**Exhibit 4.33**
|  | ** ** | **LIMITED LIABILITY PARTNERSHIP  EXECUTION VERSION** |
|--|------------|------------------------------------------------------|

 

 

US$1,800,000,000

FACILITY AGREEMENT

Dated November2006

for

GFI MINING SOUTH AFRICA (PROPRIETARY) LIMITED

arrangedby

CITIBANK,N.A. LONDON BRANCH

and

J.P. MORGAN PLC

with

J.P. MORGAN EUROPE LIMITED

acting as Agent

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BRIDGELOAN FACILITY AGREEMENT

 

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**CONTENTS**

** **
| **Clause** |   | **Page**                                    |
|------------|--------|---------------------------------------------|
|       |   |                                        |   |   |
| 1.         |   | Definitions  And Interpretation             |   | 1 |
| 2.         |   | The Facility                                |   | 16 |
| 3.         |   | Purpose                                     |   | 16 |
| 4.         |   | Conditions  Of Utilisation                  |   | 17 |
| 5.         |   | Utilisation                                 |   | 18 |
| 6.         |   | Repayment                                   |   | 19 |
| 7.         |   | Prepayment  And Cancellation                |   | 19 |
| 8.         |   | Interest                                    |   | 23 |
| 9.         |   | Interest  Periods                           |   | 24 |
| 10.        |   | Changes To  The Calculation Of Interest     |   | 25 |
| 11.        |   | Fees                                        |   | 26 |
| 12.        |   | Tax Gross Up  And Indemnities               |   | 27 |
| 13.        |   | Increased  Costs                            |   | 29 |
| 14.        |   | Other  Indemnities                          |   | 30 |
| 15.        |   | Mitigation  By The Lenders                  |   | 31 |
| 16.        |   | Costs And  Expenses                         |   | 32 |
| 17.        |   | Guarantee  And Indemnity                    |   | 33 |
| 18.        |   | Representations                             |   | 36 |
| 19.        |   | Information  Undertakings                   |   | 40 |
| 20.        |   | Financial  Covenants                        |   | 45 |
| 21.        |   | General  Undertakings                       |   | 46 |
| 22.        |   | Events Of  Default                          |   | 50 |
| 23.        |   | Changes To  The Lenders                     |   | 56 |
| 24.        |   | Changes To  The Obligors                    |   | 59 |
| 25.        |   | Role Of The  Agent And The Arranger         |   | 61 |
| 26.        |   | Conduct Of  Business By The Finance Parties |   | 66 |
| 27.        |   | Sharing  Among The Finance Parties          |   | 66 |
| 28.        |   | Payment  Mechanics                          |   | 69 |
| 29.        |   | Set-Off                                     |   | 71 |
| 30.        |   | Notices                                     |   | 71 |
| 31.        |   | Calculations  And Certificates              |   | 73 |

 

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| 32.                                                                                |   | Partial  Invalidity     |   | 73     |
|------------------------------------------------------------------------------------|--------|-------------------------|--------|--------|
| 33.                                                                                |   | Remedies And  Waivers   |   | 73     |
| 34.                                                                                |   | Amendments  And Waivers |   | 74     |
| 35.                                                                                |   | Counterparts            |   | 74     |
| 36.                                                                                |   | Governing  Law          |   | 75     |
| 37.                                                                                |   | Enforcement             |   | 75     |
|                                                                               |   |                    |   |   |
| Schedule 1 THE ORIGINAL PARTIES                                                    |   | 76                      |
| Part I The  Obligors                                                               |   | 76                      |
| Part Ii The  Original Lenders                                                      |   | 77                      |
|                                                                               |   |                    |
| Schedule 2 CONDITIONS PRECEDENT                                                    |   | 78                      |
| Part I  Conditions Precedent To Initial Utilisation                                |   | 78                      |
| Part II  Conditions Precedent Required To Be Delivered By An Additional Borrower   |   | 80                      |
| Part III  Conditions Precedent Required To Be Delivered By An Additional Guarantor |   | 82                      |
|                                                                               |   |                    |
| Schedule 3 REQUESTS                                                                |   | 84                      |
| Part I  Utilisation Request                                                        |   | 84                      |
| Part II  Selection Notice                                                          |   | 85                      |
|                                                                               |   |                    |
| Schedule 4 MANDATORY COST FORMULAE                                                 |   | 86                      |
|                                                                               |   |                    |
| Schedule 5 FORM OF TRANSFER CERTIFICATE                                            |   | 88                      |
|                                                                               |   |                    |
| Schedule 6 FORM OF ACCESSION LETTER                                                |   | 90                      |
|                                                                               |   |                    |
| Schedule 7 FORM OF RESIGNATION LETTER                                              |   | 91                      |
|                                                                               |   |                    |
| Schedule  8 FORM OF COMPLIANCE CERTIFICATE                                         |   | 92                      |
|                                                                               |   |                    |
| Schedule 9 TIMETABLE                                                               |   | 93                      |

 

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**THISAGREEMENT**is dated November 2006 and made between:

(1)                            **GOLD FIELDSLIMITED**(the“**Parent**”);

(2)                            **GFI MININGSOUTH AFRICA (PROPRIETARY) LIMITED**(the “**Original****Borrower**”);

(3)                            **THESUBSIDIARIES** of the Parent listed inPart I of Schedule 1 (*The Original Parties*)as guarantors (together with the Parent,the “**Original****Guarantors**”);

(4)                            **CITIBANK,N.A. LONDON BRANCH** and **J.P. MORGAN PLC**asmandated lead arranger(s) (whether acting individually or together the “**Arranger**”);

(5)                            **THEFINANCIAL INSTITUTIONS**listed in Part II of Schedule 1 (*The Original Parties*) as lenders (the “**OriginalLenders**”); and

(6)                            **J.P. MORGANEUROPE LIMITED** as agent of the other Finance Parties (the “**Agent**”).

**ITIS AGREED**as follows:

**SECTION1INTERPRETATION**

# **1.**                                 DEFINITIONS AND INTERPRETATION

## **1.1**                           Definitions

In thisAgreement:

“**Accession Letter**” means a documentsubstantially in the form set out in Schedule 6 (*Form of Accession Letter*).

“**Acquisition**” means the acquisition by theParent (acting as agent for the Borrower) of all of the issued and outstandingshares in the capital of Barrick Gold South Africa (Proprietary) Limitedpursuant to the Share Purchase Agreement.

“**Additional Cost Rate**” has the meaning given to it inSchedule 4 (*Mandatory Cost Formulae*).

“**Additional Borrower**” means a company whichbecomes an Additional Borrower in accordance with Clause 24 (*Changes to the Obligors*).

“**Additional Guarantor**” means a company whichbecomes an Additional Guarantor in accordance with Clause 24 (*Changes to the Obligors*).

“**Additional Obligor**” means an AdditionalBorrower or an Additional Guarantor.

“**Affiliate**” means, in relation to any person, a Subsidiary ofthat person or a Holding Company of that person or any other Subsidiary of thatHolding Company.

 

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“**Auditors**” means, at any time, the auditorsof the Parent at that time, being as at the date of this AgreementPricewaterhouseCoopers Inc. and any replacement for those auditors appointed bythe Parent.

“**Availability Period**”****means theperiod from and including the date of this Agreement to and including the datewhich is three hundred and thirty days (330) after the date of this Agreement.

“**Available Commitment**”means a Lender’s Commitment minus:

(a)                                      the amount of itsparticipation in any outstanding Loans; and

(b)                                     in relation to any proposedUtilisation, the amount of its participation in any Loans that are due to bemade on or before the proposed Utilisation Date.

“**Available Facility**” means the aggregate for the time beingof each Lender’s Available Commitment.

“**Borrower**” means the Original Borrower or anAdditional Borrower.

“**Break Costs**”means the amount (if any) by which:

(a)                                      the interest which a Lendershould have received for the period from the date of receipt of all or any partof its participation in a Loan or Unpaid Sum to the last day of the currentInterest Period in respect of that Loan or Unpaid Sum, had the principal amountor Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b)                                     the amount which that Lenderwould be able to obtain by placing an amount equal to the principal amount orUnpaid Sum received by it on deposit with a leading bank in the RelevantInterbank Market for a period starting on the Business Day following receipt orrecovery and ending on the last day of the current Interest Period.

“**Business Day**” means a day (other than a Saturday or Sunday)on which banks are open for general business in London, New York andJohannesburg.

“**Cerro Corona Project**” means the developmentof the gold and copper deposits in Peru by the Cerro Corona Subsidiary.

“**Cerro Corona Subsidiary**” means SociedadMinera La Cima S.A.

“**Commitment**”means:

(a)                                      in relation to an OriginalLender, the amount in dollars set opposite its name under the heading “**Commitment**” in Part II of Schedule 1 (*The Original Parties)* and the amount of any other Commitmenttransferred to it under this Agreement; and

 

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(b)                                     in relation to any otherLender, the amount in dollars of any Commitment transferred to it under thisAgreement,

to theextent not cancelled, reduced or transferred by it under this Agreement.

“**Compliance Certificate**” means a certificate substantially inthe form set out in Schedule 8 (*Form of ComplianceCertificate*).

“**Confidentiality Undertaking**” means a confidentialityundertaking substantially in a recommended form of the LMA or in any other formagreed between the Parent andthe Agent.

“**Consolidated EBITDA**” has the meaning setout in Clause 20.1 (*Financial Definitions*).

“**Consolidated Tangible Net Worth**” means, atany time, the Shareholders’ Equity, as reported in the Group Statement ofChanges in Shareholders’ Equity in the last set of annual consolidatedfinancial statements of the Parent delivered to the Agent pursuant to thisAgreement.

“**Constitutional Documents**” means, in respectof any person at any time, the then current and up-to-date constitutionaldocuments of such person at such time (including, without limitation, suchperson’s memorandum and articles of association, certificate of incorporation,articles of incorporation or commercial registration certificate).

“**Default**” means an Event of Default or any event orcircumstance specified in Clause 22 (*Events of Default*)which would (with the expiry of a grace period, the giving of notice, themaking of any determination under the Finance Documents or any combination ofany of the foregoing) be an Event of Default.

“**Encumbrance**”means;

(a)                                      any mortgage, pledge, lien,assignment or cession conferring security, hypothecation, a security interest,preferential right or trust arrangement or other encumbrance of the likesecuring any obligation of any person; or

(b)                                     any arrangement under whichmoney or claims to, or for the benefit of, a bank or other account may beapplied, set off or made subject to a combination of accounts so as to effectdischarge of any sum owed or payable to any person; or

(c)                                      any other type of preferentialagreement or arrangement (including any title transfer and retentionarrangement), the effect of which is the creation of a security interest.

“**Environmental Claim**” means any claim,proceeding or investigation by any person in respect of any Environmental Law.

“**Environmental Law**” means any law applicableto the business conducted by a Material Group Company at the relevant time inany jurisdiction in which that Material Group Company conducts business whichrelates to the pollution, degradation or protection of the environment or harmto or the protection of human health or the health of animals or plants.

 

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“**Environmental Permits**” means any permit,licence, consent, approval and other authorisation and the filing of anynotification, report or assessment required under any Environmental Law for theoperation of the business of any Material Group Company conducted on or fromthe properties owned or used by that Material Group Company.

“**Event of Default**” means any event or circumstance specifiedas such in Clause 22 (*Events of Default*).

“**Facility**” means the bridge loan facility made availableunder this Agreement as described in Clause 2 (*The Facility*).

“**Facility Office**” means the office notified by a Lender tothe Agent in writing on or before the date it becomes a Lender (or, followingthat date, by not less than five Business Days’ written notice) as the officethrough which it will perform its obligations under this Agreement.

“**Fee Letter**” means any letter or letters dated on or aboutthe date of this Agreement between the Arranger and the Borrower or the Parent (or the Agent and the Parent) setting out any of the feesreferred to in Clause 11 (*Fees).*

“**Finance Document**” means this Agreement, the Mandate Letter,any Fee Letter, any Accession Letter, any Resignation Letter and any otherdocument designated as such by the Agent and the Parent.

“**Finance Party**” means the Agent, the Arranger or a Lender.

“**Financial Indebtedness**”means (without double counting) any indebtedness for or in respect of:

(a)                                      moneys borrowed;

(b)                                     any amount raised byacceptance under any acceptance credit facility or dematerialised equivalent;

(c)                                      any amount raised pursuant toany note purchase facility or the issue of bonds, notes, debentures, loan stockor any similar instrument;

(d)                                     the amount of any liability inrespect of any lease or hire purchase contract which would, in accordance withGAAP, be treated as a finance or capital lease;

(e)                                      receivables sold or discounted(other than any receivables to the extent they are sold on a non-recoursebasis);

(f)                                        the amount of liability inrespect of any purchase price for assets or services the payment of which isdeferred where the deferral of such price is either;

(i)                        used primarily as a method ofraising credit; or

(ii)                     not made in the ordinary course ofbusiness;

 

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(g)                                     any agreement or option tore-acquire an asset if one of the primary reasons for entering into suchagreement or option is to raise finance;

(h)                                     any amount raised under anyother transaction (including any forward sale or purchase agreement) having thecommercial effect of a borrowing;

(i)                                         any derivative transactionentered into in connection with protection against or benefit from fluctuationin any rate or price (and, when calculating the value of any derivativetransaction, only the marked to market value shall be taken into account);

(j)                                         any counter-indemnityobligation in respect of a guarantee, indemnity, bond, standby or documentaryletter of credit or any other instrument issued by a bank or financialinstitution;

(k)                                      any amount raised by the issueof redeemable shares; and

(l)                                         the amount of any liability inrespect of any guarantee or indemnity for any of its items referred to inparagraphs (a) to (k) above.

“**Financial Year**” means, at any time, thefinancial year of the Group ending on 30 June in each calendar year.

“**GAAP**” means the generally accepted accounting principles setout in IFRS.

“**Ghanaian Companies**” means Gold Fields GhanaLimited and Abosso Goldfields Limited.

“**Group**” means the Parentand its Subsidiaries for the time being.

“**Group Company**” means a member of the Group.

“**Guarantor**” means an Original Guarantor oran Additional Guarantor unless, in the case of an Additional Guarantor, it hasceased to be a Guarantor in accordance with Clause 24 (*Changes to the Obligors*).

“**Holding Company**” means, in relation to a company orcorporation, any other company or corporation in respect of which it is aSubsidiary.

“**IFRS**”means International Financial Reporting Standards issued and/or adopted by theInternational Accounting Standards Board.

“**Indebtedness for Borrowed Money**” means FinancialIndebtedness save for any indebtedness for or in respect of paragraphs (i) and(j) of the definition of “**Financial Indebtedness**”.

“**Interest Period**” means, in relation to a Loan, each perioddetermined in accordance with Clause 9 (*InterestPeriods*) and, in relation to an Unpaid Sum, each period determinedin accordance with Clause 8.3 (*Default interest*).

“**JCI Transaction**” means an agreement dated11 September 2006 among the Parent, JCI Limited and certain Subsidiaries of JCILimited, pursuant to which the Parent will acquire certain shares in WesternAreas Limited.

 

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“**Lender**” means:

(a)                                      any Original Lender; and

(b)                                     any bank or financialinstitution which has become a Party in accordance with Clause 23 (*Changes to the Lenders*),

whichin each case has not ceased to be a Party in accordance with the terms of thisAgreement.

“**LIBOR**” means,in relation to any Loan:

(a)                                      the applicable Screen Rate; or

(b)                                     (if no Screen Rate isavailable for dollars for the Interest Period of that Loan) the arithmetic meanof the rates (rounded upwards to four decimal places) as supplied to the Agentat its request quoted by the Reference Banks to leading banks in the Londoninterbank market,

as ofthe Specified Time on the Quotation Day for the offering of deposits in dollarsand for a period comparable to the Interest Period for that Loan.

“**LMA**” means the Loan Market Association.

“**Loan**” means a loan made or to be made under the Facility orthe principal amount outstanding for the time being of that loan.

“**Majority Lenders**”means:

(a)                                      if there are no Loans thenoutstanding, a Lender or Lenders whose Commitments aggregate more than 662/3%of the Total Commitments (or, if the Total Commitments have been reduced tozero, aggregated more than 662/3% of the TotalCommitments immediately prior to the reduction); or

(b)                                     at any other time, a Lender orLenders whose participations in the Loans then outstanding aggregate more than662/3% of all the Loans then outstanding.

“**Mandate Letter**” means the letter dated 3November 2006 between the Arranger andthe Borrower.

“**Mandatory Cost**” means the percentage rate per annumcalculated by the Agent in accordance with Schedule 4 (*Mandatory Cost Formulae*).

“**Margin**” means:

(a)                                      0.40 per cent. per annum fromand including the date of this Agreement, to but excluding the date fallingthree Months after the date of this Agreement;

(b)                                     0.50 per cent. per annum fromand including the date falling three Months after the date of this Agreement,to but excluding the date falling six Months after the date of this Agreement;and

 

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(c)                                      0.60 per cent. per annumthereafter.

“**Material AdverseEffect**” means a material adverse effect on:

(a)                                      the ability of an Obligor toperform its financial or other material obligations under the Finance Documentsto which it is a party; or

(b)                                     the validity or enforceabilityof the Finance Documents or any of them.

“**Material Group Company**” means:

(a)                                      the Obligors; and

(b)                                     any member of the Group fromtime to time that is not a Non-Material Group Company;

and “**Material GroupCompanies**” means, as the context requires, all of them.

“**Month**” means aperiod starting on one day in a calendar month and ending on the numericallycorresponding day in the next calendar month, except that:

(a)                                      (subject to paragraph (c)below) if the numerically corresponding day is not a Business Day, that periodshall end on the next Business Day in that calendar month in which that periodis to end if there is one, or if there is not, on the immediately preceding BusinessDay;

(b)                                     if there is no numericallycorresponding day in the calendar month in which that period is to end, thatperiod shall end on the last Business Day in that calendar month; and

(c)                                      if an Interest Period beginson the last Business Day of a calendar month, that Interest Period shall end onthe last Business Day in the calendar month in which that Interest Period is toend.

Paragraphs(a), (b) and (c) above will only apply to the last Month of any period.

“**Non-Material Group Company**” means, at anytime, a member of the Group (other than an Obligor) which had EBITDA(determined on the same basis as Consolidated EBITDA) or gross assets in itsmost recently ended Financial Year (on a consolidated basis) less than or equalto 5% (five percent) of Consolidated EBITDA or gross assets of the Group(calculated according to the most recent set of audited consolidated financialstatements delivered pursuant to Clause 19.1 (*FinancialStatements*)). Compliance with the aforementioned condition shall bedetermined by reference to the latest audited financial statements of suchmember of the Group (consolidated in the case of a member of the Group whichitself has Subsidiaries), **provided that**:

(a)                                      if, in the case of any memberof the Group which itself has Subsidiaries, no consolidated financialstatements are prepared and audited, its consolidated EBITDA and gross assetsshall be determined on the basis of *proforma*

 

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consolidated financial statements of the relevant member of the Group and itsSubsidiaries, prepared for this purpose by the Parent;

(b)                                     if any intra-Group transfer orre-organisation takes place, the audited financial statements of the GroupCompany and all relevant members of the Group shall be adjusted by the Parentin order to take into account such intra-Group transfer or re-organisation; and

(c)                                      the audited financialstatements of the Group and any relevant member of the Group shall be adjustedin such a manner as the Auditors think fair and appropriate to take account ofthe acquisition or disposal of any member of the Group or any business of anymember of the Group, after the date or at which the audited financialstatements of the Group are made up.

Shouldthere be any dispute regarding whether any member of the Group is or is not aNon-Material Group Company such dispute shall be referred, at the request ofthe Agent, to the Auditors and a report by the Auditors that a member of theGroup is or is not a Non-Material Group Company shall, in the absence ofmanifest error, be conclusive and binding on all Parties. The costs ofobtaining the report by the Auditors will be borne by the unsuccessful party tothe dispute.

“**Obligor**” means a Borrower or a Guarantor.

“**Offer**” means the offer made by the Parentdated 30 October 2006 to acquire the entire issued share capital of WesternAreas Limited, other than such share capital already owned by the Parent andits Subsidiaries or JCI Limited (or any Subsidiary of JCI Limited).

“**Original Financial Statements**” means the auditedconsolidated financial statements of the Parent for the Financial Year ended 30 June 2006.

“**Party**” means a party to this Agreement.

“**Permitted Disposal**”means any sale, lease, transfer or other disposal:

(a)                                      by an Obligor or any member ofthe Group of obsolete or redundant assets which are no longer required for theefficient operation of the business of such Obligor or such member of theGroup; or

(b)                                     by an Obligor or any member ofthe Group in the ordinary course of its day-to-day business if that sale,lease, transfer or other disposal is not otherwise restricted by a term of anyFinance Document; or

(c)                                      by an Obligor to anotherObligor (other than to an Additional Obligor); or

(d)                                     by a member of the Group thatis not an Obligor to an Obligor or by an Obligor to an Additional Obligor or toa member of the Group that is not an Obligor if such sale, lease, transfer orother disposal is concluded at arm’s length; or

(e)                                      by a member of the Group thatis not an Obligor to another member of the Group that is not an Obligor; or

 

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(f)                                        by any member of the Group toany other person where the higher of the market value or considerationreceivable when aggregated with the higher of the market value or considerationreceivable for any other sale, lease, transfer or other disposal by any memberof the Group (other than a sale, lease, transfer or other disposal referred toin (a), (b), (c), (d), (e) and (g)) does not exceed 10% (ten percent) of the ConsolidatedTangible Net Worth in any Financial Year during the period from the date ofthis Agreement to the Termination Date; or

(g)                                     for which the Agent has givenits prior written consent (acting on the instructions of the Majority Lenders).

“**Permitted Encumbrance**”means:

(a)                                      any Encumbrance created priorto the date of this Agreement which (i) is disclosed in the Original FinancialStatements and (ii) in all circumstances secures only indebtedness outstandingor a facility available at the date of this Agreement if the principal amountor original facility thereby secured is not increased after the date of thisAgreement;

(b)                                     any title transfer orretention arrangement entered into by any member of the Group in the normalcourse of its trading activities and on terms no worse for that member of theGroup than the standard terms of the relevant supplier;

(c)                                      any netting or set-offarrangement entered into by any member of the Group in the ordinary course ofits banking arrangements (which shall include, for the avoidance of doubt,those pursuant to hedging arrangements in relation to gold and silver prices,foreign exchange rates and interest rates where such arrangements are enteredinto for the purposes of providing protection against fluctuation in such ratesor prices in the ordinary course of business), for the purpose of netting debitand credit balances;

(d)                                     any lien arising by operationof law and in the ordinary course of trading and not by reason of any default(whether in payments or otherwise), of any member of the Group;

(e)                                      any Encumbrance over oraffecting (or transaction described in paragraph (b) of Clause 21.3 (*Negative Pledge*) (“**Quasi-Encumbrance**”)affecting) any asset acquired by a member of the Group after the date of thisAgreement if:

(i)                        the Encumbrance orQuasi-Encumbrance was not created in contemplation of the acquisition of thatasset by a member of the Group;

(ii)                     the principal amount secured has not beenincreased in contemplation of, or since the acquisition of that asset by a memberof the Group; and

(iii)                  the Encumbrance or Quasi-Encumbrance is(other than an Encumbrance or Quasi-Encumbrance otherwise permitted pursuant toparagraphs (b), (c), (d), (f), (g), (h) or (i)) removed or discharged withinsix months of the date of acquisition of such asset;

 

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(f)                                        any Encumbrance orQuasi-Encumbrance over or affecting any asset of any company which becomes amember of the Group after the date of this Agreement, where the Encumbrance orQuasi-Encumbrance is created prior to the date on which that company becomes amember of the Group, if:

(i)                        the Encumbrance orQuasi-Encumbrance was not created in contemplation of the acquisition of thatcompany;

(ii)                     the principal amount secured has not increasedin contemplation of or since the acquisition of that company; and

(iii)                  the Encumbrance or Quasi-Encumbrance is(other than an Encumbrance or Quasi-Encumbrance otherwise permitted pursuant toparagraphs (b), (c), (d), (e), (g), (h) or (i)) removed or discharged withinsix months of that company becoming a member of the Group;

(g)                                     any Encumbrance orQuasi-Encumbrance granted in respect of Project Finance Borrowings over assetsof, or the shares in, a Project Finance Subsidiary;

(h)                                     in respect of Encumbrances orQuasi-Encumbrances over or affecting any asset of any Material Group Company,any Encumbrance or Quasi-Encumbrance securing indebtedness the principal amountof which (when aggregated with the principal amount of any other indebtednesswhich has the benefit of Encumbrance or Quasi-Encumbrance other than anypermitted under paragraphs (a) to (g) above and (i) and (j) below)) does not atany time exceed 12% (twelve percent.) of Consolidated Tangible Net Worth (orits equivalent in another currency) (but adjusted to include the net value ofnew assets acquired since the last date of the latest set of consolidatedannual financial statements of the Group);

(i)                                         any other Encumbrance orQuasi-Encumbrance as agreed by the Agent (acting on the instructions of theMajority Lenders) in writing; or

(j)                                         any Encumbrance orQuasi-Encumbrance granted in respect of Financial Indebtedness incurred inconnection with the Cerro Corona Project over the business or assets of theCerro Corona Subsidiary or over the Ownership Interests in the Cerro CoronaSubsidiary **provided that**theamount of Financial Indebtedness secured by all such Encumbrances orQuasi-Encumbrances permitted by this paragraph (j) does not at any time inaggregate exceed $200,000,000 (or its equivalent). In this paragraph (j) “**Ownership Interests**” means (i) the sharesissued by the Cerro Corona Subsidiary; (ii) any shareholder loans made to theCerro Corona Subsidiary (iii) to the extent required by Peruvian law, theshares in the Holding Company which directly owns the shares issued by theCerro Corona Subsidiary **provided that**suchHolding Company’s sole assets are shares issued by, and any loans made by itto, the Cerro Corona Subsidiary and its sister company, Minera Gold FieldsS.A..

“**Permitted FinancialIndebtedness**” means any Financial Indebtedness:

(a)                                      arising under the FinanceDocuments;

 

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(b)                                     arising under anyenvironmental bond which any member of the Group is required to issue by anyapplicable law;

(c)                                      arising in connection with theCerro Corona Project;

(d)                                     arising under any derivativetransaction entered into in connection with protection against or benefit fromfluctuation in any rate or price but not for speculative purposes;

(e)                                      of the Group existing andavailable on the date of this Agreement (including, of any person that becomesa member of the Group pursuant to the Acquisition, Offer and/or JCITransaction, provided that, such Financial Indebtedness existed at the timesuch person became a member of the Group and was not created in anticipationthereof);

(f)                                        between Group Companies to theextent incurred for the purposes of financing (x) general working capitalrequirements in connection with or arising from the Acquisition and/or the acquisitionby the Borrower of shares in Western Areas Limited (which together with BarrickGold South Africa (Proprietary) Limited own 100 per cent. of the participationinterest in the Barrick Gold-Western Areas Limited Joint Venture) pursuant tothe JCI Transaction and the Offer and (y) the operations and continueddevelopment of the Barrick Gold-Western Areas Limited Joint Venture; or

(g)                                     not falling within paragraphs(a), (b), (c), (d), (e) or (f) above **providedthat**the aggregate amount of all Financial Indebtedness (excluding,for the avoidance of doubt, any Financial Indebtedness incurred by an Obligoror a Project Finance Subsidiary) permitted under this paragraph (g) does not atany time exceed $150,000,000 (or its equivalent).

“**Project FinanceBorrowings**” means:

(a)                                      any indebtedness to finance(or re-finance) a project comprised of the ownership, development,construction, refurbishment, commissioning and/or operation of assets which isincurred by a Project Finance Subsidiary in connection with such project and inrespect of which the recourse of the person(s) making any such finance (orre-finance) available to that Project Finance Subsidiary for the payment,repayment and prepayment of such indebtedness is limited to (i) the ProjectFinance Subsidiary and its assets and/or the shares in that Project FinanceSubsidiary and/or (ii) during the period prior to successful completion of therelevant completion tests applicable to such project guarantees from any one ormore members of the Group; or

(b)                                     any indebtedness the terms andconditions of which have been approved by the Agent and which the Agent hasagreed in writing (acting on the instructions of the Majority Lenders) to treatas a “Project Finance Borrowing” for the purposes of this Agreement.

 

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“**Project Finance Subsidiary**” means a singlepurpose company (excluding the Obligors) whose sole business is a projectcomprised of the ownership, development, construction, refurbishment,commissioning and/or operation of an asset which has incurred Project FinanceBorrowings.

“**Quotation Day**” means, in the case of a determination ofLIBOR, the date on which quotations would customarily be provided by leadingbanks in the London Interbank Market for deposits or amounts in dollars fordelivery on the first day of such period or on any other relevant date.

“**Reference Banks**” means, the principal London offices ofCitibank, N.A. London Branch and JPMorgan Chase Bank, N.A. and/or, at any timeafter either Original Lender has transferred all or any part of its Commitment,such other banks as may be appointed by the Agent in consultation with the Parent.

“**Relevant Interbank Market**” means the London interbankmarket.

“**Repeating Representations**” means each of the representationsset out in Clause 18.1 (*Status*), toClause 18.23 (*No Material Adverse Effect*)other than Clause 18.3 (*Binding Obligations*),Clause 18.6 (*Governing law and enforcement*),Clause 18.7 (*Deduction of Tax*),Clause 18.8 (*No filing or stamp taxes*),paragraphs (a) and (b) of Clause 18.10 (*Nomisleading information*), Clause 18.13 (*No proceedings pending or threatened*), and Clause 18.22 (*No undisclosed unfunded liabilities*).

“**Resignation Letter**” means a lettersubstantially in the form set out in Schedule 7 (*Form of Resignation Letter*).

“**Screen Rate**” means the British Bankers’ Association InterestSettlement Rate for dollars for the relevant period, displayed on theappropriate page of the Telerate screen. If the agreed page is replaced orservice ceases to be available, the Agent may specify another page or servicedisplaying the appropriate rate after consultation with the Parent and the Lenders.

“**Selection Notice**” means a notice substantially in the formset out in Part II of Schedule 3 (*Requests*) givenin accordance with Clause 9 (*Interest Periods*).

“**Share Purchase Agreement**” means the sharepurchase agreement dated 11 September 2006, among PDG Aureate Limited, BarrickGold Corporation and the Parent.

“**Specified Time**” means a time determined in accordance withSchedule 9 (*Timetable*).

“**Subsidiary**”means, in relation to any companyor corporation, a company orcorporation:

(a)                                      which is controlled, directlyor indirectly, by the first mentioned companyor corporation;

(b)                                     more than half the issuedshare capital of which is beneficially owned, directly or indirectly by thefirst mentioned company orcorporation; or

 

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(c)                                      which is a Subsidiary ofanother Subsidiary of the first mentioned company or corporation,

and forthis purpose, a company orcorporation shall be treated as being controlled by another if that other company or corporation is able todirect its affairs and/or to control the composition of its board of directorsor equivalent body.

“**Tax**” means any tax, levy, impost, duty or other charge orwithholding of a similar nature (including, without limitation, any penalty orinterest payable in connection with any failure to pay or any delay in payingany of the same).

“**Tax Credit**” means a credit against, reliefor remission for, or repayment of any Tax.

“**Tax Deduction**” means a deduction orwithholding for or on account of Tax from a payment under a Finance Document.

“**Tax Payment**” means either the increase in apayment made by an Obligor to a Finance Party under Clause 12.1 (*Tax gross-up*) or a payment under Clause12.2 (*Tax indemnity*).

“**Termination Date**” means the date which is the earlier of:

(a)                                      the date falling three hundredand sixty four days (364) after the date of this Agreement; and

(b)                                     30 November 2007.

“**Total Commitments**” means the aggregate of the Commitmentsbeing $1,800,000,000 at the date of this Agreement.

“**Transfer Certificate**” means a certificate substantially inthe form set out in Schedule 5 (*Form of TransferCertificate*) or any other form agreed between the Agent and the Parent.

“**Transfer Date**”means, in relation to a transfer, the later of:

(a)                                      the proposed Transfer Datespecified in the Transfer Certificate; and

(b)                                     the date on which the Agentexecutes the Transfer Certificate.

“**Unpaid Sum**” means any sum due and payable but unpaid by anObligor under the Finance Documents.

“**Utilisation**” means a utilisation of the Facility.

“**Utilisation Date**” means the date of a Utilisation, being thedate on which the relevant Loan is to be made.

“**Utilisation Request**” means a notice substantially in theform set out in Part I of Schedule 3 (*Requests*).

“**VAT**” means value added tax as provided for in the ValueAdded Tax Act 1994 and any other tax of a similar nature.

 

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## **1.2**                           Construction

### (a)                                      Unless a contrary indicationappears any reference in this Agreement to:

#### (i)                        the “**Agent**”,the “**Arranger**”, any “**FinanceParty**”, any “**Lender**”, any “**Obligor**” or any “**Party**” shall beconstrued so as to include its successors in title, permitted assigns andpermitted transferees;

#### (ii)                     “**arm’slength**” means terms that are fair and reasonable to the counterpartyof a transaction and no more or less favourable to the other party to therelevant transaction as could reasonably be expected to be obtained in acomparable arm’s length transaction with a person that is not the ultimateHolding Company of such counterparty or an entity of which such counterparty orits ultimate Holding Company has direct or indirect control, or owns directlyor indirectly more than 20% (twenty percent) of the share capital or similarrights of ownership;

#### (iii)                  “**assets**”includes present and future properties, revenues and rights of everydescription;

#### (iv)                 “**audited**”means, in respect of any financial statement, those financial statements asaudited by the Auditors;

#### (v)                    “**authorisations**”mean any authorisation, consent, registration, filing agreement, notarisation,certificate, licence, approval, resolution, permit and/or authority or anyexemption from any of the aforesaid, by, with or from any authority (including,without limitation, any approvals required from the South African Reserve Bankin relation to any Finance Document or any transaction contemplated under anyFinance Document);

#### (vi)                 a “**Finance Document**”or any other agreement or instrument is a reference to that Finance Document orother agreement or instrument as amended, novated, supplemented, extended,replaced or restated;

#### (vii)              “**indebtedness**”shall be construed so as to include any obligation (whether incurred asprincipal or as surety) for the payment or repayment of money, whether presentor future, actual or contingent;

#### (viii)           “**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 ornot having the force of law but, if not having the force of law, is generallycomplied with by the persons to whom it is addressed or applied) of anygovernment, supranational, local government, statutory or regulatory orself-regulatory or similar body or authority or court and the common law, asamended, replaced, re-enacted, restated or reinterpreted from time to time;

 

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#### (ix)                   a “**person**” shallbe construed as a reference to any person, firm, company, corporation,government, state or agency of a state or any association, trust or partnership(whether or not having separate legal personality) or two or more of theforegoing;

#### (x)                      a “**regulation**”includes any regulation, rule, official directive, request or guideline(whether or not having the force of law but complied with generally) of anygovernmental, intergovernmental or supranational body, agency, department orregulatory, self-regulatory or other authority or organisation;

#### (xi)                   a provision of law is a reference to thatprovision as amended or re-enacted; and

#### (xii)                a time of day is a reference to Londontime.

### (b)                                     Section, Clause and Scheduleheadings are for ease of reference only.

### (c)                                      Unless a contrary indicationappears, a term used in any other Finance Document or in any notice given underor in connection with any Finance Document has the same meaning in that FinanceDocument or notice as in this Agreement.

### (d)                                     A Default (other than an Eventof Default) is “**continuing**” if ithas not been remedied or waived and an Event of Default is “**continuing**” if it has not been remedied orwaived.

## **1.3**                           Currency Symbols andDefinitions

“**$**” and “**dollars**” denotelawful currency of the United States of America.

## **1.4**                           Third party rights

### (a)                                      Unless expressly provided tothe contrary in a Finance Document, a person who is not a Party has no rightunder the Contracts (Rights of Third Parties) Act 1999 (the “**Third Parties Act**”) to enforce or to enjoy the benefit ofany term of this Agreement.

### (b)                                     Notwithstanding any term ofany Finance Document, the consent of any person who is not a Party is notrequired to rescind or vary this Agreement at any time.

 

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**SECTION2THE FACILITY**

# **2.**                                 THE FACILITY

## **2.1**                           The Facility

Subjectto the terms of this Agreement, the Lenders make available to the Borrower abridge loan facility in an aggregate amount equal to the Total Commitments.

## **2.2**                           Finance Parties’ rights andobligations

### (a)                                      The obligations of eachFinance Party under the Finance Documents are several. Failure by a FinanceParty to perform its obligations under the Finance Documents does not affectthe obligations of any other Party under the Finance Documents. No FinanceParty is responsible for the obligations of any other Finance Party under theFinance Documents.

### (b)                                     The rights of each FinanceParty under or in connection with the Finance Documents are separate andindependent rights and any debt arising under the Finance Documents to aFinance Party from an Obligor shall be a separate and independent debt.

### (c)                                      A Finance Party may, except asotherwise stated in the Finance Documents, separately enforce its rights underthe Finance Documents.

# **3.**                                 PURPOSE

## **3.1**                           Purpose

### (a)                                      The Original Borrower shallapply all amounts borrowed by it under the Facility towards financing (i)amounts to be paid for or in connection with the Acquisition and (ii) generalworking capital requirements in connection with or arising from the Acquisitionand/or the acquisition by the Borrower of shares in Western Areas Limited(which together with Barrick Gold South Africa (Proprietary) Limited own 100per cent. of the participation interest in the Barrick Gold-Western AreasLimited Joint Venture) pursuant to the JCI Transaction and the Offer.

### (b)                                     Each Additional Borrower shallapply all amounts borrowed by it under the Facility towards the purposesspecified in the Accession Letter to which it is a party as AdditionalBorrower.

## **3.2**                           Monitoring

NoFinance Party is bound to monitor or verify the application of any amountborrowed pursuant to this Agreement.

 

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# **4.**                                 CONDITIONS OF UTILISATION

## **4.1**                           Initial conditions precedent

NoBorrower may deliver a Utilisation Request unless the Agent has received all ofthe documents and other evidence listed in Part I of Schedule 2 (*Conditions Precedent to Initial Utilisation*) in form andsubstance satisfactory to the Agent. The Agent shall notify the Parent and the Lenders promptly uponbeing so satisfied.

## **4.2**                           Further conditions precedent

The Lenders will only be obliged to comply withClause 5.4 (*Lenders’ participation*) if on thedate of the Utilisation Request and on the proposed Utilisation Date:

### (a)                                      no Default is continuing orwould result from the proposed Loan; and

### (b)                                     the representations in Clause18 (*Representations*) to be madeby each Obligor are true in all material respects.

## **4.3**                           Maximum number of Loans

ABorrower may not deliver a Utilisation Request if as a result of the proposedUtilisation more than seven Loans would be outstanding.

 

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**SECTION3UTILISATION**

# **5.**                                 UTILISATION

## **5.1**                           Delivery of a UtilisationRequest

ABorrower may utilise the Facility by delivery to the Agent of a duly completedUtilisation Request not later than the Specified Time.

## **5.2**                           Completion of a UtilisationRequest

### (a)                                      Each Utilisation Request isirrevocable and will not be regarded as having been duly completed unless:

#### (i)                        the proposed Utilisation Dateis a Business Day within the Availability Period;

#### (ii)                     the currency and amount of the Utilisationcomply with Clause 5.3 (*Currency and amount*);and

#### (iii)                  the proposed Interest Period complies withClause 9 (*Interest Periods*).

### (b)                                     Only one Loan may be requestedin each Utilisation Request.

## **5.3**                           Currency and amount

### (a)                                      The currency specified in aUtilisation Request must be dollars.

### (b)                                     The amount of the proposedLoan must be an amount which is not more than the Available Facility and whichis a minimum of US$100,000,000 or, if less, the Available Facility.

## **5.4**                           Lenders’ participation

### (a)                                      If the conditions set out inthis Agreement have been met, each Lender shall make its participation in eachLoan available by the Utilisation Date through its Facility Office.

### (b)                                     The amount of each Lender’sparticipation in each Loan will be equal to the proportion borne by itsAvailable Commitment to the Available Facility immediately prior to making theLoan.

 

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**SECTION4REPAYMENT, PREPAYMENT AND CANCELLATION**

# **6.**                                 REPAYMENT

## **6.1**                           Repayment of Loans

### (a)                                      Each Borrower shall repay theLoans made to it which are outstanding on the Termination Date, in full on theTermination Date.

### (b)                                     No Borrower may reborrow anypart of the Facility which is repaid.

# **7.**                                 PREPAYMENT AND CANCELLATION

## **7.1**                           Illegality

If it becomes unlawful in any applicable jurisdictionfor a Lender to perform any of its obligations as contemplated by thisAgreement or to fund or maintain its participation in any Loan:

### (a)                                      that Lender shall promptlynotify the Agent upon becoming aware of that event;

### (b)                                     upon the Agent notifying the Parent, the Commitment of that Lenderwill be immediately cancelled; and

### (c)                                      each Borrower shall repay thatLender’s participation in the Loans made to that Borrower on the last day ofthe Interest Period for each Loan occurring after the Agent has notified the Parent or, if earlier, the datespecified by the Lender in the notice delivered to the Agent (being no earlierthan the last day of any applicable grace period permitted by law).

## **7.2**                           Change of control

### (a)                                      If any person or group ofpersons acting in concert gains control of the Parent:

#### (i)                        the Parent shall promptlynotify the Agent upon becoming aware of that event;

#### (ii)                     a Lender shall not be obliged to fund aUtilisation and the Agent and the Parent shall consult about the change ofcontrol;

#### (iii)                  if the Majority Lenders so require after aperiod of 45 (forty-five) days from receipt of the notice referred to in (i)above, the Agent shall by notice to the Parent, (such notice to be delivered nolater than 60 (sixty) days from receipt of the notice referred to in (i)above), cancel the Total Commitments and declare all outstanding Loans,together with accrued interest and all other amounts accrued under the FinanceDocuments immediately due and payable, whereupon the Total Commitments will becancelled and all such outstanding amounts will become immediately due andpayable;

#### (iv)                 if the Agent does not serve the noticereferred to in paragraph (iii) above, a Lender may by notice to the Agent whichshall be delivered not earlier than

 

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#### 45 (forty-five) days nor later than 60 (sixty) days from receipt of the noticereferred to in (i) above, whereupon the Agent shall by notice to the Parent(such notice to be delivered promptly after receipt of such Lender notification),cancel the Commitment of that Lender and declare the participation of thatLender in all outstanding Loans, together with accrued interest thereon and allother amounts due to such Lender under the Finance Documents immediately dueand payable, whereupon the Commitment of that Lender will be cancelled and allsuch outstanding amounts will become immediately due and payable.

### (b)                                     For the purpose of paragraph(a) above “**control**” means:

#### (i)                        the power (whether by way ofownership of shares, proxy, contract, agency or otherwise) to:

##### (A)                cast, or control the casting of, more thanone-half of the maximum number of votes that might be cast at a general meetingof the Parent; or

##### (B)                  appoint or remove all, or the majority, ofthe directors or other equivalent officers of the Parent; or

##### (C)                  give directions with respect to theoperating and financial policies of the Parent which the directors or otherequivalent officers of the Parent are obliged to comply with; or

#### (ii)                     the holding of more than one-half of theissued share capital of the Parent (excluding any part of that issued sharecapital that carries no right to participate beyond a specified amount in adistribution of either profits or capital).

### (c)                                      For the purpose of paragraph(a) above “**acting in concert**” means,a group of persons who, pursuant to an agreement or understanding (whetherformal or informal), actively co-operate, through the acquisition by any ofthem, either directly or indirectly, of shares in the Parent, to obtain orconsolidate control of the Parent.

## **7.3**                           Debt and Capital MarketIssuances

### (a)                                      For the purposes of thisClause 7.3, “**Excluded Equity**”means any equity raised for the purposes of the Parent’s share incentiveschemes.

### (b)                                     The Parent shall procure thatall proceeds of:

#### (i)                        any domestic or internationaldebt capital markets issue or loan markets financing by the Parent (excluding,for the avoidance of doubt, any such issue or financing existing and availableprior to the date of this Agreement); or

#### (ii)                     any new equity issue by the Parent, otherthan Excluded Equity,

areapplied promptly in prepayment of the Loans.

 

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## **7.4**                           Voluntary cancellation

The Parentmay, if it gives the Agent not less than 10 days’ (or such shorter period asthe Majority Lenders may agree) prior notice, cancel the whole or any part(being a minimum amount of $25,000,000) of the Available Facility. Anycancellation under this Clause 7.4 shall reduce the Commitments of theLenders rateably.

## **7.5**                           Voluntary prepayment of Loans

### ABorrower may, if it gives the Agent not less than 10 days’ (or such shorterperiod as the Majority Lenders may agree) prior notice, prepay the whole or anypart of any Loan (but, if in part, being a minimum amount of $100,000,000 andintegral multiples of $25,000,000 in excess thereof); provided that, a Loan maybe prepaid at the end of the Interest Period therefor.

## **7.6**                           Right of repayment andcancellation in relation to a single Lender

### (a)                                      If:

#### (i)                        any sum payable to any Lenderby an Obligor is required to be increased under paragraph (c) ofClause 12.1 (*Tax gross-up*); or

#### (ii)                     any Lender claims indemnification from the Parent under Clause 12.2 (*Tax indemnity*) or Clause 13.1 (*Increasedcosts*); or

#### (iii)                  any Lender notifies the Agent of itsAdditional Cost Rate under paragraph 3 of Schedule 4 (*Mandatory Cost Formulae*),

the Parent may, whilst (in the case ofparagraphs (i) and (ii) above) the circumstance giving rise to therequirement or indemnification continues or (in the case ofparagraph (iii) above) that Additional Cost Rate is greater than zero,give the Agent notice of cancellation of the Commitment of that Lender and itsintention to procure the repayment of that Lender’s participation in the Loans.

### (b)                                     On receipt of a noticereferred to in paragraph (a) above, the Commitment of that Lender shallimmediately be reduced to zero whereupon the Total Commitments shall be reducedby the same amount.

### (c)                                      On the last day of eachInterest Period which ends after the Parenthas given notice under paragraph (a) above (or, if earlier, the datespecified by the Parent in thatnotice), each Borrower to which a Loan is outstanding shall repay that Lender’sparticipation in that Loan.

## **7.7**                           Restrictions

### (a)                                      Any notice of cancellation orprepayment given by any Party under this Clause 7 shall be irrevocableand, unless a contrary indication appears in this Agreement, shall specify thedate or dates upon which the relevant cancellation or prepayment is to be madeand the amount of that cancellation or prepayment.

 

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### (b)                                     Any prepayment under thisAgreement shall be made together with accrued interest on the amount prepaidand, subject to any Break Costs, without premium or penalty.

### (c)                                      No Borrower may reborrow anypart of the Facility which is prepaid.

### (d)                                     The Borrowers shall not repayor prepay all or any part of the Loans or cancel all or any part of theCommitments except at the times and in the manner expressly provided for inthis Agreement.

### (e)                                      No amount of the Total Commitmentscancelled under this Agreement may be subsequently reinstated.

### (f)                                        At the end of the AvailabilityPeriod, the Total Commitments shall be reduced to zero.

### (g)                                     If the Agent receives a noticeunder this Clause 7 it shall promptly forward a copy of that notice toeither the Parent or theaffected Lender, as appropriate.

 

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**SECTION5COSTS OF UTILISATION**

# **8.**                                 INTEREST

## **8.1**                           Calculation of interest

The rate of interest on each Loan for each InterestPeriod is the percentage rate per annum which is the aggregate of theapplicable:

### (a)                                      Margin;

### (b)                                     LIBOR; and

### (c)                                      Mandatory Cost, if any.

## **8.2**                           Payment of interest

EachBorrower to which a Loan has been made shall pay accrued interest on that Loanon the last day of each Interest Period.

## **8.3**                           Default interest

### (a)                                      If an Obligor fails to pay anyamount payable by it under a Finance Document on its due date, interest shallaccrue on the overdue amount from the due date up to the date of actual payment(both before and after judgment) at a rate which, subject to paragraph (b)below, is one per cent higher than the rate which would have been payable ifthe overdue amount had, during the period of non-payment, constituted a Loan inthe currency of the overdue amount for successive Interest Periods, each of aduration selected by the Agent (acting reasonably). Any interest accruing underthis Clause 8.3 shall be immediately payable by the Obligor on demand bythe Agent.

### (b)                                     If any overdue amount consistsof all or part of a Loan which became due on a day which was not the last dayof an Interest Period relating to that Loan:

#### (i)                        the first Interest Period forthat overdue amount shall have a duration equal to the unexpired portion of thecurrent Interest Period relating to that Loan; and

#### (ii)                     the rate of interest applying to theoverdue amount during that first Interest Period shall be one per cent. higherthan the rate which would have applied if the overdue amount had not becomedue.

### (c)                                      Default interest (if unpaid)arising on an overdue amount will be compounded with the overdue amount at theend of each Interest Period applicable to that overdue amount but will remainimmediately due and payable.

## **8.4**                           Notification of rates ofinterest

TheAgent shall promptly notify the Lenders and the relevant Borrower of thedetermination of a rate of interest under this Agreement.

 

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# **9.**                                 INTEREST PERIODS

## **9.1**                           Selection of Interest Periods

### (a)                                      A Borrower (or the Parent on behalf of a Borrower) mayselect an Interest Period for a Loan in the Utilisation Request for that Loanor (if the Loan has already been borrowed) in a Selection Notice.

### (b)                                     Each Selection Notice for aLoan is irrevocable and must be delivered to the Agent by a Borrower (or the Parent on behalf of a Borrower) towhich that Loan was made not later than the Specified Time.

### (c)                                      If a Borrower (or the Parent on behalf of a Borrower) failsto deliver a Selection Notice to the Agent in accordance withparagraph (b) above, the relevant Interest Period will be one Month.

### (d)                                     Subject to this Clause 9,up to and including the date falling six Months after the date of thisAgreement, a Borrower (or the Parent onbehalf of a Borrower) may select an Interest Period of one or threeMonths or any other period agreed between the Parent and the Agent (acting on the instructions of all theLenders). Thereafter, each Interest Period will be one Month.

### (e)                                      An Interest Period for a Loanshall not extend beyond the Termination Date.

### (f)                                        Each Interest Period for aLoan shall start on the Utilisation Date or (if already made) on the last dayof its preceding Interest Period.

## **9.2**                           Non-Business Days

If anInterest Period would otherwise end on a day which is not a Business Day, thatInterest Period will instead end on the next Business Day in that calendarmonth (if there is one) or the preceding Business Day (if there is not).

## **9.3**                           Consolidation and division ofLoans

### (a)                                      Subject to paragraph (b)below, if two or more Interest Periods end on the same date, the Loans relatingthereto will, unless that Borrower (or the Parent on its behalf) specifies tothe contrary in the Selection Notice for the next Interest Period, beconsolidated into, and treated as, a single Loan on the last day of theInterest Period.

### (b)                                     Subject to Clause 4.3 (*Maximum number of Loans*), if a Borrower (or the Parent on its behalf) requests in aSelection Notice that a Loan be divided into two or more Loans, that Loan will,on the last day of its Interest Period, be so divided into the amounts specifiedin that Selection Notice, being an aggregate amount equal to the amount of theLoan immediately before its division.

 

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# **10.**                           CHANGES TO THE CALCULATION OF INTEREST

## **10.1**                     Absence of quotations

Subjectto Clause 10.2 (*Market disruption*),if LIBOR is to be determined by reference to the Reference Banks but aReference Bank does not supply a quotation by the Specified Time on theQuotation Day, the applicable LIBOR shall be determined on the basis of thequotations of the remaining Reference Banks.

## **10.2**                     Market disruption

### (a)                                      If a Market Disruption Eventoccurs in relation to a Loan for any Interest Period, then the rate of intereston each Lender’s share of that Loan for the Interest Period shall be the percentagerate per annum which is the sum of:

#### (i)                        the Margin;

#### (ii)                     the rate notified to the Agent by thatLender as soon as practicable and in any event not later than 5 (five) BusinessDays before interest is due to be paid in respect of that Interest Period (**provided that** if such Lender is unable tonotify the Agent of such rate not later than 5 (five) Business Days beforeinterest is due to be paid in respect of that Interest Period, it shall do sobefore interest is due to be paid in respect of that Interest Period), to bethat which expresses as a percentage rate per annum the cost to that Lender offunding its participation in that Loan from whatever source it may reasonablyselect; and

#### (iii)                  the Mandatory Cost, if any, applicable tothat Lender’s participation in the Loan.

### (b)                                     In this Agreement “**Market Disruption Event**” means:

#### (i)                        at or about noon on theQuotation Day for the relevant Interest Period the Screen Rate is not availableand none or only one of the Reference Banks supplies a rate to the Agent todetermine LIBOR for dollars and for the relevant Interest Period; or

#### (ii)                     before close of business in London on theQuotation Day for the relevant Interest Period, the Agent receivesnotifications from a Lender or Lenders (whose participations in a Loan exceed35 per cent. of that Loan) that the cost to it of obtaining matching depositsin the Relevant Interbank Market would be in excess of LIBOR.

## **10.3**                     Alternative basis of interestor funding

### (a)                                      If a Market Disruption Eventoccurs and the Agent or the Parentso requires, the Agent and the Parentshall enter into negotiations (for a period of not more than thirty days) witha view to agreeing a substitute basis for determining the rate of interest.

### (b)                                     Any alternative basis agreedpursuant to paragraph (a) above shall, with the prior consent of all theLenders and the Parent, bebinding on all Parties.

 

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## **10.4**                     Break Costs

### (a)                                      Each Borrower shall, withinthree Business Days of demand by a Finance Party, pay to that Finance Party itsBreak Costs attributable to all or any part of a Loan or Unpaid Sum being paidby that Borrower on a day other than the last day of an Interest Period forthat Loan or Unpaid Sum.

### (b)                                     Each Lender shall, as soon asreasonably practicable after a demand by the Agent, provide a certificateconfirming the amount of its Break Costs for any Interest Period in which theyaccrue.

# **11.**                           FEES

## **11.1**                     Commitment fee

### (a)                                      The Borrower shall pay to theAgent (for the account of each Lender) a fee in dollars on that Lender’sAvailable Commitment for the Availability Period. Such fee shall be computed atthe following rates during the Availability Period:

(i)                        0.15 per cent. per annum onthat Lender’s Available Commitment from and including the date of thisAgreement, to but excluding the date falling three Months after the date ofthis Agreement;

(iv)                 0.20 per cent. per annum on that Lender’sAvailable Commitment from and including the date falling three Months after thedate of this Agreement to but excluding the date falling six Months after thedate of this Agreement; and

(v)                    0.25 per cent. per annum on that Lender’sAvailable Commitment from and including the date falling six months after thedate of this Agreement to the Termination Date.

### (b)                                     The accrued commitment fee ispayable on the last day of each successive period of three Months which endsduring the Availability Period, on the last day of the Availability Period, onthe Termination Date and, if cancelled in full, on the cancelled amount of therelevant Lender’s Commitment at the time the cancellation is effective.

## **11.2**                     Arrangement fee

The Borrower shall pay to the Agent (forthe account of the Arranger) an arrangement fee in the amount and at the timesagreed in a Fee Letter.

## **11.3**                     Agency fee

TheBorrower or the Parent shall payto the Agent (for its own account) an agency fee in the amount and at the timesagreed in a Fee Letter.

 

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**SECTION6ADDITIONAL PAYMENT OBLIGATIONS**

# **12.**                           TAX GROSS UP AND INDEMNITIES

## **12.1**                     Tax gross-up

### (a)                                      Each Obligor shall make allpayments to be made by it without any Tax Deduction, unless a Tax Deduction isrequired by law.

### (b)                                     The Parent shall promptly upon becoming aware that an Obligor mustmake a Tax Deduction (or that there is any change in the rate or the basis of aTax Deduction) notify the Agent accordingly. Similarly, a Lender shall notifythe Agent on becoming so aware in respect of a payment payable to that Lender. Ifthe Agent receives such notification from a Lender it shall notify the Parent and, if applicable, thatObligor.

### (c)                                      If a Tax Deduction is requiredby law to be made by an Obligor, the amount of the payment due from thatObligor 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 TaxDeduction had been required.

### (d)                                     If an Obligor is required tomake a Tax Deduction, that Obligor shall make that Tax Deduction and anypayment required in connection with that Tax Deduction within the time allowedand in the minimum amount required by law.

### (e)                                      Within thirty days of makingeither a Tax Deduction or any payment required in connection with that TaxDeduction, the Obligor making that Tax Deduction shall deliver to the Agent forthe Finance Party entitled to the payment evidence reasonably satisfactory tothat Finance Party that the Tax Deduction has been made or (as applicable) anyappropriate payment paid to the relevant taxing authority.

## **12.2**                     Tax indemnity

### (a)                                      The Parent shall (within three Business Days of demand by the Agent)pay to a Finance Party an amount equal to the loss, liability or cost whichthat Finance Party determines (in its absolute discretion) will be or has been(directly or indirectly) suffered for or on account of Tax by that FinanceParty in respect of a Finance Document.

### (b)                                     Paragraph (a) above shallnot apply:

#### (i)                        with respect to any Taxassessed on a Finance Party:

##### (A)                under the law of the jurisdiction in whichthat Finance Party is incorporated or, if different, the jurisdiction (orjurisdictions) in which that Finance Party is treated as resident for taxpurposes; or

 

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##### (B)                  under the law of the jurisdiction in whichthat Finance Party’s Facility Office is located in respect of amounts receivedor receivable in that jurisdiction,

if thatTax is imposed on or calculated by reference to the net income received orreceivable (but not any sum deemed to be received or receivable) by thatFinance Party; or

#### (ii)                     to the extent a loss, liability or cost iscompensated for by an increased payment under Clause 12.1 (*Tax gross-up*).

### (c)                                      A Finance Party making, orintending to make a claim under paragraph (a) above shall promptly notifythe Agent of the event which will give, or has given, rise to the claim,following which the Agent shall notify the Parent.

### (d)                                     A Finance Party shall, onreceiving a payment from an Obligor under this Clause 12.2, notify theAgent.

## **12.3**                     Tax Credit

If anObligor makes a Tax Payment and the relevant Finance Party determines (in itsabsolute discretion) that:

### (a)                                      a Tax Credit is attributableeither to an increased payment of which that Tax Payment forms part, or to thatTax Payment; and

### (b)                                     that Finance Party hasobtained, utilised and retained that Tax Credit,

theFinance Party shall pay an amount to such Obligor which that Finance Partydetermines (in its absolute discretion) will leave it (after that payment) inthe same after-Tax position as it would have been in had the Tax Payment notbeen required to be made by such Obligor.

## **12.4**                     Stamp taxes

The Parent shall pay and, within threeBusiness Days of demand, indemnify each Finance Party against any cost, loss orliability that Finance Party incurs in relation to all stamp duty, registrationand other similar Taxes payable in respect of any Finance Document.

## **12.5**                     Value added tax

### (a)                                      All amounts set out, orexpressed to be payable under a Finance Document by any Party to a FinanceParty which (in whole or in part) constitute the consideration for VAT purposesshall be deemed to be exclusive of any VAT which is chargeable on such supply,and accordingly, subject to paragraph (c) below, if VAT is chargeable onany 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 timeas paying the consideration) an amount equal to the amount of the VAT (and suchFinance Party shall promptly provide an appropriate VAT invoice to such Party).

### (b)                                     If VAT is chargeable on anysupply made by any Finance Party (the “**Supplier**”)to any other Finance Party (the “**Recipient**”)under a Finance Document, and any

 

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### Party (the “**Relevant Party**”) isrequired by the terms of any Finance Document to pay an amount equal to theconsideration for such supply to the Supplier (rather than being required toreimburse the Recipient in respect of that consideration), such Party shallalso pay to the Supplier (in addition to and at the same time as paying suchamount) an amount equal to the amount of such VAT. The Recipient will promptlypay to the Relevant Party an amount equal to any credit or repayment from therelevant tax authority which it reasonably determines relates to the VATchargeable on that supply.

### (c)                                      Where a Finance Documentrequires any Party to reimburse a Finance Party for any costs or expenses, thatParty shall also at the same time pay and indemnify the Finance Party againstall VAT incurred by the Finance Party in respect of the costs or expenses tothe extent that the Finance Party reasonably determines that neither it nor anyother member of any group of which it is a member for VAT purposes is entitledto credit or repayment from the relevant tax authority in respect of the VAT.

# **13.**                           INCREASED COSTS

## **13.1**                     Increased costs

### (a)                                      Subject to Clause 13.3 (*Exceptions*) the Parentshall, within five Business Days of a demand by the Agent, pay for the accountof a Finance Party the amount of any Increased Costs incurred by that Finance Partyor any of its Affiliates as a result of (i) the introduction of or any changein (or in the interpretation, administration or application of) any law orregulation or (ii) compliance with any law or regulation made after the date ofthis Agreement.

### (b)                                     In this Agreement “**Increased Costs**” means:

#### (i)                        a reduction in the rate ofreturn from the Facility or on a Finance Party’s (or its Affiliate’s) overallcapital;

#### (ii)                     an additional or increased cost; or

#### (iii)                  a reduction of any amount due and payableunder any Finance Document,

whichis incurred or suffered by a Finance Party or any of its Affiliates to theextent that it is attributable to that Finance Party having entered into itsCommitment or funding or performing its obligations under any Finance Document.

## **13.2**                     Increased cost claims

### (a)                                      A Finance Party intending tomake a claim pursuant to Clause 13.1 (*Increased costs*)shall notify the Agent of the event giving rise to the claim, following whichthe Agent shall promptly notify the Parent.

### (b)                                     Each Finance Party shall, assoon as practicable after a demand by the Agent, provide a certificateconfirming the amount of its Increased Costs.

 

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## **13.3**                     Exceptions

Clause 13.1 (*Increased costs*)does not apply to the extent any Increased Cost is:

### (a)                                      attributable to a TaxDeduction required by law to be made by an Obligor;

### (b)                                     compensated for byClause 12.2 (*Tax indemnity*)**(or would have been compensated for under Clause 12.2(*Tax indemnity*) but was not so compensatedsolely because any of the exclusions in paragraph (b) of Clause 12.2(*Tax indemnity*) applied);

### (c)                                      compensated for by the paymentof the Mandatory Cost; or

### (d)                                     attributable to the wilfulbreach by the relevant Finance Party or its Affiliates of any law orregulation.

# **14.**                           OTHER INDEMNITIES

## **14.1**                     Currency indemnity

### (a)                                      If any sum due from an Obligorunder the Finance Documents (a “**Sum**”), or anyorder, judgment or award given or made in relation to a Sum, has to beconverted from the currency (the “**First Currency**”)in which that Sum is payable into another currency (the “**SecondCurrency**”) for the purpose of:

#### (i)                        making or filing a claim orproof against that Obligor;

#### (ii)                     obtaining or enforcing an order, judgmentor award in relation to any litigation or arbitration proceedings,

thatObligor shall as an independent obligation, within five Business Days ofdemand, 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 anydiscrepancy between (A) the rate of exchange used to convert that Sum from theFirst Currency into the Second Currency and (B) the rate or rates of exchangeavailable to that person at the time of its receipt of that Sum.

### (b)                                     Each Obligor waives any rightit may have in any jurisdiction to pay any amount under the Finance Documentsin a currency or currency unit other than that in which it is expressed to bepayable.

## **14.2**                     Other indemnities

The Parentshall (or shall procure that an Obligor will), within five Business Days ofdemand, indemnify each Finance Party against any cost, loss or liabilityincurred by that Finance Party as a result of:

### (a)                                      the occurrence of any Event ofDefault;

### (b)                                     a failure by an Obligor to payany amount due under a Finance Document on its due date, including withoutlimitation, any cost, loss or liability arising as a result of Clause 27 (*Sharing Among the Finance Parties*);

 

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### (c)                                      funding, or makingarrangements to fund, its participation in a Loan requested by a Borrower in aUtilisation Request but not made by reason of the operation of any one or moreof the provisions of this Agreement (other than by reason of default ornegligence by that Finance Party alone); or

### (d)                                     a Loan (or part of a Loan) notbeing prepaid in accordance with a notice of prepayment given by a Borrower orthe Parent.

## **14.3**                     Indemnity to the Agent

The Parentshall promptly indemnify the Agent against any cost, loss or liability incurredby the Agent (acting reasonably) as a result of:

### (a)                                      investigating any event whichit reasonably believes is a Default; or

### (b)                                     acting or relying on anynotice, request or instruction which it reasonably believes to be genuine,correct and appropriately authorised.

# **15.**                           MITIGATION BY THE LENDERS

## **15.1**                     Mitigation

### (a)                                      Each Finance Party shall, inconsultation with the Parent,take all reasonable steps to mitigate any circumstances which arise and whichwould result in any amount becoming payable under or pursuant to, or cancelledpursuant to, any of Clause 7.1 (*Illegality*),Clause 12 (*Tax Gross-up and Indemnities*),Clause 13 (*Increased Costs*) orparagraph 3 of Schedule 4 (*Mandatory Cost Formulae*)including (but not limited to) transferring its rights and obligations underthe Finance Documents to another Affiliate or Facility Office.

### (b)                                     Paragraph (a) above doesnot in any way limit the obligations of any Obligor under the FinanceDocuments.

## **15.2**                     Limitation of liability

### (a)                                      The Parent shall indemnify each Finance Party for all costs and expensesreasonably incurred by that Finance Party as a result of steps taken by itunder Clause 15.1 (*Mitigation*).

### (b)                                     A Finance Party is not obligedto take any steps under Clause 15.1 (*Mitigation*) if,in the opinion of that Finance Party (acting reasonably), to do so might beprejudicial to it.

 

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# **16.**                           COSTS AND EXPENSES

## **16.1**                     Transaction expenses

The Parentshall, promptly within three Business Days of demand, pay the Agent and theArranger the amount of all costs and expenses (including legal fees but subjectto any agreed cap) reasonably incurred by any of them in connection with thenegotiation, preparation, printing, execution and syndication of:

### (a)                                      this Agreement and any otherdocuments referred to in this Agreement; and

### (b)                                     any other Finance Documentsexecuted after the date of this Agreement.

## **16.2**                     Amendment costs

If (a)an Obligor requests an amendment, waiver or consent or (b) an amendment isrequired pursuant to Clause 28.9 (*Change of currency*),the Parent shall, within fiveBusiness Days of demand, reimburse the Agent for the amount of all costs andexpenses (including legal fees) reasonably incurred by the Agent in respondingto, evaluating, negotiating or complying with that request or requirement.

## **16.3**                     Enforcement costs

The Parent shall, within five BusinessDays of demand, pay to each Finance Party the amount of all costs and expenses(including legal fees) incurred by that Finance Party in connection with theenforcement of, or the preservation of any rights under, any Finance Document.

 

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**SECTION7GUARANTEE**

# **17.**                           GUARANTEE AND INDEMNITY

## **17.1**                     Guarantee and indemnity

Each Guarantor irrevocably and unconditionally jointlyand severally:

### (a)                                      guarantees to each FinanceParty punctual performance by each Borrower of all that Borrower’s obligationsunder the Finance Documents;

### (b)                                     undertakes with each FinanceParty that whenever a Borrower does not pay any amount when due under or inconnection with any Finance Document, that Guarantor shall immediately ondemand pay that amount as if it was the principal obligor; and

### (c)                                      indemnifies each Finance Partyimmediately on demand (and shall make the relevant payment within five BusinessDays of such demand) against any cost, loss or liability suffered by thatFinance Party if any obligation guaranteed by it is or becomes unenforceable,invalid or illegal. The amount of the cost, loss or liability shall be equal tothe amount which that Finance Party would otherwise have been entitled torecover.

## **17.2**                     Continuing guarantee

This guarantee is a continuing guarantee and willextend to the ultimate balance of sums payable by any Obligor under the FinanceDocuments, regardless of any intermediate payment or discharge in whole or inpart.

## **17.3**                     Reinstatement

If any payment by an Obligor or any discharge given bya Finance Party (whether in respect of the obligations of any Obligor or anysecurity for those obligations or otherwise) is avoided or reduced as a resultof insolvency or any similar event:

### (a)                                      the liability of each Obligorshall continue as if the payment, discharge, avoidance or reduction had notoccurred; and

### (b)                                     each Finance Party shall beentitled to recover the value or amount of that security or payment from eachObligor, as if the payment, discharge, avoidance or reduction had not occurred.

## **17.4**                     Waiver of defences

The obligations of each Guarantor under thisClause 17 will not be affected by an act, omission, matter or thing which,but for this Clause, would reduce, release or prejudice any of its obligationsunder this Clause 17 (without limitation and whether or not known to it orany Finance Party) including:

 

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### (a)                                      any time, waiver or consentgranted to, or composition with, any Obligor or other person;

### (b)                                     the release of any otherObligor or any other person under the terms of any composition or arrangementwith any creditor of any member of the Group;

### (c)                                      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, any Obligoror other person or any non-presentation or non-observance of any formality orother requirement in respect of any instrument or any failure to realise thefull value of any security;

### (d)                                     any incapacity or lack ofpower, authority or legal personality of or dissolution or change in themembers or status of an Obligor or any other person;

### (e)                                      any amendment, novation,supplement, extension, restatement (however fundamental) or replacement of aFinance Document or any other document or security;

### (f)                                        any unenforceability,illegality or invalidity of any obligation of any person under any FinanceDocument or any other document or security; or

### (g)                                     any insolvency or similarproceedings.

## **17.5**                     Immediate recourse

EachGuarantor waives any right it may have of first requiring any Finance Party (orany trustee or agent on its behalf) to proceed against or enforce any otherrights or security or claim payment from any person before claiming from thatGuarantor under this Clause 17. This waiver applies irrespective of anylaw or any provision of a Finance Document to the contrary.

## **17.6**                     Appropriations

Until all amounts which may be or become payable bythe Obligors under or in connection with the Finance Documents have beenirrevocably paid in full, each Finance Party (or any trustee or agent on itsbehalf) may:

### (a)                                      refrain from applying orenforcing any other moneys, security or rights held or received by that FinanceParty (or any trustee or agent on its behalf) in respect of those amounts, orapply and enforce the same in such manner and order as it sees fit (whetheragainst those amounts or otherwise) and no Guarantor shall be entitled to the benefitof the same; and

### (b)                                     hold in an interest-bearingsuspense account any moneys received from any Guarantor or on account of anyGuarantor’s liability under this Clause 17.

## **17.7**                     Deferral of Guarantors’ rights

Until all amounts which may be or become payable bythe Obligors under or in connection with the Finance Documents have beenirrevocably paid in full and unless the Agent

 

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otherwise directs, no Guarantor will exercise anyrights which it may have by reason of performance by it of its obligationsunder the Finance Documents:

### (a)                                      to be indemnified by anObligor;

### (b)                                     to claim any contribution fromany other guarantor of any Obligor’s obligations under the Finance Documents;and/or

### (c)                                      to take the benefit (in wholeor in part and whether by way of subrogation or otherwise) of any rights of theFinance Parties under the Finance Documents or of any other guarantee orsecurity taken pursuant to, or in connection with, the Finance Documents by anyFinance Party.

## **17.8**                     Additional security

Thisguarantee is in addition to and is not in any way prejudiced by any otherguarantee or security now or subsequently held by any Finance Party.

 

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**SECTION8REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT**

# **18.**                           REPRESENTATIONS

Each Obligor makes the representations and warrantiesset out in this Clause 18 to each Finance Party.

## **18.1**                     Status

### (a)                                      It is a limited liabilitycompany, duly incorporated and validly existing under the law of itsjurisdiction of incorporation.

### (b)                                     It has the power to own itsassets and carry on its business as it is being conducted or is contemplated tobe conducted.

## **18.2**                     Power and authority

It hasthe power to enter into and perform, and has taken all necessary action toauthorise its entry into, and performance of, the Finance Documents to which itis party and the transactions contemplated by those Finance Documents.

## **18.3**                     Binding obligations

Theobligations expressed to be assumed by it in each Finance Document to which itis a party are legal, valid, binding and enforceable obligations.

## **18.4**                     Non-conflict with otherobligations

Theentry into and performance by it of, and the transactions contemplated by, theFinance Documents to which it is a party do not and will not conflict with:

### (a)                                      any law applicable to it;

### (b)                                     its Constitutional Documents;or

### (c)                                      any material agreement orinstrument binding upon it or any of its assets.

## **18.5**                     Validity and admissibility inevidence

Allauthorisations required:

### (a)                                      to enable it lawfully to enterinto, exercise its rights and comply with its obligations under the FinanceDocuments to which it is a party and to ensure that the obligations expressedto be assumed by it thereunder are legal, valid, binding and enforceable; and

### (b)                                     to make the Finance Documentsto which it is a party admissible in evidence in its jurisdiction ofincorporation,

havebeen obtained or effected and are in full force and effect.

 

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## **18.6**                     Governing law and enforcement

Subjectto any general principles of law as at the date of this Agreement set out inany legal opinion delivered pursuant to Clause 4.1 (*Initial conditions precedent*) or Clause 24 (*Changes to the Obligors*):

### (a)                                      the choice of English law asthe governing law of the Finance Documents will be recognised and enforced inits jurisdiction of incorporation; and

### (b)                                     any judgment obtained inEngland in relation to a Finance Document will be recognised and enforced inits jurisdiction of incorporation.

## **18.7**                     Deduction of Tax

It isnot required under the law of its jurisdiction of incorporation to make anydeduction for or on account of Tax from any payment it may make under anyFinance Document.

## **18.8**                     No filing or stamp taxes

Exceptto the extent set out in any legal opinion provided pursuant to Clause 4.1 (*Initial conditions precedent*) or Clause 24(*Changes to the Obligors*) inrelation to it, under the law of its jurisdiction of incorporation it is notnecessary that the Finance Documents be filed, recorded or enrolled with anycourt or other authority in that jurisdiction or that any stamp, registrationor similar tax be paid on or in relation to the Finance Documents or thetransactions contemplated by the Finance Documents.

## **18.9**                     No default

### (a)                                      No Default is continuing ormight reasonably be expected to result from the making of any Utilisation.

### (b)                                     It is not, nor is it likely tobe as a result of entering into and performing its obligations under theFinance Documents, in violation of any law or in breach of or in default underany agreement to which it is a party or which is binding on it or any of itsassets to an extent or in a manner which could reasonably be expected to have aMaterial Adverse Effect.

## **18.10**               No misleading information

### (a)                                      Any factual informationprovided by an Obligor to the Arrangers in connection with the Acquisition, theOffer or the JCI Transaction (the “**Information**”)was true and accurate in all material respects as at the date it was providedor as at the date (if any) at which it is stated.

### (b)                                     Nothing has occurred or beenomitted from the Information and no information has been given or withheld thatresults in the Information being untrue or misleading in any material respect.

### (c)                                      All written informationsupplied by it to the Finance Parties and the Agent was true and accurate inall material respects as at the date it was given and was not misleading in anymaterial respect at such date.

 

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### (d)                                     It has not knowingly withheldany information which, if disclosed, would reasonably be expected materiallyand adversely to affect the decision of the Finance Parties in consideringwhether or not to provide finance to the Borrower.

## **18.11**               Financial statements

### (a)                                      The Original FinancialStatements were prepared in accordance with GAAP.

### (b)                                     The Original FinancialStatements fairly represent the Group’s financial condition and operationsduring the relevant financial year.

## **18.12**               *Pari passu*ranking

Itspayment obligations under the Finance Documents rank at least *pari passu* with the claims of all itsother unsecured and unsubordinated creditors, except for obligationsmandatorily preferred by law applying to companies generally in thejurisdiction of its incorporation.

## **18.13**               No proceedings pending orthreatened

Nolitigation, arbitration or administrative proceedings of or before any court,arbitral body or government agency which, if adversely determined, mightreasonably be expected to have a Material Adverse Effect have (to the best ofits knowledge and belief) been started or threatened against it or any MaterialGroup Company.

## **18.14**               No winding-up

NoMaterial Group Company has taken any corporate action, nor have any other stepsbeen taken or legal proceedings started or (to the best of its knowledge andbelief, after due enquiry) threatened against any Material Group Company, forits winding-up, dissolution, administration or re-organisation or for theenforcement of any Encumbrance over all or any of its revenues or assets or forthe appointment of a receiver, administrator, administrative receiver,conservator, custodian, trustee or similar officer of it or of all or any ofits assets which could reasonably be expected to have a Material AdverseEffect.

## **18.15**               No encumbrances

### (a)                                      No Encumbrance exists over allor any of the assets of any Material Group Company except for PermittedEncumbrances.

### (b)                                     No Encumbrance would arise asa result of the execution of and performance of its rights and obligationsunder the Finance Documents.

## **18.16**               Assets

It andeach Material Group Company has good title to or validly leases or licenses allof the assets necessary and has all consents and/or authorisations necessary tocarry on its business as conducted to the extent that failure to comply with thisClause 18.16 could reasonably be expected to have a Material AdverseEffect.

 

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## **18.17**               Insurance

EachMaterial Group Company maintains insurances on and in relation to its businessand assets against those risks and to the extent as is usual for companies inthe jurisdiction in which it conducts its business carrying on substantially similarbusiness in such jurisdiction.

## **18.18**               Environmental Compliance

EachMaterial Group Company has adopted and complies with an environmental policywhich requires monitoring of and compliance with all applicable EnvironmentalLaw and Environmental Permits applicable to it from time to time and compliancewith such policy will not cause a Material Adverse Effect.

## **18.19**               Environmental Claims

NoEnvironmental Claim (not of a frivolous or vexatious nature) has been commencedor (to the best of its knowledge and belief) is threatened against any MaterialGroup Company where that claim would be reasonably likely, if determinedagainst that Material Group Company, to have a Material Adverse Effect.

## **18.20**               Taxation

### (a)                                      It and each Material GroupCompany has duly and punctually paid and discharged all Taxes imposed upon itor its assets within the time period allowed without incurring penalties exceptto the extent that:

#### (i)                        payment is being contested ingood faith;

#### (ii)                     it has maintained adequate reserves forthose Taxes; and

#### (iii)                  payment can be lawfully withheld.

### (b)                                     It is not and no MaterialGroup Company is materially overdue in the filing of any Tax returns.

## **18.21**               Ownership of Material GroupCompanies

### (a)                                      Each Material Group Company(other than the Cerro Corona Subsidiary, Promotora Minera de Guayana, S.A. andthe Ghanaian Companies) is a wholly-owned Subsidiary of the Parent.

### (b)                                     The Parent holds at least71.1% of the issued share capital of each Ghanaian Company.

### (c)                                      The Parent holds at least 92%of the voting shares in the share capital of the Cerro Corona Subsidiary (whichequates to 80.7% of the issued and outstanding shares in the share capital ofthe Cerro Corona Subsidiary).

### (d)                                     The Parent holds at least 95%of the issued share capital of Promotora Minera de Guayana, S.A., which ownsand operates the Choco 10 mine in Venezuela.

 

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## **18.22**               No undisclosed unfundedliabilities

Nomaterial undisclosed unfunded liabilities have arisen or will arise as a resultof the Acquisition.

## **18.23**               No Material Adverse Effect

Therehas been no change in the business, condition (financial or otherwise),operations, performance, properties or prospects of the Obligors or the Group(taken as a whole) since 30 June 2006 which could reasonably be expected tohave a Material Adverse Effect.

## **18.24**               Times when representation made

### (a)                                      All the representations andwarranties in this Clause 18 are made by each Obligor on the date of thisAgreement  (other than paragraphs (a),(b) and (c) of Clause 18.10 (*Nomisleading information*) which are deemed to be made on the date theInformation is provided by the relevant Obligor).

### (b)                                     All the representations andwarranties in this Clause 18 are deemed to be made by each Obligor (byreference to the facts and circumstances then existing) on the date of eachUtilisation Request and Utilisation Date.

### (c)                                      The Repeating Representationsare deemed to be made by each Obligor (by reference to the facts andcircumstances then existing) on the first day of each Interest Period (otherthan on the first day of the first Interest Period for a Loan) save that thereferences in Clause 18.11 (*Financialstatements*) to “**the OriginalFinancial Statements**” shall, for the purposes of the RepeatingRepresentations, be construed as references to the most recent auditedconsolidated financial statements of the Parent delivered to the Agent underClause 19.1 (*Financial statements*).

# **19.**                           INFORMATION UNDERTAKINGS

Theundertakings in this Clause 19 are given in favour of each Finance Partyand remain in force from the date of this Agreement for so long as any amountis outstanding under the Finance Documents or any Commitment is in force.

## **19.1**                     Financial statements

TheParent shall supply to the Agent:

### (a)                                      as soon as the same becomeavailable, but in any event within 120 (one hundred and twenty) days after theend of each of its Financial Years:

#### (i)                        the audited consolidatedfinancial statements of the Parent for that Financial Year;

#### (ii)                     the audited financial statements of eachObligor (other than Gold Fields Holdings Company (BVI) Limited and OrogenHolding (BVI) Limited, unless there is a legal requirement to audit itsfinancial statements) for that Financial Year; and

 

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#### (iii)                  if the audited financial statements of GoldFields Holdings Company (BVI) Limited and/or Orogen Holding (BVI) Limited, asthe case may be, are not delivered under (ii) above, the unaudited financialstatements of Gold Fields Holdings Company (BVI) Limited and/or Orogen Holding(BVI) Limited, as the case may be, for that Financial Year;

### (b)                                     as soon as the same becomeavailable, but in any event within 60 (sixty) days after the first 6 (six)months of its Financial Years:

#### (i)                        the unaudited financialstatements of each Obligor for the first 6 (six) month period of that FinancialYear; and

#### (ii)                     the unaudited consolidated financialstatements of the Parent for the first 6 (six) month period of that FinancialYear; and

### (c)                                      as soon as the same becomeavailable, but in any event within 45 (forty-five) days after the end of eachquarter of each Financial Year:

#### (i)                        the unaudited consolidatedfinancial statements of the Parent for that period; and

#### (ii)                     the unaudited financial statements of eachObligor for that period.

## **19.2**                     Compliance Certificate

### (a)                                      The Parent shall supply to theAgent, with each set of consolidated financial statements delivered pursuant toparagraphs (a) and (b) of Clause 19.1, a Compliance Certificate settingout (in reasonable detail) computations as to compliance with Clause 20 (*Financial Covenants*) as at the date as atwhich those financial statements were drawn up.

### (b)                                     Each Compliance Certificateshall be signed by 2 (two) directors of the Parent and, if required to bedelivered with the audited consolidated financial statements delivered pursuantto paragraph (a)(i) of Clause 19.1 (*Financialstatements*), by the Auditors.

## **19.3**                     Requirements as to financialstatements

### (a)                                      Each set of financialstatements delivered by the Parent pursuant to Clause 19.1 (*Financial statements*) shall be certifiedby a director of the relevant company as fairly representing its financialcondition as at the date as at which those financial statements were drawn up.

### (b)                                     The Parent shall procure thateach set of financial statements delivered pursuant to Clause 19.1 (*Financial statements*) is prepared inaccordance with GAAP, the requirements of its jurisdiction of incorporation andaccounting practices and financial reference periods consistent with thoseapplied in the preparation of the Original Financial Statements.

 

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### (c)                                      Paragraph (b) above shall notapply to the extent that, in relation to any sets of financial statements, theParent notifies the Agent that there has been a change in GAAP or theaccounting practices or reference periods and its Auditors (in the case of itsannual audited financial statements) or the Parent (in the case of any of itsother financial statements) delivers to the Agent:

#### (i)                        a description of any changenecessary for those financial statements to reflect GAAP, accounting practicesand reference periods upon which the Original Financial Statements wereprepared; and

#### (ii)                     sufficient information, in form andsubstance as may be reasonably required by the Agent, to enable the Agent todetermine whether Clause 20 (*FinancialCovenants*) has been complied with and make an accurate comparisonbetween the financial position indicated in those financial statements and theOriginal Financial Statements.

### (d)                                     If the Parent notifies theAgent of a change in accordance with paragraph (c) above, then the Parentand the Agent shall enter into negotiations in good faith with a view toagreeing:

#### (i)                        whether or not the changemight result in material alteration in the commercial effect of any of theterms of this Agreement or any other Finance Document; and

#### (ii)                     if so, any amendments to this Agreement orany other Finance Document which may be necessary to ensure that the changedoes not result in any material alteration in the commercial effect of thoseterms, and if any amendments are agreed they shall take effect and be bindingon each of the Parties in accordance with their terms.

### (e)                                      Any reference in thisAgreement to “financial statements” shall be construed as a reference to thosefinancial statements as the same may be adjusted under this Clause 19.3 toreflect the basis upon which the Original Financial Statements were prepared.

## **19.4**                     Access to records

At anytime after the occurrence of a Default and for so long as it is continuing,upon the request of the Agent or a Finance Party each Obligor shall (at thatObligor’s expense) provide to the Agent or any of its representatives andprofessional advisors such access to that Obligor’s records (including itsgeneral ledger), books and assets as that person may require at reasonabletimes and upon reasonable notice.

## **19.5**                     Information: miscellaneous

EachObligor shall supply to the Agent, if the Agent so requests:

### (a)                                      all documents dispatched bythat Obligor to its shareholders (or any class of them) or its creditorsgenerally at the same time as they are dispatched;

 

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### (b)                                     the details of any litigation,arbitration or administrative proceedings which are current, threatened orpending against any member of the Group which, if adversely determined againstit, would be reasonably likely to have a Material Adverse Effect; and

### (c)                                      promptly, such furtherinformation (including an extract of its general ledger) regarding the financialcondition, business and operations of any Material Group Company as any FinanceParty (through the Agent) may reasonably request.

## **19.6**                     Notification of default

### (a)                                      Each Obligor shall notify theAgent, of any Default (and the steps, if any, being taken to remedy it)promptly upon becoming aware of its occurrence (unless that Obligor is awarethat a notification has already been provided by another Obligor).

### (b)                                     Promptly upon a request by theAgent, each Borrower shall supply to the Agent, a certificate signed by 2 (two)of its directors or senior officers on its behalf certifying that no Default iscontinuing (or if a Default is continuing specifying the Default and the steps,if any, being taken to remedy it).

## **19.7**                     Use of websites

### (a)                                      The Parent may satisfy its obligation under this Agreement to deliverany information in relation to those Lenders (the “**Website Lenders**”) who accept this method of communication byposting this information onto an electronic website designated by the Parent and the Agent (the “**Designated Website**”) if:

#### (i)                        the Agent expressly agrees(after consultation with each of the Lenders) that it will accept communicationof the information by this method;

#### (ii)                     both the Parent and the Agent are aware of the address of and any relevantpassword specifications for the Designated Website; and

#### (iii)                  the information is in a format previouslyagreed between the Parent andthe Agent.

If anyLender (a “**Paper Form Lender**”)does not agree to the delivery of information electronically then the Agent shallnotify the Parent accordinglyand the Parent shall supply theinformation to the Agent (in sufficient copies for each Paper Form Lender) inpaper form.  In any event the Parent shall supply the Agent with atleast one copy in paper form of any information required to be provided by it.

### (b)                                     The Agent shall supply eachWebsite Lender with the address of and any relevant password specifications forthe Designated Website following designation of that website by the Parent and the Agent.

### (c)                                      The Parent shall promptly upon becoming aware of its occurrence notifythe Agent if:

#### (i)                        the Designated Website cannotbe accessed due to technical failure;

 

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#### (ii)                     the password specifications for theDesignated Website change;

#### (iii)                  any new information which is required to beprovided under this Agreement is posted onto the Designated Website;

#### (iv)                 any existing information which has beenprovided under this Agreement and posted onto the Designated Website isamended; or

#### (v)                    the Parentbecomes aware that the Designated Website or any information posted onto theDesignated Website is or has been infected by any electronic virus or similarsoftware.

If the Parent notifies the Agent underparagraph (c)(i) or paragraph (c)(v) above, all information to beprovided by the Parent underthis Agreement after the date of that notice shall be supplied in paper formunless and until the Agent and each Website Lender is satisfied that thecircumstances giving rise to the notification are no longer continuing.

AnyWebsite Lender may request, through the Agent, one paper copy of anyinformation required to be provided under this Agreement which is posted ontothe Designated Website.  The Parent shall comply with any suchrequest within ten Business Days.

## **19.8**                     “Know your customer” checks

### (a)                                      If:

#### (i)                        the introduction of or anychange in (or in the interpretation, administration or application of) any lawor regulation made after the date of this Agreement;

#### (ii)                     any change in the status of an Obligor orthe composition of the shareholders of an Obligor after the date of thisAgreement; or

#### (iii)                  a proposed assignment or transfer by aLender of any of its rights and obligations under this Agreement to a partythat is not a Lender prior to such assignment or transfer,

obligesthe Agent or any Lender (or, in the case of paragraph (iii) above, anyprospective new Lender) to comply with “know your customer” or similaridentification procedures in circumstances where the necessary information isnot already available to it, each Obligor shall promptly upon the request ofthe Agent or any Lender supply, or procure the supply of, such documentationand other evidence as is reasonably requested by the Agent (for itself or onbehalf of any Lender) or any Lender (for itself or, in the case of the eventdescribed in paragraph (iii) above, on behalf of any prospective newLender) in order for the Agent, such Lender or, in the case of the eventdescribed in paragraph (iii) above, any prospective new Lender to carryout and be satisfied it has complied with all necessary “know your customer” orother similar checks under all applicable laws

 

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andregulations pursuant to the transactions contemplated in the Finance Documents.

### (b)                                     Each Lender shall promptlyupon the request of the Agent supply, or procure the supply of, suchdocumentation and other evidence as is reasonably requested by the Agent (foritself) in order for the Agent to carry out and be satisfied it has compliedwith all necessary “know your customer” or other similar checks under allapplicable laws and regulations pursuant to the transactions contemplated inthe Finance Documents.

(c)                                      The Parent shall, by not lessthan 10 Business Days’ prior written notice to the Agent, notify the Agent(which shall promptly notify the Lenders) of its intention to request that oneof its Subsidiaries becomes an Additional Obligor pursuant to Clause 24 (*Changes to the Obligors*).

(d)                                     Following the giving of anynotice pursuant to paragraph (c) above, if the accession of such AdditionalObligor obliges the Agent or an Lender to comply with “know your customer” orsimilar identification procedures in circumstances where the necessaryinformation is not readily available to it, the Parent shall promptly upon therequest of the Agent or any Lender supply, or procure the supply of, suchdocumentation and other evidence as is reasonably requested by the Agent (foritself or on behalf of any Lender) or any Lender (for itself or on behalf ofany prospective Lender) in order for the Agent or such Lender or anyprospective new Lender to carry out and be satisfied it has complied with allnecessary “know your customer” or other similar checks under all applicablelaws and regulations pursuant to the accession of such Subsidiary to thisAgreement as an Additional Obligor.

# **20.**                           FINANCIAL COVENANTS

## **20.1**                     Financial definitions

In this Clause 20:

“**Consolidated EBITDA**” means, for anyMeasurement Period, (having reversed any entries made to reflect fair valuegains or losses on financial derivative investments which are undertaken in thenormal course of business) Consolidated Profits Before Interest and Tax beforeany amount attributable to the amortisation of intangible assets and depreciationof tangible assets and before any extraordinary items;

“**Consolidated Net Borrowings**” means, at anytime, the aggregate amount of all obligations of the Group for or in respect ofIndebtedness for Borrowed Money but excluding any such obligation to any memberof the Group, adjusted to take account of the aggregate amount of freelyavailable cash and cash equivalents held by any member of the Group (and sothat no amount shall be included or excluded more than once);

“**Consolidated Net Finance Charges**” means, inrespect of any Measurement Period, the aggregate amount of the interest(including the interest element of leasing and hire purchase payments andcapitalised interest), commission, fees, discounts and other finance payments

 

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payableby any member of the Group (including any commission, fees, discounts and otherfinance payment payable by any member of the Group under any interest ratehedging arrangement but deducting any commission, fees, discounts and otherfinance payments receivable by any member of the Group under any interest ratehedging instrument) but deducting any other interest receivable by any memberof the Group on any deposit or bank account;

“**Consolidated Profits Before Interest and Tax**”means, in respect of any Measurement Period, the consolidated net income of theGroup (less the net income of any Project Finance Subsidiaries but includingany dividends received in cash by any member of the Group (other than a ProjectFinance Subsidiary) from a Project Finance Subsidiary) before:

(a)                                      any provision on account ofnormal taxation; and

(b)                                     any interest, commission,discounts or other fees incurred or payable, received or receivable by anymember of the Group in respect of Indebtedness for Borrowed Money; and

“**Measurement Period**” means each period of 12(twelve) months ending on the last day of the Parent’s Financial Year and eachperiod of 12 (twelve) months ending on the last day of the first half of theParent’s Financial Year.

## **20.2**                     Financial condition

The Parent shall ensure that for so long as any amountis outstanding under a Finance Document or any Commitment is in force:

### (a)                                      the ratio of ConsolidatedEBITDA to Consolidated Net Finance Charges in respect of any Measurement Periodshall be or shall exceed 5:1;

### (b)                                     the ratio of Consolidated NetBorrowings to Consolidated EBITDA shall not in respect of any MeasurementPeriod exceed 2.5:1.

## **20.3**                     Financial testing

Thefinancial covenants set out in Clause 20.2 (*Financialcondition*) shall be tested by reference to each of the financialstatements and/or each Compliance Certificate delivered pursuant toClause 19.2 (*Compliance Certificate*).

## **20.4**                     Breach of a FinancialCondition Undertaking

AnyObligor shall, immediately upon becoming aware of a breach of either of thefinancial covenants in Clause 20.2 (*Financialcondition*), notify the Agent and provide such details about thebreach as the Agent may request (unless that Obligor is aware that anotification has already been provided by another Obligor).

# **21.**                           GENERAL UNDERTAKINGS

The undertakings in this Clause 21 are given infavour of each Finance Party and remain in force from the date of thisAgreement for so long as any amount is outstanding under the Finance Documentsor any Commitment is in force.

 

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## **21.1**                     Authorisations

Each Obligor shall promptly:

### (a)                                      obtain, comply with and do allthat is necessary to maintain in full force and effect; and

### (b)                                     upon written request by theAgent or a Finance Party, supply certified copies to the Agent and/or a FinanceParty, as the case may be, of,

anyauthorisation required or desirable under any applicable law to enable it toperform its obligations under the Finance Documents to which it is a party andto ensure the legality, validity, enforceability or admissibility in evidenceof any Finance Document.

## **21.2**                     Compliance with laws

EachObligor shall comply in all respects with all laws and regulations to which itmay be subject (including, but not limited to, Environmental Law), if failureso to comply would materially impair its ability to perform its obligationsunder the Finance Documents to which it is a party.

## **21.3**                     Negative pledge

### (a)                                      No Obligor shall (and theParent shall procure that no other Material Group Company shall) create orpermit to subsist any Encumbrance over any of its assets.

### (b)                                     No Obligor shall (and theParent shall ensure that no other Material Group Company will):

#### (i)                        sell, transfer or otherwisedispose of any of its assets on terms whereby they are or may be leased to orre-acquired by it or by an Obligor or any other member of the Group;

#### (ii)                     sell, transfer or otherwise dispose of anyof its receivables on recourse terms;

#### (iii)                  enter into any arrangement under whichmoney or the benefit of a bank or other account may be applied, set-off or madesubject to a combination of accounts; or

#### (iv)                 enter into any other preferentialarrangement having a similar effect, in circumstances where the arrangement ortransaction is entered into primarily as a method of raising FinancialIndebtedness or of financing the acquisition of an asset.

### (c)                                      Paragraphs (a) and (b) abovedo not apply to Permitted Encumbrances.

## **21.4**                     Disposals and Mergers

### (a)                                      No Obligor shall (and theParent shall ensure that no other Material Group Company will):

 

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#### (i)                        enter into a singletransaction or a series of transactions (whether related or not) and whethervoluntarily or involuntarily to sell, lease, transfer or otherwise dispose of anyassets; or

#### (ii)                     enter into any amalgamation, demerger,merger or corporate reconstruction.

### (b)                                     Paragraph (a) above doesnot apply to:

#### (i)                        Permitted Disposals; or

#### (ii)                     any amalgamation, demerger, merger orcorporate reconstruction of any member of the Group, without insolvency, if:

##### (A)                in respect of the Obligors or thesuccessors-in-title or assignees of the Obligors, the Finance Documents arepreserved as binding upon the amalgamated, demerged, merged and/orreconstructed members of the Group; and

##### (B)                  the amalgamated, demerged, merged and/orreconstructed companies will be members of the Group; and

##### (C)                  such amalgamation, demerger, merger and/orcorporate reconstruction will not have a Material Adverse Effect.

## **21.5**                     Change of business

EachObligor shall procure that no substantial change is made to the general natureof its business or the business of the Group taken as a whole from that carriedon at the date of this Agreement.

## **21.6**                     Insurance

EachObligor shall (and the Parent shall ensure that each Material Group Companywill) maintain insurances on and in relation to its business, properties andassets with reputable underwriters or insurance companies against those risksand to the extent as is usual for companies carrying on the same orsubstantially similar business.

## **21.7**                     Environmental Compliance

EachObligor shall (and the Parent shall ensure that each Material Group Companywill) substantially comply in all material respects with all Environmental Lawand obtain and maintain any Environmental Permits and take all reasonable stepsin anticipation of known or expected future changes to or obligations under thesame.

## **21.8**                     Environmental Claims

EachObligor shall inform the Agent, in writing as soon as reasonably practical uponbecoming aware of the same:

 

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### (a)                                      if any Environmental Claim(not of a frivolous or vexatious nature) has been commenced or (to the best ofits knowledge and belief) threatened against any Material Group Company; or

### (b)                                     of any facts or circumstanceswhich will or are reasonably likely to result in any Environmental Claim (notof a frivolous or vexatious nature) being commenced or threatened against anyMaterial Group Company,

wherethe claim would be reasonably likely, if determined against that Material GroupCompany, to have a Material Adverse Effect.

## **21.9**                     Taxation

EachMaterial Group Company shall duly and punctually pay and discharge all Taxesimposed upon it or its assets within the time period allowed without incurringpenalties save to the extent that:

### (a)                                      payment is being contested ingood faith;

### (b)                                     adequate reserves are beingmaintained for those Taxes; and

### (c)                                      where such payment can belawfully withheld.

## **21.10**               Maintenance of Legal Status

EachMaterial Group Company shall do all such things as are necessary to maintainits existence as a legal person and shall maintain its books and records ingood order and make all necessary corporate filings with the relevantauthorities in its jurisdiction of incorporation.

## **21.11**               Claims *Pari Passu*

EachObligor shall ensure that at all times the claims of the Finance Partiesagainst it under the Finance Documents rank at least *pari passu* with the claims of all its other unsecured andunsubordinated creditors save those whose claims are preferred by anybankruptcy, insolvency, liquidation or other similar laws of generalapplication in its jurisdiction of incorporation.

## **21.12**               Maintenance of Assets

EachMaterial Group Company shall ensure that it has good title to or validly leasesor licences all of the assets necessary and has all consents and/orauthorisations necessary to carry on its business as conducted to the extentthat failure to comply with this Clause 21.12 could reasonably be expected tohave a Material Adverse Effect.

## **21.13**               Acquisitions

NoObligor shall (and the Parent shall ensure that no Material Group Companywill), without the prior consent of the Majority Lenders, enter into anytransaction, acquire any company, business, assets or undertaking where such atransaction or acquisition is classed as a “Category 1” transaction under theListing Requirements of the JSE Limited. For the

 

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purposeof this Clause 21.13 only, references to a transaction shall be construedas not including any acquisition of the Parent by a third party.

## **21.14**               Financial Indebtedness

Nomember of the Group (other than an Obligor or a Project Finance Subsidiary)shall incur, create or permit to subsist or have outstanding any FinancialIndebtedness or enter into any agreement or arrangement whereby it is entitledto incur, create or permit to subsist any Financial Indebtedness other thanPermitted Financial Indebtedness.

## **21.15**               Ownership of Material GroupCompanies

TheParent shall ensure that:

### (a)                                      each Material Group Company(other than the Parent, any Ghanaian Company, Promotora Minera de Guayana, S.A.and the Cerro Corona Subsidiary) is and continues to be a wholly-ownedSubsidiary of the Parent;

### (b)                                     the Parent holds and continuesto hold at least 71.1% of the issued share capital of each Ghanaian Company;

### (c)                                      the Parent holds and continuesto hold at least 92% of the voting shares in the share capital of the CerroCorona Subsidiary (which equates to 80.7% of the issued and outstanding sharesin the share capital of the Cerro Corona Subsidiary); and

### (d)                                     the Parent holds and continuesto hold at least 95% of the issued share capital of Promotora Minera deGuayana, S.A., which owns and operates the Choco 10 mine in Venezuela.

# **22.**                           EVENTS OF DEFAULT

Each ofthe events or circumstances set out in Clause 22 is an Event of Default(whether or not caused by any reason whatsoever outside the control of aBorrower or the Parent or any other person).

## **22.1**                     Non-payment

AnObligor does not pay on the due date any amount payable pursuant to a FinanceDocument at the place at and in the currency in which it is expressly payableunless:

### (a)                                      its failure to pay is causedby administrative or technical error; and

### (b)                                     payment is made within 3(three) Business Days of its due date.

## **22.2**                     Financial covenants

Anyrequirement of Clause 20 (*FinancialCovenants*) is not satisfied.

 

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## **22.3**                     Other obligations

### (a)                                      Subject to Clause 22.17 (*Remedy*), an Obligor does not comply withany provision of the Finance Documents (other than those referred to inClause 22.1 (*Non-Payment*)and Clause 20 (*Financial Covenants*)).

### (b)                                     No Event of Default will occurunder paragraph (a) above if the Taxes not duly and punctually paid anddischarged and in respect of which the undertaking contained inClause 21.9 (*Taxation*) isgiven do not exceed an amount of $10,000,000 (ten million dollars).

## **22.4**                     Misrepresentation

### (a)                                      Subject to Clause 22.17 (*Remedy*), any representation or statementmade or deemed to be made by any Obligor in the Finance Documents or any otherdocument delivered by or on behalf of any Obligor under or in connection withany Finance Document is or proves to have been incorrect or misleading in anymaterial and adverse respect when made or deemed to be made.

### (b)                                     No Event of Default will occurunder paragraph (a) above if the Taxes in respect of which the representationcontained in Clause 18.20 (*Taxation*)was made does not exceed an amount of $10,000,000 (ten million dollars).

## **22.5**                     Cross-default

### (a)                                      Any Financial Indebtedness ofa Material Group Company is not paid when due, nor where there is an applicablegrace period, within the earlier to expire of the originally applicable graceperiod and a period of 5 (five) days starting at the same time as the originallyapplicable grace period.

### (b)                                     Any Financial Indebtedness ofa Material Group Company is declared to be or otherwise becomes due and payableprior to its specified maturity as a result of an event of default (howeverdescribed).

### (c)                                      Any commitment for anyFinancial Indebtedness of a Material Group Company is cancelled or suspended bya creditor of a Material Group Company as a result of an event of default(however described).

### (d)                                     Any creditor of a MaterialGroup Company becomes entitled to declare any Financial Indebtedness of aMaterial Group Company due and payable prior to its specified maturity as aresult of an event of default (however described) except in respect of anyagreement for managing or hedging currency and/or interest and/or commodity riskheld by Western Areas Limited as at the date of this Agreement, where suchevent of default is declared solely by or on behalf of the hedgecounterparties  (including theirrespective successors in title, permitted assigns and permitted transferees) tosuch agreements.  For the avoidance ofdoubt, to the extent that such event of default results in any other creditorof the Parent (or its Subsidiaries) declaring an event of default in respect oftheir indebtedness, such declaration shall result in an event of default underthis paragraph (d).

 

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### (e)                                      No Event of Default will occurunder this Clause 22.5 if the aggregate amount of Financial Indebtednessor commitment for Financial Indebtedness, falling within paragraphs (a) to (d)of this Clause 22.5 above is less than $20,000,000.

## **22.6**                     Insolvency

### (a)                                      Any Material Group Company isunable or admits inability to pay its debts as they fall due, suspends makingpayments on any of its debts or, by reason of actual or anticipated financialdifficulties, commences negotiations with one or more of its classes ofcreditors with a view to rescheduling any of its Financial Indebtedness whichin the case of a Material Group Company (other than an Obligor) could reasonablybe expected to have a Material Adverse Effect.

### (b)                                     The value of the assets of anyMaterial Group Company is less than its liabilities (taking into accountcontingent and prospective liabilities) which in the case of a Material GroupCompany (other than an Obligor) could reasonably be expected to have a MaterialAdverse Effect.

### (c)                                      A moratorium is declared inrespect of any Financial Indebtedness of any Material Group Company.

## **22.7**                     Insolvency proceedings

Anycorporate action, legal proceedings or other similar procedure or step is takenin relation to:

### (a)                                      the suspension of payments, amoratorium of any Financial Indebtedness, winding-up, dissolution,administration or reorganisation (by way of voluntary arrangement, scheme ofarrangement or otherwise) of any Material Group Company;

### (b)                                     a composition, compromise,assignment or arrangement with any creditor or class of creditors of anyMaterial Group Company;

### (c)                                      the appointment of aliquidator, receiver, administrator, administrative receiver, judicial manager,compulsory manager or other similar officer in respect of any Material GroupCompany or any of its assets; or

### (d)                                     enforcement of any Encumbranceover any assets of any Material Group Company,

or anyanalogous procedure or step is taken in any jurisdiction and any such procedureor proceedings are not contested in good faith nor discharged within 30(thirty) days (or such shorter period provided for contesting such procedure orproceedings under the laws of the relevant jurisdiction).

## **22.8**                     Failure to comply with finaljudgement

AnyMaterial Group Company fails within 5 (five) Business Days of the due date tocomply with or pay any sum due from it under any material final judgement orany final order made or given by any court of competent jurisdiction.  For the purposes of this Clause 22.8, a

 

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“**material final judgement**” shall be anyjudgement for the payment of a sum of money in excess of $10,000,000 (tenmillion dollars).

## **22.9**                     Creditors’ process

Anyexpropriation (other than an expropriation where fair compensation is received)or the operation of the attachment, sequestration, distress or executionaffects any material asset of a Material Group Company and is not dischargedwithin 21 (twenty-one) days.  For thepurposes of this Clause 22.9 a “**materialasset**” is any single income producing asset of the relevant MaterialGroup Company which contributes not less than 5% (five percent) towards theConsolidated EBITDA or gross assets of the Group (calculated according to themost recent set of audited consolidated financial statements delivered pursuantto Clause 19.1 (*Financial Statements*))**provided that**any loss of mineralrights arising as a result of the operation of the Mineral and PetroleumResources Development Act, No. 28 of 2002 substantially in its current form asat the date of this Agreement and/or the operation of the Minerals andPetroleum Royalty Bill in substantially its current form once enacted shall notconstitute an expropriation for the purposes of this Clause 22.9.

## **22.10**               Unlawfulness

It isor becomes unlawful for an Obligor to perform any of its obligations under theFinance Documents or such obligations cease to be legal, valid, binding orenforceable obligations.

## **22.11**               Repudiation and Unenforceability

AnObligor repudiates a Finance Document or any Finance Document is declared to beor is otherwise unenforceable against an Obligor by a court of the jurisdictionof incorporation of the relevant Obligor.

## **22.12**               Governmental Intervention

By or under the authority of any government:

### (a)                                      the management of any MaterialGroup Company is wholly or partially displaced or the authority of any MaterialGroup Company in the conduct of its business is wholly or partially taken over;or

### (b)                                     all or a majority of theissued shares of any Material Group Company or material part of its revenues orassets is seized, nationalised, expropriated or compulsorily acquired.  For the purposes of this Clause 22.12 “**material part of its revenues or assets**”shall in relation to the relevant Material Group Company be construed asrevenues comprising not less than 5% (five percent) of the Consolidated EBITDAor gross assets of the Group calculated mutatis mutandis in accordance with theprovisions of Clause 22.9 (*Creditors’ process*)or assets which contribute not less than 5% (five percent) towards theConsolidated EBITDA or gross assets of the Group calculated *mutatis mutandis* accordance with theprovisions of Clause 22.9 (*Creditors’process*), provided that neither the implementation of the Mineraland Petroleum Resources Development Act, No. 28 of 2002 substantially in itscurrent form as at the date of this Agreement nor the implementation of theMinerals and

 

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### Petroleum Royalty Bill in substantially its current form once enacted shallconstitute a seizure, nationalisation, expropriation or compulsory acquisitionas contemplated by this Clause 22.12.

## **22.13**               Material Adverse Effect

Anychange occurs in the business, condition (financial or otherwise), operations,performance, properties or prospects of the Obligors or the Group taken as awhole since the date of the Original Financial Statements provided to the Agentin accordance with this Agreement, which could be reasonably likely to have aMaterial Adverse Effect.

## **22.14**               Cessation of Business

AnyMaterial Group Company ceases to carry on the business which it undertakes atthe date of this Agreement.

## **22.15**               Litigation

Anylitigation, arbitration, administrative proceedings or governmental orregulatory investigations or proceedings against any Material Group Company orits respective assets or revenues is reasonably expected to be adverselydetermined, and if so determined, could reasonably be expected to have aMaterial Adverse Effect.

## **22.16**               Acceleration

On and at any time after the occurrence of an Event ofDefault which is continuing the Agent may, and shall if so directed by theMajority Lenders, by notice to the Borrower and the Parent:

### (a)                                      cancel the Total Commitmentswhereupon they shall immediately be cancelled;

### (b)                                     declare that all or part ofthe Loans, together with accrued interest, and all other amounts accrued oroutstanding under the Finance Documents be immediately due and payable,whereupon they shall become immediately due and payable; and/or

### (c)                                      declare that all or part ofthe Loans be payable on demand, whereupon they shall immediately become payableon demand by the Agent on the instructions of the Majority Lenders.

## **22.17**               Remedy

### (a)                                      No Event of Default under thisClause 22 (*Events of Default*)(other than those referred to in Clause 22.1 (*Non-payment*)and 22.2 (*Financial covenants*))will occur if the failure to comply or circumstance giving rise to the same iscapable of remedy and is remedied by an Obligor within 10 (ten) days of theearlier of the Agent giving notice to the Obligors or any Obligor becomingaware of the failure to comply.

### (b)                                     For the purposes of paragraph(a) above, the events or circumstances referred to in Clause 22.5 (*Cross-default*), Clause 22.6 (*Insolvency*), Clause 22.7 (*Insolvency Proceedings*), Clause 22.8 (*Failure to comply with final judgment*),Clause 22.9

 

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### (*Creditors’ process*), Clause22.10 (*Unlawfulness*), Clause22.11 (*Repudiation and Unenforceability*),Clause 22.12 (*Governmental Intervention*),Clause 22.13 (*Material Adverse Effect*)and Clause 22.14 (*Cessation of Business*)shall be deemed to be incapable of remedy save to the extent set out thereinunless the Agent determines otherwise.

 

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**SECTION9CHANGES TO PARTIES**

# **23.**                           CHANGES TO THE LENDERS

## **23.1**                     Assignments and transfers bythe Lenders

Subject to this Clause 23, a Lender(the “**Existing Lender**”) may:

### (a)                                      assign any of its rights; or

### (b)                                     transfer by novation any ofits rights and obligations,

to another bank or financial institution (the “**New Lender**”).

## **23.2**                     Conditions of assignment ortransfer

### (a)                                      The consent of the Parent is required for an assignmentor transfer by an Existing Lender, unless the assignment or transfer:

#### (i)                       takes effect after theearliest of (x) five days after the initial Utilisation Date, (y) the datefalling six Months after the date of this Agreement or (z) the date on which anEvent of Default has occurred and is continuing; or

#### (ii)                     is to another Lender or an Affiliate of aLender.

### (b)                                     The consent of the Parent to an assignment or transfermust not be unreasonably withheld or delayed. The Parent will be deemedto have given its consent five Business Days after the Existing Lender hasrequested it unless consent is expressly refused by the Parent within that time.

### (c)                                      The consent of the Parent to an assignment or transfermust not be withheld solely because the assignment or transfer may result in anincrease to the Mandatory Cost.

### (d)                                     An assignment will only beeffective on:

#### (i)                        receipt by the Agent ofwritten confirmation from the New Lender (in form and substance satisfactory tothe Agent) that the New Lender will assume the same obligations to the otherFinance Parties as it would have been under if it was an Original Lender; and

#### (ii)                     performance by the Agent of all necessary “knowyour customer” or other similar checks under all applicable laws andregulations in relation to such assignment to a New Lender, the completion ofwhich the Agent shall promptly notify to the Existing Lender and the NewLender.

### (e)                                      A transfer will only beeffective if the procedure set out in Clause 23.5 (*Procedurefor transfer*) is complied with.

 

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### (f)                                        If:

#### (i)                        a Lender assigns or transfersany of its rights or obligations under the Finance Documents or changes itsFacility Office; and

#### (ii)                     as a result of circumstances existing atthe date the assignment, transfer or change occurs, an Obligor would be obligedto make a payment to the New Lender or Lender acting through its new FacilityOffice under Clause 12 (*Tax gross-up andindemnities*) or Clause 13 (*Increased costs*),

thenthe New Lender or Lender acting through its new Facility Office is onlyentitled to receive payment under those Clauses to the same extent as theExisting Lender or Lender acting through its previous Facility Office wouldhave been if the assignment, transfer or change had not occurred.

## **23.3**                     Assignment or transfer fee

The NewLender shall, on the date upon which an assignment or transfer takes effect,pay to the Agent (for its own account) a fee of $1,500, unless the Agent, inits sole discretion, agrees to waive the payment of such fee.

## **23.4**                     Limitation of responsibilityof Existing Lenders

### (a)                                      Unless expressly agreed to thecontrary, an Existing Lender makes no representation or warranty and assumes noresponsibility to a New Lender for:

#### (i)                        the legality, validity,effectiveness, adequacy or enforceability of the Finance Documents or any otherdocuments;

#### (ii)                     the financial condition of any Obligor;

#### (iii)                  the performance and observance by anyObligor of its obligations under the Finance Documents or any other documents;or

#### (iv)                 the accuracy of any statements (whetherwritten or oral) made in or in connection with any Finance Document or anyother document,

and anyrepresentations or warranties implied by law are excluded.

### (b)                                     Each New Lender confirms tothe Existing Lender and the other Finance Parties that it:

#### (i)                        has made (and shall continueto make) its own independent investigation and assessment of the financialcondition and affairs of each Obligor and its related entities in connectionwith its participation in this Agreement and has not relied exclusively on anyinformation provided to it by the Existing Lender in connection with anyFinance Document; and

#### (ii)                     will continue to make its own independentappraisal of the creditworthiness of each Obligor and its related entitieswhilst any amount is or may be outstanding under the Finance Documents or anyCommitment is in force.

 

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### (c)                                      Nothing in any FinanceDocument obliges an Existing Lender to:

#### (i)                        accept a re-transfer from aNew Lender of any of the rights and obligations assigned or transferred underthis Clause 23; or

#### (ii)                     support any losses directly or indirectlyincurred by the New Lender by reason of the non-performance by any Obligor ofits obligations under the Finance Documents or otherwise.

## **23.5**                     Procedure for transfer

### (a)                                      Subject to the conditions setout in Clause 23.2 (*Conditions of assignmentor transfer*) a transfer is effected in accordance withparagraph (c) below when the Agent executes an otherwise duly completedTransfer Certificate delivered to it by the Existing Lender and the NewLender.  The Agent shall, subject toparagraph (b) below, as soon as reasonably practicable after receipt by itof a duly completed Transfer Certificate appearing on its face to comply withthe terms of this Agreement and delivered in accordance with the terms of thisAgreement, execute that Transfer Certificate.

### (b)                                     The Agent shall only beobliged to execute a Transfer Certificate delivered to it by the ExistingLender and the New Lender once it is satisfied it has complied with allnecessary “know your customer” or other similar checks under all applicablelaws and regulations in relation to the transfer to such New Lender.

### (c)                                      On the Transfer Date:

#### (i)                        to the extent that in theTransfer Certificate the Existing Lender seeks to transfer by novation itsrights and obligations under the Finance Documents each of the Obligors and theExisting Lender shall be released from further obligations towards one anotherunder the Finance Documents and their respective rights against one anotherunder the Finance Documents shall be cancelled (being the “**DischargedRights and Obligations**”);

#### (ii)                     each of the Obligors and the New Lendershall assume obligations towards one another and/or acquire rights against oneanother which differ from the Discharged Rights and Obligations only insofar asthat Obligor and the New Lender have assumed and/or acquired the same in placeof that Obligor and the Existing Lender;

#### (iii)                  the Agent, the Arranger, the New Lender andother Lenders shall acquire the same rights and assume the same obligationsbetween themselves as they would have acquired and assumed had the New Lenderbeen an Original Lender with the rights and/or obligations acquired or assumedby it as a result of the transfer and to that extent the Agent, the Arrangerand the Existing Lender shall each be released from further obligations to eachother under the Finance Documents; and

#### (iv)                 the New Lender shall become a Party as a “Lender”.

 

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## **23.6**                     Copy of Transfer Certificateto Parent

TheAgent shall, as soon as reasonably practicable after it has executed a TransferCertificate, send to the Parenta copy of that Transfer Certificate.

## **23.7**                     Disclosure of information

Any Lender may disclose to any of its Affiliatesand any other person:

### (a)                                      to (or through) whom thatLender assigns or transfers (or may potentially assign or transfer) all or anyof its rights and obligations under this Agreement;

### (b)                                     with (or through) whom thatLender enters into (or may potentially enter into) any sub-participation inrelation to, or any other transaction under which payments are to be made byreference to, this Agreement or any Obligor; or

### (c)                                      to whom, and to the extentthat, information is required to be disclosed by any applicable law orregulation,

anyinformation about any Obligor, the Group and the Finance Documents as thatLender shall consider appropriate if, in relation to paragraphs (a) and(b) above, the person to whom the information is to be given has entered into aConfidentiality Undertaking.

# **24.**                           CHANGES TO THE OBLIGORS

## **24.1**                     Assignment and transfer byObligors

NoObligor may assign any of its rights or transfer any of its rights orobligations under the Finance Documents.

## **24.2**                     Additional Borrowers

### (a)                                      Subject to compliance with theprovisions of paragraphs (c) and (d) of Clause 19.8 (*“Know your customer” checks*), the Parent may request thatany of its wholly owned Subsidiaries become an Additional Borrower.  That Subsidiary shall become an AdditionalBorrower if:

#### (i)                        all the Lenders approve theaddition of that Subsidiary;

#### (ii)                     the Parent delivers to the Agent a dulycompleted and executed Accession Letter;

#### (iii)                  the Parent confirms that no Default iscontinuing or would occur as a result of that Subsidiary becoming an AdditionalBorrower; and

#### (iv)                 the Agent has received all of the documentsand other evidence listed in Part II of Schedule 2 (*Conditions precedent*) in relation to that AdditionalBorrower, each in form and substance satisfactory to the Agent.

### (b)                                     The Agent shall notify theParent and the Lenders promptly upon being satisfied that it has received (inform and substance satisfactory to it) all the documents and other evidencelisted in Part II of Schedule 2 (*Conditionsprecedent*).

 

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## **24.3**                     Resignation of an AdditionalBorrower

### (a)                                      The Parent may request that aBorrower (other than the Original Borrower) ceases to be a Borrower bydelivering to the Agent a Resignation Letter.

### (b)                                     The Agent shall accept aResignation Letter and notify the Parent and the Lenders of its acceptance if:

#### (i)                        no Default is continuing orwould result from the acceptance of the Resignation Letter (and the Parent hasconfirmed to the Agent that this is the case); and

#### (ii)                     the Borrower is under no actual orcontingent obligations as a Borrower under any Finance Documents,

whereupon that company shall cease to be a Borrowerand shall have no further rights or obligations under the Finance Documents.

## **24.4**                     Additional Guarantors

### (a)                                      Subject to compliance with theprovisions of paragraphs (c) and (d) of Clause 19.8 (*“Know your customer” checks*), the Parent may request thatany of its wholly owned Subsidiaries become an Additional Guarantor.  That Subsidiary shall become an AdditionalGuarantor if;

#### (i)                        the Parent delivers to theAgent a duly completed and executed Accession Letter; and

#### (ii)                     the Agent has received all of the documentsand other evidence listed in Part III of Schedule 2 (*Conditions precedent*) in relation to that AdditionalGuarantor, each in form and substance satisfactory to the Agent.

### (b)                                     The Agent shall notify theParent and the Lenders promptly upon being satisfied that it has received (inform and substance satisfactory to it) all the documents and other evidencelisted in Part III of Schedule 2 (*Conditionsprecedent*).

## **24.5**                     Repetition of Representations

Deliveryof an Accession Letter constitutes confirmation by the relevant Subsidiary thatthe representations in Clause 18 (*Representations*)are true and correct in relation to it as at the date of delivery as if made byreference to the facts and circumstances then existing.

## **24.6**                     Resignation of an AdditionalGuarantor

### (a)                                      The Parent may request that aGuarantor (other than an Original Guarantor) ceases to be a Guarantor bydelivering to the Agent a Resignation Letter.

### (b)                                     The Agent shall accept aResignation Letter and notify the Parent and the Lenders of its acceptance ifno Default is continuing and the Parent has confirmed to the Agent that this isthe case.

 

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**SECTION10THE FINANCE PARTIES**

# **25.**                           ROLE OF THE AGENT AND THE ARRANGER

## **25.1**                     Appointment of the Agent

### (a)                                      Each other Finance Partyappoints the Agent to act as its agent under and in connection with the FinanceDocuments.

### (b)                                     Each other Finance Partyauthorises the Agent to exercise the rights, powers, authorities anddiscretions specifically given to the Agent under or in connection with theFinance Documents together with any other incidental rights, powers,authorities and discretions.

## **25.2**                     Duties of the Agent

### (a)                                      The Agent shall promptlyforward to a Party the original or a copy of any document which is delivered tothe Agent for that Party by any other Party.

### (b)                                     Except where a FinanceDocument specifically provides otherwise, the Agent is not obliged to review orcheck the adequacy, accuracy or completeness of any document it forwards toanother Party.

### (c)                                      If the Agent receives noticefrom a Party referring to this Agreement, describing a Default and stating thatthe circumstance described is a Default, it shall promptly notify the otherFinance Parties.

### (d)                                     If the Agent is aware of thenon-payment of any principal, interest, commitment fee or other fee payable toa Finance Party (other than the Agent or the Arranger) under this Agreement itshall promptly notify the other Finance Parties.

### (e)                                      The Agent’s duties under theFinance Documents are solely mechanical and administrative in nature.

## **25.3**                     Role of the Arranger

Exceptas specifically provided in the Finance Documents, the Arranger has noobligations of any kind to any other Party under or in connection with anyFinance Document.

## **25.4**                     No fiduciary duties

### (a)                                      Nothing in this Agreementconstitutes the Agent or the Arranger as a trustee or fiduciary of any otherperson.

### (b)                                     Neither the Agent nor theArranger shall be bound to account to any Lender for any sum or the profitelement of any sum received by it for its own account.

## **25.5**                     Business with the Group

TheAgent and the Arranger may accept deposits from, lend money to and generallyengage in any kind of banking or other business with any member of the Group.

 

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## **25.6**                     Rights and discretions of theAgent

### (a)                                      The Agent may rely on:

#### (i)                        any representation, notice ordocument believed by it to be genuine, correct and appropriately authorised;and

#### (ii)                     any statement made by a director,authorised signatory or employee of any person regarding any matters which mayreasonably be assumed to be within his knowledge or within his power to verify.

### (b)                                     The Agent may assume (unlessit has received notice to the contrary in its capacity as agent for theLenders) that:

#### (i)                        no Default has occurred(unless it has actual knowledge of a Default arising under Clause 22.1 (*Non-payment*));

#### (ii)                     any right, power, authority or discretionvested in any Party or the Majority Lenders has not been exercised; and

#### (iii)                  any notice or request made by the Parent (other than a UtilisationRequest or Selection Notice) is made on behalf of and with the consent andknowledge of all the Obligors.

### (c)                                      The Agent may engage, pay forand rely on the advice or services of any lawyers, accountants, surveyors orother experts.

### (d)                                     The Agent may act in relationto the Finance Documents through its personnel and agents.

### (e)                                      The Agent may disclose to any otherParty any information it reasonably believes it has received as agent underthis Agreement.

### (f)                                        Notwithstanding any otherprovision of any Finance Document to the contrary, neither the Agent nor theArranger is obliged to do or omit to do anything if it would or might in itsreasonable opinion constitute a breach of any law or regulation or a breach ofa fiduciary duty or duty of confidentiality.

## **25.7**                     Majority Lenders’ instructions

### (a)                                      Unless a contrary indicationappears in a Finance Document, the Agent shall (i) exercise any right, power,authority or discretion vested in it as Agent in accordance with anyinstructions given to it by the Majority Lenders (or, if so instructed by theMajority Lenders, refrain from exercising any right, power, authority ordiscretion vested in it as Agent) and (ii) not be liable for any act (oromission) if it acts (or refrains from taking any action) in accordance with aninstruction of the Majority Lenders.

### (b)                                     Unless a contrary indicationappears in a Finance Document, any instructions given by the Majority Lenderswill be binding on all the Finance Parties.

 

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### (c)                                      The Agent may refrain fromacting in accordance with the instructions of the Majority Lenders (or, if appropriate,the Lenders) until it has received such security as it may require for anycost, loss or liability (together with any associated VAT) which it may incurin complying with the instructions.

### (d)                                     In the absence of instructionsfrom the Majority Lenders, (or, if appropriate, the Lenders) the Agent may act(or refrain from taking action) as it considers to be in the best interest ofthe Lenders.

### (e)                                      The Agent is not authorised toact on behalf of a Lender (without first obtaining that Lender’s consent) inany legal or arbitration proceedings relating to any Finance Document.

## **25.8**                     Responsibility fordocumentation

Neither the Agent nor the Arranger:

### (a)                                      is responsible for theadequacy, accuracy and/or completeness of any information (whether oral orwritten) supplied by the Agent, the Arranger, an Obligor or any other persongiven in or in connection with any Finance Document; or

### (b)                                     is responsible for thelegality, validity, effectiveness, adequacy or enforceability of any FinanceDocument or any other agreement, arrangement or document entered into, made orexecuted in anticipation of or in connection with any Finance Document.

## **25.9**                     Exclusion of liability

### (a)                                      Without limitingparagraph (b) below, the Agent will not be liable (including withoutlimitation, for negligence or any other category of liability whatsoever) forany action taken by it under or in connection with any Finance Document, unlessdirectly caused by its gross negligence or wilful misconduct.

### (b)                                     No Party (other than theAgent) may take any proceedings against any officer, employee or agent of theAgent in respect of any claim it might have against the Agent or in respect ofany act or omission of any kind by that officer, employee or agent in relationto any Finance Document and any officer, employee or agent of the Agent mayrely on this Clause 25.9 subject to Clause 1.4 (*Third PartyRights*) and the provisions of the Third Parties Act.

### (c)                                      The Agent will not be liablefor any delay (or any related consequences) in crediting an account with anamount required under the Finance Documents to be paid by the Agent if theAgent has taken all necessary steps as soon as reasonably practicable to complywith the regulations or operating procedures of any recognised clearing orsettlement system used by the Agent for that purpose.

### (d)                                     Nothing in this Agreementshall oblige the Agent or the Arranger to carry out any “know your customer” orother checks in relation to any person on behalf of any Lender and each Lenderconfirms to the Agent and the Arranger that it is solely

 

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### responsible for any such checks it is required to carry out and that it may notrely on any statement in relation to such checks made by the Agent or theArranger.

## **25.10**               Lenders’ indemnity to theAgent

EachLender shall (in proportion to its share of the Total Commitments or, if theTotal Commitments are then zero, to its share of the Total Commitmentsimmediately prior to their reduction to zero) indemnify the Agent, within threeBusiness Days of demand, against any cost, loss or liability (including,without limitation, for negligence or any other category of liabilitywhatsoever) incurred by the Agent (otherwise than by reason of the Agent’sgross negligence or wilful misconduct) in acting as Agent under the FinanceDocuments (unless the Agent has been reimbursed by an Obligor pursuant to aFinance Document).

## **25.11**               Resignation of the Agent

### (a)                                      The Agent may resign andappoint one of its Affiliates acting through an office as successor by givingnotice to the other Finance Parties and the Parent.

### (b)                                     Alternatively the Agent mayresign by giving notice to the other Finance Parties and the Parent, in which case the MajorityLenders (after consultation with the Parent)may appoint a successor Agent.

### (c)                                      If the Majority Lenders havenot appointed a successor Agent in accordance with paragraph (b) abovewithin 30 days after notice of resignation was given, the Agent (afterconsultation with the Parent)may appoint a successor Agent.

### (d)                                     The retiring Agent shall, atits own cost, make available to the successor Agent such documents and recordsand provide such assistance as the successor Agent may reasonably request forthe purposes of performing its functions as Agent under the Finance Documents.

### (e)                                      The Agent’s resignation noticeshall only take effect upon the appointment of a successor.

### (f)                                        Upon the appointment of asuccessor, the retiring Agent shall be discharged from any further obligationin respect of the Finance Documents but shall remain entitled to the benefit ofthis Clause 25.  Its successor andeach of the other Parties shall have the same rights and obligations amongstthemselves as they would have had if such successor had been an original Party.

### (g)                                     After consultation with the Parent, the Majority Lenders may, bynotice to the Agent, require it to resign in accordance with paragraph (b)above.  In this event, the Agent shallresign in accordance with paragraph (b) above.

## **25.12**               Confidentiality

### (a)                                      In acting as agent for theFinance Parties, the Agent shall be regarded as acting through its agencydivision which shall be treated as a separate entity from any other of itsdivisions or departments.

 

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### (b)                                     If information is received byanother division or department of the Agent, it may be treated as confidentialto that division or department and the Agent shall not be deemed to have noticeof it.

## **25.13**               Relationship with the Lenders

### (a)                                      The Agent may treat eachLender as a Lender, entitled to payments under this Agreement and actingthrough its Facility Office unless it has received not less than five BusinessDays prior notice from that Lender to the contrary in accordance with the termsof this Agreement.

### (b)                                     Each Lender shall supply theAgent with any information required by the Agent in order to calculate theMandatory Cost in accordance with Schedule 4 (*MandatoryCost Formulae*).

## **25.14**               Credit appraisal by theLenders

Withoutaffecting the responsibility of any Obligor for information supplied by it oron its behalf in connection with any Finance Document, each Lender confirms tothe Agent and the Arranger that it has been, and will continue to be, solelyresponsible for making its own independent appraisal and investigation of all risksarising under or in connection with any Finance Document including but notlimited to:

### (a)                                      the financial condition,status and nature of each member of the Group;

### (b)                                     the legality, validity,effectiveness, adequacy or enforceability of any Finance Document and any otheragreement, arrangement or document entered into, made or executed inanticipation of, under or in connection with any Finance Document;

### (c)                                      whether that Lender hasrecourse, and the nature and extent of that recourse, against any Party or anyof its respective assets under or in connection with any Finance Document, thetransactions contemplated by the Finance Documents or any other agreement,arrangement or document entered into, made or executed in anticipation of,under or in connection with any Finance Document; and

### (d)                                     the adequacy, accuracy and/orcompleteness of any information provided by the Agent, any Party or by anyother person under or in connection with any Finance Document, the transactionscontemplated by the Finance Documents or any other agreement, arrangement ordocument entered into, made or executed in anticipation of, under or inconnection with any Finance Document.

## **25.15**               Reference Banks

If aReference Bank (or, if a Reference Bank is not a Lender, the Lender of which itis an Affiliate) ceases to be a Lender, the Agent shall (in consultation withthe Parent) appoint anotherLender or an Affiliate of a Lender to replace that Reference Bank.

 

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## **25.16**               Agent’s Management Time

Anyamount payable to the Agent under Clause 14.3 (*Indemnity tothe Agent*), Clause 16 (*Costs and expenses*)and Clause 25.10 (*Lenders’ indemnity to theAgent*) shall include the cost of utilising the Agent’s managementtime or other resources and will be calculated on the basis of such reasonabledaily or hourly rates as the Agent may notify to the Parent and the Lenders, and is in addition to any fee paid orpayable to the Agent under Clause 11 (*Fees*).

## **25.17**               Deduction from amounts payableby the Agent

If anyParty owes an amount to the Agent under the Finance Documents the Agent may,after giving notice to that Party, deduct an amount not exceeding that amountfrom any payment to that Party which the Agent would otherwise be obliged tomake under the Finance Documents and apply the amount deducted in or towardssatisfaction of the amount owed.  For thepurposes of the Finance Documents that Party shall be regarded as havingreceived any amount so deducted.

# **26.**                           CONDUCT OF BUSINESS BY THE FINANCEPARTIES

No provision of this Agreement will:

### (a)                                      interfere with the right ofany Finance Party to arrange its affairs (tax or otherwise) in whatever mannerit thinks fit;

### (b)                                     oblige any Finance Party toinvestigate or claim any credit, relief, remission or repayment available to itor the extent, order and manner of any claim; or

### (c)                                      oblige any Finance Party todisclose any information relating to its affairs (tax or otherwise) or anycomputations in respect of Tax.

# **27.**                           SHARING AMONG THE FINANCE PARTIES

## **27.1**                     Payments to Finance Parties

If a Finance Party (a “**RecoveringFinance Party**”) receives or recovers any amount from an Obligorother than in accordance with Clause 28 (*PaymentMechanics*) and applies that amount to a payment due under theFinance Documents then:

### (a)                                      the Recovering Finance Partyshall, within three Business Days, notify details of the receipt or recovery,to the Agent;

### (b)                                     the Agent shall determinewhether the receipt or recovery is in excess of the amount the RecoveringFinance Party would have been paid had the receipt or recovery been received ormade by the Agent and distributed in accordance with Clause 28 (*Payment Mechanics*), without taking account of any Tax whichwould be imposed on the Agent in relation to the receipt, recovery ordistribution; and

### (c)                                      the Recovering Finance Partyshall, within three Business Days of demand by the Agent, pay to the Agent anamount (the “**Sharing Payment**”) equal to suchreceipt or recovery less any amount which the Agent determines may be retainedby the

 

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### Recovering Finance Party as its share of any payment to be made, in accordancewith Clause 28.5 (*Partial Payments*).

## **27.2**                     Redistribution of payments

TheAgent shall treat the Sharing Payment as if it had been paid by the relevantObligor and distribute it between the Finance Parties (other than theRecovering Finance Party) in accordance with Clause 28.5 (*Partial Payments*).

## **27.3**                     Recovering Finance Party’srights

### (a)                                      On a distribution by the Agentunder Clause 27.2 (*Redistribution of payments*),the Recovering Finance Party will be subrogated to the rights of the FinanceParties which have shared in the redistribution.

### (b)                                     If and to the extent that theRecovering Finance Party is not able to rely on its rights under paragraph (a)above, the relevant Obligor shall be liable to the Recovering Finance Party fora debt equal to the Sharing Payment which is immediately due and payable.

## **27.4**                     Reversal of redistribution

If any part of the Sharing Payment receivedor recovered by a Recovering Finance Party becomes repayable and is repaid bythat Recovering Finance Party, then:

### (a)                                      each Finance Party which hasreceived a share of the relevant Sharing Payment pursuant to Clause 27.2 (*Redistribution of payments*) shall, upon request of theAgent, pay to the Agent for account of that Recovering Finance Party an amountequal to the appropriate part of its share of the Sharing Payment (togetherwith an amount as is necessary to reimburse that Recovering Finance Party forits proportion of any interest on the Sharing Payment which that RecoveringFinance Party is required to pay); and

### (b)                                     that Recovering Finance Party’srights of subrogation in respect of any reimbursement shall be cancelled andthe relevant Obligor will be liable to the reimbursing Finance Party for theamount so reimbursed.

## **27.5**                     Exceptions

### (a)                                      This Clause 27 shall notapply to the extent that the Recovering Finance Party would not, after makingany payment pursuant to this Clause 27, have a valid and enforceable claimagainst the relevant Obligor.

### (b)                                     A Recovering Finance Party isnot obliged to share with any other Finance Party any amount which theRecovering Finance Party has received or recovered as a result of taking legalor arbitration proceedings, if:

#### (i)                        it notified that other FinanceParty of the legal or arbitration proceedings; and

#### (ii)                     that other Finance Party had an opportunityto participate in those legal or arbitration proceedings but did not do so assoon as reasonably practicable

 

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#### having received notice and did not take separate legal or arbitrationproceedings.

 

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**SECTION11ADMINISTRATION**

# **28.**                           PAYMENT MECHANICS

## **28.1**                     Payments to the Agent

### (a)                                      On each date on which anObligor or a Lender is required to make a payment under a Finance Document,that Obligor or Lender shall make the same available to the Agent (unless acontrary indication appears in a Finance Document) for value on the due date atthe time and in such funds specified by the Agent as being customary at thetime for settlement of transactions in the relevant currency in the place ofpayment.

### (b)                                     Payment shall be made to suchaccount in the principal financial centre of the country of that currency withsuch bank as the Agent specifies.

## **28.2**                     Distributions by the Agent

Eachpayment received by the Agent under the Finance Documents for another Partyshall, subject to Clause 28.3 (*Distributions to anObligor*), Clause 28.4 (*Clawback*) andClause 25.17 (*Deduction from amountspayable by the Agent*) be made available by the Agent as soon aspracticable after receipt to the Party entitled to receive payment inaccordance with this Agreement (in the case of a Lender, for the account of itsFacility Office), to such account as that Party may notify to the Agent by notless than five Business Days’ notice with a bank in the principal financialcentre of the country of that currency.

## **28.3**                     Distributions to an Obligor

TheAgent may (with the consent of the Obligor or in accordance with Clause 29(*Set-off*)) apply any amount received byit for that Obligor in or towards payment (on the date and in the currency andfunds of receipt) of any amount due from that Obligor under the FinanceDocuments or in or towards purchase of any amount of any currency to be soapplied.

## **28.4**                     Clawback

### (a)                                      Where a sum is to be paid tothe Agent under the Finance Documents for another Party, the Agent is notobliged to pay that sum to that other Party (or to enter into or perform anyrelated exchange contract) until it has been able to establish to itssatisfaction that it has actually received that sum.

### (b)                                     If the Agent pays an amount toanother Party and it proves to be the case that the Agent had not actuallyreceived that amount, then the Party to whom that amount (or the proceeds ofany related exchange contract) was paid by the Agent shall on demand refund thesame to the Agent together with interest on that amount from the date ofpayment to the date of receipt by the Agent, calculated by the Agent to reflectits cost of funds.

 

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## **28.5**                     Partial payments

### (a)                                      If the Agent receives apayment that is insufficient to discharge all the amounts then due and payableby an Obligor under the Finance Documents, the Agent shall apply that paymenttowards the obligations of that Obligor under the Finance Documents in thefollowing order:

#### (i)                        **first**, in or towards payment prorata of any unpaid fees, costs and expenses of the Agent and the Arranger underthe Finance Documents;

#### (ii)                     **secondly**, in or towards payment prorata of any accrued interest, fee or commission due but unpaid under thisAgreement;

#### (iii)                  **thirdly**, in or towards payment prorata of any principal due but unpaid under this Agreement; and

#### (iv)                 **fourthly**, in or towards payment prorata of any other sum due but unpaid under the Finance Documents.

### (b)                                     The Agent shall, if sodirected by the Majority Lenders, vary the order set out inparagraphs (a)(ii) to (iv) above.

### (c)                                      Paragraphs (a) and (b) abovewill override any appropriation made by an Obligor.

## **28.6**                     No set-off by Obligors

Allpayments to be made by an Obligor under the Finance Documents shall becalculated and be made without (and free and clear of any deduction for)set-off or counterclaim.

## **28.7**                     Business Days

### (a)                                      Any payment which is due to bemade on a day that is not a Business Day shall be made on the next Business Dayin the same calendar month (if there is one) or the preceding Business Day (ifthere is not).

### (b)                                     During any extension of thedue date for payment of any principal or Unpaid Sum under this Agreementinterest is payable on the principal or Unpaid Sum at the rate payable on theoriginal due date.

## **28.8**                     Currency of account

### (a)                                      Subject to paragraphs (b)and (c) below, dollars is the currency of account and payment for any sum duefrom an Obligor under any Finance Document.

### (b)                                     Each payment in respect ofcosts, expenses or Taxes shall be made in the currency in which the costs,expenses or Taxes are incurred.

### (c)                                      Any amount expressed to bepayable in a currency other than dollars shall be paid in that other currency.

 

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## **28.9**                     Change of currency

### (a)                                      Unless otherwise prohibited bylaw, if more than one currency or currency unit are at the same time recognisedby the central bank of any country as the lawful currency of that country,then:

#### (i)                        any reference in the FinanceDocuments to, and any obligations arising under the Finance Documents in, thecurrency of that country shall be translated into, or paid in, the currency orcurrency unit of that country designated by the Agent (after consultation withthe Parent); and

#### (ii)                     any translation from one currency orcurrency unit to another shall be at the official rate of exchange recognisedby the central bank for the conversion of that currency or currency unit intothe other, rounded up or down by the Agent (acting reasonably).

### (b)                                     If a change in any currency ofa country occurs, this Agreement will, to the extent the Agent (actingreasonably and after consultation with the Parent) specifies to be necessary, be amended to comply with anygenerally accepted conventions and market practice in the Relevant InterbankMarket and otherwise to reflect the change in currency.

# **29.**                           SET-OFF

AFinance Party may set off any matured obligation due from an Obligor under theFinance Documents (to the extent beneficially owned by that Finance Party)against any matured obligation owed by that Finance Party to that Obligor,regardless of the place of payment, booking branch or currency of eitherobligation.  If the obligations are indifferent currencies, the Finance Party may convert either obligation at amarket rate of exchange in its usual course of business for the purpose of theset-off.

# **30.**                           NOTICES

## **30.1**                     Communications in writing

Anycommunication to be made under or in connection with the Finance Documentsshall be made in writing and, unless otherwise stated, may be made by fax orletter.

## **30.2**                     Addresses

The address and fax number (and the department or officer,if any, for whose attention the communication is to be made) of each Party forany communication or document to be made or delivered under or in connectionwith the Finance Documents is:

### (a)                                      in the case of the Parent, that identified with its namebelow;

### (b)                                     in the case of each Lender orany other Obligor, that notified in writing to the Agent on or prior to thedate on which it becomes a Party; and

### (c)                                      in the case of the Agent, thatidentified with its name below,

 

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or anysubstitute address or fax number or department or officer as the Party maynotify to the Agent (or the Agent may notify to the other Parties, if a changeis made by the Agent) by not less than five Business Days’ notice.

## **30.3**                     Delivery

### (a)                                      Any communication or documentmade or delivered by one person to another under or in connection with theFinance Documents will only be effective:

#### (i)                        if by way of fax, whenreceived in legible form; or

#### (ii)                     if by way of letter, when it has been leftat the relevant address or five Business Days after being deposited in the postpostage prepaid in an envelope addressed to it at that address,

and, ifa particular department or officer is specified as part of its address detailsprovided under Clause 30.2 (*Addresses*), ifaddressed to that department or officer.

### (b)                                     Any communication or documentto be made or delivered to the Agent will be effective only when actuallyreceived by the Agent and then only if it is expressly marked for the attentionof the department or officer identified with the Agent’s signature below (orany substitute department or officer as the Agent shall specify for thispurpose).

### (c)                                      All notices from or to anObligor shall be sent through the Agent.

### (d)                                     Any communication or documentmade or delivered to the Parentin accordance with this Clause will be deemed to have been made ordelivered to each of the Obligors.

## **30.4**                     Notification of address andfax number

Promptlyupon receipt of notification of an address and fax number or change of addressor fax number pursuant to Clause 30.2 (*Addresses*) orchanging its own address or fax number, the Agent shall notify the otherParties.

## **30.5**                     Electronic communication

### (a)                                      Any communication to be madebetween the Agent and a Lender under or in connection with the FinanceDocuments may be made by electronic mail or other electronic means, if theAgent and the relevant Lender:

#### (i)                        agree that, unless and untilnotified to the contrary, this is to be an accepted form of communication;

#### (ii)                     notify each other in writing of theirelectronic mail address and/or any other information required to enable thesending and receipt of information by that means; and

#### (iii)                  notify each other of any change to theiraddress or any other such information supplied by them.

 

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### (b)                                     Any electronic communicationmade between the Agent and a Lender will be effective only when actuallyreceived in readable form and in the case of any electronic communication madeby a Lender to the Agent only if it is addressed in such a manner as the Agentshall specify for this purpose.

## **30.6**                     English language

### (a)                                      Any notice given under or inconnection with any Finance Document must be in English.

### (b)                                     All other documents providedunder or in connection with any Finance Document must be:

#### (i)                        in English; or

#### (ii)                     if not in English, and if so required bythe Agent, accompanied by a certified English translation and, in this case,the English translation will prevail unless the document is a constitutional,statutory or other official document.

# **31.**                           CALCULATIONS AND CERTIFICATES

## **31.1**                     Accounts

In anylitigation or arbitration proceedings arising out of or in connection with aFinance Document, the entries made in the accounts maintained by a Finance Partyare *prima facie* evidence of the matters towhich they relate.

## **31.2**                     Certificates andDeterminations

Anycertification or determination by a Finance Party of a rate or amount under anyFinance Document is, in the absence of manifest error, conclusive evidence ofthe matters to which it relates.

## **31.3**                     Day count convention

Anyinterest, commission or fee accruing under a Finance Document will accrue fromday to day and is calculated on the basis of the actual number of days elapsedand a year of 360 days or, in any case where the practice in the RelevantInterbank Market differs, in accordance with that market practice.

# **32.**                           PARTIAL INVALIDITY

If, atany time, any provision of the Finance Documents is or becomes illegal, invalidor unenforceable in any respect under any law of any jurisdiction, neither thelegality, validity or enforceability of the remaining provisions nor thelegality, validity or enforceability of such provision under the law of anyother jurisdiction will in any way be affected or impaired.

# **33.**                           REMEDIES AND WAIVERS

Nofailure to exercise, nor any delay in exercising, on the part of any FinanceParty, any right or remedy under the Finance Documents shall operate as awaiver, nor shall any single

 

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orpartial exercise of any right or remedy prevent any further or other exerciseor the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative andnot exclusive of any rights or remedies provided by law.

# **34.**                           AMENDMENTS AND WAIVERS

## **34.1**                     Required consents

### (a)                                      Subject to Clause 34.2 (*Exceptions*) any term of the Finance Documents may be amendedor waived only with the consent of the Majority Lenders and the Parent and anysuch amendment or waiver will be binding on all Parties.

### (b)                                     The Agent may effect, onbehalf of any Finance Party, any amendment or waiver permitted by thisClause 34.

## **34.2**                     Exceptions

### (a)                                      An amendment or waiver thathas the effect of changing or which relates to:

#### (i)                        the definition of “MajorityLenders” in Clause 1.1 (*Definitions*);

#### (ii)                     an extension to the date of payment of anyamount under the Finance Documents;

#### (iii)                  a reduction in the Margin or a reduction inthe amount of any payment of principal, interest, fees or commission payable;

#### (iv)                 an increase in or an extension of anyCommitment;

#### (v)                    a change to the Borrowers or Guarantors(other than in accordance with Clause 24 (*Changesto the Obligors*));

#### (vi)                 any provision which expressly requires theconsent of all the Lenders;

#### (vii)              Clause 2.2 (*FinanceParties’ rights and obligations*), Clause 23 (*Changes to the Lenders*) or this Clause 34.

shallnot be made without the prior consent of all the Lenders.

### (b)                                     An amendment or waiver whichrelates to the rights or obligations of the Agent or the Arranger may not beeffected without the consent of the Agent or the Arranger.

# **35.**                           COUNTERPARTS

Each Finance Document may be executed inany number of counterparts, and this has the same effect as if the signatureson the counterparts were on a single copy of the Finance Document.

 

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**SECTION12GOVERNING LAW AND ENFORCEMENT**

# **36.**                           GOVERNING LAW

ThisAgreement is governed by English law.

# **37.**                           ENFORCEMENT

## **37.1**                     Jurisdiction

### (a)                                      The courts of England haveexclusive jurisdiction to settle any dispute arising out of or in connectionwith this Agreement (including a dispute regarding the existence, validity ortermination of this Agreement) (a “**Dispute**”).

### (b)                                     The Parties agree that thecourts of England are the most appropriate and convenient courts to settleDisputes and accordingly no Party will argue to the contrary.

### (c)                                      This Clause 37.1 is forthe benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedingsrelating to a Dispute in any other courts with jurisdiction.  To the extent allowed by law, the FinanceParties may take concurrent proceedings in any number of jurisdictions.

## **37.2**                     Service of process

Without prejudice to any other mode of service allowedunder any relevant law, each Obligor (other than an Obligor incorporated inEngland and Wales):

### (a)                                      irrevocably appoints LawDebenture Corporate Services Limited as its agent for service of process (inthe case of an Obligor incorporated in South Africa, *domicilium citandi et executandi*) in relation to anyproceedings before the English courts in connection with any Finance Document;and

### (b)                                     agrees that failure by anagent for service of process to notify the relevant Obligor of the process willnot invalidate the proceedings concerned.

**This Agreement has been entered into on the date stated atthe beginning of this Agreement.**

 

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**SCHEDULE 1**THE ORIGINAL PARTIES

**Part IThe Obligors**
| **Name of Original  Borrower**                                                          | ** ** | **Registration number (or  equivalent, if any)** |
|-----------------------------------------------------------------------------------------|------------|--------------------------------------------------|
| ** **                                                                              | ** ** | ** **                                       |
| GFI Mining South Africa (Proprietary)  Limited, incorporated in South Africa            |       | 2002/031431/07                                   |
|                                                                                    |       |                                             |
|                                                                                    |       |                                             |
|                                                                                    |       |                                             |
|                                                                                    |       |                                             |
| **Name of Original  Guarantors**                                                        | ** ** | **Registration number (or  equivalent, if any)** |
| Gold Fields Limited, incorporated in South  Africa                                      |       | 1968/004880/06                                   |
| Gold Fields Holdings Company (BVI)  Limited, incorporated in the British Virgin Islands |       | 651406                                           |
| Orogen Holding (BVI) Limited,  incorporated in the British Virgin Islands               |       | 184982                                           |

 

 

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**Part IIThe Original Lenders**
| **Name of Original Lender**  | ** ** | **Commitment** | ** **    |
|------------------------------|------------|----------------|---------------|
| Citibank, N.A. London Branch |       | $              | 900,000,000   |   |
| JPMorgan Chase Bank, N.A.    |       | $              | 900,000,000   |   |
|                         |       | $              | 1,800,000,000 |   |

 

 

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**SCHEDULE 2**CONDITIONS PRECEDENT

**Part IConditions precedent to initial utilisation**

 

1.                                 **Obligors**

(a)                                      A copy of the constitutionaldocuments of each Obligor.

(b)                                     A copy of a good standingcertificate with respect to Gold Fields Holdings Company (BVI) Limited andOrogen Holding (BVI) Limited, issued as of a recent date by the appropriateofficial in the British Virgin Islands.

(c)                                      A copy of a resolution of theboard of directors of each Obligor:

(i)                        approving the terms of, andthe transactions contemplated by, the Finance Documents to which it is a partyand resolving that it execute the Finance Documents to which it is a party;

(ii)                     authorising a specified person or personsto execute the Finance Documents to which it is a party on its behalf; and

(iii)                  authorising a specified person or persons,on its behalf, to sign and/or dispatch all documents and notices (including, ifrelevant, any Utilisation Request and Selection Notice) to be signed and/ordispatched by it under or in connection with the Finance Documents to which itis a party.

(d)                                     A specimen of the signature ofeach person authorised by the resolution referred to in paragraph (c)above.

(e)                                      A certificate of incumbencyfrom the registered agent for Gold Fields Holdings Company (BVI) Limited andOrogen Holding (BVI) Limited.

(f)                                        A copy of the resolution ofthe shareholders of Gold Fields Holdings Company (BVI) Limited and OrogenHolding (BVI) Limited approving the relevant resolutions of the board ofdirectors and the transactions contemplated thereby.

(g)                                     A certificate of the Obligors(signed by a director) confirming that borrowing or guaranteeing, asappropriate, the Total Commitments would not cause any borrowing, guaranteeingor similar limit binding on any Obligor to be exceeded.

(h)                                     A certificate of an authorisedsignatory of the relevant Obligor certifying that each copy document relatingto it specified in this Part 1 of Schedule 2 is correct, complete and infull force and effect as at a date no earlier than the date of this Agreement.

 

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2.                                 **Legalopinions**

(a)                                      A legal opinion of CliffordChance LLP legal advisers to the Arranger and the Agent in England,substantially in the form distributed to the Original Lenders prior to signingthis Agreement.

(b)                                     A legal opinion of ConyersDill & Pearman, legal advisers to the Arranger and Agent in the BritishVirgin Islands, substantially in the form distributed to the Original Lendersprior to signing this Agreement.

(c)                                      A legal opinion of EdwardNathan (Proprietary Limited), legal advisers to the Arranger and Agent in SouthAfrica, substantially in the form distributed to the Original Lenders prior tosigning this Agreement.

3.                                 **Otherdocuments and evidence**

(a)                                      A certificate from the Parentconfirming that the conditions to the completion of the Acquisition as set outin the Share Purchase Agreement have been satisfied or waived (other than thepayment of the purchase price).

(b)                                     Evidence that any agent forservice of process referred to in Clause 37.2 (*Service ofprocess*) has accepted its appointment.

(c)                                      The Original FinancialStatements together with the latest audited financial statements of each otherObligor (other than Gold Fields Holdings Company (BVI) Limited and OrogenHolding (BVI) Limited).

(d)                                     Evidence that the fees, costsand expenses then due from the Parentpursuant to Clause 11 (*Fees*) andClause 16 (*Costs and expenses*) have beenpaid or will be paid by the initial Utilisation Date.

(e)                                      A copy of the approval of theExchange Control Department of the South African Reserve Bank confirming thatGold Fields Limited may enter into and provide the guarantee as contemplated bythis Agreement and that the Original Borrower may enter into and implement theprovisions of this Agreement. If such approval is granted conditionally, thiscondition precedent shall not be considered to have been fulfilled, unless boththe Lenders and the Original Borrower acknowledge in writing to each other thatsuch conditions are acceptable.

(f)                                        Competition Tribunal approvalfor the Acquisition.

(g)                                     A copy of any authorisation orconsent (to include any relevant corporate, regulatory and shareholder consent)which the Agent considers to be necessary or desirable in connection with theentry into and performance of the transactions contemplated by this Agreementor for the validity and enforceability of any Finance Document.

 

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**Part IIConditions Precedent Required to be delivered by an Additional Borrower**

1.                                 An Accession Letter, dulyexecuted by the Additional Borrower and the Parent.

2.                                 A copy of a good standingcertificate with respect to any Additional Borrower incorporated in the BritishVirgin Islands, issued as of a recent date by the appropriate official in theBritish Virgin Islands.

3.                                 A copy of the constitutionaldocuments of the Additional Borrower.

4.                                 A copy of a resolution of theboard of directors of the Additional Borrower:

(a)                                      approving the terms of, andthe transactions contemplated by, the Accession Letter and the FinanceDocuments and resolving that it execute the Accession Letter;

(b)                                     authorising a specified personor persons to execute the Accession Letter on its behalf; and

(c)                                      authorising a specified personor persons, on its behalf, to sign and/or despatch all other documents andnotices (including, in relation to an Additional Borrower, any UtilisationRequest or Selection Notice) to be signed and/or despatched by it under or inconnection with the Finance Documents.

5.                                 A specimen of the signature ofeach person authorised by the resolution referred to in paragraph 4 above.

6.                                 A certificate of incumbencyfrom the registered agent of each Additional Borrower incorporated in theBritish Virgin Islands.

7.                                 A certificate of theAdditional Borrower (signed by a director) confirming that borrowing orguaranteeing, as appropriate, the Total Commitments would not cause anyborrowing, guaranteeing or similar limit binding on it to be exceeded.

8.                                 A certificate of an authorisedsignatory of the Additional Borrower certifying that each copy document listedin this Part II of Schedule 2 is correct, complete and in full force and effectas at a date no earlier than the date of the Accession Letter.

9.                                 A copy of any otherauthorisation or other document, opinion or assurance which the Agent considersto be necessary or desirable in connection with the entry into and performanceof the transactions contemplated by the Accession Letter or for the validityand enforceability of any Finance Document.

10.                           If available, the latestaudited financial statements of the Additional Borrower.

11.                           A legal opinion from legaladvisers to the Agent in England.

 

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12.                           If the Additional Borrower isincorporated in a jurisdiction other than England and Wales, a legal opinion ofthe legal advisers to the Arranger and the Agent in the jurisdiction in whichthe Additional Borrower is incorporated.

13.                           If the proposed AdditionalBorrower is incorporated in a jurisdiction other than England and Wales,evidence that the agent for service of process specified in Clause 37.2 (*Service of process*) has accepted its appointment in relationto the proposed Additional Borrower.

 

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** **

**Part IIIConditions Precedent required to be delivered by an Additional Guarantor**

1.                                 An Accession Letter, dulyexecuted by the Additional Guarantor and the Company.

2.                                 A copy of the constitutionaldocuments of the Additional Guarantor.

3.                                 A copy of a good standingcertificate with respect to any Additional Guarantor incorporated in theBritish Virgin Islands, issued as of a recent date by the appropriate officialin the British Virgin Islands.

4.                                 A copy of a resolution of theboard of directors of the Additional Guarantor:

(a)                                      approving the terms of, andthe transactions contemplated by, the Accession Letter and the FinanceDocuments and resolving that it execute the Accession Letter;

(b)                                     authorising a specified personor persons to execute the Accession Letter on its behalf; and

(c)                                      authorising a specified personor persons, on its behalf, to sign and/or dispatch all other documents andnotices to be signed and/or despatched by it under or in connection with theFinance Documents.

5.                                 A specimen of the signature ofeach person authorised by the resolution referred to in paragraph 4 above.

6.                                 A certificate of incumbencyfrom the registered agent of each Additional guarantor incorporated in theBritish Virgin Islands.

7.                                 A copy of a resolution signedby all the holders of the issued shares of the Additional Guarantor, approvingthe terms of, and the transactions contemplated by, the Finance Documents towhich the Additional Guarantor is a party.

8.                                 A certificate of theAdditional Guarantor (signed by a director) confirming that guaranteeing theTotal Commitments would not cause any borrowing, guaranteeing or similar limitbinding on it to be exceeded.

9.                                 A certificate of an authorisedsignatory of the Additional Guarantor certifying that each copy document listedin this Part III of Schedule 2 is correct, complete and in full force andeffect as at a date no earlier than the date of the Accession Letter.

10.                           A copy of any otherAuthorisation or other document, opinion or assurance which the Agent considersto be necessary or desirable in connection with the entry into and performanceof the transactions contemplated by the Accession Letter or for the validityand enforceability of any Finance Document.

11.                           If available, the latestaudited financial statements of the Additional Guarantor.

12.                           A legal opinion from legaladvisers to the Agent in England.

 

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13.                           If the Additional Guarantor isincorporated in a jurisdiction other than England and Wales, a legal opinion ofthe legal advisers to the Agent in the jurisdiction in which the AdditionalGuarantor is incorporated.

14.                           If the Additional Guarantor isincorporated in a jurisdiction other than England and Wales, evidence that theagent for service of process specified in Clause 37.2 (*Service of process*) has accepted itsappointment in relation to the proposed Additional Guarantor.

15.                           A copy of the approval of theExchange Control Department of the South African Reserve Bank confirming thatany Additional Guarantor incorporated in South Africa may enter into andprovide the guarantees as contemplated by this Agreement.

 

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**SCHEDULE 3**REQUESTS

** **

**Part IUtilisation Request**

 

From:      [*Borrower*]

To:          [J.P. Morgan Europe Limited]

Dated:

DearSirs

**GFI Mining South Africa(Proprietary) Limited — US$1,800,000,000 Bridge Loan Facility Agreement dated[•] 2006 (the**“**Agreement**”**)**

1.                                 We refer to the Agreement. Thisis a Utilisation Request. Terms defined in the Agreement have the same meaningin this Utilisation Request unless given a different meaning in thisUtilisation Request.

2.                                 We wish to borrow a Loan onthe following terms:
| Proposed Utilisation Date: | [      ] (or, if that  is not a Business Day, the next Business Day) |
|----------------------------|----------------------------------------------------------------------------------------------------|
| Currency of Loan:          | Dollars                                                                                            |
| Amount:                    | [            ]                         |
| Interest  Period:          | [            ]                         |

 

3.                                 We confirm that each conditionspecified in Clause 4.2 (*Further conditionsprecedent*) is satisfied on the date of this Utilisation Request.

4.                                 The proceeds of this Loanshould be credited to [*account*].

5.                                 This Utilisation Request isirrevocable.

Yoursfaithfully

 

 

|                           |
|--------------------------------|
| authorised signatory for       |
| [*name of relevant  Borrower*] |

 

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**Part IISelection Notice**

From:      [*Borrower*]

To:          [J.P. Morgan Europe Limited]

Dated:

DearSirs

**GFIMining South Africa (Proprietary) Limited - US$1,800,000,000 Bridge LoanFacility Agreement dated [•] 2006 (the**“**Agreement**”**)**

1.                                 We refer to the Agreement. Thisis a Selection Notice. Terms defined in the Agreement have the same meaning inthis Selection Notice unless given a different meaning in this SelectionNotice.

2.                                 We refer to the followingLoans with an Interest Period ending on[         ]*.

3.                                 [We request that the aboveLoans be divided into[             ]Loans of the following amounts and with the following Interest Periods:]**

*or*

[Werequest that the next Interest Period for the above Loans is [               ]].***

4.                                 This Selection Notice isirrevocable.

Yours faithfully

 

|                                                       |
|------------------------------------------------------------|
| authorised signatory for  Gold Fields Limited on behalf of |
| [*name of relevant  Borrower*]                             |

 

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*              Insertdetails of all Loans in the same currency which have an Interest Period endingon the same date.

**           Usethis option if division of Loans is requested.

***         Usethis option if sub-division is not required.

 

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**SCHEDULE 4**MANDATORY COST FORMULAE

1.                                 The Mandatory Cost is anaddition to the interest rate to compensate Lenders for the cost of compliancewith (a) the requirements of the Bank of England and/or the Financial ServicesAuthority (or, in either case, any other authority which replaces all or any ofits functions) or (b) the requirements of the European Central Bank.

2.                                 On the first day of eachInterest Period (or as soon as possible thereafter) the Agent shall calculate,as a percentage rate, a rate (the “**Additional Cost Rate**”)for each Lender, in accordance with the paragraphs set out below. The MandatoryCost will be calculated by the Agent as a weighted average of the Lenders’Additional Cost Rates (weighted in proportion to the percentage participationof each Lender in the relevant Loan) and will be expressed as a percentage rateper annum.

3.                                 The Additional Cost Rate forany Lender lending from a Facility Office in a Participating Member State will bethe percentage notified by that Lender to the Agent. This percentage will becertified by that Lender in its notice to the Agent to be its reasonabledetermination of the cost (expressed as a percentage of that Lender’sparticipation in all Loans made from that Facility Office) of complying withthe minimum reserve requirements of the European Central Bank in respect ofloans made from that Facility Office.

4.                                 The Additional Cost Rate forany Lender lending from a Facility Office in the United Kingdom will becalculated by the Agent as follows:

 per cent. per annum.

Where:

E                           is designed to compensateLenders for amounts payable under the Fees Rules and is calculated by the Agentas being the average of the most recent rates of charge supplied by the ReferenceBanks to the Agent pursuant to paragraph 7 below and expressed in pounds per£1,000,000.

5.                                 For the purposes of thisSchedule:

(a)                                      “**Fees Rules**”means the rules on periodic fees contained in the FSA Supervision Manual orsuch other law or regulation as may be in force from time to time in respect ofthe payment of fees for the acceptance of deposits;

(b)                                     “**Fee Tariffs**”means the fee tariffs specified in the Fees Rules under the activity group A.1Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuantto the Fees Rules but taking into account any applicable discount rate); and

(c)                                      “**Tariff Base**”has the meaning given to it in, and will be calculated in accordance with, theFees Rules.

 

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6.                                 If requested by the Agent,each Reference Bank shall, as soon as practicable after publication by theFinancial Services Authority, supply to the Agent, the rate of charge payableby that Reference Bank to the Financial Services Authority pursuant to the FeesRules in respect of the relevant financial year of the Financial ServicesAuthority (calculated for this purpose by that Reference Bank as being theaverage of the Fee Tariffs applicable to that Reference Bank for that financialyear) and expressed in pounds per £1,000,000 of the Tariff Base of thatReference Bank.

7.                                 Each Lender shall supply anyinformation required by the Agent for the purpose of calculating its AdditionalCost Rate. In particular, but without limitation, each Lender shall supply thefollowing information on or prior to the date on which it becomes a Lender:

(a)                                      the jurisdiction of itsFacility Office; and

(b)                                     any other information that theAgent may reasonably require for such purpose.

EachLender shall promptly notify the Agent of any change to the informationprovided by it pursuant to this paragraph.

8.                                 The percentages of each Lenderfor the purpose of E above shall be determined by the Agent based upon theinformation supplied to it pursuant to paragraphs 6 and 7 above and on theassumption that, unless a Lender notifies the Agent to the contrary, eachLender’s obligations in relation to cash ratio deposits are the same as thoseof a typical bank from its jurisdiction of incorporation with a Facility Officein the same jurisdiction as its Facility Office.

9.                                 The Agent shall have noliability to any person if such determination results in an Additional CostRate which over or under compensates any Lender and shall be entitled to assumethat the information provided by any Lender or Reference Bank pursuant toparagraphs 3, 6 and 7 above is true and correct in all respects.

10.                           The Agent shall distribute theadditional amounts received as a result of the Mandatory Cost to the Lenders onthe basis of the Additional Cost Rate for each Lender based on the informationprovided by each Lender and each Reference Bank pursuant to paragraphs 3, 6 and7 above.

11.                           Any determination by the Agentpursuant to this Schedule in relation to a formula, the Mandatory Cost, anAdditional Cost Rate or any amount payable to a Lender shall, in the absence ofmanifest error, be conclusive and binding on all Parties.

12.                           The Agent may from time totime, after consultation with the Parent and the Lenders, determine and notifyto all Parties any amendments which are required to be made to this Schedule inorder to comply with any change in law, regulation or any requirements fromtime to time imposed by the Financial Services Authority or, the EuropeanCentral Bank (or, in any case, any other authority which replaces all or any ofits functions) and any such determination shall, in the absence of manifesterror, be conclusive and binding on all Parties.

 

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**SCHEDULE 5**FORM OF TRANSFER CERTIFICATE

To:          [J.P. Morgan Europe Limited] as Agent

From:      [*The Existing Lender*](the “**Existing Lender**”) and [*The New Lender*] (the “**New Lender**”)

Dated:

**GFI Mining South Africa(Proprietary) Limited — US$1,800,000,000 Bridge Loan Facility Agreement dated[•] 2006 (the**“**Agreement**”**)**

1.                                 We refer to the Agreement. Thisis a Transfer Certificate. Terms defined in the Agreement have the same meaningin this Transfer Certificate unless given a different meaning in this TransferCertificate.

2.                                 We refer to Clause 23.5 (*Procedure for transfer*):

(a)                                      The Existing Lender and theNew Lender agree to the Existing Lender transferring to the New Lender bynovation all or part of the Existing Lender’s Commitment, rights andobligations referred to in the Schedule in accordance with Clause 23.5 (*Procedure for transfer*).

(b)                                     The proposed Transfer Date is[      ].

(c)                                      The Facility Office andaddress, fax number and attention details for notices of the New Lender for thepurposes of Clause 30.2 (*Addresses*) areset out in the Schedule.

3.                                 The New Lender expresslyacknowledges the limitations on the Existing Lender’s obligations set out inparagraph (c) of Clause 23.4 (*Limitation ofresponsibility of Existing Lenders*).

4.                                 This Transfer Certificate maybe executed in any number of counterparts and this has the same effect as ifthe signatures on the counterparts were on a single copy of this TransferCertificate.

5.                                 This Transfer Certificate isgoverned by English law.

**THESCHEDULECOMMITMENT/RIGHTS AND OBLIGATIONS TO BETRANSFERRED**

[*insert relevant details*][*Facility Office address, fax number and attentiondetails for notices and account details for payments,*]
| [Existing Lender] | [New Lender] |
|-------------------|--------------|
|              |         |
| By:               | By:          |

 

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ThisTransfer Certificate is accepted by the Agent and the Transfer Date isconfirmed as[           ].

**[•]**

By:

 

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**SCHEDULE 6**FORM OF ACCESSION LETTER

To:          J.P.Morgan Europe Limited as Agent

From:      [Subsidiary]and Gold Fields Limited

Dated:

Dear Sirs

**GFI Mining South Africa (Proprietary) Limited —US$1,800,000,000 Facility Agreement dated [•] 2006 (the “Agreement”)**

1.                                 We refer to the Agreement. Thisis an Accession Letter. Terms defined in the Agreement have the same meaning inthis Accession Letter unless given a different meaning in this AccessionLetter.

2.                                 [Subsidiary] agrees to becomean Additional [Borrower]/[Guarantor] and to be bound by the terms of theAgreement as an Additional [Borrower]/[Guarantor] pursuant to Clause [24.2 (*Additional Borrowers*)]/[24.4 (*Additional Guarantors*)] of the Agreement. [Subsidiary]is a wholly owned Subsidiary of the Parent duly incorporated under the laws of[name of relevant jurisdiction].

3.                                 [*Specify purpose of the Loan*].

4.                                 [Subsidiary’s] administrativedetails are as follows:

Address:

Fax No:

Attention:

5.                                 This Accession Letter isgoverned by English law.

 
| Gold Fields Limited | [Subsidiary] |
|---------------------|--------------|
|                |         |
| By:                 | By:          |

 

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**SCHEDULE 7**FORM OF RESIGNATION LETTER

To:          J.P.Morgan Europe Limited as Agent

From:      [resigningObligor] and Gold Fields Limited

Dated:

Dear Sirs

**GFI Mining South Africa (Proprietary) Limited —US$1,800,000,000 Bridge Facility Agreement dated [•] 2006 (the “Agreement”)**

1.                                 We refer to the Agreement. Thisis a Resignation Letter. Terms defined in the Agreement have the same meaningin this Resignation Letter unless given a different meaning in this AccessionLetter.

2.                                 Pursuant to [Clause 24.3 (*Resignation of an Additional Borrower*)]/[Clause24.6 (*Resignation of an Additional Guarantor*)],we request that [resigning Obligor] be released from its obligations as a[Borrower]/[Guarantor] under the Agreement.

3.                                 We confirm that no default iscontinuing or would result from the acceptance of this request.

4.                                 This Resignation Letter isgoverned by English law.

 
| Gold Fields Limited | [Subsidiary] |
|---------------------|--------------|
|                |         |
| By:                 | By:          |

 

 

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**SCHEDULE 8**FORM OF COMPLIANCE CERTIFICATE

To:          [J.P. Morgan Europe Limited]

From: GoldFields Limited

Dated:

DearSirs

**GFIMining South Africa (Proprietary) Limited — US$1,800,000,000 Facility Agreementdated [•] 2006 (the**“**Agreement**”**)**

1.                                 We refer to the Agreement. Thisis a Compliance Certificate. Terms defined in the Agreement have the samemeaning when used in this Compliance Certificate unless given a differentmeaning in this Compliance Certificate.

2.                                 We confirm that as at [ ]:

(a)                                      **Consolidated EBITDA toConsolidated Net Finance Charges**

theratio of Consolidated EBITDA to Consolidated Net Finance Charges in respect ofthe Measurement Period ending on [ ] was:[      ] : 1; and

(b)                                     **Consolidated NetBorrowings to Consolidated EBITDA**

theratio of Consolidated Net Borrowings to Consolidated EBITDA in respect of theMeasurement Period ending on [ ] was: [      ] :1,

andattach calculations showing how these figures were calculated.

3.                                 We confirm that no Default iscontinuing.

 
| Signed:  |                |                |   |   |
|----------|---------------------|---------------------|--------|--------|
|     | Director            | Director            |
|     | of                  | Of                  |
| * * | Gold Fields Limited | Gold Fields Limited |

 

[*insert applicable certification language*]

 
|                                |   |
|-------------------------------------|--------|
| [or and on behalf of                |
| [*name of auditors of the  Parent*] |

 

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**SCHEDULE 9**TIMETABLE

 

“U” =date of utilisation

“U - X”= X Business Days prior to date of Utilisation

 
| Delivery of a duly completed Utilisation  Request (Clause 5.1 (*Delivery of a  Utilisation Request*) or a Selection Notice (Clause 9.1 (*Selection of Interest Periods*)) |   | U-3*  10.00 a.m.  |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|-------------------|
| Agent notifies the Lenders of the Loan in  accordance with Clause 5.4 (*Lenders’ participation*)                                                                          |   | U-3*  3.00 p.m.   |
| LIBOR is fixed                                                                                                                                                                      |   | U-2**  11:00 a.m. |

 

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*provided that, in respect of the first Utilisation only, the Specified Timeshall be U-2

**provided that, in respect of the first Utilisation only, the Specified Timeshall be U-1

 

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**SIGNATURES**

**The****Parent**

**GOLD FIELDS LIMITED**
| By:        |   |                                       |
|------------|--------|--------------------------------------------|
|       |   |                                       |
| Name:      |   |                                       |
|       |   |                                       |
| Address:   |   | 24 St  Andrews Road                        |
|       |   | Parktown,  2193                            |
|       |   | Johannesburg                               |
|       |   | South Africa                               |
|       |   |                                       |
| Tel:       |   | +27 11 644  2400                           |
|       |   |                                       |
| Fax:       |   | +27 11 484 4882                            |
|       |   |                                       |
| Attention: |   | Executive Vice President - General Counsel |

 

**The Original Borrower**

**GFI MINING SOUTH AFRICA(PROPRIETARY) LIMITED**
| By:        |   |                                       |
|------------|--------|--------------------------------------------|
|       |   |                                       |
| Name:      |   |                                       |
|       |   |                                       |
| Address:   |   | 24 St  Andrews Road                        |
|       |   | Parktown,  2193                            |
|       |   | Johannesburg                               |
|       |   | South Africa                               |
|       |   |                                       |
| Tel:       |   | +27 11 644  2400                           |
|       |   |                                       |
| Fax:       |   | +27 11 484 4882                            |
|       |   |                                       |
| Attention: |   | Executive Vice President - General Counsel |

 

 

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**The Original Guarantors**

**GOLD FIELDS LIMITED**
| By:        |   |                                       |
|------------|--------|--------------------------------------------|
|       |   |                                       |
| Name:      |   |                                       |
|       |   |                                       |
| Address:   |   | 24 St  Andrews Road                        |
|       |   | Parktown,  2193                            |
|       |   | Johannesburg                               |
|       |   | South Africa                               |
|       |   |                                       |
| Tel:       |   | +27 11 644  2400                           |
|       |   |                                       |
| Fax:       |   | +27 11 484 4882                            |
|       |   |                                       |
| Attention: |   | Executive Vice President - General Counsel |

 

**GOLD FIELDS HOLDINGS COMPANY (BVI)LIMITED**
| By:        |   |                      |
|------------|--------|---------------------------|
|       |   |                      |
| Name:      |   |                      |
|       |   |                      |
| Address:   |   | Falcon Cliff, Palace Road |
|       |   | Douglas                   |
|       |   | Isle of Man               |
|       |   | IM99 1EP                  |
|       |   | British Isles             |
|       |   |                      |
| Tel:       |   | +44 (0) 1624 63 00 00     |
|       |   |                      |
| Fax:       |   | +44 (0) 1624 63 00 01     |
|       |   |                      |
| Attention: |   | Company Secretary         |

 

**OROGEN HOLDING (BVI) LIMITED**
| By:      |   |                      |
|----------|--------|---------------------------|
|     |   |                      |
| Name:    |   |                      |
|     |   |                      |
| Address: |   | Falcon Cliff, Palace Road |
|     |   | Douglas                   |
|     |   | Isle of Man               |
|     |   | IM99 1EP                  |
|     |   | British Isles             |

 

95

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| Tel:       |   | +44 (0) 1624 63 00 00 |
|------------|--------|-----------------------|
|       |   |                  |
| Fax:       |   | +44 (0) 1624 63 00 01 |
|       |   |                  |
| Attention: |   | Company Secretary     |

 

96

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**The Arrangers**

**CITIBANK, N.A. LONDON BRANCH**
| By:        |   |                 |
|------------|--------|----------------------|
|       |   |                 |
| Name:      |   |                 |
|       |   |                 |
| Address:   |   | Citigroup  Centre    |
|       |   | Canada  Square       |
|       |   | Canary Wharf         |
|       |   | London               |
|       |   | E14 5LB              |
|       |   |                 |
|       |   |                 |
| Tel:       |   | +44 (0) 20 7986 7085 |
|       |   |                 |
| Fax:       |   | +44 (0) 20 7986 1912 |
|       |   |                 |
| Attention: |   |                 |

 

**J.P. MORGAN PLC**
| By:        |   |                 |
|------------|--------|----------------------|
|       |   |                 |
| Name:      |   |                 |
|       |   |                 |
| Address:   |   | 125 London  Wall     |
|       |   | London               |
|       |   | EC2Y 5AJ             |
|       |   |                 |
|       |   |                 |
| Fax:       |   | +44 (0) 20 7777 4613 |
|       |   |                 |
| Attention: |   |                 |

 

**The Agent**

**J.P. MORGAN EUROPE LIMITED**
| By:        |   |                 |
|------------|--------|----------------------|
|       |   |                 |
| Name:      |   |                 |
|       |   |                 |
| Address:   |   | 125 London  Wall     |
|       |   | London               |
|       |   | EC2Y 5AJ             |
|       |   |                 |
|       |   |                 |
| Fax:       |   | +44 (0) 20 7777 2360 |
|       |   |                 |
| Attention: |   | Ms Ching Loh         |

** **

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**The Original Lenders**

**CITIBANK, N.A. LONDON BRANCH**
| By:        |   |   |
|------------|--------|--------|
|       |   |   |
| Name:      |   |   |
|       |   |   |
| Address:   |   |   |
|       |   |   |
|       |   |   |
|       |   |   |
| Fax:       |   |   |
|       |   |   |
| Attention: |   |   |

 

**JPMORGAN CHASE BANK, N.A.**
| By:        |   |   |
|------------|--------|--------|
|       |   |   |
| Name:      |   |   |
|       |   |   |
| Address:   |   |   |
|       |   |   |
|       |   |   |
|       |   |   |
| Fax:       |   |   |
|       |   |   |
| Attention: |   |   |

 

 

98

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