EX-4.28



 Exhibit 4.28 

EXECUTION 
  

 
 DATE 26 JUNE 2014 

AMENDMENT AGREEMENT TO A 

TERM LOAN FACILITY AGREEMENT 

ORIGINALLY DATED 17 APRIL 2014 
  

 
 amongst 

SOUTHGOLD EXPLORATION PROPRIETARY LIMITED 

(as Borrower) 
 and 

THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 

(as Original Lenders) 
 and

 CREDIT SUISSE AG 
 (as
Facility Agent) 
 and 

CREDIT SUISSE AG 
 (as
Security Agent) 
 STANDARD CHARTERED BANK 

(as Parallel Debt Agent) 

and 
 PURPLE RAIN SECURITY SPV
(RF) PROPRIETARY LIMITED 
 (as Security SPV) 
  

 
 



 







 CONTENTS 
  

					
	1.      		DEFINITIONS AND INTERPRETATION		1       
	2.      		AMENDMENT TO THE DEED OF NOVATION		2       
	3.      		MISCELLANEOUS		3       
	4.      		GOVERNING LAW		4       


  
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 PARTIES: 

THIS AGREEMENT (the Amendment Agreement) is dated      June 2014 and is made among: 

 

	(1)	SOUTHGOLD EXPLORATION PROPRIETARY LIMITED, a private company incorporated under the laws of South Africa, with registration number 2000/016129/07, as borrower (Southgold or the Borrower);


  

	(2)	THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Lenders), as lenders (in this capacity, each an Original Lender); 


 

	(3)	CREDIT SUISSE AG, of Paradeplatz 8, 8001 Zurich, Switzerland as facility agent of the Finance Parties (in this capacity, the Facility Agent); 


 

	(4)	CREDIT SUISSE AG, of Paradeplatz 8, 8001 Zurich, Switzerland as facility agent of the Finance Parties (in this capacity, the Security Agent); 


 

	(5)	STANDARD CHARTERED BANK (in this capacity as Parallel Debt Agent); and 

  

	(6)	PURPLE RAIN SECURITY SPV (RF) PROPRIETARY LIMITED a private company incorporated under the laws of South Africa, with registration number 2010/007093/07 and registered office at 5th Floor, The Terraces, 25 Protea
Road, Claremont 7708 (the Security SPV). 

 BACKGROUND 
  


	A.	The Parties entered into a term loan facility agreement dated 17 April 2014 pursuant to which the Original Lenders agreed to make available to the Borrower a term loan facility in an aggregate principal amount of
US$178,100,000 (one hundred and seventy eight million one hundred thousand dollars) (the Term Loan Facility Agreement). 

  

	B.	By this Amendment Agreement, the Parties have agreed to amend the Term Loan Facility Agreement. 

 IT IS
AGREED AS FOLLOWS: 
  

	1.	DEFINITIONS AND INTERPRETATION 

  

	1.1.	Definitions 

 Unless the contrary intention appears, terms defined in the Term Loan
Facility Agreement shall have the same meaning when used in this Amendment Agreement. 
  

	1.2.	Interpretation 

 The provisions of clauses 1.2 and 1.3 of the Term Loan Facility
Agreement shall also apply to this Amendment Agreement as if set out in this Amendment Agreement, but with all necessary modifications. 
  

	1.3.	Finance Document 

 This Amendment Agreement is a Finance Document. 

  
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	2.	AMENDMENT TO THE TERM LOAN FACILITY AGREEMENT 

  

	2.1.	Amendments 

  

	2.1.1.	With effect from the date hereof, the Term Loan Facility Agreement shall be amended so that: 

  

	2.1.2.	the letters and number “US$178,100,000” contained in Recital J of the Term Loan Facility Agreement shall be deleted and replaced with the following: 


“US$184,100,000 (one hundred and eighty four million one hundred thousand dollars)”; 

 

	2.1.3.	the letters and number “US$178,100,000” contained in clause 1.1.233 of the Term Loan Facility Agreement shall be deleted and replaced with the following: 


“US$184,100,000 (one hundred and eighty four million one hundred thousand dollars)”; 

 

	2.1.4.	clause 1.1 (Definitions) of the Term Loan Facility Agreement shall be amended by inserting a new definition of “VAT Refund” after the definition of “VAT” and before the definition of
“Wits Gold” as follows: 

 “1.1.244 VAT Refund means any payments made by the South African Revenue
Service to Southgold in respect of a refund of payments made or to be made by Southgold to the South African Revenue Service during the period from the commencement of Business Rescue Proceedings to the Effective Date in satisfaction of estimated
VAT liabilities Southgold owed to the South African Revenue Service and arising from the compromise of the amounts owed to Southgold’s creditors pursuant to the provisions of the Business Rescue Plan;” 

 

	2.1.5.	a new clause 7.2.2 (VAT Refund) shall be added to the Term Loan Facility Agreement after clause 7.2.1.1.4 and before clause 7.3 (Voluntary Prepayment of the Facility A Loans) as follows: 


 

	 	“7.2.2	VAT Refund 

  

	 	7.2.2.1	Immediately upon receipt of any VAT Refund, the Borrower shall promptly notify the Facility Agent. 

  

	 	7.2.2.2	Within 3 (three) Business Days of the provision of the notice referred to in clause 7.2.2.1, the Borrower shall pay to the Facility Agent the full proceeds of any VAT Refund and such proceeds shall be applied by the
Facility Agent in prepayment of the Facility A2 Loan in proportion to each Lenders’ participation in such Facility A2 Loan. 

  

	 	7.2.2.3	For the avoidance of doubt, no VAT Refund shall form part of nor be construed as forming part of Free Cash.” 


  
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	2.1.6.	the table contained at Schedule 1 (Original Lenders) of the Term Loan Facility Agreement is deleted in its entirety and replaced with: 


 

																					
	 Name of Original Lender
	  	Facility A1
Commitment
(US$)	 	  	Facility A2
Commitment
(US$)	 	  	Facility A3
Commitment
(US$)	 	  	Facility A4
Commitment
(US$)	 	  	Total
Commitments
(US$)	 
	 Credit Suisse AG
	  	 	1,500,000	  	  	 	5,500,000	  	  	 	25,500,000	  	  	 	59,999,965.50	  	  	 	92,499,965.50	  
	 Standard Chartered Bank
	  	 	1,500,000	  	  	 	5,500,000	  	  	 	25,500,000	  	  	 	59,100,034.50	  	  	 	91,600,034.50	  
	 Total
	  	 	3,000,000	  	  	 	11,000,000	  	  	 	51,000,000	  	  	 	119,100,000	  	  	 	184,100,000.00	  

  

	2.1.7.	the letters and number “US$178,100,000” contained in Schedule 2 (Form of Transfer Certificate) of the Term Loan Facility Agreement in the heading of such form shall be deleted and replaced with the
following: 

 “US$184,100,000 (one hundred and eighty four million one hundred thousand dollars)”; 

 

	2.2.	Continuity 

  

	2.2.1.	The Parties agree that: 

  

	2.2.1.1.	the provisions of the Term Loan Facility Agreement shall, save as amended hereby, continue in full force and effect; and 

  

	2.2.1.2.	any reference to the Term Loan Facility Agreement in any of the Finance Documents shall be a reference to the Term Loan Facility Agreement as amended pursuant to this Amendment Agreement. 


 

	3.	REPRESENTATIONS AND WARRANTIES 

  

	3.1.	Each Party represents and warrants to and for the benefit of each other Party that: 

  

	3.1.1.	it is duly incorporated and validly existing under the laws of its place of incorporation and has the power to own its property and assets and carry on its business; 


 

	3.1.2.	it has the power and capacity to enter into and comply with its obligations under this Amendment Agreement; 


  
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	3.1.3.	subject to the Legal Reservations, this Amendment Agreement constitutes its legal, valid, binding and enforceable obligations, and the entry into and performance of the transactions contemplated by this Amendment
Agreement does not conflict with: 

  

	3.1.3.1.	any law or regulation or its constitutional documents; or 

  

	3.1.3.2.	any document binding on it which would have a material adverse effect on the enforceability of this Amendment Agreement; and 

  

	3.1.4.	it has taken all necessary action to authorise the entry into and compliance with its obligations under this Amendment Agreement, to ensure that its obligations under this Amendment Agreement are valid, binding and
enforceable in accordance with their terms and, subject to the Legal Reservations, to make this Amendment Agreement admissible in evidence in the courts of its jurisdiction of incorporation. 


 

	4.	FURTHER ASSURANCE 

 The Borrower shall, at the request of the Lenders and at its own
expense, do all such acts and things necessary or desirable to give effect to the amendments made or to be made pursuant to this Amendment Agreement. 
  

	5.	MISCELLANEOUS 

 The provisions of clause 1.3 (Third Party Rights), clause 14
(Costs and expenses), clause 32 (Notices), clause 34 (Partial Invalidity), clause 35 (Remedies and Waivers), clause 36 (Amendments and Waivers), clause 37 (Counterparts), clause 38 (Governing Law),
clause 39 (Enforcement) of the Term Loan Facility Agreement shall apply to this Amendment Agreement as if set out in this Amendment Agreement, but as if references in those clauses to the Term Loan Facility Agreement were references to this
Amendment Agreement. 
  

	6.	GOVERNING LAW 

  

	6.1.	Governing law 

 This Amendment Agreement and any dispute or claim arising out of or in
connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 

  
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 SIGNATURES 

Borrower 
 EXECUTED by: 

SOUTHGOLD EXPLORATION 
 PROPRIETARY LIMITED 

Acting by: 
  

					
	 /s/ Peter Van Den Steen
				  

	Name: Peter Van Den Steen				Witness
	Title: Business Rescue Practitioner				

  

			
	Prior to Effective Date:		
		
	Physical Address:		Ground Floor, 138 West Street, Sandton, 2146, South Africa
		
	Postal Address:		P O Box 78182, Sandton, 2146 South Africa
		
	Attention:		The Chief Executive Officer
		
	Fax:		+27 (0)11 3011 840
		
	With a copy to (which shall not constitute notice):		
		
	Address:		 McMillan, Suite 1500 - 1055 West Georgia Street,

Vancouver, British Columbia V6E 4N7

		
	Attention:		Bernie Zinkhofer / Great Basin Responsible Partner
		
	Fax:		+001 (604) 685 7084









			
	After Effective Date:		
		
	Physical Address:		Libanon Business Park, 1 Hospital Road (off Cedar
		
			Avenue), Libanon, Westonaria, 1779
		
	Postal Address:		Charl Keyter
		
	Attention:		The Chief Executive Officer
		
	Fax:		+27 (0)11 278 9873








 Lender 

EXECUTED by: 
 CREDIT SUISSE AG 

Acting by: 
  

					
	 /s/ Stefan Gerig
				 /s/ Herbert Plank

	Name: Stefan Gerig				Name: Herbert Plank
	Title: Director				Title: Managing Director

  

			
	Address:		Giesshuebelstrasse 30, 8070 Zurich Switzerland
		
	Attention:		Stefan Gerig
		
	Telephone:		+41 44 334 45 13
		
	Fax:		+41 44 333 21 04
		
	Email:		portfolio.admin@credit-suisse.com /
		
			Stefan.gerig@credit-suisse.com








 Lender 

EXECUTED by: 
 STANDARD CHARTERED BANK 

Acting by: 
  

					
	 /s/ Philip Rees
				 /s/ P. A. Johnson

	Name: Philip Rees				Name: P. A. Johnson
	Title: Senior Manager				Title: Regional Head

  

			
	Address:		1 Basinghall Avenue, London EC2V 5DD, United Kingdom
		
	Attention:		Mark Sumner / Phil Rees
		
	Telephone:		+44 20 7885 7342 / +44 20 7885 7637
		
	Fax:		+44 20 7885 7828
		
	Email:		mark.sumner@sc.com / Phil.Rees@sc.com








 Facility Agent 

EXECUTED by: 
 CREDIT SUISSE AG 

Acting by: 
  

							
	 /s/ Stefan Gerig
				 /s/ Herbert Plank

	Name:		Stefan Gerig				Name: Herbert Plank
	Title:		Director				Title: Managing Director

  

			
	Address:		Giesshuebelstrasse 30, 8070 Zurich Switzerland
		
	Attention:		Stefan Gerig
		
	Telephone:		+41 44 334 45 13
		
	Fax:		+41 44 333 21 04
		
	Email:		portfolio.admin@credit-suisse.com /
		
			Stefan.gerig@credit-suisse.com








 Security Agent 

EXECUTED by: 
 CREDIT SUISSE AG 

Acting by: 
  

					
	 /s/ Stefan Gerig
				 /s/ Herbert Plank

	Name: Stefan Gerig				Name: Herbert Plank
	Title: Director				Title: Managing Director

  

			
	Address:		Giesshuebelstrasse 30, 8070 Zurich Switzerland
		
	Attention:		Stefan Gerig
		
	Telephone:		+41 44 334 45 13
		
	Fax:		+41 44 333 21 04
		
	Email:		 portfolio.admin@credit-suisse.com /
  

Stefan.gerig@credit-suisse.com









 Parallel Debt Agent 

EXECUTED by: 
 STANDARD CHARTERED BANK 

Acting by: 
  

					
	 /s/ Philip Rees
				 /s/ P. A. Johnson

	Name: Philip Rees				Name: P. A. Johnson
	Title: Senior Manager				Title: Regional Head

  

			
	Address:		 5th Floor, No. 4 Sandown Valley Crescent,
Sandton, 2196, Gauteng Province

 
 South Africa

		
	Attention:		Andrew Dixon Smith
		
	Telephone:		+27 11 217 6626 / +27 71 882 4424
		
	Fax:		+27 (0)11 217 6641
		
	Email:		Andrew.DixonSmith@sc.com








 Security SPV 

EXECUTED by: 
 PURPLE RAIN SECURITY SPV (RF) 

PROPRIETARY LIMITED 
 Acting by: 

 

					
	 /s/ T. Ross-Gillespie
				  

	Name: T. Ross-Gillespie				Name:
	Title: Director				Title:

  

			
	Address:		GMG Trust Company, 3rd Floor, 200 on Main, Cnr Main and Bowwood Roads, Claremont 7708
		
	Attention:		Managing Director
		
	Telephone:		+27 21 657 6010
		
	Fax:		086 673 3490
		
	Email:		tamara@gmgtrust.co.za