exv4w22



 



Exhibit 4.22

SECOND ADDENDUM TO GFI-SA LOAN AGREEMENT


 

Amongst


 

MVELAPHANDA GOLD (PROPRIETARY) LIMITED


 

FIRSTRAND BANK LIMITED

(acting through its RAND MERCHANT BANK division)


 

GFI MINING SOUTH AFRICA (PROPRIETARY) LIMITED


 

GOLD FIELDS LIMITED


 

GOLD FIELDS AUSTRALIA PTY LIMITED


 

and


 

GOLD FIELDS GUERNSEY LIMITED



 




 









 





Table of Contents



	 	 	 	 	 	 	 
	1.
	 	PARTIES 	 	 	1	 
	2.
	 	ADDENDUM 	 	 	1	 
	3.
	 	VARIANCE 	 	 	1	 
	4.
	 	RECORDAL REGARDING PURPOSE OF ADDENDUM 	 	 	2	 
	5.
	 	SUSPENSIVE CONDITIONS 	 	 	2	 
	6.
	 	AMENDMENTS 	 	 	3	 
	7.
	 	VARIATION 	 	 	7	 
	8.
	 	SAVINGS 	 	 	7	 
	9.
	 	COUNTERPARTS 	 	 	7	 






 









 





SECOND ADDENDUM TO GFI-SA LOAN AGREEMENT








	1.	 	PARTIES





	1.1	 	The Parties to this Agreement are:





	1.1.1	 	MVELAPHANDA GOLD (PROPRIETARY) LIMITED;
	 
	1.1.2	 	FIRSTRAND BANK LIMITED (acting through is RAND MERCHANT BANK) division;
	 
	1.1.3	 	GFI MINING SOUTH AFRICA (PROPRIETARY) LIMITED;
	 
	1.1.4	 	GOLD FIELDS LIMITED;
	 
	1.1.5	 	GOLD FIELDS AUSTRALIA PTY LIMITED; and
	 
	1.1.6	 	GOLD FIELDS GUERNSEY LIMITED.





	1.2	 	The Parties agree as set out below.









	2.	 	ADDENDUM





	2.1	 	This Agreement forms an addendum to the written agreement entitled “GFI-
SA Loan Agreement” (the “GFI-SA Loan Agreement”) concluded between
the Parties referred to in clause 1 dated 11 December 2003 as amended
by an
addendum thereto dated 13 February 2004.
	 
	2.2	 	All words and expressions defined in the GFI-SA Loan Agreement shall have
the same meaning herein unless otherwise stated or the context clearly
indicates otherwise.









	3	 	VARIANCE





	3.1	 	Clause 26.5.1 of the GFI-SA Loan Agreement provides inter alia that no
addition to, amendment to or variation of the GFI-SA Loan Agreement
shall be of any force or effect unless in writing and signed by or
and on behalf of all the Parties.



 









 










	3.2	 	The Parties wish to amend the GFI-SA Loan Agreement for the purposes set
out in clause 4 below and have accordingly, pursuant to clause 26.5.1
of the GFI-SA Loan Agreement, agreed to reduce such amendments to
writing.









	4.	 	RECORDAL REGARDING PURPOSE OF ADDENDUM





	4.1	 	GFL has agreed to combine its international assets with those of IAMGold
Corporation, a corporation incorporated under the Canada
Business Corporations Act, as amended (which is to be renamed “Gold Fields
International”) (“GFI”) (the “Transaction”). In terms of the
Transaction, GFLMS will sell all of its shares in Orogen Holding BVI Ltd and GFG
will sell all of its shares in various subsidiaries in exchange for shares
in GFI which constitute approximately 70% (seventy percent) of the entire
issued share capital of GFI. As a result of the proposed implementation of
the Transaction, the Parties have, subject to the provisions hereof,
agreed to amend certain of the provisions of the GFI-SA Loan Agreement by:





	4.1.1	 	releasing GFG and GFA from their obligations as Guarantors under the
GFI-SA Loan Agreement; and
	 
	4.1.2	 	providing for certain other miscellaneous amendments which are
requested as a consequence of the proposed implementation of the
Transaction and the release of GFG and GFA from their obligations as
Guarantors under the GFI-SA Loan Agreement.





	4.2	 	In addition, GFL has requested and the other Parties are agreeable to
amending the minimum ratio of Consolidated EBITDA to Net Debt Service
as provided for in clause 18.1.2 of the GFI-SA Loan Agreement.









	5.	 	SUSPENSIVE CONDITIONS





	5.1	 	The amendments to the GFI-SA Loan Agreement as referred to in clause 6 of
this Agreement are subject to and will take effect upon the
fulfilment of the suspensive conditions, that:





	5.1.1	 	the Transaction is approved by the Shareholders of GFL in general
meeting and that any and all other suspensive conditions to the
implementation of the Transaction have, save insofar as the
amendments contemplated by this Agreement may be a condition
thereto, been fulfilled in accordance with the relevant
provisions of the agreements relating to the Transaction; and



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	5.1.2	 	the Senior Agent has received evidence to its satisfaction that any
existing guarantee, suretyship, undertaking, commitment or any
other similar or like assurance given by GFI-SA or any
subsidiary of GFI-SA in respect of any of the obligations of
any other member of the GFL Group (which is not also a
subsidiary of GFI-SA) or any Encumbrance created or in
existence over any of GFI-SA’s or any subsidiary of GFI-SA’s
property, assets or revenues as security for any of the
obligations of any other member of the GFL Group (which is not
also a subsidiary of GFI-SA) will be cancelled with effect from
the date of the amendments contemplated by this Agreement
becoming effective.





	5.2	 	The amendments set out in this Agreement shall, provided that this
Agreement has been signed by all of the Parties hereto, become
effective upon the date of fulfilment of each of the suspensive
conditions set out in clause 5.1 hereof which date shall be
confirmed in writing by the Senior Agent.









	6.	 	AMENDMENTS





	6.1	 	Clause 1.1 (Parties) of the GFI-SA Loan Agreement is hereby amended by
the deletion of clauses 1.1.5 and 1.1.6 thereof.
	 
	6.2	 	Clause 2.1 (General Definitions) of the GFI-SA Loan Agreement is hereby
amended as follows:





	6.2.1	 	the insertion of a new definition namely:





	 	 	 	“GFI” means IAMGold Corporation (Registration No.
421317/3), a corporation incorporated under the Canada
Business Corporations Act, as amended, (the name of which
is to be changed to Gold Fields International) and (except
where used in the context of clauses 20.1.5.5, 20.1.8 and
20.1.17) its subsidiaries and Canadian holding company”;





	6.2.2	 	the definition of “Guarantors” is deleted and replaced by the following
definition namely:





	 	 	 	“Guarantors” means:





	 	(a)	 	GFL; and
	 
	 	(b)	 	any Additional Guarantor,



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	 	 	and “Guarantor” means as the context requires any one of
them”;





	6.2.3	 	the definition of “Permitted Disposal” is amended by:





	6.2.3.1	 	the insertion of a paragraph (eA) which reads:





	 	 	“by GFI to any other person;”





	6.2.3.2	 	the insertion of the words “but including a sale, lease, transfer or
other disposal referred to in paragraph (eA) above” after
the words “referred to in (a), (b), (c), (d), (e) and
(g)”
in the fifth and sixth lines of paragraph (f) of the
definition of “Permitted Disposal”.





	6.2.4	 	the definition of “Permitted Encumbrance” is amended by:





	6.2.4.1	 	the insertion of a paragraph (gA) which reads:





	 	 	“any Encumbrance or Quasi Encumbrance over or
affecting any assets of GFI;”





	6.2.4.2	 	the insertion of the words “but including the principal amount of
any indebtedness which has the benefit of an Encumbrance or
Quasi Encumbrance under paragraph (gA) above” after the
words “paragraphs (a) to (g) above” in the sixth and
seventh lines of paragraph (h) of the
definition of “Permitted Encumbrance”.





	6.2.5	 	the insertion of a new definition namely:





	 	 	““Special Distribution” means any payment by GFL to its
shareholders or any person that directly or indirectly
controls or is controlled by any shareholder of GFL or any
one of them (whether in cash or in specie) by way of
interest or principal, dividend, fee, royalty or other
distribution or payment (including, without limitation by
way of the repurchase of any shares in GFL by GFL) in any
case utilising whether directly or indirectly the proceeds
of any disposal of any of the capital or fixed assets
(whether tangible or intangible) of GFI or any of the
shares held by GFL or any of its subsidiaries in GFI.”



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	6.2.6	 	the definition of “Parties” is amended by the deletion of paragraphs (c)
and (d) referring to GFA and GFG.





	6.3	 	Clause 6.4 (GFL as Agent for Guarantors) of the GFI-SA Loan Agreement is
hereby amended by the addition of the words “to the extent
applicable” after
the words “Each of the Guarantors” in the first line thereof.
	 
	6.4	 	Clause 10 (Guarantee) of the GFI-SA Loan Agreement is hereby amended as
follows:





	6.4.1	 	the addition of a new clause 10.3.8.6A which reads as follows:





	 	 	“10.3.8.6A	 	The release of any one or more Guarantors from
their obligations as a Guarantor under this
Agreement;”





	6.5	 	Clause 19 (General Undertakings) of the GFI-SA Loan Agreement is hereby amended by:





	6.5.1	 	the insertion of a new clause 19.12 entitled “Negative Undertaking by
GFI-SA” which reads as follows:





	 	“19.12	 	NEGATIVE UNDERTAKING BY GFI-SA
	 
	 	 	 	GFI-SA hereby undertakes not to provide any
guarantee, suretyship, undertaking, commitment or any
other similar or like assurance in respect of any of
the obligations of GFI or any other member of the GFL
Group (which is not also a subsidiary of GFI-SA) and
neither shall GFI-SA allow any Encumbrance to be
created or to exist over any of its property, assets
or revenues as security for any of the obligations
of GFI or any other member of the GFL Group (which is
not also a subsidiary of GFI-SA). In addition GFI-SA
undertakes to procure that:





	 	19.12.1	 	no subsidiary of GFI-SA shall provide any
such guarantee, suretyship, undertaking, commitment or
any other similar or like assurance in
respect of the
obligations of GFI or any other member of the GFL
Group (which is not also a subsidiary of GFI-SA);
and
	 
	 	19.12.2	 	no subsidiary of GFI-SA shall allow any Encumbrance to
be created or to exist over any of its property,
assets or
revenues as security for any of the obligations of
GFI or



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	 	 	and other member of the GFL Group (which is not
also a subsidiary of GFI-SA).





	6.5.2	 	the insertion of a new clause 19.4A entitled “Special Distributions”
which reads as follows:






	 	“19.4A 	 	SPECIAL DISTRIBUTIONS
	 
	 	 	 	GFL hereby undertakes not to make, declare or pay
any Special Distribution without having obtained the
prior written consent therefor of the Senior Agent.
GFL hereby undertakes to provide the Senior Agent
with any information reasonably requested by the
Senior Agent in this regard.”





	6.6	 	Clause 20.1.5 (Cross Default) of the GFI-SA Loan Agreement is hereby
amended by:





	6.6.1	 	deleting the full stop at the of clause 20.1.5.5 and inserting the
following words in place thereof namely: “in the case of GFI-SA, GFL
or any other Material GFL Group Company incorporated in South
Africa, or USD15 000 000 (Fifteen Million United States Dollars) in the
case of GFI or any other Material GFL Group Company incorporated
in any jurisdiction outside of South Africa”;
	 
	6.6.2	 	deleting the full stop at the end of clause 20.1.8 and inserting the
following words in place thereof namely: “in the case of GFI-SA,
GFL or any other Material GFL Group Company incorporated in South
Africa, or USD10 000 000 (Ten Million United States Dollars) in
the case of GFI or any other Material GFL Group Company incorporated
in any jurisdiction outside of South Africa”.





	6.7	 	Clause 18 (Financial Covenants) of the GFI-SA Loan Agreement is hereby
amended by deleting the numerals “3.5:1” in clause 18.1.2 and
replacing such numerals with “3:1”.
	 
	6.8	 	Clause 20.1.17 (Change of Control) of the GFI-SA Loan Agreement is hereby
amended by deleting the fullstop at the end of clause 20.1.17 and
inserting the
following words in place thereof namely:





	 	 	 	“or any change in control of GFI occurs without the prior
written consent of the Senior Agent acting on the instructions
of the Majority Senior Lenders ”.



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	7.	 	VARIATION
	 
	 	 	No agreement to vary, add to or cancel this Agreement shall be of any
force or effect unless reduced to writing and signed by or on behalf of
the Parties.









	8.	 	SAVINGS
	 
	 	 	Save as set out herein the GFI-SA Loan Agreement remains of full force and
effect.









	9.	 	COUNTERPARTS
	 
	 	 	This Agreement may be executed in any number of counterparts and by
different parties hereto 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.





	 	 	 	 
	SIGNED at Parktown	 	on this the 17 day of Nov 2004.	 
	 
	 	 	For and on behalf of

MVELAPHANDA GOLD (PROPRIETARY) LIMITED	 
	 
	 
	 	 		 
	 	 	Name: Bernard Renier van Rooyen

Capacity: Director

Who warrants his authority hereto	 
	 	 		 







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	SIGNED at Sandton	 	on this the 19th day of Nov 2004.	 
	 
	 	 	For and on behalf of

FIRSTRAND BANK LIMITED (acting through its RAND MERCHANT BANK division)
	 
	 
	 	 		 
	 	 	Name: N.H. Deist

Capacity: Authorised Signatory

Who warrants his authority hereto	 
	 
	 
	 	 		 
	 	 	Name: J.A. Teeya 

Capacity: Authorised Signatory

Who warrants his authority hereto	 










	 	 	 	 
	SIGNED at Parktown	 	on this the 17 day of Nov 2004.	 
	 
	 	 	For and on behalf of

GFI MINING SOUTH AFRICA (PROPRIETARY) LIMITED	 
	 
	 
	 	 		 
	 	 	Name: N Holland

Capacity: Chief Financial Officer

Who warrants his authority hereto	 









	 	 	 	 
	SIGNED at Parktown	 	on this the 17 day of Nov 2004.
	 
	 	 	For and on behalf of

GOLD FIELDS LIMITED	 
	 
	 
	 	 		 
	 	 	Name: N Holland

Capacity: Chief Financial Officer

Who warrants his authority hereto	 






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	SIGNED at	 	Perth on this the 18 day of November 2004.	 
	 
	 	 	For and on behalf of

GOLD FIELDS AUSTRALIA PTY LIMITED	 
	 
	 
	 	 		 
	 	 	Name: Steven W. Banning

Capacity: Vice President Operations

Who warrants his authority hereto	 






	 	 	 	 
	SIGNED at                                       	 	on this the                     day of                     2004.	 
	 
	 	 	For and on behalf of

COLD FIELDS GUERNSEY LIMITED	 
	 
	 
	 	 	 	 
	 	 	Name:

Capacity:

Who warrants his authority hereto	 





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	SIGNED at                                       	 	on this the                     day of                     2004.	 
	 	 	For and on behalf of

GOLD FIELDS AUSTRALIA PTY LIMITED	 
	 
	 
	 	 	 	 
	 	 	Name:

Capacity:

Who warrants his authority hereto	 






	 	 	 	 
	SIGNED at Guernsey	 	on this the 17th day of November 2004.	 
	 
	 	 	For and on behalf of

GOLD FIELDS GUERNSEY LIMITED	 
	 
	 
	 	 		 
	 	 	Name: A.J. Taberner

Capacity: DIRECTOR

Who warrants his authority hereto	 






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