DATE 1 JULY 2014 SECOND AMENDMENT AGREEMENT TO A TERM LOAN FACILITY AGREEMENT ORIGINALLY DATED 17 APRIL 2014 amongst SOUTHGOLD EXPLORATION PROPRIETARY LIMITED (as Borrower) and THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 (as Original Lenders) and...
Exhibit 4.29
EXECUTION
1 JULY 2014
DATE 1 JULY 2014
SECOND AMENDMENT AGREEMENT TO A
TERM LOAN FACILITY AGREEMENT
ORIGINALLY DATED 17 APRIL 2014
amongst
SOUTHGOLD EXPLORATION PROPRIETARY LIMITED
(as Borrower)
and
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
(as Original Lenders)
and
CREDIT SUISSE AG
(as Facility Agent)
and
CREDIT SUISSE AG
(as Security Agent)
STANDARD CHARTERED BANK
(as Parallel Debt Agent)
and
PURPLE RAIN SECURITY SPV (RF) PROPRIETARY LIMITED
(as Security SPV)
CONTENTS
| 1. | DEFINITIONS AND INTERPRETATION | 1 | ||
| 2. | AMENDMENT TO THE DEED OF NOVATION | 2 | ||
| 3. | MISCELLANEOUS | 5 | ||
| 4. | GOVERNING LAW | 5 |
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PARTIES:
THIS AGREEMENT (the Second Amendment Agreement) is dated 30 June 2014 and is made among:
| (1) | SOUTHGOLD EXPLORATION PROPRIETARY LIMITED, a private company incorporated under the laws of South Africa, with registration number 2000/016129/07, as borrower (Southgold or the Borrower); |
| (2) | THE FINANCIAL INSTITUTIONS listed in Schedule 1 (Original Lenders), as lenders (in this capacity, each an Original Lender); |
| (3) | CREDIT SUISSE AG, of Xxxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx as facility agent of the Finance Parties (in this capacity, the Facility Agent); |
| (4) | CREDIT SUISSE AG, of Xxxxxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx as facility agent of the Finance Parties (in this capacity, the Security Agent); |
| (5) | STANDARD CHARTERED BANK (in this capacity as Parallel Debt Agent); and |
| (6) | PURPLE RAIN SECURITY SPV (RF) PROPRIETARY LIMITED a private company incorporated under the laws of South Africa, with registration number 2010/007093/07 and registered office at 5th Floor, The Terraces, 00 Xxxxxx Xxxx, Xxxxxxxxx 0000 (the Security SPV). |
BACKGROUND
| A. | The Parties entered into a term loan facility agreement dated 17 April 2014 pursuant to which the Original Lenders agreed to make available to the Borrower a term loan facility in an aggregate principal amount of US$178,100,000 (one hundred and seventy eight million one hundred thousand dollars) to be read together with an amendment agreement dated 25 June 2014 (the First Amendment Agreement) (the Term Facility Agreement). |
| B. | By this Second Amendment Agreement, the Parties have agreed to amend the Term Loan Facility Agreement. |
IT IS AGREED AS FOLLOWS:
| 1. | DEFINITIONS AND INTERPRETATION |
| 1.1. | Definitions |
Unless the contrary intention appears, terms defined in the Term Loan Facility Agreement or the Transaction Implementation Agreement, as applicable, shall have the same meaning when used in this Second Amendment Agreement.
| 1.2. | Interpretation |
The provisions of clauses 1.2 and 1.3 of the Term Loan Facility Agreement shall also apply to this Second Amendment Agreement as if set out in this Second Amendment Agreement, but with all necessary modifications.
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| 1.3. | Finance Document |
This Second Amendment Agreement is a Finance Document.
| 2. | AMENDMENT TO THE TERM LOAN FACILITY AGREEMENT |
| 2.1. | Amendments |
| 2.1.1. | With effect from the date hereof, the Term Loan Facility Agreement shall be amended so that: |
| 2.1.1.1. | the letters and number “US$184,000,000” contained in Recital J of the Term Loan Facility Agreement shall be deleted and replaced with the following: |
“US$178,059,427.51 (One Hundred and Seventy Eight Million Fifty Nine Thousand Four Hundred and Twenty Seven Dollars and Fifty One Cents)”
| 2.1.1.2. | the letters and number “US$184,000,000” contained in clause 1.1.233 of the Term Loan Facility Agreement shall be deleted and replaced with the following: |
“US$178,059,427.51 (One Hundred and Seventy Eight Milion Fifty Nine Thousand Four Hundred and Twenty Seven Dollars and Fifty One Cents)”;
| 2.1.1.3. | clause 1.1 (Definitions) of the Term Loan Facility Agreement shall be amended by inserting new definitions as follows: |
| 2.1.1.3.1. | “1.1.11 Approved Refunds means any refunds in respect of sums recouped by Southgold which sums were funded by the Original Lenders while Southgold was in Business Rescue Proceedings, which sums the Parties agree in writing to designate as Approved Refunds; |
| 2.1.1.3.2. | 1.1.24 BRP Refunds means any refunds in respect of sums paid to Southgold by the BRP pursuant to the provisions of a letter of undertaking entered into by the BRP, the Facility Agent and Southgold on 26 June 2014 (the BRP Refund Undertaking); |
| 2.1.1.3.3. | 1.1.134 JPM Retainer Fee Refunds means any refunds in respect of sums paid to Southgold by X X Xxxxxx Xxxxx Bank, N.A., Johannesburg Branch pursuant to the provisions of a letter of undertaking entered into between X X Xxxxxx Chase Bank, N.A., Johannesburg Branch and Southgold on 24 June 2014 (the JPM Retainer Fee Undertaking); |
| 2.1.1.3.4. | 1.1.200 Refund means any Approved Refunds, BRP Fee Refunds, JPM Retainer Fee Refunds, Xxxxxx Xxxxxxx Fee Refunds, Wits Gold Refunds and/or VAT Refunds; |
| 2.1.1.3.5. | 1.1.247 Xxxxxx Xxxxxxx Fee Refunds means any refunds in respect of sums paid to Southgold by Xxxxxx Xxxxxxx pursuant to the provisions of letters of undertaking entered into by Xxxxxx Xxxxxxx and Southgold on 20 June 2014 and 26 June 2014 respectively, (both letters read together, the Xxxxxx Xxxxxxx Fee Refund Undertaking); and |
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| 2.1.1.4. | 1.1.248 Wits Gold Refunds means any refund in respect of sums paid by Xxxxxx Xxxxxxx (in its capacity as South African Escrow Agent) to Wits Gold pursuant to clause 9.4 of the South African Escrow Agreement and paid by Wits Gold to Southgold pursuant to a letter of undertaking by Wits Gold to Southgold on or about 26 June 2014 (“the Wits Gold Undertaking”);” |
| 2.1.1.5. | A new clause 6.10 (Refunds) shall be inserted in the Term Loan Facility Agreement as follows: |
| “6.10 | Refunds |
| 6.10.1 | Immediately upon receipt by the Borrower of any Refund, the Borrower shall promptly notify the Facility Agent. |
| 6.10.2 | Within 3 (three) Business Days of the provision of the notice referred to in clause 6.10.1, the Borrower shall pay to the Facility Agent the full proceeds of any Refund. |
| 6.10.3 | For the avoidance of doubt, no Refund shall form part of nor be construed as forming part of Free Cash, and no payment of a Refund to the Facility Agent shall be applied in prepayment of any of Facilities A1, A2, A3 or A4.” |
| 2.1.1.5.1. | A new clause 6.11 (Amendments to Undertakings) shall be inserted in the Term Loan Facility Agreement as follows: |
| “6.11 | Amendments to Undertakings |
Southgold agrees that none of the BRP Refund Undertaking, JPM Retainer Fee Undertaking, the Xxxxxx Xxxxxxx Fee Refund Undertaking or the Wits Gold Undertaking shall be amended without the prior written consent of the Lenders.”
| 2.1.1.6. | Clause 7.2.2 shall be deleted in its entirety. |
| 2.1.1.7. | A new clause 21 (Borrower Cession in Security) shall be inserted in the Term Loan Facility Agreement as follows: |
| “21 | Amendments to Undertakings |
| 21.1 | The Parties shall use all reasonable endeavours to obtain the written consent of the Standard Bank of South Africa Limited to the entry by the parties into the Borrower Cession in Security in respect of the Proceeds Account and creation of the security cession pursuant thereto within 30 (thirty) days of the Transaction Implementation Date (the Initial Period). |
| 21.2 | In the event that the written consent of the Standard Bank of South Africa Limited is not obtained on or before the expiry of the Initial Period, the Parties shall use all reasonable endeavours to open a substitute Proceeds Account at another bank to be agreed, within 60 (sixty) days of the last day of the Initial Period. A failure to open such substitute Proceeds Account within such additional period shall constitute an Event of Default.” |
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| 2.1.2. | the table contained at Schedule 1 (Original Lenders) of the Term Loan Facility Agreement is deleted in its entirety and replaced with: |
| “ |
| Name of |
Facility A1 Commitment (US$) |
Facility A2 Commitment (US$) |
Facility A3 Commitment (US$) |
Facility A4 Commitment (US$) |
Total Commitments (US$) |
|||||||||||||||
| Credit Suisse AG |
87,003.54 | 3,892,710.22 | 25,500,000 | 59,999,965.50 | 89,029,713.76 | |||||||||||||||
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| Standard Chartered Bank |
87,003.54 | 3,892,710.21 | 25,500,000 | 59,100,034.50 | 89,029,713.74 | |||||||||||||||
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| Total |
174,007.08 | 7,785,420.43 | 51,000,000 | 119,100,000 | 178,059,427.51 | |||||||||||||||
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”
| 2.1.3. | the letters and number “US$184,100,000” contained in Schedule 2 (Form of Transfer Certificate) of the Term Loan Facility Agreement in the heading of such form shall be deleted and replaced with the following: |
| “US$178,059,427.51 (One Hundred and Seventy Eight Milion Fifty Nine Thousand Four Hundred and Twenty Seven Dollars and Fifty One Cents)”; |
| 2.2. | Continuity |
| 2.2.1. | The Parties agree that: |
| 2.2.1.1. | the provisions of the Term Loan Facility Agreement shall, save as amended hereby, continue in full force and effect; and |
| 2.2.1.2. | any reference to the Term Loan Facility Agreement in any of the Finance Documents shall be a reference to the Term Loan Facility Agreement as amended pursuant to this Amendment Agreement. |
| 3. | REPRESENTATIONS AND WARRANTIES |
| 3.1. | Each Party represents and warrants to and for the benefit of each other Party that: |
| 3.1.1. | it is duly incorporated and validly existing under the laws of its place of incorporation and has the power to own its property and assets and carry on its business; |
| 3.1.2. | it has the power and capacity to enter into and comply with its obligations under this Amendment Agreement; |
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| 3.1.3. | subject to the Legal Reservations, this Amendment Agreement constitutes its legal, valid, binding and enforceable obligations, and the entry into and performance of the transactions contemplated by this Amendment Agreement does not conflict with: |
| 3.1.3.1. | any law or regulation or its constitutional documents; or |
| 3.1.3.2. | any document binding on it which would have a material adverse effect on the enforceability of this Amendment Agreement; and |
| 3.1.4. | it has taken all necessary action to authorise the entry into and compliance with its obligations under this Amendment Agreement, to ensure that its obligations under this Amendment Agreement are valid, binding and enforceable in accordance with their terms and, subject to the Legal Reservations, to make this Amendment Agreement admissible in evidence in the courts of its jurisdiction of incorporation. |
| 4. | FURTHER ASSURANCE |
The Borrower shall, at the request of the Lenders and at its own expense, do all such acts and things necessary or desirable to give effect to the amendments made or to be made pursuant to this Amendment Agreement.
| 5. | MISCELLANEOUS |
The provisions of clause 1.3 (Third Party Rights), clause 14 (Costs and expenses), clause 33 (Notices), clause 34 (Partial Invalidity), clause 36 (Remedies and Waivers), clause 37 (Amendments and Waivers), clause 38 (Counterparts), clause 39 (Governing Law), clause 40 (Enforcement) of the Term Loan Facility Agreement shall apply to this Amendment Agreement as if set out in this Amendment Agreement, but as if references in those clauses to the Term Loan Facility Agreement were references to this Amendment Agreement.
| 6. | GOVERNING LAW |
This Amendment Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
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SIGNATURES
Borrower
EXECUTED by:
SOUTHGOLD EXPLORATION
PROPRIETARY LIMITED
Acting by:
| /s/ P.F. VAN DEN XXXXX |
| Name: P.F. VAN DEN XXXXX |
| Title: BRP |
Prior to Effective Date:
| Physical Address: | Xxxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxxx, 0000, Xxxxx Xxxxxx | |
| Postal Address: | P O Xxx 00000, Xxxxxxx, 0000 Xxxxx Xxxxxx | |
| Attention: | The Chief Executive Officer | |
| Fax: | x00 (0)00 0000 000 | |
| With a copy to (which shall not constitute notice): | ||
| Address: | XxXxxxxx, Suite 1500 - 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0 | |
| Attention: | Xxxxxx Xxxxxxxxx / Great Basin Responsible Partner | |
| Fax: | x000 (000) 000 0000 | |
After Effective Date:
| Physical Address: | Xxxxxxx Xxxxxxxx Xxxx, 0 Xxxxxxxx Xxxx (off Cedar Avenue), Libanon, Westonaria, 1779 | |
| Postal Address: | Xxxxx Xxxxxx | |
| Attention: | The Chief Executive Officer | |
| Fax: | x00 (0)00 000 0000 | |
Lender
EXECUTED by:
CREDIT SUISSE AG
Acting by:
| /s/ Xxxxxx Xxxxx |
/s/ Xxxxxxx Xxxxx | |||
| Name: Xxxxxx Xxxxx | Name: Xxxxxxx Xxxxx | |||
| Title: Director | Title: Managing Director |
| Address: | Xxxxxxxxxxxxxxxxxx 00, 0000 Xxxxxx Xxxxxxxxxxx | |
| Attention: | Xxxxxx Xxxxx | |
| Telephone: | x00 00 000 00 00 | |
| Fax: | x00 00 000 00 00 | |
| Email: | xxxxxxxxx.xxxxx@xxxxxx-xxxxxx.xxx /
Xxxxxx.xxxxx@xxxxxx-xxxxxx.xxx | |
Lender
EXECUTED by:
STANDARD CHARTERED BANK
Acting by:
| /s/ Xxxxxx Xxxx |
/s/ Xxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxx | Name: Xxxxx Xxxxxx | |||
| Title: Senior Manager | Title: Finance Manager |
| Address: | 0 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx | |
| Attention: | Xxxx Xxxxxx / Xxxx Xxxx | |
| Telephone: | x00 00 0000 0000 / x00 00 0000 0000 | |
| Fax: | x00 00 0000 0000 | |
| Email: | xxxx.xxxxxx@xx.xxx / Xxxx.Xxxx@xx.xxx | |
Facility Agent
EXECUTED by:
CREDIT SUISSE AG
Acting by:
| /s/ Xxxxxx Xxxxx |
/s/ Xxxxxxx Xxxxx | |||
| Name: Xxxxxx Xxxxx | Name: Xxxxxxx Xxxxx | |||
| Title: Director | Title: Managing Director |
| Address: | Xxxxxxxxxxxxxxxxxx 00, 0000 Xxxxxx Xxxxxxxxxxx | |
| Attention: | Xxxxxx Xxxxx | |
| Telephone: | x00 00 000 00 00 | |
| Fax: | x00 00 000 00 00 | |
| Email: | xxxxxxxxx.xxxxx@xxxxxx-xxxxxx.xxx /
Xxxxxx.xxxxx@xxxxxx-xxxxxx.xxx | |
Security Agent
EXECUTED by:
CREDIT SUISSE AG
Acting by:
| /s/ Xxxxxx Xxxxx |
/s/ Xxxxxxx Xxxxx | |||
| Name: Xxxxxx Xxxxx | Name: Xxxxxxx Xxxxx | |||
| Title: Director | Title: Managing Director |
| Address: | Xxxxxxxxxxxxxxxxxx 00, 0000 Xxxxxx Xxxxxxxxxxx | |
| Attention: | Xxxxxx Xxxxx | |
| Telephone: | x00 00 000 00 00 | |
| Fax: | x00 00 000 00 00 | |
| Email: | xxxxxxxxx.xxxxx@xxxxxx-xxxxxx.xxx /
Xxxxxx.xxxxx@xxxxxx-xxxxxx.xxx | |
Parallel Debt Agent
EXECUTED by:
STANDARD CHARTERED BANK
Acting by:
| /s/ Xxxxxx Xxxx |
/s/ Xxxxx Xxxxxx | |||
| Name: Xxxxxx Xxxx | Name: Xxxxx Xxxxxx | |||
| Title: Senior Manager | Title: Finance Manager |
| Address: | 5th Floor, No. 0 Xxxxxxx Xxxxxx Xxxxxxxx,
Xxxxxxx, 0000, Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxx | |
| Attention: | Xxxxxx Xxxxx Xxxxx | |
| Telephone: | x00 00 000 0000 / x00 00 000 0000 | |
| Fax: | x00 (0)00 000 0000 | |
| Email: | Xxxxxx.XxxxxXxxxx@xx.xxx | |
Security SPV
EXECUTED by:
PURPLE RAIN SECURITY SPV (RF)
PROPRIETARY LIMITED
Acting by:
| /s/ X. Xxxx-Xxxxxxxxx |
| |||
| Name: X. Xxxx-Xxxxxxxxx | Name: | |||
| Title: Director | Title: |
| Address: | GMG Trust Company, 3rd Floor, 200 on Main, Xxx Xxxx xxx Xxxxxxx Xxxxx, Xxxxxxxxx 0000 | |
| Xxxxxxxxx: | Managing Director | |
| Telephone: | x00 00 000 0000 | |
| Fax: | 000 000 0000 | |
| Email: | xxxxxx@xxxxxxxx.xx.xx | |
