COMMOM TERMS AGREEMENT EXECUTION COPY
EXHIBIT 4.79
COMMON TERMS AGREEMENT EXECUTION COPY
COMMON TERMS AGREEMENT
BETWEEN
INVESTEC BANK (MAURITIUS) LIMITED
(as the "Lender")
AND
DRD (ISLE OF MAN) LIMITED
(as the "Borrower")
COMMOM TERMS AGREEMENT EXECUTION COPY
CONTENTS
SECTION 1 - DEFINITIONS AND INTRODUCTION........................................................... 5
1. INTRODUCTION....................................................................................... 5
2. DEFINITIONS........................................................................................ 5
SECTION 2 - APPLICATION OF THE CTA AND FACILITY B.................................................. 14
3. APPLICATION OF THE CTA TO THE FINANCE DOCUMENTS AND FACILITY B..................................... 14
SECTION 3 - PAYMENTS BY THE BORROWER............................................................... 14
4. MECHANICS.......................................................................................... 14
5. DATE OF PAYMENT.................................................................................... 15
6. INTEREST ON OVERDUE AMOUNTS........................................................................ 15
7. DEDUCTIONS, WITHHOLDINGS AND TRANSFERS............................................................. 15
8. PAYMENT IN FOREIGN CURRENCY........................................................................ 15
9. FACILITY FEES AND PAYMENT OF LENDER'S FEES AND EXPENSES,........................................... 16
10. STAMP DUTY......................................................................................... 16
11. VALUE ADDED TAX.................................................................................... 16
12. ALLOCATION OF PAYMENTS............................................................................. 17
SECTION 4 - CONDITIONS PRECEDENT................................................................... 17
13. CONDITIONS PRECEDENT TO FINANCIAL CLOSING FOR FACILITY A........................................... 17
SECTION 5 - ACCOUNTS AND CASH MANAGEMENT........................................................... 18
14. OPENING OF ACCOUNTS................................................................................ 18
15. BORROWER'S GENERAL ACCOUNT......................................................................... 19
16. OPERATING PROCEDURES............................................................................... 19
17. DEPOSITS........................................................................................... 19
18. PERMITTED WITHDRAWALS.............................................................................. 19
19. INTEREST ON ACCOUNTS............................................................................... 19
20. NO WAIVER.......................................................................................... 19
21. NOTICE OF SECURITY INTERESTS....................................................................... 20
22. ACCESS TO BOOKS AND RECORDS........................................................................ 20
23. CHANGE OF ACCOUNT BANK............................................................................. 20
24. USE OF PROCEEDS ACCOUNT............................................................................ 20
25. USE OF DEBT SERVICE ACCOUNT........................................................................ 21
26. USE OF GENERAL ACCOUNT............................................................................. 22
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SECTION 6 - WARRANTIES AND REPRESENTATIONS......................................................... 22
27. GENERAL PROVISIONS RELATING TO WARRANTIES AND UNDERTAKINGS......................................... 22
28. WARRANTIES......................................................................................... 23
29. INFORMATION UNDERTAKINGS........................................................................... 23
30. POSITIVE UNDERTAKINGS.............................................................................. 23
31. NEGATIVE UNDERTAKINGS.............................................................................. 23
SECTION 7 - EVENTS OF DEFAULT AND THEIR CONSEQUENCES............................................... 23
32. POTENTIAL EVENTS OF DEFAULT AND CONSEQUENCES OF A
POTENTIAL EVENT OF DEFAULT......................................................................... 23
32.1 POTENTIAL EVENTS OF DEFAULT............................................................... 23
32.2 CONSEQUENCES OF A POTENTIAL EVENT OF DEFAULT.............................................. 24
32.3 REMEDY OF POTENTIAL EVENTS OF DEFAULT..................................................... 25
32.4 ORDER OF PRECEDENCE OF EVENTS OF DEFAULT.................................................. 25
33. EVENTS OF DEFAULT.................................................................................. 25
34. CONSEQUENCES OF EVENTS OF DEFAULT.................................................................. 30
SECTION 8 - THE LENDER............................................................................. 32
35. LENDER'S ADVANCES.................................................................................. 32
36. DRAWDOWNS.......................................................................................... 32
36.1 INITIAL DRAWDOWN.......................................................................... 32
36.2 SUBSEQUENT DRAWDOWNS...................................................................... 32
36.3 EXTENSION AND WAIVER...................................................................... 32
36.4 CONDITIONS FOR THE BENEFIT OF THE LENDERS................................................. 32
36.5 DRAW STOP NOTICES......................................................................... 33
37. BORROWER'S INDEMNITY IN FAVOUR OF THE LENDER....................................................... 33
38. APPOINTMENT OF LENDER'S ADVISERS................................................................... 34
39. DAMAGES CLAIMABLE BY THE LENDER.................................................................... 35
40. ILLEGALITY......................................................................................... 35
41. INCREASED COSTS.................................................................................... 36
42. DECREASE IN COSTS.................................................................................. 37
43. DEDUCTIONS OR WITHHOLDINGS REQUIRED BY LAW......................................................... 38
44. SET-OFF BY THE LENDER.............................................................................. 39
45. ASSIGNMENT BY THE LENDER........................................................................... 39
SECTION 9 - GENERAL AND INTERPRETATION............................................................. 39
46. INTERPRETATION AND OTHER GENERAL TERMS OF THIS LOAN AGREEMENT...................................... 39
46.1 GENERAL APPLICATION OF THIS CLAUSE........................................................ 40
46.2 INTERPRETATION............................................................................ 40
46.3 CALCULATION OF INTEREST................................................................... 41
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46.4 CERTIFICATES.............................................................................. 41
46.5 RIGHTS, CUMULATIVE, WAIVERS............................................................... 41
46.6 TERMINATION NOT TO PREJUDICE ACCRUED RIGHTS............................................... 42
46.7 ENGLISH LANGUAGE.......................................................................... 42
46.8 SEVERABILITY.............................................................................. 42
46.9 PERFORMANCE OF FURTHER ACTS REQUIRED BY LAW............................................... 43
46.10 GOVERNING LAW............................................................................. 43
46.11 JURISDICTION.............................................................................. 43
46.12 COUNTERPARTS AND PLACE OF CONCLUSION OF AGREEMENT......................................... 43
46.13 AMENDMENTS NOT EFFECTIVE UNLESS IN WRITING................................................ 44
46.14 CONFIDENTIALITY........................................................................... 44
46.15 REMEDIES.................................................................................. 47
46.16 NOTICES................................................................................... 48
46.17 MISCELLANEOUS............................................................................. 49
APPENDIX 1 ................................................................................... 54
CONDITIONS PRECEDENT TO FINANCIAL CLOSING FOR FACILITY A................................................ 54
APPENDIX 2 .......................................................................................... 58
REPEATING WARRANTIES.................................................................................... 58
APPENDIX 3 .......................................................................................... 63
INFORMATION WARRANTIES.................................................................................. 63
APPENDIX 4 .......................................................................................... 65
INFORMATION UNDERTAKINGS................................................................................ 65
APPENDIX 5 .......................................................................................... 69
POSITIVE UNDERTAKINGS................................................................................... 69
APPENDIX 6 .......................................................................................... 72
NEGATIVE UNDERTAKINGS................................................................................... 72
APPENDIX 7 .......................................................................................... 75
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COMMON TERMS AGREEMENT
SECTION 1 - DEFINITIONS AND INTRODUCTION
1. INTRODUCTION
1. The Borrower wishes to obtain funding to fund the purchase by the
Borrower of a stake in targets or for any other purpose described in
the Facility Agreements.
1.2 The Lender is prepared to make the Facilities available to the
Borrower upon the terms and conditions contained in the Finance
Documents.
2. DEFINITIONS
Unless otherwise expressly stated, or the context otherwise requires, the
words and expressions listed below shall, when used in this CTA, including
this introduction, bear the meanings ascribed to them:
2.1 "Account Bank Undertaking" means a written undertaking by the
Account Bank in favour of the Lender, which undertaking shall be in
a form attached to the Assignment of Accounts as Schedule 2
("Acknowledgement to the Bank");
2.2 "Account Bank" means at any time, Investec Bank (UK) Limited, a
company incorporated in England with registration number 00489604;
2.3 "Accounts" means the accounts referred to in clause 14 below or any
of them, as the context may require;
2.4 "Advance" means each principal amount made available to the Borrower
by the Lender under this CTA by way of loan;
2.5 "Affected Financial Indebtedness" means Indebtedness arising from
any loan or other financial assistance of whatever nature provided
to the Borrower in an aggregate amount in excess of USD 1million
excluding any Indebtedness under the Finance Documents;
2.6 "Assignment of Accounts" means the agreement so entitled to be
entered into between the Borrower and the Lender;
2.7 "Authorisation" means acts, conditions, authorisations, orders,
approvals, licences, consents, permits, permissions, certificates,
registrations and declarations of any kind;
2.8 "Availability Period" means a period of 36 months calculated from
Financial Closing;
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2.9 "Borrower" means DRD (Isle of Man) Limited, company number 94445C, a
company incorporated under the laws of the Isle of Man and having
its registered office at Xxxxxxxxx Xxxxx, 00/00 Xxxxx Xxxxxx,
Xxxxxxx, Xxxx xx Xxx;
2.10 "Breakage Costs" means all and any costs, damages, charges and
penalties incurred by the Lender in breaking any existing funding,
closing out, settling and unwinding any hedging transaction,
deposits or other funding as a result of inter alia the
cancellation, early termination or prepayment of the Facilities and
including the costs of winding up or terminating of any Hedging
Arrangements;
2.11 "business day" or "Business Day" means a day other than a Saturday
or Sunday or a public/bank holiday in the Republic of South Africa,
Mauritius, the United Kingdom, the Isle of Man and in New York;
2.12 "CTA" means this CTA and the Appendices hereto, as read together
with the relevant Facility Agreements;
2.13 "Custody Agreement" means the agreement so entitled to be entered
into between inter alia, Australia and New Zealand Banking Group
Limited and the Borrower;
2.14 "Debt Service Account Required Balance" has the meaning given to it
in clause 25;
2.15 "Debt Service Account" means the account opened and maintained by
the Borrower with the Account Bank pursuant to clause 14 and
designated as the Debt Service Account, as such account may be
replaced, renumbered or re-designated from time to time;
2.16 "Debt Service" means on any given date the aggregate of Loan Costs
and Loan Principal and any amounts due under the Hedging
Arrangements (or expected to be due) on such date;
2.17 "Dollars", "US$" and "USD" means the lawful currency of the United
States of America for the time being;
2.18 "Draw Stop Notice" means the notice issued by the Lender in terms of
clause 36.5 below;
2.19 "Drawing Date" in respect of any Advance, has the meaning given to
it in the relevant Facility Agreement;
2.20 "Drawing Notice" in respect of any Advance, has the meaning given to
it in the relevant Facility Agreement;
2.21 "Encumbrance" means
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2.21.1 any mortgage, charge, pledge, lien, assignment, hypothecation
or cession by way of security or other encumbrance securing
any obligation of any Person;
2.21.2 any arrangement under which money or claims to, or the
benefit of, a bank account or other account may be applied,
set-off or made subject to a combination of accounts so as to
effect payment of sums owed or payable to any Person; or
2.21.3 any other type of preferential arrangement (including title
transfer and retention arrangements) having a similar effect;
2.22 "Environmental Approval" means Authorisations required under
Environmental Law;
2.23 "Environmental Law" means all laws concerning the environment
including, without limitation, laws concerning land use, water use,
conservation, biodiversity, heritage, human health, safety and well
being, pollution or environmental degradation;
2.24 "Equitable Mortgage of Shares" means the agreement so entitled to be
entered in to between the Lender, the Borrower, DRD Porgera Limited
and Tolukuma Gold Mines Limited;
2.25 "Event of Default" means any of the events or circumstances
described in clause 33 of this CTA;
2.26 "Facilities Discharge Date" means the first date on which :
2.26.1 no amount is due by the Borrower under any of the Finance
Documents which has not been finally, irrevocably and
unconditionally paid in full, and
2.26.2 no unremedied default continues in performance of any other
actual obligation of the Borrower (whether entered into
solely or jointly with one or more Persons whether as
principal or as surety) under any of the Finance Documents;
and
2.26.3 no amount of any of the Facilities remains uncancelled
(whether or not cancelled as a result of an exercise by the
Lender of the remedy under clause 34 below);and
2.26.4 the Lender is under no further commitment, obligation or
liability (whether actual or contingent) to make Advances or
provide other financial accommodation to the Borrower under
any Finance Document.
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2.27 "Facilities" means Facility A and Facility B or, as the context may
require, any of them;
2.28 "Facility A Loan Agreement" means the written Facility A Loan
Agreement so entitled between the Lender and the Borrower and signed
by the parties on or about 13 October 2004, in terms of which inter
alia the Lender agrees to make available to the Borrower a term
facility in an aggregate amount of US$ 15 million;
2.29 "Facility A" has the meaning ascribed to it in the Facility A Loan
Agreement;
2.30 "Facility Agreements" means the Facility A Loan Agreement and the
Facility B Loan Agreement, or, as the context may require, any one
of them;
2.31 "Facility B Loan Agreement" means the written Facility B Loan
Agreement so entitled dated [ ] between the Lender and the Borrower
in terms of which inter alia the Lender agrees to make available to
the Borrower a facility in an aggregate amount of US$ 35 million;
2.32 "Facility B" means has the meaning ascribed to it in the Facility B
Loan Agreement;
2.33 "Finance Documents" means
2.33.1 this CTA;
2.33.2 the Facility Agreements;
2.33.3 the Hedging Arrangements
2.33.4 the Security Documents;
2.33.5 any other agreement at any time designated a Finance Document
by the parties hereto; and
2.33.6 any amendment or supplemental agreement to any of the Finance
Documents referred to in 2.33.1 to 2.33.5 above or, as the
context may require, any of them;
2.34 "Financial Closing for Facility A" means the date on which the
Lender notifies the Borrower in accordance with clause 13.2 below
that all of the conditions precedent in respect of the initial
drawdown under the Facility A Loan Agreement have been satisfied;
2.35 "Financial Closing for Facility B" means the date on which the
Lender notifies the Borrower below that all of the conditions
precedent in respect
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of the initial drawdown under the Facility B Loan Agreement have
been satisfied;
2.36 "GAAP" means the Generally Accepted Accounting Practice as approved
from time to time by the South African Accounting Practices Board
(or its successor body) or, if applicable, in the case of a company
incorporated outside the Republic of South Africa, in accordance
with generally accepted accounting practices and principles in its
jurisdiction of incorporation;
2.37 "General Account" means the bank account mentioned in clause 15 and
designated as the General Account, as such account may be replaced,
renumbered or re-designated from time to time;
2.38 "Hedging Arrangements" means any interest rate or foreign currency
swap, future, option, cap, collar, ceiling, hedge, or other
inflation, interest rate or foreign exchange protection agreement or
contract, or any other agreement or arrangement designed to protect
against fluctuations in inflation or interest rates or foreign
currency, entered into from time to time;
2.39 "Indebtedness" means any obligation for the payment or repayment of
money, whether present future, actual or contingent;
2.40 "Interest Payment Date" has the meaning ascribed to it in the
Facility Agreements;
2.41 "Interest Period" has the meaning ascribed to it in the Facility
Agreements;
2.42 "Irrevocable Payment Instructions" means the undertakings to be
given by the Secured Asset Entities to ensure that they will pay all
their Nett Revenues into the Proceeds Account or as directed by the
Lender, which undertakings shall be in a form acceptable for the
time being to the Lender;
2.43 "Law" includes the common law and any present or future
constitution, decree, judgement, legislation, measure, requirement,
order, ordinance, regulation, statute, treaty, directive, rule,
guideline, practice, concession, or request:
2.43.1 issued by any relevant authority, governmental body, agency
or department or any central bank or other fiscal, monetary,
regulatory, self regulatory or other authority or agency; and
2.43.2 applicable in any jurisdiction to the Target or any of the
present or future parties to the Finance Documents or any
transaction in which the Stake is acquired by the Borrower in
a Target;
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2.44 "Lender" means Investec Bank (Mauritius) Limited, a company with
limited liability registered as a bank according to the laws of
Mauritius with bank registration number 8752/3362, with offices at
7th Floor, Harbour Front Building, Xxxx Xxxxxxx Street, Port Louis,
Mauritius;
2.45 "Lender's Advisors" means the advisors to the Lender as mentioned in
clause 38, which shall include but not be limited to legal advisors,
technical advisors and any other advisors which may be required by
the Lender for the purposes stated in clause 38;
2.46 "Loan Agreements" means this CTA, the Facility Agreements and
Hedging Agreements;
2.47 "Loan Costs" in respect of any period means:-
2.47.1 interest, commitment fees, costs and expenses and other
amounts payable by the Borrower under the Facility Agreements
(but excluding Loan Principal), in each case in such period;
and
2.47.2 any VAT or other taxes payable by the Borrower in respect of
the above;
2.48 "Loan Principal" means:-
2.48.1 in respect of any period, the aggregate, in that period, of
Advances made under the Facility Agreements, and,
2.48.2 in respect of any date, the aggregate amount of the Advances
under the Facility Agreements on that date
which has not been repaid by the Borrower to the Lender;
2.49 "Margin" has the meaning ascribed to it in the Facility Agreements;
2.50 "Material Adverse Effect" means an event, circumstance or matters or
the consequences of a combination of events, circumstances or
matters which, in the reasonable opinion of the Lender, are or could
be expected to be:
2.50.1 adverse on the business, assets or financial condition of the
Borrower with the result that the Borrower's ability to
comply with any of its material obligations under any Finance
Document, is or could be expected to be adversely affected;
or
2.50.2 prejudicial to the ability of the Lender to exercise or
enforce any of their material rights under the Finance
Documents; or
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2.50.3 materially adverse on the value or effectiveness of the
Security; or
2.50.4 prejudicial to the ability of the Shareholder to observe or
perform any of its material obligations under any of the
Finance Documents to which it is a party;
2.51 "Memorandum of Deposit " means the agreement so entitled to be
entered into between the Borrower and the Lender;
2.52 "month" means, unless the context otherwise requires, a period
starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month, and
references to "months' shall be construed accordingly;
2.53 "Nett Revenues" means in respect of any period, the aggregate
(without double-counting) of:
2.53.1 all net operating revenue (being gross operating revenues
less usual operating costs) received or projected to be
received by the Borrower during that period; and
2.53.2 all other income, including, without limitation, all interest
and dividends received or projected to be received by the
Borrower during that period and all other payments of
whatsoever nature received or projected to be received by the
Borrower during that period; and
2.53.3 all VAT or similar revenue received by the Borrower;
2.54 "Person" means any individual, partnership, corporation, company,
business organisation or trust;
2.55 "Potential Event of Default" means any of the events or
circumstances described in clause 32.1 below;
2.56 "Proceeds Account" means the account opened and maintained by the
Account Bank pursuant to clause 14 and designated as the Proceeds
Account, as such account my be replaced, renumbered or re-designated
from time to time;
2.57 "Secured Asset Entities" means the Person in respect of which the
Borrower holds Secured Assets from time to time, by way of example
Emperor Mines Limited shall be a Secured Asset Entity for so long as
the Borrower holds shares in that company;
2.58 "Secured Assets" means all of the following:-
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2.58.1 the shares held by the Borrower in the following companies:-
2.58.1.1 Emperor Mines Limited (company number ACN 007 508
787) a company incorporated under the laws of
Australia, having its registered office at Suite 904,
level 9 00 Xxxxxxxx Xxxxxx, Xxxxxx, XXX. 0000,
Xxxxxxxxx;
2.58.1.2 DRD Porgera Limited; (company number 1-18497), a
company incorporated under the laws of the
Independent State of Papua New Guinea, having its
registered office at level 5, Defens Haus, Xxx
Xxxxxxxx Xxx & Xxxxxx Xx, Xxxx Xxxxxxx, National
Capital District;
2.58.1.3 Tolukuma Gold Mines Limited, company number 1-16395),
a company incorporated under the laws of the
Independent State of Papua New Guinea, having its
registered office at level 5, Defens Haus, Cnr
Champion Pde & Hunter St, Prot Moresby, National
Capital District; and
2.58.2 any Stake in a Target acquired by the Borrower through the
utilisation of the Facilities,
as may be held from time to time by the Borrower;
2.59 "Security Documents" means all the documents and agreements
establishing or recording the Security;
2.60 "Security" means the security afforded to the Lender in terms of the
following:-
2.60.1 the Memorandum of Deposit;
2.60.2 the Assignment of Accounts;
2.60.3 the Account Bank Undertaking;
2.60.4 the Sponsorship Agreement;
2.60.5 the Subordination Agreement;
2.60.6 the Irrevocable Payment Instructions;
2.60.7 the Equitable Mortgage of Shares;
2.60.8 the Shareholder's Guarantee, and
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2.60.9 the Custody Agreement
together with such further security as may from time to time be held
by the Lender to secure the Borrower's obligations under the Finance
Documents;
2.61 "Shareholder" means Durban Roodepoort Deep, Limited (company number
1895/000926/06), a company incorporated according to the laws of the
republic of South Africa, having its registered office as 00 Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxx xx Xxxxx Xxxxxx;
2.62 "Shareholder's Guarantee" means the agreement to be entered into
between the Shareholder and the Lender, and contained in a letter
from the Shareholder to the Lender;
2.63 "Shares" means any or all shares comprising the issued share capital
from time to time of the Borrower;
2.64 "Signature Date" means the date of last signature by any of the
parties;
2.65 "Sponsorship Agreement" means the agreement entitled "Chess
Sponsorship Agreement" to be entered into between the Borrower and
ANZ Nominees Limited;
2.66 "Stake" means:-
2.66.1 shares or any other form of ownership (including an interest
in a joint venture), and/or
2.66.2 all or any amounts owing to such shareholder or owner in its
capacity as such or in another form of creditor (including
taking cession of loans from third party lenders) and/or
2.66.3 a management contract;
2.67 "Subordination Agreement" means the agreement so entitled to be
entered into between the Shareholder, the Borrower, the Lender, Dome
Resources (Proprietary) Limited and DRD Australia (Proprietary )
Limited;
2.68 "Target" means a company or other legal entity in which the Borrower
wishes to acquire shares or some other form of ownership;
2.69 "Tax" includes any tax, levy, impost, duty or other charge of a
similar nature (together with any penalty, interest, fine or
surcharge payable in connection with any failure to pay or any delay
in paying any of the same) imposed from time to time;
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2.70 "VAT" means Value Added Tax or other charge of a similar nature
payable under the Law including any similar tax which may be imposed
in place thereof from time to time.
SECTION 2 - APPLICATION OF THE CTA AND FACILITY B
3. APPLICATION OF THE CTA TO THE FINANCE DOCUMENTS AND FACILITY B
3.1 Each of the Finance Documents will be subject both to the terms and
conditions contained therein and to the terms and conditions set
forth in this CTA. Unless otherwise expressly stated, in the event
of any conflict between the terms of this CTA and any of the other
Finance Documents, the terms of this CTA shall prevail.
3.2 At the Signature Date of this CTA, the Borrower and the Lender may
not have concluded the Facility B Loan Agreement.
3.3 The Borrower agrees in favour of the Lender, that as soon as the
Facility B Loan Agreement is concluded and notwithstanding that it
may be concluded after the Signature Date of this CTA:-
3.3.1 the provisions of the Finance Documents shall apply equally to
such facility agreement as if it had been part of the Finance
Documents at the Signature Date of this CTA;
3.3.2 the Facility Agreements shall both be senior facilities and
shall rank pari passu with one another in all respects; and
3.3.3 upon request from the Lender, the Borrower shall irrevocably
confirm in writing to such third parties as the Lender may
nominate that the Facility B Loan Agreement forms part of the
Finance Documents and that the Secured Assets (to the extent
permitted by Law) secure the Lender's rights under that
facility agreement.
3.4 Until such time as the Facility B Loan Agreement is concluded, any
reference to the Facilities, the Facility Agreements or the like
shall be construed without Facility B.
SECTION 3 - PAYMENTS BY THE BORROWER
4. MECHANICS
All payments by the Borrower under any of the Finance Documents shall be
made
4.1 to the Lender by 11:00am (Mauritius time) on the due date, into the
accounts designated in writing by the Lender from time to time;
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4.2 for value on the due date, in US Dollars and in immediately
available funds.
5. DATE OF PAYMENT
If the date on which any payment under any of the Finance Documents is due
to be made and that day is not a business day, then such payment shall be
made on the first following day that is a business day, unless that day
falls in the next calendar month, in which case such payment shall be made
on the first preceding day that is a business day to that date on which
such payment was due to be made.
6. INTEREST ON OVERDUE AMOUNTS
6.1 If the Borrower fails to pay on the due date any amount falling due
or payable to the Lender under or arising from any of the Finance
Documents then, without prejudice to such other rights as may accrue
to the Lenders consequent upon such failure each such overdue amount
shall bear finance charges at the interest rate provided for in the
relevant Facility Agreement plus 2% per annum.
6.2 The finance charges in clause 6.1 above will be calculated on each
overdue amount, or the balance thereof, from the date on which it
becomes overdue until it has been paid in full. The Borrower shall
pay such interest on demand, or if no demand, on each Interest
Payment Date. Interest not paid on a due date shall be capitalised
on that date, so that interest thereafter is compounded.
7. DEDUCTIONS, WITHHOLDINGS AND TRANSFERS
7.1 All payments by the Borrower under the Finance Documents, whether in
respect of principal, interest, fees or any other item, shall be
made in full without any set off, deduction, counterclaim or
withholding (all hereinafter referred to as a deduction or
withholding) in respect of Tax or otherwise unless the deduction or
withholding is required by Law in which event the provisions of
clause 43 below shall apply.
7.2 The Borrower shall not be entitled to cede, assign or otherwise
transfer any of its rights and obligations under the Finance
Documents without the prior written consent of the Lender.
8. PAYMENT IN FOREIGN CURRENCY
If, under any applicable law or regulation or pursuant to any judgement or
order being made or registered against or the liquidation of the Borrower
or without limitation for any reason, any payment under or in connection
with any of the Finance Documents is made or is recovered in a currency
(the "payment currency") other than the currency which such payment is
expressed to be due or in connection with the Finance Documents (the
"contractual currency"), then, to
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the extent that amount of such payment actually received by the Lender
(when converted into the contractual currency at the applicable rate of
exchange on or about the date of payment) is less than the amount due and
unpaid under the relevant Finance Documents, the Borrower shall as a
separate and independent obligation, fully indemnify the Lender against
the amount of the shortfall.
For the purposes of this clause 8, the "applicable rate of exchange" means
the rate at which the Lender is able on or about the date of such payment,
to purchase the contractual currency, in accordance with its normal
practice, with the payment currency and shall take into account (and the
Borrower shall be liable for) any premium or other costs of exchange
including any taxes incurred by reason of any such exchange.
9. FACILITY FEES AND PAYMENT OF LENDER'S FEES AND EXPENSES,
9.1 The Borrower shall on presentation of an invoice to it or, where
there is no invoice, other evidence to the Borrower's reasonable
satisfaction, pay to, or at the direction of the Lender all expenses
(including legal expenses on the scale as between attorney and own
client, printing and out-of-pocket expenses) incurred by the Lender
in connection with the negotiation, preparation and completion of
the Finance Documents and any related documents. Such expenses are
to include the costs of all advisors employed by the Lender.
9.2 The Borrower shall pay to the Lender a facility fee of 1% of the
total maximum amount of the Facilities as follows:-
9.2.1 An amount of USD 150 000 in respect of Facility A, which
amount shall be paid by the Borrower to the Lender on the date
of last signature by any of the parties to the Facility A Loan
Agreement; and
9.2.2 An amount equal to 1% of the total maximum amount of Facility
B, which amount shall be paid by the Borrower to the Lender on
the date of last signature by any of the parties to the
Facility B Loan Agreement.
10. STAMP DUTY
The Borrower shall pay all stamp, documentary registration and other
similar duties and Taxes (including any payable by the Lender) to which
any of the Finance Documents or any such related documents may be subject
or give rise.
11. VALUE ADDED TAX
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The amounts stated in the Finance Documents to be payable by the Borrower
are exclusive of VAT and accordingly the Borrower shall pay, against
delivery of appropriate supporting documents on demand:
11.1 any VAT properly chargeable in respect of supplies to the Borrower
as contemplated by any of the Finance Documents (including any VAT
chargeable by the Lender in respect of its supplies to the Borrower
under the Finance Documents); and
11.2 in the case of goods or services supplied to, or other costs, fees
and expenses incurred by the Lender in connection with the Finance
Documents and which are to be met by the Borrower or in respect of
which the Borrower has agreed to indemnify the Lender.
12. ALLOCATION OF PAYMENTS
The Lender shall be entitled in its sole discretion to allocate any
amounts received from the Borrower towards the payment of any cause of
debt or amount owing by the Borrower to the Lender.
SECTION 4 - CONDITIONS PRECEDENT
13. CONDITIONS PRECEDENT TO FINANCIAL CLOSING FOR FACILITY A
13.1 All obligations of the Lender and rights of the Borrower under the
Finance Documents for Facility A are subject to the condition
precedent ("Condition Precedent") that the Lender has notified the
Borrower in accordance with clause 13.2 below that:
13.1.1 the Lender has received all of the agreements, documents and
evidence set out in Appendix 1 in form and substance
satisfactory to the Lender in its sole and absolute
discretion; and
13.1.2 the Lender is satisfied in its sole and absolute discretion
that all of the agreements, documents and evidence set out in
Appendix 1 are in full force and effect and are unconditional
or are subject to conditions satisfactory to the Lender in
its sole and absolute discretion; and
13.1.3 the Lender is satisfied in its sole and absolute discretion
as to the other matters set out in Appendix 1.
13.2 The Lender shall notify the Borrower when it is satisfied that the
Condition Precedent referred to in clause 13.1 above has been
fulfilled or waived and such condition shall only be considered to
have been fulfilled or waived when such notice is given.
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13.3 The Condition Precedent contained in clause 13.1 is expressed to be
for the benefit of the Lender and shall be fulfilled by 31 December
2004.
13.4 The Lender:
13.4.1 shall be entitled to extend the relevant period for
fulfilment of the Condition Precedent; and
13.4.2 shall be entitled to waive fulfilment of all or part of the
Condition Precedent.
13.5 If the Condition Precedent is not fulfilled or waived by the date or
extended date for fulfilment thereof, the provisions of the Finance
Documents shall cease to be of any further force and effect and the
parties shall be restored as near as may be to the position in which
they would have been had the Finance Documents not been entered
into, and save for any claim based on the doctrine of fictional
fulfilment and subject to clause 13.6 below, neither party shall
have any claim against the other as a result of the failure of the
said condition.
13.6 Notwithstanding the provisions of this clause, should the Conditions
Precedent not be fulfilled or waived as provided for in this clause,
the provisions of Section 9 shall remain in full force and effect
and the Borrower shall remain liable for the Lender's commitment and
facility fees and shall remain liable to reimburse the Lender's
expenses and disbursements (including but not limited to those
mentioned in clause 9).
13.7 It is recorded that Facility B shall have its own conditions
precedent, which are still to be agreed between the parties as at
the Signature Date of this CTA.
SECTION 5 - ACCOUNTS AND CASH MANAGEMENT
14. OPENING OF ACCOUNTS
As from the Signature Date to the Facilities Discharge Date, the Borrower
shall open and maintain, with the Account Bank, in the name of the
Borrower, the following accounts:
ACCOUNT ACCOUNT NUMBER
------- --------------
14.1 Debt Service Account DRD Isle of Man
Limited; 124955/01
14.2 Proceeds Account DRD Isle of Man
Limited. 124960/01
each of which shall be a separate account unless otherwise agreed by the
Lender.
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15. BORROWER'S GENERAL ACCOUNT
The Borrower shall maintain a banking current account with bankers of its
choice, which account shall be referred to herein as the "General
Account". Upon request from time to time, the Borrower shall inform the
Lender of the details of such account and the bank where it is held.
16. OPERATING PROCEDURES
16.1 The Borrower shall procure that the mandates and operating
procedures for the Accounts shall be in accordance with the
provisions of this CTA, the Assignment of Accounts and the Account
Bank Undertaking, and to the reasonable satisfaction of the Lender.
16.2 Subject to clause 21, 34.2.7 and the Lender's rights in terms of the
Security, the signatories to the Proceeds Account shall be nominated
by the Borrower. The signatories to the Debt Service Account shall
be nominated by the Lender, which signatories shall make withdrawals
from the Debt Service Account on behalf of the Borrower.
17. DEPOSITS
The Borrower shall, immediately upon receipt of any sum, pay that sum into
the Account to which it is obliged to credit such sum in accordance with
this CTA or the Assignment of Accounts..
18. PERMITTED WITHDRAWALS
18.1 The Borrower shall procure that no withdrawals or transfers shall be
made from any Account except as expressly permitted by this CTA or
any of the other Finance Documents.
18.2 All amounts withdrawn from any Account by the Borrower for
application in or towards making a specific payment or meeting a
specific liability shall be applied in or towards making that
payment or meeting that liability and for no other purpose.
18.3 No withdrawal shall be made from any Account to the extent that such
Account would become overdrawn as a result.
19. INTEREST ON ACCOUNTS
Interest on funds in each Account shall be paid into that Account.
20. NO WAIVER
20.1 None of the restrictions contained in the Finance Documents on the
withdrawal of funds from any of the Accounts shall affect the
obligations
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of the Borrower to make all payments required to be made to the
Lender on the due date for payment in accordance with the Finance
Documents.
20.2 Neither the ability of the Borrower to make any withdrawal from an
Account in accordance with this CTA nor any such withdrawal shall be
construed as a waiver by the Lender of any of its rights or remedies
under the Finance Documents or affect (to the extent possible) any
of the encumbrances created pursuant to the Security Documents.
21. NOTICE OF SECURITY INTERESTS
The Borrower shall procure that the Account Bank is at all times notified
of the Borrower's security rights in and to the Accounts (as contained in
this CTA and the Assignment of Accounts) to the Lender and the Borrower
shall send a copy of such notification to the Lender.
22. ACCESS TO BOOKS AND RECORDS
The Borrower grants to the Lender and any of its nominated representatives
the right to review all books and records (including computer records)
held by the Account Bank relating to the Accounts and the Borrower
instructs and authorises the Account Bank to provide the Lender and any of
its nominated representatives reasonable access to review such books and
records held by the Account Bank and any such information relating to the
Accounts as the Lender may, at any time and from time to time, request.
The Borrower waives any right of confidentiality which may exist to the
extent necessary to allow disclosure of such books, records and
information to the Lender and its nominated representatives, provided that
the nominated representatives enter into a confidentiality undertaking in
favour of the Borrower in accordance with the terms set out clause 46.14
below.
23. CHANGE OF ACCOUNT BANK
The Borrower may not at any time change the Account Bank without the prior
written consent of the Lender.
24. USE OF PROCEEDS ACCOUNT
24.1 CREDITS: The Borrower shall credit, or shall procure that there is
credited or deposited, to the Proceeds Account, immediately upon
receipt:
24.1.1 all Nett Revenues received by the Borrower in respect of the
Secured Assets;
24.1.2 any amounts (including interest) released from the Debt
Service Account in accordance with this CTA;
24.1.3 any interest as envisaged in clause 19 above; and
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24.1.4 any other amount payable to the Borrower other than any such
amount that is required to be paid and may, in accordance
with the Finance Documents, be paid to an Account other than
the Proceeds Account.
24.2 WITHDRAWALS: The Borrower shall only withdraw amounts from the
Proceeds Account for the following purposes and in the following
order of priority:
24.2.1 to fund the Debt Service Account up to the Debt Service
Account Required Balance;
24.2.2 to transfer amounts directly to the General Account.
25. USE OF DEBT SERVICE ACCOUNT
25.1 CREDITS: The Borrower shall credit, or shall procure that there is
credited, to the Debt Service Account, immediately upon receipt any
amounts available to be paid into the Debt Service Account in
accordance with clause 24.2; provided that the maximum amount
required to be credited to the Debt Service Account at any time
shall be the Debt Service Account Required Balance.
25.2 WITHDRAWALS: The Borrower (by way of the signatories mentioned in
clause 16.2) shall only withdraw amounts from the Debt Service
Account for the following purposes:
25.2.1 to make a repayment of any Loan Principal or a payment of any
Loan Costs due on a particular date; and
25.2.2 within two (2) business days after any Interest Payment Date,
if and to the extent that there is any excess standing to the
credit of the Debt Service Account over and above the Debt
Service Account Required Balance, to transfer such excess
directly to the Proceeds Account.
25.3 The Borrower shall ensure and procure that from Financing Closing
until the Facilities Discharge Date, the Debt Service Account is
funded to the amount of the Debt Service Account Required Balance.
25.4 "Debt Service Account Required Balance" means an amount determined
at the end of each month as follows:-
25.4.1 At the end of the month but two before the forthcoming
payment of Debt Service by the Borrower, the Debt Service
Account Required Balance shall be equal to one third of that
forthcoming payment;
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25.4.2 At the end of the month but one before the forthcoming
payment of Debt Service by the Borrower, the Debt Service
Account Required Balance shall be equal to two thirds of that
forthcoming payment;
25.4.3 On the date on which such Debt Service payment is to be made
by the Borrower (and just before payment), the Debt Service
Account Required Balance shall be equal to the full amount of
that Debt Service payment to be made by the Borrower.
26. USE OF GENERAL ACCOUNT
26.1 CREDITS: The Borrower shall only be entitled to credit, or procure
that there is credited, to the General Account any amounts available
to be paid into the General Account in accordance with clause 24.2
above.
26.2 WITHDRAWALS: The Borrower shall be entitled to withdraw amounts from
the General Account for such purposes as it deems fit.
SECTION 6 - WARRANTIES AND REPRESENTATIONS
27. GENERAL PROVISIONS RELATING TO WARRANTIES AND UNDERTAKINGS
27.1 Each warranty set out in Appendix 2 and Appendix 3 shall be:
27.1.1 a separate warranty; and
27.1.2 shall in no way be limited or restricted by reference to or
inference from the terms of any other warranty; and
27.1.3 given in favour of the Lender; and
27.1.4 for the sole benefit of the Lender.
27.2 Each of the undertakings by the Borrower in Appendix 4, Appendix 5
and Appendix 6:
27.2.1 shall remain in full force as from the Signature Date until
the Facilities Discharge Date; and
27.2.2 shall be a separate undertaking and shall in no way be
limited or restricted by reference to or inference from the
terms of any other undertaking.
27.3 Where, pursuant to any provision of this CTA, the Borrower is
required to provide financial or other information, it shall provide
the Lender with one hard copy and one electronic copy.
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28. WARRANTIES
The Borrower hereby undertakes and warrants to the Lender:-
28.1 in the case of the warranties in Appendix 2, the facts and
circumstances set out in Appendix 2 as they exist on the Signature
Date or Financial Closing, on each day that the Facilities are
available for draw down and on each day that any amount is
outstanding under the Finance Documents, are both true and correct;
28.2 in the case of the warranties in Appendix 3, the information,
forecasts, assumptions, financial statements, facts and
circumstances set out in Appendix 3, as they exist on the date on
which such information was supplied or expressed to have been made
or prepared (if different from the date supplied) are both true and
correct.
29. INFORMATION UNDERTAKINGS
The Borrower, unless the Lender has granted its prior written consent to
the contrary, undertakes in favour of the Lender those obligations set out
in Appendix 4.
30. POSITIVE UNDERTAKINGS
The Borrower unless the Lender has granted its prior written consent to
the contrary, undertakes in favour of the Lender those obligations set out
in Appendix 5.
31. NEGATIVE UNDERTAKINGS
The Borrower unless the Lender has granted its prior written consent to
the contrary, undertakes in favour of the Lender those obligations set out
in Appendix 6.
SECTION 7 - EVENTS OF DEFAULT AND THEIR CONSEQUENCES
32. POTENTIAL EVENTS OF DEFAULT AND CONSEQUENCES OF A POTENTIAL EVENT OF
DEFAULT
32.1 POTENTIAL EVENTS OF DEFAULT
A Potential Event of Default shall have occurred if -
32.1.1 any event or combination of events which would (with the
giving of notice or the probable fulfilment of any other
applicable requirement (excluding the requirement of a
Material Adverse Effect) or any combination thereof) if not
remedied or waived will become an Event of Default; or
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32.1.2 an Event of Default has occurred for which a remedy period is
given, while such remedy period is running and the Event of
Default is unremedied; or
32.1.3 there is a referral of any other dispute to arbitration under
any Finance Documents or any other litigation relating to the
occurrence or alleged occurrence of any Event of Default; or
32.1.4 the Borrower is disputing that any Affected Financial
Indebtedness which has not been paid, is lawfully due and
payable.
32.2 CONSEQUENCES OF A POTENTIAL EVENT OF DEFAULT
32.2.1 A Potential Event of Default shall constitute a breach of the
Finance Documents.
32.2.2 When a Potential Event of Default has occurred and while it
is continuing the Borrower
32.2.2.1 shall not withdraw any amounts from any Account;
32.2.2.2 the Borrower shall not change the Account Bank; and
32.2.2.3 the Lender's obligations under the Loan Agreements to
honour any Drawing Notice or make any Advance shall
be suspended.
32.2.3 A Potential Event of Default which is not remedied within a
period of 14 days, or which is not waived, shall constitute
an Event of Default.
32.2.4 The remedy period shall be -
32.2.4.1 calculated from the day on which the Borrower knew or
ought reasonably to have known of the occurrence,
where the applicable remedy period is stated to
commence from date of occurrence; or
32.2.4.2 calculated from the day after the date of
notification, where the remedy period is stated to
commence from date of notification by the Lender.
32.2.5 The Borrower shall pay the Lender any damages (including
consequential damages and the costs and expenses of the
Lender's Advisers) which the Lender is able to prove it has
sustained, as a result of the occurrence of any Potential
Event of Default.
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32.3 REMEDY OF POTENTIAL EVENTS OF DEFAULT
A Potential Event of Default shall cease to be a Potential Event of
Default when the events, circumstances or combination of events or
circumstances or consequences thereof which gave rise the Potential
Event of Default, have, in the opinion of the Lender, been remedied
or are no longer continuing or have ceased to exist or have been
waived.
32.4 ORDER OF PRECEDENCE OF EVENTS OF DEFAULT
If a breach of a condition or provision is specifically otherwise
referred to or dealt with in clause 33 then the provisions of clause
33 shall apply and shall prevail over the provisions of this clause
32.
33. EVENTS OF DEFAULT
An Event of Default shall have occurred if:
33.1 Non-Payment by the Borrower
The Borrower fails to pay any sum due and payable under any of the
Finance Documents to which it is a party on the due date, in the
currency and in the manner specified therein; or
33.2 Specific Breaches of Section 5 [Accounts] of this CTA
The Borrower breaches any of the provisions of Section 5 above or
any provisions of the Assignment of Accounts; or
33.3 Breach of Warranties and Representations
The Borrower breaches any warranty or representation given by it
under any Finance Document (including those listed in the Appendices
to this CTA); or
33.4 Consents
[Clause intentionally left blank]
33.5 Breach of Finance Documents
Other than as stated in clause 32.2.1, the Borrower, or any other
party to a Finance Document, breaches or repudiates or fails duly to
perform or comply with any of the obligations expressed to be
assumed by it in the Finance Documents; or
33.6 Liquidation and similar proceedings
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33.6.1 Any third Person takes any action, steps or proceedings
against the Borrower -
33.6.1.1 for compulsory, provisional or final sequestration,
winding-up, liquidation, compromise, administration
order, curatorship, judicial management, dissolution,
or administration; or
33.6.1.2 for the appointment of a receiver, administrator,
trustee, liquidator, judicial manager or similar
officer or of any or all of the Borrower's assets or
revenues; or
33.6.1.3 any analogous procedure or step is taken in any
jurisdiction; or
33.6.2 The Borrower becomes insolvent or itself takes any action,
steps or proceedings -
33.6.2.1 for voluntary or compulsory, provisional or final
sequestration, winding-up, liquidation, compromise,
administration order, curatorship, judicial
management, dissolution, or administration in
relation to itself or its assets; or
33.6.2.2 for the appointment of a receiver, administrator,
trustee, liquidator, judicial manager or similar
officer or of any or all of its own assets or
revenues; or
33.6.2.3 any analogous procedure or step is taken in any
jurisdiction; or
33.7 Attachment
Any attachment, sequestration, execution or distress is levied
against, or an encumbrancer takes possession of the whole or any
part of the property, undertaking or assets of the Borrower or of
any of the Secured Asset Entities; or
33.8 Default Judgments
The Borrower suffers any default judgment against it to remain
unsatisfied for more than 10 business days after having become aware
thereof or rescission of any such judgment has not been obtained
within 40 business days after the judgment came to the attention of
the Borrower; or
33.9 Claim of Immunity
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Any party to a Finance Document will be entitled to claim for itself
or any of its assets or revenues immunity from suit, execution,
attachment or other legal process; or
33.10 Cross Default
An event of default howsoever described occurs, which event entitles
the counter party to that document to terminate or cancel an
Affected Financial Indebtedness or any Hedging Arrangements; or
33.11 Cross Acceleration
Any Affected Financial Indebtedness:-
33.11.1 becomes prematurely due and payable; or
33.11.2 may be declared due and payable by any creditor in respect
thereof becoming entitled to do so; or
33.11.3 is placed on demand as a result of an event of default
(howsoever described) under the document relating to that
Affected Financial Indebtedness,
33.11.4 is not paid when due; or
any security therefore becomes enforceable,
whether or not the Borrower is disputing such acceleration,
declaration, placing demand, due date or enforceability; or
33.12 Compliance with Authorisations
At any time any Authorisation required to be done, fulfilled,
obtained, renewed, extended, complied with or performed, or in order
-
33.12.1 to ensure the legality, validity, binding nature and
enforceability of the Borrower's obligations under the
Finance Documents;
33.12.2 to carry out the Borrower's business and operations
generally;
33.12.3 to enable any Person lawfully to enter into and perform the
obligations expressed to be assumed by it in the Finance
Documents to which it is a party, or
33.12.4 to ensure that the obligations expressed to be assumed by
any Person in the Finance Documents to which such Person is
a party are legal, valid and binding and enforceable against
it in accordance with the terms thereof,
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is not done, fulfilled, obtained, renewed, extended, complied
with or performed when so required or otherwise ceases to be
in full force and effect; or
33.13 Compliance with Law
33.13.1 At any time a Law required to be complied with in order to
carry out the Borrower's business and operations generally
is not complied with when so required; or
33.13.2 At any time, any Law required to be complied with in order -
33.13.2.1 to enable any Person lawfully to enter into and
perform the obligations expressed to be assumed by
it in the Finance Documents to which it is a party,
33.13.2.2 to ensure the legality, validity, binding nature and
enforceability of the Borrower's rights under the
Finance Documents; or
33.13.2.3 to ensure that the obligations expressed to be
assumed by any Person in the Finance Documents to
which such Person is a party are legal, valid and
binding and enforceable against it in accordance
with the terms thereof,
is not complied with when so required; or
33.14 Illegality
At any time it is or becomes unlawful for any Person to perform or
comply with any or all of its obligations under the Finance
Documents; or
33.15 Invalidity
Any of the obligations expressed to be assumed by any Person under
the Finance Documents are not or cease to be legal, valid and
binding obligations enforceable against such Person in accordance
with the terms thereof; or
33.16 Breach of obligations relating to Potential Default
The Borrower is in breach of its obligations under clause 32.2.2
above; or
33.17 Nationalisation
By or under the authority of any relevant authority, whether by act
or omission:
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33.17.1 the Secured Assets or any material part thereof is
expropriated or nationalised; or
33.17.2 the board of directors and/or management of the Borrower is
wholly or partially removed or the authority of the
Borrower in the conduct of its business is wholly or
partially curtailed; or
33.17.3 any of the Shares or any part of the Borrower's undertaking,
rights, revenues or assets are or is seized, nationalised,
expropriated, requisitioned or acquired; or
33.18 Ownership of the Borrower
The Shareholder shall cease to own and control the voting power
attributable, either directly or indirectly, to all (100%) of the
issued share capital, or voting share capital of the Borrower until
the Facilities Discharge Date; or
33.19 Cessation of Borrower's business
The Borrower ceases to carry on the whole or substantial part of its
business or stops or suspends payment of its debts or proposes or
enters into any composition, scheme, compromise arrangement with or
for the benefit of its creditors generally or any class of them;
33.20 Security Invalidity or Challenge
The Security or any part thereof shall for any reason cease to be in
full force and effect under any applicable Law or is alleged by the
Borrower or the Secured Asset Entities to be ineffective or the
Security or any part thereof otherwise ceases to constitute valid,
first-ranking security in respect of the relevant asset(s) or
revenue and the Borrower fails to restore the Security within 10
business days of being required to do so by the Lender or such
longer period as the Lender may agree; or
33.21 Environmental claims
A third party (including a regulatory authority) takes any action or
makes any claim against the Borrower and/or any of the Secured Asset
Entities under any Environmental Law, including any rehabilitation
or remedial action (in particular in relation to contaminated land)
or the revocation, suspension, variation or non renewal of any
Environmental Approval, which action or claim could:-
33.21.1 have a Material Adverse Effect; or
33.21.2 such action or claim is for an amount in excess of USD
500,000, or such action or claim causes the aggregate of
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aforementioned actions or claims over the then past year to
exceed USD 500,000;
and the Borrower fails to settle or satisfy (or fails to cause a
similar result of ) the action or the claim within 10 business days
after having become aware thereof or fails to have the action or
claim withdrawn (or fails to cause a similar result) by the said
third party within 10 business days after it came to the attention
of the Borrower; or
33.22 Other events
Any other breaches, events or series or combination of breaches,
events or circumstances occur which has or have or may have a
Material Adverse Effect; or
33.23 Other specific Events of Default
Any other breach or event that is expressed in the Finance Documents
to constitute an Event of Default.
34. CONSEQUENCES OF EVENTS OF DEFAULT
34.1 The occurrence of an Event of Default shall constitute a material
breach of each of the Finance Documents.
34.2 Upon the occurrence of any Event of Default then, without prejudice
to such other rights or remedies which the Lender may have in terms
of any other agreements or at Law, the Lender may upon notice to the
Borrower:
34.2.1 claim immediate payment of all amounts (including, without
limitation, all principal, interest, costs, charges, Breakage
Costs) owing (whether due or payable or not) by the Borrower
to the Lender, all of which shall be and become forthwith due
and payable, and/or
34.2.2 place all or any part of the Advances (together with accrued
interest and all other amounts due to the Lender by the
Borrower under the Finance Documents) on demand, whereupon
they shall immediately become payable on demand and at any
time thereafter:-
34.2.2.1 make any further amendment to the repayment
obligations relating to such Advances; and/or
34.2.2.2 demand repayment of all or part of the Advances
placed on demand together with accrued interest and
any other amounts then payable under the Finance
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Documents (including, without limitation, Breakage Costs due
under the Finance Documents); and/or
34.2.3 decline to pay out any amounts then un-drawn under the
Facilities; and/or
34.2.4 cancel one or more or all of the Finance Documents in whole
or in part; and/or
34.2.5 claim payment of such damages, costs and other amounts
incurred in consequence of such Event of Default from the
Borrower; and/or
34.2.6 take all steps which the Lender considers desirable to
enforce the Security; and/or
34.2.7 become the sole signatory to each of the Accounts; and/or
34.2.8 either temporarily or permanently, suspend the operation of
part or all of the provisions of Section 5 and/or operation
of part or all of the provisions of the Assignment of
Accounts; and/or
34.2.9 instruct the Account Bank not to permit the withdrawal of
any amount from the Accounts without the Lender's further
instructions; and/or
34.2.10 instruct the Account Bank to pay to the Lender all or any
amount credited to all or any of the Accounts
34.2.10.1 for application in accordance with the Loan
Agreements; and/or
34.2.10.2 towards reduction of amounts payable by the Borrower
under the Finance Documents to the Lender; and/or
34.2.10.3 towards other payments payable by the Borrower.
34.3 Nothing in this clause shall entitle the Lender to recover, in
respect of the rights and remedies granted to the Lender under this
clause which constitute penalty stipulations, both the penalties and
damages, provided should such rights and remedies constitute penalty
stipulations then the Lender shall be entitled to recover damages in
lieu of the penalties;
34.4 If an Event of Default has occurred and the Lender is exercising or
have exercised any of their rights and remedies under any one or
more of clauses 34.2.1 to 34.2.10 then the Lender may at any time
whilst any
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Event of Default is continuing and unremedied, elect to exercise any
of their other rights 34.2.1 to 34.2.10.
SECTION 8 - THE LENDER
35. LENDER'S ADVANCES
Subject to the provisions of this CTA and the Facility Agreements, the
Lender shall make Advances to the Borrower in accordance with the
provisions of the Loan Agreements.
36. DRAWDOWNS
36.1 INITIAL DRAWDOWN
The obligation of the Lender to make the first Advance under the
Facility Agreements is subject to the fulfilment of the conditions
precedent provided for in Section 4.
36.2 SUBSEQUENT DRAWDOWNS
After the drawdown of the first Advance, the obligation of the
Lender to make any Advance under any of the Facility Agreements is
subject only to:
36.2.1 the Lender having received the requisite Drawing Notice in
accordance with the provisions of the relevant Facility
Agreement;
36.2.2 the Borrower having complied with any additional conditions
to draw down which are mentioned in the Facility Agreement
concerned; and
36.2.3 the absence of any continuing and unremedied Potential Event
of Default or continuing and unremedied Event of Default.
36.3 EXTENSION AND WAIVER
Subject to any other provisions of this CTA, the Lender shall be
entitled to -
36.3.1 extend the relevant period for fulfilment of any or all of
the conditions; and
36.3.2 waive fulfilment of any or all of the conditions
referred to in clauses 36.1 and 36.2 above.
36.4 CONDITIONS FOR THE BENEFIT OF THE LENDERS
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The conditions contained in clause 36.1 and 36.2 are expressed
to be for the benefit of the Lender.
36.5 DRAW STOP NOTICES
36.5.1 Should the Lender not be satisfied that the conditions to
drawdown set out in clause 36.2 have been fulfilled or
waived, the Lender shall issue a Draw Stop Notice under this
clause 36.5, and if it does so, shall furnish a copy thereof
together with a statement of the reasons for doing so to the
Borrower.
36.5.2 Upon the issue of a Draw Stop Notice, the Lender's
obligations under the Facility Agreements to honour any
Drawing Notice or make any Advance shall be excused.
36.5.3 The Borrower shall be entitled, immediately upon the events
or impediments giving rise to the issue of the Draw Stop
Notice having ceased to exist or having been removed, to
issue a new Drawing Notice in terms of the relevant Facility
Agreement.
36.5.4 The Lender may, at the request of the Borrower, withdraw any
Draw Stop Notice. Should the Lender decide to do so, it shall
notify the Borrower and, in that event, any time periods
referred to in this clause 36.5 and in the Drawing Notice
shall run from the date of such notification.
37. BORROWER'S INDEMNITY IN FAVOUR OF THE LENDER
37.1 The Borrower hereby indemnifies the Lender against and undertakes to
pay the Lender, on presentation to it of an invoice from a third
party or, where there is no invoice from a third party, other
evidence to the Borrower's reasonable satisfaction, any cost, claim,
loss, damages, expense (including legal fees) or liability which the
Lender may sustain or incur as a result of a claim by such third
party against the Lender arising out of any breach by the Borrower
in the performance of any of its obligations under any agreement to
which the Lender is not a party.
37.2 If any legal action is brought or claim is made against the Lender
and the Lender is entitled to be indemnified pursuant to clause
37.1,
37.2.1 the Lender shall notify the Borrower promptly of such claims
or any such threatened claims and take such action (at the
Borrower's expense) as the Borrower reasonably directs;
37.2.2 the Borrower shall be entitled at its own expense to defend,
have conduct of, or settle any such action or claim;
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37.2.3 the Lender shall be entitled to engage its own legal counsel
(at the cost of the Borrower) and the Lender shall
co-ordinate its defence with that of the Borrower;
37.2.4 the Borrower shall provide all necessary clerical, accounting
or legal assistance for the conduct of the proceedings;
37.2.5 if the Borrower fails to defend, deal with or negotiate any
such action or claim diligently, the Lender may, after first
giving the Borrower reasonable notice to so act, settle such
action or claim without the consent of the Borrower and
without relieving the Borrower of the obligation to indemnify
the Lender as provided in clause 37.1.
37.3 The Lender shall not be obliged to defend, settle or compromise any
proceedings but will not do nor omit to do anything which prejudices
the rights or ability of the Borrower to defend, settle or
compromise any such claim.
38. APPOINTMENT OF LENDER'S ADVISERS
38.1 During the term of the Finance Documents, the Lender shall be
entitled from time to time to appoint one or more Lender's Advisers
as may be reasonably required to advise upon or protect the Lender's
rights and obligations under the Finance Documents. Without limiting
the aforegoing, the Lender shall be entitled to appoint any Lender's
Adviser (at the Borrower's cost):-
38.1.1 upon the occurrence of a Potential Event of Default or Event
of Default; or
38.1.2 should further Security need to be taken by the Borrower, as
described in the Facility Agreements, prior the making of or
as a condition precedent to the making of an Advance, or
38.1.3 should any variation, consent or approval relating to any of
the Finance Documents or any related documents be required.
38.2 The agreed or, failing agreement, the reasonable fees, disbursements
or expenses of the Lender's Advisers shall be paid by the Borrower
on presentation of an invoice to it or, where there is no invoice,
other evidence to the Borrower's reasonable satisfaction.
38.3 In addition, the Borrower shall on demand pay to, or at the
direction of, the Lender, all fees and expenses (including legal
expenses on the attorney and own client scale (or an analogous scale
in other jurisdictions) and out-of-pocket expenses), charges and
expenses of a like nature, including all Taxes, incurred by the
Lender acting in accordance with its rights and
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obligations under the Finance Documents, in preserving, enforcing or
defending, or attempting to preserve, enforce or defend, any of
their rights under the Finance Documents against the Borrower.
39. DAMAGES CLAIMABLE BY THE LENDER
Where in the Finance Documents, the Lender is entitled to claim damages
from the Borrower such damages shall include, (to the extent the Lender is
able to prove that they have suffered such damages) -
39.1 sums paid or payable on account of any funds borrowed in order to
carry any unpaid amount; and
39.2 any loss which may be incurred in liquidating or deploying deposits;
and
39.3 all commitment fees, as defined in the Finance Documents, accrued to
the date of exercise by the Lender of any of the rights in terms of
clause 34 of this CTA; and
39.4 any other amount due or to become due to them under the Finance
Documents, including, without limitation, Breakage Costs due under
the Finance Documents.
40. ILLEGALITY
40.1 Where at any time the introduction, imposition or variation of any
Law or any change in the interpretation by a relevant authority or
court of competent jurisdiction in any country applicable to the
Lender (for the purposes of this clause referred to as "Competent
Authority") thereof -
40.1.1 makes it unlawful or impossible without breaching such Law
for the Lender to -
40.1.1.1 allow all or part of its participation in amounts
outstanding under the Finance Documents to remain
outstanding; or
40.1.1.2 to fund all or part of its participation in a
drawdown under the Finance Documents; or
40.1.1.3 to carry out all or any of the Lender's other
obligations under the Finance Documents; or
40.1.1.4 to charge or receive interest as specified under the
relevant Loan Agreements;
40.1.2 then:
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40.1.2.1 the Lender shall notify the Borrower and the Lender's
obligation to lend under the Loan Agreements or any
of them shall forthwith be cancelled to the extent
necessary to cure such illegality or impossibility;
and
40.1.2.2 the Borrower shall, within 3 business days of being
so notified or 3 business days prior to such
unlawfulness or impossibility coming into effect
(whichever is later) prepay to the Lender the amount
owing to the Lender under the affected Finance
Document (including, without limitation, any sum
payable under clauses 34 and 37 above) together with
any and all interest, commitment fees accrued to the
date of such cancellation in respect of the portion
of the Finance Documents cancelled and any amounts
which become due to the Lender from the Borrower
under the Finance Documents as a result of the
payment or prepayment by the Borrower to the Lender
in terms of the provisions of this clause 40,
including but not limited to Breakage Costs.
40.2 Where such illegality relates to the repayment of amounts
outstanding under the Facility B Loan Agreement by the issue of
Shares, as described in that agreement, then the Borrower shall be
obliged to repay such facility in cash.
41. INCREASED COSTS
41.1 If by reason of:
41.1.1 any change in law; and/or
41.1.2 any directive, requirement, request or guidance (whether or
not having the force of law but if not having the force of
law, one which applies generally to a class or category of
financial institutions and/or financial service companies) of
any central bank or any other fiscal, monetary, regulatory or
other authority; and/or
41.1.3 any change in banking practice, as it affects or is applied
generally by any financial institution; and/or
41.1.4 a requirement or a request by any statutory or monetary
authority, to pay Taxes, levies or other amounts whatsoever
or to maintain special deposits or reserve assets, in
addition to those currently paid or maintained or reserved by
the Lender; and/or
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41.1.5 any compliance by the Lender with any reserve, cash ratio,
special deposit or liquidity requirements (or any other
similar requirements) in respect of this CTA in addition to
those anticipated by the Lender; and/or
41.1.6 any compliance by the Lender with any capital adequacy or
similar requirements howsoever arising, including as a result
of an increase in the amount of the capital to be allocated
to the amount advanced under this CTA or of a change of
weighting of the commitment under this CTA, and/or
41.1.7 maintain special deposits or reserve assets, in addition to
those currently paid or maintained or reserved by the Lender,
there are any increased costs, then the Borrower shall forthwith on
demand pay the Lender the amount of any increased costs incurred by
the Lender (whether by way of an increase in Margin or otherwise).
41.2 The Lender shall provide the Borrower such reasonable details as to
how such increased cost has been suffered, provided that it shall
not be under any obligation under this clause to disclose any
information relating to its affairs or to that of any financier,
which it in its sole and absolute discretion determines is
confidential, commercially sensitive or the disclosure of which
would be contrary to any of its usual policies and no failure to
disclose any such information shall limit its rights hereunder.
41.3 The obligation on the part of the Borrower to pay taxes in terms of
clause 41.1.4 (whether retrospective or not) shall survive the
expiry or early termination of the last of the Finance Documents for
a period of 3 (three) years after the date of final assessment has
been issued to the Lender in respect of the Finance Documents, which
cannot be revised by the relevant authorities.
41.4 Clause 41.1.1 shall not apply to any increased cost attributable to
any change in the rate of tax on the overall net income of the
Lender.
42. DECREASE IN COSTS
Should any of the circumstances mentioned in clauses 41.1.1 to 41.1.7,
result in:-
42.1 a decrease in the cost to such Lender of making or maintaining the
Facilities; or
42.2 decrease the cost to such Lender of making or maintaining Advances
or holding the Security under the Finance Documents; or
42.3 increase the amount of any sum received or receivable by such Lender
under any of the Finance Documents,
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in a manner or amount which is not already accounted for or provided
for in this CTA or in any Facility Agreement, then the Lenders
shall, if so required by the Borrowers, credit the Borrower with an
amount or amounts which would place the Lender concerned in no worse
and no better financial position after taking into account such
decreased cost or increase in amount received. Such credit may be
effected by way of a reduction in Margin or otherwise.
43. DEDUCTIONS OR WITHHOLDINGS REQUIRED BY LAW
43.1 If any deduction or withholding from any payment by the Borrower to
the Lender under the Finance Documents is required by Law, then the
Borrower shall, if so required by the Lender affected by the such
deduction or withholding, pay to the Lender, when the payments which
are subject to such deduction or withholding are due, such
additional amount so that the net amount received by the Lender, is
equal to the full amount which would have been received by the
Lender if such deduction or withholding was not made.
43.2 The Borrower shall:
43.2.1 ensure that the deduction or withholding does not exceed the
minimum amount legally required;
43.2.2 pay to the relevant taxation or other authorities within the
period for payment permitted by Law, the full amount of the
deduction or withholding (including, but without prejudice to
the generality of the foregoing, the full amount of any
deduction or withholding from any additional amount paid
pursuant to this clause 43.2.2); and
43.2.3 furnish to the Lender either:
43.2.3.1 an official receipt of the relevant taxation or other
authorities involved in respect of all amounts so
deducted or withheld; or
43.2.3.2 if such receipts are not issued by the taxation or
other authorities concerned on payment to them of
amounts so deducted or withheld, a certificate of
deduction or withholding signed by the Managing
Director of the Borrower.
43.3 If payment of the deduction or withholding by the Borrower to the
relevant taxation or other authorities in terms of this clause 43 -
43.3.1 causes the Lender to receive a corresponding refund or credit
from the relevant taxation or other authorities of an amount
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which is directly attributable to the amount deducted or
withheld; and
43.3.2 places the Lender in a better financial position than it or
they would have been had the provisions of this clause 43 had
not applied;
then the Lender shall, to the extent permitted by Law, repay to the
Borrower an amount or amounts which would place the Lender in no
worse and no better financial position after taking account of the
refund or credit referred to above.
44. SET-OFF BY THE LENDER
44.1 The Lender may, without prior notice to the Borrower, apply any
credit balance (whether or not then due and in whatever currency)
which is at any time held by any office or branch of the Lender for
the account of the Lender in or towards satisfaction of any sum then
due and payable from the Borrower under the Finance Documents and in
respect of which a default in payment has occurred.
44.2 For the purposes of exercising any rights under this clause 44, or
any rights under the general law, the Lender may convert or
translate all or any part of any such a credit balance into another
currency applying a rate which in its opinion fairly reflects
prevailing rates of exchange.
44.3 The Lender is not obliged to exercise any of its rights under this
clause 44, which shall be without prejudice and in addition to any
rights under the general law.
44.4 In this clause 44 "rights under the general law" means any right of
set-off, combination or consolidation of accounts, lien or similar
right which the Lender has under any applicable law.
45. ASSIGNMENT BY THE LENDER
Save as stated in clause 15.5 of the Facility B Loan Agreement, the Lender
may not assign or transfer all or any of its rights and obligations under
any of the Finance Documents to any party without the prior written
consent of the Borrower, which consent shall not be unreasonably withheld
or delayed. The Borrower will enter into all documents specified by the
Lender to be necessary to effect any such assignment or transfer.
SECTION 9 - GENERAL AND INTERPRETATION
46. INTERPRETATION AND OTHER GENERAL TERMS OF THIS LOAN AGREEMENT
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46.1 GENERAL APPLICATION OF THIS CLAUSE
Each of the provisions of this Section 9 shall -
46.1.1 apply to all the parties to the Finance Documents as fully
and effectually as if these provisions had been incorporated
in those agreements; and
46.1.2 come into force (notwithstanding the provisions of clause 13)
upon signature of this CTA and shall survive and continue to
bind the parties to the Finance Documents upon the
termination for whatever reason of the Finance Documents.
46.2 INTERPRETATION
46.2.1 Clause and paragraph headings in the Finance Documents are
for purposes of reference only and shall not be used in
interpretation.
46.2.2 In the Finance Documents, unless the context clearly
indicates a contrary intention,
46.2.2.1 any word connoting:
46.2.2.1.1 any gender includes the other two genders;
46.2.2.1.2 the singular includes the plural and vice
versa;
46.2.2.1.3 natural persons includes juristic persons and
vice versa.
46.2.2.2 subject to clause 46.3, when any number of business
days (or days) is prescribed for the calculation of
interest such number shall include the first and
exclude the last business day (or day) but for all
other purposes such number shall exclude the first
and include the last business day (or day);
46.2.2.3 a reference to an enactment is a reference to that
enactment as at the date of signature hereof and as
amended or re-enacted from time to time.
46.2.3 Any reference in any of the Finance Documents to any document
or agreement shall be construed as a reference to that
document or agreement as the same may have been, or may be,
from time to time, amended, supplemented, restated, novated,
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ceded, delegated or replaced in accordance with its terms and
the terms of the Finance Documents.
46.3 CALCULATION OF INTEREST
Unless otherwise stated in a Finance Document
46.3.1 Interest payable in terms of the Finance Document shall be
calculated on the basis of actual days elapsed (counting the
first day of the relevant interest period but not counting
the last day of that interest period) and a year of 360 days;
46.3.2 Notwithstanding the above provisions of this clause 46.3, if
any Interest Period (as defined in the Facility Agreements)
ends on a day which is not a business day, such Interest
Period shall be extended to the next business day unless that
would extend that Interest Period into the next following
calendar month, in which event that Interest Period shall be
shortened so as to end on the immediately preceding business
day.
46.4 CERTIFICATES
A certificate signed by or on behalf of the Lender as to the
existence and amount of the Borrower's Indebtedness under any of the
Finance Documents at any time, as to the fact that such amount is
due and payable, as to the rate of interest and the amount of any
interest payment and as to any other fact, matter or thing relating
to the Borrower's Indebtedness shall be, in the absence of manifest
error, rebuttably presumed to be proof of the contents and
correctness thereof and of the amount of the Borrower's Indebtedness
for the purposes of provisional sentence of summary judgment or any
other proceedings against the Borrower in any competent court and
shall be valid as a liquid document for such purpose.
It shall not be necessary to prove the appointment or authority of
the person signing such certificate, which certificate shall be
deemed to be sufficient particularity for the purposes of pleading
or trial in any action or other proceedings instituted by the Lender
against the Borrower.
46.5 RIGHTS, CUMULATIVE, WAIVERS
46.5.1 The respective rights and remedies of the Borrower, the
Lender and the Lender under the Finance Document are
cumulative, may be exercised as often as the holder of such
rights consider appropriate and are in addition to and not
exclusive of their respective rights and remedies in law.
46.5.2 No failure or delay on the part of the Lender to exercise any
power, right or remedy under any of the Finance Documents
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shall operate as a waiver thereof nor shall any single or
partial exercise by it of any power, right or remedy preclude
any other or further exercise thereof or the exercise of any
power, right or remedy.
46.5.3 The rights and remedies of the Borrower and the Lender
whether arising any of the Finance Documents or in common law
shall not be capable of being waived or varied otherwise than
by an express waiver in writing.
46.5.4 The waiver by any party of any breach of the terms or
conditions of any of the Finance Documents by any other party
shall not prejudice any remedy of the waiving party in
respect of any continuing or other breach of the terms and
conditions of any thereof unless such waiver was expressly
made in respect of such continuing breach.
46.6 TERMINATION NOT TO PREJUDICE ACCRUED RIGHTS
The expiry or termination of any of the Finance Documents shall not
prejudice the rights of any party thereto in respect of any
antecedent breach or non-performance by any party of any of the
terms or conditions hereof.
46.7 ENGLISH LANGUAGE
All notices or communications under or in connection with the
Finance Documents shall be in the English language.
46.8 SEVERABILITY
If any one or more of the provisions of any of the Finance Documents
shall be declared or adjudged (formally or informally) by competent
authority to be illegal, invalid or unenforceable under any Law
applicable:
46.8.1 That provision shall be deemed for all purposes to be
severable from all the other provisions of the Finance
Document, which provisions shall continue in force
unaffected;
46.8.2 The Finance Document thus continuing shall (subject and
without prejudice to any appeal to higher authority as to the
status of that provision) exclude the offending provision
but, if such deletion substantially affects or alters the
commercial basis of the affected or any other Finance
Document, then the Finance Documents including such provision
shall be amended in such manner as the parties in good faith
agree which will, while not being void or unenforceable, most
nearly achieve the object of the allegedly void or
unenforceable provisions.
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46.9 PERFORMANCE OF FURTHER ACTS REQUIRED BY LAW
The Borrower and the Lender shall perform (or procure the
performance of) all further acts and things, and execute and deliver
(or procure the execution and delivery of) such further documents,
as may be required by Law or as may be necessary or desirable to
implement and/or give effect to the Finance Documents and the
transactions contemplated thereby.
46.10 GOVERNING LAW
The Loan Agreements shall be governed by and interpreted according
to the Laws of South Africa.
46.11 JURISDICTION
46.11.1 The parties irrevocably agree that the Witwatersrand Local
Division of the High Court of South Africa shall have
jurisdiction to hear and determine a suit, action or
proceeding, and to settle any disputes, which may arise out
of or in connection with any of the Finance Documents and
for such purposes hereby irrevocably submit to the
jurisdiction of such court.
46.11.2 Nothing contained in this clause shall limit the right of
the Lender to take proceedings against the Borrower in any
other court of competent jurisdiction, nor shall the taking
of any such proceedings in one or more jurisdictions
preclude the taking of proceedings in any other
jurisdiction, whether concurrently or not (unless precluded
by applicable law).
46.12 COUNTERPARTS AND PLACE OF CONCLUSION OF AGREEMENT
46.12.1 The Finance Documents may be executed in several
counterparts each of which when read together, shall
constitute one and the same document. The Borrower shall
provide its counterparts to the Lender upon request.
46.12.2 If any Finance Document is to be signed between the Lender
and the Borrower at different places, such Finance Document
will be concluded at the place where the party first signing
that Finance Document receives a copy of that Finance
Document bearing the signatures of both parties. Receipt of
such documents by any director of the party first signing
same, shall be sufficient for the purposes of this clause,
notwithstanding that the Finance Document may have been
signed by one or more directors of that party.
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46.12.3 The provisions of clause 46.12.2 shall be binding on the
Borrower and the Lender, notwithstanding anything to the
contrary contained in clause 46.12.1, clause 46.16 (Notices)
and in any similar notice or domicilium clause in any other
Finance Document between the Borrower and the Lender.
46.13 AMENDMENTS NOT EFFECTIVE UNLESS IN WRITING
No addition to, variation of or agreed cancellation of the Finance
Documents shall be of any force or effect unless in writing and
signed by or on behalf of the parties and then such modification,
waiver or cancellation or consent shall be effective only in the
specific instance in respect of which it was expressed to be
effective and only for the purpose and to the extent for which made
or given.
46.14 CONFIDENTIALITY
46.14.1 Confidential Information
Each of the parties to the Finance Documents agrees, for
itself and its respective directors, officers, employees,
servants and agents, to keep confidential and not to disclose
to any Person (save as hereinafter provided) any confidential
or proprietary information (including, without limitation, the
Finance Documents and all related documents, computer records,
specifications, formulae, evaluations, methods, processes,
technical descriptions, reports and other data, records,
drawings and information and any information in respect of the
business operations or affairs of any party to the Finance
Documents) provided to or acquired by it pursuant to or
arising from the terms or performance of the Finance Documents
(including without limitation any such documents or
information supplied in the course of proceedings under the
disputes resolution procedure under any Finance Document or
during any negotiations of any Finance Document) (together the
"Confidential Information").
46.14.2 Exceptions
Notwithstanding clause 46.14.1 above, any of the parties to
the Finance Documents, shall be entitled to disclose the whole
or any part of the Confidential Information:
46.14.2.1 to any assignee or transferee or any prospective
assignee or transferee or any other Person with whom
it may enter contractual obligations in relation to
funding or supporting its commitments under any
Finance Documents, any of its or their respective
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directors, officers, employees, servants,
subcontractors, agents, auditors or Lender's
Advisers to the extent necessary to enable it or
them to perform (or to cause to be performed) or to
enforce any of its or their rights or obligations
under the Finance Document and all related documents
or (as the case may be) to assess whether or not to
become the Lender provided that the recipient of
such information enters into a similar undertaking
to that contained in this clause 46.14; or
46.14.2.2 when required to do so by Law; or
46.14.2.3 to the extent that the Confidential Information has,
except as a result of breach of confidentiality,
become publicly available or generally known to the
public at the time of such disclosure; or
46.14.2.4 to the extent that the Confidential Information is
already lawfully in the possession of the recipient
or lawfully known to him prior to such disclosure;
or
46.14.2.5 to the extent that it has acquired the Confidential
Information from a third party who is not in breach
of any obligation as to confidentiality to the other
party; or
46.14.2.6 to the extent permitted by the Finance Documents, or
any related documents; or
46.14.2.7 to the extent that any of the parties wishes to use
any non-commercially sensitive Confidential
Information for the purposes of marketing and/or
promotion of its business activities.
46.14.3 The determination of whether information is Confidential
Information shall not be affected by whether or not such
information is subject to, or protected by, common law or
statute related to copyright, patent, trademarks or
otherwise.
46.14.4 Restrictions on disclosure and use of confidential
information
46.14.4.1 The parties to the Finance Document agree and
undertake:
46.14.4.1.1 Except as permitted by this clause, not to
disclose or publish any Confidential
Information in any manner, for any
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reason or purpose whatsoever without the
prior written consent of the other party,
which consent may be withheld in the sole
and absolute discretion of the other party
and provided that in the event of the
Confidential Information being proprie-tary
to a third party, it shall also be incumbent
upon the party wishing to disclose such
information to obtain the consent of such
third party;
46.14.4.1.2 Except as permitted by this clause, not to
utilise, employ, exploit or in any other
manner whatsoever use the Confidential
Information for any purpose whatsoever
without the prior written consent of the
other party, which consent may be withheld
in the sole and absolute discretion of the
other party and provided that in the event
of the Confidential Information being
proprietary to a third party, it shall also
be incumbent upon the party wishing to
disclose such information to obtain the
consent of such third party;
46.14.4.1.3 To restrict the dissemination of the
Confidential Information to only those of
the personnel who are actively involved in
activities for which use of Confidential
Information is authorised and then only on a
"need to know" basis and the parties shall
initiate, maintain and monitor internal
security procedures reasonably acceptable to
each other to prevent unauthorised
disclosure by the personnel;
46.14.4.1.4 To take all practical steps, both before and
after disclosure, to impress upon the
personnel who are given access to
Confidential Information the secret and
confidential nature thereof.
46.14.5 Title to confidential information
All Confidential Information disclosed by either party to the
other or, subject to 46.14.2.4 and 46.14.2.5, which otherwise
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comes to the knowledge of either party, is acknowledged by
that party:-
46.14.5.1 To be proprietary to the other party or where
applicable, the relevant third party proprietor; and
46.14.5.2 Not to confer any rights of whatsoever nature in
such Confidential Information on the other party.
46.14.6 Standard of care
The parties shall protect the Confidential Information in the
manner, and with the endeavour of a reasonable person
protecting their own Confidential Information. In no event
will either party use less than reasonable efforts to protect
the confidentiality of the Confidential Information.
46.14.7 Return of confidential information
46.14.7.1 Either party may at any time on written request to
the other party, require that party to immediately
return to the first mentioned party, any
Confidential Information and may, in addition,
require material containing, pertaining to or
relating to the Confidential Information and may
require that the other party furnish a written
statement to the effect that upon such return, it
has not retained in its possession or under its
control, either directly or indirectly, any such
Confidential Information or material.
46.14.7.2 Alternatively to clause 46.14.7.1, either party
shall, as and when required by the other party on
written request from the proprietor of the
Confidential Information, destroy all such
Confidential Information and material and furnish
the other party with a written statement to the
effect that same has been destroyed.
46.15 REMEDIES
46.15.1 Without prejudice to any other rights and remedies that an
aggrieved party would have, each of the parties agrees that,
where damages are not or would not be an adequate remedy for
any breach of the Finance Documents, the aggrieved party
shall be entitled to the remedies of interdict or specific
performance to the extent practical and suitable in the
relevant circumstances.
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46.15.2 No party shall have any remedies against any other party
arising out of termination of the Finance Document save for
the remedies specified in this CTA.
46.16 NOTICES
46.16.1 Each party chooses as its address for purposes under the
Loan Agreements ("chosen address") of serving any court
process or documents, as follows, it being recorded that for
valid service on the Lender, a copy of any document served
must be served on both addresses mentioned below, with
service taking place on the later of such dates of service:-
THE LENDER 7th Floor
Harbour Front Building,
Xxxx Xxxxxxx Street, Port
Louis,
Mauritius,
With a copy to:-
Resource Finance
000 Xxxxxxxx Xxxxx
Xxxxxxx
Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxxxx Xxxxx
00/00 Xxxxx Xxxxxx
Xxxxxxx
THE BORROWER Isle of Man
46.16.2 Each party chooses as its address for purposes under the
Loan Agreements ("chosen address"), of giving any notice, or
making any other communications of whatsoever nature and for
any purpose arising from the Finance Documents (other than
as stated in clause 46.16.2 and the aforegoing provisions of
this clause) ("notice"), as follows:-
THE LENDER Resource Finance
000 Xxxxxxxx Xxxxx
Xxxxxxx
Xxxxxxx
Xxxxx Xxxxxx
THE BORROWER DRD Building
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00 Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
46.16.3 Any notice required or permitted under this clause shall be
valid and effective only if in writing.
46.16.4 Any party may by notice to the other parties change its
chosen address to another physical address and such change
shall take effect on the seventh day after the date of
receipt by the party who last receives the notice.
46.16.5 Any notice to a party delivered by hand to a responsible
person during ordinary business hours at its chosen address,
shall be deemed to have been delivered and received on the
date of delivery.
46.16.6 Notwithstanding anything to the contrary herein, a written
notice actually received by a party, including a notice sent
by telefax or email ("the first notice"), shall be an
adequate notice to it notwithstanding that it was not sent
or delivered to its chosen address or in the manner
envisaged in clause 46.16.5, provided that, within the next
three succeeding business days,
46.16.6.1 the Person to whom the notice was sent acknowledges
receipt of the first notice; or
46.16.6.2 a copy of the first notice is delivered to the
chosen address, accompanied by a notice giving the
following particulars:
46.16.2.2.1 where the first notice was sent by telefax
or e-mail, the date and time of despatch and
the telefax number or e-mail address to
which it was sent; and
46.16.2.2.2 where the first notice was delivered in a
manner other than by telefax or e-mail, the
manner of delivery, the date on which it was
delivered, the person by whom it was
received and where it was received.
46.17 MISCELLANEOUS
46.17.1 Entire agreement
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The Finance Documents and all appendices thereto,
constitutes the sole record of the agreement between the
parties with regard to the subject matter hereof. No party
shall be bound by any express or implied term,
representation, warranty, promise or the like not recorded
in the Finance Documents.
46.17.2 Failure, delay, relaxation, approvals
46.17.2.1 No failure, delay, relaxation or indulgence on the
part of any party in exercising any power, right or
remedy conferred on such party under the Finance
Documents or by common law shall operate as a waiver
of such power, right or remedy nor shall any single
or partial exercise of any such power, right or
remedy preclude any other or further exercises
thereof or the exercise of any other power, right or
remedy of such party.
46.17.2.2 An approval or consent given by a party under the
Finance Documents shall only be valid if in writing
and shall not relieve the other party from
responsibility for complying with the requirements
of the Finance Documents nor shall it be construed
as a waiver of any rights under the Finance
Documents except as and to the extent otherwise
expressly provided in such approval or consent, or
elsewhere in the Finance Documents.
46.17.3 Performance or observance subsequent to termination or
expiration
Any provision of the Finance Documents which contemplates
performance or observance subsequent to any termination or
expiration of the Finance Documents shall survive any
termination or expiration of the Finance Documents and
continue in full force and effect.
46.17.4 Successors, Transferees and Assigns
Any reference in the Finance Documents to the Lender (in any
capacity), the Borrower or any other Person shall be
construed so as to include their respective permitted
successors, transferees and assigns.
46.17.5 The rule of interpretation that a written agreement shall be
interpreted against the party responsible for the drafting
or preparation of that agreement shall not apply.
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46.17.6 If any provision in a definition is a substantive provision
conferring rights or imposing obligations on any party,
notwithstanding that it is only in the definition clause,
effect shall be given to it as if it were a substantive
provision in the body of the agreement.
46.17.7 The eiusdem generis rule shall not apply and accordingly,
whenever a provision is followed by the word "including" and
specific examples, such examples shall not be construed so
as to limit the ambit of the provision concerned.
46.17.8 Where any term is defined within the context of any
particular clause in the Finance Documents, then, unless it
is clear from the clause in question that the term so
defined has limited application to the relevant clause, the
term so defined shall bear the meaning ascribed to it for
all purposes in terms of the Finance Documents,
notwithstanding that that term has not been defined in the
definition clause.
46.17.9 Any reference in any Finance Document to a clause, an
Appendix, a Schedule is to a clause of, an Appendix to, a
Schedule to that Finance Document unless the context
requires otherwise.
46.17.10 Approvals And Consents
An approval or consent given by a party under the Finance
Documents shall only be valid if in writing and shall not
relieve the other party from responsibility for complying
with the requirements of the Finance Documents nor shall it
be construed as a waiver of any rights under the Finance
Documents except as and to the extent otherwise expressly
provided in such approval or consent, or elsewhere in the
Finance Documents.
46.17.11 Provision of Information
The Lender may validly act on all information, instructions
and requests provided to it by the Borrower, without any
liability or responsibility to verify or check the accuracy
of such information.
Signed at on 2004 at _______ am/pm
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INVESTEC BANK (MAURITIUS) LIMITED
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Signed at on 2004 at _______ am/pm
/s/ M.M. Wellesley-Wood
-------------------------------------------
DRD (ISLE OF MAN) LIMITED
Signed by [ ] , a director,duly authorised for and on behalf of DRD (Isle of
Man) Limited.
As Witness: _______________________
_______________________ (name)
Signed at on 2004 at _______ am/pm
/s/ J. Cowleared
-----------------------------
DRD (ISLE OF MAN) LIMITED
Signed by [ ] , a director, duly authorised for and on behalf of DRD (Isle
of Man) Limited.
As Witness: _______________________
_______________________ (name)
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APPENDIX 1
CONDITIONS PRECEDENT TO FINANCIAL CLOSING FOR FACILITY A
1. CORPORATE DOCUMENTS AND AUTHORISATIONS
The Lender shall have received a certificate in respect of -
1.1 the Borrower, in the form set out in Appendix 7;
1.2 each of the Secured Asset Entities as at the Signature Date in the
form set out in Appendix 7 (and signed by the persons mentioned
therein) or such other form as may be approved by the Lender;
each of which certificates shall have been duly completed in all respects;
and shall have attached to it (duly initialled by the signatories to the
certificate) the documents referred to in the certificate, including the
requisite Memorandum and Articles of Association (together with evidence
that the same have been duly registered at the Office of the Registrar of
Companies) or other founding documents and the board and other resolutions
and/or relevant powers of attorney approving the Finance Documents to
which the Borrower or counter party (as the case may be) is a party and
all transactions contemplated thereby.
2. FINANCE DOCUMENTS
The Lender shall have received originals of each of the Finance Documents,
duly executed by each of the parties thereto.
3. OTHER DOCUMENTS
3.1 The Lender shall have received copies, certified as true copies by
an authorised officer of the Borrower, of all resolutions,
instructions, and signature authorities relating to all Accounts.
3.2 The Lender shall have received originals or certified copies of each
of the following (duly executed by the parties thereto) and be
satisfied with the terms contained in or form of:
3.2.1 A copy of the latest annual report of Emperor Mines Limited;
3.2.2 the share certificates in respect of all the shares (of any
type and nature) owned by the Borrower in DRD Porgera Limited
and in Tolukuma Gold Mines Limited as at Financial Closing for
Facility A;
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3.2.3 Transfer forms (in number specified by the Borrower) signed by
the Borrower with the name of the transferee and the
consideration and date left blank, in respect of the current
shares of each of the companies listed in clause 2.58.1.1 to
2.58.1.3, both inclusive;
3.2.4 Transfer forms (in number specified by the Borrower) signed by
the Borrower with the name of the transferee and the
consideration and date left blank, in respect of the future
shares of each of the companies listed in clause 2.58.1.1 to
2.58.1.3, both inclusive, such transfers to include those
mentioned in the Equitable Mortgage of Shares;
3.2.5 A certificate from the Borrower acknowledging receipt of the
Finance Documents, in accordance with the provisions clause
46.12.2;
3.2.6 Two original transfer forms, duly signed by the Borrower in
blank, in respect of all the shares in Emperor Mines Limited
held by the Borrower, such forms are entitled "Australian
Standard Transfer Form" and "SRA 15" respectively (and the
Lender is hereby authorised to sign and execute same if
needed);
3.2.7 A written undertaking from ANZ Nominees Limited in favour of
Investec that it will comply with the Sponsorship Agreement,
in particular clause 5 thereof; and
3.2.8 The original written instruction and direction by the Borrower
irrevocably instructing and directing Computershare Investor
Services Pty Limited not to deal or accept any instructions
from the Borrower (for the next 14 days after the Signature
Date of this CTA) in relation to its current shareholding in
Emperor Mines Limited without the prior written consent of the
Lender, save that such consent shall not be needed for any
steps taken to facilitate the transfer such shares in this
company onto the Chess Subregister pursuant to the Sponsorship
Agreement. .
4. CONSENTS AND LICENCES
The Lender shall have received copies, certified as true copies by an
authorised officer of the Borrower, of each such Authorisation necessary
and required at Financial Closing (in each case, if any):
4.1 to render any of the Finance Documents legal, valid, binding and
enforceable; and
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4.2 to enable the parties thereto lawfully to enter into, perform and
comply with their obligations under the Finance Documents.
5. SECURITY MATTERS
5.1 The Lender shall have received confirmation from its advisors that
each of the Secured Asset Entities as at the Signature Date is a
company validly and lawfully incorporated and existing in accordance
with the company laws of Australia or Papua New Guinea, as the case
may be.
5.2 The Lender shall have been afforded all the Security, which shall be
valid, binding and enforceable.
5.3 The Lender shall have received confirmation from its advisors that
all the Security Documents are duly executed and lodged for
registration or for any other purpose with the relevant authority
where required.
6. ACCOUNTS
The Lender shall have received evidence satisfactory to it that all
Accounts have been opened with the Account Banks in accordance with this
CTA.
7. FINANCIAL STATEMENTS
The Lender shall have received and be satisfied with the:-
7.1 financial statements and balance sheet of the Borrower -
7.1.1 as at 30 June 2003 and audited by its Auditors; and
7.1.2 as at 30 June 2004, unaudited;
7.2 the most recent audited financial statements and balance sheet of
each of the Secured Asset Entities.
8. STAMP DUTY
The Lender shall have received satisfactory evidence that all stamp duty
and notarial and registration fees payable in respect of the Finance
Documents and all related documents have been paid.
9. LEGAL OPINIONS
The Lender shall have received and is satisfied with legal opinion from
its advisors (including but not limited to those in South Africa, the Isle
of Man, England, Australia and Papua New Guinea, all of whom have been
briefed with the knowledge and consent of the Borrower) relating, inter
alia, to the:-
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9.1 due execution by the Borrower and the Shareholder of the Finance
Documents to which they are a party and the enforceability of their
obligations thereunder against such parties; and
9.2 due execution by the parties to the Subordination Agreement, other
than the Borrower and the Shareholder, of that agreement and the
enforceability of their obligations thereunder against such parties.
10. REPRESENTATIONS AND WARRANTIES
The warranties given by the Borrower in clause 28 above of this CTA shall
be correct in all material respects and the Lender shall have received a
certificate of an authorised officer of the Borrower to such effect.
11. NO DEFAULT
The Lender is satisfied that no Event of Default or Potential Event of
Default shall have occurred which has not been waived or remedied.
12. IRREVOCABLE PAYMENT INSTRUCTION BY EMPEROR
12.1 At the Signature Date of this CTA, the Borrower envisages that it
may not be able to obtain an Irrevocable Payment Instructions from
Emperor Mines Limited by the envisaged Financial Closing for
Facility A, notwithstanding that it shall use all reasonable
measures available to it to procure same.
12.2 Should such Irrevocable Payment Instructions not be available by the
date as envisaged in clause 12.1, then in addition to its rights
mentioned in clause 13.4 of this CTA, the Lender may provide the
Borrower with the notice mentioned in clause 13.2 of this CTA, but
in addition the Lender may by notice impose a obligation on the
Borrower to obtain such consent within 21 days of such notice, and
such obligation shall be binding on the Borrower as a term of this
CTA.
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APPENDIX 2
REPEATING WARRANTIES
1. STATUS AND DUE AUTHORISATION
The Borrower is a limited liability company duly incorporated and validly
existing under the company Laws of the Isle of Man with power to enter
into the Finance Documents to which it is a party and to exercise its
rights and perform its obligations thereunder and all corporate and other
action required to authorise its execution thereof and its performance of
its obligations thereunder has been duly taken. Neither the Borrower nor,
to the best of the Borrower's knowledge after reasonable inquiry, any of
its Shareholders or directors are in breach of its Memorandum or Articles
of Association.
2. NO DEDUCTIONS OR WITHHOLDING
The Borrower is not required by any Law to make any deduction or
withholding from any payment it may make under these Finance Documents to
which it is a party save as expressly disclosed in writing to the Lender
by the Borrower with express reference to this warranty.
3. SECURITY
Under the Law of the United Kingdom, Australia, Papua New Guinea and any
other state in which the Secured Assets are found or situated, the
security interests that it has purported to grant under the Security
Documents to which it is a party constitute valid, first-ranking security
interests in the relevant assets or revenues.
4. BINDING OBLIGATIONS
4.1 The obligations expressed to be assumed by each party in each of the
Finance Documents are legal, valid and binding obligations
enforceable against such party in accordance with the terms thereof
and the rights of the Borrower thereunder are legal, valid and
enforceable rights.
4.2 Further, the Borrower's obligations under the Finance Documents are
its unconditional and unsubordinated obligations and rank at least
parri passu with all other of its unsubordinated indebtedness.
5. VALIDITY OF EXECUTION OF FINANCE DOCUMENTS
The Borrower's execution of the Finance Documents to which it is a party
and its exercise of its rights and performance of its obligations
thereunder do not and will not contravene or constitute a default under:
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5.1 any agreement, mortgage, bond or other instrument or treaty to which
it is a party or which is binding upon it or any of its assets or
revenues;
5.2 its constitutive documents and rules and regulations and drawing the
full amount available under the Finance Documents will not breach
any limitation on borrowing imposed on it or its directors; or
5.3 any Law binding on it or any of its assets or revenues.
6. ENCUMBRANCES
The Borrower has not created or permitted to subsist any Encumbrance on
the whole or any part of its assets or revenues (including but not limited
to an Encumbrance on the Secured Assets) other than those disclosed in
writing to the Borrower prior to Financial Closing.
7. NO OTHER ACTIVITIES
After Financial Closing, the Borrower has not engaged in any new trade,
business or activity, entered into any contract, made any investment or
acquired any asset or incurred any liability whether contingent or
otherwise except as contemplated in or incidental to the Finance
Documents.
8. SHAREHOLDINGS
8.1 The Borrower is a wholly owned subsidiary of the Shareholder.
8.2 All of the issued share capital of the Borrower is fully paid.
8.3 Other than in terms of the Finance Documents, no Person has any
rights to participate in its profits or to call for the issue by it
of any of its share capital and no contract or arrangements,
conditional or unconditional, exist whereby any Person may acquire
or exercise any such right other than in accordance with the Finance
Documents.
9. OWNERSHIP OF ASSETS
9.1 The Borrower has good and marketable title to all of its
assets including the Secured Assets.
9.2 The Borrower has no ownership, legal, beneficial or otherwise
(except as regards immovable property on long lease), in any
immovable property which it has not notified to the Lender
pursuant to clause 3 of Appendix 5 below.
9.3 The Borrower owns at least the following shares in the
following companies:-
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9.3.1 45,33% of the entire issued share capital of Emperor
Mines Limited, as more fully described in clause
2.58.1.1, whether such issued shares are in the form of
ordinary or preference shares or in any other form;
9.3.2 100% of all the issued share capital of DRD (Porgera)
Limited, as more fully described in clause 2.58.1.2,
whether such issued shares are in the form of ordinary
or preference shares or in any other form;
9.3.3 100% of the share capital of Tolukuma Gold Mines
Limited, as more fully described in clause 2.58.1.3
whether such issued shares are in the form of ordinary
or preference shares or in any other form.
10. NO SURETYSHIPS
Save as provided in the Finance Documents, the Borrower is not liable
contractually, whether contingently or otherwise and whether as surety,
co-principal debtor, guarantor or indemnitor, for the liabilities of any
third party.
11. NO ROYALTIES
The Borrower is not -
11.1 under any obligation to pay any royalties, license fees, any
profit-sharing or royalty agreement or other similar arrangement
whereby its income or profits are, or might be, shared with any
other Person or
11.2 party to any management contract or similar arrangement whereby its
business or operations are managed by any other Person.
12. AUTHORISATIONS
12.1 All Authorisations required to have been done, fulfilled, obtained
and performed by the date this warranty is given by Law, in order:
12.1.1 to enable the Borrower lawfully to enter into and perform
with the obligations expressed to be assumed by it in the
Finance Documents;
12.1.2 to ensure that the obligations expressed to be assumed by the
Borrower in the Finance Documents are legal, valid, binding
and enforceable against it in accordance with the terms
thereof; and
12.1.3 to enable the Borrower lawfully to exercise all its rights
under the Finance Documents,
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have been done, fulfilled, obtained and performed and are or, will
be done, fulfilled, obtained and performed by the relevant time and
no steps have been taken to revoke or cancel or limit the scope of
any such Authorisation or which would have the effect of revoking or
cancelling or limiting the scope of any such Authorisation. The
Borrower is in compliance with all conditions of such
Authorisations.
12.2 The Borrower is not in breach of any of the provisions of any Law
relating to the conduct of its business and activities.
13. NO DEFAULTS
13.1 No event has occurred which constitutes, or which (with the giving
of notice and/or the lapse of time and/or the fulfilment of any
applicable requirement) would constitute, a contravention, or breach
of, or event of default under, any Finance Document or any other
agreement to which it is a party or which is binding on it or any of
its assets or revenues or its constitutive documents, rules and
regulations.
13.2 No Event of Default or Potential Event of Default has occurred by
virtue of it performing its obligations under the Finance Documents.
14. FULL COMPLIANCE
The Borrower is in compliance in all respects with all the provisions of
the Finance Documents.
15. NO PROCEEDINGS
No action, litigation or administrative proceeding ("proceedings"), of or
before any court or tribunal by or against the Borrower has been started
or threatened and it has notified the Lender of all disputes in which it
is involved.
16. ENVIRONMENTAL MATTERS
16.1 The Borrower and each Secured Asset Entity is in full compliance
with all Environmental Laws and all Environmental Approvals are in
full force and effect. There are no acts, omissions, events, state
of facts or circumstances of which Borrower or each Secured Asset is
aware, after reasonable inquiry, which may be expected to prevent
any of them being in full compliance with any Environmental Laws.
16.2 Neither the Borrower nor any of the Secured Asset Entities have any
notice of any complaints, demands, civil claims or enforcement
proceedings or of any action required by any regulatory authority
and, there are no investigations pending or threatened in relation
to the failure by the Borrower or any of the Secured Assets to
obtain any Environmental Approval or to comply with any
Environmental Laws.
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17. TAX
17.1 All tax returns and reports required by Law to be filed by the
Borrower have been duly filed and all tax assessments, fees, levies,
duties and other governmental or official charges upon it, or its
properties or its income or assets, which are due and payable, have
been paid without penalty or interest.
17.2 The Borrower has made and there are in place all necessary
arrangements which are permitted by Law and in accordance with GAAP,
for it to obtain, as early as is practicable, the benefit of all
available tax reliefs and/or repayments
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APPENDIX 3
INFORMATION WARRANTIES
1. ANNUAL FINANCIAL STATEMENTS
The Borrower's annual financial statements delivered to the Lender
pursuant to clause 1 of Appendix 4 below fairly present, in all material
respects, its financial position and the result of its operations at the
end of the applicable Financial Year.
2. BALANCE SHEETS
2.1 The balance sheets of the Borrower and of the Secured Assets
referred to in paragraph 7 of Appendix 1 hereto was prepared in
accordance with GAAP and (in conjunction with the notes thereto)
fairly presents its financial position and the result of its
operations at the end of the applicable Financial Year. The Borrower
has no significant liabilities (contingent or otherwise) or any
losses which are not disclosed by, or provided for in, such balance
sheet.
2.2 Except as has been disclosed by the Borrower, prior to Financial
Closing, to and accepted by the Lender as being immaterial, there
has been no adverse change in the business or financial condition of
the Borrower and the Secured Assets since the date as of which such
balance sheet was prepared, and since then the Borrower has not
incurred any obligations other than in terms of the Finance
Documents, which, if such had occurred prior to the date as of which
such balance sheet was prepared, could adversely affect or have
affected the decision of a Person considering whether to enter into,
or who did enter into, any of the Finance Documents.
3. BUDGETS
Budgets and draft budgets prepared by the Borrower from time to time will
reflect all costs which the Borrower, after careful consideration and
enquiry of information available to it at the time, reasonably expects
itself, or the entity which is the subject of the budget, to incur in the
period to which that budget relates.
4. OTHER PROVISIONS RELATING TO FINANCIAL STATEMENTS
4.1 The Borrower's annual financial statements delivered to the Lender
pursuant to clause 1.1 of Appendix 4 will include an unqualified
opinion of its auditors in accordance with South African Auditing
Standard number 700 (as may be amended or replaced from time to
time).
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4.2 The Borrower's financial statements delivered to the Lender pursuant
to clause 1.2 of Appendix 4 below fairly present, in all material
respects, its financial position and the result of its operations as
to the date to which they were drawn up.
4.3 After reasonable enquiry, the financial statements delivered to the
Lender pursuant to clause 2 of Appendix 4 below fairly present, in
all material respects, the financial position and the result of the
operations of the Secured Asset to which those financial statements
relate, as to the date to which they were drawn up.
5. DISCLOSURE OF INFORMATION
After reasonable enquiry all information supplied by or on behalf of the
Borrower to the Lender was true in all material respects as at the date
that it was supplied and the Borrower has not failed to disclose to the
Lender any material information known to it relating to the Borrower and
the Secured Assets.
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APPENDIX 4
INFORMATION UNDERTAKINGS
1. BORROWER'S FINANCIAL STATEMENTS
The Borrower shall, as soon as the same become available, but in any event
-
1.1 within 90 business days after the end of each of its Financial
Years, deliver to the Lender its financial statements for such
Financial Year;
1.2 within 45 business days after the end of each quarter of each of its
Financial Years, deliver to the Lender its un-audited financial
statements for such period including cumulative year to date
amounts, which financial statements shall:-
1.2.1 show its income statement, balance sheet and cashflow
statements for such period, and
1.2.2 accurately reflect the financial and operating results of the
Borrower's Stake in each of the Secured Assets.
2. FINANCIAL STATEMENTS OF THE SECURED ASSETS
The Borrower shall deliver to the Lender the financial statements of each
Secured Asset Entity for each Financial Year, as soon as the same become
available, but in any event the Borrower shall use it best endeavours to
procure that such financial statements are delivered to the Lender within
90 business days after the end of each of the Financial Years of each
Secured Asset Entity.
3. GENERAL REPORTING
3.1 The Borrower shall provide the Lender and/or the Lender's Advisers
with such financial and other information as the Lender or the
Lender's Advisers may from time to time require, such information to
include but not to be limited information regarding the financial
condition, business and operations of the Borrower and the Secured
Assets Entities as the Lender may reasonably request.
3.2 Without limiting clause 3.1 in any way, if the Lender believes that
there is or may be an Event of Default or Potential Event of
Default, the Lender may appoint a person to investigate this. The
Borrower agrees to co-operate with the person and to comply with
every reasonable request they make. If there was an Event of Default
or Potential Event of Default, the Borrower agrees to the Lender all
costs in connection with the investigation.
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3.3 The Borrower grants to the Lender and any of its nominated
representatives the right to review all books and records (including
computer records) held by third parties and which relate to the
Borrower, the Secured Asset Entities and to any Finance Document and
to which books and records the Borrower is entitled to have access
to. The Borrower instructs and authorises such third parties to
provide the Lender and any of its nominated representatives
reasonable access to review such books and records held by the third
party and any such information as the Lender may, at any time and
from time to time, request. The Borrower waives any right of
confidentiality which may exist to the extent necessary to allow
disclosure of such books, records and information to the Lender and
its nominated representatives, provided that the nominated
representatives enter into a confidentiality undertaking in favour
of the Borrower in accordance with the terms set out clause 46.14
above.
4. BANK STATEMENTS RELATING TO ACCOUNTS
The Borrower shall provide the Lender, on a quarterly basis, with an
extract of the cash books for all Accounts and the Borrower shall confirm
that such cash books are reconciled to the Account Banks' statements.
5. SHAREHOLDINGS
The Borrower shall notify the Lender promptly upon becoming aware of any
introduction of proposed new Shareholders or change or proposed change in
the percentages of the shareholdings in the Borrower as set out in clause
8 of Appendix 2 above or as most recently notified to the Lender in
accordance with this clause 5 (as appropriate). For the avoidance of
doubt, it is recorded that such notice shall not constitute consent by the
Borrower to such change.
6. PROPOSED AMENDMENTS AND LIKE MATTERS
The Borrower shall promptly deliver to the Lender copies of all such
proposed amendments, variations, modifications or waivers and proposals to
cancel, suspend, terminate or revoke any of the terms or conditions of any
of the Finance Documents of which it is aware where the Lender is not a
party to such amendments, variations, modifications, waivers,
cancellations, suspensions, terminations or revocation.
7. NOTIFICATION OF INTENDED CLAIMS BY THE BORROWER
7.1 The Borrower shall promptly notify the Lender if it believes it has
a claim against any party to a Finance Document and shall provide
the Lender with such further details as the Lender may require.
7.2 In addition, the Borrower shall notify the Lender if the Borrower
wishes to -
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7.2.1 commence any litigation or dispute resolution procedure
against any other Person and shall state its estimate costs it
will incur in so doing;
7.2.2 settle any litigation or (any dispute referred to any other
dispute resolution procedure) commenced by any other Person
and shall state the amount it wishes to pay in settlement;
7.2.3 settle any claim for penalties or liquidated damages or other
damages or compensation;
7.2.4 make any claim of more than USD 500 000,00 under any insurance
policy or the like taken out by the Borrower in respect of the
Secured Asset Entities; and/or
7.2.5 settle any insurance claim where the amount originally claimed
is more than USD 500 000,00.
8. NOTIFICATION OF CERTAIN IMPORTANT EVENTS
8.1 The Borrower shall, within 10 business days after the occurrence
thereof deliver a report to the Lender detailing any occurrence of -
8.1.1 any fact or information which the Borrower considers in good
faith may adversely affect its ability to perform any of its
obligations under the Finance Documents;
8.1.2 any action, litigation or administrative proceeding of or
before any court or tribunal involving a claim of more than
USD 500,000,00 instituted against the Borrower or its assets
or revenues;
8.1.3 any breach of, or disputes under, any of the terms of any
documents relating to the acquisition of any Target or
relating to the Target itself;
8.1.4 any Event of Default or Potential Event of Default.
8.2 Upon receipt of a request to that effect from the Lender, confirm
that, save as previously notified or as notified in such report, so
far as it is aware after reasonable inquiry, no Event of Default or
Potential Event of Default has occurred.
9. NOTIFICATION OF ADDITIONAL ASSETS
The Borrower shall notify the Lender promptly of:-
9.1 its acquisition of any additional material assets; and
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9.2 any material agreements to be entered into by it.
10. PROPOSAL FOR REMEDYING POTENTIAL EVENT OF DEFAULT
If the Lender is of the opinion that a Potential Event of Default has in
fact occurred or will or could probably occur, the Lender shall notify the
Borrower accordingly and the Borrower shall, if it does not intend to or
cannot remedy the Potential Event of Default within 3 business days,
provide the Lender, within the 3 business days, with a written proposal as
to whether the event or events constitute a Potential Event of Default or
not and/or what steps it proposes to take or has taken to prevent or
remedy it or prevent such Potential Event of Default becoming an Event of
Default.
11. INSURANCES
The Borrower shall at least annually and on the occurrence of any
significant amendment to the terms thereof, provide the Lender with
summary details of the insurance covers available to the Borrower in
respect of its Stake in the Secured Assets.
12. BUDGETS
The Borrower shall deliver to the Lender, not later than 20 business days
before the beginning of each of its financial years, a budget in respect
of the Borrower and each of the Secured Asset, detailing as a minimum, the
detailed cash flow projections and assumptions used for the forthcoming
period of three years in respect of the Borrower's Stake in each of the
Secured Asset Entities.
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APPENDIX 5
POSITIVE UNDERTAKINGS
1. HEDGING
The Borrower shall implement and comply with such Hedging Arrangements as
the Lender may reasonably require from time to time.
2. FUNDING OF THE DEBT SERVICE ACCOUNT
The Borrower shall ensure and procure that from Financing Closing until
the Facilities Discharge Date the Debt Service Account is funded to the
amount of the Debt Service Account Required Balance.
3. ADDITIONAL SECURITY
The Borrower shall, at its cost:
3.1 notify the Lender in advance that ownership of any assets (including
but not limited to any new Stakes in Targets) will pass to the
Borrower, which assets could be used by the Borrower as security for
the Lender's obligations under the Finance Documents;
3.2 ensure that such assets are made available to the Lender as security
before anyone else, provided that the Lender shall inform the
Borrower within a reasonable time of its decision as to whether it
wishes to use such assets as security;
3.3 do all such things and sign all such documents as the Lender may
require in order for the Lender to be granted an Encumbrance, of a
type determined by the Lender, over the Borrower's right, title and
interest in and to any new Stakes in Targets;
3.4 if so requested by the Lender obtain Irrevocable Payment
Instructions from Targets in which it has acquired a new Stake or
from any Secured Asset Entities;
3.5 if so requested by the Lender and as a result of any change in Law
or if a new asset has been acquired over which the Lender wishes to
take security, at the Borrower's cost and in form and substance
satisfactory to the Lender, procure for the Lender a legal opinion
in respect of the validity of any such Encumbrance; and
3.6 subject to the Law, at the request of the Lender, do all such things
and take all such steps as may be necessary for maintaining in full
force and effect the Security.
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4. COMPLIANCE WITH THE LAW
The Borrower shall comply with the Law in the performance of its
obligations under Finance Documents to which it is a party.
The Borrower shall pay all Taxes due from it or against its assets and the
Borrower shall timeously file all tax returns required to be filed by it.
5. MAINTENANCE OF INCORPOREAL, INTELLECTUAL PROPERTY AND OTHER RIGHTS
The Borrower shall comply with the terms of and do all that is necessary
to maintain in full force and effect all rights necessary for the conduct
of its business at the time that such rights are required in respect of
the conduct of its business including, without limitation, any
intellectual property rights and the Borrower shall ensure that the
trading methods and style used by it including any patents, designs, trade
marks and the like applied in connection with its business or services do
not constitute an infringement of the rights of any other Person.
6. INSURANCES
The Borrower shall ensure that adequate insurance are provided (either by
itself or by the entities managing the Secured Assets) in respect of the
Borrower's interests in the Secured Assets.
7. ACCOUNTING
The Borrower shall:
7.1 maintain accounting, management information, financial modelling and
cost control systems in accordance with good industry practice; and
7.2 procure that such systems and its statutory books, books of account
and other records together are adequate to reflect truly and fairly
its financial condition, the results of its operations and to
provide the reports required to be delivered pursuant to this CTA;
and
7.3 should the Lender have any queries relating to the Borrower's
financial statements or accounting records or any certificate given
by the Auditors in relation thereto, at the request of the Lender,
procure that the Auditors (whose fees and expenses shall be for the
Borrower's account) respond directly to those queries to the Lender
(or any representative(s) nominated by it).
8. PROTECTION OF RIGHTS IN FINANCE DOCUMENTS
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The Borrower shall promptly take all such appropriate action to protect,
preserve and maintain its rights, title and interest in, and to the
Finance Documents to which it is a party.
9. ACCESS
The Borrower shall, upon the request of the Lender with prior notice,
permit representatives of the Lender, including, without limitation, the
Lender's Advisers, during normal office hours, to
9.1 visit and inspect any of the premises where the Borrower's business
is conducted; and
9.2 have access to (and copies of) the Borrower's books of accounts and
records.
10. CO-OPERATION WITH LENDER'S ADVISERS
The Borrower shall take all reasonable steps to co-operate with the
Lender's Advisers and to respond to the Lender's Advisers reasonable
requests.
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APPENDIX 6
NEGATIVE UNDERTAKINGS
1. ISSUES OF SHARES
The Borrower shall not:
1.1 issue any further Shares (other than as permitted by the Finance
Documents (including as contemplated by this clause 1.1));
1.2 buy-back, record the transfer, purchase, cancel or redeem any
Shares;
1.3 alter any rights in existence at the date hereof attaching to the
Shares;
1.4 alter nor agree to alter any terms of any loans by the Shareholder
or any of its affiliated companies, including the subordination
thereof in favour of the Lender.
An affiliated company in relation to the Shareholder means any:-
a) subsidiary or holding company of that Shareholder; or
b) a subsidiary of that Shareholder's holding company;
c) any company that, indirectly or directly Controls that Shareholder,
or any company that directly or indirectly is Controlled by that
Shareholder.
"Control" in relation to a company means:
i) having the beneficial ownership of more than 50% of the voting
shares of that company; or
ii) the right, directly or indirectly, to exercise more than half the
voting rights in respect of the issued shares of that company; or
iii) the power to appoint, and remove, the majority of the board of
directors of that company; or
iv) the power, through appointees to the board of directors of that
company, to exercise more than 50% of the votes exercisable by
directors of that company.
and "Controlled" has a corresponding meaning;
2. DISPOSAL
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The Borrower shall not sell, lease, licence, transfer, cede, lend or
otherwise dispose of, or cease to exercise direct control of, or create
any Encumbrance in respect of, by one or more transactions or series of
transactions (whether related or not), the whole or any part of the
Secured Assets.
3. INDEBTEDNESS
The Borrower shall not incur, assume, or permit to exist any Indebtedness
except for Indebtedness which is contractually subordinated to the Lender.
4. MAINTENANCE OF STATUS
The Borrower shall not undertake or permit any merger, consolidation or
change the jurisdiction of its incorporation.
5. NO LITIGATION
The Lender shall have received written confirmation from the Borrower that
no action, litigation or administrative proceedings are pending or
threatened against the Borrower, which is reasonably likely to have a
Material Adverse Effect on the Borrower.
6. BUSINESS
The Borrower shall not cease, or threaten to cease, to carry on all or any
substantial part of its business as at Financial Closing.
7. LOANS, GUARANTEES AND SURETYSHIPS
The Borrower shall not make any loan or give any suretyship, guarantee,
indemnity or other assurance against financial loss in respect of the
indebtedness of another Person or provide any other form of credit or make
any deposit with any Person (each such transaction a "credit") except for:
7.1 credit required to be provided under or permitted by the Finance
Documents to which it is a party;
7.2 credit provided, in the ordinary course of carrying on its business
and on normal trade terms, to suppliers and customers; or
7.3 deposits made in the Accounts in accordance with the Finance
Documents.
8. IMMUNITY
The Borrower shall not in any proceedings in relation to any of the
Finance Documents to which it is a party, claim for itself or any of its
assets or revenues, immunity from suit, execution, attachment or other
legal process.
9. SURRENDER OF TAX RELIEF
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The Borrower shall not agree to surrender or dispose of, nor surrender nor
dispose of, to any third party, any credit, losses, allowances,
concessions, discharges, or other relief or right of repayment available
to it in respect of Taxes.
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APPENDIX 7
FORMALITIES CERTIFICATE
To: [The Lender]
We [ ______ ] and [ ______ ] being respectively a director and secretary of
[_______________________] ("the Company") being duly authorised by the Company
to deliver this certificate hereby make the certifications contained in this
Appendix 7 to the Common Terms Agreement dated [________].
Terms not otherwise defined herein shall have the meanings ascribed to them in
that Common Terms Agreement.
1. COMPANY DOCUMENTS
Attached hereto marked "A", "B", "C" and "D" respectively, are true,
complete and current copies of:
1.1 the Certificate of Incorporation of the Company;
1.2 all Certificates of Incorporation on Change of Name of the Company
(if any); and
1.3 the Memorandum and Articles of Association of the Company.
2. BOARD RESOLUTIONS
Attached hereto marked "E" is a true copy of the minutes of a Meeting of
the Board of Directors of the Company duly convened and held, during which
a quorum was present throughout, recording resolutions passed at such
meeting (which resolutions are in full force and effect and have not been
rescinded or varied and which resolutions are in a form previously
approved by your legal advisers) and which approve the execution and
performance by the Company of the Finance Documents to which it is a party
and all transactions contemplated thereby.
3. AUTHORISED SIGNATORIES
The following signatures are the specimen signatures of the persons
authorised by resolution of the board of directors of the Company to
execute the Finance Documents to which it is a party and all other
documents and notices required in connection therewith:
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NAME POSITION SIGNATURE
4. NO BREACH
We have examined the terms of all loan agreements and similar borrowing
instruments together with our memorandum and articles of association and
all other relevant instruments and agreements to which the Company is a
party ("Relevant Documents") and we can confirm to you that the drawing by
the Company of all sums capable of being drawn under this Common Terms
Agreement and the Facility Agreements ("the Maximum Drawings") will not
infringe the terms of the relevant documents and that the borrowing of the
Maximum Drawings when aggregated with any other Financial Indebtedness of
the Company.
4.1 Will be within the corporate powers of the Company; and
4.2 Does not or will not cause any limit or restriction on any of the
powers of the Company to be exceeded (whether contained in any
relevant documents or otherwise) or the right or ability of the
directors of the Company to exercise such powers
5. NO EVENTS OF DEFAULT
We have carefully studied the provisions of the Finance Documents
(including section 7 of the Common Terms Agreement) and, having made all
due enquiries, can confirm to you that as at the date of this Certificate
no Event of Default or Potential Event of Default has occurred or is
continuing and the Company is in full compliance with its obligations
under each of the Finance Documents to which it is a party.
Signed ______________________
DIRECTOR
Date:
Signed ______________________
SECRETARY
Date:
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