly controls or is controlled by any shareholder or member of the Borrower.
1.1.43
EBITDA means, in respect of any person, and any period, the consolidated operating profit before income tax for such period:
1.1.43.1
(to the extent not already excluded) before interest received or receivable and interest paid or payable;
1.1.43.2
(to the extent not already excluded) adjusted to exclude any gain or loss realised on the disposal of fixed assets (whether tangible or intangible);
1.1.43.3
(to the extent not already excluded) before deducting any extraordinary costs and before including extraordinary income’
1.1.43.4
after deducting operating lease expenses relating to lease or hire purchase contracts that would have been treated as an operating lease in accordance with GAAP in force prior to 1 January 2019;
plus:
1.1.43.5
dividends received in cash from companies consolidated by the equity accounted method to the extent not already taken into account; and
1.1.43.6
depreciation and amortisation of any property plant and equipment and Intangible Assets.
1.1.44
Environment means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media:
1.1.44.1
air (including, without limitation, air within natural or man-made structures, whether above or below ground);
1.1.44.2
water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
1.1.44.3
land (including, without limitation, land under water).
1.1.45
Environmental Claim means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.
1.1.46
Environmental Law means any applicable law or regulation which relates to:
1.1.46.1
the pollution or protection of the Environment;
1.1.46.2
the conditions of the workplace; or
1.1.46.3
the generation, handling, storage, use, release or spillage of any substance which, alone or in combination with any other, is capable of causing harm to the Environment, including, without limitation, any waste.
1.1.47
Environmental Permits means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any member of the Group conducted on or from the properties owned or used by any member of the Group.
1.1.48
Equator Principles means the standards entitled "A financial industry benchmark for determining, assessing and managing environmental and social risk in projects" dated June 2013 and adopted by certain financial institutions, as the same may be amended or supplemented from time to time.
1.1.49
Eskom Guarantees means any guarantees or indemnities given by or on behalf of the Borrower or any member of the Group to Eskom Holdings SOC Limited in an aggregate amount not exceeding ZAR700 000 000 (seven hundred million Rand) at any time.
1.1.50
Event of Default means any event or circumstance specified as such in Clause 21.19 (Events of Default).
1.1.51
Existing USD Facilities Refinancing Date means the date of the first Utilisation under the Facilities, being the date upon which the Financial Indebtedness under the Existing USD Facility Agreement which is outstanding as at such first Utilisation Date is to be refinanced with the Loans borrowed under the Facilities;
1.1.52
Existing USD Facility Agreement means the written agreement entitled ‘Term and Revolving Credit Facilities Agreement of up to USD 350 000 000’ dated 22 July 2017, as amended and restated by an amendment and restatement agreement dated 8 November 2018.
1.1.53
Existing USD Facility Outstandings means the aggregate of all advances or deemed advances together with all interest and charges due thereon in accordance with the terms of the Existing USD Facility Agreement, which at any time and from time to time have not been prepaid or repaid irrevocably, unconditionally and in full.
1.1.54
Existing USD Finance Documents means the Finance Documents as defined in the Existing USD Facility Agreement;
1.1.55
Exploration Portfolio Joint Venture means the joint venture constituted by the joint venture agreement between Morobe Consolidated Goldfields Limited, Wafi Mining Limited, Morobe Exploration Limited, Newcrest PNG 3 Limited and Morobe Exploration Services Limited dated 22 May 2008.
1.1.56
Extended Repayment Date means the date falling 1 (one) year after the Initial Repayment Date.
1.1.57
Extending Replacement Lender has the meaning given to that term in Clause 6.3 (Extension Option).
1.1.58
Extension Acceptance Notice has the meaning given to that term in Clause 6.3 (Extension option).
1.1.59
Extending Lenders has the meaning given to that term in Clause 6.3 (Extension option).
1.1.60
Extension Request has the meaning given to that term in Clause 6.3 (Extension option).
1.1.61
Facility means Facility A or Facility B and Facilities means, both of them.
1.1.62
Facility A means the term loan facility made available under this Agreement as described in Clause 2 (The Facility).
1.1.63
Facility A Commitment means:
1.1.63.1
in relation to an Original Lender, the amount set opposite its name under the heading Facility A Commitment in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility A Commitment transferred to it under this Agreement;
1.1.63.2
in relation to any other Lender, the amount of any Facility A Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
1.1.64
Facility A Loan means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.
1.1.65
Facility B means the revolving credit facility made available under this Agreement as described in Clause 2 (The Facility).
1.1.66
Facility B Commitment means:
1.1.66.1
in relation to an Original Lender, the amount set opposite its name under the heading Facility B Commitment in Part II of Schedule 1 (The Original Parties) and the amount of any other Facility B Commitment transferred to it under this Agreement;
1.1.66.2
in relation to any other Lender, the amount of any Facility B Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
1.1.67
Facility B Loan means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.
1.1.68
Facility Office means:
1.1.68.1
in respect of a Lender the office or offices notified by that Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 5 (five) Business Days’ written notice) as the office or offices through which it will perform its obligations under this Agreement; or
1.1.68.2
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
1.1.69
FATCA means
1.1.69.1
sections 1471 to 1474 of the Code or any associated regulations;
1.1.69.2
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in Clause 1.1.69.1 above; or
1.1.69.3
any agreement pursuant to the implementation of any treaty, law or regulation referred to in Clause 1.1.69.1 or 1.1.69.2 above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
1.1.70
FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.
1.1.71
FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
1.1.72
Fee Letters means the written fee letters entered into or to be entered into from time to time between the Borrower, the Original Lenders and/or the Facility Agent relating to the fees payable in respect of the Facility as contemplated in Clause 11 (Fees) below, and Fee Letter means any one of them as the context requires.
1.1.73
Final Repayment Date means the Initial Repayment Date or, if extended in accordance with Clause 6.3 (Extension option), the Extended Repayment Date (as appropriate).
1.1.74
Finance Document means:
1.1.74.1
this Agreement;
1.1.74.2
the Flow of Funds Agreement;
1.1.74.3
each Security Document;
1.1.74.4
each Hedging Document (subject to the proviso set out below);
1.1.74.5
the Mandate Letter;
1.1.74.6
each Fee Letter;
1.1.74.7
the Extension Request;
1.1.74.8
any Accession Letter;
1.1.74.9
any Resignation Letter;
1.1.74.10
and any other agreement or document that may be designated as a Finance Document by written agreement between the Facility Agent and the Borrower; and
1.1.74.11
any amendment or restatement agreement to any Finance Document listed in Clauses 1.1.74.1 to 1.1.74.10 above,
and Finance Document means, as the context requires, any one of them; provided that where the term Finance Document is used in, and construed for the purposes of this Agreement or the Intercreditor Agreement, a Hedging Document shall be a Finance Document only for the purposes of:
1.1.74.12
the definition of Material Adverse Effect;
1.1.74.13
the definition of Secured Document;
1.1.74.14
the definition of Transaction Document;
1.1.74.15
Clause 1.2 (Construction);
1.1.74.16
Clause 14.2 (Other indemnities);
1.1.74.17
Clause 16 (Costs and expenses);
1.1.74.18
Clause 17 (Guarantee and Indemnity);
1.1.74.19
Clause 18 (Representations);
1.1.74.20
Clause 21.17 (Further assurance);
1.1.74.21
Clause 21.19 (Events of Default) (other than Clause 24.12 (Repudiation) and Clause 24.17 (Acceleration)); and
1.1.74.22
Clause 31 (Set off).
1.1.75
Finance Parties means the Facility Agent, the Global Coordinators, the Bookrunners, each Lender and, subject to the remainder of this Clause, each Hedge Provider and Finance Party means each or any of them (as the context may require); provided that a Hedge Provider shall be a Finance Party only for the purposes of:
1.1.75.1
the Security Documents;
1.1.75.2
the definition of Secured Parties;
1.1.75.3
Clause 1.1.114.3 of the definition for Material Adverse Effect;
1.1.75.4
Clause 1.2 (Construction);
1.1.75.5
Clause 14.2 (Other indemnities);
1.1.75.6
Clause 16 (Costs and expenses);
1.1.75.7
Clause 17 (Guarantee and Indemnity);
1.1.75.8
Clause 18 (Representations);
1.1.75.9
Clause 21.17 (Further assurance); and
1.1.75.10
Clause 28 (Conduct of business by the Finance Parties).
1.1.76
Financial Close means the date on which the Facility Agent gives the notification under Clause 4.1 (Conditions precedent to first Utilisation) of this Agreement.
1.1.77
Financial Indebtedness means any indebtedness for or in respect of:
1.1.77.1
moneys borrowed;
1.1.77.2
any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent;
1.1.77.3
any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
1.1.77.4
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with IFRS, be treated as balance sheet liability;
1.1.77.5
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
1.1.77.6
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
1.1.77.7
any Derivatives Transaction (and, when calculating the value of any derivative transaction, only the marked to market value or actual net amount payable thereunder shall be taken into account);
1.1.77.8
any amount raised by the issue of shares which are redeemable;
1.1.77.9
any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and
1.1.77.10
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in Clauses 1.1.77.1 to 1.1.77.9 above.
1.1.78
Financial Year means, at any time, the annual accounting period of the Group ending on 30 June in each calendar year.
1.1.79
Flow of Funds Agreement means the written flow of funds agreement entered into amongst the Original Lenders (as defined in the Existing USD Facility Agreement), the Finance Parties and the Borrower on or about the Signature Date.
1.1.80
Fundamental Control Event means any of the following:
1.1.80.1
any person or group of persons acting in concert gain(s) Control of the Borrower or the Borrower is no longer listed on the JSE Securities Exchange;
1.1.80.2
a change in Control of any of the Material Obligors where the purchase consideration is not in cash, without the prior written consent of the Lenders;
1.1.80.3
a change in ownership or interests in any of the Joint Ventures from such ownership or interests as constituted at the date of this Agreement, but shall exclude:
1.1.80.3.1
a change in ownership or interests which arises as a result of the relevant Obligor that holds such ownership or interests at the date of this Agreement subsequently transferring such ownership or interests to another Material Obligor (including to a person that becomes a Material Obligor in accordance with the provisions of this Agreement on or before the date of such transfer of ownership), to the extent it is permitted to do so; and
1.1.80.3.2
a change in ownership or interests resulting from Papua New Guinea exercising its Buy-In Option.
For the purpose of this definition, a change of ownership or interests shall include any dilution in the interest of either of the joint venture parties to a Joint Venture as such interests are constituted at the date of this Agreement. For the purpose of Clause 1.1.80.1 above acting in concert means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition directly or indirectly of shares in the Borrower by any of them, either directly or indirectly, to obtain or consolidate Control of the Borrower.
1.1.81
Fundamental Disposal Event means a disposal (whether by way of sale, lease, license, transfer, loan or other disposal) of any Material Asset for a purchase consideration other than cash, without the prior written consent of the Lenders.
1.1.82
Funding Rate means any individual rate notified by a Lender to the Facility Agent pursuant to Clause 10.2.1.2.
1.1.83
Gold Price Derivative Transaction(s) means any gold price derivative transaction(s) entered into between the Borrower and a Hedge Provider under a Hedging Document as permitted in terms of Clause 21.16 (Gold Price Derivative Transactions) of this Agreement.
1.1.84
Governmental Authority means the government of any jurisdiction, or any political subdivision thereof, whether provincial, state or local, and any department, ministry, agency, instrumentality, authority, body, court, central bank or other entity lawfully exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
1.1.85
Group means:
1.1.85.1
the Borrower;
1.1.85.2
each Guarantor; and
1.1.85.3
each Subsidiary of the Borrower or a Guarantor for the time being.
For the avoidance of uncertainty, Wafi-Golpu Services Limited is not a member of the Group.
1.1.86
Group Structure Chart means the group structure chart in agreed form showing at least the following information: each member of the Group, including current name and company registration number, its jurisdiction of incorporation and/or its jurisdiction of establishment, a list of shareholders and indicating whether a company is not a company with limited liability.
1.1.87
Guarantor means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 26 (Changes to the Obligors).
1.1.88
Hedge Provider means the Original Hedge Providers and/or each other Lender (or any Affiliate of any Lender) in each case which has entered into or will enter into a Gold Price Derivative Transaction with the Borrower in accordance with the Hedging Documents and which has acceded to this Agreement and the Intercreditor Agreement by delivering to the Facility Agent each duly completed and executed Hedge Provider Accession Undertaking, and Hedge Providers means all of them as the context requires.
1.1.89
Hedge Provider Accession Undertaking means a document substantially in the form set out in Schedule 2 (Form of Hedge Provider Accession Undertaking) of the Intercreditor Agreement.
1.1.90
Hedging Documents means any 2002 ISDA Master Agreement (including any amendment agreement, annexure, schedule or confirmation) evidencing or otherwise relating specifically to the Gold Price Derivative Transaction(s) concluded or to be concluded between the Borrower and the Hedge Providers from time to time, and Hedging Document means any one of them as the context requires.
1.1.91
Hidden Valley Joint Venture means the joint venture constituted by the joint venture agreement between Morobe Consolidated Goldfields Limited, Harmony PNG 20 Limited and Hidden Valley Services Limited dated 22 May 2008, as terminated on or about 30 June 2017.
1.1.92
Hidden Valley Mine means the gold and silver mining operations conducted on Mining Lease 151 at Hidden Valley, Lae Province, Papua New Guinea.
1.1.93
HMT means Her Majesty’s Treasury of the United Kingdom.
1.1.94
Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
1.1.95
IFRS means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
1.1.96
Impaired Facility Agent means the Facility Agent at any time when:
1.1.96.1
it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;
1.1.96.2
the Facility Agent otherwise rescinds or repudiates a Finance Document;
1.1.96.3
(if the Facility Agent is also a Lender) it is a Defaulting Lender under Clause 1.1.39.1, 1.1.39.2 or 1.1.39.3; or
1.1.96.4
an insolvency event as contemplated in Clauses 24.6 and 24.7 has occurred and is continuing with respect to the Facility Agent,
unless, in the case of Clause 1.1.96.1 above:
1.1.96.5
its failure to pay is caused by:
1.1.96.5.1
administrative or technical error; or
1.1.96.5.2
a Disruption Event; and
payment is made within 10 (ten) Business Days of its due date; or
1.1.96.6
the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question.
1.1.97
Initial Repayment Date means the date falling on the third anniversary date of Financial Close.
1.1.98
Intangible Assets means intangible assets as per the financial statements delivered in terms of Clause 19.1 (Financial statements).
1.1.99
Intellectual Property Rights means any patents, trademarks, service marks, designs, trading or business names, copyrights, design rights, moral rights, inventions, confidential information, know-how, domain names, topographical or similar rights, database or other intellectual property rights and interests and the benefit of all applications and rights to use (including by way of licence) such assets of each Obligor, in each case whether registered or unregistered.
1.1.100
Intercreditor Agreement means the written intercreditor agreement concluded on or about the Signature Date amongst the Secured Parties and relating to their relationship as creditors of the Borrower and the other Obligors.
1.1.101
Interest Cover Ratio means, in respect of any Ratio Test Period:
1.1.101.1
EBITDA;
1.1.101.2
divided by Total Interest.
1.1.102
Interest Period means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest).
1.1.103
Interpolated Screen Rate means, in relation to LIBOR for any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:
1.1.103.1
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and
1.1.103.2
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,
each as of the Specified Time on the Quotation Day for USD.
1.1.104
Joint Venture Agreements means the joint venture agreements constituting the Wafi-Golpu Joint Venture and the Exploration Portfolio Joint Venture.
1.1.105
Joint Ventures means the Exploration Portfolio Joint Venture and the Wafi-Golpu Joint Venture.
1.1.106
Legal Reservations means:
1.1.106.1
the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;
1.1.106.2
the time barring of claims based on prescription laws that apply in the jurisdiction of incorporation of a member of the Group;
1.1.106.3
any other matters which are set out as qualifications or reservations as to matters of law of general application in any of the legal opinions delivered pursuant to Clause 4.1 (Conditions precedent to first Utilisation) or Clause 26 (Changes to the Obligors).
1.1.107
Lender means:
1.1.107.1
any Original Lender; and
1.1.107.2
any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 25 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
1.1.108
Leverage Ratio means, at any time, the ratio of Total Net Debt to EBITDA.
1.1.109
LIBOR means, in relation to any Loan:
1.1.109.1
the applicable Screen Rate;
1.1.109.2
(if no Screen Rate is available for the Interest Period of that Loan) the Interpolated Screen Rate for that Loan; or
1.1.109.3
if:
1.1.109.3.1
no Screen Rate is available for USD; or
1.1.109.3.2
no Screen Rate is available for the Interest Period of that Loan and it is not possible to calculate an Interpolated Screen Rate for that Loan,
the Reference Bank Rate,
1.1.109.4
as of, in the case of Clauses 1.1.109.1 and 1.1.109.3 above, the Specified Time on the Quotation Day for USD and for a period equal in length to the Interest Period of that Loan and, if that rate is less than zero, LIBOR shall be deemed to be zero.
1.1.110
LMA means the Loan Market Association.
1.1.111
Loan means a Facility A Loan or a Facility B Loan.
1.1.112
Majority Lenders means:
1.1.112.1
if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate at least 66,67% (sixty six point six seven per cent) of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated at least 66,67% (sixty six point six seven per cent) of the Total Commitments immediately prior to the reduction); or
1.1.112.2
at any other time, a Lender or Lenders whose participations in the Loans then outstanding aggregate at least 66,67% (sixty six point six seven per cent) of all the Loans then outstanding.
1.1.113
Mandate Letter means the mandate letter dated 24 April 2019 between the Global Coordinators, Bookrunners and the Obligors relating to, amongst others, the appointment of the Global Coordinators as exclusive arrangers and bookrunners in respect of the Facilities under this Agreement.
1.1.114
Material Adverse Effect means a material adverse effect on:
1.1.114.1
the business, operations, property or condition (financial or otherwise) of the Borrower, any Guarantor and/or the Group taken as a whole;
1.1.114.2
the ability of any Obligor to perform any of its obligations under the Finance Documents; or
1.1.114.3
the validity or enforceability of any of the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
1.1.115
Material Assets means:
1.1.115.1
the mining operations comprising the following mine shafts namely Kusasalethu (DMR Ref no. GP30/5/1/2/07MR), Tshepong and Phakisa (DMR Ref no. FS30/5/1/2/2/84MR), Doornkop (DMR Ref no. GP30/5/1/2/2/09MR), Masimong (DMR Ref no. FS30/5/1/2/2/82MR), Target 1 (DMR Ref no. FS30/5/1/2/2/14MR), Bambanani (DMR Ref no. FS30/5/1/2/2/83MR), Joel (DMR Ref no. FS30/5/1/2/2/13MR) and Harmony Moab (License No. NW30/5/1/2/2/15MR & 16MR);
1.1.115.2
the interests of Wafi Mining Limited in the Wafi-Golpu Joint Venture, being its rights under the Wafi-Golpu Joint Venture Agreement, its participating interest therein and its right to take its share in production thereof; and
1.1.115.3
the interests of Morobe Consolidated Goldfields Limited in the Hidden Valley Mine.
1.1.116
Material Group Company means at any time:
1.1.116.1
an Obligor; and
1.1.116.2
any member of the Group which has earnings before interest, tax, depreciation and amortisation calculated on the same basis as EBITDA representing 5% (five per cent) or more of EBITDA of the Group or has gross assets or turnover (excluding intra-group items) representing 5% (five per cent) or more of the gross assets or turnover of the Group, in each case, calculated on a consolidated basis (a Material Subsidiary);
Compliance with the conditions set out in this Clause 1.1.116 shall be determined by reference to the most recent Compliance Certificate supplied by the Borrower and/or the latest audited financial statements of that Subsidiary (consolidated in the case of a Subsidiary which itself has Subsidiaries) and the latest audited consolidated financial statements of the Group. However, if a Subsidiary has been acquired or disposed of since the date as at which the latest audited consolidated financial statements of the Group were prepared, the financial statements shall deemed to be adjusted in order to take into account the acquisition or disposal of that Subsidiary (that adjustment being certified by the Auditors as representing an accurate reflection of the revised EBITDA, gross assets or turnover of the Group). A report by the Auditors that a Subsidiary is or is not a Material Subsidiary shall, in the absence of manifest error, be conclusive and binding on all Parties.
1.1.117
Material Obligors means each of the Obligors, other than Avgold Limited.
1.1.118
MINEFI means the French Ministry of Finance.
1.1.119
Mining Law means any applicable law or regulation which relates to the conduct of prospecting, exploration and mining operations, including (in respect of operations in South Africa) the Mineral and Petroleum Resources Development Act, 2002 and (in respect of operations in Papua New Guinea) the Mining Act 1992 (PNG).
1.1.120
Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
1.1.120.1
if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
1.1.120.2
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
1.1.121
Obligors means the Borrower and each Guarantor, and Obligor means each or any of them (as the context may require).
1.1.122
OFAC means the Office of Foreign Assets Control of the Department of Treasury of the United States of America.
1.1.123
Original Financial Statements means:
1.1.123.1
    in relation to the Borrower, the audited consolidated financial statements of the Group for the financial year ended 30 June 2018;
1.1.123.2
in relation to Harmony Gold (PNG Services) Pty Ltd, Aurora Gold Ltd, Abelle Ltd, their audited financial statements for their financial years ended 30 June 2018; and
1.1.123.3
in relation to each Original Obligor other than the Borrower, Harmony Gold (PNG Services) Pty Ltd, Aurora Gold Ltd, Abelle Ltd and Aurora Gold (Wafi) (Pty) Ltd, its audited financial statements for its financial year ended 30 June 2018.
1.1.124
Original Obligor means the Borrower or an Original Guarantor.
1.1.125
Papua New Guinea means the Independent State of Papua New Guinea.
1.1.126
Party means a party to this Agreement.
1.1.127
Permitted Guarantees means:
1.1.127.1
any guarantee under, or given in connection with, the Existing USD Finance Documents, but only until the Existing USD Facilities Refinancing Date;
1.1.127.2
any guarantees or indemnities given by the Borrower or any member of the Group on behalf of any member of the Group in the ordinary course of its operational business requirements in an aggregate amount not exceeding USD35 000 000 (thirty five million United States Dollars) or its equivalent in any other currency or currencies;
1.1.127.3
any indemnity or guarantee granted in terms of the Finance Documents;
1.1.127.4
any indemnity or guarantee which constitutes Permitted Indebtedness;
1.1.127.5
the Eskom Guarantees;
1.1.127.6
the Silicosis Settlement Guarantee;
1.1.127.7
the USD Environmental Guarantees;
1.1.127.8
the ZAR Environmental Guarantees;
1.1.127.9
any guarantee given by Harmony Gold Australia in favour of any of the Relevant Subsidiaries to enable such Relevant Subsidiary to obtain a class order that will reduce the IFRS and statutory audit requirements applicable to it; and
1.1.127.10
any other guarantee or indemnity granted with the prior written approval of the Facility Agent.
1.1.128
Permitted Indebtedness means:
1.1.128.1
arising under any of the Existing USD Finance Documents but only until the Existing USD Facilities Refinancing Date;
1.1.128.2
any Financial Indebtedness in respect of a lease or hire purchase contract concluded in the ordinary course of trading which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease;
1.1.128.3
any Financial Indebtedness of a member of the Group in respect of Permitted Guarantees;
1.1.128.4
any Financial Indebtedness of a member of the Group in respect of Permitted Loans; and
1.1.128.5
any Financial Indebtedness not included in Clauses 1.1.128.1 to 1.1.128.4 including that incurred pursuant to the Hedging Documents, that does not result in Total Net Debt exceeding ZAR2 500 000 000 (two billion five hundred million Rand) at any time plus the ZAR equivalent of USD450 000 000 (four hundred and fifty million United States Dollars), converted at the then prevailing exchange rate into a ZAR amount;
1.1.128.6
any other Financial Indebtedness incurred with the prior written approval of the Facility Agent,
which in either case is not otherwise prohibited or restricted in accordance with Clause 21.11 (Financial Indebtedness).
1.1.129
Permitted Loans means:
1.1.129.1
loans made by the Borrower to any other member of the Group utilising the proceeds of any Utilisation under a Facility in order to fund a purpose referred to in Clause 3 (Purpose) (Borrower On Loans) and including on-loans made by any other member of the Group to any other member of the Group directly or indirectly from the proceeds of Borrower On Loans in order to fund a purpose referred to in Clause 3 (Purpose);
1.1.129.2
loans made by the Borrower to any other member of the Group utilising the proceeds of any utilisation under the ZAR Facility Agreement in order to fund a purpose referred to in the ZAR Facility Agreement (Borrower ZAR On Loans) and including on-loans made by any other member of the Group to any other member of the Group directly or indirectly from the proceeds of Borrower ZAR On Loans in order to fund a purpose referred to in the ZAR Facility Agreement;
1.1.129.3
trade credit granted in the ordinary course of an Obligor’s day-to-day business upon terms usual for such trade;
1.1.129.4
loans by an Obligor existing prior to the Signature Date and which have been (i) disclosed in Schedule 11 (Disclosed Loans) hereto, or (ii) in the Original Financial Statements;
1.1.129.5
loans by a member of the Group which is not an Obligor existing prior to the Signature Date and which have been disclosed in the Original Financial Statements;
1.1.129.6
loans granted by any member of the Group to any other member of the Group other than pursuant to 1.1.129.1 or 1.1.129.2 above or as disclosed in 1.1.129.4 or 1.1.129.5 above, which do not at any time (on a consolidated basis taking into account all such loans) exceed ZAR300 000 000 (three hundred million Rand) or its equivalent in any other currency or currencies per Financial Year;
1.1.129.7
loans made by one member of the Group to any other member of the Group for the purposes of enabling the Borrower or any other Obligor to meet its payment obligations under the Finance Documents;
1.1.129.8
a loan made by any member of the Group to an employee or director of any member of the Group if the amount of that loan when aggregated with the amount of all loans to employees and directors by members of the Group does not exceed ZAR40 000 000 (forty million Rand) or its equivalent in any other currency or currencies or to an employee or director of the Borrower in terms of an approved employee share option scheme provided that on establishment, such scheme does not involve a net outflow of cash from the Group;
1.1.129.9
loans made by the Borrower to Harmony Moab and on-lent by Harmony Moab, or loans made directly by the Borrower or Harmony Moab, to the BEE Entity for the purposes of financing the acquisition by the BEE Entity of up to 3% (three per cent) of the issued ordinary share capital of Harmony Moab pursuant to a BEE transaction in respect of Harmony Moab, provided that the amount of such loans shall not exceed ZAR100 000 000 (one hundred million Rand) or its equivalent in any other currencies in aggregate;
1.1.129.10
loans made by the Borrower to any entity acquiring shares in a Group company pursuant to a BEE transaction in respect of that Group company, provided that the amount of such loans shall not exceed ZAR150 000 000 (one hundred and fifty million Rand) in aggregate; and
1.1.129.11
any other loans made with the prior written approval of the Facility Agent.
1.1.130
Permitted Security means:
1.1.130.1
any Security created in respect of the Existing USD Finance Documents but only until the Existing USD Facilities Refinancing Date;
1.1.130.2
Security created over any new asset, plant, machinery, equipment or property acquired and/or developed by any Obligor to secure Permitted Indebtedness incurred for the purpose of financing the acquisition of such new asset, plant, machinery, equipment or property or the development, as the case may be, but not for the replacement or refurbishment or maintenance of an existing asset, plant, machinery, equipment or property;
1.1.130.3
Security created over any asset or property of a member of the Group which is not an Obligor in order to secure Permitted Indebtedness;
1.1.130.4
Security created over any asset or property of an Obligor in order to secure Permitted Indebtedness for an aggregate amount (aggregated across all of the Obligors) not exceeding ZAR200 000 000 (two hundred million Rand) or its equivalent in any other currency or currencies;
1.1.130.5
Security created by operation of law, including without limitation any Environmental Law or Mining Law, and in the ordinary course of trading and not as a result of any default or omission by any member of the Group;
1.1.130.6
any Security which is existing prior to the Signature Date and which has been disclosed (i) Schedule 8: Part A (Existing Security) hereto, or (ii) in the Original Financial Statements and in all circumstances securing only indebtedness outstanding at the Signature Date if the principal amount or original facility thereby secured is not increased after the Signature Date;
1.1.130.7
any Security which is existing prior to the Signature Date and which has been disclosed Schedule 8: Part B hereto;
1.1.130.8
any netting or set-off arrangement entered into by a member of the Group in the normal course of its banking arrangements for the purpose of netting debit and credit balances, and only such arrangements that are in existence at the Signature Date;
1.1.130.9
any Security entered into pursuant to any Finance Document as contemplated in the Finance Documents;
1.1.130.10
any cash collateralisation arrangements arising under:
1.1.130.10.1
the Eskom Guarantees provided that the amount provided as Security under those arrangements does not exceed ZAR210,000,000 at any time;
1.1.130.10.2
the ZAR Environmental Guarantees provided that the amount provided as Security under those arrangements does not exceed ZAR210,000,000 at any time;
1.1.130.10.3
the USD Environmental Guarantees provided that the amount provided as Security under those arrangements does not exceed USD20,000,000 at any time; and
1.1.130.10.4
the Silicosis Settlement Guarantee provided that the amount provided as Security under those arrangements does not exceed ZAR200,000,000 at any time.
1.1.130.11
    any other Security created with the prior written approval of the Facility Agent.
1.1.131
Permitted Share Issue means
1.1.131.1
an issue of ordinary shares by an Obligor to its Holding Company where the newly-issued shares also become subject to the Transaction Security on the same terms;
1.1.131.2
an issue by Harmony Moab to a BEE entity for the purpose of financing the acquisition by a BEE entity of up to 3% (three per cent) of the issued ordinary share capital of Harmony Moab.
1.1.132
Permitted Transferee means any person referred to Schedule 12 (Permitted Transferees), including any Affiliate of any such person.
1.1.133
PNGK means Papua New Guinea Kina, the lawful currency of Papua New Guinea.
1.1.134
Pre-Financial Close Material Adverse Change means a material adverse change prior to Financial Close, in the reasonable opinion of the Lenders (arrived at after consultation with the Borrower), in or on:
1.1.134.1
the debt, loan, financial and/or capital markets applicable to any Facility or in any markets relevant to the Borrower’s industry;
1.1.134.2
the South African or international monetary, financial, political or economic conditions;
1.1.134.3
the condition (financial or otherwise) of the business or operations or prospects of the Obligors taken as a whole;
which in the reasonable opinion of the Lenders:
1.1.134.4
has rendered, or will or is reasonably likely to render it unlawful for the Lenders (or any of them) to advance any portion of a Facility;
1.1.134.5
has materially adversely affected, or will or is reasonably likely to materially adversely affect, the risk profile attributed by the Lenders (or any of them) to the Obligors taken as a whole or the Lenders’ (or any of them) ability to fund, or maintain its funding of, any portion of its participation in a Facility; and/or
1.1.134.6
increases the cost to the Lenders (or any of them) of funding or maintaining its or their funding of any portion of its or their participation in a Facility, and the Borrower has elected not to bear such increased cost.
1.1.135
Quotation Day means, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period unless market practice differs in the Relevant Interbank Market, in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the Relevant Interbank Market (and if quotations would normally be given by leading banks in the Relevant Interbank Market on more than one day, the Quotation Day will be the last of those days).
1.1.136
Ratio Test Date means the last day of March, June, September and December.
1.1.137
Ratio Test Period means each period of 12 (twelve) months ending on a Ratio Test Date.
1.1.138
Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in USD and for the relevant period, were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period.
1.1.139
Reference Bank Quotation means any quotation supplied to the Facility Agent by a Reference Bank.
1.1.140
Reference Banks means the principal London offices of up to three banks agreed between the Facility Agent and the Borrower from time to time, subject to the consent of the relevant banks.
1.1.141
Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
1.1.142
Release Agreements means :
1.1.142.1
the written agreement entitled “Release Agreement”, entered into on or about the Signature Date amongst the Secured Parties, African Rainbow Minerals Gold Limited and the Borrower;
1.1.142.2
the written agreement entitled “Deed of Release of Security (PNG)”, entered into on or about the Signature Date entered into between, amongst others, Nedbank Limited (acting through its Corporate and Investment Banking division) (as Security Trustee under the Existing USD Finance Documents), and the Borrower; and
1.1.142.3
the written agreement entitled “Deed of Release of Security”, entered into on or about the Signature Date entered into between, amongst others, Nedbank Limited (acting through its Corporate and Investment Banking division) (as Security Trustee under the Existing USD Finance Documents), and the Borrower.
1.1.143
Relevant Interbank Market means in relation to USD, the London interbank market.
1.1.144
Relevant Subsidiaries means:
1.1.144.1
Harmony Gold Securities Pty Ltd – ABN 69 087 480 902;
1.1.144.2
New Hampton Goldfields Ltd – ABN 53 009 193 999;
1.1.144.3
Harmony Gold WA Pty Ltd – ABN 84 099 119 918;
1.1.144.4
Harmony Gold Operations Ltd – ABN 44 005 482 842;
1.1.144.5
Abelle Limited – ABN 69 087 480 902;
1.1.144.6
Aurora Gold Limited – ABN 82 006 568 850; and
1.1.144.7
Harmony Gold (PNG Services) Limited – ABN 23 083 828 853.
1.1.145
Repeating Representations means each of the representations set out in Clause 18.1 (Status) to Clause 18.6 (Validity and admissibility in evidence), other than 18.5 (Benefit), Clause 18.10.1, Clause 18.11.1, Clause 18.11.2, Clause 18.12 (Financial statements), Clause 18.15 (Security Interest), Clause 18.16 (Pari passu ranking), Clause 18.21 (Authorised Signatures), Clause 18.22 (No immunity) and Clause 18.23 (Sanctions and anti-corruption); save that the references in Clause 18.12 to Original Financial Statements shall, for the purposes of this Repeating Representation, be construed as references to the most recent audited consolidated financial statements of the Group delivered to the Facility Agent under Clause 19.1 (Financial statements).
1.1.146
Representative means any representative, delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
1.1.147
Resignation Letter means a letter substantially in the form set out Schedule 6 (Form of Resignation Letter).
1.1.148
Retiring Guarantor has the meaning given to it in Clause 17.8 (Release of Guarantors' right of contribution).
1.1.149
Rollover Loan means one or more Facility B Loans:
1.1.149.1
made or to be made on the same day that a maturing Facility B Loan is due to be repaid;
1.1.149.2
the aggregate amount of which is equal to or less than the amount of the maturing Facility B Loan; and
1.1.149.3
made or to be made to the Borrower for the purpose of refinancing a maturing Facility B Loan.
1.1.150
Sanctioned Entity means:
1.1.150.1
any person, country or territory which is listed on a Sanctions List or is subject to Sanctions, including without limitation and as at the date of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria;
1.1.150.2
any person which is ordinarily resident in a country or territory which is listed on a Sanctions List or is subject to Sanctions;
1.1.150.3
any person listed on, or owned or controlled by a person listed on, or acting on behalf of a person listed on, any Sanctions List;
1.1.150.4
any person located in, incorporated under the laws of, or owned or (directly or indirectly) controlled by, or operating in or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide or territory-wide Sanctions; or
1.1.150.5
any person otherwise a target of Sanctions (being any person with whom a US person or other national of a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities).
1.1.151
Sanctions means general trade, economic or financial sanctions, laws, regulations, trade embargoes or restrictive measures imposed, administered or enforced from time to time by any Sanctions Authority, and more specifically:
1.1.151.1
the Specially Designated Nationals and Blocked Persons List, the Sectoral Sanctions Identifications List and the List of Foreign Sanctions Evaders, each administered and enforced by OFAC;
1.1.151.2
the Financial Sanctions: Consolidated List of Targets and the Ukraine: list of persons subject to restrictive measures in view of Russia's actions destabilising the situation in Ukraine administered and enforced by HMT; or
1.1.151.3
any other list or public announcement or sanctions designation made by OFAC, HMT or any Sanctions Authority, in respect of the targets or scope of the Sanctions that are administered and enforced by a Sanctions Authority.
1.1.152
Sanctions Authority means each of:
1.1.152.1
the United Nations Security Council;
1.1.152.2
the European Union;
1.1.152.3
the Council of Europe (founded under the Treaty of London, 1946);
1.1.152.4
the government of the United States of America;
1.1.152.5
the government of the United Kingdom;
1.1.152.6
the government of the Republic of France;
1.1.152.7
the Hong Kong Monetary Authority;
1.1.152.8
the government of the Commonwealth of Australia,
and any of their Governmental Authorities, institutions or agencies, including, without limitation, OFAC, the US Department of Commerce, the US Department of State or the US Department of the Treasury, HMT and MINEFI.
1.1.153
Sanctions List means any of the lists maintained by any Sanctions Authority and any similar list maintained, or a public announcement of a Sanctions designation made, by any Sanctions Authority, in each case as amended, supplemented or substituted from time to time.
1.1.154
Screen Rate means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for USD for the relevant period displayed on page LIBOR01 or LIBOR02 (as the case may be) of the Thomson Reuters Screen (or any replacement Thomson Reuters page which displays that rate), or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
1.1.155
Secured Document means the Finance Documents, the ZAR Facility Agreement and the other Finance Documents as defined in the ZAR Facility Agreement.
1.1.156
Secured Parties means the Secured Parties as defined in the Intercreditor Agreement.
1.1.157
Security means a mortgage, notarial bond, bond, cession in security, charge, security assignment, pledge, hypothec, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
1.1.158
Security Document means:
1.1.158.1
in respect of the Original Obligors, the documents listed in Clause 3 of Part I of Schedule 2 (Conditions Precedent); and
1.1.158.2
any other security document that may at any other time be given as security for the liabilities pursuant to or in connection with any Secured Document.
1.1.159
Settlement Agreement means the written settlement agreement concluded on or about 3 May 2018 between, inter alia, the Borrower and the lawyers representing the claimants in the silicosis class action litigation referred to in such agreement.
1.1.160
Signature Date means the date of the signature of the Party last signing this Agreement in time.
1.1.161
Silicosis Settlement Guarantee means the guarantee facility of up to ZAR1 100 000 000 (one billion one hundred million Rand) in terms of which a guarantee will be issued on behalf of the Borrower in favour of a trust to be established pursuant to the Settlement Agreement.
1.1.162
Specified Time means a time determined in accordance with Schedule 9 (Timetables).
1.1.163
Subsidiary means a subsidiary as defined in the Companies Act and shall include any person who would, but for not being a company under the Companies Act, qualify as a subsidiary as defined in the Companies Act.
1.1.164
Tangible Net Worth means Total Equity less Intangible Assets.
1.1.165
Tangible Net Worth to Total Net Debt means, at any time, the ratio of Tangible Net Worth to Total Net Debt.
1.1.166
Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
1.1.167
Total Commitments means the aggregate of the Total Facility A Commitment and the Total Facility B Commitment.
1.1.168
Total Facility A Commitments means the aggregate of the Facility A Commitments, being USD200 000 000 (two hundred million United States Dollars) at the Signature Date.
1.1.169
Total Facility B Commitments means the aggregate of the Facility B Commitments, being USD200 000 000 (two hundred million United States Dollars) at the Signature Date.
1.1.170
Total Equity means the total aggregate issued share capital of the Borrower from time to time.
1.1.171
Total Interest means, in respect of any period, the aggregate accruing during such period (without duplication and whether or not paid or payable within such period) of, in respect of the Group on a consolidated basis (and whether or not the principal or capital obligation by reference to which any of the following are determined is an obligation of the Group):
1.1.171.1
all interest, acceptance commission, guarantee fees and any other continuing, regular or periodic costs and expenses in the nature of interest (whether paid, payable or capitalised) incurred in effecting, servicing or maintaining Financial Indebtedness;
1.1.171.2
amounts payable (as reduced by amounts receivable) in respect of any Derivatives Transaction which is an interest rate hedging arrangement entered into to hedge risks arising in the normal course of business; and
1.1.171.3
the interest element of, and ancillary fees payable under, any finance leases (other than a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease).
1.1.172
Total Net Debt means, at any time, the aggregate amount of all obligations of members of the Group for or in respect of Financial Indebtedness but:
1.1.172.1
excluding any such obligations to any other member of the Group;
1.1.172.2
excluding any liability of any member of the Group relating to the ZAR Environmental Guarantees;
1.1.172.3
excluding any liability of any member of the Group relating to the USD Environmental Guarantees;
1.1.172.4
excluding any liability of any member of the Group arising from the Eskom Guarantees;
1.1.172.5
excluding any liability of any member of the Group arising from the Silicosis Guarantee;
1.1.172.6
including, in the case of any lease or hire purchase contract, which would in accordance with IFRS, be treated as a finance or capital lease (other than a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease), their capitalised value; and
1.1.172.7
deducting the aggregate amount of Cash and Cash Equivalent Investments held by any member of the Group at that time.
1.1.173
Transaction Security means the Security created or expressed to be created in favour of the Secured Parties pursuant to the Security Documents.
1.1.174
Transfer has the meaning given to it in Clause 25.1 (Cessions and delegations by the Lenders).
1.1.175
Transfer Certificate means a certificate substantially in the form set out Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the Borrower.
1.1.176
Transfer Date means, in relation to a Transfer, the later of:
1.1.176.1
the proposed Transfer Date specified in the Transfer Certificate; and
1.1.176.2
the date on which the Facility Agent executes the Transfer Certificate.
1.1.177
Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.
1.1.178
USD means United States Dollars, the lawful currency of the United States of America.
1.1.179
USD Environmental Guarantees means any Financial Indebtedness relating to compliance with environmental and mining legislation in Papua New Guinea arising from rehabilitation operations in the form of environmental guarantees and financial security under such legislation in an aggregate amount not exceeding USD100 000 000 (one hundred million United Stated Dollars) at any time.
1.1.180
Utilisation means a utilisation of a Facility.
1.1.181
Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made.
1.1.182
Utilisation Fee has the meaning given to it in Clause 5.6.
1.1.183
Utilisation Request means a notice substantially in the form set out Schedule 3 (Form of Utilisation Request).
1.1.184
VAT means value added tax as provided for in the Value Added Tax Act, 1991 and any other tax of a similar nature.
1.1.185
Wafi-Golpu Joint Venture means the joint venture constituted by the joint venture agreement between Wafi Mining Limited, Newcrest PNG 2 Limited and Wafi-Golpu Services Limited dated 22 May 2008.
1.1.186
ZAR means South African Rand, the lawful currency of South Africa.
1.1.187
ZAR Environmental Guarantees means any Financial Indebtedness relating to compliance with environmental legislation in South Africa arising from rehabilitation operations in the form of environmental guarantees in an aggregate amount not exceeding ZAR600 000 000 (six hundred million Rand) at any time.
1.1.188
ZAR Facility Agreement means the written agreement entitled ‘ZAR2 000 000 000 Term and Revolving Credit Facilities Agreement’ between the Borrower, Obligors and the ZAR Facility Finance Parties as amended from time to time.
1.1.189
ZAR Facility Finance Parties means the Finance Parties as defined in the ZAR Facility Agreement.
1.2
Construction
1.2.1
Unless a contrary indication appears, any reference in this Agreement to:
1.2.1.1
any Global Coordinator, any Bookrunner, the Facility Agent, any Finance Party, any Lender, any Secured Party, any Hedge Provider, any Obligor or any Party shall be construed so as to include its successors in title, permitted cessionaries and permitted transferees;
1.2.1.2
assets includes present and future properties, revenues and rights of every description;
1.2.1.3
authority includes any court or any governmental, intergovernmental or supranational body, agency, department or any regulatory, self-regulatory or other authority;
1.2.1.4
a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated from time to time;
1.2.1.5
indebtedness includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
1.2.1.6
a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
1.2.1.7
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but if not having the force of law, being one with which the relevant person is accustomed to comply) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
1.2.1.7.1
a provision of law is a reference to that provision as amended or re-enacted; and
1.2.1.7.2
a time of day is a reference to Johannesburg time.
1.2.1.8
Section, Clause and Schedule headings are for ease of reference only.
1.2.1.9
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
1.2.1.10
A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been waived.
1.2.1.11
If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in an interpretation Clause, effect shall be given to it as if it were a substantive provision of the relevant Finance Document.
1.2.1.12
Unless inconsistent with the context, an expression in any Finance Document which denotes the singular includes the plural and vice versa.
1.2.2
The Schedules to any Finance Document form an integral part thereof.
1.2.3
The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the Party responsible for the drafting thereof, shall not apply in the interpretation of the Finance Documents.
1.2.4
The expiry or termination of any Finance Documents shall not affect such of the provisions of the Finance Documents as expressly provide that they will operate after any such expiry or termination or which of necessity must continue to have effect after such expiry or termination, notwithstanding that the Clauses themselves do not expressly provide for this.
1.2.5
The Finance Documents shall to the extent permitted by applicable law be binding on and enforceable by the administrators, trustees, permitted cessionaries, business rescue practitioners or liquidators of the Parties as fully and effectually as if they had signed the Finance Documents in the first instance and reference to any Party shall be deemed to include such Party’s administrators, trustees, permitted cessionaries, business rescue practitioners or liquidators, as the case may be.
1.2.6
The use of any expression in any Finance Document covering a process or proceeding available under South African law such as winding-up or business rescue (without limitation eiusdem generis) shall, if any of the Parties to the Finance Documents is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous process or proceedings under the law of such other jurisdiction.
1.2.7
Where figures are referred to in numerals and in words in any Finance Document, if there is any conflict between the two, the words shall prevail.
1.2.8
Unless a contrary indication appears, where any number of days is to be calculated from a particular day, such number shall be calculated as including that particular day and excluding the last day of such period.
1.3
Third party rights
1.3.1
Except as expressly provided for in this Agreement or in any other Finance Document, no provision of any Finance Document constitutes a stipulation for the benefit of any person who is not a party to that Finance Document.
1.3.2
Notwithstanding any term of any Finance Document, the consent of any person who is not a party to that Finance Document is not required to rescind or vary that Finance Document at any time except to the extent that the relevant variation or rescission (as the case may be) relates directly to the right conferred upon any applicable third party under a stipulation for the benefit of that party that has been accepted by that third party.
SECTION 2
FACILITY, PURPOSE AND CONDITIONS
2.
THE FACILITY
2.1
The Facility
Subject to the terms of this Agreement, the Lenders make available to the Borrower
2.1.1
a USD committed term loan facility in an aggregate amount equal to the Total Facility A Commitments; and
2.1.2
a USD committed revolving credit facility in an aggregate amount equal to the Total Facility B Commitments.
2.2
Finance Parties' rights and obligations
2.2.1
The obligations of each Finance Party under the Finance Documents are separate and independent. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
2.2.2
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
2.2.3
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
2.2.4
The Borrower is entitled to receive a copy of the signed Intercreditor Agreement; however neither the Borrower nor any other Obligor has any rights or obligations under the Intercreditor Agreement.
3.
PURPOSE
3.1
Purpose
The Borrower shall apply all amounts borrowed by it under the Facilities towards:
3.1.1
the repayment in full of the Existing USD Facility Outstandings; and
3.1.2
the Group’s exploration activities, feasibility costs, capital costs, operational costs, other corporate expenses and other strategic objectives relating to the Group outside of South Africa.
3.2
Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4.
CONDITIONS OF UTILISATION
4.1
Conditions precedent to First Utilisation
The Borrower may not deliver a first Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions precedent) in form and substance satisfactory to the Facility Agent and the other Finance Parties (or in relation to originals of required notices, share certificates and blank transfer forms contemplated by Clause 3 of Part I of Schedule 2 (Conditions Precedent), the Facility Agent and the other Finance Parties is satisfied that these are being held on its behalf by its legal advisors). The Facility Agent (acting on behalf of the other Finance Parties) shall notify the Borrower and the Lenders promptly in writing that it so satisfied.
4.2
Conditions precedent to Utilisations generally
The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if Financial Close has occurred no later than 40 (forty) days after the Signature Date (or within such further period as the Lenders may have agreed to in writing before the lapse of the period of 40 (forty) days after the Signature Date), on the date of the Utilisation Request and on the proposed Utilisation Date:
4.2.1
in the case of a Rollover Loan, no Event of Default is continuing or would result from the proposed Loan and, in the case of any other Loan, no Default is continuing or would result from the proposed Loan;
4.2.2
the Repeating Representations to be made by each Obligor are true in all material respects;
4.2.3
in relation to the first Utilisation only, the representations referred to in Clause 18.17 (No proceedings pending or threatened) are true in all material respects and for this purpose, the representations referred to in Clause 18.17 (No proceedings pending or threatened) shall be deemed to be made by each Obligor by reference to the facts and circumstances existing on the first Utilisation Date.

SECTION 3
UTILISATION
5.
UTILISATION
5.1
Delivery of a Utilisation Request
The Borrower may utilise a Facility by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
5.2
Completion of a Utilisation Request
5.2.1
Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
5.2.1.1
it identifies the Facility to be utilised;
5.2.1.2
the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;
5.2.1.3
the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
5.2.1.4
the proposed Interest Period complies with Clause 9 (Interest Periods).
5.2.2
Only one Loan may be requested in each Utilisation Request.
5.2.3
Only one Utilisation Request may be submitted in any calendar month in respect of Facility B and only one Utilisation request may be submitted in respect of Facility A.
5.2.4
The Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than five Loans would be outstanding at any point in time and to this effect, the Facility Agent will consolidate two or more outstanding Loans made from the same Facility maturing on the same date, such that the relevant Rollover Loan made to refinance such maturing Loans will be in respect of such outstanding Loans as consolidated into one Loan.
5.3
Currency and amount
5.3.1
The currency specified in a Utilisation Request must be USD.
5.3.2
The amount of the proposed Loan must be an amount which is not more than the Available Facility and which is a minimum of USD30 000 000 (thirty million United States Dollars) or, if less, the Available Facility.
5.4
Lenders' participation
5.4.1
If the conditions set out in this Agreement have been met, and subject to Clause 6.1 (Repayment of Facility B Loans) each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office.
5.4.2
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
5.4.3
The Facility Agent shall notify each Lender of the amount of each Loan and the amount of its participation in that Loan by the Specified Time.
5.5
Cancellation of Commitment
5.5.1
If Financial Close has not occurred by the date which is no later than 40 (forty) days after the Signature Date (or within such further period as the Lenders may have agreed to in writing before the lapse of the period of 40 (forty) days after the Signature Date), the Commitments shall be immediately cancelled.
5.5.2
The Facility A Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility A.
5.5.3
The Facility B Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period for Facility B.
5.6
Utilisation Fee
Where the aggregate of the Facility B Loans is equal to an amount expressed as a percentage range (being a percentage of the Facility B Commitments) set out in the left column below, the Borrower shall pay a utilisation fee which shall be computed at a rate equal to the rate per annum set out opposite such percentage range in the right column below on the aggregate of the Facility B Loans (Utilisation Fee).
% of Facility B Commitments
Utilisation Fee
Less than or equal to 33.33%
0.10%
Greater than 33.33% but less than or equal to 66.67%
0.20%
Greater than 66.67%
0.30%

5.7
The Utilisation Fee shall be calculated on a day to day basis and shall be payable quarterly in arrears on the last day of each successive period of 3 (three) Months, with the first such period commencing on Financial Close.

SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6.
REPAYMENT
6.1
Repayment of Facility A Loans
6.1.1
The Borrower shall repay the Facility A Loans made to it in full on the Final Repayment Date.
6.1.2
The Borrower may not re-borrow any part of Facility A which is repaid.
6.2
Repayment of Facility B Loans
Subject to the provisions of Clause 6.2.1 (Rollover Loans) below, the Borrower shall repay each Facility B Loan on the last day of its Interest Period.
6.2.1
Rollover Loans
6.2.1.1
Without prejudice to the Borrower's obligation under Clause 6.2.1.3 below, if one or more Facility B Loans are to be made available to the Borrower:
6.2.1.1.1
on the same day that a maturing Facility B Loan is due to be repaid by the Borrower; and
6.2.1.1.2
in whole or in part for the purpose of refinancing the maturing Facility B Loan,
the aggregate amount of the new Facility B Loans shall be treated as if applied in or towards repayment of the maturing Facility B Loan and Clause 6.2.1.2 below shall apply.
6.2.1.2
Any Rollover Loans shall be utilised as follows:
6.2.1.2.1
if the amount of a maturing Facility B Loan exceeds the aggregate amount of the new Facility B Loans (Excess):
6.2.1.2.1.1
the Borrower will only be required to repay an amount in cash equal to the Excess (in repayment of the maturing Facility B Loan), and
6.2.1.2.1.2
the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of the Lender's participation (if any) in the maturing Facility B Loan and the Lender will not be required to make new Facility B Loans available in cash; and
6.2.1.2.2
if the amount of the maturing Facility B Loan is equal to or less than the aggregate amount of the new Facility B Loans:
6.2.1.2.2.1
the Borrower will not be required to make any repayment in cash on account of the maturing Facility B Loan; and
6.2.1.2.2.2
the Lender will be required to make the new Facility B Loans available in cash only to the extent that the new Facility B Loans exceed the maturing Facility B Loan and the remainder of the new Facility B Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of the maturing Facility B Loan.
6.2.1.3
The Borrower shall repay all Loans outstanding under the Facilities (including accrued and unpaid interest thereon) in full by no later than the Final Repayment Date.
6.2.1.4
The Borrower may re-borrow any part of Facility B which is repaid.
6.3
Extension option
6.3.1
The Borrower may, by giving notice to the Facility Agent substantially in the form set out in Part 1 of Schedule 14 (Form of Extension Documents), (an Extension Request) not less than 100 (one hundred) days (and not more than 120 (one hundred and twenty) days) before the first anniversary of Financial Close, request that the Initial Repayment Date be extended to the Extended Repayment Date.
6.3.2
The Facility Agent must promptly, but in any event by no later than 2 (two) Business Days following receipt, notify the Lenders of the receipt of an Extension Request.
6.3.3
Each Lender shall notify the Facility Agent and the Borrower of its decision whether or not to consent to the Extension Request not more than 20 (twenty) Business Days after being notified by the Facility Agent of the Extension Request (the Extension Request End Date). A Lender who has consented to the Extension Request (the Extending Lenders), shall deliver a written notice to the Facility Agent substantially in the form set out in Part 2 of Schedule 14 (Form of Extension Documents) (an Extension Acceptance Notice). If a Lender has not delivered an Extension Acceptance Notice on or before the Extension Request End Date, it shall be deemed to have refused to consent to the Extension Request (together with a Lender who has explicitly refused to consent to an Extension Request, the Non-Extending Lenders).
6.3.4
Each Non-Extending Lender shall, on the Business Day immediately following the Extension Request End Date, be deemed to have offered all (and not part only) its Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans (together with all its rights and obligations under the Finance Documents) to each Extending Lender pro rata in accordance with Clause 6.3.6 below. The Facility Agent shall inform all Extending Lenders of such offer by issuing a notice (the Lender Replacement Notice) within two Business Days of such date. The offer made pursuant to this Clause 6.3.4 shall immediately lapse at the end of the Business Day immediately preceding the commencement of the Replacement Lender Offer Period (as defined below).
6.3.5
An Extending Lender may, within 15 (fifteen) Business Days of receipt of a Lender Replacement Notice (the Replacement Notice End Date) deliver a further Extension Acceptance Notice to the Facility Agent and the Borrower pursuant to which it confirms its willingness to assume (i) its pro rata share of each such Non-Extending Lender’s Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans and (ii) all the rights and obligations of each Non-Extending Lender (the Initial Pro Rata Participation) for a purchase price in cash payable at the time of transfer in an amount equal to its pro rata share of the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans and all accrued interest, Breakage Costs and other amounts payable in relation thereto under the Finance Documents. If an Extending Lender has not notified the Facility Agent in writing of its consent on or before such date, it shall be deemed to have declined its Initial Pro Rata Participation. An Extending Lender may, in its further Extension Acceptance Notice, indicate whether it wishes to assume, in addition to its Initial Pro Rata Participation, any additional amount of a Non-Extending Lender’s Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans (the Participation Headroom).
6.3.6
If an Extending Lender has declined or is deemed to have declined:
6.3.6.1
its Initial Pro Rata Participation, the Facility Agent shall notify the other Extending Lenders within 2 Business Days of the Replacement Notice End Date and each such other Extending Lender may deliver a further Extension Acceptance Notice within 3 Business Days, pursuant to which it confirms its willingness to assume its pro rata share of that Initial Pro Rata Participation (the Additional Pro Rata Participation). If an Extending Lender has not delivered a further Extension Acceptance Notice on or before such date, it shall be deemed to have declined its Additional Pro Rata Participation; or
6.3.6.2
its Additional Pro Rata Participation, any other Extending Lender which has provided its Participation Headroom shall, within 3 Business Days of such event occurring, assume either (i) an amount not exceeding its Participation Headroom or (ii) such other amount (not exceeding the Additional Pro Rata Participation) as notified by the Borrower to the Facility Agent (in the event that more than one Extending Lender has provided its Participation Headroom and such amount exceeds the Additional Pro Rata Participation),
in each case for a purchase price in cash payable at the time of transfer in an amount equal to its pro rata share of the outstanding principal amount of such Additional Pro Rata Participation or Participation Headroom (as applicable) and all accrued interest, Breakage Costs and other amounts payable in relation thereto under the Finance Documents.
6.3.7
If following the procedure set out in Clause 6.3.6 any Non-Extending Lender’s Available Commitments and the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans remains available the Borrower may, within 20 (twenty) Business Days (the Replacement Lender Offer Period), replace a Non-Extending Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer to:
6.3.7.1
a Permitted Transferee; or
6.3.7.2
subject to the consent of the Extending Lenders (which consent shall not be unreasonably withheld or delayed), any other bank or financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (an Alternative Institution).
(each such Permitted Transferee or Alternative Institution, an Extending Replacement Lender), for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of such Non-Extending Lender's participation in the outstanding Loans and all accrued interest, Breakage Costs and other amounts payable in relation thereto under the Finance Documents.
6.3.8
If at the end of the Replacement Lender Offer Period, Available Commitments and participation in all outstanding Loans of the Non-Extending Lenders, in an aggregate amount not exceeding USD25, 000,000 have not been transferred to an Extending Replacement Lender, the Borrower may, within 2 Business Days after the end of Replacement Lender Offer Period give the Facility Agent notice of cancellation of the Commitments of those Non-Extending Lenders and its intention to procure the repayment of those Non-Extending Lender's participation in the Loans. On receipt of such a notice of cancellation, the Commitments of those Non-Extending Lenders shall immediately be reduced to zero and the Borrower shall repay those Non-Extending Lenders’ participation in that Loan by no later than the date falling 3 (three) Business Days prior to the Initial Repayment Date (the Permitted Non-Extending Lender Repayment).
6.3.9
The replacement of a Non-Extending Lender pursuant to Clause 6.3.4 to 6.3.8 shall be subject to the following conditions:
6.3.9.1
such transfer shall be effect pursuant to Clause 25 (Changes to the Lenders);
6.3.9.2
no Lender shall have any obligation to the Borrower to find an Extending Replacement Lender;
6.3.9.3
in no event shall the Non-Extending Lender be required to pay or surrender to such Extending Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and
6.3.9.4
the Non-Extending Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 6.3.4 to 6.3.8 once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.
6.3.10
A Non-Extending Lender shall perform the checks described in Clause 6.3.9.4 as soon as reasonably practicable and shall notify the Facility Agent and the Borrower when it is satisfied that it has complied with those checks.
6.3.11
If following the completion of the procedure set out in Clauses 6.3.1 to 6.3.10:
6.3.11.1
the Borrower has either received Extension Acceptance Notices from all the Lenders or has replaced all Non-Extending Lenders with an Extending Replacement Lender or has effected a Permitted Non-Extending Lender Repayment, each Lender’s Available Commitments and participation in all outstanding Loans shall be extended to the Extended Repayment Date; or
6.3.11.2
the Available Commitments and participation in all outstanding Loans of a Non-Extending Lender have not been transferred to an Extending Replacement Lender or the Borrower has been unable to effect a Permitted Non-Extending Lender Repayment, each Lender’s:
6.3.11.2.1
Available Commitments shall be reduced to zero and cancelled; and
6.3.11.2.2
participation in all outstanding Loans shall be repaid together with accrued interest and all other amounts outstanding in relation to such participation,
in each case on the Initial Repayment Date.
6.3.12
The Borrower shall pay to:
6.3.12.1
each Extending Lender, a fee computed at the percentage rate equal to 0.15 per cent. of each Extending Lender’s Available Commitment and participation in all outstanding Loans (excluding any Initial Pro Rata Participation, Additional Pro Rata Participation or Participation Headroom). Such fee is payable on the 3rd Business Day after the last date on which an the process set out in Clause 6.3.1 to 6.3.10 has been completed; or
6.3.12.2
each Extending Lender that has participated in respect of its Initial Pro Rata Participation, Additional Pro Rata Participation or Participation Headroom (as applicable), a participation fee in the amount and at the times agreed in a Fee Letter; or
6.3.12.3
each Alternative Institution that has become an Extending Replacement Lender, a participation fee in the amount and at the times agreed in a Fee Letter.
7.
PREPAYMENT AND CANCELLATION
7.1
Illegality
If, in any applicable jurisdiction, it becomes unlawful for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so (including in connection with any Anti-Corruption Laws and any Sanctions):
7.1.1
that Lender shall promptly notify the Facility Agent upon becoming aware of that event;
7.1.2
upon the Facility Agent notifying the Borrower, the Commitment of that Lender or its Affiliate will be immediately cancelled; and
7.1.3
to the extent that the Lender’s or its Affiliate’s participation has not been transferred pursuant to Clause 36.3 (Replacement of Lender), the Borrower shall repay that Lender's or its Affiliate’s participation in the Loans on the last day of the Interest Period for each Loan occurring after the Facility Agent has notified the Borrower or, if earlier, the date specified by the Lender or its Affiliate in the notice delivered to the Facility Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's or its Affiliate’s corresponding Commitment(s) shall be cancelled in the amount of the participations repaid.
7.2
Fundamental Control Event or Fundamental Disposal Event
7.2.1
If any Fundamental Control Event or Fundamental Disposal Event occurs:
7.2.1.1
the Borrower shall promptly notify the Facility Agent upon becoming aware of that event;
7.2.1.2
a Lender shall not be obliged to fund a Utilisation; and
7.2.1.3
if the Majority Lenders so require, the Facility Agent shall, by notice to the Borrower, cancel the Total Commitments and declare all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Total Commitments will be cancelled and all such outstanding amounts will become immediately due and payable or due and payable on the date referred to in the notice.
7.2.1.4
Notwithstanding Clause 7.2.1.3, if a Fundamental Control Event described in Clause 1.1.80.1 occurs and if any Lender so requires, the Facility Agent shall, by notice to the Borrower, cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest, and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable or due and payable on the date referred to in the notice.
7.3
Material Disposal Proceeds
7.3.1
The Borrower shall notify the Facility Agent of the receipt of any Material Disposal Proceeds promptly upon the relevant member of the Group becoming entitled to receive such Material Disposal Proceeds. If the Majority Lenders so require, the Facility Agent shall notify the Borrower that all or a specified amount of the Available Material Disposal Proceeds are required to be applied to repay the outstanding Loans and on receipt of such notice the Borrower shall, subject to Clause 7.7.7 below, be obliged to repay the Loans (so they are reduced by the same proportions and rateably amongst the Lenders) in an amount equal to the Available Material Disposal Proceeds or the specified amount of the Available Material Disposal Proceeds, as applicable on the last day of the Interest Period of each such Loan, provided that if an Event of Default occurs prior to the last day of an Interest Period of a Loan, the amount of the relevant prepayment shall be immediately due and payable.
7.3.2
For purposes of this Clause 7.3:
7.3.2.1
Available Material Disposal Proceeds means that portion of the Material Disposal Proceeds which are available to be applied under this Agreement which shall be determined as the aggregate of (x) the USD Facility Percentage of the Material Disposal Proceeds, and (y) any Material Disposal Proceeds which would otherwise have been available to be applied as a prepayment under the ZAR Facility Agreement but were not in fact so applied.
7.3.2.2
USD Facility Percentage means the ratio (expressed as a percentage) of (x) the aggregate Available Commitments and Loans to (y) the sum of the aggregate Available Commitments and Loans and the USD equivalent of the aggregate available commitments and loans under the ZAR Facility Agreement converted at prevailing exchange rates to the USD equivalent amount.
7.3.2.3
Disposal Proceeds means the cash consideration received by any member of the Group in respect of the Disposal of (x) a Material Asset or any portion or part of a Material Asset or (y) the shares in a company or interests in any other entity which owns the Material Asset (including any amount received in repayment of intercompany debt pursuant to the Disposal of a Material Asset and any amount received by any member of the Group pursuant to an exercise by Papua New Guinea of the Buy-In Option) or (z) all or any portion or part of the joint venture property of the Wafi-Golpu Joint Venture, at any time after the Signature Date but prior to the date of full and final repayment of the Loans, and after deducting:
7.3.2.3.1
any reasonable expenses which are incurred by any member of the Group with respect to that Disposal to persons who are not members of the Group; and
7.3.2.3.2
any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably determined by the seller, on the basis of existing rates and taking account of any available credit, deduction or allowance).
7.3.2.4
Disposal means a sale, lease, license, transfer, loan or other disposal by a person (whether by a voluntary or involuntary single transaction or series of transactions).
7.3.2.5
Material Disposal Proceeds means that portion of Disposal Proceeds which when aggregated with any other Disposal Proceeds previously received by any member of the Group is in excess of ZAR1 000 000 000 (one billion Rand) or the equivalent thereof in any other currency or currencies, excluding any Disposal Proceeds received by any member of the Group pursuant to an exercise by Papua New Guinea of the Buy-In Option but only to the extent that such Disposal Proceeds are reinvested by the relevant member of the Group in the relevant operations relating to the Buy-In Option or in the business of another Obligor or otherwise retained by an Obligor and not used to make any Distribution.
7.4
Cancellation
The Borrower may, if it gives the Facility Agent not less than 90 (ninety) days (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of USD30 000 000 (thirty million United States Dollars)) of the Available Facility. Any cancellation under this Clause 7.4 shall reduce the Commitments of the Lenders rateably.
7.5
Voluntary prepayment of Loans
7.5.1
The Borrower may, if it gives the Facility Agent not less than 5 (five) Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of any Loan (but, if in part, being an amount that reduces the amount of the Loan by a minimum amount of USD30 000 000 (thirty million United States Dollars)).
7.5.2
Any prepayment under this Clause 7.5 shall be applied rateably among the participations of all Lenders under that Facility.
7.5.3
The Borrower may only re-borrow any part of the Facility B which is prepaid under this Clause 7.5.
7.6
Right of repayment and cancellation in relation to a single Lender
7.6.1
If:
7.6.1.1
any sum payable to any Lender by an Obligor is required to be increased under Clause 12.2.3; or
7.6.1.2
any Lender claims indemnification from the Borrower under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs),
the Borrower may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Loans.
7.6.2
On receipt of a notice of cancellation referred to in Clause 7.6.1 above, the Commitment of that Lender shall immediately be reduced to zero.
7.6.3
On the last day of each Interest Period in relation to a Loan which ends after the Borrower has given notice of cancellation under Clause 7.6.1 above (or, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in that Loan.
7.7
Restrictions and Early Settlement Fees
7.7.1
Any notice of cancellation or prepayment given by any Party under this Clause 6.3 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
7.7.2
Any prepayment of a Loan under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Breakage Costs payable under Clause 10.4 (Breakage Costs) (if applicable) and save as otherwise provided for in Clause 7.7.8 or elsewhere in this Agreement, without premium or penalty.
7.7.3
The Borrower may not re-borrow any part of Facility B which is prepaid (other than in accordance with Clause 7.5 (Voluntary prepayment of Loans)).
7.7.4
The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
7.7.5
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
7.7.6
If the Facility Agent receives a notice under this Clause 6.3 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.
7.7.7
If all or part of a Loan is prepaid (other than in accordance with Clause 7.5 (Voluntary prepayment of Loans)), an amount of the Commitments (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this Clause 7.7.7 shall reduce the Commitments of the Lenders rateably.
7.7.8
If all or part of a Loan is repaid or prepaid directly or indirectly by utilising Financial Indebtedness incurred by any member of the Group, (the Refinanced Loan Portion), the Borrower shall make payment of early settlement fees to the Facility Agent for the account of each Lender (other than a Non-Extending Lender) as follows:
7.7.8.1
2,50% (two point five zero per cent) of the Refinanced Loan Portion where the prepayment occurs at any time after Financial Close but prior to the first anniversary of Financial Close;
7.7.8.2
1,50% of the Refinanced Loan Portion where the prepayment occurs at any time on or after the first anniversary of Financial Close but prior to the second anniversary of Financial Close; and
7.7.8.3
provided that the Initial Repayment Date has been extended to the Extended Repayment Date pursuant to Clause 6.3 (Extension Option), 0,50% (zero point five zero per cent) of the Refinanced Loan Portion where the prepayment occurs at any time on or after the second anniversary of Financial Close but prior to the third anniversary of Financial Close,
provided that if a Lender participates in the Financial Indebtedness incurred in relation to the Refinanced Loan Portion, the early settlement fee of that Lender will be calculated by applying the relevant percentage referred to above to the amount (if any) representing the difference between the participation of that Lender in the Loans being prepaid and the participation of that Lender in the Financial Indebtedness incurred to repay the Loans.
7.8
Right of cancellation in relation to a Defaulting Lender
7.8.1
If any Lender becomes a Defaulting Lender, the Borrower may, at any time whilst the Lender continues to be a Defaulting Lender, give the Facility Agent 5 (five) Business Days' notice of cancellation of each Available Commitment of that Lender.
7.8.2
On the notice referred to in Clause 7.8.1 above becoming effective, each Available Commitment of the Defaulting Lender shall immediately be reduced to zero.
7.8.3
The Facility Agent shall as soon as practicable after receipt of a notice referred to in Clause 7.8.1 above, notify all the Lenders.
SECTION 5
COSTS OF UTILISATION
8.
INTEREST
8.1
Calculation of interest
The rate of interest on each Loan for each Interest Period is the percentage rate per annum which is the aggregate of the:
8.1.1
Applicable Margin; and
8.1.2
LIBOR.
8.2
Payment of interest
The Borrower shall pay accrued interest on each Loan on the last day of each Interest Period for that Loan.
8.3
Default interest
8.3.1
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on that Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to Clause 8.3.2 below, is 2% (two per cent) higher than the rate which would have been payable if that Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of that Unpaid Sum for successive Interest Periods, each of a duration selected by the Facility Agent (acting reasonably). Any interest accruing under this Clause 8.3 shall be immediately payable by the Obligor on demand by the Facility Agent.
8.3.2
If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
8.3.2.1
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
8.3.2.2
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be 2% (two per cent) higher than the rate which would have applied if that Unpaid Sum had not become due.
8.3.3
Default interest (if unpaid) arising on any Unpaid Sum will be compounded with that Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
8.4
Notification of rates of interest
8.4.1
The Facility Agent shall promptly notify the Lenders and the Borrower of the determination of a rate of interest under this Agreement.
8.4.2
The Facility Agent shall promptly notify the Borrower of each Funding Rate relating to a Loan.
9.
INTEREST PERIODS
9.1
Selection of Interest Periods
9.1.1
Each Loan in respect of Facility A shall have successive Interest Periods of 3 (three) Months.
9.1.2
The Borrower shall select an Interest Period for a Loan in respect of Facility B, in the Utilisation Request for that Loan.
9.1.3
Subject to this Clause 9 (Interest Periods) the Borrower may, for a Loan in respect of Facility B, select an Interest Period of three or 6 (six) Months, as specified in the Utilisation Request (or such other period as may be agreed between the Borrower and the Lenders, provided that such other period shall not be longer than 6 (six) Months).
9.1.4
An Interest Period for a Loan shall not extend beyond the Final Repayment Date.
9.1.5
The Interest Period for a Loan shall start on the Utilisation Date of that Loan.
9.1.6
Subject to this Clause 9 (Interest Periods), the Borrower may select a different Interest Period for a Rollover Loan than the Interest Period of the Loan being refinanced by that Rollover Loan in the Utilisation Request delivered for that Rollover Loan.
9.1.7
If the Borrower fails to select an Interest Period for a Loan in the Utilisation Request for that Loan, the Interest Period for the applicable Loan shall be 3 (three) Months.
9.2
Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
9.3
Consolidation of Loans
If two or more Interest Periods in respect of any Loans made from the same Facility end on the same date, those Loans will be consolidated into, and treated as, a single Loan on the last day of the Interest Period.
10.
CHANGES TO THE CALCULATION OF INTEREST
10.1
Absence of quotations
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by the Specified Time on the Quotation Day, the applicable LIBOR shall be determined on the basis of the quotations of the remaining Reference Banks.
10.2
Market disruption
10.2.1
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender's share of that Loan for the Interest Period shall be the percentage rate per annum which is the sum of:
10.2.1.1
the Applicable Margin; and
10.2.1.2
    the rate notified to the Facility Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select.
10.2.2
In this Agreement, Market Disruption Event means:
10.2.2.1
at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine LIBOR for the relevant Interest Period; or
10.2.2.2
    before close of business in London on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35% (thirty five per cent) of that Loan) that the cost to it or them of funding its or their participation in that Loan from whatever source it or they may reasonably select would be in excess of LIBOR.
10.3
Alternative basis of interest or funding
10.3.1
Without prejudice to the generality of Clause 10.2.1 above, if a Market Disruption Event occurs and the Facility Agent or the Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for a period of not more than 30 (thirty) days) with a view to agreeing a substitute basis for determining the rate of interest.
10.3.2
Any alternative basis agreed pursuant to Clause 10.3.1 above shall, with the prior consent of all the Lenders and the Borrower, be binding on all Parties for the relevant Interest Period and thereafter for so long as the Market Disruption Event continues to apply.

10.4
Breakage Costs
10.4.1
The Borrower shall, within 3 (three) Business Days of demand by a Finance Party, pay to that Finance Party its Breakage Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum. No Breakage Cost shall be payable in relation to the prepayment of a Loan pursuant to the provisions of Clause 7.1 (Illegality) or Clause 7.6 (Right of repayment and cancellation in relation to a single Lender).
10.4.2
Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Breakage Costs for any Interest Period in which they accrue.
11.
FEES
11.1
Commitment fee
11.1.1
The Borrower shall pay to the Facility Agent (for the account of each Lender) a fee computed at the rate of 40% (forty per cent) of the Applicable Margin per annum on each Lender's Available Commitment for the Availability Period and which fee shall accrue on a daily basis.
11.1.2
The accrued commitment fee is payable on the last day of each successive period of 3 (three) Months which ends during the Availability Period, on the last day of the Availability Period and, if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective.
11.1.3
For the avoidance of doubt, no commitment fees will be payable if Financial Close does not occur.
11.2
Agency fee
The Borrower shall pay to the Facility Agent (for its own account) an agency fee in the amount and at the times agreed in a Fee Letter.
11.3
Participation fee
The Borrower shall pay to the Facility Agent (for the account of each Lender) a participation fee in the amount and at the times agreed in a Fee Letter.
11.4
Extension fee
The Borrower shall pay to each relevant Extending Lender or each Extending Replacement Lender an extension fee in the amount and at the times set out in Clause 6.3.12 (Extension option).

SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
12.
TAX GROSS UP AND INDEMNITIES
12.1
Definitions
12.1.1
In this Agreement:
12.1.1.1
Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
12.1.1.2
Tax Credit means a credit against, relief or remission for, or repayment of any Tax.
12.1.1.3
Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document other than a FATCA Deduction.
12.1.1.4
Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).
12.1.2
Unless a contrary indication appears, in this Clause 12 a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.
12.2
Tax gross-up
12.2.1
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
12.2.2
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
12.2.3
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
12.2.4
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
12.2.5
Within 30 (thirty) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
12.3
Tax indemnity
12.3.1
The Borrower shall (within 3 (three) Business Days of demand by the Facility Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
12.3.2
Clause 12.3.1 above shall not apply:
12.3.2.1
with respect to any Tax assessed on a Finance Party (A) under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes or (B) under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction, if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
12.3.2.2
to the extent a loss, liability or cost is compensated for by an increased payment under Clause 12.2 (Tax gross-up).
12.3.3
A Protected Party making, or intending to make a claim under Clause 12.3.2.1 above shall promptly notify the Facility Agent of the event which will give, or has given, rise to the claim, following which the Facility Agent shall notify the Borrower.
12.3.4
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Facility Agent.
12.4
Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
12.4.1
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
12.4.2
that Finance Party has obtained and utilised that Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
12.5
Stamp taxes
The Borrower shall (a) pay and, (b) within 3 (three) Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
12.6
Value added tax
12.6.1
All amounts set out, or expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to Clause 12.6.2 below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).
12.6.2
If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Subject Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.
12.6.3
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any costs or expenses, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
12.7
FATCA Information
12.7.1
Subject to Clause 12.7.3 below, each Party shall, within 10 (ten) Business Days of a reasonable request by another Party:
12.7.1.1
confirm to that other Party whether it is:
12.7.1.1.1
a FATCA Exempt Party; or
12.7.1.1.2
not a FATCA Exempt Party;
12.7.1.2
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
12.7.1.3
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
12.7.2
If a Party confirms to another Party pursuant to Clause 12.7.1 above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
12.7.3
Clause 12.7.1 above shall not oblige any Finance Party to do anything, and Clause 12.7.1.3 above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:
12.7.3.1
any law or regulation;
12.7.3.2
any fiduciary duty; or
12.7.3.3
any duty of confidentiality.
12.7.4
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with Clauses 12.7.1.1.1 or 12.7.1.1.2 above (including, for the avoidance of doubt, where Clause 12.7.3 above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
12.8
FATCA Deduction
12.8.1
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.
12.8.2
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Borrower
13.
INCREASED COSTS
13.1
Increased costs
13.1.1
Subject to Clause 13.3 (Exceptions) the Borrower shall, within 3 (three) Business Days of a demand by the Facility Agent, pay for the account of a Finance Party the amount of any Increased Cost incurred by that Finance Party as a result of (i) the introduction of or any change in (or in the interpretation, administration or application by any authority or by financial institutions generally of) any law or regulation, after the Signature Date, (ii) the interpretation, administration or application by any authority or by financial institutions generally after the Signature Date of any law or regulation introduced prior to the Signature Date or (iii) compliance with any law or regulation made after the Signature Date, and shall include without any limitation, any Basel III Increased Cost (Change in Law).
13.1.2
In this Agreement Increased Costs means:
13.1.2.1
a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital (including, without limitation, as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Finance Party);
13.1.2.2
an additional or increased cost; or
13.1.2.3
a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.
13.1.3
The terms law and regulation in this Clause 13.1 shall include, without limitation, any law or regulation concerning capital adequacy, prudential limits, liquidity, reserve assets or Tax.
13.2
Increased cost claims
13.2.1
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Facility Agent of the event giving rise to the claim, following which the Facility Agent shall promptly notify the Borrower.
13.2.2
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs.
13.3
Exceptions
13.3.1
Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:
13.3.1.1
attributable to a Tax Deduction required by law to be made by an Obligor;
13.3.1.2
    compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 (Tax indemnity) but was not so compensated solely because any of the exclusions in Clause 12.3.2 applied); or
13.3.1.3
    attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation or the failure by the relevant Finance Party to make any required filing with any regulatory authority.
13.3.2
In this Clause 13.3, a reference to a Tax Deduction has the same meaning given to the term in Clause 12.1 (Definitions).
14.
OTHER INDEMNITIES
14.1
Currency indemnity
Without prejudice to Clause 30.8 (Currency of account):
14.1.1
if any sum due from an Obligor under the Finance Documents (Sum), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (First Currency) in which that Sum is payable into another currency (Second Currency) for the purpose of:
14.1.1.1
making or filing a claim or proof against that Obligor; or
14.1.1.2
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within 3 (three) Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
14.1.2
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
14.2
Environmental indemnity
The Obligors hereby, unconditionally and irrevocably, indemnify each Finance Party, each Affiliate of a Finance Party and their respective directors, officers, employees, agents, advisors and representatives (together, the Indemnified Parties) on demand against any losses, claims, damages, liabilities or other costs or expenses suffered or incurred by that Indemnified Party (except to the extent solely caused by such Indemnified Party’s own gross negligence or wilful default) as a result of:
14.2.1
any breach of any Environmental Law (whether by the Borrower or any other member of the Group);
14.2.2
an Environmental Claim; or
14.2.3
any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Environmental Claim and any other enquiry, investigation, subpoena (or similar order) or litigation in respect of any breach of any Environmental Law that has or is reasonably likely to give rise to a liability for any Indemnified Party,
which relates to any member of the Group, any assets of any member of the Group or the operation of all or part of the business of any member of the Group and which would not have arisen if the Finance Documents or any of them had not been executed by that Finance Party. Any Affiliate or any director, officer or employee of a Finance Party or its Affiliate may rely on this clause 14.2 as a stipulation for its or his or her benefit, capable of acceptance at any time.
14.3
Other indemnities
The Borrower shall (or shall, to the extent legally possible, procure that each Obligor will), within 3 (three) Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of:
14.3.1
the occurrence of any Event of Default;
14.3.2
any information produced or approved by the Borrower/any Obligor/any member of the Group being misleading and/or deceptive in any respect;
14.3.3
any enquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement except as may otherwise be ordered by a court of competent jurisdiction in circumstances where the relevant Finance Party was the plaintiff or applicant in such proceedings;
14.3.4
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 29 (Sharing among the Finance Parties);
14.3.5
funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or
14.3.6
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
14.4
Indemnity to the Facility Agent
The Borrower shall promptly indemnify the Facility Agent against any cost, loss or liability incurred by the Facility Agent (acting reasonably) as a result of:
14.4.1
investigating or taking any other action in connection with any event which it reasonably believes is an Event of Default; or
14.4.2
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
14.5
Default
At any time after the occurrence of a Default and for so long as it is continuing or where the Facility Agent reasonably believes there is a Default, upon the written request of the Facility Agent with reasonable prior notice, permit representatives of the Finance Parties during normal office hours, to visit and inspect any of the premises where its business is conducted, to have access to (and copies of) accounts and records and shall afford reasonable co-operation at all times to the Finance Parties and such representatives.
15.
MITIGATION BY THE LENDERS
15.1
Mitigation
15.1.1
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 (Illegality), Clause 12 (Tax gross up and indemnities) or Clause 13 (Increased costs).
15.1.2
Clause 15.1.1 above does not in any way limit the obligations of any Obligor under the Finance Documents.
15.2
Limitation of liability
15.2.1
The Borrower shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).
15.2.2
A Finance Party is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably):
15.2.2.1
any law or regulation would not allow or permit it; or
15.2.2.2
to do so might be prejudicial to it.
16.
COSTS AND EXPENSES
16.1
Transaction expenses
The Borrower shall promptly on demand pay the Facility Agent, the Global Coordinators and the Bookrunners the amount of all properly evidenced costs and expenses (including agreed or reasonable legal fees) reasonably incurred by any of them in connection with the negotiation, preparation, printing, execution and syndication of:
16.1.1
this Agreement and any other documents referred to in this Agreement; and
16.1.2
any other Finance Documents executed after the Signature Date.
16.2
Amendment costs
16.2.1
If an Obligor requests an amendment, waiver or consent, the Borrower shall, within 3 (three) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in responding to, evaluating, negotiating or complying with that request or requirement.
16.2.2
If there is any change in law or any regulation which requires an amendment, waiver or consent under the Finance Documents, the Borrower shall, within 3 (three) Business Days of demand, reimburse each Finance Party for the amount of all costs and expenses (including legal fees) reasonably incurred by that Finance Party in connection with evaluating, negotiating or complying with any such requirement.
16.3
Enforcement costs
The Borrower shall, within 3 (three) Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees on the scale as between attorney and own client whether incurred before or after judgement) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document.

SECTION 7
GUARANTEE
17.
GUARANTEE AND INDEMNITY
17.1
Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally, as a principal obligor and not merely as a surety and on the basis of discrete obligations enforceable against it:
17.1.1
guarantees to each Finance Party punctual performance by the Borrower of its payment obligations under the Finance Documents;
17.1.2
undertakes in favour of each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
17.1.3
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability that Finance Party incurs as a result of the Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by the Borrower under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on the basis of a guarantee.
17.2
Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
17.3
Reinstatement
If any payment by an Obligor or any discharge, release or arrangement given by a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided or reduced for any reason (including, without limitation, as a result of insolvency, business rescue proceedings, liquidation, winding-up or otherwise):
17.3.1
the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and
17.3.2
each Finance Party shall be entitled to recover the value or amount of that security or payment from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.
17.4
Waiver of defences
The obligations of each Guarantor under this Clause 17 will not be affected by an act, omission, matter or thing which, but for this Clause 17, would reduce, release or prejudice any of its obligations under this Clause 17 (without limitation and whether or not known to it or any Finance Party) including:
17.4.1
any time, waiver or consent granted to, or composition with, any Obligor or other person;
17.4.2
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
17.4.3
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
17.4.4
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
17.4.5
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
17.4.6
any unenforceability, illegality, invalidity suspension or cancellation of any obligation of any person under this Agreement or any other Finance Document or any other document or security;
17.4.7
any insolvency, liquidation, winding-up, business rescue or similar proceedings; or
17.4.8
this Agreement or any other Finance Document not being executed by or binding against any other Guarantor or any other party.
17.5
Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 17. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
17.6
Appropriations
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:
17.6.1
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
17.6.2
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 17.
17.7
Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 17:
17.7.1
to be indemnified by an Obligor;
17.7.2
to claim any contribution from any other guarantor of or provider of security for any Obligor's obligations under the Finance Documents;
17.7.3
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
17.7.4
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity);
17.7.5
to exercise any right of set-off against any Obligor; and/or
17.7.6
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 29 (Sharing among the Finance Parties).
17.8
Release of Guarantors' right of contribution
If any Guarantor (Retiring Guarantor) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:
17.8.1
that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and
17.8.2
each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.
17.9
Additional security
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
18.
REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this Clause 18 to each Finance Party on the Signature Date in each case, unless otherwise indicated, in respect of itself.
18.1
Status
18.1.1
It is a corporation, duly incorporated and validly existing under the laws of its jurisdiction of incorporation.
18.1.2
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
18.2
Binding obligations
The obligations expressed to be assumed by it in each Finance Document are, subject to the Legal Reservations, legal, valid, binding and enforceable obligations.
18.3
Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents and the granting of the Transaction Security pursuant to the Security Documents to which it is a party do not and will not conflict with:
18.3.1
any law or regulation applicable to it;
18.3.2
its constitutional documents; or
18.3.3
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets and where this applies to its Subsidiaries or its Subsidiaries’ assets only, in a manner which would have a Material Adverse Effect.
18.4
Power and authority
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Finance Documents to which it is a party and the transactions contemplated by those Finance Documents, and no limits on its powers will be exceeded or breached as a result.
18.5
Benefit
The entry into the Finance Documents to which it is a party is for its commercial benefit.
18.6
Validity and admissibility in evidence
All Authorisations required:
18.6.1
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party;
18.6.2
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation;
18.6.3
for it to carry on its business; and
18.6.4
for its Subsidiaries to carry on their respective businesses, but only to the extent such are material Authorisations,
have been obtained or effected and are in full force and effect or will be obtained or effected prior to its entry into the relevant Finance Documents, save that in respect of Clauses 18.6.3 and 18.6.4 above, only to the extent failure to obtain or effect those Authorisations would have a Material Adverse Effect.
18.7
Governing law and enforcement
Subject to the Legal Reservations:
18.7.1
the choice of South African law as the governing law of the Finance Documents expressed to be governed by South African law will be recognised and enforced in its jurisdiction of incorporation;
18.7.2
any judgment obtained in South Africa in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation; and
18.7.3
in respect of an Obligor incorporated in Papua New Guinea, any judgment obtained in Papua New Guinea in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
18.8
Deduction of Tax
It is not required to make any deduction for or on account of Tax from any payment it may make under any Finance Document to which it is a party.
18.9
No filing or stamp taxes
Under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents to which it is a party be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.
18.10
No default
18.10.1
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
18.10.2
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or any of its Subsidiaries') assets are subject which might have a Material Adverse Effect.
18.11
No misleading information
Each Obligor makes the representations and warranties in this Clause 18.11 so far as it is aware after making reasonable enquiries in respect of information provided by it.
18.11.1
All information supplied by the Borrower, any Obligor or any other member of the Group to the Facility Agent or any other Finance Party is true, complete and accurate in all material respects as at the date it was given and is not misleading in any respect.
18.11.2
It has not knowingly withheld information which, if disclosed, would reasonably be expected to materially and adversely affect the decisions of the Lenders to provide finance to the Borrower.
18.12
Financial statements
18.12.1
Its Original Financial Statements were prepared in accordance with IFRS consistently applied.
18.12.2
Its Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Borrower) during the relevant Financial Year.
18.12.3
The most recent financial statements delivered pursuant to Clause 19.1 (Financial statements) have been prepared in accordance with IFRS as applied to the Original Financial Statements and give a true and fair view of (if audited) or fairly present (if unaudited) the Group’s consolidated financial condition and each Obligor’s financial condition as at the end of, and consolidated results of operations for, the period to which they relate.
18.12.4
Since the date of the Original Financial Statements there has been no material adverse change in the business, assets or financial condition of the Group.
18.13
Insurance
It maintains insurances itself (or though Group insurances which it benefits from as co-insured) on and in relation to its business and assets against those risks and to the extent as is usual for companies carrying on the same or substantially similar business with reputable underwriters or insurance companies.
18.14
Assets and Intellectual Property Rights
18.14.1
It has good title to or valid leases or licenses over all of the assets necessary and material to carry on its business.
18.14.2
As far as it is aware, it will not nor will any of its Subsidiaries, in carrying on its business, infringe any Intellectual Property Rights of any third party in any way which is likely to have a Material Adverse Effect.
18.15
Security Interest
18.15.1
Subject in each case to any registration specifically required by law, and subject to any Legal Reservations:
18.15.1.1
each Security Document to which it is a party validly creates the security interest which is expressed to be created by that Security Document; and
18.15.1.2
the Transaction Security created by each Security Document to which it is a party :
18.15.1.2.1
ranks and will rank, in respect of all other security interests granted or to be granted by any Obligor in favour of any person other than the Finance Parties, in the order of priority it is expressed to rank in the relevant Security Document; and
18.15.1.2.2
is not subject to avoidance in the event of any winding-up, dissolution or administration involving any Obligor.
18.15.2
It is the sole, absolute, legal and, where applicable, beneficial owner of all assets made subject to the Transaction Security created by each Security Document to which it is a party.
18.16
Pari passu ranking
Its payment obligations under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
18.17
No proceedings pending or threatened
Save to the extent disclosed in Schedule 10 (Disclosed Potential Environmental Claim), no litigation, arbitration or administrative proceedings of or before any court, arbitral body or 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 of its Subsidiaries.
18.18
Insolvency and Financial Distress
18.18.1
No:
18.18.1.1
corporate action, legal proceeding or other procedure or step described in Clause 24.7 (Insolvency and business rescue proceedings); or
18.18.1.2
creditors' process described in Clause 24.8 (Creditor’s process),
has been taken by it or in relation to it or to the best of its knowledge and belief (having made due and careful enquiry) by or in relation to any other member of the Group; and none of the circumstances described in Clause 24.6 (Insolvency) applies to it or to the best of its knowledge and belief (having made due and careful enquiry) any other member of the Group.
18.18.2
Neither it nor any member of the Group is Financially Distressed (as defined in section 128 of the Companies Act), or, given similar meaning under any applicable company legislation and regulations in Australia or Papua New Guinea).
18.18.3
The representations and warranties set out in this Clause 18.18 do not apply to the members of the Group listed Schedule 13 (Companies to be wound up/reorganised).
18.19
No breach of laws
18.19.1
It has not (and to the best of its knowledge and belief (having made due and careful enquiry) none of its Subsidiaries has) breached any law or regulation which breach has or might reasonably be expected to have a Material Adverse Effect.
18.19.2
No labour disputes or industrial action are current or, to the best of its knowledge and belief (having made due and careful enquiry), threatened against any member of the Group which have or might reasonably be expected to have a Material Adverse Effect.
18.20
Environmental laws
18.20.1
Save to the extent disclosed Schedule 10 (Disclosed Potential Environmental Claim), each member of the Group is in compliance with Clause 21.3 (Environmental compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or might reasonably be expected to have a Material Adverse Effect.
18.20.2
Save to the extent disclosed Schedule 10 (Disclosed Potential Environmental Claim), no Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against any member of the Group where that claim has or might reasonably be expected, if determined against that member of the Group, to have a Material Adverse Effect.
18.21
Authorised signatures
Any person specified as its authorised signatory under Schedule 2 (Conditions precedent) or Clause 19.5.5 is authorised to sign Utilisation Requests (in relation to the Borrower only) and other notices on its behalf.
18.22
No immunity
In any proceedings taken in South Africa, Australia or Papua New Guinea or in any other jurisdiction, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process in relation to this Agreement or any other Finance Document.
18.23
Sanctions and anti-corruption
18.23.1
Neither the Borrower, nor any other member of the Group:
18.23.1.1
is a Sanctioned Entity and nor, to the knowledge of the Borrower, any other member of the Group or any of their directors, officers or employees, is any agent of the Borrower or any other member of the Group that will act in any capacity in connection with or benefit from the credit facility established hereby, a Sanctioned Entity;
18.23.1.2
is using, nor will use the proceeds of any Facility for the purpose of financing or making funds available directly or indirectly to any Sanctioned Entity, to the extent such financing or provision of funds would currently be prohibited by Anti-Corruption Laws or applicable Sanctions or would otherwise cause any person to be in breach of Anti-Corruption Laws or Sanctions; or
18.23.1.3
is contributing, nor will contribute or otherwise make available the proceeds of any Facility to any other person or entity for the purpose of financing the activities of any Sanctioned Entity, to the extent such contribution or provision of proceeds would currently be prohibited by Sanctions or would otherwise cause any person to be in breach of Sanctions.
18.23.2
None of the Borrower, any member of the Group, any director or officer of the Borrower or any other member of the Group:
18.23.2.1
has been or is targeted under any Sanctions, or has received notice of or is aware of any claim, action, suit, proceeding or investigation against it with respect to Sanctions by any Sanctions Authority; or
18.23.2.2
has violated or is violating any applicable Sanctions.
18.23.3
The Borrower has and maintains in effect policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its and its Subsidiaries respective employees and agents are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects and are not knowingly engaged in any activity that would reasonably be expected to result in the Borrower being designated as a Sanctioned Entity.
18.23.4
None of the Borrower, any member of the Group, any director or officer, or any employee, agent, or Affiliate, of the Borrower or any member of the Group:
18.23.4.1
is a person that is, or is owned or controlled by persons that are, the subject of any Sanctions; or
18.23.4.2
is located, organised or resident in a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).
18.24
Guarantors
18.24.1
The Borrower and each other Material Group Company is or will be a Guarantor on the Signature Date and on Financial Close.
18.24.2
The aggregate of earnings before interest, tax, depreciation and amortisation (calculated on the same basis as EBITDA), the aggregate gross assets and the aggregate turnover of the Obligors on Financial Close (calculated on an unconsolidated basis and excluding all intra-Group items) is equal to or exceeds 85% (eighty five per cent) of EBITDA, the consolidated gross assets and the consolidated turnover of the Group.
18.25
Repetition
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on:
18.25.1
Financial Close, the date of each Utilisation Request and the first day of each Interest Period;
18.25.2
the date of the Extension Request and the date of each Extension Acceptance Notice; and
18.25.3
in the case of an Additional Guarantor, the day on which the company becomes (or it is proposed that the company becomes) an Additional Guarantor.
19.
INFORMATION UNDERTAKINGS
The undertakings in this Clause 19 remain in force from the Signature Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
19.1
Financial statements
The Borrower shall supply to the Facility Agent in sufficient copies for all the Lenders:
19.1.1
as soon as the same become available, but in any event within 120 (one hundred and twenty) days after the end of each of its Financial Years, its audited consolidated financial statements for that Financial Year;
19.1.2
as soon as the same became available, but in any event within 150 (one hundred and fifty) days after the end of each of its Financial Years, the audited financial statements of each Obligor for that Financial Year; and
19.1.3
as soon as the same become available, but in any event within 60 (sixty) days after the end of each half of each of its Financial Years, its consolidated financial statements for that financial half year.
19.2
Compliance Certificate
19.2.1
The Borrower shall supply to the Facility Agent, with each set of financial statements delivered pursuant to Clause 19.1 (Financial statements), a Compliance Certificate:
19.2.1.1
setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) as at the date as at which those financial statements were drawn up;
19.2.1.2
certifying whether there has been any change in the members of the Group which are Material Group Companies as at the date as at which those financial statements were drawn up;
19.2.1.3
confirming compliance with the requirements of Clause 21.19 (Guarantor coverage) as at the date as at which those financial statements were drawn up together with computations setting out such compliance in reasonable detail; and
19.2.1.4
confirming that no Default has occurred and is continuing or, if a Default has occurred, what Default has occurred and the steps being taken to remedy that Default.
19.2.2
Each Compliance Certificate shall be signed by the chief financial officer or the financial director of the Borrower.
19.2.3
In the event that a set of financial statements delivered pursuant to Clauses 19.1.1 and 19.1.2 is restated, the Borrower must submit a new Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) as at the date at which those financial statements were restated.
19.3
Requirements as to financial statements
19.3.1
Each set of financial statements delivered by the Borrower pursuant to Clause 19.1 (Financial statements) shall be certified by a director of the relevant company as giving a true and fair view if audited, or fairly representing, if unaudited, its financial condition as at the date as at which those financial statements were drawn up.
19.3.2
The Borrower shall procure that each set of consolidated financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using IFRS.
19.3.3
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared using IFRS (to the extent IFRS was applied), accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements for that Obligor unless, in relation to any set of financial statements, it notifies the Facility Agent that there has been a change in IFRS (to the extent IFRS was applied), the accounting practices or reference periods and its Auditors (or, if appropriate, the Auditors of the Obligor) deliver to the Facility Agent:
19.3.3.1
a description of any change necessary for those financial statements to reflect the IFRS (to the extent IFRS was applied), accounting practices and reference periods upon which that Obligor's Original Financial Statements were prepared; and
19.3.3.2
sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Lenders to determine whether Clause 20 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and that Obligor's Original Financial Statements.
19.3.4
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
19.4
Financial year-end
The Borrower shall ensure that its Financial Year and the Financial Year of each other member of the Group does not change without the prior written consent of the Facility Agent.
19.5
Information: miscellaneous
The Borrower shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests):
19.5.1
all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched;
19.5.2
promptly upon becoming aware of them, details and copies of any material and substantive changes (excluding for the avoidance of doubt, administrative or procedural changes) proposed to or made to its constitutional documents or the constitutional documents of it or any other Obligor, including the filing of any Memorandum of Incorporation under the Companies Act or under any applicable company legislation and regulations in Australia or Papua New Guinea;
19.5.3
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of becoming aware of them, the details of any litigation, arbitration, administrative proceedings, liquidation applications, winding up applications or business rescue applications which are current, threatened or pending against it or any other member of the Group, and which may, if adversely determined, have a Material Adverse Effect;
19.5.4
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of being requested by the Facility Agent, such further information regarding the financial condition, business and operations of it or any other member of the Group as any Finance Party (through the Facility Agent) may reasonably request in order to assess the Borrower’s or any other Obligor’s ability to perform its obligations under the Finance Documents;
19.5.5
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of it becoming aware of any transfer or issue or proposed transfer or issue of shares of any member of the Group or other corporate action or proposed corporate action that would constitute a Fundamental Control Event or Fundamental Disposal Event;
19.5.6
regular updates (at intervals of no less than 6 (six) months or sooner as and when such information becomes available) on the progress of applications for all Environmental Permits and Authorisations required for its operations or proposed operations in Papua New Guinea;
19.5.7
promptly; notice of any suspension or cancellation of any Authorisation relating to its operations where given by the relevant Minister under the Mineral and Petroleum Resources Development Act, 2002 or other Mining Law (other than temporary stoppages under the Mine Health and Safety Act, 1996) or similar legislation in Papua New Guinea;
19.5.8
such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any other Finance Party) in order for the Facility Agent and each other Finance Party to demonstrate compliance with the Equator Principles in respect of their lending or any other financial exposure to the Borrower under the Finance Documents;
19.5.9
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of (but in any event prior to any notices being given by an authorised signatory) any change in authorised signatories of it or any other Obligor signed by a director or company secretary of it or such other Obligor (as the case may be) accompanied by specimen signatures of any new authorised signatories;
19.5.10
as soon as reasonably practicable, but in any event within 7 (seven) Business Days of request by the Facility Agent such additional information or documentation as the Facility Agent may require in order to verify that any signatory referred to in Clause 19.5.9 above has been duly authorised; and
19.5.11
as soon as reasonably practicable, but in any event within 1 (one) Month after the end of each of its Financial Years, its annual business plan as approved by the board of directors of the Borrower.
19.6
Notification of Default
19.6.1
Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
19.6.2
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed by two of its directors or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
19.7
Use of websites
19.7.1
The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (Website Lenders) who accept this method of communication by posting this information onto an electronic website designated by the Borrower and the Facility Agent (Designated Website) if:
19.7.1.1
the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;
19.7.1.2
both the Borrower and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and
19.7.1.3
the information is in a format previously agreed between the Borrower and the Facility Agent.
19.7.2
If any Lender (Paper Form Lender) does not agree to the delivery of information electronically then the Facility Agent shall notify the Borrower accordingly and the Borrower shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event the Borrower shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
19.7.3
The Facility Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrower and the Facility Agent.
19.7.4
The Borrower shall promptly upon becoming aware of its occurrence notify the Facility Agent if:
19.7.4.1
the Designated Website cannot be accessed due to technical failure;
19.7.4.2
    the password specifications for the Designated Website change;
19.7.4.3
    any new information which is required to be provided under this Agreement is posted onto the Designated Website;
19.7.4.4
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
19.7.4.5
the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
19.7.5
If the Borrower notifies the Facility Agent under Clause 19.7.4.1 or Clause 19.7.4.5 above, all information to be provided by the Borrower under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
19.7.6
Any Website Lender may request, through the Facility Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Borrower shall comply with any such request within 10 (ten) Business Days.
19.8
Know your customer checks
19.8.1
If:
19.8.1.1
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signature Date;
19.8.1.2
any change in the status of an Obligor after the Signature Date; or
19.8.1.3
a proposed Transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such Transfer,
obliges the Facility Agent or any Lender (or, in the case of this Clause 19.8.1.3, any prospective new Lender) to comply with know your customer or similar identification procedures (whether in terms of the Financial Intelligence Centre Act, 2001 or otherwise) in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in Clause (iii) above, on behalf of any prospective new Lender) in order for the Facility Agent, such Lender or, in the case of the event described in this Clause 19.8.1.3, any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
19.8.2
Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
19.8.3
The Borrower shall, by not less than 10 (ten) Business Days' prior written notice to the Facility Agent in respect of any Subsidiary, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Guarantor pursuant to Clause 26 (Changes to the Obligors).
19.8.4
Following the giving of any notice pursuant to Clause 19.8.3 above, if the accession of such Additional Guarantor obliges the Facility Agent or any Lender to comply with know your customer or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrower shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Facility Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as an Additional Guarantor.
20.
FINANCIAL COVENANTS
20.1
Financial Covenants
The Borrower shall ensure that:
20.1.1
the Interest Cover Ratio shall not be less than 5 times in respect of any Ratio Test Period;
20.1.2
the Tangible Net Worth to Total Net Debt shall not be less than 4 times at any time; and
20.1.3
the Leverage Ratio shall be less than 2,5 times for any Ratio Test Date.
20.2
Financial testing
For the purpose of testing compliance with the requirements of Clause 20.1 (Financial Covenants):
20.2.1
subject to the remaining provisions of this Clause 20.2, the financial covenants shall be calculated in accordance with IFRS and tested by reference to each of the financial statements delivered pursuant to Clause 19.1 (Financial statements) and/or such other information required in relation to certain of the components of the financial covenants where required and/or each Compliance Certificate delivered pursuant to Clause 19.2 (Compliance Certificate); and
20.2.2
the Borrower shall deliver a reconciliation between the financial statements delivered pursuant to Clause 19.1 (Financial Statements) and such financial statements as adjusted so as to exclude Financial Indebtedness in respect of a lease or hire purchase contract which would, in accordance with GAAP in force prior to 1 January 2019, have been treated as an operating lease and calculate the financial covenants pursuant to this Clause.
21.
GENERAL UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the Signature Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
21.1
Authorisations
Each Obligor shall (and the Borrower shall ensure that each other Obligor will) promptly:
21.1.1
obtain, comply with and do all that is necessary to maintain in full force and effect; and
21.1.2
supply certified copies to the Facility Agent on request of,
any Authorisation required to enable it to conduct its business and to perform its obligations under the Finance Documents and to ensure (subject to the Legal Reservations to the extent they may make it impossible to do so) the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Finance Document.
21.2
Compliance with laws
21.2.1
Each Obligor shall (and the Borrower shall ensure that each other member of the Group will) comply in all respects with all laws (including in connection with any Anti-Corruption Laws and any Sanctions) to which it may be subject where failure to do so has or might reasonably be expected to have a Material Adverse Effect.
21.2.2
The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
21.3
Environmental compliance
Each Obligor shall (and the Borrower shall ensure that each other member of the Group will):
21.3.1
comply with all Environmental Law;
21.3.2
obtain, maintain and ensure compliance with all requisite Environmental Permits;
21.3.3
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
where failure to do so has or might reasonably be expected to have a Material Adverse Effect.
21.4
Environmental Claims
Each Obligor shall (through the Borrower), promptly upon becoming aware of the same, inform the Facility Agent in writing of:
21.4.1
any Environmental Claim against it or any other member of the Group which is current, pending or threatened; and
21.4.2
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against it or any other member of the Group.
21.5
Insurance
Each Obligor shall (and the Borrower shall ensure that each member of the Group shall) maintain insurances itself (or though Group insurances which it benefits from as co-insured) on and in relation to its business and assets against those risks and to the extent as is usual for companies carrying on the same or substantially similar business with reputable underwriters or insurance companies.
21.6
Negative pledge
21.6.1
No Obligor shall (and the Borrower shall ensure that no other member of the Group will) create or permit to subsist any Security over any of its assets and/or shares.
21.6.2
No Obligor shall (and the Borrower shall ensure that no other member of the Group will):
21.6.2.1
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;
21.6.2.2
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
21.6.2.3
enter into or permit to subsist any title retention arrangement;
21.6.2.4
enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
21.6.2.5
enter into or permit to subsist any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method of securing the raising Financial Indebtedness or of securing the financing of the acquisition of an asset.
21.6.3
Clauses 21.6.1 and 21.6.2 above do not apply to any Permitted Security.
21.7
Disposals
21.7.1
No Obligor shall (and the Borrower shall ensure that no other member of the Group will), enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.
21.7.2
Clause 21.7.1 above does not apply to any sale, lease, transfer or other disposal:
21.7.2.1
made in the ordinary course of business of the disposing entity;
21.7.2.2
of assets in exchange for other assets comparable or superior as to type, value and quality and for a similar purpose;
21.7.2.3
made between Material Obligors except to the extent it involves the transfer of any shares or other assets which form part of the Transaction Security without the prior written consent of the Facility Agent;
21.7.2.4
of Cash or Cash Equivalent Investments not prohibited by the Finance Documents;
21.7.2.5
of obsolete or redundant assets;
21.7.2.6
made pursuant to the Buy-In Option;
21.7.2.7
made pursuant to a Permitted Security;
21.7.2.8
of shares in any member of the Group listed Schedule 13 (Companies to be wound up/reorganised) in order to bring about a solvent corporate restructure or winding up of that member of the Group;
21.7.2.9
funded by way of a Permitted Loan as set out in Clause 1.1.129.9 and 1.1.129.10;
21.7.2.10
of any other assets (including any Material Assets) on arm’s length terms, for full market value and for cash consideration which is not deferred beyond a period of 1 (one) year from the date of effective transfer or conditional and subject always to the Borrower's obligations under Clause 7.3 (Material Disposal Proceeds); or
21.7.2.11
made with the prior written approval of the Facility Agent (acting on behalf of the Lenders).
21.8
Change of business
The Borrower shall procure that no substantial change is made to the general nature of the business of the Borrower or the Group from that carried on at the Signature Date.
21.9
Loans or credit
21.9.1
Except as permitted under Clause 21.9.2 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) be a creditor in respect of any Financial Indebtedness.
21.9.2
Clause 21.9.1 above does not apply to:
21.9.2.1
such arrangements existing as at the Signature Date and disclosed in the Original Financial Statements;
21.9.2.2
Permitted Loans;
21.9.2.3
any guarantee or indemnity given in respect of Permitted Indebtedness; or
21.9.2.4
Financial Indebtedness owed by one Obligor to another Obligor.

21.10
No Guarantees or indemnities
21.10.1
Except as permitted under Clause 21.10.2 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) incur or allow to remain outstanding any guarantee in respect of any obligation of any person.
21.10.2
Clause 21.10.1 above does not apply to a guarantee or indemnity:
21.10.2.1
falling within the definition of Financial Indebtedness and which constitutes Permitted Indebtedness; or
21.10.2.2
which constitutes a Permitted Guarantee.
21.11
Financial Indebtedness
21.11.1
Except as permitted under Clause 21.11.3 below, no Obligor shall (and the Borrower shall ensure that no other member of the Group will) incur or allow to remain outstanding any Financial Indebtedness.
21.11.2
None of Morobe Consolidated Goldfields Limited, Wafi Mining Limited or Morobe Exploration Limited shall incur or allow to remain outstanding any Financial Indebtedness other than:
21.11.2.1
in an aggregate amount at any time not exceeding USD30 000 000 (thirty million United States Dollars) or its equivalent in any other currency or currencies (when aggregated across all three abovementioned entities);
21.11.2.2
in respect of Permitted Loans where Morobe Consolidated Goldfields Limited, Wafi Mining Limited or Morobe Exploration Limited is the borrower and another member of the Group the lender and the ultimate source of such funds is not directly or indirectly derived from Financial Indebtedness incurred by a member of the Group towards a person other than the Lenders.
21.11.3
Clause 21.11.1 above does not apply to Financial Indebtedness which is Permitted Indebtedness.
21.12
Auditors
No Obligor shall (and the Borrower shall ensure that no other member of the Group will) change its auditor to a person other than PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte without the prior written consent of the Facility Agent.
21.13
Sanctions and anti-corruption
21.13.1
Each Obligor (and each Obligor shall ensure that each other member of the Group) shall maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
21.13.2
Each Obligor (and each Obligor shall ensure that each other member of the Group) shall not use (or otherwise make available) the proceeds of any Loan (i) for the purpose of financing directly or indirectly the activities of any Sanctioned Entity, to the extent such contribution or provision of proceeds would at that time be prohibited by Sanctions or would otherwise cause any person to be in breach of Sanctions, (ii) in furtherance of an offer, payment, promise to pay or authorisation of the payment or giving of money, or anything else of value, to any person in violation of any Anti-Corruption Laws or (iii) in any manner that would result in the violation of any Sanctions applicable to any party to this Agreement.
21.13.3
Each Obligor (and each Obligor will ensure that each other member of the Group) shall ensure that appropriate controls and safeguards are in place designed to prevent any proceeds of any Loan from being used contrary to Clause 21.13.2 above.
21.14
Distributions
The Borrower shall not declare, make or pay any Distributions if:
21.14.1
the Tangible Net Worth to Total Net Debt is less than 6 times, or would, following such Distribution, be less than 6 times; or
21.14.2
an Event of Default is continuing at the time.
21.15
Acquisitions
21.15.1
No Obligor shall (and the Borrower shall ensure that no other member of the Group shall) acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them) in excess of:
21.15.1.1
in relation to South African acquisitions, ZAR1 000 000 000 (one billion Rand) (or its equivalent in any other currency) in aggregate prior to the Final Repayment Date; or
21.15.1.2
in relation to acquisitions anywhere outside of South Africa, USD80 000 000 (eighty million United States Dollars) (or its equivalent in any other currency) in aggregate prior to the Final Repayment Date.
21.15.2
Clause 21.15.1 above does not apply to:
21.15.2.1
an acquisition of securities or investments which are Cash Equivalent Investments;
21.15.2.2
an acquisition by a Material Obligor of an asset, business or undertaking from another Obligor other than shares or assets which form part of the Transaction Security, without the prior written consent of the Facility Agent;
21.15.2.3
an acquisition of shares or securities pursuant to a Permitted Share Issue;
21.15.2.4
any acquisition financed by issuing shares of the Borrower as consideration for the purchase price of the acquired asset; and
21.15.2.5
an acquisition made with the prior written approval of the Facility Agent.
21.16
Gold Price Derivative Transactions
No Obligor shall (and the Borrower shall ensure than no other member of the Group shall) conclude any Gold Price Derivative Transactions without the prior written consent of the Facility Agent, other than Gold Price Derivative Transactions which are Permitted Indebtedness in terms of Clause 1.1.128.5 and provided that the Borrower shall only be entitled to enter into gold price derivative transactions for:
21.16.1
a maximum amount of up to the lower of:
21.16.1.1
30% (thirty per cent) of its total annual gold production as per its most recent Financial Year, per annum; and
21.16.1.2
3 500kg of gold per quarter;
21.16.2
a maximum period of 24 (twenty four) Months from the date of entering into each gold price derivative transaction; and
21.16.3
a minimum price of:
21.16.3.1
ZAR550 000 (five hundred and fifty thousand Rand) per kilogram of gold for ZAR gold price derivative transactions; or
21.16.3.2
USD1 200 (one thousand two hundred United States Dollars) per ounce of gold for USD gold price derivative transactions.
21.17
Further assurance
21.17.1
Each Obligor shall (and the Borrower shall procure that each member of the Group will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Facility Agent may reasonably specify (and in such form as the Facility Agent may reasonably require in favour of the Finance Parties and/or the Secured Parties):
21.17.1.1
to provide more effective Security over any property and assets the subject of the Transaction Security;
21.17.1.2
to perfect the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Transaction Security) or for the exercise of any rights, powers and remedies of the Finance Parties provided by or pursuant to the Finance Documents or by law; and/or
21.17.1.3
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Transaction Security.
21.17.2
Each Obligor shall (and the Borrower shall procure that each member of the Group shall) take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security conferred or intended to be conferred on the Finance Parties and/or the Secured Parties by or pursuant to the Finance Documents.
21.18
Share capital
No Obligor, other than the Borrower, shall:
21.18.1
issue any shares except pursuant to a Permitted Share Issue;
21.18.2
alter any rights attaching to its issued shares in existence at the Signature Date without the prior written consent of the Facility Agent;
21.18.3
take any action to convert its shares into uncertificated shares without the prior written consent of the Facility Agent;
21.18.4
repurchase, cancel, redeem, reduce or otherwise acquire any of its share capital or grant or acquire any option, warrant or other right over its share capital without the prior written consent of the Facility Agent;
21.18.5
permit any sale or other transfer of its shares (other than as permitted under this Agreement) without the prior written consent of the Facility Agent.
21.19
Guarantor coverage
21.19.1
Each Obligor shall ensure that:
21.19.1.1
each Material Group Company as at Financial Close is a Guarantor; and
21.19.1.2
any member of the Group which becomes a Material Group Company after Financial Close becomes a Guarantor in accordance with Clause 26.2 (Additional Guarantors).
21.19.2
Each Obligor shall ensure that the aggregate of earnings before interest, tax, depreciation and amortisation (calculated on the same basis as EBITDA) and the aggregate gross assets and the aggregate turnover of the Obligors (calculated on an unconsolidated basis and excluding all intra-Group items) is not less than 85% (eighty five per cent) of EBITDA, the consolidated gross assets and turnover of the Group (the Guarantor Coverage Test), provided that in relation to an acquisition of an entity permitted under Clause 21.15 (Acquisitions) (an Acquired Entity) it reasonably appears that the Guarantor Coverage Test will not be satisfied immediately following such acquisition, such Acquired Entity, shall promptly, but by no later than the date falling 30 days after date on which it becomes a member of the Group become a Guarantor in accordance with Clause 26.2 (Additional Guarantors) to ensure that the Guarantor Coverage Test is satisfied (calculated as if such Acquired Entity had been a Guarantor for the purposes of the relevant test and provided that, if the Guarantor Coverage Test is satisfied within such time period, no Default, Event of Default or other breach of the Finance Documents shall arise in respect thereof).
21.20
Ownership
The Borrower shall (and each Obligor shall ensure that the Borrower will) legally and beneficially own directly or indirectly 100% of the issued shares of each Guarantor (other than the Borrower) at all times, except as expressly permitted under this Agreement or unless specifically agreed otherwise in writing between the Borrower and the Facility Agent.
22.
APPLICATION OF SANCTIONS PROVISIONS TO THE LENDERS
22.1
A Lender shall notify the Facility Agent if the representations and undertakings under Clause 18.23 (Sanctions and anti-corruption) and 21.13 (Sanctions and anti-corruption) (together the Sanctions Provisions) result in a violation of or conflict with any anti-boycott laws or regulations applicable to that Lender (Anti-Boycott Regulations).
22.2
In relation to each Lender that notifies the Facility Agent pursuant to Clause 22.1 above (each a Restricted Lender), the Sanctions Provisions shall apply only for the benefit of that Restricted Lender to the extent that it would not result in any violation of, conflict with or liability under any Anti-Boycott Regulations.
22.3
In connection with any amendment, waiver, determination or direction relating to any part of Sanctions Provision of which a Restricted Lender does not have the benefit pursuant to Clause 22.2 above, the Commitments of that Restricted Lender will be excluded for the purpose of determining whether the consent of the Majority Lenders has been obtained or whether the determination or direction of the Majority Lenders has been made.
23.
ACKNOWLEDGEMENT REGARDING ANY SUPPORTED QFCS
23.1
To the extent that the Finance Documents provide support, through a guarantee or otherwise, for Hedging Documents or any other agreement or instrument that is a QFC (such support, QFC Credit Support and each such QFC a Supported QFC), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the U.S. Special Resolution Regimes) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Finance Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States:
23.1.1
in the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
23.1.2
For the purpose of this Clause 23:
23.1.2.1
BHC Act Affiliate of a party means an “affiliate” (as that term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party;
23.1.2.2
Covered Entity means any of the following:
23.1.2.2.1
a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
23.1.2.2.2
a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
23.1.2.2.3
a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b);
23.1.2.3
Default Right has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and
23.1.2.4
QFC has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
24.
EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 21.19 (other than Clause 24.17 (Acceleration)) is an Event of Default.
24.1
Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless:
24.1.1
its failure to pay is caused by:
24.1.1.1
administrative or technical error; or
24.1.1.2
a Disruption Event; and
24.1.1.3
payment is made within 2 (two) Business Days of its due date.
24.2
Financial covenants
Any requirement of Clause 20 (Financial Covenants) is not satisfied.
24.3
Other obligations
24.3.1
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 24.1 (Non-payment) and Clause 24.2 (Financial covenants)).
24.3.2
No Event of Default under Clause 24.3.1 above will occur if the failure to comply is capable of remedy and is remedied within 15 (fifteen) Business Days of the earlier of (A) the Facility Agent giving notice to the Borrower and (B) the board of directors of the Borrower becoming aware of the failure to comply.
24.4
Misrepresentation
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
24.5
Cross default
24.5.1
Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period or in respect of Financial Indebtedness between members of the Group in respect of Permitted Loans within any relevant grace period agreed to by the relevant members of the Group.
24.5.2
Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable, or becomes capable of being declared due and payable, prior to its specified maturity as a result of an event of default (however described).
24.5.3
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).
24.5.4
No Event of Default will occur under this Clause 24.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within Clauses 24.5.1 to 24.5.3 above is less than ZAR10 000 000 (ten million Rand) (or its equivalent in any other currency or currencies).
24.6
Insolvency
24.6.1
A member of the Group is or is deemed by any authority or legislation to be unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
24.6.2
A member of the Group is or is deemed by any authority or legislation to be Financially Distressed (as defined in section 128 of the Companies Act, or, given similar meaning under any applicable company legislation and regulations in Australia or Papua New Guinea).
24.6.3
The value of the assets of any member of the Group is less than its liabilities (taking into account contingent and prospective liabilities).
24.6.4
A moratorium is declared in respect of any indebtedness of any member of the Group.
24.7
Insolvency and business rescue proceedings
24.7.1
Other than in relation to the members of the Group listed Schedule 13 (Companies to be wound up/reorganised) any corporate action, legal proceedings or other procedure or step is taken in relation to:
24.7.1.1
the suspension of payments, a moratorium of any indebtedness, liquidation, winding-up, dissolution, administration, business rescue or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor;
24.7.1.2
the deregistration of any member of the Group under the Corporations Act 2011 (Cth);
24.7.1.3
a composition, compromise, assignment or arrangement with any creditor of any member of the Group;
24.7.1.4
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrative receiver, administrator, compulsory manager, business rescue practitioner or other similar officer in respect of any member of the Group or any of its assets; or
24.7.1.5
enforcement of any Security over any assets of any member of the Group,
or any analogous procedure or step is taken in any jurisdiction, other than (in respect of any service of an application, or taking of any similar step for the liquidation, bankruptcy, business rescue, winding up, dissolution or administration of a member of the Group) where such action is dismissed, withdrawn or discharged within 5 (five) Business Days of its presentation or commencement or such step being taken, as applicable or if the member of the Group demonstrates to the Facility Agent’s satisfaction within such 5 (five) Business Day period that such action is frivolous or vexatious.
24.7.2
Other than in relation to the members of the Group listed Schedule 13 (Companies to be wound up/reorganised) a meeting is proposed or convened by the directors of any member of the Group, a resolution is proposed or passed, application is made or an order is applied for or granted, to authorise the entry into or implementation of any business rescue proceedings (or any similar proceedings) in respect of any member of the Group or any analogous procedure or step is taken in any jurisdiction.
24.8
Creditors' process
Any expropriation, attachment, sequestration, implementation of any business rescue plan, distress or execution affects any asset or assets of a member of the Group having an aggregate value of ZAR10 000 000 (ten million Rand) (or its equivalent in any other currency or currencies) and is not discharged within 10 (ten) Business Days other than if the member of the Group demonstrates to the Facility Agent’s satisfaction within such 10 (ten) Business Day period that such action is frivolous or vexatious.
24.9
Unlawfulness
It is or becomes unlawful (including in connection with any Anti-Corruption Laws and any Sanctions) for an Obligor to perform any of its obligations under the Finance Documents to which it is a party other than any obligations which the Facility Agent considers to be not material or which it is satisfied is adequately provided for in any other Finance Document (including a Finance Document which is entered into in replacement of the document under which it was unlawful for such Obligor to perform its obligations) or unless the Obligor and the Facility Agent agree within a period of 30 (thirty) days after the occurrence of such unlawfulness or such unlawfulness comes to the attention of the Facility Agent, whichever is the earlier, to the amendment or restructuring of such Finance Document in order to avoid such unlawfulness.
24.10
Cessation of business
Any Obligor suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business other than a suspension as a result of a strike or other industrial action provided that it does not continue for more than 90 (ninety) days (or such longer period as the Facility Agent may agree) or pursuant to a stoppage required under the Mine Health and Safety Act, 1996 or similar legislation in Papua New Guinea which does not continue for more than 90 (ninety) days, or if it does continue for more than 90 (ninety) days, in respect of which adequate business interruption insurance is in place to cover such stoppage.
24.11
Audit qualification
The Auditors of the Group qualify the audited annual consolidated financial statements of the Borrower or any other Obligor.
24.12
Repudiation
An Obligor repudiates a Finance Document.
24.13
Governmental intervention
By or under the authority of any government:
24.13.1
the management of any Obligor is wholly or substantially replaced or the authority of any Obligor in the conduct of its business is wholly or substantially curtailed;
24.13.2
all or a majority of the issued shares of any Obligor, or the whole or any part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired; or
24.13.3
the management of any joint venture (including any Joint Venture) in respect of which an Obligor is a joint venture participant is wholly or substantially replaced or the authority of the joint venture participants in the conduct of the business of the joint venture (including any Joint Venture) is wholly or substantially curtailed.
24.14
Failure to maintain Authorisations
At any time any Authorisation, act, condition or thing required to be done, fulfilled or performed in order:
24.14.1
to enable any Obligor to lawfully conduct its business, or enter into, exercise its rights under and perform the obligations expressed to be assumed by it in any Finance Document to which it is a party;
24.14.2
to ensure that the obligations expressed to be assumed by any Obligor in any Finance Document to which it is a party are legal, valid and binding; or
24.14.3
to make any Finance Document to which any Obligor is a party admissible in evidence,
is not done, fulfilled or performed or is suspended or cancelled, including in relation to a suspension or cancellation of any Authorisation pursuant to applicable Mining Law, but excluding any outstanding actions required to resume ordinary mining operations pursuant to a stoppage under the Mine Health and Safety Act, 1996 or similar legislation in Papua New Guinea or Australia which stoppage does not continue for more than 90 (ninety) days, or if it does continue for more than 90 (ninety) days adequate business interruption insurance is in place to cover such stoppage.
24.15
Material Adverse Effect
Any event or circumstance occurs which the Majority Lenders reasonably believe has or is reasonably likely to have a Material Adverse Effect.
24.16
Material litigation
Any litigation, arbitration, administrative proceedings or governmental or regulatory investigations or proceedings against any Material Group Company or its respective assets or revenues is commenced or threatened and is reasonably expected to be adversely determined, and if so determined, could reasonably be expected to have a Material Adverse Effect.
24.17
Acceleration
On and at any time after the occurrence of an Event of Default the Facility Agent may, and shall if so directed by the Majority Lenders or by such other category or threshold of Lenders or Lender as applicable under the Intercreditor Agreement in relation to any identified Events of Default, by notice to the Borrower:
24.17.1
cancel the Total Commitments whereupon they shall immediately be cancelled;
24.17.2
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
24.17.3
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Facility Agent on the instructions of the Majority Lenders; and/or
24.17.4
require the termination of any Gold Price Derivative Transaction(s) entered into under any Hedging Document.



SECTION 9
CHANGES TO PARTIES
25.
CHANGES TO THE LENDERS
25.1
Cessions and delegations by the Lenders
Subject to this Clause 25, a Lender (Existing Lender) may cede and/or delegate (Transfer) any or all of its rights and/or obligations under this Agreement and/or under any other Finance Document to a Permitted Transferee or to any other bank or financial institution, trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets. The Borrower and each other Obligor consents to any splitting of claims which may arise as a result of a Transfer permitted by this Agreement.
25.2
Conditions of Transfer
25.2.1
The consent of the Borrower is required for a Transfer unless the transfer is:
25.2.1.1
to any Permitted Transferee;
25.2.1.2
to any other Existing Lender or an Affiliates of an Existing Lender; or
25.2.1.3
to any other prospective transferee whilst an Event of Default is continuing.
25.2.2
Where the consent of the Borrower to a Transfer is required in terms of Clause 25.2.1 above, that consent must not be unreasonably withheld or delayed. The Borrower will be deemed to have given its consent 5 (five) Business Days after the Existing Lender has requested it unless consent is expressly refused by the Borrower within that time.
25.2.3
A Transfer will only be effective if the procedure set out in Clause 25.4 (Procedure for Transfer) is complied with.
25.2.4
If:
25.2.4.1
a Lender Transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
25.2.4.2
as a result of circumstances existing at the date the Transfer or change occurs, an Obligor would be obliged to make a payment to the new Lender or Lender acting through its new Facility Office under Clause 12 (Tax gross up and indemnities) or Clause 13 (Increased costs),
then the new Lender or Lender acting through its new Facility Office is only entitled to receive payment under those clauses to the same extent as the Existing Lender or Lender acting through its new Facility Office would have been if the Transfer or change had not occurred.
25.2.5
Each new Lender, by executing the relevant Transfer Certificate confirms, for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the Transfer becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
25.3
Limitation of responsibility of Existing Lenders
25.3.1
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a new Lender for:
25.3.1.1
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
25.3.1.2
the financial condition of any Obligor;
25.3.1.3
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
25.3.1.4
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
25.3.2
Each new Lender confirms to the Existing Lender and the other Finance Parties that it:
25.3.2.1
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
25.3.2.2
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
25.3.3
Nothing in any Finance Document obliges an Existing Lender to:
25.3.3.1
accept a re-Transfer from a new Lender of any of the rights and obligations Transferred under this Clause 25; or
25.3.3.2
support any losses directly or indirectly incurred by the new Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
25.4
Procedure for Transfer
25.4.1
Subject to the conditions set out in Clause 25.2 (Conditions of Transfer) a Transfer is effected in accordance with Clause 25.4.2 below when the Facility Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the new Lender. The Facility Agent shall, subject to Clause 25.4.2 below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
25.4.2
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the new Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations that apply to it (if any) in relation to the transfer to such new Lender.
25.4.3
On the Transfer Date:
25.4.3.1
the Transfer shall take effect under the Finance Documents so that the rights and/or obligations which are the subject of the Transfer shall be ceded and delegated by the Existing Lender to the new Lender (Transferred Rights and Obligations);
25.4.3.2
each of the Obligors shall perform their obligations and exercise their rights in relation to the Transferred Rights and Obligations in favour of or against the new Lender, as the case may be;
25.4.3.3
the Facility Agent, the Global Coordinators, the Bookruners, the new Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the new Lender been an Original Lender with the rights and/or obligations comprising the Transferred Rights and Obligations;
25.4.3.4
the Existing Lender shall be released from further obligations to each other Lender under the Finance Documents to the extent of the Transferred Rights and Obligations; and
25.4.3.5
the new Lender shall become a Party as a Lender.
25.5
Copy of Transfer Certificate to Borrower
The Facility Agent shall send to the Borrower a copy of each Transfer Certificate executed by it in accordance with Clause 25.4.1 as soon as reasonably practicable after it has executed any such Transfer Certificate.
26.
CHANGES TO THE OBLIGORS
26.1
Cessions and delegations by Obligors
No Obligor may cede any of its rights or delegate any of its obligations under the Finance Documents.
26.2
Additional Guarantors
26.2.1
Subject to compliance with the provisions of Clauses 19.8.3 and 19.8.4 above, the Borrower may cause any of its Subsidiaries to become an Additional Guarantor and that Subsidiary shall become an Additional Guarantor.
26.2.2
The Borrower shall procure that any other member of the Group which is a Material Group Company shall become an Additional Guarantor, as soon as possible after becoming a Material Group Company, but in any event within 30 (thirty) days of the delivery of the relevant Compliance Certificate evidencing that it has become a Material Group Company.
26.2.3
A member of the Group shall become an Additional Guarantor if:
26.2.3.1
the Borrower delivers to the Facility Agent a duly completed and executed Accession Letter; and
26.2.3.2
the Facility Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Facility Agent.
26.2.4
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part II as applicable) of Schedule 2 (Conditions precedent).
26.3
Repetition of representations
Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.
26.4
Resignation of a Guarantor
26.4.1
The Borrower may request that a Guarantor ceases to be a Guarantor by delivering to the Facility Agent a Resignation Letter.
26.4.2
The Facility Agent shall accept a Resignation Letter and notify the Borrower and the Lenders of its acceptance if:
26.4.2.1
no Default is continuing or would result from the acceptance of the Resignation Letter (and the Borrower has confirmed this is the case);
26.4.2.2
all the Lenders have consented to the Borrower's request.
26.5
Release of Transaction Security
If an Obligor disposes of any asset (including shares in any other member of the Group) to any person that is not a member of the Group in circumstances where it is expressly entitled to do so in accordance with this Agreement and there is no Default continuing, the Facility Agent shall, on the request and at the cost of the Borrower simultaneously with completion of that disposal, execute any documents necessary to release that asset from the Transaction Security created in favour of the Secured Parties.

SECTION 10
THE FINANCE PARTIES
27.
ROLE OF THE FACILITY AGENT, THE GLOBAL COORDINATORS AND BOOKRUNNERS
27.1
Appointment of the Facility Agent
27.1.1
Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
27.1.2
Each other Finance Party authorises the Facility Agent to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
27.2
Duties of the Facility Agent
27.2.1
Subject to Clause 27.2.2 below, the Facility Agent shall forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party as soon as reasonably practicable after having received that original or copy document as the case may be.
27.2.2
Without prejudice to Clause 25.5 (Copy of Transfer Certificate to Borrower), Clause 27.2.1 above shall not apply to any Transfer Certificate.
27.2.3
Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
27.2.4