4 - Gold Fields_Addendum to RMB RCF Agreement_Execution II(14662205.7) 3. AMENDMENTS TO THE REVOLVING CREDIT FACILITY AGREEMENT With effect from the Signature Date, the Parties agree that the Revolving Credit Facility Agreement be amended in the...
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Execution version ADDENDUM TO THE ZAR REVOLVING CREDIT FACILITY AGREEMENT between GFI JOINT VENTURE HOLDINGS PROPRIETARY LIMITED and GOLD FIELDS OPERATIONS LIMITED (as Original Borrowers) GOLD FIELDS LIMITED (as Parent) THE SUBSIDIARIES OF THE PARENT LISTED IN SCHEDULE 1 (as Original Guarantors) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Mandated Lead Arranger) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Original Lender) and FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Facility Agent) Exhibit 4.9 - i - CONTENTS 1. DEFINITIONS AND INTERPRETATION ....................................................................................................................... 3 2. INTRODUCTION ....................................................................................................................................................... 3 3. AMENDMENTS TO THE REVOLVING CREDIT FACILITY AGREEMENT ...................................................................... 4 4. CONTINUITY AND FURTHER ASSURANCE ............................................................................................................... 6 5. ADDITIONAL REPRESENTATIONS AND WARRANTIES ............................................................................................. 6 6. OBLIGORS CONFIRMATIONS ................................................................................................................................. 6 7. GENERAL ................................................................................................................................................................. 7 SCHEDULE 1 THE ORIGINAL PARTIES ............................................................................................................................... 19 SCHEDULE 2 CONFORMED COPY OF REVOLVING CREDIT FACILITY AGREEMENT....................................................... 20 - 2 - Gold Fields_Addendum to RMB RCF Agreement_Execution II(14662205.7) PARTIES: This Agreement is made between: (1) GOLD FIELDS LIMITED, a public company incorporated under the laws of South Africa with registration number 1968/004880/06 (the Parent); (2) GFI JOINT VENTURE HOLDINGS PROPRIETARY LIMITED, a private company incorporated under the laws of South Africa with registration number 1998/023354/07, as borrower (GFI Joint Venture); (3) GOLD FIELDS OPERATIONS LIMITED, a public company incorporated under the laws of South Africa with registration number 1959/003209/06, as borrower (Gold Fields Operations, together with GFI Joint Venture, the Original Borrowers); (4) THE SUBSIDIARIES of the Parent listed in Schedule 1 (The Original Parties) as guarantors (together with the Parent, the Original Guarantors); (5) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as mandated lead arranger (the Mandated Lead Arranger); (6) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as lender (the Original Lender); and (7) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as facility agent (the Facility Agent). WHEREAS The Parties hereto have agreed to amend the Revolving Credit Facility Agreement (as defined below) on the terms and subject to the conditions set out in this Addendum (as defined below). - 3 - Gold Fields_Addendum to RMB RCF Agreement_Execution II(14662205.7) IT IS AGREED AS FOLLOWS: 1. DEFINITIONS AND INTERPRETATION Definitions In this Addendum (as defined below) words and expressions defined in the Revolving Credit Facility Agreement (as defined below), shall have the same meanings unless otherwise defined in this Addendum (as defined below). In addition, unless the context dictates otherwise, the words and expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings: Addendum means this addendum to the Revolving Credit Facility Agreement; Parties means the parties to this Addendum, and Party means any one of them as the context may require; Revolving Credit Facility Agreement means the written agreement entitled “ZAR Revolving Credit Facility Agreement” entered into between the Parties on or about 18 April 2023; Signature Date means the date of the last signature of this Addendum by a Party, the other Parties already having signed; and Windfall means Gold Fields Windfall Holdings Inc. (also referred to as Gestion Gold Fields Windfall Inc.), a wholly owned subsidiary of the Parent, incorporated in accordance with the laws of Canada under Ontario corporation number 1000516306. Revolving Credit Facility Agreement The provisions of clause 1.2 (Construction), clause 1.4 (Third party rights), clause 30 (Notices), clause 38 (Counterparts) and clauses 40 (Sole Agreement) to 45 (Jurisdiction) of the Revolving Credit Facility Agreement apply to this Addendum as though they were set out in full in this Addendum, except that references to the Revolving Credit Facility Agreement are to be construed as references to this Addendum. This Addendum and the rights and obligations of the Parties shall in all respects be subject to the terms and conditions of the Revolving Credit Facility Agreement and in the event of any conflict between the provisions of this Addendum (including, without limitation, terms defined herein) and the provisions of the Revolving Credit Facility Agreement, the provisions of this Addendum shall prevail. 2. INTRODUCTION The Parties wish to amend the Revolving Credit Facility Agreement to permit Financial Indebtedness incurred by Windfall by amending the definition of “Permitted Financial Indebtedness” on the terms and subject to the conditions set out in this Addendum.
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25th October /s/ Xxxxxx Xxxxxx 25th October /s/ Xxxxxx Xxxxxx 25th October /s/ Xxxxxx Xxxxxx 25th October /s/ Xxxxxx Xxxxxx
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25th October /s/ Xxxxxx Xxxxxx 25th October /s/ Xxxxxx Xxxxxx 25th October /s/ Xxxxxx Xxxxxx 25th October /s/ Xxxxx Xxxxxx Who warrants
![slide5](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49005.jpg)
- 16 - Gold Fields_Addendum to RMB RCF Agreement_Execution II(14662205.7) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Mandated Lead Arranger) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto ____________________________ Signatory: Capacity: Who warrants his/her authority hereto OctoberSandton 24th Authorised signatory Xxxxxx Xxxxxxx Authorised signatory Xxxx Arran Xxxxxxxx /s/ Xxxx Arran Xxxxxxxx /s/ Xxxxxx Xxxxxxx - 17 - Gold Fields_Addendum to RMB RCF Agreement_Execution II(14662205.7) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Original Lender) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto ____________________________ Signatory: Capacity: Who warrants his/her authority hereto Sandton October24th Xxxx Arran Xxxxxxxx Authorised signatory Authorised signatory Xxxxxx Xxxxxxx /s/ Xxxx Arran Xxxxxxxx /s/ Xxxxxx Xxxxxxx - 18 - Gold Fields_Addendum to RMB RCF Agreement_Execution II(14662205.7) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Facility Agent) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto ____________________________ Signatory: Capacity: Who warrants his/her authority hereto Signed by:Xxxx Arran Xxxxxxxx Signed at:2023-10-23 20:17:34 +02:00 Reason:I approve this document Signed by:Xxxxxx Xxxxxxx Signed at:2023-10-24 09:06:50 +02:00 Reason:I approve this document Sandton Authorised signatory Authorised signatory /s/ Xxxx Arran Xxxxxxxx /s/ Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxx Arran Xxxxxxxx - 19 - Gold Fields_Addendum to RMB RCF Agreement_Execution II(14662205.7) SCHEDULE 1 THE ORIGINAL PARTIES THE GUARANTORS Name of Original Guarantors Registration number Gold Fields Limited, incorporated in South Africa 1968/004880/06 Gold Fields Operations Limited, incorporated in South Africa 1959/003209/06 GFI Joint Venture Holdings Proprietary Limited, incorporated in South Africa 1998/023354/07 Gold Fields Holdings Company Limited, continued under the laws of the British Virgin Islands 651406 Gold Fields Orogen Holding (BVI) Limited, incorporated in the British Virgin Islands 184982
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- 20 - Gold Fields_Addendum to RMB RCF Agreement_Execution II(14662205.7) SCHEDULE 2 CONFORMED COPY OF REVOLVING CREDIT FACILITY AGREEMENT Execution Version ZAR REVOLVING CREDIT FACILITY AGREEMENT GFI JOINT VENTURE HOLDINGS PROPRIETARY LIMITED and GOLD FIELDS OPERATIONS LIMITED (as Original Borrowers) GOLD FIELDS LIMITED (as Parent) THE SUBSIDIARIES OF THE PARENT LISTED IN SCHEDULE 1 (as Original Guarantors) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Mandated Lead Arranger) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Original Lender) and FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Facility Agent) - i – conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) CONTENTS 1. DEFINITIONS AND INTERPRETATION ....................................................................................................................... 2 2. THE FACILITY .......................................................................................................................................................... 27 3. PURPOSE ................................................................................................................................................................ 29 4. CONDITIONS OF UTILISATION .............................................................................................................................. 29 5. UTILISATION ........................................................................................................................................................... 30 6. REPAYMENT ........................................................................................................................................................... 31 7. PREPAYMENT AND CANCELLATION .................................................................................................................... 32 8. INTEREST................................................................................................................................................................. 36 9. INTEREST PERIODS ................................................................................................................................................. 37 10. CHANGES TO THE CALCULATION OF INTEREST ................................................................................................... 37 11. FEES........................................................................................................................................................................ 38 12. TAX GROSS-UP AND INDEMNITIES ....................................................................................................................... 39 13. INCREASED COSTS ................................................................................................................................................ 45 14. OTHER INDEMNITIES .............................................................................................................................................. 47 15. MITIGATION BY THE LENDERS ............................................................................................................................... 49 16. COSTS AND EXPENSES .......................................................................................................................................... 49 17. GUARANTEE AND INDEMNITY .............................................................................................................................. 50 18. REPRESENTATIONS ................................................................................................................................................ 53 19. INFORMATION UNDERTAKINGS ........................................................................................................................... 58 20. FINANCIAL COVENANTS ...................................................................................................................................... 62 21. GENERAL UNDERTAKINGS .................................................................................................................................... 64 22. EVENTS OF DEFAULT .............................................................................................................................................. 67 23. CHANGES TO THE LENDERS .................................................................................................................................. 72 24. CHANGES TO THE OBLIGORS ............................................................................................................................... 76 25. ROLE OF THE FACILITY AGENT, THE MANDATED LEAD ARRANGER AND THE REFERENCE BANKS .................... 77 26. CONDUCT OF BUSINESS BY THE FINANCE PARTIES ............................................................................................. 88 27. SHARING AMONG THE FINANCE PARTIES ........................................................................................................... 88 28. PAYMENT MECHANICS......................................................................................................................................... 89 29. SET-OFF .................................................................................................................................................................. 93 30. NOTICES ................................................................................................................................................................ 93 31. CALCULATIONS AND CERTIFICATES .................................................................................................................... 97 32. PARTIAL INVALIDITY .............................................................................................................................................. 98 33. REMEDIES AND WAIVERS ...................................................................................................................................... 98 34. AMENDMENTS AND WAIVERS .............................................................................................................................. 98 35. CONFIDENTIAL INFORMATION ........................................................................................................................... 102 36. CONFIDENTIALITY OF FUNDING RATES AND REFERENCE BANK QUOTATIONS ............................................... 106 37. RENUNCIATION OF BENEFITS.............................................................................................................................. 107 38. COUNTERPARTS ................................................................................................................................................... 107 39. WAIVER OF IMMUNITY ........................................................................................................................................ 108 40. SOLE AGREEMENT ............................................................................................................................................... 108 41. NO IMPLIED TERMS.............................................................................................................................................. 108 42. EXTENSIONS AND XXXXXXX ............................................................................................................................... 108 43. INDEPENDENT ADVICE........................................................................................................................................ 108 44. GOVERNING LAW ............................................................................................................................................... 108 45. JURISDICTION ..................................................................................................................................................... 108 SCHEDULE 1 THE ORIGINAL PARTIES ............................................................................................................................. 121 SCHEDULE 2: PART I: CONDITIONS PRECEDENT TO INITIAL UTILISATION .................................................................... 122 PART II: CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL BORROWER ............................ 125 PART III: CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL GUARANTOR ......................... 127 SCHEDULE 3 UTILISATION REQUEST ............................................................................................................................... 129 SCHEDULE 4 FORM OF TRANSFER CERTIFICATE ............................................................................................................ 130 SCHEDULE 5 FORM OF ACCESSION LETTER .................................................................................................................. 132 SCHEDULE 6 FORM OF RESIGNATION LETTER ................................................................................................................ 133 SCHEDULE 7 FORM OF COMPLIANCE CERTIFICATE ..................................................................................................... 134 SCHEDULE 8 TIMETABLE .................................................................................................................................................. 135 SCHEDULE 9 LMA FORM OF CONFIDENTIALITY UNDERTAKING ................................................................................... 136 SCHEDULE 10 FORM OF INCREASE CONFIRMATION ................................................................................................... 141 - 1 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) PARTIES: This Agreement is made between: (1) GOLD FIELDS LIMITED, a public company incorporated under the laws of South Africa with registration number 1968/004880/06 (the Parent); (2) GFI JOINT VENTURE HOLDINGS PROPRIETARY LIMITED, a private company incorporated under the laws of South Africa with registration number 1998/023354/07, as borrower (GFI Joint Venture); (3) GOLD FIELDS OPERATIONS LIMITED, a public company incorporated under the laws of South Africa with registration number 1959/003209/06, as borrower (Gold Fields Operations, together with GFI Joint Venture, the Original Borrowers); (4) THE SUBSIDIARIES of the Parent listed in Schedule 1 (The Original Parties) as guarantors (together with the Parent, the Original Guarantors); (5) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as mandated lead arranger (the Mandated Lead Arranger); (6) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as lender (the Original Lender); and (7) FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION), a registered bank and public company incorporated under the laws of South Africa with registration number 1929/001225/06, as facility agent (the Facility Agent).
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- 6 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default; Defaulting Lender means any Lender: 1.1.32.1 which has failed to make its participation in a Loan available or has notified the Facility Agent that it will not make its participation in a Loan available by the Utilisation Date of that Loan in accordance with Clause 5.4.1 (Lenders' participation); 1.1.32.2 which has otherwise rescinded or repudiated a Finance Document; or 1.1.32.3 with respect to which an Insolvency Event has occurred and is continuing, unless, in the case of Clause 1.1.32.1 above: 1.1.32.4 its failure to pay is caused by: 1.1.32.4.1 administrative or technical error; or 1.1.32.4.2 a Disruption Event; and 1.1.32.4.3 payment is made within 5 (five) Business Days of its due date; or 1.1.32.5 the Lender is disputing in good faith whether it is contractually obliged to make the payment in question; Disruption Event means either or both of: 1.1.33.1 a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or 1.1.33.2 the occurrence of any other event which results in a disruption (of a technical or system-related nature) to the treasury or payments operations of a Party preventing that, or any other Party: 1.1.33.2.1 from performing its payment obligations under the Finance Documents; or 1.1.33.2.2 from communicating with other Parties in accordance with the terms of the Finance Documents, and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted; Eligible Institution means any Lender or other bank, financial institution, trust, fund or other entity (other than a member of the Group) selected by the Parent; Encumbrance means any mortgage, pledge, lien, assignment or cession conferring security, hypothecation, a security interest, preferential right or trust arrangement or other encumbrance of the like securing any obligation of any person; - 7 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Environment means humans, animals, plants and all other living organisms including the ecological systems of which they form part and the following media: 1.1.36.1 air (including, without limitation, air within natural or man-made structures, whether above or below ground); 1.1.36.2 water (including, without limitation, territorial, coastal and inland waters, water under or within land and water in drains and sewers); and 1.1.36.3 land (including, without limitation, land under water); Environmental Claim means any claim, proceeding or investigation by any person in respect of any Environmental Law; Environmental Law means any law applicable to the business conducted by a Material Group Company at the relevant time in any jurisdiction in which that Material Group Company conducts business which relates to the pollution, degradation or protection of the Environment or harm to or the protection of human health or the health of animals or plants; Environmental Permits means any permit, licence, consent, approval and other authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of any Material Group Company conducted on or from the properties owned or used by that Material Group Company; Event of Default means any event or circumstance specified as such in Clause 22 (Events of Default); Existing Orogen Notes means: 1.1.41.1 the US$500,000,000 5.125% guaranteed notes due 2024; and 1.1.41.2 the US$500,000,000 6.125% guaranteed notes due 2029, in each case issued by Gold Fields Orogen Holding (BVI) Limited on 9 May 2019; Existing Lender has the meaning given to it in Clause 23.1 (Cessions and Delegations by the Lenders); Existing RCF Agreement means the written agreement entitled “ZAR Revolving Credit Facility Agreement” entered into between, inter alios, the Original Borrowers, the Parent, the Original Guarantors and FirstRand Bank Limited (acting through its Rand Merchant Bank division) (as Mandated Lead Arranger, Original Lender and Facility Agent) on or about 15 April 2020; Facility means the revolving credit facility made available to the Borrowers under this Agreement as described in Clause 2 (The Facility); Facility Office means the office(s) notified by a Lender to the Facility Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than 5 (five) Business Days' written notice) as the office(s) through which it will perform its obligations under this Agreement; - 8 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) FATCA means: 1.1.46.1 sections 1471 to 1474 of the Code and any associated regulations; 1.1.46.2 any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in Clause 1.1.46.1 above; and 1.1.46.3 any agreement pursuant to the implementation of any treaty, law or regulation referred to in Clauses 1.1.46.1 or 1.1.46.2 above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction; FATCA Application Date means: 1.1.47.1 in relation to a “withholdable payment” described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or 1.1.47.2 in relation to a “passthru payment” described in section 1471(d)(7) of the Code not falling within Clause 1.1.47.1 above, the first date from which such payment may become subject to a deduction or withholding required by FATCA; FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA; FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction; Fee Letter means any letter or letters dated on or about the Signature Date between the Mandated Lead Arranger or the Facility Agent and the Original Borrowers setting out any of the fees referred to in Clause 11 (Fees); Finance Document means: 1.1.51.1 this Agreement; 1.1.51.2 any Fee Letter; 1.1.51.3 any Accession Letter; 1.1.51.4 any Resignation Letter; and 1.1.51.5 any other document designated as such by the Facility Agent and the Parent; Finance Party means the Facility Agent, the Mandated Lead Arranger or a Lender; Financial Indebtedness means (without double counting) any indebtedness for or in respect of: 1.1.53.1 moneys borrowed; - 9 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 1.1.53.2 any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; 1.1.53.3 any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; 1.1.53.4 the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a balance sheet liability; 1.1.53.5 receivables sold or discounted (other than any receivables to the extent they are sold on a non- recourse basis); 1.1.53.6 the amount of liability in respect of any purchase price for assets or services the payment of which is deferred where the deferral of such price is either: 1.1.53.6.1 used primarily as a method of raising credit; or 1.1.53.6.2 not made in the ordinary course of business; 1.1.53.7 any agreement or option to re-acquire an asset if one of the primary reasons for entering into such agreement or option is to raise finance; 1.1.53.8 any amount raised under any other transaction (including any forward sale or purchase agreement) which would, in accordance with GAAP, be treated as a borrowing; 1.1.53.9 for the purposes of Clause 22.5 (Cross-default) only, any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account); 1.1.53.10 any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of the liabilities of an entity which is not a member of the Group and which would otherwise constitute Financial Indebtedness; 1.1.53.11 any amount raised by the issue of redeemable shares to the extent such shares are redeemable prior to the Termination Date; and 1.1.53.12 the amount of any liability in respect of any guarantee or indemnity for any of its items referred to in Clauses 1.1.53.1 to 1.1.53.11 above; Financial Year means, at any time, the financial year of the Group ending on 31 December in each calendar year; Funding Rate means any individual rate notified by a Lender to the Facility Agent pursuant to Clause 10.2 (Market Disruption); GAAP means the generally accepted accounting principles set out in IFRS;
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- 10 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) GF Holdings means Gold Fields Holdings Company Limited, a company incorporated with limited liability under the laws of the British Virgin Islands with company number 651406; GF Orogen means Gold Fields Orogen Holding (BVI) Limited, a company incorporated with limited liability under the laws of the British Virgin Islands with company number 184982; Ghanaian Companies means Gold Fields Ghana Limited and Abosso Goldfields Limited; Group means the Parent and each of its Subsidiaries from time to time; Group Company means a member of the Group; 1.1.61A Group Facility Agreement means the US$1,200,000,000 facility agreement dated 25 May 2023 entered into between inter alia the Parent and Windfall as amended from time to time; Guarantor means an Original Guarantor or an Additional Guarantor unless, in the case of an Additional Guarantor, it has ceased to be a Guarantor in accordance with Clause 24 (Changes to the Obligors); Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary; IFRS means International Accounting Standards, International Financial Reporting Standards and related Interpretations, together with any future standards and related interpretations issued or adopted by the International Accounting Standards Board, in each case as amended and to the extent applicable to the relevant financial statements; Impaired Facility Agent means the Facility Agent at any time when: 1.1.65.1 it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment; 1.1.65.2 the Facility Agent otherwise rescinds or repudiates a Finance Document; 1.1.65.3 (if the Facility Agent is also a Lender) it is a Defaulting Lender under Clauses 1.1.32.1 and 1.1.32.2 of the definition of Defaulting Lender; or 1.1.65.4 an Insolvency Event has occurred and is continuing with respect to the Facility Agent; unless, in the case of Clause 1.1.65.1 above: 1.1.65.5 its failure to pay is caused by: 1.1.65.5.1 administrative or technical error; or 1.1.65.5.2 a Disruption Event; and 1.1.65.5.3 payment is made within 5 (five) Business Days of its due date; or 1.1.65.6 the Facility Agent is disputing in good faith whether it is contractually obliged to make the payment in question; - 11 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Increase Confirmation means a confirmation substantially in the form set out in Schedule 10 (Form of Increase Confirmation); Increased Costs has the meaning given to it in Clause 13.1.2.2 of Clause 13.1 (Increased costs); Increase Lender has the meaning given to that term in Clause 2.2 (Increase); Indebtedness for Borrowed Money means Financial Indebtedness, save for any indebtedness for or in respect of Clauses 1.1.53.9 and 1.1.53.10 of the definition of Financial Indebtedness; Information has the meaning given to such term in Clause 18.11.1 of Clause 18.11 (No misleading information); Insolvency Event in relation to an entity, means that entity: 1.1.71.1 is dissolved (other than pursuant to a consolidation, amalgamation or merger); 1.1.71.2 becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; 1.1.71.3 makes a general assignment, arrangement or composition with or for the benefit of its creditors; 1.1.71.4 institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official; 1.1.71.5 has instituted against it a proceeding seeking placement into business rescue, a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in Clause 1.1.71.4 above and: 1.1.71.5.1 results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or 1.1.71.5.2 is not dismissed, discharged, stayed or restrained in each case within 30 (thirty) days of the institution or presentation thereof; 1.1.71.6 seeks or becomes subject to the appointment of a curator pursuant to Chapter V of the Banks Act 1990 and/or has instituted against it a bank insolvency proceeding pursuant to that act; 1.1.71.7 has a resolution passed for its business rescue, winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); - 12 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 1.1.71.8 seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, business rescue practitioner or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in Clause 1.1.71.4 above); 1.1.71.9 has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 (thirty) days thereafter; 1.1.71.10 causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified above; or 1.1.71.11 takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; Interest Period means, in relation to a Loan, each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.3 (Default interest); JIBAR means, for the relevant Interest Period of any Loan or Unpaid Sum: 1.1.73.1 the applicable Screen Rate; or 1.1.73.2 if no Screen Rate is available for the Interest Period of that Loan or Unpaid Sum, the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent, at its request, quoted by the Reference Banks to leading banks in the Johannesburg Interbank Market, as of 11.00 a.m. on the Quotation Day for the offering of deposits in Rand for a period comparable to that Interest Period; JIBAR Overnight Deposit Rate means, for a Broken Interest Period in relation to any Loan or an Unpaid Sum: 1.1.74.1 the applicable Screen Rate; or 1.1.74.2 (if no Screen Rate is available for the Broken Interest Period of the Loan or Unpaid Sum) the arithmetic mean of the rates (rounded upwards to four decimal places), as supplied to the Lender at its request, quoted by the Reference Banks to leading banks in the Johannesburg Interbank Market, as of 11.00 a.m. on the Quotation Day for the offering of overnight deposits in Rand; Johannesburg Interbank Market means the South African interbank market; Legal Opinion means any legal opinion delivered to the Facility Agent under Clause 4.1 (Initial conditions precedent) or Clause 24 (Changes to the Obligors); - 13 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Legal Reservations means: 1.1.77.1 the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors; 1.1.77.2 the Prescription Act, 1969; 1.1.77.3 similar principles, rights and defences under the laws of any jurisdiction in which an Obligor is incorporated; and 1.1.77.4 any other matters which are set out as qualifications or reservations as to matters of law of general application in the Legal Opinions; Lender means: 1.1.78.1 the Original Lender; and 1.1.78.2 any bank or financial institution which has become a Party as a Lender in accordance with Clause 2.2 (Increase) or Clause 23 (Changes to the Lenders), which in each case has not ceased to be a Lender as such in accordance with the terms of this Agreement; LMA means the Loan Market Association; Loan means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan; Majority Lenders means: 1.1.81.1 at any time, there are only three Lenders, a Lender or Lenders whose Commitments aggregate 66⅔% or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 66⅔% or more of the Total Commitments immediately prior to the reduction); and 1.1.81.2 at any other time, a Lender or Lenders whose Commitments aggregate more than 66⅔% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔% of the Total Commitments immediately prior to the reduction); Margin means 1.90% per annum; Market Capitalisation means the product obtained as a result of multiplying (A) by (B), where (A) is the average closing price for the issued shares of the Parent on the Johannesburg Stock Exchange during the 30 (thirty) day period prior to the date the relevant Obligor or Material Group Company has entered into a legally binding commitment to make the relevant acquisition or investment or the relevant sale, lease, transfer or other disposal (as applicable) and (B) is the total number of shares (including, without double counting those represented by American depository receipts) issued by the Parent;
![slide10](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49010.jpg)
- 14 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Material Adverse Effect means a material adverse effect on: 1.1.84.1 the business or financial condition of the Group taken as a whole; or 1.1.84.2 the ability of an Obligor to perform its payment obligations or financial covenant obligations under any Finance Document to which it is a party; or 1.1.84.3 the validity or enforceability of the Finance Documents or any of them; Material Group Company means: 1.1.85.1 the Obligors; and 1.1.85.2 any member of the Group from time to time that is not a Non-Material Group Company; and Material Group Companies means, as the context requires, all of them; Mining Charter has the meaning given to it in Clause 22.8 (Creditors' process); Month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that: 1.1.87.1 (subject to Clause 1.1.87.3 below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; 1.1.87.2 if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and 1.1.87.3 if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end; Clauses 1.1.87.1, 1.1.87.2 and 1.1.87.3 above will only apply to the last Month of any period; Moody's means Xxxxx'x Investor Services Inc., or any successor to its rating agency function; MPRDA has the meaning given to it in Clause 22.8 (Creditors' Process); New Lender has the meaning given to it in Clause 23.1 (Cessions and Delegations by the Lenders); Newshelf means Newshelf 899 Proprietary Limited, a company incorporated under the laws of South Africa; Non-Material Group Company means, at any time, a member of the Group (other than an Obligor) which had EBITDA (determined on the same basis as Consolidated EBITDA) and gross assets in its most recently ended Financial Year (on a consolidated basis taking into account it and its Subsidiaries only) less than 10% of Consolidated EBITDA (but including, for these purposes only, the net income of any Project Finance Subsidiaries) and gross assets of the Group (calculated according to the most recent set of audited consolidated financial statements delivered pursuant to Clause 19.1 (Financial Statements)). Compliance with the aforementioned condition shall be - 15 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) determined by reference to the latest audited financial statements of such member of the Group (consolidated in the case of a member of the Group which itself has Subsidiaries), provided that: 1.1.92.1 if, in the case of any member of the Group which itself has Subsidiaries, no consolidated financial statements are prepared and audited, its consolidated EBITDA and gross assets shall be determined on the basis of pro forma consolidated financial statements of the relevant member of the Group and its Subsidiaries, prepared for this purpose by the Parent; 1.1.92.2 if any intra-Group transfer or re-organisation takes place, the audited financial statements of the Group Company and all relevant members of the Group shall be adjusted by the Parent in order to take into account such intra-Group transfer or re-organisation; and 1.1.92.3 the audited financial statements of the Group and any relevant member of the Group shall be adjusted in such a manner as the Auditors think fair and appropriate to take account of the acquisition or disposal of any member of the Group or any business of any member of the Group, after the date or at which the audited financial statements of the Group are made up; Should there be any dispute regarding whether any member of the Group is or is not a Non-Material Group Company such dispute shall be referred, at the request of the Facility Agent, to the Auditors and a report by the Auditors that a member of the Group is or is not a Non-Material Group Company shall, in the absence of manifest error, be conclusive and binding on all Parties. The costs of obtaining the report by the Auditors will be borne by the unsuccessful party to the dispute; Obligor means a Borrower or a Guarantor; Original Financial Statements means the audited consolidated financial statements of the Parent for the Financial Year ended 31 December 2022; Party means a party to this Agreement; Permitted Disposal means any sale, lease, transfer or other disposal: 1.1.96.1 by an Obligor or any member of the Group of obsolete or redundant assets which are no longer required for the efficient operation of the business of such Obligor or such member of the Group; 1.1.96.2 by an Obligor or any member of the Group in the ordinary course of its day-to-day business if that sale, lease, transfer or other disposal is not otherwise restricted by a term of any Finance Document; 1.1.96.3 by an Obligor to another Obligor (other than to an Additional Obligor); 1.1.96.4 by an Obligor to an Additional Obligor or to a member of the Group that is not an Obligor if such sale, lease, transfer or other disposal is concluded at arm's length or on terms that are more favourable to the relevant Obligor; 1.1.96.5 by a member of the Group that is not an Obligor to another member of the Group; 1.1.96.6 for which the Facility Agent has given its prior written consent (acting on the instructions of the Majority Lenders); or - 16 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 1.1.96.7 by any member of the Group to any other person where the higher of the market value or consideration receivable when aggregated with the higher of the market value or consideration receivable for any other sale, lease, transfer or other disposal by any Material Group Company (other than a sale, lease, transfer or other disposal referred to in the preceding Clauses) does not exceed (at the time of the relevant disposal) 30% of Market Capitalisation in any Financial Year and does not exceed (at the time of the relevant disposal), in aggregate during the period from the Signature Date to the Termination Date, 40% of Market Capitalisation; Permitted Encumbrance means: 1.1.97.1 any Encumbrance created prior to the Signature Date which (i) is disclosed in the Original Financial Statements and (ii) in all circumstances secures only indebtedness outstanding or a facility available at the Signature Date to the extent that the principal amount or original facility thereby secured is not increased after the Signature Date; 1.1.97.2 any title transfer or retention arrangement entered into by any member of the Group in the normal course of its trading activities and on terms not materially worse for that member of the Group than the standard terms of the relevant supplier; 1.1.97.3 any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements (which shall include, for the avoidance of doubt, those pursuant to hedging arrangements in relation to gold, silver, copper and other commodity prices, foreign exchange rates and interest rates where such arrangements are entered into for the purposes of providing protection against fluctuation in such rates or prices in the ordinary course of business), for the purpose of netting debit and credit balances; 1.1.97.4 any lien arising by operation of law and in the ordinary course of trading and not by reason of any default (whether in payments or otherwise), of any member of the Group; 1.1.97.5 any Encumbrance over or affecting (or transaction described in Clauses 21.3.2 of Clause 21.3 (Negative pledge) (Quasi-Encumbrance) affecting) any asset acquired by a member of the Group after the Signature Date if: 1.1.97.5.1 the Encumbrance or Quasi-Encumbrance was not created in contemplation of the acquisition of that asset by a member of the Group; 1.1.97.5.2 the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a member of the Group; and 1.1.97.5.3 the Encumbrance or Quasi-Encumbrance is (other than an Encumbrance or Quasi- Encumbrance otherwise permitted pursuant to Clauses 1.1.97.2, 1.1.97.3 and 1.1.97.4 above or, 1.1.97.6, 1.1.97.7, 1.1.97.8, 1.1.97.9 or 1.1.97.10 below) removed or discharged within 6 (six) Months of the date of acquisition of such asset; 1.1.97.6 any Encumbrance or Quasi-Encumbrance over or affecting any asset of any company which becomes a member of the Group after the Signature Date, where the Encumbrance or Quasi- - 17 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Encumbrance is created prior to the date on which that company becomes a member of the Group, if: 1.1.97.6.1 the Encumbrance or Quasi-Encumbrance was not created in contemplation of the acquisition of that company; 1.1.97.6.2 the principal amount secured has not increased in contemplation of or since the acquisition of that company; and 1.1.97.6.3 the Encumbrance or Quasi-Encumbrance is (other than an Encumbrance or Quasi- Encumbrance otherwise permitted pursuant to Clauses 1.1.97.2, 1.1.97.3, 1.1.97.4 or 1.1.97.5 above or 1.1.97.7, 1.1.97.9 or 1.1.97.10 below) removed or discharged within six (6) Months of that company becoming a member of the Group; 1.1.97.7 any Encumbrance or Quasi-Encumbrance granted in respect of Project Finance Borrowings over assets of, or the shares in, a Project Finance Subsidiary (other than the Cerro Corona Subsidiary); 1.1.97.8 any Encumbrance or Quasi-Encumbrance resulting from the rules and regulations of any clearing system or stock exchange over shares and/or other securities held in that clearing system or stock exchange; 1.1.97.9 in respect of Encumbrances or Quasi-Encumbrances over or affecting any asset of any Material Group Company (other than the Cerro Corona Subsidiary), any Encumbrance or Quasi- Encumbrance securing Financial Indebtedness the principal amount of which (when aggregated with the principal amount of any other indebtedness which has the benefit of any Encumbrance or Quasi-Encumbrance other than any permitted under Clauses 1.1.97.1 to 1.1.97.8 above and 1.1.97.10 and 1.1.97.11 below), does not at any time exceed 15% of Consolidated Tangible Net Worth (or its equivalent in another currency) (but adjusted to include the net value of new assets acquired since the last date of the latest set of consolidated annual financial statements of the Group); 1.1.97.10 any other Encumbrance or Quasi-Encumbrance as agreed by the Facility Agent (acting on the instructions of the Majority Lenders) in writing; or 1.1.97.11 any Encumbrance or Quasi-Encumbrance granted in respect of Financial Indebtedness incurred in connection with the Cerro Corona Operation over the business or assets of the Cerro Corona Subsidiary or over the Ownership Interests in the Cerro Corona Subsidiary provided that the amount outstanding of all Financial Indebtedness secured by all such Encumbrances or Quasi-Encumbrances permitted by this Clause 1.1.97.11 does not at any time in aggregate exceed $200,000,000 (Two Hundred Million Dollars) (or its equivalent). In this Clause 1.1.97.11, Ownership Interests means (i) the shares issued by the Cerro Corona Subsidiary, (ii) any shareholder loans made to the Cerro Corona Subsidiary (iii) to the extent required by Peruvian law, the shares in the Holding Company which directly owns the shares issued by the Cerro Corona Subsidiary provided that such Holding Company's sole assets are shares issued by, and any loans made by it to, the Cerro Corona Subsidiary and its sister company, Minera Gold Fields S.A.;
![slide11](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49011.jpg)
- 18 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Permitted Financial Indebtedness means any Financial Indebtedness: 1.1.98.1 arising under the Finance Documents; 1.1.98.2 arising under any environmental bond which any member of the Group is required to issue by any applicable law; 1.1.98.3 arising in connection with the Cerro Corona Operation provided that, the aggregate amount of all such Financial Indebtedness does not at any time exceed $200,000,000 (Two Hundred Million Dollars) (or its equivalent); 1.1.98.4 arising under any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price but not for speculative purposes; 1.1.98.5 of the Group existing and available on the Signature Date (or, of any person that becomes a member of the Group from time to time, provided that, such Financial Indebtedness existed at the time such person became a member of the Group and was not created in anticipation thereof); 1.1.98.6 arising under the guarantees given by Gold Fields Ghana Holdings (BVI) Limited in respect of the Existing Orogen Notes; 1.1.98.7 arising under any guarantee: 1.1.98.7.1 of any Financial Indebtedness of any member of the Group; or 1.1.98.7.2 given in respect of the netting or set-off arrangements permitted pursuant to Clause 1.1.97.3 of the definition of Permitted Encumbrance; or 1.1.98.7.3 any guarantee constituting Financial Indebtedness which is not prohibited by Clause 21.11 (Financial Indebtedness); 1.1.98.8 incurred by Gruyere Holdings Pty Ltd to the extent that the aggregate amount of all such Financial Indebtedness does not at any time exceed A$600,000,000 (Six Hundred Million Australian Dollars); 1.1.98.9 between Group Companies; 1.1.98.10 in respect of any lease or hire purchase contract entered into at any time which: 1.1.98.10.1 would, in accordance with GAAP, be treated as a balance sheet liability; and 1.1.98.10.2 would not, in accordance with GAAP in force immediately before the adoption of IFRS 16, have been treated as a balance sheet liability; 1.1.98.11 incurred pursuant to any counter-indemnity obligation in respect of any guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in favour of Tshiamiso Trust to the extent that the aggregate amount of all such Financial Indebtedness does not at any time exceed ZAR357,500,000 (Three Hundred and Fifty Seven Million Five Hundred Thousand Rand); - 19 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 1.1.98.12 not falling within the preceding Clauses 1.1.98.1 to 1.1.98.11 provided that the aggregate amount of all Financial Indebtedness (excluding, for the avoidance of doubt, any Financial Indebtedness incurred by a Guarantor or a Project Finance Subsidiary permitted under this Clause 1.1.98 does not at any time exceed $500,000,000 (Five Hundred Million Dollars) (or its equivalent)); or 1.1.98.13 incurred by Windfall under the Group Facility Agreement to the extent that that the aggregate principal amount outstanding of all such Financial Indebtedness does not at any time exceed C$800,000,000; Project Finance Borrowings means: 1.1.99.1 any indebtedness to finance (or re-finance) a project comprised of the ownership, development, construction, refurbishment, commissioning and/or operation of assets which is incurred by a Project Finance Subsidiary in connection with such project and in respect of which the recourse of the person(s) making any such finance (or re-finance) available to that Project Finance Subsidiary for the payment, repayment and prepayment of such indebtedness is limited to (i) the Project Finance Subsidiary and its assets and/or the shares in that Project Finance Subsidiary and/or (ii) during the period prior to successful completion of the relevant completion tests applicable to such project guarantees from any one or more members of the Group; or 1.1.99.2 any indebtedness the terms and conditions of which have been approved by the Facility Agent and which the Facility Agent has agreed in writing (acting on the instructions of the Majority Lenders) to treat as a Project Finance Borrowing for the purposes of the Finance Documents; Project Finance Subsidiary means a single purpose company or other entity (excluding the Obligors) whose sole business is a project comprised of the ownership, development, construction, refurbishment, commissioning and/or operation of an asset which has incurred Project Finance Borrowings; Qualifying Lender has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities); Quotation Day means, in relation to any period for which an interest rate is to be determined, the first day of that period, unless market practice differs in the Johannesburg Interbank Market, in which case the Quotation Day will be determined by the Facility Agent in accordance with market practice in the Johannesburg Interbank Market (and if quotations would normally be given by leading banks in the Johannesburg Interbank Market on more than one day, the Quotation Day will be the last of those days); Recipient has the meaning given to it in Clause 12.2.1 of Clause 12.7 (Value added tax); Recovered Amount has the meaning given to it in Clause 27.1 (Payments to Finance Parties); Recovering Finance Party has the meaning given to it in Clause 27.1 (Payments to Finance Parties); Redistributed Amount has the meaning given to it in Clause 27.4 (Reversal of redistribution); - 20 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Reference Bank Quotation means any quotation supplied to the Facility Agent by a Reference Bank; Reference Bank Rate means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks as either: 1.1.108.1 if: 1.1.108.1.1 the Reference Bank is a contributor to the Screen Rate; and 1.1.108.1.2 it consists of a single figure, the rate (applied to the relevant Reference Bank and the relevant currency and period) which contributors to the Screen Rate are asked to submit to the relevant administrator; or 1.1.108.2 in any other case, the rate at which the relevant Reference Bank could fund itself in ZAR for the relevant period with reference to the unsecured wholesale funding market; Reference Banks means the principal Johannesburg offices of such banks as may be appointed by the Facility Agent in consultation with the Parent at the relevant time and provided that such banks have accepted such appointment; Related Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund; Repeating Representations means each of the representations set out in Clause 18.1 (Status) to Clause 18.20 (Sanctions) inclusive, other than Clause 18.3 (Binding obligations), Clause 18.6 (Governing law and enforcement), Clause 18.7 (Deduction of Tax), Clause 18.8 (No filing or stamp taxes), Clause 18.11 (No misleading information), Clause 18.12 (Financial statements), Clause 18.14 (No proceedings pending or threatened), Clause 18.15 (Insurance), Clause 18.18 (Ownership of Material Group Companies), Clause 18.19 (No Material Adverse Effect) and Clause 18.20.2 of Clause 18.20 (Sanctions); Replacement Lender has the meaning given to it in Clause 34.6.1 of Clause 34.6 (Replacement of a Defaulting Lender); Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian; Resignation Letter means a letter substantially in the form set out in Schedule 6 (Form of Resignation Letter); Retiring Guarantor has the meaning given to it in Clause 17.8 (Release of Guarantors' right of contribution); - 21 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Rollover Loan means one or more Loans: 1.1.116.1 made or to be made on the same day that a maturing Loan is due to be repaid; 1.1.116.2 the aggregate amount of which is equal to or less than the amount of the maturing Loan; and 1.1.116.3 made or to be made to the same Borrower for the purpose of refinancing a maturing Loan; Sanctioned Country means a country, territory or region that is the target of Sanctions; Sanctions means any economic, financial or trade sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: 1.1.118.1 the United States government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a specially designated national or blocked person); 1.1.118.2 the United Nations Security Council; 1.1.118.3 the European Union; 1.1.118.4 the government of Australia; 1.1.118.5 the government of Canada; 1.1.118.6 the government of Japan; 1.1.118.7 the government of the United Kingdom (including, without limitation His Majesty's Treasury); 1.1.118.8 the government of the Republic of France; 1.1.118.9 the government of South Africa, and any of their governmental authorities, or any other relevant sanctions authority which replaces, or is a successor to, any of the foregoing; Screen Rate means the mid-market rate for deposits in ZAR for the relevant period which appears on the Reuters Screen SAFEY Page alongside the caption YIELD at the applicable time (or any replacement Reuters page which displays that rate, or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters). If such page or service ceases to be available, the Facility Agent may specify another page or service displaying the appropriate rate after consultation with the Parent; Sharing Finance Parties has the meaning given to it in Clause 27.2 (Redistribution of payments); Sharing Payment has the meaning given to it in Clause 27.1 (Payments to Finance Parties); Signature Date means the date of the signature of the Party last signing this Agreement in time, provided that all Parties have signed this Agreement; South Africa means the Republic of South Africa;
![slide12](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49012.jpg)
- 22 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) South African Obligors means: 1.1.124.1 the Parent; 1.1.124.2 the Original Borrowers; or 1.1.124.3 any Additional Obligor incorporated in South Africa; Specified Time means a time determined in accordance with Schedule 8 (Timetable); Standard & Poor's means Standard & Poor's, a division of the XxXxxx-Xxxx Companies Inc., or any successor to its rating agency function; Subject Party has the meaning given to it in Clause 12.2.2 of Clause 12.7 (Value added tax); Subsidiary means, in relation to any company or corporation, a company or corporation: 1.1.128.1 which is controlled, directly or indirectly, by the first mentioned company or corporation; 1.1.128.2 in respect of which more than half the issued share capital is beneficially owned, directly or indirectly by the first mentioned company or corporation; or 1.1.128.3 which is a Subsidiary of another Subsidiary of the first mentioned company or corporation, and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body; Supplier has the meaning given to it in Clause 12.2.2 of Clause 12.7 (Value added tax); Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including, without limitation, any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); Tax Credit has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities); Tax Declaration has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities); Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction; Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax Indemnity); Termination Date means the 5th (fifth) anniversary of the CP Satisfaction Date; Third Parties Act means the Contracts (Rights of Third Parties) Act, 1999; Total Commitments means the aggregate of the Commitments, being ZAR1,000,000,000 (One Billion Rand) at the Signature Date; - 23 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Transfer Certificate means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Facility Agent and the Parent; Transfer Date means, in relation to a transfer: 1.1.139.1 the proposed Transfer Date specified in the relevant Transfer Certificate; or 1.1.139.2 in the event that no Transfer Date is specified in the relevant Transfer Certificate, the date on which the Facility Agent executes the relevant Transfer Certificate; Treaty Lender has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities); Treaty State has the meaning given to it in Clause 12 (Tax Gross-up and Indemnities); Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents; US means the United States of America; Utilisation means a utilisation of the Facility; Utilisation Date means the date of a Utilisation, being the date on which the relevant Loan is to be made; Utilisation Request means a notice substantially in the form set out in Schedule 3 (Utilisation Request); VAT means any value added tax as provided for in the South African Value Added Tax Act, 1991 and any other tax of a similar nature; and Windfall means Gold Fields Windfall Holdings Inc. (also referred to as Gestion Gold Fields Windfall Inc.), a wholly owned subsidiary of the Parent, incorporated in accordance with the laws of Canada under Ontario corporation number 1000516306. Construction Unless a contrary indication appears any reference in this Agreement to: 1.2.1.1 the Facility Agent, the Mandated Lead Arranger, any Finance Party, any Lender, any Obligor or any Party shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Finance Documents; 1.2.1.2 arm's length means terms that are fair and reasonable to the counterparty of a transaction and no more or less favourable to the other party to the relevant transaction as could reasonably be expected to be obtained in a comparable arm's length transaction with a person that is not the ultimate Holding Company of such counterparty or an entity of which such counterparty or its ultimate Holding Company has direct or indirect control, or owns directly or indirectly more than 20% of the share capital or similar rights of ownership; - 24 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 1.2.1.3 an amendment includes an amendment, modification, supplement, novation, re-enactment, replacement, restatement or variation and amend will be construed accordingly; 1.2.1.4 assets include present and future properties, revenues and rights of every description; 1.2.1.5 audited means, in respect of any financial statement, those financial statements as audited by the Auditors; 1.2.1.6 authorisations mean any authorisation, consent, registration, filing agreement, notarisation, certificate, licence, approval, resolution, permit and/or authority or any exemption from any of the aforesaid, by, with or from any authority (including, without limitation, any approvals required from the South African Reserve Bank in relation to any Finance Document or any transaction contemplated under any Finance Document); 1.2.1.7 a Clause or Schedule shall, subject to any contrary indication, be construed as a reference to a Clause or Schedule of this Agreement; 1.2.1.8 a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended, replaced or restated; 1.2.1.9 a group of Lenders includes all the Lenders; 1.2.1.10 a guarantee means (other than in Clause 17 (Guarantee and Indemnity)), any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent to purchase or assume any indebtedness of any person or to make any investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness; 1.2.1.11 indebtedness shall be construed so as to include any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; 1.2.1.12 the use of the word including followed by specific examples will not be construed as limiting the meaning of the general wording preceding it, and the eiusdem generis rule must not be applied in the interpretation of such general wording or such specific examples; 1.2.1.13 law shall be construed as any law (including statutory, common or customary law), statute, constitution, decree, judgment, treaty, regulation, directive, by-law, order, other legislative measure, directive, requirement, request or guideline (whether or not having the force of law but, if not having the force of law, is generally complied with by the persons to whom it is addressed or applied) of any government, supranational, local government, statutory or regulatory or self-regulatory or similar body or authority or court and the common law, as amended, replaced, re-enacted, restated or reinterpreted from time to time; 1.2.1.14 the words other and otherwise shall not be construed eiusdem generis with any foregoing words where a wider construction is possible; - 25 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 1.2.1.15 a person includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality); 1.2.1.16 a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but complied with generally) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; 1.2.1.17 a provision of law is a reference to that provision as amended or re-enacted; and 1.2.1.18 a time of day is a reference to Johannesburg time. The determination of the extent to which a rate is for a period equal in length to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement. Section, Clause and Schedule headings are for ease of reference only. Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement. Unless inconsistent with the context or a contrary indication appears, in this Agreement: 1.2.5.1 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party to this Agreement, notwithstanding that it appears only in a definition, effect shall be given to it as if it were a substantive provision of this Agreement; 1.2.5.2 when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day; 1.2.5.3 where any Party to this Agreement is required to provide any consent or approval or agree to the actions of any other Party to this Agreement, the request for such consent or approval or agreement shall be in writing and such consent or approval or agreement, in order to be an effective consent, approval or agreement for the purposes of this Agreement, shall be in writing; and 1.2.5.4 any obligation of an Obligor not to do something under this Agreement shall include an obligation not to vote in favour of or to exercise any discretion or to contract, agree or take any action with a view to bringing that thing about (unless such contract or agreement is conditional upon the consent of the Facility Agent). A Default is continuing if it has not been remedied or waived. The headings to the Clauses and Schedules of this Agreement are for reference purposes only and shall in no way affect or govern the interpretation of nor modify nor amplify the terms of this Agreement nor any Clause or Schedule hereof.
![slide16](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49016.jpg)
- 38 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) expresses as a percentage rate per annum the cost to that Lender of funding its participation in that Loan from whatever source it may reasonably select. In this Agreement, Market Disruption Event means: 10.2.2.1 at or about noon on the Quotation Day for the relevant Interest Period, the Screen Rate is not available and none or only one of the Reference Banks supplies a rate to the Facility Agent to determine JIBAR for the relevant Interest Period; or 10.2.2.2 before close of business in Johannesburg on the Quotation Day for the relevant Interest Period, the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 35% of that Loan) that: 10.2.2.2.1 the cost to it or them of funding its or their participation in that Loan from the Johannesburg Interbank Market would be in excess of JIBAR; 10.2.2.2.2 the cost to it or them of obtaining matching deposits in the Johannesburg Interbank Market would be in excess of JIBAR for the relevant Interest Period; or 10.2.2.2.3 matching deposits will not be available to them in the Johannesburg Interbank Market in the ordinary course of business to fund their participation in that Loan for the relevant Interest Period. Notification to Parent If Clause 10.2 (Market Disruption) applies the Facility Agent shall, as soon as is practicable, notify the Parent. Break Costs Each Borrower shall, within 3 (three) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum. Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue. 11. FEES Commitment fee The Original Borrowers shall, jointly and severally, pay to the Facility Agent (for the account of each Lender) a fee (in ZAR) computed at the rate of 0.53% of that Xxxxxx's Available Commitment per annum accruing from the CP Satisfaction Date. The accrued commitment fee in respect of the Facility is payable on: 11.1.2.1 the last day of each successive period of 3 (three) Months commencing from the CP Satisfaction Date; - 39 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 11.1.2.2 on the last day of the relevant Availability Period; and 11.1.2.3 if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective. No commitment fee is payable to the Facility Agent (for the account of a Lender) on any Available Commitment of that Lender for any day on which that Lender is a Defaulting Lender. Non-Refundable Deal Structuring Fee The Original Borrowers shall, jointly and severally, pay to the Facility Agent (for the account of the Mandated Lead Arranger) a non-refundable deal structuring fee in the amount and at the times agreed in a Fee Letter. 12. TAX GROSS-UP AND INDEMNITIES Definitions In this Clause 12: 12.1.1.1 Income Tax Act means the Income Tax Act no 58 of 1962, as amended of South Africa; 12.1.1.2 Qualifying Lender means a Lender which is beneficially entitled to interest (as defined in section 24J(1) of the Income Tax Act) payable to that Lender in respect of an advance under a Finance Document and is: 12.1.1.2.1 a Lender which is tax resident in South Africa; 12.1.1.2.2 a Lender which is not tax resident in South Africa if: 12.1.1.2.2.1 such advance in respect of which that interest is paid is effectively connected with or attributable to a permanent establishment of that Lender in South Africa; 12.1.1.2.2.2 that Lender is registered as a taxpayer in terms of Chapter 3 of the Tax Administration Act, 2011 of South Africa; and 12.1.1.2.2.3 that Lender has by the due date for payment of that interest submitted to the Borrower a Tax Declaration; or 12.1.1.2.3 a Treaty Lender that has by the due date for payment of that interest submitted to the relevant Borrower a Tax Declaration; 12.1.1.3 Tax Credit means a credit against, relief or remission for, or repayment of any Tax; 12.1.1.4 Tax Declaration means, in respect of a Qualifying Lender and a payment of interest from a South African Obligor to that Qualifying Lender: 12.1.1.4.1 in the case of a Qualifying Xxxxxx referred to in Clause 12.1.1.2.2 of the definition of Qualifying Lender, a declaration in such form as may be prescribed by the Commissioner for the South African Revenue Service pursuant to section 50E(2) of the Income Tax Act that - 40 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) that Lender is, in terms of section 50D(3) of the Income Tax Act, exempt from the withholding tax on interest in respect of that payment; and 12.1.1.4.2 in the case of a Qualifying Lender referred to in Clause 12.1.1.2.3 of the definition of Qualifying Lender, a declaration in such form as may be prescribed by the Commissioner for the South African Revenue Service pursuant to section 50E(3) of the Income Tax Act that that payment of interest is, in terms of section 50E(3) of the Income Tax Act, subject to a rate of withholding tax reduced to zero as a result of any applicable Treaty; 12.1.1.5 Treaty Lender means a Lender which: 12.1.1.5.1 is treated as a resident of a Treaty State for the purposes of a Treaty; 12.1.1.5.2 does not carry on a business in South Africa through a permanent establishment, as defined in the Income Tax Act, with which that Xxxxxx’s participation in the Loan is effectively connected; and 12.1.1.5.3 otherwise qualifies under the terms of a Treaty for full exemption from tax imposed by South Africa on interest; 12.1.1.6 Treaty State means a jurisdiction having an agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income (a Treaty) with South Africa which makes provision for full exemption from Tax imposed by South Africa on interest. Unless this Clause expressly provides to the contrary a reference to determines or determined means a determination made in the absolute discretion of the person making the determination. Tax gross-up Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law. An Obligor shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent on becoming so aware in respect of a payment payable to that Lender. If the Facility Agent receives such notification from a Lender it shall notify the Parent and, if applicable, that Obligor. If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required. A payment shall not be increased under Clause 12.2.3 above by reason of a Tax Deduction on account of Tax imposed by South Africa if, on the date on which the payment falls due the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this - 41 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority. If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law. Within 30 (thirty) days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. A Qualifying Lender (or a Lender who would be a Qualifying Lender but for the fact that it has not submitted a Tax Declaration) and each Obligor which makes a payment to which that Qualifying Lender (or a Lender who would be a Qualifying Lender but for the fact that it has not submitted a Tax Declaration) is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction (including the submission of any Tax Declaration to the relevant Borrower required to benefit from an exemption from withholding tax on interest). Tax indemnity An Obligor shall (within 3 (three) Business Days of demand by the Facility Agent) pay to a Finance Party an amount equal to the loss, liability or cost which that Finance Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Finance Party in respect of a Finance Document. Clause 12.3.1 above shall not apply: 12.3.2.1 with respect to any Tax assessed on a Finance Party: 12.3.2.1.1 under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or 12.3.2.1.2 under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction, if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or to the extent a loss, liability or cost: 12.3.3.1 is compensated for by an increased payment under Clause 12.2 (Tax gross-up); 12.3.3.2 would have been compensated for by an increased payment under Clause 12.2 (Tax gross-up) but was not so compensated solely because the exclusion in Clause 12.2.5 of Clause 12.2 (Tax gross-up) applied; or
![slide19](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49019.jpg)
- 50 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Enforcement costs The Borrowers shall, within 5 (five) Business Days of demand, jointly and severally pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document. 17. GUARANTEE AND INDEMNITY Guarantee and indemnity Each Guarantor irrevocably and unconditionally jointly and severally, as a principal obligor and not merely as a surety and on the basis of discrete obligations enforceable against it: guarantees to each Finance Party punctual performance by each Borrower and the Parent of all that Borrower's and the Parent's obligations under the Finance Documents; undertakes with each Finance Party that whenever a Borrower or the Parent does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand (and shall make the relevant payment within 5 (five) Business Days of demand) against any cost, loss or liability it incurs as a result of a Borrower or the Parent not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on the basis of a guarantee. Continuing guarantee This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part. Reinstatement If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration, business rescue proceedings or otherwise, without limitation, then the liability of each Guarantor under this Clause 17 will continue or be reinstated as if the discharge, release or arrangement had not occurred. - 51 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Waiver of defences The obligations of each Guarantor under this Clause 17 will not be affected by an act, omission, matter or thing which, but for this Clause 17, would reduce, release or prejudice any of its obligations under this Clause 17 (without limitation and whether or not known to it or any Finance Party) including: any time, waiver or consent granted to, or composition with, any Obligor or other person; the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person; any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security; any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; any insolvency, liquidation, winding-up, business rescue, administration or similar proceedings (including, but not limited to, receipt of any distribution made under or in connection with those proceedings); this Agreement or any other Finance Document not being executed by or binding against any other Guarantor or any other party; or any other fact or circumstance arising on which a Guarantor might otherwise be able to rely on a defence based on prejudice, waiver or estoppel. Immediate recourse Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 17. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary. - 52 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Appropriations Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may: refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 17. Deferral of Guarantors' rights Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 17: 17.7.1.1 to be indemnified by an Obligor; 17.7.1.2 to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents; 17.7.1.3 to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party; 17.7.1.4 to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 17.1 (Guarantee and indemnity); 17.7.1.5 to exercise any right of set-off against any Obligor; and/or 17.7.1.6 to claim or prove as a creditor of any Obligor in competition with any Finance Party; If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 28 (Payment Mechanics). - 53 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Release of Guarantors' right of contribution If any Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor, then on the date such Retiring Guarantor ceases to be a Guarantor: that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor. Additional security This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party. 18. REPRESENTATIONS Each Obligor makes the representations and warranties set out in this Clause 18 to each Finance Party. Status It is a limited liability company, duly incorporated and validly existing under the law of its jurisdiction of incorporation. It has the power to own its assets and carry on its business as it is being conducted or is contemplated to be conducted. Power and authority Subject to the Legal Reservations, it has the power to enter into and perform, and has taken all necessary action to authorise its entry into, and performance of, the Finance Documents to which it is party and the transactions contemplated by those Finance Documents. Binding obligations Subject to the Legal Reservations, the obligations expressed to be assumed by it in each Finance Document to which it is a party are, legal, valid, binding and enforceable obligations.
![slide20](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49020.jpg)
- 54 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Non-conflict with other obligations The entry into and performance by it of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not conflict with: any applicable law of its jurisdiction of incorporation; its Constitutional Documents; or any material agreement or instrument binding upon it or any of its assets. Validity and admissibility in evidence Subject to the Legal Reservations, all authorisations required: to enable it lawfully to enter into, exercise its rights and comply with its obligations under the Finance Documents to which it is a party and to ensure that the obligations expressed to be assumed by it thereunder are legal, valid, binding and enforceable; and to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation, have been obtained or effected and are in full force and effect. Governing law and enforcement Subject to the Legal Reservations: the choice of governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation; its: 18.6.2.1 submission under this Agreement to the jurisdiction of the Gauteng Local Division, Johannesburg, High Court of South Africa; and 18.6.2.2 agreement not to claim any immunity to which it or its assets may be entitled, are legal, valid and binding under the laws of its jurisdiction of incorporation; and any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in its jurisdiction of incorporation. Deduction of Tax It is not required under the law of its jurisdiction of incorporation to make any Tax Deduction from any payment it may make under any Finance Document, other than in the case of a South African Obligor, the withholding tax on interest required to be withheld in respect of payments of interest to Lenders that are not Qualifying Lenders. - 55 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) No filing or stamp taxes Subject to the Legal Reservations, under the law of its jurisdiction of incorporation it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents. BVI Tax and Licencing No Obligor incorporated under the laws of the British Virgin Islands or any of their Subsidiaries owns any interest in any land in the British Virgin Islands. No Obligor incorporated under the laws of the British Virgin Islands is carrying on any business or carrying on any other activity in or from within the British Virgin Islands requiring a licence, approval or authorisation, including without limitation under the Business, Professions and Trade Licenses Act 1990. No default No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation. It is not, nor is it likely to be as a result of entering into and performing its obligations under the Finance Documents, in violation of any law or in breach of or in default under any agreement to which it is a party or which is binding on it or any of its assets to an extent or in a manner which could reasonably be expected to have a Material Adverse Effect. No misleading information All written factual information supplied by it to the Finance Parties and the Facility Agent in connection with the Finance Documents, (excluding any equity analysts reports and the reports from the credit rating agencies) (the Information) was true and accurate in all material respects as at the date it was given or as at the date (if any) at which it was stated and was not misleading in any material respect at such date. The financial projections and forecasts contained in the Information have been prepared in good faith on the basis of recent historical information and on the basis of reasonable assumptions. It has not knowingly withheld any information which, if disclosed, could reasonably be expected materially and adversely to affect the decision of the Finance Parties in considering whether or not to provide finance to each Borrower. Financial statements The Original Financial Statements were prepared in accordance with GAAP. The Original Financial Statements fairly present the Group's financial condition and its results of operations during the relevant Financial Year. - 56 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Pari passu ranking Its payment obligations under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally in the jurisdiction of its incorporation. No proceedings pending or threatened Other than as disclosed in the financial statements most recently delivered to the Facility Agent pursuant to Clause 19.1.1 of Clause 19.1 (Financial statements), no litigation, arbitration or administrative proceedings of or before any court, arbitral body or government agency which is reasonably expected to be adversely determined, and if so determined, could reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief) been started or threatened against it or any Material Group Company. Insurance Each Material Group Company maintains insurances on and in relation to its business and assets against those risks and to the extent as is usual for companies in the jurisdiction in which it conducts its business carrying on substantially similar business in such jurisdiction. Environmental Compliance Each Material Group Company has adopted and complies with an environmental policy which requires monitoring of and compliance with all applicable Environmental Law and Environmental Permits applicable to it from time to time unless non-compliance with such policy could not reasonably be expected to cause a Material Adverse Effect. Environmental Claims No Environmental Claim (not of a frivolous or vexatious nature) has been commenced or (to the best of its knowledge and belief) is threatened against any Material Group Company where that claim would be reasonably likely, if determined against that Material Group Company, to have a Material Adverse Effect. Ownership of Material Group Companies Each existing Material Group Company on the Signature Date (other than the Cerro Corona Subsidiary, Newshelf, the Ghanaian Companies and the Original Borrowers) is a wholly-owned Subsidiary of the Parent and any member of the Group which becomes a Material Group Company after the Signature Date will be a wholly or partially owned Subsidiary of the Parent and the members of the Group holding the shares in such Material Group Company have not reduced their shareholding in such Subsidiary below the level of their shareholding at the time such Subsidiary became a Material Group Company. The Parent holds at least 74% of the issued share capital of Newshelf. Newshelf holds at least 74% of the issued share capital of each of the Original Borrowers. - 57 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) The Parent indirectly holds at least 90% of the issued share capital of each Ghanaian Company. The Parent indirectly holds at least 99% of the common shares in the share capital of the Cerro Corona Subsidiary (which equates to 98.5% of the issued and outstanding shares in the share capital of the Cerro Corona Subsidiary). No Material Adverse Effect There has been no change in the business, condition (financial or otherwise), operations, performance or properties of the Obligors or the Group (taken as a whole) since the date of the Original Financial Statements which could reasonably be expected to have a Material Adverse Effect. Sanctions Neither the Parent nor any Subsidiary of the Parent, nor any director or officer of the Parent or any Subsidiary of the Parent, nor to the best of the Parent's knowledge and belief, any employee, agent, affiliate or representative of the Parent or any Subsidiary is an individual or entity currently the subject or target of any Sanctions (in place as at the Signature Date) nor is the Parent or any Subsidiary of the Parent located, organised, resident or operating in any Sanctioned Country (designated as such as at the Signature Date). For the past 5 (five) years, neither the Parent nor any Subsidiary has knowingly engaged in, nor is now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country. Anti-corruption Each member of the Group has conducted its businesses in compliance with applicable Anti- Corruption Laws and has instituted policies and procedures designed to promote and achieve compliance with such laws. Times when representation made All the representations and warranties in this Clause 18 are made by each Obligor on the Signature Date and, in the case of each Additional Obligor, on the date of accession of such Additional Obligor (by reference to the facts and circumstances then existing) (other than the representations in Clause 18.11.1 of Clause 18.11 (No misleading information) which are deemed to be made on the date the Information is provided by the relevant Obligor. The Repeating Representations are deemed to be made by each Obligor (by reference to the facts and circumstances then existing) on: 18.22.2.1 the CP Satisfaction Date; 18.22.2.2 the date of each Utilisation Request;
![slide21](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49021.jpg)
- 58 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 18.22.2.3 on each Utilisation Date; and 18.22.2.4 on the first day of each Interest Period, save that the references in Clause 18.12 (Financial statements) to the Original Financial Statements shall, for the purposes of the Repeating Representations, be construed as references to the most recent audited consolidated financial statements of the Parent delivered to the Facility Agent under Clause 18.12 (Financial statements). 19. INFORMATION UNDERTAKINGS The undertakings in this Clause 19 are given in favour of each Finance Party and remain in force from the Signature Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in force. Financial statements The Parent shall supply to the Facility Agent: as soon as the same become available, but in any event within 120 (one hundred and twenty) days after the end of each of its Financial Years the audited consolidated financial statements of the Parent for that Financial Year; as soon as the same become available, but in any event within 150 (one hundred and fifty) days after the end of each of its Financial Years: 19.1.2.1 the audited financial statements of each Obligor (other than GF Holdings and GF Orogen unless there is a legal requirement to audit its financial statements and any other Obligor which is not legally required to audit its financial statements) for that Financial Year; and 19.1.2.2 if the audited financial statements of GF Holdings and/or GF Orogen and/or any other Obligor which is not legally required to audit its financial statements (as the case may be) are not delivered under Clause 19.1.2.1 above, the unaudited financial statements of GF Holdings and/or GF Orogen and/or any other Obligor which is not legally required to audit its financial statements (as the case may be) for that Financial Year; as soon as the same become available, but in any event within 60 (sixty) days after the first 6 (six) Months of each of its Financial Years: 19.1.3.1 the unaudited financial statements of each Obligor for the first 6 (six) Month period of that Financial Year; and 19.1.3.2 the unaudited consolidated financial statements of the Parent for the first 6 (six) Month period of that Financial Year. Compliance Certificate The Parent shall supply to the Facility Agent, with each set of consolidated financial statements delivered pursuant to Clauses 19.1.1 and 19.1.3 of Clause 19.1 (Financial statements), a - 59 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 20 (Financial Covenants) as at the date as at which those financial statements were drawn up. Each Compliance Certificate shall be signed by an authorised signatory of the Parent and, if required to be delivered with the audited consolidated financial statements delivered pursuant to Clause 19.1.1 of Clause 19.1 (Financial statements), reported on by the Auditors. Requirements as to financial statements Each set of financial statements delivered by the Parent pursuant to Clause 19.1 (Financial statements) shall be certified by an authorised signatory of the relevant company as fairly presenting its financial condition as at the date as at which those financial statements were drawn up. Subject to Clause 19.3.3 below, the Parent shall procure that each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) is prepared in accordance with GAAP, the requirements of its jurisdiction of incorporation and accounting practices and financial reference periods, in each case consistent with those applied in the preparation of the Original Financial Statements, unless the Parent notifies the Facility Agent that in relation to any sets of financial statements, there has been a change in GAAP or the accounting practices or reference periods and its Auditors (in the case of its annual audited financial statements) or the Parent (in the case of any of its other financial statements) delivers to the Facility Agent: 19.3.2.1 a description of any change necessary for those financial statements to reflect GAAP, accounting practices and reference periods upon which the Original Financial Statements were prepared; and 19.3.2.2 sufficient information, in form and substance as may be reasonably required by the Facility Agent, to enable the Facility Agent to determine whether Clause 20 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements. There shall be no requirement for the Parent to notify the Facility Agent pursuant to Clause 19.3.2 above that there has been a change in GAAP as a result of the implementation of IFRS 16 since the date of the Original Financial Statements nor to provide any of the items referred to in Clauses 19.3.2.1 or 19.3.2.2 above in relation to the implementation of IFRS 16 and each set of financial statements delivered pursuant to Clause 19.1 (Financial statements) shall be prepared taking into account the implementation of IFRS 16. If the Parent notifies the Facility Agent of a change in accordance with Clause 19.3.2 above, then the Parent and the Facility Agent shall enter into negotiations in good faith with a view to agreeing: 19.3.4.1 whether or not the change might result in material alteration in the commercial effect of any of the terms of this Agreement or any other Finance Document; and - 60 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 19.3.4.2 if so, any amendments to this Agreement or any other Finance Document which may be necessary to ensure that the change does not result in any material alteration in the commercial effect of those terms, and if any amendments are agreed they shall take effect and be binding on each of the Parties in accordance with their terms. Any reference in the Finance Documents to financial statements shall be construed as a reference to those financial statements as the same may be adjusted under this Clause 19.3 to reflect the basis upon which the Original Financial Statements were prepared. Information: miscellaneous Each Obligor shall supply to the Facility Agent: 19.4.1.1 if the Facility Agent so requests, all documents dispatched by that Obligor to its shareholders (or any class of them) or its creditors generally at the same time as they are dispatched; 19.4.1.2 the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any member of the Group which, if adversely determined against it, would be reasonably likely to have a Material Adverse Effect; and 19.4.1.3 promptly, such further information regarding the financial condition, business and operations of any Material Group Company as any Finance Party (through the Facility Agent) may reasonably request except where disclosure of such information would breach: 19.4.1.3.1 any law, regulation or rules of any stock exchange; or 19.4.1.3.2 a contractual duty of confidentiality not entered into for the primary purpose of circumventing each Obligor's obligations under this Clause 19.4. Each Obligor agrees to use commercially reasonably endeavours to seek permission for disclosure of any information that they are otherwise prevented from sharing by virtue of a duty of confidentiality owing by it to a third party. Notification of default Each Obligor shall notify the Facility Agent, of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor). Promptly upon a request by the Facility Agent, each Borrower shall supply to the Facility Agent, a certificate signed an authorised signatory of such Borrower on its behalf, certifying that no Default is continuing (or if a Default is continuing specifying the Default and the steps, if any, being taken to remedy it). Direct electronic delivery by an Obligor Each Obligor may satisfy its obligation under this Agreement to deliver any information in relation to a Lender by delivering that information directly to that Lender in accordance with Clause 30.7 - 61 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) (Electronic communication) to the extent that Lender and the Facility Agent agree to this method of delivery. Know your customer checks If: 19.7.1.1 the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Signature Date; 19.7.1.2 any change in the status of an Obligor or of a Holding Company of an Obligor or the composition of the shareholders of an Obligor after the Signature Date; or 19.7.1.3 a proposed transfer by a Lender of any of its rights and obligations under the Finance Documents to a party that is not a Lender prior to such transfer, obliges the Facility Agent or any Lender (or, in the case of Clause 19.7.1.3 above, any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, each Obligor shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in Clause 19.7.1.3 above, on behalf of any prospective new Lender) in order for the Facility Agent, such Lender or, in the case of the event described in Clause 19.7.1.3 above, any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. Each Lender shall promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents. The Parent shall, by not less than 10 (ten) Business Days' prior written notice to the Facility Agent, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to the terms of the Finance Documents. Following the giving of any notice pursuant to Clause 19.7.3 above, if the accession of such Additional Obligor obliges the Facility Agent or any Lender to comply with know your customer or similar identification procedures in circumstances where the necessary information is not readily available to it, the Parent shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective Lender) in order for the Facility Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary know your customer or other similar
![slide25](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49025.jpg)
- 74 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender. Subject to Clause 23.9 (Pro rata interest settlement), on the Transfer Date: 23.6.3.1 to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the Discharged Rights and Obligations); 23.6.3.2 each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender; 23.6.3.3 the Facility Agent, the Mandated Lead Arranger, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the Transfer and to that extent the Facility Agent, the Mandated Lead Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and 23.6.3.4 the New Lender shall become a Party as a Lender. Copy of Transfer Certificate or Increase Confirmation to Parent The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or Increase Confirmation, send to the Parent a copy of that Transfer Certificate or Increase Confirmation. Security over Xxxxxxx' rights In addition to the other rights provided to Lenders under this Clause 23, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create an Encumbrance in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation: 23.8.1.1 any charge, assignment or other Encumbrance to secure obligations to a federal reserve or central bank; and - 75 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 23.8.1.2 any charge, assignment or other Encumbrance granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, except that no such charge, assignment or Encumbrance shall: 23.8.1.3 release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Encumbrance for the Lender as a party to any of the Finance Documents; or 23.8.1.4 require any payments to be made by an Obligor other than or in excess of, or grant to any person any more extensive rights than, those required to be made or granted to the relevant Lender under the Finance Documents. Pro rata interest settlement If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a pro rata basis to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 23.6 (Procedure for transfer) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period): 23.9.1.1 any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date (Accrued Amounts) and shall become due and payable to the Existing Lender (without further interest accruing on them) on the last day of the current Interest Period (or, if the Interest Period is longer than 6 (six) Months, on the next of the dates which falls at 6(six) Monthly intervals after the first day of that Interest Period); and 23.9.1.2 the rights transferred by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt: 23.9.1.2.1 when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Lender; and 23.9.1.2.2 the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 23.9, have been payable to it on that date, but after deduction of the Accrued Amounts. In this Clause 23.9, references to Interest Period shall be construed to include a reference to any other period for the accrual of fees. An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 23.9 but which does not have a Commitment shall be deemed not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents. - 76 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 24. CHANGES TO THE OBLIGORS Cessions and delegations by Obligors No Obligor may cede any of its rights or delegate any of its obligations under the Finance Documents. Additional Borrowers Subject to compliance with the provisions of Clauses 19.7.3 and 19.7.4 of Clause 19.7 (Know your customer checks), the Parent may request that any of its Subsidiaries become an Additional Borrower. That Subsidiary shall become an Additional Borrower if: 24.2.1.1 either: 24.2.1.1.1 that Subsidiary is a wholly-owned Subsidiary incorporated in the same jurisdiction as an existing Borrower; or 24.2.1.1.2 all the Lenders, acting reasonably, approve the addition of that Subsidiary; 24.2.1.2 the Parent delivers to the Facility Agent a duly completed and executed Accession Letter; 24.2.1.3 the Parent confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and 24.2.1.4 the Facility Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent) in relation to that Additional Borrower, each in form and substance satisfactory to the Facility Agent. The Facility Agent shall notify the Parent and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent). Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in Clause 24.2.2 above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. Resignation of an Additional Borrower The Parent may request that a Borrower (other than the Original Borrowers) ceases to be a Borrower by delivering to the Facility Agent a Resignation Letter. The Agent shall accept a Resignation Letter and notify the Parent and the Lenders of its acceptance if: 24.3.2.1 no Default is continuing or would result from the acceptance of the Resignation Letter (and the Parent has confirmed to the Facility Agent that this is the case); and - 77 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 24.3.2.2 the Borrower is under no actual or contingent obligations as a Borrower under any Finance Documents, whereupon that company shall cease to be a Borrower and shall have no further rights or obligations under the Finance Documents. Additional Guarantors Subject to compliance with the provisions of Clauses 19.7.3 and 19.7.4 of Clause 19.7 (Know your customer checks), the Parent may request that any of its Subsidiaries become an Additional Guarantor. That Subsidiary shall become an Additional Guarantor if: 24.4.1.1 the Parent delivers to the Facility Agent a duly completed and executed Accession Letter; and 24.4.1.2 the Facility Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent. The Facility Agent shall notify the Parent and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part II of Schedule 2 (Conditions precedent). Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in Clause 24.4.2 above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. Repetition of Representations Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating Representations and the representations in Clause 18.3 (Binding obligations), Clause 18.6 (Governing law and enforcement) and Clause 18.20.2 of Clause 18.20 (Sanctions) are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing. Resignation of an Additional Guarantor The Parent may request that a Guarantor (other than an Original Guarantor) ceases to be a Guarantor by delivering to the Facility Agent a Resignation Letter. The Facility Agent shall accept a Resignation Letter and notify the Parent and the Lenders of its acceptance if no Default is continuing and the Parent has confirmed to the Facility Agent that this is the case. 25. ROLE OF THE FACILITY AGENT, THE MANDATED LEAD ARRANGER AND THE REFERENCE BANKS Appointment of the Facility Agent Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
![slide26](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49026.jpg)
- 78 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Each other Finance Party authorises the Facility Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Facility Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions. Instructions The Facility Agent shall: 25.2.1.1 unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Facility Agent in accordance with any instructions given to it by: 25.2.1.1.1 all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and 25.2.1.1.2 in all other cases, the Majority Lenders; and 25.2.1.2 not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with Clause 25.2.1.1 above. The Facility Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion. The Facility Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested. Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Facility Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties. The Facility Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions; In the absence of instructions, the Facility Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders. The Facility Agent is not authorised to act on behalf of a Lender (without first obtaining that Xxxxxx's consent) in any legal or arbitration proceedings relating to any Finance Document. Duties of the Facility Agent The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature. - 79 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Subject to Clause 25.3.3 below, the Facility Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Facility Agent for that Party by any other Party. Without prejudice to Clause 23.7 (Copy of Transfer Certificate or Increase Confirmation to Parent), Clause 25.3.1 above shall not apply to any Transfer Certificate or any Increase Confirmation. Except where a Finance Document specifically provides otherwise, the Facility Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties. If the Facility Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Facility Agent or the Mandated Lead Arranger) under this Agreement it shall promptly notify the other Finance Parties. The Facility Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied). The Facility Agent shall provide to the Parent within 5 (five) Business Days of a request by the Parent (but no more frequently than once per calendar month), a list (which may be in electronic form) setting out the names of the Lenders as at the date of that request, their respective Commitments, the address (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the sending and receipt of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means and the account details of each Lender for any payment to be distributed by the Facility Agent to that Lender under the Finance Documents. Role of the Mandated Lead Arranger Except as specifically provided in the Finance Documents, the Mandated Lead Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document. No fiduciary duties Nothing in any Finance Document constitutes the Facility Agent or the Mandated Lead Arranger as a trustee or fiduciary of any other person. Neither the Facility Agent nor the Mandated Lead Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account. - 80 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Business with the Group The Facility Agent and the Mandated Lead Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any member of the Group. Rights and discretions The Facility Agent may: 25.7.1.1 rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; 25.7.1.2 assume that: 25.7.1.2.1 any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and 25.7.1.2.2 unless it has received notice of revocation, that those instructions have not been revoked; and 25.7.1.3 rely on a certificate from any person: 25.7.1.3.1 as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or 25.7.1.3.2 to the effect that such person approves of any particular dealing, transaction, step, action or thing, as sufficient evidence that that is the case and, in the case of Clause 25.7.1.3.1 above, may assume the truth and accuracy of that certificate. The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: 25.7.2.1 no Default has occurred (unless it has actual knowledge of a Default arising under Clause 22.1 (Non-payment)); 25.7.2.2 any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and 25.7.2.3 any notice or request made by the Parent (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors. The Facility Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts. Without prejudice to the generality of Clause 25.7.3 above or Clause 25.7.5 below, the Facility Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Facility Agent (and so separate from any lawyers instructed by the Lenders) if the Facility Agent in its reasonable opinion deems this to be necessary. - 81 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Facility Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying. The Facility Agent may act in relation to the Finance Documents through its officers, employees and agents. Unless a Finance Document expressly provides otherwise, the Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement. Notwithstanding any other provision of any Finance Document to the contrary, neither the Facility Agent nor the Mandated Lead Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. Notwithstanding any provision of any Finance Document to the contrary, the Facility Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. Without prejudice to the generality of Clause 25.7.8 above, the Facility Agent may disclose the identity of a Defaulting Lender to the other Finance Parties and the Parent and shall disclose the same upon the written request of the Parent or the Majority Lenders. Responsibility for documentation Neither the Facility Agent nor the Mandated Lead Arranger is responsible or liable for: the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, the Mandated Lead Arranger, an Obligor or any other person in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document; or any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise. No duty to monitor The Facility Agent shall not be bound to enquire: whether or not any Default has occurred;
![slide27](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49027.jpg)
- 82 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) as to the performance, default or any breach by any Party of its obligations under any Finance Document; or whether any other event specified in any Finance Document has occurred. Exclusion of liability Without limiting Clause 25.10.2 below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Facility Agent), the Facility Agent will not be liable for: 25.10.1.1 any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct; 25.10.1.2 exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document, other than by reason of its gross negligence or wilful misconduct; or 25.10.1.3 without prejudice to the generality of Clauses 25.10.1.1 and 25.10.1.2 above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of: 25.10.1.3.1 any act, event or circumstance not reasonably within its control; or 25.10.1.3.2 the general risks of investment in, or the holding of assets in, any jurisdiction, including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action. No Party (other than the Facility Agent) may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Facility Agent may rely on this Clause 25.10 subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act. The Facility Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Facility Agent if the Facility Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Facility Agent for that purpose. - 83 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Nothing in this Agreement shall oblige the Facility Agent or the Mandated Lead Arranger to carry out: 25.10.4.1 any “know your customer” or other checks in relation to any person; or 25.10.4.2 any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender, on behalf of any Lender and each Lender confirms to the Facility Agent and the Mandated Lead Arranger that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or the Mandated Lead Arranger. Without prejudice to any provision of any Finance Document excluding or limiting the Facility Agent's liability, any liability of the Facility Agent arising under or in connection with any Finance Document shall be limited to the amount of actual loss which has been suffered (as determined by reference to the date of default of the Facility Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Facility Agent at any time which increase the amount of that loss. In no event shall the Facility Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Facility Agent has been advised of the possibility of such loss or damages. Lenders' indemnity to the Facility Agent Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within 3 (three) Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or willful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 28.11 (Disruption to payment systems etc.), notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document). Resignation of the Facility Agent The Facility Agent may resign and appoint one of its Affiliates acting through an office in South Africa as successor by giving notice to the other Finance Parties and the Parent. Alternatively, the Facility Agent may resign by giving notice to the other Finance Parties and the Parent, in which case the Majority Lenders (after consultation with the Parent) may appoint a successor Facility Agent. - 84 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) If the Majority Lenders have not appointed a successor Facility Agent in accordance with Clause 25.12.2 above within 30 (thirty) days after notice of resignation was given, the Facility Agent (after consultation with the Parent) may appoint a successor Facility Agent. If the Facility Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Facility Agent is entitled to appoint a successor Facility Agent under Clause 25.12.3 above, the Facility Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Facility Agent to become a party to this Agreement as Facility Agent) agree with the proposed successor Facility Agent amendments to this Clause 25 consistent with then current market practice for the appointment and protection of corporate trustees (which shall be determined by reference to the then standard documents published by the Loan Market Association and, to the extent practicable, following consultation by the Facility Agent with the Lenders) and those amendments will bind the Parties. The retiring Facility Agent shall, at its own cost, make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonably request for the purposes of performing its functions as Facility Agent under the Finance Documents. The Facility Agent's resignation notice shall only take effect upon the appointment of a successor. Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under Clause 25.12.5 above) but shall remain entitled to the benefit of Clause 14.3 (Indemnity to the Facility Agent) and this Clause 25 (and any agency fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. After consultation with the Parent, the Majority Lenders may, by notice to the Facility Agent, require it to resign in accordance with Clause 25.12.2 above. In this event, the Facility Agent shall resign in accordance with Clause 25.12.2 above. The Facility Agent shall resign in accordance with Clause 25.12.2 above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Facility Agent pursuant to Clause 25.12.3 above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Facility Agent under the Finance Documents, either: 25.12.9.1 the Facility Agent fails to respond to a request under Clause 12.8 (FATCA Information) and the Parent or a Lender reasonably believes that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; 25.12.9.2 the information supplied by the Facility Agent pursuant to Clause 12.8 (FATCA Information) indicates that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or - 85 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 25.12.9.3 the Facility Agent notifies the Parent and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date, and (in each case) the Parent or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Facility Agent were a FATCA Exempt Party, and the Parent or that Lender, by notice to the Facility Agent, requires it to resign. Replacement of the Facility Agent At any time that the Facility Agent is an Impaired Facility Agent, the Majority Lenders may, by giving notice to the Facility Agent replace the Facility Agent by appointing a successor Facility Agent (acting through an office in the Johannesburg). The retiring Facility Agent shall (at its own cost) make available to the successor Facility Agent such documents and records and provide such assistance as the successor Facility Agent may reasonable request for the purposes of performing its functions as Facility Agent under the Finance Documents. The appointment of the successor Facility Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Facility Agent. As from this date, the retiring Facility Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 25 (and any agency fees for the account of the retiring Facility Agent shall cease to accrue from (and shall be payable on) that date). Any successor Facility Agent and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party. Confidentiality In acting as agent for the Finance Parties, the Facility Agent shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments. If information is received by another division or department of the Facility Agent, it may be treated as confidential to that division or department and the Facility Agent shall not be deemed to have notice of it. Relationship with the Lenders Subject to Clause 23.9 (Pro rata interest settlement), the Facility Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Facility Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office: 25.15.1.1 entitled to or liable for any payment due under any Finance Document on that day; and 25.15.1.2 entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
![slide32](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49032.jpg)
- 102 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 34.6.2.4 in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and 34.6.2.5 the Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 34.6.2.1 above once it is satisfied that it has complied with all necessary know your customer or other similar checks under all applicable laws and regulations in relation to that transfer and the Lender shall perform such know your customer or other similar checks as soon as reasonably practicable following delivery of a notice referred to in Clause 34.6.2.1 above and shall notify the Facility Agent and the Parent when it is satisfied that it has complied with those checks. 35. CONFIDENTIAL INFORMATION Confidentiality Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 35.2 (Disclosure of Confidential Information) and Clause 35.3 (Disclosure to numbering service providers), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information. Disclosure of Confidential Information Any Finance Party may disclose: to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this Clause 35.2 is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information; to any person: 35.2.2.1 to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents or which succeeds (or which may potentially succeed) it as Facility Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers; 35.2.2.2 with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers; - 103 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 35.2.2.3 appointed by any Finance Party or by a person to whom Clauses 35.2.2.1 or 35.2.2.2 above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under Clause 25.15.1 of Clause 25.15 (Relationship with the Lenders)); 35.2.2.4 who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in Clauses 35.2.2.1 or 35.2.2.2 above; 35.2.2.5 to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation; 35.2.2.6 to whom or for whose benefit that Finance Party charges, assigns or otherwise creates any Encumbrance (or may do so) pursuant to Clause 23.8 (Security over Lenders' rights); 35.2.2.7 to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes; 35.2.2.8 who is a Party; or 35.2.2.9 with the consent of the Parent; in each case, such Confidential Information as that Finance Party shall consider appropriate if: 35.2.2.10 in relation to Clauses 35.2.2.1 or 35.2.2.2 and 35.2.2.3 above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; 35.2.2.11 in relation to Clause 35.2.2.4 above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; 35.2.2.12 in relation to Clauses 35.2.2.5, 35.2.2.6 and 35.2.2.7 above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances; to any person appointed by that Finance Party or by a person to whom Clauses 35.2.2.1 or 35.2.2.2 above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this Clause 35.2.3 if the service provider to whom the Confidential Information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking - 104 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Parent and the relevant Finance Party; and to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors. Disclosure to numbering service providers Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information: 35.3.1.1 names of Obligors; 35.3.1.2 country of domicile of Obligors; 35.3.1.3 place of incorporation of Obligors; 35.3.1.4 the Signature Date; 35.3.1.5 the names of the Facility Agent and the Mandated Lead Arranger; 35.3.1.6 date of each amendment and restatement of this Agreement; 35.3.1.7 the amount of, and name of, the Facility; 35.3.1.8 amount of Total Commitments; 35.3.1.9 currency of the Facility; 35.3.1.10 type of Facility; 35.3.1.11 Clause 44 (Governing Law); 35.3.1.12 ranking of Facility; 35.3.1.13 Termination Date for the Facility; 35.3.1.14 changes to any of the information previously supplied pursuant to Clauses 35.3.1.1 to 35.3.1.13 above; and 35.3.1.15 such other information agreed between such Finance Party and the Parent, to enable such numbering service provider to provide its usual syndicated loan numbering identification services. The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider. - 105 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) Each Obligor represents that none of the information set out in Clauses 35.3.1.1 to 35.3.1.15 above is, nor will at any time be, unpublished price-sensitive information. The Facility Agent shall notify the Parent and the other Finance Parties of: 35.3.4.1 the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facility and/or one or more Obligors; and 35.3.4.2 the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider. Entire agreement This Clause 35 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information. Inside Information Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose. Notification of disclosure Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Parent: of the circumstances of any disclosure of Confidential Information made pursuant to Clause 35.2.2.5 of Clause 35.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that Clause during the ordinary course of its supervisory or regulatory function; and upon becoming aware that Confidential Information has been disclosed in breach of this Clause 35. Continuing obligations The obligations in this Clause 35 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 (twelve) Months from the earlier of: 35.7.1.1 the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and 35.7.1.2 the date on which such Finance Party otherwise ceases to be a Finance Party.
![slide34](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49034.jpg)
- 110 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of GOLD FIELDS LIMITED (as Parent) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 111 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of GFI JOINT VENTURE HOLDINGS PROPRIETARY LIMITED (as Original Borrower) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 112 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of GOLD FIELDS OPERATIONS LIMITED (as Original Borrower) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 113 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of GOLD FIELDS LIMITED (as Original Guarantor) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto
![slide35](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49035.jpg)
- 114 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of GFI JOINT VENTURE HOLDINGS PROPRIETARY LIMITED (as Original Guarantor) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 115 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of GOLD FIELDS OPERATIONS LIMITED (as Original Guarantor) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 116 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of GOLD FIELDS HOLDINGS COMPANY LIMITED (as Original Guarantor) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 117 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of GOLD FIELDS OROGEN HOLDING (BVI) LIMITED (as Original Guarantor) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto
![slide36](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49036.jpg)
- 118 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Mandated Lead Arranger) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 119 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Original Lender) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 120 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SIGNED at _________________ on this the _________ day of _____________2023. For and on behalf of FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT BANK DIVISION) (as Facility Agent) ____________________________ Signatory: Capacity: Who warrants his/her authority hereto ____________________________ Signatory: Capacity: Who warrants his/her authority hereto - 121 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SCHEDULE 1 THE ORIGINAL PARTIES THE GUARANTORS Name of Original Guarantors Registration number Gold Fields Limited, incorporated in South Africa 1968/004880/06 Gold Fields Operations Limited, incorporated in South Africa 1959/003209/06 GFI Joint Venture Holdings Proprietary Limited, incorporated in South Africa 1998/023354/07 Gold Fields Holdings Company Limited, continued under the laws of the British Virgin Islands 651406 Gold Fields Orogen Holding (BVI) Limited, incorporated in the British Virgin Islands 184982
![slide37](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49037.jpg)
- 122 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SCHEDULE 2: PART I: CONDITIONS PRECEDENT TO INITIAL UTILISATION 1. Obligors 1.1 A copy of the Constitutional Documents of each Obligor. 1.2 A copy of a good standing certificate with respect to GF Holdings and GF Orogen, issued as of a recent date by the Registrar of Corporate Affairs in the British Virgin Islands. 1.3 A copy of a resolution of the board of directors (and, if necessary under the laws of its jurisdiction of incorporation, the shareholders): 1.3.1 of each Obligor: 1.3.1.1 approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party; 1.3.1.2 authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and 1.3.1.3 authorising a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or dispatched by it under or in connection with the Finance Documents to which it is a party; and 1.3.2 in terms of a South African Obligor: 1.3.2.1 a copy of a resolution of the board of directors: 1.3.2.1.1 confirming, in accordance with the provisions of section 45(3)(b)(i) of the Companies Act, that the board of directors of that South African Obligor is satisfied that, immediately after providing any direct or indirect financial assistance to be provided by that South African Obligor pursuant to any of the Finance Documents to which it is a party, that South African Obligor would satisfy the solvency and liquidity test (as defined in the Companies Act); 1.3.2.1.2 confirming, in accordance with the provisions of section 45(3)(b)(ii) of the Companies Act, that the board of directors of that South African Obligor are satisfied that the terms under which any direct or indirect financial assistance pursuant to any of the Finance Documents to which it is a party proposed to be given by that South African Obligor are fair and reasonable to that South African Obligor; 1.3.2.1.3 confirming, for the purposes of section 45(4) of the Companies Act, that the conditions or restrictions (if any) in respect of granting any direct or indirect financial assistance by that South African Obligor pursuant to any of the Finance Documents to which it is a party set out in its constitutional documents have been satisfied; and - 123 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 1.3.2.1.4 complying with the requirements of section 46 of the Companies Act in connection with any “distribution” (as defined in the Companies Act) that may arise as a result of its entry into the Finance Documents to which it is a party; and 1.3.2.2 a copy of a special resolution of the shareholders of that South African Obligor approving, in accordance with section 45(3)(a)(ii) of the Companies Act, any financial assistance to be granted by that South African Obligor pursuant to sections 45(2) of the Companies Act under the Finance Documents to which it is a party. 1.3.3 A specimen of the signature of each person authorised by the resolution referred to in paragraph 1.3 above. 1.3.4 A certificate of incumbency from the registered agent for GF Holdings and GF Orogen. 1.3.5 A copy of the resolution of the shareholders of GF Holdings and GF Orogen approving the relevant resolutions of the board of directors and the transactions contemplated thereby. 1.3.6 A certificate of the Obligors (signed by a director) confirming that, as at the CP Satisfaction Date, borrowing or guaranteeing, as appropriate, the Total Commitments and any and all accrued interest would not cause any borrowing, guaranteeing or similar limit binding on any Obligor to be exceeded and that in respect of that South African Obligor the requirements of section 45 of the Companies Act have been complied with and each certificate shall have annexed to it the copies of the relevant resolutions, notices and statements. 1.3.7 A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Part I of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the Signature Date. 2. Finance Documents 2.1 A duly executed original of each of the following: 2.1.1 this Agreement; and 2.1.2 the Fee Letter. 3. Legal opinions 3.1 A legal opinion of Xxxxxxx Xxxx & Xxxxxxx, legal advisers to the Original Borrowers and Original Guarantors in the British Virgin Islands, substantially in the form distributed to the Original Lender prior to the CP Satisfaction Date. 3.2 A legal opinion by Xxxxxx Xxxxxxx, legal advisors to the South African Obligors in South Africa, substantially in the form distributed to the Original Lender prior to the CP Satisfaction Date. 3.3 A legal opinion of Xxxxxx Xxxxxxxxx Inc., legal advisors to the Mandated Lead Arranger and the Facility Agent in South Africa, substantially in the form distributed to the Original Lender prior to the CP Satisfaction Date. - 124 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 4. Other documents and evidence 4.1 The Original Financial Statements for the Parent. 4.2 Evidence that the fees then due from the Original Borrowers pursuant to Clause 11 (Fees) have been paid or will be paid by the first Utilisation Date (it being agreed that the Parent shall be able to satisfy this condition precedent by authorising the Facility Agent to deduct these from the proceeds of the first Utilisation). 4.3 Such documentation and other evidence as is reasonably requested by the Original Lender (for itself or on behalf of any other Finance Party) in order for the Original Lender to carry out and be satisfied that it has complied with all necessary "know your customer" or similar identification procedures under applicable laws and regulations (including the Financial Intelligence Centre Act, 2001) pursuant to the transactions contemplated in the Finance Documents. - 125 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) PART II: CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL BORROWER 1. An Accession Letter, duly executed by the Additional Borrower and the Parent. 2. A copy of a good standing certificate with respect to any Additional Borrower incorporated in the British Virgin Islands, issued as of a recent date by the Registrar of Corporate Affairs in the British Virgin Islands. 3. A copy of the Constitutional Documents of the Additional Borrower. 4. A copy of a resolution of the board of directors (and, if necessary under the laws of its jurisdiction of incorporation, the shareholders) of the Additional Borrower: 4.1 approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter; 4.2 authorising a specified person or persons to execute the Accession Letter on its behalf; and 4.3 authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including, in relation to an Additional Borrower, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents. 5. A specimen of the signature of each person authorised by the resolution referred to in paragraph 4 above. 6. A certificate of incumbency from the registered agent of each Additional Borrower incorporated in the British Virgin Islands. 7. If appropriate, a certificate of the Additional Borrower (signed by a director) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded and that in respect of each Additional Borrower to whom the Companies Act applies the requirements of Section 45 of such Companies Act have been complied with and each certificate shall have annexed to it the copies of the relevant resolutions, notices and statements. 8. A certificate of an authorised signatory of the Additional Borrower certifying that each copy document listed in this Part II of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter. 9. A copy of any other authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document. 10. If appropriate, a copy of the approval of the Financial Surveillance Department of the South African Reserve Bank confirming that the Additional Borrower may enter into and provide the guarantee as contemplated by this Agreement and that the Additional Borrower may enter into and implement the provisions of this Agreement. If such approval is granted conditionally, this condition precedent shall not be considered to have been fulfilled, unless both the Lenders and the Additional Borrower acknowledge in writing to each other that such conditions are acceptable.
![slide38](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49038.jpg)
- 126 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 11. If available, the latest audited financial statements of the Additional Borrower. 12. A legal opinion from legal advisers to the Facility Agent in South Africa. 13. If the Additional Borrower is incorporated in a jurisdiction other than South Africa, a legal opinion of the legal advisers to the Mandated Lead Arranger and the Facility Agent in the jurisdiction in which the Additional Borrower is incorporated. - 127 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) PART III: CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL GUARANTOR 1. An Accession Letter, duly executed by the Additional Guarantor and the Parent. 2. A copy of the Constitutional Documents of the Additional Guarantor. 3. A copy of a good standing certificate with respect to any Additional Guarantor incorporated in the British Virgin Islands, issued as of a recent date by the Registrar of Corporate Affairs in the British Virgin Islands. 4. A copy of a resolution of the board of directors (and, if necessary under the laws of its jurisdiction of incorporation, the shareholders) of the Additional Guarantor: 4.1 approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter; 4.2 authorising a specified person or persons to execute the Accession Letter on its behalf; and 4.3 authorising a specified person or persons, on its behalf, to sign and/or dispatch all other documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents. 5. A specimen of the signature of each person authorised by the resolution referred to in paragraph 4 above. 6. A certificate of incumbency from the registered agent of each Additional Guarantor incorporated in the British Virgin Islands. 7. A copy of a resolution signed by all the holders of the issued shares of the Additional Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Additional Guarantor is a party. 8. A certificate of the Additional Guarantor (signed by a director) confirming that guaranteeing the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded and that in respect of each Additional Guarantor to whom the Companies Act applies the requirements of section 45 of such Companies Act have been complied with and each certificate shall have annexed to it the copies of the relevant resolutions, notices and statements. 9. A certificate of an authorised signatory of the Additional Guarantor certifying that each copy document listed in this Part III of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter. 10. A copy of any other authorisation or other document, opinion or assurance which the Facility Agent considers to be necessary or desirable in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document. 11. If available, the latest audited financial statements of the Additional Guarantor. 12. A legal opinion from legal advisers to the Facility Agent in South Africa. - 128 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) 13. If the Additional Guarantor is incorporated in a jurisdiction other than South Africa, a legal opinion of the legal advisers to the Facility Agent in the jurisdiction in which the Additional Guarantor is incorporated. 14. A copy of the approval of the Financial Surveillance Department of the South African Reserve Bank confirming that any Additional Guarantor incorporated in South Africa may enter into and provide the guarantees as contemplated by this Agreement and that the Additional Guarantor may enter into and implement the provisions of this Agreement. If such approval is granted conditionally, this condition precedent shall not be considered to have been fulfilled, unless both the Lenders and the Additional Guarantor acknowledge in writing to each other that such conditions are acceptable. - 129 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SCHEDULE 3 UTILISATION REQUEST From: [The Borrower] To: [●] as Facility Agent Dated: Dear Sirs GFI Joint Venture Holdings Proprietary Limited and Gold Fields Operations Limited – ZAR1,000,000,000 Revolving Credit Facility Agreement dated ___________ 2023 (the Agreement) 1. We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request. 2. We wish to borrow a Loan on the following terms: Proposed Utilisation Date: [●] (or, if that is not a Business Day, the next Business Day) Currency of Loan: ZAR Amount: [●], if less the Available Facility Interest Period: [●] 3. We confirm that each condition specified in Clause 4.2 (Further conditions precedent) of the Agreement is satisfied on the date of this Utilisation Request. 4. The proceeds of this Loan should be credited to [account]. 5. The proceeds of this Loan shall be applied as contemplated in Clause 3.1.1 (Purpose) of the Agreement. 6. This Utilisation Request is irrevocable. Yours faithfully _______________________ authorised signatory for [name of relevant Borrower]
![slide39](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49039.jpg)
- 130 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SCHEDULE 4 FORM OF TRANSFER CERTIFICATE To: [●] as Facility Agent From: [The Existing Lender] (the Existing Lender) and [The New Lender] (the New Lender) Dated: GFI Joint Venture Holdings Proprietary Limited and Gold Fields Operations Limited – ZAR1,000,000,000 Revolving Credit Facilities Agreement dated ___________ 2023 (the Agreement) 1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate. 2. We refer to Clause 23.6 (Procedure for transfer) of the Agreement. 2.1 The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by cession and delegation all or part of the Existing Xxxxxx's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 23.6 (Procedure for transfer) of the Agreement. 2.2 The proposed Transfer Date is [●]. 2.3 The Facility Office and address, email address and attention details for notices of the New Lender for the purposes of Clause 30.2 (Addresses) of the Agreement are set out in the Schedule. 3. The New Lender expressly acknowledges the limitations on the Existing Xxxxxx's obligations set out in Clause 23.5.3 of Clause 23.5 (Limitation of responsibility of Existing Lenders) of the Agreement. 4. The New Lender agrees that it shall assume the same obligations towards each other Finance Party under the Finance Documents as if it had been an Original Lender. 5. The New Lender confirms, for the benefit of the Facility Agent and without liability to any Obligor, that it is: 5.1 [not a Qualifying Lender;] 5.2 [a Qualifying Lender (other than a Treaty Lender);] 5.3 [a Treaty Lender.] 6. This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate. 7. This Transfer Certificate, and any non-contractual obligations arising out of or in connection with it, is governed by South African. - 131 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) THE SCHEDULE Commitment/rights and obligations to be transferred [insert relevant details] [Facility Office address, email address and attention details for notices and account details for payments,] [Existing Lender] [New Lender] By: By: This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [●]. [Facility Agent] By: - 132 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SCHEDULE 5 FORM OF ACCESSION LETTER To: [●] as Facility Agent From: [Subsidiary] and Gold Fields Limited Dated: Dear Sirs GFI Joint Venture Holdings Proprietary Limited and Gold Fields Operations Limited – ZAR1,000,000,000 Revolving Credit Facilities Agreement dated ___________ 2023 (the Agreement) 1. We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter. 2. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to be bound by the terms of the Agreement as an Additional [Borrower]/[Guarantor] pursuant to Clause 24.2 [(Additional Borrowers)]/[24.4 (Additional Guarantors)] of the Agreement. [Subsidiary] is a wholly owned Subsidiary of the Parent duly incorporated under the laws of [name of relevant jurisdiction]. 3. [Specify purpose of the Loan]. 4. [Subsidiary's] administrative details are as follows: Address: Email Address: Attention: 5. This Accession Letter, and any non-contractual obligations arising out of or in connection with it, is governed by South African law. [This Accession Letter has been executed as a deed by [Xxxxxxxxxx] and is delivered on the date stated above.] Gold Fields Limited [Subsidiary] By: _______________________ By: ____________________ - 133 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) SCHEDULE 6 FORM OF RESIGNATION LETTER To: [●] as Facility Agent From: [resigning Obligor] and Gold Fields Limited Dated: Dear Sirs GFI Joint Venture Holdings Proprietary Limited and Gold Fields Operations Limited – ZAR1,000,000,000 Revolving Credit Facilities Agreement dated ___________ 2023 (the Agreement) 1. We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Accession Letter. 2. Pursuant to [Clause 24.3 (Resignation of an Additional Borrower)]/[Clause 24.6 (Resignation of an Additional Guarantor)] of the Agreement, we request that [resigning Obligor] be released from its obligations as a [Borrower]/[Guarantor] under the Agreement. 3. We confirm that no Default is continuing or would result from the acceptance of this request. 4. This Resignation Letter, and any non-contractual obligations arising out of or in connection with it, is governed by South African law. Gold Fields Limited [Subsidiary] By: _______________________ By: ____________________
![slide42](https://www.sec.gov/Archives/edgar/data/1172724/000117272424000014/exhibit49042.jpg)
- 142 - conformed copy Gold Fields RCF Agreement_Revised Execution II(14711163.2) THE SCHEDULE [Relevant Commitment/rights and obligations to be assumed by the Increase Lender [insert relevant details] [Facility Office address, email address and attention details for notices and account details for payments] [Increase Lender] By: This Increase Confirmation is accepted by the Facility Agent and the Increase Date is confirmed as [●]. Facility Agent By: