FIRST ADDENDUM TO THE TERM AND REVOLVING CREDIT FACILITIES AGREEMENT SIBANYE GOLD LIMITED arranged by BANK OF CHINA LIMITED JOHANNESBURG BRANCH FIRSTRAND BANK LIMITED (acting through its Rand Merchant Bank division) NEDBANK LIMITED (acting through its...
Exhibit 4.10
Execution Version
FIRST ADDENDUM TO THE TERM AND REVOLVING CREDIT FACILITIES AGREEMENT
SIBANYE GOLD LIMITED
arranged by
BANK OF CHINA LIMITED JOHANNESBURG BRANCH
FIRSTRAND BANK LIMITED (acting through its Rand Merchant Bank division)
NEDBANK LIMITED
(acting through its Nedbank Capital and Nedbank Corporate divisions)
as Mandated Lead Arrangers
and
ABSA BANK LIMITED (acting through its Corporate and Investment Banking Division)
INVESTEC BANK LIMITED (acting through its Corporate and Institutional Banking Division)
JPMORGAN CHASE BANK, N.A., JOHANNESBURG BRANCH
THE STANDARD BANK OF SOUTH AFRICA LIMITED (acting through its Corporate and
Investment Banking division)
as Co-Arrangers
with
NEDBANK LIMITED
(acting through its Nedbank Capital division)
as Facility Agent
and
THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1
as Lenders
and
OPICONSIVIA TRADING 305 (RF) PROPRIETARY LIMITED
as Debt Guarantor
CONTENTS
| 1. |
DEFINITIONS AND INTERPRETATION |
3 | ||||
| 2. |
AMENDMENTS EFFECTIVE ON THE SIGNATURE DATE |
3 | ||||
| 3. |
SAVINGS |
3 | ||||
| 4. |
VARIATION |
3 | ||||
| 5. |
COUNTERPARTS |
4 | ||||
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PARTIES:
This Agreement is made between:
| (1) | SIBANYE GOLD LIMITED as Original Borrower; |
| (2) | BANK OF CHINA LIMITED JOHANNESBURG BRANCH, FIRSTRAND BANK LIMITED (acting through its Rand Merchant Bank division) and NEDBANK LIMITED (acting through its Nedbank Capital and Nedbank Corporate divisions) as mandated lead arrangers (the Mandated Lead Arrangers); |
| (3) | ABSA BANK LIMITED (acting through its Corporate and Investment Banking Division), INVESTEC BANK LIMITED (acting through its Corporate and Institutional Banking Division), JPMORGAN CHASE BANK, N.A., JOHANNESBURG BRANCH and THE STANDARD BANK OF SOUTH AFRICA LIMITED (acting through its Corporate and Investment Banking division), as co-arrangers (the Co-Arrangers); |
| (4) | NEDBANK LIMITED (acting through its Nedbank Capital division) as agent of the other Finance Parties (the Facility Agent); |
| (5) | THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Lenders) as lenders (the Lenders); and |
| (6) | OPICONSIVIA TRADING 305 (RF) PROPRIETARY LIMITED (as Debt Guarantor). |
WHEREAS
| A. | Reference is made to the ZAR R4,500,000,000 Term and Revolving Credit Facilities Agreement concluded between the Original Borrower, Arrangers, Lenders, Facility Agent and the Debt Guarantor on or about 10 December 2013 (the Term and Revolving Credit Facilities Agreement). |
| B. | The Parties wish to amend the Term and Revolving Credit Facilities Agreement, on the terms and subject to the conditions of this Addendum, to extend the period within which the Driefontein Mortgage Bond and the Driefontein Special Notarial Bond are to be registered. |
| C. | Unless otherwise defined in this Addendum, terms and expressions defined in the Term and Revolving Credit Facilities Agreement have the same meaning in this Addendum. |
| D. | The provisions of clauses 1 (Definitions and Interpretation), 30 (Notices), 32 (Partial Invalidity), 33 (Remedies and waivers), 34 (Amendments and Waivers), 35 (Confidentiality) 40 (Sole Agreement), 41 (No implied Terms), 42 (Extensions and Waivers), 43 (Independent Advice) and 44 (Governing Law and Jurisdiction) of the Term and Revolving Credit Facilities Agreement apply to this Addendum, mutatis mutandis, as if set out in this Addendum in full. |
IT IS AGREED AS FOLLOWS:
| 1. | DEFINITIONS AND INTERPRETATION |
| 1.1. | Definitions |
For the purposes of this Addendum and the preamble above, unless the context requires otherwise:
| 1.1.1. | Addendum means this First Addendum to the Term and Revolving Credit Facilities Agreement and its Schedule; |
| 1.1.2. | Parties means parties to the Term and Revolving Credit Facilities Agreement, and Party means, as the context requires, any one of them; and |
| 1.1.3. | Signature Date means the signature date of this Addendum by the last Party signing in time. |
| 2. | AMENDMENTS EFFECTIVE ON THE SIGNATURE DATE |
With effect from the Signature Date, the Term and Revolving Credit Facilities Agreement shall be amended by the substitution of:
| 2.1. | Clause 21.20 with the following: |
| “21.20 | Driefontein Mortgage Bond and Driefontein Special Notarial Bond |
The Original Borrower shall ensure that the Driefontein Mortgage Bond and the Driefontein Special Notarial Bond are registered at the applicable Deeds Registry within 5(five) Months from the Effective Date.”; and
| 2.2. | Clause 22.16.3 with the following: |
| “22.16.3 | the Driefontein Mortgage Bond and/or the Driefontein Special Notarial Bond are not registered at the applicable Deeds Registry within 5 (five) Months from the Effective Date.”. |
| 3. | SAVINGS |
| 3.1. | Save to the extent expressly set out in this Addendum the terms of the Term and Revolving Credit Facilities Agreement shall remain unaltered and of full force and effect. |
| 3.2. | The Parties record that the amendment to the Term and Revolving Credit Facilities Agreement as provided for in this Addendum shall not (and is in no way intended to) constitute a novation by any of the Parties of the agreement recorded in the Term and Revolving Credit Facilities Agreement. |
| 4. | VARIATION |
No agreement to vary, add to or cancel this Addendum shall be of any force or effect unless reduced to writing and signed by or on behalf of the Parties.
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| 5. | COUNTERPARTS |
This Addendum may be executed in any number of counterparts and by different Parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement.
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SIGNED at WESTONARIA on this the 13th day of MARCH 2014.
| For and on behalf of |
| SIBANYE GOLD LIMITED |
| (as Original Borrower) |
| /s/ Xxxxx Xxxxxx |
| Signatory: Xxxxx Xxxxxx |
| Capacity: CFO |
| Who warrants his authority hereto |
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SIGNED at JOHANNESBURG on this the 13th day of MARCH 2014.
| For and on behalf of |
| BANK OF CHINA LIMITED |
| JOHANNESBURG BRANCH (as Original |
| Lender and Mandated Lead Arranger) |
| /s/ Feng Li |
| Signatory: Feng Li |
| Capacity: Executive Vice President |
| Who warrants his authority hereto |
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SIGNED at SANDTON on this the 13th day of MARCH 2014.
| For and on behalf of |
| FIRSTRAND BANK LIMITED (acting through its RAND MERCHANT BANK division) |
| (as Original Lender and Mandated Lead Arrangers) |
| /s/ M Mofokeng |
| Signatory: M Mofokeng |
| Capacity: Authorised Signatory |
| Who warrants his authority hereto |
| /s/ W Xxxxxxx |
| Signatory: W Xxxxxxx |
| Capacity: Authorised Signatory |
| Who warrants his authority hereto |
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SIGNED at SANDTON on this the 13th day of MARCH 2014.
| For and on behalf of |
| NEDBANK LIMITED (acting through its Nedbank Capital division) |
| (as Facility Agent, Original Lender and Mandated Lead Arranger) |
| /s/ G I Xxxxxx |
| Signatory: G I Xxxxxx |
| Capacity: Authorised Signatory |
| Who warrants his authority hereto |
| /s/ P A Van Kerckhoven |
| Signatory: P A Van Kerckhoven |
| Capacity: Authorised Signatory |
| Who warrants his authority hereto |
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SIGNED at SANDTON on this the 13th day of MARCH 2014.
| For and on behalf of |
| NEDBANK LIMITED (acting through its Nedbank Corporate division) |
| (as Original Lender and Mandated Lead Arranger) |
| /s/ A Xxxxx |
| Signatory: A Xxxxx |
| Capacity: Authorised Signatory |
| Who warrants his authority hereto |
| /s/ M Steenkamp |
| Signatory: M Steenkamp |
| Capacity: Authorised Signatory |
| Who warrants his authority hereto |
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SIGNED at SANDTON on this the 13th day of MARCH 2014.
| For and on behalf of |
| ABSA BANK LIMITED (acting through its Corporate and Investment Banking Division) |
| (as Original Lender and Co-Arranger) |
| /s/ A Chetty |
| Signatory: A Chetty |
| Capacity: Principal |
| Who warrants his authority hereto |
| /s/ G Berkenbosch |
| Signatory: G Berkenbosch |
| Capacity: Principal |
| Who warrants his authority hereto |
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SIGNED at SANDTON on this the 13th day of MARCH 2014.
| For and on behalf of |
| INVESTEC BANK LIMITED (acting through its Corporate and Institutional Banking Division) (as Original Lender and Co-Arranger) |
| /s/ X X Xxx Xxxxxx |
| Signatory: X X Xxx Xxxxxx |
| Capacity: Authorised Signatory |
| Who warrants his authority hereto |
| /s/ P Ford |
| Signatory: P Ford |
| Capacity: Authorised Signatory |
| Who warrants his authority hereto |
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SIGNED at LONDON on this the 13th day of MARCH 2014.
| For and on behalf of |
| JPMORGAN CHASE BANK, N.A., |
| JOHANNESBURG BRANCH |
| (as Original Lender and Co-Arranger) |
| /s/ M Xxxxxx |
| Signatory: M Xxxxxx |
| Capacity: Managing Director |
| Who warrants his authority hereto |
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SIGNED at ROSEBANK on this the 13th day of MARCH 2014.
| For and on behalf of |
| THE STANDARD BANK OF SOUTH AFRICA LIMITED (acting through its CORPORATE AND INVESTMENT BANKING division) |
| (as Original Lender and Co-Arranger) |
| /s/ Z Sarang |
| Signatory: Z Sarang |
| Capacity: Executive Vice President |
| Who warrants his authority hereto |
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SIGNED at CAPE TOWN on this the 13th day of MARCH 2014.
| For and on behalf of |
| OPICONSIVIA TRADING 305 (RF) |
| PROPRIETARY LIMITED (as Debt Guarantor) |
| /s/ T Xxxx-Xxxxxxxxx |
| Signatory: T Xxxx-Xxxxxxxxx |
| Capacity: Director |
| Who warrants his authority hereto |
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SCHEDULE 1
THE ORIGINAL LENDERS
Part I: The Original Facility A Lenders
| ABSA Bank Limited (acting through its Corporate and Investment Banking Division) | A public company and registered bank duly incorporated under the laws of South Africa, with registration number 1986/004794/06 | |
| Bank of China Limited Johannesburg Branch | An external company and registered bank duly incorporated in accordance with the laws of South Africa, with registration number 2000/008434/10 | |
| FirstRand Bank Limited (acting through its Rand Merchant Bank division) | A public company and registered bank duly incorporated under the laws of South Africa, with registration number 1929/001225/06 | |
| Investec Bank Limited (acting through its Corporate and Institutional Banking Division) | A public company and registered bank duly incorporated under the laws of South Africa, with registration number 1969/004763/06 | |
| JPMorgan Chase Bank, N.A., Johannesburg Branch | An external company and registered bank duly incorporated in accordance with the laws of South Africa, with registration number 2001/016069/10 | |
| Nedbank Limited (acting through its Nedbank Capital and Nedbank Corporate divisions) | A public company and registered bank duly incorporated under the laws of South Africa, with registration number 1951/000009/06 | |
| The Standard Bank of South Africa Limited (acting through its Corporate and Investment Banking division) | A public company and registered bank duly incorporated under the laws of South Africa, with registration number 1962/000738/06 | |
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Part II: The Original Facility B Lenders
| Bank of China Limited Johannesburg Branch | An external company and registered bank duly incorporated in accordance with the laws of South Africa, with registration number 2000/008434/10 | |
| FirstRand Bank Limited (acting through its Rand Merchant Bank division) | A public company and registered bank duly incorporated under the laws of South Africa, with registration number 1929/001225/06 | |
| Investec Bank Limited (acting through its Corporate and Institutional Banking Division) | A public company and registered bank duly incorporated under the laws of South Africa, with registration number 1969/004763/06 | |
| JPMorgan Chase Bank, N.A., Johannesburg Branch | An external company and registered bank duly incorporated in accordance with the laws of South Africa, with registration number 2001/016069/10 | |
| Nedbank Limited (acting through its Nedbank Capital and Nedbank Corporate divisions) | A public company and registered bank duly incorporated under the laws of South Africa, with registration number 1951/000009/06 | |
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