EXHIBIT 4.80
FACILITY A LOAN AGREEMENT
BETWEEN
INVESTEC BANK (MAURITIUS) LIMITED
(as the "Lender")
AND
DRD (ISLE OF MAN) LIMITED
(as the "Borrower")
FACILITY A LOAN AGREEMENT EXECUTION COPY
CONTENTS
1. DEFINITIONS........................................................ 3
2. INCONSISTENCY...................................................... 6
3. CONDITIONS......................................................... 6
4. FACILITY........................................................... 6
5. PURPOSE............................................................ 6
5.1 NON GENERAL OFFER............................................. 7
5.2 GENERAL OFFER................................................. 7
5.3 RIGHTS OFFER.................................................. 7
5.4 OTHER......................................................... 7
6. CONDITIONS PRECEDENT TO DRAWDOWNS.................................. 7
7. DRAWDOWNS.......................................................... 8
8. INTEREST........................................................... 9
8.1 INTEREST PERIODS.............................................. 10
8.2 ACCRUAL AND RATE OF INTEREST.................................. 10
8.3 PAYMENT OF INTEREST........................................... 11
8.4 MISCELLANEOUS................................................. 11
9. REPAYMENT OF CAPITAL............................................... 11
10. CANCELLATION....................................................... 12
11. COMMITMENT AND DRAWDOWN FEES....................................... 13
11.1 COMMITMENT FEE................................................ 13
11.2 DRAWDOWN FEE.................................................. 14
12. PREPAYMENTS........................................................ 14
12.1 VOLUNTARY PREPAYMENTS......................................... 14
12.2 MANDATORY PREPAYMENTS......................................... 14
13. CHANGES TO THE CALCULATION OF INTEREST............................. 15
13.1 ABSENCE OF QUOTATIONS......................................... 15
13.2 MARKET DISRUPTION............................................. 15
APPENDIX 1............................................................. 19
DRAWING NOTICE......................................................... 19
APPENDIX 2............................................................. 20
CONDITIONS PRECEDENT TO AN ADVANCE..................................... 20
APPENDIX 3............................................................. 22
CAPITAL REPAYMENTS..................................................... 22
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FACILITY A LOAN AGREEMENT
1. DEFINITIONS
Unless otherwise expressly stated, or the context otherwise requires, the
words and expressions listed below shall, when used in this Agreement,
including this introduction, bear the meanings ascribed to them:
1.1 "Advance" means each principal/capital amount made available to the
Borrower under this Agreement by way of loan;
1.2 "Agreement" means mean this Facility A Agreement together with all
Appendices hereto, as read and implemented together with the CTA;
1.3 "Availability Period" means the availability period for this
Facility A, being a period of 36 months calculated from Financial
Closing;
1.4 "Available Facility" means the maximum aggregate principal amount of
this Facility mentioned in clause 4 less the aggregate of all
Advances made under this Agreement, adjusted, in the case of any
proposed Advance, so as to take into account:
1.4.1 any Advance, which pursuant to any other drawdown, is to be
made;
1.4.2 any Advance which has been repaid,
on or before the proposed Drawing Date of such proposed Advance;
1.5 "Bank Costs" means the costs to the Lender from time to time of
maintaining or funding this Facility A pursuant to any applicable
regulatory or other applicable law (including without limitation
thereto, any stamp duty as well as costs incurred in order to comply
with any reserve cash ratio, special deposit, liquidity, capital
adequacy requirements or any other similar requirements), expressed
as a nominal annual compounded quarterly in arrears rate, and a
certificate given by a manager of the said bank (whose appointment
and designation need not be proved) of the amount of such costs
and/or the amount of such rate shall be prima facie proof of its
contents;
1.6 "Capital Repayment Date" means those dates named as such and as set
out in Appendix 3, as inserted into this Agreement by the Lender on
or about the first Drawing Date, and amended from time to time by
the Lender in accordance with clause 9;
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1.7 "CTA" means the written Common Terms Agreement so entitled between
the Borrower and the Lender, and entered into between them on or
about 13 October 2004;
1.8 "Distributions" means any payment by or on behalf of the Borrower to
or for the account of the Shareholder or any person which controls
or is controlled by the Shareholder, such payments to include but
not be limited to dividends, payments on loan account, and payments
due to the Shareholder being any other form of creditor;
1.9 "Drawing Date" means the business day upon which any Advance is made
or to be made in terms of this Agreement, as the context may
require;
1.10 "Drawing Notice" means a notice as envisaged in clause 7 below, duly
completed and signed by the Borrower in the form of Appendix 1;
1.11 "Facility A" means this facility denominated in US Dollars, the
terms and conditions of which are set out in this Agreement;
1.12 "Final Repayment Date" means the date which is exactly 36 months
from the Drawing Date of the first Advance;
1.13 "General Offer" means an offer made to the general body of
shareholders in a Target, which offer is required by the rules of
all the recognised stock exchanges on which those shares are traded,
due to the Borrower wishing to acquire shares of the Target in
excess of a threshold stipulated by that exchange;
1.14 "Interest Payment Date" means the last day of the Interest Period in
which such interest accrued;
1.15 "Interest Period" means each period determined in accordance with
clause 8.1 in respect of this Facility, for the purpose of
calculating interest on Advances or overdue amounts;
1.16 "Interest Rate" in relation to each Interest Period, means the rate
per annum determined by the Lender to be the aggregate of:-
1.16.1 the Margin; and
1.16.2 LIBOR for the Interest Period,
which aggregate, subject to clause 13 below and clauses 41 and 42 of
the CTA, includes the Lender's recovery of Bank Costs in the amount
determined as at Financial Closing;
1.17 "LIBOR" means in relation to any amount owed by the Borrower
hereunder on which interest for a given period is to accrue:
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1.17.1 the arithmetic mean, rounded upward to the nearest four
decimal places of the rates for deposits in US Dollars for a
period and an amount similar to the relevant amount and
period in respect of which the interest is being calculated
on the Quotation Date, which is published on the Reuters page
LIBOR01 page (or such other page or service as may replace it
for the purpose of displaying London interbank offered rates
of prime banks for deposits in such currency) at or about
11h00 London time on the Quotation Date; or
1.17.2 if no quotation for US Dollars is displayed for the relevant
period, the arithmetic mean (rounded upwards to four decimal
places) of the rates quoted to the Lender by the Reference
Banks in the London Interbank Market for deposits in US
Dollars for such period at or about 11h00 on the Quotation
Date for such period;
1.18 "Loan Principal A" means:-
1.18.1 in respect of any period, the aggregate, in that period, of
Advances made under this Agreement, and,
1.18.2 in respect of any date, the aggregate amount of the Advances
under this Agreements on that date,
which have not been paid by the Borrower to the Lender;
1.19 "Margin" means 3,00%, a nominal annual compounded quarterly rate;
1.20 "next" means coming immediately after the present one in time or
order;
1.21 "Quotation Date" means the day two business days before the first
day of the Interest Period for which an Interest Rate is to be
determined in accordance with clause 8.1, and if such day is not a
business day then the first preceding business day to that day shall
be used;
1.22 "Reference Banks" the principal London offices of any three banks,
chosen by the Lender, who contributed at some time during the then
recent past to the rate fixing shown on the Reuters page LIBO (or
such other page as may replace it from time to time);
1.23 "Repeating Warranties" means the warranties listed in Appendix 2 of
the CTA;
1.24 "Signature Date" means the date on which the last party signed this
Agreement.
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2. INCONSISTENCY
2.1 This Agreement and the rights and obligations of the parties hereto,
save for the definitions contained in clause 1 hereof, shall in all
respects be subject to the terms and conditions of the CTA. Unless
other wise expressly stated, in the event of any conflict between
the provisions of this Agreement and the CTA, the inconsistency
shall be resolved in favour of the CTA to the extent of the
inconsistency.
2.2 Unless inconsistent with the context, any word or expression used in
this Agreement and not otherwise defined in this Agreement, shall
have the meaning ascribed to it in the CTA.
3. CONDITIONS
3.1 This Facility A shall not be made available until the Lender has
notified the Borrower pursuant to clause 13.2 [Conditions] of the
CTA that all the conditions precedent referred to in clauses 13.1.1
to 13.1.3 thereof have been fulfilled or waived.
3.2 The obligation of the Lenders to make any Advance is subject (in
addition to the satisfaction of the Conditions Precedent referred to
in 3.1 above) to the satisfaction of the Lender that the specific
conditions referred to in clause 6 below have been met or waived and
that a Draw Stop Notice which has been issued in terms of clause
36.5 [Draw Stop Notices] of the CTA or clause 6, has been withdrawn.
4. FACILITY
4.1 Subject to the terms and conditions of this Agreement, the Lender
agrees to make available to the Borrower a senior term loan facility
for a maximum aggregate principal amount of USD 15 million (the
"Facility A Amount").
4.2 The Facility A Amount shall be subject to regular annual review
between the parties, and it shall also be so reviewed should the
Secured Assets be extended to include Stakes in Targets acquired by
the Borrower pursuant to clause 3 of Appendix 5 to the CTA.
5. PURPOSE
Drawdowns may be requested and Advances made under this Agreement only
during the Availability Period and only to finance the expenditure of the
Borrower in respect of the following:
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5.1 NON GENERAL OFFER
This Facility A may be used to fund the purchase by the Borrower of
a Stake in Targets, other than by way of a General Offer.
5.2 GENERAL OFFER
An Advance under this Facility A and an Advance under the Facility B
Loan Agreement (if so agreed) may be used to support a General Offer
to the shareholder of the Target, (whether such General Offer is in
the form of cash or a cash alternative to a scrip offer), provided
that prior to any such Advance hereunder the Lender and the Borrower
have agreed in writing to the conditions of the General Offer.
5.3 RIGHTS OFFER
This Facility A may used to enable the Borrower to exercise its
rights by underwriting and/or subscribing for Stakes in Targets
pursuant to rights offers made by such Targets.
5.4 OTHER
This Facility A may be used for any other purpose with the prior
written consent of the Lender.
6. CONDITIONS PRECEDENT TO DRAWDOWNS
6.1 The obligation of the Lender to make any Advance under this
Agreement is subject to the Lender having received the requisite
Drawing Notice and being satisfied on each Drawing Date of the
specific conditions provided for in Appendix 2.
6.2 The Lender shall be entitled to -
6.2.1 extend the relevant period for fulfilment of any or all of the
conditions; and
6.2.2 waive fulfilment of any or all of the conditions.
The conditions contained in clause 6.1 are expressed to be for the
sole benefit of the Lender.
6.3 The Lender shall, within 3 business days of receipt of the requisite
Drawing Notice notify the Borrower whether or not it is satisfied
that the conditions precedents referred to in clause 6.1 above have
been fulfilled or waived and such conditions shall only be
considered to have been fulfilled or waived when such notice is
given.
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6.4 Draw Stop
In the event that the conditions provided for in Appendix 2 have not
been fulfilled or waived, the Lender's obligations under this
Agreement to honour any Drawing Notice or make any Advance shall be
suspended.
7. DRAWDOWNS
7.1 Subject to the provisions of this Agreement and to the specific
conditions precedent referred to in clause 6 of this Agreement, this
Agreement may be drawn down in whole or in part during the
Availability Period and an Advance will be made by the Lender to the
Borrower provided that:-
7.1.1 No later than 11 a.m. (Mauritius time) on the fifth business
day prior to the proposed Drawing Date, the Lender has
received a completed Drawing Notice signed by the Borrower;
and
7.1.2 Subject to the provisions of 7.7, the first Drawing Date
specified for this Agreement is a date which occurs no later
than 31 December 2004; and
7.1.3 The proposed date for the making of such Advance is a Business
Day within the Availability Period but not within the last
three months of the Availability Period; and
7.1.4 No more than two Advances will be made by the Lender to the
Borrower during any 1 (One) calendar month (for this 7.1.4, a
calendar month being a period extending from the first to the
last day, both days inclusive, of any one of the 12 months of
the year); and
7.1.5 the proposed amount of the Advance is:-
7.1.5.1 if less than the Available Facility an amount in
multiples of USD 100 000,00 (one hundred thousand)
with a minimum amount of USD 500 000,00 (five hundred
thousand); or
7.1.5.2 equal to the amount of the Available Facility; and
7.1.6 A letter signed by the Borrower and confirming that the
conditions to draw down referred to in Appendix 2 of this
Agreement have been met, is attached to the Drawing Notice;
and
7.1.7 None of the events mentioned in clause 13.3 (market
disruption) shall have occurred; and
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7.1.8 On and as of the proposed date for the making of the Advance:-
7.1.8.1 No Event of Default or Potential Event of Default is
continuing; and
7.1.8.2 The Repeating Warranties are true in all material
respects.
7.2 All requests for Advances shall be denominated in US Dollars.
7.3 The Lender may validly act on all information, instructions and
requests contained in the Drawdown Notice, without any liability or
responsibility to verify or check the accuracy of such information.
7.4 In the event of the provisions of clause 7.1 not being complied with
the Lender may issue a Draw Stop Notice and furnish a copy thereof
to the Borrower.
7.5 Subject to the issue of a Draw Stop Notice, a Drawing Notice shall
be irrevocable and, unless otherwise provided for in this Agreement,
the Borrower shall draw the Advance on the Drawing Date specified in
the Drawing Notice and, subject to the terms of this Agreement, the
Lender shall be obliged to make the relevant Advance on such date.
7.6 All Advances drawn under this Facility shall, in the absence of an
express written agreement between the Borrower and the Lender to the
contrary or if this Agreement provides to the contrary, be paid
directly to the Proceeds Account on the relevant Drawing Date.
7.7 If the first drawdown under this Agreement does not occur within 6
months of Financial Closing, this Agreement shall, in the sole
discretion of the Lender, be cancelled.
7.8 Any amounts available but undrawn under this Agreement at the end of
the Availability Period shall automatically be cancelled.
7.9 The Lender shall be entitled in its discretion to deduct the
commitment and facility fees due and payable in terms of clause 11
and any other costs or charges due and payable by the Borrower to
the Lender from each Advance. Upon deduction the Lender shall
deliver to the Borrower a VAT invoice from the Lender in respect of
the commitment and/or facility fees or other costs and charges
deducted.
8. INTEREST
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8.1 INTEREST PERIODS
The following provisions shall apply to the Interest Periods for
each Advance:
8.1.1 subject to clause 8.1.3 below, each Interest Period shall be 3
months (as defined in clause 2.51 of the CTA);
8.1.2 the first Interest Period shall commence on the date on which
the an Advance is made and each successive Interest Period
shall commence on the last day of the previous one;
8.1.3 the Lender may at any time upon 7 business days' prior written
notice to Borrower reduce any Interest Period by such period
as the Lender may determine, provided that the Lender will
only do so in order to match the Interest Periods with the
interest periods in respect of the other Advances made in
terms of this Agreement;
8.1.4 the last Interest Period shall end on the Facility Discharge
Date;
8.1.5 any Interest Period which would otherwise end on a non-
business day, shall end on the next succeeding business day or
if that business day falls in the next calendar month of the
year, on the preceding business day.
8.2 ACCRUAL AND RATE OF INTEREST
8.2.1 Interest in terms of this Agreement shall accrue on each
Advance at the Interest Rate, from the Drawing Date of each
Advance until the amount is repaid by the Borrower.
8.2.2 Interest under this Agreement shall:-
8.2.2.1 accrue from day to day on the Loan Principal A
(without double accounting in terms of clause 8.2.1)
and at the Interest Rate then applicable to the
Interest Period in question;
8.2.2.2 be calculated on the daily balance of the Loan
Principal A in accordance with clause 46.3 of the CTA;
8.2.2.3 each Interest Period shall have its own Interest Rate
which shall be calculated on the Quotation Date.
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8.3 PAYMENT OF INTEREST
The interest referred to in 8.2 shall be payable in arrears on the
Interest Payment Date in respect of the relevant Interest Period.
The first Interest Payment Date shall be on the last day of the
first Interest Period, and interest shall be paid for each and every
Interest Period.
8.4 MISCELLANEOUS
The Lender shall from time to time notify Borrower of:
8.4.1 the rate of interest (together with details of the calculation
thereof), as soon as it is determined under this Agreement;
and
8.4.2 the amount of interest payable under this Agreement on each
Interest Payment Date (together with details of the
calculation thereof), no earlier than 9 and no later than 3
Business Days prior to such Interest Payment Date;
provided that the Lender shall not be liable to Borrower in respect
of any failure so to notify Borrower and that Borrower shall not as
a result of any such failure be relieved of any of its obligations
hereunder.
9. REPAYMENT OF CAPITAL
9.1 The Borrower shall pay the Loan Principal A to the Lender as
follows:-
9.1.1 Each Advance shall be repaid in equal instalments every three
months from the Drawing Date of that Advance so that the
amount of the Advance is paid in full to the Lender by the
Final Repayment Date. The final instalment of each and every
Advance shall be paid on the Final Repayment Date,
notwithstanding that the period between the previous Capital
Repayment Date and the Final Repayment Date may be less than
three months.
9.1.2 All obligations in respect of this Facility A (both capital
and interest) shall be settled in full by no later than the
Final Repayment Date.
9.1.3 All payments to the Lender shall be made in US Dollars and
shall be made from the Debt Service Account, as stated in the
CTA. To the extent that the Debt Service Account has
insufficient funds in it to meet any obligation due and
payable to the Lender, then any payments made by the Borrower
to meet that insufficiency shall be made into an account
designated by the Lender. For the avoidance of doubt, it is
recorded that a shortfall in the Debt Service Account shall
not excuse the
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Borrower from making payment of amounts due to the Borrower.
9.2 The Lender shall from time to time notify the Borrower of the
Capital Repayment Dates of each Advance and the amount of each
repayment of capital of that Advance to be paid on each such day, by
providing the Borrower with an amended Appendix 3 (amended in
accordance with the provisions of this clause 9). The Lender shall
not be liable to the Borrower in respect of any failure so to notify
the Borrower and that the Borrower shall not as a result of any such
failure be relieved of any of its obligations hereunder. The first
such Appendix 3 shall be compiled by the Lender and shall be
appended to this Agreement after the Drawing Date of the first
Advance hereunder.
9.3 The provisions of clause 46.4 (certificates) of the CTA shall apply
to Appendix 3 as provided by the Lender from time to time.
9.4 Any capital amount paid or prepaid by the Borrower under this
Agreement shall be available to be drawn again by the Borrower in
compliance with the terms and conditions of clause 7.
9.5 Notwithstanding the aforegoing or any provisions to the contrary in
any Finance Document:-
9.5.1 If the Lender is of the reasonable opinion that the ability of
the Secured Assets to provide revenue to the Borrower to
service the payment of capital or interest under this
Agreement (whether such capital or interest is due or payable
or not) is impaired or prejudiced or lessened in value for any
reason, the Lender may upon notice to the Borrower claim
immediate payment by the Borrower of all amounts (including,
without limitation, all principal, interest, costs, charges,
Breakage Costs) owing (whether due or payable or not) by the
Borrower to the Lender, all of which shall be and become
forthwith due and payable;
9.5.2 upon giving the notice mentioned in clause 9.5.1, any undrawn
part of this Facility A shall then automatically be cancelled
and the Borrower shall, on demand, pay to the Lender, the
amount of any Breakage Costs occasioned by such cancellation;
and
9.5.3 once the amount mentioned in clause 9.5.1 is repaid, it shall
not be available to be drawn again by the Borrower.
10. CANCELLATION
10.1 The Borrower shall not be entitled to cancel any part of this
Facility A otherwise than as specifically provided in this
Agreement.
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10.2 The Borrower may cancel the undrawn part of this Facility A in
respect of which no Drawing Notice has been served, without penalty,
in whole or in part, at any time provided that:
10.2.1 the Borrower shall, on demand, make payment of any Breakage
Costs; and
10.2.2 the Borrower has given the Lender not less than 5 (five)
Business Days' notice stating the principal amount to be
cancelled.
10.3 During the 5 (five) day period referred to in clause 10.2.2 above
the Borrower may not serve a Drawing Notice purporting to draw all
or any part of the amount which is the subject of such notice of
cancellation.
10.4 Any amounts available but not drawn down under this Facility A at
the end of the Availability Period shall automatically be cancelled
and the Borrower shall, on demand, pay to the Lender the amount of
any Breakage Costs occasioned by such cancellation.
10.5 Any cancellation notice served under clause 10.2.2 above shall be
irrevocable. No amount cancelled under this clause 10 shall again be
available for drawing, save as stated in clause 10.6
10.6 The Borrower shall be entitled to request of the Lender that any
amount of this Facility A which has been cancelled, be re-activated
again so that it again becomes available for drawing on the terms
and conditions stated in this Agreement. The Lender shall notify the
Borrower should it agree to this request, it being recorded that
decision to grant such consent shall be in the Lender's sole
discretion.
11. COMMITMENT AND DRAWDOWN FEES
11.1 COMMITMENT FEE
11.1.1 During the Availability Period, the Borrower shall pay to the
Lender for the account of the Lender a commitment fee which
shall be:
11.1.1.1 calculated from the Signature Date, on a 360 day year
and on the basis of actual days elapsed, , at the
rate of 1.25% per annum of the daily undrawn and
uncancelled balance of this Facility A; and
11.1.1.2 be paid quarterly in arrears- that is on the first
day of each and every January, April, July and
October for so long as this fee is due, with the
first payment
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being made at the end of the first quarter following
the Signature Date.
11.1.2 The Commitment Fee shall not be payable in respect of any
part of this Facility A which is cancelled in terms of clause
10, but shall be payable again if any part of the Facility A
is re-activated in terms of clause 10.6.
11.2 DRAWDOWN FEE
On the Drawing Date of each Advance, the Borrower shall pay to the
Lender, for the account of the Lender, a drawdown fee equal to 1% of
the amount drawn (or irrevocably committed by the Lender).
12. PREPAYMENTS
12.1 VOLUNTARY PREPAYMENTS
12.1.1 The Borrower may elect to prepay the whole or any portion of
the Loan Principal A provided that:
12.1.1.1 The Borrower shall notify the Lender of its proposed
prepayment no later than ten business days prior to
the proposed prepayment date;
12.1.1.2 Such prepayment shall be effected in a minimum
principal amount of USD one million;
12.1.1.3 All interest accrued (whether or not then due and
payable) in respect of the capital/principal amount
prepaid shall than become due and payable and shall
be paid together with the capital/principal amount
prepaid;
12.1.1.4 Such prepayments shall be applied to reduce the Loan
Principal A in inverse order of maturity.
12.1.2 Any notice of prepayment given by the Borrower pursuant to
clause 12.1.1 immediately above shall be irrevocable and
shall specify the proposed prepayment date and the amount of
such prepayment.
12.2 MANDATORY PREPAYMENTS
12.2.1 Should the Borrower intend to make any Distributions:-
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12.2.1.1 The Borrower shall immediately inform the Lender
thereof and the amount of the Distributions to be
made;
12.2.1.2 The Lender shall be entitled to require the Borrower
on notice, as a prepayment of a portion of the Loan
Principal A, to pay to it an amount equal to 50% of
the said Distributions, such amount to be paid on
the same day as the said Distributions or if the
Lender's aforesaid notice is given after such
payment date, on demand.
12.2.2 Payments to the Lender under this clause 12.2 shall have the
same effect as if made pursuant to clause 12.1.
13. CHANGES TO THE CALCULATION OF INTEREST
13.1 ABSENCE OF QUOTATIONS
Subject to clause 13.2 (Market disruption), if LIBOR is to be
determined by reference to the Reference Banks but a Reference Bank
does not supply a quotation by the time specified in clause 1.17 on
the Quotation Day, the applicable LIBOR shall be determined on the
basis of the quotations of the remaining Reference Banks.
13.2 MARKET DISRUPTION
13.2.1 In this Agreement "Market Disruption Event" means:
13.2.1.1 At or about 11:00 am, London time, on the Quotation
Day for the relevant Interest Period LIBOR is not
available on the Reuters page LIBOR01 page (or such
other page or service as may replace it for the
purpose of displaying London interbank offered rates
of prime banks for deposits in such currency) and
none or only one of the Reference Banks supplies a
rate to the Lender to determine LIBOR for dollars
for the relevant Interest Period; or
13.2.1.2 Before close of business in London on the Quotation
Day for the relevant Interest Period, the Lender
discovers that:-
13.2.1.2.1 the cost to it of obtaining matching
deposits in the London interbank market
be in excess of LIBOR; or
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13.2.1.2.2 matching deposits in Dollars are not in
the ordinary course of business available
to the Lender in the London inter-bank
market for a period equal to the
forthcoming Interest Period, in amounts
sufficient to fund its participation in
the Loan Principal A and/or the
forthcoming Advance.
13.3 If a Market Disruption Event occurs in relation to the loan advanced
in terms of this Agreement for any Interest Period, then
13.3.1 the Lender shall notify the Borrower of such event and such
proposed Advance and any further Advances shall not be made;
13.3.2 the Rate of Interest on the Loan Principal A for the Interest
Period shall be (notwithstanding any provision to the
contrary) the rate (expressed as a nacq rate) which is the
aggregate of:-
13.3.2.1 The Margin (inclusive of Bank Costs); and
13.3.2.2 The rate notified to the Borrower by the Lender as
soon as is practicable and in any event before
interest is due to be paid in respect of that
Interest Period, to be that which expresses as a
percentage rate per annum the cost to the Lender of
funding that Advance and/or the Loan Principal A
from whatever source it may reasonably select;
13.3.3 the parties shall proceed to resolve the matter in terms of
clause 13.4 or clause 13.5, if they so require.
13.4 If the Lender or the Borrower so requires, the Lender and the
Borrower shall enter into negotiations with a view to agreeing a
substitute basis for determining the rates of interest payable for
that Interest Period. Any such substitute basis that is so agreed
shall take effect in accordance with its terms and be binding on the
parties.
13.5 If the Lender and the Borrower fail to agree a substitute basis as
mentioned in clause 13.4, within 25 days of them being so required
to do, then if the Borrower gives the Lender not less than 10 (ten)
business days' notice (which notice shall be irrevocable) it may
prepay:-
13.5.1 any amount of the Loan Principal A without premium or penalty
at any time during that Interest Period;
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FACILITY A LOAN AGREEMENT EXECUTION COPY
13.5.2 together with accrued interest thereon at a rate equal to
that mentioned in clause 13.3.2.2; and
13.5.3 together with any Breakage Costs attributable to all or any
part of the Loan Principal A being paid by the Borrower on a
day other than the last day of an Interest Payment Date.
13.6 The Lender shall as soon as reasonably practicable provide a
certificate confirming the amount of its Breakage Costs for any
Interest Period in which they accrue.
Signed at on 2004 at _______ am/pm
_________________________________
INVESTEC BANK (MAURITIUS) LIMITED
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FACILITY A LOAN AGREEMENT EXECUTION COPY
Signed at on 2004 at _______ am/pm
------------------------------------------
DRD (ISLE OF MAN) LIMITED
Signed by [ ] , a director,duly authorised for and on behalf of DRD (Isle of
Man) Limited.
As Witness: _______________________
_______________________ (name)
Signed at on 2004 at _______ am/pm
------------------------------------------
DRD (ISLE OF MAN) LIMITED
Signed by [ ] , a director,duly authorised for and on behalf of DRD (Isle of
Man) Limited.
As Witness: _______________________
________________________ (name)
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APPENDIX 1 EXCUTION COPY
APPENDIX 1
DRAWING NOTICE
To: *_____________________________
Date: *_____________________________
Dear Sirs
Re:- Facility A Loan Agreement dated on or about _____________ 2004 between the
Lender and DRD (Isle Of Man) Limited (the "Agreement") Drawing Number*________.
1. We refer to clause 7 [Drawdowns] of the Agreement. Terms defined in the
Agreement have the same meanings in this Drawing Notice.
2. We confirm that:
2.1 on ________ (Drawing Date) we wish to borrow an Advance in the
amount of [=].
2.2 all Advances are to be paid into the Proceeds Account;
2.3 the proceeds of the Advance drawn pursuant to this Drawing Notice
shall be applied exclusively in accordance with the terms of the
Agreement and in particular (but without limitation) the terms of
clause 5 thereof;
2.4 on the date of this Drawing Notice, on the Drawing Date and
immediately after the making of the Advance to which this Drawing
Notice relates, the conditions precedent to drawdowns as specified
in clause 6 of the Agreement have been satisfied; and
2.5 we have received the Lender's notice in terms of clause 5.2 of
Appendix 2 of the Facility A Loan Agreement.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[the Borrower]
Attachment 1 Supporting evidence that the provisions of clause 7 of the
Agreement have been complied with;
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APPENDIX 2 EXCUTION COPY
APPENDIX 2
CONDITIONS PRECEDENT TO AN ADVANCE
The following conditions precedent shall apply to drawdown on this Facility.
1. DRAWING NOTICE
The Lender shall have received the relevant Drawing Notice in respect of
an Advance in accordance with this Agreement.
2. NO DEFAULT
On both the date of the Drawing Notice and the Drawing Date of the Advance
neither -
2.1 an Event of Default nor
2.2 a Potential Event of Default
shall have occurred, be continuing or in the reasonable opinion of the
Lender could probably occur as a result of making such advance.
3. WARRANTIES
On both the date of the Drawing Notice and the Drawing Date of the
relevant Advance, the Repeating Warranties shall be correct, in each case,
in all material respects with reference to the circumstances prevailing at
the relevant time.
4. OTHER EVENTS STOPPING PAYMENTS
No Draw Stop Notice has been issued by the Lender in terms of clause 6.4
of this Agreement above which is in effect and has not been withdrawn,
and, no other event has occurred under any Finance Document which, in the
opinion of the Lender, has resulted or may result in any payment or
drawdown under any Finance Document being stopped.
5. INFORMATION REGARDING THE TARGET
5.1 The Borrower shall at least 7 business days prior to the delivery of
the Drawing Notice in respect of the Advance, provide the Lender
with details, in form and substance satisfactory to the Lender, of
the geography, geology/mineralisation, mining operation and
economics of the Target in respect of which the funds of the Advance
will be used to acquire a Stake therein; and
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5.2 The Lender has issued a notice to the Borrower that it is satisfied,
in its sole discretion, that the funds can be used for such purpose.
6. CONSENT TO A GENERAL OFFER
Prior to an Advance being made, wholly or partly, for the purpose
mentioned in clause 5.2 (General Offer), the Lender must have agreed in
writing to the conditions of the General Offer.
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APPENDIX 2 EXCUTION COPY
APPENDIX 3
CAPITAL REPAYMENTS
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