exv4w20



 




Exhibit 4.20




PIC PUT OPTION AGREEMENT



between



PUBLIC INVESTMENT COMMISSIONERS



and



GFL MINING SERVICES LIMITED



and



GOLD FIELDS LIMITED



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	1.	 	 	PARTIES
	 	 	3	 
	 	2.	 	 	DEFINITIONS AND INTERPRETATION
	 	 	3	 
	 	3.	 	 	INTRODUCTION
	 	 	12	 
	 	4.	 	 	CONDITIONS
	 	 	13	 
	 	5.	 	 	PUT OPTION
	 	 	13	 
	 	6.	 	 	PUT OPTION FEE
	 	 	14	 
	 	7.	 	 	COSTS, FEES AND EXPENSES
	 	 	15	 
	 	8.	 	 	REPRESENTATIONS AND WARRANTIES
	 	 	16	 
	 	9.	 	 	BREACH
	 	 	16	 
	 	10.	 	 	CESSION, DELEGATION AND ASSIGNMENT
	 	 	17	 
	 	11.	 	 	GUARANTEE
	 	 	17	 
	 	12.	 	 	CONFIDENTIALITY
	 	 	20	 
	 	13.	 	 	DOMICILIUM AND NOTICES
	 	 	23	 
	 	14.	 	 	MISCELLANEOUS
	 	 	25	 
	 	15.	 	 	GOVERNING LAW
	 	 	27	 
	 	16.	 	 	JURISDICTION
	 	 	27	 
	 	17.	 	 	SEVERABILITY
	 	 	27	 







SCHEDULE 1 — DEED OF CESSION AND DELEGATION (TRANCHE B RIGHTS AND OBLIGATIONS)




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	1.	 	PARTIES
	 
	1.1	 	The Parties to this Agreement are:
	 
	1.1.1	 	PUBLIC INVESTMENT COMMISSIONERS;
	 
	1.1.2	 	GFL MINING SERVICES LIMITED
	 
	1.1.3	 	GOLD FIELDS LIMITED
	 
	1.2	 	The Parties agree as set out below.
	 
	2.	 	DEFINITIONS AND INTERPRETATION
	 
	 	 	In this Agreement, unless the context indicates otherwise, the words and expressions set
forth below shall bear the following meanings and cognate expressions shall bear
corresponding meanings:
	 
	2.1.1	 	“Agreement” - means this PIC Put Option Agreement and its Schedules,
as amended from time to time;
	 
	2.1.2	 	“Business Day” - means any day (other than a Saturday, Sunday or an
official public holiday in South Africa within the meaning of the Public Holiday
Act No. 36 of 1994, as amended) on which banks generally are open for
business in Johannesburg;
	 
	2.1.3	 	“GFL” - means Gold Fields Limited (Registration No. 1968/004880/06), a
public company duly incorporated according to the company laws of South
Africa;
	 
	2.1.4	 	“GFLMS” - means GFL Mining Services Limited (Registration No.
1997/019961/06), a public company duly incorporated according to the
company laws of South Africa;
	 
	2.1.5	 	“Guaranteed Obligations” - means any and all sums, moneys,
indebtedness, liabilities and obligations (whether now existing or hereafter
arising, whether or not for the payment of money) which are from time to



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	 	 	time due, owing, payable or incurred or expressed to be due, owing,
payable or incurred from or by GFLMS under or arising from or in connection
with this Agreement;
	 
	2.1.6	 	“Inter-Mezzanine Investors Agreement” - means the written agreement
concluded or to be concluded amongst GFL, the Mezzanine Investors, Mezz
SPV and the Mezz SPV Agent setting out the terms and conditions which
are to apply as amongst the Mezzanine Investors as financiers of Mezz
SPV;
	 
	2.1.7	 	“Mezzanine Investors” has the meaning ascribed to it in the Mezz SPV
Loan Agreement, and “Mezzanine Investor” means, as the context
requires, any one of them;
	 
	2.1.8	 	“Mezz SPV” - means Micawber 325 (Proprietary) Limited (Registration No.
2002/016188/07), a private company incorporated according to the company
laws of South Africa,
	 
	2.1.9	 	“Mezz SPV Agent” - means the agent for Mezz SPV under, inter alia, the
Inter-Mezzanine Investors Agreement;
	 
	2.1.10	 	“Mezz SPV Loan Agreement” - means the written agreement entitled
“Mezz SPV Loan Agreement”, dated on or about the Signature Date
between Mezz SPV, Mvela Gold and the Mezz SPV Agent;
	 
	2.1.11	 	“Mvela Gold” - Mvelaphanda Gold (Proprietary) Limited (Registration
No.2003/013950/07), a private company duly incorporated according to the
company laws of South Africa;
	 
	2.1.12	 	“Mvela Resources” - means Mvelaphanda
Resources Limited
(Registration No. 1980/001395/06), a public company duly incorporated
according to the company laws of South Africa;
	 
	2.1.13	 	“Ordinary Shares” means one hundred and fifty ordinary shares in the
issued share capital of Mezz SPV held by PIC;



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	2.1.14	 	“Parties” - means collectively, PIC, GFLMS,
and GFL; and “Party” means,
as the context requires, any one of them;
	 
	2.1.15	 	“PIC” - means Public Investment Commissioners, referred to in section 2 of
the Public Investment Commissioners Act No. 45 of 1984, as amended;
	 
	2.1.16	 	“PIC Loan” - means collectively, the Tranche A Loan and the Tranche B
Loan;
	 
	2.1.17	 	“PIC Loan Agreement” - means the written agreement entitled “Loan
Agreement” to be concluded between PIC and Mezz SPV and pursuant to
which PIC is to loan and advance an amount of ZAR 250 000 000 (Two
Hundred and Fifty Million Rand) to Mezz SPV;
	 
	2.1.18	 	“PIC Loan Repayment Date” - means the Repayment Date as defined in
the PIC Loan Agreement;
	 
	2.1.19	 	“Put Option” - means the put option granted in terms of clause 5.1
	 
	2.1.20	 	“Signature Date” - means the date of signature of this Agreement by the
Party signing last in time;
	 
	2.1.21	 	“South Africa” - means the Republic of South Africa as constituted from
time to time;
	 
	2.1.22	 	“Term” - means Term as defined in the PIC Loan Agreement;
	 
	2.1.23	 	“Tranche A Loan” - means the loan of R100 000 000 (One Hundred Million
Rand) to be advanced by PIC to Mezz SPV in terms of, and designated as
such in, the PIC Loan Agreement;
	 
	2.1.24	 	“Tranche B Loan” - means the loan of R150 000 000 (One Hundred and
Fifty Million Rand) to be advanced by PIC to Mezz SPV in terms of, and
designated as such in, the PIC Loan Agreement;



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	2.1.25	 	“Tranche B Outstanding Amount” - means at any point in time, that
portion of the Tranche B Loan which has been advanced to, but has not yet
been repaid to PIC by, Mezz SPV;
	 
	2.1.26	 	“Tranche B Outstanding Balance” - means the sum, from time to time,
of-
	 
	2.1.26.1	 	the Tranche B Outstanding Amount; plus
	 
	2.1.26.2	 	any and all interest (if any) which has accrued on the Tranche B Loan
in terms of the PIC Loan Agreement and is unpaid; plus
	 
	2.1.26.3	 	if payable in terms of the PIC Loan Agreement, the Breakage Costs
(as defined in the PIC Loan Agreement) in relation to the Tranche B
Loan;
	 
	2.1.27	 	“Tranche B Rights and Obligations” - means the rights and obligations of
PIC under the PIC Loan Agreement to the extent to which they relate to the
Tranche B Loan;
	 
	2.1.28	 	“Transaction Documents” - means the “Transaction Documents” as
defined in the Mezz SPV Loan Agreement;
	 
	2.1.29	 	“Transaction Participant” - means Transaction Participant as defined in
the Mezz SPV Loan Agreement.
	 
	2.2	 	Interpretation and Construction
	 
	2.2.1	 	Any reference in this Agreement to:
	 
	2.2.1.1	 	an “affiliate” means, in relation to any person, a subsidiary of that
person or a holding company of that person or any other subsidiary of
that holding company;
	 
	2.2.1.2	 	an “amendment” includes a supplement, novation or re-enactment
and “amended” is to be construed accordingly;



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	2.2.1.3	 	“arm’s length” means terms that are fair and reasonable to the
counterparty of a transaction and no more or less favourable to the
other party to the relevant transaction as could reasonably be
expected to be obtained in a comparable arm’s length transaction with
a person that is not the ultimate holding company of such counterparty
or an entity of which such counterparty or its ultimate holding
company has direct or indirect control, or owns directly or indirectly
more than 20% (twenty percent) of the share capital or similar rights
of ownership;
	 
	2.2.1.4	 	“assets” includes properties, revenues and rights of every
description;
	 
	2.2.1.5	 	“authorisations” mean any authorisation,
consent, registration, filing, agreement, notarisation, certificate, licence,
approval, resolution, permit and/or authority or any exemption from
any of the aforesaid, by, with or from any authority (including,
without limitation, any approvals required from the South African
Reserve Bank in relation to any Transaction Document or
any transaction contemplated under any Transaction Document);
	 
	2.2.1.6	 	“authority” means any government or governmental, administrative,
fiscal or judicial authority, body, court, department, commission,
tribunal, registry or any stated owned or controlled authority which
principally performs governmental functions;
	 
	2.2.1.7	 	a “clause” shall, subject to any contrary indication, be construed as
a reference to a clause hereof;
	 
	 
	2.2.1.8	 	“control” means, in relation to any company or similar organisation
or person, the power (whether by way of ownership of shares, proxy,
contract, agency or otherwise) to:
	 
	2.2.1.8.1	 	cast, or control the casting of, more than one-half of the
maximum number of votes that might be cast at a general meeting of
that company or similar organisation or person; or



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	2.2.1.8.2	 	appoint or remove all, or the majority, of the directors or other
equivalent officers of that company or similar organisation or
person;
	 
	2.2.1.9	 	a “holding company” shall be construed in accordance with the
Companies Act;
	 
	2.2.1.10	 	the words “including” and “in particular” are used by way of
illustration or emphasis only and shall not be construed as, nor shall
they take effect as, limiting the generality of any of the preceding
words;
	 
	2.2.1.11	 	“indebtedness” shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
	 
	2.2.1.12	 	“law” shall be construed as any law (including statutory, common or
customary law), statute, constitution, decree, judgment,
treaty, regulation, directive, by-law, order, other
legislative measure, requirement, request or guideline (whether or
not having the force of law but, if not having the force of law, is
generally complied with by the persons to whom it is addressed or
applied) of any government, supranational, local government, statutory
or regulatory or self-regulatory or similar body or authority or court
and the common law, as amended, replaced, re-enacted, restated or
reinterpreted from time to time;
	 
	2.2.1.13	 	a “month” means a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in the
next calendar month, except that:
	 
	2.2.1.13.1	 	if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is
one, or if there is not, on the directly preceding Business
Day; and



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	2.2.1.13.2	 	if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month;
	 
	2.2.1.14	 	the words “other” and “otherwise” shall not be construed eiusdem
generis with any foregoing words where a wider construction is
possible;
	 
	2.2.1.15	 	a “person” shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
	 
	2.2.1.16	 	a “regulation” means any regulation, rule, official directive, request
or guideline (whether or not having the force of law but complied with
generally) of any governmental, inter-governmental or supranational
body, agency, department or regulatory, self-regulatory or other
authority or organisation;
	 
	2.2.1.17	 	“repay” (or any derivative form of that word) includes “prepay” (or
any derivative form of that word);
	 
	2.2.1.18	 	a “Schedule” shall, subject to any contrary indication, be construed
as a reference to a Schedule hereof;
	 
	2.2.1.19	 	a “subsidiary” shall be construed in accordance with the
Companies Act.
	 
	2.3	 	Unless inconsistent with the context or save where the contrary is expressly
indicated in this Agreement:
	 
	2.3.1	 	if any provision in a definition is a substantive provision conferring a right or
imposing an obligation on either party then, notwithstanding that it is only
in a definition, effect shall be given to that provision as if it were a
substantive provision in the body of this Agreement;



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	2.3.2	 	where any number of days is to be calculated from a particular day, such
number shall be calculated as excluding such particular day and
commencing on the next day. If the last day of such number so calculated
falls on a day which is not a Business Day, the last day shall, subject to
clause 2.3.3, be deemed to be the next succeeding Business Day;
	 
	2.3.3	 	in the event that the day for payment of any amount due in terms of this
Agreement should fall on a day which is not a Business Day, the relevant
day for payment shall be the preceding Business Day;
	 
	2.3.4	 	in the event that the day for performance of any obligation to be performed in
terms of this Agreement (other than a payment obligation) should fall on a
day which is not a Business Day, the relevant day for performance shall be
the succeeding Business Day;
	 
	2.3.5	 	any reference in this Agreement to an enactment is to that enactment as at
the Signature Date and as amended or re-enacted from time to time;
	 
	2.3.6	 	any reference in this Agreement to this Agreement or any other agreement
or document shall be construed as a reference to this Agreement or, as the
case may be, such other agreement or document as same may have been,
or may from time to time be, amended, varied, novated or supplemented;
	 
	2.3.7	 	except as expressly provided for in this Agreement, no provision of this
Agreement constitutes a stipulation for the benefit of any person who is not a
Party to this Agreement;
	 
	2.3.8	 	references to day/s, calendar month/s or year/s shall be construed as
Gregorian calendar day/s, calendar month/s or year/s;
	 
	2.3.9	 	a reference to a Party includes that Party’s successors-in-title and permitted
assigns;
	 
	2.3.10	 	where any Party is required to provide any consent or agree to the actions of
any other Party, the request for such consent or agreement shall be in
writing and such consent or agreement shall be in writing and shall not be
unreasonably withheld or delayed.



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	2.3.11	 	The headings to the clauses and Schedules of this Agreement are for
reference purposes only and shall in no way govern or affect the
interpretation of nor modify nor amplify the terms of this Agreement nor any
clause or Schedule thereof.
	 
	2.3.12	 	Unless inconsistent with the context, an expression in this Agreement which
denotes:
	 
	2.3.12.1	 	any one gender includes the other genders;
	 
	2.3.12.2	 	a natural person includes an artificial person and vice versa, and
	 
	2.3.12.3	 	the singular includes the plural and vice versa.
	 
	2.3.13	 	The Schedules to this Agreement form an integral part thereof and words
and expressions defined in this Agreement shall bear, unless the context
otherwise requires, the same meaning in such Schedules. To the extent that
there is any conflict between the Schedules to this Agreement and the
provisions of this Agreement, the provisions of this Agreement shall prevail.
	 
	2.3.14	 	Where any term is defined within the context of any particular clause in this
Agreement, the term so defined, unless it is clear from the clause in question
that the term so defined has limited application to the relevant clause, shall
bear the same meaning as ascribed to it for all purposes in terms of this
Agreement, notwithstanding that that term has not been defined in any
interpretation clause.
	 
	2.3.15	 	The rule of construction that, in the event of ambiguity, a contract shall be
interpreted against the Party responsible for the drafting thereof, shall not
apply in the interpretation of this Agreement.
	 
	2.3.16	 	The expiration or termination of this Agreement shall not affect such of the
provisions of this Agreement as expressly provide that they will operate
after
any such expiration or termination or which of necessity must continue to
have effect after such expiration or termination, notwithstanding that the
clauses themselves do not expressly provide for this.



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	2.3.17	 	This Agreement shall be binding on and enforceable by the administrators,
trustees, permitted assigns or liquidators of the Parties as fully and
effectually as if they had signed this Agreement in the first instance and
reference to any Party shall be deemed to include such Party’s
administrators, trustees, permitted assigns or liquidators, as the case may
be.
	 
	2.3.18	 	The use of any expression in this Agreement covering a process available
under South African law such as winding-up (without limitation eiusdem
generis) shall, if any of the Parties to this Agreement is subject to the law of
any other jurisdiction, be construed as including any equivalent or analogous
proceedings under the law of such other jurisdiction.
	 
	2.3.19	 	Where figures are referred to in numerals and in words in this Agreement, if
there is any conflict between the two, the words shall prevail.
	 
	3.	 	INTRODUCTION
	 
	3.1	 	PIC has agreed to lend and advance an aggregate amount of R250 000 000 (Two
Hundred and Fifty Million Rand) to Mezz SPV in terms of the PIC Loan Agreement.
	 
	 	 	This sum comprises the -
	 
	3.1.1	 	Tranche A Loan; and
	 
	3.1.2	 	Tranche B Loan.
	 
	3.2	 	This Agreement stipulates the terms and conditions on which PIC is granted the
right and option, under certain circumstances, to cede and delegate to GFLMS its
rights and obligations under the PIC Loan Agreement to the extent to which they
relate to the Tranche B Loan, and, in the same indivisible transaction, to sell to
GFLMS a pro rata portion of ordinary shares in the issued share capital of Mezz
SPV.



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	4.	 	CONDITIONS
	 
	 	 	This Agreement shall be of no force or effect unless PIC has advanced the Tranche B
Loan to Mezz SPV.
	 
	5.	 	PUT OPTION
	 
	5.1	 	GFLMS grants a Put Option to PIC, which accepts same, to cede and delegate to
GFLMS all of the Tranche B Rights and Obligations and not some only, and, as part
of the same indivisible transaction, to sell to GFLMS the Ordinary Shares.
	 
	5.2	 	The Put Option may be exercised by PIC on the PIC Loan Repayment Date if all or
any part of the Tranche B Outstanding Balance is not paid to PIC on the PIC Loan
Repayment Date and, unless written notice is given by PIC to GFLMS to the
contrary before the PIC Loan Repayment Date, shall be deemed to have been
exercised by PIC on the PIC Loan Repayment Date, if all or any part of the Tranche
B Outstanding Balance is not paid to PIC on the PIC Loan Repayment Date.
	 
	5.3	 	If the Put Option is exercised or deemed to have been exercised by PIC in terms of
clause 5.2, then the cession and delegation of the Tranche B Rights and Obligations
and the sale of the Ordinary Shares that would result shall be subject to the
following terms and conditions:
	 
	5.3.1	 	the aggregate purchase price for the Tranche B Rights and Obligations and
the Ordinary Shares shall be equal to the Tranche B Outstanding Balance as
at the PIC Loan Repayment Date plus the par value of the Ordinary Shares;
	 
	5.3.2	 	the effective date of the cession and delegation and the sale shall be the PIC
Loan Repayment Date, and the effective time shall be immediately before
the Tranche B Outstanding Balance became repayable to PIC, and the risk
and benefit in and to the Tranche B Rights and Obligations and the Ordinary
Shares shall pass to GFLMS on and with effect from that date and time;
	 
	5.3.3	 	completion of the cession and delegation and sale shall be effected at a
meeting to be held at 14h00 on the 1st Business Day after the PIC
Loan
Repayment Date at the offices of the Mezz SPV Agent, or on such other



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	 	 	date and at such other reasonable time and place as PIC may specify, at
which meeting:
	 
	5.3.3.1	 	PIC shall deliver to GFLMS a written assignment of the Tranche B
Rights and Obligations substantially in the form of the Deed of
Cession and Delegation, attached hereto as Schedule 1; and
	 
	5.3.3.2	 	PIC shall deliver to GFLMS notarised copies of the PIC Loan
Agreement and the Sponsor Support, Guarantee and Retention Agreement
(as defined in the PIC Loan Agreement);
	 
	5.3.3.3	 	PIC shall deliver to GFLMS the share certificates for the Ordinary
Shares and a duly executed blank transfer form in respect thereof.
	 
	5.3.3.4	 	GFLMS shall, against compliance by PIC with clauses 5.3.3.1,
5.3.3.2 and 5.3.3.3, pay the price set out in clause 5.3.1 to PIC, in
cash and shall enter into the written agreement referred to in clause
5.3.3.1;.
	 
	5.4	 	Stamp duty (if any) payable on the cession and delegation of the Tranche B Rights
and Obligations and the sale of the Ordinary Shares shall be borne and paid by
GFLMS.
	 
	5.5	 	If, notwithstanding the effective time and date of the cession and delegation and the
sale in terms of clause 5.3.2, PIC receives any repayment or benefit in respect of
the Tranche B Rights and Obligations or the Ordinary Shares which will have been
ceded and delegated and sold to GFLMS, PIC shall be obliged, provided the
completion referred to in clause 5.3.3 shall have occurred, forthwith to account to
GFLMS for same.
	 
	6.	 	PUT OPTION FEE
	 
	6.1	 	In consideration to GFLMS for the Put Option, PIC shall pay to GFLMS a single put
option fee in an amount equal to the difference between the Tranche B Outstanding
Balance as at the PIC Loan Repayment Date and the amount that the Tranche B
Outstanding Balance would have been at the PIC Loan Repayment Date, had



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	 	 	interest accrued in terms of the PIC Loan Agreement at rate of 10,5 % (Ten
comma Five Percent) (nominal annual compounded semi annually) for the Term, which
amount includes VAT.
	 
	6.2	 	If the Put Option is not exercised nor deemed to have been exercised, the put
option fee referred to in clause 6.1 shall be due and payable on the PIC Loan
Repayment Date and shall be payable in cash by PIC into a bank account
nominated in writing by GFLMS.
	 
	6.3	 	If the Put Option is exercised or deemed to have been exercised then the put option
fee referred to in clause 6.1 shall be due and payable against completion of the
cession and delegation and sale in terms of clause 5.3.3, and shall be set off
against the amount referred to in clause 5.3.3.4 that will be owing by GFLMS to PIC.
	 
	7.	 	COSTS, FEES AND EXPENSES
	 
	7.1	 	Transaction Expenses
	 
	 	 	Costs and expenses in connection with:
	 
	7.1.1	 	the negotiation, preparation, printing and execution of:
	 
	7.1.1.1	 	this Agreement, and
	 
	7.1.1.2	 	any other Transaction Document executed after the Signature Date;
and
	 
	7.1.2	 	any filing, notification, registration or recording in connection with any
Transaction Document,
	 
	 	 	shall be settled in terms of the agreement set out in the letter from Mvela Resources
to the Mezzanine Investors dated 3 December 2003.



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	8.	 	REPRESENTATIONS AND WARRANTIES
	 
	8.1	 	PIC warrants in favour of GFLMS that on the PIC Loan Repayment Date and the
date on which the cession and delegation and sale is to be completed in terms of
clause 5.3.3 -
	 
	8.1.1.1	 	it shall be entitled and able to give free and unencumbered title to the
Tranche B Rights and Obligations and the Ordinary Shares, to GFLMS;
	 
	8.1.1.2	 	it shall be the sole owner of the Tranche B Rights and Obligations
and the Ordinary Shares;
	 
	8.1.1.3	 	no other person shall have any right or interest in or to, or option or
right of first refusal to acquire, whether present or future, all or
any of the Tranche B Rights and Obligations and the Ordinary Shares.
	 
	8.2	 	GFLMS and GFL warrant in favour of PIC that, as at the Signature Date, no
regulatory approvals relating to GFLMS or GFL are required in order for this
Agreement and the implementation of the transactions contemplated herein to be
lawful, valid and / or enforceable.
	 
	8.3	 	GFLMS and GFL warrant in favour of PIC that, if at any time, any regulatory
approvals relating to GFLMS or GFL are required in order for this Agreement and
the implementation of the transactions contemplated herein to be lawful, valid and /
or enforceable, GFLMS or GFL shall, at their cost obtain all and any such approvals.
	 
	8.4	 	GFL warrants in favour of PIC that the obligations expressed to be assumed by GFL
in this Agreement are legal, valid, binding and enforceable obligations and the entry
into and performance by GFL of this Agreement do not conflict with any law
applicable to it.
	 
	9.	 	BREACH
	 
	9.1	 	If GFLMS commits a breach of its obligations under clause 5.3.3.4 and if the breach
in question is not remedied before the expiry of a period of 3 (three) days after PIC



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	 	 	has given notice to GFLMS to remedy same, PIC shall be entitled either to
cancel this Agreement on written notice or shall be entitled to exercise all the
other remedies available to it as a result of the breach and which are consistent
with the contract remaining in force, including specific performance (so far as
permissible) and damages.
	 
	9.2	 	Nothing in clause 9.1 shall detract from PIC’s rights to proceed against GFL in
respect of the Guaranteed Obligations under clause 11.
	 
	9.3	 	If PIC commits a breach of its obligations to GFLMS under this Agreement, GFLMS
shall not be entitled to cancel this Agreement but shall be entitled to exercise all
the
other remedies available to it as a result of the breach and which are consistent
with
the contract remaining in force, including specific performance (so far
as
permissible) and damages.
	 
	10.	 	CESSION, DELEGATION AND ASSIGNMENT
	 
	10.1	 	Save as set out in clause 10.2, neither Party shall be entitled to cede, assign,
transfer, encumber or delegate any of its rights, obligation and/or interest in, under
or in terms of this Agreement to any third party without the prior written consent of
the other Party.
	 
	10.2	 	If PIC cedes and delegates to any third party all or any of the Tranche B Rights and
Obligations, it shall be entitled and obliged also to cede and delegate to such third
party a pro rata portion of its rights and obligations under this Agreement.
	 
	11.	 	GUARANTEE
	 
	11.1	 	Guarantee
	 
	 	 	GFL hereby irrevocably and unconditionally:
	 
	11.1.1	 	guarantees to PIC the due and punctual payment and performance of the
Guaranteed Obligations;



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	11.1.2	 	undertakes to PIC that if GFLMS should fail to pay when due for any reason,
or timely perform, any of the Guaranteed Obligations, GFL shall on demand
pay or perform to and in favour of PIC the Guaranteed Obligations then due
for payment or performance;
	 
	11.1.3	 	indemnify PIC on demand against any loss, liability or cost suffered by PIC if
any obligation guaranteed by GFL is or becomes unenforceable, invalid or
illegal. The amount of that loss, liability or cost shall be equal to the amount
which PIC would otherwise have been entitled to recover but for any such
unenforceability, invalidity or illegality.
	 
	11.2	 	Term of Guarantee
	 
	 	 	This Guarantee shall be a continuing Guarantee and shall
commence on the date on which this Agreement becomes effective and shall remain in operation until all of
the Guaranteed Obligations have been fully and irrevocably discharged.
	 
	11.3	 	Special Provisions
	 
	11.3.1	 	All admissions and acknowledgements of indebtedness by GFLMS pursuant
to this Agreement and the Guaranteed Obligations shall bind GFL.
	 
	11.3.2	 	The guarantee granted in this clause (“this Guarantee”) is in addition to, and
does not prejudice, nor is it prejudiced by, any other security nor or
hereafter held by PIC in relation to the Guaranteed Obligations, nor is it
conditional upon other security being held by PIC.
	 
	11.3.3	 	Subject to the provisions of clause 14.3, PIC may, without prejudice to its
rights in terms of this Guarantee and without notice to, or consent from GFL
grant any indulgence, give extension of time or make any other concession to,
or compound or make any other arrangement with GFLMS. The liability of GFL
shall not be affected by such indulgences, extensions of time, concessions,
compounding or arrangements, or by any dealing which, but for the provisions
of this clause 11.3.3 might operate as a discharge of GFL from the whole or
any part of its obligations under this Guarantee.



Page 18









 





	11.3.4	 	If the Guaranteed Obligations are amended or varied in any manner
whatsoever, this Guarantee shall apply in respect of the Guaranteed
Obligations as amended or varied.
	 
	11.3.5	 	If any payment having the effect of reducing or discharging the liability of GFL
under this Guarantee is set aside or reversed or refunded for any reason, GFL
will remain liable to PIC in terms of this Guarantee for the discharge of any
obligation arising from or revived by the occurrence of any such event, even
if it takes place after the termination of GFL’s liability in terms of this
Guarantee in other respects.
	 
	11.3.6	 	Notwithstanding any indication to the contrary herein, this Guarantee does
not constitute a suretyship and is and shall be construed as a primary
undertaking giving rise to a principal obligation by GFL to PIC.
	 
	11.3.7	 	Neither the obligations of GFL herein contained nor the rights, powers and
remedies conferred upon PIC in respect of GFL shall be discharged, impaired
or otherwise affected by:
	 
	11.3.7.1	 	the winding-up, dissolution, administration or reorganisation of
GFLMS or any change in GFLMS’ status, function, control or
ownership;
	 
	11.3.7.2	 	any of the Guaranteed Obligations or any security granted by
GFLMS or any other person in respect of the Guaranteed
Obligations being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
	 
	11.3.7.3	 	time or other indulgence being granted or agreed to be granted
to GFLMS by PIC in respect of the Guaranteed Obligations or under
any security in respect of the Guaranteed Obligations;
	 
	11.3.7.4	 	any amendment to, or any variation, waiver or release of, any of
the Guaranteed Obligations or any security in respect thereof;
	 
	11.3.7.5	 	any failure to take, or fully to take, any security now or hereafter
agreed to be taken in relation to the Guaranteed Obligations;



Page 19









 





	11.3.7.6	 	any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken in respect of the Guaranteed Obligations; or
	 
	11.3.7.7	 	any other act, event or omission which, but for this clause 11.3.7,
might operate to discharge, impair or otherwise affect any of
the obligations of GFL in terms of this Guarantee or any of the
rights, powers or remedies conferred upon PIC by law.
	 
	11.3.8	 	PIC shall not be obliged before exercising any of the rights, powers or
remedies conferred upon it in respect of GFL hereby or by law:
	 
	11.3.8.1	 	to make any demand of GFLMS;
	 
	11.3.8.2	 	to take any action or obtain judgement in any court against
GFLMS;
	 
	11.3.8.3	 	to make or file any claim or proof in a winding-up or dissolution of
GFLMS; or
	 
	11.3.8.4	 	to enforce or seek to enforce any security taken in respect of any
of the Guaranteed Obligations.
	 
	11.3.9	 	GFL shall not be entitled to raise the defences and exceptions of no value
received, non numeratae pecuiniae, non causa debiti, errore calculi and
revision of account, the full force, meaning and effect whereof GFL declares
itself to be acquainted and the benefits of which GFL hereby renounces.
	 
	12.	 	CONFIDENTIALITY
	 
	12.1	 	Without the prior written consent of the other Parties, each Party will keep
confidential and will not disclose to any person:
	 
	12.1.1	 	the details of any document, the details of the negotiations leading to any
document, and the information handed over to such Party during the course



Page 20









 





	 	 	of negotiations, as well as the details of all the transactions or
Agreements contemplated in any document; and
	 
	12.1.2	 	all information relating to the business or the operations and affairs of the
Parties (together “Confidential Information”).
	 
	12.2	 	The Parties agree to keep all Confidential Information confidential and to disclose it
only to their officers, directors, employees, consultants, shareholders, professional
advisers and any person to whom the Parties wish to cede any or their respective
rights or delegate any of their respective obligations under any of the Transaction
Documents who:
	 
	12.2.1	 	have a need to know (and then only to the extent that each such person has
a need to know);
	 
	12.2.2	 	are aware of the disclosing Party’s undertaking in relation to such
information in terms of this Agreement; and
	 
	12.2.3	 	have been directed by the disclosing Party to keep the Confidential
Information confidential and have undertaken to keep the Confidential
Information confidential. Furthermore, if any Party so requires, the
disclosing Party shall procure that each of its employees to whom such
disclosure is made, provides a written undertaking of confidentiality to the
requesting Party, on terms which meet with that Party’s reasonable
satisfaction.
	 
	12.3	 	The obligations of the Parties in relation to the maintenance and non-disclosure of
Confidential Information in terms of this Agreement do not extend to disclosures:
	 
	12.3.1	 	of information that is disclosed to the receiving Party in terms of this
Agreement but at the time of such disclosure such information is known to
be in the lawful possession or control of that Party and not subject to an
obligation of confidentiality; or
	 
	12.3.2	 	of information that is or becomes public knowledge, otherwise than pursuant
to a breach of this Agreement by the Party who received such Confidential
Information; or



Page 21









 





	12.3.3	 	required by the provisions of any law, statute or regulation or during any
court proceedings, or by the rules or regulations of any recognised stock
exchange to be disclosed and subject to the provisions of clause 12.4, the
Party required to make the disclosure has taken all reasonable steps to limit,
as far as reasonably possible, the extent of such disclosure and has
consulted with the other Party prior to making such disclosure; or
	 
	12.3.4	 	generally to professional advisors who are either under a duty to maintain
the privilege of such Confidential Information or who have agreed to keep
such Confidential Information confidential; or
	 
	12.3.5	 	of information that if disclosed in writing, is not clearly marked “confidential”
and, if disclosed orally, is not disclosed subject to an oral notification at the
time of disclosure that such information is confidential and is confirmed in
writing within 10 (ten) days.
	 
	12.4	 	Before any announcement or statement relating to Confidential Information only is
made as required by any law, statute or regulation, or the rules or regulations of
any recognised stock exchange, the Parties shall use their reasonable endeavours to
provide the other Party with a written draft of the proposed announcement or
statement at least 48 (forty eight) hours before the proposed time of the
announcement and the Parties shall also use their reasonable endeavours to agree the
wording and timing of all public announcements and statements relating to
Confidential Information. If a written draft of the proposed announcement cannot be
provided to the other Party or agreement cannot be reached, by the time that any
such announcement or statement must be made, the Party in question shall be free to
make the relevant announcement or statement notwithstanding that such agreement has
not been reached, but in so doing it shall not disclose more than the minimum
information that it is compelled to disclose. Copies of any public announcement or
statement shall be given to the other Party in the most expeditious manner
reasonably available.



Page 22









 





	13.	 	DOMICILIUM AND NOTICES
	 
	13.1	 	Notices
	 
	13.1.1	 	Each Party chooses the addresses set out opposite its name below as its addresses to which
any written notice in connection with this Agreement to which they are a party, may be
addressed.




	 	 	 	 	 
	13.1.1.1
	 	PIC physical





facsimile -

email:

marked: “Attention:
	 	PIC Building

Glen Field Office Park

Oberon Avenue

Faerie Glen

0043

(012) 369-3400

Tshepo.Mahloele@picco.co.za

Head of the Corporate Finance

Department: Tshepo Mahloele”
	 
	13.1.1.2

	 	GFL physical



facsimile

email

marked: “Attention:
	 	24 St Andrews Road

Parktown

Johannesburg

(011) 484-0626

cain.farrell@goldfields.co.za

The Company Secretary”
	 
	13.1.1.3

	 	GFLMS physical



facsimile

email

marked: “Attention:
	 	24 St Andrews Road

Parktown

Johannesburg

(011) 484-0626

cain.farrell@goldfields.co.za

The Company Secretary”






	13.1.2	 	Any notice or communication required or permitted to be given in terms of this Agreement shall
be valid and effective only if in writing but it shall be competent to give notice by telefax.





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	13.1.3	 	Any Party may by written notice to the other Parties change its chosen
address, e-mail address and/or telefax number for the purposes of clause
13.1.1 to any other address, e-mail address and/or telefax number, provided
that the change shall become effective on the fourteenth day after the
receipt of the notice by the addressee.
	 
	13.1.4	 	Any notice given in terms of this Agreement shall:
	 
	13.1.4.1	 	if sent by a courier service, be deemed to have been received by the
addressee on the 7th (seventh) Business Day following the
date of such sending;
	 
	13.1.4.2	 	if delivered by hand, be deemed to have been received by the
addressee on the date of delivery;
	 
	13.1.4.3	 	if transmitted by facsimile, be deemed to have been received by the
addressee on the first Business Day after the date of transmission,
unless the contrary is proved.
	 
	13.1.5	 	Notwithstanding anything to the contrary herein contained, a written notice or
communication actually received by a Party shall be an adequate written
notice or communication to it, notwithstanding that it was not sent to or
delivered at its chosen address and/or telefax number.
	 
	13.2	 	Domicilia
	 
	13.2.1	 	Each of the Parties chooses its address referred to in clause 13.1 as its
domicilium citandi et executandi at which documents in legal proceedings in
connection with this Agreement may be served.
	 
	13.2.2	 	Any Party may by written notice to the other Parties change its domicilium
from time to time to another address, not being a post office box or a poste
restante, in South Africa; provided that any such change shall only be



Page 24









 





	 	 	effective on the fourteenth day after deemed receipt of the notice by
the other Party pursuant to clause 13.1.4 and 13.1.5, as the case may be.
	 
	14.	 	MISCELLANEOUS
	 
	14.1	 	Sole Agreement
	 
	 	 	This Agreement constitutes the sole record of the agreement between the Parties in
regard to the subject matter hereof.
	 
	14.2	 	No Implied Terms
	 
	 	 	No Party shall be bound by any express or implied term, representation, warranty,
promise or the like, not recorded in this Agreement.
	 
	14.3	 	No Variation
	 
	 	 	No addition to, amendment to, variation or consensual cancellation of this Agreement
and no extension of time, waiver or relaxation or suspension of any of the provisions
or terms of this Agreement shall be of any force or effect unless in writing and
signed by or on behalf of all the Parties.
	 
	14.4	 	Extensions and Waivers
	 
	 	 	No latitude, extension of time or other indulgence which may be given or allowed by
any Party to any other Party in respect of the performance of any obligation
hereunder or enforcement of any right arising from this Agreement and no single or
partial exercise of any right by any Party shall under any circumstances be construed
to be an implied consent by such Party or operate as a waiver or a novation of, or
otherwise affect any of that Party’s rights in terms of or arising from this
Agreement or estop such Party from enforcing, at any time and without notice, strict
and punctual compliance with each and every provision or term of this Agreement.



Page 25









 





	14.5	 	Further Assurances
	 
	 	 	The Parties undertake at all times to do all such things, to perform all such acts
and to take all such steps and to procure the doing of all such things, the
performance of all such actions and the taking of all such steps as may be open to
them and necessary for or incidental to the putting into effect or maintenance of
the terms, conditions and import of this Agreement, including the obtaining of any
regulatory approvals that may be required by law.
	 
	14.6	 	Waiver of Defences
	 
	 	 	The provisions of this Agreement will not be affected by an act, omission, matter or
thing which, but for this clause 14.6, would reduce, release or prejudice the
subordination and priorities in this Agreement including:
	 
	14.6.1	 	any time, waiver or consent granted to, or composition with any person;
	 
	14.6.2	 	the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of Mezz SPV, 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;
	 
	14.6.3	 	any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of any person;
	 
	14.6.4	 	any amendment (however fundamental) or replacement of a Transaction
Document or any other document or security;
	 
	14.6.5	 	any unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security; or
	 
	14.6.6	 	any intermediate payment or discharge of any of the Liabilities in whole or in
part.



Page 26









 





	14.7	 	Independent Advice
	 
	 	 	Each of the Parties acknowledges that they have been free to secure independent
legal and other advice as to the nature and effect of all of the provisions of this
Agreement and that they have either taken such independent legal and other advice or
dispensed with the necessity of doing so. Further, each of the Parties acknowledges
that all of the provisions of this Agreement and the restrictions therein contained
are fair and reasonable in all the circumstances and are part of the overall
intention of the Parties in connection with this Agreement.
	 
	14.8	 	Counterparts
	 
	 	 	This Agreement may be executed in any number of counterparts and by different
parties thereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute one
and the same agreement.
	 
	15.	 	GOVERNING LAW
	 
	 	 	This agreement shall in all respects (including its existence, validity, interpretation,
implementation, termination and enforcement) be governed by the laws of South Africa which
are applicable to agreements executed and wholly-performed within South Africa.
	 
	16.	 	JURISDICTION
	 
	 	 	The Parties hereby irrevocably and unconditionally consent to the non-exclusive
jurisdiction of the Witwatersrand Local Division of the High Court of South Africa (or any
successor to that division) in regard to all matters arising from this Agreement.
	 
	17.	 	SEVERABILITY
	 
	 	 	Each provision in this Agreement is severable from all others, notwithstanding the manner
in which they may be linked together or grouped grammatically, and if in terms of any
judgment or order, any provision, phrase, sentence, paragraph or clause is found to be
defective or unenforceable for any reason, the remaining provisions, phrases, sentences,



Page 27









 





	 	 	paragraphs and clauses shall nevertheless continue to be of full force. In particular,
and without limiting the generality of the aforegoing, the Parties acknowledge their
intention to continue to be bound by this Agreement notwithstanding that any provision may
be found to be unenforceable or void or voidable, in which event the provision concerned
shall be severed from the other provisions, each of which shall continue to be of full
force but provided always that the overall commercial intent and purpose of the transaction
constituted by the Transaction Documents is preserved notwithstanding the severance of such
provision(s).




SIGNED at SANDTON
on this the 13TH day of FEBRUARY 2004.



	 	 	 
	

	 	For and on behalf of
	

	 	PUBLIC INVESTMENT COMMISSIONERS
	 
	 	 
	

	 	
 
	

	 	Name:
	

	 	Capacity:

Who warrants his authority hereto







SIGNED at SANDTON on this the 13th day of FEBRUARY 2004.



	 	 	 
	

	 	For and on behalf of
	

	 	GOLD FIELDS LIMITED
	 
	 	 
	

	 	
 
	

	 	Name:
	

	 	Capacity:
	

	 	Who warrants his authority hereto







Page 28









 





SIGNED at SANDTON
on this the 13TH day of FEBRUARY 2004.



	 	 	 
	

	 	For and on behalf of
	

	 	GFL MINING SERVICES LIMITED
	 
	 	 
	

	 	
 
	

	 	Name:
	

	 	Capacity:
	

	 	Who warrants his authority hereto







Page 29









 





SCHEDULE 1




DEED OF CESSION AND DELEGATION



between



PUBLIC INVESTMENT
COMMISSIONERS

(“PIC”)



and



GFL MINING SERVICES LIMITED

(“GFLMS”)




	1.	 	We refer to the written agreement entitled PIC Put Option
Agreement dated [                  2004],
between PIC, GFLMS and GFL (“the Put Option Agreement”).
	 
	2.	 	All words and expressions in this deed shall unless otherwise defined or the context clearly
indicates otherwise, bear the meaning given to such words and expressions in the Put
Option Agreement.
	 
	3.	 	Pursuant to the Put Option Agreement, PIC hereby cedes and delegates to GFLMS, with
effect from the time and date specified therefore in the Put Option Agreement; all of the
Tranche B Rights and Obligations.
	 
	4.	 	GFLMS hereby accepts the cession and delegation referred to in paragraph 3 above.




 









 





SIGNED at __________ on this the _________ day of _______ 2004.



	 	 	 
	

	 	For and on behalf of
	

	 	PUBLIC INVESTMENT COMMISSIONERS
	 
	 	 
	

	 	
 
	

	 	Name:
	

	 	Capacity:
	

	 	Who warrants his authority hereto







SIGNED at __________ on this the _________ day of _______ 2004.



	 	 	 
	

	 	For and on behalf of
	

	 	GFL MINING SERVICES LIMITED
	 
	 	 
	

	 	
 
	

	 	Name:
	

	 	Capacity:
	

	 	Who warrants his authority hereto








Page 31