6-K
GOLD FIELDS LTD (GFI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
Dated 27 March 2025
Commission File Number 001-31318
Gold Fields Limited
(Translation of registrant’s name into English)
150 Helen Rd.
Sandown, Sandton 2196
South Africa
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
| ☒ Form 20-F | ☐ Form 40-F |
|---|
Explanatory Note
This Form 6-K includes the exhibits containing certain agreements relating to Gold Fields Limited ("Gold Fields"). The exhibits are filed herewith in order to be incorporated by reference into Gold Fields’ annual report on Form 20-F for the year ended 31 December 2024.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Gold Fields Limited | |||
|---|---|---|---|
| Date: 27 March 2025 | By: | /s/ Mike Fraser | |
| Name: | Mike Fraser | ||
| Title: | Chief Executive Officer |
exhibit411
EXECUTION COPY OSISKO MINING INC. AND GOLD FIELDS HOLDINGS COMPANY LIMITED AND GOLD FIELDS WINDFALL HOLDINGS INC ARRANGEMENT AGREEMENT August 12, 2024 TABLE OF CONTENTS ARTICLE 1 INTERPRETATION ................................................................................................. 2 1.1 Definitions ............................................................................................................ 2 1.2 Interpretation Not Affected by Headings ............................................................. 16 1.3 Number and Gender .......................................................................................... 16 1.4 Computation of Time .......................................................................................... 16 1.5 Time References................................................................................................ 16 1.6 Currency ............................................................................................................ 16 1.7 Accounting Matters ............................................................................................ 16 1.8 Knowledge ......................................................................................................... 16 1.9 Statutes ............................................................................................................. 17 1.10 Capitalized Terms .............................................................................................. 17 1.11 Schedules .......................................................................................................... 17 ARTICLE 2 THE ARRANGEMENT .......................................................................................... 17 2.1 Arrangement ...................................................................................................... 17 2.2 Interim Order ...................................................................................................... 17 2.3 Company Meeting .............................................................................................. 18 2.4 Company Circular .............................................................................................. 20 2.5 Final Order ......................................................................................................... 22 2.6 Court Proceedings ............................................................................................. 22 2.7 Arrangement and Effective Date ........................................................................ 23 2.8 Payment of Consideration and Other Payments ................................................ 23 2.9 Incentive Compensation Plans ........................................................................... 24 2.10 Treatment of Debentures ................................................................................... 25 2.11 Announcement and Shareholder Communications ............................................ 26 2.12 Withholding Taxes ............................................................................................. 26 2.13 Adjustments to Consideration ............................................................................ 27 ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY ......................... 27 3.1 Representations and Warranties ........................................................................ 27 3.2 Survival of Representations and Warranties ...................................................... 46 ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND PARENT ....................................................................................................................... 46 4.1 Representations and Warranties ........................................................................ 46 4.2 Survival of Representations and Warranties ...................................................... 49 ARTICLE 5 COVENANTS ........................................................................................................ 49 5.1 Covenants of the Company Regarding the Conduct of Business ....................... 49 5.2 Mutual Covenants of the Parties Relating to the Arrangement ........................... 54 5.3 Non-Solicitation .................................................................................................. 56 5.4 Access to Information; Confidentiality ................................................................ 62 5.5 Insurance and Indemnification ........................................................................... 62 5.6 Pre-Acquisition Reorganization .......................................................................... 63 5.7 Regulatory Approvals ......................................................................................... 64 5.8 Competition Act Approval ................................................................................... 65 ARTICLE 6 CONDITIONS ........................................................................................................ 66 6.1 Mutual Conditions Precedent ............................................................................. 66 - iii - 6.2 Additional Conditions Precedent to the Obligations of the Purchaser ................. 67 6.3 Additional Conditions Precedent to the Obligations of the Company .................. 68 6.4 Satisfaction of Conditions ................................................................................... 69 6.5 Notice of Breach ................................................................................................ 69 ARTICLE 7 TERM, TERMINATION, AMENDMENT AND WAIVER ......................................... 70 7.1 Term .................................................................................................................. 70 7.2 Termination ........................................................................................................ 70 7.3 Termination Payments ....................................................................................... 73 7.4 Amendment ....................................................................................................... 74 7.5 Waiver ............................................................................................................... 75 ARTICLE 8 GENERAL PROVISIONS ...................................................................................... 75 8.1 Notices ............................................................................................................... 75 8.2 Parent Guarantee .............................................................................................. 76 8.3 Governing Law ................................................................................................... 77 8.4 Injunctive Relief ................................................................................................. 77 8.5 Time of Essence ................................................................................................ 77 8.6 Entire Agreement, Binding Effect and Assignment ............................................. 77 8.7 No Liability ......................................................................................................... 77 8.8 Severability ........................................................................................................ 78 8.9 Waiver of Jury Trial ............................................................................................ 78 8.10 Third Party Beneficiaries .................................................................................... 78 8.11 Counterparts, Execution ..................................................................................... 79 SCHEDULE A PLAN OF ARRANGEMENT ........................................................................... A-1 SCHEDULE B ARRANGEMENT RESOLUTION .................................................................... B-1 ARRANGEMENT AGREEMENT THIS ARRANGEMENT AGREEMENT is made as of August 12, 2024 BETWEEN: GOLD FIELDS HOLDINGS COMPANY LIMITED, a limited liability company incorporated under the laws of the British Virgin Islands, Registration No. 651406, (the “Parent”) - and - GOLD FIELDS WINDFALL HOLDINGS INC., a corporation existing under the laws of the Province of Ontario (the “Purchaser”) - and - OSISKO MINING INC., a corporation existing under the laws of the Province of Ontario (the “Company”) RECITALS: A. the Purchaser proposes to acquire all of the issued and outstanding Company Shares in accordance with the Arrangement; B. upon the completion of the Arrangement, Company Shareholders will be entitled to receive, in accordance with the Plan of Arrangement, the Consideration for each Company Share held immediately prior to the Effective Time; C. the Special Committee has unanimously determined, after receiving financial and legal advice, that the Arrangement and the entering into of this Agreement is in the best interests of the Company and recommended to the Company Board that the Company Board approve this Agreement and the Arrangement and recommend that the Company Shareholders vote in favour of the Arrangement; D. the Company Board has unanimously determined, after receiving financial and legal advice and following receipt and review of the unanimous recommendation from the Special Committee, that the Arrangement and the entering into of this Agreement is in the best interests of the Company and have resolved to recommend that the Company Shareholders vote in favour of the Arrangement Resolution, all subject to the terms and the conditions contained in this Agreement; E. the Purchaser and the Parent have entered into the Voting Agreements with the Supporting Shareholders, pursuant to which each of the Supporting Shareholders has agreed to, among other things, vote the Company Shares held by them in favour of the Arrangement Resolution on the terms and subject to the conditions set forth in the Voting Agreements; F. the Parent is a party to this Agreement to unconditionally and irrevocably guarantee in favour of the Company the due and punctual performance by the Purchaser of each and every covenant and obligation of the Purchaser arising under this Agreement; and
- 2 - G. the parties hereto have entered into this Agreement to provide for the matters referred to in the foregoing recitals and for other matters related to the transaction herein provided for. THEREFORE, in consideration of the covenants and agreements herein contained, the Parties agree as follows: ARTICLE 1 INTERPRETATION 1.1 Definitions Whenever used in this Agreement, the following words and terms have the meanings set out below: “Action” means any claim, action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity and by or before a Governmental Entity and whether asserted, threatened, pending or existing; “Acquisition Proposal” means, other than the transactions contemplated by this Agreement or any transaction involving the Company, any offer, proposal, expression of interest, inquiry or public announcement, whether written or oral, from any person or group of persons other than the Purchaser (or an affiliate of the Purchaser or any person acting jointly or in concert with the Purchaser) relating to any: (i) take-over bid, tender offer, exchange offer or other similar transaction that, if consummated, would result in a person or group of persons beneficially owning 20% or more of any class of voting or equity securities of the Company, or securities convertible into or exercisable or exchangeable for 20% or more of any class of voting or equity securities of the Company; (ii) amalgamation, plan of arrangement, share exchange, debt exchange, business combination, merger, consolidation, recapitalization, reorganization, or other similar transaction or series of related transactions involving the Company, or any liquidation, dissolution or winding-up of the Company; (iii) direct or indirect sale or disposition of assets (or any alliance, joint venture, lease, long- term supply arrangement, licence or other arrangement having the same economic effect as a sale or disposition) representing, individually or in the aggregate, 20% or more of the consolidated assets of the Company; (iv) direct or indirect sale, issuance or acquisition of Company Shares or any other voting or equity interests of the Company (or securities convertible into or exercisable or exchangeable for Company Shares or such other voting or equity interests) resulting in a person or group of persons owning 20% or more of the issued and outstanding voting or equity interests (or rights or interests therein or thereto) of the Company; (v) any other similar transaction or series of transactions involving the Company; or - 3 - (vi) any other transaction, the consummation of which could reasonably be expected to impede, interfere with, prevent or delay the transactions contemplated by this Agreement or the Arrangement or which could reasonably be expected to materially reduce the benefits to the Purchaser of the Arrangement. “affiliate” has the meaning ascribed thereto in the NI 45-106, in force as of the date of this Agreement; “Agreement” means this arrangement agreement, including all schedules annexed hereto, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms hereof; “Anti-Corruption Laws” has the meaning ascribed thereto in Section 3.1(pp); “ARC” means an advance ruling certificate pursuant to section 102 of the Competition Act; “Arrangement” means the arrangement of the Company under section 182 of the OBCA on the terms and subject to the conditions set out in the Plan of Arrangement, subject to any amendments or variations thereto made in accordance with the terms of this Agreement and the Plan of Arrangement or made at the direction of the Court in the Final Order (with the prior written consent of the Company and the Purchaser, each acting reasonably); “Arrangement Resolution” means the special resolution of the Company Shareholders approving the Plan of Arrangement which is to be considered at the Company Meeting substantially in the form of Schedule B hereto, with such changes as may be agreed to by the Purchaser and the Company, each acting reasonably, which is subject to (i) an affirmative vote by the holders of two-thirds of the Company Shares voted on the resolution in person or by proxy at the Company Meeting; and (ii) an affirmative vote by a majority of the minority Company Shares (excluding for this purpose the votes attached to Company Shares held or controlled by persons described in items (a) through (d) of Section 8.1(2) of MI 61-101) voted on the resolution in person or by proxy at the Company Meeting; “Authorization” means, with respect to any Person, any authorization, Order, permit, approval, grant, licence, concession, registration, consent, right, notification, condition, franchise, privilege, certificate, judgement, writ, injunction, award, determination, direction decision, decree, by-law, rule or regulation, of, from or required by any Governmental Entity having jurisdiction over the Person; “Breaching Party” has the meaning ascribed thereto in Section 7.2(b); “Business” means the mineral exploration and development business of the Company as presently conducted; “Business Day” means any day except Saturday, Sunday or any day on which banks are generally not open for business in Montréal (Québec), Toronto (Ontario) or Johannesburg (South Africa); “Canadian Securities Laws” means all Canadian securities laws (and the respective regulations made thereunder, together with applicable published fee schedules, prescribed forms, policy statements, notices, orders, blanket rulings and other regulatory instruments of the Securities Regulators) applicable to the Company, and all rules and policies of the TSX; - 4 - “Commissioner” means the Commissioner of Competition appointed under section 7(1) of the Competition Act or any Person authorized to exercise the powers and perform the duties of the Commissioner of Competition; “Company Board” means the board of directors of the Company as the same is constituted from time to time; “Company Board Recommendation” has the meaning ascribed thereto in Section 2.4(c); “Company Change in Recommendation” has the meaning ascribed thereto in Section 7.2(a)(iii)(A); “Company Circular” means the notice of the Company Meeting and accompanying management information circular, including all schedules, appendices and exhibits thereto and enclosures therewith, to be sent to the Company Shareholders in connection with the Company Meeting, as amended, supplemented or otherwise modified from time to time; “Company Disclosure Letter” means the disclosure letter dated the date of this Agreement executed and delivered by the Company to the Purchaser in connection with the execution of this Agreement; “Company Employees” means the employees of the Company; “Company Intellectual Property” has the meaning set out in Section 3.1(w)(i); “Company Meeting” means the special meeting of the Company Shareholders, including any adjournment or postponement thereof, to be called and held in accordance with the Interim Order to consider the Arrangement Resolution; “Company Public Documents” means all forms, reports, schedules, statements and other documents which are publicly filed by the Company on SEDAR+ whether or not pursuant to Canadian Securities Laws; “Company Securityholders” means the Company Shareholders and the holders of DSUs, Options and RSUs; “Company Shareholder Approval” means the approval of the Arrangement Resolution by the Company Shareholders at the Company Meeting in accordance with Section 2.2(b); “Company Shareholders” means the registered and/or beneficial holders of Company Shares; “Company Shares” means the common shares in the authorized share capital of the Company; “Company Termination Payment” has the meaning ascribed thereto in Section 7.3(b); “Company Termination Payment Event” has the meaning ascribed thereto in Section 7.3(c); “Company Warrants” means warrants to purchase Company Shares; “Competition Act” means the Competition Act (Canada) and the regulations enacted thereunder; - 5 - “Competition Act Approval” means, in respect of the transactions contemplated by this Agreement, either: (i) the Commissioner shall have issued an ARC and that ARC shall not have been amended or rescinded prior to the Effective Date; or (ii) both of (A) the applicable waiting periods under subsection 123 of the Competition Act shall have expired or been waived or the obligation to notify and supply information in accordance with Part IX of the Competition Act shall have been waived in accordance with paragraph 113(c) of the Competition Act and (B) the Commissioner shall have delivered a No Action Letter; “Confidentiality Agreement” means the confidentiality agreement between the Company and the Purchaser dated May 31, 2024; “Consideration” means $4.90 per Company Share; “Contract” means any written or oral contract, agreement, license, franchise, lease, sublease, arrangement, commitment, engagement, undertaking, joint venture, partnership or other right or obligation to which a Party or any of its Subsidiaries is a party or by which it or any of its Subsidiaries is bound or to which any of their respective properties or assets is subject; “Conversion Notice” has the meaning ascribed thereto in Section 2.10(a); “Convertible Securities” means any agreement, option, warrant, right or other security or conversion privilege issued or granted by the Company that is exercisable or convertible into, or exchangeable for, or otherwise carries the right of the holder to purchase or otherwise acquire Company Shares, including pursuant to one or more multiple exercises, conversions and/or exchanges; “Court” means the Ontario Superior Court of Justice (Commercial List) or other competent court, as applicable; “Debentures” means the 4.75% convertible senior unsecured debenture bearing a principal amount of $154,000,000 held by 1335088 B.C. Ltd., a wholly-owned subsidiary of Northern Star Resources Ltd.; “Debenture Certificate” means the certificate no: CD-2021-001 representing the Debentures issued on December 1, 2021; “Debenture Purchaser Loan” has the meaning ascribed thereto in Section 2.10(b); “Default Redemption” has the meaning ascribed thereto in Section 2.10(b); “Depositary” means TMX Equity Transfer Services, or such other Person as the Company may appoint to act as depositary in relation to the Arrangement, with the approval of the Purchaser, acting reasonably; “Dissent Rights” means the rights of dissent in respect of the Arrangement described in the Plan of Arrangement; “DSU” means a deferred share unit of the Company granted under the Legacy DSU Plan or the Omnibus Incentive Plan, which are, at such time, outstanding and unexercised, whether or not vested or unvested;
- 6 - “Effective Date” means the date on which the Arrangement becomes effective, as set out in Section 2.7; “Effective Time” has the meaning ascribed thereto in the Plan of Arrangement; “Employee Plan” means any employee benefit, welfare, pension, retirement, profit sharing, equity or phantom-equity compensation, health or other medical, dental, life, disability or other insurance plan, program, agreement or arrangement maintained by the Company for the benefit of any of the Company’s employees or consultants, other than Statutory Plans; “Encumbrance” means any encumbrance, lien, charge, hypothec, pledge, title retention agreement, security interest of any nature, adverse interest, adverse claim, exception, reservation, servitude, right of occupation, any matter capable of registration against title, option, right of pre- emption, privilege, other third-party interest or any Contract to create any of the foregoing and shall exclude all Permitted Encumbrance; “Environment” includes the air, surface water, groundwater, body of water, any land, soil or underground space even if submerged under water or covered by a structure, all living organisms and the interacting natural systems that include components of air, land, water, organic and inorganic matters and living organisms and the environment or natural environment as defined in any Environmental Law and “Environmental” will have a similar extended meaning; “Environmental Laws” means all applicable Laws relating to the protection or quality of the Environment, natural resources, human health and safety, Hazardous Substances, the assessment of Environmental and social impacts or the rehabilitation, reclamation, restoration and closure of lands used in connection with the Business; “Fairness Opinions” has the meaning ascribed thereto in Section 3.1(ss); “Final Order” means the final order of the Court in a form acceptable to the Purchaser and the Company, each acting reasonably, pursuant to Section 182(5) of the OBCA approving the Arrangement, as such order may be amended, modified, supplemented or varied by the Court (with the consent of both the Purchaser and the Company, each acting reasonably) at any time prior to the Effective Date or, if appealed, then, unless such appeal is withdrawn, abandoned or denied, as affirmed or as amended on appeal (provided that any such amendment is acceptable to both the Purchaser and the Company, each acting reasonably); “Financial Statements” means the audited financial statements of the Company as at and for the years ended December 31, 2023 and 2022, including the notes thereto, together with the auditor’s report thereon and the unaudited interim financial statements as at and for the three and six month periods ended June 30, 2024 and 2023, including the notes thereto; “Framework Agreement” means the framework agreement entered into between the Company, the Purchaser, the Parent, the Partnership and 1000516419 Ontario Inc. dated May 2, 2023; “Governmental Entity” means: (i) any domestic or foreign federal, provincial, territorial, regional, state, municipal or other government, governmental department, quasi-government, administrative, judicial or regulatory authority (including any securities regulatory authorities), agency, minister or ministry, board, body, bureau, commission (including any securities commission), - 7 - instrumentality court or tribunal or any political subdivision thereof, or any central bank (or similar monetary or regulatory authority) thereof, any taxing authority, any ministry or department or agency of any of the foregoing; (ii) any Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court; (iii) any stock exchange; or (iv) any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing entities established to perform a duty or function on its behalf; “Government Official” means any person qualifying as a public official or public employee under the Laws of the Province of Ontario, the Province of Québec or the federal Laws of Canada or any other relevant jurisdiction including (i) a person holding an official position, such as an employee, officer or director, with any Governmental Entity or state-owned or controlled enterprise; (ii) any individual “acting in an official capacity”, such as a delegation of authority, from a Governmental Entity to carry out official responsibilities; and (iii) an official of a public international organization such as the United Nations, the World Bank, the International Monetary Fund, or regional development banks; “Hazardous Substance” means any substance, material or waste that is defined, judicially interpreted or identified in, or regulated, listed or prohibited by Environmental Laws, including “pollutants”, “contaminants”, “deleterious substances”, “dangerous goods”, and “residual materials” as each such term is defined pursuant to Environmental Laws, and hazardous or industrial toxic wastes or substances, tailings, wasterock, radioactive materials, flammable substances, explosives, reagents, petroleum and petroleum products, polychlorinated biphenyls, chlorinated solvents and asbestos; “IFRS” means generally accepted accounting principles in Canada from time to time including, for the avoidance of doubt, the standards prescribed in Part I of the CPA Canada Handbook - Accounting (International Financial Reporting Standards) as the same may be amended, supplemented or replaced from time to time; “including” means including without limitation, and “include” and “includes” have a corresponding meaning; “Indigenous Group” means any Indian or Indian Band (as those terms are defined in the Indian Act (Canada)), First Nation person or people, Inuit person or people, Métis person or people, Aboriginal person or people, native person or people, indigenous person or people, any person or group asserting or otherwise claiming an Aboriginal or treaty right, including Aboriginal title, or any other Aboriginal interest, and any person or group representing, or purporting to represent, any of the foregoing; “Intellectual Property Rights” means: (i) any and all proprietary rights anywhere in the world provided under (A) patent law, (B) copyright law (including moral rights), (C) trademark law, (D) design patent or industrial design law, (E) semi-conductor chip or mask work or integrated circuit topography law or (F) any other statutory provision or common law principle, including trade secret law, that may provide a right in either hardware, software, content, documentation, confidential information, trademarks, ideas, formulae, algorithms, concepts, inventions, processes or know- - 8 - how generally, or the expression or use of such hardware, software, content, documentation, confidential information, trademarks, ideas, formulae, algorithms, concepts, inventions, processes or know-how; (ii) any and all applications, registrations, licences, sub-licences, franchises, agreements or any other evidence of a right in any of the foregoing; and (iii) any and all licences and waivers and benefits of waivers of the intellectual property rights set out in paragraphs (i) or (ii) above; “Investment Canada Act” means the Investment Canada Act (Canada); “Interim Order” means the interim order of the Court contemplated by Section 2.2 of this Agreement and made pursuant to the OBCA in a form acceptable to the Company and the Purchaser, each acting reasonably, providing for, among other things, the calling and holding of the Company Meeting, as the same may be amended, modified, supplemented or varied by the Court (with the consent of the Company and the Purchaser, each acting reasonably); “Law” means, with respect to any Person, any applicable law (including common law), by-law, statute, rule, regulation, principle of law and equity, order, ruling, ordinance, judgment, injunction, determination, award, decree or other legally binding requirement, whether domestic or foreign, and the terms and conditions of any Authorization of or from any Governmental Entity, and, for greater certainty, includes Canadian Securities Laws; “Legacy DSU Plan” means the legacy deferred share unit plan which was adopted by the Company Shareholders on June 8, 2017 “Legacy Option Plan” means the legacy option plan which was initially adopted by the Company Board on June 1, 2011 and adopted by the Company Shareholders on June 25, 2015, as amended on June 29, 2018; “Legacy RSU Plan” means the legacy restricted share unit plan which was adopted by the Company Shareholders on June 8, 2017; “Letter of Transmittal” means the letter of transmittal to be sent to the registered shareholders of the Company for use in connection with the Arrangement; “Manager” means 1000516419 Ontario Inc., a corporation existing under the OBCA; “Material Adverse Change” means any change, effect, event, occurrence or state of facts that, individually or in the aggregate with other such changes, effects, events, occurrences or states of fact, is, or would reasonably be expected to be, material and adverse to the condition (financial or otherwise), properties, assets, liabilities (including any contingent liabilities that may arise through outstanding, pending or threatened litigation or otherwise), obligations (whether absolute, accrued, conditional or otherwise), capitalization, businesses, operations or results of operations of the Company and the Partnership, taken as a whole, whether before or after giving effect to the transactions contemplated by this Agreement, except any change, effect, event, occurrence or state of facts resulting from, relating to or arising in connection with: (i) the execution, announcement and pendency of this Agreement or the transactions contemplated pursuant to the Plan of Arrangement; (ii) any changes in the general political, economic or financial conditions or in credit, banking, currency, commodities or capital markets generally; - 9 - (iii) any changes in applicable Laws (including Laws relating to Taxes) or in the interpretation, application or non-application of Laws by Governmental Entities and not specifically relating to that Person, taken as a whole; (iv) any change in the mining industry in general, including any change in the price of gold on a current or forward basis; (v) a change in the market trading price or trading volume of securities of the Company (it being understood that the causes underlying such change in market price or trading volume may be taken into account in determining whether a Material Adverse Change has occurred); (vi) any change in applicable generally accepted accounting principles, including IFRS; (vii) any climatic or other natural events or conditions, including any natural disaster, or human- made disaster or any calamity, national or international; (viii) any epidemic, pandemic or outbreak of illness or other health crisis or public health event, or the material worsening of any of the foregoing; (ix) the commencement or continuation of any act of war, armed hostilities or acts of terrorism; or (x) compliance with the terms of this Agreement or actions or inactions of the Company to which the Purchaser has expressly consented in writing; provided that, in the case of a change, effect, event, occurrence or state of facts referred to in clause (ii), (iii), (iv), (vi), (vii), (viii), or (ix) above, such change, effect, event, occurrence or state of facts does not disproportionately adversely affect the Company and the Partnership, taken as a whole, compared to other companies of similar size operating in the industry and geography in which the Company and the Partnership operate; “Material Contract” means each material Contract of the Company set out in Schedule 1.1 to the Company Disclosure Letter, and any other Contract, commitment, agreement (written or oral), instrument, lease or other document or arrangement to which the Company is a party or by which its properties or assets are otherwise bound, and which is (x) material to the Company, taken as a whole, or (y) material to the Material Properties; “Material Projects” means, collectively, the Windfall Project, the Urban Barry Project and the Quévillon Project; “Material Properties” means, collectively, the Windfall Property, the Urban Barry Property and the Quévillon Property; “MI 61-101” means Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions; “Mining Rights” means mining rights, exploration licenses, mining claims, mining leases, mining concessions, leases to mine minerals, surface deposit rights, and other forms of mineral or land tenures, whether contractual, statutory or other held by the Company;
- 10 - “Mining Operations” means every kind of work done on or in respect of a property, whether on exploration, development or mining, closure or remediation, and includes, without limitation, carrying out, or causing to be carried out, the work of assessment, line cutting, geophysical, geochemical and geological surveys, library research, data compilation, report preparation, studies and mapping, assaying and metallurgical testing, drilling, designing, examining, equipping, improving, surveying, trenching, shaft-sinking, raising, crosscutting and drifting, searching for, digging, trucking, sampling, working and procuring minerals or mining rights and keeping the same in good standing and renewing same, and doing all other work usually considered to be assessment, prospecting, exploration, development, pre-production, construction, mining or reclamation work. “misrepresentation” has the meaning ascribed thereto in the Securities Act; “MTA” means the Mining Tax Act (Quebec); “NI 43-101” means National Instrument 43-101 Standards of Disclosure for Mineral Projects; “NI 45-106” means National Instrument 45-106 Prospectus Exemptions; “No Action Letter” means a letter from the Commissioner confirming in writing that he does not, at that time, intend to make an application under section 92 of the Competition Act for an order in respect of the transactions contemplated by this Agreement; “OBCA” means the Business Corporations Act (Ontario), and the regulations made thereunder, as now in effect and as they may be promulgated or amended from time to time; “Omnibus Incentive Plan” means the omnibus incentive plan of the Company which was adopted by the Company Shareholders on May 29, 2023; “Options” means options to acquire Company Shares granted under the Legacy Option Plan or the Omnibus Incentive Plan, which are, at such time, outstanding and unexercised, whether or not vested or unvested; “Order” means any judicial, arbitral, administrative, ministerial, departmental or regulatory judgment, injunction, order, decision, ruling, determination, notice, award, or decree of any Governmental Entity (in each case, whether temporary, preliminary or permanent); “Ordinary Course” means, with respect to an action taken by the Company that such action is consistent with the past practices of the Company, and is taken in the ordinary course of the normal day-to-day operations of the business of the Company; “Outside Date” means December 16, 2024, or such later date as may be agreed to in writing by the Parties; “Parties” means the Company and the Purchaser and “Party” means any one of them, as the context requires; “Partnership” means the general partnership formed pursuant to the laws of the Province of Ontario on April 26, 2023 and governed by the terms of the Partnership Agreement; - 11 - “Partnership Agreement” means the second amended and restated general partnership agreement dated May 2, 2023 among the Company, the Purchaser (then named 1000516306 Ontario Inc.), the Parent, and the Manager; “Permit” means any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing, notice or similar requirement of, issued by, from or to, or other act by or in respect of, any Governmental Entity together with any present or future renewal, extension, modification, substitution, amalgamation, succession, conversion, lease replacement, renaming or variation thereof (or the mineral claims represented thereby) including exploitation or exploration permits or other licenses or additional acquired interests that derive directly from those permits or other licenses (or the mineral claims represented thereby) and any licenses, permits, approvals, consents, certificates, registrations and other authorizations under all applicable Environmental Laws; “Permitted Encumbrances” means any of the following: (i) exceptions and reservations contained in the original Crown grant or contained in any other grant or disposition from the Crown and the usual statutory exceptions and reservations to title; (ii) all applicable Laws; (iii) any right of expropriation vested in any governmental or public body or authority; (iv) Encumbrances for Taxes or charges for electricity, power, gas, water and other services and utilities in connection with the relevant Material Properties and Real Properties that, in each case, are not yet due and owing; (v) all applicable development, subdivision, use and site plan agreements, or similar agreements, that are registered on title, provided that the same are complied with insofar as they affect or relate to the relevant Material Properties and Real Property and provided that no such agreement materially interferes with the present use or impairs the value of the relevant Material Properties and Real Property provided all securities posted under such agreements have been released (or if not released by the Effective Date, will be the Company’s sole responsibility to have released after the Effective Date); (vi) all servitudes, right of way, licenses, encroachments or adverse interests affecting the Material Properties and Real Property, including servitudes or reserves regarding Mining Rights, and including any unregistered servitudes or rights of way which affect the land, including but not limited to the right of public utilities to occupy a part of the property to install any circuits, poles and necessary equipment required for the connection or the network, in each case that do not materially impair the present use or value of the relevant Material Properties and Real Property; (vii) encroachments, title defects, irregularities and other matters disclosed by any survey or certificate of location made available to the Purchaser by the Company or which would be disclosed by an up-to-date survey or certificate of location, which do not materially impair the present use or value of the relevant Material Properties and Real Property provided such easements or a servitude have been complied with; - 12 - (viii) any legal hypothec or lien in favour of architects, engineers, suppliers of material, workmen and contractors or sub-contractors which might result from construction on each Material Property, provided appropriate adjustment or other arrangement in connection therewith has been agreed to between the Company and the Purchaser; (ix) any Encumbrances filed by or at the request of the Purchaser or which are otherwise expressly approved by the Purchaser in writing; (x) all rights reserved to or vested in any Governmental Entity by the terms of any lease, licence, franchise, grant or permit or by any statutory provision to terminate any such lease, licence, franchise, grant or permit or to require annual or periodic payments as a condition of the continuance thereof or to distrain against or to obtain a lien on any property or assets in the event of failure to make such annual or other periodic payments; and (xi) the instruments and encumbrances registered on title to the relevant Material Properties and Real Property as of the Effective Date. “Person” includes an individual, general partnership, limited partnership, corporation, company, limited liability company, body corporate, joint venture, unincorporated organization, other form of business organization, trust, trustee, executor, administrator or other legal representative; “Person of Concern” means: (i) a Government Official; (ii) a political party, an official of a political party (including any member of an advisory council or executive council of a political party), or a candidate for political office; (iii) an immediate family member, such as a parent, spouse, sibling, or child of a Person in category (i) or (ii); or (iv) an agent or intermediary of any Person in the foregoing categories; “Plan of Arrangement” means the plan of arrangement of the Company, substantially in the form of Schedule A hereto, and any amendments or variations thereto made in accordance with this Agreement and the Plan of Arrangement or upon the direction of the Court (with the prior written consent of the Company and the Purchaser, each acting reasonably) in the Final Order; “Pre-Acquisition Reorganization” has the meaning ascribed thereto in Section 5.6(a); “Proceeding” means any suit, claim, action, charge, complaint, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, examination or investigation commenced, brought, conducted or heard by or before, any court or other Governmental Entity; “Proposed Agreement” has the meaning ascribed thereto in Section 5.3(h); “QTA” means the Taxation Act (Quebec) “Quévillon Project” means the conducting of Mining Operations on the Quévillon Property to ascertain the existence, location, quantity, characteristics, quality or commercial value of deposits of minerals and evaluate the possibilities for and, if justified, engage in, the development of such property; “Quévillon Property” means the lands, territories and areas that are subject to the Mining Rights listed in Part IV (Quévillon Property) of Schedule A to the Framework Agreement or to any present and future real property, leased property, mining rights, exploration licenses, mining claims, - 13 - mining leases, mining concessions, leases to mine minerals and other forms of mineral or land tenures, whether contractual, statutory or other, held by the Company or any of its affiliates for the purposes of the Quévillon Project, which are, for greater certainty, subject to the terms of the Windfall Agreements; “Real Property” means all real and immovable properties, rights, title and interest held now or in the future by the Company in connection with the Material Projects, whether contractual, statutory or otherwise, including any access rights, leases, rights of way, occupancy rights, surface rights, servitudes, superficies rights, buildings, structures, fixtures and other real or immovable property, but excluding any Mining Rights; “Redemption Notice Period” has the meaning ascribed thereto in Section 2.10(b); “Regulatory Approvals” means those sanctions, rulings, consents, orders, exemptions, permits and other approvals (including the lapse, without objection, of a prescribed time under a statute or regulation that states that a transaction may be implemented if a prescribed time lapses following the giving of notice without an objection being made) of Governmental Entities required in relation to or which Governmental Entities can make applicable to, the transactions contemplated by this Agreement, including the Competition Act Approval; “Related Party” has the meaning ascribed thereto in MI 61-101; “Representatives” has the meaning ascribed thereto under Section 5.3(a); “Response Period” has the meaning ascribed thereto under Section 5.3(h)(v); “RSU” means a restricted share unit of the Company granted under the Legacy RSU Plan or the Omnibus Incentive Plan, which are, at such time, outstanding and unexercised, whether or not vested or unvested; “SARB Approval” means the approval, statement of no objection or equivalent decision or statement of the South African Reserve Bank, in accordance with the exchange control regulations of the Republic of South Africa, with respect to the acquisition by the Purchaser of all of the issued Company Shares in accordance with the Arrangement; “Securities Act” means the Securities Act (Ontario) and the rules, regulations and published policies made thereunder; “Securities Regulators” means, collectively, the securities commissions and other securities regulatory authorities in each of the provinces and territories of Canada; “SEDAR+” means the System for Electronic Data Analysis and Retrieval +; “Special Committee” means the special committee of the Company Board, which was constituted to consider, among other things, the Arrangement; “Statutory Plans” means statutory benefit plans which the Company is required to participate in or comply with, including any benefit plan administered by any federal, provincial or state Governmental Entity and any benefit plans administered pursuant to applicable health, Tax, workplace safety insurance, and employment insurance Laws;
- 14 - “Subsidiary” has the meaning ascribed thereto in NI 45-106, in force as of the date of this Agreement; “Superior Proposal” means an unsolicited bona fide written Acquisition Proposal from an arm’s length third party to acquire not less than all of the Company Shares (other than Company Shares beneficially owned by the Person making such Acquisition Proposal) or all or substantially all of the assets of the Company on a consolidated basis that: (i) did not result from or involve a breach of this Agreement or any agreement between the Person making such Acquisition Proposal and the Company; (ii) complies with all applicable Laws; (iii) is not subject to a financing condition or contingency and in respect of which the Company Board have determined in good faith (after consultation with their financial advisors) is fully funded or that adequate arrangements have been made to ensure that the required funds or other consideration will be available to complete such Acquisition Proposal; (iv) is not subject to any due diligence or access condition; and (v) the Company Board, in respect of such Acquisition Proposal, have determined in good faith (after consultation with their financial advisors and outside legal counsel) (A) is reasonably capable of completion without undue delay taking into account all legal, financial, regulatory and other aspects of such Acquisition Proposal and the Person or group of Persons making such Acquisition Proposal; (B) would, if consummated in accordance with its terms (but not assuming away any risk of non-completion), result in a transaction more favourable, from a financial point of view, to the Company Shareholders than the Arrangement (taking into consideration any adjustment to the terms and conditions of the Arrangement proposed by the Purchaser pursuant to Section 5.3(i)); and (C) that failure to recommend such Acquisition Proposal to the Company Shareholders would be inconsistent with the fiduciary duties of the Board of Directors under applicable Law; “Superior Proposal Notice” has the meaning ascribed thereto in Section 5.3(h)(iii); “Supporting Shareholders” means certain directors and senior officers of the Company, and Company Shareholders who have entered into Voting Agreements; “Tax” or “Taxes” means all taxes, assessments, charges, dues, duties, rates, fees, imposts, levies and similar charges of any kind lawfully levied, assessed or imposed by any Governmental Entity, including all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings or profits) and all capital taxes, gross receipts taxes, environmental taxes, mining taxes, sales taxes, use taxes, ad valorem taxes, value added taxes, transfer taxes (including taxes relating to the transfer of interests in Real Property or entities holding interests therein), franchise taxes, licence taxes, withholding taxes, payroll taxes, employment taxes, excise, severance, social security, government pension plan premiums and contributions, workers’ compensation, employment insurance or compensation taxes or premium, stamp taxes, occupation taxes, premium taxes, property taxes, windfall profits taxes, alternative or add-on minimum taxes, goods and services tax, customs duties or other taxes, fees, imports, assessments or charges of any kind whatsoever, together with any Tax indemnity obligations, and any interest, penalties or additional amounts imposed by any taxing authority - 15 - (domestic or foreign), and any interest, penalties, additional taxes and additions to tax imposed with respect to any of the foregoing, in each case whether disputed or not; “Tax Act” means the Income Tax Act (Canada); “Tax Returns” means any return, report, declaration, designation, election, notice, filing, form, claim for refund, information return or other document (including any related or supporting schedule, statement or information) filed or required to be filed in connection with the determination, assessment or collection of any Tax or the administration of any Laws, regulations or administrative requirements relating to any Tax; “Terminating Party” has the meaning ascribed thereto in Section 7.2(b); “Termination Notice” has the meaning ascribed thereto in Section 7.2(b); “Third Party Beneficiaries” has the meaning ascribed thereto in Section 8.10; “Urban Barry Project” means the conducting of Mining Operations on the Urban Barry Property to ascertain the existence, location, quantity, characteristics, quality or commercial value of deposits of minerals and evaluate the possibilities for and, if justified, engage in, the development of such property. “Urban Barry Property” means the lands, territories and areas that are subject to the Mining Rights listed in Part III (Urban Barry Property) in Schedule A to the Framework Agreement, or to any present and future real property, leased property, mining rights, exploration licenses, mining claims, mining leases, mining concessions, leases to mine minerals and other forms of mineral or land tenures, whether contractual, statutory or other, held by the Company or any of its affiliates for the purposes of the Urban Barry Project, which are, for greater certainty, subject to the terms of the Windfall Agreements; “TSX” means the Toronto Stock Exchange or any successor thereto; “Voting Agreements” means the voting agreements dated the date hereof and made among the Purchaser and the Supporting Shareholders setting forth the terms and conditions on which the Supporting Shareholders have agreed to vote their Company Shares in favour of the Arrangement Resolution; “Windfall Agreements” means, collectively, the Framework Agreement, the Partnership Agreement, the Windfall Shareholder Agreement and ancillary agreements thereto; “Windfall Feasibility Study” means the technical report entitled “Feasibility Study for the Windfall Project, Eeyou Istchee James Bay, Québec, Canada” dated January 10, 2023 (with an effective date of November 25, 2022) prepared for the Company in respect to the Windfall Project; “Windfall Project” means the exploration, development, mining, operation, closure, and remediation of the Windfall Property, as described in the Windfall Feasibility Study, and any other Mining Operations carried out in connection with the Windfall Property; “Windfall Property” means the lands, territories and areas that are subject to the Mining Rights listed in Part II (Windfall Property) of Schedule A to the Framework Agreement or any present and future real property, leased property, mining rights, exploration licenses, mining claims, - 16 - mining leases, mining concessions, leases to mine minerals and other forms of mineral or land tenures, whether contractual, statutory or other, held by the Company or any of its affiliates for the purposes of the Windfall Project, which are, for greater certainty, subject to the terms of the Windfall Agreements; and “Windfall Shareholder Agreement” means the shareholder agreement entered into between the Company, the Purchaser, the Parent and 1000516419 Ontario Inc. dated May 2, 2023. 1.2 Interpretation Not Affected by Headings The division of this Agreement into Articles, Sections, subsections and paragraphs and the insertion of headings are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. Unless the contrary intention appears, references in this Agreement to an Article, Section, subsection, paragraph or Schedule by number or letter or both refer to the Article, Section, subsection, paragraph or Schedule, respectively, bearing that designation in this Agreement. 1.3 Number and Gender In this Agreement, unless the contrary intention appears, words importing the singular include the plural and vice versa, and words importing gender shall include all genders. 1.4 Computation of Time If the date on which any action is required to be taken hereunder by a Party is not a Business Day, such action shall be required to be taken on the next succeeding day which is a Business Day. 1.5 Time References In this Agreement, unless otherwise expressly provided or unless the contrary intention appears, references to time are to local time in Toronto, Ontario. 1.6 Currency Unless otherwise stated, all references in this Agreement to sums of money are expressed in lawful money of Canada and “$” refers to Canadian dollars. 1.7 Accounting Matters Unless otherwise stated, all accounting terms used in this Agreement in respect of the Company shall have the meanings attributable thereto under IFRS and all determinations of an accounting nature in respect of the Company required to be made shall be made in accordance with IFRS consistently applied. 1.8 Knowledge Where any representation or warranty is expressly qualified by reference to knowledge of the Company, it is deemed to refer to the knowledge of the Chief Executive Officer; the President; the Chief Financial Officer; and the Chief Operating Officer, after due inquiry, but, in each case, without the requirement to make any inquiries of third parties or any Governmental Entity or to - 17 - perform any search of any public registry office or system (and each such individual will be deemed to have “knowledge” of a particular fact or other matter if: (a) that individual is actually aware of that fact or matter; or (b) that fact or matter comes to the attention of that individual under circumstances in which a reasonable Person would take cognizance of it). 1.9 Statutes In this Agreement, any reference to a statute refers to such statute and all rules, resolutions and regulations made under it, as it or they may have been or may from time to time be amended or re-enacted, unless stated otherwise. 1.10 Capitalized Terms Unless otherwise expressly provided therein, all capitalized terms used in any Schedule or in the Company Disclosure Letter have the meanings ascribed to them in this Agreement. 1.11 Schedules The following Schedules are annexed to this Agreement and are incorporated by reference into this Agreement and form a part hereof: Schedule A - Form of Plan of Arrangement Schedule B - Form of Arrangement Resolution ARTICLE 2 THE ARRANGEMENT 2.1 Arrangement The Company and the Purchaser agree that the Arrangement will be implemented in accordance with the terms and subject to the conditions contained in this Agreement and the Plan of Arrangement. 2.2 Interim Order As soon as reasonably practicable following the execution of this Agreement, but in any event no later than September 6, 2024, the Company shall apply to the Court in a manner acceptable to the Purchaser, acting reasonably, pursuant to Section 182 of the OBCA and prepare, file and diligently pursue an application to the Court for the Interim Order, which shall provide, among other things: (a) for the classes of Persons to whom notice is to be provided in respect of the Arrangement and the Company Meeting and for the manner in which such notice is to be provided; (b) that the requisite approval for the Arrangement Resolution shall be (i) at least 662/3% of the votes cast on the Arrangement Resolution by the Company Shareholders present or represented by proxy at the Company Meeting, and (ii) a majority of the votes cast on the Arrangement Resolution by the Company Shareholders present or represented by proxy at the Company Meeting, excluding
- 18 - for this purpose the votes cast in respect of Company Shares held or controlled by persons described in items (a) through (d) of Section 8.1(2) of MI 61-101; (c) that the Company Meeting may be adjourned or postponed from time to time by the Company Board, in circumstances contemplated by this Agreement or as otherwise agreed to in writing by the Parties, without the need for additional approval of the Court; (d) confirmation of the record date for the purposes of determining the Company Shareholders entitled to receive meeting materials and vote at the Company Meeting; (e) that the record date for the Company Shareholders entitled to notice of and to vote at the Company Meeting will not change in respect of any adjournment(s) or postponement(s) of the Company Meeting; (f) that, in all other respects, other than as ordered by the Court, the terms, conditions and restrictions of the constating documents of the Company, including quorum requirements and other matters, shall apply in respect of the Company Meeting; (g) for the grant of the Dissent Rights to registered holders of Company Shares as set forth in the Plan of Arrangement; (h) for the notice requirements with respect to the presentation of the application to the Court for the Final Order; (i) that the deadline for the submission of proxies by Company Shareholders for the Company Meeting shall be 48 hours (excluding Saturdays, Sundays and statutory holidays in Toronto, Ontario) prior to the Company Meeting, subject to waiver by the Company in accordance with the terms of this Agreement; and (j) for such other matters as the Purchaser or the Company may reasonably require, subject to obtaining the prior written consent of the other Parties, such consent not to be unreasonably withheld, conditioned or delayed. 2.3 Company Meeting Subject to the terms of this Agreement and (except in respect of Section 2.3(b)) receipt of the Interim Order, the Company shall: (a) duly call, give notice of, convene and conduct the Company Meeting in accordance with its constating documents, the Interim Order and applicable Laws, as soon as reasonably practicable, and in any event on or before October 25, 2024, subject to adjournment to the extent required pursuant to Section 2.3(d); (b) in consultation with the Purchaser, fix and publish a record date for the purposes of determining the Company Shareholders entitled to receive notice of and vote at the Company Meeting and give notice to the Purchaser of the Company Meeting; (c) allow the Purchaser’s representatives and legal counsel to attend the Company Meeting; - 19 - (d) not adjourn, postpone or cancel (or propose or permit the adjournment, postponement or cancellation of) the Company Meeting without the Purchaser’s prior written consent, except: (i) as required for quorum purposes (in which case the Company Meeting shall be adjourned and not cancelled), by Law, by a Governmental Entity or by a valid Company Shareholder action (which action is not solicited or proposed by the Company or the Company Board); (ii) as expressly permitted under Section 5.3(l); or (iii) for an adjournments of not more than 10 Business Days in the aggregate for the purposes of attempting to solicit proxies to obtain the Company Shareholder Approval; (e) use commercially reasonable efforts to solicit proxies in favour of the Arrangement Resolution and against any resolution submitted by any Company Shareholder that is inconsistent with the Arrangement Resolution and the completion of any of the transactions contemplated by this Agreement, including, if so requested by the Purchaser, promptly reaffirm the Company Board Recommendation by news release and, at the expense of the Purchaser, use the services of proxy solicitation firms mutually agreed to by the Purchaser and the Company to solicit proxies in favour of the approval of the Arrangement Resolution and against any resolution submitted by any Person that is inconsistent with the Arrangement Resolution; provided, however, that the Company will not be required to continue to solicit proxies if there has been a Company Change in Recommendation; (f) provide the Purchaser with copies of or access to, information regarding the Company Meeting generated by any proxy solicitation services firm engaged by the Company, as reasonably requested from time to time by the Purchaser; (g) promptly advise the Purchaser as frequently as the Purchaser may reasonably request, and at least on a daily basis on each of the last 10 Business Days prior to the date of the Company Meeting, as to the aggregate tally of the proxies received by the Company in respect of the Arrangement Resolution and any other information relating to the proxies or Company Meeting reasonably requested by the Purchaser, including if any beneficial Company Shareholder appoints itself as a proxy holder for the purposes of the Company Meeting; (h) promptly advise the Purchaser of any written or oral communication from any Company Shareholder in opposition to the Arrangement, written notice of dissent or purported exercise by any Company Shareholder of Dissent Rights received by the Company in relation to the Arrangement and any withdrawal of Dissent Rights received by the Company and any written communications sent by or on behalf of the Company to any Company Shareholder exercising or purporting to exercise Dissent Rights in relation to the Arrangement; (i) provide the Purchaser with an opportunity to review and comment on any written communication sent by or on behalf of the Company to any Company Shareholder exercising or purporting to exercise Dissent Rights and not make any payment or - 20 - settlement offer, or agree to any payment or settlement prior to the Effective Time with respect to Dissent Rights without the prior written consent of the Purchaser; (j) not change the record date for the Company Shareholders entitled to vote at the Company Meeting in connection with any adjournment or postponement of the Company Meeting unless required by Law or the Interim Order, or with the Purchaser’s prior written consent; (k) not, without the prior written consent of the Purchaser, waive the deadline for the submission of proxies by Company Shareholders for the Company Meeting; and (l) at the reasonable request of the Purchaser from time to time, promptly provide the Purchaser with a list (in both written and electronic form) of: (i) the registered Company Shareholders, together with their addresses and respective holdings of Company Shares; (ii) the names and addresses (to the extent in the Company’s possession or otherwise reasonably obtainable by the Company) and holdings of all Persons holding Convertible Securities or otherwise having rights issued by the Company to acquire Company Shares; and (iii) participants in book-based systems and non-objecting beneficial owners of Company Shares, together with their addresses and respective holdings of Company Shares. The Company shall from time to time require that its registrar and transfer agent furnish the Purchaser with such additional information, including updated or additional lists of the Company Shareholders and lists of holdings and other assistance as the Purchaser may reasonably request. 2.4 Company Circular (a) Subject to the Purchaser’s compliance with Section 2.4(d), the Company shall (i) as promptly as reasonably practicable following execution of this Agreement, prepare the Company Circular together with any other documents required by applicable Laws in connection with the Company Meeting and (ii) as promptly as reasonably practicable after obtaining the Interim Order, file the Company Circular and such other documents in all jurisdictions where the same is required to be filed and mail the Company Circular to each Company Shareholder and any other Person as required under applicable Laws and by the Interim Order, in each case, using commercially reasonable efforts so as to permit the Company Meeting to be held by the date specified in Section 2.3(a). (b) On the date of mailing thereof, the Company shall ensure that the Company Circular complies in all material respects with all applicable Laws and the Interim Order and contains sufficient detail to permit the Company Shareholders to form a reasoned judgment concerning the matters to be placed before them at the Company Meeting, and, without limiting the generality of the foregoing, shall ensure that the Company Circular does not contain any misrepresentation (except that the Company shall not be responsible for any information included in the Company Circular that was furnished by or on behalf of the Purchaser and its affiliates expressly for inclusion in the Company Circular pursuant to Section 2.4(d)). (c) The Company Circular shall, among other things, include: (i) a copy of each of the Fairness Opinions; (ii) a statement that the Special Committee has received the - 21 - relevant Fairness Opinion(s) and has unanimously recommended that the Company Board approve this Agreement and recommend to Company Shareholders they vote in favour of the Arrangement Resolution; (ii) a statement that the Company Board has received the relevant Fairness Opinion(s), and have unanimously determined, after receiving legal and financial advice, that (A) the Consideration is fair to the Company Shareholders, (B) the Arrangement is in the best interests of the Company, and (C) the Company Board unanimously recommend that the Company Shareholders vote in favour of the Arrangement Resolution (the “Company Board Recommendation”) and the rationale for that recommendation; (iii) statements that each of the Supporting Shareholders has signed a Voting Agreement, pursuant to which, and subject to the terms thereof, they have agreed to, among other things, vote their Company Shares in favour of the Arrangement Resolution and against any resolutions submitted by any Company Shareholder that is inconsistent with the Arrangement; and (iv) information on how Company Shareholders and proxyholders can vote at the Company Meeting. (d) The Purchaser shall provide the Company, on a timely basis, with all information regarding the Purchaser and its affiliates as reasonably requested by the Company or required under applicable Laws for inclusion in the Company Circular or in any amendments or supplements to the Company Circular. The Purchaser shall ensure that such information provided does not include any misrepresentation. The Company shall also use its commercially reasonable efforts to obtain any necessary consents from its auditors and any other advisors to the use of any financial, technical or other expert information required to be included (including through incorporation by reference) in the Company Circular and to the identification in the Company Circular of each such advisor. (e) The Purchaser and its legal counsel shall be given a reasonable opportunity to review and comment on drafts of the Company Circular and related documents (and any amendments or supplements thereto) prior to the Company Circular (and any amendment or supplements thereto) being printed and filed with any Governmental Entity, and reasonable consideration shall be given to any comments made by the Purchaser and its legal counsel, provided that all information describing this Agreement and the Plan of Arrangement and any information relating to the Purchaser and its affiliates included in the Company Circular (and any amendments or supplements thereto) shall be in form and content approved in writing by the Purchaser, acting reasonably, and for greater certainty the Company Circular (and any amendment or supplements thereto) shall not be printed or filed with any Governmental Entity without such approval. The Company shall provide the Purchaser with final copies of the Company Circular (and any amendment or supplements thereto) prior to the mailing to the Company Shareholders. (f) The Purchaser shall indemnify and save harmless the Company and its Representatives from and against any and all liabilities, claims, demands, losses, costs, damages and expenses to which the Company or any of its Representatives may be subject or which the Company or any of its Representatives may suffer as a result of, or arising from, any misrepresentation contained in any information included in the Company Circular that was furnished by the Purchaser, its affiliates and their respective Representatives acting on their behalf, in writing, for inclusion
- 22 - in the Company Circular and such information was accurately reflected in the Company Circular by the Company. (g) The Company and the Purchaser shall each promptly notify the other if at any time before the Effective Date either becomes aware that the Company Circular contains a misrepresentation, or otherwise requires an amendment or supplement and the Parties shall co-operate in the preparation of any amendment or supplement to the Company Circular as required or appropriate, and the Company shall promptly mail or otherwise publicly disseminate any amendment or supplement to the Company Circular to the Company Shareholders and, if required by the Court or applicable Laws, file the same with any Governmental Entity and as otherwise required. (h) The Company shall promptly notify the Purchaser upon the receipt of any correspondence, whether written or oral, from any Securities Regulators or the staff of a Securities Regulator with respect to the Company Circular, or any request from any Securities Regulators or the staff of a Securities Regulator for information related to the Company Circular or the Company Meeting or amendments or supplements to the Company Circular, and shall promptly provide the Purchaser with copies of all correspondence between the Company and its Representatives, on the one hand, and the Securities Regulators or the staff of a Securities Regulator, on the other hand. The Company shall use its commercially reasonable efforts to respond as promptly as reasonably practicable to any correspondence or inquiry from any Securities Regulators with respect to the Company Circular, and the Company shall consult with the Purchaser and its counsel prior to submitting to the Securities Regulators any response to any such correspondence or inquiry. In connection with responding to any correspondence or inquiry of any Securities Regulators, the Company shall provide the Purchaser and its counsel a reasonable opportunity to review and comment on such documents and responses, and the Company will incorporate any reasonable comments of the Purchaser and/or its counsel prior to such submission. 2.5 Final Order If: (a) the Interim Order is obtained; and (b) the Company Shareholder Approval is obtained as provided for in the Interim Order and as required by applicable Law, subject to the terms of this Agreement, the Company shall take all steps necessary or desirable to submit the Arrangement to the Court as soon as reasonably practicable and in any event not later than five Business Days after the Company Shareholder Approval is obtained, and to diligently pursue an application for the Final Order pursuant to Section 182 of the OBCA. 2.6 Court Proceedings Subject to the terms of this Agreement, the Purchaser shall cooperate with and assist the Company in seeking the Interim Order and the Final Order, including by providing to the Company, on a timely basis, any information reasonably required to be supplied by the Purchaser in connection therewith. The Company shall provide the Purchaser’s legal counsel with reasonable opportunity to review and comment upon drafts of all materials to be filed with the Court in connection with the Arrangement and will give reasonable consideration to all such comments. Subject to applicable Law, the Company shall not file any material with the Court in connection with the Arrangement or serve any such material, and shall not agree to modify or amend - 23 - materials so filed or served, except as contemplated by this Section 2.6 or with the Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed; provided that, nothing herein shall require the Purchaser to agree or consent to any increase in or variation in the form of Consideration or other modification or amendment to such filed or served materials that expand or increase the Purchaser’s obligations, or diminishes or limits the Purchaser’s rights, set forth in any such filed or served materials or under this Agreement or the Arrangement. The Company shall also provide to the Purchaser’s legal counsel on a timely basis, copies of any notice of appearance, evidence or other Court documents served on the Company in respect of the application for the Interim Order or the Final Order or any appeal therefrom and of any notice, whether written or oral, received by the Company indicating any intention to oppose the granting of the Interim Order or the Final Order or to appeal the Interim Order or the Final Order. The Company shall ensure that all materials filed with the Court in connection with the Arrangement are consistent in all material respects with the terms of this Agreement and the Plan of Arrangement. In addition, the Company shall not object to the Purchaser’s legal counsel making such submissions on the hearing of the motion for the Interim Order and the application for the Final Order as such counsel considers appropriate, provided that the Company is advised of the nature of any submissions with reasonably sufficient time prior to the hearing and such submissions are consistent in all material respects with this Agreement and the Plan of Arrangement. The Company shall also oppose any proposal from any Person that the Final Order contain any provision inconsistent with this Agreement, and, if at any time after the issuance of the Final Order and prior to the Effective Date, the Company is required by the terms of the Final Order or by Law to return to Court with respect to the Final Order, it shall do so after notice to, and in consultation and cooperation with, the Purchaser. 2.7 Arrangement and Effective Date (a) The Company shall file the Articles of Arrangement with the Director to give effect to the Arrangement within three Business Days following the satisfaction or, where not prohibited by Law, the waiver by the applicable Party or Parties in whose favour the condition is, of all conditions set out in Article 6 (excluding any conditions that, by their terms, cannot be satisfied until the Effective Date, but subject to satisfaction or waiver of such conditions, to the extent they may be waived, on the Effective Date) but in any event no later than the Outside Date, unless such other date is agreed to by the Parties in writing, and the Arrangement shall be effective at the Effective Time on the Effective Date and will have all of the effects provided by applicable Law. (b) The closing of the Arrangement will take place by electronic transmission of documents by 8:00 a.m. (Toronto time) on the Effective Date, or at such other time and place as may be agreed to in writing by the Parties. 2.8 Payment of Consideration and Other Payments (a) The Purchaser will, following receipt of the Final Order by the Company and in any event no later than the Effective Date and prior to the filing by the Company of the Articles of Arrangement in accordance with Section 2.7(a), deposit or cause to be deposited in escrow with the Depositary (the terms and conditions of such escrow to be satisfactory to the Parties, acting reasonably) sufficient funds to satisfy the aggregate Consideration payable to the Company Shareholders pursuant to - 24 - Section 2.3(g) of the Plan of Arrangement. Such funds shall be held and paid out in accordance with Article 4 of the Plan of Arrangement. (b) The Company will, and the Purchaser acknowledges that (notwithstanding any provisions of this Agreement, including the covenants outlined in Section 5.1) the Company will, following receipt of the Final Order by the Company and in any event no later than the Effective Date and prior to the filing by the Company of the Articles of Arrangement in accordance with Section 2.7(a), deposit or cause to be deposited in escrow with the Depositary (the terms and conditions of such escrow to be satisfactory to the Parties, acting reasonably) sufficient funds to satisfy: (i) the aggregate payments set forth on Schedule 3.1(cc) of the Company Disclosure Letter, less applicable withholdings, which funds shall be held and paid out forthwith following the Effective Date to the recipients specified in Schedule 3.1(cc) of the Company Disclosure Letter; and (ii) the aggregate consideration payable to the former holders of the Options, RSUs and DSUs pursuant to Section 2.3(a), Section 2.3(b) and Section 2.3(d), respectively, of the Plan of Arrangement, which funds shall be held and paid out in accordance with Article 4 of the Plan of Arrangement. 2.9 Incentive Compensation Plans (a) Each Option, RSU and DSU will be dealt with in accordance with the Plan of Arrangement. The Company will take all reasonable steps required or advisable to give effect to the foregoing. (b) All amounts payable in respect of the Options, RSUs and DSUs pursuant to the Plan of Arrangement shall be paid to the applicable recipient in accordance with the Plan of Arrangement. (c) The Parties acknowledge that no deduction will be claimed in computing the income under the Tax Act of the Company or any Person not dealing at arm’s length with the Company in respect of any payment made pursuant to the Plan of Arrangement in respect of an Option to a holder of Options who is a resident of Canada or who is employed in Canada for purposes of the Tax Act to the extent that the deduction under paragraph 110(1)(d) of the Tax Act would otherwise be available to such holder of Options, and the Company and each applicable Person not dealing at arm’s length with the Company shall: (i) where applicable, make and file an election pursuant to subsection 110(1.1) of the Tax Act and otherwise comply with the requirements of such subsection in respect of the cash payments made in exchange for the surrender or termination of such Options; and (ii) provide evidence in writing of such election as contemplated by the Tax Act, it being understood that holders of Options will be entitled to claim any deductions available to such Persons pursuant to paragraph 110(1)(d) of the Tax Act in respect of the calculation of any benefit arising from the surrender of such Options and that the Company will deduct and withhold Taxes in accordance with the Tax Act (including, for greater certainty, amendments to and/or administrative guidance in respect of the Tax Act that may be released after the date hereof that address withholding obligations arising from the increase in the inclusion rate for individuals from one-half to two-thirds on the portion of capital gains and stock option benefits - 25 - realized in a taxation year that exceed $250,000) from payments to such holders of such Options under the Plan of Arrangement on the basis that such deduction is available. This Section 2.9(b) shall survive the Effective Date and is intended to be for the benefit of, and will be enforceable by, the holders of Options resident or employed in Canada and their respective heirs, executors, administrators and personal representatives and will be binding on the Company and its successors and assigns. 2.10 Treatment of Debentures The Debentures will be treated in accordance with the terms of the Debenture Certificate. (a) In the event that, prior to the Effective Time, either (A) the Purchaser requests that the Company, and the Company is entitled to, exercise its redemption rights under the Debentures in accordance with the terms of the Debenture Certificate, by way of issuance of Company Shares, in connection with the closing of the Arrangement, or (B) the holder of the Debentures exercises its conversion rights in accordance with the terms of the Debenture Certificate by delivering a notice to the Company (a “Conversion Notice”), the Debentures shall be converted into and exchanged for Company Shares prior to the Effective Time and such Company Shares issued on the conversion of the Debentures shall participate in the Arrangement on the same basis as other Company Shares issued and outstanding immediately prior to the Effective Time, and the Purchaser shall include in the amount to be deposited with the Depositary under Section 2.8 of this Agreement and Section 4.1(a)(i) of the Plan of Arrangement the aggregate Consideration required to be paid in respect of the additional Company Shares to be issued in accordance with this Section 2.10(a). (b) In the event that (A) the holder of the Debentures requires the Company to repurchase the Debentures in cash in connection with the closing of the Arrangement in accordance with the terms of the Debenture Certificate, or (B) as at the date that is 10 days prior to the Effective Date (or, if such day is not a Business Day, the Business Day immediately prior to such date), the holder of the Debentures has not delivered a Conversion Notice as contemplated in Section 2.10(a)(B) or otherwise notified the Company that it will require the Company to repurchase the Debenture in cash in accordance with Section 2.10(b)(A) and the Company has not (at the request of the Purchaser) exercised its redemption rights under Section 2.10(a)(A), the Company shall, at the Purchaser’s direction, provide the notification necessary to the holder of the Debentures ten days prior to the Effective Date (the “Redemption Notice Period”) and exercise its redemption rights under the Debentures in accordance with the terms of the Debenture Certificate, by way of a cash payment, in connection with the closing of the Arrangement (the “Default Redemption”). In each case of (A) or (B), provided the holder of the Debentures has not prior to the Effective Date exercised its conversion rights in accordance with the Debenture Certificate, the Purchaser shall, following receipt of the Final Order by the Company and in any event no later than the Effective Date and prior to the filing by the Company of the Articles of Arrangement in accordance with Section 2.7(a), lend to the Company (the “Debenture Purchaser Loan”) an amount equal to the aggregate amount required to redeem or repurchase, as applicable, the Debentures in accordance with their
- 26 - terms. The Debenture Purchaser Loan shall be in a form to be mutually agreed to by the Parties, acting reasonably. (c) For greater certainty, if the Default Redemption is triggered as contemplated in Section 2.10(b)(B) and during the Redemption Notice Period, the holder of the Debentures exercises its conversion rights under the Debentures and delivers a Conversion Notice in accordance with the terms of the Debenture Certificate, the Purchaser shall be bound by Section 2.10(a)(B) and include in the amount to be deposited with the Depositary under Section 2.8 of this Agreement and Section 4.1(a)(i) of the Plan of Arrangement the aggregate Consideration required to be paid in respect of the additional Company Shares to be issued upon the conversion of the Debentures under the Conversion Notice. 2.11 Announcement and Shareholder Communications The Parties shall jointly publicly announce the transactions contemplated hereby promptly following the execution of this Agreement, the text and timing of each such announcement to be approved by the Company and the Purchaser in advance, each acting reasonably. Neither the Company nor the Purchaser shall make any filing with any Governmental Entity or with any stock exchange with respect thereto without prior consultation with the other Party; provided, however, that the foregoing shall be subject to each Party’s overriding obligation to make any filing or issue any news release required under applicable Laws or stock exchange rules and the Party making such filing shall use all commercially reasonable efforts to give prior oral or written notice to the other Party and reasonable opportunity to review or comment on the filing, and if such prior notice is not possible, to give such notice immediately following the making of such filing. For the avoidance of doubt, the foregoing shall not prevent any Party from making internal announcements to its employees so long as such statements and announcements to the extent relating to this Agreement or the Arrangement, are limited in content to that was contained in the most recent news releases, public disclosures or public statements made by the Parties with respect to this Agreement or the Arrangement. Notwithstanding the foregoing, the provisions of this Section 2.9 related to the approval or contents of filings with Governmental Entities will not apply with respect to filings in connection with the Company Circular, the Interim Order or the Final Order which are governed by other Sections of this Agreement. 2.12 Withholding Taxes The Purchaser, the Company and the Depositary, as applicable, shall be entitled to deduct and withhold, or to direct any Person to deduct and withhold on their behalf, from any Consideration or other amounts otherwise payable or otherwise deliverable to any of the Company Securityholders or any other Person under the Plan of Arrangement or this Agreement such amounts as the Purchaser, the Company or the Depositary, as applicable, determines are required or permitted to be deducted or withheld from such consideration or other amount payable under any provision of any Law in respect of Taxes. Any such amounts that are deducted and withheld from the Consideration or such other amount payable pursuant to the Plan of Arrangement and that are remitted to the relevant Governmental Entity, shall be treated for all purposes under this Agreement as having been paid to the Company Securityholders or other Person to whom such amounts would otherwise have been paid. - 27 - 2.13 Adjustments to Consideration If, between the date of this Agreement and the Effective Time, the Company sets a record date, or otherwise declares, sets aside or pays any dividend or distribution prior to the Effective Time, then: (a) to the extent that the amount of such dividends or distributions per Company Share does not exceed the Consideration, the Consideration shall be reduced by the per Company Share amount of such dividends or distributions and (b) to the extent that the amount of such dividends or distributions per Company Share exceeds the Consideration, the Consideration shall be reduced to zero and such excess amount shall be placed in escrow for the account of the Purchaser or another Person designated by the Purchaser. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY 3.1 Representations and Warranties The Company hereby represents and warrants to the Purchaser and the Parent the representations and warranties set forth in this Section 3.1 as of the date hereof and as of the Effective Date, and acknowledges that the Purchaser and the Parent are relying upon such representations and warranties in connection with the entering into of this Agreement and the carrying out of the transactions contemplated herein: (a) Special Committee and Board Approval. (i) The Special Committee, after, among other things, consultation with its financial and legal advisors, has unanimously recommended to the Company Board that the Company Board approve this Agreement and the Arrangement and recommend that the Company Shareholders vote in favour of the Arrangement Resolution. (ii) The Company Board, upon the unanimous recommendation of the Special Committee and after, among other things, consultation with its financial and legal advisors, has unanimously: (i) determined that the consideration to be received under the Arrangement is fair from a financial point of view to the Company Shareholders (other than the Purchaser, the Parent and their respective affiliates) and that the Arrangement is in the best interests of the Company; (ii) resolved to recommend that the Company Shareholders vote in favour of the Arrangement Resolution; and (iii) authorized the entering into of this Agreement and the performance by the Company of its obligations hereunder. (b) Organization. The Company is duly organized and is a corporation validly existing and in good standing under the Laws of the Province of Ontario. The Company has full corporate power and capacity to own and lease its property and to carry on the Business. Except as would not, individually or in the aggregate, have a Material Adverse Change, the Company is duly qualified, licensed or registered to carry on business in the jurisdictions in which it carries on business and owns property where so required by the laws of such jurisdictions and is not otherwise precluded from carrying on business or owning property in such jurisdictions by any other commitment, agreement, or document. To the knowledge of the Company, no proceeding has been instituted in any such jurisdiction revoking, - 28 - limiting or curtailing, or seeking to revoke, limit or curtail, such power, capacity or qualification. True and complete copies of the constating documents of the Company have been disclosed to the Purchaser and no action has been taken to amend or supersede such documents. (c) Capitalization. (i) The Company is authorized to issue an unlimited number of Company Shares, of which 365,608,280 Company Shares are issued and outstanding as of the date hereof. All of the issued and outstanding Company Shares are fully paid and non-assessable and have been duly and validly authorized and issued. As of the date hereof, there are 12,216,700 Company Shares issuable on the exercise of outstanding Options, 5,660,000 Company Shares issuable on the settlement of outstanding RSUs, 3,162,643 Company Shares issuable on the settlement of outstanding DSUs, 16,130,000 Company Shares issuable on the exercise of outstanding Company Warrants, and 38,500,000 Company Shares issuable on the conversion of the Debentures. No other securities of the Company are issued and outstanding other than the Company Shares referred to in this paragraph 3.1(c)(i) and the Convertible Securities referred to in Schedule 3.1(c)(vi) to the Company Disclosure Letter. The Company has provided to the Purchaser (i) for all of the outstanding Options, a true and complete list setting out the name of each holder of an Option, the number of Options held by such person and the exercise price, date of grant, vesting schedule and expiry date of each such Option, as well as a true and complete copy of the Legacy Option Plan and the Omnibus Incentive Plan and (ii) for all outstanding RSUs and DSUs, a true and complete list setting out the name of each holder of an RSU or DSU and the date of grant and vesting schedule of each RSU and DSU as well as a true and complete copy of the Legacy RSU Plan and the Legacy DSU Plan. (ii) All outstanding Company Shares, and the Company Shares to be issued on the exercise of Options, RSUs and DSUs, have been duly authorized. The outstanding Company Shares are, and the Company Shares to be issued on the exercise of Options, RSUs and DSUs will be when issued, validly issued and outstanding as fully paid and non-assessable shares. (iii) Except as set forth in Schedule 3.1(c)(iii) to the Company Disclosure Letter, there are no outstanding bonds, debentures or other evidence of indebtedness of the Company having the right to vote (or that are convertible for or exercisable into securities having the right to vote) with the holders of the Company Shares on any matter. There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any outstanding Company Shares or with respect to the voting or disposition of any outstanding securities of the Company. (iv) No holder of securities issued by the Company has any right to compel the Company to register or otherwise qualify securities for public sale in Canada, the United States or elsewhere. - 29 - (v) The rights, privileges, restrictions and conditions attached to the Company Shares are as set out in the articles of incorporation of the Company together with any amendments thereto or replacements thereof. (vi) Except as set forth in Schedule 3.1(c)(vi) to the Company Disclosure Letter, no Person has any Convertible Securities. Schedule 3.1(c)(vi) to the Company Disclosure Letter sets out the number, date of expiry and exercise or conversion price of each Convertible Security, as applicable. Except as set out in Schedule 3.1(c)(vi) to the Company Disclosure Letter, no Person has any existing participation right or pre-emptive right or right of first refusal in respect of the allotment and issuance of any unissued or other shares of the Company. (d) Authority. The Company has the requisite power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company enforceable against the Company by the Purchaser in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction. No other corporate proceedings are necessary to authorize the execution, delivery and performance of this Agreement or the completion of the transactions contemplated hereby, other than the approval of the Company Board of the Company Circular, approval by the Company Shareholders of the Arrangement Resolution in the manner required by the Interim Order and the approval of the Arrangement by the Court. (e) No Violation. (i) Except as set out in Section 3.1(e) of the Company Disclosure Letter, the execution and delivery by the Company of this Agreement and the performance by it of its obligations under this Agreement and the acquisition of Company Shares pursuant to the Arrangement will not: (A) result (with or without notice or the passage of time) in a material violation or breach of or constitute a default under, require an Authorization to be obtained under or give rise to any third party right of termination, amendment, cancellation, acceleration, penalty or payment obligation or right of purchase or sale or pre-emptive or participation right under, any provision of: (1) its articles, by-laws or other constating documents; (2) any Material Contract; (3) any applicable Law; (4) any note, bond, mortgage, indenture, instrument, contract, agreement, lease, Authorization or government grant or licence to which the Company is party or by which it is bound; or
- 30 - (5) any judgment, decree, order or award of any Governmental Entity or arbitrator; (B) give rise to any right of termination, amendment, acceleration or cancellation of indebtedness of the Company, or cause any credit available to the Company which is material to the Company, taken as a whole, to cease to be available, or cause any security interest in any assets of the Company to become enforceable or realizable; (C) give rise to any rights of first refusal or trigger any change in control provisions or any restriction or limitation under any such note, bond, mortgage, indenture, contract, agreement, lease, Authorization or government grant or licence; or (D) result in the imposition of any Encumbrance upon any assets of the Company, except in the case of paragraph (A) (other than (A)(1)) to (D) as would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Change or that would prevent or materially delay the ability of the Company to consummate the Arrangement. (ii) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required to be obtained by the Company in connection with the consummation of the transactions contemplated by the Plan of Arrangement and this Agreement other than those which are expressly contemplated by the Plan of Arrangement and this Agreement and except as would not, individually or in the aggregate, reasonably be expected to be material to the Company or be reasonably likely to materially delay the consummation of the transactions contemplated by the Plan of Arrangement and this Agreement. (iii) To the knowledge of the Company, there are no pending changes to applicable Laws or governmental position that could reasonably be expected to materially affect the business of the Company. (f) Subsidiaries. The Company has no Subsidiaries and no direct or indirect interest in any other corporation, association, incorporated joint venture or other entity, other than as set out on Schedule 3.1(f) to the Company Disclosure Letter. (g) Corporate Records. The corporate records and minute books of the Company which have been made available to the Purchaser, are complete and true and correct in all material respects and such minute books contain copies of minutes of all meetings of the directors, committees of directors and holders of Company Shares and of all written resolutions of such directors, committees and holders of Company Shares, other than those in connection with this Agreement and the transactions contemplated hereby, which minutes or resolutions have been passed but have not been finalized and included in the minute books. (h) Public Filings. The Company has filed all material documents or information required to be filed by it under applicable Canadian Securities Laws and by the - 31 - TSX. All of the Company Public Documents, as of their respective dates (and as of the dates of any amendments there-to), complied as to both form and content in all material respects with the requirements of applicable Canadian Securities Laws or were amended on a timely basis to correct deficiencies identified by securities commissions or similar securities regulatory authorities. All of the Company Public Documents are publicly available on SEDAR+. The Company has not filed any confidential material change report with any securities regulatory authority that at the date hereof remains confidential. Other than in respect of the transactions contemplated by this Agreement, there is no material fact concerning the Company which has not been disclosed in the Company Public Documents filed and available on SEDAR+ on or before the date hereof. (i) Financial Statements. (i) The Financial Statements (i) have been prepared in accordance with IFRS, applied on a consistent basis throughout the periods involved or as noted therein, (ii) comply as to form in all material respects with applicable requirements of the Canadian Securities Laws, (iii) are, in all material respects, consistent with the books and records of the Company, including the books and records of the Company, and (iv) present fairly, in all material respects, the financial position of the Company as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified. (ii) No senior manager, officer or director of any of the Company nor, to the Company’s knowledge, the Company’s independent auditor has identified or been made aware of any fraud involving employees (including senior management) who prepare or review the financial statements (or any inputs to such financial statements) of the Company or any claim or allegation regarding same. (iii) There are no material off-balance sheet transactions, arrangements or obligations (including contingent obligations) of the Company relating to the Material Properties or the Material Projects, which are required to be disclosed and are not disclosed or reflected in the Financial Statements, and the Company does not have any material liabilities which are not disclosed or referred to in the Financial Statements or the Company Public Documents. (j) Independence of Auditors. The auditors of the Company are independent public accountants as required under Canadian Securities Laws. There has not been a “reportable event” (within the meaning of Section 4.11 of NI 51-102) with the present or any former auditor of the Company. (k) Liabilities and Indebtedness. (i) Except as disclosed in the Company Public Documents (including any notes thereto) and Schedule 3.1(k) of the Company Disclosure Letter, the Company does not have any material liabilities or obligations of any nature (whether indirect or direct, accrued, absolute or contingent), or any obligation to issue any debt securities, or guarantee, endorse or otherwise - 32 - become responsible for, the obligations of any other person, in each case other than liabilities or obligations incurred in the Ordinary Course of Business or pursuant to the terms of this Agreement. (ii) Except as disclosed in the Company Public Documents (including any notes thereto) and Schedule 3.1(k) of the Company Disclosure Letter, the Company is not party to or bound by or subject to: (i) any bond, debenture, promissory note, credit facility or other similar Contract evidencing indebtedness or potential indebtedness for borrowed money; or (ii) any Contract, whether written or oral, to create, assume or issue any of the foregoing. (l) Books and Records. (i) The financial books, records and accounts of the Company in all material respects: (A) have been maintained in accordance with IFRS on a basis consistent with prior years; (B) are stated in reasonable detail and accurately and fairly reflect the trans-actions and dispositions of the assets of the Company as at the respective dates thereof; and (C) accurately and fairly reflect the basis for the financial statements of the Company as at the relevant time. (ii) The Company has not maintained or maintains any slush fund, off-book account, or unrecorded transactions. (m) Absence of Certain Changes or Events. (i) Since December 31, 2023, except as disclosed in the Company Public Documents and Schedule 3.1(m) of the Company Disclosure Letter, the Company has not: (A) paid or satisfied any material obligation or liability, absolute or contingent, other than current liabilities or obligations disclosed in the Financial Statements and current liabilities or obligations incurred in the Ordinary Course; (B) declared, set aside or paid any dividend, redeemed or repurchased any outstanding shares, or made any distribution of its properties or assets to the Company Shareholders, other than salaries, fees and other compensation paid in each case in the Ordinary Course; (C) suffered a loss, destruction or damage to any of its assets (including the Mining Rights), whether or not insured, that is material to the Company; - 33 - (D) authorized or agreed to any material change in the terms and conditions of employment of any Company Employee, including the terms of any Employee Plan, other than changes required by applicable Law, a Governmental Entity or the terms of an existing Contract or disclosed to the Purchaser in writing; (E) entered into any collective bargaining agreement or Contract with any employee association, trade union, labour organization or similar entity; (F) waived or cancelled any right, claim or debt owed to it; (G) transferred, assigned, sold or otherwise disposed of any of its assets exceeding $500,000 in value in the aggregate; (H) incurred or assumed or guaranteed any liability, obligation or expenditure of any nature, absolute or contingent, other than liabilities incurred in the Ordinary Course and in an amount less than $500,000 in the aggregate; (I) committed to make or perform any capital expenditures or maintenance or repair projects, except for capital expenditures or maintenance or repair projects incurred in the Ordinary Course with a value not greater than $500,000 in the aggregate; (J) entered into any commitment or transaction not in the Ordinary Course; (K) entered into or authorized or agreed to any material changes in any Material Contract; (L) entered into any Contract with a Related Party; (M) made or agreed to make any bonus or profit-sharing distribution or similar payment of any kind, other than bonuses to Company Employees in the Ordinary Course; (N) arranged any material debt financing or incurred or materially increased its indebtedness for borrowed money; (O) made any change in any method of accounting or auditing practice except as disclosed in the Financial Statements; (P) hypothecated, pledged, subjected to an Encumbrance, granted a security interest in or otherwise encumbered any of its material assets (including the Mining Rights), whether tangible or intangible other than in the Ordinary Course; (Q) made any material gift of money or of any property or assets to any Person; or
- 34 - (R) authorized, agreed or otherwise become committed to do any of the foregoing. (n) Derivative Transactions. The Company does not have any material obligations or liabilities, direct or indirect, vested or contingent in respect of any streaming transactions, rate swap transactions, basis swaps, forward rate transactions, commodity swap, commodity options, equity or equity index swaps, equity or equity index options, bond options, interest rate options, foreign exchange transactions, cross-currency rate swap transactions or currency options or other similar transactions (including any option with respect to any such transactions) or any combination of such transactions. (o) No Options. Except as disclosed on Schedule 3.1(o) to the Company Disclosure Letter, no Person has any Contract (including an option) or any right or privilege capable of becoming same for the purchase from the Company of any of its material assets (including the Mining Rights) and no Person other than the Purchaser has any oral or written agreement, option, warrant, privilege or right, or any right capable of becoming any of the foregoing (whether legal, equitable, contractual or otherwise) for the purchase of the Mining Rights or any portion thereof. (p) Permits. (i) Schedule 3.1(p) to the Company Disclosure Letter sets out each material Permit held by the Company or the Partnership and pending applications for material Permits relating to the Material Projects, the applicable Permit number and the dates of grant and of expiry. To the knowledge of the Company, there are no other material Permits necessary to explore or to carry on the Business presently conducted relating to the Material Projects as described in the Company Public Documents. To the Company’s knowledge, there is no reason to believe that any material Permits that are necessary to explore, develop, construct, operate, close, re-claim and rehabilitate the Material Projects will not be obtained in due course. (ii) Each material Permit held by the Company relating to the Material Projects is validly subsisting and in good standing in all material respects and the Company or its applicable Subsidiary is not in default or breach of any such Permit and no proceeding is pending or, to the knowledge of the Company, threatened to revoke or limit any such Permit and, to the knowledge of the Company, there are no facts or circumstances that may reasonably result in such a revocation or limitation. There are no grounds, facts or circumstances that could reasonably be expected to prevent the renewal of any material Permit held by or granted to the Company or relating to the Material Projects. The Company has provided a true and complete copy of each material Permit held by the Company relating to the Material Projects and all amendments thereto to the Purchaser. (q) Mining Rights. (i) All Mining Rights have been validly located, registered and recorded in accordance with applicable Laws and are valid, subsisting and in good - 35 - standing. All Mining Rights have active status and the Company has not received written notice of, nor has any knowledge of, any pending or threatened suspension or revocation proceedings in respect of such Mining Rights or any of them from any Governmental Entity. All fees, mandatory work expenditures, rentals, taxes or any other payments required to be made in relation to the Mining Rights have been made. (ii) The Company is not aware of any surface rights held or purported to be held by any Person (other than the Partnership) to occupy or otherwise use the surface of the land comprising the Mining Rights, or of any fact or condition which would result in the interference with or termination of the Company or the Partnership’s (as applicable) access to the land comprising the Mining Rights or of its surface rights necessary to explore for and develop the Mining Rights and to conduct all exploration and development activities thereon. (iii) Neither the Company nor to the knowledge of the Company, the Partnership, has received written notice of, or has knowledge of, any outstanding or threatened claim, action, litigation or proceeding with respect to the Mining Rights. (iv) There is no outstanding legal proceeding by or against the Company or to the knowledge of the Company, the Partnership in respect of the Mining Rights. (v) There is no outstanding writ, judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator against the Company or to the knowledge of the Company, the Partnership in respect of the Mining Rights that remains outstanding. (vi) Neither the Company nor the Partnership, as applicable, is in default, and to the knowledge of the Company, no other party is in default, of any provisions of any such agreements, documents or instruments relating to the Mining Rights, nor has any such default been alleged. (vii) Except as disclosed in Schedule 3.1(q)(vii) to the Company Disclosure Letter, no commission, licence fee, royalty, interests from production or similar payment to any Person with respect to the Mining Rights of the Company or the Partnership is payable or has been granted. Except as disclosed in Schedule 3.1(q)(vii) to the Company Disclosure Letter, there are no farm-in or earn-in rights, back-in rights, rights of first refusal, rights of first offer, options or other participation interests, rights of preference or similar rights or provisions that affect or could affect the Material Properties or the Material Projects or the right of the Company to dispose of any Mining Rights other than the rights granted under the Windfall Agreements. (r) Environmental. Except as disclosed in Schedule 3.1(r) to the Company Disclosure Letter: - 36 - (i) the Company, or to the knowledge of the Company, the Partnership, the Material Properties and the Material Projects and any other currently owned, used or occupied assets of the Company and all operations thereon have been, since the Company or the Partnership owned, used or occupied such assets, and are in compliance in all material respects with Environmental Laws; (ii) to the knowledge of the Company, there are and have been no conditions, occurrences, or Hazardous Substances which could reasonably be expected to form the basis of a claim against the Company or the Partnership relating to Hazardous Substances or any actual, potential or alleged violation of or failure of the Company or the Partnership to comply with any Environmental Laws that could give rise to material liability; and (iii) none of the Company or, to the knowledge of the Company, the Partnership, the Material Properties and the Material Projects or any of the Company’s other assets is subject to any, nor is there any pending or, to the knowledge of the Company, threatened claim, action, notice, demand, allegation, investigation, proceeding, application, order, judgment, requirement or directive relating to Hazardous Substances or any actual, potential or alleged violation of or failure of the Company or the Partnership to comply with any Environmental Law that could give rise to material liability. (s) Indigenous Matters. (i) Except as disclosed in Schedule 3.1(s)(i) to the Company Disclosure Letter, neither the Company nor the Partnership have received notice that the Material Properties or the Material Projects are subject to any Action by any Indigenous Groups relating to the Material Properties or the Material Projects, and there are no current or pending Actions by any Indigenous Groups or any actual or, to the knowledge of the Company, potential indigenous archeological, burial, cultural or heritage sites or any specific or comprehensive claims with respect to indigenous rights or treaty right affecting the Material Properties or the Material Projects. (ii) Except as disclosed in Schedule 3.1(s)(ii) to the Company Disclosure Letter, neither the Company nor to the Company’s knowledge, the Partnership has entered into any written or oral arrangements or agreements with any Indigenous Group to provide benefits, pecuniary or otherwise, with respect to the Material Properties or the Material Projects at any stage of development, and neither the Company nor to the Company’s knowledge, the Partnership, has offered to any Indigenous Group any benefits with respect to the Material Properties or the Material Projects at any stage of development, or engaged in discussions, negotiations or similar communications with any Indigenous Group or provided undertakings to any Indigenous Groups regarding the foregoing or otherwise in relation to the Material Properties or the Material Projects. (t) Surface Rights. None of the Mining Rights is the subject of any Action that has been taken or threatened by any Person which would in any way encumber, limit, - 37 - restrict or cause interference, in any material respect, with any Mining Operations carried out in connection with any of the Material Properties. (u) Hazardous Conditions. Except as disclosed on 3.1(u), there are no unprotected mine shafts, mine openings or workings or open pits on the Material Properties which represent a potential hazard for human health or safety. (v) Technical Disclosure. The Company’s technical disclosure disclosed in the Company Public Documents was prepared and disclosed in all material respects in accordance with accepted mining, engineering, geoscience and other approved industry practices, as applicable, and NI 43-101 as it was in effect on the date of the filing of the applicable document. The information provided by the Company to the Qualified Persons (as defined in NI 43-101 as it was in effect on the date of the filing of the applicable document) in connection with the preparation of such disclosure was complete and accurate in all material respects at the time such information was furnished. (w) Intellectual Property. (i) Except as set out in Schedule 3.1(w)(i) of the Company Disclosure Letter, the Company has good title to the material Intellectual Property Rights it purports to own (the “Company Intellectual Property”), free and clear of all Encumbrances, and with respect to items not owned by the Company, sufficient rights to use any such Intellectual Property Rights. All rights in and to the Company Intellectual Property are valid and enforceable subject only to limitations under bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and the discretion that a court may exercise in granting of equitable remedies such as specific performance and injunction. (ii) To the Company’s knowledge, there is no infringement or misappropriation by any Person of the Company Intellectual Property. To the Company’s knowledge, the Company’s Intellectual Property does not infringe the Intellectual Property Rights of any Person and no claims are pending or threatened in writing alleging that the Company Intellectual Property infringes any such rights or challenging the validity, ownership or enforceability of the Company Intellectual Property. The consummation of the transactions contemplated by this Agreement does not impair any rights of the Company in or to any Company Intellectual Property. (x) Employment and Consultant Matters. (i) To the knowledge of the Company, there has not been, since January 1, 2023, any material breach of any employment, consulting or management services Contract to which the Company is a party. (ii) The Company is not bound by or a party to any collective bargaining agreement or other Contract with an employee association, trade union, labour organization or similar entity. No labour dispute, organizing effort, work stoppage or labour strike impacting the employees of the Company exists, or, to the knowledge of the Company, is imminent or threatened.
- 38 - (iii) All profit sharing, equity or phantom-equity compensation plans of the Company are disclosed in the Company Public Documents. No Employee Plan is a “registered pension plan”, as that term is defined in subsection 248(1) of the Tax Act. No Employee Plan provides for post-retirement or post-employment life, health or similar benefits. (iv) The Company has been since January 1, 2023, and are, in compliance, in all material respects, with all applicable Laws with respect to employment and labour, occupational health and safety and immigration and the administration of Employee Plans and there are no current or, to the knowledge of the Company, threatened material proceedings against the Company before any Governmental Entity with respect to any of the employees or consultants or Employee Plans of the Company. There are no material complaints, claims, charges, levies, investigations or penalties outstanding or, to the knowledge of the Company, threatened, nor are there any material orders, decisions, directions or convictions currently registered or outstanding by any Governmental Entity, in either case against or in respect of the Company under or in respect of any employment or labour, occupational health and safety and immigration Laws. (v) Schedule 3.1(x)(v) to the Company Disclosure Letter lists all Company Employees as of the date hereof, together with their titles, service dates, current salary or hourly rate of pay, benefits, annual vacation entitlement, commissions and target annual bonus. (y) Acceleration of Benefits. (i) Except as otherwise provided for in this Agreement or as disclosed on Schedule 3.1(y) to the Company Disclosure Letter, as a result of the performance of the Company’s obligations hereunder and the Arrangement, no Person will become entitled to: (A) any retirement, severance, bonus or other similar payments from the Company; (B) the acceleration of the vesting or the time to exercise any outstanding Option or any awards under or in respect of any Employee Plan; (C) the forgiveness or postponement of payment of any indebtedness owing by such Person to the Company; or (D) any additional payments or compensation under or in respect of any Employee Plan. (z) Legal Proceedings. There is no material suit, claim, action, charge, investigation, inquiry, proceeding pending or, to the knowledge of the Company, threatened against or naming as a party thereto the Company or its property or assets that, individually or in the aggregate, if determined adverse to the interests of the Company, would: (i) have a Material Adverse Change, or (ii) as of the date of this - 39 - Agreement, reasonably be expected to impair, in any material respect, the ability of the Company to perform its obligations under this Agreement or to consummate the Arrangement, or prevent or materially delay the consummation of any of the Arrangement and the other transactions contemplated by this Agreement. (aa) Tax Matters. (i) The Company duly filed on a timely basis all Tax Returns required to be filed by it and all such returns are true, correct and complete in all material respects. The Company paid, on a timely basis, all assessments and reassessments, and all other material Taxes which are due and payable by it. The Company made adequate provision for all material Taxes payable by it for the current period and any previous period for which Tax Returns are not yet required to be filed. There are no audits, actions, suits, proceedings, investigations or claims pending or, to the knowledge of the Company, threatened against the Company in respect of Taxes nor are any material matters under discussion with any Governmental Entity relating to Taxes asserted by any such authority. The Company withheld from each payment made to any of its past or present employees, officers or directors, to any non-resident of Canada and to any other persons, the amount of all material Taxes and other deductions required to be withheld therefrom and has paid the same to the proper taxing authority within the time required under any applicable Law. The Company remitted to the appropriate tax authority, when required by Law to do so, all material amounts collected by it on account of goods and services tax, harmonized sales tax, Québec sales tax and other Taxes. The taxation year of the Company ends on December 31st of each year. The Canadian federal income tax, provincial income tax and mining tax of the Company have been assessed by the Canada Revenue Agency and Revenu Quebec, as applicable, for all taxation years up to and including the taxation year ended December 31, 2023 and there are no agreements, waivers or other arrangements providing for an extension of time with respect to the filing of any Tax Return, or payment of any Tax. The Company has not claimed an amount for a tax credit, refund, rebate, overpayment or similar adjustment of Taxes to which it is not entitled, and has retained all documentation prescribed by applicable Law and in accordance with applicable Law to support any claims for such amounts. (ii) The Company Public Documents contain complete, accurate and current disclosure concerning (i) the issuance by the Company of “flow-through shares” within the meaning of the Tax Act and the QTA, and (ii) the outstanding obligations of the Company to incur or renounce expenditures in connection with flow-through shares. (iii) The Company has not breached the terms of any agreement pursuant to which it has issued shares that were intended to qualify as “flow-through shares” (within the meaning of the Tax Act or the QTA) and has not failed to incur or renounce any amount it had undertaken to incur or renounce to subscribers for such shares. - 40 - (bb) Material Contracts. Schedule 1.1 to the Company Disclosure Letter sets out a list of all the Material Contracts of the Company. Neither the Company nor, to the knowledge of the Company, any other Person is in material default in any respect in the observance or performance of any term, covenant or obligation to be performed by the Company or such other Person under any Material Contract and all such Material Contracts are in good standing, constitute valid and binding agreements of the Company, and, to the knowledge of the Company, of each of the parties thereto, are in full force and effect and are enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction. (cc) Change of Control. Other than as set out on Schedule 3.1(cc) to the Company Disclosure Letter, neither the entering into of this Agreement nor the acquisition of Company Shares pursuant to the Plan of Arrangement will trigger any change of control or similar provisions in or result in any obligation on the part of the Company to make a change of control or similar payment under any Contract to which the Company is a party or by which they are bound. (dd) Restrictive Documents. Other than as set out in Schedule 3.1(dd) to the Company Disclosure Letter, the Company is not subject to, or a party to, any restriction under its Articles, any Law, any Contract or instrument, any Encumbrance or any other restriction of any kind or character in each case that would reasonably be expected to prevent or restrict (i) the consummation of the transactions contemplated by this Agreement, (ii) the compliance by the Company with the terms, conditions and provisions hereof, (iii) the declaration of dividends by the Company, (iv) any business practice of the Company, or (v) the operation of any business by the Company after the date hereof. (ee) Related Party Transactions. (i) Except as disclosed in the Company Public Documents: (A) the Company has not (A) made any payment or loan to, or borrowed any moneys from or otherwise been indebted to, any Related Party of the Company; or (B) been a party to any Contract with any Related Party of the Company; and (B) to the knowledge of the Company, no management or key employee, executive officer or director of the Company and no entity which is an affiliate or associate of one or more of such individuals: (1) owns, directly or indirectly, any interest in (except for shares representing less than 10% of the outstanding shares of any class or series of any publicly traded company), or is an officer, director or employee of or consultant to, any Person which is, or is engaged in business as, a competitor of the Business or the Company or a lessor, lessee, supplier, - 41 - distributor, agent or customer of the Business or the Company; (2) owns, directly or indirectly, in whole or in part, any property that the Company uses or intends to use in the operation of the Business; or (3) has any cause of action or other claim whatsoever against, or owes any amount to, the Company, except for any liabilities reflected in the Financial Statements and claims in the Ordinary Course of Business for accrued vacation pay and accrued benefits. (ff) No Insolvency Proceedings. No act or proceeding has been taken by or against the Company in connection with the dissolution, liquidation, winding up, bankruptcy or reorganization of the Company or for the appointment of a trustee, receiver, manager or other administrator of the Company or any of their properties or assets nor, to the knowledge of the Company, is any such act or proceeding threatened. The Company has not sought protection under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) or similar legislation. Neither the Company nor any of its properties or assets are subject to any outstanding judgment, order, writ, injunction or decree that involves or may involve, or restricts or may restrict, the right or ability of the Company to conduct its business in all material respects as it has been carried on prior to the date hereof, or that has had or would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change or to prevent or significantly impede or materially delay the completion of the Arrangement. (gg) Insurance. The assets of the Company, and its business and operations, are insured against loss or damage with responsible insurers on a basis consistent with insurance obtained by reasonably prudent participants in comparable businesses, and such coverage is in full force and effect, and the Company has not materially breached the terms of any policies in respect thereof or failed to promptly give any notice or present any material claim thereunder. (hh) Internal Controls. The Company maintains a system of internal accounting and other controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations and (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with IFRS. The Company reasonably believes that the Company’s internal controls over financial reporting are effective and the Company is not aware of any significant deficiencies in the design or operation of its internal controls over financial reporting. (ii) Significant Acquisitions. The Company is not in discussions with another Person in respect of any proposed acquisition of a business that has progressed to a state where a reasonable person would believe that the likelihood of the Company, directly or indirectly, completing the acquisition is high and that, if completed by
- 42 - the Company, directly or indirectly, as at the date hereof, would be a “significant acquisition” pursuant to Canadian Securities Laws. (jj) Shareholder and Similar Agreements. Other than the Windfall Shareholder Agreement and the Partnership Agreement, the Company is not a party or subject to any shareholder, pooling, voting trust or other similar agreement relating to the issued and outstanding securities in the capital of the Company and, to the knowledge of the Company, there is no agreement between any Company Shareholders or by a director of the Company that affects or relates to the voting or giving of written consents with respect to any of the Company’s securities and the Company has not adopted a shareholder rights plan or any other similar plan or agreement. (kk) Transfer Agent. TSX Trust Company at its principal offices in the Toronto, Ontario is the duly appointed registrar and transfer agent of the Company with respect to the Company Shares. (ll) Securities Laws Matters. (i) The Company is a “reporting issuer” under the Canadian Securities Laws of each of the provinces of Alberta, British Columbia, Ontario, Québec and is not noted as being in default on the list of reporting issuers maintained under applicable Canadian Securities Laws of such jurisdictions and the Company Shares are listed for trading on the TSX, and in particular, without limiting the foregoing, the Company is in compliance with its disclosure obligations under Canadian Securities Laws. All filings and fees due and payable by the Company pursuant to Canadian Securities Laws and general corporate law have been made and paid. The Company has not taken any action to cease to be a reporting issuer in any jurisdiction in which it is a reporting issuer and has not received any notification from a Securities Regulator seeking to revoke the reporting issuer status of the Company. The Company is not subject to public company reporting obligations in any other jurisdiction. (ii) No securities commission or similar regulatory authority or stock exchange has issued any award, decision, injunction, judgment, order, ruling, subpoena, or verdict preventing or suspending trading of any securities of the Company, and the Company is not in default of any material requirement of applicable Canadian Securities Laws. No delisting, suspension of trading or cease trade or other order or restriction with respect to any securities of the Company is pending or, to the knowledge of the Company, threatened or is expected to be implemented or undertaken, and the Company is not subject to any formal or informal review, enquiry, investigation or other proceeding relating to any such order or restriction. (iii) As of their respective filing dates, each of the Company Public Documents complied with the requirements of applicable Canadian Securities Laws and none of the Company Public Documents contained any untrue statement of a material fact or omitted to state a material fact required to - 43 - be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. (iv) The Company is a “foreign private issuer” within the meaning of Rule 405 of Regulation C under the U.S. Securities Act of 1933. (v) The Company is not registered, and is not required to be registered, as an “investment company” pursuant to the U.S. Investment Company Act of 1940. (vi) To the knowledge of the Company, neither the Company nor any of the Company Public Documents are the subject of an ongoing audit, review, comment or investigation by any Securities Regulator. (mm) No Default. The Company is not in default under, and there exists no event, condition or occurrence which, after notice or lapse of time or both, would constitute such a default or would trigger a right of termination under: (i) any note, bond, mortgage, indenture or other instrument evidencing any indebtedness to which the Company is a party; or (ii) any other contract, agreement, lease, letter of intent, offer, Authorization or government grant or other instrument or obligation, which would individually or in the aggregate, be reasonably expected to result in a Material Adverse Change. (nn) Litigation. There are no investigations, actions, suits or proceedings at Law or in equity or by or before any Governmental Entity now pending against or affecting the Company, properties or assets reasonably likely to prevent or materially delay consummation of the transactions contemplated by this Agreement. (oo) Compliance with Laws. Except as would not, individually or in the aggregate have had or reasonably be expected to have a Material Adverse Change, the Company is in compliance with all Laws applicable to them and to the conduct or operation of business by the Company and to the ownership or use of any of its assets. (pp) Anti-Corruption, Anti-Money Laundering and Export Compliance. (i) The Company has fully complied with, and is currently in full compliance with, the Canadian Corruption of Foreign Public Officials Act, Part IV and section 426 of the Canadian Criminal Code, any applicable provisions of the U.S. Foreign Corrupt Practices Act, and any other applicable Laws of any jurisdiction that prohibits payments to improperly influence government officials or private individuals (collectively, “Anti-Corruption Laws”). Neither the Company nor, to the knowledge of the Company, any director, officer, employee, agent, distributor, consultant, affiliate or other person acting on behalf of the Company has, taken any action, either directly or indirectly, that would result in a violation of any Anti-Corruption Law, including making, offering, authorizing or promising any payment, contribution, gift, entertainment, bribe, rebate, kickback or any other thing of value, regardless of form or amount, to any (i) foreign or domestic Government Official or Person of Concern; (ii) employee of a foreign or domestic government owned or controlled entity; (iii) foreign or domestic political party, political official or candidate for political office; (iv) any officer - 44 - or employee of a public international organization; (v) any employee or official of an Indigenous Group; or (vi) any other Person, in each case, to obtain a business or competitive advantage, as consideration for an act, omission, or influence to receive favourable treatment in obtaining or retaining business, or to pay for favourable treatment already secured. (ii) Neither the Company nor, to the knowledge of the Company, any director, officer, employee, agent, distributor, consultant, affiliate or other Person acting on behalf of the Company: (i) is or in the past five years has been, under administrative, civil or criminal investigation, indictment, information, suspension, debarment or audit (other than a routine contract audit) by any Person, in connection with alleged or possible violations of the Anti- Corruption Laws; or (ii) has within the past five years received notice from, or made a voluntary disclosure to, the Royal Canadian Mounted Police or other Governmental Entity regarding alleged or possible violations of any Anti-Corruption Law. (iii) To the best knowledge of the Company, neither the Company nor any director, employee, affiliate or agent of the Company, or any Person acting on the Company’s behalf, has, in connection with, or otherwise relating to, the operation of the Business, engaged in any activity or conduct that has resulted in or will result in a violation of any applicable antitrust or competition laws. (iv) The Company and its directors, officers, employees and agents are and have at all times been in material compliance with all applicable anti-money laundering laws, rules, and regulations, including anti-money laundering- related government guidance (collectively, “AML Laws”). There is no pending investigation, inquiry or enforcement action against the Company or, to the knowledge of the Company, any of its officers, directors or employees relating to any violation or potential violation of any AML Law related to the Business. (v) The Company has not violated any applicable Laws, rules, or regulations governing exports, imports or re-exports to or from any country, including the export or re-export of goods, services or technical data from such country, or imposing trade embargoes or economic sanctions against other countries or persons (such legal requirements being collectively referred to as “Export Controls”). There is no pending investigation, inquiry or enforcement action against the Company or any of its officers, directors or employees relating to any violation or potential violation of any Export Controls related to the Business. (qq) Consents and Approvals. (i) Other than as set out in the Company Disclosure Letter, there are no Regulatory Approvals required to be obtained by the Company in order to complete the Arrangement. (ii) There is no requirement under applicable Canadian Securities Laws for the Company to make any filing, give any notice or obtain any Permit as a - 45 - condition to the lawful consummation of the transactions contemplated by this Agreement or otherwise obtain any Regulatory Approvals, other than filings required to be made following the Effective Time under applicable Canadian Securities Laws. Except for such notices as have been given and such consents as have been obtained, there is no requirement under any Material Contract to give any notice to, or to obtain the consent or approval of, any party to such Material Contract, relating to, in connection with or as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated this Agreement. (rr) Financial Advisors. (i) Except as disclosed in Schedule 3.1(rr)(i) to the Company Disclosure Letter, the Company has not retained nor will it retain any financial advisory, broker, agent or finder or paid or agreed to pay any financial advisory, broker, agent or finder on account of this Agreement or any transaction contemplated hereby. (ii) True and complete copies of the engagement letters between the Company and each of Maxit Capital LP, Canaccord Genuity Corp. and Fort Capital Partners have been provided to the Purchaser, and the Company has made true and complete disclosures to the Purchaser of all fees, commissions or other payments that may be incurred pursuant to such engagements or that may otherwise be payable to each of Maxit Capital LP, Canaccord Genuity Corp. and Fort Capital Partners. (iii) Other than the foregoing, the Company has not incurred any obligation or liability, contingent or otherwise, for brokerage fees, finders’ fees, agents’ commission or other similar forms of compensation with respect to the transactions contemplated by this Agreement. (ss) Fairness Opinions. (i) As of the date hereof, (i) Maxit Capital LP, the financial advisor to the Company, has delivered an oral opinion to the Company Board, (ii) Fort Capital Partners, the financial advisor to the Special Committee, has delivered an oral opinion to the Special Committee, and (iii) Canaccord Genuity Corp., the financial advisor to the Company, has delivered an oral opinion to the Company Board, in each case, that to the effect that as of the date of such opinion, subject to the assumptions and limitations to be set out in the written opinion related thereto, the Consideration to be received by the Company Shareholders pursuant to the Arrangement is fair from a financial point of view to the Company Shareholders (other than the Purchaser, the Parent and their respective affiliates) (collectively, the “Fairness Opinions”). (ii) the Company has been authorized by each of Maxit Capital LP, Canaccord Genuity Corp. and Fort Capital Partners to permit the inclusion of their respective Fairness Opinions and references thereto in the Company Circular.
- 46 - (tt) No other Purchaser Representations and Warranties. Except for the representations and warranties expressly set forth in this Agreement or in any certificate delivered pursuant to this Agreement, the Company hereby acknowledges that none of the Purchaser or any other Person on its behalf, has made or is making any other express or implied representation or warranty with respect to the Purchaser or its respective business or operations, including with respect to any information provided or made available to the Company or any of its Representatives or any information developed by the Company or any of its Representatives. 3.2 Survival of Representations and Warranties The representations and warranties of the Company contained in this Agreement shall not survive the completion of the Arrangement and shall expire and be terminated on the earlier of the Effective Time and the date on which this Agreement is terminated in accordance with its terms. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND PARENT 4.1 Representations and Warranties Each of the Purchaser and Parent represent and warrant to the Company the representations and warranties set forth in this Section 4.1 as of the date hereof and as of the Effective Date and acknowledges that the Company is relying upon such representations and warranties in connection with the entering into of this Agreement and the carrying out of the transactions contemplated herein: (a) Organization. Each of the Purchaser and Parent is a corporation duly organized and validly existing and in good standing under the Laws of its jurisdiction of incorporation. Each of the Purchaser and Parent is duly qualified and licensed to do business and in good standing in each jurisdiction where such qualification or licensing is necessary. (b) Authorization; Validity of Agreement; Purchaser Action. Each of the Purchaser and Parent has all necessary corporate power and authority to execute and deliver this Agreement and the agreements and other documents to be entered into by each of them hereunder, to perform their respective obligations hereunder and thereunder and to consummate the transactions contemplated hereunder and thereunder. The execution, delivery and performance by each of the Purchaser and Parent of this Agreement, the Arrangement and the agreements and other documents to be entered into by each of them hereunder and the consummation by each of the Purchaser and the Parent of the transactions contemplated hereunder and thereunder, have been duly and validly authorized by the board of directors of each of the Purchaser and the Parent and no other corporate proceeding on the part of the Purchaser or Parent is necessary to authorize the execution, delivery and performance by the Purchaser and Parent of this Agreement and the agreements and other documents to be entered into by it hereunder or the consummation of the Arrangement. This Agreement has been duly and validly executed and delivered by each of the Purchaser and Parent and, assuming due and valid authorization, execution and delivery of this Agreement by each of the Purchaser and Parent, is a valid and binding obligation of each of the - 47 - Purchaser and the Parent enforceable against each of them in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency and other applicable Laws affecting the enforcement of creditors’ rights generally and subject to the qualification that equitable remedies may be granted only in the discretion of a court of competent jurisdiction. (c) No Conflict; Required Filings and Consent. (i) The execution and delivery by each of the Purchaser and Parent of this Agreement and the performance by each of them of their respective obligations hereunder and the completion of the Arrangement do not and will not (or would not with the giving of notice, the lapse of time or the happening of any other event or condition) violate, conflict with or result in a breach of: (A) any provision of the articles, by-laws or other constating documents of the Purchaser or Parent; (B) any Contract to which the Purchaser or Parent is a party or by which the Purchaser or Parent is bound; or (C) any Law to which the Purchaser or Parent is subject or by which the Purchaser or Parent is bound, except in the case of paragraph (B) or (C) as would not, individually or in the aggregate, have or reasonably be expected to have a material adverse effect on the Purchaser or Parent or that would prevent or materially delay the ability of the Purchaser to consummate the Arrangement. (ii) Other than the Regulatory Approvals (including the Interim Order and the Final Order) and the SARB Approval, no Authorization of, or other action by or in respect of, or filing, recording, registering or publication with, or notification to, any Governmental Entity is necessary on the part of the Purchaser or Parent for the consummation by the Purchaser or Parent of their respective obligations in connection with the Arrangement under this Agreement or for the completion of the Arrangement, except for such Authorizations and filings as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of the Purchaser to consummate the Arrangement. (d) Available Funds. The Purchaser has, and will have at the Effective Time, sufficient available funds to consummate the Arrangement and pay the aggregate Consideration and all payments required to be made by the Purchaser in connection with the Arrangement on the terms and subject to the conditions set forth herein and in the Plan of Arrangement, and to satisfy all other obligations payable at or prior to the Effective Time by the Purchaser pursuant to this Agreement and the Arrangement. The Purchaser acknowledges that it is not a condition to the closing of the Arrangement or any of its obligations hereunder that - 48 - the Purchaser, the Parent or any other Person obtain financing for the Arrangement and the other transactions contemplated by this Agreement. (e) Litigation. There are no investigations, actions, suits or proceedings at Law or in equity or by or before any Governmental Entity now pending against or affecting the Purchaser or Parent (or their respective properties or assets) reasonably likely to prevent or materially delay consummation of the transactions contemplated by this Agreement. (f) Compliance with Laws. Each of the Purchaser and Parent is in compliance with all applicable Laws, except for non-compliance which would not reasonably be expected to prevent or materially delay the making and completion of the Arrangement by the Purchaser. (g) No Vote. No vote of the shareholders of the Purchaser or Parent is required by any applicable Law or the organizational documents of the Purchaser or Parent in connection with the consummation of the Arrangement. (h) Security Ownership. None the Purchaser, the Parent or any of their affiliates or any person acting jointly or in concert with the Purchaser or the Parent, beneficially owns or exercises control or direction over any Company Shares or any securities that are convertible into or exchangeable or exercisable for Company Shares. (i) Brokers. Except for persons, if any, whose fees and expenses will be paid by the Purchaser, no investment banker, broker, finder, financial advisor or other intermediary has been retained by or is authorized to act on behalf of the Purchaser or any of its affiliates or any of their respective representatives or is entitled to any fee, commission or other payment in connection with this Agreement, the Arrangement or any other transaction contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser or any of its affiliates. (j) Investment Canada Act. The Purchaser is (i) not a non-Canadian or (ii) is not a state-owned enterprise, and is a WTO investor, all within the meaning of the Investment Canada Act. (k) No Collateral Benefit. Neither the Purchaser nor the Parent is a party to any agreement, commitment or understanding with any “related party” of the Company or any of its “affiliated entities” (in each case within the meaning of MI 61-101) providing for a “collateral benefit” (within the meaning of such instrument). (l) No other Company Representations and Warranties. Except for the representations and warranties expressly set forth in this Agreement or in any certificate delivered pursuant to this Agreement, each of the Purchaser and Parent hereby acknowledges that none of the Company or any other Person on its behalf has made or is making any other express or implied representation or warranty with respect to the Company or its business or operations, including with respect to any information provided or made available to the Purchaser or Parent or any - 49 - of their respective Representatives or any information developed by the Purchaser or Parent or any of their respective Representatives. 4.2 Survival of Representations and Warranties The representations and warranties of each of the Purchaser and Parent contained in this Agreement shall not survive the completion of the Arrangement and shall expire and be terminated on the earlier of the Effective Time and the date on which this Agreement is terminated in accordance with its terms. ARTICLE 5 COVENANTS 5.1 Covenants of the Company Regarding the Conduct of Business The Company covenants and agrees that during the period from the date of this Agreement until the earlier of the Effective Date and the time that this Agreement is terminated in accordance with its terms, except (A) as expressly permitted or required by this Agreement or the Plan of Arrangement (B) as required by the Windfall Agreements, applicable Law or a Governmental Entity, (C) as expressly set forth in the Company Disclosure Letter, (D) with the prior written consent of the Purchaser, such consent not to be unreasonably withheld, delayed or conditioned, or (E) as may otherwise be agreed in writing between the Purchaser and the Company: (a) the Company shall and to the extent within the Company’s control, the Company shall cause the Partnership to: (i) conduct its business only in, and not take any action except in, the Ordinary Course and in compliance with all applicable Laws; (ii) refrain from undertaking any development related activities, other than in the Ordinary Course, unless otherwise consulted with and agreed to in advance by the Purchaser and the Company; (iii) use commercially reasonable efforts to preserve intact its and their present business organization, goodwill, properties business relationships and assets (including the Material Properties and all material Authorizations) in all material respects and to keep available the services of its and their officers and employees as a group; (iv) use commercially reasonable efforts to maintain and preserve all of its rights under each of its Material Properties and Authorizations; (v) cooperate and consult through meetings with the Purchaser, as the Purchaser may reasonably request, to allow the Purchaser to monitor, and provide input with respect to the direction and control of, any activities relating to development of the Company’s and the Partnership’s projects (including any negotiations with Indigenous Groups) or any exploration of any properties; (vi) provide the Purchaser and its legal counsel with a reasonable opportunity to review and comment on any proposed public disclosure of exploration
- 50 - results or other technical information prior to such disclosure, and give reasonable consideration to any comments made by the Purchaser and its legal counsel; (vii) (A) duly and timely file all Tax Returns required to be filed by it on or after the date hereof and all such Tax Returns will be true, complete and correct in all material respects and consistent in all material respects with Ordinary Course past practice; (B) timely withhold, collect, remit and pay all Taxes which are required to be withheld, collected, remitted or paid by it to the extent due and payable except for any Taxes contested in good faith pursuant to applicable Laws; (C) not make or rescind any material express or deemed election relating to Taxes; (D) not enter into any Tax sharing, Tax allocation, Tax related waiver or Tax indemnification agreement, nor make a request for a tax ruling or enter into a closing agreement with any taxing authorities; (E) not settle or compromise any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes; and (F) not amend any Tax Return nor change in any material respect any of its methods of reporting income, deductions or accounting for income tax purposes from those employed in the preparation of its income tax return for the tax year ended December 31, 2023 except as may be required by applicable Laws; (viii) duly and timely file all material forms, reports, news releases, schedules, statements and other documents required to be filed pursuant to any applicable corporate Laws or applicable Canadian Securities Laws, provided however that the Company shall in any event consult with the Purchaser prior to making any filing required pursuant to applicable Canadian Securities Laws, providing in such cases the Purchaser with a reasonable opportunity to review and comment on any such filing or re- lease, recognizing that whether or not such comments are appropriate will be determined by the Company, acting reasonably; (ix) notify the Purchaser immediately orally and then promptly in writing of any Material Adverse Change and of any material governmental or third party complaints, investigations or hearings (or communications indicating that the same may be contemplated), provided nothing in the foregoing shall require the Company to disclose information to the Purchaser which it is prohibited from disclosing pursuant to a written confidentiality agreement, confidentiality provision or an agreement with a third party or regulatory restriction; (x) without limiting the generality of the foregoing, vote or cause to be voted all shares and other securities held by the Company in a manner consistent with all of the foregoing sections, including voting against, or causing such persons to vote against, any resolution to approve any act, agreement or transaction prohibited by any of the foregoing sections; and (xi) the Company shall use commercially reasonable efforts to obtain resignations and mutual releases from such the directors and officers of the Company identified by the Purchaser to the Company prior to the Effective Time to be effective at the Effective Time; - 51 - (b) without limiting the generality of Section 5.1(a), and other than pursuant to transactions contemplated by the Arrangement, this Agreement or as expressly set forth in the Company Disclosure Letter, the Company shall not, directly or indirectly, during the period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms: (i) adjust, split, consolidate or reclassify any of its outstanding securities or undertake any other capital reorganization, or reduce capital in respect of its outstanding shares; (ii) amend its articles of incorporation, by-laws or other comparable organizational documents or the terms of any of its outstanding securities, including any outstanding indebtedness; (iii) issue or sell, or agree to issue or sell, any securities (other than the issuance of Company Shares upon the exercise of currently outstanding Options or other Convertible Securities in accordance with their terms), or redeem, offer to purchase, purchase or cause to be purchased any of its outstanding securities; (iv) amend the terms of any securities of the Company; (v) without limiting the generality of Section 5.1(b)(iii), authorize, approve, agree to issue, issue or award any Options, RSUs or DSUs or any other Convertible Securities; (vi) adopt a shareholder rights plan that provides rights to the Company Shareholders to purchase any securities of the Company as a result of this Arrangement; (vii) acquire or dispose of any securities or equity interest; (viii) reorganize, amalgamate, combine or merge the Company with any other Person; (ix) acquire or commit to acquire any assets or group of related assets (through one or more related or unrelated acquisitions) having a value in excess of $500,000 in the aggregate; (x) incur, or commit to, capital expenditures in excess of $500,000 in the aggregate unless such capital expenditures have been approved prior to the date hereof by the Board of Directors in the Ordinary Course; (xi) sell, lease, option, encumber or otherwise dispose of, or commit to sell, lease, option, encumber or otherwise dispose of, or allow any third party to encumber for a period of five Business Days without contesting in good faith, any assets or group of related assets (through one or more related or unrelated transactions) having a value in excess of $500,000 in the aggregate, excluding any sale in the Ordinary Course or any sale of any obsolete assets, unless required under existing banking facilities; - 52 - (xii) approve the grant of any power of attorney to allow any Person to take any action on behalf of the Company or the amendment of any power of attorney allowing any person to take any action on behalf of the Company; (xiii) enter into or complete any transaction not in the Ordinary Course; (xiv) (A) incur or commit to incur any material indebtedness for borrowed money, except for the borrowing of working capital in the Ordinary Course or issue any debt securities, (B) incur or commit to incur, or guarantee, endorse or otherwise become responsible for, any other material liability, obligation or indemnity or the obligation of any person, or (C) make any loans or advances to any Person; (xv) enter into any binding credit agreement in respect of any credit facility or project finance facility; (xvi) make any changes to existing accounting methods, principles, practices or policies or internal controls other than as required by applicable Law or by IFRS; (xvii) pay, discharge, settle, compromise, waive, assign or release any material claims, liabilities or obligations other than the payment, discharge or satisfaction, in the Ordinary Course in accordance with their terms, of liabilities reflected or reserved against in the Company’s financial statements as at and for the period ended December 31, 2023 or incurred in the Ordinary Course; (xviii) engage in any transaction with any Related Parties; (xix) commence or settle or assign any rights relating to or any interest in any litigation, proceeding, claim, action, assessment or investigation that is material to the Company and involving the Company or any of its material assets; (xx) waive, release, grant, transfer, exercise, modify or amend in any material respect, other than in the Ordinary Course, (A) any existing contractual rights in respect of any joint ventures of the Company, (B) any Authorization, lease, concession, contract or other document, or (C) any other material legal rights or claims; (xxi) propose or enter into any agreement, arrangement, commitment, or offer with respect to a material joint venture or other mutual co-operation or distribution agreement; (xxii) enter into any or terminate any interest rate, currency or equity swaps, hedges, derivatives or other similar financial instruments other than (A) in the Ordinary Course, (B) if approved by the Board of Directors prior to the date hereof or (C) if required under existing banking facilities; (xxiii) increase any coverage under any directors’ and officers’ insurance policy other than as contemplated in Section 5.5; - 53 - (xxiv) acquire or agree to acquire (by merger, amalgamation, arrangement, acquisition of stock or assets or otherwise) any Person or division of any Person or make any investment either by purchase of shares or securities, contributions of capital, property transfer or purchase of any property or assets of any other Person, except for purchases of equipment in the Ordinary Course, and except for capital expenditures permitted by Section 5.1(b)(ix); (xxv) adopt a plan of liquidation or resolutions providing for the liquidation or dissolution of the Company; (xxvi) except as contemplated in Section 5.3(h), enter into any transaction or perform any act or fail to perform any act that might interfere with, delay, or be materially inconsistent with the successful completion of the acquisition of Company Shares by the Purchaser pursuant to the Arrangement; (xxvii) (A) offer, promise, pay, authorize or take up any act in furtherance of any offer, promise, payment or authorization of payment of anything of value, directly or indirectly, to any Government Official or Person of Concern for the purpose of securing discretionary action or inaction or a decision of a Government Official(s), influence over discretionary action or in-action of a Government Official(s), or any improper advantage; or (B) take any action which is otherwise inconsistent with or prohibited by the substantive prohibitions or requirements of Anti-Corruption Laws, AML Laws or similar applicable Laws of any other jurisdiction prohibiting corruption, bribery and money laundering, in connection with any of their business; (xxviii) declare or grant any new bonus or profit sharing distribution or similar payment, except for bonuses and similar payments in the Ordinary Course; (xxix) hire any new employees or full-time consultants of the Company other than to replace any employee who has voluntarily resigned or has been terminated for poor performance, for just cause or with a serious reason since the date of this Agreement; (xxx) (A) enter into, grant, accelerate or increase any notice of termination, severance, change of control or termination pay to (or amend any existing arrangement relating to the foregoing with) any director, officer, Company Employee or individual consultant or independent contractor of the Company; (B) grant accelerate or increase any payment, salary, wages, award (equity or otherwise) or other benefits payable to, or for the benefit of, or make any bonus payment to, any director, officer, Company Employee or individual consultant or independent contractor of the Company; (C) increase the coverage, contributions, funding requirements or benefits available under any Employee Plan or adopt, establish or create any new plan which would be considered to be an Employee Plan once created; (D) make any material determination under any Employee Plan that is not in the Ordinary Course, other than determinations in furtherance of accelerated vesting or similar determinations in connection with the transactions described herein; or (E) take or propose any action to effect any of the foregoing; provided that nothing in this Agreement shall be
- 54 - deemed to (X) guarantee employment for any period of time for, or preclude the ability of the Purchaser to terminate the employment of, any officer or Company Employee after the Effective Time, (Y) require the Purchaser to continue any Employee Plan or prevent the amendment, modification or termination thereof after the Effective Date, or (Z) prohibit the Purchaser from amending or terminating any benefit plan or arrangement covering any Company Employee on or after the Effective Date, or constitute an amendment to any benefit plan; (xxxi) other than in connection with this Agreement, call any meeting of any securityholders of the Company for the purpose of considering any resolution; or (xxxii) announce an intention, enter into any formal or informal agreement, or otherwise make a commitment to do any of the things prohibited by any of the foregoing subsections; (c) the Company shall use its commercially reasonable efforts to maintain any material Authorizations necessary to conduct its business as now conducted; (d) the Company shall use all commercially reasonable efforts to cause its current material insurance (or re-insurance) policies maintained by the Company not to be cancelled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies underwritten by insurance and reinsurance companies of nationally recognized standing providing coverage equal to or greater than the coverage under the cancelled, terminated or lapsed policies for substantially similar premiums are in full force and effect; provided that, subject to Section 5.5(a), the Company shall not obtain or renew any insurance (or re-insurance) policy for a term exceeding 12 months; (e) the Company shall keep the Purchaser reasonably informed, on a current basis, of any events, discussions, notices or changes with respect to any Tax or regulatory investigation or any other investigation or audit by a Governmental Entity or action involving the Company (other than Ordinary Course communications which could not reasonably be expected to be material to the Company); and (f) the Company shall not authorize, agree to, propose, enter into or modify any contract, agreement, commitment or arrangement, to do any of the matters prohibited by the other subsections of this Section 5.1 or resolve to do so. 5.2 Mutual Covenants of the Parties Relating to the Arrangement Subject to Section 5.7, which shall govern in relation to Regulatory Approvals, each of the Parties covenants and agrees that, subject to the terms and conditions of this Agreement, during that period from the date of this Agreement until the earlier of the Effective Time and the time that this Agreement is terminated in accordance with its terms: (a) it shall use its commercially reasonable efforts to satisfy (or cause the satisfaction of) the conditions precedent to its obligations hereunder as set forth in Article 6 to - 55 - the extent the same is within its control and to take, or cause to be taken, all other action and to do, or cause to be done, all other things necessary under all applicable Laws to complete the Arrangement, including using its commercially reasonable efforts to, as soon as reasonably possible: (i) obtain all necessary waivers, consents and approvals required to be obtained by it from parties to the Material Contracts and without being required to pay, and without committing itself to pay, any consideration, or to incur any liability or obligation prior to the Effective Time; (ii) obtain all necessary and material Authorizations (including any required Regulatory Approvals) as are required to be obtained by it under applicable Laws; (iii) fulfill all conditions and satisfy all provisions of this Agreement and the Arrangement required to be satisfied by it, including, if applicable, delivery of the certificates of their respective officers contemplated by Sections 6.2(a), 6.2(b), 6.2(c), 6.3(a) and 6.3(b); and (iv) co-operate with the other Parties in connection with the performance by it of its obligations hereunder; (b) it shall not take any action, shall refrain from taking any action, and shall not permit any action to be taken or not taken by its affiliates, associates, directors, officers, employees, representatives, advisors or agents, which is inconsistent with this Agreement or which would reasonably be expected to, individually or in the aggregate, materially impede or materially delay the consummation of the Arrangement or the other transactions contemplated herein; (c) it shall use commercially reasonable efforts to: (A) defend all lawsuits or other legal, regulatory or other Proceedings against itself challenging or affecting this Agreement or the consummation of the transactions contemplated hereby; (B) appeal, overturn or have lifted or rescinded any injunction or restraining order or other order, including Orders, relating to itself which may materially adversely affect the ability of the Parties to consummate the Arrangement; and (C) appeal or overturn or otherwise have lifted or rendered non-applicable in respect of the Arrangement, any Law that makes consummation of the Arrangement illegal or otherwise prohibits or enjoins the Company or the Purchaser from consummating the Arrangement; and (d) it shall carry out the terms of the Interim Order and Final Order applicable to it, in all material respects, and use commercially reasonable efforts to comply in all material respects with all requirements which applicable Laws may impose on it or its affiliates with respect to the transactions contemplated hereby. (e) each Party shall remain in compliance in all material respects with their respective agreements, covenants and obligations under all other agreements between the Company, on the one hand, and the Purchaser and Parent or any of their respective affiliates, on the other hand; and (f) it shall promptly notify the other Party in writing of: (i) any notice or other communication from any Person alleging that the consent (or waiver, permit, exemption, order, approval, agreement, amendment or confirmation) of such Person (or another Person) is or may be required in connection with this Agreement or the Arrangement; - 56 - (ii) unless prohibited by Law, any notice or other communication from any Governmental Entity in connection with this Agreement or the Arrangement (and contemporaneously provide a copy of any such written notice or communication to the other Party); or (iii) any material filing, actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, such Party relating to this Agreement or the Arrangement. 5.3 Non-Solicitation (a) Except as otherwise expressly permitted in this Section 5.3, the Company shall not, directly or indirectly, through any officer, director, employee, and the Company shall direct the representatives (including any financial or other advisor) or agents of the Company (collectively, the “Representatives”) not to: (i) solicit, initiate, encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or the Partnership) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal; (ii) enter into, engage in, continue or otherwise participate in any discussions or negotiations with any Person (other than the Purchaser and its Subsidiaries or affiliates) in respect of any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, provided that the Company may (A) advise any Person of the restrictions of this Agreement, (B) clarify the terms of any proposal in order to determine if it may reasonably be expected to result in a Superior Proposal and (C) advise any Person making an Acquisition Proposal that the Company Board has determined that such Acquisition Proposal does not constitute, or is not reasonably expected to result in, a Superior Proposal; (iii) make a Company Change in Recommendation; (iv) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any publicly announced Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five Business Days following the public announcement of such Acquisition Proposal will not be considered to be in violation of this Section 5.3(a)(iv)); provided that the Company Board has rejected such Acquisition Proposal and affirmed the Company Board Recommendation by news release before the end of such five Business Day period (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date of the Company Meeting); provided, further, that the Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such - 57 - news release and shall make all reasonable amendments to such news release as requested by the Purchaser and its counsel; or (v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, arrangement or understanding relating to any Acquisition Proposal (other than a confidentiality agreement permitted pursuant to Section 5.3(e)). (b) The Company shall, and shall direct its Representatives to, immediately cease any existing solicitation, encouragement, discussions, negotiations or other activities commenced prior to the date of this Agreement with any Person (other than the Purchaser and its Subsidiaries or affiliates) conducted by the Company or any of its Representatives with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, and, in connection therewith, the Company shall: (i) immediately discontinue access to and disclosure of its confidential information (and not allow access to or disclosure of any such confidential information, or any data room, virtual or otherwise); and (ii) as soon as possible request (and in any case within two Business Days), and exercise all rights it has to require the return or destruction of all confidential information (including derivative information) regarding the Company previously provided to any Person (other than the Purchaser) in connection with a possible Acquisition Proposal to the extent such information has not already been returned or destroyed and the Company has the right to request such return or destruction pursuant to a confidentiality agreement that is in force and effect, and shall use its commercially reasonable efforts to ensure that such requests are fully complied with to the extent the Company is entitled. (c) The Company represents and warrants that the Company has not waived any standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company is a party that remains in effect. Subject to Section 5.3(d), the Company covenants and agrees that: (i) the Company shall take all necessary action to enforce each standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company is a party in connection with any Acquisition Proposal; and (ii) neither the Company nor any of its Representatives, have released or will, without the prior written consent of the Purchaser, release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company under any standstill, confidentiality, non- disclosure, business purpose, use or similar agreement or restriction to which the Company is a party (it being acknowledged by the Purchaser that the automatic termination or automatic release, in each case pursuant to the current terms thereof, of any standstill restrictions of any such agreements as a result of the entering into and announcement of this Agreement shall not be a violation of this Section 5.3(c)).
- 58 - (d) If the Company or any of its Representatives, receives: (i) any inquiry, proposal or offer made after the date of this Agreement that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal; or (ii) any request for copies of, access to, or disclosure of, confidential information relating to the Company and/or the Partnership in connection with any proposal that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, including information, access or disclosure relating to the properties, facilities, books or records of the Company and/or the Partnership, in each case made after the date of this Agreement; then the Company shall promptly and orally notify the Purchaser, and then in writing within 24 hours, of such Acquisition Proposal, inquiry, proposal, offer or request (irrespective of whether the Acquisition Proposal, inquiry, proposal, offer or request is conditional upon the Company not disclosing the receipt or contents of the Acquisition Proposal inquiry, proposal or request to any person), including the identity of the Person making such Acquisition Proposal, inquiry, proposal, offer or request and the material terms and conditions thereof and provide copies of all written documents, correspondence or other material received in respect of, from or on behalf of any such Person. The Company shall keep the Purchaser fully informed on a current basis of the status of material developments and material discussions and negotiations with respect to such Acquisition Proposal, inquiry, proposal, offer or request, including any material changes, modifications or other amendments thereto. (e) Notwithstanding anything to the contrary in this Section 5.4, if at any time following the date of this Agreement and prior to the Company Shareholder Approval having been obtained, the Company receives a request for material non-public information, or to enter into discussions, from a Person that proposes to the Company an unsolicited bona fide written Acquisition Proposal, the Company may engage in or participate in discussions or negotiations with such Person regarding such Acquisition Proposal, and may provide copies of, access to or disclosure of information, properties, facilities, books or records of the Company, the Manager and the Partnership, if and only if: (i) the Company Board determines, in good faith after consultation with its outside financial and legal advisors, that such Acquisition Proposal constitutes or may reasonably be expected to lead to a Superior Proposal; (ii) such Person is not restricted from making an Acquisition Proposal pursuant to an existing standstill, confidentiality, non-disclosure, business purpose, use or similar restriction with the Company; (iii) the Company has been, and continues to be, in compliance with its obligations under this Section 5.4 in all material respects; (iv) prior to providing any such copies, access or disclosures in respect of the Company, the Company enters into a confidentiality and standstill - 59 - agreement with such Person, or confirms it has previously entered into such an agreement which remains in effect, in either case on terms not materially less stringent than the Confidentiality Agreement and which does not contain a restriction on the ability of the Company to disclose information to the Purchaser relating to the agreement or negotiations with such Person (which confidentiality and standstill agreement shall be subject to Section 5.4(c)) and any such copies, access or disclosure provided to such Person shall promptly (and in any event within 24 hours) be provided to the Purchaser; and (v) prior to providing any such copies, access or disclosures in respect of the Partnership or the Manager, which shall be limited to such copies, access or disclosures in respect of the Partnership or the Manager as has been shared with the Purchaser in a virtual data room as of the date hereof, the Company and the Purchaser enter into a confidentiality and standstill agreement with such Person in a form that has been agreed to in writing by the Company and the Purchaser prior to the date hereof (and the Purchaser covenants and agrees to enter into any such confidentiality and standstill agreement proposed to it by the Company). (f) Notwithstanding the terms of the Windfall Agreements, subject to compliance with the terms of Section 5.3(e)(v), no further consent shall be required by the Company in respect of sharing copies, access or disclosures in respect of the Partnership or the Manager or in respect of a site visit by such Person to the Material Properties. For greater certainty, this Section 5.3(f) shall serve as the consent of (i) the Purchaser, and (ii) the Company and the Purchaser on behalf of the Manager, for purposes of Section 18.02 of the Partnership Agreement. (g) Nothing contained in this Section 5.3 shall prohibit the Company Board from making disclosure to Company Shareholders as required by applicable Law, including complying with Section 2.17 of National Instrument 62-104 – Takeover Bids and Issuer Bids and similar provisions under Canadian Securities Laws relating to the provision of a directors’ circular in respect of an Acquisition Proposal; provided, however, neither the Company nor the Company Board shall be permitted to recommend that the Company Shareholders tender any securities in connection with any take-over bid that is an Acquisition Proposal or effect a Company Change in Recommendation with respect thereto, except as permitted by Section 5.3(h). (h) If the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the Company Shareholder Approval having been obtained, the Company Board may (1) make the Company Change in Recommendation in response to such Superior Proposal and/or (2) cause the Company to terminate this Agreement pursuant to Section 7.2(a)(iv)(B) and may enter into a definitive agreement with respect to the Superior Proposal (a “Proposed Agreement”), if and only if: (i) the Person making such Superior Proposal is not restricted from making an Acquisition Proposal pursuant to an existing standstill, confidentiality, nondisclosure, business purpose, use or similar restriction; - 60 - (ii) the Company has been, and continues to be, in compliance with its obligations under this Section 5.3 in all material respects; (iii) the Company or its Representatives have delivered to the Purchaser the information required by Section 5.3(d), as well as a written notice of the determination of the Company Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Company Board to make the Company Change in Recommendation and/or terminate this Agreement pursuant to Section 7.2(a)(iv)(B) to concurrently enter into the Proposed Agreement with respect to such Superior Proposal, as applicable, together with a written notice from the Company Board regarding the value that the Company Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Acquisition Proposal (collectively, the “Superior Proposal Notice”); (iv) in the case the Company Board is exercising its rights under clause (2) of this Section 5.3(h), the Company or its Representatives have provided the Purchaser with a copy of the Proposed Agreement and all supporting materials; (v) five Business Days (the “Response Period”) shall have elapsed from the date on which the Purchaser has received the Superior Proposal Notice and all documentation referred to in Section 5.3(h)(iii) and Section 5.3(h)(iv); (vi) during any Response Period, the Purchaser has had the opportunity (but not the obligation) in accordance with Section 5.3(i) to offer to amend this Agreement and the Plan of Arrangement in order for such Acquisition Proposal to cease to be a Superior Proposal; (vii) after the Response Period, the Company Board (A) has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Arrangement as proposed to be amended by the Purchaser under Section 5.3(i)) and (B) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Company Board to make the Company Change in Recommendation and/or to cause the Company to terminate this Agreement to enter into the Proposed Agreement, as applicable, would be inconsistent with its fiduciary duties; and (viii) in the case the Company Board is exercising its rights under clause (2) of this Section 5.3(h), prior to or concurrently with terminating this Agreement pursuant to Section 7.2(a)(iv)(B), the Company enters into such Proposed Agreement and concurrently pays to the Purchaser the amounts required to be paid pursuant to Section 7.3. - 61 - (i) During the Response Period, or such longer period as the Company may approve in writing for such purpose: (i) the Company Board shall review any offer made by the Purchaser under Section 5.3(h)(vi) to amend the terms of this Agreement and the Plan of Arrangement in good faith in order to determine whether such proposal would, upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (ii) if the Company determines that the Acquisition Proposal previously constituting a Superior Proposal would cease to be a Superior Proposal, the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Arrangement as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Company Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser, and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing. (j) Each successive amendment or modification to any Acquisition Proposal or Proposed Agreement that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.3, and the Purchaser shall be afforded a new five Business Day Response Period from the date on which the Purchaser has received the notice and all documentation referred to in Section 5.3(h)(iii) and Section 5.3(h)(iv) with respect to the new Superior Proposal from the Company. (k) The Company Board shall promptly reaffirm the Company Board Recommendation by news release after the Company Board determines that any Acquisition Proposal that is publicly announced is not a Superior Proposal or the Company Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.3(i) would result in an Acquisition Proposal that has been previously announced no longer being a Superior Proposal, and the Agreement has been so amended. The Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such news release and shall make all reasonable amendments to such news release as requested by the Purchaser and its counsel. (l) In circumstances where the Company provides the Purchaser with notice of a Superior Proposal and all documentation contemplated by Section 5.3(h)(iii) and Section 5.3(h)(iv) on a date that is less than seven Business Days prior to the scheduled date of the Company Meeting, the Company may either proceed with or postpone the Company Meeting to a date that is not more than 10 Business Days after the scheduled date of such Company Meeting, and shall postpone the
- 62 - Company Meeting to a date that is not more than 10 Business Days after the scheduled date of such Company Meeting if so directed by the Purchaser. (m) Without limiting the generality of the foregoing, the Company shall advise Representatives of the prohibitions set out in this Section 5.3 and any violation of the restrictions set forth in this Section 5.3 by the Company or its Representatives shall be deemed to be a breach of this Section 5.3 by the Company. 5.4 Access to Information; Confidentiality (a) From the date hereof until the earlier of the Effective Time and the termination of this Agreement pursuant to its terms, subject to compliance with applicable Laws and the terms of any existing Contracts, the Company shall, and shall cause its Representatives to, afford to the Purchaser and its Representatives, upon reasonable notice, such access as the Purchaser may reasonably require at all reasonable times, including for the purpose of facilitating integration business planning and Tax planning, to its officers, employees, agents, properties, books, records and Contracts, and shall furnish the Purchaser on a timely basis with all data and information relating to ongoing development programs at the Material Projects or as the Purchaser may reasonably request from time to time, including, if so requested by the Purchaser and at the expense of the Purchaser, allowing a Representative of the Purchaser to be present at the Material Projects. (b) Information furnished pursuant to this Section 5.4 shall be subject to the terms and conditions of the Confidentiality Agreement. The Purchaser and the Company acknowledge and agree that any such investigation by the Purchaser and its Representatives under this Section 5.4 or otherwise shall not mitigate, diminish or affect the representations and warranties of the Company contained in this Agreement or any document or certificate delivered pursuant hereto. (c) Notwithstanding any provision of this Agreement, the Company shall not be obligated to provide access to, or to disclose, any information to the Purchaser to the extent that the Company reasonably determines that such access or disclosure would jeopardize any attorney-client or other privilege claim by the Company; provided that the Company shall use its commercially reasonable efforts to otherwise make available such information to the Purchaser notwithstanding such impediment, including by causing the documents or information that are subject to such privilege to be provided in a manner that would not reasonably be expected to violate or jeopardize such privilege. 5.5 Insurance and Indemnification (a) Prior to the Effective Time, the Company shall purchase customary “tail” policies of directors’ and officers’ liability, products and completed operations liability and employment practices liability insurance from a reputable and financially sound insurance carrier and containing terms and conditions no less favourable in the aggregate to the protection provided by the policies maintained by the Company which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Effective Time and the Company will maintain such tail policies in effect without any reduction in scope or coverage for six years from the Effective Time; provided, - 63 - that the Company shall not be required to pay any amounts in respect of such coverage prior to the Effective Time. From and after the Effective Time, the Company or the Purchaser, as applicable, agrees not to take any action to terminate such directors’ and officers’ liability insurance or adversely affect the rights of the Company’s present and former directors and officers thereunder. (b) The Company will honour all rights to indemnification or exculpation now existing in favour of present and former employees, officers and directors of the Company under Law and under the articles or other constating documents of the Company, to the extent that they are disclosed in the Company Disclosure Letter, under any agreement or contract of any indemnified person with the Company, and acknowledges that such rights shall survive the completion of the Plan of Arrangement, and, to the extent within the control of the Company, the Company shall ensure that the same shall not be amended, repealed or otherwise modified in any manner that would adversely affect any right thereunder of any such indemnified person and shall continue in full force and effect in accordance with their terms for a period of not less than six years from the Effective Date. (c) From and following the Effective Time, the Purchaser will, jointly and severally, cause the Company to comply with its obligations under Section 5.5(a) and Section 5.5(b). (d) If the Company or the Purchaser or any of their successors or assigns shall (i) amalgamate, consolidate with or merge or wind-up into any other person and shall not be the continuing or surviving corporation or entity; or (ii) transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns and transferees of the Company or the Purchaser, as the case may be, shall assume all of the obligations of the Company or the Purchaser, as applicable, set forth in this Section 5.5. (e) The provisions of this Section 5.5 are intended for the benefit of, and shall be enforceable by, each insured or indemnified Person (as identified in the relevant policy), his or her heirs and his or her legal representatives and, for such purpose, the Company hereby confirms that it is acting as trustee on their behalf, and agrees to enforce the provisions of this Section 5.5 on their behalf. Furthermore, this Section 5.5 shall survive the termination of this Agreement as a result of the occurrence of the Effective Date for a period of six years. 5.6 Pre-Acquisition Reorganization (a) The Company agrees to effect such reorganization of its business, operations and assets or such other transactions (each, a “Pre-Acquisition Reorganization”) as the Purchaser may reasonably request prior to the Effective Date, and the Plan of Arrangement, if required, shall be modified accordingly; provided that unless otherwise agreed by the Purchaser and the Company, (i) any Pre-Acquisition Reorganization is not, in the opinion of the Company or the Company’s counsel, acting reasonably, prejudicial to the Company, the Company Shareholders or the holders of Options, RSUs, DSUs or Debentures, (ii) any Pre-Acquisition Reorganization does not require the Company to obtain the approval of the Company Shareholders, (iii) any Pre-Acquisition Reorganization shall not, in the - 64 - opinion of the Company, acting reasonably, impair, prevent, impede or materially delay the consummation of the Arrangement, (iv) any Pre-Acquisition Reorganization shall not, in the opinion of the Company, acting reasonably, materially interfere with the ongoing operations of the Company, (v) any Pre- Acquisition Reorganization shall not require the Company to contravene any applicable Laws, their respective organization documents or any Contract or Authorization, (vi) the Company shall not be obligated to take any action that would reasonably be expected to result in any Taxes being imposed on, or any adverse Tax or other consequences to, any Company Shareholder or the holders of Options, RSUs, DSUs or Debentures, that are incrementally greater than the Taxes or other consequences to such party in connection with the consummation of the Arrangement in the absence of any Pre-Acquisition Reorganization, (vii) any Pre-Acquisition Reorganization is effected immediately prior to, contemporaneously with, or within two Business Days prior to the Effective Date and shall not become effective unless the Purchaser has waived or confirmed in writing the satisfaction of all conditions in its favour under this Agreement, other than conditions that, by their terms, are to be satisfied on the Effective Date, and shall have confirmed in writing that they are prepared, and able to promptly and without condition (other than the satisfaction of conditions that, by their terms, are to be satisfied on the Effective Date), proceed to effect the Arrangement, and (viii) the Purchaser agrees that it will be responsible for all reasonable costs and expenses associated with any Pre-Acquisition Reorganization to be carried out at its request. The Purchaser shall provide written notice to the Company of any proposed Pre-Acquisition Reorganization in reasonable detail at least 15 Business Days prior to the date of the Company Meeting. Any step or action taken by the Company in furtherance of a proposed Pre-Acquisition Reorganization shall not be considered to be a breach of any representation, warranty or covenant of the Company contained in this Agreement. If the Arrangement is not completed, the Purchaser shall forthwith reimburse the Company for all reasonable fees and expenses (including any professional fees and expenses and Taxes) incurred by the Company in considering or effecting a Pre-Acquisition Reorganization and shall be responsible for any fees, expenses and costs (including professional fees and expenses and Taxes) of the Company in reversing or unwinding any Pre- Acquisition Reorganization that was effected prior to the Effective Date. The Purchaser hereby agrees to indemnify and save harmless the Company and its Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, Taxes, judgments and penalties suffered or incurred by any of them in connection with or as a result of any Pre-Acquisition Reorganization (including in respect of any reversal, modification or termination of a Pre-Acquisition Reorganization). (b) The Company agrees that it shall cooperate with the Purchaser in good faith to plan, prepare and implement such Pre-Acquisition Reorganizations as are desirable and requested by the Purchaser in accordance with this Section 5.6. 5.7 Regulatory Approvals (a) The Parties shall, as promptly as practicable, prepare and file all necessary documents, registrations, statements, petitions, filings and applications in respect of obtaining or satisfying the Regulatory Approvals and use their commercially reasonable efforts to obtain and maintain the Regulatory Approvals as promptly as - 65 - practicable after the date of this Agreement but in any event by or prior to the Outside Date. (b) Notwithstanding any other provision of this Agreement, the Purchaser, the Parent and their respective affiliates, associates, directors, officers, employees, representatives, advisors or agents are not permitted to initiate contact with any Governmental Entity in connection with the transactions contemplated by this Agreement, including in respect of any Regulatory Approval, without the prior written consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned) unless required by Law or legal process, in which case the Purchaser shall cooperate and consult with the Company in advance of any substantive discussions or communications with such Governmental Entity. 5.8 Competition Act Approval (a) Notwithstanding anything else to the contrary in this Agreement, in connection with obtaining the Competition Act Approval, the following conditions shall apply: (i) As soon as reasonably possible following execution hereof but in any event within 15 Business Days of the date hereof, the Purchaser shall submit to the Commissioner a request for an ARC, or in the alternative a No Action Letter together with a request for a waiver in accordance with section 113(c) of the Competition Act, in respect of the transactions contemplated by this Agreement. In addition, unless Purchaser and the Company mutually agree not to take such action, within 30 Business Days of the execution of this Agreement or such other date as the Parties may agree, the Purchaser and the Company shall each make, or shall cause their affiliates to make a premerger notification filing in respect of the transactions contemplated by this Agreement with the Commissioner in accordance with Part IX of the Competition Act. (ii) The Purchaser shall be responsible for and shall pay the filing fee payable in connection with obtaining the Competition Act Approval. (b) Purchaser Covenants. (i) The Purchaser, the Parent and their respective affiliates shall use their reasonable best efforts to obtain the Competition Act Approval as soon as is reasonably practicable but, in any event, no later than the Outside Date. (ii) The Purchaser, the Parent and their respective affiliates will not take any action that may have the effect of delaying, impairing or impeding the receipt of the Competition Act Approval later than the Outside Date. (c) Mutual Covenants. Each Party will, and will cause its affiliates to do each of the following: (i) Comply, as promptly as is reasonably practicable, with any requests for additional information, document or other materials made by a Governmental Entity in connection with the Competition Act Approval.
- 66 - (ii) Permit the other Party to review in advance any proposed applications, notices, filings, submissions, undertakings, correspondence and communications of any nature (including responses to requests for information and inquiries from any Governmental Entity) in respect of obtaining or concluding the Competition Act Approval, and will provide the other Party a reasonable opportunity to comment thereon and agree to give reasonable consideration to those comments when preparing subsequent drafts and final versions, provided that it is agreed that competitively sensitive information may be redacted from materials shared between the Parties and shared on an external counsel only basis. (iii) Promptly provide the other Party with any applications, notices, filings, submissions, undertakings, correspondence and communications of any nature (including responses to requests for information and inquiries from any Governmental Entity) that were submitted to a Governmental Entity in respect of obtaining or concluding the Competition Act Approval, provided that it is agreed that competitively sensitive information may be redacted from materials shared between the Parties and shared on an external counsel only basis. (iv) Not participate in any substantive meeting or discussion (whether in person, by e-mail, by telephone, Teams meeting, or otherwise) with any Governmental Entity in respect of obtaining or concluding the Competition Act Approval unless it consults in advance with the other Party and the other Party or its external legal counsel is provided with an opportunity to attend and participate in such meetings or discussions. (v) Keep the other Party promptly informed of the status of the discussions relating to obtaining or concluding the Competition Act Approval. ARTICLE 6 CONDITIONS 6.1 Mutual Conditions Precedent The respective obligations of the Parties to complete the Arrangement are subject to the fulfillment of each of the following conditions precedent on or before the Effective Time, each of which may only be waived with the mutual consent of the Parties: (a) the Competition Act Approval shall have been obtained; (b) the Company Shareholder Approval shall have been obtained in accordance with the Interim Order; (c) the Interim Order and the Final Order shall each have been obtained on terms consistent with this Agreement and in form and substance acceptable to the Purchaser and the Company, each acting reasonably, and shall not have been set aside or modified in a manner unacceptable to either the Company or the Purchaser, each acting reasonably, on appeal or otherwise; and - 67 - (d) no Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Order or Law which is then in effect and has the effect of making the Arrangement illegal or otherwise preventing or prohibiting consummation of the Arrangement. 6.2 Additional Conditions Precedent to the Obligations of the Purchaser The obligation of the Purchaser and the Parent to complete the Arrangement is subject to the fulfillment of each of the following further conditions precedent on or before the Effective Time (each of which is for the exclusive benefit of the Purchaser and the Parent and may be waived by the Purchaser and the Parent, in whole or in part at any time, each in its sole discretion, without prejudice to any other rights which the Purchaser and the Parent may have): (a) the representations and warranties of the Company set forth in: (i) Section 3.1(a) [Special Committee and Board Approval], Section 3.1(b) [Organization], Section 3.1(d) [Authority], Section 3.1(e) [No Violation], Section 3.1(f) [Subsidiaries], Section 3.1(m) [Absence of Certain Changes], and Section 3.1(qq) [Consents and Approvals] shall be true and correct in all respects as of the Effective Time as if made as at and as of such time (except that any such representation and warranty that by its terms speaks specifically as of the date of this Agreement or another date shall be true and correct in all respects as of such date); (ii) Section 3.1(c) [Capitalization; Listing] shall be true and correct in all respects (except for de minimis inaccuracies) as of the date of this Agreement; and (iii) the other provisions of this Agreement shall be true and correct in all respects (disregarding for purposes of this clause (iii) any materiality qualification or the Material Adverse Change qualification contained in any such representation or warranty) as of the Effective Time as if made at and as of such time (except that any such representation and warranty that by its terms speaks specifically as of the date of this Agreement or another date shall be true and correct in all respects as of such date), except in the case of this clause (iii) where the failure to be so true and correct in all respects, individually or in the aggregate, would not have a Material Adverse Change, and the Company, after ensuring that the senior officers have conducted all reasonable due enquiry, shall have provided to the Purchaser, a certificate of two senior officers of the Company certifying (on the Company’s behalf and without personal liability) the foregoing dated the Effective Date; (b) the Company shall have complied in all respects with its covenants in Section 2.8 [Payment of Consideration and Other Payments], Section 2.10 [Treatment of Debentures] and in all material respects with its covenants herein to be complied with by it prior to the Effective Time and the Company shall have provided to the Purchaser a certificate of two senior officers of the Company certifying (on the - 68 - Company’s behalf and without personal liability) material compliance with such covenants dated the Effective Date; (c) since the date of this Agreement, there shall not have occurred, or have been disclosed to the public (if previously undisclosed to the public), a Material Adverse Change and the Company, after ensuring that the senior officers have made all reasonable due enquiry shall have provided to the Purchaser a certificate of two senior officers of the Company to that effect (on the Company’s behalf and without personal liability); (d) the number of Company Shares held by the Company Shareholders that have validly exercised Dissent Rights (and not withdrawn such exercise) shall not exceed 7% of Company Shares issued and outstanding as of the date hereof; and (e) there shall be no action or proceeding pending by a Governmental Entity, or by any other Person (as to which, in the case of such other Person, there is a reasonable likelihood of success), that is seeking to: (i) enjoin or prohibit the Purchaser’s ability to acquire, hold, or exercise full rights of ownership over, any Company Shares, including the right to vote Company Shares; or (ii) if the Arrangement is consummated, have a Material Adverse Change. 6.3 Additional Conditions Precedent to the Obligations of the Company The obligation of the Company to complete the Arrangement is subject to the fulfillment of each of the following further conditions precedent on or before the Effective Time (each of which is for the exclusive benefit of the Company and may be waived by the Company, in whole or in part at any time, in its sole discretion, without prejudice to any other rights which the Company may have): (a) the representations and warranties of the Purchaser set forth in: (i) Section 4.1(a) [Organization], Section 4.1(b) [Authorization; Validity of Agreement; Purchaser Action] and Section 4.1(d) [Available Funds] shall be true and correct in all respects as of the Effective Time as if made as at and as of such time (except that any such representation and warranty that by its terms speaks specifically as of the date of this Agreement or another date shall be true and correct in all respects as of such date); (ii) the other provisions of this Agreement shall be true and correct in all respects (disregarding for purposes of this clause (ii) any materiality qualification contained in any such representation or warranty) as of the Effective Time as if made at and as of such time (except that any such and representation and warranty that by its terms speaks specifically as of the date of this Agreement or another date shall be true and correct in all respects as of such date), and except in the can - 69 - (iii) se of this clause (ii) where the failure to be so true and correct in all respects individually or in the aggregate would not materially impede consummation of the Arrangement, and the Purchaser shall have provided to the Company a certificate of two senior officers of the Purchaser certifying (on the Purchaser’s behalf and without personal liability) the foregoing dated the Effective Date; and (b) the Purchaser shall have complied in all respects with its covenants in Section 2.8(a) [Payment of Consideration and Other Payments], and Section 2.10 [Treatment of Debentures] in all material respects with its other covenants herein to be complied with by it prior to the Effective Time and the Purchaser shall have provided to the Company a certificate of two senior officers of the Purchaser certifying (on the Purchaser’s behalf and without personal liability) material compliance with such covenants dated the Effective Date. 6.4 Satisfaction of Conditions The conditions precedent set out in Section 6.1, Section 6.2 and Section 6.3 shall be conclusively deemed to have been satisfied, waived or released at the Effective Time. For greater certainty, all funds held in escrow by the Depositary pursuant to Section 2.8 hereof shall be released from escrow at the Effective Time without any further act or formality required on the part of any Person. 6.5 Notice of Breach (a) Each Party will give prompt notice to the other Party (or Parties) of the occurrence or failure to occur (in either case, actual, anticipated, contemplated or, to the knowledge of such Party, threatened), at any time from the date hereof until the Effective Time, of any event or state of facts which occurrence or failure would, or would be likely to: (i) cause any of the representations or warranties of such Party contained herein to be untrue or inaccurate in any material respect on the date hereof or at the Effective Date if the failure to be so true or accurate would cause any condition set forth in Section 6.2(a) or Section 6.3(a), as applicable, not to be satisfied; or (ii) result in the failure to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by such Party prior to or at the Effective Date, if the failure to be so true or accurate would cause any condition set forth in Section 6.2(b) or Section 6.3(b), as applicable, not to be satisfied. (b) Notification provided under this Section 6.5 will not affect the representations, warranties, covenants, agreements or obligations of the Parties (or remedies with
- 70 - respect thereto) or the conditions to the obligations of the Parties under this Agreement. ARTICLE 7 TERM, TERMINATION, AMENDMENT AND WAIVER 7.1 Term This Agreement shall be effective from the date hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms. 7.2 Termination (a) This Agreement may be terminated at any time prior to the Effective Time: (i) by mutual written agreement of the Company and the Purchaser; (ii) by either the Company or the Purchaser, if: (A) the Effective Time shall not have occurred on or before the Outside Date, except that the right to terminate this Agreement under this Section 7.2(a)(ii)(A) shall not be available to any Party whose failure to fulfill any of its covenants or agreements or breach of any of its representations and warranties under this Agreement has been the cause of, or resulted in, the failure of the Effective Time to occur by such Outside Date; (B) after the date hereof, there shall be enacted or made any applicable Law or Order that makes consummation of the Arrangement illegal or otherwise prohibits or enjoins the Company or the Purchaser from consummating the Arrangement and such Law, Order or enjoinment shall have become final and non-appealable; provided that the Party seeking to terminate this Agreement under this Section 7.2(a)(ii)(B) has complied with Section 5.2(c) in all material respects; or (C) the Company Meeting is duly convened and held and the Company Shareholder Approval shall not have been obtained as required by the Interim Order; provided that a Party may not terminate this Agreement pursuant to this Section 7.2(a)(ii)(C) if the failure to obtain the Company Shareholder Approval has been caused by, or is a result of, a breach by such Party of any of its representations or warranties or the failure of such Party to perform any of its covenants or agreements under this Agreement; (iii) by the Purchaser, if: (A) prior to the Company Shareholder Approval having been obtained: (1) the Company Board or any duly constituted committee thereof: (i) fails to unanimously recommend or withdraws, amends, modifies or qualifies, in a manner adverse to the Purchaser or states an - 71 - intention to withdraw, amend, modify or qualify the Company Board Recommendation, (ii) accepts, approves, endorses or recommends, or publicly proposes to accept, approve, endorse or recommend an Acquisition Proposal or takes no position or a neutral position with respect to an Acquisition Proposal for more than five Business Days (or beyond the third Business Day prior to the date of the Company Meeting, if sooner), (iii) accepts or enters into any agreement in respect of an Acquisition Proposal or publicly proposes to accept or enter into any agreement in respect of an Acquisition Proposal (in either case, other than a confidentiality agreement permitted by and in accordance with Section 5.3(e)), or (iv) fails to publicly reaffirm (without qualification) the Company Board Recommendation within five Business Days after having been requested in writing by the Purchaser to do so (or in the event the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the Company Meeting) or (2) the Company Board shall have resolved or proposed to take any of the foregoing actions (each of the foregoing described in clauses (1) or (2), a “Company Change in Recommendation”); (B) prior to the Company Shareholder Approval having been obtained, the Company shall have breached Section 5.3 in any material respect; (C) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 6.2(a) or Section 6.2(b) not to be satisfied, and such breach is not cured in accordance with the terms of Section 7.2(b); provided that the Purchaser is not then in breach of this Agreement so as to cause any condition in Section 6.3(a) or Section 6.3(b) not to be satisfied; or (D) there has occurred a Material Adverse Change after the date of this Agreement which is incapable of being cured on or prior to the Outside Date; (iv) by the Company, if: (A) a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Purchaser set forth in this Agreement shall have occurred that would cause the conditions set forth in Section 6.3(a) or Section 6.3(b) not to be satisfied, and such breach is not cured in accordance with the terms of Section 7.2(b); provided that the Company is not then in breach of this Agreement so as to cause any condition in Section 6.2(a) or Section 6.2(b) not to be satisfied; or - 72 - (B) the Company Board authorizes the Company to enter into a written agreement with respect to a Superior Proposal, provided that the Company is then in compliance with Section5.3; (b) The Party desiring to terminate this Agreement pursuant to this Section 7.2 (other than pursuant to Section 7.2(a)(i)) (the “Terminating Party”) shall give written notice (“Termination Notice”) of such termination to the other Party (the “Breaching Party”), specifying in reasonable detail the basis for such Party’s exercise of its termination right, which Termination Notice shall include, in the case of a termination pursuant to Section 7.2(a)(iii)(B) [Breach of the Company Representations, Warranties or Covenants] or Section 7.2(a)(iii)(A) [Breach of the Purchaser Representations, Warranties or Covenants], as the case may be, in reasonable detail, all breaches of covenants, representations and warranties or other matters which the Terminating Party asserts as the basis for such termination. After delivering a Termination Notice, as long as the Breaching Party is proceeding diligently to cure such matter and such matter is capable of being cured prior to the Outside Date (provided that any wilful breach shall be deemed to be incapable of so being cured), the Terminating Party may not exercise such termination right until the earlier of (i) the Outside Date and (ii) the date that is 15 Business Days following receipt of such Termination Notice by the Breaching Party, if such breach has not been cured by such date. (c) If this Agreement is terminated pursuant to Section 7.1 or Section 7.2, this Agreement shall become null and void and be of no further force or effect without liability of any Party (or any shareholder, director, officer, employee, agent, consultant or representative of such Party) to any other Party hereto, except that: (i) in the event of termination under Section 7.1 as a result of the Effective Time occurring, the provisions of this Section 7.2(c) and Sections 2.12, 5.5, 8.2 to and including Section 8.11, and all related definitions set forth in Section 1.1 and the applicable interpretation provisions in Article 1 shall survive for a period of six years thereafter; (ii) in the event of termination under Section 7.2, the provisions of this Section 7.2(c) and Sections 5.4(b), 7.3, and 8.2 to and including 8.11, and all related definitions set forth in Section 1.1, the applicable interpretation provisions in Article 1 and the provisions of the Confidentiality Agreement shall survive any termination hereof pursuant to Section 7.2; and (iii) no Party shall be relieved or released from any liabilities or damages arising out of fraud or of its wilful breach of any provision of this Agreement. - 73 - 7.3 Termination Payments (a) Except as otherwise provided herein, all fees, costs and expenses incurred in connection with this Agreement and the Plan of Arrangement shall be paid by the Party incurring such fees, costs or expenses. (b) For the purposes of this Agreement, “Company Termination Payment” means an amount equal to $108 million. (c) For the purposes of this Agreement, “Company Termination Payment Event” means the termination of this Agreement: (i) by the Purchaser pursuant to Section 7.2(a)(iii)(A) [Company Change in Recommendation] or Section 7.2(a)(iii)(B) [Breach of Non-Solicitation]; or (ii) by the Company pursuant to Section 7.2(a)(iv)(B) [Superior Proposal]; or (iii) by any Party pursuant to Section 7.2(a)(ii)(A) [Effective Time Not Occurring Prior to Outside Date] or Section 7.2(a)(ii)(C) [Failure to Obtain Company Shareholder Approval] or by the Purchaser pursuant to Section 7.2(a)(iii)(B) [Breach of Company Representations, Warranties or Covenants], but only if, in these termination events, (A) following the date hereof and prior to the Company Meeting, a bona fide Acquisition Proposal for the Company shall have been made to the Company or publicly announced and has not expired or been withdrawn and (B) within 12 months following the date of such termination, (1) the Company enters into a definitive agreement in respect of an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (A) above) and such Acquisition Proposal is later consummated (whether or not within such 12 month period) or (2) an Acquisition Proposal shall have been consummated (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (A) above); provided that for purposes of this Section 7.3(c)(iii), the term “Acquisition Proposal” shall have the meaning ascribed to such term in Section 1.1 except that a reference to “20%” therein shall be deemed to be a reference to “50%”, or (d) If the Company Termination Payment Event occurs, the Company Termination Payment shall be paid to the Purchaser by or on behalf of the Company in consideration for the disposition of the Purchaser’s rights under this Agreement, by wire transfer of immediately available funds, as follows: (i) if the Company Termination Payment is payable pursuant to Section 7.3(c)(i), the Company Termination Payment shall be payable within three Business Days following such termination; (ii) if the Company Termination Payment is payable pursuant to Section 7.3(c)(ii), the Company Termination Payment shall be payable prior to or concurrently with such termination; or (iii) if the Company Termination Payment is payable pursuant to Section 7.3(c)(iii), the Company Termination Payment shall be payable
- 74 - within two Business Days after the consummation of an Acquisition Proposal referred to in Section 7.3(c)(iii). For the avoidance of doubt, in no event shall the Company be obligated to pay the Company Termination Payment on more than one occasion. (e) Each Party acknowledges that all of the payment amounts set out in this Section 7.3 are payments in consideration for the disposition of the Purchaser’s rights under this Agreement which are a genuine pre-estimate of the damages, which the Purchaser will suffer or incur as a result of the event giving rise to such payment and the resultant termination of this Agreement and are not penalties. Each of the Company and the Purchaser irrevocably waives any right it may have to raise as a defence that the payment of the Company Termination Payment is excessive or punitive. For greater certainty, each Party agrees that, upon any termination of this Agreement under circumstances where the Purchaser is entitled to the Company Termination Payment and such Company Termination Payment is paid in full, the receipt of the Company Termination Payment by the Purchaser shall be the sole and exclusive remedy (including damages, specific performance and injunctive relief) of the Purchaser and its affiliates against the Company, and the Purchaser and its affiliates shall be in such circumstances precluded from any other remedy against the other Party at Law or in equity or otherwise (including an order for specific performance), and shall not seek to obtain any recovery, judgment, or damages of any kind, including consequential, indirect, or punitive damages, against the other Party or any of its Subsidiaries or any of their respective directors, officers, employees, partners, managers, members, shareholders or affiliates or their respective representatives in connection with this Agreement or the transactions contemplated hereby; provided that the foregoing limitations shall not apply in the event of fraud or wilful or intentional breach of this Agreement by a Party. 7.4 Amendment Subject to the provisions of the Interim Order, the Plan of Arrangement and applicable Laws, this Agreement and the Plan of Arrangement may, at any time and from time to time before or after the holding of the Company Meeting but not later than the Effective Time, be amended by mutual written agreement of the Parties, without further notice to or authorization on the part of the Company Shareholders, and any such amendment may without limitation: (a) change the time for performance of any of the obligations or acts of the Parties; (b) waive any inaccuracies or modify any representation or warranty contained herein or in any document delivered pursuant hereto; (c) waive compliance with or modify any of the covenants herein contained and waive or modify performance of any of the obligations of the Parties; and/or (d) waive compliance with or modify any mutual conditions precedent herein contained. - 75 - 7.5 Waiver Any Party may: (a) extend the time for the performance of any of the obligations or acts of the other Party; (b) waive compliance, except as provided herein, with any of the other Parties’ agreements or the fulfilment of any conditions to its own obligations contained herein; or (c) waive inaccuracies in any of the other Parties’ representations or warranties contained herein or in any document delivered by the other Parties; provided, however, that any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party and, unless otherwise provided in the written waiver, will be limited to the specific breach or condition waived. A Party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right. ARTICLE 8 GENERAL PROVISIONS 8.1 Notices All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed to have been duly given and received on the day it is delivered, provided that it is delivered on a Business Day prior to 5:00 p.m. local time in the place of delivery or receipt. However, if notice is delivered after 5:00 p.m. local time or if such day is not a Business Day then the notice shall be deemed to have been given and received on the next Business Day. Notice shall be sufficiently given if delivered (either in Person or by courier), or if transmitted by email to the Parties at the following addresses (or at such other addresses as shall be specified by any Party by notice to the other given in accordance with these provisions): (a) if to the Parent [Redacted – Address] Attention: [Redacted – Name] Email: [Redacted – Personal Information] Attention: [Redacted – Name] Email: [Redacted – Personal Information] with copies (which shall not constitute notice) to: McCarthy Tétrault LLP 745 Thurlow Street Suite 2400 Vancouver BC V6E 0C5 Attention: Roger Taplin Email: [Redacted – Personal Information] - 76 - (b) if to the Purchaser: [Redacted – Address] Attention: [Redacted – Name] Email: [Redacted – Personal Information] Attention: [Redacted – Name] Email: [Redacted – Personal Information] with copies (which shall not constitute notice) to: McCarthy Tétrault LLP 745 Thurlow Street Suite 2400 Vancouver BC V6E 0C5 Attention: Roger Taplin Email: [Redacted – Personal Information] (c) if to the Company: 155 University Avenue, Suite 1440 Toronto, Ontario M5H 3B7 Attention: John Burzynski, CEO and Chairman Email: [Redacted – Personal Information] with a copy (which shall not constitute notice) to: Bennett Jones LLP 3400 One First Canadian Place P.O Box 130 Toronto, Ontario M5X, 1A4 Attention: Sander Grieve, K.C. / Andrew Disipio Email: [Redacted – Personal Information] / [Redacted – Personal Information] 8.2 Parent Guarantee Parent hereby unconditionally and irrevocably guarantees in favour of the Company the due and punctual performance by the Purchaser of each and every covenant and obligation of the Purchaser arising under this Agreement and the Arrangement, including, without limitation, the due and punctual payment of the consideration required to acquire the Company Shares pursuant to the Arrangement and the due and punctual payment of any indemnity payable by the Purchaser hereunder and agrees to be liable for all guaranteed obligations as if it were the principal obligor of such obligations, subject to the qualifications and limitations set forth in this Agreement, including those related to liquidated damages. Parent hereby agrees that the Company will not have to proceed first against the Purchaser before exercising its rights under this guarantee against Parent. - 77 - 8.3 Governing Law This Agreement shall be governed, including as to validity, interpretation and effect, by the internal Laws of the Province of Ontario and the Laws of Canada applicable therein without reference to conflict of law rules. Each of the Parties hereby irrevocably attorns to the jurisdiction of the courts of the Province of Ontario in respect of all matters arising under and in relation to this Agreement and the Arrangement and waives any defences to the maintenance of an action in the Courts of the Province of Ontario. 8.4 Injunctive Relief Subject to Section 7.3(e), the Parties agree that irreparable harm would occur for which money damages would not be an adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Parties agree that, in the event of any breach or threatened breach of this Agreement by a Party, the non-breaching Party will be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance, and the Parties shall not object to the granting of injunctive or other equitable relief on the basis that there exists an adequate remedy at law. Subject to Section 7.3(e), such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at Law or equity to each of the Parties. 8.5 Time of Essence Time is of the essence in this Agreement. 8.6 Entire Agreement, Binding Effect and Assignment This Agreement (including the exhibits and schedules hereto and the Company Disclosure Letter) and the Confidentiality Agreement constitute the entire agreement, and supersede all other prior agreements, understandings, negotiations and discussions, both written and oral, between the Parties, or any of them, with respect to the subject matter hereof and thereof and, except as expressly provided herein, this Agreement is not intended to and shall not confer upon any Person other than the Parties any rights or remedies hereunder. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise, between the Parties in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement or in any certificate delivered pursuant to this Agreement. The Parties have not relied and are not relying on any other information, discussion or understanding in entering into and completing the transactions contemplated by this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by any of the Parties without the prior written consent of the other Party; provided that the Purchaser may assign all or part of its rights under this Agreement to, and its obligations under this Agreement may be assumed by, any of its affiliates, provided that for the avoidance of doubt, the Purchaser shall continue to be bound to ensure the performance of this Agreement by any such assignee. 8.7 No Liability No director or officer of the Purchaser shall have any personal liability whatsoever to the Company under this Agreement, or any other document delivered in connection with the transactions
- 78 - contemplated hereby on behalf of the Purchaser. No director or officer of the Company shall have any personal liability whatsoever to the Purchaser under this Agreement, or any other document delivered in connection with the transactions contemplated hereby on behalf of the Company. 8.8 Severability If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law or public policy, that provision will be severed from this Agreement and all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible. 8.9 Waiver of Jury Trial Each Party hereto hereby waives, to the fullest extent permitted by applicable Laws, any right it may have to a trial by jury in respect of any suit, action or other proceeding arising out of this Agreement or the transactions contemplated hereby or the actions of the Parties in the negotiation, administration, performance and enforcement of this Agreement. Each Party hereto: (a) certifies that no representative, agent or attorney of any other Party has represented, expressly or otherwise, that such Party would not, in the event of any action, suit or proceeding, seek to enforce the foregoing waiver; and (b) acknowledges that it and the other Parties hereto have been induced to enter into this Agreement, by, among other things, the mutual waiver and certifications in this Section 8.9. 8.10 Third Party Beneficiaries The provisions of Section 2.4(f), 5.5 and 5.6(a) are: (a) intended for the benefit of all applicable present and former directors and officers and/or employees of the Company, as and to the extent applicable in accordance with their terms, and shall be enforceable by each of such Persons and his or her heirs, executors administrators and other legal representatives (collectively, the “Third Party Beneficiaries”) and the Company shall hold the rights and benefits of Section 5.5 in trust for and on behalf of the Third Party Beneficiaries and the Company hereby accepts such trust and agrees to hold the benefit of and enforce performance of such covenants on behalf of the Third Party Beneficiaries; and (b) in addition to, and not in substitution for, any other rights that the Third Party Beneficiaries may have by contract or otherwise. Except as provided in this Section 8.10 and Section 2.4(f), and except for the rights of the affected securityholders of the Company to receive the applicable consideration following the Effective Time pursuant to the Arrangement (for which the Company herby confirms that it is acting as agent on behalf of such affected securityholders), this Agreement shall not confer any rights or - 79 - remedies upon any Person other than the Parties and their respective successors and permitted assigns. 8.11 Counterparts, Execution This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. The Parties shall be entitled to rely upon delivery of an executed electronic copy of this Agreement, and such executed electronic copy shall be legally effective to create a valid and binding agreement between the Parties. [Remainder of page intentionally left blank. Signature page follows.] IN WITNESS WHEREOF the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized. GOLD FIELDS WINDFALL HOLDINGS INC. Per: (signed) "John Pauley" Name: Johan Pauley Title: Director GOLD FIELDS HOLDINGS COMPANY LIMITED Per: (signed) "Mike Fraser" Name: Mike Fraser Title: Director OSISKO MINING INC. Per: (signed) "John F. Burzynski" Name: John F. Burzynski Title: Chairman and CEO A-1 SCHEDULE A PLAN OF ARRANGEMENT PLAN OF ARRANGEMENT UNDER SECTION 182 OF THE BUSINESS CORPORATIONS ACT (ONTARIO) ARTICLE 1 INTERPRETATION 1.1 Definitions Unless indicated otherwise, where used in this Plan of Arrangement, capitalized terms used but not defined shall have the meanings specified in the Arrangement Agreement and the following terms shall have the following meanings (and grammatical variations of such terms shall have corresponding meanings): “Affected Securities” means, collectively, the Company Shares and the Company Convertible Securities. “Affected Securityholders” means, collectively, the holders of Affected Securities. “affiliate” has the meaning ascribed thereto in the Arrangement Agreement. “Arrangement” means the arrangement under Section 182 of the OBCA on the terms and subject to the conditions set out in this Plan of Arrangement, subject to any amendments or variations to this Plan of Arrangement made in accordance with the terms of the Arrangement Agreement and Section 5.1 or made at the direction of the Court in the Final Order with the prior written consent of the Company and the Purchaser, each acting reasonably. “Arrangement Agreement” means the arrangement agreement made as of August 12, 2024 among the Company, the Purchaser and the Parent, including all schedules annexed thereto, as may be amended, supplemented or otherwise modified from time to time in accordance with its terms. “Arrangement Resolution” means the special resolution approving this Plan of Arrangement considered at the Company Meeting by Company Shareholders. “Articles of Arrangement” means the articles of arrangement in respect of the Arrangement, required by the OBCA to be sent to the Director after the Final Order is made, which will include the Plan of Arrangement and otherwise be in a form and content satisfactory to the Company and the Purchaser, each acting reasonably. “Authorization” means, with respect to any Person, any authorization, Order, permit, approval, grant, licence, concession, registration, consent, right, notification, condition, franchise, privilege, certificate, judgement, writ, injunction, award, determination, direction decision, decree, by-law, rule or regulation, of, from or required by any Governmental Entity having jurisdiction over the Person.
A-2 “Business Day” means any day except Saturday, Sunday or any day on which banks are generally not open for business in Montréal (Québec), Toronto (Ontario) or Johannesburg (South Africa). “Certificate of Arrangement” means the certificate of arrangement to be issued by the Director pursuant to subsection 183(2) of the OBCA in respect of the Articles of Arrangement. “Company” means, “Osisko Mining Inc.”, a corporation existing under the OBCA, which for greater certainty shall be renamed “[__]” under Section 2.3(h). “Company Convertible Securities” means, collectively, the Company Options, Company RSUs and Company DSUs. “Company DSUs” means the outstanding deferred share units of the Company granted under the Legacy DSU Plan or the Omnibus Incentive Plan. “Company Meeting” means the special meeting of Company Shareholders called and held in accordance with the Interim Order to consider the Arrangement Resolution. “Company Option In-the-Money Amount” means, with respect to a particular Company Option, the amount, if any, by which (i) the Consideration, exceeds (ii) the exercise price per Company Share under such Company Option immediately prior to the Effective Time. “Company Options” means the outstanding options to purchase Company Shares granted pursuant to the Legacy Option Plan or the Omnibus Incentive Plan. “Company RSUs” means the outstanding restricted share units of the Company granted pursuant to the Legacy RSU Plan or the Omnibus Incentive Plan. “Company Shareholders” means the holders of Company Shares. “Company Shares” means the common shares of the Company. “Consideration” means $4.90 in cash per Company Share. “Court” means the Ontario Superior Court of Justice (Commercial List). “Depositary” means TMX Equity Transfer Services or such other Person as the Company may appoint to act as depositary in relation to the Arrangement, with the approval of the Purchaser, acting reasonably. “Director” means the Director appointed pursuant to Section 278 of the OBCA. “Dissent Rights” has the meaning specified in Section 3.1. “Dissenting Holder” means a registered Company Shareholder who has validly exercised its Dissent Rights and has not withdrawn or been deemed to have withdrawn such exercise of Dissent Rights, but only in respect of the Company Shares in respect of which Dissent Rights are validly exercised by such registered Company Shareholder. “DRS Advice” means a Direct Registration System (DRS) advice. A-3 “Effective Date” means the date shown on the Certificate of Arrangement giving effect to the Arrangement. “Effective Time” means 12:01 a.m. (Toronto time) on the Effective Date, or such other time as the Parties agree to in writing before the Effective Date. “Final Order” means the final order of the Court made pursuant to Section 182(5) of the OBCA in a form acceptable to the Company and the Purchaser, each acting reasonably, approving the Arrangement, as such order may be amended by the Court (with the consent of both the Company and the Purchaser, each acting reasonably) at any time prior to the Effective Date or, if appealed, then, unless such appeal is withdrawn or denied, as affirmed or as amended on appeal (provided that any such amendment is acceptable to both the Company and the Purchaser, each acting reasonably). “Governmental Entity” means: (i) any domestic or foreign federal, provincial, territorial, regional, state, municipal or other government, governmental department, quasi-government, administrative, judicial or regulatory authority (including any securities regulatory authorities), agency, minister or ministry, board, body, bureau, commission (including any securities commission), instrumentality court or tribunal or any political subdivision thereof, or any central bank (or similar monetary or regulatory authority) thereof, any taxing authority, any ministry or department or agency of any of the foregoing; (ii) any Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court; (iii) any stock exchange; or (iv) any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing entities established to perform a duty or function on its behalf. “Interim Order” means the interim order of the Court made pursuant to subsection 182(5) of the OBCA, in a form acceptable to the Company and the Purchaser, each acting reasonably, providing for, among other things, the calling and holding of the Company Meeting, as such order may be amended by the Court with the consent of the Company and the Purchaser, each acting reasonably. “Law” means, with respect to any Person, any applicable law (including common law), by-law, statute, rule, regulation, principle of law and equity, order, ruling, ordinance, judgment, injunction, determination, award, decree or other legally binding requirement, whether domestic or foreign, and the terms and conditions of any Authorization of or from any Governmental Entity, and, for greater certainty, includes Canadian Securities Laws. “Legacy DSU Plan” means the legacy deferred share unit plan which was adopted by the Company Shareholders on June 8, 2017. “Legacy Option Plan” means the legacy option plan which was initially adopted by the Company Board on June 1, 2011 and adopted by the Company Shareholders on June 25, 2015, as amended on June 29, 2018. A-4 “Legacy RSU Plan” means the legacy restricted share unit plan which was adopted by the Company Shareholders on June 8, 2017. “Letter of Transmittal” means the letter of transmittal sent to holders of Company Shares for use in connection with the Arrangement. “Lien” means any mortgage, charge, pledge, encumbrance, hypothec, security interest, statutory or deemed trust, prior claim, lien (statutory or otherwise), encumbrance, claim, deed of trust, servitude, assessment, attachment, levy, community or other marital property interest, covenant, equitable interest, license, lease or other possessory interest, option, put or call, pledge, preference, priority, right of first refusal or offer, reservation of rights, right of setoff, proxy, power of attorney, voting agreement, condition, limitation or restriction of any kind or nature whatsoever, in each case, whether contingent or absolute. “OBCA” means the Business Corporations Act (Ontario). “Omnibus Incentive Plan” means the omnibus incentive plan of the Company which was adopted by the Company Shareholders on May 29, 2023. “Parent” means Gold Fields Holdings Company Limited, a limited liability company incorporated under the laws of the British Virgin Islands. “Parties” means, collectively, the Company, the Purchaser and the Parent, and “Party” means any one of them. “Person” includes an individual, general partnership, limited partnership, corporation, company, limited liability company, body corporate, joint venture, unincorporated organization, other form of business organization, trust, trustee, executor, administrator or other legal representative. “Plan of Arrangement” means this plan of arrangement proposed under Section 182 of the OBCA, and any amendments or variations made in accordance with the Arrangement Agreement and Section 5.1 or made at the direction of the Court in the Final Order with the prior written consent of the Company and the Purchaser, each acting reasonably. “Purchaser” means Gold Fields Windfall Holdings Inc., a corporation existing under the OBCA. “Tax Act” means the Income Tax Act (Canada). 1.2 Certain Rules of Interpretation In this Plan of Arrangement, unless otherwise specified: (a) Headings, etc. The division of this Plan of Arrangement into Articles and Sections and the insertion of headings are for convenient reference only and do not affect the construction or interpretation of this Plan of Arrangement. (b) Currency. All references to dollars or to $ are references to Canadian dollars, unless specified otherwise. (c) Gender and Number. Any reference to gender includes all genders. Words importing the singular number only include the plural and vice versa. A-5 (d) Certain Phrases, etc. The words (i) “including”, “includes” and “include” mean “including (or includes or include) without limitation,” (ii) “the aggregate of”, “the total of”, “the sum of”, or a phrase of similar meaning means “the aggregate (or total or sum), without duplication, of,” and (iii) unless stated otherwise, “Article”, “Section”, and “Schedule” followed by a number or letter mean and refer to the specified Article or Section of or Schedule to this Plan of Arrangement. (e) Statutes. Unless something in the subject matter or context is inconsistent therewith or unless otherwise herein provided, a reference to any statute is to that statute as now enacted or as the same may from time to time be amended, re enacted or replaced and includes any regulations made thereunder. (f) Computation of Time. A period of time is to be computed as beginning on the day following the event that began the period and ending at 4:30 p.m. on the last day of the period, if the last day of the period is a Business Day, or at 4:30 p.m. on the next Business Day if the last day of the period is not a Business Day. If the date on which any action is required or permitted to be taken under this Agreement by a Person is not a Business Day, such action shall be required or permitted to be taken on the next succeeding day which is a Business Day. (g) Time References. References to time herein or in any Letter of Transmittal are to local time, Toronto, Ontario. ARTICLE 2 THE ARRANGEMENT 2.1 Arrangement Agreement This Plan of Arrangement is made pursuant to, and subject to, the provisions of, and forms part of, the Arrangement Agreement and constitutes an arrangement as referred to in Section 182 of the OBCA. 2.2 Binding Effect This Plan of Arrangement and the Arrangement, upon the filing of the Articles of Arrangement and the issuance of the Certificate of Arrangement, will become effective, and be binding on the Purchaser, the Parent, the Company, all holders and beneficial owners of Affected Securities, including Dissenting Holders, the registrar and transfer agent of the Company, the Depositary and all other Persons, at and after the Effective Time without any further act or formality required on the part of any Person. 2.3 Arrangement Commencing at the Effective Time, the following steps or transactions shall, unless specifically provided otherwise in this Section 2.3, occur and shall be deemed to occur in the following order as set out below without any further authorization, act or formality, in each case at two-minute intervals starting at the Effective Time: (a) each Company Option outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Legacy Option Plan or the Omnibus Incentive Plan, shall be, and shall be deemed to be,
A-6 unconditionally vested and exercisable, and such Company Option shall, without any further action by or on behalf of the holder of such Company Option, be, and shall be deemed to be, assigned and transferred by such holder to the Company in exchange for a cash payment from the Company equal to the Company Option In-the-Money Amount of such Company Option, less applicable withholdings (and, for greater certainty, where such amount is a negative amount, neither the Company nor the Purchaser shall be obligated to pay the holder of such Company Option any amount in respect of such Company Option), and each such Company Option shall immediately be cancelled and the holder of such Company Option shall cease to be a holder of such Company Option and shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Plan of Arrangement, and such holder’s name shall be removed from the applicable register; (b) each Company RSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Omnibus Incentive Plan or the Legacy RSU Plan, as applicable, shall, without any further action by or on behalf of the holder of such Company RSU, be, and shall be deemed to be, settled by the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such Company RSU shall immediately be cancelled and the holder of such Company RSU shall cease to be a holder of such Company RSU and shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Plan of Arrangement, and such holder’s name shall be removed from the applicable register; (c) each director of the Company shall resign from, and shall be deemed to have immediately resigned from, the Company Board and the board of directors of any affiliate of the Company; (d) each Company DSU outstanding immediately prior to the Effective Time (whether vested or unvested), notwithstanding the terms of the Omnibus Incentive Plan or the Legacy DSU Plan, as applicable, shall, without any further action by or on behalf of the holder of such Company DSU, be, and shall be deemed to be, settled by the Company in exchange for a cash payment from the Company equal to the Consideration, less applicable withholdings, and each such Company DSU shall immediately be cancelled and the holder of such Company DSU shall cease to be a holder of such Company DSU and shall thereafter have only the right to receive the consideration to which they are entitled pursuant to this Plan of Arrangement, and such holder’s name shall be removed from the applicable register; (e) the Omnibus Incentive Plan, the Legacy Option Plan, the Legacy RSU Plan and the Legacy DSU Plan and all agreements, grants and similar instruments relating to the Company Convertible Securities shall be terminated and shall be of no further force and effect; (f) each of the Company Shares held by Dissenting Holders in respect of which Dissent Rights have been validly exercised shall be, and shall be deemed to be, transferred without any further act or formality to the Purchaser in consideration for a debt claim against the Purchaser for the amount determined under Section 3.1, and: A-7 (i) such Dissenting Holders shall cease to be the holders of such Company Shares and to have any rights as holders of such Company Shares other than the right to be paid fair value by the Purchaser for such Company Shares as set out in Section 3.1(a); (ii) such Dissenting Holders’ names shall be removed as the holders of such Company Shares from the registers of Company Shares maintained by or on behalf of the Company; and (iii) the Purchaser shall be deemed to be the transferee and the legal and beneficial owner of such Company Shares, free and clear of all Liens, and shall be entered in the register of Company Shares maintained by or on behalf of the Company as the holder of such Company Shares; (g) each Company Share outstanding immediately prior to the Effective Time, other than Company Shares deemed to be transferred by a Dissenting Holder to the Purchaser under Section 2.3(f) and any Company Shares held by the Purchaser and any of its affiliates immediately prior to the Effective Time, shall, without any further action by or on behalf of the holder of such Company Share, be, and shall be deemed to be, assigned and transferred by the holder thereof to the Purchaser in exchange for the Consideration, and: (i) the holders of such Company Shares shall cease to be the holders of such Company Shares and to have any rights as holders of such Company Shares other than the right to be paid the Consideration by the Purchaser in accordance with this Plan of Arrangement; (ii) such holders’ names shall be removed from the register of the Company Shares maintained by or on behalf of the Company; and (iii) the Purchaser shall be deemed to be the transferee and the legal and beneficial owner of such Company Shares, free and clear of all Liens, and shall be entered in the register of the Company Shares maintained by or on behalf of the Company as the holder of such Company Shares; and (h) the name of the Company shall be changed from “Osisko Mining Inc.” to “[__]”. For greater certainty, none of the foregoing steps shall occur unless all of the foregoing steps occur. 2.4 Effective Time of Arrangement The transfers and cancellations provided for in Section 2.3 shall be deemed to occur at the time and in the order specified in Section 2.3, notwithstanding that certain of the procedures related thereto are not completed until after such time. ARTICLE 3 RIGHTS OF DISSENT 3.1 Rights of Dissent A-8 Registered Company Shareholders may exercise dissent rights with respect to the Company Shares held by such holders (“Dissent Rights”) in connection with the Arrangement pursuant to and in the manner set forth in Section 185 of the OBCA, as modified by the Interim Order and this Section 3.1; provided that, notwithstanding subsection 185(6) of the OBCA, the written objection to the Arrangement Resolution referred to in subsection 185(6) of the OBCA must be received by the Company not later than 4:30 p.m. (Toronto time) two Business Days immediately preceding the date of the Company Meeting (as it may be adjourned or postponed from time to time). Dissenting Holders who duly exercise their Dissent Rights shall be deemed to have transferred the Company Shares held by them and in respect of which Dissent Rights have been validly exercised to the Purchaser, free and clear of all Liens, as provided in Section 2.3(f), and if they: (a) ultimately are entitled to be paid fair value for such Company Shares: (i) shall be deemed not to have participated in the transactions in Article 2 (other than Section 2.3(f)); (ii) will be entitled to be paid, subject to Section 4.3, the fair value of such Company Shares, which fair value, notwithstanding anything to the contrary contained in Section 185 of the OBCA, shall be determined as of the close of business on the Business Day immediately preceding the date on which the Arrangement Resolution was adopted; and (iii) will not be entitled to any other payment or consideration, including any payment that would be payable under the Arrangement had such holders not exercised their Dissent Rights in respect of such Company Shares; or (b) ultimately are not entitled, for any reason, to be paid fair value for such Company Shares, shall be deemed to have participated in the Arrangement as of the Effective Time on the same basis as a non-dissenting holder of Company Shares pursuant to Section 2.3(g) and shall be entitled to receive only the consideration contemplated in Section 2.3(g) that such Company Shareholder would have received pursuant to the Arrangement if such Company Shareholder had not exercised Dissent Rights. 3.2 Recognition of Dissenting Holders (a) In no circumstances shall the Purchaser, the Parent, the Company, the Depositary or any other Person be required to recognize a Person exercising Dissent Rights unless such Person (i) is the registered holder of those Company Shares as at the record date in respect of which such rights are sought to be exercised, (ii) has not voted or instructed a proxyholder to vote such Company Shares in favour of the Arrangement Resolution (but only in respect of such Company Shares), and (iii) has strictly complied with the procedures for exercising Dissent Rights and has not withdrawn such dissent prior to the Effective Time. (b) For greater certainty, in no case shall the Purchaser, the Parent, the Company, the Depositary or any other Person be required to recognize Dissenting Holders as holders of Company Shares in respect of which Dissent Rights have been validly exercised or any interest therein after the completion of the transfer under Section 2.3(f) and the names of such Dissenting Holders shall be removed from the registers of holders of the Company Shares in respect of which Dissent Rights have been validly exercised at the same time as the event described in Section 2.3(f) occurs. In addition to any other restrictions under Section 185 of the OBCA, none of the following shall be entitled to exercise Dissent Rights: (i) holders of Company Convertible Securities; (ii) Company Shareholders who vote or have A-9 instructed a proxyholder to vote such Company Shares in favour of the Arrangement Resolution (but only in respect of such Company Shares); (iii) the Purchaser, the Parent or any of their affiliates; and (iv) holders of the Debentures (in their capacity as a holder of such Debentures). ARTICLE 4 CERTIFICATES AND PAYMENTS 4.1 Payment of Consideration (a) Prior to the filing of the Articles of Arrangement: (i) the Purchaser shall deposit, or arrange to be deposited, with the Depositary in escrow, for payment to the Company Shareholders, cash in an amount equal to the aggregate Consideration that the Company Shareholders are entitled to receive for their Company Shares (other than in respect of Company Shares held by a Dissenting Holder in respect of which Dissent Rights are exercised and any Company Shares held by the Purchaser and any of its affiliates) under Section 2.3(g); and (ii) the Company shall deposit, or arrange to be deposited, with the Depositary in escrow, an amount in cash equal to the aggregate consideration that the holders of Company Options, Company RSUs and Company DSUs are entitled to receive from the Company, pursuant to Sections 2.3(a), 2.3(b) and 2.3(d), respectively, less any amount withheld pursuant to Section 4.3. (b) Effective as of the effective time of the step in Section 2.3(g), the Depositary shall hold the cash received from the Purchaser pursuant to Section 4.1(a)(i) representing the aggregate Consideration payable to holders of Company Shares as agent and nominee for such holders, on account of such Consideration, and the Purchaser shall be considered to have fully paid the aggregate Consideration payable to holders of Company Shares described in Section 2.3(g). Upon surrender to the Depositary for cancellation of a certificate or DRS Advice, as applicable, which immediately prior to the Effective Time represented outstanding Company Shares that were transferred pursuant to Section 2.3(g), together with a duly completed and executed Letter of Transmittal and such additional documents and instruments as the Depositary may reasonably require, the holder of Company Shares represented by such surrendered certificate or DRS Advice, as applicable, shall be entitled to receive in exchange therefor, and the Depositary shall deliver to such holder, as soon as practicable following the Effective Date, a cheque, wire or other form of immediately available funds representing the Consideration which such holder has the right to receive under this Plan of Arrangement for such Company Shares, less any amounts withheld pursuant to Section 4.3, and any certificate or DRS Advice so surrendered shall forthwith be cancelled. (c) Effective as of the effective time of the step in Sections 2.3(a), 2.3(b) and 2.3(d), respectively, the Depositary shall hold the cash received from the Company pursuant to Section 4.1(a)(ii) representing the aggregate consideration payable to holders of Company Options, Company RSUs and Company DSUs, respectively, less, in each case, any amount withheld pursuant to Section 4.3, as agent and nominee for such holders, on account of such consideration, and the Company
A-10 shall be considered to have fully paid the aggregate consideration payable to such holders as described in Sections 2.3(a), 2.3(b) and 2.3(d). On or as soon as practicable after the Effective Date, (i) the Depositary shall, on behalf of the Company, deliver to each holder of Company Options, Company RSUs and Company DSUs, as reflected on the registers maintained by or on behalf of the Company, as applicable, a cheque, wire or other form of immediately available funds representing the amount, if any, which such holder of Company Options, Company RSUs or Company DSUs has the right to receive under this Plan of Arrangement for such Company Options, Company RSUs or Company DSUs, less any amount withheld pursuant to Section 4.3, and (ii) the Company shall remit to the appropriate Governmental Entity the aggregate amount withheld pursuant to Section 4.3 in respect of the payments to holders of the Company Options, Company RSUs and Company DSUs. (d) Until surrendered as contemplated by this Section 4.1, each certificate that immediately prior to the Effective Time represented Company Shares shall be deemed after the Effective Time to represent only the right to receive upon such surrender a cash payment in lieu of such certificate as contemplated in this Section 4.1, less any amounts withheld pursuant to Section 4.3. (e) Any certificate formerly representing Company Shares not duly surrendered on or before the sixth anniversary of the Effective Date shall cease to represent a claim by or interest of any former holder of Company Shares of any kind or nature against or in the Company, the Purchaser or the Parent. On such date, all cash to which such former holder was entitled shall be deemed to have been surrendered to the Purchaser or the Company, as applicable, and shall be paid over by the Depositary to the Purchaser or the Company, as applicable, or as directed by the Purchaser or the Company, as applicable. Any payment made by way of cheque by the Depositary pursuant to this Plan of Arrangement that has not been deposited or has been returned to the Depositary or that otherwise remains unclaimed, in each case, on or before the sixth anniversary of the Effective Date, and any right or claim to payment hereunder that remains outstanding on the sixth anniversary of the Effective Date shall cease to represent a right or claim of any kind or nature and the right of the holder to receive the applicable consideration for the Affected Securities pursuant to this Plan of Arrangement shall terminate and be deemed to be surrendered and forfeited to the Purchaser or the Company, as applicable, for no consideration. (f) No holder of Affected Securities shall be entitled to receive any consideration with respect to such Affected Securities other than any cash payment to which such holder is entitled to receive in accordance with Section 2.3 and this Section 4.1 and, for greater certainty, no such holder will be entitled to receive any interest, dividends, premium or other payment in connection therewith. 4.2 Lost Certificates In the event any certificate which immediately prior to the Effective Time represented one or more outstanding Company Shares that were transferred or redeemed, as applicable, pursuant to Section 2.3 shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such certificate to be lost, stolen or destroyed, the Depositary will issue in exchange for such lost, stolen or destroyed certificate, the aggregate Consideration deliverable A-11 in accordance with such holder’s Letter of Transmittal. When authorizing such payment in exchange for any lost, stolen or destroyed certificate, the Person to whom such cash is to be delivered shall as a condition precedent to the delivery of such Consideration, give a bond satisfactory to the Purchaser, the Company and the Depositary (each acting reasonably) in such sum as the Purchaser may direct (acting reasonably), or otherwise indemnify the Purchaser and the Company in a manner satisfactory to Purchaser and the Company, each acting reasonably, against any claim that may be made against the Purchaser or the Company with respect to the certificate alleged to have been lost, stolen or destroyed. 4.3 Withholding Rights The Purchaser, the Company and the Depositary, as applicable, shall be entitled to deduct and withhold, or to direct any Person to deduct and withhold on their behalf, from any Consideration or other amounts otherwise payable or otherwise deliverable to any of the Company Securityholders or any other Person under this Plan of Arrangement (including, without limitation, any amounts payable pursuant to Section 3.1) such amounts as the Purchaser, the Company or the Depositary, as applicable, determines are required or permitted to be deducted or withheld from such consideration or other amount payable under any provision of any Law in respect of Taxes. Any such amounts that are deducted and withheld from the Consideration or such other amount payable pursuant to this Plan of Arrangement and that are remitted to the relevant Governmental Entity, shall be treated for all purposes as having been paid to the Company Securityholders or other Person to whom such amounts would otherwise have been paid. 4.4 No Liens Any exchange or transfer of securities pursuant to this Plan of Arrangement shall be free and clear of any Liens or other claims of third parties of any kind. 4.5 Paramountcy From and after the Effective Time: (a) this Plan of Arrangement shall take precedence and priority over any and all Affected Securities issued or outstanding prior to the Effective Time, (b) the rights and obligations of the Affected Securityholders, the Company, the Purchaser, the Parent, the Depositary and any transfer agent or other depositary therefor in relation thereto, shall be solely as provided for in this Plan of Arrangement, and (c) all actions, causes of action, claims or proceedings (actual or contingent and whether or not previously asserted) based on or in any way relating to any Affected Securities shall be deemed to have been settled, compromised, released and determined without liability except as set forth in this Plan of Arrangement. ARTICLE 5 AMENDMENTS 5.1 Amendments to Plan of Arrangement (a) The Company, the Purchaser and the Parent may amend, modify and/or supplement this Plan of Arrangement at any time and from time to time, provided that each such amendment, modification and/or supplement must (i) be set out in writing, (ii) be approved by the Company and the Purchaser, each acting reasonably, (iii) be filed with the Court and, if made following the Company Meeting, approved by the Court and if the Court directs, approved by the Company A-12 Shareholders, and (iv) communicated to the Affected Securityholders if and as required by the Court. (b) Any amendment, modification or supplement to this Plan of Arrangement may be proposed by the Company or the Purchaser at any time prior to the Company Meeting (provided that the Purchaser or the Company, as applicable, shall have consented thereto) with or without any other prior notice or communication, and if so proposed and accepted by the Persons voting at the Company Meeting (other than as may be required under the Interim Order), shall become part of this Plan of Arrangement for all purposes. (c) Any amendment, modification or supplement to this Plan of Arrangement that is approved or directed by the Court following the Company Meeting shall be effective only if (i) it is consented to in writing by each of the Company and the Purchaser (in each case, acting reasonably), and (ii) if required by the Court, it is consented to by some or all of the Company Shareholders voting in the manner directed by the Court. (d) Any amendment, modification or supplement to this Plan of Arrangement may be made by the Company, the Parent and the Purchaser without the approval of or communication to the Court or the Affected Securityholders, provided that it concerns a matter which, in the reasonable opinion of the Company and the Purchaser, is of an administrative or ministerial nature required to better give effect to the implementation of this Plan of Arrangement and is not materially adverse to the economic interest of any former holder of Affected Securities. (e) This Plan of Arrangement may be withdrawn prior to the Effective Time in accordance with the Arrangement Agreement. ARTICLE 6 FURTHER ASSURANCES 6.1 Further Assurances Notwithstanding that the transactions and events set out in this Plan of Arrangement shall occur and shall be deemed to occur in the order set out in this Plan of Arrangement without any further act or formality, each of the Parties shall make, do and execute, or cause to be made, done and executed, all such further acts, deeds, agreements, transfers, assurances, instruments or documents as may reasonably be required by either of them in order to further document or evidence any of the transactions or events set out in this Plan of Arrangement. B-1 SCHEDULE B ARRANGEMENT RESOLUTION BE IT RESOLVED THAT: 1. The arrangement (the “Arrangement”) under Section 182 of the Business Corporations Act (Ontario) involving Osisko Mining Inc. (the “Company”), pursuant to the arrangement agreement between the Company, Gold Fields Holdings Company Limited and Gold Fields Windfall Holdings Inc. made as of August 12, 2024, as it may be modified, supplemented or amended from time to time in accordance with its terms (the “Arrangement Agreement”), as more particularly described and set forth in the management information circular of the Company dated September [__], 2024 (the “Circular”), and all transactions contemplated thereby, are hereby authorized, approved and adopted. 2. The plan of arrangement of the Company, as it has been or may be modified, supplemented or amended in accordance with the Arrangement Agreement and its terms (the “Plan of Arrangement”), the full text of which is set out as Schedule “A” to the Circular, is hereby authorized, approved and adopted. 3. The: (i) Arrangement Agreement and all the transactions contemplated therein; (ii) actions of the directors of the Company in approving the Arrangement and the Arrangement Agreement; and (iii) actions of the directors and officers of the Company in executing and delivering the Arrangement Agreement and any modifications, supplements or amendments thereto, and causing the performance by the Company of its obligations thereunder, are hereby ratified and approved. 4. The Company is hereby authorized to apply for a final order from the Ontario Superior Court of Justice (Commercial List) (the “Court”) to approve the Arrangement on the terms set forth in the Arrangement Agreement and the Plan of Arrangement (as they may be, or may have been, modified, supplemented or amended). 5. Notwithstanding that this resolution has been passed (and the Arrangement adopted) by the holders of common shares of the Company (the “Company Shareholders”) entitled to vote thereon or that the Arrangement has been approved by the Court, the directors of the Company are hereby authorized and empowered, without further notice to or approval of the Company Shareholders: (i) to amend, modify or supplement the Arrangement Agreement or the Plan of Arrangement to the extent permitted by their terms; and (ii) subject to the terms of the Arrangement Agreement, not to proceed with the Arrangement and any related transactions. 6. Any officer or director of the Company is hereby authorized and directed, for and on behalf of the Company, to execute or cause to be executed and to deliver or cause to be delivered, whether under the corporate seal of the Company or otherwise, all such other documents and instruments and to perform or cause to be performed all such other acts and things as, in such person’s opinion, may be necessary or desirable to give full force and effect to the foregoing resolutions and the matters authorized thereby, such determination to be conclusively evidenced by the execution and delivery of any such other document or instrument or the doing of any such other act or thing.
exhibit412
Exhibit 4.12 U.S.$500,000,000 Multicurrency Bridge Facility Agreement Dated October 18, 2024 for GOLD FIELDS WINDFALL HOLDINGS INC. And” GOLD FIELDS OROGEN HOLDING (BVI) LIMITED arranged by THE BANK OF NOVA SCOTIA, CITIBANK, N.A., LONDON BRANCH AND ROYAL BANK OF CANADA with THE BANK OF NOVA SCOTIA acting as Agent Ref: L-352434 (i) 3202599488 CONTENTS CLAUSE PAGE SECTION 1 INTERPRETATION 1. Definitions and Interpretation .................................................................................................... 1 SECTION 2 THE FACILITY 2. The Facility .............................................................................................................................. 25 3. Purpose ................................................................................................................................... 27 4. Conditions of Utilisation ........................................................................................................... 27 SECTION 3 UTILISATION 5. Utilisation ................................................................................................................................. 30 6. Optional Currencies ................................................................................................................. 31 SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION 7. Repayment .............................................................................................................................. 32 8. Prepayment and Cancellation ................................................................................................. 33 SECTION 5 COSTS OF UTILISATION 9. Interest ..................................................................................................................................... 39 10. Interest Periods ....................................................................................................................... 42 11. Changes to the Calculation of Interest .................................................................................... 43 12. Fees ......................................................................................................................................... 44 SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS 13. Tax Gross-up and Indemnities ................................................................................................. 46 14. Increased Costs ....................................................................................................................... 50 15. Other Indemnities .................................................................................................................... 52 16. Mitigation by the Lenders ........................................................................................................ 53 17. Costs and Expenses ................................................................................................................ 53 SECTION 7 GUARANTEE 18. Guarantee and Indemnity ........................................................................................................ 55 SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT 19. Representations ...................................................................................................................... 58 20. Information Undertakings ........................................................................................................ 62 21. Financial Covenants ................................................................................................................ 65 22. General Undertakings .............................................................................................................. 67 23. Events of Default ..................................................................................................................... 71 SECTION 9 CHANGES TO PARTIES 24. Changes to the Lenders .......................................................................................................... 75 25. Changes to the Obligors .......................................................................................................... 80 (ii) 3202599488 SECTION 10 THE FINANCE PARTIES 26. Role of the Agent and the Arranger ......................................................................................... 83 27. Conduct of Business by the Finance Parties .......................................................................... 91 28. Sharing among the Finance Parties ........................................................................................ 91 SECTION 11 ADMINISTRATION 29. Payment Mechanics ................................................................................................................ 93 30. Sanctioned Finance Party ....................................................................................................... 97 31. Blocking Laws .......................................................................................................................... 98 32. Set-off ...................................................................................................................................... 99 33. Notices ..................................................................................................................................... 99 34. Calculations and Certificates ................................................................................................. 102 35. Partial Invalidity ..................................................................................................................... 102 36. Remedies and Waivers ......................................................................................................... 102 37. Amendments and Waivers .................................................................................................... 102 38. Confidential Information......................................................................................................... 108 39. Confidentiality of Funding Rates ........................................................................................... 112 40. Counterparts .......................................................................................................................... 113 SECTION 12 GOVERNING LAW AND ENFORCEMENT 41. Governing Law ...................................................................................................................... 114 42. Enforcement .......................................................................................................................... 114 43. Bail-In ..................................................................................................................................... 114 44. US QFC Rules ....................................................................................................................... 116 THE SCHEDULES SCHEDULE PAGE SCHEDULE 1 The Original Parties ........................................................................................................ 118 SCHEDULE 2 Conditions Precedent ..................................................................................................... 121 SCHEDULE 3 Requests ........................................................................................................................ 127 SCHEDULE 4 Form of Transfer Certificate............................................................................................ 129 SCHEDULE 5 Form of Assignment Agreement ..................................................................................... 131 SCHEDULE 6 Form of Accession Letter................................................................................................ 134 SCHEDULE 7 Form of Resignation Letter ............................................................................................. 135 SCHEDULE 8 Form of Compliance Certificate ...................................................................................... 136 SCHEDULE 9 Timetables ...................................................................................................................... 137 SCHEDULE 10 LMA Form of Confidentiality Undertaking .................................................................... 138 SCHEDULE 11 Form of Increase Confirmation ..................................................................................... 143 SCHEDULE 12 Form of Substitute Affiliate Lender Designation Notice ............................................... 145 SCHEDULE 13 Reference Rate Terms ................................................................................................. 147 SCHEDULE 14 Daily Non-Cumulative Compounded RFR Rate .......................................................... 154 SCHEDULE 15 Cumulative Compounded RFR Rate ........................................................................... 156 1 3202599488 THIS AGREEMENT is dated October 18, 2024 and made between: (1) GOLD FIELDS LIMITED (the "Parent"); (2) GOLD FIELDS OROGEN HOLDING (BVI) LIMITED and GOLD FIELDS WINDFALL HOLDINGS INC./GESTION GOLD FIELDS WINDFALL INC. (together, the "Original Borrowers" and individually an "Original Borrower"); (3) THE SUBSIDIARIES of the Parent listed in Part I of Schedule 1 (The Original Parties) as guarantors (together with the Parent, the "Original Guarantors"); (4) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as mandated lead arrangers and bookrunners (whether acting individually or together, the "Arranger"); (5) THE FINANCIAL INSTITUTIONS listed in Part III of Schedule 1 (The Original Parties) as lenders (the "Original Lenders"); and (6) THE BANK OF NOVA SCOTIA as agent of the other Finance Parties (the "Agent"). IT IS AGREED as follows: SECTION 1 INTERPRETATION 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Agreement: "Acceptable Bank" means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or A3 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency. "Accession Letter" means a document substantially in the form set out in Schedule 6 (Form of Accession Letter). "Acquisition" means the acquisition by GF Windfall, and/or another member of the Group, of all of the issued and outstanding shares in the capital of the Target. "Additional Borrower" means a company which becomes an Additional Borrower in accordance with Clause 25 (Changes to the Obligors). "Additional Business Day" means any day specified as such in the applicable Reference Rate Terms. "Additional Guarantor" means a company which becomes an Additional Guarantor in accordance with Clause 25 (Changes to the Obligors). "Additional Obligor" means an Additional Borrower or an Additional Guarantor. "Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company. "Agent's Spot Rate of Exchange" means: (a) the Agent's spot rate of exchange; or
2 3202599488 (b) (if the Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Agent (acting reasonably), for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day. "Agreement" means this agreement. "Anti-Corruption Laws" means: (a) the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997 (the "OECD Convention"); (b) the US Foreign Corrupt Practices Act of 1977 (as amended by the Foreign Corrupt Practices Act Amendments of 1988 and 1998, and as may be further amended and supplemented from time to time) or the rules and regulations thereunder (the "FCPA"); (c) the United Kingdom Bribery Act 2010; (d) the following South African laws: (i) the South African Prevention and Combating of Corrupt Activities Act, 2004; (ii) the South African Prevention of Organised Crime Act 1998; and (iii) the South African Protection of Constitutional Democracy Against Terrorist Related Activities Act, 2004; (e) the Corruption of Foreign Public Officials Act (Canada); and (f) any other applicable law in any applicable jurisdiction (including any (i) statute, ordinance, rule or regulation; (ii) order of any court, tribunal or any other judicial body; and (iii) rule, regulation, guideline or order of any public body, or any other administrative requirement) which: (i) prohibits the conferring of any gift, payment or other benefit on any person or any officer, employee, agent or adviser of such person; and/or (ii) is broadly equivalent to the FCPA and/or the United Kingdom Bribery Act 2010 or was intended to enact the provisions of the OECD Convention or which has as its objective the prevention of corruption. "Arrangement Agreement" means the arrangement agreement dated 12 August 2024 entered into among the Target, Gold Fields Holdings Company Limited and GF Windfall. "Arrangement Effective Date" means the date on which the Effective Date (as defined in the Arrangement Agreement) occurs. "Arm's Length" shall have the meaning ascribed thereto for the purposes of the Tax Act (Canada), as in effect as of the date hereof. "Assignment Agreement" means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee. "Associate" has the meaning given to such term in paragraph (a) of Clause 21.1 (Financial definitions). 3 3202599488 "Auditors" means, at any time, the auditors of the Parent at that time, being as at the date of this Agreement PricewaterhouseCoopers and any replacement for those auditors appointed by the Parent. "Australia" means the Commonwealth of Australia (and "Australian" shall be construed accordingly). "Availability Period" means the period from and including the date of this Agreement to and including the earliest of: (a) the Arrangement Effective Date; (b) the termination of the Arrangement Agreement in accordance with its terms; and (c) 16 December 2024. "Available Commitment" means, a Lender's Commitment under the Facility minus: (a) the Base Currency Amount of its participation in any outstanding Loans; and (b) in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date. "Available Facility" means the aggregate for the time being of each Lender's Available Commitment. "Base Currency" means U.S. dollars. "Base Currency Amount" means, in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request) as adjusted to reflect any repayment, prepayment, consolidation or division of a Loan. "Basel III" has the meaning set out in paragraph (b)(i) of Clause 14.1 (Increased Costs). "Blocking Law" means: (a) any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or regulation implementing such Regulation in any member state of the European Union or the United Kingdom); (b) section 7 of the German Foreign Trade Regulation (Auβenwirtschaftsverordnung); (c) the Foreign Extraterritorial Measures Act (Canada); or (d) any similar blocking or anti-boycott law (in the United Kingdom or in Canada). "Borrower" means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 25 (Changes to the Obligors). "Break Costs" means any amount specified as such in the applicable Reference Rate Terms. "Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London, New York, Johannesburg and Toronto and: (a) (in relation to any date for payment or purchase of a currency) the principal financial centre of the country of that currency; and 4 3202599488 (b) (in relation to: (i) any date for payment or purchase of an amount relating to a Loan; or (ii) the determination of the first day or the last day of an Interest Period for a Loan or otherwise in relation to the determination of the length of such an Interest Period), which is an Additional Business Day relating to that Loan or Unpaid Sum. "Canadian AML Legislation" has the meaning given to it in Clause 22.15. "Canadian Obligor" means GF Windfall or any other Obligor incorporated under the laws of Canada or any province or territory thereof. "Central Bank Rate" has the meaning given to that term in the applicable Reference Rate Terms. "Central Bank Rate Adjustment" has the meaning given to that term in the applicable Reference Rate Terms. "Cerro Corona Operation" means the gold and copper mine in Peru owned and operated by the Cerro Corona Subsidiary. "Cerro Corona Subsidiary" means Gold Fields La Cima S.A. "Clean-up Date" means the date falling 180 days after the Arrangement Effective Date. "Clean-up Default" means an Event of Default referred to in any of Clause 23.3 (Other obligations), 23.4 (Misrepresentation), 23.5 (Cross-Default), 23.8 (Creditors’ process), 23.9 (Unlawfulness), 23.11 (Governmental intervention) or 23.14 (Litigation). "Code" means the US Internal Revenue Code of 1986. "Commitment" means: (a) in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Commitment" in Part III of Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and (b) in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement, to the extent not cancelled, reduced or transferred by it under this Agreement. "Compliance Certificate" means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate). "Compounded Reference Rate" means in relation to any RFR Banking Day during an Interest Period of a Loan, the percentage rate per annum which is the aggregate of: (a) the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and (b) the applicable Credit Adjustment Spread. "Compounding Methodology Supplement" means, in relation to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which: (a) is agreed in writing by the Parent, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders); 5 3202599488 (b) specifies a calculation methodology for that rate; and (c) has been made available to the Parent and each Finance Party. "Confidential Information" means all information relating to the Parent, any Obligor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either: (a) any member of the Group or any of its advisers; or (b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes: (i) information that: (A) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 38 (Confidential Information); or (B) is identified in writing at the time of delivery as non-confidential by the Parent; or (C) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (A) or (B) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and (ii) any Funding Rate. "Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 10 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Parent and the Agent. "Consolidated EBITDA" has the meaning set out in paragraph (a) of Clause 21.1 (Financial definitions). "Consolidated Tangible Net Worth" means, at any time, the "Total equity", as reported in the "Statement of financial position" in the last set of annual consolidated financial statements of the Parent delivered to the Agent pursuant to this Agreement. "Constitutional Documents" means, in respect of any person at any time, the then current and up-to-date constitutional documents of such person at such time (including, without limitation, such person's memorandum of incorporation and articles of association, certificate of incorporation, articles of incorporation or commercial registration certificate). "Credit Adjustment Spread" means any rate which is either: (a) specified as such in the applicable Reference Rate Terms; or
6 3202599488 (b) determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology specified in the applicable Reference Rate Terms. "Cumulative Compounded RFR Rate" means, in relation to an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 15 (Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement. "Daily Non-Cumulative Compounded RFR Rate" means, in relation to any RFR Banking Day during an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 14 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement. "Daily Rate" means the rate specified as such in the applicable Reference Rate Terms. "Default" means an Event of Default or any event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default. "Defaulting Lender" means any Lender: (a) which has failed to make its participation in a Loan available or has notified the 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 (Lenders' participation); (b) which has otherwise rescinded or repudiated a Finance Document; (c) which is a Sanctioned Lender; or (d) with respect to which an Insolvency Event has occurred and is continuing, unless, in the case of paragraph (a) above: (i) its failure to pay is caused by: (A) administrative or technical error; or (B) a Disruption Event, and payment is made within five Business Days of its due date; or: (ii) 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: (a) 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 7 3202599488 (b) 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: (i) from performing its payment obligations under the Finance Documents; or (ii) 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, provided that this term shall not include a PPSA Deemed Security Interest. "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 23 (Events of Default). "Excluded Taxes" means, with respect to any Finance Party or any other recipient of any payment to be made by or on account of any obligation of a Canadian Obligor under any Finance Document: (a) Taxes imposed on or measured by its net income or profits (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is resident, organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located; (b) Taxes imposed as a result of a present or former connection between a Lender or other recipient and the jurisdiction of the taxing authority imposing such Tax (other than such connection arising solely from the recipient having executed, delivered or performed its obligations or received a payment under, or enforced, any Finance Document, or sold or assigned an interest in any Finance Document); (c) any branch profits taxes or any similar Taxes imposed by any jurisdiction described in paragraph (a) or (b) above; 8 3202599488 (d) any capital taxes imposed by Canada; (e) Taxes attributable to a Lender's failure to comply with Clause 13.7 (Reduction of Indemnified Taxes); and (f) withholding Taxes under Part XIII of the Tax Act (Canada) imposed as a result of any Lender or any other recipient of any payment to be made by or on account of any obligation of a Canadian Obligor under any Finance Document (i) not dealing at Arm's Length with a Canadian Obligor or (ii) being a "specified non-resident shareholder" (as defined in subsection 18(5) of the Tax Act (Canada)) of a Canadian Obligor, or not dealing at Arm's Length with a "specified shareholder" (as defined in subsection 18(5) of the Tax Act (Canada)) of a Canadian Obligor (other than, in each case, where the non-Arm's Length relationship arises from, or the Lender or recipient is a "specified non-resident shareholder" or does not deal at Arm's Length with a "specified shareholder", as a result of such Lender or recipient, as applicable, having executed, delivered, become party to, performed its obligations or received a payment under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced any rights under, or sold or assigned an interest in this Agreement or any Finance Document). "Existing Lender" has the meaning given to it in Clause 24.1 (Assignments and transfers by the Lenders). "Existing RCF" means the US$1,200,000,000 credit facility agreement dated 25 May 2023 between, among others, the Parent, MUFG Bank, Ltd. as agent and the financial institutions listed therein, as amended or amended and restated from time to time (including, without limitation, pursuant to an amendment and restatement agreement dated 26 October 2023). "Existing Orogen Notes" means: (a) the U.S.$500,000,000 5.125% Guaranteed Notes due 2024; and (b) the U.S.$500,000,000 6.125% Guaranteed Notes due 2029. in each case issued by Gold Fields Orogen Holding (BVI) Limited on 9 May 2019. "Facility" means the term loan facility made available under this Agreement as described in Clause 2.1 (The Facility). "Facility Office" means the office(s) notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office(s) through which it will perform its obligations under this Agreement. "FATCA" means: (a) sections 1471 to 1474 of the Code and any associated regulations; (b) 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 paragraph (a) above; and (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. 9 3202599488 "FATCA Application Date" means: (a) 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 (b) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) 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: (a) the Participation Fee Letter; and (b) any letter or letters dated on or about the date of this Agreement setting out any of the fees referred to in Clause 12 (Fees). "Finance Document" means this Agreement, the Mandate Letter, any Fee Letter, any Accession Letter, any Resignation Letter, any Reference Rate Supplement, any Compounding Methodology Supplement and any other document designated as such by the Agent and the Parent. "Finance Party" means the Agent, the Arranger or a Lender. "Financial Indebtedness" means (without double counting) any indebtedness for or in respect of: (a) moneys borrowed; (b) any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) 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; (e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); (f) 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: (i) used primarily as a method of raising credit; or (ii) not made in the ordinary course of business; (g) 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; (h) 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;
10 3202599488 (i) solely for the purpose of Clause 23.5 (Cross-Default), 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); (j) 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 an underlying liability of an entity which is not a member of the Group and which would fall within one of the other paragraphs of this definition; (k) any amount raised by the issue of redeemable shares to the extent such shares are redeemable prior to the Termination Date; and (l) the amount of any liability in respect of any guarantee or indemnity for any of its items referred to in paragraphs (a) to (k) 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 Agent pursuant to paragraph (a) of Clause 11.3 (Cost of funds). "GAAP" means the generally accepted accounting principles set out in IFRS. "GF Windfall" means Gold Fields Windfall Holdings Inc./Gestion Gold Fields Windfall Inc. "Ghanaian Companies" means Gold Fields Ghana Limited and Abosso Goldfields Limited. "Group" means the Parent and each of its Subsidiaries from time to time, including, from the Arrangement Effective Date, the Target Group. "Group Company" means a member of the Group. "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 25 (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 Agent" means the Agent at any time when: (a) 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; (b) the Agent otherwise rescinds or repudiates a Finance Document; (c) (if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of "Defaulting Lender"; (d) it is a Sanctioned Agent; or 11 3202599488 (e) an Insolvency Event has occurred and is continuing with respect to the Agent; unless, in the case of paragraph (a) above: (i) its failure to pay is caused by: (1) administrative or technical error; or (2) a Disruption Event; and payment is made within five Business Days of its due date; or (ii) the Agent is disputing in good faith whether it is contractually obliged to make the payment in question. "Increase Confirmation" means a confirmation substantially in the form set out in Schedule 11 (Form of Increase Confirmation). "Increased Costs" has the meaning given to it in paragraph (b)(ii) of Clause 14.1 (Increased Costs). "Increase Lender" has the meaning given to that term in paragraph (a)(iii) of Clause 2.2 (Increase). "Indebtedness for Borrowed Money" means Financial Indebtedness save for any indebtedness for or in respect of paragraphs (i) and (j) of the definition of "Financial Indebtedness". "Indemnified Taxes" means Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of a Canadian Obligor under any Finance Document. "Information" has the meaning given to such term in paragraph (a) of Clause 19.11 (No misleading information). "Insolvency Event" means, in relation to an entity, that: (a) any receiver, administrative receiver, administrator, liquidator, compulsory manager, monitor, receiver and manager, interim receiver or other similar officer is appointed in respect of that entity or all or substantially all of its assets; (b) that entity is subject to any event which has an analogous effect to any of the events specified in paragraph (a) above under the applicable laws of any jurisdiction; or (c) that entity suspends making payments on all or substantially all of its debts or publicly announces an intention to do so. "Interest Payment" means the aggregate amount of interest that is, or is scheduled to become, payable under any Finance Document. "Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.5 (Default interest). "Legal Opinion" means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 25 (Changes to the Obligors). "Legal Reservations" means: 12 3202599488 (a) 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; (b) the time barring of claims under the Limitation Acts 1980 or the Foreign Limitation Periods Act 1987, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim (c) similar principles, rights and defences under the laws of any jurisdiction in which an Obligor is incorporated; and (d) 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: (a) any Original Lender; and (b) any bank or financial institution which has become a Party as a "Lender" in accordance with Clause 2.2 (Increase) or Clause 24 (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. "Lookback Period" means the number of days specified as such in the applicable Reference Rate Terms. "Major Default" means with respect to an Obligor only (and not with respect to any Default relating to any procurement obligation in respect of any member of the Group that is not an Obligor), any Default under any of the following: (a) Clause 23.1 (Non-payment); (b) Clause 23.2 (Other obligations) insofar as it relates to a breach by an Obligor only (and not with respect to any breach of any procurement obligation in respect of any member of the Group that is not an Obligor) of any of Clauses: (i) 22.3 (Negative pledge) (ii) 22.4 (Disposals and mergers); (iii) 22.5 (Change of business); (iv) 22.10 (Acquisitions); (v) 22.11 (Financial Indebtedness); (vi) 22.13 (Sanctions); or (vii) 22.14 (Anti-corruption); (c) Clause 23.4 (Misrepresentation) insofar as it relates to a breach of any Major Representation; 13 3202599488 (d) Clause 23.6 (Insolvency); (e) Clause 23.7 (Insolvency proceedings); (f) Clause 23.8 (Creditors’ process); (g) Clause 23.9 (Unlawfulness); (h) Clause 23.10 (Repudiation and unenforceability); (i) Clause 23.11 (Governmental intervention); or (j) Clause 23.13 (Cessation of business). "Majority Lenders" means: (a) at any time there are only three Lenders, a Lender or Lenders whose Commitments aggregate 66 per cent. or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 66 per cent. or more of the Total Commitments immediately prior to the reduction); and (b) at any other time, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔ per cent. of the Total Commitments immediately prior to the reduction). For the purposes of this definition, when determining how many Lenders there are, a Lender and each of its Affiliates and Related Funds shall be counted as a single Lender. "Major Representation" means a representation with respect to an Obligor only under any of the representations in Clauses 19.1 (Status), 19.2 (Power and authority), 19.3 (Binding obligations), 19.4 (Non-conflict with other obligations), 19.5 (Validity and admissibility in evidence), 19.19 (Ownership of Material Group Companies), 19.21 (Sanctions) and 19.22 (Anti-corruption). "Mandate Letter" means the letter between the Parent and the Arranger dated 11 August 2024. "Margin" means the percentage rate per annum determined in accordance with Clause 9.4 (Margin adjustments – rating). "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 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. "Market Disruption Rate" means the rate (if any) specified as such in the applicable Reference Rate Terms. "Material Adverse Effect" means a material adverse effect on: (a) the business or financial condition of the Group taken as a whole;
14 3202599488 (b) 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 (c) the validity or enforceability of the Finance Documents or any of them. "Material Group Company" means: (a) the Obligors; and (b) 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 23.8 (Creditors' process). "Month" means, in relation to an Interest Period (or any other period for the accrual of commission or fees in a currency), a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, subject to adjustment in accordance with the rules specified as Business Day Conventions in the applicable Reference Rate Terms. "Moody's" means Moody's Investor Services Inc., or any successor to its rating agency function. "MPRDA" has the meaning given to it in Clause 23.8 (Creditors' process). "New Lender" has the meaning given to it in Clause 24.1 (Assignments and transfers 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 per cent. 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 20.1 (Financial statements)). Compliance with the aforementioned condition shall be 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: (a) 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; (b) 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 (c) 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 15 3202599488 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 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. "NSR Debentures" means the 4.75% convertible senior unsecured debenture bearing a principal NSR amount of $154,000,000 issued by the Target and held by 1335088 B.C. Ltd., a wholly-owned subsidiary of Northern Star Resources Ltd. "Obligor" means a Borrower or a Guarantor. "Optional Currency" means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies). "Original Financial Statements" means the audited consolidated financial statements of the Parent for the Financial Year ended 31 December 2023. “Parallel Bridge Facility Agreement” means the U.S.$250,000,000 term loan facility to be made available under the multicurrency parallel bridge facility agreement entered into on or about the date of this Agreement between, amongst others, GF Windfall, Citibank, N.A., London Branch, Royal Bank of Canada, and The Bank of Nova Scotia. "Participation Fee Letter" means the letter between the Parent and the Arrangers dated 11 August 2024. "Party" means a party to this Agreement. "Permitted Disposal" means any sale, lease, transfer or other disposal: (a) 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; (b) 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; (c) by an Obligor to another Obligor (other than to an Additional Obligor); (d) 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; (e) by a member of the Group that is not an Obligor to another member of the Group; (f) for which the Agent has given its prior written consent (acting on the instructions of the Majority Lenders); (g) 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 16 3202599488 Material Group Company (other than a sale, lease, transfer or other disposal referred to in the preceding paragraphs) does not exceed (at the time of the relevant disposal) 30 per cent. 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 date of this Agreement to the Termination Date, 40 per cent. of Market Capitalisation; or (h) which constitutes a disposal of cash for any purpose not expressly prohibited by the Finance Documents. "Permitted Encumbrance" means: (a) any Encumbrance created prior to the date of this Agreement which (i) is disclosed in the Original Financial Statements and (ii) in all circumstances secures only indebtedness outstanding or a facility available at the date of this Agreement to the extent that the principal amount or original facility thereby secured is not increased after the date of this Agreement; (b) 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; (c) 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; (d) 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; (e) any Encumbrance over or affecting (or transaction described in paragraph (b) of Clause 22.3 (Negative pledge) ("Quasi-Encumbrance") affecting) any asset acquired by a member of the Group after the date of this Agreement if: (i) the Encumbrance or Quasi-Encumbrance was not created in contemplation of the acquisition of that asset by a member of the Group; (ii) 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 (iii) the Encumbrance or Quasi-Encumbrance is (other than an Encumbrance or Quasi-Encumbrance otherwise permitted pursuant to paragraph (b), (c) or (d) above or paragraph (f), (g), (i) or (j) below) removed or discharged within six months of the date of acquisition of such asset; (f) any Encumbrance or Quasi-Encumbrance over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Encumbrance or Quasi-Encumbrance is created prior to the date on which that company becomes a member of the Group, if: (i) the Encumbrance or Quasi-Encumbrance was not created in contemplation of the acquisition of that company; 17 3202599488 (ii) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and (iii) the Encumbrance or Quasi-Encumbrance is (other than an Encumbrance or Quasi-Encumbrance otherwise permitted pursuant to paragraph (b), (c), (d) or (e) above or paragraph (g), (i), or (j) below) removed or discharged within six months of that company becoming a member of the Group; (g) 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); (h) 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; (i) 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 paragraphs (a) to (h) above and paragraphs (j) and (k) below), does not at any time exceed 15 per cent. 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); (j) any other Encumbrance or Quasi-Encumbrance as agreed by the Agent (acting on the instructions of the Majority Lenders) in writing; or (k) 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 paragraph (k) does not at any time in aggregate exceed $200,000,000 (or its equivalent). In this paragraph (k) "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. "Permitted Financial Indebtedness" means any Financial Indebtedness: (a) arising under the Finance Documents; (b) arising under any environmental bond which any member of the Group is required to issue by any applicable law; (c) 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 (or its equivalent);
18 3202599488 (d) 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; (e) of the Group existing and available on the date of this Agreement (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); (f) between Group Companies; (g) arising under the guarantees given by Gold Fields Ghana Holdings (BVI) Limited in respect of the Existing Orogen Notes; (h) incurred by Gold Fields Operations Limited or GFI Joint Venture Holdings Proprietary Limited to the extent that that the aggregate principal amount outstanding of all such Financial Indebtedness does not at any time exceed ZAR 2,500,000,000; (i) incurred by Gruyere Holdings Pty Ltd to the extent that the aggregate principal amount outstanding of all such Financial Indebtedness does not at any time exceed A$600,000,000; (j) in respect of any lease or hire purchase contract entered into at any time which: (i) would, in accordance with GAAP, be treated as a balance sheet liability; and (ii) would not, in accordance with GAAP in force immediately before the adoption of IFRS 16, have been treated as a balance sheet liability; (k) 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 principal amount outstanding of all such Financial Indebtedness does not at any time exceed ZAR 357,500,000; or (l) not falling within the preceding paragraphs 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 paragraph (l)) does not at any time exceed $500,000,000 (or its equivalent). "PPSA Deemed Security Interest" means the interest of a transferee of an account or chattel paper referred to in the definition of "security interest" under any personal property security act of any province or territory of Canada, in either case, where the transaction concerned does not, in substance, secure payment or performance of an obligation. "Project Finance Borrowings" means: (a) 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 19 3202599488 successful completion of the relevant completion tests applicable to such project guarantees from any one or more members of the Group; or (b) any indebtedness the terms and conditions of which have been approved by the Agent and which the 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 or assets which has incurred Project Finance Borrowings. "Recipient" has the meaning given to it in paragraph (b) of Clause 13.6 (Value added tax). "Recovered Amount" has the meaning given to it in Clause 28.1 (Payments to Finance Parties). "Recovering Finance Party" has the meaning given to it in Clause 28.1 (Payments to Finance Parties). "Redistributed Amount" has the meaning given to it in paragraph (a) of Clause 28.4 (Reversal of redistribution). "Reference Rate Supplement" means, in relation to any currency, a document which: (a) is agreed in writing by the Parent, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders or, in the case of any Reference Rate Supplement which has the effect of a reduction in the Margin, all the Lenders); (b) specifies for that currency the relevant terms which are expressed in this Agreement to be determined by reference to Reference Rate Terms; and (c) has been made available to the Parent and each Finance Party. "Reference Rate Terms" means, in relation to: (a) a currency; (b) a Loan or an Unpaid Sum in that currency; (c) an Interest Period for such a Loan or Unpaid Sum (or other period for the accrual of commission or fees in a currency); or (d) any term of this Agreement relating to the determination of a rate of interest in relation to such a Loan or Unpaid Sum, the terms set out for that currency, and (where such terms are set out for different categories of Loan, Unpaid Sum or accrual of commission or fees in that currency) for the applicable category of that Loan, Unpaid Sum or accrual, in Schedule 13 (Reference Rate Terms) or in any relevant Reference Rate Supplement. "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. "Relevant Market" means the market specified as such in the applicable Reference Rate Terms. 20 3202599488 "Repeating Representations" means each of the representations set out in Clauses 19.1 (Status) to 19.21 (Sanctions) inclusive, other than Clause 19.3 (Binding obligations), Clause 19.6 (Governing law and enforcement), Clause 19.7 (Deduction of Tax), Clause 19.8 (No filing or stamp taxes), Clause 19.11 (No misleading information), Clause 19.12 (Financial statements), Clause 19.14 (No proceedings pending or threatened), Clause 19.15 (Insurance), Clause 19.18 (Taxation), Clause 19.19 (Ownership of Material Group Companies), Clause 19.20 (No Material Adverse Effect) and paragraph (b) of Clause 19.21 (Sanctions). "Replacement Lender" has the meaning given to it in paragraph (a) of Clause 37.6 (Replacement of a Defaulting Lender). "Reporting Day" means the day (if any) specified as such in the applicable Reference Rate Terms. "Reporting Time" means the relevant time (if any) specified as such in the applicable Reference Rate Terms. "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 7 (Form of Resignation Letter). "Restricted Party" means a Lender or Agent that is the subject or the target of Sanctions or located, organised, resident or operating in in any Sanctioned Country. "Retiring Guarantor" has the meaning given to it in Clause 18.8 (Release of Guarantors' right of contribution). "RFR" means the rate specified as such in the applicable Reference Rate Terms. "RFR Banking Day" means any day specified as such in the applicable Reference Rate Terms. "Sanctioned Agent" means the Agent at any time when it is a Restricted Party where a Party or any Affiliate of a Party would be in breach of any applicable Sanctions as a result of the Agent being a Restricted Party (including as a result of payments to be made under the Finance Documents, and ignoring for such purposes the availability of any licence under any applicable licensing regime to the extent any person would need to take active steps for such licence to be granted, maintained and/or to apply). "Sanctioned Country" means a country, territory or region that is the target of Sanctions. "Sanctioned Finance Party" means a Sanctioned Agent or a Sanctioned Lender. "Sanctioned Lender" means any Lender which is a Restricted Party where a Party or any Affiliate of a Party would be in breach of any applicable Sanctions as a result of that Lender being a Restricted Party (including as a result of payments to be made under the Finance Documents, and ignoring for such purposes the availability of any licence under any applicable licensing regime to the extent any person would need to take active steps for such licence to be granted, maintained and/or to apply). "Sanctions" means any economic, financial or trade sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by 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 21 3202599488 "specially designated national" or "blocked person"), the United Nations Security Council, the European Union, His Majesty's Treasury, the government of Australia, the government of Canada (including Global Affairs Canada and Public Safety Canada), the government of Japan, the government of the Republic of South Africa or any other relevant sanctions authority which replaces, or is a successor to, any of the foregoing. "Sharing Finance Parties" has the meaning given to it in Clause 28.2 (Redistribution of payments). "Sharing Payment" has the meaning given to it in paragraph (c) of Clause 28.1 (Payments to Finance Parties). "Specified Time" means a time determined in accordance with Schedule 9 (Timetables). "Standard & Poor's" means Standard & Poor's, a division of the McGraw-Hill Companies Inc., or any successor to its rating agency function. "Subject Party" has the meaning given to it in paragraph (b) of Clause 13.6 (Value added tax). "Selection Notice" means a notice substantially in the form set out in Part II of Schedule 3 (Requests) given in accordance with Clause 10 (Interest Periods). "Subsidiary" means, in relation to any company or corporation, a company or corporation: (a) which is controlled, directly or indirectly, by the first mentioned company or corporation; (b) more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or (c) 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 paragraph (b) of Clause 13.6 (Value added tax). "Target" means Osisko Mining Inc. "Target Group" means the Target and its Subsidiaries. "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 Act (Canada)" means the Income Tax Act (Canada), as the same may be amended, supplemented or replaced. "Tax Credit" has the meaning given to it in paragraph (a) of Clause 13.1 (Definitions). "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 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax indemnity). "Termination Date" means subject to Clause 7.2 (Extension option), 364 days from the date of this Agreement.
22 3202599488 "Total Commitments" means the aggregate of the Commitments, being US$500,000,000 at the date of this Agreement. "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 Agent and the Parent. "Transfer Date" means, in relation to an assignment or a transfer: (a) the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; or (b) in the event that no Transfer Date is specified in the relevant Assignment Agreement or Transfer Certificate, the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate. "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 Part I of Schedule 3 (Requests). "VAT" means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature. 1.2 Construction (a) Unless a contrary indication appears any reference in this Agreement to: (i) the "Agent", the "Arranger", any "Finance Party", any "Lender", the "Arranger", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees; (ii) "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 per cent. of the share capital or similar rights of ownership; (iii) a Lender's "cost of funds" in relation to its participation in a Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan; (iv) the Agent's "cost of funds" is a reference to the average cost (determined either on an actual or a notional basis) which the Agent would incur if it were to fund, from whatever 23 3202599488 source(s) it may reasonably select, an amount equal to the amount referred to in paragraph (b) of Clause 29.4 (Clawback); (v) "assets" includes present and future properties, revenues and rights of every description; (vi) "audited" means, in respect of any financial statement, those financial statements as audited by the Auditors; (vii) "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); (viii) 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; (ix) a "group of Lenders" includes all the Lenders; (x) a "guarantee" means (other than in Clause 18 (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; (xi) "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; (xii) "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, 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; (xiii) 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); (xiv) 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; (xv) a provision of law is a reference to that provision as amended or re-enacted from time to time; and (xvi) a time of day is a reference to London time. (b) Section, Clause and Schedule headings are for ease of reference only. 24 3202599488 (c) 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. (d) A Default is "continuing" if it has not been remedied or waived. (e) A reference in this Agreement to a page or screen of an information service displaying a rate shall include: (i) any replacement page of that information service which displays that rate; and (ii) the appropriate page of such other information service which displays that rate from time to time in place of that information service, and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Agent after consultation with the Parent. (f) A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate. (g) Any Reference Rate Supplement relating to a currency overrides anything relating to that currency in: (i) Schedule 13 (Reference Rate Terms); or (ii) any earlier Reference Rate Supplement. (h) A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in: (i) Schedule 14 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 15 (Cumulative Compounded RFR Rate), as the case may be; or (ii) any earlier Compounding Methodology Supplement. (i) 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. 1.3 Currency symbols and definitions "US$", "$" and "U.S. dollars" denote the lawful currency of the United States of America. "ZAR" denotes the lawful currency of the Republic of South Africa. "A$" denotes the lawful currency of Australia. "CAD" and "Canadian Dollars" denote the lawful currency of Canada. 1.4 Third party rights (a) Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement. (b) Subject to paragraph (b) of Clause 37.2 (Other exceptions), but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. 25 3202599488 SECTION 2 THE FACILITY 2. THE FACILITY 2.1 The Facility Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency term loan facility in an aggregate amount equal to the Total Commitments. 2.2 Increase (a) The Parent may by giving prior notice to the Agent after the effective date of a cancellation of: (i) the Available Commitments of a Defaulting Lender in accordance with paragraph (f) of Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender); or (ii) the Commitments of a Lender in accordance with: (A) Clause 8.1 (Illegality); or (B) paragraph (a) of Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender), request that the Commitments be increased (and the Commitments shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments so cancelled as follows: (iii) the increased Commitments will be assumed by one or more Eligible Institutions (each an "Increase Lender") each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments; (iv) each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume; (v) each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume; (vi) the Commitments of the other Lenders shall continue in full force and effect; and (vii) any increase in the Commitments shall take effect on the date specified by the Parent in the notice referred to above or any later date on which the Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender. (b) The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.
26 3202599488 (c) The Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase 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 assumption of the increased Commitments by that Increase Lender. (d) Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender. (e) Such Borrower as the Parent shall nominate shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2. (f) The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 24.3 (Assignment or transfer fee) if the increase was a transfer pursuant to Clause 24.5 (Procedure for transfer) and if the Increase Lender was a New Lender. (g) The Parent may pay to the Increase Lender a fee in the amount and at the times agreed between the Parent and the Increase Lender in a letter between the Parent and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph (g). (h) Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents. (i) Clause 24.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to: (i) an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase; (ii) the "New Lender" were references to that "Increase Lender"; and (iii) a "re-transfer" and "re-assignment" were references to respectively a "transfer" and "assignment". 2.3 Finance Parties' rights and obligations (a) The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. (b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the 27 3202599488 avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor. (c) A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents. 3. PURPOSE 3.1 Purpose (a) Each Original Borrower shall apply all amounts borrowed by it under the Facility towards: (i) financing or refinancing in whole or in part any and all payments contemplated by the Arrangement Agreement (including for the Acquisition); (ii) paying fees, costs, expenses incurred by any member of the Group or Target Group in connection with the Arrangement Agreement or any Finance Document; and (iii) refinancing any amounts outstanding under or in respect of the NSR Debentures. (b) Each Additional Borrower shall apply all amounts borrowed by it under the Facility towards the purposes specified in the Accession Letter to which it is a party as Additional Borrower. 3.2 Monitoring No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement. 4. CONDITIONS OF UTILISATION 4.1 Initial conditions precedent (a) The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent (to the extent, where applicable, as set out in respect of that item in Part I of Schedule 2 (Conditions Precedent)). The Agent shall notify the Parent and the Lenders promptly upon being so satisfied. (b) Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. 4.2 Further conditions precedent (a) Subject to Clause 4.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to a Utilisation if, on the date of the Utilisation Request and on the proposed Utilisation Date: (i) no Major Default is continuing or would result from the proposed Utilisation; and (ii) all the Major Representations are true in all material respects. (b) Notwithstanding any other Clause in this Agreement (save in circumstances where a Lender has notified the Agent of an illegality event pursuant to Clause 8.1 (Illegality), or where any person or group of persons acting in concert gains control of the Parent within the meaning of Clause 8.2 28 3202599488 (Change of control), (provided that, in relation to Clause 8.1 (Illegality), the occurrence of such event in respect of any Lender will not release any other Lender from its obligations under this Clause 4.2), none of the Finance Parties shall be entitled to: (i) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Utilisation; (ii) rescind, terminate or cancel this Agreement or the Facility or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have to the extent to do so would prevent or limit the making of a Utilisation; (iii) refuse to participate in the making of a Utilisation; (iv) exercise any right of set-off or counterclaim in respect of a Utilisation to the extent to do so would prevent or limit the making of a Utilisation; (v) cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document to the extent to do so would prevent or limit the making of a Utilisation or would require the repayment or prepayment of a Utilisation; or (vi) take any action or make or enforce any claim to the extent such action or claim or enforcement would directly or indirectly prevent or limit the making of a Utilisation, provided that immediately upon the expiry of the Availability Period all such rights, remedies and entitlements shall be available to the Finance Parties notwithstanding that they may not have been used or made available for use during the Availability Period. (c) In the event of any conflict or inconsistency between this Clause 4.2 and any of the other term of the Finance Documents, this Clause 4.2 shall prevail. 4.3 Conditions relating to Optional Currencies (a) A currency will constitute an Optional Currency in relation to a Loan if, it is CAD or: (i) it is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency at the Specified Time and on the Utilisation Date for that Loan; (ii) it has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Loan; and (iii) there are Reference Rate Terms for that currency. (b) If the Agent has received a written request from the Parent for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Parent by the Specified Time: (i) whether or not the Lenders have granted their approval; and (ii) if approval has been granted, the minimum amount (and, if required, integral multiples) for any subsequent Utilisation in that currency. 4.4 Maximum number of Loans (a) A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than 3 Loans would be outstanding. 29 3202599488 (b) Any Loan made by a single Lender under Clause 6.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.4.
30 3202599488 SECTION 3 UTILISATION 5. UTILISATION 5.1 Delivery of a Utilisation Request A Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time. 5.2 Completion of a Utilisation Request (a) Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: (i) the proposed Utilisation Date is a Business Day within the Availability Period; (ii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and (iii) the proposed Interest Period complies with Clause 10 (Interest Periods). (b) Only one Loan may be requested in each Utilisation Request. 5.3 Currency and amount (a) The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency. (b) The amount of the proposed Loan must be: (i) if the currency selected is the Base Currency, a minimum of $10,000,000 or, if less, the Available Facility; (ii) if the currency selected is CAD, a minimum of CAD10,000,000 or, if less, the Available Facility; or (iii) if the currency selected is an Optional Currency other than CAD, the minimum amount (and, if required, integral multiple) specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility; and (iv) in any event such that its Base Currency Amount is less than or equal to the Available Facility. 5.4 Lenders' participation (a) If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office. (b) The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making that Loan. (c) The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and shall notify each Lender of the amount, currency and the Base Currency Amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 29.1 (Payments to the Agent), in each case by the Specified Time. 31 3202599488 5.5 Cancellation of Commitment The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period. 6. OPTIONAL CURRENCIES 6.1 Selection of currency A Borrower (or the Parent on behalf of a Borrower) shall select the currency of a Loan in the Utilisation Request. 6.2 Unavailability of a currency (a) In respect of an Optional Currency other than CAD, if before the Specified Time: (i) a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or (ii) a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it, the Agent will give notice to the relevant Borrower to that effect by the Specified Time. (b) Any Lender that gives notice pursuant to paragraph (a) above will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender's proportion of the Base Currency Amount) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period. 32 3202599488 SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION 7. REPAYMENT 7.1 Repayment of Loans Each Borrower which has drawn a Loan shall repay that Loan on the Termination Date. 7.2 Extension option (a) The Parent may request that the Termination Date be extended subject to the terms of this Clause 7.2 by giving notice to the Agent not less than 45 days (and not more than 90 days) before the date which is one year after the date of this Agreement with the effect that the Termination Date shall be eighteen Months from the date of this Agreement with respect to the Commitment and participation in the Loans of each Lender which agrees to such extension. The Termination Date shall not extend beyond eighteen Months from the date of this Agreement. (b) A notice served by the Parent pursuant to paragraph (a) above shall be irrevocable. (c) The Agent shall promptly notify each Lender of any such request. (d) Each Lender shall notify the Agent of its decision (which shall be in its sole discretion) whether or not to agree to the request by the date falling not later than 21 days after the date on which the relevant Lender received the request (or such later date which the Parent may agree in its absolute discretion) (the "Response Deadline") and the Agent shall promptly notify the Parent whether or not each Lender has agreed to the request (a Lender who has agreed to extend being an "Extending Lender" and a Lender who has not being a "Non-Extending Lender"). If a Lender does not respond to a request by the Response Deadline, it will be deemed to have refused that request. (e) In the event that one or more (but not all) of the Lenders agree to a request, the Parent may, promptly following receipt of notification from the Agent pursuant to paragraph (d) above, elect by notice to the Agent to accept the extension offered by all the relevant Lender(s), in which case the Termination Date shall be extended in relation to the Commitments and participations of such Lender(s). (f) In the event that all of the Lenders agree to a request, the Termination Date shall be extended in relation to the Commitments and participations of all such Lenders. (g) Notwithstanding any other provision in this Agreement, the Lenders will only be obliged to comply with the provisions of this Clause 7.2 if: (i) on the date of any extension request in relation to the Facility and on the original Termination Date of the Facility: (A) no Event of Default is continuing or would result from the proposed extension; and (B) the Repeating Representations to be made by each Obligor are true in all material respects; and (ii) the relevant Borrowers are in compliance with their obligations in paragraph (i) below. (h) If any Lender does not agree to any extension request, the Termination Date applicable to its Commitments shall remain that Termination Date which applied to it immediately prior to the 33 3202599488 service of the relevant request and its participation in any outstanding Loan shall be repaid in accordance with Clause 7.1 (Repayment of Loans). (i) If any extension is agreed in accordance with this Clause 7.2, the Borrowers to which Loans are then outstanding (and pro rata to the respective Loans owing by them) shall pay to the Agent (for the account of each Extending Lender) a fee equal to 0.20 per cent. on the amount of Commitment of each Extending Lender whose Commitment is extended in relation to the Facility. Any such fee shall be payable on the third Business Day after (i) the Parent notifies the Agent of its decision to proceed with the relevant extension in accordance with paragraph (e) above or (ii) the date on which the Agent notifies the Parent that all of the Lenders have agreed to a request (as applicable). 8. PREPAYMENT AND CANCELLATION 8.1 Illegality If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan (or, subject to paragraph (b) of Clause 4.2 (Further conditions precedent), if it becomes unlawful for any Affiliate of a Lender for that Lender to do so): (a) that Lender shall promptly notify the Agent upon becoming aware of that event; (b) upon the Agent notifying the Parent, the Available Commitment of that Lender will be immediately cancelled; and (c) to the extent that each Lender's participation has not been transferred pursuant to paragraph (d) of Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender), each Borrower shall repay that Lender's participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Parent or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be immediately cancelled in the amount of the participations repaid. 8.2 Change of control (a) If any person or group of persons acting in concert gains control of the Parent: (i) the Parent shall promptly notify the Agent upon becoming aware of that event; (ii) a Lender shall not be obliged to fund a Utilisation and the Agent and the Parent shall consult about the change of control; (iii) if the Majority Lenders so require after a period of 45 days from receipt of the notice referred to in paragraph (i) above (provided, for the avoidance of doubt, failure of the Parent to provide such notice shall not prevent the Lenders from taking the following actions), the Agent shall by notice to the Parent, (such notice to be delivered no later than 60 days from receipt of the notice referred to in paragraph (i) above), cancel each Available Commitment of each Lender and declare all Loans, together with accrued interest and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon each such Available Commitment will be cancelled, the Facility shall cease to be available for further utilisation and all such Loans, accrued interest and other amounts will become immediately due and payable;
34 3202599488 (iv) if the Majority Lenders do not require cancellation and prepayment in accordance with paragraph (iii) above, a Lender may by notice to the Agent which shall be delivered not earlier than 45 days nor later than 60 days from receipt of the notice referred to in paragraph (i) above, whereupon the Agent shall by notice to the Parent (such notice to be delivered promptly after receipt of such Lender notification), cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest thereon and all other amounts due to such Lender under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable. (b) For the purpose of paragraph (a) above "control" means: (i) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: (A) cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the Parent; (B) appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent; or (C) give directions with respect to the operating and financial policies of the Parent which the directors or other equivalent officers of the Parent are obliged to comply with; or (ii) the holding of more than one-half of the issued share capital of the Parent (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital). (c) For the purpose of paragraph (a) above "acting in concert" means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in the Parent, to obtain or consolidate control of the Parent. 8.3 Voluntary cancellation During the Availability Period, the Parent may, if it gives the Agent not less than five Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of US$10,000,000) of an Available Facility. Any cancellation under this Clause 8.3 shall reduce the Commitments of the Lenders rateably. 8.4 Voluntary prepayment of Loans The Borrower to which a Loan has been made may, if it gives the Agent not less than five RFR Banking Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but if in part, being an amount that reduces the Base Currency Amount of the Loan by a minimum amount of US$10,000,000). 8.5 Mandatory prepayment (a) For the purposes of this Agreement: "Applicable Debt and Equity Proceeds" means the cash proceeds received by a member of the Group in respect of any Institutional Debt Issuance and/or Equity Raise after deducting: 35 3202599488 (a) any fees, costs expenses which are incurred by any member of the Group with respect to that Institutional Debt Issuance and/or Equity Raise (and any provisions for reserves for any such fees, costs and expenses); and (b) any amounts incurred, payable or reasonably expected to become payable in respect of Tax in connection with that Institutional Debt Issuance and/or Equity Raise. "Applicable Disposal Proceeds" means the cash proceeds (which are not Excluded Disposal Proceeds) received by a member of the Group in consideration for the disposal of an asset to a person that is not a member of the Group ("Disposal Proceeds"), after deducting: (a) any fees, costs and expenses which are incurred by any member of the Group with respect to that disposal (and any provisions for reserves for any such fees, costs and expenses); and (b) any amounts incurred, payable or expected to become payable in respect of Tax in connection with that disposal. “Applicable Prepayment Percentage” means, at the time at which any prepayment is required to be made in accordance with this Clause 8.5, the quotient (expressed as a percentage) of: 𝐴 (𝐴 + 𝐵) where: A is the principal amount of Loans outstanding under this Agreement at that time; B is the principal amount of Loans (as defined in the Parallel Bridge Facility Agreement) outstanding under the Parallel Bridge Facility Agreement at that time. "Equity Raise" means any issuance, after the date of this Agreement by the Parent or any other member of the Group (other than a Project Finance Subsidiary) of newly issued shares (including, without limitation, any ordinary or preference shares) or any issuance by the Parent or by any other member of the Group (other than a Project Finance Subsidiary) of any other equity or equity- linked instrument(s) (including, without limitation, any hybrid instrument or instruments or securities convertible or exchangeable into newly issued shares in the issuer), in each case, to any person outside of the Group (other than, for the avoidance of doubt, any such issuance that constitutes an Institutional Debt Issuance (or which would but for one of the exceptions in paragraphs (i) to (v) of the definition thereof)). “Excluded Disposal Proceeds” means: (a) any Disposal Proceeds received by a member of the Group in respect of any disposal referred to in any of paragraphs (a) to (e) or paragraph (h) of the definition of “Permitted Disposal”; and (b) any Disposal Proceeds to the extent that, the amount of such Disposal Proceeds does not, when aggregated with the amount of all other Disposal Proceeds received by members of the Group after the date of this Agreement and not applied in prepayment or cancellation of the Facility in reliance on this paragraph (b) does not exceed (at the time of the relevant disposal) 5 per cent. of Market Capitalisation. 36 3202599488 "Institutional Debt Issuance" means: (a) the issuance, sale, public offering or private placement of any debt security (including, without limitation, any public or private bond, note or other similar debt security and any private placement) or hybrid instrument (including, without limitation, any convertible instrument) by any member of the Group (other than a Project Finance Subsidiary); or (b) any borrowing under a loan facility raised by any member of the Group (other than a Project Finance Subsidiary), in each case, other than: (i) the incurrence by any member of the Group of any Financial Indebtedness referred to in any of paragraphs (a) to (k) of the definition of “Permitted Financial Indebtedness” (or any refinancing thereof); (ii) the incurrence of any Financial Indebtedness under any overdraft or local working capital facility; (iii) the incurrence of any Financial Indebtedness under or in connection with the Parallel Bridge Facility Agreement; (iv) any issuance under a commercial paper programme; (v) any utilisation under or refinancing of any facility in place or Financial Indebtedness outstanding in each case as at the date of this Agreement, to the extent, in the case of a refinancing, the amount of Financial Indebtedness raised does not exceed the amount of the existing Financial Indebtedness being refinanced; and (vi) any such issuance, sale, public offering, private placement or other borrowing to the extent that, the Financial Indebtedness outstanding in respect thereof does not, when aggregated with the amount of all other then outstanding Financial Indebtedness raised after the date of this Agreement and the proceeds of which were not applied in prepayment or cancellation of the Facility in reliance on this paragraph (v), does not exceed US$100,000,000 at any time. (b) The Parent shall procure that the Borrower(s) prepay Loans and cancel Available Commitments, in amounts equal to the Applicable Prepayment Percentage of: (a) the amount of the Applicable Disposal Proceeds; and/or (b) Applicable Debt and Equity Proceeds. Any such prepayment or cancellation shall be applied: (i) first, in cancellation of any Available Commitments (and each Lender's Available Commitment shall be cancelled rateably); and (ii) second, in prepayment of all outstanding Loans pro rata to each Lender’s participation in that Loan; in each case as soon as soon as reasonably practicable and in any event within 10 Business Days of the date of receipt of the Applicable Disposal Proceeds and/or the Applicable Debt and Equity Proceeds (as applicable) by (or on behalf of) the relevant member of the Group. 8.6 Right of replacement or repayment and cancellation in relation to a single Lender (a) If: 37 3202599488 (i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 13.2 (Tax gross-up); or (ii) any Lender claims indemnification from the Parent under Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased Costs), the Parent may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Loans or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below. (b) On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment of that Lender shall be immediately reduced to zero whereupon the Total Commitments shall be reduced by the same amount. (c) On the last day of each Interest Period which ends after the Parent has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Parent in that notice), each Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan and that Lender's corresponding Commitment shall be immediately cancelled in the amount of the participations repaid. (d) The Parent may, if the circumstances set out in paragraph (a) above apply to a Lender or if an Obligor becomes obliged to pay any amount in accordance with Clause 8.1 (Illegality) to any Lender, on five Business Days' prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender's participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 24.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents. (e) The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions: (i) the Parent shall have no right to replace the Agent; (ii) neither the Agent nor any Lender shall have any obligation to find a replacement Lender; (iii) in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and (iv) the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) 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 paragraph (d) above and shall notify the Agent and the Parent when it is satisfied that it has complied with those checks.
38 3202599488 (f) (i) If any Lender becomes a Defaulting Lender, the Parent may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent five Business Days' (or in the case of a Lender which is a Sanctioned Lender, one Business Day's) notice of cancellation of the Available Commitment of that Lender. (ii) On the notice referred to in paragraph (i) above becoming effective, the Available Commitment of the Defaulting Lender shall be immediately reduced to zero. (iii) The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (i) above, notify all the Lenders. 8.7 Restrictions (a) Any notice of cancellation or prepayment given by any Party under this Clause 8 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment. (b) Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty. (c) The Borrowers may not reborrow any part of the Facility which is repaid or prepaid. (d) The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement. (e) Subject to clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated. (f) If the Agent receives a notice under this Clause 8 it shall promptly forward a copy of that notice to either the Parent or the affected Lender, as appropriate. (g) If all or part of any Lender's participation in a Loan under the Facility is repaid or prepaid an amount of that Lender's Commitment (equal to the Base Currency Amount of the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment. 8.8 Application of prepayments Any prepayment of a Loan pursuant to paragraph (a)(iii) of Clause 8.2 (Change of control), Clause 8.4 (Voluntary prepayment of Loans) or Clause 8.5 (Mandatory prepayment) shall be applied pro rata to each Lender's participation in that Loan. 39 3202599488 SECTION 5 COSTS OF UTILISATION 9. INTEREST 9.1 Calculation of interest (a) The rate of interest on each Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable: (i) Margin; and (ii) Compounded Reference Rate for that day. (b) If any day during an Interest Period for a Loan is not an RFR Banking Day, the rate of interest on that Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day. 9.2 Payment of interest Each Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period. 9.3 Margin Subject to Clause 9.4 (Margin adjustments), the Margin on the date of this Agreement is 0.75 per cent. per annum. 9.4 Margin adjustments (a) Subject to the other provisions of this Clause 9.4, the Margin for all Loans shall, on any day be the percentage rate per annum determined by reference to the then applicable row in the table below corresponding to the period from the date of this Agreement during which that day falls and the column corresponding to the then applicable long term credit rating assigned to the Parent by either Moody's or Standard & Poor's as at that day. BBB / Baa2 or higher BBB- / Baa3 BB+ / Ba1 or lower From and including the date of this Agreement up to and including the date falling 3 Months after the date of this Agreement 0.55 0.75 0.95 From but excluding the date falling 3 Months after the date of this Agreement up to and including the date falling 6 Months after the date of this Agreement 0.80 1.00 1.20 From but excluding the date falling 6 Months after the date of this Agreement up to and including the date falling 9 Months after the date of this Agreement 1.05 1.25 1.45 From but excluding the date falling 9 Months after the date of this Agreement up to and including the date falling 12 Months after the date of this Agreement 1.40 1.60 1.80 40 3202599488 BBB / Baa2 or higher BBB- / Baa3 BB+ / Ba1 or lower From but excluding the date falling 12 Months after the date of this Agreement up to but excluding the date falling 15 Months after the date of this Agreement 1.75 1.95 2.15 From but excluding the date falling 15 Months after the date of this Agreement 2.10 2.30 2.50 (b) Any adjustment to the Margin (whether upwards or downwards) as a result of a change in the Parent’s long-term credit rating will apply from the date on which the Parent notifies the Agent of the publication of the relevant change to, or to the extent applicable, the withdrawal of the long term credit rating assigned to the Parent by Moody's or Standard & Poor's. (c) If at any time there is a difference in the long term credit ratings assigned to the Parent by each of Standard & Poor's and Moody's, the applicable Margin will be the average of the Margins applicable to the relevant ratings. (d) If at any time only one of Standard & Poor's or Moody's assigns a long term credit rating to the Parent or if either Standard & Poor's or Moody's ceases to assign a long term credit rating to the Parent: (i) the applicable Margin will be the average of (x) the Margin applicable to the rating assigned by the remaining rating agency or the rating agency that has issued a rating (as applicable) and (y) the applicable Margin set out in the table above in the column applicable to the ratings BB+ in the case of Standard & Poor's and Ba1 in the case of Moody's; or (ii) the Parent may obtain a substitute rating from another statistical rating agency acceptable to the Agent, acting reasonably, but until such time as a substitute rating agency is appointed by the Parent and has assigned a long term credit rating to the Parent, the Margin shall be determined in accordance with paragraph (i) above. (e) Following any substitution under paragraph (d)(ii) above, references in this Clause 9.4 to Moody's or Standard & Poor's as the case may be shall be to such substitute rating agency. (f) If none of Moody's, Standard & Poor's or any other statistical ratings agency appointed by the Parent under paragraph (d)(ii) above, assign a long term credit rating to the Parent, the Margin set out in the table above opposite the ratings BB+ in the case of Standard & Poor's and Ba1 in the case of Moody's will apply. (g) Notwithstanding any other provision, if at any time an Event of Default is continuing the Margin will be determined by reference to the above table as if the long term credit rating assigned to the Parent by Moody's was Ba1 and by Standard & Poor's was BB+. (h) If the relevant Event of Default ceases to be continuing, the Margin will be calculated in accordance with paragraph (a) above, and shall take effect in relation to each Loan from the next Business Day after the date on which the relevant Event of Default ceases to be continuing. 41 3202599488 (i) The Parent shall notify the Agent promptly upon (and in any event within three Business Days) becoming aware that Moody's, and/or Standard & Poor's and/or any other statistical ratings agency as appointed by the Parent under paragraph (d)(ii) above has published or withdrawn a long term credit rating assigned to the Parent. 9.5 Default interest (a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which is 1 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 9.5 shall be immediately payable by that Obligor on demand by the Agent. (b) Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable. 9.6 Notifications (a) The Agent shall promptly upon an Interest Payment being determinable notify: (i) the relevant Borrower of that Interest Payment; (ii) each relevant Lender of the proportion of that Interest Payment which relates to that Lender's participation in the relevant Loan; and (iii) the relevant Lenders and the relevant Borrower of: (A) each applicable rate of interest relating to the determination of that Interest Payment; and (B) to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Loan. This paragraph (a) shall not apply to any Interest Payment determined pursuant to Clause 11.3 (Cost of funds). (b) The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan. (c) The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest relating to a Loan to which Clause 11.3 (Cost of funds) applies. (d) This Clause 9.6 shall not require the Agent to make any notification to any Party on a day which is not a Business Day. 9.7 Interest Act (Canada) For the purposes of the Interest Act (Canada): (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year;
42 3202599488 (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder; and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields. 9.8 Criminal Code (Canada) If any provision of this Agreement would oblige a Canadian Obligor to make any payment of interest or other amount payable to any Finance Party in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Finance Party of "interest" at a "criminal rate" (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Finance Party of “interest” at a "criminal rate", such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows: (A) first, by reducing the amount or rate of interest; and (B) thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid which would constitute interest for purposes of section 347 of the Criminal Code (Canada). 10. INTEREST PERIODS 10.1 Selection of Interest Periods (a) A Borrower (or the Parent on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice. (b) Each Selection Notice for a Loan is irrevocable and must be delivered to the Agent by a Borrower not later than 10:00 a.m. on the Business Day before the first day of the relevant Interest Period. (c) If the relevant Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will be the same length as the preceding Interest Period. (d) Subject to this Clause 10, a Borrower may select an Interest Period of any period specified in the applicable Reference Rate Terms or any other period agreed between that Borrower (or the Parent) and the Agent (acting on the instructions of all the Lenders) in relation to the relevant Loan. (e) An Interest Period for a Loan under the Facility shall not extend beyond the then earliest Termination Date which applies to a Lender participating in that Loan. (f) Each Interest Period for a Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period. (g) No Interest Period shall be longer than three Months. 10.2 Non-Business Days Any rules specified as "Business Day Conventions" in the applicable Reference Rate Terms shall apply to each Interest Period. 10.3 Consolidation and division of Loans (a) Subject to paragraph (b) below, if two or more Interest Periods: (i) relate to Loans in the same currency made to the same Borrower; and (ii) end on the same date, 43 3202599488 those Loans will, unless the relevant Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Loan on the last day of the Interest Period. (b) Subject to Clause 4.4 (Maximum number of Loans) and Clause 5.3 (Currency and amount), if a Borrower requests in a Selection Notice that a Loan be divided into two or more Loans, that Loan will, on the last day of its Interest Period, be so divided with Base Currency Amounts specified in that Selection Notice, being an aggregate Base Currency Amount equal to the Base Currency Amount of the Loan immediately before its division. 11. CHANGES TO THE CALCULATION OF INTEREST 11.1 Interest calculation if no RFR or Central Bank Rate If: (a) there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Loan; and (b) "Cost of funds will apply as a fallback" is specified in the Reference Rate Terms for that Loan, Clause 11.3 (Cost of funds) shall apply to that Loan for that Interest Period. 11.2 Market Disruption If: (a) a Market Disruption Rate is specified in the Reference Rate Terms for a Loan; and (b) before the Reporting Time for that Loan, the Agent receives notifications from a Lender or Lenders (whose participations in that Loan exceed 35 per cent. of that Loan) that its cost of funds relating to its participation in that Loan would be in excess of that Market Disruption Rate, then Clause 11.3 (Cost of funds) shall apply to that Loan for the relevant Interest Period. 11.3 Cost of funds (a) If this Clause 11.3 applies to a Loan for an Interest Period, Clause 9.1 (Calculation of interest) shall not apply to that Loan for that Interest Period and the rate of interest on each Lender's share of that Loan for that Interest Period shall be the percentage rate per annum which is the sum of: (i) the applicable Margin; and (ii) the rate notified to the Agent by that Lender as soon as practicable and in any event by the Reporting Time for that Loan, to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan. (b) If this Clause 11.3 applies and the Agent or the Parent so requires, the Agent and the Parent shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest. (c) Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Parent, be binding on all Parties. (d) If this Clause 11.3 applies pursuant to Clause 11.2 (Market Disruption) and: 44 3202599488 (i) a Lender's Funding Rate is less than the relevant Market Disruption Rate; or (ii) a Lender does not notify a rate to the Agent by the relevant Reporting Time, that Lender's cost of funds relating to its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Market Disruption Rate for that Loan. (e) If this Clause 11.3 applies the Agent shall, as soon as is practicable, notify the Parent. 11.4 Break Costs (a) If an amount is specified as Break Costs in the Reference Rate Terms for a Loan or Unpaid Sum, each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (if any) attributable to all or any part of that Loan or Unpaid Sum being paid by that Borrower on a day prior to the last day of an Interest Period for that Loan or Unpaid Sum. (b) Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in respect of which they become, or may become, payable. 12. FEES 12.1 Commitment fee (a) GF Windfall shall pay to the Agent (for the account of each Lender) a fee (in the Base Currency) computed at the rate per annum equal to the applicable percentage (determined by reference to the table below) of the then applicable Margin, in each case on the unused and uncancelled amount of the Facility accruing during the Availability Period. Time periods (to the extent during the Availability Period) on which the Commitment Fee accrues Percentage of the then applicable Margin From and including 11 August 2024 to and including the date falling 11 September 2024 0% From and excluding 11 September 2024 to and including 11 October 2024 10% From and excluding 11 October 2024 to and including 11 November 2024 20% From and excluding 11 November 2024 to the end of the Availability Period 35% (b) The accrued commitment fee is payable on: (i) the last day of each successive period of three Months which ends during the Availability Period; (ii) on the last day of the relevant Availability Period; and (iii) if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective. (c) No commitment fee is payable to the Agent (for the account of a Lender) in respect of any day on which that Lender is a Defaulting Lender. 45 3202599488 12.2 Upfront Fee and Participation Fee An upfront fee and participation fee shall be payable by the Parent to the Arrangers, in the amount and at the times agreed in the Participation Fee Letter. 12.3 Agency fee An agency fee shall be paid by such Original Borrower as elected by the Parent to the Agent (for its own account) in the amount and at the times agreed in a Fee Letter.
46 3202599488 SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS 13. TAX GROSS-UP AND INDEMNITIES 13.1 Definitions (a) In this Clause 13, "Tax Credit" means a credit against, relief or remission for, or repayment of any Tax. (b) Unless this Clause 13 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. 13.2 Tax gross-up (a) Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law. (b) 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 Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Parent and, if applicable, that Obligor. (c) If a Tax Deduction is required by law to be made: (i) by an Obligor (other than a Canadian Obligor or an Obligor as agent for a Canadian Obligor); or (ii) in respect of Indemnified Taxes, by a Canadian Obligor or an Obligor as agent for a Canadian 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. (d) 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. (e) Within 30 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 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. 13.3 Tax indemnity (a) An Obligor shall (within three Business Days of demand by the 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: (i) in the case of an Obligor other than a Canadian Obligor, Tax by that Finance Party in respect of a Finance Document; or 47 3202599488 (ii) in the case of a Canadian Obligor, Indemnified Taxes by that Finance Party in respect of a Finance Document. (b) Paragraph (a) above shall not apply: (i) in the case of an Obligor other than a Canadian Obligor, with respect to any Tax assessed on a Finance Party: (A) 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 (B) 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 (ii) to the extent a loss, liability or cost: (A) is compensated for by an increased payment under Clause 13.2 (Tax gross-up); or (B) relates to a FATCA Deduction required to be made by a Party. (c) A Finance Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Obligor. (d) A Finance Party shall, on receiving a payment from an Obligor under this Clause 13.3, notify the Agent. 13.4 Tax Credit If an Obligor makes a Tax Payment and the relevant Finance Party determines that: (a) a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and (b) that Finance Party has obtained and utilised that Tax Credit, the Finance Party shall pay an amount to such Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by such Obligor. 13.5 Stamp taxes Such Borrower as the Parent shall nominate shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document. 13.6 Value added tax (a) All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or 48 3202599488 supplies, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party). (b) If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Subject Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT. (c) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority. (d) Any reference in this Clause 13.6 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in the Value Added Tax Act 1994, Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction other than the United Kingdom or a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be). (e) In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply. 13.7 Reduction of Indemnified Taxes Any Lender that is entitled to an exemption from or reduction of Indemnified Taxes, or any other withholding Taxes (collectively, "Relevant Taxes") under the law of Canada, or any treaty to which Canada is a party, with respect to payments made under a Finance Document shall, at the request of a Canadian Obligor (or the Parent), deliver to the relevant Canadian Obligor (or the Parent) with a copy to the Agent, at the time or times prescribed by law or reasonably requested by the relevant Canadian Obligor (or the Parent) or the Agent, such properly completed and executed documentation prescribed by law (if any) as will permit such payments to be made without withholding or at a reduced rate of withholding or a reduced rate of Relevant Taxes. In addition, (i) any Lender, if requested by a Canadian Obligor (or the Parent) or the Agent, shall deliver such 49 3202599488 other documentation prescribed by law (if any) or reasonably requested by the relevant Canadian Obligor (or the Parent) or the Agent as will enable such Canadian Obligor or the Agent to determine whether or not such Lender is subject to withholding or information reporting requirements, and (ii) if any form or documentation previously delivered by a Lender becomes obsolete or inaccurate in any material respect, such Lender shall update such form or documentation or promptly notify the relevant Canadian Obligor and the Agent of its legal inability to do so. Notwithstanding anything to the contrary in this Clause 13.7, the completion, execution and submission of such documentation shall not be required if in the Lender’s reasonable judgement such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. 13.8 FATCA Information (a) Subject to paragraph (c) below, each Party shall, within 10 Business Days of a reasonable request by another Party: (i) confirm to that other Party whether it is: (A) a FATCA Exempt Party; or (B) not a FATCA Exempt Party; (ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and (iii) supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime. (b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. (c) Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of: (i) any law or regulation; (ii) any fiduciary duty; or (iii) any duty of confidentiality. (d) If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information. 13.9 FATCA Deduction (a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any
50 3202599488 payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. (b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Parent, the Agent and the other Finance Parties. 14. INCREASED COSTS 14.1 Increased Costs (a) Such Borrower as the Parent shall nominate shall, within 20 Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of: (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the date of this Agreement; (ii) compliance with any law or regulation made after the date of this Agreement; or (iii) the implementation or application of, or compliance with, Basel III or any law or regulation that implements or applies Basel III (except, in each case, to the extent that any such costs were reasonably capable of being calculated by the relevant Finance Party as at the date of this Agreement or the date on which it became a party to this Agreement). (b) In this Agreement: (i) "Basel III" means (A) the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated; (B) the rules for global systemically important banks contained in "Global systemically important banks; assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and (C) any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III". (ii) "Increased Costs" means: (A) a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital; (B) an additional or increased cost; or (C) a reduction of any amount due and payable under any Finance Document, 51 3202599488 which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document. 14.2 Increased Cost Claims (a) A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased Costs) shall notify the Agent, promptly upon becoming aware of any Increased Costs, of the event giving rise to the claim (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information), following which the Agent shall promptly notify the Original Borrowers. (b) Each Finance Party shall, together with the notification in paragraph (a) above, provide a certificate to the Agent: (i) confirming the amount of its Increased Costs; (ii) outlining the basis of its calculation (in reasonable detail) (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information or information or detail that the Finance Party is not legally allowed to disclose (even if the recipient has given appropriate confidentiality undertakings)); and (iii) confirming that it is the policy of that Finance Party to make claims from similar borrowers under similar facilities (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information or information or detail that the Finance Party is not legally allowed to disclose (even if the recipient has given appropriate confidentiality undertakings)), (for the avoidance of doubt, a written statement by a Finance Party confirming that it is the policy of that Finance Party to make claims from similar borrowers under similar facilities will be sufficient evidence and no Finance Party will be required to provide any further evidence or otherwise substantiate its position concerning Basel III), following which the Agent shall promptly forward that certificate to the Original Borrowers. 14.3 Exceptions Clause 14.1 (Increased Costs) does not apply to the extent any Increased Cost is: (a) attributable to a Tax Deduction required by law to be made by an Obligor; (b) attributable to a FATCA Deduction required to be made by a Party; (c) compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated solely because, in the case of an Obligor (other than a Canadian Obligor), any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied or in the case of a Canadian Obligor, it is in respect of an Excluded Tax); (d) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or (e) attributable to the implementation or application of or compliance with the bank levy imposed by the United Kingdom government under the Finance Act 2011 in the form existing on the date of this Agreement (the "UK Bank Levy") or any other law or regulation which implements the UK Bank Levy (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates). 52 3202599488 15. OTHER INDEMNITIES 15.1 Currency indemnity (a) If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of: (i) making or filing a claim or proof against that Obligor; (ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, that Obligor shall as an independent obligation, within five Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum. (b) Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable. 15.2 Other indemnities Such Borrower as the Parent shall nominate shall, within five Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of: (a) the occurrence of any Event of Default; (b) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 28 (Sharing among the Finance Parties); (c) funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or (d) a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Parent. 15.3 Indemnity to the Agent The Parent shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of: (a) investigating any event which it reasonably believes is a Default; (b) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or (c) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement. 15.4 Transaction indemnity The Parent shall within five Business Days of demand indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate, against any 53 3202599488 cost, loss or liability incurred by that Finance Party or its Affiliate (or officer, or employee of that Finance Party or Affiliate) in connection with or arising out of the Acquisition or the funding of the Acquisition (including, but not limited to, those incurred in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the Acquisition), unless such loss or liability is caused by the gross negligence or wilful misconduct of that Finance Party or its Affiliate (or employee or officer of that Finance Party or Affiliate). Any Affiliate or any officer or employee of a Finance Party or its Affiliate may rely on this Clause 15.4 subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act. 16. MITIGATION BY THE LENDERS 16.1 Mitigation (a) Each Finance Party shall, in consultation with the Parent, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax Gross-up and Indemnities) or Clause 14 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office. (b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents. 16.2 Limitation of liability (a) The Parent shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 16.1 (Mitigation). (b) A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it. 17. COSTS AND EXPENSES 17.1 Transaction expenses Such Borrower as the Parent shall nominate shall, promptly within five Business Days of demand, pay the Agent and the Arranger the amount of all costs and expenses (including legal fees but subject to any separately agreed cap) reasonably incurred by any of them in connection with the negotiation, preparation, printing and execution of: (a) this Agreement and any other documents referred to in this Agreement; and (b) any other Finance Documents executed after the date of this Agreement, subject to a cap of $10,000 (provided, however, that such cap shall not include the legal fees, which shall be subject to a separately agreed cap). 17.2 Amendment costs If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 29.10 (Change of currency), such Borrower as the Parent shall nominate shall, within five Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement. 17.3 Enforcement costs Such Borrower as the Parent shall nominate shall, within five Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that
54 3202599488 Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document. 55 3202599488 SECTION 7 GUARANTEE 18. GUARANTEE AND INDEMNITY 18.1 Guarantee and indemnity Each Guarantor irrevocably and unconditionally jointly and severally: (a) 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; (b) 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 (c) 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 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 18 if the amount claimed had been recoverable on the basis of a guarantee. 18.2 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. 18.3 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 or otherwise, without limitation, then the liability of each Guarantor under this Clause 18 will continue or be reinstated as if the discharge, release or arrangement had not occurred. 18.4 Waiver of defences The obligations of each Guarantor under this Clause 18 will not be affected by an act, omission, matter or thing which, but for this Clause 18, would reduce, release or prejudice any of its obligations under this Clause 18 (without limitation and whether or not known to it or any Finance Party) including: (a) any time, waiver or consent granted to, or composition with, any Obligor or other person; (b) 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; (c) 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 56 3202599488 requirement in respect of any instrument or any failure to realise the full value of any security; (d) 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; (e) 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; (f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or (g) any insolvency or similar proceedings. 18.5 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 18. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary. 18.6 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: (a) 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 (b) hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 18. 18.7 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 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 18: (a) to be indemnified by an Obligor; (b) to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents; (c) 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; 57 3202599488 (d) 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 18.1 (Guarantee and indemnity); (e) to exercise any right of set-off against any Obligor; and/or (f) 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 Agent or as the Agent may direct for application in accordance with Clause 29 (Payment Mechanics) 18.8 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: (a) 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 (b) 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. 18.9 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.
58 3202599488 SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT 19. REPRESENTATIONS Each Obligor makes the representations and warranties set out in this Clause 19 to each Finance Party. 19.1 Status (a) It is a limited liability company or corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation. (b) It has the power to own its assets and carry on its business as it is being conducted or is contemplated to be conducted. 19.2 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. 19.3 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. 19.4 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: (a) any applicable law of its jurisdiction of incorporation; (b) its Constitutional Documents; or (c) any material agreement or instrument binding upon it or any of its assets. 19.5 Validity and admissibility in evidence (a) Subject to the Legal Reservations and paragraph (ii) below, all authorisations required: (i) 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 (ii) 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. (b) Paragraph (a) above shall not apply to any licence under any applicable licensing regime where such licence is required as a result of a Finance Party being a Sanctioned Finance Party and would require any member of the Group to take active steps to obtain and/or maintain such licence. 19.6 Governing law and enforcement Subject to the Legal Reservations: (a) the choice of English law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation; and 59 3202599488 (b) any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation. 19.7 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. 19.8 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. 19.9 BVI Tax and Licencing (a) 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. (b) 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 Licences Act 1990. 19.10 No default (a) No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation. (b) 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. 19.11 No misleading information (a) All written factual information supplied by it to the Finance Parties and the Agent in connection with the Finance Documents (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. (b) 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. (c) It has not knowingly withheld any information which, if disclosed, would reasonably be expected to materially and adversely affect the decision of the Finance Parties in considering whether or not to provide finance to each Borrower. 19.12 Financial statements (a) The Original Financial Statements were prepared in accordance with GAAP. (b) The Original Financial Statements fairly present the Group's financial condition and its results of operations during the relevant Financial Year. 60 3202599488 19.13 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. 19.14 No proceedings pending or threatened Other than as disclosed in the financial statements most recently delivered to the Agent pursuant to paragraph (a) of Clause 20.1 (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. 19.15 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. 19.16 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. 19.17 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. 19.18 Taxation (a) It and each Material Group Company has duly and punctually paid and discharged all Taxes imposed upon it or its assets within the time period allowed without incurring penalties except to the extent that: (i) payment is being contested in good faith, it has maintained adequate reserves for those Taxes and payment can be lawfully withheld; or (ii) the aggregate amount of Taxes being withheld does not exceed US$30,000,000 (or its equivalent). (b) It is not and no Material Group Company is materially overdue in the filing of any Tax returns. 19.19 Ownership of Material Group Companies (a) Each existing Material Group Company on the date of this Agreement (other than the Cerro Corona Subsidiary, Newshelf, the Ghanaian Companies, Gold Fields Operations Limited and GFI Joint Venture Holdings Proprietary Limited) is a wholly-owned Subsidiary of the Parent and any member of the Group which becomes a Material Group Company after the date of this Agreement 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 61 3202599488 Subsidiary below the level of their shareholding at the time such Subsidiary became a Material Group Company. (b) The Parent holds at least 74 per cent. of the issued share capital of Newshelf. (c) Newshelf holds at least 74 per cent. of the issued share capital of each of Gold Fields Operations Limited and GFI Joint Venture Holdings Proprietary Limited. (d) The Parent indirectly holds at least 50.1 per cent. of the issued share capital of each Ghanaian Company. (e) The Parent indirectly holds at least 99 per cent. of the common shares in the share capital of the Cerro Corona Subsidiary (which equates to 98.5 per cent. of the issued and outstanding shares in the share capital of the Cerro Corona Subsidiary). 19.20 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. 19.21 Sanctions (a) 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 date of this Agreement) 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 date of this Agreement). (b) For the past 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. 19.22 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. 19.23 Times when representation made (a) All the representations and warranties in this Clause 19 are made by each Obligor on the date of this Agreement 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 paragraphs (a) and (b) of Clause 19.11 (No misleading information) which are deemed to be made on the date the Information is provided by the relevant Obligor. (b) The Repeating Representations are deemed to be made by each Obligor (by reference to the facts and circumstances then existing) on: (i) the date of each Utilisation Request; (ii) on each Utilisation Date; (iii) on the first day of each Interest Period; and
62 3202599488 (iv) in relation to any extension request made pursuant to Clause 7.2 (Extension option), the date of such extension request and the date falling on the first anniversary of the date of this Agreement; and save that the references in Clause 19.12 (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 Agent under Clause 19.12 (Financial statements). 20. INFORMATION UNDERTAKINGS The undertakings in this Clause 20 are given in favour of each Finance Party and remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force. 20.1 Financial statements The Parent shall supply to the Agent: (a) as soon as the same become available, but in any event within 120 days after the end of each of its Financial Years the audited consolidated financial statements of the Parent for that Financial Year; (b) as soon as the same become available, but in any event within 150 days after the end of each of its Financial Years: (i) the audited financial statements of each Obligor (other than Gold Fields Holdings Company Limited and Gold Fields Orogen Holding (BVI) Limited (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 (ii) if the audited financial statements of Gold Fields Holdings Company Limited, and/or Gold Fields Orogen Holding (BVI) Limited and/or any other Obligor which is not legally required to audit its financial statements (as the case may be) are not delivered under paragraph (i) above, the unaudited financial statements of Gold Fields Holdings Company Limited and/or Gold Fields Orogen Holding (BVI) and/or any other Obligor which is not legally required to audit its financial statements (as the case may be) for that Financial Year; (c) as soon as the same become available, but in any event within 60 days after the first six months of each of its Financial Years: (i) the unaudited financial statements of each Obligor for the first six month period of that Financial Year; and (ii) the unaudited consolidated financial statements of the Parent for the first six month period of that Financial Year. 20.2 Compliance Certificate (a) The Parent shall supply to the Agent, with each set of consolidated financial statements delivered pursuant to paragraphs (a) and (c) of Clause 20.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 21 (Financial Covenants) as at the date as at which those financial statements were drawn up. 63 3202599488 (b) Each Compliance Certificate shall be signed by an authorised signatory of the Parent. 20.3 Requirements as to financial statements (a) Each set of financial statements delivered by the Parent pursuant to Clause 20.1 (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. (b) Subject to paragraph (c) below, the Parent shall procure that each set of financial statements delivered pursuant to Clause 20.1 (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 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 Agent: (i) 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 (ii) sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Agent to determine whether Clause 21 (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. (c) There shall be no requirement for the Parent to notify the Agent pursuant to paragraph (b) 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 paragraphs (b)(i) or (b)(ii) above in relation to the implementation of IFRS 16 and each set of financial statements delivered pursuant to Clause 20.1 (Financial statements) shall be prepared taking into account the implementation of IFRS 16. (d) If the Parent notifies the Agent of a change in accordance with paragraph (b) above, then the Parent and the Agent shall enter into negotiations in good faith with a view to agreeing: (i) 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 (ii) 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. (e) 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 20.3 to reflect the basis upon which the Original Financial Statements were prepared. 20.4 Information: miscellaneous (a) Each Obligor shall supply to the Agent: 64 3202599488 (i) if the 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; (ii) 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 (iii) promptly, such further information regarding the financial condition, business and operations of any Material Group Company as any Finance Party (through the Agent) may reasonably request, except where disclosure of such information would breach: (A) any law, regulation, rules of any stock exchange; or (B) any contractual confidentiality obligations not entered into for the primary purpose of circumventing an Obligor's obligations under this Clause 20.4. (b) Each Obligor agrees to use commercially reasonable endeavours to seek permission to disclose any information which it would be obliged to disclose pursuant to paragraph (a)(iii) above but for the exception in paragraph (a)(iii)(B) above. 20.5 Notification of default (a) Each Obligor shall notify the 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). (b) Promptly upon a request by the Agent, each Borrower shall supply to the Agent, a certificate signed by an authorised signatory 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). 20.6 Direct electronic delivery by 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 33.6 (Electronic communication) to the extent that Lender and the Agent agree to this method of delivery. 20.7 "Know your customer" checks (a) If: (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; (ii) 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 date of this Agreement; or (iii) a proposed assignment or 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 assignment or transfer, obliges the Agent or any Lender (or, in the case of paragraph (iii) 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 Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event 65 3202599488 described in paragraph (iii) 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. (b) Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the 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. (c) The Parent shall, by not less than 10 Business Days' prior written notice to the Agent, notify the 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. (d) Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the 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 Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the 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 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 checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to the Finance Documents as an Additional Obligor. 21. FINANCIAL COVENANTS 21.1 Financial definitions: (a) In this Clause 21: "Consolidated EBITDA" means, in respect of any Measurement Period, the consolidated net income of the Group (less the net income of any Project Finance Subsidiaries but including any dividends received in cash by any member of the Group (other than a Project Finance Subsidiary) from a Project Finance Subsidiary), before, without duplication and all as calculated 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 preparation of the applicable financial statements delivered pursuant to Clause 20.1 (Financial statements): (i) any provision on account of normal, deferred and royalty taxation; (ii) any interest, commission, discounts or other fees incurred or payable, received or receivable by any member of the Group in respect of Indebtedness for Borrowed Money; (iii) any other interest received or receivable by any member of the Group on any deposit or bank account; (iv) any non-cash adjustments to the environment rehabilitation and/or reclamation expenses; (v) any amount attributable to the amortisation of intangible assets and depreciation of tangible assets; (vi) any non-cash gains or losses relating to and resulting from the marked to market valuation of derivative and/or financial instruments;
66 3202599488 (vii) any losses from (or gains on the reversal of previously recognised) write-downs or impairments of assets and/or investments; (viii) any gains or losses recognised on the attributable share of results of associates after tax, but including any dividends received in cash by any member of the Group from such an associate; (ix) any share-based payments; (x) any other extraordinary or exceptional items; and (xi) any other material non-cash gain or loss that needs to be accounted for under GAAP, the requirements of its jurisdiction of incorporation and accounting practices and financial reference periods, in each case consistent with those applied in preparation of the applicable financial statements delivered pursuant to Clause 20.1 (Financial statements). For any company or other person (including, without limitation, any joint venture entity) that is not a Subsidiary of the Group but in which any member of the Group directly or indirectly owns an equity interest of more than 20 per cent. of the issued share capital (or other ownership interests) (an "Associate"), the Parent may include in the Consolidated EBITDA the percentage of the equity interest of the amount that would be the EBITDA of the Associate. "Consolidated Net Borrowings" means, at any time, the aggregate amount of all obligations of the members of the Group, other than Project Finance Subsidiaries (but including, for the avoidance of doubt, any guaranteed obligations of any other member of the Group in respect of the obligations of a Project Finance Subsidiary), for or in respect of Indebtedness for Borrowed Money but excluding any such obligation to any member of the Group, adjusted to take account of the aggregate amount of freely available cash and cash equivalents held by any member of the Group, other than Project Finance Subsidiaries, and so that no amount shall be included or excluded more than once, provided that, if a percentage of the EBITDA of any Associate is included in the Consolidated EBITDA then the same percentage of such Associate's Consolidated Net Borrowings (but as if references in such definition to "Group" were references to the Associate and its Subsidiaries) will be included in the calculation of Consolidated Net Borrowings; "Consolidated Net Finance Charges" means, in respect of any Measurement Period, the aggregate amount of the interest (including the interest element of leasing and hire purchase payments and capitalised interest) or recurring or periodic commission, fees, discounts and other recurring or periodic finance payments payable by any member of the Group, other than Project Finance Subsidiaries, (including any commission, fees, discounts and other finance payment payable by any member of the Group under any interest rate hedging arrangement but deducting any recurring or periodic commission, fees, discounts and other finance payments receivable by any member of the Group under any interest rate hedging instrument) but deducting any other interest receivable by any member of the Group, other than Project Finance Subsidiaries, on any deposit or bank account, provided that, if a percentage of the EBITDA of any Associate is included in the Consolidated EBITDA then the same percentage of such Associate's Consolidated Net Finance Charges (but as if references in such definition to "Group" were references to the Associate and its Subsidiaries) will be included in the calculation of Consolidated Net Finance Charges; and 67 3202599488 "Measurement Period" means each period of 12 months ending on the last day of the Parent's Financial Year and each period of 12 months ending on the last day of the first half of the Parent's Financial Year. (b) For the purposes of this Clause 21, if at any time the Cerro Corona Subsidiary is (or is deemed to be) a Material Group Company it shall be deemed to not be a Project Finance Subsidiary. 21.2 Financial condition (a) The Parent shall ensure that: (i) the ratio of Consolidated EBITDA to Consolidated Net Finance Charges in respect of any Measurement Period shall be or shall exceed 4:1; and (ii) the ratio of Consolidated Net Borrowings to Consolidated EBITDA shall not in respect of any Measurement Period exceed 3.5:1. (b) The undertakings in paragraph (a) above remain in force from the date of this Agreement for so long as any amount is outstanding under a Finance Document or a Commitment is in force. 21.3 Financial testing The financial covenants set out in Clause 21.2 (Financial condition) shall be tested by reference to each of the financial statements and/or each Compliance Certificate delivered pursuant to Clauses 20.1 (Financial statements) and 20.2 (Compliance Certificate). 22. GENERAL UNDERTAKINGS The undertakings in this Clause 22 are given in favour of each Finance Party and remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force. 22.1 Authorisations (a) Subject to paragraph (b) below, each Obligor shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect any authorisation required under any applicable law to enable it to perform its obligations under the Finance Documents to which it is a party and to ensure the legality, validity, enforceability or admissibility in evidence of any Finance Document. (b) Paragraph (a) above shall not require an Obligor to take active steps to obtain and/or maintain any licence under any applicable licensing regime where such licence is required as a result of a Finance Party being a Sanctioned Finance Party. 22.2 Compliance with laws Each Obligor shall comply in all respects with all laws and regulations to which it may be subject (including, but not limited to, Environmental Law), if failure so to comply would have a Material Adverse Effect. 22.3 Negative pledge (a) No Obligor shall (and the Parent shall procure that no other Material Group Company shall) create or permit to subsist any Encumbrance over any of its assets. (b) No Obligor shall (and the Parent shall ensure that no other Material Group Company will): (i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by it or by an Obligor or any other member of the Group; (ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms; 68 3202599488 (iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or (iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset. (c) Paragraphs (a) and (b) above do not apply to Permitted Encumbrances. 22.4 Disposals and Mergers (a) No Obligor shall (and the Parent shall ensure that no other Material Group Company will): (i) enter into a single transaction or a series of transactions (whether related or not) and whether voluntarily or involuntarily to sell, lease, transfer or otherwise dispose of any assets; or (ii) enter into any amalgamation, demerger, merger or corporate reconstruction. (b) Paragraph (a) above does not apply to: (i) Permitted Disposals; or (ii) any amalgamation, demerger, merger or corporate reconstruction of any member of the Group, without insolvency, if: (A) in respect of the Obligors or the successors-in-title or assignees of the Obligors, the Finance Documents are preserved as binding upon the amalgamated, demerged, merged and/or reconstructed members of the Group; (B) the amalgamated, demerged, merged and/or reconstructed companies will be members of the Group; and (C) such amalgamation, demerger, merger and/or corporate reconstruction will not have a Material Adverse Effect. 22.5 Change of business Each Obligor shall procure that no substantial change is made to the general nature of its business or the business of the Group taken as a whole from that carried on at the date of this Agreement. 22.6 Insurance Each Obligor shall (and the Parent shall ensure that each Material Group Company will) maintain insurances on and in relation to its business, properties and assets with reputable underwriters or insurance companies against those risks and to the extent as is usual for companies carrying on the same or substantially similar business. 22.7 Environmental Compliance Each Obligor shall (and the Parent shall ensure that each Material Group Company will) comply with all Environmental Law and obtain and maintain any Environmental Permits and take all reasonable steps in anticipation of known or expected future changes to or obligations under the same, in each case, where a failure to do so would be reasonably likely to have a Material Adverse Effect. 69 3202599488 22.8 Environmental Claims Each Obligor shall inform the Agent, in writing as soon as reasonably practical upon becoming aware of the same: (a) if any Environmental Claim (not of a frivolous or vexatious nature) has been commenced or (to the best of its knowledge and belief) threatened against any Material Group Company; or (b) of any facts or circumstances which will or are reasonably likely to result in any Environmental Claim (not of a frivolous or vexatious nature) being commenced or threatened against any Material Group Company, where the claim is reasonably likely to be determined against that Material Group Company and would be reasonably likely, if determined against that Material Group Company, to have a Material Adverse Effect. 22.9 Claims Pari Passu (a) Subject to the Legal Reservations and paragraph (b) below, each Obligor shall ensure that at all times the claims of the Finance Parties against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors save those whose claims are preferred by any bankruptcy, insolvency, liquidation or other similar laws of general application in its jurisdiction of incorporation or in the case of a Canadian Obligor, any other laws of general application in Canada. (b) Paragraph (a) above shall not apply to claims of a Sanctioned Finance Party, provided that, for the avoidance of doubt, notwithstanding any Finance Party (a "Relevant Finance Party") being a Sanctioned Finance Party, paragraph (a) above shall continue to apply in respect of claims of the Finance Parties that are not Sanctioned Finance Parties, whether or not claims of such other Finance Parties may be affected by the Relevant Finance Party being a Sanctioned Finance Party. 22.10 Acquisitions No Obligor shall (and the Parent shall ensure that no Material Group Company will), acquire any assets or business or make any investments if such acquisition or investment would be classed as a "Category 1" transaction under the Listing Requirements of the JSE Limited. 22.11 Financial Indebtedness No member of the Group (other than a Guarantor or a Project Finance Subsidiary) shall incur, create or permit to subsist or have outstanding any Financial Indebtedness other than Permitted Financial Indebtedness. 22.12 Ownership of Material Group Companies Subject to applicable law, the Parent shall ensure that: (a) each existing Material Group Company on the date of this Agreement (other than the Cerro Corona Subsidiary, Newshelf, the Ghanaian Companies, Gold Fields Operations Limited and GFI Joint Venture Holdings Proprietary Limited) is and continues to be a wholly-owned Subsidiary of the Parent and each member of the Group which becomes a Material Group Company after the date of this Agreement is a wholly or partially owned Subsidiary of the Parent and that members of the Group will hold and continue to hold at least the same percentage of the issued share capital of such Material Group Company as was held by members of the Group at the time such Subsidiary became a Material Group Company;
70 3202599488 (b) the Parent holds and continues to hold at least 74 per cent. of the issued share capital of Newshelf; (c) Newshelf holds and continues to hold at least 74 per cent. of the issued share capital of each of Gold Fields Operations Limited and GFI Joint Venture Holdings Proprietary Limited; (d) the Parent indirectly holds and continues to indirectly hold at least 50.1 per cent. of the issued share capital of each Ghanaian Company; and (e) the Parent indirectly holds and continues to indirectly hold at least 99 per cent. of the common shares in the share capital of the Cerro Corona Subsidiary (which equates to 98.5 per cent. of the issued and outstanding shares in the share capital of the Cerro Corona Subsidiary). 22.13 Sanctions (a) The Parent shall not (and shall procure that no Subsidiary will) engage in any dealings or transactions occurring in a Sanctioned Country or with any person that at the time of the dealing or transaction is the subject or the target of Sanctions or located in any Sanctioned Country. (b) The Parent shall not (and shall procure that no Subsidiary will): (i) knowingly use, contribute or otherwise make available the proceeds of any Facility for the purpose of financing or making funds available directly; or (ii) use, contribute or otherwise make available the proceeds of any Facility for the purpose of financing or making funds available indirectly, to any person which is the subject or target of any Sanctions or located in a Sanctioned Country, to the extent that such financing or provision of funds is prohibited by Sanctions. 22.14 Anti-corruption (a) No Obligor shall (and the Parent shall ensure that no Subsidiary will) directly or indirectly use the proceeds of the Facility for any purpose which would breach any applicable Anti-Corruption Laws. (b) The Parent shall (and shall ensure that each of its Subsidiaries will) maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable Anti-Corruption Laws. 22.15 Anti-Money Laundering Each Obligor acknowledges that, pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and other applicable anti-money laundering, anti-terrorist financing, and "know your client" Laws within Canada (collectively, including any guidelines or orders thereunder, "Canadian AML Legislation") the Finance Parties may be required to obtain, verify and record information regarding the Obligors, their directors, authorized signing officers, direct or indirect shareholders or other Persons in control of any Obligor, and the transactions contemplated thereby. Each Obligor shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Finance Party, or any prospective assign or participant of any Finance Party, in order to comply with any applicable Canadian AML Legislation whether now or hereafter in existence. 71 3202599488 23. EVENTS OF DEFAULT Each of the events or circumstances set out in this Clause 23 is an Event of Default (whether or not caused by any reason whatsoever outside the control of a Borrower or the Parent or any other person) save for Clauses 23.15 (Acceleration) and 23.16 (Remedy). 23.1 Non-payment An Obligor does not pay on the due date: (a) any principal amount of a Loan at the place and in the currency in which it is expressed to be payable unless payment is made within three Business Days of its due date; or (b) any other amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless payment is made within five Business Days of its due date. 23.2 Financial covenants Any requirement of Clause 21 (Financial Covenants) is not satisfied. 23.3 Other obligations Subject to Clause 23.16 (Remedy), an Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clauses 23.1 (Non-payment) and 21 (Financial Covenants)). 23.4 Misrepresentation Subject to Clause 23.16 (Remedy), any representation or statement made or deemed to be made by any Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material and adverse respect when made or deemed to be made. 23.5 Cross-default (a) Any Financial Indebtedness of a Material Group Company is not paid when due, nor where there is an applicable grace period, within the originally applicable grace period. (b) Any Financial Indebtedness of a Material Group Company is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described). (c) Any commitment for any Financial Indebtedness of a Material Group Company is cancelled or suspended by a creditor of a Material Group Company as a result of an event of default (however described). (d) Any creditor of a Material Group Company becomes entitled to declare any Financial Indebtedness of a Material Group Company due and payable prior to its specified maturity as a result of an event of default (however described). (e) No Event of Default will occur under this Clause 23.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness, falling within paragraphs (a) to (d) above is less than $100,000,000 (or its equivalent). 23.6 Insolvency (a) Any Material Group Company is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial 72 3202599488 difficulties, commences negotiations with one or more of its classes of creditors with a view to rescheduling any of its Financial Indebtedness which in the case of a Material Group Company (other than an Obligor) could reasonably be expected to have a Material Adverse Effect. (b) The value of the assets of any Material Group Company, fairly valued, is less than its liabilities (taking into account contingent and prospective liabilities) which in the case of a Material Group Company (other than an Obligor) could reasonably be expected to have a Material Adverse Effect. (c) A moratorium is declared in respect of any Financial Indebtedness of any Material Group Company. 23.7 Insolvency proceedings Any corporate action, legal proceedings or other similar procedure or step is taken in relation to: (a) the suspension of payments, a moratorium of any Financial Indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Material Group Company; (b) a composition, compromise, assignment or arrangement with any creditor or class of creditors of any Material Group Company; (c) the appointment of a liquidator, receiver, administrator, administrative receiver, judicial manager, compulsory manager, monitor, receiver and manager, interim receiver or other similar officer in respect of any Material Group Company or any of its assets; or (d) enforcement of any Encumbrance over any assets of any Material Group Company, or any analogous procedure or step is taken in any jurisdiction and any such procedure or proceedings are not contested in good faith nor discharged within 30 days (or such shorter period provided for contesting such procedure or proceedings under the laws of the relevant jurisdiction). 23.8 Creditors' process Any expropriation (other than an expropriation where fair compensation is received) or the operation of the attachment, sequestration, distress or execution affects any material asset of a Material Group Company and is not discharged within 21 days. For the purposes of this Clause 23.8, a "material asset" is any single income producing asset of the relevant Material Group Company which contributes not less than 5 per cent. towards the Consolidated EBITDA or gross assets of the Group (calculated according to the most recent set of audited consolidated financial statements delivered pursuant to Clause 20.1 (Financial statements)) provided that any loss of mineral rights arising as a result of the operation of the Mineral and Petroleum Resources Development Act, No. 28 of 2002 (the "MPRDA") (including the broad-based socio-economic empowerment charter for the mining and minerals industry, as amended, revised and/or restated (the "Mining Charter"), the Codes of Good Practice for the Minerals Industry and the Housing and Living Conditions Standard for the Minerals Industry published in accordance with the MPRDA) substantially in its current form as at the date of this Agreement and/or the operation of the Mineral and Petroleum Resources Royalty Act, No. 28 of 2008, substantially in its current form as at the date of this Agreement shall not constitute an expropriation for the purposes of this Clause 23.8. 23.9 Unlawfulness It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or such obligations cease to be legal, valid, binding or enforceable obligations. 73 3202599488 23.10 Repudiation and Unenforceability An Obligor repudiates a Finance Document or any Finance Document is declared to be or is otherwise unenforceable against an Obligor by a court of the jurisdiction of incorporation of the relevant Obligor. 23.11 Governmental Intervention By or under the authority of any government: (a) the management of any Material Group Company is wholly or partially displaced or the authority of any Material Group Company in the conduct of its business is wholly or partially taken over; or (b) all or a majority of the issued shares of any Material Group Company or material part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired. For the purposes of this Clause 23.11 "material part of its revenues or assets" shall in relation to the relevant Material Group Company be construed as revenues comprising not less than 5 per cent. of the Consolidated EBITDA or gross assets of the Group calculated mutatis mutandis in accordance with the provisions of Clause 23.8 (Creditors' process) or assets which contribute not less than 5 per cent. towards the Consolidated EBITDA or gross assets of the Group calculated mutatis mutandis accordance with the provisions of Clause 23.8 (Creditors' process), provided that neither the implementation of the MPRDA (including the Mining Charter, the Codes of Good Practice for the Minerals Industry and the Housing and Living Conditions Standard for the Minerals Industry published in accordance with the MPRDA) substantially in its current form as at the date of this Agreement nor the implementation of the Mineral and Petroleum Resources Royalty Act, No. 28 of 2008, in each case substantially in its current form as at the date of this Agreement, shall constitute a seizure, nationalisation, expropriation or compulsory acquisition as contemplated by this Clause 23.11. 23.12 Material Adverse Effect Any change occurs 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 be reasonably likely to have a Material Adverse Effect. 23.13 Cessation of Business The Group taken as a whole ceases to carry on the business which it undertakes at the date of this Agreement. 23.14 Litigation Any litigation, arbitration, administrative proceedings or governmental or regulatory investigations or proceedings against any Material Group Company or its respective assets or revenues is reasonably expected to be adversely determined, and if so determined, could reasonably be expected to have a Material Adverse Effect. 23.15 Acceleration On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders, by notice to the Borrowers and the Parent:
74 3202599488 (a) cancel each Available Commitment of each Lender whereupon each such Available Commitment shall immediately be cancelled and the Facility shall immediately cease to be available for further utilisation; (b) declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or (c) declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders. 23.16 Remedy (a) No Event of Default under this Clause 23 (other than those referred to in Clauses 23.1 (Non- payment), 23.2 (Financial covenants), 23.3 (Other obligations) (in respect of a failure by an Obligor to comply with Clause 22.13 (Sanctions) or Clause 22.14 (Anti-corruption)) and 23.4 (Misrepresentation) (in respect of a representation or statement made by an Obligor under Clause 19.21 (Sanctions) or Clause 19.22 (Anti-corruption))) will occur if the failure to comply or circumstance giving rise to the same is capable of remedy and is remedied by an Obligor within 30 days of the earlier of the Agent giving notice to the Obligors or any Obligor becoming aware of the failure to comply. (b) For the purposes of paragraph (a) above, the events or circumstances referred to in paragraphs (b) and (c) of Clause 23.5 (Cross-default), Clauses 23.6 (Insolvency), 23.7 (Insolvency proceedings), 23.8 (Creditors' process), 23.9 (Unlawfulness), 23.10 (Repudiation and Unenforceability), 23.12 (Material Adverse Effect) and 23.13 (Cessation of Business) shall be deemed to be incapable of remedy save to the extent set out therein unless the Agent (acting reasonably) determines otherwise. 23.17 Clean-up period (a) Notwithstanding any other provision of any Finance Document, but subject to paragraph (b) below, and until the Clean-up Date, any matter or circumstance that exists in respect of the Group which constitutes a Clean-Up Default will be deemed not to be a breach of representation or warranty, a breach of undertaking or an Event of Default (as the case may be) if: (i) it would have been (if it were not for this provision) a breach of representation or warranty, a breach of undertaking or an Event of Default, only by reason of circumstances relating to any member of the Target Group (or any obligation to procure or ensure in relation to a member of the Target Group); (ii) it is capable of remedy and reasonable steps are being taken to remedy it; (iii) the circumstances giving rise to it have not been procured or approved by any member of the Group, provided that, no member of the Group will be deemed to have procured or approved a Clean-Up Default as a result solely of effecting the Acquisition; and (iv) it is not reasonably likely to have a Material Adverse Effect. (b) If the relevant matter or circumstance is continuing on or after the Clean-up Date, there shall be a breach of representation or warranty, breach of undertaking or Event of Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties). 75 3202599488 SECTION 9 CHANGES TO PARTIES 24. CHANGES TO THE LENDERS 24.1 Assignments and transfers by the Lenders Subject to this Clause 24, a Lender (the "Existing Lender") may: (a) assign any of its rights; or (b) transfer by novation any of its rights and obligations, to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the "New Lender"). 24.2 Conditions of assignment or transfer (a) The consent of the Parent is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer: (i) is to another Lender or an Affiliate of a Lender (provided that, in the case of a transfer to an Affiliate during the Availability Period, if that Affiliate fails to perform its obligations under this Agreement, the Existing Lender shall be obliged to perform those obligations); or (ii) takes effect at a time when either: (A) during the Availability Period an Event of Default which is also a Major Default has occurred and is continuing; or (B) at any other time, an Event of Default has occurred and is continuing, provided that where the assignment or transfer is to a Sanctioned Lender the consent of the Parent is required in all cases. (b) Subject to paragraph (c) below, the consent of the Parent to an assignment or transfer (if required) must not be unreasonably withheld or delayed. The Parent will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Parent within that time. (c) During the Availability Period, the consent of the Parent to an assignment or transfer (if required) may be given or withheld in the Parent’s absolute discretion and shall never be deemed to have been given. (d) An assignment will only be effective on: (i) receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it had been an Original Lender; and (ii) performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender. 76 3202599488 (e) A transfer will only be effective if the procedure set out in Clause 24.5 (Procedure for transfer) is complied with. (f) If: (i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and (ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 13 (Tax Gross-up and Indemnities) or Clause 14 (Increased Costs), then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. (g) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender. 24.3 Assignment or transfer fee The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of $3,000, unless the Agent, in its sole discretion, agrees to waive the payment of such fee. 24.4 Limitation of responsibility of Existing Lenders (a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: (i) the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents; (ii) the financial condition of any Obligor; (iii) the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or (iv) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document, and any representations or warranties implied by law are excluded. (b) Each New Lender confirms to the Existing Lender and the other Finance Parties that it: (i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and 77 3202599488 (ii) will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force. (c) Nothing in any Finance Document obliges an Existing Lender to: (i) accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 24; or (ii) support any losses directly or indirectly incurred by the New Lender by reason of the non- performance by any Obligor of its obligations under the Finance Documents or otherwise. 24.5 Procedure for transfer (a) Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. (b) The 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. (c) Subject to Clause 24.9 (Pro rata interest settlement), on the Transfer Date: (i) 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"); (ii) 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; (iii) the Agent, the 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 Agent, the Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and (iv) the New Lender shall become a Party as a "Lender". 24.6 Procedure for assignment (a) Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the
78 3202599488 New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement. (b) The Agent shall only be obliged to execute an Assignment Agreement 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 assignment to such New Lender. (c) Subject to Clause 24.9 (Pro rata interest settlement), on the Transfer Date: (i) the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement; (ii) the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the "Relevant Obligations") and expressed to be the subject of the release in the Assignment Agreement; and (iii) the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations. (d) Lenders may utilise procedures other than those set out in this Clause 24.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 24.5 (Procedure for transfer), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 24.2 (Conditions of assignment or transfer). 24.7 Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Parent The Agent shall, as soon as reasonably practicable after it has executed an Increase Confirmation, Transfer Certificate or an Assignment Agreement, send to the Parent a copy of that Increase Confirmation, Transfer Certificate or Assignment Agreement. 24.8 Security over Lenders' rights In addition to the other rights provided to Lenders under this Clause 24, 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: (a) any charge, assignment or other Encumbrance to secure obligations to a federal reserve or central bank; and (b) 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: (i) 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 79 3202599488 (ii) 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. 24.9 Pro rata interest settlement (a) If the 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 24.5 (Procedure for transfer) or any assignment pursuant to Clause 24.6 (Procedure for assignment) 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): (i) 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; and (ii) the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt: (A) when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Lender; and (B) the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 24.9, have been payable to it on that date, but after deduction of the Accrued Amounts. (b) In this Clause 24.9, references to "Interest Period" shall be construed to include a reference to any other period for the accrual of fees. (c) An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 24.9 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. 24.10 Lender Affiliates and Facility Office (a) In respect of a Loan or Loans to a particular Borrower ("Designated Loans") a Lender (a "Designating Lender") may at any time and from time to time designate (by written notice to the Agent and the Parent): (i) a substitute Facility Office from which it will make Designated Loans (a "Substitute Facility Office"); or (ii) nominate an Affiliate to act as the Lender of Designated Loans (a "Substitute Affiliate Lender"). (b) A notice to nominate a Substitute Affiliate Lender must be in the form set out in Schedule 12 (Form of Substitute Affiliate Lender Designation Notice) and be countersigned by the relevant Substitute Affiliate Lender confirming it will be bound as a Lender under this Agreement in respect of the Designated Loans in respect of which it acts as Lender. 80 3202599488 (c) The Designating Lender will act as the representative of any Substitute Affiliate Lender it nominates for all administrative purposes under this Agreement. The Obligors, the Agent and the other Finance Parties will be entitled to deal only with the Designating Lender, except that payments will be made in respect of Designated Loans to the Facility Office of the Substitute Affiliate Lender. In particular the Commitments of the Designating Lender will not be treated as reduced by the introduction of the Substitute Affiliate Lender for voting purposes under this Agreement or the other Finance Documents. (d) Save as mentioned in paragraph (c) above, a Substitute Affiliate Lender will be treated as a Lender for all purposes under the Finance Documents and having a Commitment equal to the principal amount of all Designated Loans in which it is participating if and for so long as it continues to be a Substitute Affiliate Lender under this Agreement. (e) A Designating Lender may revoke its designation of an Affiliate as a Substitute Affiliate Lender by notice in writing to the Agent and the Parent provided that such notice may only take effect when there are no Designated Loans outstanding to the Substitute Affiliate Lender. Upon such Substitute Affiliate Lender ceasing to be a Substitute Affiliate Lender the Designating Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Substitute Affiliate Lender. (f) If a Designating Lender designates a Substitute Facility Office or Substitute Affiliate Lender in accordance with this Clause 24.10, the provisions of paragraph (f) of Clause 24.2 (Conditions of assignment or transfer) shall not apply to or in respect of any Substitute Facility Office or Substitute Affiliate Lender. 25. CHANGES TO THE OBLIGORS 25.1 Assignment and transfer by Obligors No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents. 25.2 Additional Borrowers (a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 20.7 ("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: (i) either: (A) that Subsidiary is a wholly-owned Subsidiary incorporated in the same jurisdiction as an existing Borrower; or (B) all the Lenders, acting reasonably, approve the addition of that Subsidiary; (ii) the Parent delivers to the Agent a duly completed and executed Accession Letter; (iii) the Parent confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and (iv) the 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 Agent. 81 3202599488 (b) The 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). (c) Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. 25.3 Resignation of an Additional Borrower (a) The Parent may request that a Borrower (other than an Original Borrower) ceases to be a Borrower by delivering to the Agent a Resignation Letter. (b) The Agent shall accept a Resignation Letter and notify the Parent and the Lenders of its acceptance if: (i) no Default is continuing or would result from the acceptance of the Resignation Letter (and the Parent has confirmed to the Agent that this is the case); and (ii) 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. 25.4 Additional Guarantors (a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 20.7 ("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; (i) the Parent delivers to the Agent a duly completed and executed Accession Letter; and (ii) the Agent has received all of the documents and other evidence listed in Part III of Schedule 2 (Conditions Precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent. (b) The 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 III of Schedule 2 (Conditions Precedent). (c) Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. 25.5 Repetition of representations Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating Representations and the representations in Clause 19.3 (Binding obligations), Clause 19.6 (Governing law and enforcement) and paragraph (b) of Clause 19.21 (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.
82 3202599488 25.6 Resignation of an Additional Guarantor (a) The Parent may request that a Guarantor (other than an Original Guarantor) ceases to be a Guarantor by delivering to the Agent a Resignation Letter. (b) The 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 Agent that this is the case. 83 3202599488 SECTION 10 THE FINANCE PARTIES 26. ROLE OF THE AGENT AND THE ARRANGER 26.1 Appointment of the Agent (a) Each other Finance Party appoints the Agent to act as its agent under and in connection with the Finance Documents. (b) Each other Finance Party authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions. (c) Each Finance Party incorporated in Germany hereby exempts the Agent from the restrictions under section 181 second alternative (multi-representation) of the German Civil Code, to the extent legally permissible. 26.2 Instructions (a) The Agent shall: (i) unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by: (A) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and (B) in all other cases, the Majority Lenders; and (ii) not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above. (b) The 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 Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested. (c) 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 Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties. (d) The 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. (e) In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders. 84 3202599488 (f) The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document. 26.3 Duties of the Agent (a) The Agent's duties under the Finance Documents are solely mechanical and administrative in nature. (b) Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party. (c) Without prejudice to Clause 24.7 (Copy of Transfer Certificate or Assignment Agreement to Parent), paragraph (a) above shall not apply to any Transfer Certificate or any Assignment Agreement. (d) Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. (e) If the 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. (f) If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties. (g) The 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). (h) The Agent shall provide to the Parent within 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 Agent to that Lender under the Finance Documents. 26.4 Role of the Arranger Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document. 26.5 No fiduciary duties (a) Nothing in any Finance Document constitutes the Agent or the Arranger as a trustee or fiduciary of any other person. (b) Neither the Agent nor the 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. 85 3202599488 26.6 Business with the Group The Agent and the 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. 26.7 Rights and discretions (a) The Agent may: (i) rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; (ii) assume that: (A) 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 (B) unless it has received notice of revocation, that those instructions have not been revoked; and (iii) rely on a certificate from any person: (A) as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or (B) to the effect that such person approves of any particular dealing, transaction, step, action or thing, (iv) as sufficient evidence that that is the case and, in the case of paragraph (iii)(A) above, may assume the truth and accuracy of that certificate. (b) The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: (i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (Non-payment)); (ii) any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and (iii) any notice or request made by the Parent (other than a Utilisation Request or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors. (c) The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts. (d) Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary. (e) The 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 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.
86 3202599488 (f) The Agent may act in relation to the Finance Documents through its officers, employees and agents. (g) Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement. (h) Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the 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. (i) Notwithstanding any provision of any Finance Document to the contrary, the 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. (j) Without prejudice to the generality of paragraph (g) above, the 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. 26.8 Responsibility for documentation Neither the Agent nor the Arranger is responsible or liable for: (a) the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the 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; (b) 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 (c) 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. 26.9 No duty to monitor The Agent shall not be bound to enquire: (a) whether or not any Default has occurred; (b) as to the performance, default or any breach by any Party of its obligations under any Finance Document; or (c) whether any other event specified in any Finance Document has occurred. 26.10 Exclusion of liability (a) Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent will not be liable for: (i) 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 87 3202599488 with any Finance Document, unless directly caused by its gross negligence or wilful misconduct; (ii) 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 (iii) without prejudice to the generality of paragraphs (i) and (ii) 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 Agent) arising as a result of: (A) any act, event or circumstance not reasonably within its control; or (B) 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. (b) No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the 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 Agent may rely on this paragraph (b) subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act. (c) The 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 Agent if the 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 Agent for that purpose. (d) Nothing in this Agreement shall oblige the Agent or the Arranger to carry out: (i) any "know your customer" or other checks in relation to any person; or (ii) 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 Agent and the 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 Agent or the Arranger. (e) Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the 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 Agent or, if later, the date on which the loss arises as a result of such 88 3202599488 default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the 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 Agent has been advised of the possibility of such loss or damages. 26.11 Lenders' indemnity to the 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 Agent, within 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 Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 29.11 (Disruption to payment systems etc.), notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document). 26.12 Resignation of the Agent (a) The Agent may resign and appoint one of its Affiliates acting through an office in the same jurisdiction as its existing office as successor by giving notice to the other Finance Parties and the Parent. (b) Alternatively the 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 Agent. (c) If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the Agent (after consultation with the Parent) may appoint a successor Agent (acting through an office in the same jurisdiction as the retiring Agent). (d) If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent amendments to this Clause 26 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 Agent with the Lenders) and those amendments will bind the Parties. (e) The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. (f) The Agent's resignation notice shall only take effect upon the appointment of a successor. (g) Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) 89 3202599488 above) but shall remain entitled to the benefit of Clause 15.3 (Indemnity to the Agent) and this Clause 26 (and any agency fees for the account of the retiring 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. (h) After consultation with the Parent, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above. (i) The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either: (i) the Agent fails to respond to a request under Clause 13.8 (FATCA information) and the Parent or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; (ii) the information supplied by the Agent pursuant to Clause 13.8 (FATCA information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or (iii) the Agent notifies the Parent and the Lenders that the 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 Agent were a FATCA Exempt Party, and the Parent or that Lender, by notice to the Agent, requires it to resign. 26.13 Replacement of the Agent (a) At any time the Agent is an Impaired Agent, the Majority Lenders may, after consultation with the Parent, by giving notice to the Agent replace the Agent by appointing a successor Agent (acting through an office in the same jurisdiction as the retiring Agent). (b) The retiring Agent shall (at its own cost) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. (c) The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of this Clause 26 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). (d) Any successor 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. 26.14 Confidentiality (a) In acting as agent for the Finance Parties, the 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.
90 3202599488 (b) If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it. 26.15 Relationship with the Lenders (a) Subject to Clause 24.9 (Pro rata interest settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office: (i) entitled to or liable for any payment due under any Finance Document on that day; and (ii) 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, unless it has received not less than five Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement. (b) Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address and (where communication by electronic mail or other electronic means is permitted under Clause 33.6 (Electronic communication)) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address electronic mail address, department and officer by that Lender for the purposes of Clause 33.2 (Addresses) and paragraph (a)(ii) of Clause 33.6 (Electronic communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender. 26.16 Credit appraisal by the Lenders Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to: (a) the financial condition, status and nature of each member of the Group; (b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; (c) whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by 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; and (d) the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, 91 3202599488 arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document. 26.17 Deduction from amounts payable by the Agent If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted. 26.18 Reliance and engagement letters Each Finance Party confirms that the Arranger and the Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Arranger or Agent) the terms of any reliance letter or engagement letters relating to any reports or letters provided by accountants in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect of those reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters. 27. CONDUCT OF BUSINESS BY THE FINANCE PARTIES Except to the extent provided under Clauses 13.7 (Reduction of Indemnified Taxes) and 13.8 (FATCA information), no provision of this Agreement will: (a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; (b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or (c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax. 28. SHARING AMONG THE FINANCE PARTIES 28.1 Payments to Finance Parties If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 29 (Payment Mechanics) (a "Recovered Amount") and applies that amount to a payment due under the Finance Documents, then: (a) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent; (b) the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 29 (Payment Mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and (c) the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance 92 3202599488 Party as its share of any payment to be made, in accordance with Clause 29.6 (Partial payments). 28.2 Redistribution of payments The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the "Sharing Finance Parties") in accordance with Clause 29.6 (Partial payments) towards the obligations of that Obligor to the Sharing Finance Parties. 28.3 Recovering Finance Party's rights On a distribution by the Agent under Clause 28.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor. 28.4 Reversal of redistribution If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then: (a) each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and (b) as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor. 28.5 Exceptions (a) This Clause 28 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause 28, have a valid and enforceable claim against the relevant Obligor. (b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: (i) it notified that other Finance Party of the legal or arbitration proceedings; and (ii) that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings. 93 3202599488 SECTION 11 ADMINISTRATION 29. PAYMENT MECHANICS 29.1 Payments to the Agent (a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment. (b) Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Agent specifies. 29.2 Distributions by the Agent Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clauses 29.3 (Distributions to an Obligor), 29.4 (Clawback) and 26.17 (Deduction from amounts payable by the Agent) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days' notice with a bank in the principal financial centre of the country of that currency. 29.3 Distributions to an Obligor The Agent may (with the consent of the Obligor or in accordance with Clause 32 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied. 29.4 Clawback (a) Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum. (b) Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds. (c) If the Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower: (i) the Agent shall notify the Parent of that Lender's identity and the Borrower to whom that sum was made available shall on demand refund it to the Agent; and (ii) the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the
94 3202599488 Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender. 29.5 Impaired Agent (a) If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 29.1 (Payments to the Agent) may instead either: (i) pay that amount direct to the required recipient(s); or (ii) if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or a relevant part of that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the "Paying Party") and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents (the "Recipient Party" or "Recipient Parties"). (b) All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements. (c) A Party which has made a payment in accordance with this Clause 29.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account. (d) Promptly upon the appointment of a successor Agent in accordance with Clause 26.13 (Replacement of the Agent), each Paying Party shall (other than to the extent that Party has given an instruction pursuant to paragraph (e) below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 29.2 (Distributions by the Agent). (e) A Paying Party shall, promptly upon request by a Recipient Party and to the extent: (i) that it has not given an instruction pursuant to paragraph (d) above; and (ii) that it has been provided with the necessary information by that Recipient Party, give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party. 29.6 Partial payments (a) If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order: (i) first, in or towards payment pro rata of any unpaid amount owing to the Agent and the Arranger under the Finance Documents; (ii) secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement; 95 3202599488 (iii) thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and (iv) fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. (b) The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above. (c) Paragraphs (a) and (b) above will override any appropriation made by an Obligor. 29.7 No set-off by Obligors All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. 29.8 Business Days (a) Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). (b) During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date. 29.9 Currency of account (a) Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document. (b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated, pursuant to this Agreement, on its due date. (c) Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued. (d) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. (e) Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency. 29.10 Change of currency (a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: (i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Parent); and (ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably). 96 3202599488 (b) If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Parent) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency. 29.11 Disruption to payment systems etc. If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Parent that a Disruption Event has occurred: (a) the Agent may, and shall if requested to do so by the Parent, consult with the Parent with a view to agreeing with the Parent such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances; (b) the Agent shall not be obliged to consult with the Parent in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; (c) the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances; (d) any such changes agreed upon by the Agent and the Parent shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 37 (Amendments and Waivers); (e) the Agent shall not be liable for any damages, costs or losses to any person, any diminution of value or liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 29.11; and (f) the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above. 29.12 Amounts paid in error (a) If the Agent pays an amount to another Finance Party and within five Business Days of the date of payment the Agent notifies that Finance Party that such payment was an Erroneous Payment then the Finance Party to whom that amount was paid by the Agent shall on demand refund the same to the Agent. (b) Neither: (i) the obligations of any Finance Party to the Agent; nor (ii) the remedies of the Agent, (whether arising under this Clause 29.12 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission matter or thing which, but for this paragraph (b), would reduce, release or prejudice any such obligation or remedy (whether or not known by the Agent or any other Party). 97 3202599488 (c) All payments to be made by a Finance Party to the Agent (whether made pursuant to this Clause 29.12 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. (d) In this Agreement, "Erroneous Payment" means a payment of an amount by the Agent to another Finance Party which the Agent determines (in its sole discretion) was made in error. 30. SANCTIONED FINANCE PARTY (a) Notwithstanding anything to the contrary in any Finance Document, none of the events or circumstances set out in Clause 23 (Events of Default) (other than Clause 23.3 (Other obligations) (in relation to a breach of Clause 22.1 (Authorisations) and Clause 22.9 (Claims pari passu) only) and Clause 23.4 (Misrepresentation) (in relation to a misrepresentation under Clause 19.5 (Validity and admissibility in evidence) only)) shall constitute an Event of Default or (for the purposes of Clause 4.2 (Further conditions precedent) only) a Default, if the event or circumstance arises solely as a result of a Finance Party being a Sanctioned Finance Party, provided that, where that Finance Party ceases to be a Sanctioned Finance Party, this paragraph shall cease to apply in respect of the relevant event or circumstances: (i) other than where paragraph (ii) or (iii) below applies, if the relevant event or circumstance is then continuing, immediately on the date on which the relevant Finance Party has ceased to be a Sanctioned Finance Party; (ii) in respect of any non-payment of a Relevant Amount (as defined below), immediately following the latest date on which the relevant Borrower must comply with its obligations under paragraph (d) below; or (iii) in respect of any non-compliance with an obligation to deliver any document, notice or other information, if the relevant obligation has not be complied with promptly following the date on which the Parent becomes aware that the Finance Party has ceased to be Sanctioned Finance Party. (b) Unless otherwise agreed in writing by the Parent or permitted by paragraph (c) below, and notwithstanding anything to the contrary in any Finance Document, no interest, fees or other amounts shall be payable or repayable (and, for the avoidance of doubt, no breach, Default or Event of Default shall occur and no default interest shall accrue as a result of any failure by a member of the Group to pay any amount that would otherwise be due and payable (a "Relevant Amount")) in respect of any Lender's Commitment or participation in any Loan whilst that Lender is a Sanctioned Lender. For the avoidance of doubt, notwithstanding any suspension of any obligation to pay any Relevant Amount pursuant to this paragraph (b), such Relevant Amount shall remain owing to the relevant Lender until such Relevant Amount has been paid to that Lender in accordance with this Clause 30, provided that no interest, fees or other amounts shall accrue in relation to any Relevant Amount relating to a Sanctioned Lender's participation in a Loan after the date on which all amounts in respect of that Loan due to the Lenders that are not Sanctioned Lenders have been repaid in full. (c) On the date on which, but for paragraph (b) above, a Relevant Amount would have been due and payable by a Borrower, that Borrower shall promptly deposit (or procure that an Obligor deposits) such Relevant Amount in a segregated interest-bearing account (a "Segregated Account") held with an Acceptable Bank and shall maintain (or procure that an Obligor maintains) such amount
98 3202599488 in such account unless and until such amount is required to be applied in accordance with paragraph (d) below, provided that: (i) neither the Parent nor any Borrower is obliged to obtain any particular rate of interest in respect of a Segregated Account; and (ii) no Obligor shall be deemed to have an overdue payment obligation in respect of a Relevant Amount once that Relevant Amount has been deposited into a Segregated Account. (d) If a Lender ceases to be a Sanctioned Lender, the applicable Borrower shall pay (or procure that an Obligor pays) to that Lender any Relevant Amounts which remain unpaid (together with any accrued interest standing to the credit of a Segregated Account) by the date falling 10 Business Days after the later of: (i) the date on which such Lender has notified the Agent and the Parent that it has ceased to be a Sanctioned Lender; and (ii) the date on which the Parent is satisfied, acting reasonably and promptly and having obtained appropriate legal advice, that such Lender has ceased to be a Sanctioned Lender. (e) No Party shall be required to take any action with respect to, or provide any information to, or otherwise deal with, a Sanctioned Finance Party to the extent to do so is, or might reasonably be expected to be, prohibited by or contrary to applicable Sanctions. (f) Each Original Lender and the Agent confirms that it is not a Sanctioned Finance Party as at the date of this Agreement. (g) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms that it is not a Sanctioned Lender as at the date of that Transfer Certificate or Assignment Agreement (or would not be a Sanctioned Lender if the Transfer Date were to occur on that date). (h) Each Lender shall notify the Agent promptly upon it becoming a Sanctioned Lender, and the Agent shall notify the Parent promptly upon receiving such notification. (i) The Agent shall notify each other Party promptly upon it becoming a Sanctioned Agent. (j) To the extent that the Parent complies with its obligations under this Clause 30, including, without limitation, the obligations under paragraphs (c) and (d) above, it shall (without prejudice to the Parent's obligations to repay (or procure the repayment of) any amounts in accordance with paragraph (d) above) be deemed to have discharged its payment obligations in respect of a Relevant Amount for all purposes under this Agreement. (k) The provisions of this Clause 30 shall survive the occurrence of the Termination Date or any repayment of amounts due to the Lenders that are not Sanctioned Lenders. 31. BLOCKING LAWS Any provision of Clause 19.21 (Sanctions), Clause 22.13 (Sanctions) or Clause 30 (Sanctioned Finance Party) and any other provision of this Agreement which relates to a Defaulting Lender under paragraph (c) of that definition or an Impaired Agent under paragraph (d) of that definition shall not apply to (or for the benefit of) any person if and to the extent that it is or would be unenforceable by or in respect of that person, by reason of breach of any applicable Blocking Law 99 3202599488 or its application would otherwise constitute a breach by that person of any applicable Blocking Law. 32. SET-OFF Following an Event of Default which is continuing, a Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. 33. NOTICES 33.1 Communications in writing Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by email or letter. 33.2 Addresses The address and email address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is: (a) in the case of the Parent: Address: 150 Helen Road Sandown Sandton 2196 South Africa Email address: alex.dall@goldfields.com Attn: Alex Dall, Interim Chief Financial Officer (b) in the case of each Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and (c) in the case of the Agent, that identified below, Address: The Bank of Nova Scotia 201 Bishopsgate, 6th Floor London EC2M 3NS United Kingdom Email address: CorporateLending.LoanAgencyOpsUK@scotiabank.com and CBUKLONNATRES@scotiabank.com Attn: Lorenzo Ravelli, Peter Early, Shahdia Hossein or any substitute address or email address or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days' notice. 100 3202599488 33.3 Delivery (a) Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective: (i) if by way of email, when sent provided that the sender has not received a message that the email has not been received by the recipient; or (ii) if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, and, if a particular department or officer is specified as part of its address details provided under Clause 33.2 (Addresses), if addressed to that department or officer. (b) Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified in paragraph (c) of Clause 33.2 (Addresses) (or any substitute department or officer as the Agent shall specify for this purpose). (c) All notices from or to an Obligor shall be sent through the Agent. (d) Any communication or document made or delivered to the Parent in accordance with this Clause 33.3 will be deemed to have been made or delivered to each of the Obligors. 33.4 Notification of address and email address Promptly upon receipt of notification of an address and email address or change of address or email address pursuant to Clause 33.2 (Addresses) or changing its own address or email address, the Agent shall notify the other Parties. 33.5 Communication when Agent is Impaired Agent If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed. 33.6 Electronic communication (a) Any communication or document to be made or delivered by one Party to another under or in connection with the Finance Documents may be made or delivered by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties: (i) notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and (ii) notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice. (b) Any such electronic communication or delivery as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication or delivery. 101 3202599488 (c) Any such electronic communication or document as specified in paragraph (a) above made or delivered by one Party to another will be effective only when actually received in readable form and in the case of any electronic communication or document made or delivered by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose. (d) In accordance with paragraph (b) above, each of the Agent and the Lender agree, for the purposes of the delivery by any Borrower of a Utilisation Request pursuant to Clause 5.1 (Delivery of a Utilisation Request) (and without prejudice to any of the requirements of Clause 5.2 (Completion of a Utilisation Request)): (i) electronic mail is unless and until notified to the contrary, an accepted form of communication; and (ii) the electronic email address of the Agent for this purpose is CorporateLending.LoanAgencyOpsUK@scotiabank.com. 33.7 English language (a) Any notice given under or in connection with any Finance Document must be in English. (b) All other documents provided under or in connection with any Finance Document must be: (i) in English; or (ii) if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. 33.8 Obligor agent (a) Each Obligor (other than the Parent) by its execution of this Agreement or an Accession Letter (as the case may be) irrevocably appoints the Parent to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises: (i) the Parent on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any documents required hereunder and to make such agreements capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and (ii) each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Parent on its behalf, and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made such agreements or received the relevant notice, demand or other communication. (b) Every act, agreement, undertaking, settlement, waiver, notice or other communication given or made by the Parent or given to the Parent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Parent and any other Obligor, those of the Parent shall prevail.
102 3202599488 34. CALCULATIONS AND CERTIFICATES 34.1 Accounts In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate. 34.2 Certificates and determinations Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates. 34.3 Day count convention (a) Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest, commission or fee is calculated: (i) on the basis of the actual number of days elapsed and in the case of all currencies other than Canadian Dollars, a year of 360 days or in the case of Canadian Dollars, a year of 365 days (or, in any case where the practice in the Relevant Market differs, in accordance with that market practice); and (ii) subject to paragraph (b) below, without rounding. (b) The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by an Obligor under a Finance Document shall be rounded to two (2) decimal places. 35. PARTIAL INVALIDITY If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired. 36. REMEDIES AND WAIVERS No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law. 37. AMENDMENTS AND WAIVERS 37.1 Required consents (a) Subject to Clause 37.2 (Other exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Parent and any such amendment or waiver will be binding on all Parties. (b) The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 37. (c) Paragraph (c) of Clause 24.9 (Pro rata interest settlement) shall apply to this Clause 37. 103 3202599488 37.2 Other exceptions (a) Subject to Clause 37.7 (Changes to reference rates), an amendment or waiver that has the effect of changing or which relates to: (i) the definition of "Majority Lenders" in Clause 1.1 (Definitions); (ii) an extension to the date of payment of any amount under the Finance Documents; (iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable; (iv) an increase in any Commitment or an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the commitments of the lenders rateably under the Facility; (v) a change to the Borrowers or Guarantors (other than in accordance with Clause 25 (Changes to the Obligors)); (vi) any provision which expressly requires the consent of all the Lenders; or (vii) Clause 2.2 (Finance Parties' rights and obligations), Clause 8.8 (Application of prepayments), Clause 18 (Guarantee and Indemnity), Clause 24 (Changes to the Lenders) or this Clause 37, shall not be made without the prior consent of all the Lenders. (b) An amendment or waiver which relates to the rights or obligations of the Agent or the Arranger may not be effected without the consent of (as applicable) the Agent or the Arranger, as the case may be. 37.3 Excluded Commitments If: (a) any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders under the terms of this Agreement within 10 Business Days of that request being made; or (b) any Lender which is not a Defaulting Lender fails to respond to such a request or such a vote within 10 Business Days of that request being made, (unless, in either case, the Parent and the Agent agree to a longer time period in relation to any request): (i) its Commitment(s) shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request; and (ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. 37.4 Replacement of Lender (a) If any Lender becomes a Non-Consenting Lender (as defined in below) then the Parent may, on 10 Business Days' prior written notice to the Agent and such Lender, replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant 104 3202599488 to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (a "Replacement Lender, which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest (to the extent that the Agent has not given a notification under Clause 24.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents. (b) The replacement of a Lender pursuant to this Clause 37.4 shall be subject to the following conditions: (i) the Parent shall have no right to replace the Agent; (ii) neither the Agent nor the Lender shall have any obligation to the Parent to find a Replacement Lender; (iii) such replacement must take place no later than 60 days after the date on which that Lender is deemed a Non-Consenting Lender; (iv) in no event shall the Lender replaced under this Clause 37.4 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and (v) the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) 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 paragraph (a) above and shall notify the Agent and the Parent when it is satisfied that it has complied with those checks. (c) In the event that: (i) the Parent or the Agent (at the request of the Parent) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents; (ii) the consent, waiver or amendment in question requires the approval of all the Lenders; and (iii) Lenders whose Commitments aggregate more than 85 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 85 per cent. of the Total Commitments prior to that reduction) have consented or agreed to such waiver or amendment, then any Lender who does not and continues not to consent or agree to such waiver or amendment shall be deemed a "Non-Consenting Lender". 37.5 Disenfranchisement of Defaulting Lenders (a) For so long as a Defaulting Lender has any Available Commitment, in ascertaining: 105 3202599488 (i) the Majority Lenders; or (ii) whether: (A) any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or (B) the agreement of any specified group of Lenders, has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender's Commitments under the Facility will be reduced by the amount of its Available Commitments and, to the extent that that reduction results in that Defaulting Lender's Total Commitments being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii) above. (b) For the purposes of this Clause 37.5, the Agent may assume that the following Lenders are Defaulting Lenders: (i) any Lender which has notified the Agent that it has become a Defaulting Lender; (ii) any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraph (a), (b), (c) or (d) of the definition of "Defaulting Lender" has occurred, unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender. 37.6 Replacement of a Defaulting Lender (a) The Parent may, at any time a Lender has become and continues to be a Defaulting Lender, by giving five Business Days' prior written notice to the Agent and such Lender: (i) replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement; or (ii) require such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of the undrawn Commitment of the Lender, to an Eligible Institution which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (a "Replacement Lender"), and which (unless the Agent is an Impaired Agent) is acceptable to the Agent (acting reasonably), which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) (including the assumption of the transferring Lender's participations or unfunded participations (as the case may be) on the same basis as the transferring Lender), for a purchase price in cash payable at the time of the transfer equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest (subject to any notice having been given by the Agent under Clause 24.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.
106 3202599488 (b) Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 37 shall be subject to the following conditions: (i) the Parent shall have no right to replace the Agent; (ii) neither the Agent nor the Defaulting Lender shall have any obligation to the Parent to find a Replacement Lender; (iii) the transfer must take place no later than five days after the notice referred to in paragraph (a) above; (iv) 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 (v) the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) 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 to the Replacement Lender. (c) The Defaulting Lender shall perform the checks described in paragraph (b)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Parent when it is satisfied that it has complied with those checks. 37.7 Changes to reference rates (a) Subject to Clause 37.2 (Other exceptions), if an RFR Replacement Event has occurred in relation to an RFR for a currency which can be selected for a Loan, any amendment or waiver which relates to: (i) providing for the use of a Replacement Reference Rate in relation to that currency in place of an RFR; and (ii) (A) aligning any provision of any Finance Document to the use of that Replacement Reference Rate; (B) enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this Agreement); (C) implementing market conventions applicable to that Replacement Reference Rate; (D) providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or (E) adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation), 107 3202599488 may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Parent. (b) If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 10 Business Days (or such longer time period in relation to any request which the Parent and the Agent may agree) of that request being made: (i) its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the Facility when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and (ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. (c) In this Clause 37.7: "Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board. "Replacement Reference Rate" means a reference rate which is: (i) formally designated, nominated or recommended as the replacement for an RFR by: (A) the administrator of that RFR (provided that the market or the economic reality that such reference rate measures is the same as that measured by that RFR); or (B) any Relevant Nominating Body, and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs (A) and (B) above, the "Replacement Reference Rate" will be the replacement under paragraph (B) above; (ii) in the opinion of the Majority Lenders and the Parent, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to an RFR; or (iii) in the opinion of the Majority Lenders and the Parent, an appropriate successor to an RFR. "RFR Replacement Event" means, in relation to an RFR: (i) the methodology, formula or other means of determining that RFR has, in the opinion of the Majority Lenders and the Parent materially changed; (ii) (A) (1) the administrator of that RFR or its supervisor publicly announces that such administrator is insolvent; or (2) information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that RFR is insolvent, 108 3202599488 provided that, in each case, at that time, there is no successor administrator to continue to provide that RFR; (B) the administrator of that RFR publicly announces that it has ceased or will cease to provide that RFR permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that RFR; (C) the supervisor of the administrator of that RFR publicly announces that such RFR has been or will be permanently or indefinitely discontinued; (D) the administrator of that RFR or its supervisor announces that that RFR may no longer be used; or (iii) the administrator of that RFR determines that that RFR should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either: (A) the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Parent) temporary; or (B) that RFR is calculated in accordance with any such policy or arrangement for a period no less than the period specified as the "RFR Contingency Period" in the Reference Rate Terms relating to that RFR; or (iv) in the opinion of the Majority Lenders and the Parent, that RFR is otherwise no longer appropriate for the purposes of calculating interest under this Agreement. 38. CONFIDENTIAL INFORMATION 38.1 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 38.2 (Disclosure of Confidential Information) and Clause 38.3 (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. 38.2 Disclosure of Confidential Information Any Finance Party may disclose: (a) 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 paragraph (a) 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; (b) to any person: (i) 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 109 3202599488 which succeeds (or may potentially succeed) it as Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives, professional advisers, insurers, insurance brokers, direct or indirect providers of credit protection and service providers; (ii) 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; (iii) appointed by any Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) 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 paragraph (b) of Clause 26.15 (Relationship with the Lenders)); (iv) who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above; (v) 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; (vi) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates any Encumbrance (or may do so) pursuant to Clause 24.8 (Security over Lenders' rights); (vii) 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; (viii) who is a Party; or (ix) with the consent of the Parent; in each case, such Confidential Information as that Finance Party shall consider appropriate if: (A) in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) 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; (B) in relation to paragraph (b)(iv) 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;
110 3202599488 (C) in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) 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; (c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) 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 paragraph (c) 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 for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Parent and the relevant Finance Party; and (d) 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. 38.3 Disclosure to numbering service providers (a) 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: (i) names of Obligors; (ii) country of domicile of Obligors; (iii) place of incorporation of Obligors; (iv) date of this Agreement; (v) the names of the Agent and the Arranger; (vi) date of each amendment and restatement of this Agreement; (vii) the amounts and names of the Facility (and any tranches); (viii) amount of Total Commitments; (ix) currencies of the Facility; (x) type of Facility; (xi) Clause 41 (Governing Law); (xii) ranking of Facility; (xiii) Termination Date for the Facility; (xiv) changes to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above; and (xv) such other information agreed between such Finance Party and the Parent, 111 3202599488 to enable such numbering service provider to provide its usual syndicated loan numbering identification services. (b) 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. (c) Each Obligor represents that none of the information set out in paragraphs (a)(i) to (a)(xv) above is, nor will at any time be, unpublished price-sensitive information. (d) The Agent shall notify the Parent and the other Finance Parties of: (i) the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and (ii) 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. 38.4 Entire agreement This Clause 38 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. 38.5 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. 38.6 Notification of disclosure Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Parent: (a) of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 38.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and (b) upon becoming aware that Confidential Information has been disclosed in breach of this Clause 38. 38.7 Continuing obligations The obligations in this Clause 38 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of: (a) 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 (b) the date on which such Finance Party otherwise ceases to be a Finance Party. 112 3202599488 39. CONFIDENTIALITY OF FUNDING RATES 39.1 Confidentiality and disclosure (a) The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below. (b) The Agent may disclose: (i) any Funding Rate to the relevant Borrower pursuant to Clause 9.6 (Notifications); and (ii) any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender. (c) The Agent and each Obligor may disclose any Funding Rate to: (i) any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it 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 that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it; (ii) any person 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 if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; (iii) any person 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 if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and (iv) any person with the consent of the relevant Lender. 39.2 Related obligations (a) The Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose. 113 3202599488 (b) The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender: (i) of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 39.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and (ii) upon becoming aware that any information has been disclosed in breach of this Clause 39. 39.3 No Event of Default No Event of Default will occur under Clause 23.3 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 39. 40. COUNTERPARTS Each Finance Document 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 the Finance Document.
114 3202599488 SECTION 12 GOVERNING LAW AND ENFORCEMENT 41. GOVERNING LAW This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. 42. ENFORCEMENT 42.1 Jurisdiction (a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with it) (a "Dispute"). (b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. (c) Notwithstanding paragraphs (a) and (b) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions. 42.2 Service of process Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales): (a) irrevocably appoints Law Debenture Corporate Services Limited as its agent for service of process (in the case of an Obligor incorporated in South Africa, domicilium citandi et executandi) in relation to any proceedings before the English courts in connection with any Finance Document; and (b) agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned. 43. BAIL-IN 43.1 Contractual recognition of bail-in Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of: (a) any Bail-In Action in relation to any such liability, including (without limitation): (i) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; (ii) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and (iii) a cancellation of any such liability; and 115 3202599488 (b) a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability. 43.2 Bail-in definitions In this Clause 43: "Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms. "Bail-In Action" means the exercise of any Write-down and Conversion Powers. "Bail-In Legislation" means: (a) in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; (b) in relation to the United Kingdom, the UK Bail-In Legislation; and (c) in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation. "EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway. "EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time. "Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers. "UK Bail-In Legislation" means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings). "Write-down and Conversion Powers" means: (a) in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; (b) in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail- In Legislation that are related to or ancillary to any of those powers; and 116 3202599488 (c) in relation to any other applicable Bail-In Legislation: (i) any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that Bail-In Legislation. 44. US QFC RULES To the extent that the Finance Documents provide support, through a guarantee or otherwise, for any hedging agreement or any other agreement or instrument that is a QFC (such support, "QFC Credit Support", and each such QFC, a "Supported QFC"), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in respect of such Supported QFC and QFC Credit Support: (a) In the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party") becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. (b) As used in this Clause 44, the following terms have the following meanings: "BHC Act Affiliate" of a party means an "affiliate" (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. "Covered Entity" means any of the following: 117 3202599488 (i) a "covered entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a "covered bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a "covered FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). "Default Right" has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. "QFC" has the meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
118 3202599488 SCHEDULE 1 THE ORIGINAL PARTIES PART I THE OBLIGORS Name of Original Borrower Registration number (or equivalent, if any) Gold Fields Orogen Holding (BVI) Limited, incorporated in the British Virgin Islands 184982 Gold Fields Windfall Holdings Inc./Gestion Gold Fields Windfall Inc., incorporated under the laws of the Province of Ontario, Canada 1000516306 Name of Original Guarantors Registration number (or equivalent, if any) Gold Fields Limited, incorporated in South Africa 1968/004880/06 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 Gold Fields Windfall Holdings Inc./Gestion Gold Fields Windfall Inc., incorporated under the laws of the Province of Ontario, Canada 1000516306 119 3202599488 PART II THE ARRANGER Names of Arranger Citibank, N.A., London Branch Royal Bank of Canada The Bank of Nova Scotia 120 3202599488 PART III THE ORIGINAL LENDERS Name of Original Lender Commitment (US$) The Bank of Nova Scotia, London Branch 166,666,666.67 Royal Bank of Canada 106,666,666.67 RBC Europe Limited 60,000,000.00 Citibank, N.A., Jersey Branch 166,666,666.66 500,000,000.00 121 3202599488 SCHEDULE 2 CONDITIONS PRECEDENT PART I CONDITIONS PRECEDENT TO INITIAL UTILISATION 1. Obligors (a) A copy of the Constitutional Documents of each Obligor. (b) A copy of a good standing certificate with respect to Gold Fields Holdings Company Limited and Gold Fields Orogen Holding (BVI) Limited, issued as of a recent date by the Registrar of Corporate Affairs in the British Virgin Islands. (c) A copy of a resolution of the board of directors (and, if necessary under the laws of its jurisdiction of incorporation, the shareholders) of each Obligor: (i) 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; (ii) authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and (iii) authorising a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Utilisation Request and Selection Notice) to be signed and/or dispatched by it under or in connection with the Finance Documents to which it is a party. (d) A specimen of the signature of each person authorised by the resolution referred to in paragraph (c) above. (e) A certificate of incumbency from the registered agent for Gold Fields Holdings Company Limited and Gold Fields Orogen Holding (BVI) Limited. (f) A copy of the resolution of the shareholders of Gold Fields Holdings Company Limited and Gold Fields Orogen Holding (BVI) Limited approving the relevant resolutions of the board of directors and the transactions contemplated thereby. (g) A certificate of the Obligors (signed by a director) confirming that 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 each Obligor to whom the Companies Act 2008 of South Africa applies the requirements of section 45 of such Act has been complied with and each certificate shall have annexed to it the copies of the relevant resolutions, notices and statements. (h) 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 date of this Agreement. (i) A certificate of GF Windfall confirming that:
122 3202599488 (i) the conditions precedent (other than payment of the purchase price) to the Acquisition in the Arrangement Agreement have been satisfied (or waived in a manner that is not materially adverse to the interests of the Finance Parties taken as a whole); and (ii) the Arrangement Agreement has not been and, on or before the first Utilisation Date, shall not have been terminated or otherwise amended, varied, or waived in any manner that would reasonably be expected to be materially adverse to the interests of the Finance Parties taken as a whole, as compared to the latest version of the Arrangement Agreement provided to the Arranger prior to the signing of the Mandate Letter. 2. Legal opinions (a) A legal opinion of Clifford Chance LLP legal advisers to the Arranger and the Agent in England, substantially in the form distributed to the Original Lenders prior to signing this Agreement. (b) A legal opinion of Conyers Dill & Pearman, legal advisers to the Arranger and Agent in the British Virgin Islands, substantially in the form distributed to the Original Lenders prior to signing this Agreement. (c) A legal opinion of Edward Nathan Sonnenbergs, legal advisers to the Arranger and Agent in South Africa, substantially in the form distributed to the Original Lenders prior to signing this Agreement. (d) A legal opinion of McCarthy Tétrault LLP, legal advisers to the Obligors in Canada, substantially in the form distributed to the Lenders prior to signing this Agreement. 3. Other documents and evidence (a) Evidence that any agent for service of process referred to in Clause 42.2 (Service of process) has accepted its appointment. (b) The Original Financial Statements for the Parent. (c) An executed copy of the Arrangement Agreement (together with the plan of arrangement attached as Schedule A thereto) provided that each Lender at the date of this Agreement shall be deemed to have irrevocably confirmed that the Arrangement Agreement (including the plan of arrangement attached as Schedule A thereto) received on the date of the Mandate Letter is in form and substance satisfactory to the Agent. (d) Evidence that the fees then due (but only to the extent then due) from a Borrower pursuant to Clause 12 (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 Agent to deduct these from the proceeds of the first Utilisation). (e) A copy of the approval of the Financial Surveillance Department of the South African Reserve Bank confirming that the Parent may enter into and provide the guarantee as contemplated by 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 Parent acknowledge in writing to each other that such conditions are acceptable. (f) Completion by each Lender of all applicable "know your customer" checks. 123 3202599488 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: (a) approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter; (b) authorising a specified person or persons to execute the Accession Letter on its behalf; and (c) 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 or Selection Notice) 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 2008 of South Africa applies the requirements of Section 45 of such Act has 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 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 124 3202599488 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. 11. If available, the latest audited financial statements of the Additional Borrower. 12. A legal opinion from legal advisers to the Agent in England. 13. If the Additional Borrower is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Arranger and the Agent in the jurisdiction in which the Additional Borrower is incorporated. 14. If the proposed Additional Borrower is incorporated in a jurisdiction other than England and Wales, evidence that the agent for service of process specified in Clause 42.2 (Service of process) has accepted its appointment in relation to the proposed Additional Borrower. 125 3202599488 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: (a) approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter; (b) authorising a specified person or persons to execute the Accession Letter on its behalf; and (c) 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 2008 of South Africa applies the requirements of section 45 of such Act has 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 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 Agent in England.
126 3202599488 13. If the Additional Guarantor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Agent in the jurisdiction in which the Additional Guarantor is incorporated. 14. If the Additional Guarantor is incorporated in a jurisdiction other than England and Wales, evidence that the agent for service of process specified in Clause 42.2 (Service of process) has accepted its appointment in relation to the proposed Additional Guarantor. 15. 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. 127 3202599488 SCHEDULE 3 REQUESTS PART I UTILISATION REQUEST From: [Borrower] To: [●] as Agent Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (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: [●] Amount: [●], if less the Available Facility Interest Period: [One Month][Three Months] 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. [Subject to paragraph 5 below,] the proceeds of this Loan should be credited to [account]. 5. [The Agent may deduct the fee payable to it pursuant to Clause 12.3 (Agency fee) from the proceeds of this Loan]. 6. This Utilisation Request is irrevocable. Yours faithfully .................................................... authorised signatory for [name of relevant Borrower] 128 3202599488 PART II SELECTION NOTICE From: [Borrower] To: [●] as Agent Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice. 2. We refer to the following Loan[s] in [identify currency] with an Interest Period ending on [ ].* 3. [We request that the above Loan[s] be divided into [ ] Loans with the following Base Currency Amounts and Interest Periods:]** or [We request that the next Interest Period for the above Loan[s] is [ ]].*** 4. This Selection Notice is irrevocable. Yours faithfully ………………………………… authorised signatory for [name of the Borrower] * Insert details of all Loans in the same currency which have an Interest Period ending on the same date. ** Use this option if division of Loans is requested. *** Use this option if sub-division is not required. 129 3202599488 SCHEDULE 4 FORM OF TRANSFER CERTIFICATE To: [●] as Agent From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender") Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (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 24.5 (Procedure for transfer) of the Agreement: (a) The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 24.5 (Procedure for transfer) of the Agreement. (b) The proposed Transfer Date is [●]. (c) The Facility Office and address, email address and attention details for notices of the New Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule. 3. The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders) of the Agreement. 4. The New Lender confirms, for the benefit of each Obligor and the Agent, that it is not a Sanctioned Lender as at the date of this Transfer Certificate (or would not be a Sanctioned Lender if the Transfer Date were to occur on that date). 5. 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. 6. This Transfer Certificate, and any non-contractual obligations arising out of or in connection with it, is governed by English law.
130 3202599488 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: Market Entity Identifier:................................ Market Entity Identifier:................................ This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [●]. [●] By: 131 3202599488 SCHEDULE 5 FORM OF ASSIGNMENT AGREEMENT To: [●] as Agent and [●] as Parent, for and on behalf of each Obligor From: [the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender") Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement. 2. We refer to Clause 24.6 (Procedure for assignment) of the Agreement: (a) The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitments and participations in Loans under the Agreement as specified in the Schedule. (b) The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in Loans under the Agreement specified in the Schedule. (c) The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above. 3. The proposed Transfer Date is [●]. 4. On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender. 5. The Facility Office and address, email address and attention details for notices of the New Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule. 6. The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders) of the Agreement. 7. The New Lender confirms, for the benefit of each Obligor and the Agent, that it is not a Sanctioned Lender as at the date of this Assignment Agreement (or would not be a Sanctioned Lender if the Transfer Date were to occur on that date). 8. This Assignment Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 24.7 (Copy of Transfer Certificate or Assignment Agreement to Parent), to the Parent (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement. 9. This Assignment Agreement 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 Assignment Agreement. 132 3202599488 10. This Assignment Agreement, and any non-contractual obligations arising out of or in connection with it, is governed by English law. 11. This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement. 133 3202599488 THE SCHEDULE Commitment/rights to be assigned [Insert relevant details] [Facility Office address, email address and attention details for notices and account details for payments,] [Existing Lender] [New Lender] By: By: Market Entity Identifier:................................ Market Entity Identifier:................................ This Assignment Agreement is accepted by the Agent and the Transfer Date is confirmed as [●]. [●] By:
134 3202599488 SCHEDULE 6 FORM OF ACCESSION LETTER To: [●] as Agent From: [Subsidiary] and Gold Fields Limited Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (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 [25.2 (Additional Borrowers)]/[25.4 (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 English law. [This Accession Letter has been executed as a deed by [Subsidiary] and is delivered on the date stated above.]1 Gold Fields Limited [Subsidiary] By: By: 1 For any additional Guarantor, the Accession Letter is to be executed as a deed and the signature block shall be amended accordingly. 135 3202599488 SCHEDULE 7 FORM OF RESIGNATION LETTER To: [●] as Agent From: [resigning Obligor] and Gold Fields Limited Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (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 25.3 (Resignation of an Additional Borrower)]/[Clause 25.6 (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 English law. Gold Fields Limited [Subsidiary] By: By: 136 3202599488 SCHEDULE 8 FORM OF COMPLIANCE CERTIFICATE To: [●] as Agent From: Gold Fields Limited Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate. 2. We confirm that as at [●]: (a) Consolidated EBITDA to Consolidated Net Finance Charges the ratio of Consolidated EBITDA to Consolidated Net Finance Charges in respect of the Measurement Period ending on [●] was: [●]:1; and (b) Consolidated Net Borrowings to Consolidated EBITDA the ratio of Consolidated Net Borrowings to Consolidated EBITDA in respect of the Measurement Period ending on [●] was: [●]:1, and attach calculations showing how these figures were calculated. 3. We confirm that no Default is continuing. Signed: [Authorised signatory] of Gold Fields Limited 137 3202599488 SCHEDULE 9 TIMETABLES Loans in dollars Loans in CAD Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) U-1 11.00 a.m. U-1 11.00 a.m. Agent determines (in relation to a Utilisation) the Base Currency Amount of the Loan, if required under Clause 5.4 (Lenders' participation) and notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders' participation) U-1 3.00 p.m. U-1 3.00 p.m. "U" = Utilisation Date. "U – X" = Business Days prior to Utilisation Date.
138 3202599488 SCHEDULE 10 LMA FORM OF CONFIDENTIALITY UNDERTAKING [Letterhead of Seller] Date: [●] To: …………………………………………………………………. [insert name of Potential Purchaser] Re: The Agreement Parent: (the "Parent") Date: Amount: Agent: We understand that you are considering acquiring an interest in the Agreement which, subject to the Agreement, may be by way of novation, assignment, the entering into, whether directly or indirectly, of a sub-participation 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 or by way of investing in or otherwise financing, directly or indirectly, any such novation, assignment, sub-participation or other transaction (the "Acquisition"). In consideration of us agreeing to make available to you certain information, by your signature of a copy of this letter you agree as follows: 1. CONFIDENTIALITY UNDERTAKING You undertake (a) to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by paragraph 2 below and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to your own confidential information, and (b) until the Acquisition is completed to use the Confidential Information only for the Permitted Purpose. 2. PERMITTED DISCLOSURE We agree that you may disclose: 2.1 to any of your Affiliates and any of your or their officers, directors, employees, professional advisers and auditors such Confidential Information as you shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph 2.1 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 139 3202599488 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; 2.2 subject to the requirements of the Agreement, to any person: (a) to (or through) whom you assign or transfer (or may potentially assign or transfer) all or any of your rights and/or obligations which you may acquire under the Agreement such Confidential Information as you shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this paragraph 2.2(a) has delivered a letter to you in equivalent form to this letter; (b) with (or through) whom you enter into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to the Agreement or any Obligor such Confidential Information as you shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this paragraph 2.2(b) has delivered a letter to you in equivalent form to this letter; (c) to whom information is required or requested to be disclosed by 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 such Confidential Information as you shall consider appropriate; and 2.3 notwithstanding paragraphs 2.1 and 2.2 above, Confidential Information to such persons to whom, and on the same terms as, a Finance Party is permitted to disclose Confidential Information under the Agreement, as if such permissions were set out in full in this letter and as if references in those permissions to Finance Party were references to you. 3. NOTIFICATION OF DISCLOSURE You agree (to the extent permitted by law and regulation) to inform us: 3.1 of the circumstances of any disclosure of Confidential Information made pursuant to paragraph 2.2(c) above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and 3.2 upon becoming aware that Confidential Information has been disclosed in breach of this letter. 4. RETURN OF COPIES If you do not enter into the Acquisition and we so request in writing, you shall return or destroy all Confidential Information supplied to you by us and destroy or permanently erase (to the extent technically practicable) all copies of Confidential Information made by you and use your reasonable endeavours to ensure that anyone to whom you have supplied any Confidential Information destroys or permanently erases (to the extent technically practicable) such Confidential Information and any copies made by them, in each case save to the extent that you or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with internal policy, or where the Confidential Information has been disclosed under paragraph 2.2(c) above. 5. CONTINUING OBLIGATIONS 140 3202599488 The obligations in this letter are continuing and, in particular, shall survive and remain binding on you until (a) if you become a party to the Agreement as a lender of record, the date on which you become such a party to the Agreement; (b) if you enter into the Acquisition but it does not result in you becoming a party to the Agreement as a lender of record, the date falling [12] months after the date on which all of your rights and obligations contained in the documentation entered into to implement that Acquisition have terminated; or (c) in any other case the date falling [12] months after the date of your final receipt (in whatever manner) of any Confidential Information. 6. NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC. You acknowledge and agree that: 6.1 neither we, nor any member of the Group nor any of our or their respective officers, employees or advisers (each a "Relevant Person") (i) make any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or any other information supplied by us or the assumptions on which it is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential Information or any other information supplied by us or be otherwise liable to you or any other person in respect of the Confidential Information or any such information; and 6.2 we or members of the Group may be irreparably harmed by the breach of the terms of this letter and damages may not be an adequate remedy; each Relevant Person may be granted an injunction or specific performance for any threatened or actual breach of the provisions of this letter by you. 7. ENTIRE AGREEMENT: NO WAIVER; AMENDMENTS, ETC 7.1 This letter constitutes the entire agreement between us in relation to your obligations regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information. 7.2 No failure to exercise, nor any delay in exercising, any right or remedy under this letter will operate as a waiver of any such right or remedy or constitute an election to affirm this letter. No election to affirm this letter will be effective unless it is in writing. No single or partial exercise of any right or remedy will prevent any further or other exercise or the exercise of any other right or remedy under this letter. 7.3 The terms of this letter and your obligations under this letter may only be amended or modified by written agreement between us. 8. INSIDE INFORMATION You acknowledge 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 you undertake not to use any Confidential Information for any unlawful purpose. 9. NATURE OF UNDERTAKINGS The undertakings given by you under this letter are given to us and are also given for the benefit of the Parent and each other member of the Group. 141 3202599488 10. THIRD PARTY RIGHTS 10.1 Subject to this paragraph 10 and to paragraphs 6 and 9, a person who is not a party to this letter has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this letter. 10.2 The Relevant Persons may enjoy the benefit of the terms of paragraphs 6 and 9, subject to and in accordance with this paragraph 10 and the provisions of the Third Parties Act. 10.3 Notwithstanding any provisions of this letter, the parties to this letter do not require the consent of any Relevant Person to rescind or vary this letter at any time. 11. GOVERNING LAW AND JURISDICTION 11.1 This letter (including the agreement constituted by your acknowledgement of its terms) (the "Letter") and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Letter) are governed by English law. 11.2 The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Letter (including a dispute relating to any non-contractual obligation arising out of or in connection with either this Letter or the negotiation of the transaction contemplated by this Letter). 12. DEFINITIONS In this letter (including the acknowledgement set out below) terms defined in the Agreement shall, unless the context otherwise requires, have the same meaning and: "Confidential Information" means all information relating to the Parent, any Obligor, the Group, the Finance Documents, the Facility and/or the Acquisition which is provided to you in relation to the Finance Documents or the Facility by us or any of our affiliates or advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that: (a) is or becomes public information other than as a direct or indirect result of any breach by you of this letter; or (b) is identified in writing at the time of delivery as non-confidential by us or our advisers; or (c) is known by you before the date the information is disclosed to you by us or any of our affiliates or advisers or is lawfully obtained by you after that date, from a source which is, as far as you are aware, unconnected with the Group and which, in either case, as far as you are aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. "Group" means the Parent and its subsidiaries for the time being (as such term is defined in the Companies Act 2006). "Permitted Purpose" means considering and evaluating whether to enter into the Acquisition. Please acknowledge your agreement to the above by signing and returning the enclosed copy.
142 3202599488 Yours faithfully …................................ For and on behalf of [Seller] To: [Seller] The Parent and each other member of the Group We acknowledge and agree to the above: …................................ For and on behalf of [Potential Purchaser] 143 3202599488 SCHEDULE 11 FORM OF INCREASE CONFIRMATION To: [ ] as Agent and [ ] as Parent From: [the Increase Lender] (the "Increase Lender") Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation. 2. We refer to Clause 2.2 (Increase) of the Agreement. 3. The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the "Relevant Commitment") as if it had been an Original Lender under the Agreement in respect of the Relevant Commitment. 4. The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the "Increase Date") is [ ]. 5. On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender. 6. The Facility Office and address, email address and attention details for notices to the Increase Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule. 7. The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in paragraph (i) of Clause 2.2 (Increase) of the Agreement. 8. The Increase Lender confirms, for the benefit of each Obligor and the Agent, that it is not a Sanctioned Lender as at the date of this Increase Confirmation (or would not be a Sanctioned Lender if the Increase Date were to occur on that date). 9. This Increase Confirmation 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 Increase Confirmation. 10. This Increase Confirmation [and any non-contractual obligations arising out of or in connection with it] [is/are] governed by English law. 11. This Increase Confirmation has been entered into on the date stated at the beginning of this Increase Confirmation. 144 3202599488 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 Agent and the Increase Date is confirmed as [ ]. Agent By: 145 3202599488 SCHEDULE 12 FORM OF SUBSTITUTE AFFILIATE LENDER DESIGNATION NOTICE To: [ ] (as Agent) for itself and each of the other parties to the Agreement referred to below. Cc: [The Parent] From: [Designating Lender] (the "Designating Lender") Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. Terms defined in the Agreement have the same meaning in this Designation Notice. 2. We hereby designate our Affiliate details of which are given below as a Substitute Affiliate Lender in respect of any Loans required to be advanced to [specify name of borrower] ("Designated Loans"). 3. The details of the Substitute Affiliate Lender are as follows: Name: [●] Facility Office: [●] Fax Number: [●] Attention: [●] Jurisdiction of Incorporation: [●] 4. By countersigning this notice below the designated Affiliate agrees to become a Substitute Affiliate Lender in respect of Designated Loans as indicated above and agrees to be bound by the terms of the Agreement accordingly. 5. This Designation Notice and any non-contractual obligations arising out of or in connection with are governed by English law. ……………………………………………… For and on behalf of [Designating Lender]
146 3202599488 We acknowledge and agree to the terms of the above. ……………………………………………… For and on behalf of [Substitute Affiliate Lender] We acknowledge the terms of the above. ……………………………………………… For and on behalf of The Agent Dated 147 3202599488 SCHEDULE 13 REFERENCE RATE TERMS PART I U.S. DOLLARS CURRENCY: U.S. dollars. Cost of funds as a fallback Cost of funds will not apply as a fallback. Definitions Additional Business Days: An RFR Banking Day. Credit Adjustment Spread: Length of Interest Period Applicable Credit Adjustment Spread One Month or less 0.10 per cent. per annum Three Months or less but greater than one Month 0.25 per cent. per annum Break Costs: None specified. Business Day Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: (i) subject to paragraph (iii) 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; (ii) 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 (iii) 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. (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end 148 3202599488 on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). Central Bank Rate: (a) The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or (b) if that target is not a single figure, the arithmetic mean of: (i) the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and (ii) the lower bound of that target range. Central Bank Rate Adjustment: In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent. trimmed arithmetic mean (calculated by the Agent, or by any other Finance Party which agrees to do so in place of the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available. For this purpose, "Central Bank Rate Spread" means, in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between: (a) the RFR for that RFR Banking Day; and (b) the Central Bank Rate prevailing at close of business on that RFR Banking Day. Daily Rate: The "Daily Rate" for any RFR Banking Day is: (a) the RFR for that RFR Banking Day; or (b) if the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of: (i) the Central Bank Rate for that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment; or (c) if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of: (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and 149 3202599488 (ii) the applicable Central Bank Rate Adjustment, rounded, in each case, to five decimal places (with 0.000005 being rounded upwards) and if, in each case, the aggregate of that rate and the applicable Credit Adjustment Spread is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Credit Adjustment Spread is zero. Lookback Period: Five RFR Banking Days. Market Disruption Rate: The percentage rate per annum which is the aggregate of: (a) the Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and (b) the applicable Credit Adjustment Spread. Relevant Market: The market for overnight cash borrowing collateralised by US Government Securities. Reporting Day: The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period. RFR: The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate). RFR Banking Day: Any day other than: (a) a Saturday or Sunday; and (b) a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities. RFR Contingency Period: 30 days Interest Periods Periods capable of selection as Interest Periods (paragraph (b) of Clause 10.1 (Selection of Interest Periods)): One or three Months. Reporting Times Deadline for Lenders to report market disruption in accordance with Clause 11.2 (Market disruption): Close of business in London on the Reporting Day for the relevant Loan.
150 3202599488 Deadline for Lenders to report their cost of funds in accordance with Clause 11.3 (Cost of funds): Close of business on the date falling two Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan). 151 3202599488 PART II CANADIAN DOLLARS – COMPOUNDED CORRA CURRENCY: Canadian Dollars. Cost of funds as a fallback Cost of funds will apply as a fallback. Definitions Additional Business Days: An RFR Banking Day. Credit Adjustment Spread: Length of Interest Period Applicable Credit Adjustment Spread One Month or less 0.29547 per cent. per annum Three Months or less but greater than one Month 0.32138 per cent. per annum Break Costs: None specified. Business Day Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: (i) subject to paragraph (iii) 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; (ii) 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 (iii) 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. (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if 152 3202599488 there is one) or the preceding Business Day (if there is not). Central Bank Rate: The Bank of Canada's target for the overnight rate (also known as the Bank of Canada's policy interest rate) as published by the Bank of Canada from time to time. Central Bank Rate Adjustment: In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent. trimmed arithmetic mean (calculated by the Agent, or by any other Finance Party which agrees to do so in place of the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available. For this purpose, "Central Bank Rate Spread" means, in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between: (a) the RFR for that RFR Banking Day; and (b) the Central Bank Rate prevailing at close of business on that RFR Banking Day. Daily Rate: The "Daily Rate" for any RFR Banking Day is: (a) the RFR for that RFR Banking Day; or (b) if the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of: (i) the Central Bank Rate for that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment; or (c) if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of: (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment, rounded, in either case, to five decimal places (with 0.000005 being rounded upwards) and if, in either case, that rate is less than zero, the Daily Rate shall be deemed to be zero. 153 3202599488 Lookback Period: Five RFR Banking Days. Market Disruption Rate: The percentage rate per annum which is the aggregate of: (a) the Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and (b) the applicable Credit Adjustment Spread. Relevant Market: The market for overnight general collateral funding in Canadian Dollars using Government of Canada treasury bills and bonds as collateral for repurchase transactions. Reporting Day: The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period. RFR: The Canadian Overnight Repo Rate Average ("CORRA") administered by the Bank of Canada (or any other person which takes over the administration of that rate) published by the Bank of Canada (or any other person which takes over the publication of that rate). RFR Banking Day: A day (other than a Saturday or Sunday) on which banks are open for general business in Toronto. RFR Contingency Period: One Month. Interest Periods Periods capable of selection as Interest Periods (paragraph (b) of Clause 10.1 (Selection of Interest Periods)): One or three Months. Reporting Times Deadline for Lenders to report market disruption in accordance with Clause 11.2 (Market disruption): Close of business in London on the Reporting Day for the relevant Loan. Deadline for Lenders to report their cost of funds in accordance with Clause 11.3 (Cost of funds): Close of business on the date falling two Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).
154 3202599488 SCHEDULE 14 DAILY NON-CUMULATIVE COMPOUNDED RFR RATE The "Daily Non-Cumulative Compounded RFR Rate" for any RFR Banking Day "i" during an Interest Period for a Loan is the percentage rate per annum (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose) calculated as set out below: (𝑈𝐶𝐶𝐷𝑅𝑖 − 𝑈𝐶𝐶𝐷𝑅𝑖−1) × 𝑑𝑐𝑐 𝑛𝑖 where: "UCCDRi" means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i"; "UCCDRi-1" means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Interest Period; "dcc" means in the case of all currencies other than Canadian Dollars, 360 or in the case of Canadian Dollars, 365 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; "ni" means the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and the "Unannualised Cumulative Compounded Daily Rate" for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Interest Period is the result of the below calculation (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose): 𝐴𝐶𝐶𝐷𝑅 × 𝑡𝑛𝑖 𝑑𝑐𝑐 where: "ACCDR" means the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day; "tni" means the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period; "Cumulation Period" means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking Day; "dcc" has the meaning given to that term above; and the "Annualised Cumulative Compounded Daily Rate" for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to five decimal places, with 0.000005 being rounded upwards) calculated as set out below: [∏(1 + 𝐷𝑎𝑖𝑙𝑦𝑅𝑎𝑡𝑒𝑖−𝐿𝑃 × 𝑛𝑖 𝑑𝑐𝑐 ) − 1 𝑑𝑜 𝑖=1 ] × 𝑑𝑐𝑐 𝑡𝑛𝑖 155 3202599488 where: "d0" means the number of RFR Banking Days in the Cumulation Period; "Cumulation Period" has the meaning given to that term above; "i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period; "DailyRatei-LP" means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i"; "ni" means, for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; "dcc" has the meaning given to that term above; and "tni" has the meaning given to that term above. 156 3202599488 SCHEDULE 15 CUMULATIVE COMPOUNDED RFR RATE The "Cumulative Compounded RFR Rate" for any Interest Period for a Loan is the percentage rate per annum (rounded to the same number of decimal places as is specified in the definition of "Annualised Cumulative Compounded Daily Rate" in Schedule 14 (Daily Non-Cumulative Compounded RFR Rate)) calculated as set out below: [∏(1 + 𝐷𝑎𝑖𝑙𝑦𝑅𝑎𝑡𝑒𝑖−𝐿𝑃 × 𝑛𝑖 𝑑𝑐𝑐 ) − 1 𝑑𝑜 𝑖=1 ] × 𝑑𝑐𝑐 𝑑 where: "d0" means the number of RFR Banking Days during the Interest Period; "i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order during the Interest Period; "DailyRatei-LP" means for any RFR Banking Day "i" during the Interest Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i"; "ni" means, for any RFR Banking Day "i", the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; "dcc" means in the case of all currencies other than Canadian Dollars, 360 or in the case of Canadian Dollars, 365 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; and "d" means the number of calendar days during that Interest Period. 3202599488 Signature Page – Fox – Bridge Facility SIGNATURE PAGES THE PARENT For and on behalf of GOLD FIELDS LIMITED By: /s/ Michael John Fraser
3202599488 Signature Page – Fox – Bridge Facility THE ORIGINAL BORROWER For and on behalf of GOLD FIELDS OROGEN HOLDING (BVI) LIMITED By: /s/ Colin Bird 3202599488 Signature Page – Fox – Bridge Facility THE ORIGINAL BORROWER For and on behalf of GOLD FIELDS WINDFALL HOLDINGS INC. By: /s/ Johan Pauley 3202599488 Signature Page – Fox – Bridge Facility THE ORIGINAL GUARANTOR For and on behalf of GOLD FIELDS LIMITED By: /s/ Michael John Fraser 3202599488 Signature Page – Fox – Bridge Facility THE ORIGINAL GUARANTOR For and on behalf of GOLD FIELDS HOLDINGS COMPANY LIMITED By: /s/ Jongisa Magagula
3202599488 Signature Page – Fox – Bridge Facility THE ORIGINAL GUARANTOR For and on behalf of GOLD FIELDS OROGEN HOLDING (BVI) LIMITED By: /s/ Colin Bird Signature Page – Fox – Bridge Facility THE ORIGINAL GUARANTOR For and on behalf of GOLD FIELDS WINDFALL HOLDINGS INC. By: /s/ Johan Pauley Signature Page – Fox – Bridge Facility THE AGENT For and on behalf of THE BANK OF NOVA SCOTIA By: /s/ Sonya Bikhit Managing Director By: /s/ Lorenzo Ravelli Director Signature Page – Fox – Bridge Facility THE ARRANGER For and on behalf of CITIBANK, N.A., LONDON BRANCH By: /s/ Adrian Bain Director
Signature Page – Fox – Bridge Facility THE ARRANGER For and on behalf of ROYAL BANK OF CANADA By: /s/ Arshia Hashemi Vice President Signature Page – Fox – Bridge Facility THE ARRANGER For and on behalf of THE BANK OF NOVA SCOTIA By: /s/ Sonya Bikhit Managing Director By: /s/ Lorenzo Ravelli Director Signature Page – Fox – Bridge Facility THE ORIGINAL LENDER For and on behalf of THE BANK OF NOVA SCOTIA, LONDON BRANCH By: /s/ Sonya Bikhit Managing Director By: /s/ Lorenzo Ravelli Director Signature Page – Fox – Bridge Facility THE ORIGINAL LENDER For and on behalf of ROYAL BANK OF CANADA By: /s/ Arshia Hashemi Vice President
Signature Page – Fox – Bridge Facility THE ORIGINAL LENDER For and on behalf of RBC EUROPE LIMITED By: /s/ Jon Harrison Authorised Signatory Signature Page – Fox – Bridge Facility THE ORIGINAL LENDER For and on behalf of CITIBANK, N.A., JERSEY BRANCH By: /s/ Peter Lemoucheux Senior Vice President
exhibit413
Exhibit 4.13 U.S.$250,000,000 Multicurrency Parallel Bridge Facility Agreement Dated October 18, 2024 for GOLD FIELDS WINDFALL HOLDINGS INC. And” GOLD FIELDS OROGEN HOLDING (BVI) LIMITED arranged by THE BANK OF NOVA SCOTIA, CITIBANK, N.A., LONDON BRANCH AND ROYAL BANK OF CANADA with THE BANK OF NOVA SCOTIA acting as Agent Ref: L-352434 (i) 3203820842 CONTENTS CLAUSE PAGE SECTION 1 INTERPRETATION 1. Definitions and Interpretation .................................................................................................... 1 SECTION 2 THE FACILITY 2. The Facility .............................................................................................................................. 25 3. Purpose ................................................................................................................................... 27 4. Conditions of Utilisation ........................................................................................................... 27 SECTION 3 UTILISATION 5. Utilisation ................................................................................................................................. 30 6. Optional Currencies ................................................................................................................. 31 SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION 7. Repayment .............................................................................................................................. 32 8. Prepayment and Cancellation ................................................................................................. 33 SECTION 5 COSTS OF UTILISATION 9. Interest ..................................................................................................................................... 39 10. Interest Periods ....................................................................................................................... 42 11. Changes to the Calculation of Interest .................................................................................... 43 12. Fees ......................................................................................................................................... 44 SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS 13. Tax Gross-up and Indemnities ................................................................................................. 46 14. Increased Costs ....................................................................................................................... 50 15. Other Indemnities .................................................................................................................... 52 16. Mitigation by the Lenders ........................................................................................................ 53 17. Costs and Expenses ................................................................................................................ 53 SECTION 7 GUARANTEE 18. Guarantee and Indemnity ........................................................................................................ 55 SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT 19. Representations ...................................................................................................................... 58 20. Information Undertakings ........................................................................................................ 62 21. Financial Covenants ................................................................................................................ 65 22. General Undertakings .............................................................................................................. 67 23. Events of Default ..................................................................................................................... 71 SECTION 9 CHANGES TO PARTIES 24. Changes to the Lenders .......................................................................................................... 75 25. Changes to the Obligors .......................................................................................................... 80 (ii) 3203820842 SECTION 10 THE FINANCE PARTIES 26. Role of the Agent and the Arranger ......................................................................................... 83 27. Conduct of Business by the Finance Parties .......................................................................... 91 28. Sharing among the Finance Parties ........................................................................................ 91 SECTION 11 ADMINISTRATION 29. Payment Mechanics ................................................................................................................ 93 30. Sanctioned Finance Party ....................................................................................................... 97 31. Blocking Laws .......................................................................................................................... 98 32. Set-off ...................................................................................................................................... 99 33. Notices ..................................................................................................................................... 99 34. Calculations and Certificates ................................................................................................. 102 35. Partial Invalidity ..................................................................................................................... 102 36. Remedies and Waivers ......................................................................................................... 102 37. Amendments and Waivers .................................................................................................... 102 38. Confidential Information......................................................................................................... 108 39. Confidentiality of Funding Rates ........................................................................................... 112 40. Counterparts .......................................................................................................................... 113 SECTION 12 GOVERNING LAW AND ENFORCEMENT 41. Governing Law ...................................................................................................................... 114 42. Enforcement .......................................................................................................................... 114 43. Bail-In ..................................................................................................................................... 114 44. US QFC Rules ....................................................................................................................... 116 THE SCHEDULES SCHEDULE PAGE SCHEDULE 1 The Original Parties ........................................................................................................ 118 SCHEDULE 2 Conditions Precedent ..................................................................................................... 121 SCHEDULE 3 Requests ........................................................................................................................ 127 SCHEDULE 4 Form of Transfer Certificate............................................................................................ 129 SCHEDULE 5 Form of Assignment Agreement ..................................................................................... 131 SCHEDULE 6 Form of Accession Letter................................................................................................ 134 SCHEDULE 7 Form of Resignation Letter ............................................................................................. 135 SCHEDULE 8 Form of Compliance Certificate ...................................................................................... 136 SCHEDULE 9 Timetables ...................................................................................................................... 137 SCHEDULE 10 LMA Form of Confidentiality Undertaking .................................................................... 138 SCHEDULE 11 Form of Increase Confirmation ..................................................................................... 143 SCHEDULE 12 Form of Substitute Affiliate Lender Designation Notice ............................................... 145 SCHEDULE 13 Reference Rate Terms ................................................................................................. 147 SCHEDULE 14 Daily Non-Cumulative Compounded RFR Rate .......................................................... 154 SCHEDULE 15 Cumulative Compounded RFR Rate ........................................................................... 156 1 3203820842 THIS AGREEMENT is dated October 18, 2024 and made between: (1) GOLD FIELDS LIMITED (the "Parent"); (2) GOLD FIELDS OROGEN HOLDING (BVI) LIMITED and GOLD FIELDS WINDFALL HOLDINGS INC./GESTION GOLD FIELDS WINDFALL INC. (together, the "Original Borrowers" and individually an "Original Borrower"); (3) THE SUBSIDIARIES of the Parent listed in Part I of Schedule 1 (The Original Parties) as guarantors (together with the Parent, the "Original Guarantors"); (4) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original Parties) as mandated lead arrangers and bookrunners (whether acting individually or together, the "Arranger"); (5) THE FINANCIAL INSTITUTIONS listed in Part III of Schedule 1 (The Original Parties) as lenders (the "Original Lenders"); and (6) THE BANK OF NOVA SCOTIA as agent of the other Finance Parties (the "Agent"). IT IS AGREED as follows: SECTION 1 INTERPRETATION 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Agreement: "Acceptable Bank" means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or A3 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency. "Accession Letter" means a document substantially in the form set out in Schedule 6 (Form of Accession Letter). "Acquisition" means the acquisition by GF Windfall, and/or another member of the Group, of all of the issued and outstanding shares in the capital of the Target. "Additional Borrower" means a company which becomes an Additional Borrower in accordance with Clause 25 (Changes to the Obligors). "Additional Business Day" means any day specified as such in the applicable Reference Rate Terms. "Additional Guarantor" means a company which becomes an Additional Guarantor in accordance with Clause 25 (Changes to the Obligors). "Additional Obligor" means an Additional Borrower or an Additional Guarantor. "Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company. "Agent's Spot Rate of Exchange" means: (a) the Agent's spot rate of exchange; or
2 3203820842 (b) (if the Agent does not have an available spot rate of exchange) any other publicly available spot rate of exchange selected by the Agent (acting reasonably), for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11:00 a.m. on a particular day. "Agreement" means this agreement. "Anti-Corruption Laws" means: (a) the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997 (the "OECD Convention"); (b) the US Foreign Corrupt Practices Act of 1977 (as amended by the Foreign Corrupt Practices Act Amendments of 1988 and 1998, and as may be further amended and supplemented from time to time) or the rules and regulations thereunder (the "FCPA"); (c) the United Kingdom Bribery Act 2010; (d) the following South African laws: (i) the South African Prevention and Combating of Corrupt Activities Act, 2004; (ii) the South African Prevention of Organised Crime Act 1998; and (iii) the South African Protection of Constitutional Democracy Against Terrorist Related Activities Act, 2004; (e) the Corruption of Foreign Public Officials Act (Canada); and (f) any other applicable law in any applicable jurisdiction (including any (i) statute, ordinance, rule or regulation; (ii) order of any court, tribunal or any other judicial body; and (iii) rule, regulation, guideline or order of any public body, or any other administrative requirement) which: (i) prohibits the conferring of any gift, payment or other benefit on any person or any officer, employee, agent or adviser of such person; and/or (ii) is broadly equivalent to the FCPA and/or the United Kingdom Bribery Act 2010 or was intended to enact the provisions of the OECD Convention or which has as its objective the prevention of corruption. "Arrangement Agreement" means the arrangement agreement dated 12 August 2024 entered into among the Target, Gold Fields Holdings Company Limited and GF Windfall. "Arrangement Effective Date" means the date on which the Effective Date (as defined in the Arrangement Agreement) occurs. "Arm's Length" shall have the meaning ascribed thereto for the purposes of the Tax Act (Canada), as in effect as of the date hereof. "Assignment Agreement" means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee. "Associate" has the meaning given to such term in paragraph (a) of Clause 21.1 (Financial definitions). 3 3203820842 "Auditors" means, at any time, the auditors of the Parent at that time, being as at the date of this Agreement PricewaterhouseCoopers and any replacement for those auditors appointed by the Parent. "Australia" means the Commonwealth of Australia (and "Australian" shall be construed accordingly). "Availability Period" means the period from and including the date of this Agreement to and including the earliest of: (a) the Arrangement Effective Date; (b) the termination of the Arrangement Agreement in accordance with its terms; and (c) 16 December 2024. "Available Commitment" means, a Lender's Commitment under the Facility minus: (a) the Base Currency Amount of its participation in any outstanding Loans; and (b) in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Loans that are due to be made on or before the proposed Utilisation Date. "Available Facility" means the aggregate for the time being of each Lender's Available Commitment. "Base Currency" means U.S. dollars. "Base Currency Amount" means, in relation to a Loan, the amount specified in the Utilisation Request delivered by a Borrower for that Loan (or, if the amount requested is not denominated in the Base Currency, that amount converted into the Base Currency at the Agent's Spot Rate of Exchange on the date which is three Business Days before the Utilisation Date or, if later, on the date the Agent receives the Utilisation Request) as adjusted to reflect any repayment, prepayment, consolidation or division of a Loan. "Basel III" has the meaning set out in paragraph (b)(i) of Clause 14.1 (Increased Costs). "Blocking Law" means: (a) any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or regulation implementing such Regulation in any member state of the European Union or the United Kingdom); (b) section 7 of the German Foreign Trade Regulation (Auβenwirtschaftsverordnung); (c) the Foreign Extraterritorial Measures Act (Canada); or (d) any similar blocking or anti-boycott law (in the United Kingdom or in Canada). "Borrower" means an Original Borrower or an Additional Borrower unless it has ceased to be a Borrower in accordance with Clause 25 (Changes to the Obligors). "Break Costs" means any amount specified as such in the applicable Reference Rate Terms. “Bridge Facility Agreement” means the U.S.$500,000,000 term loan facility to be made available under the multicurrency bridge facility agreement entered into on or about the date of this Agreement between, amongst others, GF Windfall, Orogen, Royal Bank of Canada, Citibank, N.A., London Branch and The Bank of Nova Scotia. 4 3203820842 "Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London, New York, Johannesburg and Toronto and: (a) (in relation to any date for payment or purchase of a currency) the principal financial centre of the country of that currency; and (b) (in relation to: (i) any date for payment or purchase of an amount relating to a Loan; or (ii) the determination of the first day or the last day of an Interest Period for a Loan or otherwise in relation to the determination of the length of such an Interest Period), which is an Additional Business Day relating to that Loan or Unpaid Sum. "Canadian AML Legislation" has the meaning given to it in Clause 22.15. "Canadian Obligor" means GF Windfall or any other Obligor incorporated under the laws of Canada or any province or territory thereof. "Central Bank Rate" has the meaning given to that term in the applicable Reference Rate Terms. "Central Bank Rate Adjustment" has the meaning given to that term in the applicable Reference Rate Terms. "Cerro Corona Operation" means the gold and copper mine in Peru owned and operated by the Cerro Corona Subsidiary. "Cerro Corona Subsidiary" means Gold Fields La Cima S.A. "Clean-up Date" means the date falling 180 days after the Arrangement Effective Date. "Clean-up Default" means an Event of Default referred to in any of Clause 23.3 (Other obligations), 23.4 (Misrepresentation), 23.5 (Cross-Default), 23.8 (Creditors’ process), 23.9 (Unlawfulness), 23.11 (Governmental intervention) or 23.14 (Litigation). "Code" means the US Internal Revenue Code of 1986. "Commitment" means: (a) in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading "Commitment" in Part III of Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement or assumed by it in accordance with Clause 2.2 (Increase); and (b) in relation to any other Lender, the amount in the Base Currency of any Commitment transferred to it under this Agreement, to the extent not cancelled, reduced or transferred by it under this Agreement. "Compliance Certificate" means a certificate substantially in the form set out in Schedule 8 (Form of Compliance Certificate). "Compounded Reference Rate" means in relation to any RFR Banking Day during an Interest Period of a Loan, the percentage rate per annum which is the aggregate of: (a) the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and (b) the applicable Credit Adjustment Spread. 5 3203820842 "Compounding Methodology Supplement" means, in relation to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which: (a) is agreed in writing by the Parent, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders); (b) specifies a calculation methodology for that rate; and (c) has been made available to the Parent and each Finance Party. "Confidential Information" means all information relating to the Parent, any Obligor, the Group, the Finance Documents or the Facility of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Facility from either: (a) any member of the Group or any of its advisers; or (b) another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes: (i) information that: (A) is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 38 (Confidential Information); or (B) is identified in writing at the time of delivery as non-confidential by the Parent; or (C) is known by that Finance Party before the date the information is disclosed to it in accordance with paragraph (A) or (B) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance Party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality; and (ii) any Funding Rate. "Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the LMA as set out in Schedule 10 (LMA Form of Confidentiality Undertaking) or in any other form agreed between the Parent and the Agent. "Consolidated EBITDA" has the meaning set out in paragraph (a) of Clause 21.1 (Financial definitions). "Consolidated Tangible Net Worth" means, at any time, the "Total equity", as reported in the "Statement of financial position" in the last set of annual consolidated financial statements of the Parent delivered to the Agent pursuant to this Agreement. "Constitutional Documents" means, in respect of any person at any time, the then current and up-to-date constitutional documents of such person at such time (including, without limitation, such
6 3203820842 person's memorandum of incorporation and articles of association, certificate of incorporation, articles of incorporation or commercial registration certificate). "Credit Adjustment Spread" means any rate which is either: (a) specified as such in the applicable Reference Rate Terms; or (b) determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology specified in the applicable Reference Rate Terms. "Cumulative Compounded RFR Rate" means, in relation to an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 15 (Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement. "Daily Non-Cumulative Compounded RFR Rate" means, in relation to any RFR Banking Day during an Interest Period for a Loan, the percentage rate per annum determined by the Agent (or by any other Finance Party which agrees to determine that rate in place of the Agent) in accordance with the methodology set out in Schedule 14 (Daily Non-Cumulative Compounded RFR Rate) or in any relevant Compounding Methodology Supplement. "Daily Rate" means the rate specified as such in the applicable Reference Rate Terms. "Default" means an Event of Default or any event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default. "Defaulting Lender" means any Lender: (a) which has failed to make its participation in a Loan available or has notified the 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 (Lenders' participation); (b) which has otherwise rescinded or repudiated a Finance Document; (c) which is a Sanctioned Lender; or (d) with respect to which an Insolvency Event has occurred and is continuing, unless, in the case of paragraph (a) above: (i) its failure to pay is caused by: (A) administrative or technical error; or (B) a Disruption Event, and payment is made within five Business Days of its due date; or: (ii) 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: 7 3203820842 (a) 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 (b) 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: (i) from performing its payment obligations under the Finance Documents; or (ii) 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, provided that this term shall not include a PPSA Deemed Security Interest. "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 23 (Events of Default). "Excluded Taxes" means, with respect to any Finance Party or any other recipient of any payment to be made by or on account of any obligation of a Canadian Obligor under any Finance Document: (a) Taxes imposed on or measured by its net income or profits (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is resident, organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located; (b) Taxes imposed as a result of a present or former connection between a Lender or other recipient and the jurisdiction of the taxing authority imposing such Tax (other than such connection arising solely from the recipient having executed, delivered or performed its 8 3203820842 obligations or received a payment under, or enforced, any Finance Document, or sold or assigned an interest in any Finance Document); (c) any branch profits taxes or any similar Taxes imposed by any jurisdiction described in paragraph (a) or (b) above; (d) any capital taxes imposed by Canada; (e) Taxes attributable to a Lender's failure to comply with Clause 13.7 (Reduction of Indemnified Taxes); and (f) withholding Taxes under Part XIII of the Tax Act (Canada) imposed as a result of any Lender or any other recipient of any payment to be made by or on account of any obligation of a Canadian Obligor under any Finance Document (i) not dealing at Arm's Length with a Canadian Obligor or (ii) being a "specified non-resident shareholder" (as defined in subsection 18(5) of the Tax Act (Canada)) of a Canadian Obligor, or not dealing at Arm's Length with a "specified shareholder" (as defined in subsection 18(5) of the Tax Act (Canada)) of a Canadian Obligor (other than, in each case, where the non-Arm's Length relationship arises from, or the Lender or recipient is a "specified non-resident shareholder" or does not deal at Arm's Length with a "specified shareholder", as a result of such Lender or recipient, as applicable, having executed, delivered, become party to, performed its obligations or received a payment under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced any rights under, or sold or assigned an interest in this Agreement or any Finance Document). "Existing Lender" has the meaning given to it in Clause 24.1 (Assignments and transfers by the Lenders). "Existing RCF" means the US$1,200,000,000 credit facility agreement dated 25 May 2023 between, among others, the Parent, MUFG Bank, Ltd. as agent and the financial institutions listed therein, as amended or amended and restated from time to time (including, without limitation, pursuant to an amendment and restatement agreement dated 26 October 2023). "Existing Orogen Notes" means: (a) the U.S.$500,000,000 5.125% Guaranteed Notes due 2024; and (b) the U.S.$500,000,000 6.125% Guaranteed Notes due 2029. in each case issued by Gold Fields Orogen Holding (BVI) Limited on 9 May 2019. "Facility" means the term loan facility made available under this Agreement as described in Clause 2.1 (The Facility). "Facility Office" means the office(s) notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office(s) through which it will perform its obligations under this Agreement. "FATCA" means: (a) sections 1471 to 1474 of the Code and any associated regulations; (b) 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 paragraph (a) above; and 9 3203820842 (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraph (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. "FATCA Application Date" means: (a) 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 (b) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraph (a) 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: (a) the Participation Fee Letter; and (b) any letter or letters dated on or about the date of this Agreement setting out any of the fees referred to in Clause 12 (Fees). "Finance Document" means this Agreement, any Fee Letter, any Accession Letter, any Resignation Letter, any Reference Rate Supplement, any Compounding Methodology Supplement and any other document designated as such by the Agent and the Parent. "Finance Party" means the Agent, the Arranger or a Lender. "Financial Indebtedness" means (without double counting) any indebtedness for or in respect of: (a) moneys borrowed; (b) any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) 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; (e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); (f) 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: (i) used primarily as a method of raising credit; or (ii) not made in the ordinary course of business; (g) 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;
10 3203820842 (h) 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; (i) solely for the purpose of Clause 23.5 (Cross-Default), 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); (j) 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 an underlying liability of an entity which is not a member of the Group and which would fall within one of the other paragraphs of this definition; (k) any amount raised by the issue of redeemable shares to the extent such shares are redeemable prior to the Termination Date; and (l) the amount of any liability in respect of any guarantee or indemnity for any of its items referred to in paragraphs (a) to (k) 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 Agent pursuant to paragraph (a) of Clause 11.3 (Cost of funds). "GAAP" means the generally accepted accounting principles set out in IFRS. "GF Windfall" means Gold Fields Windfall Holdings Inc./Gestion Gold Fields Windfall Inc. "Ghanaian Companies" means Gold Fields Ghana Limited and Abosso Goldfields Limited. "Group" means the Parent and each of its Subsidiaries from time to time, including, from the Arrangement Effective Date, the Target Group. "Group Company" means a member of the Group. "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 25 (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 Agent" means the Agent at any time when: (a) 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; (b) the Agent otherwise rescinds or repudiates a Finance Document; (c) (if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of "Defaulting Lender"; 11 3203820842 (d) it is a Sanctioned Agent; or (e) an Insolvency Event has occurred and is continuing with respect to the Agent; unless, in the case of paragraph (a) above: (i) its failure to pay is caused by: (1) administrative or technical error; or (2) a Disruption Event; and payment is made within five Business Days of its due date; or (ii) the Agent is disputing in good faith whether it is contractually obliged to make the payment in question. "Increase Confirmation" means a confirmation substantially in the form set out in Schedule 11 (Form of Increase Confirmation). "Increased Costs" has the meaning given to it in paragraph (b)(ii) of Clause 14.1 (Increased Costs). "Increase Lender" has the meaning given to that term in paragraph (a)(iii) of Clause 2.2 (Increase). "Indebtedness for Borrowed Money" means Financial Indebtedness save for any indebtedness for or in respect of paragraphs (i) and (j) of the definition of "Financial Indebtedness". "Indemnified Taxes" means Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of a Canadian Obligor under any Finance Document. "Information" has the meaning given to such term in paragraph (a) of Clause 19.11 (No misleading information). "Insolvency Event" means, in relation to an entity, that: (a) any receiver, administrative receiver, administrator, liquidator, compulsory manager, monitor, receiver and manager, interim receiver or other similar officer is appointed in respect of that entity or all or substantially all of its assets; (b) that entity is subject to any event which has an analogous effect to any of the events specified in paragraph (a) above under the applicable laws of any jurisdiction; or (c) that entity suspends making payments on all or substantially all of its debts or publicly announces an intention to do so. "Interest Payment" means the aggregate amount of interest that is, or is scheduled to become, payable under any Finance Document. "Interest Period" means, in relation to a Loan, each period determined in accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.5 (Default interest). "Legal Opinion" means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 25 (Changes to the Obligors). "Legal Reservations" means: 12 3203820842 (a) 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; (b) the time barring of claims under the Limitation Acts 1980 or the Foreign Limitation Periods Act 1987, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim (c) similar principles, rights and defences under the laws of any jurisdiction in which an Obligor is incorporated; and (d) 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: (a) any Original Lender; and (b) any bank or financial institution which has become a Party as a "Lender" in accordance with Clause 2.2 (Increase) or Clause 24 (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. "Lookback Period" means the number of days specified as such in the applicable Reference Rate Terms. "Major Default" means with respect to an Obligor only (and not with respect to any Default relating to any procurement obligation in respect of any member of the Group that is not an Obligor), any Default under any of the following: (a) Clause 23.1 (Non-payment); (b) Clause 23.2 (Other obligations) insofar as it relates to a breach by an Obligor only (and not with respect to any breach of any procurement obligation in respect of any member of the Group that is not an Obligor) of any of Clauses: (i) 22.3 (Negative pledge) (ii) 22.4 (Disposals and mergers); (iii) 22.5 (Change of business); (iv) 22.10 (Acquisitions); (v) 22.11 (Financial Indebtedness); (vi) 22.13 (Sanctions); or (vii) 22.14 (Anti-corruption); (c) Clause 23.4 (Misrepresentation) insofar as it relates to a breach of any Major Representation; 13 3203820842 (d) Clause 23.6 (Insolvency); (e) Clause 23.7 (Insolvency proceedings); (f) Clause 23.8 (Creditors’ process); (g) Clause 23.9 (Unlawfulness); (h) Clause 23.10 (Repudiation and unenforceability); (i) Clause 23.11 (Governmental intervention); or (j) Clause 23.13 (Cessation of business). "Majority Lenders" means: (a) at any time there are only three Lenders, a Lender or Lenders whose Commitments aggregate 66 per cent. or more of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated 66 per cent. or more of the Total Commitments immediately prior to the reduction); and (b) at any other time, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66⅔ per cent. of the Total Commitments immediately prior to the reduction). For the purposes of this definition, when determining how many Lenders there are, a Lender and each of its Affiliates and Related Funds shall be counted as a single Lender. "Major Representation" means a representation with respect to an Obligor only under any of the representations in Clauses 19.1 (Status), 19.2 (Power and authority), 19.3 (Binding obligations), 19.4 (Non-conflict with other obligations), 19.5 (Validity and admissibility in evidence), 19.19 (Ownership of Material Group Companies), 19.21 (Sanctions) and 19.22 (Anti-corruption). "Mandate Letter" means the letter between the Parent and the Arranger dated 11 August 2024. "Margin" means the percentage rate per annum determined in accordance with Clause 9.4 (Margin adjustments – rating). "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 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. "Market Disruption Rate" means the rate (if any) specified as such in the applicable Reference Rate Terms. "Material Adverse Effect" means a material adverse effect on: (a) the business or financial condition of the Group taken as a whole; (b) 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
14 3203820842 (c) the validity or enforceability of the Finance Documents or any of them. "Material Group Company" means: (a) the Obligors; and (b) 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 23.8 (Creditors' process). "Month" means, in relation to an Interest Period (or any other period for the accrual of commission or fees in a currency), a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, subject to adjustment in accordance with the rules specified as Business Day Conventions in the applicable Reference Rate Terms. "Moody's" means Moody's Investor Services Inc., or any successor to its rating agency function. "MPRDA" has the meaning given to it in Clause 23.8 (Creditors' process). "New Lender" has the meaning given to it in Clause 24.1 (Assignments and transfers 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 per cent. 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 20.1 (Financial statements)). Compliance with the aforementioned condition shall be 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: (a) 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; (b) 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 (c) 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. 15 3203820842 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 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. "NSR Debentures" means the 4.75% convertible senior unsecured debenture bearing a principal NSR amount of $154,000,000 issued by the Target and held by 1335088 B.C. Ltd., a wholly-owned subsidiary of Northern Star Resources Ltd. "Obligor" means a Borrower or a Guarantor. "Optional Currency" means a currency (other than the Base Currency) which complies with the conditions set out in Clause 4.3 (Conditions relating to Optional Currencies). "Original Financial Statements" means the audited consolidated financial statements of the Parent for the Financial Year ended 31 December 2023. "Participation Fee Letter" means the letter between the Parent and the Arrangers dated on or around the date of this Agreement. "Party" means a party to this Agreement. "Permitted Disposal" means any sale, lease, transfer or other disposal: (a) 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; (b) 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; (c) by an Obligor to another Obligor (other than to an Additional Obligor); (d) 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; (e) by a member of the Group that is not an Obligor to another member of the Group; (f) for which the Agent has given its prior written consent (acting on the instructions of the Majority Lenders); (g) 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 paragraphs) does not exceed (at the time of the relevant disposal) 30 per cent. 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 date of this Agreement to the Termination Date, 40 per cent. of Market Capitalisation; or (h) which constitutes a disposal of cash for any purpose not expressly prohibited by the Finance Documents. 16 3203820842 "Permitted Encumbrance" means: (a) any Encumbrance created prior to the date of this Agreement which (i) is disclosed in the Original Financial Statements and (ii) in all circumstances secures only indebtedness outstanding or a facility available at the date of this Agreement to the extent that the principal amount or original facility thereby secured is not increased after the date of this Agreement; (b) 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; (c) 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; (d) 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; (e) any Encumbrance over or affecting (or transaction described in paragraph (b) of Clause 22.3 (Negative pledge) ("Quasi-Encumbrance") affecting) any asset acquired by a member of the Group after the date of this Agreement if: (i) the Encumbrance or Quasi-Encumbrance was not created in contemplation of the acquisition of that asset by a member of the Group; (ii) 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 (iii) the Encumbrance or Quasi-Encumbrance is (other than an Encumbrance or Quasi-Encumbrance otherwise permitted pursuant to paragraph (b), (c) or (d) above or paragraph (f), (g), (i) or (j) below) removed or discharged within six months of the date of acquisition of such asset; (f) any Encumbrance or Quasi-Encumbrance over or affecting any asset of any company which becomes a member of the Group after the date of this Agreement, where the Encumbrance or Quasi-Encumbrance is created prior to the date on which that company becomes a member of the Group, if: (i) the Encumbrance or Quasi-Encumbrance was not created in contemplation of the acquisition of that company; (ii) the principal amount secured has not increased in contemplation of or since the acquisition of that company; and (iii) the Encumbrance or Quasi-Encumbrance is (other than an Encumbrance or Quasi-Encumbrance otherwise permitted pursuant to paragraph (b), (c), (d) or (e) above or paragraph (g), (i), or (j) below) removed or discharged within six months of that company becoming a member of the Group; 17 3203820842 (g) 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); (h) 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; (i) 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 paragraphs (a) to (h) above and paragraphs (j) and (k) below), does not at any time exceed 15 per cent. 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); (j) any other Encumbrance or Quasi-Encumbrance as agreed by the Agent (acting on the instructions of the Majority Lenders) in writing; or (k) 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 paragraph (k) does not at any time in aggregate exceed $200,000,000 (or its equivalent). In this paragraph (k) "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. "Permitted Financial Indebtedness" means any Financial Indebtedness: (a) arising under the Finance Documents; (b) arising under any environmental bond which any member of the Group is required to issue by any applicable law; (c) 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 (or its equivalent); (d) 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; (e) of the Group existing and available on the date of this Agreement (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);
18 3203820842 (f) between Group Companies; (g) arising under the guarantees given by Gold Fields Ghana Holdings (BVI) Limited in respect of the Existing Orogen Notes; (h) incurred by Gold Fields Operations Limited or GFI Joint Venture Holdings Proprietary Limited to the extent that that the aggregate principal amount outstanding of all such Financial Indebtedness does not at any time exceed ZAR 2,500,000,000; (i) incurred by Gruyere Holdings Pty Ltd to the extent that the aggregate principal amount outstanding of all such Financial Indebtedness does not at any time exceed A$600,000,000; (j) in respect of any lease or hire purchase contract entered into at any time which: (i) would, in accordance with GAAP, be treated as a balance sheet liability; and (ii) would not, in accordance with GAAP in force immediately before the adoption of IFRS 16, have been treated as a balance sheet liability; (k) 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 principal amount outstanding of all such Financial Indebtedness does not at any time exceed ZAR 357,500,000; or (l) not falling within the preceding paragraphs 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 paragraph (l)) does not at any time exceed $500,000,000 (or its equivalent). "PPSA Deemed Security Interest" means the interest of a transferee of an account or chattel paper referred to in the definition of "security interest" under any personal property security act of any province or territory of Canada, in either case, where the transaction concerned does not, in substance, secure payment or performance of an obligation. "Project Finance Borrowings" means: (a) 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 (b) any indebtedness the terms and conditions of which have been approved by the Agent and which the 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. 19 3203820842 "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 or assets which has incurred Project Finance Borrowings. "Recipient" has the meaning given to it in paragraph (b) of Clause 13.6 (Value added tax). "Recovered Amount" has the meaning given to it in Clause 28.1 (Payments to Finance Parties). "Recovering Finance Party" has the meaning given to it in Clause 28.1 (Payments to Finance Parties). "Redistributed Amount" has the meaning given to it in paragraph (a) of Clause 28.4 (Reversal of redistribution). "Reference Rate Supplement" means, in relation to any currency, a document which: (a) is agreed in writing by the Parent, the Agent (in its own capacity) and the Agent (acting on the instructions of the Majority Lenders or, in the case of any Reference Rate Supplement which has the effect of a reduction in the Margin, all the Lenders); (b) specifies for that currency the relevant terms which are expressed in this Agreement to be determined by reference to Reference Rate Terms; and (c) has been made available to the Parent and each Finance Party. "Reference Rate Terms" means, in relation to: (a) a currency; (b) a Loan or an Unpaid Sum in that currency; (c) an Interest Period for such a Loan or Unpaid Sum (or other period for the accrual of commission or fees in a currency); or (d) any term of this Agreement relating to the determination of a rate of interest in relation to such a Loan or Unpaid Sum, the terms set out for that currency, and (where such terms are set out for different categories of Loan, Unpaid Sum or accrual of commission or fees in that currency) for the applicable category of that Loan, Unpaid Sum or accrual, in Schedule 13 (Reference Rate Terms) or in any relevant Reference Rate Supplement. "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. "Relevant Market" means the market specified as such in the applicable Reference Rate Terms. "Repeating Representations" means each of the representations set out in Clauses 19.1 (Status) to 19.21 (Sanctions) inclusive, other than Clause 19.3 (Binding obligations), Clause 19.6 (Governing law and enforcement), Clause 19.7 (Deduction of Tax), Clause 19.8 (No filing or stamp taxes), Clause 19.11 (No misleading information), Clause 19.12 (Financial statements), Clause 19.14 (No proceedings pending or threatened), Clause 19.15 (Insurance), Clause 19.18 20 3203820842 (Taxation), Clause 19.19 (Ownership of Material Group Companies), Clause 19.20 (No Material Adverse Effect) and paragraph (b) of Clause 19.21 (Sanctions). "Replacement Lender" has the meaning given to it in paragraph (a) of Clause 37.6 (Replacement of a Defaulting Lender). "Reporting Day" means the day (if any) specified as such in the applicable Reference Rate Terms. "Reporting Time" means the relevant time (if any) specified as such in the applicable Reference Rate Terms. "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 7 (Form of Resignation Letter). "Restricted Party" means a Lender or Agent that is the subject or the target of Sanctions or located, organised, resident or operating in in any Sanctioned Country. "Retiring Guarantor" has the meaning given to it in Clause 18.8 (Release of Guarantors' right of contribution). "RFR" means the rate specified as such in the applicable Reference Rate Terms. "RFR Banking Day" means any day specified as such in the applicable Reference Rate Terms. "Sanctioned Agent" means the Agent at any time when it is a Restricted Party where a Party or any Affiliate of a Party would be in breach of any applicable Sanctions as a result of the Agent being a Restricted Party (including as a result of payments to be made under the Finance Documents, and ignoring for such purposes the availability of any licence under any applicable licensing regime to the extent any person would need to take active steps for such licence to be granted, maintained and/or to apply). "Sanctioned Country" means a country, territory or region that is the target of Sanctions. "Sanctioned Finance Party" means a Sanctioned Agent or a Sanctioned Lender. "Sanctioned Lender" means any Lender which is a Restricted Party where a Party or any Affiliate of a Party would be in breach of any applicable Sanctions as a result of that Lender being a Restricted Party (including as a result of payments to be made under the Finance Documents, and ignoring for such purposes the availability of any licence under any applicable licensing regime to the extent any person would need to take active steps for such licence to be granted, maintained and/or to apply). "Sanctions" means any economic, financial or trade sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by 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"), the United Nations Security Council, the European Union, His Majesty's Treasury, the government of Australia, the government of Canada (including Global Affairs Canada and Public Safety Canada), the government of Japan, the government of the Republic of South Africa or any other relevant sanctions authority which replaces, or is a successor to, any of the foregoing. 21 3203820842 "Sharing Finance Parties" has the meaning given to it in Clause 28.2 (Redistribution of payments). "Sharing Payment" has the meaning given to it in paragraph (c) of Clause 28.1 (Payments to Finance Parties). "Specified Time" means a time determined in accordance with Schedule 9 (Timetables). "Standard & Poor's" means Standard & Poor's, a division of the McGraw-Hill Companies Inc., or any successor to its rating agency function. "Subject Party" has the meaning given to it in paragraph (b) of Clause 13.6 (Value added tax). "Selection Notice" means a notice substantially in the form set out in Part II of Schedule 3 (Requests) given in accordance with Clause 10 (Interest Periods). "Subsidiary" means, in relation to any company or corporation, a company or corporation: (a) which is controlled, directly or indirectly, by the first mentioned company or corporation; (b) more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or (c) 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 paragraph (b) of Clause 13.6 (Value added tax). "Target" means Osisko Mining Inc. "Target Group" means the Target and its Subsidiaries. "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 Act (Canada)" means the Income Tax Act (Canada), as the same may be amended, supplemented or replaced. "Tax Credit" has the meaning given to it in paragraph (a) of Clause 13.1 (Definitions). "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 13.2 (Tax gross-up) or a payment under Clause 13.3 (Tax indemnity). "Termination Date" means subject to Clause 7.2 (Extension option), 364 days from the date of this Agreement. "Total Commitments" means the aggregate of the Commitments, being US$250,000,000 at the date of this Agreement. "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 Agent and the Parent.
22 3203820842 "Transfer Date" means, in relation to an assignment or a transfer: (a) the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; or (b) in the event that no Transfer Date is specified in the relevant Assignment Agreement or Transfer Certificate, the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate. "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 Part I of Schedule 3 (Requests). "VAT" means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature. 1.2 Construction (a) Unless a contrary indication appears any reference in this Agreement to: (i) the "Agent", the "Arranger", any "Finance Party", any "Lender", the "Arranger", any "Obligor" or any "Party" shall be construed so as to include its successors in title, permitted assigns and permitted transferees; (ii) "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 per cent. of the share capital or similar rights of ownership; (iii) a Lender's "cost of funds" in relation to its participation in a Loan is a reference to the average cost (determined either on an actual or a notional basis) which that Lender would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount of that participation in that Loan for a period equal in length to the Interest Period of that Loan; (iv) the Agent's "cost of funds" is a reference to the average cost (determined either on an actual or a notional basis) which the Agent would incur if it were to fund, from whatever source(s) it may reasonably select, an amount equal to the amount referred to in paragraph (b) of Clause 29.4 (Clawback); (v) "assets" includes present and future properties, revenues and rights of every description; (vi) "audited" means, in respect of any financial statement, those financial statements as audited by the Auditors; 23 3203820842 (vii) "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); (viii) 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; (ix) a "group of Lenders" includes all the Lenders; (x) a "guarantee" means (other than in Clause 18 (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; (xi) "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; (xii) "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, 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; (xiii) 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); (xiv) 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; (xv) a provision of law is a reference to that provision as amended or re-enacted from time to time; and (xvi) a time of day is a reference to London time. (b) Section, Clause and Schedule headings are for ease of reference only. (c) 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. (d) A Default is "continuing" if it has not been remedied or waived. 24 3203820842 (e) A reference in this Agreement to a page or screen of an information service displaying a rate shall include: (i) any replacement page of that information service which displays that rate; and (ii) the appropriate page of such other information service which displays that rate from time to time in place of that information service, and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Agent after consultation with the Parent. (f) A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate. (g) Any Reference Rate Supplement relating to a currency overrides anything relating to that currency in: (i) Schedule 13 (Reference Rate Terms); or (ii) any earlier Reference Rate Supplement. (h) A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in: (i) Schedule 14 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 15 (Cumulative Compounded RFR Rate), as the case may be; or (ii) any earlier Compounding Methodology Supplement. (i) 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. 1.3 Currency symbols and definitions "US$", "$" and "U.S. dollars" denote the lawful currency of the United States of America. "ZAR" denotes the lawful currency of the Republic of South Africa. "A$" denotes the lawful currency of Australia. "CAD" and "Canadian Dollars" denote the lawful currency of Canada. 1.4 Third party rights (a) Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this Agreement. (b) Subject to paragraph (b) of Clause 37.2 (Other exceptions), but otherwise notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. 25 3203820842 SECTION 2 THE FACILITY 2. THE FACILITY 2.1 The Facility Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency term loan facility in an aggregate amount equal to the Total Commitments. 2.2 Increase (a) The Parent may by giving prior notice to the Agent after the effective date of a cancellation of: (i) the Available Commitments of a Defaulting Lender in accordance with paragraph (f) of Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender); or (ii) the Commitments of a Lender in accordance with: (A) Clause 8.1 (Illegality); or (B) paragraph (a) of Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender), request that the Commitments be increased (and the Commitments shall be so increased) in an aggregate amount in the Base Currency of up to the amount of the Available Commitments or Commitments so cancelled as follows: (iii) the increased Commitments will be assumed by one or more Eligible Institutions (each an "Increase Lender") each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender in respect of those Commitments; (iv) each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume; (v) each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender in respect of that part of the increased Commitments which it is to assume; (vi) the Commitments of the other Lenders shall continue in full force and effect; and (vii) any increase in the Commitments shall take effect on the date specified by the Parent in the notice referred to above or any later date on which the Agent executes an otherwise duly completed Increase Confirmation delivered to it by the relevant Increase Lender. (b) The Agent shall, subject to paragraph (c) below, as soon as reasonably practicable after receipt by it of a duly completed Increase Confirmation appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Increase Confirmation.
26 3203820842 (c) The Agent shall only be obliged to execute an Increase Confirmation delivered to it by an Increase 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 assumption of the increased Commitments by that Increase Lender. (d) Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender. (e) Such Borrower as the Parent shall nominate shall promptly on demand pay the Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.2. (f) The Increase Lender shall, on the date upon which the increase takes effect, pay to the Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 24.3 (Assignment or transfer fee) if the increase was a transfer pursuant to Clause 24.5 (Procedure for transfer) and if the Increase Lender was a New Lender. (g) The Parent may pay to the Increase Lender a fee in the amount and at the times agreed between the Parent and the Increase Lender in a letter between the Parent and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this paragraph (g). (h) Neither the Agent nor any Lender shall have any obligation to find an Increase Lender and in no event shall any Lender whose Commitment is replaced by an Increase Lender be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents. (i) Clause 24.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Increase Lender as if references in that Clause to: (i) an "Existing Lender" were references to all the Lenders immediately prior to the relevant increase; (ii) the "New Lender" were references to that "Increase Lender"; and (iii) a "re-transfer" and "re-assignment" were references to respectively a "transfer" and "assignment". 2.3 Finance Parties' rights and obligations (a) The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. (b) The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the 27 3203820842 avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor. (c) A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents. 3. PURPOSE 3.1 Purpose (a) Each Original Borrower shall apply all amounts borrowed by it under the Facility towards: (i) financing or refinancing in whole or in part any and all payments contemplated by the Arrangement Agreement (including for the Acquisition); (ii) paying fees, costs, expenses incurred by any member of the Group or Target Group in connection with the Arrangement Agreement or any Finance Document; and (iii) refinancing any amounts outstanding under or in respect of the NSR Debentures. (b) Each Additional Borrower shall apply all amounts borrowed by it under the Facility towards the purposes specified in the Accession Letter to which it is a party as Additional Borrower. 3.2 Monitoring No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement. 4. CONDITIONS OF UTILISATION 4.1 Initial conditions precedent (a) The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to any Utilisation if on or before the Utilisation Date for that Utilisation, the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent (to the extent, where applicable, as set out in respect of that item in Part I of Schedule 2 (Conditions Precedent)). The Agent shall notify the Parent and the Lenders promptly upon being so satisfied. (b) Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. 4.2 Further conditions precedent (a) Subject to Clause 4.1 (Initial conditions precedent), the Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) in relation to a Utilisation if, on the date of the Utilisation Request and on the proposed Utilisation Date: (i) no Major Default is continuing or would result from the proposed Utilisation; and (ii) all the Major Representations are true in all material respects. (b) Notwithstanding any other Clause in this Agreement (save in circumstances where a Lender has notified the Agent of an illegality event pursuant to Clause 8.1 (Illegality), or where any person or group of persons acting in concert gains control of the Parent within the meaning of Clause 8.2 28 3203820842 (Change of control), (provided that, in relation to Clause 8.1 (Illegality), the occurrence of such event in respect of any Lender will not release any other Lender from its obligations under this Clause 4.2), none of the Finance Parties shall be entitled to: (i) cancel any of its Commitments to the extent to do so would prevent or limit the making of a Utilisation; (ii) rescind, terminate or cancel this Agreement or the Facility or exercise any similar right or remedy or make or enforce any claim under the Finance Documents it may have to the extent to do so would prevent or limit the making of a Utilisation; (iii) refuse to participate in the making of a Utilisation; (iv) exercise any right of set-off or counterclaim in respect of a Utilisation to the extent to do so would prevent or limit the making of a Utilisation; (v) cancel, accelerate or cause repayment or prepayment of any amounts owing under this Agreement or under any other Finance Document to the extent to do so would prevent or limit the making of a Utilisation or would require the repayment or prepayment of a Utilisation; or (vi) take any action or make or enforce any claim to the extent such action or claim or enforcement would directly or indirectly prevent or limit the making of a Utilisation, provided that immediately upon the expiry of the Availability Period all such rights, remedies and entitlements shall be available to the Finance Parties notwithstanding that they may not have been used or made available for use during the Availability Period. (c) In the event of any conflict or inconsistency between this Clause 4.2 and any of the other term of the Finance Documents, this Clause 4.2 shall prevail. 4.3 Conditions relating to Optional Currencies (a) A currency will constitute an Optional Currency in relation to a Loan if, it is CAD or: (i) it is readily available in the amount required and freely convertible into the Base Currency in the wholesale market for that currency at the Specified Time and on the Utilisation Date for that Loan; (ii) it has been approved by the Agent (acting on the instructions of all the Lenders) on or prior to receipt by the Agent of the relevant Utilisation Request for that Loan; and (iii) there are Reference Rate Terms for that currency. (b) If the Agent has received a written request from the Parent for a currency to be approved under paragraph (a)(ii) above, the Agent will confirm to the Parent by the Specified Time: (i) whether or not the Lenders have granted their approval; and (ii) if approval has been granted, the minimum amount (and, if required, integral multiples) for any subsequent Utilisation in that currency. 4.4 Maximum number of Loans (a) A Borrower may not deliver a Utilisation Request if as a result of the proposed Utilisation more than 3 Loans would be outstanding. 29 3203820842 (b) Any Loan made by a single Lender under Clause 6.2 (Unavailability of a currency) shall not be taken into account in this Clause 4.4.
30 3203820842 SECTION 3 UTILISATION 5. UTILISATION 5.1 Delivery of a Utilisation Request A Borrower may utilise the Facility by delivery to the Agent of a duly completed Utilisation Request not later than the Specified Time. 5.2 Completion of a Utilisation Request (a) Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: (i) the proposed Utilisation Date is a Business Day within the Availability Period; (ii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and (iii) the proposed Interest Period complies with Clause 10 (Interest Periods). (b) Only one Loan may be requested in each Utilisation Request. 5.3 Currency and amount (a) The currency specified in a Utilisation Request must be the Base Currency or an Optional Currency. (b) The amount of the proposed Loan must be: (i) if the currency selected is the Base Currency, a minimum of $10,000,000 or, if less, the Available Facility; (ii) if the currency selected is CAD, a minimum of CAD10,000,000 or, if less, the Available Facility; or (iii) if the currency selected is an Optional Currency other than CAD, the minimum amount (and, if required, integral multiple) specified by the Agent pursuant to paragraph (b)(ii) of Clause 4.3 (Conditions relating to Optional Currencies) or, if less, the Available Facility; and (iv) in any event such that its Base Currency Amount is less than or equal to the Available Facility. 5.4 Lenders' participation (a) If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Loan available by the Utilisation Date through its Facility Office. (b) The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making that Loan. (c) The Agent shall determine the Base Currency Amount of each Loan which is to be made in an Optional Currency and shall notify each Lender of the amount, currency and the Base Currency Amount of each Loan, the amount of its participation in that Loan and, if different, the amount of that participation to be made available in accordance with Clause 29.1 (Payments to the Agent), in each case by the Specified Time. 31 3203820842 5.5 Cancellation of Commitment The Commitments which, at that time, are unutilised shall be immediately cancelled at the end of the Availability Period. 6. OPTIONAL CURRENCIES 6.1 Selection of currency A Borrower (or the Parent on behalf of a Borrower) shall select the currency of a Loan in the Utilisation Request. 6.2 Unavailability of a currency (a) In respect of an Optional Currency other than CAD, if before the Specified Time: (i) a Lender notifies the Agent that the Optional Currency requested is not readily available to it in the amount required; or (ii) a Lender notifies the Agent that compliance with its obligation to participate in a Loan in the proposed Optional Currency would contravene a law or regulation applicable to it, the Agent will give notice to the relevant Borrower to that effect by the Specified Time. (b) Any Lender that gives notice pursuant to paragraph (a) above will be required to participate in the Loan in the Base Currency (in an amount equal to that Lender's proportion of the Base Currency Amount) and its participation will be treated as a separate Loan denominated in the Base Currency during that Interest Period. 32 3203820842 SECTION 4 REPAYMENT, PREPAYMENT AND CANCELLATION 7. REPAYMENT 7.1 Repayment of Loans Each Borrower which has drawn a Loan shall repay that Loan on the Termination Date. 7.2 Extension option (a) The Parent may request that the Termination Date be extended subject to the terms of this Clause 7.2 by giving notice to the Agent not less than 45 days (and not more than 90 days) before the date which is one year after the date of this Agreement with the effect that the Termination Date shall be eighteen Months from the date of this Agreement with respect to the Commitment and participation in the Loans of each Lender which agrees to such extension. The Termination Date shall not extend beyond eighteen Months from the date of this Agreement. (b) A notice served by the Parent pursuant to paragraph (a) above shall be irrevocable. (c) The Agent shall promptly notify each Lender of any such request. (d) Each Lender shall notify the Agent of its decision (which shall be in its sole discretion) whether or not to agree to the request by the date falling not later than 21 days after the date on which the relevant Lender received the request (or such later date which the Parent may agree in its absolute discretion) (the "Response Deadline") and the Agent shall promptly notify the Parent whether or not each Lender has agreed to the request (a Lender who has agreed to extend being an "Extending Lender" and a Lender who has not being a "Non-Extending Lender"). If a Lender does not respond to a request by the Response Deadline, it will be deemed to have refused that request. (e) In the event that one or more (but not all) of the Lenders agree to a request, the Parent may, promptly following receipt of notification from the Agent pursuant to paragraph (d) above, elect by notice to the Agent to accept the extension offered by all the relevant Lender(s), in which case the Termination Date shall be extended in relation to the Commitments and participations of such Lender(s). (f) In the event that all of the Lenders agree to a request, the Termination Date shall be extended in relation to the Commitments and participations of all such Lenders. (g) Notwithstanding any other provision in this Agreement, the Lenders will only be obliged to comply with the provisions of this Clause 7.2 if: (i) on the date of any extension request in relation to the Facility and on the original Termination Date of the Facility: (A) no Event of Default is continuing or would result from the proposed extension; and (B) the Repeating Representations to be made by each Obligor are true in all material respects; and (ii) the relevant Borrowers are in compliance with their obligations in paragraph (i) below. (h) If any Lender does not agree to any extension request, the Termination Date applicable to its Commitments shall remain that Termination Date which applied to it immediately prior to the 33 3203820842 service of the relevant request and its participation in any outstanding Loan shall be repaid in accordance with Clause 7.1 (Repayment of Loans). (i) If any extension is agreed in accordance with this Clause 7.2, the Borrowers to which Loans are then outstanding (and pro rata to the respective Loans owing by them) shall pay to the Agent (for the account of each Extending Lender) a fee equal to 0.20 per cent. on the amount of Commitment of each Extending Lender whose Commitment is extended in relation to the Facility. Any such fee shall be payable on the third Business Day after (i) the Parent notifies the Agent of its decision to proceed with the relevant extension in accordance with paragraph (e) above or (ii) the date on which the Agent notifies the Parent that all of the Lenders have agreed to a request (as applicable). 8. PREPAYMENT AND CANCELLATION 8.1 Illegality If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan (or, subject to paragraph (b) of Clause 4.2 (Further conditions precedent), if it becomes unlawful for any Affiliate of a Lender for that Lender to do so): (a) that Lender shall promptly notify the Agent upon becoming aware of that event; (b) upon the Agent notifying the Parent, the Available Commitment of that Lender will be immediately cancelled; and (c) to the extent that each Lender's participation has not been transferred pursuant to paragraph (d) of Clause 8.6 (Right of replacement or repayment and cancellation in relation to a single Lender), each Borrower shall repay that Lender's participation in the Loans made to that Borrower on the last day of the Interest Period for each Loan occurring after the Agent has notified the Parent or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be immediately cancelled in the amount of the participations repaid. 8.2 Change of control (a) If any person or group of persons acting in concert gains control of the Parent: (i) the Parent shall promptly notify the Agent upon becoming aware of that event; (ii) a Lender shall not be obliged to fund a Utilisation and the Agent and the Parent shall consult about the change of control; (iii) if the Majority Lenders so require after a period of 45 days from receipt of the notice referred to in paragraph (i) above (provided, for the avoidance of doubt, failure of the Parent to provide such notice shall not prevent the Lenders from taking the following actions), the Agent shall by notice to the Parent, (such notice to be delivered no later than 60 days from receipt of the notice referred to in paragraph (i) above), cancel each Available Commitment of each Lender and declare all Loans, together with accrued interest and all other amounts accrued or outstanding under the Finance Documents immediately due and payable, whereupon each such Available Commitment will be cancelled, the Facility shall cease to be available for further utilisation and all such Loans, accrued interest and other amounts will become immediately due and payable;
34 3203820842 (iv) if the Majority Lenders do not require cancellation and prepayment in accordance with paragraph (iii) above, a Lender may by notice to the Agent which shall be delivered not earlier than 45 days nor later than 60 days from receipt of the notice referred to in paragraph (i) above, whereupon the Agent shall by notice to the Parent (such notice to be delivered promptly after receipt of such Lender notification), cancel the Commitment of that Lender and declare the participation of that Lender in all outstanding Loans, together with accrued interest thereon and all other amounts due to such Lender under the Finance Documents immediately due and payable, whereupon the Commitment of that Lender will be cancelled and all such outstanding amounts will become immediately due and payable. (b) For the purpose of paragraph (a) above "control" means: (i) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: (A) cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the Parent; (B) appoint or remove all, or the majority, of the directors or other equivalent officers of the Parent; or (C) give directions with respect to the operating and financial policies of the Parent which the directors or other equivalent officers of the Parent are obliged to comply with; or (ii) the holding of more than one-half of the issued share capital of the Parent (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital). (c) For the purpose of paragraph (a) above "acting in concert" means, a group of persons who, pursuant to an agreement or understanding (whether formal or informal), actively co-operate, through the acquisition by any of them, either directly or indirectly, of shares in the Parent, to obtain or consolidate control of the Parent. 8.3 Voluntary cancellation During the Availability Period, the Parent may, if it gives the Agent not less than five Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of US$10,000,000) of an Available Facility. Any cancellation under this Clause 8.3 shall reduce the Commitments of the Lenders rateably. 8.4 Voluntary prepayment of Loans The Borrower to which a Loan has been made may, if it gives the Agent not less than five RFR Banking Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of a Loan (but if in part, being an amount that reduces the Base Currency Amount of the Loan by a minimum amount of US$10,000,000). 8.5 Mandatory prepayment (a) For the purposes of this Agreement: "Applicable Debt and Equity Proceeds" means the cash proceeds received by a member of the Group in respect of any Institutional Debt Issuance and/or Equity Raise after deducting: 35 3203820842 (a) any fees, costs expenses which are incurred by any member of the Group with respect to that Institutional Debt Issuance and/or Equity Raise (and any provisions for reserves for any such fees, costs and expenses); and (b) any amounts incurred, payable or reasonably expected to become payable in respect of Tax in connection with that Institutional Debt Issuance and/or Equity Raise. "Applicable Disposal Proceeds" means the cash proceeds (which are not Excluded Disposal Proceeds) received by a member of the Group in consideration for the disposal of an asset to a person that is not a member of the Group ("Disposal Proceeds"), after deducting: (a) any fees, costs and expenses which are incurred by any member of the Group with respect to that disposal (and any provisions for reserves for any such fees, costs and expenses); and (b) any amounts incurred, payable or expected to become payable in respect of Tax in connection with that disposal. “Applicable Prepayment Percentage” means, at the time at which any prepayment is required to be made in accordance with this Clause 8.5, the quotient (expressed as a percentage) of: 𝐴 (𝐴 + 𝐵) where: A is the principal amount of Loans outstanding under this Agreement at that time; B is the principal amount of Loans (as defined in the Bridge Facility Agreement) outstanding under the Bridge Facility Agreement at that time. "Equity Raise" means any issuance, after the date of this Agreement by the Parent or any other member of the Group (other than a Project Finance Subsidiary) of newly issued shares (including, without limitation, any ordinary or preference shares) or any issuance by the Parent or by any other member of the Group (other than a Project Finance Subsidiary) of any other equity or equity- linked instrument(s) (including, without limitation, any hybrid instrument or instruments or securities convertible or exchangeable into newly issued shares in the issuer), in each case, to any person outside of the Group (other than, for the avoidance of doubt, any such issuance that constitutes an Institutional Debt Issuance (or which would but for one of the exceptions in paragraphs (i) to (v) of the definition thereof)). “Excluded Disposal Proceeds” means: (a) any Disposal Proceeds received by a member of the Group in respect of any disposal referred to in any of paragraphs (a) to (e) or paragraph (h) of the definition of “Permitted Disposal”; and (b) any Disposal Proceeds to the extent that, the amount of such Disposal Proceeds does not, when aggregated with the amount of all other Disposal Proceeds received by members of the Group after the date of this Agreement and not applied in prepayment or cancellation of the Facility in reliance on this paragraph (b) does not exceed (at the time of the relevant disposal) 5 per cent. of Market Capitalisation. 36 3203820842 "Institutional Debt Issuance" means: (a) the issuance, sale, public offering or private placement of any debt security (including, without limitation, any public or private bond, note or other similar debt security and any private placement) or hybrid instrument (including, without limitation, any convertible instrument) by any member of the Group (other than a Project Finance Subsidiary); or (b) any borrowing under a loan facility raised by any member of the Group (other than a Project Finance Subsidiary), in each case, other than: (i) the incurrence by any member of the Group of any Financial Indebtedness referred to in any of paragraphs (a) to (k) of the definition of “Permitted Financial Indebtedness” (or any refinancing thereof); (ii) the incurrence of any Financial Indebtedness under any overdraft or local working capital facility; (iii) the incurrence of any Financial Indebtedness under or in connection with the Bridge Facility Agreement; (iv) any issuance under a commercial paper programme; (v) any utilisation under or refinancing of any facility in place or Financial Indebtedness outstanding in each case as at the date of this Agreement, to the extent, in the case of a refinancing, the amount of Financial Indebtedness raised does not exceed the amount of the existing Financial Indebtedness being refinanced; and (vi) any such issuance, sale, public offering, private placement or other borrowing to the extent that, the Financial Indebtedness outstanding in respect thereof does not, when aggregated with the amount of all other then outstanding Financial Indebtedness raised after the date of this Agreement and the proceeds of which were not applied in prepayment or cancellation of the Facility in reliance on this paragraph (v), does not exceed US$100,000,000 at any time. (b) The Parent shall procure that the Borrower(s) prepay Loans and cancel Available Commitments, in amounts equal to the Applicable Prepayment Percentage of: (a) the amount of the Applicable Disposal Proceeds; and/or (b) Applicable Debt and Equity Proceeds. Any such prepayment or cancellation shall be applied: (i) first, in cancellation of any Available Commitments (and each Lender's Available Commitment shall be cancelled rateably); and (ii) second, in prepayment of all outstanding Loans pro rata to each Lender’s participation in that Loan; in each case as soon as soon as reasonably practicable and in any event within 10 Business Days of the date of receipt of the Applicable Disposal Proceeds and/or the Applicable Debt and Equity Proceeds (as applicable) by (or on behalf of) the relevant member of the Group. 8.6 Right of replacement or repayment and cancellation in relation to a single Lender (a) If: 37 3203820842 (i) any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 13.2 (Tax gross-up); or (ii) any Lender claims indemnification from the Parent under Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased Costs), the Parent may, whilst the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that Lender's participation in the Loans or give the Agent notice of its intention to replace that Lender in accordance with paragraph (d) below. (b) On receipt of a notice of cancellation referred to in paragraph (a) above, the Available Commitment of that Lender shall be immediately reduced to zero whereupon the Total Commitments shall be reduced by the same amount. (c) On the last day of each Interest Period which ends after the Parent has given notice of cancellation under paragraph (a) above (or, if earlier, the date specified by the Parent in that notice), each Borrower to which a Loan is outstanding shall repay that Lender's participation in that Loan and that Lender's corresponding Commitment shall be immediately cancelled in the amount of the participations repaid. (d) The Parent may, if the circumstances set out in paragraph (a) above apply to a Lender or if an Obligor becomes obliged to pay any amount in accordance with Clause 8.1 (Illegality) to any Lender, on five Business Days' prior notice to the Agent and that Lender, replace that Lender by requiring that Lender to (and, to the extent permitted by law, that Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) for a purchase price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such Lender's participation in the outstanding Loans and all accrued interest (to the extent that the Agent has not given a notification under Clause 24.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents. (e) The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions: (i) the Parent shall have no right to replace the Agent; (ii) neither the Agent nor any Lender shall have any obligation to find a replacement Lender; (iii) in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and (iv) the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (d) 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 paragraph (d) above and shall notify the Agent and the Parent when it is satisfied that it has complied with those checks.
38 3203820842 (f) (i) If any Lender becomes a Defaulting Lender, the Parent may, at any time whilst the Lender continues to be a Defaulting Lender, give the Agent five Business Days' (or in the case of a Lender which is a Sanctioned Lender, one Business Day's) notice of cancellation of the Available Commitment of that Lender. (ii) On the notice referred to in paragraph (i) above becoming effective, the Available Commitment of the Defaulting Lender shall be immediately reduced to zero. (iii) The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (i) above, notify all the Lenders. 8.7 Restrictions (a) Any notice of cancellation or prepayment given by any Party under this Clause 8 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment. (b) Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty. (c) The Borrowers may not reborrow any part of the Facility which is repaid or prepaid. (d) The Borrowers shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement. (e) Subject to clause 2.2 (Increase), no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated. (f) If the Agent receives a notice under this Clause 8 it shall promptly forward a copy of that notice to either the Parent or the affected Lender, as appropriate. (g) If all or part of any Lender's participation in a Loan under the Facility is repaid or prepaid an amount of that Lender's Commitment (equal to the Base Currency Amount of the amount of the participation which is repaid or prepaid) in respect of that Facility will be deemed to be cancelled on the date of repayment or prepayment. 8.8 Application of prepayments Any prepayment of a Loan pursuant to paragraph (a)(iii) of Clause 8.2 (Change of control), Clause 8.4 (Voluntary prepayment of Loans) or Clause 8.5 (Mandatory prepayment) shall be applied pro rata to each Lender's participation in that Loan. 39 3203820842 SECTION 5 COSTS OF UTILISATION 9. INTEREST 9.1 Calculation of interest (a) The rate of interest on each Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable: (i) Margin; and (ii) Compounded Reference Rate for that day. (b) If any day during an Interest Period for a Loan is not an RFR Banking Day, the rate of interest on that Loan for that day will be the rate applicable to the immediately preceding RFR Banking Day. 9.2 Payment of interest Each Borrower to which a Loan has been made shall pay accrued interest on that Loan on the last day of each Interest Period. 9.3 Margin Subject to Clause 9.4 (Margin adjustments), the Margin on the date of this Agreement is 0.75 per cent. per annum. 9.4 Margin adjustments (a) Subject to the other provisions of this Clause 9.4, the Margin for all Loans shall, on any day be the percentage rate per annum determined by reference to the then applicable row in the table below corresponding to the period from the date of this Agreement during which that day falls and the column corresponding to the then applicable long term credit rating assigned to the Parent by either Moody's or Standard & Poor's as at that day. BBB / Baa2 or higher BBB- / Baa3 BB+ / Ba1 or lower From and including the date of this Agreement up to and including the date falling 3 Months after the date of this Agreement 0.55 0.75 0.95 From but excluding the date falling 3 Months after the date of this Agreement up to and including the date falling 6 Months after the date of this Agreement 0.80 1.00 1.20 From but excluding the date falling 6 Months after the date of this Agreement up to and including the date falling 9 Months after the date of this Agreement 1.05 1.25 1.45 From but excluding the date falling 9 Months after the date of this Agreement up to and including the date falling 12 Months after the date of this Agreement 1.40 1.60 1.80 40 3203820842 BBB / Baa2 or higher BBB- / Baa3 BB+ / Ba1 or lower From but excluding the date falling 12 Months after the date of this Agreement up to but excluding the date falling 15 Months after the date of this Agreement 1.75 1.95 2.15 From but excluding the date falling 15 Months after the date of this Agreement 2.10 2.30 2.50 (b) Any adjustment to the Margin (whether upwards or downwards) as a result of a change in the Parent’s long-term credit rating will apply from the date on which the Parent notifies the Agent of the publication of the relevant change to, or to the extent applicable, the withdrawal of the long term credit rating assigned to the Parent by Moody's or Standard & Poor's. (c) If at any time there is a difference in the long term credit ratings assigned to the Parent by each of Standard & Poor's and Moody's, the applicable Margin will be the average of the Margins applicable to the relevant ratings. (d) If at any time only one of Standard & Poor's or Moody's assigns a long term credit rating to the Parent or if either Standard & Poor's or Moody's ceases to assign a long term credit rating to the Parent: (i) the applicable Margin will be the average of (x) the Margin applicable to the rating assigned by the remaining rating agency or the rating agency that has issued a rating (as applicable) and (y) the applicable Margin set out in the table above in the column applicable to the ratings BB+ in the case of Standard & Poor's and Ba1 in the case of Moody's; or (ii) the Parent may obtain a substitute rating from another statistical rating agency acceptable to the Agent, acting reasonably, but until such time as a substitute rating agency is appointed by the Parent and has assigned a long term credit rating to the Parent, the Margin shall be determined in accordance with paragraph (i) above. (e) Following any substitution under paragraph (d)(ii) above, references in this Clause 9.4 to Moody's or Standard & Poor's as the case may be shall be to such substitute rating agency. (f) If none of Moody's, Standard & Poor's or any other statistical ratings agency appointed by the Parent under paragraph (d)(ii) above, assign a long term credit rating to the Parent, the Margin set out in the table above opposite the ratings BB+ in the case of Standard & Poor's and Ba1 in the case of Moody's will apply. (g) Notwithstanding any other provision, if at any time an Event of Default is continuing the Margin will be determined by reference to the above table as if the long term credit rating assigned to the Parent by Moody's was Ba1 and by Standard & Poor's was BB+. (h) If the relevant Event of Default ceases to be continuing, the Margin will be calculated in accordance with paragraph (a) above, and shall take effect in relation to each Loan from the next Business Day after the date on which the relevant Event of Default ceases to be continuing. 41 3203820842 (i) The Parent shall notify the Agent promptly upon (and in any event within three Business Days) becoming aware that Moody's, and/or Standard & Poor's and/or any other statistical ratings agency as appointed by the Parent under paragraph (d)(ii) above has published or withdrawn a long term credit rating assigned to the Parent. 9.5 Default interest (a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which is 1 per cent. per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 9.5 shall be immediately payable by that Obligor on demand by the Agent. (b) Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable. 9.6 Notifications (a) The Agent shall promptly upon an Interest Payment being determinable notify: (i) the relevant Borrower of that Interest Payment; (ii) each relevant Lender of the proportion of that Interest Payment which relates to that Lender's participation in the relevant Loan; and (iii) the relevant Lenders and the relevant Borrower of: (A) each applicable rate of interest relating to the determination of that Interest Payment; and (B) to the extent it is then determinable, the Market Disruption Rate (if any) relating to the relevant Loan. This paragraph (a) shall not apply to any Interest Payment determined pursuant to Clause 11.3 (Cost of funds). (b) The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan. (c) The Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of interest relating to a Loan to which Clause 11.3 (Cost of funds) applies. (d) This Clause 9.6 shall not require the Agent to make any notification to any Party on a day which is not a Business Day. 9.7 Interest Act (Canada) For the purposes of the Interest Act (Canada): (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year;
42 3203820842 (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder; and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields. 9.8 Criminal Code (Canada) If any provision of this Agreement would oblige a Canadian Obligor to make any payment of interest or other amount payable to any Finance Party in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Finance Party of "interest" at a "criminal rate" (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Finance Party of “interest” at a "criminal rate", such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows: (A) first, by reducing the amount or rate of interest; and (B) thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid which would constitute interest for purposes of section 347 of the Criminal Code (Canada). 10. INTEREST PERIODS 10.1 Selection of Interest Periods (a) A Borrower (or the Parent on behalf of a Borrower) may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice. (b) Each Selection Notice for a Loan is irrevocable and must be delivered to the Agent by a Borrower not later than 10:00 a.m. on the Business Day before the first day of the relevant Interest Period. (c) If the relevant Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will be the same length as the preceding Interest Period. (d) Subject to this Clause 10, a Borrower may select an Interest Period of any period specified in the applicable Reference Rate Terms or any other period agreed between that Borrower (or the Parent) and the Agent (acting on the instructions of all the Lenders) in relation to the relevant Loan. (e) An Interest Period for a Loan under the Facility shall not extend beyond the then earliest Termination Date which applies to a Lender participating in that Loan. (f) Each Interest Period for a Loan shall start on the Utilisation Date or (if already made) on the last day of its preceding Interest Period. (g) No Interest Period shall be longer than three Months. 10.2 Non-Business Days Any rules specified as "Business Day Conventions" in the applicable Reference Rate Terms shall apply to each Interest Period. 10.3 Consolidation and division of Loans (a) Subject to paragraph (b) below, if two or more Interest Periods: (i) relate to Loans in the same currency made to the same Borrower; and (ii) end on the same date, 43 3203820842 those Loans will, unless the relevant Borrower specifies to the contrary in the Selection Notice for the next Interest Period, be consolidated into, and treated as, a single Loan on the last day of the Interest Period. (b) Subject to Clause 4.4 (Maximum number of Loans) and Clause 5.3 (Currency and amount), if a Borrower requests in a Selection Notice that a Loan be divided into two or more Loans, that Loan will, on the last day of its Interest Period, be so divided with Base Currency Amounts specified in that Selection Notice, being an aggregate Base Currency Amount equal to the Base Currency Amount of the Loan immediately before its division. 11. CHANGES TO THE CALCULATION OF INTEREST 11.1 Interest calculation if no RFR or Central Bank Rate If: (a) there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Loan; and (b) "Cost of funds will apply as a fallback" is specified in the Reference Rate Terms for that Loan, Clause 11.3 (Cost of funds) shall apply to that Loan for that Interest Period. 11.2 Market Disruption If: (a) a Market Disruption Rate is specified in the Reference Rate Terms for a Loan; and (b) before the Reporting Time for that Loan, the Agent receives notifications from a Lender or Lenders (whose participations in that Loan exceed 35 per cent. of that Loan) that its cost of funds relating to its participation in that Loan would be in excess of that Market Disruption Rate, then Clause 11.3 (Cost of funds) shall apply to that Loan for the relevant Interest Period. 11.3 Cost of funds (a) If this Clause 11.3 applies to a Loan for an Interest Period, Clause 9.1 (Calculation of interest) shall not apply to that Loan for that Interest Period and the rate of interest on each Lender's share of that Loan for that Interest Period shall be the percentage rate per annum which is the sum of: (i) the applicable Margin; and (ii) the rate notified to the Agent by that Lender as soon as practicable and in any event by the Reporting Time for that Loan, to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in that Loan. (b) If this Clause 11.3 applies and the Agent or the Parent so requires, the Agent and the Parent shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest. (c) Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Parent, be binding on all Parties. (d) If this Clause 11.3 applies pursuant to Clause 11.2 (Market Disruption) and: 44 3203820842 (i) a Lender's Funding Rate is less than the relevant Market Disruption Rate; or (ii) a Lender does not notify a rate to the Agent by the relevant Reporting Time, that Lender's cost of funds relating to its participation in that Loan for that Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the Market Disruption Rate for that Loan. (e) If this Clause 11.3 applies the Agent shall, as soon as is practicable, notify the Parent. 11.4 Break Costs (a) If an amount is specified as Break Costs in the Reference Rate Terms for a Loan or Unpaid Sum, each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs (if any) attributable to all or any part of that Loan or Unpaid Sum being paid by that Borrower on a day prior to the last day of an Interest Period for that Loan or Unpaid Sum. (b) Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in respect of which they become, or may become, payable. 12. FEES 12.1 Commitment fee (a) GF Windfall shall pay to the Agent (for the account of each Lender) a fee (in the Base Currency) computed at the rate per annum equal to the applicable percentage (determined by reference to the table below) of the then applicable Margin, in each case on the unused and uncancelled amount of the Facility accruing during the Availability Period. Time periods (to the extent during the Availability Period) on which the Commitment Fee accrues Percentage of the then applicable Margin From and including 11 August 2024 to and including the date falling 11 September 2024 0% From and excluding 11 September 2024 to and including 11 October 2024 10% From and excluding 11 October 2024 to and including 11 November 2024 20% From and excluding 11 November 2024 to the end of the Availability Period 35% (b) The accrued commitment fee is payable on: (i) the last day of each successive period of three Months which ends during the Availability Period; (ii) on the last day of the relevant Availability Period; and (iii) if cancelled in full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective. (c) No commitment fee is payable to the Agent (for the account of a Lender) in respect of any day on which that Lender is a Defaulting Lender. 45 3203820842 12.2 Upfront Fee and Participation Fee An upfront fee and participation fee shall be payable by the Parent to the Arrangers, in the amount and at the times agreed in the Participation Fee Letter. 12.3 Agency fee An agency fee shall be paid by such Original Borrower as elected by the Parent to the Agent (for its own account) in the amount and at the times agreed in a Fee Letter.
46 3203820842 SECTION 6 ADDITIONAL PAYMENT OBLIGATIONS 13. TAX GROSS-UP AND INDEMNITIES 13.1 Definitions (a) In this Clause 13, "Tax Credit" means a credit against, relief or remission for, or repayment of any Tax. (b) Unless this Clause 13 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. 13.2 Tax gross-up (a) Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law. (b) 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 Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Parent and, if applicable, that Obligor. (c) If a Tax Deduction is required by law to be made: (i) by an Obligor (other than a Canadian Obligor or an Obligor as agent for a Canadian Obligor); or (ii) in respect of Indemnified Taxes, by a Canadian Obligor or an Obligor as agent for a Canadian 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. (d) 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. (e) Within 30 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 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. 13.3 Tax indemnity (a) An Obligor shall (within three Business Days of demand by the 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: (i) in the case of an Obligor other than a Canadian Obligor, Tax by that Finance Party in respect of a Finance Document; or 47 3203820842 (ii) in the case of a Canadian Obligor, Indemnified Taxes by that Finance Party in respect of a Finance Document. (b) Paragraph (a) above shall not apply: (i) in the case of an Obligor other than a Canadian Obligor, with respect to any Tax assessed on a Finance Party: (A) 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 (B) 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 (ii) to the extent a loss, liability or cost: (A) is compensated for by an increased payment under Clause 13.2 (Tax gross-up); or (B) relates to a FATCA Deduction required to be made by a Party. (c) A Finance Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Obligor. (d) A Finance Party shall, on receiving a payment from an Obligor under this Clause 13.3, notify the Agent. 13.4 Tax Credit If an Obligor makes a Tax Payment and the relevant Finance Party determines that: (a) a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and (b) that Finance Party has obtained and utilised that Tax Credit, the Finance Party shall pay an amount to such Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by such Obligor. 13.5 Stamp taxes Such Borrower as the Parent shall nominate shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document. 13.6 Value added tax (a) All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or 48 3203820842 supplies, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party). (b) If VAT is or becomes chargeable on any supply made by any Finance Party (the "Supplier") to any other Finance Party (the "Recipient") under a Finance Document, and any Party other than the Recipient (the "Subject Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT. (c) Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority. (d) Any reference in this Clause 13.6 to any Party shall, at any time when such Party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in the Value Added Tax Act 1994, Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union) or any other similar provision in any jurisdiction other than the United Kingdom or a member state of the European Union) so that a reference to a Party shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of which that Party is a member for VAT purposes at the relevant time or the relevant representative member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be). (e) In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply. 13.7 Reduction of Indemnified Taxes Any Lender that is entitled to an exemption from or reduction of Indemnified Taxes, or any other withholding Taxes (collectively, "Relevant Taxes") under the law of Canada, or any treaty to which Canada is a party, with respect to payments made under a Finance Document shall, at the request of a Canadian Obligor (or the Parent), deliver to the relevant Canadian Obligor (or the Parent) with a copy to the Agent, at the time or times prescribed by law or reasonably requested by the relevant Canadian Obligor (or the Parent) or the Agent, such properly completed and executed documentation prescribed by law (if any) as will permit such payments to be made without withholding or at a reduced rate of withholding or a reduced rate of Relevant Taxes. In addition, (i) any Lender, if requested by a Canadian Obligor (or the Parent) or the Agent, shall deliver such 49 3203820842 other documentation prescribed by law (if any) or reasonably requested by the relevant Canadian Obligor (or the Parent) or the Agent as will enable such Canadian Obligor or the Agent to determine whether or not such Lender is subject to withholding or information reporting requirements, and (ii) if any form or documentation previously delivered by a Lender becomes obsolete or inaccurate in any material respect, such Lender shall update such form or documentation or promptly notify the relevant Canadian Obligor and the Agent of its legal inability to do so. Notwithstanding anything to the contrary in this Clause 13.7, the completion, execution and submission of such documentation shall not be required if in the Lender’s reasonable judgement such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. 13.8 FATCA Information (a) Subject to paragraph (c) below, each Party shall, within 10 Business Days of a reasonable request by another Party: (i) confirm to that other Party whether it is: (A) a FATCA Exempt Party; or (B) not a FATCA Exempt Party; (ii) supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and (iii) supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime. (b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly. (c) Paragraph (a) above shall not oblige any Finance Party to do anything, and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of: (i) any law or regulation; (ii) any fiduciary duty; or (iii) any duty of confidentiality. (d) If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information. 13.9 FATCA Deduction (a) Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any
50 3203820842 payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. (b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the Party to whom it is making the payment and, in addition, shall notify the Parent, the Agent and the other Finance Parties. 14. INCREASED COSTS 14.1 Increased Costs (a) Such Borrower as the Parent shall nominate shall, within 20 Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of: (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation after the date of this Agreement; (ii) compliance with any law or regulation made after the date of this Agreement; or (iii) the implementation or application of, or compliance with, Basel III or any law or regulation that implements or applies Basel III (except, in each case, to the extent that any such costs were reasonably capable of being calculated by the relevant Finance Party as at the date of this Agreement or the date on which it became a party to this Agreement). (b) In this Agreement: (i) "Basel III" means (A) the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated; (B) the rules for global systemically important banks contained in "Global systemically important banks; assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and (C) any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III". (ii) "Increased Costs" means: (A) a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital; (B) an additional or increased cost; or (C) a reduction of any amount due and payable under any Finance Document, 51 3203820842 which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document. 14.2 Increased Cost Claims (a) A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased Costs) shall notify the Agent, promptly upon becoming aware of any Increased Costs, of the event giving rise to the claim (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information), following which the Agent shall promptly notify the Original Borrowers. (b) Each Finance Party shall, together with the notification in paragraph (a) above, provide a certificate to the Agent: (i) confirming the amount of its Increased Costs; (ii) outlining the basis of its calculation (in reasonable detail) (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information or information or detail that the Finance Party is not legally allowed to disclose (even if the recipient has given appropriate confidentiality undertakings)); and (iii) confirming that it is the policy of that Finance Party to make claims from similar borrowers under similar facilities (provided that the relevant Finance Party will not be obliged to divulge any confidential or price-sensitive information or information or detail that the Finance Party is not legally allowed to disclose (even if the recipient has given appropriate confidentiality undertakings)), (for the avoidance of doubt, a written statement by a Finance Party confirming that it is the policy of that Finance Party to make claims from similar borrowers under similar facilities will be sufficient evidence and no Finance Party will be required to provide any further evidence or otherwise substantiate its position concerning Basel III), following which the Agent shall promptly forward that certificate to the Original Borrowers. 14.3 Exceptions Clause 14.1 (Increased Costs) does not apply to the extent any Increased Cost is: (a) attributable to a Tax Deduction required by law to be made by an Obligor; (b) attributable to a FATCA Deduction required to be made by a Party; (c) compensated for by Clause 13.3 (Tax indemnity) (or would have been compensated for under Clause 13.3 (Tax indemnity) but was not so compensated solely because, in the case of an Obligor (other than a Canadian Obligor), any of the exclusions in paragraph (b) of Clause 13.3 (Tax indemnity) applied or in the case of a Canadian Obligor, it is in respect of an Excluded Tax); (d) attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or (e) attributable to the implementation or application of or compliance with the bank levy imposed by the United Kingdom government under the Finance Act 2011 in the form existing on the date of this Agreement (the "UK Bank Levy") or any other law or regulation which implements the UK Bank Levy (whether such implementation, application or compliance is by a government, regulator, Finance Party or any of its Affiliates). 52 3203820842 15. OTHER INDEMNITIES 15.1 Currency indemnity (a) If any sum due from an Obligor under the Finance Documents (a "Sum"), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the "First Currency") in which that Sum is payable into another currency (the "Second Currency") for the purpose of: (i) making or filing a claim or proof against that Obligor; (ii) obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, that Obligor shall as an independent obligation, within five Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum. (b) Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable. 15.2 Other indemnities Such Borrower as the Parent shall nominate shall, within five Business Days of demand, indemnify each Finance Party against any cost, loss or liability incurred by that Finance Party as a result of: (a) the occurrence of any Event of Default; (b) a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 28 (Sharing among the Finance Parties); (c) funding, or making arrangements to fund, its participation in a Loan requested by a Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); or (d) a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by a Borrower or the Parent. 15.3 Indemnity to the Agent The Parent shall promptly indemnify the Agent against any cost, loss or liability incurred by the Agent (acting reasonably) as a result of: (a) investigating any event which it reasonably believes is a Default; (b) acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; or (c) instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement. 15.4 Transaction indemnity The Parent shall within five Business Days of demand indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate, against any 53 3203820842 cost, loss or liability incurred by that Finance Party or its Affiliate (or officer, or employee of that Finance Party or Affiliate) in connection with or arising out of the Acquisition or the funding of the Acquisition (including, but not limited to, those incurred in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry concerning the Acquisition), unless such loss or liability is caused by the gross negligence or wilful misconduct of that Finance Party or its Affiliate (or employee or officer of that Finance Party or Affiliate). Any Affiliate or any officer or employee of a Finance Party or its Affiliate may rely on this Clause 15.4 subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act. 16. MITIGATION BY THE LENDERS 16.1 Mitigation (a) Each Finance Party shall, in consultation with the Parent, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax Gross-up and Indemnities) or Clause 14 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office. (b) Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents. 16.2 Limitation of liability (a) The Parent shall indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 16.1 (Mitigation). (b) A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it. 17. COSTS AND EXPENSES 17.1 Transaction expenses Such Borrower as the Parent shall nominate shall, promptly within five Business Days of demand, pay the Agent and the Arranger the amount of all costs and expenses (including legal fees but subject to any separately agreed cap) reasonably incurred by any of them in connection with the negotiation, preparation, printing and execution of: (a) this Agreement and any other documents referred to in this Agreement; and (b) any other Finance Documents executed after the date of this Agreement, subject to a cap of $10,000 (provided, however, that such cap shall not include the legal fees, which shall be subject to a separately agreed cap). 17.2 Amendment costs If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 29.10 (Change of currency), such Borrower as the Parent shall nominate shall, within five Business Days of demand, reimburse the Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent in responding to, evaluating, negotiating or complying with that request or requirement. 17.3 Enforcement costs Such Borrower as the Parent shall nominate shall, within five Business Days of demand, pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by that
54 3203820842 Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document. 55 3203820842 SECTION 7 GUARANTEE 18. GUARANTEE AND INDEMNITY 18.1 Guarantee and indemnity Each Guarantor irrevocably and unconditionally jointly and severally: (a) 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; (b) 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 (c) 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 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 18 if the amount claimed had been recoverable on the basis of a guarantee. 18.2 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. 18.3 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 or otherwise, without limitation, then the liability of each Guarantor under this Clause 18 will continue or be reinstated as if the discharge, release or arrangement had not occurred. 18.4 Waiver of defences The obligations of each Guarantor under this Clause 18 will not be affected by an act, omission, matter or thing which, but for this Clause 18, would reduce, release or prejudice any of its obligations under this Clause 18 (without limitation and whether or not known to it or any Finance Party) including: (a) any time, waiver or consent granted to, or composition with, any Obligor or other person; (b) 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; (c) 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 56 3203820842 requirement in respect of any instrument or any failure to realise the full value of any security; (d) 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; (e) 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; (f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or (g) any insolvency or similar proceedings. 18.5 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 18. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary. 18.6 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: (a) 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 (b) hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 18. 18.7 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 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 18: (a) to be indemnified by an Obligor; (b) to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents; (c) 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; 57 3203820842 (d) 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 18.1 (Guarantee and indemnity); (e) to exercise any right of set-off against any Obligor; and/or (f) 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 Agent or as the Agent may direct for application in accordance with Clause 29 (Payment Mechanics) 18.8 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: (a) 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 (b) 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. 18.9 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.
58 3203820842 SECTION 8 REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT 19. REPRESENTATIONS Each Obligor makes the representations and warranties set out in this Clause 19 to each Finance Party. 19.1 Status (a) It is a limited liability company or corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation. (b) It has the power to own its assets and carry on its business as it is being conducted or is contemplated to be conducted. 19.2 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. 19.3 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. 19.4 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: (a) any applicable law of its jurisdiction of incorporation; (b) its Constitutional Documents; or (c) any material agreement or instrument binding upon it or any of its assets. 19.5 Validity and admissibility in evidence (a) Subject to the Legal Reservations and paragraph (ii) below, all authorisations required: (i) 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 (ii) 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. (b) Paragraph (a) above shall not apply to any licence under any applicable licensing regime where such licence is required as a result of a Finance Party being a Sanctioned Finance Party and would require any member of the Group to take active steps to obtain and/or maintain such licence. 19.6 Governing law and enforcement Subject to the Legal Reservations: (a) the choice of English law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation; and 59 3203820842 (b) any judgment obtained in England in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation. 19.7 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. 19.8 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. 19.9 BVI Tax and Licencing (a) 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. (b) 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 Licences Act 1990. 19.10 No default (a) No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation. (b) 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. 19.11 No misleading information (a) All written factual information supplied by it to the Finance Parties and the Agent in connection with the Finance Documents (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. (b) 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. (c) It has not knowingly withheld any information which, if disclosed, would reasonably be expected to materially and adversely affect the decision of the Finance Parties in considering whether or not to provide finance to each Borrower. 19.12 Financial statements (a) The Original Financial Statements were prepared in accordance with GAAP. (b) The Original Financial Statements fairly present the Group's financial condition and its results of operations during the relevant Financial Year. 60 3203820842 19.13 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. 19.14 No proceedings pending or threatened Other than as disclosed in the financial statements most recently delivered to the Agent pursuant to paragraph (a) of Clause 20.1 (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. 19.15 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. 19.16 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. 19.17 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. 19.18 Taxation (a) It and each Material Group Company has duly and punctually paid and discharged all Taxes imposed upon it or its assets within the time period allowed without incurring penalties except to the extent that: (i) payment is being contested in good faith, it has maintained adequate reserves for those Taxes and payment can be lawfully withheld; or (ii) the aggregate amount of Taxes being withheld does not exceed US$30,000,000 (or its equivalent). (b) It is not and no Material Group Company is materially overdue in the filing of any Tax returns. 19.19 Ownership of Material Group Companies (a) Each existing Material Group Company on the date of this Agreement (other than the Cerro Corona Subsidiary, Newshelf, the Ghanaian Companies, Gold Fields Operations Limited and GFI Joint Venture Holdings Proprietary Limited) is a wholly-owned Subsidiary of the Parent and any member of the Group which becomes a Material Group Company after the date of this Agreement 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 61 3203820842 Subsidiary below the level of their shareholding at the time such Subsidiary became a Material Group Company. (b) The Parent holds at least 74 per cent. of the issued share capital of Newshelf. (c) Newshelf holds at least 74 per cent. of the issued share capital of each of Gold Fields Operations Limited and GFI Joint Venture Holdings Proprietary Limited. (d) The Parent indirectly holds at least 50.1 per cent. of the issued share capital of each Ghanaian Company. (e) The Parent indirectly holds at least 99 per cent. of the common shares in the share capital of the Cerro Corona Subsidiary (which equates to 98.5 per cent. of the issued and outstanding shares in the share capital of the Cerro Corona Subsidiary). 19.20 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. 19.21 Sanctions (a) 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 date of this Agreement) 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 date of this Agreement). (b) For the past 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. 19.22 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. 19.23 Times when representation made (a) All the representations and warranties in this Clause 19 are made by each Obligor on the date of this Agreement 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 paragraphs (a) and (b) of Clause 19.11 (No misleading information) which are deemed to be made on the date the Information is provided by the relevant Obligor. (b) The Repeating Representations are deemed to be made by each Obligor (by reference to the facts and circumstances then existing) on: (i) the date of each Utilisation Request; (ii) on each Utilisation Date; (iii) on the first day of each Interest Period; and
62 3203820842 (iv) in relation to any extension request made pursuant to Clause 7.2 (Extension option), the date of such extension request and the date falling on the first anniversary of the date of this Agreement; and save that the references in Clause 19.12 (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 Agent under Clause 19.12 (Financial statements). 20. INFORMATION UNDERTAKINGS The undertakings in this Clause 20 are given in favour of each Finance Party and remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force. 20.1 Financial statements The Parent shall supply to the Agent: (a) as soon as the same become available, but in any event within 120 days after the end of each of its Financial Years the audited consolidated financial statements of the Parent for that Financial Year; (b) as soon as the same become available, but in any event within 150 days after the end of each of its Financial Years: (i) the audited financial statements of each Obligor (other than Gold Fields Holdings Company Limited and Gold Fields Orogen Holding (BVI) Limited (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 (ii) if the audited financial statements of Gold Fields Holdings Company Limited, and/or Gold Fields Orogen Holding (BVI) Limited and/or any other Obligor which is not legally required to audit its financial statements (as the case may be) are not delivered under paragraph (i) above, the unaudited financial statements of Gold Fields Holdings Company Limited and/or Gold Fields Orogen Holding (BVI) and/or any other Obligor which is not legally required to audit its financial statements (as the case may be) for that Financial Year; (c) as soon as the same become available, but in any event within 60 days after the first six months of each of its Financial Years: (i) the unaudited financial statements of each Obligor for the first six month period of that Financial Year; and (ii) the unaudited consolidated financial statements of the Parent for the first six month period of that Financial Year. 20.2 Compliance Certificate (a) The Parent shall supply to the Agent, with each set of consolidated financial statements delivered pursuant to paragraphs (a) and (c) of Clause 20.1 (Financial statements), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with Clause 21 (Financial Covenants) as at the date as at which those financial statements were drawn up. 63 3203820842 (b) Each Compliance Certificate shall be signed by an authorised signatory of the Parent. 20.3 Requirements as to financial statements (a) Each set of financial statements delivered by the Parent pursuant to Clause 20.1 (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. (b) Subject to paragraph (c) below, the Parent shall procure that each set of financial statements delivered pursuant to Clause 20.1 (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 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 Agent: (i) 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 (ii) sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Agent to determine whether Clause 21 (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. (c) There shall be no requirement for the Parent to notify the Agent pursuant to paragraph (b) 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 paragraphs (b)(i) or (b)(ii) above in relation to the implementation of IFRS 16 and each set of financial statements delivered pursuant to Clause 20.1 (Financial statements) shall be prepared taking into account the implementation of IFRS 16. (d) If the Parent notifies the Agent of a change in accordance with paragraph (b) above, then the Parent and the Agent shall enter into negotiations in good faith with a view to agreeing: (i) 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 (ii) 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. (e) 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 20.3 to reflect the basis upon which the Original Financial Statements were prepared. 20.4 Information: miscellaneous (a) Each Obligor shall supply to the Agent: 64 3203820842 (i) if the 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; (ii) 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 (iii) promptly, such further information regarding the financial condition, business and operations of any Material Group Company as any Finance Party (through the Agent) may reasonably request, except where disclosure of such information would breach: (A) any law, regulation, rules of any stock exchange; or (B) any contractual confidentiality obligations not entered into for the primary purpose of circumventing an Obligor's obligations under this Clause 20.4. (b) Each Obligor agrees to use commercially reasonable endeavours to seek permission to disclose any information which it would be obliged to disclose pursuant to paragraph (a)(iii) above but for the exception in paragraph (a)(iii)(B) above. 20.5 Notification of default (a) Each Obligor shall notify the 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). (b) Promptly upon a request by the Agent, each Borrower shall supply to the Agent, a certificate signed by an authorised signatory 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). 20.6 Direct electronic delivery by 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 33.6 (Electronic communication) to the extent that Lender and the Agent agree to this method of delivery. 20.7 "Know your customer" checks (a) If: (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; (ii) 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 date of this Agreement; or (iii) a proposed assignment or 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 assignment or transfer, obliges the Agent or any Lender (or, in the case of paragraph (iii) 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 Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event 65 3203820842 described in paragraph (iii) 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. (b) Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the 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. (c) The Parent shall, by not less than 10 Business Days' prior written notice to the Agent, notify the 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. (d) Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Additional Obligor obliges the 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 Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the 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 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 checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to the Finance Documents as an Additional Obligor. 21. FINANCIAL COVENANTS 21.1 Financial definitions: (a) In this Clause 21: "Consolidated EBITDA" means, in respect of any Measurement Period, the consolidated net income of the Group (less the net income of any Project Finance Subsidiaries but including any dividends received in cash by any member of the Group (other than a Project Finance Subsidiary) from a Project Finance Subsidiary), before, without duplication and all as calculated 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 preparation of the applicable financial statements delivered pursuant to Clause 20.1 (Financial statements): (i) any provision on account of normal, deferred and royalty taxation; (ii) any interest, commission, discounts or other fees incurred or payable, received or receivable by any member of the Group in respect of Indebtedness for Borrowed Money; (iii) any other interest received or receivable by any member of the Group on any deposit or bank account; (iv) any non-cash adjustments to the environment rehabilitation and/or reclamation expenses; (v) any amount attributable to the amortisation of intangible assets and depreciation of tangible assets; (vi) any non-cash gains or losses relating to and resulting from the marked to market valuation of derivative and/or financial instruments;
66 3203820842 (vii) any losses from (or gains on the reversal of previously recognised) write-downs or impairments of assets and/or investments; (viii) any gains or losses recognised on the attributable share of results of associates after tax, but including any dividends received in cash by any member of the Group from such an associate; (ix) any share-based payments; (x) any other extraordinary or exceptional items; and (xi) any other material non-cash gain or loss that needs to be accounted for under GAAP, the requirements of its jurisdiction of incorporation and accounting practices and financial reference periods, in each case consistent with those applied in preparation of the applicable financial statements delivered pursuant to Clause 20.1 (Financial statements). For any company or other person (including, without limitation, any joint venture entity) that is not a Subsidiary of the Group but in which any member of the Group directly or indirectly owns an equity interest of more than 20 per cent. of the issued share capital (or other ownership interests) (an "Associate"), the Parent may include in the Consolidated EBITDA the percentage of the equity interest of the amount that would be the EBITDA of the Associate. "Consolidated Net Borrowings" means, at any time, the aggregate amount of all obligations of the members of the Group, other than Project Finance Subsidiaries (but including, for the avoidance of doubt, any guaranteed obligations of any other member of the Group in respect of the obligations of a Project Finance Subsidiary), for or in respect of Indebtedness for Borrowed Money but excluding any such obligation to any member of the Group, adjusted to take account of the aggregate amount of freely available cash and cash equivalents held by any member of the Group, other than Project Finance Subsidiaries, and so that no amount shall be included or excluded more than once, provided that, if a percentage of the EBITDA of any Associate is included in the Consolidated EBITDA then the same percentage of such Associate's Consolidated Net Borrowings (but as if references in such definition to "Group" were references to the Associate and its Subsidiaries) will be included in the calculation of Consolidated Net Borrowings; "Consolidated Net Finance Charges" means, in respect of any Measurement Period, the aggregate amount of the interest (including the interest element of leasing and hire purchase payments and capitalised interest) or recurring or periodic commission, fees, discounts and other recurring or periodic finance payments payable by any member of the Group, other than Project Finance Subsidiaries, (including any commission, fees, discounts and other finance payment payable by any member of the Group under any interest rate hedging arrangement but deducting any recurring or periodic commission, fees, discounts and other finance payments receivable by any member of the Group under any interest rate hedging instrument) but deducting any other interest receivable by any member of the Group, other than Project Finance Subsidiaries, on any deposit or bank account, provided that, if a percentage of the EBITDA of any Associate is included in the Consolidated EBITDA then the same percentage of such Associate's Consolidated Net Finance Charges (but as if references in such definition to "Group" were references to the Associate and its Subsidiaries) will be included in the calculation of Consolidated Net Finance Charges; and 67 3203820842 "Measurement Period" means each period of 12 months ending on the last day of the Parent's Financial Year and each period of 12 months ending on the last day of the first half of the Parent's Financial Year. (b) For the purposes of this Clause 21, if at any time the Cerro Corona Subsidiary is (or is deemed to be) a Material Group Company it shall be deemed to not be a Project Finance Subsidiary. 21.2 Financial condition (a) The Parent shall ensure that: (i) the ratio of Consolidated EBITDA to Consolidated Net Finance Charges in respect of any Measurement Period shall be or shall exceed 4:1; and (ii) the ratio of Consolidated Net Borrowings to Consolidated EBITDA shall not in respect of any Measurement Period exceed 3.5:1. (b) The undertakings in paragraph (a) above remain in force from the date of this Agreement for so long as any amount is outstanding under a Finance Document or a Commitment is in force. 21.3 Financial testing The financial covenants set out in Clause 21.2 (Financial condition) shall be tested by reference to each of the financial statements and/or each Compliance Certificate delivered pursuant to Clauses 20.1 (Financial statements) and 20.2 (Compliance Certificate). 22. GENERAL UNDERTAKINGS The undertakings in this Clause 22 are given in favour of each Finance Party and remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force. 22.1 Authorisations (a) Subject to paragraph (b) below, each Obligor shall promptly obtain, comply with and do all that is necessary to maintain in full force and effect any authorisation required under any applicable law to enable it to perform its obligations under the Finance Documents to which it is a party and to ensure the legality, validity, enforceability or admissibility in evidence of any Finance Document. (b) Paragraph (a) above shall not require an Obligor to take active steps to obtain and/or maintain any licence under any applicable licensing regime where such licence is required as a result of a Finance Party being a Sanctioned Finance Party. 22.2 Compliance with laws Each Obligor shall comply in all respects with all laws and regulations to which it may be subject (including, but not limited to, Environmental Law), if failure so to comply would have a Material Adverse Effect. 22.3 Negative pledge (a) No Obligor shall (and the Parent shall procure that no other Material Group Company shall) create or permit to subsist any Encumbrance over any of its assets. (b) No Obligor shall (and the Parent shall ensure that no other Material Group Company will): (i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by it or by an Obligor or any other member of the Group; (ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms; 68 3203820842 (iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or (iv) enter into any other preferential arrangement having a similar effect, in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset. (c) Paragraphs (a) and (b) above do not apply to Permitted Encumbrances. 22.4 Disposals and Mergers (a) No Obligor shall (and the Parent shall ensure that no other Material Group Company will): (i) enter into a single transaction or a series of transactions (whether related or not) and whether voluntarily or involuntarily to sell, lease, transfer or otherwise dispose of any assets; or (ii) enter into any amalgamation, demerger, merger or corporate reconstruction. (b) Paragraph (a) above does not apply to: (i) Permitted Disposals; or (ii) any amalgamation, demerger, merger or corporate reconstruction of any member of the Group, without insolvency, if: (A) in respect of the Obligors or the successors-in-title or assignees of the Obligors, the Finance Documents are preserved as binding upon the amalgamated, demerged, merged and/or reconstructed members of the Group; (B) the amalgamated, demerged, merged and/or reconstructed companies will be members of the Group; and (C) such amalgamation, demerger, merger and/or corporate reconstruction will not have a Material Adverse Effect. 22.5 Change of business Each Obligor shall procure that no substantial change is made to the general nature of its business or the business of the Group taken as a whole from that carried on at the date of this Agreement. 22.6 Insurance Each Obligor shall (and the Parent shall ensure that each Material Group Company will) maintain insurances on and in relation to its business, properties and assets with reputable underwriters or insurance companies against those risks and to the extent as is usual for companies carrying on the same or substantially similar business. 22.7 Environmental Compliance Each Obligor shall (and the Parent shall ensure that each Material Group Company will) comply with all Environmental Law and obtain and maintain any Environmental Permits and take all reasonable steps in anticipation of known or expected future changes to or obligations under the same, in each case, where a failure to do so would be reasonably likely to have a Material Adverse Effect. 69 3203820842 22.8 Environmental Claims Each Obligor shall inform the Agent, in writing as soon as reasonably practical upon becoming aware of the same: (a) if any Environmental Claim (not of a frivolous or vexatious nature) has been commenced or (to the best of its knowledge and belief) threatened against any Material Group Company; or (b) of any facts or circumstances which will or are reasonably likely to result in any Environmental Claim (not of a frivolous or vexatious nature) being commenced or threatened against any Material Group Company, where the claim is reasonably likely to be determined against that Material Group Company and would be reasonably likely, if determined against that Material Group Company, to have a Material Adverse Effect. 22.9 Claims Pari Passu (a) Subject to the Legal Reservations and paragraph (b) below, each Obligor shall ensure that at all times the claims of the Finance Parties against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors save those whose claims are preferred by any bankruptcy, insolvency, liquidation or other similar laws of general application in its jurisdiction of incorporation or in the case of a Canadian Obligor, any other laws of general application in Canada. (b) Paragraph (a) above shall not apply to claims of a Sanctioned Finance Party, provided that, for the avoidance of doubt, notwithstanding any Finance Party (a "Relevant Finance Party") being a Sanctioned Finance Party, paragraph (a) above shall continue to apply in respect of claims of the Finance Parties that are not Sanctioned Finance Parties, whether or not claims of such other Finance Parties may be affected by the Relevant Finance Party being a Sanctioned Finance Party. 22.10 Acquisitions No Obligor shall (and the Parent shall ensure that no Material Group Company will), acquire any assets or business or make any investments if such acquisition or investment would be classed as a "Category 1" transaction under the Listing Requirements of the JSE Limited. 22.11 Financial Indebtedness No member of the Group (other than a Guarantor or a Project Finance Subsidiary) shall incur, create or permit to subsist or have outstanding any Financial Indebtedness other than Permitted Financial Indebtedness. 22.12 Ownership of Material Group Companies Subject to applicable law, the Parent shall ensure that: (a) each existing Material Group Company on the date of this Agreement (other than the Cerro Corona Subsidiary, Newshelf, the Ghanaian Companies, Gold Fields Operations Limited and GFI Joint Venture Holdings Proprietary Limited) is and continues to be a wholly-owned Subsidiary of the Parent and each member of the Group which becomes a Material Group Company after the date of this Agreement is a wholly or partially owned Subsidiary of the Parent and that members of the Group will hold and continue to hold at least the same percentage of the issued share capital of such Material Group Company as was held by members of the Group at the time such Subsidiary became a Material Group Company;
70 3203820842 (b) the Parent holds and continues to hold at least 74 per cent. of the issued share capital of Newshelf; (c) Newshelf holds and continues to hold at least 74 per cent. of the issued share capital of each of Gold Fields Operations Limited and GFI Joint Venture Holdings Proprietary Limited; (d) the Parent indirectly holds and continues to indirectly hold at least 50.1 per cent. of the issued share capital of each Ghanaian Company; and (e) the Parent indirectly holds and continues to indirectly hold at least 99 per cent. of the common shares in the share capital of the Cerro Corona Subsidiary (which equates to 98.5 per cent. of the issued and outstanding shares in the share capital of the Cerro Corona Subsidiary). 22.13 Sanctions (a) The Parent shall not (and shall procure that no Subsidiary will) engage in any dealings or transactions occurring in a Sanctioned Country or with any person that at the time of the dealing or transaction is the subject or the target of Sanctions or located in any Sanctioned Country. (b) The Parent shall not (and shall procure that no Subsidiary will): (i) knowingly use, contribute or otherwise make available the proceeds of any Facility for the purpose of financing or making funds available directly; or (ii) use, contribute or otherwise make available the proceeds of any Facility for the purpose of financing or making funds available indirectly, to any person which is the subject or target of any Sanctions or located in a Sanctioned Country, to the extent that such financing or provision of funds is prohibited by Sanctions. 22.14 Anti-corruption (a) No Obligor shall (and the Parent shall ensure that no Subsidiary will) directly or indirectly use the proceeds of the Facility for any purpose which would breach any applicable Anti-Corruption Laws. (b) The Parent shall (and shall ensure that each of its Subsidiaries will) maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable Anti-Corruption Laws. 22.15 Anti-Money Laundering Each Obligor acknowledges that, pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and other applicable anti-money laundering, anti-terrorist financing, and "know your client" Laws within Canada (collectively, including any guidelines or orders thereunder, "Canadian AML Legislation") the Finance Parties may be required to obtain, verify and record information regarding the Obligors, their directors, authorized signing officers, direct or indirect shareholders or other Persons in control of any Obligor, and the transactions contemplated thereby. Each Obligor shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Finance Party, or any prospective assign or participant of any Finance Party, in order to comply with any applicable Canadian AML Legislation whether now or hereafter in existence. 71 3203820842 23. EVENTS OF DEFAULT Each of the events or circumstances set out in this Clause 23 is an Event of Default (whether or not caused by any reason whatsoever outside the control of a Borrower or the Parent or any other person) save for Clauses 23.15 (Acceleration) and 23.16 (Remedy). 23.1 Non-payment An Obligor does not pay on the due date: (a) any principal amount of a Loan at the place and in the currency in which it is expressed to be payable unless payment is made within three Business Days of its due date; or (b) any other amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless payment is made within five Business Days of its due date. 23.2 Financial covenants Any requirement of Clause 21 (Financial Covenants) is not satisfied. 23.3 Other obligations Subject to Clause 23.16 (Remedy), an Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clauses 23.1 (Non-payment) and 21 (Financial Covenants)). 23.4 Misrepresentation Subject to Clause 23.16 (Remedy), any representation or statement made or deemed to be made by any Obligor in the Finance Documents or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material and adverse respect when made or deemed to be made. 23.5 Cross-default (a) Any Financial Indebtedness of a Material Group Company is not paid when due, nor where there is an applicable grace period, within the originally applicable grace period. (b) Any Financial Indebtedness of a Material Group Company is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described). (c) Any commitment for any Financial Indebtedness of a Material Group Company is cancelled or suspended by a creditor of a Material Group Company as a result of an event of default (however described). (d) Any creditor of a Material Group Company becomes entitled to declare any Financial Indebtedness of a Material Group Company due and payable prior to its specified maturity as a result of an event of default (however described). (e) No Event of Default will occur under this Clause 23.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness, falling within paragraphs (a) to (d) above is less than $100,000,000 (or its equivalent). 23.6 Insolvency (a) Any Material Group Company is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial 72 3203820842 difficulties, commences negotiations with one or more of its classes of creditors with a view to rescheduling any of its Financial Indebtedness which in the case of a Material Group Company (other than an Obligor) could reasonably be expected to have a Material Adverse Effect. (b) The value of the assets of any Material Group Company, fairly valued, is less than its liabilities (taking into account contingent and prospective liabilities) which in the case of a Material Group Company (other than an Obligor) could reasonably be expected to have a Material Adverse Effect. (c) A moratorium is declared in respect of any Financial Indebtedness of any Material Group Company. 23.7 Insolvency proceedings Any corporate action, legal proceedings or other similar procedure or step is taken in relation to: (a) the suspension of payments, a moratorium of any Financial Indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Material Group Company; (b) a composition, compromise, assignment or arrangement with any creditor or class of creditors of any Material Group Company; (c) the appointment of a liquidator, receiver, administrator, administrative receiver, judicial manager, compulsory manager, monitor, receiver and manager, interim receiver or other similar officer in respect of any Material Group Company or any of its assets; or (d) enforcement of any Encumbrance over any assets of any Material Group Company, or any analogous procedure or step is taken in any jurisdiction and any such procedure or proceedings are not contested in good faith nor discharged within 30 days (or such shorter period provided for contesting such procedure or proceedings under the laws of the relevant jurisdiction). 23.8 Creditors' process Any expropriation (other than an expropriation where fair compensation is received) or the operation of the attachment, sequestration, distress or execution affects any material asset of a Material Group Company and is not discharged within 21 days. For the purposes of this Clause 23.8, a "material asset" is any single income producing asset of the relevant Material Group Company which contributes not less than 5 per cent. towards the Consolidated EBITDA or gross assets of the Group (calculated according to the most recent set of audited consolidated financial statements delivered pursuant to Clause 20.1 (Financial statements)) provided that any loss of mineral rights arising as a result of the operation of the Mineral and Petroleum Resources Development Act, No. 28 of 2002 (the "MPRDA") (including the broad-based socio-economic empowerment charter for the mining and minerals industry, as amended, revised and/or restated (the "Mining Charter"), the Codes of Good Practice for the Minerals Industry and the Housing and Living Conditions Standard for the Minerals Industry published in accordance with the MPRDA) substantially in its current form as at the date of this Agreement and/or the operation of the Mineral and Petroleum Resources Royalty Act, No. 28 of 2008, substantially in its current form as at the date of this Agreement shall not constitute an expropriation for the purposes of this Clause 23.8. 23.9 Unlawfulness It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or such obligations cease to be legal, valid, binding or enforceable obligations. 73 3203820842 23.10 Repudiation and Unenforceability An Obligor repudiates a Finance Document or any Finance Document is declared to be or is otherwise unenforceable against an Obligor by a court of the jurisdiction of incorporation of the relevant Obligor. 23.11 Governmental Intervention By or under the authority of any government: (a) the management of any Material Group Company is wholly or partially displaced or the authority of any Material Group Company in the conduct of its business is wholly or partially taken over; or (b) all or a majority of the issued shares of any Material Group Company or material part of its revenues or assets is seized, nationalised, expropriated or compulsorily acquired. For the purposes of this Clause 23.11 "material part of its revenues or assets" shall in relation to the relevant Material Group Company be construed as revenues comprising not less than 5 per cent. of the Consolidated EBITDA or gross assets of the Group calculated mutatis mutandis in accordance with the provisions of Clause 23.8 (Creditors' process) or assets which contribute not less than 5 per cent. towards the Consolidated EBITDA or gross assets of the Group calculated mutatis mutandis accordance with the provisions of Clause 23.8 (Creditors' process), provided that neither the implementation of the MPRDA (including the Mining Charter, the Codes of Good Practice for the Minerals Industry and the Housing and Living Conditions Standard for the Minerals Industry published in accordance with the MPRDA) substantially in its current form as at the date of this Agreement nor the implementation of the Mineral and Petroleum Resources Royalty Act, No. 28 of 2008, in each case substantially in its current form as at the date of this Agreement, shall constitute a seizure, nationalisation, expropriation or compulsory acquisition as contemplated by this Clause 23.11. 23.12 Material Adverse Effect Any change occurs 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 be reasonably likely to have a Material Adverse Effect. 23.13 Cessation of Business The Group taken as a whole ceases to carry on the business which it undertakes at the date of this Agreement. 23.14 Litigation Any litigation, arbitration, administrative proceedings or governmental or regulatory investigations or proceedings against any Material Group Company or its respective assets or revenues is reasonably expected to be adversely determined, and if so determined, could reasonably be expected to have a Material Adverse Effect. 23.15 Acceleration On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders, by notice to the Borrowers and the Parent:
74 3203820842 (a) cancel each Available Commitment of each Lender whereupon each such Available Commitment shall immediately be cancelled and the Facility shall immediately cease to be available for further utilisation; (b) declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or (c) declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders. 23.16 Remedy (a) No Event of Default under this Clause 23 (other than those referred to in Clauses 23.1 (Non- payment), 23.2 (Financial covenants), 23.3 (Other obligations) (in respect of a failure by an Obligor to comply with Clause 22.13 (Sanctions) or Clause 22.14 (Anti-corruption)) and 23.4 (Misrepresentation) (in respect of a representation or statement made by an Obligor under Clause 19.21 (Sanctions) or Clause 19.22 (Anti-corruption))) will occur if the failure to comply or circumstance giving rise to the same is capable of remedy and is remedied by an Obligor within 30 days of the earlier of the Agent giving notice to the Obligors or any Obligor becoming aware of the failure to comply. (b) For the purposes of paragraph (a) above, the events or circumstances referred to in paragraphs (b) and (c) of Clause 23.5 (Cross-default), Clauses 23.6 (Insolvency), 23.7 (Insolvency proceedings), 23.8 (Creditors' process), 23.9 (Unlawfulness), 23.10 (Repudiation and Unenforceability), 23.12 (Material Adverse Effect) and 23.13 (Cessation of Business) shall be deemed to be incapable of remedy save to the extent set out therein unless the Agent (acting reasonably) determines otherwise. 23.17 Clean-up period (a) Notwithstanding any other provision of any Finance Document, but subject to paragraph (b) below, and until the Clean-up Date, any matter or circumstance that exists in respect of the Group which constitutes a Clean-Up Default will be deemed not to be a breach of representation or warranty, a breach of undertaking or an Event of Default (as the case may be) if: (i) it would have been (if it were not for this provision) a breach of representation or warranty, a breach of undertaking or an Event of Default, only by reason of circumstances relating to any member of the Target Group (or any obligation to procure or ensure in relation to a member of the Target Group); (ii) it is capable of remedy and reasonable steps are being taken to remedy it; (iii) the circumstances giving rise to it have not been procured or approved by any member of the Group, provided that, no member of the Group will be deemed to have procured or approved a Clean-Up Default as a result solely of effecting the Acquisition; and (iv) it is not reasonably likely to have a Material Adverse Effect. (b) If the relevant matter or circumstance is continuing on or after the Clean-up Date, there shall be a breach of representation or warranty, breach of undertaking or Event of Default, as the case may be notwithstanding the above (and without prejudice to the rights and remedies of the Finance Parties). 75 3203820842 SECTION 9 CHANGES TO PARTIES 24. CHANGES TO THE LENDERS 24.1 Assignments and transfers by the Lenders Subject to this Clause 24, a Lender (the "Existing Lender") may: (a) assign any of its rights; or (b) transfer by novation any of its rights and obligations, to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the "New Lender"). 24.2 Conditions of assignment or transfer (a) The consent of the Parent is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer: (i) is to another Lender or an Affiliate of a Lender (provided that, in the case of a transfer to an Affiliate during the Availability Period, if that Affiliate fails to perform its obligations under this Agreement, the Existing Lender shall be obliged to perform those obligations); or (ii) takes effect at a time when either: (A) during the Availability Period an Event of Default which is also a Major Default has occurred and is continuing; or (B) at any other time, an Event of Default has occurred and is continuing, provided that where the assignment or transfer is to a Sanctioned Lender the consent of the Parent is required in all cases. (b) Subject to paragraph (c) below, the consent of the Parent to an assignment or transfer (if required) must not be unreasonably withheld or delayed. The Parent will be deemed to have given its consent five Business Days after the Existing Lender has requested it unless consent is expressly refused by the Parent within that time. (c) During the Availability Period, the consent of the Parent to an assignment or transfer (if required) may be given or withheld in the Parent’s absolute discretion and shall never be deemed to have been given. (d) An assignment will only be effective on: (i) receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it had been an Original Lender; and (ii) performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender. 76 3203820842 (e) A transfer will only be effective if the procedure set out in Clause 24.5 (Procedure for transfer) is complied with. (f) If: (i) a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and (ii) as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 13 (Tax Gross-up and Indemnities) or Clause 14 (Increased Costs), then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred. (g) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender. 24.3 Assignment or transfer fee The New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of $3,000, unless the Agent, in its sole discretion, agrees to waive the payment of such fee. 24.4 Limitation of responsibility of Existing Lenders (a) Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: (i) the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents; (ii) the financial condition of any Obligor; (iii) the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or (iv) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document, and any representations or warranties implied by law are excluded. (b) Each New Lender confirms to the Existing Lender and the other Finance Parties that it: (i) has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and 77 3203820842 (ii) will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force. (c) Nothing in any Finance Document obliges an Existing Lender to: (i) accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 24; or (ii) support any losses directly or indirectly incurred by the New Lender by reason of the non- performance by any Obligor of its obligations under the Finance Documents or otherwise. 24.5 Procedure for transfer (a) Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer) a transfer is effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate. (b) The 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. (c) Subject to Clause 24.9 (Pro rata interest settlement), on the Transfer Date: (i) 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"); (ii) 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; (iii) the Agent, the 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 Agent, the Arranger and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and (iv) the New Lender shall become a Party as a "Lender". 24.6 Procedure for assignment (a) Subject to the conditions set out in Clause 24.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the
78 3203820842 New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement. (b) The Agent shall only be obliged to execute an Assignment Agreement 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 assignment to such New Lender. (c) Subject to Clause 24.9 (Pro rata interest settlement), on the Transfer Date: (i) the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement; (ii) the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the "Relevant Obligations") and expressed to be the subject of the release in the Assignment Agreement; and (iii) the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations. (d) Lenders may utilise procedures other than those set out in this Clause 24.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 24.5 (Procedure for transfer), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender) provided that they comply with the conditions set out in Clause 24.2 (Conditions of assignment or transfer). 24.7 Copy of Transfer Certificate, Assignment Agreement or Increase Confirmation to Parent The Agent shall, as soon as reasonably practicable after it has executed an Increase Confirmation, Transfer Certificate or an Assignment Agreement, send to the Parent a copy of that Increase Confirmation, Transfer Certificate or Assignment Agreement. 24.8 Security over Lenders' rights In addition to the other rights provided to Lenders under this Clause 24, 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: (a) any charge, assignment or other Encumbrance to secure obligations to a federal reserve or central bank; and (b) 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: (i) 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 79 3203820842 (ii) 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. 24.9 Pro rata interest settlement (a) If the 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 24.5 (Procedure for transfer) or any assignment pursuant to Clause 24.6 (Procedure for assignment) 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): (i) 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; and (ii) the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts so that, for the avoidance of doubt: (A) when the Accrued Amounts become payable, those Accrued Amounts will be payable for the account of the Existing Lender; and (B) the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 24.9, have been payable to it on that date, but after deduction of the Accrued Amounts. (b) In this Clause 24.9, references to "Interest Period" shall be construed to include a reference to any other period for the accrual of fees. (c) An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 24.9 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. 24.10 Lender Affiliates and Facility Office (a) In respect of a Loan or Loans to a particular Borrower ("Designated Loans") a Lender (a "Designating Lender") may at any time and from time to time designate (by written notice to the Agent and the Parent): (i) a substitute Facility Office from which it will make Designated Loans (a "Substitute Facility Office"); or (ii) nominate an Affiliate to act as the Lender of Designated Loans (a "Substitute Affiliate Lender"). (b) A notice to nominate a Substitute Affiliate Lender must be in the form set out in Schedule 12 (Form of Substitute Affiliate Lender Designation Notice) and be countersigned by the relevant Substitute Affiliate Lender confirming it will be bound as a Lender under this Agreement in respect of the Designated Loans in respect of which it acts as Lender. 80 3203820842 (c) The Designating Lender will act as the representative of any Substitute Affiliate Lender it nominates for all administrative purposes under this Agreement. The Obligors, the Agent and the other Finance Parties will be entitled to deal only with the Designating Lender, except that payments will be made in respect of Designated Loans to the Facility Office of the Substitute Affiliate Lender. In particular the Commitments of the Designating Lender will not be treated as reduced by the introduction of the Substitute Affiliate Lender for voting purposes under this Agreement or the other Finance Documents. (d) Save as mentioned in paragraph (c) above, a Substitute Affiliate Lender will be treated as a Lender for all purposes under the Finance Documents and having a Commitment equal to the principal amount of all Designated Loans in which it is participating if and for so long as it continues to be a Substitute Affiliate Lender under this Agreement. (e) A Designating Lender may revoke its designation of an Affiliate as a Substitute Affiliate Lender by notice in writing to the Agent and the Parent provided that such notice may only take effect when there are no Designated Loans outstanding to the Substitute Affiliate Lender. Upon such Substitute Affiliate Lender ceasing to be a Substitute Affiliate Lender the Designating Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Substitute Affiliate Lender. (f) If a Designating Lender designates a Substitute Facility Office or Substitute Affiliate Lender in accordance with this Clause 24.10, the provisions of paragraph (f) of Clause 24.2 (Conditions of assignment or transfer) shall not apply to or in respect of any Substitute Facility Office or Substitute Affiliate Lender. 25. CHANGES TO THE OBLIGORS 25.1 Assignment and transfer by Obligors No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents. 25.2 Additional Borrowers (a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 20.7 ("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: (i) either: (A) that Subsidiary is a wholly-owned Subsidiary incorporated in the same jurisdiction as an existing Borrower; or (B) all the Lenders, acting reasonably, approve the addition of that Subsidiary; (ii) the Parent delivers to the Agent a duly completed and executed Accession Letter; (iii) the Parent confirms that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and (iv) the 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 Agent. 81 3203820842 (b) The 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). (c) Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. 25.3 Resignation of an Additional Borrower (a) The Parent may request that a Borrower (other than an Original Borrower) ceases to be a Borrower by delivering to the Agent a Resignation Letter. (b) The Agent shall accept a Resignation Letter and notify the Parent and the Lenders of its acceptance if: (i) no Default is continuing or would result from the acceptance of the Resignation Letter (and the Parent has confirmed to the Agent that this is the case); and (ii) 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. 25.4 Additional Guarantors (a) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 20.7 ("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; (i) the Parent delivers to the Agent a duly completed and executed Accession Letter; and (ii) the Agent has received all of the documents and other evidence listed in Part III of Schedule 2 (Conditions Precedent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent. (b) The 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 III of Schedule 2 (Conditions Precedent). (c) Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in paragraph (b) above, the Lenders authorise (but do not require) the Agent to give that notification. The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification. 25.5 Repetition of representations Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the Repeating Representations and the representations in Clause 19.3 (Binding obligations), Clause 19.6 (Governing law and enforcement) and paragraph (b) of Clause 19.21 (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.
82 3203820842 25.6 Resignation of an Additional Guarantor (a) The Parent may request that a Guarantor (other than an Original Guarantor) ceases to be a Guarantor by delivering to the Agent a Resignation Letter. (b) The 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 Agent that this is the case. 83 3203820842 SECTION 10 THE FINANCE PARTIES 26. ROLE OF THE AGENT AND THE ARRANGER 26.1 Appointment of the Agent (a) Each other Finance Party appoints the Agent to act as its agent under and in connection with the Finance Documents. (b) Each other Finance Party authorises the Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions. (c) Each Finance Party incorporated in Germany hereby exempts the Agent from the restrictions under section 181 second alternative (multi-representation) of the German Civil Code, to the extent legally permissible. 26.2 Instructions (a) The Agent shall: (i) unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by: (A) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and (B) in all other cases, the Majority Lenders; and (ii) not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above. (b) The 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 Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested. (c) 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 Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties. (d) The 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. (e) In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders. 84 3203820842 (f) The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document. 26.3 Duties of the Agent (a) The Agent's duties under the Finance Documents are solely mechanical and administrative in nature. (b) Subject to paragraph (c) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party. (c) Without prejudice to Clause 24.7 (Copy of Transfer Certificate or Assignment Agreement to Parent), paragraph (a) above shall not apply to any Transfer Certificate or any Assignment Agreement. (d) Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. (e) If the 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. (f) If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent or the Arranger) under this Agreement it shall promptly notify the other Finance Parties. (g) The 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). (h) The Agent shall provide to the Parent within 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 Agent to that Lender under the Finance Documents. 26.4 Role of the Arranger Except as specifically provided in the Finance Documents, the Arranger has no obligations of any kind to any other Party under or in connection with any Finance Document. 26.5 No fiduciary duties (a) Nothing in any Finance Document constitutes the Agent or the Arranger as a trustee or fiduciary of any other person. (b) Neither the Agent nor the 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. 85 3203820842 26.6 Business with the Group The Agent and the 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. 26.7 Rights and discretions (a) The Agent may: (i) rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised; (ii) assume that: (A) 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 (B) unless it has received notice of revocation, that those instructions have not been revoked; and (iii) rely on a certificate from any person: (A) as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or (B) to the effect that such person approves of any particular dealing, transaction, step, action or thing, (iv) as sufficient evidence that that is the case and, in the case of paragraph (iii)(A) above, may assume the truth and accuracy of that certificate. (b) The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: (i) no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (Non-payment)); (ii) any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and (iii) any notice or request made by the Parent (other than a Utilisation Request or Selection Notice) is made on behalf of and with the consent and knowledge of all the Obligors. (c) The Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts. (d) Without prejudice to the generality of paragraph (c) above or paragraph (e) below, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be necessary. (e) The 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 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.
86 3203820842 (f) The Agent may act in relation to the Finance Documents through its officers, employees and agents. (g) Unless a Finance Document expressly provides otherwise, the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement. (h) Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent nor the 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. (i) Notwithstanding any provision of any Finance Document to the contrary, the 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. (j) Without prejudice to the generality of paragraph (g) above, the 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. 26.8 Responsibility for documentation Neither the Agent nor the Arranger is responsible or liable for: (a) the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the 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; (b) 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 (c) 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. 26.9 No duty to monitor The Agent shall not be bound to enquire: (a) whether or not any Default has occurred; (b) as to the performance, default or any breach by any Party of its obligations under any Finance Document; or (c) whether any other event specified in any Finance Document has occurred. 26.10 Exclusion of liability (a) Without limiting paragraph (b) below (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent), the Agent will not be liable for: (i) 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 87 3203820842 with any Finance Document, unless directly caused by its gross negligence or wilful misconduct; (ii) 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 (iii) without prejudice to the generality of paragraphs (i) and (ii) 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 Agent) arising as a result of: (A) any act, event or circumstance not reasonably within its control; or (B) 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. (b) No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the 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 Agent may rely on this paragraph (b) subject to Clause 1.4 (Third party rights) and the provisions of the Third Parties Act. (c) The 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 Agent if the 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 Agent for that purpose. (d) Nothing in this Agreement shall oblige the Agent or the Arranger to carry out: (i) any "know your customer" or other checks in relation to any person; or (ii) 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 Agent and the 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 Agent or the Arranger. (e) Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the 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 Agent or, if later, the date on which the loss arises as a result of such 88 3203820842 default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss. In no event shall the 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 Agent has been advised of the possibility of such loss or damages. 26.11 Lenders' indemnity to the 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 Agent, within 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 Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 29.11 (Disruption to payment systems etc.), notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document). 26.12 Resignation of the Agent (a) The Agent may resign and appoint one of its Affiliates acting through an office in the same jurisdiction as its existing office as successor by giving notice to the other Finance Parties and the Parent. (b) Alternatively the 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 Agent. (c) If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the Agent (after consultation with the Parent) may appoint a successor Agent (acting through an office in the same jurisdiction as the retiring Agent). (d) If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under paragraph (c) above, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent amendments to this Clause 26 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 Agent with the Lenders) and those amendments will bind the Parties. (e) The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. (f) The Agent's resignation notice shall only take effect upon the appointment of a successor. (g) Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) 89 3203820842 above) but shall remain entitled to the benefit of Clause 15.3 (Indemnity to the Agent) and this Clause 26 (and any agency fees for the account of the retiring 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. (h) After consultation with the Parent, the Majority Lenders may, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above. (i) The Agent shall resign in accordance with paragraph (b) above (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to paragraph (c) above) if on or after the date which is three months before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either: (i) the Agent fails to respond to a request under Clause 13.8 (FATCA information) and the Parent or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; (ii) the information supplied by the Agent pursuant to Clause 13.8 (FATCA information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or (iii) the Agent notifies the Parent and the Lenders that the 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 Agent were a FATCA Exempt Party, and the Parent or that Lender, by notice to the Agent, requires it to resign. 26.13 Replacement of the Agent (a) At any time the Agent is an Impaired Agent, the Majority Lenders may, after consultation with the Parent, by giving notice to the Agent replace the Agent by appointing a successor Agent (acting through an office in the same jurisdiction as the retiring Agent). (b) The retiring Agent shall (at its own cost) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents. (c) The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent. As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of this Clause 26 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date). (d) Any successor 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. 26.14 Confidentiality (a) In acting as agent for the Finance Parties, the 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.
90 3203820842 (b) If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it. 26.15 Relationship with the Lenders (a) Subject to Clause 24.9 (Pro rata interest settlement), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender acting through its Facility Office: (i) entitled to or liable for any payment due under any Finance Document on that day; and (ii) 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, unless it has received not less than five Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement. (b) Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address and (where communication by electronic mail or other electronic means is permitted under Clause 33.6 (Electronic communication)) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as a notification of a substitute address electronic mail address, department and officer by that Lender for the purposes of Clause 33.2 (Addresses) and paragraph (a)(ii) of Clause 33.6 (Electronic communication) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender. 26.16 Credit appraisal by the Lenders Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Agent and the Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to: (a) the financial condition, status and nature of each member of the Group; (b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document; (c) whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by 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; and (d) the adequacy, accuracy and/or completeness of any information provided by the Agent, any Party or by any other person under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, 91 3203820842 arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document. 26.17 Deduction from amounts payable by the Agent If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted. 26.18 Reliance and engagement letters Each Finance Party confirms that the Arranger and the Agent has authority to accept on its behalf (and ratifies the acceptance on its behalf of any letters or reports already accepted by the Arranger or Agent) the terms of any reliance letter or engagement letters relating to any reports or letters provided by accountants in connection with the Finance Documents or the transactions contemplated in the Finance Documents and to bind it in respect of those reports or letters and to sign such letters on its behalf and further confirms that it accepts the terms and qualifications set out in such letters. 27. CONDUCT OF BUSINESS BY THE FINANCE PARTIES Except to the extent provided under Clauses 13.7 (Reduction of Indemnified Taxes) and 13.8 (FATCA information), no provision of this Agreement will: (a) interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; (b) oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or (c) oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax. 28. SHARING AMONG THE FINANCE PARTIES 28.1 Payments to Finance Parties If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 29 (Payment Mechanics) (a "Recovered Amount") and applies that amount to a payment due under the Finance Documents, then: (a) the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery to the Agent; (b) the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 29 (Payment Mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and (c) the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the "Sharing Payment") equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance 92 3203820842 Party as its share of any payment to be made, in accordance with Clause 29.6 (Partial payments). 28.2 Redistribution of payments The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the "Sharing Finance Parties") in accordance with Clause 29.6 (Partial payments) towards the obligations of that Obligor to the Sharing Finance Parties. 28.3 Recovering Finance Party's rights On a distribution by the Agent under Clause 28.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor. 28.4 Reversal of redistribution If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then: (a) each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the "Redistributed Amount"); and (b) as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor. 28.5 Exceptions (a) This Clause 28 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause 28, have a valid and enforceable claim against the relevant Obligor. (b) A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: (i) it notified that other Finance Party of the legal or arbitration proceedings; and (ii) that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings. 93 3203820842 SECTION 11 ADMINISTRATION 29. PAYMENT MECHANICS 29.1 Payments to the Agent (a) On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment. (b) Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Agent specifies. 29.2 Distributions by the Agent Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clauses 29.3 (Distributions to an Obligor), 29.4 (Clawback) and 26.17 (Deduction from amounts payable by the Agent) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days' notice with a bank in the principal financial centre of the country of that currency. 29.3 Distributions to an Obligor The Agent may (with the consent of the Obligor or in accordance with Clause 32 (Set-off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied. 29.4 Clawback (a) Where a sum is to be paid to the Agent under the Finance Documents for another Party, the Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum. (b) Unless paragraph (c) below applies, if the Agent pays an amount to another Party and it proves to be the case that the Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds. (c) If the Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower: (i) the Agent shall notify the Parent of that Lender's identity and the Borrower to whom that sum was made available shall on demand refund it to the Agent; and (ii) the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the
94 3203820842 Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender. 29.5 Impaired Agent (a) If, at any time, the Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 29.1 (Payments to the Agent) may instead either: (i) pay that amount direct to the required recipient(s); or (ii) if in its absolute discretion it considers that it is not reasonably practicable to pay that amount direct to the required recipient(s), pay that amount or a relevant part of that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the "Paying Party") and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents. In each case such payments must be made on the due date for payment under the Finance Documents (the "Recipient Party" or "Recipient Parties"). (b) All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or the Recipient Parties pro rata to their respective entitlements. (c) A Party which has made a payment in accordance with this Clause 29.5 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account. (d) Promptly upon the appointment of a successor Agent in accordance with Clause 26.13 (Replacement of the Agent), each Paying Party shall (other than to the extent that Party has given an instruction pursuant to paragraph (e) below) give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 29.2 (Distributions by the Agent). (e) A Paying Party shall, promptly upon request by a Recipient Party and to the extent: (i) that it has not given an instruction pursuant to paragraph (d) above; and (ii) that it has been provided with the necessary information by that Recipient Party, give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party. 29.6 Partial payments (a) If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order: (i) first, in or towards payment pro rata of any unpaid amount owing to the Agent and the Arranger under the Finance Documents; (ii) secondly, in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement; 95 3203820842 (iii) thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and (iv) fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. (b) The Agent shall, if so directed by the Majority Lenders, vary the order set out in paragraphs (a)(ii) to (a)(iv) above. (c) Paragraphs (a) and (b) above will override any appropriation made by an Obligor. 29.7 No set-off by Obligors All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. 29.8 Business Days (a) Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). (b) During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date. 29.9 Currency of account (a) Subject to paragraphs (b) to (e) below, the Base Currency is the currency of account and payment for any sum due from an Obligor under any Finance Document. (b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated, pursuant to this Agreement, on its due date. (c) Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued. (d) Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. (e) Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency. 29.10 Change of currency (a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: (i) any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Parent); and (ii) any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably). 96 3203820842 (b) If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Parent) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency. 29.11 Disruption to payment systems etc. If either the Agent determines (in its discretion) that a Disruption Event has occurred or the Agent is notified by the Parent that a Disruption Event has occurred: (a) the Agent may, and shall if requested to do so by the Parent, consult with the Parent with a view to agreeing with the Parent such changes to the operation or administration of the Facility as the Agent may deem necessary in the circumstances; (b) the Agent shall not be obliged to consult with the Parent in relation to any changes mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; (c) the Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) above but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances; (d) any such changes agreed upon by the Agent and the Parent shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 37 (Amendments and Waivers); (e) the Agent shall not be liable for any damages, costs or losses to any person, any diminution of value or liability whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 29.11; and (f) the Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above. 29.12 Amounts paid in error (a) If the Agent pays an amount to another Finance Party and within five Business Days of the date of payment the Agent notifies that Finance Party that such payment was an Erroneous Payment then the Finance Party to whom that amount was paid by the Agent shall on demand refund the same to the Agent. (b) Neither: (i) the obligations of any Finance Party to the Agent; nor (ii) the remedies of the Agent, (whether arising under this Clause 29.12 or otherwise) which relate to an Erroneous Payment will be affected by any act, omission matter or thing which, but for this paragraph (b), would reduce, release or prejudice any such obligation or remedy (whether or not known by the Agent or any other Party). 97 3203820842 (c) All payments to be made by a Finance Party to the Agent (whether made pursuant to this Clause 29.12 or otherwise) which relate to an Erroneous Payment shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. (d) In this Agreement, "Erroneous Payment" means a payment of an amount by the Agent to another Finance Party which the Agent determines (in its sole discretion) was made in error. 30. SANCTIONED FINANCE PARTY (a) Notwithstanding anything to the contrary in any Finance Document, none of the events or circumstances set out in Clause 23 (Events of Default) (other than Clause 23.3 (Other obligations) (in relation to a breach of Clause 22.1 (Authorisations) and Clause 22.9 (Claims pari passu) only) and Clause 23.4 (Misrepresentation) (in relation to a misrepresentation under Clause 19.5 (Validity and admissibility in evidence) only)) shall constitute an Event of Default or (for the purposes of Clause 4.2 (Further conditions precedent) only) a Default, if the event or circumstance arises solely as a result of a Finance Party being a Sanctioned Finance Party, provided that, where that Finance Party ceases to be a Sanctioned Finance Party, this paragraph shall cease to apply in respect of the relevant event or circumstances: (i) other than where paragraph (ii) or (iii) below applies, if the relevant event or circumstance is then continuing, immediately on the date on which the relevant Finance Party has ceased to be a Sanctioned Finance Party; (ii) in respect of any non-payment of a Relevant Amount (as defined below), immediately following the latest date on which the relevant Borrower must comply with its obligations under paragraph (d) below; or (iii) in respect of any non-compliance with an obligation to deliver any document, notice or other information, if the relevant obligation has not be complied with promptly following the date on which the Parent becomes aware that the Finance Party has ceased to be Sanctioned Finance Party. (b) Unless otherwise agreed in writing by the Parent or permitted by paragraph (c) below, and notwithstanding anything to the contrary in any Finance Document, no interest, fees or other amounts shall be payable or repayable (and, for the avoidance of doubt, no breach, Default or Event of Default shall occur and no default interest shall accrue as a result of any failure by a member of the Group to pay any amount that would otherwise be due and payable (a "Relevant Amount")) in respect of any Lender's Commitment or participation in any Loan whilst that Lender is a Sanctioned Lender. For the avoidance of doubt, notwithstanding any suspension of any obligation to pay any Relevant Amount pursuant to this paragraph (b), such Relevant Amount shall remain owing to the relevant Lender until such Relevant Amount has been paid to that Lender in accordance with this Clause 30, provided that no interest, fees or other amounts shall accrue in relation to any Relevant Amount relating to a Sanctioned Lender's participation in a Loan after the date on which all amounts in respect of that Loan due to the Lenders that are not Sanctioned Lenders have been repaid in full. (c) On the date on which, but for paragraph (b) above, a Relevant Amount would have been due and payable by a Borrower, that Borrower shall promptly deposit (or procure that an Obligor deposits) such Relevant Amount in a segregated interest-bearing account (a "Segregated Account") held with an Acceptable Bank and shall maintain (or procure that an Obligor maintains) such amount
98 3203820842 in such account unless and until such amount is required to be applied in accordance with paragraph (d) below, provided that: (i) neither the Parent nor any Borrower is obliged to obtain any particular rate of interest in respect of a Segregated Account; and (ii) no Obligor shall be deemed to have an overdue payment obligation in respect of a Relevant Amount once that Relevant Amount has been deposited into a Segregated Account. (d) If a Lender ceases to be a Sanctioned Lender, the applicable Borrower shall pay (or procure that an Obligor pays) to that Lender any Relevant Amounts which remain unpaid (together with any accrued interest standing to the credit of a Segregated Account) by the date falling 10 Business Days after the later of: (i) the date on which such Lender has notified the Agent and the Parent that it has ceased to be a Sanctioned Lender; and (ii) the date on which the Parent is satisfied, acting reasonably and promptly and having obtained appropriate legal advice, that such Lender has ceased to be a Sanctioned Lender. (e) No Party shall be required to take any action with respect to, or provide any information to, or otherwise deal with, a Sanctioned Finance Party to the extent to do so is, or might reasonably be expected to be, prohibited by or contrary to applicable Sanctions. (f) Each Original Lender and the Agent confirms that it is not a Sanctioned Finance Party as at the date of this Agreement. (g) Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms that it is not a Sanctioned Lender as at the date of that Transfer Certificate or Assignment Agreement (or would not be a Sanctioned Lender if the Transfer Date were to occur on that date). (h) Each Lender shall notify the Agent promptly upon it becoming a Sanctioned Lender, and the Agent shall notify the Parent promptly upon receiving such notification. (i) The Agent shall notify each other Party promptly upon it becoming a Sanctioned Agent. (j) To the extent that the Parent complies with its obligations under this Clause 30, including, without limitation, the obligations under paragraphs (c) and (d) above, it shall (without prejudice to the Parent's obligations to repay (or procure the repayment of) any amounts in accordance with paragraph (d) above) be deemed to have discharged its payment obligations in respect of a Relevant Amount for all purposes under this Agreement. (k) The provisions of this Clause 30 shall survive the occurrence of the Termination Date or any repayment of amounts due to the Lenders that are not Sanctioned Lenders. 31. BLOCKING LAWS Any provision of Clause 19.21 (Sanctions), Clause 22.13 (Sanctions) or Clause 30 (Sanctioned Finance Party) and any other provision of this Agreement which relates to a Defaulting Lender under paragraph (c) of that definition or an Impaired Agent under paragraph (d) of that definition shall not apply to (or for the benefit of) any person if and to the extent that it is or would be unenforceable by or in respect of that person, by reason of breach of any applicable Blocking Law 99 3203820842 or its application would otherwise constitute a breach by that person of any applicable Blocking Law. 32. SET-OFF Following an Event of Default which is continuing, a Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. 33. NOTICES 33.1 Communications in writing Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by email or letter. 33.2 Addresses The address and email address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is: (a) in the case of the Parent: Address: 150 Helen Road Sandown Sandton 2196 South Africa Email address: alex.dall@goldfields.com Attn: Alex Dall, Interim Chief Financial Officer (b) in the case of each Lender or any other Obligor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and (c) in the case of the Agent, that identified below, Address: The Bank of Nova Scotia 201 Bishopsgate, 6th Floor London EC2M 3NS United Kingdom Email address: CorporateLending.LoanAgencyOpsUK@scotiabank.com and CBUKLONNATRES@scotiabank.com Attn: Lorenzo Ravelli, Peter Early, Shahdia Hossein or any substitute address or email address or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days' notice. 100 3203820842 33.3 Delivery (a) Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective: (i) if by way of email, when sent provided that the sender has not received a message that the email has not been received by the recipient; or (ii) if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address, and, if a particular department or officer is specified as part of its address details provided under Clause 33.2 (Addresses), if addressed to that department or officer. (b) Any communication or document to be made or delivered to the Agent will be effective only when actually received by the Agent and then only if it is expressly marked for the attention of the department or officer identified in paragraph (c) of Clause 33.2 (Addresses) (or any substitute department or officer as the Agent shall specify for this purpose). (c) All notices from or to an Obligor shall be sent through the Agent. (d) Any communication or document made or delivered to the Parent in accordance with this Clause 33.3 will be deemed to have been made or delivered to each of the Obligors. 33.4 Notification of address and email address Promptly upon receipt of notification of an address and email address or change of address or email address pursuant to Clause 33.2 (Addresses) or changing its own address or email address, the Agent shall notify the other Parties. 33.5 Communication when Agent is Impaired Agent If the Agent is an Impaired Agent the Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Agent is an Impaired Agent) all the provisions of the Finance Documents which require communications to be made or notices to be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly. This provision shall not operate after a replacement Agent has been appointed. 33.6 Electronic communication (a) Any communication or document to be made or delivered by one Party to another under or in connection with the Finance Documents may be made or delivered by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties: (i) notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and (ii) notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice. (b) Any such electronic communication or delivery as specified in paragraph (a) above to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication or delivery. 101 3203820842 (c) Any such electronic communication or document as specified in paragraph (a) above made or delivered by one Party to another will be effective only when actually received in readable form and in the case of any electronic communication or document made or delivered by a Party to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose. (d) In accordance with paragraph (b) above, each of the Agent and the Lender agree, for the purposes of the delivery by any Borrower of a Utilisation Request pursuant to Clause 5.1 (Delivery of a Utilisation Request) (and without prejudice to any of the requirements of Clause 5.2 (Completion of a Utilisation Request)): (i) electronic mail is unless and until notified to the contrary, an accepted form of communication; and (ii) the electronic email address of the Agent for this purpose is CorporateLending.LoanAgencyOpsUK@scotiabank.com. 33.7 English language (a) Any notice given under or in connection with any Finance Document must be in English. (b) All other documents provided under or in connection with any Finance Document must be: (i) in English; or (ii) if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. 33.8 Obligor agent (a) Each Obligor (other than the Parent) by its execution of this Agreement or an Accession Letter (as the case may be) irrevocably appoints the Parent to act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises: (i) the Parent on its behalf to supply all information concerning itself contemplated by this Agreement to the Finance Parties and to give all notices and instructions (including, in the case of a Borrower, Utilisation Requests), to execute on its behalf any documents required hereunder and to make such agreements capable of being given, made or effected by any Obligor notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor; and (ii) each Finance Party to give any notice, demand or other communication to that Obligor pursuant to the Finance Documents to the Parent on its behalf, and in each case the Obligor shall be bound as though the Obligor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made such agreements or received the relevant notice, demand or other communication. (b) Every act, agreement, undertaking, settlement, waiver, notice or other communication given or made by the Parent or given to the Parent under any Finance Document on behalf of another Obligor or in connection with any Finance Document (whether or not known to any other Obligor and whether occurring before or after such other Obligor became an Obligor under any Finance Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly made, given or concurred with it. In the event of any conflict between any notices or other communications of the Parent and any other Obligor, those of the Parent shall prevail.
102 3203820842 34. CALCULATIONS AND CERTIFICATES 34.1 Accounts In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate. 34.2 Certificates and determinations Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates. 34.3 Day count convention (a) Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest, commission or fee is calculated: (i) on the basis of the actual number of days elapsed and in the case of all currencies other than Canadian Dollars, a year of 360 days or in the case of Canadian Dollars, a year of 365 days (or, in any case where the practice in the Relevant Market differs, in accordance with that market practice); and (ii) subject to paragraph (b) below, without rounding. (b) The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by an Obligor under a Finance Document shall be rounded to two (2) decimal places. 35. PARTIAL INVALIDITY If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired. 36. REMEDIES AND WAIVERS No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law. 37. AMENDMENTS AND WAIVERS 37.1 Required consents (a) Subject to Clause 37.2 (Other exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Parent and any such amendment or waiver will be binding on all Parties. (b) The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 37. (c) Paragraph (c) of Clause 24.9 (Pro rata interest settlement) shall apply to this Clause 37. 103 3203820842 37.2 Other exceptions (a) Subject to Clause 37.7 (Changes to reference rates), an amendment or waiver that has the effect of changing or which relates to: (i) the definition of "Majority Lenders" in Clause 1.1 (Definitions); (ii) an extension to the date of payment of any amount under the Finance Documents; (iii) a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable; (iv) an increase in any Commitment or an extension of any Availability Period or any requirement that a cancellation of Commitments reduces the commitments of the lenders rateably under the Facility; (v) a change to the Borrowers or Guarantors (other than in accordance with Clause 25 (Changes to the Obligors)); (vi) any provision which expressly requires the consent of all the Lenders; or (vii) Clause 2.2 (Finance Parties' rights and obligations), Clause 8.8 (Application of prepayments), Clause 18 (Guarantee and Indemnity), Clause 24 (Changes to the Lenders) or this Clause 37, shall not be made without the prior consent of all the Lenders. (b) An amendment or waiver which relates to the rights or obligations of the Agent or the Arranger may not be effected without the consent of (as applicable) the Agent or the Arranger, as the case may be. 37.3 Excluded Commitments If: (a) any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders under the terms of this Agreement within 10 Business Days of that request being made; or (b) any Lender which is not a Defaulting Lender fails to respond to such a request or such a vote within 10 Business Days of that request being made, (unless, in either case, the Parent and the Agent agree to a longer time period in relation to any request): (i) its Commitment(s) shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request; and (ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. 37.4 Replacement of Lender (a) If any Lender becomes a Non-Consenting Lender (as defined in below) then the Parent may, on 10 Business Days' prior written notice to the Agent and such Lender, replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant 104 3203820842 to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to an Eligible Institution which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (a "Replacement Lender, which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest (to the extent that the Agent has not given a notification under Clause 24.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents. (b) The replacement of a Lender pursuant to this Clause 37.4 shall be subject to the following conditions: (i) the Parent shall have no right to replace the Agent; (ii) neither the Agent nor the Lender shall have any obligation to the Parent to find a Replacement Lender; (iii) such replacement must take place no later than 60 days after the date on which that Lender is deemed a Non-Consenting Lender; (iv) in no event shall the Lender replaced under this Clause 37.4 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and (v) the Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) 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 paragraph (a) above and shall notify the Agent and the Parent when it is satisfied that it has complied with those checks. (c) In the event that: (i) the Parent or the Agent (at the request of the Parent) has requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents; (ii) the consent, waiver or amendment in question requires the approval of all the Lenders; and (iii) Lenders whose Commitments aggregate more than 85 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 85 per cent. of the Total Commitments prior to that reduction) have consented or agreed to such waiver or amendment, then any Lender who does not and continues not to consent or agree to such waiver or amendment shall be deemed a "Non-Consenting Lender". 37.5 Disenfranchisement of Defaulting Lenders (a) For so long as a Defaulting Lender has any Available Commitment, in ascertaining: 105 3203820842 (i) the Majority Lenders; or (ii) whether: (A) any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or (B) the agreement of any specified group of Lenders, has been obtained to approve any request for a consent, waiver, amendment or other vote under the Finance Documents, that Defaulting Lender's Commitments under the Facility will be reduced by the amount of its Available Commitments and, to the extent that that reduction results in that Defaulting Lender's Total Commitments being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii) above. (b) For the purposes of this Clause 37.5, the Agent may assume that the following Lenders are Defaulting Lenders: (i) any Lender which has notified the Agent that it has become a Defaulting Lender; (ii) any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraph (a), (b), (c) or (d) of the definition of "Defaulting Lender" has occurred, unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender. 37.6 Replacement of a Defaulting Lender (a) The Parent may, at any time a Lender has become and continues to be a Defaulting Lender, by giving five Business Days' prior written notice to the Agent and such Lender: (i) replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement; or (ii) require such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 24 (Changes to the Lenders) all (and not part only) of the undrawn Commitment of the Lender, to an Eligible Institution which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (a "Replacement Lender"), and which (unless the Agent is an Impaired Agent) is acceptable to the Agent (acting reasonably), which confirms its willingness to assume and does assume all the obligations or all the relevant obligations of the transferring Lender in accordance with Clause 24 (Changes to the Lenders) (including the assumption of the transferring Lender's participations or unfunded participations (as the case may be) on the same basis as the transferring Lender), for a purchase price in cash payable at the time of the transfer equal to the outstanding principal amount of such Lender's participation in the outstanding Utilisations and all accrued interest (subject to any notice having been given by the Agent under Clause 24.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.
106 3203820842 (b) Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 37 shall be subject to the following conditions: (i) the Parent shall have no right to replace the Agent; (ii) neither the Agent nor the Defaulting Lender shall have any obligation to the Parent to find a Replacement Lender; (iii) the transfer must take place no later than five days after the notice referred to in paragraph (a) above; (iv) 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 (v) the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to paragraph (a) 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 to the Replacement Lender. (c) The Defaulting Lender shall perform the checks described in paragraph (b)(v) above as soon as reasonably practicable following delivery of a notice referred to in paragraph (a) above and shall notify the Agent and the Parent when it is satisfied that it has complied with those checks. 37.7 Changes to reference rates (a) Subject to Clause 37.2 (Other exceptions), if an RFR Replacement Event has occurred in relation to an RFR for a currency which can be selected for a Loan, any amendment or waiver which relates to: (i) providing for the use of a Replacement Reference Rate in relation to that currency in place of an RFR; and (ii) (A) aligning any provision of any Finance Document to the use of that Replacement Reference Rate; (B) enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this Agreement); (C) implementing market conventions applicable to that Replacement Reference Rate; (D) providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or (E) adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation), 107 3203820842 may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Parent. (b) If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 10 Business Days (or such longer time period in relation to any request which the Parent and the Agent may agree) of that request being made: (i) its Commitment(s) shall not be included for the purpose of calculating the Total Commitments under the Facility when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and (ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. (c) In this Clause 37.7: "Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board. "Replacement Reference Rate" means a reference rate which is: (i) formally designated, nominated or recommended as the replacement for an RFR by: (A) the administrator of that RFR (provided that the market or the economic reality that such reference rate measures is the same as that measured by that RFR); or (B) any Relevant Nominating Body, and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs (A) and (B) above, the "Replacement Reference Rate" will be the replacement under paragraph (B) above; (ii) in the opinion of the Majority Lenders and the Parent, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to an RFR; or (iii) in the opinion of the Majority Lenders and the Parent, an appropriate successor to an RFR. "RFR Replacement Event" means, in relation to an RFR: (i) the methodology, formula or other means of determining that RFR has, in the opinion of the Majority Lenders and the Parent materially changed; (ii) (A) (1) the administrator of that RFR or its supervisor publicly announces that such administrator is insolvent; or (2) information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that RFR is insolvent, 108 3203820842 provided that, in each case, at that time, there is no successor administrator to continue to provide that RFR; (B) the administrator of that RFR publicly announces that it has ceased or will cease to provide that RFR permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that RFR; (C) the supervisor of the administrator of that RFR publicly announces that such RFR has been or will be permanently or indefinitely discontinued; (D) the administrator of that RFR or its supervisor announces that that RFR may no longer be used; or (iii) the administrator of that RFR determines that that RFR should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either: (A) the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Majority Lenders and the Parent) temporary; or (B) that RFR is calculated in accordance with any such policy or arrangement for a period no less than the period specified as the "RFR Contingency Period" in the Reference Rate Terms relating to that RFR; or (iv) in the opinion of the Majority Lenders and the Parent, that RFR is otherwise no longer appropriate for the purposes of calculating interest under this Agreement. 38. CONFIDENTIAL INFORMATION 38.1 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 38.2 (Disclosure of Confidential Information) and Clause 38.3 (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. 38.2 Disclosure of Confidential Information Any Finance Party may disclose: (a) 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 paragraph (a) 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; (b) to any person: (i) 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 109 3203820842 which succeeds (or may potentially succeed) it as Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives, professional advisers, insurers, insurance brokers, direct or indirect providers of credit protection and service providers; (ii) 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; (iii) appointed by any Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) 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 paragraph (b) of Clause 26.15 (Relationship with the Lenders)); (iv) who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above; (v) 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; (vi) to whom or for whose benefit that Finance Party charges, assigns or otherwise creates any Encumbrance (or may do so) pursuant to Clause 24.8 (Security over Lenders' rights); (vii) 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; (viii) who is a Party; or (ix) with the consent of the Parent; in each case, such Confidential Information as that Finance Party shall consider appropriate if: (A) in relation to paragraphs (b)(i), (b)(ii) and (b)(iii) 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; (B) in relation to paragraph (b)(iv) 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;
110 3203820842 (C) in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) 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; (c) to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) 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 paragraph (c) 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 for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Parent and the relevant Finance Party; and (d) 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. 38.3 Disclosure to numbering service providers (a) 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: (i) names of Obligors; (ii) country of domicile of Obligors; (iii) place of incorporation of Obligors; (iv) date of this Agreement; (v) the names of the Agent and the Arranger; (vi) date of each amendment and restatement of this Agreement; (vii) the amounts and names of the Facility (and any tranches); (viii) amount of Total Commitments; (ix) currencies of the Facility; (x) type of Facility; (xi) Clause 41 (Governing Law); (xii) ranking of Facility; (xiii) Termination Date for the Facility; (xiv) changes to any of the information previously supplied pursuant to paragraphs (i) to (xiii) above; and (xv) such other information agreed between such Finance Party and the Parent, 111 3203820842 to enable such numbering service provider to provide its usual syndicated loan numbering identification services. (b) 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. (c) Each Obligor represents that none of the information set out in paragraphs (a)(i) to (a)(xv) above is, nor will at any time be, unpublished price-sensitive information. (d) The Agent shall notify the Parent and the other Finance Parties of: (i) the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and (ii) 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. 38.4 Entire agreement This Clause 38 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. 38.5 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. 38.6 Notification of disclosure Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Parent: (a) of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 38.2 (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and (b) upon becoming aware that Confidential Information has been disclosed in breach of this Clause 38. 38.7 Continuing obligations The obligations in this Clause 38 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of: (a) 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 (b) the date on which such Finance Party otherwise ceases to be a Finance Party. 112 3203820842 39. CONFIDENTIALITY OF FUNDING RATES 39.1 Confidentiality and disclosure (a) The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below. (b) The Agent may disclose: (i) any Funding Rate to the relevant Borrower pursuant to Clause 9.6 (Notifications); and (ii) any Funding Rate to any person appointed by it to provide administration services in respect of one or more of the Finance Documents to the extent necessary to enable such service provider to provide those services if the service provider to whom that information is to be given has entered into a confidentiality agreement substantially in the form of the LMA Master Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such other form of confidentiality undertaking agreed between the Agent and the relevant Lender. (c) The Agent and each Obligor may disclose any Funding Rate to: (i) any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives if any person to whom that Funding Rate is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature and that it 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 that Funding Rate or is otherwise bound by requirements of confidentiality in relation to it; (ii) any person 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 if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; (iii) any person 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 if the person to whom that Funding Rate is to be given is informed in writing of its confidential nature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of the Agent or the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances; and (iv) any person with the consent of the relevant Lender. 39.2 Related obligations (a) The Agent and each Obligor acknowledge that each Funding Rate is or may be price-sensitive information and that its use may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and the Agent and each Obligor undertake not to use any Funding Rate for any unlawful purpose. 113 3203820842 (b) The Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender: (i) of the circumstances of any disclosure made pursuant to paragraph (c)(ii) of Clause 39.1 (Confidentiality and disclosure) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and (ii) upon becoming aware that any information has been disclosed in breach of this Clause 39. 39.3 No Event of Default No Event of Default will occur under Clause 23.3 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 39. 40. COUNTERPARTS Each Finance Document 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 the Finance Document.
114 3203820842 SECTION 12 GOVERNING LAW AND ENFORCEMENT 41. GOVERNING LAW This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. 42. ENFORCEMENT 42.1 Jurisdiction (a) The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with it) (a "Dispute"). (b) The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary. (c) Notwithstanding paragraphs (a) and (b) above, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions. 42.2 Service of process Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales): (a) irrevocably appoints Law Debenture Corporate Services Limited as its agent for service of process (in the case of an Obligor incorporated in South Africa, domicilium citandi et executandi) in relation to any proceedings before the English courts in connection with any Finance Document; and (b) agrees that failure by an agent for service of process to notify the relevant Obligor of the process will not invalidate the proceedings concerned. 43. BAIL-IN 43.1 Contractual recognition of bail-in Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of: (a) any Bail-In Action in relation to any such liability, including (without limitation): (i) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; (ii) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and (iii) a cancellation of any such liability; and 115 3203820842 (b) a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability. 43.2 Bail-in definitions In this Clause 43: "Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms. "Bail-In Action" means the exercise of any Write-down and Conversion Powers. "Bail-In Legislation" means: (a) in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; (b) in relation to the United Kingdom, the UK Bail-In Legislation; and (c) in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation. "EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway. "EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time. "Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers. "UK Bail-In Legislation" means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings). "Write-down and Conversion Powers" means: (a) in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; (b) in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail- In Legislation that are related to or ancillary to any of those powers; and 116 3203820842 (c) in relation to any other applicable Bail-In Legislation: (i) any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that Bail-In Legislation. 44. US QFC RULES To the extent that the Finance Documents provide support, through a guarantee or otherwise, for any hedging agreement or any other agreement or instrument that is a QFC (such support, "QFC Credit Support", and each such QFC, a "Supported QFC"), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Act (together with the regulations promulgated thereunder, the "U.S. Special Resolution Regimes") in respect of such Supported QFC and QFC Credit Support: (a) In the event a Covered Entity that is party to a Supported QFC (each, a "Covered Party") becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support. (b) As used in this Clause 44, the following terms have the following meanings: "BHC Act Affiliate" of a party means an "affiliate" (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. "Covered Entity" means any of the following: 117 3203820842 (i) a "covered entity" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a "covered bank" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a "covered FSI" as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). "Default Right" has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. "QFC" has the meaning assigned to the term "qualified financial contract" in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
118 3203820842 SCHEDULE 1 THE ORIGINAL PARTIES PART I THE OBLIGORS Name of Original Borrower Registration number (or equivalent, if any) Gold Fields Orogen Holding (BVI) Limited, incorporated in the British Virgin Islands 184982 Gold Fields Windfall Holdings Inc./Gestion Gold Fields Windfall Inc., incorporated under the laws of the Province of Ontario, Canada 1000516306 Name of Original Guarantors Registration number (or equivalent, if any) Gold Fields Limited, incorporated in South Africa 1968/004880/06 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 Gold Fields Windfall Holdings Inc./Gestion Gold Fields Windfall Inc., incorporated under the laws of the Province of Ontario, Canada 1000516306 119 3203820842 PART II THE ARRANGER Names of Arranger Citibank, N.A., London Branch Royal Bank of Canada The Bank of Nova Scotia 120 3203820842 PART III THE ORIGINAL LENDERS Name of Original Lender Commitment (US$) Royal Bank of Canada 83,333,333.33 Citibank, N.A., Jersey Branch 83,333,333.33 The Bank of Nova Scotia, London Branch 83,333,333.34 250,000,000.00 121 3203820842 SCHEDULE 2 CONDITIONS PRECEDENT PART I CONDITIONS PRECEDENT TO INITIAL UTILISATION 1. Obligors (a) A copy of the Constitutional Documents of each Obligor. (b) A copy of a good standing certificate with respect to Gold Fields Holdings Company Limited and Gold Fields Orogen Holding (BVI) Limited, issued as of a recent date by the Registrar of Corporate Affairs in the British Virgin Islands. (c) A copy of a resolution of the board of directors (and, if necessary under the laws of its jurisdiction of incorporation, the shareholders) of each Obligor: (i) 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; (ii) authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and (iii) authorising a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Utilisation Request and Selection Notice) to be signed and/or dispatched by it under or in connection with the Finance Documents to which it is a party. (d) A specimen of the signature of each person authorised by the resolution referred to in paragraph (c) above. (e) A certificate of incumbency from the registered agent for Gold Fields Holdings Company Limited and Gold Fields Orogen Holding (BVI) Limited. (f) A copy of the resolution of the shareholders of Gold Fields Holdings Company Limited and Gold Fields Orogen Holding (BVI) Limited approving the relevant resolutions of the board of directors and the transactions contemplated thereby. (g) A certificate of the Obligors (signed by a director) confirming that 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 each Obligor to whom the Companies Act 2008 of South Africa applies the requirements of section 45 of such Act has been complied with and each certificate shall have annexed to it the copies of the relevant resolutions, notices and statements. (h) 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 date of this Agreement. (i) A certificate of GF Windfall confirming that:
122 3203820842 (i) the conditions precedent (other than payment of the purchase price) to the Acquisition in the Arrangement Agreement have been satisfied (or waived in a manner that is not materially adverse to the interests of the Finance Parties taken as a whole); and (ii) the Arrangement Agreement has not been and, on or before the first Utilisation Date, shall not have been terminated or otherwise amended, varied, or waived in any manner that would reasonably be expected to be materially adverse to the interests of the Finance Parties taken as a whole, as compared to the latest version of the Arrangement Agreement provided to the Arranger prior to the signing of the Mandate Letter. 2. Legal opinions (a) A legal opinion of Clifford Chance LLP legal advisers to the Arranger and the Agent in England, substantially in the form distributed to the Original Lenders prior to signing this Agreement. (b) A legal opinion of Conyers Dill & Pearman, legal advisers to the Arranger and Agent in the British Virgin Islands, substantially in the form distributed to the Original Lenders prior to signing this Agreement. (c) A legal opinion of Edward Nathan Sonnenbergs, legal advisers to the Arranger and Agent in South Africa, substantially in the form distributed to the Original Lenders prior to signing this Agreement. (d) A legal opinion of McCarthy Tétrault LLP, legal advisers to the Obligors in Canada, substantially in the form distributed to the Lenders prior to signing this Agreement. 3. Other documents and evidence (a) Evidence that any agent for service of process referred to in Clause 42.2 (Service of process) has accepted its appointment. (b) The Original Financial Statements for the Parent. (c) An executed copy of the Arrangement Agreement (together with the plan of arrangement attached as Schedule A thereto) provided that each Lender at the date of this Agreement shall be deemed to have irrevocably confirmed that the Arrangement Agreement (including the plan of arrangement attached as Schedule A thereto) received on the date of the Mandate Letter is in form and substance satisfactory to the Agent. (d) Evidence that the fees then due (but only to the extent then due) from a Borrower pursuant to Clause 12 (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 Agent to deduct these from the proceeds of the first Utilisation). (e) A copy of the approval of the Financial Surveillance Department of the South African Reserve Bank confirming that the Parent may enter into and provide the guarantee as contemplated by 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 Parent acknowledge in writing to each other that such conditions are acceptable. (f) Completion by each Lender of all applicable "know your customer" checks. 123 3203820842 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: (a) approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter; (b) authorising a specified person or persons to execute the Accession Letter on its behalf; and (c) 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 or Selection Notice) 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 2008 of South Africa applies the requirements of Section 45 of such Act has 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 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 124 3203820842 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. 11. If available, the latest audited financial statements of the Additional Borrower. 12. A legal opinion from legal advisers to the Agent in England. 13. If the Additional Borrower is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Arranger and the Agent in the jurisdiction in which the Additional Borrower is incorporated. 14. If the proposed Additional Borrower is incorporated in a jurisdiction other than England and Wales, evidence that the agent for service of process specified in Clause 42.2 (Service of process) has accepted its appointment in relation to the proposed Additional Borrower. 125 3203820842 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: (a) approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter; (b) authorising a specified person or persons to execute the Accession Letter on its behalf; and (c) 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 2008 of South Africa applies the requirements of section 45 of such Act has 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 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 Agent in England.
126 3203820842 13. If the Additional Guarantor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Agent in the jurisdiction in which the Additional Guarantor is incorporated. 14. If the Additional Guarantor is incorporated in a jurisdiction other than England and Wales, evidence that the agent for service of process specified in Clause 42.2 (Service of process) has accepted its appointment in relation to the proposed Additional Guarantor. 15. 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. 127 3203820842 SCHEDULE 3 REQUESTS PART I UTILISATION REQUEST From: [Borrower] To: [●] as Agent Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (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: [●] Amount: [●], if less the Available Facility Interest Period: [One Month][Three Months] 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. [Subject to paragraph 5 below,] the proceeds of this Loan should be credited to [account]. 5. [The Agent may deduct the fee payable to it pursuant to Clause 12.3 (Agency fee) from the proceeds of this Loan]. 6. This Utilisation Request is irrevocable. Yours faithfully .................................................... authorised signatory for [name of relevant Borrower] 128 3203820842 PART II SELECTION NOTICE From: [Borrower] To: [●] as Agent Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice. 2. We refer to the following Loan[s] in [identify currency] with an Interest Period ending on [ ].* 3. [We request that the above Loan[s] be divided into [ ] Loans with the following Base Currency Amounts and Interest Periods:]** or [We request that the next Interest Period for the above Loan[s] is [ ]].*** 4. This Selection Notice is irrevocable. Yours faithfully ………………………………… authorised signatory for [name of the Borrower] * Insert details of all Loans in the same currency which have an Interest Period ending on the same date. ** Use this option if division of Loans is requested. *** Use this option if sub-division is not required. 129 3203820842 SCHEDULE 4 FORM OF TRANSFER CERTIFICATE To: [●] as Agent From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender") Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (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 24.5 (Procedure for transfer) of the Agreement: (a) The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 24.5 (Procedure for transfer) of the Agreement. (b) The proposed Transfer Date is [●]. (c) The Facility Office and address, email address and attention details for notices of the New Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule. 3. The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders) of the Agreement. 4. The New Lender confirms, for the benefit of each Obligor and the Agent, that it is not a Sanctioned Lender as at the date of this Transfer Certificate (or would not be a Sanctioned Lender if the Transfer Date were to occur on that date). 5. 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. 6. This Transfer Certificate, and any non-contractual obligations arising out of or in connection with it, is governed by English law.
130 3203820842 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: Market Entity Identifier:................................ Market Entity Identifier:................................ This Transfer Certificate is accepted by the Agent and the Transfer Date is confirmed as [●]. [●] By: 131 3203820842 SCHEDULE 5 FORM OF ASSIGNMENT AGREEMENT To: [●] as Agent and [●] as Parent, for and on behalf of each Obligor From: [the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender") Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement. 2. We refer to Clause 24.6 (Procedure for assignment) of the Agreement: (a) The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitments and participations in Loans under the Agreement as specified in the Schedule. (b) The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in Loans under the Agreement specified in the Schedule. (c) The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above. 3. The proposed Transfer Date is [●]. 4. On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender. 5. The Facility Office and address, email address and attention details for notices of the New Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule. 6. The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders) of the Agreement. 7. The New Lender confirms, for the benefit of each Obligor and the Agent, that it is not a Sanctioned Lender as at the date of this Assignment Agreement (or would not be a Sanctioned Lender if the Transfer Date were to occur on that date). 8. This Assignment Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 24.7 (Copy of Transfer Certificate or Assignment Agreement to Parent), to the Parent (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement. 9. This Assignment Agreement 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 Assignment Agreement. 132 3203820842 10. This Assignment Agreement, and any non-contractual obligations arising out of or in connection with it, is governed by English law. 11. This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement. 133 3203820842 THE SCHEDULE Commitment/rights to be assigned [Insert relevant details] [Facility Office address, email address and attention details for notices and account details for payments,] [Existing Lender] [New Lender] By: By: Market Entity Identifier:................................ Market Entity Identifier:................................ This Assignment Agreement is accepted by the Agent and the Transfer Date is confirmed as [●]. [●] By:
134 3203820842 SCHEDULE 6 FORM OF ACCESSION LETTER To: [●] as Agent From: [Subsidiary] and Gold Fields Limited Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (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 [25.2 (Additional Borrowers)]/[25.4 (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 English law. [This Accession Letter has been executed as a deed by [Subsidiary] and is delivered on the date stated above.]1 Gold Fields Limited [Subsidiary] By: By: 1 For any additional Guarantor, the Accession Letter is to be executed as a deed and the signature block shall be amended accordingly. 135 3203820842 SCHEDULE 7 FORM OF RESIGNATION LETTER To: [●] as Agent From: [resigning Obligor] and Gold Fields Limited Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (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 25.3 (Resignation of an Additional Borrower)]/[Clause 25.6 (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 English law. Gold Fields Limited [Subsidiary] By: By: 136 3203820842 SCHEDULE 8 FORM OF COMPLIANCE CERTIFICATE To: [●] as Agent From: Gold Fields Limited Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate. 2. We confirm that as at [●]: (a) Consolidated EBITDA to Consolidated Net Finance Charges the ratio of Consolidated EBITDA to Consolidated Net Finance Charges in respect of the Measurement Period ending on [●] was: [●]:1; and (b) Consolidated Net Borrowings to Consolidated EBITDA the ratio of Consolidated Net Borrowings to Consolidated EBITDA in respect of the Measurement Period ending on [●] was: [●]:1, and attach calculations showing how these figures were calculated. 3. We confirm that no Default is continuing. Signed: [Authorised signatory] of Gold Fields Limited 137 3203820842 SCHEDULE 9 TIMETABLES Loans in dollars Loans in CAD Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) U-1 11.00 a.m. U-1 11.00 a.m. Agent determines (in relation to a Utilisation) the Base Currency Amount of the Loan, if required under Clause 5.4 (Lenders' participation) and notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders' participation) U-1 3.00 p.m. U-1 3.00 p.m. "U" = Utilisation Date. "U – X" = Business Days prior to Utilisation Date.
138 3203820842 SCHEDULE 10 LMA FORM OF CONFIDENTIALITY UNDERTAKING [Letterhead of Seller] Date: [●] To: …………………………………………………………………. [insert name of Potential Purchaser] Re: The Agreement Parent: (the "Parent") Date: Amount: Agent: We understand that you are considering acquiring an interest in the Agreement which, subject to the Agreement, may be by way of novation, assignment, the entering into, whether directly or indirectly, of a sub-participation 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 or by way of investing in or otherwise financing, directly or indirectly, any such novation, assignment, sub-participation or other transaction (the "Acquisition"). In consideration of us agreeing to make available to you certain information, by your signature of a copy of this letter you agree as follows: 1. CONFIDENTIALITY UNDERTAKING You undertake (a) to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by paragraph 2 below and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to your own confidential information, and (b) until the Acquisition is completed to use the Confidential Information only for the Permitted Purpose. 2. PERMITTED DISCLOSURE We agree that you may disclose: 2.1 to any of your Affiliates and any of your or their officers, directors, employees, professional advisers and auditors such Confidential Information as you shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph 2.1 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 139 3203820842 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; 2.2 subject to the requirements of the Agreement, to any person: (a) to (or through) whom you assign or transfer (or may potentially assign or transfer) all or any of your rights and/or obligations which you may acquire under the Agreement such Confidential Information as you shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this paragraph 2.2(a) has delivered a letter to you in equivalent form to this letter; (b) with (or through) whom you enter into (or may potentially enter into) any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to the Agreement or any Obligor such Confidential Information as you shall consider appropriate if the person to whom the Confidential Information is to be given pursuant to this paragraph 2.2(b) has delivered a letter to you in equivalent form to this letter; (c) to whom information is required or requested to be disclosed by 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 such Confidential Information as you shall consider appropriate; and 2.3 notwithstanding paragraphs 2.1 and 2.2 above, Confidential Information to such persons to whom, and on the same terms as, a Finance Party is permitted to disclose Confidential Information under the Agreement, as if such permissions were set out in full in this letter and as if references in those permissions to Finance Party were references to you. 3. NOTIFICATION OF DISCLOSURE You agree (to the extent permitted by law and regulation) to inform us: 3.1 of the circumstances of any disclosure of Confidential Information made pursuant to paragraph 2.2(c) above except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and 3.2 upon becoming aware that Confidential Information has been disclosed in breach of this letter. 4. RETURN OF COPIES If you do not enter into the Acquisition and we so request in writing, you shall return or destroy all Confidential Information supplied to you by us and destroy or permanently erase (to the extent technically practicable) all copies of Confidential Information made by you and use your reasonable endeavours to ensure that anyone to whom you have supplied any Confidential Information destroys or permanently erases (to the extent technically practicable) such Confidential Information and any copies made by them, in each case save to the extent that you or the recipients are required to retain any such Confidential Information by any applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory body or in accordance with internal policy, or where the Confidential Information has been disclosed under paragraph 2.2(c) above. 5. CONTINUING OBLIGATIONS 140 3203820842 The obligations in this letter are continuing and, in particular, shall survive and remain binding on you until (a) if you become a party to the Agreement as a lender of record, the date on which you become such a party to the Agreement; (b) if you enter into the Acquisition but it does not result in you becoming a party to the Agreement as a lender of record, the date falling [12] months after the date on which all of your rights and obligations contained in the documentation entered into to implement that Acquisition have terminated; or (c) in any other case the date falling [12] months after the date of your final receipt (in whatever manner) of any Confidential Information. 6. NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC. You acknowledge and agree that: 6.1 neither we, nor any member of the Group nor any of our or their respective officers, employees or advisers (each a "Relevant Person") (i) make any representation or warranty, express or implied, as to, or assume any responsibility for, the accuracy, reliability or completeness of any of the Confidential Information or any other information supplied by us or the assumptions on which it is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential Information or any other information supplied by us or be otherwise liable to you or any other person in respect of the Confidential Information or any such information; and 6.2 we or members of the Group may be irreparably harmed by the breach of the terms of this letter and damages may not be an adequate remedy; each Relevant Person may be granted an injunction or specific performance for any threatened or actual breach of the provisions of this letter by you. 7. ENTIRE AGREEMENT: NO WAIVER; AMENDMENTS, ETC 7.1 This letter constitutes the entire agreement between us in relation to your obligations regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information. 7.2 No failure to exercise, nor any delay in exercising, any right or remedy under this letter will operate as a waiver of any such right or remedy or constitute an election to affirm this letter. No election to affirm this letter will be effective unless it is in writing. No single or partial exercise of any right or remedy will prevent any further or other exercise or the exercise of any other right or remedy under this letter. 7.3 The terms of this letter and your obligations under this letter may only be amended or modified by written agreement between us. 8. INSIDE INFORMATION You acknowledge 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 you undertake not to use any Confidential Information for any unlawful purpose. 9. NATURE OF UNDERTAKINGS The undertakings given by you under this letter are given to us and are also given for the benefit of the Parent and each other member of the Group. 141 3203820842 10. THIRD PARTY RIGHTS 10.1 Subject to this paragraph 10 and to paragraphs 6 and 9, a person who is not a party to this letter has no right under the Contracts (Rights of Third Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy the benefit of any term of this letter. 10.2 The Relevant Persons may enjoy the benefit of the terms of paragraphs 6 and 9, subject to and in accordance with this paragraph 10 and the provisions of the Third Parties Act. 10.3 Notwithstanding any provisions of this letter, the parties to this letter do not require the consent of any Relevant Person to rescind or vary this letter at any time. 11. GOVERNING LAW AND JURISDICTION 11.1 This letter (including the agreement constituted by your acknowledgement of its terms) (the "Letter") and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Letter) are governed by English law. 11.2 The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Letter (including a dispute relating to any non-contractual obligation arising out of or in connection with either this Letter or the negotiation of the transaction contemplated by this Letter). 12. DEFINITIONS In this letter (including the acknowledgement set out below) terms defined in the Agreement shall, unless the context otherwise requires, have the same meaning and: "Confidential Information" means all information relating to the Parent, any Obligor, the Group, the Finance Documents, the Facility and/or the Acquisition which is provided to you in relation to the Finance Documents or the Facility by us or any of our affiliates or advisers, in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that: (a) is or becomes public information other than as a direct or indirect result of any breach by you of this letter; or (b) is identified in writing at the time of delivery as non-confidential by us or our advisers; or (c) is known by you before the date the information is disclosed to you by us or any of our affiliates or advisers or is lawfully obtained by you after that date, from a source which is, as far as you are aware, unconnected with the Group and which, in either case, as far as you are aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. "Group" means the Parent and its subsidiaries for the time being (as such term is defined in the Companies Act 2006). "Permitted Purpose" means considering and evaluating whether to enter into the Acquisition. Please acknowledge your agreement to the above by signing and returning the enclosed copy.
142 3203820842 Yours faithfully …................................ For and on behalf of [Seller] To: [Seller] The Parent and each other member of the Group We acknowledge and agree to the above: …................................ For and on behalf of [Potential Purchaser] 143 3203820842 SCHEDULE 11 FORM OF INCREASE CONFIRMATION To: [ ] as Agent and [ ] as Parent From: [the Increase Lender] (the "Increase Lender") Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation. 2. We refer to Clause 2.2 (Increase) of the Agreement. 3. The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the "Relevant Commitment") as if it had been an Original Lender under the Agreement in respect of the Relevant Commitment. 4. The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the "Increase Date") is [ ]. 5. On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender. 6. The Facility Office and address, email address and attention details for notices to the Increase Lender for the purposes of Clause 33.2 (Addresses) of the Agreement are set out in the Schedule. 7. The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in paragraph (i) of Clause 2.2 (Increase) of the Agreement. 8. The Increase Lender confirms, for the benefit of each Obligor and the Agent, that it is not a Sanctioned Lender as at the date of this Increase Confirmation (or would not be a Sanctioned Lender if the Increase Date were to occur on that date). 9. This Increase Confirmation 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 Increase Confirmation. 10. This Increase Confirmation [and any non-contractual obligations arising out of or in connection with it] [is/are] governed by English law. 11. This Increase Confirmation has been entered into on the date stated at the beginning of this Increase Confirmation. 144 3203820842 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 Agent and the Increase Date is confirmed as [ ]. Agent By: 145 3203820842 SCHEDULE 12 FORM OF SUBSTITUTE AFFILIATE LENDER DESIGNATION NOTICE To: [ ] (as Agent) for itself and each of the other parties to the Agreement referred to below. Cc: [The Parent] From: [Designating Lender] (the "Designating Lender") Dated: Gold Fields Orogen Holding (BVI) Limited and Gold Fields Windfall Holdings Inc. multicurrency parallel bridge facility agreement dated October 18, 2024 (the "Agreement") 1. We refer to the Agreement. Terms defined in the Agreement have the same meaning in this Designation Notice. 2. We hereby designate our Affiliate details of which are given below as a Substitute Affiliate Lender in respect of any Loans required to be advanced to [specify name of borrower] ("Designated Loans"). 3. The details of the Substitute Affiliate Lender are as follows: Name: [●] Facility Office: [●] Fax Number: [●] Attention: [●] Jurisdiction of Incorporation: [●] 4. By countersigning this notice below the designated Affiliate agrees to become a Substitute Affiliate Lender in respect of Designated Loans as indicated above and agrees to be bound by the terms of the Agreement accordingly. 5. This Designation Notice and any non-contractual obligations arising out of or in connection with are governed by English law. ……………………………………………… For and on behalf of [Designating Lender]
146 3203820842 We acknowledge and agree to the terms of the above. ……………………………………………… For and on behalf of [Substitute Affiliate Lender] We acknowledge the terms of the above. ……………………………………………… For and on behalf of The Agent Dated 147 3203820842 SCHEDULE 13 REFERENCE RATE TERMS PART I U.S. DOLLARS CURRENCY: U.S. dollars. Cost of funds as a fallback Cost of funds will not apply as a fallback. Definitions Additional Business Days: An RFR Banking Day. Credit Adjustment Spread: Length of Interest Period Applicable Credit Adjustment Spread One Month or less 0.10 per cent. per annum Three Months or less but greater than one Month 0.25 per cent. per annum Break Costs: None specified. Business Day Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: (i) subject to paragraph (iii) 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; (ii) 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 (iii) 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. (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end 148 3203820842 on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). Central Bank Rate: (a) The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or (b) if that target is not a single figure, the arithmetic mean of: (i) the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and (ii) the lower bound of that target range. Central Bank Rate Adjustment: In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent. trimmed arithmetic mean (calculated by the Agent, or by any other Finance Party which agrees to do so in place of the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available. For this purpose, "Central Bank Rate Spread" means, in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between: (a) the RFR for that RFR Banking Day; and (b) the Central Bank Rate prevailing at close of business on that RFR Banking Day. Daily Rate: The "Daily Rate" for any RFR Banking Day is: (a) the RFR for that RFR Banking Day; or (b) if the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of: (i) the Central Bank Rate for that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment; or (c) if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of: (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and 149 3203820842 (ii) the applicable Central Bank Rate Adjustment, rounded, in each case, to five decimal places (with 0.000005 being rounded upwards) and if, in each case, the aggregate of that rate and the applicable Credit Adjustment Spread is less than zero, the Daily Rate shall be deemed to be such a rate that the aggregate of the Daily Rate and the applicable Credit Adjustment Spread is zero. Lookback Period: Five RFR Banking Days. Market Disruption Rate: The percentage rate per annum which is the aggregate of: (a) the Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and (b) the applicable Credit Adjustment Spread. Relevant Market: The market for overnight cash borrowing collateralised by US Government Securities. Reporting Day: The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period. RFR: The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate). RFR Banking Day: Any day other than: (a) a Saturday or Sunday; and (b) a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities. RFR Contingency Period: 30 days Interest Periods Periods capable of selection as Interest Periods (paragraph (b) of Clause 10.1 (Selection of Interest Periods)): One or three Months. Reporting Times Deadline for Lenders to report market disruption in accordance with Clause 11.2 (Market disruption): Close of business in London on the Reporting Day for the relevant Loan.
150 3203820842 Deadline for Lenders to report their cost of funds in accordance with Clause 11.3 (Cost of funds): Close of business on the date falling two Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan). 151 3203820842 PART II CANADIAN DOLLARS – COMPOUNDED CORRA CURRENCY: Canadian Dollars. Cost of funds as a fallback Cost of funds will apply as a fallback. Definitions Additional Business Days: An RFR Banking Day. Credit Adjustment Spread: Length of Interest Period Applicable Credit Adjustment Spread One Month or less 0.29547 per cent. per annum Three Months or less but greater than one Month 0.32138 per cent. per annum Break Costs: None specified. Business Day Conventions (definition of "Month" and Clause 10.2 (Non-Business Days)): (a) If any period is expressed to accrue by reference to a Month or any number of Months then, in respect of the last Month of that period: (i) subject to paragraph (iii) 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; (ii) 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 (iii) 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. (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if 152 3203820842 there is one) or the preceding Business Day (if there is not). Central Bank Rate: The Bank of Canada's target for the overnight rate (also known as the Bank of Canada's policy interest rate) as published by the Bank of Canada from time to time. Central Bank Rate Adjustment: In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent. trimmed arithmetic mean (calculated by the Agent, or by any other Finance Party which agrees to do so in place of the Agent) of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available. For this purpose, "Central Bank Rate Spread" means, in relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Agent (or by any other Finance Party which agrees to do so in place of the Agent) between: (a) the RFR for that RFR Banking Day; and (b) the Central Bank Rate prevailing at close of business on that RFR Banking Day. Daily Rate: The "Daily Rate" for any RFR Banking Day is: (a) the RFR for that RFR Banking Day; or (b) if the RFR is not available for that RFR Banking Day, the percentage rate per annum which is the aggregate of: (i) the Central Bank Rate for that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment; or (c) if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of: (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment, rounded, in either case, to five decimal places (with 0.000005 being rounded upwards) and if, in either case, that rate is less than zero, the Daily Rate shall be deemed to be zero. 153 3203820842 Lookback Period: Five RFR Banking Days. Market Disruption Rate: The percentage rate per annum which is the aggregate of: (a) the Cumulative Compounded RFR Rate for the Interest Period of the relevant Loan; and (b) the applicable Credit Adjustment Spread. Relevant Market: The market for overnight general collateral funding in Canadian Dollars using Government of Canada treasury bills and bonds as collateral for repurchase transactions. Reporting Day: The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period. RFR: The Canadian Overnight Repo Rate Average ("CORRA") administered by the Bank of Canada (or any other person which takes over the administration of that rate) published by the Bank of Canada (or any other person which takes over the publication of that rate). RFR Banking Day: A day (other than a Saturday or Sunday) on which banks are open for general business in Toronto. RFR Contingency Period: One Month. Interest Periods Periods capable of selection as Interest Periods (paragraph (b) of Clause 10.1 (Selection of Interest Periods)): One or three Months. Reporting Times Deadline for Lenders to report market disruption in accordance with Clause 11.2 (Market disruption): Close of business in London on the Reporting Day for the relevant Loan. Deadline for Lenders to report their cost of funds in accordance with Clause 11.3 (Cost of funds): Close of business on the date falling two Business Days after the Reporting Day for the relevant Loan (or, if earlier, on the date falling two Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Loan).
154 3203820842 SCHEDULE 14 DAILY NON-CUMULATIVE COMPOUNDED RFR RATE The "Daily Non-Cumulative Compounded RFR Rate" for any RFR Banking Day "i" during an Interest Period for a Loan is the percentage rate per annum (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose) calculated as set out below: (𝑈𝐶𝐶𝐷𝑅𝑖 − 𝑈𝐶𝐶𝐷𝑅𝑖−1) × 𝑑𝑐𝑐 𝑛𝑖 where: "UCCDRi" means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i"; "UCCDRi-1" means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Interest Period; "dcc" means in the case of all currencies other than Canadian Dollars, 360 or in the case of Canadian Dollars, 365 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; "ni" means the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and the "Unannualised Cumulative Compounded Daily Rate" for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Interest Period is the result of the below calculation (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose): 𝐴𝐶𝐶𝐷𝑅 × 𝑡𝑛𝑖 𝑑𝑐𝑐 where: "ACCDR" means the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day; "tni" means the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period; "Cumulation Period" means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking Day; "dcc" has the meaning given to that term above; and the "Annualised Cumulative Compounded Daily Rate" for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to five decimal places, with 0.000005 being rounded upwards) calculated as set out below: [∏(1 + 𝐷𝑎𝑖𝑙𝑦𝑅𝑎𝑡𝑒𝑖−𝐿𝑃 × 𝑛𝑖 𝑑𝑐𝑐 ) − 1 𝑑𝑜 𝑖=1 ] × 𝑑𝑐𝑐 𝑡𝑛𝑖 155 3203820842 where: "d0" means the number of RFR Banking Days in the Cumulation Period; "Cumulation Period" has the meaning given to that term above; "i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period; "DailyRatei-LP" means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i"; "ni" means, for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; "dcc" has the meaning given to that term above; and "tni" has the meaning given to that term above. 156 3203820842 SCHEDULE 15 CUMULATIVE COMPOUNDED RFR RATE The "Cumulative Compounded RFR Rate" for any Interest Period for a Loan is the percentage rate per annum (rounded to the same number of decimal places as is specified in the definition of "Annualised Cumulative Compounded Daily Rate" in Schedule 14 (Daily Non-Cumulative Compounded RFR Rate)) calculated as set out below: [∏(1 + 𝐷𝑎𝑖𝑙𝑦𝑅𝑎𝑡𝑒𝑖−𝐿𝑃 × 𝑛𝑖 𝑑𝑐𝑐 ) − 1 𝑑𝑜 𝑖=1 ] × 𝑑𝑐𝑐 𝑑 where: "d0" means the number of RFR Banking Days during the Interest Period; "i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order during the Interest Period; "DailyRatei-LP" means for any RFR Banking Day "i" during the Interest Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i"; "ni" means, for any RFR Banking Day "i", the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; "dcc" means in the case of all currencies other than Canadian Dollars, 360 or in the case of Canadian Dollars, 365 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; and "d" means the number of calendar days during that Interest Period. Exhibit 4.13 3203820842 Signature Page – Fox – Parallel Bridge Facility SIGNATURE PAGES THE PARENT For and on behalf of GOLD FIELDS LIMITED By: /s/ Michael John Fraser
3203820842 Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL BORROWER For and on behalf of GOLD FIELDS OROGEN HOLDING (BVI) LIMITED By: /s/ Colin Bird 3203820842 Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL BORROWER For and on behalf of GOLD FIELDS WINDFALL HOLDINGS INC. By: /s/ Johan Pauley Exhibit 4.13 3203820842 Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL GUARANTOR For and on behalf of GOLD FIELDS LIMITED By: /s/ Michael John Fraser 3203820842 Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL GUARANTOR For and on behalf of GOLD FIELDS HOLDINGS COMPANY LIMITED By: /s/ Jongisa Magagula
3203820842 Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL GUARANTOR For and on behalf of GOLD FIELDS OROGEN HOLDING (BVI) LIMITED By: /s/ Colin Bird Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL GUARANTOR For and on behalf of GOLD FIELDS WINDFALL HOLDINGS INC. By: /s/ Johan Pauley Signature Page – Fox – Parallel Bridge Facility THE AGENT For and on behalf of THE BANK OF NOVA SCOTIA By: /s/ Sonya Bikhit Managing Director By: /s/ Lorenzo Ravelli Director Signature Page – Fox – Parallel Bridge Facility THE ARRANGER For and on behalf of CITIBANK, N.A., LONDON BRANCH By: /s/ Adrian Bain Director
Signature Page – Fox – Parallel Bridge Facility THE ARRANGER For and on behalf of ROYAL BANK OF CANADA By: /s/ Arshia Hashemi Vice President Signature Page – Fox – Parallel Bridge Facility THE ARRANGER For and on behalf of THE BANK OF NOVA SCOTIA By: /s/ Sonya Bikhit Managing Director By: /s/ Lorenzo Ravelli Director Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL LENDER For and on behalf of THE BANK OF NOVA SCOTIA, LONDON BRANCH By: /s/ Sonya Bikhit Managing Director By: /s/ Lorenzo Ravelli Director Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL LENDER For and on behalf of ROYAL BANK OF CANADA By: /s/ Arshia Hashemi Vice President
Signature Page – Fox – Parallel Bridge Facility THE ORIGINAL LENDER For and on behalf of CITIBANK, N.A., JERSEY BRANCH By: /s/ Peter Lemoucheux Senior Vice President