EX-10.46 8 ex1046.htm EX-10.46
1
COMMON TERMS AGREEMENT
SENIOR TERM LOAN, REVOLVING
LOAN AND WORKING CAPITAL FACILITIES
and
LESAKA TECHNOLOGIES PROPRIETARY
LIMITED
(as
Term/RCF
Borrower
)
and
FIRSTRAND BANK LIMITED
(acting through its Rand Merchant Bank division)
(as
Facility Agent
)
and
BOWWOOD AND MAIN NO 408 (RF) PROPRIETARY
LIMITED
(as
Debt Guarantor
)
Exhibit 10.46
i
TABLE
OF CONTENTS
1
PARTIES
................................
................................
................................
...................... 1
2
INTERPRETATION
................................
................................
................................
.....
1
3
THE SENIOR FACILITIES
................................
................................
........................ 49
4
PURPOSE
................................
................................
................................
................... 50
5
CONDITIONS OF UTILISATION
................................
................................
.............. 51
6
UTILISATION
................................
................................
................................
............ 52
7
REPAYMENT
................................
................................
................................
............. 53
8
PREPAYMENT
AND CANCELLATION
................................
................................
.... 53
9
PREPAYMENT
OFFERS AND PRIORITIES
................................
............................. 61
10
INTEREST AND INTEREST PERIODS
................................
................................
...... 66
11
CHANGES TO THE CALCULATION OF INTEREST
................................
................ 66
12
BREAK COSTS AND BREAK GAINS
................................
................................
........ 68
13
FEES
................................
................................
................................
.......................... 69
14
TAX GROSS-UP AND INDEMNITIES
................................
................................
........ 70
15
CHANGES IN COSTS
................................
................................
................................
.
74
16
OTHER INDEMNITIES
................................
................................
.............................. 76
17
MITIGATION BY THE LENDERS
................................
................................
............. 79
18
COSTS AND EXPENSES
................................
................................
............................ 79
19
GUARANTEE AND INDEMNITY
................................
................................
.............. 80
20
REPRESENTATIONS
................................
................................
................................
.
84
21
INFORMATION UNDERTAKINGS
................................
................................
........... 97
22
FINANCIAL COVENANTS
................................
................................
...................... 107
23
GENERAL UNDERTAKINGS
................................
................................
..................
111
24
EVENTS OF DEFAULT
................................
................................
............................ 144
25
CHANGES TO THE LENDERS
................................
................................
................ 151
26
CHANGES TO THE OBLIGORS
................................
................................
.............. 155
ii
27
FACILITY AGENT
................................
................................
................................
... 158
28
SHARING AMONG THE FINANCE PARTIES
................................
......................... 159
29
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
................................
......... 161
30
FINANCE PARTY RIGHTS
................................
................................
...................... 161
31
PAYMENT
MECHANICS
................................
................................
......................... 161
32
SET-OFF
................................
................................
................................
.................. 164
33
CALCULATIONS AND CERTIFICATES
................................
................................
.
164
34
NOTICES
................................
................................
................................
................. 165
35
AMENDMENTS AND WAIVERS
................................
................................
............. 170
36
CONFIDENTIALITY
................................
................................
................................ 170
37
GENERAL PROVISIONS
................................
................................
......................... 173
38
GOVERNING LAW
................................
................................
................................
.. 175
39
JURISDICTION
................................
................................
................................
........ 175
40
WAIVER
OF IMMUNITY
................................
................................
........................ 176
ANNEXURES
ANNEXURE
A
- THE PARTIES
ANNEXURE B
- CONDITIONS PRECEDENT
ANNEXURE C
- FORM OF TRANSFER CERTIFICATE
ANNEXURE D
- FORMS OF ACCESSION LETTER
ANNEXURE E
- FORM OF RESIGNATION LETTER
ANNEXURE F
- FORM OF COMPLIANCE CERTIFICATE
ANNEXURE G
- TRANSACTION SECURITY
ANNEXURE H
- ACCEPTABLE LENDERS
ANNEXURE I
- FORM OF CONFIDENTIALITY UNDERTAKING
ANNEXURE J
- DORMANT SUBSIDIARIES
ANNEXURE K
- DISCLOSURE SCHEDULE
ANNEXURE L
- GROUP STRUCTURE
ANNEXURE M
- MATERIAL CONTRACTS AS AT THE SIGNATURE
DATE
1
1
PARTIES
1.1
The Parties to this Agreement are –
1.1.1
Lesaka Technologies, Inc. (
Holdco
);
1.1.2
Lesaka
Technologies
Proprietary Limited,
registration number
2002/031446/07 (the
Term/RCF Borrower
);
1.1.3
the Parties
listed in
Part I
of Annexure
A (
The Original
Parties
) as
general banking
facility borrowers (the
Original WCF Borrowers
);
1.1.4
the Parties listed in Part
I of Annexure A (
The Original Parties
) as original guarantors
(the
Original Guarantors
);
1.1.5
the
Financial
Institutions
listed
in
Part
II
of
Annexure
A
(
the
Original
Parties
),
as
original lenders under the
Senior Term Facilities and the Senior
RCF (in this capacity,
together with the Original WCF Lender, the
Original Senior Lenders
);
1.1.6
FirstRand Bank Limited (acting through
its Rand Merchant Bank division) as
original
lender under Working Capital
Facilities (in
this capacity, the
Original WCF Lender
);
1.1.7
FirstRand
Bank
Limited
(acting
through
its
WesBank
division)
as
original
lender
under the WesBank Facility (in this capacity,
WesBank
);
1.1.8
FirstRand Bank Limited (acting
through its Rand Merchant
Bank division) as agent
of
the other Finance Parties (the
Facility Agent
); and
1.1.9
Bowwood
and
Main
No
408
(RF)
Proprietary
Limited,
registration
number
2024/200503/07, as holder of security for the benefit of the Finance Parties (the
Debt
Guarantor
).
1.2
The Parties agree as set out below.
2
INTERPRETATION
2.1
In this Agreement,
unless the
context indicates a
contrary intention,
the following words
and
expressions bear
the meanings
assigned to
them and
cognate expressions
bear corresponding
meanings –
2.1.1
Acceptable Bank
means -
2.1.1.1
any
of
Absa
Bank
Limited,
FirstRand
Bank
Limited,
Investec
Bank
Limited,
Nedbank Limited and The Standard Bank of South Africa Limited;
2
2.1.1.2
a bank or financial institution which has an international rating for its long-term
unsecured
and
non-credit
enhanced
debt
obligations
of
BBB-
or
higher
by
Standard
&
Poor's
Ratings
Services
or
Baa3
or
higher
by
Moody's
Investor
Services
Limited,
or
a
comparable
rating
from
an
internationally
recognised
credit rating agency; or
2.1.1.3
any other bank or financial institution approved by the Facility Agent;
2.1.2
Accession Letter means
-
2.1.2.1
in relation to an Additional
Guarantor, a document
substantially in the form set
out in Part I of Annexure D (Forms of Accession Letter);
2.1.2.2
in relation
to an
Additional WCF
Borrower, a document
substantially in
the form
set out in Part II of Annexure D (Forms of Accession Letter); and
2.1.2.3
in relation to a WCF
Lender, a document substantially in
the form set out in
Part
III of Annexure D (Forms of Accession Letter);
2.1.3
Acquisition
GBF
means
the
general
banking
facilities
provided
by
RMB
to
the
Term/RCF
Borrower
on
or
about
30
September
2024,
to
enable
the
Term/RCF
Borrower to acquire all of the shares and claims in Adumo;
2.1.4
Additional Guarantor
means a
person which
becomes an
Additional Guarantor
in
accordance with clause
26.3
(Additional Guarantors);
2.1.5
Additional Obligor
means an Additional
WCF Borrower or
an Additional Guarantor;
2.1.6
Additional WCF Borrower
means a member
of the Covenant Group
in its capacity
as a
borrower under
a Working
Capital Facility
on it
becoming an
Additional WCF
Borrower in accordance with clause
26.2
(Additional WCF Borrower);
2.1.7
Adumo
means
Adumo
(RF)
Proprietary
Limited,
registration
number
2017/540380/07,
a
private
company
with
limited
liability
duly
incorporated
in
accordance with the laws of South Africa;
2.1.8
Affiliate
, in
relation to
any person,
means a
Subsidiary of
that person
or a
Holding
Company of that person, or any other Subsidiary of that Holding Company;
2.1.9
Agreement
means this common terms agreement and its schedules;
3
12
121
1
TT
]R[R]T[T
RR
-
-´-
+=
2.1.10
Applicable Margin
, in relation
to a
Loan, has the
meaning given to
that term in
the
Senior Facility Agreement relating to that Loan;
2.1.11
Auditors
means
one
of
PwC,
EY,
KPMG
or
Deloitte,
BDO,
or
any
other
firm
approved in writing in advance by the Facility Agent;
2.1.12
Availability
Period
,
in
relation
to
the
applicable
Senior
Term
Facility
or
the
Senior RCF,
has
the
meaning
given
to
that
term
in
the
applicable
Senior
Facility
Agreement;
2.1.13
Available
Commitment
,
in
relation
to
the
applicable
Senior
Term
Facility
or
the
Senior RCF, means a Lender's Commitment under that Senior Facility minus -
2.1.13.1
the
amount
of
its
participation
in
any
outstanding
Loans
under
that
Senior
Facility; and
2.1.13.2
in
relation
to
any
proposed
Utilisation,
the
amount
of
its
participation
in
any
Loans
that
are
due
to
be
made
under
that
Senior
Facility
on
or
before
the
proposed Utilisation Date;
2.1.14
Available
Facility
,
in
relation
to
the
applicable
Senior
Term
Facility
or
the
Senior
RCF, means the aggregate for the time being of
each Lender's Available Commitment
in respect of that Senior Facility;
2.1.15
Base Rate
means for an Interest Period of
any Loan or Unpaid Sum, JIBAR,
or for an
Interest Period
of a
Loan or
Unpaid Sum
which is
less than
a full
period of
three months
(a
Broken
JIBAR
Period
),
the
rate
determined
in
accordance
with
the
following
formula -
where -
R
=
the Base Rate;
R
1
=
JIBAR for the period closest to but less than the Broken JIBAR Period
plus,
if
this
would
result
in
R
1
being
equal
to
the
JIBAR
Overnight
Deposit Rate, 0.10 per cent.;
R
2
=
JIBAR
for
the
period
closest
to
but
greater
than
the
Broken
JIBAR
Period;
4
T
=
the number of days in the Broken JIBAR Period;
T
1
=
the number of days in the
period for which R
1
is quoted on the first day
of the Broken JIBAR Period;
T
2
=
the number of days in the
period for which R
2
is quoted on the first day
of the Broken JIBAR Period;
2.1.16
Borrower
means the Term/RCF Borrower or a WCF Borrower;
2.1.17
Break Costs
, in relation to any Senior Facility,
has the meaning given to that term in
the applicable Senior Facility Agreement;
2.1.18
Break Gains
, in relation to any Senior Facility, has the meaning given to that term in
the applicable Senior Facility Agreement;
2.1.19
Business Day
means a day
(other than a
Saturday, a Sunday or official
public holiday)
on which banks are open for general business in Johannesburg;
2.1.20
Cash Connect Capital
means Cash Connect Capital
Proprietary Limited, registration
number 2017/029430/07, a private company
duly incorporated in accordance with
the
laws of South Africa;
2.1.21
Cash
Connect
Capital
RCF
Agreement
means
the
revolving
credit
facility
agreement concluded between
inter alios
Cash Connect Capital and RMB
on or about
29 November 2022,
pursuant to which
RMB agreed to
make a revolving
credit facility
of R300,000,000 available to Cash Connect Capital;
2.1.22
Cash Connect
Capital RCF
Finance Documents
means the
"Finance Documents"
as defined in the Cash Connect Capital RCF Agreement;
2.1.23
Cash Connect Group
Cession and Pledge
means the amended and
restated cession
in
security
provided
by
Cash
Connect
Capital,
Cash
Connect
Management,
Cash
Connect Rentals, Deposit Manager
and Main Street
1723 to RMB
as security for the
obligations
owing
to
RMB
on
account
of
the
Cash
Connect
Capital
RCF
Finance
Documents and the Cash Connect Management Finance Documents;
2.1.24
Cash Connect
Management
means Cash
Connect Management
Solutions Proprietary
Limited, registration
number 2006/010530/07,
a private
company with
limited liability
duly incorporated in accordance with the laws of South Africa;
5
2.1.25
Cash
Connect
Management
Facilities
Agreement
means
the
facilities
agreement
concluded
on
or
about
24
January
2022
between
Cash
Connect
Management
and
RMB, pursuant
to which
RMB made
facilities of
R1,050,000,000 available
to Cash
Connect Management;
2.1.26
Cash Connect Management
Finance Documents
means the “Finance
Documents”
as defined in the Cash Connect Management Facilities Agreement;
2.1.27
Cash
Connect
Management
Release
Agreement
means
the
release
and
consent
agreements, dated on
or about the
Signature Date, pursuant
to which RMB
agrees to
release -
2.1.27.1
any all security held by it
in relation to the Cash Connect Management Finance
Documents on the terms and on the conditions contained therein; and
2.1.27.2
Cash Connect Management, Cash Connect Rentals, Deposit Manager and Main
Street 1723 from the Cash Connect Group Cession and Pledge;
2.1.28
Cash Connect Rentals
means Cash Connect
Rentals Proprietary
Limited, registration
number 2009/007139/07, a
private company with
limited liability duly
incorporated in
accordance with the laws of South Africa;
2.1.29
Closing
Date
means
the
date
on
which
the
Facility
Agent
issues
the
notice
contemplated by clause
5.1
(
Initial conditions precedent
);
2.1.30
Code
means the United States Revenue Code of 1986;
2.1.31
Commitment
means
a
Senior
Term
Facility
Commitment,
a
Senior
RCF
Commitment,
the WesBank Commitment or a WCF Commitment;
2.1.32
Companies
Act
means
the
Companies
Act,
2008,
including
all
regulations
promulgated under that act;
2.1.33
Compliance
Certificate
means
a
certificate
substantially
in
the
form
set
out
in
Annexure F (
Form of Compliance Certificate
) or otherwise in the agreed form;
2.1.34
Confidential
Information
means
all
information
relating
to
Holdco,
any
other
Obligor, the Group, the Finance Documents or a Senior Facility in the
possession of a
Finance Party
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 a Senior Facility from either -
6
2.1.34.1
any member of the Group or any of its advisers; or
2.1.34.2
another
Finance
Party,
if
the
information
was
obtained
by
that
Finance
Party
from any member of the Group,
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 -
2.1.34.2.1
is or
becomes public
information other
than as
a result
of any
breach by
that Finance Party of clause
36
(Confidentiality); or
2.1.34.2.2
is identified
in writing
at the
time of
delivery as
non-confidential by any
member of the Group or any of its advisers; or
2.1.34.2.3
is known by that
Finance Party before
the date the information
is disclosed
to it
in accordance
with clauses
2.1.34.1
or
2.1.34.2 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;
2.1.35
Confidentiality Undertaking
means a confidentiality
undertaking substantially
in the
form set out in Annexure I (Form of Confidentiality Undertaking) or otherwise in
the
agreed form;
2.1.36
Control
means, in relation to any company or organisation or person -
2.1.36.1
the power
(whether by
way of
ownership of
shares, proxy,
contract, agency or
otherwise) to -
2.1.36.1.1
cast, or control the
casting of, more than
50.00 per cent. of
the maximum
number of votes that might be cast at a general meeting of that person; or
2.1.36.1.2
appoint or remove all, or the
majority, of
the directors or other equivalent
officers of that person; or
2.1.36.1.3
give directions with
respect to the
operating and financial policies
of that
person with which the directors or other equivalent officers of that
person
are obliged to comply; and/or
7
2.1.36.2
the holding
(beneficially or
legally) of
more than
50.00 per
cent. of
the issued
share capital of
that person (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),
and
Controlled
shall be construed accordingly;
2.1.37
Control
Event
has
the
meaning
given
to
that
term
in
clause
8.3
(
Mandatory
prepayment - change of control or transfer of business
);
2.1.38
Counter-indemnity
Agreement
means
the
written
counter-indemnity,
dated
on
or
about the Signature
Date, given by
the Obligors (on
a joint and
several basis) in
favour
of the Debt Guarantor;
2.1.39
Covenant Group
means the
Term/RCF
Borrower and
each of
its Subsidiaries
from
time to
time and
any partnership,
Joint Venture,
trust, juristic
person or
other entity
Controlled
by
the
Term/RCF
Borrower
or
any
of
its
Subsidiaries,
but
specifically
excluding CPS;
2.1.40
CPS
means
Cash
Paymaster
Services
Proprietary
Limited,
registration
number
1997/013382/07, a private company duly incorporated in accordance with the laws of
South Africa,
a company which is, as at the Signature Date, in liquidation;
2.1.41
Debt Guarantee
means the written first-ranking
debt guarantee, dated on
or about the
Signature Date,
given by
the Debt
Guarantor in
favour of
the Finance
Parties (other
than the
Debt Guarantor)
for the
obligations of
the Obligors
owed to
those Finance
Parties under the Finance Documents;
2.1.42
Debt Guarantor
Management Agreement
means the
agreement for
the management
and
administration
of
the
Debt
Guarantor,
dated
on
or
about
the
Signature
Date,
between the Debt Guarantor and
TMF Corporate Services (South Africa)
Proprietary
Limited;
2.1.43
Debt Guarantor
Owner Trust
means the
trustees for
the time
being of
the Project
Mercury Owner Trust, Master's Reference number IT000064/2025(G);
2.1.44
Default
means –
2.1.44.1
an Event of Default; or
8
2.1.44.2
any event or
circumstance which
(with the expiry
of any
applicable grace
period,
the
giving
of
notice,
the
making
of
any
determination
under
the
Finance
Documents or
any combination of
any of
the foregoing)
would be
an Event
of
Default;
2.1.45
Deposit Manager
means Deposit Manager
Proprietary Limited, registration
number
2010/016889/07,
a
private
company
with
limited
liability
duly
incorporated
in
accordance with the laws of South Africa;
2.1.46
Disruption Event
means either or both of –
2.1.46.1
a material
disruption to
those payment
or communications
systems or
to those
financial
markets
which
are,
in
each
case,
required
to
operate
in
order
for
payments to
be made
in connection
with the
Senior Facilities
(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
2.1.46.2
the occurrence of any other event which results in a disruption
(of a technical or
systems-related
nature)
to
the
treasury
or
payments
operations
of
a
Party
preventing that, or any other Party –
2.1.46.2.1
from performing its
payment obligations under
the Finance Documents;
or
2.1.46.2.2
from communicating with
other Parties
in accordance with
the terms of
the
Finance Documents,
and which
(in either
such case)
is not
caused by,
and is
beyond the
control of,
the Party whose operations are disrupted;
2.1.47
Dormant Subsidiary
means any member of the Covenant Group -
2.1.47.1
which does not trade (for itself or as agent for any person);
and
2.1.47.2
which does not
own, legally
or beneficially, assets (including
indebtedness owed
to it) which in aggregate (together with all such other members of the Covenant
Group which
are Dormant
Subsidiaries) have
a value
of R10,000,000
or more
(or its equivalent in other currencies);
2.1.48
Environment
means humans, animals,
plants and all
other living organisms
including
the ecological systems of which they form part and the following
media -
9
2.1.48.1
air
(including,
without
limitation,
air
within
natural
or
man-made
structures,
whether above or below ground);
2.1.48.2
water (including, without limitation, territorial, coastal and inland waters, water
under or within land and water in drains and sewers); and
2.1.48.3
land (including, without limitation, land under water);
2.1.49
Environmental
Claim
means
any
claim,
litigation,
arbitral
proceedings
or
administrative proceedings, formal notice or investigation by any authority in
respect
of
any Environmental
Law or
any authorisation
held (or
required to
be held)
under
applicable Environmental Law;
2.1.50
Environmental Law
means any applicable law or regulation which relates to -
2.1.50.1
the pollution or protection of the Environment;
2.1.50.2
harm to or the protection of human health and safety; or
2.1.50.3
the
generation,
handling,
transport,
storage,
burial,
use,
release,
disposal,
emission
or
spillage
of
any
Hazardous
Substances
which,
alone
or
in
combination
with
any
other,
is
capable
of
causing
harm
to
the
Environment,
including, without limitation, any waste;
2.1.51
Environmental Matters
means all matters relating to -
2.1.51.1
the pollution or protection of the Environment and/or human health and
safety;
2.1.51.2
the use, treatment,
storage, burial, disposal, transport
or handling of
Hazardous
Substances; or
2.1.51.3
Environmental Permits;
2.1.52
Environmental Permit
means any permit and/or other authorisation and the filing of
any notification, report or
assessment required under any
Environmental Law for the
operation of the business of any member of
the Group or in respect of any immovable
properties owned or used by any member of the Group;
2.1.53
Event of
Default
means any event
or circumstance specified
in clause
24
(
Events of
Default
);
2.1.54
Excluded Subsidiary
means -
10
2.1.54.1
Cash Connect Capital;
2.1.54.2
K2020 Connect Proprietary Limited, registration number 2020/263969/07;
and
2.1.54.3
any other
Subsidiary of
the Term/RCF
Borrower which
the Facility
Agent has
agreed in writing will be designated as an Excluded Subsidiary;
2.1.55
Existing
Finance
Documents
has
the
meaning
given
to
that
term
in
the
Lesaka
Release Agreement;
2.1.56
Existing Group
Indebtedness
means Financial
Indebtedness of the
members of
the
Group arising under the Existing Finance Documents;
2.1.57
Existing
Security
has
the
meaning
given
to
that
term
in
the
Lesaka
Release
Agreement;
2.1.58
Existing
Security
Discharge
Date
means,
in
respect
of
any
Existing
Security,
the
"Release Time" for
that Existing
Security as
defined in
the Lesaka
Release Agreement;
2.1.59
Facility
means a Senior Term Facility, the Senior RCF or a Working
Capital Facility;
2.1.60
FATCA
means -
2.1.60.1
sections 1471 to 1474 of the Code or any associated regulations;
2.1.60.2
any
treaty,
law
or
regulation
of
any
other
jurisdiction,
or
relating
to
an
intergovernmental agreement between the US and any other
jurisdiction, which
(in either
case) facilitates the
implementation of any
law or
regulation referred
to in clause
2.1.60.1
; or
2.1.60.3
any agreement
pursuant to
the implementation
of any
treaty,
law or
regulation
referred to in clauses
2.1.60.1
or
2.1.60.2
with the US Internal Revenue
Service,
the
US
government
or
any
governmental
or
taxation
authority
in
any
other
jurisdiction;
2.1.61
FATCA
Deduction
means
a
deduction
or
withholding
from
a
payment
under
a
Finance Document required by FATCA;
2.1.62
FATCA
Exempt Party
means a Party
that is entitled
to receive payments
free from
any FATCA
Deduction;
2.1.63
Fee
Letter
means
any
letter
or
letters
entered into
by
reference
to
this
Agreement,
dated on or
about the Signature Date,
between the Facility Agent
and/or the Original
11
Senior Lenders (or
any one of
them) and the
Term/RCF Borrower
setting out any
of
the fees referred to in clause
13
(Fees);
2.1.64
Final Discharge Date
means the date on which -
2.1.64.1
the
Senior
Term
Facility
Outstandings,
the
Senior
RCF
Outstandings
,
the
WesBank
Outstandings and
the WCF
Outstandings have
been irrevocably
and
unconditionally
paid
and
discharged
in
full
(whether
or
not
as
a
result
of
enforcement); and
2.1.64.2
no
Finance
Party
has
any
commitment
whatsoever
to
provide
finance
or
any
other form
of credit
or financial
accommodation to
any person
under any
Finance
Document,
as
certified
in
writing
by
the
Facility
Agent
(acting
on
the
instructions
of
all
the
Lenders)
within
5
Business
Days
of
receipt
of
a
request
for
confirmation
from
the
Term/RCF Borrower, if all the requirements above have in fact been met;
2.1.65
Final Maturity Date
, in relation to each Senior Term Facility or the Senior RCF, has
the meaning
given to
that term
in the
applicable Senior
Term
Facility Agreement
or
the Senior RCF Agreement, respectively;
2.1.66
Finance Document
means -
2.1.66.1
this Agreement;
2.1.66.2
the Senior Term Facility A Agreement;
2.1.66.3
the Senior Term Facility B Agreement;
2.1.66.4
the Senior RCF Agreement;
2.1.66.5
each WCF Document;
2.1.66.6
each WesBank Agreement;
2.1.66.7
the Lesaka Release Agreement;
2.1.66.8
the Cash Connect Management Release Agreement;
2.1.66.9
the Debt Guarantee;
2.1.66.10
the Counter-indemnity Agreement;
12
2.1.66.11
each Security Document;
2.1.66.12
each Security Structure Document;
2.1.66.13
each Fee Letter;
2.1.66.14
the Further Rights Letter;
2.1.66.15
any Intercreditor Agreement;
2.1.66.16
any
Subordination Agreement;
2.1.66.17
any Transfer Certificate;
2.1.66.18
any Accession Letter;
2.1.66.19
any Resignation Letter;
2.1.66.20
each Utilisation Request;
2.1.66.21
each Compliance Certificate;
2.1.66.22
each document
amending any
Finance Document
referred to
in this
clause above;
and
2.1.66.23
any other document
designated as
such by agreement
between the
Facility Agent
and the Term/RCF Borrower;
2.1.67
Finance Parties
means the Lenders, the
Facility Agent and the
Debt Guarantor (and
Finance Party
, as the context requires, means any of them);
2.1.68
Financial
Close
means
the
date
on
which
the
Facility
Agent
delivers
the
notice
contemplated in clause
5.1
to the Term/RCF Borrower;
2.1.69
Financial Indebtedness
means any indebtedness for or in respect of -
2.1.69.1
moneys borrowed, credit provided and debit balances at financial
institutions;
2.1.69.2
any
amount
raised
by
acceptance
under
any
acceptance
credit
facility
or
dematerialised equivalent;
2.1.69.3
any amount raised
pursuant to any
note purchase facility
or the issue
of bonds,
notes, debentures, loan stock or any similar instrument;
13
2.1.69.4
the amount
of any
liability in
respect of
any lease
or hire
purchase contract
which
would,
in
accordance
with
IFRS,
be
treated
as
a
finance
or
capital
lease
but
excluding
any
Relevant
Operating
Lease
notwithstanding
any
change
(or
the
implementation of any change) to IFRS on or after 1 January 2019;
2.1.69.5
receivables sold or discounted (other than any receivables to the extent they are
sold on a non-recourse basis);
2.1.69.6
any
amount raised
under
any other
transaction (including
any forward
sale or
purchase agreement) having the commercial effect of a borrowing;
2.1.69.7
any
Treasury
Transaction
(and,
when
calculating
the
value
of
that
Treasury
Transaction, only the mark-to-market value (or, if any actual amount is due as a
result of the termination or close-out of that derivative transaction, that amount)
shall be taken into account);
2.1.69.8
any amount raised by the issue of a share which by its terms (or by the
terms of
any security
into which
it is
convertible or
for which
it is
exchangeable) is
or
may become
mandatorily redeemable
or redeemable
at the
option of
its holder
(including upon
the occurrence
of any
default under
the terms
of issue
of any
such share);
2.1.69.9
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; and
2.1.69.10
the amount
of any
liability in
respect of any
guarantee or indemnity
for any
of
the items referred to in clauses
2.1.69.1
to
2.1.69.9 above;
2.1.70
Further Rights
Letter
means the
letter agreement,
dated on
or about
the Signature
Date,
between,
amongst
others,
the
Term/RCF
Borrower
and
each
Original
Senior
Lender in
respect of
the Original
Senior Lenders'
rights in
relation to
inter alia
(i) a
refinancing by the Term/RCF Borrower of the Senior Term Facility Loans, the Senior
Term Facility Outstandings, the Senior
RCF Loans and the Senior RCF Outstandings
under the
Finance Documents,
and (ii)
the right
to quote
in relation
to any
transactional
banking requirements of Adumo and any of its Subsidiaries;
2.1.71
GAAP
means, in
relation to Holdco,
the generally accepted
accounting principles in
the US;
2.1.72
Group
means -
14
2.1.72.1
for the purposes of clauses
2.1.52
,
2.1.141
,
8.2,
,
20.17
20.18
,
20.29
,
23.2
,
23.19
and
23.25
of this
Agreement, Holdco and
each of its
Subsidiaries from time
to
time
and
any
partnership,
Joint
Venture,
trust,
juristic
person
or
other
entity
Controlled by Holdco and/or any of its Subsidiaries ; and
2.1.72.2
for
all
other
clauses
in
this
Agreement
which
are
not
referred
to
in
clause
2.1.72.1
,
Holdco
and
each
of
its
Subsidiaries
from
time
to
time
and
any
partnership,
Joint
Venture,
trust,
juristic
person
or
other
entity
Controlled
by
Holdco
and/or
any
of
its
Subsidiaries
but
specifically
excluding
CPS
and
its
Subsidiaries;
2.1.73
Group Structure Chart
means the written
group structure
diagram attached hereto
as
Annexure
L
(Group
Structure
Chart),
or,
if
Holdco
has
delivered
a
further
group
structure
diagram
pursuant
to
clause
21.10.5
,
the
most
recently
delivered
group
structure diagram;
2.1.74
Guarantor
means an
Original Guarantor
or an
Additional Guarantor, to
the extent
that
it has
not ceased to
be a
Guarantor in
accordance with clause
26.5
(Resignation of a
Guarantor);
2.1.75
Hazardous
Substances
means
any
wastes,
pollutants,
contaminants
and
any
other
natural or
artificial substance
(whether in
the form
of a
solid, liquid,
gas or
vapour)
which, alone
or in
combination with other
substances, is capable
of causing harm
or
damage to the Environment or human health;
2.1.76
Holdco Cession & Pledge
means the pledge and cession
in securitatem debiti,
dated
on or about the Signature Date, given
in favour of the Debt Guarantor by Holdco
over
inter alia
-
2.1.76.1
its shares in and claims and related rights against the Term/RCF Borrower;
and
2.1.76.2
its rights, title and interest in and to the Secured Account;
2.1.77
Holding Company
, in
relation to
a company
or corporation,
means any
other company
or corporation in respect of which it is a Subsidiary;
2.1.78
IFRS
means
international
accounting
standards
promulgated
by
the
International
Accounting Standards Board
from time to
time, to the
extent applicable to
the relevant
financial statements or IFRS for small and medium enterprises, as applicable;
15
2.1.79
Indexed
in relation to
any sum, that
sum adjusted annually
to take account
of year-on-
year changes in the US CPI since the Signature Date;
2.1.80
Insurance
means any contract or policy of insurance and reinsurance taken out by or
on behalf of a member of the Group or under which it has a
right to claim;
2.1.81
Intellectual Property Rights
means -
2.1.81.1
any know-how,
patent, trade
mark, service
mark, design,
invention, trading
or
business name, domain name, topographical or similar right;
2.1.81.2
any copyright, data base or other intellectual property right; or
2.1.81.3
any interest and rights to use (including by way of licence) in the above,
in each case whether registered or not, and includes any related application;
2.1.82
Intercreditor
Agreement
means
the
intercreditor
agreement
entered
into
or
to
be
entered into between, amongst others, the Finance Parties;
2.1.83
Interest Payment Date
, in relation to a
Senior Term
Facility or the Senior
RCF,
has
the meaning
given to
that term
in the
applicable Senior
Term
Facility Agreement
or
the Senior RCF Agreement, respectively;
2.1.84
Interest Period
, in
relation to
a Senior
Term
Facility or
the Senior
RCF or
Unpaid
Sum in
relation thereto,
has the
meaning given
to that
term in
the applicable
Senior
Term Facility Agreement or the Senior RCF Agreement, respectively;
2.1.85
Internally Generated
Cash
means funds
generated from
the operating
activities of
the Covenant Group in the ordinary course of business which -
2.1.85.1
excludes
the
proceeds
of
any
Shareholder
Contributions
or
Financial
Indebtedness raised by a member of the Covenant Group; and
2.1.85.2
includes any disposal proceeds
generated through any
disposals contemplated in
clause
23.6.11
(Disposals);
2.1.86
Investec
means Investec Bank
Limited, registration number
1969/004763/06, a public
company with limited liability
duly incorporated in accordance
with the laws of
South
Africa;
2.1.87
JIBAR
means, for an Interest Period of any Loan or Unpaid Sum -
16
2.1.87.1
the applicable Screen Rate; or
2.1.87.2
(if
no
Screen
Rate
is
available for
the
Interest
Period of
that
Loan
or
Unpaid
Sum) the arithmetic
mean of the rates
(rounded upwards to
four decimal places),
as supplied to the
Facility Agent at
its request, quoted
by the Reference
Banks to
leading banks in the Johannesburg interbank market,
as
of
11h00
on the
Quotation Day
for the
offering
of deposits
in
Rand for
a period
comparable to that Interest Period;
2.1.88
JIBAR Overnight Deposit Rate
means -
2.1.88.1
the applicable Screen Rate; or
2.1.88.2
(if no
Screen Rate
is available)
the arithmetic
mean of
the rates
(rounded upwards
to four
decimal places),
as supplied
to the
Facility Agent at
its request,
quoted
by the Reference Banks to leading banks in the Johannesburg interbank market,
as of 11h00 on the Quotation Day for the offering of overnight deposits in Rand;
2.1.89
Joint
Venture
means
any
joint
venture
entity,
whether
a
company,
unincorporated
firm, undertaking,
association, joint
venture or
partnership (whether
an
en commandite
partnership or
any other partnership)
or similar
person, comprising an
association of
two or
more persons
to undertake
a business
enterprise through
a combination
of assets
and/or expertise
but specifically
excluding any
arrangement which
comprises solely
of
a profit-sharing arrangement;
2.1.90
Kwande
means
Kwande
Group
Proprietary
Limited,
registration
number
2000/003245/07,
a
private
company
with
limited
liability
duly
incorporated
in
accordance with the laws of South Africa;
2.1.91
Lenders
means -
2.1.91.1
the Senior Term Facility Lenders;
2.1.91.2
the Senior RCF Lenders;
2.1.91.3
WesBank;
and
2.1.91.4
the WCF Lenders,
and
Lender
, as the context requires, means any of them;
17
2.1.92
Lesaka
Release Agreement
means
the
agreement to
be
entered into
between
inter
alios
Holdco, the Term/RCF
Borrower and the
Facility Agent and persons
who have
provided
the
Existing
Group
Indebtedness
(other
than
the
Financial
Indebtedness
relating to
the Cash
Connect Management Finance
Documents) to
the Group,
which
inter alia
regulates –
2.1.92.1
the payment of the Existing Group Indebtedness; and
2.1.92.2
the release of the Existing Security;
2.1.93
Loan
means a
loan made
or to
be made
under a
Senior Facility, or
the principal
amount
outstanding of that loan from time to time;
2.1.94
Longstop Date
means 31 March 2025;
2.1.95
Main Street 1723
means Main Street
1723 Proprietary Limited, registration
number
2019/300711/07,
a
private
company
with
limited
liability
duly
incorporated
in
accordance with the laws of South Africa;
2.1.96
Majority Lenders
means, at any time, Lenders -
2.1.96.1
if there is any
Loan outstanding and no Default has
occurred and is continuing,
whose share in
the outstanding Loans
then aggregate 66⅔
per cent. or
more of
the aggregate of all the outstanding Loans of all of the Lenders;
2.1.96.2
if
there
is
any
Loan
then
outstanding
and
a
Default
has
occurred
and
is
continuing,
whose
share
in
the
outstanding
Loans
and
whose
undrawn
Commitments then
aggregate 66⅔
per cent
or more
of the
aggregate of
all the
outstanding Loans and the undrawn Commitments of all the Lenders;
2.1.96.3
if
there
is
no
Loan
then
outstanding,
whose
undrawn
Commitments
then
aggregate 66⅔ per cent or more of the Total Commitments; or
2.1.96.4
if
there
is
no
Loan
then
outstanding
and
the
Total
Commitments
have
been
reduced to
zero, whose
Commitments aggregated
66⅔ per
cent or
more of
the
Total Commitments immediately before the reduction;
2.1.97
Material
Adverse
Effect
means
an
event
or
circumstances
which
has
or,
in
the
reasonable
opinion of
the
Facility
Agent (acting
on the
instructions of
the
Majority
Lenders), is reasonably likely to have a material adverse effect on -
18
2.1.97.1
the business, operations
or financial
condition of any
Obligor, Security Provider,
the Group taken as a whole and/or the Covenant Group taken as
a whole;
2.1.97.2
the ability
of an
Obligor or
Security Provider
to perform
its payment
and/or other
material obligations under the Finance Documents; or
2.1.97.3
the
validity
or
enforceability
of
the
Finance
Documents
or
the
validity
or
enforceability
of,
or
the
effectiveness
or
ranking
of
any
Transaction
Security
granted or purported to be granted pursuant to any of the Finance
Documents or
the rights or
remedies of
any Finance
Party under
any of
the Finance
Documents;
2.1.98
Material Agreements
means -
2.1.98.1
any contract which contributes more than 5% the
total revenue of the Covenant
Group
(other than
the
Excluded
Subsidiaries) or
which contributes
more
than
2.5%
of
the
Consolidated EBITDA
(calculated
with reference
to
the
Holdco's
most recently delivered annual financial statements);
2.1.98.2
any other
agreement that
is material
to the
business of
the Covenant
Group (other
than
the
Excluded
Subsidiaries)
and
for
this
purpose
an
agreement
shall
be
considered
to
be
"material"
if
the
termination
of
that
agreement
(whether
voluntarily,
by
mutual
agreement or
pursuant to
a
breach of
the
terms
of
that
agreement by any party thereto) would have a Material Adverse Effect; and
2.1.98.3
any
other
written
agreement
or
document
at
any
time
designated
a
Material
Agreement
by
written
agreement
between
the
Term/RCF
Borrower
and
the
Facility Agent,
and the Material Contracts listed in Annexure M;
2.1.99
Material Group
Company
, where
used in
clause
24
(Events of
Default), means
an
Obligor or a Material Subsidiary;
2.1.100
Material
Insurance
Proceeds
has
the
meaning
given
to
that
term
in
clause
8.4
(Mandatory prepayment - material disposal and insurance proceeds);
2.1.101
Material Subsidiary
means, (i) any holding
company of another
Material Subsidiary,
and (ii) a Subsidiary of the Term/RCF
Borrower or a Subsidiary of any other Obligor
whose gross
assets, EBITDA (as
defined in
clause
2.1.101.4
below) or
total revenue
equal or exceed 5% of the gross assets, Consolidated EBITDA or total revenue of the
Covenant Group (excluding the Excluded Subsidiaries).
For this purpose -
19
2.1.101.1
the
gross
assets,
EBITDA
or
total
revenue
of
a
Subsidiary
of
the
Term/RCF
Borrower
or
a
Subsidiary
of
any
other
Obligor
(other
than
an
Excluded
Subsidiary)
will
be
determined
from
its
financial
statements
or
management
accounts
(in
each
case,
consolidated
if
it
has
Subsidiaries)
which
were
consolidated
into
the
latest
SEC
Form
and/or
latest
audited
consolidated
financial
statements
or
management
accounts
of
the
Term/RCF
Borrower
(adjusted
on
a
pro
forma
basis
as
contemplated
in
clause
21.1.1.3
or
21.1.5.2
(Financial statements), as applicable);
2.1.101.2
if a Subsidiary of the Term/RCF Borrower
or a Subsidiary of any other Obligor
becomes a member of the Covenant Group
(and is not an Excluded Subsidiary)
after
the
date
on
which the
latest
audited
consolidated financial
statements
or
management accounts of
the Term/RCF Borrower have been
prepared, the gross
assets, EBITDA or total revenue of that Subsidiary will be determined from the
latest SEC Form and/or the Term/RCF Borrower's
latest financial statements or
management accounts (in each case, consolidated if it has Subsidiaries);
2.1.101.3
the gross assets, Consolidated EBITDA or total revenue of the Covenant Group
will be determined from
the latest SEC
Form and/or the Term/RCF
Borrower's
latest
audited
consolidated
financial
statements
or
management
accounts
(adjusted
on
a
pro
forma
basis
as
contemplated
in
clause
21.1.1.3
or
21.1.5.2
(Financial statements), as applicable);
2.1.101.4
the
EBITDA
of a Subsidiary (or
a company or
business subsequently acquired
or disposed of) will
be determined on the
same basis as Consolidated
EBITDA
(as defined
in clause
2.2
(Financial Definitions)
below), except
that references
to
the
Covenant
Group
will
be
construed
as
references
to
that
Subsidiary,
company or business; and
2.1.101.5
where
financial
statements
and
management
accounts
of
a
Subsidiary
or
the
Term/RCF Borrower or
a Subsidiary
of any
other Obligor
are available
in respect
of the
same accounting
period, the
financial statements
shall be
used for
purposes
of making the necessary determinations.
2.1.102
Notwithstanding
the
above,
each
of
the
following
companies
will
be
a
Material
Subsidiary -
2.1.102.1.1
each Guarantor (other than Holdco);
20
2.1.102.1.2
any Subsidiary of the
Term/RCF Borrower
or any other Obligor
which is
party to a Material Agreement;
2.1.103
Month
means
a
period
starting
on
one
day
in
a
calendar
month
and
ending
on
the
numerically corresponding day in the next calendar month, except that -
2.1.103.1
(subject to clause
2.1.103.3 below
) if the numerically
corresponding day is not
a
Business Day,
that period
shall end
on the
next Business
Day in
that calendar
month
in
which that
period
is
to
end
if
there
is
one,
or
if
there
is
not,
on
the
immediately preceding Business Day;
2.1.103.2
if there is no numerically
corresponding day in the calendar
month in which that
period is to
end, that period
shall end on
the last Business
Day in that
calendar
month; and
2.1.103.3
if an
Interest Period
begins on
the last
Business Day
of a
calendar month,
that
Interest Period shall
end on the
last Business Day
in the calendar
month in which
that Interest Period is to end;
The above rules will only apply to the last Month of any period;
2.1.104
Obligors
means
the
Borrowers
and
the
Guarantors
(and
Obligor
,
as
the
context
requires, means any of them);
2.1.105
Mobikwik
means
One
Mobikwik
Systems
Limited
(previously
known
as
One
Mobikwik
Systems
Pvt
Ltd)
(Corporate
Identity
Number
U64201HR2008PLC053766), a company registered under the laws of
India;
2.1.106
Original Financial Statements
means, in relation to -
2.1.106.1
to
Holdco,
its
audited
consolidated
financial
statements
for
its
financial
year
ended 30 June 2024;
2.1.106.2
the
Term/RCF
Borrower,
its
audited
consolidated
financial
statements
for
the
financial year ended 30 June 2022;
2.1.106.3
Luxanio
227
Proprietary
Limited,
its
audited
financial
statements
for
the
financial year ended 31 July 2022;
2.1.106.4
GAAP Point of Sale Proprietary Limited,
its audited financial statements for
the
financial year ended 30 September 2024;
21
2.1.106.5
each
of
Adumo,
Adumo
Technologies
Proprietary
Limited,
Adumo
Payouts
Proprietary
Limited,
Adumo
Management
Company
Proprietary
Limited
and
Adumo
Payments Proprietary
Limited, its
audited financial
statements for
the
financial year ended 30 September 2023;
2.1.106.6
each
of
Deposit
Manager,
Cash
Connect
Management,
EasyPay
Proprietary
Limited, Main
Street 1723,
Prism Holdings
Technologies
Proprietary Limited,
Net1 Finance Holdings
Proprietary Limited, Cash
Connect Rentals and
EasyPay
Financial
Services Proprietary
Limited its
audited financial
statements for
the
financial year ended 30 June 2023;
2.1.106.7
each
of
Prism
Payment
Technologies
Proprietary
Limited,
Easypay
Cash
Proprietary
Limited,
K2021477132
(South
Africa)
Proprietary
Limited,
its
audited financial statements for the financial year ended 30 June 2022; and
2.1.106.8
Obovix
(RF)
Proprietary
Limited,
its
audited
financial
statements
for
the
financial year ended 28 February 2018;
2.1.107
Original Obligors
means the Term/RCF Borrower, the Original WCF Borrowers
and
the Original Guarantors (and
Original Obligor
, as the context requires, means any of
them);
2.1.108
Original Senior RCF
Lender
means each Original Senior
Lender which has
a Senior
RCF Commitment
set opposite
its name
in Column
5 (Senior
RCF Commitment) of
the table in Part II of
Annexure A
(The Parties);
2.1.109
Original Senior Term
Facility A Lender
means each Original Senior Lender which
has a Senior Term Facility A Commitment set opposite its name in Column 3 (Senior
Term Facility A Commitment) of the table in Part II of
Annexure A
(The Parties);
2.1.110
Original Senior Term
Facility B Lender
means each Original Senior Lender which
has a Senior Term
Facility B Commitment set opposite its name in Column 4 (Senior
Term Facility A Commitment) of the table in Part II of
Annexure A
(The Parties);
2.1.111
Original Senior
Term
Facility Lender
means each
Senior Term
Facility A
Lender
and each Senior Term Facility B Lender;
2.1.112
Original WCF Agreement
means the working capital
facility and/or general banking
facility agreement/s, dated on or about
the Signature Date, between the Original
WCF
Lender (as
lender), and
various members
of the
Covenant Group
(as borrowers
and
guarantors);
22
2.1.113
Original WCF Lender
means RMB;
2.1.114
Original
Working
Capital
Facility
means
a
direct
and
indirect
general
banking
and/or
working
capital
facility
provided
by
the
Original
WCF
Lender
to
the
WCF
Borrowers (or any one of them) under any Original WCF Agreement;
2.1.115
Party
means a party to this Agreement;
2.1.116
Permitted
Acquisition
has
the
meaning
given
to
that
term
in
clause
23.10
(Acquisitions);
2.1.117
Permitted Cash Management
Agreement
means any cash
management agreement
between a
member of
the Covenant
Group (other
than an
Excluded Subsidiary)
and
the Original WCF
Lender), but only for
so long as
it complies with
the requirements
of a Permitted Cash Management Arrangement;
2.1.118
Permitted Cash
Management Arrangement
means an
intra-day cash
pooling or
cash
concentration arrangement maintained with the
Original WCF Lender which provides
for the
aggregation of
positive cash
balances in
bank accounts
of Obligors
(who are
members of
the Covenant
Group and
for the
avoidance of
doubt excludes
Holdco) held
with the Original WCF Lender and/or set
off of such aggregate cash balances against
bank accounts deficits
of Obligors(who are
members of the
Covenant Group and
for
the avoidance of doubt
excludes Holdco) held with
the Original WCF Lender
for the
purposes
of
maximising
the
aggregate
interest
earned
of
those
Obligors
(who
are
members of the Covenant
Group and for the
avoidance of doubt excludes
Holdco) and
minimising
the
aggregate
interest
paid
by
those
Obligors
(who
are
members
of
the
Covenant Group and for the avoidance of doubt excludes Holdco);
2.1.119
Permitted Disposal
has the meaning given to that term in clause
23.6
(Disposals);
2.1.120
Permitted
Distribution
has
the
meaning
given
to
that
term
in
clause
23.21.1
(Distributions);
2.1.121
Permitted Encumbrance
has the meaning
given to that
term in clause
23.4
(Negative
pledge);
2.1.122
Permitted Financial Indebtedness
has the meaning given to that term in clause
23.5
(Financial Indebtedness);
2.1.123
Permitted Guarantee
has the meaning given
to that term in
clause
23.13
(Third party
guarantees);
23
2.1.124
Permitted Loan
has the meaning given to that term in clause
23.12
(Loans out);
2.1.125
Permitted Share
Issue
has
the meaning
given to
that term
in
clause
23.20.2
(Share
Capital);
2.1.126
Permitted Treasury Transaction
has the meaning given to that term in clause
23.14
(Treasury Transactions);
2.1.127
Quotation Day
, in relation
to any period
for which an
interest rate is
to be determined,
means the first
day of that
period or such
other day as
the Facility Agent
determines
is generally
treated
as
the
rate
fixing
day
by
market
practice
in
the
Johannesburg
interbank market;
2.1.128
Reference
Banks
means the
principal Johannesburg
offices
of Absa
Bank Limited,
FirstRand Bank Limited, Investec Bank Limited, Nedbank Limited and The Standard
Bank of South
Africa Limited, or
such other banks
as may be
appointed by
the Facility
Agent in consultation with the Term/RCF Borrower;
2.1.129
Refinancing
means the repayment,
prepayment, cancellation or
replacement, in full,
of
the
Senior
Term
Facility
Loans
and
Senior
Term
Facility
Outstandings
and
the
Senior RCF
Loans and
Senior RCF
Outstandings funded,
directly or
indirectly, by way
of the incurrence
by Holdco, the
Term/RCF
Borrower, any
other Obligor and/or
any
other member
of the Group
of Financial Indebtedness,
and
Refinance
and
Refinanced
shall
be
construed
accordingly.
For
the
purpose
of
this
definition
any
Permitted
Financial
Indebtedness
pursuant
to
clause
23.5.2
(Financial
Indebtedness)
shall,
in
relation to Holdco, be
excluded
from "Financial Indebtedness" to the
extent that that
Permitted Financial Indebtedness
is not funded
through the incurrence
by any member
of the Group (or any Affiliate of a member of the Group) of Financial Indebtedness;
2.1.130
Refinancing Penalties
has the meaning
given to that
term in clause
8.11
(Refinancing
and Refinancing Penalties);
2.1.131
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;
2.1.132
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
24
investment manager
or investment
adviser is
an Affiliate
of the
investment manager
or investment adviser of the first fund;
2.1.133
Related Party
means, in relation to the Group –
2.1.133.1
any shareholder of
a member of
the Group who
is not a
member of the
Group;
and
2.1.133.2
any Affiliate of any shareholder referred to in clause
2.1.133.1,
other than, in each case, a Lender or an Affiliate of a Lender or any person who holds
less than
5% of
the issued
shares of
Holdco (itself
and together
with any
of its
Affiliates
and any of its Related Funds);
2.1.134
Replacement Benchmark
means a replacement for a Screen Rate -
2.1.134.1
that is
formally designated, nominated
or recommended as
the replacement for
that Screen Rate by:
2.1.134.1.1
the administrator of that Screen Rate; or
2.1.134.1.2
any Relevant Nominating Body,
provided that
if the
replacement for
that Screen
Rate has,
at the
relevant time,
been
formally
designated,
nominated
or
recommended
under
both
clauses
2.1.134.1.1
and
2.1.134.1.2
above, the
accepted Replacement
Benchmark will
be
that determined in accordance with clause
2.1.134.1.2
above; or
2.1.134.2
in the
opinion of
the Parties,
generally accepted
in the
international market
or
any relevant
domestic syndicated
loan market,
as the
appropriate replacement
for
that Screen Rate; or
2.1.134.3
in the opinion of the Parties, an appropriate replacement to that Screen
Rate;
2.1.135
Remaining Distributable
Balance
has the
meaning given
to this
term in
clause
9.4
(Remaining amount of Distributable Balance);
2.1.136
Repeating
Representations
means,
at
any time,
the
representations and
warranties
which
are
made
or
deemed
to
be
repeated
under
clause
20.32
(Times
for
making
representations and warranties);
2.1.137
Representative
means
any
representative,
delegate,
agent,
manager,
administrator,
nominee, attorney, trustee or custodian;
25
2.1.138
Resignation
Letter
means
a
letter
substantially
in
the
form
set
out
in
Annexure
E
(Form of Resignation Letter);
2.1.139
RMB
means
FirstRand
Bank
Limited
(acting
through
its
Rand
Merchant
Bank
division);
2.1.140
Sanctioned Entity
means -
2.1.140.1
a person, country or territory which
is listed on a
Sanctions List or is subject
to
Sanctions; and
2.1.140.2
a person which is ordinarily
resident in a country or
territory which is listed on
a
Sanctions List or is subject to Sanctions;
2.1.141
Sanctioned Transaction
means the use of
the proceeds of
the Senior Facilities
for the
purpose of financing or providing any credit, directly or indirectly, to -
2.1.141.1
a Sanctioned Entity; or
2.1.141.2
any other person or entity,
if a member of
the Group has actual knowledge that
the person
or entity
proposes to
use the
proceeds of
the financing
or credit
for
the
purpose
of
financing
or
providing
any
credit,
directly
or
indirectly,
to
a
Sanctioned Entity,
in each case to the extent that to do so is prohibited by, or would cause any breach of,
Sanctions;
2.1.142
Sanctions
means trade, economic
or financial sanctions,
laws, regulations, embargoes
or restrictive
measures imposed,
administered or
enforced from
time to
time by
any
Sanctions Authority;
2.1.143
Sanctions Authority
means -
2.1.143.1
the United Nations;
2.1.143.2
the European Union;
2.1.143.3
the Council of Europe (founded under the Treaty of London, 1946);
2.1.143.4
the government of the United States of America;
2.1.143.5
the government of the United Kingdom;
26
2.1.143.6
the government of the Republic of France; and
2.1.143.7
the government of Switzerland,
and any of their governmental authorities, including, without limitation, the Office of
Foreign
Assets
Control
for
the
US
Department
of
Treasury
(
OFAC
),
the
US
Department
of
Commerce,
the
US
State
Department
or
the
US
Department
of
the
Treasury,
Her Majesty's Treasury (
HMT
) and the French Ministry of Finance.
2.1.144
Sanctions List
means -
2.1.144.1
the
Specially
Designated
Nationals
and
Blocked
Persons
List
maintained
by
OFAC;
2.1.144.2
the
Consolidated List
of
Financial Sanctions
Targets
and the
Investments Ban
List maintained by HMT,
and any similar list maintained, or
a public announcement of a Sanctions
designation
made,
by
any
Sanctions
Authority,
in
each
case
as
amended,
supplemented
or
substituted from time to time;
2.1.145
Screen Rate
means -
2.1.145.1
for JIBAR,
the Johannesburg
Interbank Agreed
Rate, polled
and published
by
the South African Futures Exchange
(a division of the JSE Limited)
for deposits
in Rand for
the relevant period,
as displayed on
the Reuters Screen
SAFEY Page
alongside the caption "
YLD"
at the applicable time; or
2.1.145.2
for the JIBAR
Overnight Deposit Rate, the
SAFEX overnight call
deposit rate,
polled and published
by the South
African Futures Exchange
(a division of
the
JSE Limited) for
deposits in Rand,
as displayed on
the Reuters Screen
SAFEY
Page alongside the caption "
SFXROD
" at the applicable time.
If the
relevant page is
replaced or
the information service
ceases to
be available, the
Facility Agent (after consultation with
the Term/RCF Borrower and the Lenders) may
specify another page or service displaying the appropriate rate;
2.1.146
Screen Rate Replacement Event
means in relation to a Screen Rate -
2.1.146.1
the methodology, formula or other means of
determining the Screen Rate
has, in
the opinion of the parties, materially changed;
27
2.1.146.2
the
administrator of
the
Screen
Rate
or
its
supervisor publicly
announces that
such administrator is insolvent;
2.1.146.3
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 the Screen Rate is insolvent,
provided that,
in each
case contemplated
by clauses
2.1.146.2
and
2.1.146.3
, at
that
time there is no successor administrator to continue to provide the Screen
Rate;
2.1.146.4
the administrator of
the Screen Rate
publicly announces
that it has
ceased or will
cease, to provide
the Screen Rate
permanently or indefinitely
and, at that
time,
there is no successor administrator to continue to provide the Screen Rate;
2.1.146.5
the supervisor
of the
administrator of
the Screen
Rate publicly
announces that
the Screen Rate has been or will be permanently or indefinitely discontinued;
2.1.146.6
the administrator of the Screen Rate or its supervisor announces that the
Screen
Rate may no longer be used;
2.1.146.7
the administrator of
the Screen Rate
determines that the
Screen Rate should
be
calculated in
accordance with
its reduced
submissions or
other contingency
or
fallback policies or arrangements and the circumstance(s) or event(s) leading to
such determination are not (in the opinion of
the Facility Agent) relevant for the
purposes of this Agreement;
2.1.146.8
any Relevant Nominating Body formally designates, nominates or recommends
a replacement for a Screen Rate;
2.1.146.9
in
the
opinion
of
the
Parties,
the
Screen
Rate
is
otherwise
no
longer
representative or
appropriate for
the purposes
of calculating
interest under
this
Agreement;
2.1.146.10
a public statement or publication of information by the
regulatory supervisor or
competent
authority
of
the
administrator
of
the
Screen
Rate,
an
insolvency
official with jurisdiction over the administrator
for the Screen Rate, an authority
with jurisdiction
over the administrator
for the Screen
Rate or a
court or
an entity
with similar insolvency
or authority over
the administrator for
the Screen Rate
is
made or issued which states that
the administrator of the Screen Rate
has ceased
or
will
cease
to
provide
the
Screen
Rate
(for
any
tenor)
permanently
or
28
indefinitely and, at
that time, there
is no
successor administrator to
continue to
provide that Screen Rate;
2.1.146.11
a public statement or publication of information by the
regulatory supervisor or
competent authority of
the administrator of
the Screen Rate
announces that the
Screen Rate (for any tenor) is no longer or,
as of a specified future date, will no
longer be
representative for
ZAR or
of the
underlying market
or the
economic
reality
that
the
Screen
Rate
is
intended
to
measure
and/or
that
such
representativeness will not be restored; or
2.1.146.12
the Screen
Rate ceases to
be permitted to
be used
as a
benchmark or
reference
rate or will be
prohibited from being
used or its
use will be
subject to restrictions
or adverse consequences;
2.1.147
SEC Form
means Holdco's -
2.1.147.1
quarterly
reports
filed
with
the
United
States
Securities
and
Exchange
Commission (
SEC
) on
Form 10-Q
in respect
of the
first 3
quarters of
each of
Holdco's financial
years
and which
include unaudited
condensed consolidated
financial statements; and
2.1.147.2
annual reports
filed with the SEC
on Form 10-K
in respect of each
of Holdco's
financial year ends and
which include audited
consolidated financial statements;
2.1.148
Secured Account
means a ring-fenced
bank account held
by Holdco with
FirstRand
Bank Limited and secured in favour of the Debt Guarantor;
2.1.149
Security
means -
2.1.149.1
a
mortgage
bond,
notarial
bond,
cession
in
security,
pledge,
hypothec,
lien,
charge,
assignment
or
other
security
interest
securing
any
obligation
of
any
person
or
any
other
agreement
or
arrangement
having
a
similar
effect
but
excluding statutory preferences;
2.1.149.2
any arrangement under which money or claims may
be applied, set off or made
subject to a combination of accounts
so as to effect
discharge of any sum owed
or payable to any person; or
2.1.149.3
any
other
type
of
preferential
agreement
or
arrangement
(including
title
retention) having an effect similar to the creation of a security interest;
29
2.1.150
Security Agreement
means -
2.1.150.1
the Security Cession & Pledge;
2.1.150.2
the Holdco Cession & Pledge;
2.1.150.3
each other pledge or cession
in securitatem debiti
referred to in clause
1
(South
African
Obligors
and
Material
Subsidiaries)
of
Annexure
G
(Transaction
Security);
2.1.150.4
each security agreement
referred to
in clause
2
(Non-South African
Obligors and
Material Subsidiaries) of
Annexure G (Transaction
Security) under the
laws of
the jurisdiction of
incorporation or formation
of any Obligor
who is
incorporated
or formed in a jurisdiction other than South Africa; and
2.1.150.5
each
security
agreement
entered,
or
required
to
be
entered,
into
under
clause
23.26
(Further Transaction Security);
2.1.151
Security Cession & Pledge
means the pledge and cession
in securitatem debiti,
dated
on or about the
Signature Date, given
in favour of the
Debt Guarantor by each
Obligor
(other than Holdco)) incorporated
in, or having property
situated in, South Africa
over
its rights,
claims and
interest in
and to
its property
stipulated in
clauses
1.1
and
1.2
(South
African
Obligors
and
Material
Subsidiaries)
of
Annexure
G
(Transaction
Security);
2.1.152
Security Document
means -
2.1.152.1
any Security Agreement; or
2.1.152.2
any other
document evidencing
or creating
any Security
over any
asset of
any
person
to
secure
any
obligation
of
any
Obligor
to
a
Finance
Party
under
the
Finance Documents;
2.1.153
Security Provider
means -
2.1.153.1
an Obligor;
2.1.153.2
Holdco; or
2.1.153.3
any
other person
party to
a
Security
Document from
time
to
time
pursuant to
which that
person provides
Transaction Security
for the
benefit of
the Finance
Parties;
30
2.1.154
Security Structure Document
means -
2.1.154.1
the memorandum of incorporation of the Debt Guarantor;
2.1.154.2
the Debt Guarantor Management Agreement; and
2.1.154.3
the trust
deed by
which the
Debt Guarantor
Owner Trust
has been
established
(together with the letters of authority
issued by the Master of
the High Court in
favour of the trustees of the Debt Guarantor Owner Trust);
2.1.155
Senior Facilities
means the Senior Term
Facilities, the Senior RCF and the Working
Capital Facilities (and
Senior Facility
, as the context requires, means any of them);
2.1.156
Senior Facility Agreements
means the Senior Term
Facility Agreements, the Senior
RCF Agreement
and the
WCF Agreements
(and
Senior Facility
Agreement
, as
the
context requires, means any of them);
2.1.157
Senior
Facility
Commitments
means
the
Senior
Term
Facility
Commitments,
the
Senior
RCF
Commitments
and
the
WCF
Commitments
(and
Senior
Facility
Commitment
, as the context requires, means any of them);
2.1.158
Senior
Facility
Outstandings
means
the
Senior
Term
Facility
Outstandings,
the
Senior RCF Outstandings and the WCF Outstandings;
2.1.159
Senior RCF
means the
secured revolving
credit loan facility
described in clause
3.3
(Senior RCF) made available under this Agreement and the Senior RCF Agreement;
2.1.160
Senior RCF Agreement
means the revolving
credit loan facility
agreement of up
to
the
Senior
RCF
Commitment,
dated
on
or
about
the
Signature
Date,
between
the
Original
Senior
RCF
Lenders,
the
Facility
Agent
and
the
Term/RCF
Borrower
(as
borrower);
2.1.161
Senior RCF Commitment
means -
2.1.161.1
in relation to an
Original Senior RCF Lender,
the amount set opposite its
name
under
the
heading
"Senior
RCF
Commitment"
in
Part
II
of
Annexure A
(The
Parties) plus any amounts voluntarily
repaid in relation to
Senior Term
Facility
A and the amount of any
other Senior RCF Commitment transferred to it under
this Agreement; and
2.1.161.2
in
relation
to
any
other
Senior
RCF
Lender,
the
amount
of
any
Senior
RCF
Commitment transferred to it under this Agreement,
31
to the extent
not cancelled, reduced
or transferred by
it under this
Agreement or the
Senior RCF Agreement;
2.1.162
Senior RCF Lenders
means -
2.1.162.1
any Original Senior RCF Lender; and
2.1.162.2
any bank, financial institution, trust, fund or other entity which
becomes a Party
as a
Senior RCF
Lender after
the Signature
Date in
accordance with
clause
25
(Changes to the Lenders);
in each case,
which has not ceased
to be a
Party in accordance
with the terms
of this
Agreement (and
Senior RCF Lender
, as the context requires, means any of them);
2.1.163
Senior RCF Loan
means a Loan under the Senior RCF;
2.1.164
Senior RCF Outstandings
means at any time,
in relation to
a Senior RCF
Lender, the
aggregate of all amounts of loan principal, accrued interest, Break Costs, prepayment
penalties, fees and
all other amounts
outstanding in respect
of the Senior
RCF under
the
Finance
Documents
(including,
without
limitation,
any
claim
for
damages
or
restitution, any claim as a result of any
recovery by an Obligor, a Security Provider or
another person
of a
payment or
discharge under
the Finance
Documents on
the grounds
of preference, and each
amount which would be
included in any of
the above but for
any
discharge,
non-provability
or
unenforceability
of
a
claim
in
any
insolvency
or
other proceedings);
2.1.165
Senior
Term
Facility
A
means
the
secured
bullet
term
loan
facility
described
in
clause
3.1
(Senior
Term
Facility
A)
made
available
under
this
Agreement
and
the
Senior Term Facility A Agreement;
2.1.166
Senior Term Facility A Agreement
means the
bullet term loan facility
agreement of
up
to
Senior
Term
Facility
A
Commitment,
dated
on
or
about
the
Signature
Date,
between
the
Original
Senior
Term
Facility
A
Lenders,
the
Facility
Agent
and
the
Term/RCF Borrower (as borrower);
2.1.167
Senior Term Facility A Commitment
means -
2.1.167.1
in relation
to an Original
Senior Term Facility A
Lender, the amount
set opposite
its name under the
heading "Senior Term
Facility A Commitment" in Part
II of
Annexure A
(The Parties) and
the amount of
any other Senior
Term
Facility A
Commitment transferred to it under this Agreement; and
32
2.1.167.2
in relation to
any other Senior
Term Facility A Lender, the amount
of any Senior
Term Facility A Commitment transferred to it under this Agreement,
to the
extent not
cancelled, reduced
or transferred
by it
under this
Agreement or
the
Senior Term Facility A Agreement;
2.1.168
Senior Term Facility A Lenders
means -
2.1.168.1
each Original Senior Term Facility A Lender; and
2.1.168.2
each bank, financial
institution, trust,
fund or other
entity which
becomes a Party
as a Senior Term
Facility A Lender after the Signature Date in accordance with
clause
25
(Changes to the Lenders),
in each case,
which has not ceased
to be a
Party in accordance
with the terms
of this
Agreement (and
Senior Term Facility A
Lender
, as the context requires, means any
of them);
2.1.169
Senior Term Facility A Loan
means a Loan under Senior Term Facility A;
2.1.170
Senior Term Facility A
Outstandings
means at
any time,
in relation
to a
Senior Term
Facility
A
Lender,
the
aggregate
of
all
amounts
of
loan
principal,
accrued
interest,
Break Costs, prepayment penalties, fees
and all other amounts
outstanding in respect
of Senior
Term Facility A
under the
Finance Documents
(including, without
limitation,
any
claim
for
damages
or
restitution,
any
claim
as
a
result
of
any
recovery
by
an
Obligor,
a Security
Provider or
another person
of a
payment or
discharge under
the
Finance Documents on
the grounds
of preference,
and each amount
which would be
included in any
of the above
but for any
discharge, non-provability or
unenforceability
of a claim in any insolvency or other proceedings);
2.1.171
Senior Term
Facility B
means the secured amortising term loan facility described in
clause
3.1
(Senior
Term
Facility
B)
made
available
under
this
Agreement
and
the
Senior Term Facility B Agreement;
2.1.172
Senior
Term
Facility
B
Agreement
means
the
amortising
term
loan
facility
agreement
of
up
to
Senior
Term
Facility
B
Commitment,
dated
on
or
about
the
Signature
Date,
between
the
Original
Senior
Term
Facility
B
Lenders,
the
Facility
Agent and the Term/RCF Borrower (as borrower);
2.1.173
Senior Term Facility B Commitment
means -
33
2.1.173.1
in relation to
an Original
Senior Term Facility B
Lender, the amount set
opposite
its name under
the heading "Senior Term
Facility B Commitment" in
Part II of
Annexure A
(The Parties) and
the amount
of any other
Senior Term
Facility B
Commitment transferred to it under this Agreement; and
2.1.173.2
in relation to any
other Senior Term Facility B Lender, the
amount of any
Senior
Term Facility B Commitment transferred to it under this Agreement,
to the
extent not
cancelled, reduced
or transferred
by it
under this
Agreement or
the
Senior Term Facility B Agreement;
2.1.174
Senior Term Facility B Lenders
means -
2.1.174.1
each Original Senior Term Facility B Lender; and
2.1.174.2
each bank, financial
institution, trust,
fund or other
entity which
becomes a Party
as a Senior Term
Facility B Lender after the Signature Date in
accordance with
clause
25
(Changes to the Lenders),
in each case,
which has not ceased
to be a
Party in accordance
with the terms
of this
Agreement (and
Senior Term
Facility B Lender
, as the context requires, means any
of them);
2.1.175
Senior Term Facility B Loan
means a Loan under Senior Term Facility B;
2.1.176
Senior Term Facility B
Outstandings
means at
any time,
in relation
to a Senior
Term
Facility
B
Lender,
the
aggregate
of
all
amounts
of
loan
principal,
accrued
interest,
Break Costs, prepayment penalties, fees
and all other amounts
outstanding in respect
of Senior
Term Facility B
under the
Finance Documents
(including, without
limitation,
any
claim
for
damages
or
restitution,
any
claim
as
a
result
of
any
recovery
by
an
Obligor,
a Security
Provider or
another person
of a
payment or
discharge under
the
Finance Documents on
the grounds
of preference,
and each amount
which would be
included in any
of the above
but for any
discharge, non-provability or
unenforceability
of a claim in any insolvency or other proceedings);
2.1.177
Senior Term Facilities
means the
Senior Term Facility
A and
the Senior
Term Facility
B;
2.1.178
Senior Term Facility Agreements
means the Senior Term Facility A Agreement
and
the Senior Term Facility B Agreement;
34
2.1.179
Senior Term Facility Commitment
means each
Senior Term Facility
A Commitment
and each Senior Term Facility B Commitment;
2.1.180
Senior
Term
Facility Lenders
means the
Senior Term
Facility A
Lenders and
the
Senior Term Facility B Lenders;
2.1.181
Senior Term
Facility Loan
means a Senior
Term
Facility A Loan or
a Senior Term
Facility B Loan;
2.1.182
Senior Term Facility Outstandings
means the Senior Term Facility A Outstandings
and the Senior
Term Facility B Outstandings,
or either
one of them,
as the context
may
require;
2.1.183
Shareholder Claims
means, in relation to a shareholder in any relevant person -
2.1.183.1
claims on
shareholders loan
account which
that shareholder
may have
against
that person; and
2.1.183.2
claims
arising from,
or
in connection
with, the
holding by
that shareholder
of
shares of any
class in that
person (including ordinary and/or
preference shares)
and
including
any
rights
to
dividends
and
other
distributions
of
whatsoever
nature that person;
2.1.184
Shareholder Contribution
means the aggregate amount of -
2.1.184.1
the subscription price received by
Holdco in respect of
shares subscribed for in
the share capital of Holdco,
provided such share issue is a
Permitted Share Issue
under clause
23.20.2.3
(Share capital); and
2.1.184.2
the proceeds of
loans advanced to
Holdco by its
direct shareholders where
any
Financial
Indebtedness
arising
as
a
result
is
Permitted Financial
Indebtedness
under clause
23.5.2
(Financial Indebtedness);
2.1.185
Signature Date
means the date on which, once
this Agreement has been signed by
all
the Parties, it is signed by the last Party to do so;
2.1.186
Subordination Agreement
means any
subordination agreement
in
the
agreed form
between,
amongst
others,
the
Obligors,
the
Finance
Parties,
Holdco
and
any
other
relevant subordinated creditors,
pursuant to which,
amongst others, the
claims of the
members
of
the
Group
and
any
other
relevant
subordinated
creditors
against
the
35
Obligors
and
the
Covenant
Group
are
subordinated
in
favour
of
all
claims
of
the
Finance Parties under the Finance Documents;
2.1.187
Subsidiary
means in relation to any person -
2.1.187.1
a subsidiary as defined in the Companies
Act (including any person who would,
but for not being
a company under
the Companies Act,
qualify as a subsidiary
as
defined in the Companies Act);
2.1.187.2
any partnership, Joint
Venture, trust, juristic person or other
entity Controlled by
that person;
2.1.188
Tax
means
any
tax,
levy,
impost,
duty
or
other
charge
or
withholding
of
a
similar
nature (including any penalty or interest payable
in connection with any failure to pay
or any delay in paying any of the same);
2.1.189
Total
Commitments
means the aggregate of the following -
2.1.189.1
the Total Senior Term
Facility Commitments;
2.1.189.2
the Total Senior RCF Commitments; and
2.1.189.3
the WesBank Commitment;
2.1.189.4
the Total WCF Commitments;
2.1.190
Total
Senior
RCF
Commitments
means
the
aggregate
of
the
Senior
RCF
Commitments;
2.1.191
Total
Senior Term
Facility Commitments
means the aggregate of the
Senior Term
Facility Commitments;
2.1.192
Total WCF Commitments
means the aggregate of the WCF Commitments;
2.1.193
Transaction
Security
means the
Security created
or expressed
to be
created for
the
benefit of, amongst others, the Finance Parties pursuant to the Security Documents;
2.1.194
Transfer
has the meaning given to it in
clause
25.1
(Cessions and delegations by the
Lenders);
2.1.195
Transfer Certificate
means a certificate substantially
in the form set out
in Annexure
C (Form of Transfer Certificate) or otherwise in the agreed form;
36
2.1.196
Transfer Date
, in relation to a Transfer, means the later of -
2.1.196.1
the proposed Transfer Date specified in the Transfer Certificate; and
2.1.196.2
the date on which the Facility Agent executes the Transfer Certificate;
2.1.197
Treasury
Transaction
means
any derivative
transaction entered
into in
connection
with protection against
or to benefit
from fluctuations in
any rate, price,
index or credit
rating;
2.1.198
Unpaid
Sum
means
any sum
due
and
payable but
unpaid
by
an
Obligor under
the
Finance Documents;
2.1.199
US
means the United States of America;
2.1.200
US CPI
means the
All Items Consumer
Price Index for
All Urban Consumers
(CPI-
U)
for
the
U.S.
City
Average,
1982-84=100
published
by
the
US
Bureau
of
Labor
Statistics;
2.1.201
Utilisation
means a utilisation of a Senior Facility;
2.1.202
Utilisation Date
means the date of a Utilisation, being the date on which the relevant
Loan is to be made;
2.1.203
Utilisation Request
, in relation to a
Senior Term
Facility or the Senior RCF,
has the
meaning given
to that
term in
the applicable
Senior Term
Facility Agreement
or the
Senior RCF Agreement, as applicable;
2.1.204
VAT
means value added tax
as provided for in
the Value
Added Tax
Act, 1991, and
any other Tax of a similar nature in a jurisdiction other than South Africa;
2.1.205
VCP Investment Fund
means Value
Capital Partners H4 QI Hedge Fund Portfolio;
2.1.206
VCP
Investment
Portfolios
means
Sentinel
Retirement
Fund,
the
Standard
Bank
Group
Retirement
Fund,
FirstRand
Group
Retirement
Fund,
Eskom
Pension
and
Provident
Fund,
Telkom
Retirement
Fund,
Old
Mutual
Life
Assurance
Company
(South
Africa)
Limited
(acting
through
its
Old
Mutual
Multi-Managers
Division),
Transnet Retirement Fund and such similar funds that VCP Investment Manager may
manage from time to time;
2.1.207
WCF Agreement
means -
2.1.207.1
each Original WCF Agreement; or
37
2.1.207.2
any other facility agreement or facility
letter entered into by one
or more of the
WCF Borrowers
(and, if
applicable other
members of
the Covenant
Group (other
than an Excluded
Subsidiary)) and
a WCF Lender
to regulate the
terms on which
a Working Capital Facility is to be provided;
2.1.208
WCF Borrower
means an Original WCF Borrower
or an Additional WCF Borrower;
2.1.209
WCF Commitment
means -
2.1.209.1
direct facilities in
an amount of
up to R743,901,000.00, indirect
facilities in an
amount of
up to
R57,700,000.00 as
at the
Signature Date
(provided that
direct
facilities may be reallocated
as indirect facilities, but
indirect facilities may not
be
reallocated
as
direct
facilities)
and
settlement
lines
in
an
amount
of
up
to
R326,000,00.00,
in respect of general banking facilities; and
2.1.209.2
the amount
which any
WCF Lender
has agreed
(whether or
not subject
to the
satisfaction of conditions precedent) to
make available from time
to time under
a Working Capital Facility concluded after the Signature Date,
to the extent
not cancelled or
reduced under the
applicable WCF Agreement relating
to the applicable Working Capital Facility
(subject to the provisions
of clause
23.5.1.3
(Financial Indebtedness) and the other requirements of the Finance Documents);
2.1.210
WCF Document
means -
2.1.210.1
a WCF Agreement; and
2.1.210.2
each
document
(including
a
document
in
electronic
format
only)
entered
into
from
time
to
time
between
a
WCF
Lender
and
one
or
more
of
the
WCF
Borrowers
(or,
if
applicable, another
member
of
the
Covenant
Group),
which
evidences a facility,
financial instrument or a
financial service provided as
part
of a Working Capital Facility;
2.1.211
WCF Lenders
means -
2.1.211.1
the Original WCF Lender;
and
2.1.211.2
each other
person which
becomes a
party to
this Agreement
and any
Intercreditor
Agreement as
a provider
of a
Working
Capital Facility,
to one
or more
of the
WCF Borrowers
(and, if
applicable other
members of
the Covenant
Group (other
than an Excluded Subsidiary)),
38
and
WCF Lender
, as the context requires, means any of them
2.1.212
WCF Outstandings
means, at any time, in relation to a WCF Lender
and a Working
Capital
Facility,
the
aggregate
of
the
following
amounts
outstanding
under
that
Working Capital Facility -
2.1.212.1
the principal
amount outstanding
under each
overdraft facility
and on-demand
short term loan facility;
2.1.212.2
the
face
amount
of
each
guarantee,
bond,
letter
of
credit
and
any
similar
instrument under that Working Capital Facility;
2.1.212.3
the amount of the
aggregate exposure (excluding
interest and similar charges)
of
that WCF Lender under each other
type of accommodation provided under that
Working Capital Facility; and
2.1.212.4
all
accrued
interest
and
other
amounts
then
due
and
payable
under
that
WCF
Agreement,
(including,
without limitation,
any
claim
for
damages or
restitution, any
claim
as
a
result of a recovery by an
Obligor or another person of a
payment or discharge under
that Working
Capital Facility
on the
grounds of
preference, and
each amount
which
would
be
included
in
any
of
the
above
but
for
any
discharge,
non-provability
or
unenforceability of a claim in any insolvency or other proceedings); and
2.1.213
WesBank
means FirstRand Bank Limited, acting through its WesBank division;
2.1.214
WesBank Agreement
means -
2.1.214.1
written
vehicle
asset finance
facility through
WesBank's
Asset
Based Finance
Division) recorded in an instalment sale agreement and facility
letter;
2.1.214.2
the full maintenance leasing facility through WesBank's
Fleet Management and
Leasing Division) recorded in a master rental agreement and term sheet;
and
2.1.214.3
any other facility
letter or document
to be
concluded with WesBank
from time
to time,
all on
the terms
and subject
to the
conditions contained
therein and
concluded between
WesBank and certain Obligors;
2.1.215
WesBank Commitment
means -
39
2.1.215.1
an amount equal to ZAR227,000,000; and
2.1.215.2
the amount
which WesBank has
agreed (whether
or not
subject to
the satisfaction
of conditions precedent) to make available from
time to time under a
WesBank
Agreement concluded after the Signature Date,
to
the
extent
not
cancelled
or
reduced
under
the
applicable
WesBank
Agreement
relating to the applicable WesBank Facility subject to the requirements
of the Finance
Documents);
2.1.216
WesBank Outstandings
means, at any time, in relation to WesBank
and a WesBank
Facility,
the
aggregate
of
the
amounts
outstanding
under
that
WesBank
Facility
including
without
limitation
the
principal
amount,
all
accrued
interest
and
other
amounts
then
due
and
payable
under
that
WesBank
Facility,
(including,
without
limitation, any claim for damages or restitution, any claim as
a result of a recovery by
an Obligor or another
person of a payment or
discharge under that WesBank
Facility
on the grounds of preference, and each
amount which would be included in
any of the
above
but
for
any
discharge,
non-provability
or
unenforceability
of
a
claim
in
any
insolvency or other proceedings);
2.1.217
WesBank Facility
means the asset finance facilities in a
maximum principal amount
of
ZAR227,000,000
as
at
the
Signature
Date
made
available
under
the
WesBank
Agreements; and
2.1.218
Working Capital Facility
means -
2.1.218.1
the Original Working Capital Facility;
2.1.218.2
any other
direct and
indirect working
capital facility, in
each case
for a
maximum
funding
commitment
or
facility
exposure
equal
to
the
applicable
WCF
Commitment,
provided
by
a
WCF
Lender
to
one
or
more
members
of
the
Covenant Group (other than an Excluded Subsidiary)
(as borrowers), from time
to time after the Closing Date.
2.2
Financial definitions
In this Agreement the following terms have the meanings set out below -
2.2.1
Cash
means an amount (denominated in Rand or any other currency approved by the
Facility
Agent)
of
cash
in
hand,
or
credit
balances
or
amounts
on
deposit
with
an
Acceptable Bank to which a member of the Covenant Group (other than an
Excluded
40
Subsidiary) is
alone (or
together with
other members
of
the Covenant
Group (other
than an Excluded Subsidiary)) beneficially entitled if -
2.2.1.1
the cash
is accessible
and may
be withdrawn
in full by
a member
of the
Covenant
Group (other than an Excluded Subsidiary)
within 30 days;
2.2.1.2
access to and withdrawal of the
cash is not contingent on the
prior discharge of
any indebtedness of any person or the satisfaction of any other condition;
2.2.1.3
no
Security
exists
over
the
cash
or
over
claims
in
respect
thereof
(other
than
Security
arising
under
the
Security
Documents
or
any
Security
permitted
pursuant to clause
23.4.3.5
(Negative pledge)); and
2.2.1.4
the cash is freely
and (except as mentioned
in clause
2.2.1.1 above
) immediately
available to be applied in repayment or prepayment of the Senior Facilities;
2.2.2
Cash Equivalents
means, at any time -
2.2.2.1
certificates
of
deposit
maturing
within
90
days
after
the
relevant
date
of
calculation, issued by an Acceptable Bank in South Africa;
2.2.2.2
investments accessible
and which
can be
monetised within
90 days
in a
South
African money market collective investment scheme which -
2.2.2.2.1
is a
money market
collective investment
scheme of
Absa Bank
Limited,
FirstRand Bank Limited, Investec Bank
Limited, Nedbank Limited or The
Standard Bank
of South
Africa Limited or
otherwise has an
international
credit rating of
BBB- or higher by
Standard & Poor's Ratings Services
or
Baa3
or
higher
by
Moody's
Investor
Services
Limited,
or
a
comparable
rating from an internationally recognised credit rating agency; and
2.2.2.2.2
invests
substantially
all
its
assets
in
securities
of
the
type
described
in
clause
2.2.2.1 above
; or
2.2.2.3
any other debt security expressly approved by the Facility Agent
in writing,
in each case,
denominated in Rand
or another currency
approved by the
Facility Agent
in writing, and to which any member of the Covenant Group (other than an
Excluded
Subsidiary) is
alone (or
together with
other members
of
the Covenant
Group (other
than an Excluded
Subsidiary)) beneficially
entitled at that
time and which
is not issued
41
or guaranteed by any member
of the Covenant Group
or subject to any Security
(other
than Security arising under the Security Documents);
2.2.3
Consolidated EBITDA
, in relation to any Measurement Period, means the aggregate
of
the
consolidated
operating
income
of
the
Group,
in
each
case,
for
that
period,
without taking any account of the following items (without double counting) -
2.2.3.1
any Interest
accrued as
an obligation
of any
member of
the Group,
whether or
not paid, deferred or capitalised during that period;
2.2.3.2
any amount of
Tax
on profits,
gains or income
paid or payable
by members of
the Group
and any
amount of
any rebate
or credit
in respect
of Tax
on profits,
gains or income received or receivable by members of the Group;
2.2.3.3
any depreciation or amortisation whatsoever,
and any charge for
impairment or
any reversal in that
period of any previous
impairment charge in
relation to the
Group;
2.2.3.4
any loss against book value incurred by
a member of the Group on the
disposal
of any asset (other than trading stock) during that period;
2.2.3.5
any
gain
over
book
value
arising
in
favour
of
a
member
of
the
Group
on
the
disposal of any
asset (other than
trading stock) during
that period and
any gain
arising on any revaluation of an asset during that period;
2.2.3.6
any
unrealised
gains
or
losses
due
to
exchange
rate
movements
which
are
reported through the income statement in relation to the Group;
2.2.3.7
any
unrealised
gains
or
losses
on
any
financial
instrument
(other
than
any
financial instrument which is accounted for on a hedge accounting basis) which
are reported through the income statement of the Group;
2.2.3.8
any stock based
payment charges incurred
by a member
of the Group
recognised
on the issuance of
stock based awards to management and staff:
2.2.3.9
for
each
Measurement
Period,
any
Transaction
Costs
to
the
extent
that
those
costs are accrued or paid during that period;
2.2.3.10
any income or expenses related to the Lesaka
Employee Share Trust established
and
registered
in
accordance
with
the
laws
of
South
Africa,
with
Master’s
reference number IT001901/2024(G) and
42
2.2.3.11
any Exceptional Items approved by the Facility Agent in writing,
2.2.4
and adjusted by -
2.2.4.1
including
only
the
operating
profit
before
interest,
tax,
depreciation
and
amortisation
(calculated
on
the
same
basis
as
Consolidated
EBITDA)
of
a
member of
the Covenant
Group (or
attributable to
a business
or assets)
(other
than any Excluded Subsidiaries) acquired during that Measurement Period (and
added back
as if
it was
acquired at
the start
of that
relevant Measurement
Period);
2.2.4.2
including
only the amount of cash
received by members of the
Covenant Group
(other
than
Excluded
Subsidiaries)
through
distributions
by
any
associate
or
Investment
(which
is
not
a
member
of
the
Covenant
Group)
in
which
any
member
of
the
Covenant
Group
(other
than
an
Excluded
Subsidiary)
has
an
ownership interest;
2.2.4.3
excluding
the operating profit
before interest, tax,
depreciation and amortisation
(calculated
on
the
same
basis
as
Consolidated
EBITDA)
attributable
to
any
member
of
the
Group
(or
to
any
business
or
assets)
disposed
of
during
the
Measurement Period
(and removed
as
if it
was disposed
of at
the
start of
that
relevant Measurement Period);
2.2.4.4
excluding
the operating profit
before interest, tax,
depreciation and amortisation
(calculated
on
the
same
basis
as
Consolidated
EBITDA)
attributable
to
any
Excluded Subsidiary or any
other Subsidiary of Holdco
which is not a
member
of the Covenant Group during the Measurement Period;
2.2.4.5
for
purposes
of
this
Agreement,
continuing
to
treat
each
Relevant
Operating
Lease as
an operating
lease for
accounting purposes,
notwithstanding any
change
(or the implementation of any change) to IFRS on or after 1 January
2019;
2.2.5
Exceptional Items
means any
exceptional, once-off,
non-recurring or
extraordinary
items, including material items of an unusual or non-recurring nature which represent
gains or losses arising on -
2.2.5.1
the restructuring of the activities of an entity and reversals of any provisions for
the cost of restructuring;
2.2.5.2
disposals,
revaluations,
provisions,
write-downs or
impairment
of
non-current
assets or any reversal of any provisions or write-down or impairment;
and
43
2.2.5.3
disposals of assets associated with discontinued operations;
2.2.6
Interest
means -
2.2.6.1
interest and amounts in the nature of interest accrued;
2.2.6.2
prepayment
penalties
or
premiums
incurred
in
repaying
or
prepaying
any
Financial Indebtedness;
2.2.6.3
discount fees
and acceptance
fees payable
or deducted
in respect
of any
Financial
Indebtedness,
including
fees
payable
in
respect
of
letters
of
credit
and
guarantees;
2.2.6.4
any net payment
(or, if appropriate in
the context, receipt)
under any interest
rate
hedging agreement or instrument, taking into account any premiums payable;
2.2.6.5
any
dividends
on
shares
if
those
shares
constitute
Financial
Indebtedness
for
purposes of this Agreement; and
2.2.6.6
any other payments and
deductions of similar effect
(including the finance cost
element of finance leases),
and includes commitment and non-utilisation fees (including those
payable under the
Finance
Documents),
but
excludes
facility
agents'
and
front-end,
management,
arrangement
and
participation
fees
with
respect
to
any
Financial
Indebtedness
(including those payable under the Finance Documents);
2.2.7
Interest Cover Ratio
means, as at each
Measurement Date, the
ratio of the sum
of the
Consolidated EBITDA and
the Kwande Distributions
to Total
Net Finance Costs
for
the Measurement Period ending on that date;
2.2.8
Interest
Receivable
,
in
relation
to
any
Measurement
Period,
means
all
Interest
received or
receivable by
members of
the Covenant
Group (other
than an
Excluded
Subsidiary)
during
that
period
in
respect
of
Cash
deposits
at
banks
and
financial
institutions and Cash Equivalents, calculated on a
consolidated basis (after deducting
applicable withholding Tax);
2.2.9
Investment
means any
person in
which the
Term/RCF
Borrower from
time to
time
holds, directly or indirectly, shares
of any class in
its issued share capital
or equivalent
ownership interest of such person;
44
2.2.10
Kwande Distributions
means, in
relation to
any Measurement
Period, the
amounts
received
by
Holdco
from
its
investment
in
Kwande,
limited
to
a
maximum
of
USD10,000,000
(Indexed)
for
each
Measurement
Period,
to
the
extent
that
such
amounts have been deposited into a Secured Account;
2.2.11
Measurement Date
means the last day
of March, June, September and
December of
each year;
2.2.12
Measurement
Period
means
each
period
of
12
months
ending
on
a
Measurement
Date;
2.2.13
Net Debt to
EBITDA Ratio
means, as at each
Measurement Date, the ratio
of Total
Net Borrowings on
that Measurement Date
to the
sum of the
Consolidated EBITDA
and the Kwande Distributions for the Measurement Period ending on that
date;
2.2.14
Relevant
Operating
Lease
means
a
lease
that
would
have
been
classified
as
an
operating lease
under IFRS prior
to 1 January
2019, notwithstanding any
change (or
the implementation of any change) to IFRS on or after 1 January 2019;
2.2.15
Total
Borrowings
in
respect
of
the
Covenant
Group
(other
than
any
Excluded
Subsidiaries),
at
any
time,
means
the
aggregate
at
that
time
of
the
Financial
Indebtedness
of
the
members
of
the
Covenant
Group
(other
than
any
Excluded
Subsidiaries)
from sources external to
the Covenant Group
calculated at its
nominal or
principal
amount
(or,
if
greater,
the
maximum
amount
payable
on
repayment
or
redemption of
the
relevant liabilities
at
such time)
together
with capitalised
interest
thereon at such time;
2.2.16
Total
Finance
Costs
,
in
relation
to
any
Measurement
Period,
means
all
Interest
accrued
in
relation to
Total
Borrowings during
such
period
as
an
obligation of
any
member of
the Covenant
Group (other
than an
Excluded Subsidiary)
whether or
not
paid or capitalised
during or deferred for
payment after such period),
calculated on a
consolidated basis;
2.2.17
Total
Net
Borrowings
means,
at
any
time,
Total
Borrowings
less
the
aggregate
amount at
that time
of all
Cash and
Cash Equivalents
held by
members of
the Covenant
Group (other than any Excluded Subsidiaries);
2.2.18
Total Net Finance
Costs
, in
relation to
any Measurement
Period, means
Total Finance
Costs
for
that
period
less
Interest
Receivable
for
that
period,
calculated
on
a
consolidated basis;
45
2.2.19
Transaction Costs
means all non-recurring,
once-off fees, costs and
expenses, stamp,
registration and
other Taxes incurred by
the Term/RCF Borrower or
any other
member
of the Covenant
Group in connection
with (i) acquisitions,
disposals or other
corporate
activity,
and/or (ii)
the entry
into of
Finance Documents and
limited to
an aggregate
maximum
amount
of
ZAR200,000,000
(or
its
equivalent
in
any
other
currency
or
currencies) or such other amount agreed to in writing by the Facility Agent.
2.3
Construction
2.3.1
In this Agreement, unless inconsistent with the context, any reference
to -
2.3.1.1
the
Facility Agent
, any
Finance Party
, any
Lender
, any
Obligor
, any
Party
,
any
Security Provider
or any
other person
shall be
construed so
as to
include
its successors in title, permitted cessionaries and permitted transferees;
2.3.1.2
a
document
being
in
the
agreed
form
means
that
the
document
is
in
a
form
previously agreed in writing by or on behalf
of the Term/RCF Borrower and the
Facility Agent
or, if
not so
agreed, is
in form
and substance
satisfactory to
the
Facility Agent;
2.3.1.3
an
amendment
includes
an
amendment,
supplement,
novation,
re-enactment,
replacement, restatement or variation
and
amend
will be construed accordingly;
2.3.1.4
assets
includes
businesses,
undertakings,
securities,
properties,
revenues
or
rights of every description and whether present or future, actual or contingent;
2.3.1.5
an
authorisation
includes authorisation, consent,
approval, resolution, licence,
permit, exemption, filing, notarisation, lodgement or registration;
2.3.1.6
authority
includes
any
court
or
any
governmental,
intergovernmental
or
supranational
body,
agency,
department
or
any
regulatory,
self-regulatory
or
other authority;
2.3.1.7
a
disposal
means
a
sale,
transfer,
cession,
assignment,
donation,
grant,
lease,
licence
or
other
alienation
or
disposal,
whether
voluntary
or
involuntary
and
whether pursuant to a single
transaction or a series of
transactions, and
dispose
will be construed accordingly;
2.3.1.8
distribution
means
a
transfer
by
a
company
of
money
or
other
assets
of
the
company
(other
than
its
own
shares)
to,
or
to
the
order
(or
otherwise
for
the
benefit) of, one
or more holders of
shares in that company
or another company
46
within the
same group
of companies,
including any
principal or
interest in
respect
of amounts due (whether in respect of an intercompany or a shareholder loan or
otherwise);
any
dividend
(including
any
interest
on
any
unpaid
amount
of
a
dividend), charge, fee, consideration or other distribution (whether in cash or in
kind)
on
or
in
respect
of
its
shares
or
share
capital
(or
any
class
of
its
share
capital); any
repayment or
distribution of
any share
premium account;
and the
payment of any management, advisory or other fee;
2.3.1.9
a
Finance Document
or
any other
agreement or
instrument includes
(without
prejudice
to
any
prohibition
on
amendments)
all
amendments
(however
fundamental)
to
that
Finance
Document
or
other
agreement
or
instrument,
including any amendment providing for any increase in the amount of a facility
or any additional facility or replacement facility;
2.3.1.10
a
guarantee
means
(other
than
in
clause
19
(
Guarantee
and
Indemnity
))
any
guarantee, bond, letter
of credit, indemnity or
similar assurance against
financial
loss,
or
any
obligation, direct
or
indirect,
actual
or
contingent, to
purchase
or
assume any indebtedness
of any
person or to
make an
investment in
or loan to
any
person
or
to
purchase
assets
of
any
person,
where,
in
each
case,
that
obligation is assumed
in order to
maintain or assist
the ability of
that person to
meet any of its indebtedness;
2.3.1.11
indebtedness
includes any
obligation (whether
incurred as
principal or
as surety)
for
the
payment
or
repayment
of
money,
whether
present
or
future,
actual
or
contingent;
2.3.1.12
know your customer requirements
are the identification checks
that a Finance
Party
requests
in
order
to
meet
its
obligations
under
any
applicable
law
or
regulation to identify a person who is (or is to become) its customer;
2.3.1.13
a
person
includes
any
individual,
company,
corporation,
unincorporated
association
or
body
(including
a
partnership,
trust,
fund,
joint
venture
or
consortium), government, state, agency,
organisation or other entity
whether or
not having separate legal personality;
2.3.1.14
a
regulation
includes any regulation,
rule, official directive,
request or guideline
(whether or not having the force of
law but, if not having the force
of law, being
of a type with which any person to which
it applies is accustomed to comply) of
any
governmental,
inter-governmental
or
supranational
body,
agency,
department or regulatory, self-regulatory or other authority;
47
2.3.1.15
a provision of law is a
reference to that provision as
extended, applied, amended
or re-enacted, and includes any subordinate legislation;
2.3.1.16
one gender includes
a reference to
the others; the
singular includes the
plural and
vice versa
; natural persons include juristic persons and vice versa; and
2.3.1.17
a time of day is a reference to Johannesburg time.
2.3.2
Section, clause
and Annexure
headings are
for ease
of reference
only,
and do
not in
any way affect the interpretation of a Finance Document.
2.3.3
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.
2.3.4
A Default (other
than an Event
of Default) is
continuing
if it has
not been remedied
within any applicable
remedy period expressly
provided for in a
Finance Document or
waived in writing, and an Event
of Default is
continuing
if it has not been
waived in
writing.
2.3.5
If any provision
in a definition
is a substantive
provision conferring rights
or imposing
obligations
on
any
Party,
notwithstanding
that
it
appears
only
in
an
interpretation
clause, effect
shall be
given to
it as
if it
were a
substantive provision of
the relevant
Finance Document.
2.3.6
A term
defined in
a particular
clause of
a Finance
Document, unless
it is
clear from
the clause in
question that
application of
the term is
to be
limited to the
relevant clause,
shall bear
the meaning
ascribed to
it for
all purposes
of the
relevant Finance
Document,
notwithstanding that that term has not been defined in any interpretation clause.
2.3.7
The Annexures to
a Finance Document
form an integral
part thereof and
a reference
to
a
clause
or
a
Annexure
is
a
reference
to
a
clause
of,
or
an
annexure
to,
this
Agreement.
2.3.8
Unless expressly otherwise provided
in a Finance
Document or inconsistent with
the
context, any number of days prescribed in a Finance Document must be calculated
by
including the first and
excluding the last day,
unless the day before that
last day falls
on a
day that
is not
a Business
Day,
in which
case, the
day before
that last
day will
instead be the next Business Day.
48
2.3.9
The rule of construction that, in the event of ambiguity, a contract shall be interpreted
against
the
party
responsible
for
the
drafting
thereof,
shall
not
apply
in
the
interpretation of the Finance Documents.
2.3.10
The use of the word
including
followed by specific examples will
not be construed as
limiting the meaning
of the general
wording preceding it,
and the
eiusdem generis
rule
must
not
be
applied
in
the
interpretation
of
such
general
wording
or
such
specific
examples.
2.3.11
The expiry or termination of any Finance Documents shall not affect those provisions
of the Finance Documents that expressly provide that they will operate after any such
expiry
or
termination or
which of
necessity must
continue to
have effect
after
such
expiry or
termination,
notwithstanding that
the
clauses
themselves do
not
expressly
provide for this.
2.3.12
The Finance Documents shall to the extent permitted by applicable law be binding on
and enforceable
by the
administrators, trustees,
permitted cessionaries,
business rescue
practitioners or liquidators of the Parties as fully and effectually
as if they had signed
the Finance Documents
in the first
instance and reference
to any Party
shall be deemed
to include
such Party’s administrators,
trustees, permitted
cessionaries, business
rescue
practitioners or liquidators, as the case may be.
2.3.13
Unless the contrary intention appears -
2.3.13.1
a reference to
a Party will
not include
any person if
it has ceased
to be
a Party
under this Agreement;
2.3.13.2
any
obligation
of
an
Obligor
under
the
Finance
Documents
which
is
not
a
payment obligation remains in
force for so long as any
payment obligation of an
Obligor is
or may
be or
is capable
of becoming
outstanding under
the Finance
Documents; and
2.3.13.3
any
obligation
of
an
Obligor
under
the
Finance
Documents
includes
an
obligation on that Obligor not
to contract or agree
to do something or
not to do
something
which
would
breach
that
first
obligation,
unless
such
contract
or
agreement is conditional
on the approval
of the Facility
Agent (as required
under
any Finance Document).
2.4
Third party rights
49
2.4.1
Except as expressly
provided for in
this Agreement or
in any other
Finance Document,
no provision of any Finance Document constitutes a stipulation for
the benefit of any
person who is not a party to that Finance Document.
2.4.2
Notwithstanding any term of
any Finance Document,
the consent of
any person who
is not a party to that Finance Document is not required to rescind or vary
that Finance
Document at any time except to the extent that the relevant variation or rescission (as
the case may be) relates directly to the right conferred
upon any applicable third party
under
a stipulation
for the
benefit
of
that party
that has
been accepted
by that
third
party.
2.5
Currency Symbols and Definitions
Rand or R denotes the lawful currency of South Africa.
3
THE SENIOR FACILITIES
3.1
Senior Term Facility A
Subject to
the terms
of this
Agreement and
the Senior
Term Facility A
Agreement, the
Senior
Term
Facility A
Lenders make
available to
the Term/RCF
Borrower a
Rand-denominated
bullet
term
loan
facility
in
an
aggregate
amount
equal
to
the
Senior
Term
Facility
A
Commitments.
3.2
Senior Term Facility B
Subject to
the terms
of this
Agreement and
the Senior
Term Facility B
Agreement, the
Senior
Term
Facility B
Lenders make
available to
the Term/RCF
Borrower a
Rand-denominated
amortising term
loan facility
in an
aggregate amount
equal to
the Senior
Term
Facility B
Commitments.
3.3
Senior RCF
Subject
to
the
terms
of
this
Agreement
and
the
Senior
RCF
Agreement,
the
Senior
RCF
Lenders make
available to
the Term/RCF
Borrower a
Rand-denominated revolving
credit
facility in an aggregate amount equal to the Total Senior RCF Commitments.
3.4
WesBank Facility
3.4.1
Subject to the
terms of this
Agreement and the
WesBank Agreement,
WesBank makes
available to certain of the Obligors in an aggregate amount of ZAR227,000,000
as set
out in that WesBank Agreement.
50
3.4.2
The WesBank
Agreement may
be supplemented
or replaced
with another
WesBank
Facility concluded
with WesBank,
subject to
clause
23.5.1.3
(
Financial Indebtedness
).
3.5
Working Capital Facility
3.5.1
Subject
to
the
terms
of
this
Agreement
and
the
applicable
WCF
Agreement,
the
Original
WCF
Lender
makes
available
to
the
relevant
WCF
Borrowers
general
working capital facilities in
an aggregate amount equal
to the WCF
Commitments as
set out in that WCF Agreement.
3.5.2
The Original Working Capital Facility may be supplemented or replaced with
another
Working
Capital Facility
concluded
with
a
WCF
Lender,
subject
to
clause
23.5.1.3
(
Financial Indebtedness
).
3.6
Finance Parties' rights and obligations
3.6.1
The obligations of each Finance Party under the Finance Documents are separate and
independent. 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.
3.6.2
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 clause
3.6.3
. The rights
of each Finance
Party include any
debt owing to
that Finance Party
under the Finance
Documents and, for the
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 a Facility or
its role under
a Finance Document
(including any such
amount payable
to the
Facility Agent
on its
behalf) is
a debt
owing to
that Finance
Party by
that Obligor.
3.6.3
A Finance Party
may, except as otherwise stated
in the Finance
Documents, separately
enforce its rights under the Finance Documents.
4
PURPOSE
4.1
Purpose
4.1.1
The Term/RCF Borrower shall apply all amounts borrowed by it under -
51
4.1.1.1
Senior Term Facility
A towards
refinancing the
Existing Group
Indebtedness and
the Cash Connect Management Finance Documents,
funding Transaction Costs
and for general corporate purposes;
4.1.1.2
Senior
Term
Facility B
towards
refinancing the
Existing Group
Indebtedness,
refinancing the
amounts payable
in terms
of the
Acquisition GBF
and for
general
corporate purposes;
and
4.1.1.3
the Senior
RCF,
towards general
corporate (including
capital expenditure)
and
working capital purposes of the Covenant Group,
and for no other purpose whatsoever.
4.1.2
Each WCF
Borrower shall
apply all
amounts utilised
by it
under a
Working
Capital
Facility for
the purposes
of funding
the general
corporate requirements
of the
Covenant
Group (other than the Excluded Subsidiaries).
4.1.3
Each Obligor which
is a party to
the WesBank Facility shall apply all
amounts utilised
by it
under that
Facility for
the purposes
of financing
vehicles required
by the
Covenant
Group (other than the Excluded Subsidiaries).
4.2
Monitoring
No
Finance
Party is
bound
to
monitor
or
verify
the
application of
any
amount borrowed
pursuant to this Agreement and a Senior Facility Agreement.
5
CONDITIONS OF UTILISATION
5.1
Initial conditions precedent
A Utilisation Request may
not be given
(and a Lender shall
have no obligation to
advance
any Loan or provide any other form of credit or financial accommodation under any Senior
Facility to
any person)
unless the
Facility Agent
has notified
the
Term/RCF
Borrower in
writing that all the documents
and other evidence listed
in Part I of
Annexure B
(Conditions
Precedent)
have
been
received
in
form
and
substance
satisfactory
to
the
Lenders.
The
Facility Agent shall notify the Term/RCF
Borrower as soon as reasonably practicable upon
receiving confirmation of all the Lenders being so satisfied.
5.2
Further conditions precedent
Subject to
the terms of
this Agreement,
a Lender
will only
be obliged
to participate
in a Loan
or other Utilisation under a Senior Facility if -
52
5.2.1
in the
opinion of
that Lender, on
the date
of the
Utilisation Request
and on
the proposed
Utilisation Date -
5.2.1.1
the Representations are correct in all respects; and
5.2.1.2
no Default is continuing or would result from the proposed Loan; and
5.2.2
where the Utilisation is to be applied towards
the refinancing of a portion of Existing
Group Indebtedness and/or the Financial Indebtedness
owing under the Cash Connect
Management Finance
Documents, the
Lender is satisfied
that the Covenant
Group will
discharge any interest or costs
which would be payable
on the date that such
Financial
Indebtedness is settled.
5.3
Waiver or deferral of conditions precedent
Each condition precedent referred to in this clause
5
is for the benefit solely of the Lenders.
The
Facility
Agent
(acting
on
the
instructions
of
all
the
Lenders)
may,
by
notice
to
the
Term/RCF Borrower, waive or
defer delivery
of any
condition precedent,
in whole
or in
part,
and subject to such other conditions (if any) as it may determine.
5.4
Failure to close
If the Closing
Date has not
occurred by 16h00
on the Longstop
Date (or such
later date as
may be agreed
in writing by
the Facility Agent,
acting on the
instructions of
all the Lenders),
the
Total
Commitments
shall
immediately,
automatically
and
without
a
requirement
for
notice to be given to any person, be cancelled and reduced to zero.
6
UTILISATION
6.1
Utilisations under a Senior Facility Agreement
Subject to
the
terms of
this Agreement,
a Borrower
may
utilise a
Senior Facility
under
a
Senior Facility
Agreement to
which it
is a party
on the
terms and
conditions of
the applicable
Senior Facility Agreement.
6.2
Automatic cancellation
The Commitments of each
Lender under the Senior Term Facility or the
Senior RCF which,
at that time,
are unutilised, shall
automatically be
cancelled immediately at
11h00 on the last
day of the
Availability Period for the
Senior Term Facility or, as
applicable, the
Senior RCF.
53
7
REPAYMENT
Subject to
the terms
of this
Agreement, each
Borrower shall repay
all Loans
made to
it under
a
Senior Facility Agreement to which it is a party in full, in the amounts and
on the dates specified
in
that
Senior
Facility
Agreement,
and
otherwise
in
accordance
with
the
terms
of
that
Senior
Facility Agreement.
8
PREPAYMENT
AND CANCELLATION
8.1
Mandatory prepayment - 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
Facility -
8.1.1
that
Lender
shall
notify
the
Facility
Agent
as
soon
as
reasonably
practicable
upon
becoming aware of that event;
8.1.2
upon the Facility Agent notifying
the Term/RCF
Borrower, the Commitments of
that
Lender will be immediately cancelled; and
8.1.3
each Borrower
shall repay that
Lender's participation in
the Loans
(together with
all
other Senior
Facility Outstandings due
to that
Lender) on
the last
day of
the Interest
Period
for
each
Loan occurring
after
the
Facility Agent
has
notified the
Term/RCF
Borrower (provided that if the last day of any
such Interest Period for a Loan falls on
a day
earlier than
the tenth
Business Day
after delivery
of such
notice, then
the relevant
Borrower shall make such repayment by no later than
such tenth Business Day) or,
if
earlier, the
date specified by
the Lender
in the
notice delivered to
the Facility
Agent
(being no earlier than the last day of any applicable grace period permitted
by law).
8.2
Mandatory prepayment - sanctions
8.2.1
If any member of the Group or any Security Provider -
8.2.1.1
is or becomes a Sanctioned Entity;
8.2.1.2
participates in any manner in any Sanctioned Transaction;
8.2.1.3
contravenes any Sanctions, or it is targeted under any Sanctions,
each Obligor
shall notify
the Facility
Agent promptly
upon becoming
aware of
that
event (unless
that Obligor
is aware
that a
notification has
already been
provided by
another Obligor).
54
8.2.2
If any event contemplated by clause
8.2.1 above
occurs, the following shall apply -
8.2.2.1
upon the
Facility Agent
receiving a
notice from
an Obligor
under clause
8.2.1
above
or a similar
notice from any
Finance Party,
it shall notify
the Lenders as
soon as reasonably practicable;
8.2.2.2
a Lender shall not be obliged to fund any Utilisation;
8.2.2.3
if
a
Lender
so
requires,
the
Facility
Agent
shall
immediately
cancel
the
Commitments of that
Lender and declare
the participation of
that Lender in
all
outstanding Loans,
together with
all other
Senior Facility
Outstandings due
to
that Lender
due and payable,
whereupon the Commitments
of that
Lender will
be cancelled immediately
and all such
outstanding amounts
will become due
and
payable on the
last day
of the
Interest Period for
each Loan
occurring after the
Facility Agent has so notified the Term/RCF Borrower (provided that if
the last
day of
any such
Interest Period
for a
Loan falls
on a
day earlier
than the
tenth
Business Day after
delivery of such
notice, then the
Term/RCF
Borrower shall
procure that such repayment is
made by no later
than such tenth Business Day)
or,
if
earlier,
the
date
specified by
the
Facility
Agent in
that
notice (being
no
earlier than the last day of any
applicable grace period permitted by
law or other
legal obligation of any Finance Party).
8.3
Mandatory prepayment - change of control or transfer of business
8.3.1
If at any time –
8.3.1.1
prior
to
the
date
on
which the
Net Debt
to
EBITDA Ratio
has
been less
than
1.75x
for
two
consecutive
Measurement
Periods,
VCP
Investment
Fund
and
VCP
Investment
Portfolios, collectively,
do
not,
or
cease
to,
hold
legally
and
beneficially,
and have
the right
to vote
as they
see fit
7.5% of
the issued
share
capital of Holdco;
8.3.1.2
prior
to
the
date
on
which the
Net Debt
to
EBITDA Ratio
has
been less
than
1.75x
for
two
consecutive
Measurement
Periods,
VCP
Investment
Fund
and
VCP Investment
Portfolios collectively
Dispose of
50% or
more of
the shares
which they hold in Holdco as at the Signature Date;
8.3.1.3
prior
to
the
date
on
which the
Net Debt
to
EBITDA Ratio
has
been less
than
1.75x
for
two
consecutive
Measurement
Periods,
VCP
Investment
Fund
and
55
VCP Investment Portfolios cease to be able to appoint a director to the board of
directors of Holdco;
8.3.1.4
if,
without
the
prior
written
consent
of
the
Facility
Agent
(acting
on
the
instructions
of
the
Majority Lenders),
4
or more
of
Ali
Mazanderani, Lincoln
Mali, Daniel
Smith, Steven
Heilbron, Naeem
E. Kola,
Martin Wright,
George
Roussos,
Paul
Kent
and
Basie
Kok
cease
to
be
employed
by
Holdco
or
any
member of the Covenant Group during the period from the Signature Date until
the Discharge Date;
8.3.1.5
any person or group of persons directly or indirectly gains Control of Holdco;
8.3.1.6
the
shares of
common stock
of
Holdco
are
delisted
from the
NASDAQ stock
market or the trade in
those shares is suspended
for more than three trading
days
(other
than
by
reason
of
a
general
suspension
of
trading
in
securities
by
the
NASDAQ stock market);
8.3.1.7
Holdco does not,
or ceases to,
hold legally and
beneficially,
and have the
right
to
vote
as
it
sees
fit,
directly,
100%
of
the
issued
share
capital
of
Term/RCF
Borrower, or otherwise ceases to Control the Term/RCF Borrower;
8.3.1.8
the Term/RCF Borrower
does not,
or ceases
to, hold
legally and
beneficially, and
have the
right to
vote as
it seems
fit, directly
or indirectly,
100% of
the issued
share capital of any Obligor (other than Holdco), or otherwise ceases to Control
any other Obligor (other than Holdco);
8.3.1.9
there is one
or more sales
(whether in a
single transaction or a
series of related
transactions) over the term of this Agreement of assets of one or more members
of the Covenant
Group associated
with any
operating division
or business
which,
on
a
cumulative
basis
taking
account
of
each
such
asset's
Rand
contribution
(direct or indirect) to total assets or Consolidated EBITDA of the
Group for the
Measurement Period most recently
ended prior to
its sale, aggregate
more than
25%
of
total
assets
or
Consolidated
EBITDA
of
the
Covenant
Group
for
the
Measurement Period most recently ended,
(each
a
Control
Event
)
the
Term/RCF
Borrower shall
promptly
notify the
Facility
Agent upon becoming aware of that Control Event, and the following
shall apply -
8.3.1.10
a Lender shall not be obliged to fund any Utilisation; and
56
8.3.1.11
if a Lender so requires by delivery of
a notice to the Facility Agent to that
effect
within 30 Business
Days of being
notified by
the Facility
Agent that a
Control
Event
has
occurred,
the
Facility
Agent
shall,
by
notice
to
the
Term/RCF
Borrower, immediately cancel the Commitments of
that Lender and declare the
participation
of
that
Lender
in
all
outstanding
Loans,
together
with
all
other
Senior
Facility
Outstandings due
to
that
Lender
due and
payable
on
the
tenth
Business
Day
following
delivery
of
that
notice,
whereupon
the
Available
Commitments
of
that
Lender
(as
well
as
any
WCF
Commitment
and
any
WesBank Commitment)
will be cancelled immediately and all such outstanding
amounts will become due and
payable by no later than
such tenth Business Day.
8.4
Mandatory prepayment - material disposal and insurance proceeds
In this Agreement -
8.4.1
Excluded Insurance
Proceeds
means Insurance
Proceeds received
by a
member of
the Covenant Group (other than an Excluded Subsidiary)
-
8.4.1.1
which are,
or are to
be, applied to
meet a
third party liability
claim or to
cover
operating losses (including business interruption losses) in
respect of which the
relevant Insurance claim was made;
8.4.1.2
which are in an amount per claim which is
R30,000,000 or less and, when taken
together with the
value of any
other claims made
by members of
the Covenant
Group (other than
any Excluded Subsidiaries)
during the term
of this Agreement
except
for
those
insurance
proceeds
contemplated
in
clause
8.4.1.1
above
and
clause
8.4.1.3
below, are R30,000,000 or less; or
8.4.1.3
which, when taken together with
the amount of Insurance Proceeds
in respect of
any
other
claims
made
by
members
of
the
Covenant
Group
(other
than
any
Excluded
Subsidiaries)
during
the
term
of
this
Agreement
except
for
those
proceeds contemplated in clause
8.4.1.2
above, are more than R30,000,000, but
only to the extent that, under the authority of a
resolution of the directors of the
relevant member of the Covenant Group, adopted
and passed within 30 days of
receipt of
those Insurance
Proceeds, they
are to
be or
are contractually
committed
to be applied (and are then so
applied), within 90 days of the date
of receipt (or
such longer period as the Facility Agent may
agree in writing), in reinstating or
replacing (on a like for
like basis) any asset, or
in defraying the loss or
liability
to which the claim relates;
57
8.4.2
Insurance Proceeds
means the
proceeds of
a claim
under any
contract of
Insurance
maintained by or
which may be
claimed by a
member of the
Covenant Group (other
than an
Excluded Subsidiary),
after deducting
the reasonable,
properly evidenced
costs
and expenses
incurred by
members of
the Covenant
Group (other
than an
Excluded
Subsidiary
)
to
persons
who
are
not
members
of
the
Covenant
Group
directly
in
connection with the recovery of that claim;
8.4.3
Material
Insurance
Proceeds
means
Insurance
Proceeds
other
than
Excluded
Insurance Proceeds; and
8.4.4
Mobikwik Disposal Proceeds
means the gross
amount of consideration
received by
any
member
of
the
Group following
a
Disposal by
the
Group
of
any
shares
and/or
claims held against Mobikwik and/or the Disposal of assets by Mobikwik and -
8.4.4.1
including the amount
of any intercompany
loan repaid by
a person
who ceases
to be a member of the Group to continuing members of the Group;
8.4.4.2
treating
any
amount
owing
by,
or
set
off
by,
any
purchaser
of
assets
as
consideration received in cash;
8.4.4.3
treating
consideration
initially
received
in
a
form
other
than
cash
or
such
instruments, as being
received when and
if that
consideration is converted
into
cash
or
such
instruments
or
becomes
readily
so
convertible
on
reasonable
commercial terms;
8.4.4.4
after deducting
Taxes (and amounts
reserved in
respect of
Taxes) paid or
payable
as a result of that disposal of those assets in Mobikwik; and
8.4.4.5
after deducting
the properly
evidenced costs
and expenses
incurred directly
in
connection with that disposal of assets.
8.4.5
the Term/RCF
Borrower must
notify the
Facility Agent
within 10
Business Days
of
the receipt
of any
Mobikwik Disposal Proceeds
or Material
Insurance Proceeds by
a
member of the Group.
8.4.6
If
a
member
of
the
Group
receives
any
Material
Insurance
Proceeds
or
Mobikwik
Disposal
Proceeds,
the
Term/RCF
Borrower
shall
offer
to
prepay
the
Senior
Term
Facility Loans and
other Senior Term Facility
Outstandings and
the Senior RCF
Loans
and
other
Senior
RCF
Outstandings,
and
cancel
Available
Commitments
under
the
Senior RCF, in
an amount equal to the balance of those Mobikwik Disposal Proceeds
or Material Insurance
Proceeds, and procure
that the Mobikwik
Disposal Proceeds
and
58
Material Insurance Proceeds are applied to discharge any payments and
cancellations
required to
be made as
a result
of an
acceptance of any
such offer,
all in
accordance
with the requirements of clause
9
(Prepayment Offers and Priorities).
8.5
Voluntary prepayment
The Term/RCF Borrower may,
if the Term/RCF Borrower has given the Facility Agent not
less than 5 Business Days' prior notice, prepay any Senior Term
Facility Loan, Senior RCF
Loan or other amount utilised under
a Senior Term
Facility or the Senior RCF at
any time,
in whole
or in
part. A
prepayment of
part of
a Senior
Term
Facility Loan
or Senior
RCF
Loan
must
be
in
a
minimum
amount
of
ZAR10,000,000
and
an
integral
multiple
of
ZAR1,000,000 or such lesser amount as may
be outstanding under the Finance Documents
(or such
other amount
as may
be agreed
by the
Facility Agent).
The Borrower
may,
in its
discretion, elect whether to prepay any
Senior Term Facility Loan or any Senior RCF Loan.
8.6
Voluntary cancellation
8.6.1
The Term/RCF Borrower may,
by giving the Facility Agent not less than 10 Business
Days' prior notice (or such
shorter period as the Facility
Agent may agree in writing)
cancel
an
Available
Facility under
the
Senior Term
Facility,
in
whole or
in
part. A
partial cancellation
of any
such Available
Facility must be
in a
minimum amount of
ZAR10,000,000 and
an integral
multiple of
ZAR1,000,000 or,
if less,
the Available
Facility applicable at that time.
8.6.2
Any
partial
cancellation
of
an
Available
Facility
under
this
clause
must
be
applied
against the Commitment of each Lender under the relevant Senior Facility
pro rata
.
8.6.3
A Working Capital Facility may be cancelled as provided in the WCF Documents.
8.6.4
A
WesBank Facility may be cancelled as provided in the WesBank Agreement.
8.7
Cancellation and prepayment of a single Lender on a change of costs
8.7.1
If -
8.7.1.1
any sum payable to any
Lender by an Obligor is required
to be increased under
clause
14.2
(Tax gross-up); or
8.7.1.2
any Lender
claims indemnification from
the Term/RCF
Borrower or
any other
Obligor under clause
14.3
(Tax indemnity) or clause
15
(Changes in Costs),
59
the Term/RCF
Borrower may,
whilst the circumstance giving
rise to the requirement
for
that
increase
or
indemnification
continues,
give
the
Facility
Agent
notice
of
cancellation
of
the
Commitments
of
that
Lender
and
its
intention
to
procure
the
repayment of that Lender's participation in the Loans.
8.7.2
On
receipt
of
a
notice
of
cancellation
referred
to
in
clause
8.7.1
above
,
the
Commitments of that Lender shall immediately be cancelled and reduced
to zero.
8.7.3
On
the
last
day
of
each
Interest
Period
in
relation
to
a
Loan
which
ends
after
the
Term/RCF
Borrower has given
notice of cancellation and/or
repayment under clause
8.7.1 above
(or earlier, subject to the payment of
any Break Costs), each Borrower to
which a Utilisation
is outstanding
shall repay
that Lender's participation
in the relevant
Utilisations together with
all other
Senior Facility Outstandings
owed to that
Lender
under the relevant Facilities.
8.8
Re-borrowing and reinstatement
8.8.1
No
amount
of
a
Senior
Term
Facility
Loan
paid,
repaid
or
prepaid
under
this
Agreement
or
the
Senior
Term
Facility
Agreement
may
be
re-borrowed
under
the
Senior Term Facility Agreement.
8.8.2
Unless
a
contrary
indication
appears
in
this
Agreement,
the
amount
of
any
Loan
voluntarily
prepaid
under
the
Senior
RCF
pursuant
to
clause
8.5
(Voluntary
prepayment) may be re-borrowed on the terms of the Senior RCF
Agreement.
8.8.3
Unless a contrary indication appears in this Agreement, the amount of any Loan paid,
repaid or prepaid
under a Working Capital
Facility, may be re-borrowed
subject to and
in accordance with the terms of the relevant WCF Documents.
8.8.4
No
amount
of
the
Total
Commitments
cancelled
under
this
Agreement or
a
Senior
Facility Agreement may
be reinstated
other than
Total
Senior RCF
Commitments in
accordance with the provisions of clause
3.2
(Senior RCF).
8.9
Application of partial prepayments
Any amount to
be applied in
prepayment of Senior
Term
Facility Loans (and
other Senior
Term Facility
Outstandings) or Senior RCF Loans (and other Senior
RCF Outstandings) in
accordance with this Agreement or a Senior Facility Agreement -
8.9.1
in
respect of
a Senior
Term
Facility,
shall be
applied in
or
towards discharging
the
participation of
Lenders in
Loans and
other Senior
Facility Outstandings
under that
60
Senior Term Facility in
each Lender's Pro
Rata Share
(and for purposes
of determining
its
Pro
Rata
Share
the
provisions
of
clause
9.1.2
above
shall
be
applied
mutatis
mutandis
);
8.9.2
in respect of voluntary prepayments in relation to the
Senior RCF, shall
be applied in
or towards discharging the participation of Lenders
in Loans and other Senior Facility
Outstandings
under
the
Senior
RCF
in
each
such
Lender's
Pro
Rata
Share
(and
for
purposes of determining its Pro
Rata Share the provisions of
clause
9.1.2
above shall
be applied
mutatis mutandis
);
8.9.3
in respect of any
mandatory prepayment of Senior
RCF, shall be applied in or towards
discharging
the
participation
of
Lenders
in
Loans
and
other
Senior
Facility
Outstandings under the
Senior RCF and
a cancellation of
the RCF
Commitments,
in
each such Lender's
Pro Rata Share
(and for purposes
of determining its
Pro Rata Share
the provisions of clause
9.1.2
above shall be applied
mutatis mutandis
); and
8.9.4
in respect of any mandatory prepayment of Senior RCF
Loans made to the Lenders in
accordance
with
the
provisions
of
clause
22.4
(Cure
Amounts
-
mandatory
prepayment), shall
be applied
in prepayment
of the Lenders'
participation in
Loans and
other Senior
Facility Outstandings
under the
Senior RCF
and a
cancellation of
the RCF
Commitments, in each such Lender's
Pro Rata Share (and for purposes
of determining
its
Pro
Rata
Share
the
provisions
of
clause
9.1.2
above
shall
be
applied
mutatis
mutandis
),,
except, in respect of clauses
8.9.1
and
8.9.2
above, for a prepayment which
is required to be
made to
a particular
Lender or
Lenders under this
clause
8
or under
clause
9
(Prepayment
Offers and Priorities).
8.10
Other provisions
8.10.1
If
the
Facility
Agent
receives
any
notice
of
prepayment
or
cancellation
under
this
clause
8
or a
Senior Facility
Agreement, or
an offer
of prepayment
under clause
9.1
(Initial Prepayment
Offers), it shall
forward a copy
of that
notice as soon
as reasonably
practicable to the Term/RCF Borrower or the affected Finance Parties, as appropriate.
8.10.2
Any notice
of
prepayment or
cancellation given
by a
Party
under this
clause
8
or a
Senior
Facility
Agreement,
or
an
offer
of
prepayment
under
clause
9.1
(Initial
Prepayment Offers), shall be
irrevocable and, unless a
contrary indication appears
in a
Finance Document,
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.
61
8.10.3
Except as
expressly otherwise
provided in
this clause
8
or a
Senior Facility
Agreement,
any prepayment shall
be made together
with accrued interest
on the amount
prepaid,
without premium
or
penalty except
for any
Break Costs,
Break Gains
or applicable
Refinancing
Penalties
which
arise,
as
a
result
of
such
prepayment
or
as
may
be
otherwise provided in the applicable Senior Facility Agreement.
8.10.4
No Borrower
shall pay,
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 and the applicable Senior Facility Agreement.
8.10.5
The Facility Agent may agree a shorter notice period for a voluntary prepayment or a
voluntary cancellation under a Senior Facility.
8.11
Refinancing
Subject to
the Further
Rights Letter,
the Term/RCF
Borrower may
prepay (or
procure the
prepayment of) any Senior
Term Facility Loan and other Senior Term Facility Outstandings
and/or any Senior
RCF Loan and
other Senior RCF
Outstandings from
amounts raised
under
a Refinancing, on
the condition that
all other Senior
Term
Facility Loans and
other Senior
Term Facility
Outstandings and Senior RCF Loans and other Senior RCF Outstandings are
prepaid in full at the same time and the Total Senior Term
Facility Commitments and Total
Senior RCF Commitments are cancelled and reduced to zero.
9
PREPAYMENT
OFFERS AND PRIORITIES
The provisions of this
clause
9
shall apply to all
amounts that are required
to be offered
towards
the prepayment of the Senior Term Facility Loans (and other Senior Term
Facility Outstandings)
and
Senior
RCF
Loans
(and
other
Senior
RCF
Outstandings),
and
cancellation
of
Available
Commitments under the
Senior RCF,
pursuant to clauses
8.4
(Mandatory prepayment -
material
disposal and insurance proceeds).
9.1
Initial Prepayment Offers
9.1.1
If a member
of the Group
receives any amount
of Mobikwik Disposal
Proceeds and/or
a member
of the
Covenant Group
(other than
an Excluded
Subsidiary) receives
any
Material Insurance
Proceeds (the
Distributable Balance
), the
Term/RCF
Borrower,
by way
of a
notice (an
Initial Offer
Notice
) delivered to
the Facility
Agent no
later
than
10
Business
Days
after
receipt
of
those
Mobikwik
Disposal
Proceeds
and/or
Material Insurance Proceeds, shall offer (an
Initial Prepayment Offer
) to -
62
9.1.1.1
pay and
discharge the
participation of
each Lender
in Senior
Term Facility Loans
(and other Senior
Term Facility Outstandings) that remain
outstanding under the
Senior Term Facilities; and
9.1.1.2
pay and
discharge the
participation of
each Lender
in Senior
RCF Loans
(and
other Senior RCF Outstandings)
that remain outstanding under
the Senior RCF
and/or cancel Available Commitments in relation to the Senior RCF,
in
each
case,
for
an
amount
determined
in
accordance
with
clause
9.1.2
below
(in
respect of each such Lender, its
Distributable Share
), and such notice shall stipulate
how
the
Term/RCF
Borrower
intends
to
apply
any
remaining
balance
(or
any
part
thereof),
as
contemplated
in
clause
9.4
(
Remaining
amount
of
Distributable
Balance
).
9.1.2
Each Lender's
Distributable Share
shall be determined as follows -
9.1.2.1
the
Distributable
Balance
will
be
deemed
to
be
offered
by
the
Term/RCF
Borrower
in
prepayment
of
all
Senior
Term
Facility
Loans
(and
other
Senior
Term Facility Outstandings), and
in prepayment
and/or cancellation
of all
Senior
RCF Loans (and other
Senior RCF Outstandings)
and Available Commitment in
relation to the
Senior RCF,
in proportion to
the Senior Term
Facilities' and the
Senior RCF's Senior Facility Pro Rata Share (defined below);
9.1.2.2
in relation to the Senior Term
Facility, a Lender's Distributable Share
under the
Senior Term
Facility (in respect of
each such Lender,
its
Pro Rata Share
) will
be -
9.1.2.2.1
if at
any relevant
time there
are no
Senior Term Facility
Outstandings under
the
Senior
Term
Facility,
its
pro
rata
proportion
of
the
relevant
Senior
Facility Pro Rata
Share determined
by applying
that Lender's
Commitment
under the
Senior Term
Facility to
all the
Commitments under
the Senior
Term Facility; or
9.1.2.2.2
at any other
time, its
pro rata
proportion
of the relevant
Senior Facility Pro
Rata
Share
determined
by
applying
that
Lender's
Senior
Term
Facility
Outstandings
under
that
Senior
Term
Facility
to
all
the
Senior
Term
Facility Outstandings under the Senior Term Facility; and
9.1.2.3
in relation to the Senior RCF,
a Senior RCF Lender's Distributable Share under
the Senior RCF (in respect of each such Lender, its
Pro Rata Share
) will be its
63
pro rata
proportion
of the relevant Senior
Facility Pro Rata
Share determined by
applying
that
Lender's
Senior
RCF
Commitment
to
all
the
Total
Senior
RCF
Commitments.
9.1.3
For purposes of this
clause
9.1
,
Senior Facility Pro Rata Share
, at any relevant
time,
in respect of
the Senior Term Facility or
the Senior RCF
(a
Relevant Senior Facility
),
means the proportion (expressed as a percentage) borne by -
9.1.3.1
the aggregate amount, at that time, of (i) the Senior Facility Outstandings under
the
Relevant
Senior
Facility,
and
(ii)
the
Available
Commitment
under
the
Relevant Senior Facility; to
9.1.3.2
the aggregate amount, at that time, of (i) the Senior Facility Outstandings under
all
Senior
Term
Facilities
and
the
Senior
RCF,
and
(ii)
the
Available
Commitment under the Senior RCF.
9.2
Acceptances and Additional Prepayment Offers
9.2.1
If a
Lender wishes
to accept
an Initial
Prepayment Offer
or any
part thereof,
it must
advise the Facility Agent of its acceptance and provide to it the following
details -
9.2.1.1
the amount of its available Distributable
Share which it requires to be
paid to it
and/or,
as
applicable,
applied
in
cancellation
of
its
Available
Commitments
under the Senior RCF (an
Accepted Prepayment Amount
); and
9.2.1.2
the
maximum
amount
(the
Additional
Acceptances Limit
)
of
any
additional
part of
the
Distributable Balance
it would
be prepared
to
accept (if
any) in
or
towards payment
and discharge
of its
participation in
Senior Term Facility
Loans
(and other Senior
Term Facility Outstandings) that remain
outstanding under the
Senior
Term
Facilities
and
Senior
RCF
Loans
(and
other
Senior
RCF
Outstandings) that remain
outstanding under the
Senior RCF,
in circumstances
where
one or
more
Lenders were
to
decline
the
applicable Initial
Prepayment
Offers made to them,
9.2.2
by way of a notice delivered to the Facility Agent no
later than 5 Business Days after
receipt
of
any
applicable
Initial Offer
Notice
(each
such
Lender
which
accepts any
applicable Initial
Prepayment Offer
for the
amount of
its Distributable
Share or
any
part thereof,
being a
Participating Lender
).
If a
Lender fails
to
advise the
Facility
Agent of its acceptance
of an Initial Prepayment
Offer, as
required under this clause,
then it shall be deemed to have accepted the Initial Prepayment Offer in full.
64
9.2.3
The Facility Agent will advise the Term/RCF Borrower and the Lenders, by way of
a
notice (an
Acceptances Confirmation
) delivered to
each of
them within 2
Business
Days following
expiry of
the 5
Business Day
period within
which any
applicable Initial
Prepayment Offers may be accepted, of the following -
9.2.3.1
the Initial Prepayment Offers accepted
(including offers that are deemed
to have
been accepted)
and declined
and the
aggregate amount
of Distributable
Shares
for which Initial
Prepayment Offers have
been declined (the
Declined Balance
);
and
9.2.3.2
in
relation
to
each
Participating
Lender,
that
portion
of
the
Declined
Balance
allocable to it (the
Additional Prepayment Amount
), being its Pro Rata Share
(and for
purposes of
determining its
Pro Rata
Share the
provisions of
clause
9.1.2
above shall
be applied
mutatis mutandis
except that (i)
reference in that
clause
to Distributable Share
shall be deemed
to be a reference
to a Lender's Additional
Prepayment Amount, (ii) reference in
that clause to Distributable
Balance shall
be deemed to be a reference to the amount of the Declined
Balance and
(iii)
it is
assumed that the
Senior Term
Facility Outstandings, Senior RCF
Outstandings
and Senior RCF
Commitments of the
Lenders declining the
Initial Prepayment
Offer
are
nil)
of
the
Declined
Balance
limited
to
its
Additional
Acceptances
Limit.
9.2.4
Upon delivery of an Acceptances Confirmation -
9.2.4.1
the
Term/RCF
Borrower
will
be
irrevocably
deemed
to
have
offered
(the
Additional
Prepayment
Offer
)
to
pay
and
discharge
to
each
Participating
Lender (in addition to amounts accepted
by it pursuant to clause
9.2.1 above
) its
participation
in
Senior
Term
Facility
Loans
(and
other
Senior
Term
Facility
Outstandings)
that
remain
outstanding
and
the
Senior
RCF
Loans
(and
other
Senior RCF Outstandings) that remain outstanding; and
9.2.4.2
each
Participating
Lender
will
be
deemed
to
have
accepted
the
Additional
Prepayment Offer,
9.2.5
in each case, for an amount equal to the Additional Prepayment Amount of each such
Lender.
9.3
Application of payment
65
Following a receipt
of any Mobikwik
Disposal Proceeds
and/or Material
Insurance Proceeds
and delivery
of an
Acceptances Confirmation
to the
Term/RCF
Borrower,
the
Term/RCF
Borrower shall pay
to the Facility
Agent, for the
account of each
Participating Lender, the
Accepted
Prepayment
Amount
and
the
Additional
Prepayment
Amount
(if
any)
of
that
Participating Lender, in full -
9.3.1
on the Interest Payment Date immediately following-
9.3.1.1
receipt of the Mobikwik Disposal Proceeds;
9.3.1.2
expiry of
the 30-day
period referred to
in the
definition of
Excluded Insurance
Proceeds in clause
8.4
(Mandatory prepayment
- material disposal
and insurance
proceeds)
(the
30-Day
Period
)
if
a
resolution
of
the
directors
of
the
relevant
member of the Covenant Group has not been adopted and passed within the 30-
Day Period; or
9.3.1.3
expiry
of
where
a
resolution
of
the
directors
of
the
relevant
member
of
the
Covenant Group has been adopted and
passed within the 30-Day Period,
the 90-
day period
referred to
in the
definitions of
Excluded Insurance
Proceeds in
clause
8.4
(Mandatory prepayment
- material
disposal and
insurance proceeds)
if the
relevant Material Insurance
Proceeds have not
been applied within
that 90-day
period; or
9.3.2
if an Event of Default is continuing, no later
than the first Business Day following the
date
on
which
the
Facility
Agent
delivers
an
Acceptances
Confirmation
to
the
Term/RCF Borrower,
and
in
respect
of
any
Participating
Lender
in
relation
to
the
Senior
RCF,
its
Accepted
Prepayment Amount and the
Additional Prepayment Amount
(if any) shall be applied
in the
following order -
9.3.2.1
firstly, in prepayment of its participation in
Senior RCF Loans and other Senior
RCF
Outstandings,
with
a
corresponding
cancellation
of
RCF
Commitments;
and
9.3.2.2
secondly
and
without
double
counting,
in
cancellation
of
its
Available
Commitments under the Senior RCF.
9.4
Remaining amount of Distributable Balance
66
If, after having implemented the provisions of clauses
9.1
and
9.2 above
, the full amount of
any Distributable Balance offered to Lenders is not required to be applied in or towards the
payment, repayment
or prepayment
of Senior
Term
Facility Loans
and other
Senior Term
Facility
Outstandings
and
Senior
RCF
Loans
and
other
Senior
RCF
Outstandings,
any
remaining balance
(or any
part thereof)
(the
Remaining Distributable
Balance
) shall
be
available for application as follows -
9.4.1
it may
be retained
in the
Covenant Group and
used for
the general
operations of the
members of the Covenant Group; and
9.4.2
it
may
be
used
to
make
a
distribution
to
Holdco
subject
to
the
requirements
of
clause
23.21.2
(Distributions).
10
INTEREST AND INTEREST PERIODS
10.1
Calculation, accrual and payment
All
interest
on
a
Loan
made
to
a
Borrower
under
a
Senior
Facility
Agreement
shall
be
calculated, accrue
and be
paid by
that Borrower
for the
account of
the Lenders
under the
relevant Senior Facility in accordance with the terms of that Senior Facility
Agreement.
10.2
Interest Periods
The
Interest Periods
which apply
to
a
Loan or
Unpaid Sum
made to
a Borrower
under a
Senior Facility Agreement
shall be governed
by the terms
of that Senior
Facility Agreement.
11
CHANGES TO THE CALCULATION OF INTEREST
11.1
Absence of quotations
Subject to
clause
11.2
below
, if
JIBAR is
to be
determined by
reference to
the Reference
Banks but
a Reference
Bank does
not supply a
quotation by 12h00
on the
Quotation Day,
JIBAR
shall
be
determined
on
the
basis
of
the
quotations
provided
by
the
remaining
Reference Banks.
11.2
Market disruption
11.2.1
If a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then
the rate of interest on each Lender's share of that Loan for the
Interest Period shall be
the percentage rate per annum which is the sum of -
11.2.1.1
the Applicable Margin; and
67
11.2.1.2
the highest of the rates notified to
the Facility Agent by the relevant Lenders as
soon as practicable
and in any
event before interest is
due to be
paid in respect
of that Interest Period,
to be that which
expresses as a percentage
rate per annum
the
cost
to
those
Lenders
of
funding
their
participation
in
that
Loan
from
whatever source(s) they may reasonably select.
11.2.2
In
this
Agreement
Market
Disruption
Event
means,
in
relation
to
a
Senior
Term
Facility or the Senior RCF -
11.2.2.1
at or about noon
on the Quotation
Day for the
relevant Interest Period
the Screen
Rate is not
available and none
or only one
of the Reference
Banks supplies a
rate
to the Facility Agent to determine JIBAR for the relevant Interest Period;
or
11.2.2.2
before close of business in
Johannesburg on the
Quotation Day for the relevant
Interest
Period,
the
Facility
Agent
receives
notifications
from
one
or
more
Lenders whose
aggregate participations
in Loans
under the
applicable Facility
exceed 30
per cent.
of aggregate
principal amount
of Loans
outstanding under
that Senior Facility that -
11.2.2.2.1
the cost to them of funding their
participation in that Loan from whatever
source they may reasonably select would
be in excess of JIBAR
(provided
that
the
relevant
Lenders
must
first
consider
funding
available
in
the
Johannesburg
Interbank
Market
prior
to
considering
other
sources
of
funding);
11.2.2.2.2
the cost to
it or them
of obtaining matching
deposits in the
Johannesburg
interbank
market
would
be
in
excess
of
JIBAR
for
the
relevant
Interest
Period; or
11.2.2.2.3
matching
deposits
will
not
be
available
to
them
in
the
Johannesburg
interbank
market
in
the
ordinary
course
of
business
to
fund
their
participation in that Loan for the relevant Interest Period.
11.3
Alternative basis of interest or funding
11.3.1
Without prejudice to the generality
of clause
11.2 above
, if a Market Disruption
Event
occurs
and
the
Facility
Agent
or
the
Term/RCF
Borrower
so
requires,
the
Facility
Agent and
the Term/RCF
Borrower shall
enter into
negotiations (for
a period
of not
more than 30 days,
or such longer period
as the Facility Agent
may agree) with a
view
to agreeing a substitute basis for determining the rate of interest.
68
11.3.2
Any
alternative
basis
agreed
pursuant
to
clause
11.3.1
above
shall,
with
the
prior
consent of all the Lenders and the Term/RCF Borrower, be binding on all Parties.
11.4
Replacement of Screen Rate
11.4.1
If a
Screen Rate
Replacement Event has
occurred in
relation to
the Screen
Rate, the
Parties shall enter into negotiations in
good faith with a view to
agreeing the use of a
Replacement Benchmark in place of that Screen Rate.
11.4.2
Any amendment
or
waiver which
relates to
providing for
the
use of
a Replacement
Benchmark and -
11.4.2.1
aligning any provision of any Finance Document to
the use of that Replacement
Benchmark;
11.4.2.2
enabling that Replacement Benchmark to
be used for the
calculation of interest
under this Agreement (including, without limitation, any consequential changes
required to enable
that Replacement Benchmark
to be used
for the purposes
of
this Agreement);
11.4.2.3
implementing market conventions applicable to that Replacement Benchmark;
11.4.2.4
providing
for
appropriate
fallback
(and
market
disruption)
provisions
for
that
Replacement Benchmark; or
11.4.2.5
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
Benchmark (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),
may be made with the consent of the Parties.
12
BREAK COSTS AND BREAK GAINS
12.1
Each
Borrower
shall, within
3
Business
Days
of
demand by
a
Finance Party,
pay to
that
Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being
repaid or
prepaid on
a day
other than
the last
day of
an Interest
Period for
that Loan
or Unpaid
Sum.
69
12.2
On the condition that no Event of Default
is then continuing, a Senior Term Facility Lender
or
Senior
RCF
Lender,
as
applicable,
shall,
within
10
Business
Days
of
demand
by
the
Term/RCF
Borrower,
pay
to
the
Term/RCF
Borrower
the
amount
of
any
Break
Gains
attributable
to
all
or
any
part
of
the
participation of
that
Senior
Term
Facility
Lender
or
Senior RCF Lender in a Loan being repaid or prepaid on a day other than the last day of an
Interest Period for that Loan.
12.3
Each Lender shall,
as soon as
reasonably practicable after
a demand by
the Facility Agent
(made
following
receipt
by
the
Facility
Agent
of
a
written
request
from
the
Term/RCF
Borrower to make
such demand),
provide a certificate
confirming the amount
of its
Break
Costs or Break Gains (as applicable) for any Interest Period in which
they accrue.
13
FEES
13.1
Non-refundable Deal Structuring Fee
The Term/RCF
Borrower shall
pay to
each Original
Senior Lender
a non-refundable
deal
structuring fee in the amount and at the times agreed in a Fee Letter.
13.2
Commitment Fees
13.2.1
The
Term/RCF
Borrower
must
pay
to
the
Facility
Agent
(for
the
account
of
each
Senior
RCF
Lender
and
each
Senior
Term
Facility
Lender,
if
applicable)
a
commitment fee computed
at the
rate equal to
30% of the
applicable Margin
on that
Senior
Term
Facility
Lender's Available
Commitment
or
that
Senior
RCF
Lender's
Available
Commitment
(except
ignoring
for
the
purpose
of
determining
Available
Commitment
in
this
context
the
provisions
of
clause
2.1.13.2
of
clause
2.1.13
(Definitions))
under
the
applicable
Senior
Term
Facility
or
the
Senior
RCF
for
the
Availability Period applicable to that Senior Term Facility or the Senior RCF.
13.2.2
The accrued commitment fees accrue daily with effect from the Closing Date
and are
payable on each Interest
Payment Date which
occurs during the
relevant period during
which commitment fees apply, on the last day of the relevant Availability Period and,
if cancelled in
full, on the
cancelled amount of
the relevant Lender's
Commitment at
the time the cancellation is effective.
13.3
Agency fee
The Term/RCF Borrower shall pay to
the Facility Agent (for
its own account) an
agency fee
in the amount and at the times agreed in a Fee Letter.
70
13.4
Administration fee
The Term/RCF
Borrower shall pay
to TMF Corporate
Services (South Africa)
Proprietary
Limited the administration services fees in the amounts and at the times agreed in the letter
by
TMF
Corporate
Services
(South
Africa)
Proprietary
Limited,
dated
24
June
2024
(as
amended from time to time, with the approval of the Facility Agent).
14
TAX GROSS-UP AND INDEMNITIES
14.1
Definitions
14.1.1
In this Agreement -
14.1.2
Protected Party
means a Finance Party which is or will be subject to any liability, or
required to make any payment, for or on account of
Tax in relation
to a sum received
or receivable (or
any sum deemed
for the purposes
of Tax to be
received or receivable)
under a Finance Document;
14.1.3
Tax Credit
means a credit against, relief or remission for, or repayment of any Tax;
14.1.4
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;
14.1.5
Tax Payment
means either
the increase in
a payment made
by an Obligor
to a Finance
Party under clause
14.2 below
or a payment under clause
14.3 below.
14.1.6
Unless a
contrary indication
appears, in
this clause
14
a reference
to
determines
or
determined
means
a
determination
made
in
the
absolute
discretion
of
the
person
making the determination.
14.2
Tax gross
-up
14.2.1
Each Obligor shall make
all payments to be
made by it free
and clear of and
without
any Tax Deduction, unless a Tax
Deduction is required by law.
14.2.2
The Term/RCF
Borrower shall promptly upon
becoming aware that an
Obligor must
make a
Tax
Deduction (or
that there
is any
change in
the rate
or the
basis of
a Tax
Deduction) notify the Facility Agent accordingly.
Similarly, a Lender shall
notify the
Facility Agent, as soon as reasonably practicable, on becoming so aware in respect of
a payment payable
to that Lender. If
the Facility Agent
receives such notification
from
a Lender it shall notify the Term/RCF Borrower and that Obligor.
71
14.2.3
If a
Tax
Deduction is
required by
law to
be made
by an
Obligor,
the amount
of the
payment due from
that Obligor shall
be increased to
an amount which
(after making
any Tax
Deduction) leaves an
amount equal
to the
payment which would
have been
due if no Tax Deduction had been required.
14.2.4
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.
14.2.5
Within
thirty
days
of
making
either
a
Tax
Deduction
or
any
payment
required
in
connection
with
that
Tax
Deduction,
the
Obligor
making
that
Tax
Deduction
shall
deliver to
the
Facility Agent
for the
Finance Party
entitled to
the payment
evidence
reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or
(as applicable) any appropriate payment paid to the relevant taxing
authority.
14.3
Tax indemnity
14.3.1
Each
Obligor
shall
(within
three
Business
Days
of
demand
by
the
Facility
Agent)
indemnify each Protected Party against, and shall
pay to a Protected Party an amount
equal to the loss, liability or cost which that Protected Party determines will be or has
been (directly or indirectly) suffered for
or on account of Tax
by that Protected Party
in respect of a Finance Document.
14.3.2
Clause
14.3.1 above
shall not apply -
14.3.2.1
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;
14.3.2.2
to the extent a loss, liability or cost is compensated for by an
increased payment
under clause
14.2
(Tax
gross-up) or relates
to a
FATCA
Deduction required to
be made by a Party.
14.3.3
A Protected
Party making,
or intending
to make
a claim
under clause
14.3.1 above
,
shall notify
the Facility
Agent as
soon as
reasonably practicable
of the
event which
72
will give,
or has
given, rise
to the
claim, following
which the
Facility Agent
shall notify
the Term/RCF Borrower or relevant Obligor of such claim.
14.3.4
A Protected
Party shall,
on receiving
a payment
from an
Obligor under
this clause
14.3
,
notify the Facility Agent.
14.4
Tax Credit
Subject to
clause
29
(Conduct of
Business by
the Finance
Parties), if
an Obligor
makes a
Tax Payment and the relevant Finance Party determines that -
14.4.1
a Tax Credit is attributable either to an increased payment of which that Tax Payment
forms part, or to that Tax Payment; and
14.4.2
that Finance Party has obtained, utilised and retained that Tax Credit,
the Finance
Party shall
pay an
amount to
that Obligor,
as soon
as reasonably
practicable,
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 the
Obligor.
14.5
Stamp taxes
Each Obligor shall
(within three Business
Days of demand)
indemnify each Finance
Party
against, and
shall pay
to the
relevant Finance
Party, any cost,
loss or
liability that
the relevant
Finance
Party
incurs
in
relation
to
all
stamp
duty,
registration
and
other
similar
Taxes
payable in respect of any Finance Document.
14.6
Value
added tax
14.6.1
All amounts
set out
or expressed
to be
payable under
a Finance
Document 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 supplies,
and accordingly, subject
to clause
14.6.2 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 provide
an appropriate
VAT
invoice to such Party as soon as reasonably practicable).
14.6.2
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
73
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.
14.6.3
Notwithstanding anything to the contrary contained in
this clause
14.6
(Value
Added
Tax),
each Obligor
irrevocably and
unconditionally appoints
the
Facility Agent
and
each Lender as its representative
and agent to, in its
name place and stead, and
for and
on
its
behalf,
make
payment
of
all
expenses
referred
to
in
clause
18
(Costs
and
Expenses)
directly
to
such
third
parties
as
is
contemplated
in
clause
18
(Costs
and
Expenses), which
amounts shall
be immediately
due and
recoverable from
the relevant
Obligor on demand.
14.6.4
Where a
Finance Document requires
any Party
to reimburse
or indemnify
a Finance
Party for
any costs
or expenses, 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.
14.7
FATCA
Deduction
14.7.1
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
is
required
to
increase
any
payment
in
respect
of
which
it
makes
such
a
FATCA
Deduction
or
otherwise
compensate
the
recipient
of
the
payment
for
that
FATCA
Deduction.
14.7.2
Each Party must, promptly
on 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,
must notify
the Term/RCF
Borrower and
the Facility
Agent, and
the Facility
Agent must
promptly notify
the other
Finance Parties.
74
15
CHANGES IN COSTS
15.1
Increased costs
15.1.1
Subject
to
clause
15.3
below
,
the
Term/RCF
Borrower
shall,
within three
Business
Days of
a demand
by the
Facility 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 -
15.1.1.1
the introduction
of or
any change
in (or
in the
interpretation, administration or
application of) any law or regulation;
15.1.1.2
compliance with any law or regulation; or
15.1.1.3
compliance with
any aspect
of the
Consolidated Basel
Framework (including
any
national
regulation
which
implements
the
Consolidated
Basel
Framework)
whether implemented before or after the Signature Date,
including, without limitation, any
such law or regulation
(including the Consolidated
Basel
Framework)
concerning
capital
adequacy
requirements,
liquid
asset
holding
requirements, special deposit requirements, prudential limits, reserve
assets or Tax.
15.1.2
In this Agreement -
15.1.3
Increased Costs
means -
15.1.3.1
a reduction in the
rate of return from
a Senior Facility or
on a Finance Party's
(or
its
Affiliate's)
overall
capital
(including,
without limitation,
as
a
result
of
any
reduction
in
the
rate of
return on
capital
brought about
by more
capital being
required to be allocated by such Finance Party);
15.1.3.2
an additional or increased cost; or
15.1.3.3
a reduction of any amount due and payable under any Finance Document,
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;
15.1.4
Basel IV
means papers prepared by the Basel Committee on
Banking Supervision (i)
in January 2016
entitled "Minimum Capital
Market Requirements",
(ii) in March
2016
entitled
"Revisions to
the Standardised
Approach for
credit
risk", (iii)
in
June 2016
entitled "Reducing variation in credit
risk-weighted assets – constraints on
the use of
75
internal model
approaches", and
(iv) all
other publications
considered part
of Basel
IV,
and in
each case,
as updated
from time
to
time, or
any rules,
regulations, guidance,
interpretations
or
directives
promulgated
or
issued
in
connection
therewith
by
any
bank regulatory
agency (whether
or not
having the
force of
law but
which are
generally
complied with);
15.1.5
Consolidated Basel Framework
means -
15.1.5.1
the
agreements
on
capital requirements,
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
in
December
2010,
each
as
amended,
supplemented,
restated or reformed;
15.1.5.2
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
15.1.5.3
any
revised
principles
or
standards
published
by
the
Basel
Committee
on
Banking Supervision relating to any reforms of Basel III or other principles and
standards
incorporated
into
the
consolidated
Basel
Framework
by
the
Basel
Committee
on
Banking
Supervision
relating
to
the
regulation,
supervision,
governance and risk management of the banking sector;
and
15.1.5.4
any other guidance,
standards or
directives published
by the
Basel Committee
on
Banking Supervision relating to Basel III,
the Basel III reforms or Basel IV;
15.2
Increased Cost claims
15.2.1
A Finance Party intending to make a claim
pursuant to clause
15.1 above
shall notify
the Facility Agent, as soon as reasonably possible after becoming aware of the
claim,
of the
event giving rise
to the
claim, following which
the Facility
Agent shall notify
the Term/RCF Borrower as soon as reasonably practicable.
15.2.2
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent,
provide a
certificate confirming
the
amount of
its Increased
Costs and
setting out
a
76
calculation of
the amount
of its
Increased Cost
(without having
to provide
details of
the manner in which
any variable (including
any figure or data)
used in the calculation
of its Increased Cost was determined).
15.3
Exceptions
15.3.1
Clause
15.1
(Increased costs) does not apply to the extent any Increased Cost is -
15.3.1.1
attributable to a Tax Deduction required by law to be made by an Obligor;
15.3.1.2
compensated
for
by
clause
14.3
(Tax
indemnity)
(or
would
have
been
compensated for
under that
clause but
was not
so compensated
solely because
any of the exclusions in that clause applied);
15.3.1.3
attributable to the wilful breach by the relevant Finance Party or its Affiliates of
any law or regulation; or
15.3.1.4
attributable to a FATCA
Deduction required to be made by a Party.
15.3.2
In this clause
15.3
, a reference to a
Tax Deduction
has the same meaning
given to the
term in clause
14.1
(Definitions).
16
OTHER INDEMNITIES
16.1
Currency indemnity
16.1.1
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 -
16.1.1.1
making or filing a claim or proof against that Obligor; or
16.1.1.2
obtaining or enforcing
an order,
judgment or award in
relation to any
litigation
or arbitration proceedings,
16.1.2
that Obligor
shall as
an independent
obligation, within
three 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.
77
16.1.3
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.
16.2
Other indemnities
16.2.1
The Obligors
shall, within
three Business
Days of
demand, indemnify
each Finance
Party against, and shall pay to each Finance
Party, any properly evidenced cost or any
loss or
liability (other
than consequential
damages or
opportunity costs)
incurred by
that Finance Party as a result of -
16.2.1.1
the occurrence of any Default;
16.2.1.2
any
information
produced
or
approved
by
Holdco
or
any
member
of
the
Covenant
Group
under
or
in
connection
with
the
Finance
Documents
being
misleading or deceptive in any respect;
16.2.1.3
any enquiry, investigation, subpoena (or similar order) or litigation with respect
to
any
Obligor
or
other
Security
Provider,
or
with
respect
to
the
transactions
contemplated or financed under this Agreement;
16.2.1.4
a failure by an Obligor or
other Security Provider to pay any amount
due under
a Finance Document on its due date;
16.2.1.5
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
gross negligence or wilful default of that Finance Party alone); or
16.2.1.6
a Loan (or part of a
Loan) not being prepaid in
accordance with the terms of
this
Agreement.
16.2.2
Each Obligor’s liability in each case includes any loss
or expense on account of funds
borrowed, contracted
for or
utilised to
fund any
amount payable
under any
Finance
Document or any Loan.
16.3
Indemnity to the Facility Agent
16.3.1
Each
Obligor
hereby
indemnifies
the
Facility
Agent
against,
and
shall
pay
to
the
Facility Agent within three Business Days of
demand, any cost, loss or liability (other
78
than consequential damages or
opportunity costs) incurred by the
Facility Agent as a
result of -
16.3.1.1
investigating or
taking any
other action
in connection
with any
event which
it
reasonably believes is a Default; or
16.3.1.2
acting
or
relying
on
any
notice,
request
or
instruction
which
it
reasonably
believes to be genuine, correct and appropriately authorised.
16.3.2
Each
Obligor
hereby
indemnifies
the
Facility
Agent
against,
and
shall
pay
to
the
Facility
Agent
within
three
Business
Days
of
demand,
any
cost,
loss
or
liability
incurred by the Facility Agent as a result of -
16.3.2.1
the taking,
holding, protection
or enforcement
of any
Transaction
Security (or
giving any instructions to the Debt Guarantor in this regard);
16.3.2.2
any default by an
Obligor in the
performance of any
of the obligations
expressed
to be assumed by it under the Finance Documents; or
16.3.2.3
the performance of its
functions or the exercise
of the rights, powers,
discretions
and remedies vested in
the Facility Agent, in
its capacity as such,
by the Finance
Documents or by
law, except for any such
cost, loss or
liability arising as
a result
of the gross negligence or wilful default of the Facility Agent.
16.3.3
The Term/RCF Borrower shall reimburse to the
Facility Agent all such out-of-pocket
expenses actually and
reasonably incurred and properly
evidenced within 5 Business
Days of
the Facility
Agent presenting the
Term/RCF
Borrower with
a tax
invoice in
respect thereof.
16.4
Indemnity to the Debt Guarantor
Each Obligor hereby
indemnifies the Debt
Guarantor against, and
shall pay
to the
Facility
Agent for
the account
of the
Debt Guarantor,
on demand,
any cost,
loss or
liability (other
than consequential damages
or opportunity costs) incurred
by the Debt Guarantor
as a result
of -
16.4.1
acting or relying on
any notice, request or instruction
which it reasonably believes to
be
genuine,
correct
and
appropriately
authorised
(other
than
by
reason
of
gross
negligence or wilful default of the Debt Guarantor);
16.4.2
the taking, holding or enforcement of any Transaction Security;
79
16.4.3
the performance
of its
functions or
the exercise
of the rights,
in its
capacity as
such,
under the
Finance Documents,
except for
any such
cost, loss
or liability
arising as
a
result of the gross negligence or wilful default of the Debt Guarantor;
16.4.4
any breach by an Obligor of its obligations under the Finance Documents.
17
MITIGATION BY THE LENDERS
17.1
Mitigation
17.1.1
Each
Finance
Party
shall,
in
consultation
with
the
Term/RCF
Borrower,
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
(Mandatory
prepayment
-
Illegality),
clause
14
(Tax
Gross-up
and
Indemnities) or clause
15
(Changes in Costs).
17.1.2
Clause
17.1.1 above
does not
in any
way limit
the obligations
of any
Obligor under
the Finance Documents.
17.2
Limitation of liability
17.2.1
The
Term/RCF
Borrower
hereby
indemnifies
each
Finance
Party
against,
and
undertakes to pay to it on demand, all
costs and expenses reasonably incurred by that
Finance Party as a result of steps taken by it under clause
17.1 above.
17.2.2
A
Finance
Party
is
not
obliged
to
take
any
steps
under clause
17.1
above
if,
in
the
opinion of that Finance Party (acting reasonably) -
17.2.2.1
any law or regulation would not allow or permit it; or
17.2.2.2
to do so might be prejudicial to it.
18
COSTS AND EXPENSES
18.1
Transaction expenses
18.1.1
The Term/RCF Borrower
shall promptly
on demand
pay the
Facility Agent
the amount
of all
costs and
expenses (including
legal fees)
incurred by
it in
connection with
the
negotiation, preparation, printing and execution of -
18.1.1.1
this Agreement, the other Finance
Documents and any other documents
referred
to in this Agreement (including all costs of
registering or perfecting Transaction
Security); and
80
18.1.1.2
any Finance Documents executed after the Signature Date.
18.1.2
For
the
avoidance
of
doubt
the
Term/RCF
Borrower
will
be
liable
for
the
costs
contemplated in
clause
8.1.1
notwithstanding that
this Agreement
or any
other Finance
Documents are not executed or if the Facilities are not advanced or are
withdrawn.
18.2
Amendment costs
18.2.1
If
an
Obligor
requests
an
amendment,
waiver
or
consent,
the
Term/RCF
Borrower
shall,
within three
Business Days
of
demand, reimburse
each
Finance
Party for
the
amount of all costs and expenses (including legal fees) incurred by that Finance Party
in relation to any such requested amendment, waiver or consent.
18.2.2
If there is any
change in law or any
regulation which requires an amendment, waiver
or consent under the Finance Documents, the Term/RCF Borrower shall, within three
Business Days
of demand,
reimburse each
Finance Party
for the
amount of
all costs
and expenses (including legal fees) incurred by that Finance Party in connection with
any such required amendment, waiver or consent.
18.3
Enforcement costs
The Term/RCF Borrower shall, within three Business
Days of demand, pay to each
Finance
Party
the
amount
of
all
costs
and
expenses (including
legal
fees
on
the
scale as
between
attorney and own client whether
incurred before or after judgment)
incurred by that Finance
Party in
connection with
the enforcement
of, or
the preservation
of any
rights under,
any
Finance Document.
19
GUARANTEE AND INDEMNITY
19.1
Guarantee and indemnity
Each Guarantor irrevocably and unconditionally
jointly and severally, as a principal obligor
and not merely as a surety and on the basis of discrete obligations
enforceable against it -
19.1.1
guarantees to
each Finance
Party punctual
performance by
each other
Obligor of
all
that Obligor's obligations under the Finance Documents;
19.1.2
undertakes with
each Finance
Party that
whenever an
Obligor 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 were the principal obligor;
and
81
19.1.3
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 against
any cost, loss
or liability
it incurs
as a
result of
an Obligor
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
19
if
the
amount
claimed
had
been
recoverable
on
the
basis
of
a
guarantee.
19.2
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.
19.3
Reinstatement
If any payment by
an Obligor or any
discharge, release or arrangement given
by a Finance
Party
(whether
in
respect
of
the
obligations
of
any
Obligor
or
any
security
for
those
obligations or
otherwise) is
avoided or
reduced for
any reason
(including, without
limitation,
as a result
of insolvency, business rescue
proceedings, liquidation, winding-up
or otherwise)
-
19.3.1
the liability of each Obligor shall continue as
if the payment, discharge, avoidance or
reduction had not occurred; and
19.3.2
each Finance Party shall be entitled to recover the value
or amount of that security or
payment from each Obligor, as if the payment, discharge,
avoidance or reduction had
not occurred.
19.4
Waiver of defences
The
obligations
of
each
Guarantor
under
this
clause
19
will
not
be
affected
by
an
act,
omission, matter or thing which, but for this
clause, would reduce, release or prejudice any
of its obligations under this clause
19
(without limitation and whether or not known to it or
any Finance Party) including -
19.4.1
any
time,
waiver
or
consent
granted
to,
or
composition
with,
any
Obligor
or
other
person;
82
19.4.2
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 Covenant Group;
19.4.3
the
taking,
variation,
compromise,
exchange,
renewal
or
release
of,
or
refusal
or
neglect
to
perfect,
execute,
take
up
or
enforce,
any
rights
against,
or
security
over
assets of,
any Obligor
or other
person or
any non-presentation
or non-observance of
any formality or
other requirement
in respect of
any instrument
or any
failure to
realise
the full value of any security;
19.4.4
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;
19.4.5
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;
19.4.6
any unenforceability, illegality, invalidity, suspension
or cancellation
of any
obligation
of
any
person
under
this
Agreement
or
any
other
Finance
Document
or
any
other
document or security;
19.4.7
any
insolvency,
liquidation,
winding-up,
business
rescue
or
similar
proceedings
(including, but not limited to, receipt of any distribution made under or in
connection
with those proceedings);
19.4.8
this
Agreement
or
any
other
Finance
Document
not
being
executed
by
or
binding
against any other Guarantor or any other party; or
19.4.9
any other fact or
circumstance arising on which a
Guarantor might otherwise be able
to rely on a defence based on prejudice, waiver or estoppel.
19.5
Guarantor intent
Without
prejudice
to
the
generality
of
clause
19.4
(Waiver
of
defences),
each
Guarantor
expressly confirms that
it intends that
this guarantee shall
extend from time
to time to
any
(however fundamental) variation, increase,
extension or addition of or
to any of the Finance
Documents
and/or
any
facility
or
amount
made
available
under
any
of
the
Finance
Documents
for
the
purposes
of
or
in
connection
with
any
of
the
following
-
business
acquisitions of any nature; increasing working capital; enabling
investor distributions to be
made;
carrying
out
restructurings;
refinancing
existing
facilities;
refinancing
any
other
83
indebtedness; making facilities available
to new borrowers; any other
variation or extension
of the purposes for which any such
facility or amount might be made
available from time to
time; and any fees, costs and/or expenses associated with any of the
foregoing.
19.6
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
19
.
This waiver applies irrespective
of any law or
any provision of a
Finance Document to the
contrary.
19.7
Deferral of Guarantors' rights
19.7.1
Until
all
amounts
which
may
be
or
become
payable
by
the
Obligors
under
or
in
connection with the Finance Documents have been irrevocably paid
in full and unless
the
Facility Agent
otherwise directs,
no Guarantor
will exercise
any rights
which it
may
have
by
reason
of
performance
by
it
of
its
obligations
under
the
Finance
Documents or by
reason of any
amount being payable,
or liability arising,
under this
clause
19
-
19.7.1.1
to be indemnified by an Obligor;
19.7.1.2
to claim any contribution from any other
guarantor of or provider of security
for
any Obligor's obligations under the Finance Documents;
19.7.1.3
to
take
the
benefit
(in
whole
or
in
part
and
whether
by
way
of
subrogation,
cession
of
action
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;
19.7.1.4
to bring
legal or
other proceedings
for an
order requiring
any Obligor
to make
any payment, or perform any obligation,
in respect of which any
Guarantor has
given a
guarantee, undertaking or
indemnity under
clause
19.1
(Guarantee and
indemnity);
19.7.1.5
to exercise any right of set-off against any Obligor; and/or
19.7.1.6
to
claim,
rank,
prove
or
vote
as
a
creditor
or
shareholder
of
any
Obligor
in
competition with any Finance Party.
84
19.7.2
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,
or
otherwise for the benefit of, the Finance Parties and shall promptly
pay or transfer the
same
to
the
Facility
Agent
or
as
the
Facility
Agent
may
direct
for
application
in
accordance with clause
31
(Payment Mechanics).
19.8
Release of Guarantors' right of contribution
If any Guarantor
(a
Retiring Guarantor
) ceases to
be a Guarantor
in accordance with
the
terms
of
this
Agreement
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 -
19.8.1
that Retiring
Guarantor is
automatically 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
19.8.2
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,
cession of action
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.
19.9
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 (which a Finance
Party may release
as it sees fit, without prejudice to its rights hereunder).
20
REPRESENTATIONS
Each Obligor makes
the representations and
warranties set out
in this
clause
20
to each Finance
Party on the Signature Date. A reference in this clause to "it" or "its" includes, unless the
context
otherwise requires, each
Obligor. Any reference to
a member of
the Covenant Group
in this clause
20
shall be deemed to exclude a reference to any Excluded Subsidiary, save in relation to clauses
20.1
,
20.2
,
20.4
,
20.12
,
20.17
,
20.18
and
20.29
.
The
Finance
Parties
enter
into
the
Finance
Documents
to
which
they
are
party
on
the
strength
of
and
relying
on
the
representations
and
warranties set out in this
clause
20
, each of which is
a separate representation and
warranty, given
85
without
prejudice
to
any
other
representation
or
warranty
and
is
deemed
to
be
a
material
representation or warranty
(as applicable) inducing
the Finance
Parties to enter
into the
Finance
Documents.
20.1
Status
20.1.1
It is a limited liability company or corporation, duly incorporated and validly existing
under the laws of its jurisdiction of incorporation or formation.
20.1.2
It and each
of its Subsidiaries
(save for CPS
and its Subsidiaries)
has the power
to own
its assets and carry on its business as it is being conducted.
20.2
Capacity, power and authority
20.2.1
It
has
the
legal
capacity
and
power
to
enter
into
and
perform,
and
has
taken
all
necessary
action
to
authorise
the
entry
into
and
performance
of,
the
Finance
Documents to which it
is or will be a
party and the transactions
contemplated by those
Finance Documents.
20.2.2
No limit on its powers will be exceeded as a result of the borrowing, grant of security
or
giving
of
guarantees
or
indemnities
contemplated
by
the
Finance
Documents
to
which it is a party.
20.3
Binding obligations
20.3.1
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
enforceable against
such
Obligor in accordance with its respective terms.
20.3.2
Each Finance Document to
which it is a party
is in the proper
form for its enforcement
in the jurisdiction of its incorporation or formation.
20.4
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 and the establishment of Transaction
Security pursuant to
the Security Documents to which it is a party, do not and will not conflict with -
20.4.1
any law or regulation applicable to it;
20.4.2
its or any of its Subsidiaries' constitutional documents; or
86
20.4.3
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or
any
of
its
Subsidiaries'
assets
or
constitute a
default
or
termination
event
(however
described) under any such agreement or instrument.
20.5
Authorisations
All authorisations required -
20.5.1
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;
20.5.2
to
make the
Finance Documents
to
which it
is a
party admissible
in
evidence in
its
jurisdiction of incorporation or formation; and
20.5.3
for it and those of its Subsidiaries which are members
of the Covenant Group to carry
on their
respective businesses
in the
ordinary course
and in
all material
respects as
they
are being conducted,
have been obtained or effected and are in full force and effect.
20.6
No default
20.6.1
No Event
of Default
and, on
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request
and each
Utilisation Date,
no Default
is continuing
or is
reasonably
likely to result
from the making
of any Utilisation
or the entry
into, the performance
of, or any transaction contemplated by, any Finance Document to which it is a party.
20.6.2
No other event or circumstance
is outstanding which constitutes (or
with the expiry of
a grace period, the giving of notice, the making
of any determination, the satisfaction
of
any
other
applicable
condition
or
any
combination
of
the
foregoing,
would
constitute) a default or termination event (however described) or an event resulting in
an
obligation
to
create
security,
under
any
other
agreement
or
instrument
which
is
binding on it or any
of its Subsidiaries which are members of
the Covenant Group or
to which
its (or
any of
its Subsidiaries'
which are
members of
the Covenant
Group)
assets are subject,
to an extent or
in a manner which
has or is reasonably
likely to have
a Material Adverse Effect.
20.7
Financial statements
Its audited financial statements most recently delivered to the Facility
Agent -
87
20.7.1
have been
prepared in
accordance with
IFRS in
relation to
the Covenant
Group and
GAAP in relation to Holdco,
consistently applied; and
20.7.2
give a true
and fair view
of its financial
condition (consolidated,
if applicable) as
at the
date to which they were drawn up,
except, in each
case, as disclosed to
the contrary in
those financial statements or
as set out
in Annexure K (Disclosure Schedule).
20.8
Material adverse change
There
has
been
no
material
adverse
change
in
the
business
or
financial
condition
of
any
Obligor, or the business
or consolidated financial
condition of the
Covenant Group since
the
date to which the most recent audited financial statements
(including management accounts
and/or
SEC
Form)
delivered
to
the
Facility
Agent
pursuant
to
clause
21.1
(Financial
statements) were drawn up.
20.9
Assets
20.9.1
It and each of its Subsidiaries which are
members of the Covenant Group owns or
has
leased
or
licenced
to
it,
and
has
all
authorisations required
under
applicable
law or
regulations to use, the
assets necessary to carry
on its business as
presently conducted.
20.9.2
It is
the sole
legal and
beneficial owner
of the
shares and
other assets
which are
the
subject matter of the Security Documents to which it is a party.
20.10
Financial Indebtedness and Security
20.10.1
No
member
of
the
Covenant
Group
or
Holdco
has
any
Financial
Indebtedness
outstanding other
than Financial
Indebtedness which
constitutes Permitted
Financial
Indebtedness.
20.10.2
No
Security
exists
over
the
whole
or
any
part
of
the
assets
of
any
member
of
the
Covenant
Group
or
Holdco,
other
than
Security
which
constitutes
a
Permitted
Encumbrance.
20.10.3
Subject
to
filing
and
registration
required
by
law
(where
applicable)
with
the
appropriate statutory
public register,
each
Security Document
to
which it
is
a
party
creates the security interests which it
purports to create, and the
Transaction Security
so established -
20.10.3.1
is valid and effective;
88
20.10.3.2
constitutes first
priority Security
of the
type described, over
the assets
referred
to, in
the relevant
Security Document
and those
assets are
not subject
to any
prior
or
pari passu
Security in favour of any other person; and
20.10.3.3
is
not
subject
to
avoidance
in
the
event
of
any
winding-up,
dissolution
or
administration involving any Obligor.
20.11
Ranking
20.11.1
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.
20.11.2
The
Transaction
Security
has
or,
upon
the
registration
thereof
with
any
applicable
statutory public
registry (if
required under
applicable law),
will have
the ranking
in
priority which it
is expressed to
have in the
Transaction Security Documents
in respect
of the assets of the Obligors which are the subject matter thereof, and those assets are
not subject to any prior ranking or
pari passu
ranking Security.
20.12
Information
20.12.1
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request and
each
Utilisation
Date,
all
forecasts
and
projections
contained
in
any
information
supplied
by or
on
behalf of
Holdco, any
other Obligor
or
any other
member
of
the
Covenant
Group
to
the
Facility
Agent
or
any
other
Finance
Party
under
or
in
connection with
the Finance
Documents were
prepared on
the basis
of recent
historical
information and assumptions which were
fair and reasonable at that date
and were not
misleading in any respect.
20.12.2
All other
information supplied
by or
on behalf
of Holdco,
any other
Obligor or
any
other member of the Covenant Group
to the Facility Agent or any other
Finance Party
under or in connection with the
Finance Documents is true, complete and accurate
in
all material respects as at the date it was given and is not misleading
in any respect.
20.12.3
No information has been given or withheld by any Obligor which, if disclosed, might
result in the information
or projections referred
to above being untrue
or misleading in
any respect.
20.13
Group Structure Chart
89
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request
and each
Utilisation Date, the Group
Structure Chart is true,
complete and accurate
in all respects and
shows the following information -
20.13.1
Holdco
and
each
member
of
the
Group,
including
current
name
and
company
registration
number,
its
jurisdiction
of
incorporation
or
formation
and/or
its
jurisdiction of establishment,
a list of direct
and indirect shareholders
and indicating if
a company is a Dormant Subsidiary or is not a company with limited liability;
and
20.13.2
all minority interests in any member of the
Covenant Group and any person in which
any
member
of
the
Covenant
Group
holds
shares
in
its
issued
share
capital
or
equivalent ownership interest of such person.
20.14
Ownership of securities
20.14.1
All securities in
the issued capital
of each Guarantor
(other than Holdco)
are owned,
directly
or
indirectly,
legally
and
beneficially,
by
the
Term/RCF
Borrower
unless
otherwise specified in the Group Structure Chart.
20.14.2
Holdco directly owns, legally
and beneficially, 100% of the issued share
capital of the
Term/RCF Borrower.
20.14.3
There are no agreements in force which provide for the issue or allotment of, or grant
any person the right to
call for the issue
or allotment of, any share, debenture
or loan
capital of
any member
of the
Covenant Group
(including any
option or
right of
pre-
emption or conversion).
20.14.4
No person has
a right to
obtain an order
for the rectification of
the securities register
of a member of the Covenant Group.
20.14.5
The shares of
any member
of the Covenant
Group which
are subject to
the Transaction
Security are fully paid and not subject to any option to purchase or similar
rights.
20.14.6
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request and
each
Utilisation
Date,
the
constitutional
documents
of
companies
whose
shares
are
subject to the
Transaction Security do
not restrict
or inhibit
any transfer
of those shares
(whether pursuant
to a
right
of pre-emption
in favour
of any
party or
otherwise) on
creation or enforcement
of the Transaction
Security (or if any
such restriction exists,
all
applicable consents,
waivers or
resolutions by
shareholders and
directors for
the
purposes of
authorising such
a transfer
have been
obtained and
are in
full force
and
effect).
90
20.15
Other documents
20.15.1
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request and
each Utilisation Date,
the documents delivered
to the Facility Agent
by or on behalf
of
any Obligor under clause
5.1
(Initial conditions precedent) are
genuine (or, in the case
of
copy
documents,
are
true,
complete
and
accurate
copies
of
originals
which
are
genuine), are up-to-date and in full force and effect (or if a
copy, the original is up-to-
date and in full force and effect) and have not been amended.
20.15.2
As at
the date
of their
delivery,
the documents delivered
to the
Facility Agent under
this Agreement by or on behalf of any Obligor after the Closing Date are genuine (or,
in
the
case
of
copy
documents,
are
true,
complete
and
accurate
copies
of
originals
which are
genuine), are
up-to-date and
in full
force and
effect (or, if
a copy, the
original
is up-to-date and in full force and effect) and have not been amended.
20.16
No proceedings pending or threatened
As at the Signature Date, the Closing Date and the first Utilisation Date only-
20.16.1
except
as
disclosed in
Annexure K
(Disclosure Schedule),
no
litigation,
arbitration,
expert determination,
alternative dispute
resolution or
administrative proceedings
of
or before any court, arbitral body, expert or agency are
current, pending or, to the best
of its knowledge, threatened against any member of the Covenant Group
or Holdco;
20.16.2
no dispute with any regulatory authority which is the subject of
any administrative or
statutory proceedings
of or
before any
court or
agency is
current, pending
or,
to the
best
of
its
knowledge,
threatened
against
any
member
of
the
Covenant
Group
or
Holdco;
20.16.3
no labour disputes are current
or, to the best of its knowledge and belief
(having made
due and
careful enquiry),
threatened against
any member
of the
Covenant Group
or
Holdco which
have or
might reasonably
be expected
to have
a Material
Adverse Effect.
20.17
No breach of laws
20.17.1
It has
not (and none
of its Subsidiaries
has) breached any
law or
regulation which is
material to the conduct of its business.
20.17.2
Each member of
the Covenant Group
which is required
to comply with
the National
Credit Act, No 34 of 2005 complies in all respects with that legislation.
91
20.18
Environmental matters
20.18.1
Each member
of the
Group is
in compliance
with clause
23.19
(Environmental
matters)
and
no
circumstances
have
occurred
which
would
prevent
such
compliance,
in
a
manner
or
to
an
extent
which
has
or
might
reasonably
be
expected
to
(a)
have
a
Material Adverse Effect, or (b) result in a financial liability for any Finance Party.
20.18.2
All Environmental Permits required
for it and
its Subsidiaries which
are members of
the
Group
to
carry
on
their
respective
businesses
in
the
ordinary
course
have
been
obtained or effected and are in full force and effect.
20.18.3
No
Environmental Claim
has
been commenced,
is
outstanding or
(to the
best of
its
knowledge and
belief (having
made due
and careful
enquiry)) is
threatened against
any
member
of
the
Group
where
that
claim
has
or
might
reasonably
be
expected,
if
determined against that member of the Group, to have a Material Adverse
Effect.
20.18.4
There are
no Environmental
Matters which
might reasonably
be expected
to have
a
material
negative
impact
on
the
financial
or
trading
position
of
any
member
of
the
Group.
20.18.5
Holdco and each
other member of
the Group has
produced and provided
to the Facility
Agent all materially relevant reports and information on Environmental
Matters.
20.18.6
Holdco
has
provided
to
the
Facility
Agent
all
materially
relevant
reports
and
information
on
Environmental
Matters
relating
to
members
of
the
Group
promptly
upon receiving the same
20.19
Insurance
20.19.1
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request and
each Utilisation Date, there is no outstanding insured loss or liability incurred by it or
any member of the Group.
20.19.2
There
has
been
no
non-disclosure,
misrepresentation
or
breach
of
any
term
of
any
material Insurance
taken out
by it
or any
member of
the Group
which would
entitle
any insurer of that insurance to
repudiate, rescind or cancel it or to
treat it as avoided
in whole or in part, or otherwise decline any
valid claim under it by or on
behalf of it
or any member of the Group.
20.20
Intellectual Property Rights
92
20.20.1
It and each of its Subsidiaries which are members of the Covenant Group -
20.20.1.1
is
the
sole
legal
and
beneficial
owner
of,
or
has
licenced
to
it
on
normal
commercial terms, all the Intellectual Property
Rights which are material in
the
conduct
of
its
business
and
which
are
required
by
it
in
order
to
carry
on
its
business in all material respects as it is being conducted;
20.20.1.2
has taken all
formal or procedural actions
(including payment of
fees) required
to maintain those Intellectual Property Rights; and
20.20.1.3
does not, in carrying on its business,
infringe any Intellectual Property Rights
of
any third party in any respect which has a Material Adverse Effect.
20.20.2
As at
the Signature Date,
the Closing Date.
The date of
each utilisation Request
and
each Utilisation
Date, none
of those Intellectual
Property Rights
is being
infringed, nor
(to
the
best
of
its
knowledge)
is
there
any
threatened
infringement
of
any
of
those
Intellectual Property Rights, in any respect.
20.21
Insolvency and Financial Distress
20.21.1
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request and
each Utilisation Date, no -
20.21.1.1
corporate action, legal proceeding or other
procedure or step described in clause
24.7
(Insolvency and business rescue proceedings); or
20.21.1.2
creditors' process described in clause
24.8
(Creditors' process),
has been
taken or
threatened in
relation to
it or
any other
member of
the Group
and
none of
the circumstances
described in
clause
24.6
(Insolvency) applies
to it
or any
other member of the Group.
20.21.2
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request and
each Utilisation Date,
neither it nor
any member of
the Group is
Financially Distressed
(as defined in the Companies Act).
20.22
Taxes
20.22.1
It and each
of its Subsidiaries
which are members of
the Group is
not overdue in
the
filing of any Tax
returns (save as set
out in Annexure K (Disclosure
Schedule))
or in
the payment of any Tax (taking into account
any extensions granted by any
applicable
Tax authority for the filing of such returns) unless and only to the extent that -
93
20.22.1.1
such payment is being contested in good faith;
20.22.1.2
the amount under dispute
is not in excess of 2%
of the Consolidated EBITDA
in
aggregate (calculated with reference to Holdco's most recently delivered annual
financial statements);
20.22.1.3
adequate reserves are being
maintained for those Taxes and the costs required
to
contest them which have been disclosed in its latest financial statements;
and
20.22.1.4
such payment can be lawfully withheld.
20.22.2
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request and
each Utilisation
Date, no
claims or
investigations by
any Tax
authority are
being or
are reasonably likely to
be made or conducted
against it which
are reasonably likely
to
result in a liability
of or claim against
any member of the
Group to pay any
amount of,
or
in
respect
of,
Tax
of
more
than
2%
in
aggregate
of
Consolidated
EBITDA
(calculated
with
reference
to
Holdco's
most
recently
delivered
annual
financial
statements).
20.22.3
It is resident for Tax purposes only in its jurisdiction of incorporation or formation.
20.22.4
As at
the Signature
Date, the
Closing Date,
the date
of each
Utilisation Request and
each Utilisation Date it
is not required
to make any deduction
for or on account
of Tax
from any payment it may make under any Finance Document.
20.23
No filing or stamp taxes
Under the
law of
its jurisdiction
of incorporation
or formation
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
(other than any
securities transfer
tax
payable
on
any
share
transaction
or
fees
payable
at
the
applicable
public
registry
(if
required in respect
of the applicable
Security Document under
applicable law)) be
paid on
or in relation
to those Finance
Documents or
the transactions contemplated
by those Finance
Documents.
20.24
Material Agreements
20.24.1
Each Material Agreement
to which a
member of the
Covenant Group is
a party validly
exists and is in full force and effect and no event or circumstance is continuing which
constitutes
a
breach
or
default
under,
and
which
entitles
another
party
to
call
for
a
termination of, any Material Agreement which is binding on the Term/RCF Borrower
94
or any members of the Covenant Group or to which its (or its Subsidiaries’ which are
members of the Covenant Group) assets are subject.
20.24.2
No member
of the
Covenant Group
is in
breach of
any of
its obligations
under any
Material Agreement.
20.24.3
There
is
no
dispute
between
the
parties
to
any
Material
Agreement
to
which
any
member of
the Covenant
Group is
a party
which is
reasonably likely
to result
in the
termination of such Material Agreement.
20.24.4
Save
as
permitted
under
the
terms
of
the
Finance
Documents
or
save
as
otherwise
disclosed
to
the
Facility
Agent,
there
are
no
documents
or
agreements in
existence
which have the
effect of varying,
amending or supplementing
any Material
Agreement
to which any member of the Covenant Group is a party.
20.25
Governing law and enforcement
20.25.1
The choice
of South
African law
as the
governing law
of those
Finance Documents
which
are
expressed
to
be
governed
by
South
African
law
will
be
recognised
and
enforced in its jurisdiction of incorporation or formation.
20.25.2
Its -
20.25.2.1
submission under this Agreement to the jurisdiction of the
High Court of South
Africa
(Gauteng
Local
Division,
Johannesburg)
(or
any
successor
to
that
division); and
20.25.2.2
agreement not to claim any immunity to which it or its assets may be entitled,
are
legal,
valid
and
binding
under
the
laws
of
its
jurisdiction
of
incorporation
or
formation.
20.25.3
Any judgment
obtained in
South Africa
in relation
to a
Finance Document
which is
governed by
the laws
of South
Africa will
be recognised
and enforced
in its
jurisdiction
of incorporation or formation.
20.26
No adverse consequences
20.26.1
It is not
necessary under the
laws of the
jurisdiction of incorporation or
formation of
that Obligor that any Finance Party should be licensed, qualified or otherwise entitled
to carry on business in that jurisdiction -
95
20.26.1.1
in
order
to
enable
any
Finance
Party
to
enforce
its
rights
under
any
Finance
Document; or
20.26.1.2
by reason of
any Finance
Party having
entered into
any Finance
Document or
the
performance by it of its obligations under any Finance Document.
20.26.2
No Finance
Party is
or will
be deemed
to be
resident, domiciled
or carrying
on business
in the
jurisdiction of
incorporation or
formation of
an Obligor
by reason
only of
the
entry into, performance and/or enforcement of any Finance Document.
20.27
No immunity
20.27.1
The entry into
by it of
each Finance Document to
which it is
a party constitutes, and
the exercise by
it of its
rights and
performance of its
obligations under each
Finance
Document
will
constitute
private
and
commercial
acts
performed
for
private
and
commercial purposes.
20.27.2
In any
proceedings taken
in South
Africa or
in
any other
jurisdiction, it
will not
be
entitled to
claim for
itself or
any of
its assets
immunity from
suit, execution,
attachment
or other legal process in relation to this Agreement or any other Finance
Document.
20.28
Authorised signatories
Any
person
specified as
its
authorised
signatory
under
Part
I
of
Annexure B
(Conditions
precedent) or clause
21.10.11
(Information - miscellaneous) is
authorised to sign Utilisation
Requests and other communications under the Finance Documents on
its behalf.
20.29
Anti-corruption laws and Sanctions
20.29.1
No member of
the Group, Holdco
nor any entity
in which any
member of the
Group
or Holdco holds an investment-
20.29.1.1
is
using
nor
will
use
the
proceeds
of
any
Senior
Facility
for
the
purpose
of
financing or making funds
available directly or indirectly
to any person or entity
which is currently a Sanctioned Entity or as part of
a Sanctioned Transaction, to
the extent such financing or
provision of funds would currently
be prohibited by
Sanctions or would otherwise cause any person to be in breach of Sanctions;
20.29.1.2
is contributing
nor will
contribute or otherwise
make available
the proceeds
of
any Senior Facility to any other person
or entity for the purpose of financing the
activities of any person or entity which is currently listed on a
Sanctions List, to
96
the
extent
such
contribution
or
provision
of
proceeds
would
currently
be
prohibited by Sanctions or would otherwise cause any person to be in breach of
Sanctions; or
20.29.1.3
to the best of its knowledge and belief -
20.29.1.3.1
has been nor is targeted under any Sanctions; or
20.29.1.3.2
has violated or is violating any applicable Sanctions.
20.29.2
Each member
of the
Group and
Holdco has
conducted its
businesses in
compliance
with
applicable
anti-corruption laws
and
has
instituted
and
maintained
policies and
procedures designed to promote and achieve compliance with such
laws.
20.30
Guarantors
20.30.1
As at the Closing Date, the
date of each Utilisation Request
and each Utilisation Date,
each Material Subsidiary, as at each relevant date, is or will be an Obligor.
20.30.2
As at the Closing Date, the
date of each Utilisation Request
and each Utilisation Date,
the aggregate contribution
of the Guarantors who
are members of the
Covenant Group
(calculated on an unconsolidated basis and excluding all intra- Covenant Group items
and investments in Subsidiaries
of any member of
the Covenant Group)
represents not
less
than
90%
of
the
gross
assets,
Consolidated
EBITDA
and
total
revenue
of
the
Covenant Group, in each case, on each relevant date.
20.31
Dormant Subsidiaries
As at the Closing Date, the date of each Utilisation Request and each Utilisation Date, each
of the companies listed in Annexure J (Dormant Subsidiaries) is a Dormant Subsidiary.
20.32
Times for making representations and warranties
20.32.1
Unless
a representation
and warranty
is
expressed to
be
given at
a specific
date (in
which case it shall not be deemed to be repeated on another date),
each representation
and warranty is deemed to be repeated by -
20.32.1.1
each Obligor on
the Closing Date,
on the date
of each Utilisation
Request, on the
date of each Utilisation and on the first day of each Interest Period;
97
20.32.1.2
each Additional Obligor, on the
day on which it becomes (or it is
proposed that
it
becomes)
an
Obligor,
on
the
date
of
each
Utilisation
Request,
on
each
Utilisation Date and on the first day of each Interest Period.
20.32.2
When
a
representation
and
warranty
is
repeated,
it
is
made
with
reference
to
the
circumstances existing at the time of repetition.
21
INFORMATION UNDERTAKINGS
The
undertakings in
this clause
21
remain in
force from
the
Signature Date
for so
long as
any
amount is outstanding under the Finance Documents or any Commitment
is in force.
21.1
Financial statements
The Term/RCF Borrower shall supply to the Facility Agent -
21.1.1
as soon as the same
become available, but in
any event within 12
Months after the last
day of
each financial year
of the
Covenant Group for
their financial years
ending on
30 June 2024 and 30 June 2025 -
21.1.1.1
the Term/RCF
Borrower's audited consolidated
annual financial statements
for
that financial year;
21.1.1.2
the
audited
financial
statements
(consolidated
if
appropriate)
of
each
other
Obligor (other than Holdco) for that financial year; and
21.1.1.3
the Term/RCF Borrower's
pro forma
annual income
statement, statement
of cash
flows
and
balance
sheet
for
that
year
that
excludes
the
financial
results
and
position of the Excluded Subsidiaries,
along with sufficient explanatory notes
to
understand any exclusions;
21.1.2
as soon as the same become available, but in any
event within 6 Months after the last
day of
each financial year
of the
Covenant Group for
their financial years
ending on
or after 30 June 2026 -
21.1.2.1
the Term/RCF
Borrower's audited consolidated
annual financial statements
for
that financial year;
21.1.2.2
the
audited
financial
statements
(consolidated
if
appropriate)
of
each
other
Obligor (other than Holdco) for that financial year; and
98
21.1.2.3
the
Term/RCF
Borrower's
pro
forma
consolidated annual
financial statements
for
that
financial
year
that
excludes
the
financial
results
and
position,
to
the
extent included, of the Excluded Subsidiaries over that period;
21.1.3
as soon as the
same become available, but in
any event within 120
days after the last
day of each financial year of Holdco -
21.1.3.1
Holdco's audited
consolidated annual
financial statements
for that financial
year;
and
21.1.3.2
Holdco's
pro
forma
consolidated annual
financial statements
for that
financial
year that excludes
the financial results
and position, to
the extent included,
of the
Excluded
Subsidiaries
and
each
other
Subsidiary
of
Holdco
which
is
not
a
member of the Covenant Group, over the period;
21.1.4
as soon as the same become
available, but in any event within
50 days after the end of
each quarter of
each of its
financial years, Holdco's
most recent SEC
Form, together
with an
aggregation of the
cashflow statement,
income statement and
balance sheets
related to that SEC
Form and such other
SEC Forms published prior
to that SEC Form
so as to enable a
measurement of the 12
month period ending on
the date on which
the
last SEC Form was published;
and
21.1.5
as soon
as the
same become
available, but
in any
event within
50 days
after the
last
day
of
each
quarter
of
each
financial
year
of
the
Covenant
Group
the
Term/RCF
Borrower’s -
21.1.5.1
aggregated
management
accounts
for
that
quarter
(and
to
include
cumulative
consolidated management accounts
for the financial
year of the
Covenant Group
to date);
21.1.5.2
pro
forma
aggregated
management
accounts
for
that
quarter
(and
to
include
cumulative
consolidated
management
accounts
for
the
financial
year
of
the
Covenant Group to date), that excludes
the financial results and position, to
the
extent included, of the Excluded Subsidiaries over that period.
21.2
Requirements as to financial statements
21.2.1
The Term/RCF Borrower shall ensure that each
set of financial statements,
SEC Form
and management accounts delivered pursuant to clause
21.1 above
–
99
21.2.1.1
is
certified
by
a
director
of
the
relevant
company
as
fairly
representing
its
financial
condition
as
at
the
date
as
to
which
those
financial statements,
SEC
Form or management accounts were drawn up;
21.2.1.2
comprises at
least a
balance sheet,
profit and
loss account
and cashflow
statement
for the
financial period
then ended,
and (in
the case
of management
accounts)
for the financial year to date and the period of 12 months ending on the last day
of the half year financial period;
21.2.1.3
is
prepared
using
IFRS
or
GAAP
(as
applicable),
accounting
practices
and
financial reference periods
consistent with
those applied in
the preparation of
the
Original
Financial
Statements
unless,
in
relation
to
any
set
of
financial
statements, it notifies the Facility Agent that there has been a
change in IFRS or
GAAP (as
applicable),
those accounting
practices or
those reference
periods; and
21.2.1.4
contains,
in
narrative
form,
commentary
in
reasonable
detail
on
the
financial
results
and
the
financial
position
of
the
person
to
which
those
financial
statements relate.
21.2.2
If the Term/RCF Borrower
notifies the
Facility Agent
of any
change in IFRS
or GAAP
(as applicable),
as contemplated
by clause
21.2.1.3
, it
shall procure
that its
Auditors
(or, if appropriate,
the Auditors
of the
relevant member
of the
Covenant Group)
deliver
to the Facility Agent –
21.2.2.1
a description
of
any change
necessary for
those financial
statements to
reflect
IFRS
or
GAAP
(as
applicable),
the
accounting
practices
and
the
reference
periods as applied in the preparation of the Original Financial Statements;
and
21.2.2.2
sufficient information, in
form and substance
reasonably required by
the Facility
Agent,
to
enable
the
Lenders
to
determine
whether
clause
22
(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.
21.2.3
Any reference in this Agreement to
those financial statements shall be construed as
a
reference to those financial statements as
adjusted to reflect the basis upon
which the
Original Financial Statements were prepared.
21.3
Compliance Certificate
100
21.3.1
The Term/RCF
Borrower shall supply a Compliance Certificate to the
Facility Agent
with each set of financial statements,
SEC Form and management accounts delivered
pursuant to clause
21.1.1
and clause
21.1.2
(Financial statements).
21.3.2
Each Compliance Certificate shall, amongst others –
21.3.2.1
be signed by chief financial officer of
the Group and at least one director of
the
Term/RCF Borrower;
21.3.2.2
confirm that the Covenant Group is in compliance with the provisions of clause
22.1;
21.3.2.3
set
out
(in
reasonable
detail)
computations
and
calculations
as
to
compliance
with clause
22
(Financial Covenants) as at the applicable
Measurement Date for
the purposes of determining compliance with clause
22
(Financial Covenants);
provided
that
the
Compliance
Certificate
delivered
together
with
the
financial
statements
pursuant
to
clause
21.1.1.1
or
21.1.2.1
,
for
the
purposes
of
calculating
Consolidated EBITDA -
21.3.2.3.1
all references
to "Group"
shall be
replaced with
references to
"Covenant
Group"; and
21.3.2.3.2
any and
all costs
of Holdco
not already
taken into
account in
calculating
consolidated operating
income of
the Term/RCF Borrower
shall be
deemed
to be costs of the Term/RCF Borrower;
21.3.2.4
include any adjustments required to
reverse the effect of IFRS16 with
regards to
Relevant Operating Leases
for purposes of
determining Consolidated EBITDA
and Total Borrowings;
21.3.2.5
confirm compliance with
the requirements of
clause
23.28
(Guarantor coverage)
as at the relevant Measurement Date; and
21.3.2.6
if requested in
writing by the
Facility Agent, be
accompanied by a
report from
the Auditors in the
agreed form certifying that the
adjustments contemplated in
clause
21.3.2.3
above represent
an accurate
reflection of
the revised
EBITDA,
gross assets
and revenue
of the
Covenant Group,
with such
report by
the Auditors
being, in the absence of manifest error, conclusive and binding on all Parties.
101
21.3.3
The Facility Agent
may not deliver
a notice pursuant
to clause
21.3.2.6
more than four
times during the period up to the Final Discharge Date, unless a Default is continuing
or,
in
the
reasonable
opinion of
the
Facility
Agent,
is
likely
to
occur
as
a
result
of
obtaining that Compliance Certificate.
21.4
Board packs
If
a
Default has
occurred and
is
continuing,
the
Term/RCF
Borrower
shall deliver
to
the
Facility Agent at the
same time they are
distributed to the
relevant board of directors,
copies
of all board packs submitted to the board of directors of an Obligor.
21.5
Insurance reports
The
Term/RCF
Borrower
shall
deliver
to
the
Facility
Agent
annually,
on
or
before
31
December in any
year (a reporting date),
the following information, in
form and substance
satisfactory to the Facility Agent -
21.5.1
a summary
of each
Insurance policy
maintained by
or on
behalf of
a member
of the
Group as at the reporting date;
21.5.2
confirmation that all
premiums due in
respect of the
Insurances of the
Group for the
full period of the then current financial year have been paid in full;
and
21.5.3
a summary of
all material changes
(if any) made
to a contract
or policy of
insurance
since the previous reporting date or confirmation that there were no such
changes.
21.6
Financial year-end
Without the express prior consent of the Facility Agent, an
Obligor (other than Adumo and
its Subsidiaries)
shall not
change the
date of
its financial
year end
from 30
June and
shall
ensure that -
21.6.1
the financial year end of each
member of the Covenant Group falls on the
same date;
and
21.6.2
the financial year end of Adumo and each of its Subsidiaries is changed to 30 June as
soon as reasonably possible but in any event by no later 30 June 2025
.
21.7
Auditors
102
21.7.1
Holdco
must
ensure
that
one
of
the
firms
named
in
or
approved
pursuant
to
the
definition
of
Auditors
is
retained
to
audit
its
and
the
Term/RCF
Borrower's
consolidated annual financial statements.
21.7.2
If
the
Facility
Agent wishes
to
discuss the
financial position
of
any
member
of
the
Covenant
Group
with
the
Auditors,
the
Facility
Agent
may
notify
the
Term/RCF
Borrower,
stating the
questions or
issues which
the Facility
Agent wishes
to discuss
with the Auditors.
In this
event, the
Term/RCF Borrower shall ensure
that the
Auditors
are authorised (at the expense of the Term/RCF Borrower) -
21.7.2.1
to discuss the financial
position of each
member of the
Covenant Group with the
Facility Agent on request in writing from the Facility Agent; and
21.7.2.2
to disclose to
the Facility Agent
for the Finance
Parties any information
which
the Facility Agent may reasonably request in writing.
21.7.3
The Facility Agent may
not give notice under
clause
21.7.2 above
more than once in
any
financial
year
of
the
Term/RCF
Borrower,
unless
it
reasonably
believes
that
a
Default is continuing or may have occurred or may occur, and notifies the Term/RCF
Borrower that it is exercising its rights under this clause
21.7.3.
21.8
Presentations
Once
in
every
financial
year
of
the
Term/RCF
Borrower
if
requested
in
writing
by
the
Facility Agent,
or
within 7
days
following a
request in
writing by
the Facility
Agent if
a
Default is
continuing, at least
the chief financial
officer of
the Group
and a director
of the
Term/RCF
Borrower must,
if
requested to
do
so
by the
Facility
Agent in
writing, give
a
presentation (on a date and at a
venue agreed with the Facility Agent)
to the Finance Parties
as to -
21.8.1
the on-going business and financial performance of the Covenant Group;
and
21.8.2
any other matter which a Finance Party may reasonably request in writing.
21.9
Notification of default
21.9.1
Each Obligor
shall notify
the Facility
Agent of
any Default
(and the
steps, if
any, being
taken
to
remedy
it)
promptly
upon
becoming
aware
of
its
occurrence
(unless
that
Obligor is aware that a notification has already been provided by another
Obligor).
103
21.9.2
As soon as
reasonably practical following a
request in writing
by the Facility
Agent,
the Term/RCF Borrower shall supply to the Facility Agent a certificate signed by two
of its directors or
senior officers 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).
21.10
Information - miscellaneous
The Term/RCF
Borrower shall supply to
the Facility Agent (in
sufficient copies for
all the
Lenders, if the Facility Agent so requests in writing) -
21.10.1
at
the
same
time
as
they
are
dispatched,
copies
of
all
documents
dispatched
by
an
Obligor to its shareholders -
21.10.1.1
as required pursuant
to the Companies
Act (or applicable analogous
legislation
in
that
Obligor's
jurisdiction
of
incorporation
or
formation)
or
that
Obligor's
constitutional documents; or
21.10.1.2
which
contain
information
in
respect
of
any
Environmental
Matters,
matters
relating
to
any
Material
Agreement
(including,
in
each
case,
the
actual
or
potential
withdrawal,
suspension,
cancellation,
revocation,
other
termination,
amendment or renewal
of any Material Agreement)
and matters which
will, or is
reasonably
likely
to,
adversely
affect
the
Senior
Facilities
and/or
any
of
the
Finance Parties' rights under
and in terms of
the Finance Documents (or any
of
them);
21.10.2
copies
of
all
documents
dispatched by
an
Obligor to
its
creditors
generally
(or
any
class of them), in each case at the same time as they are dispatched;
21.10.3
promptly upon becoming aware
of them, details and
copies of any changes
proposed
to
or
made
to
its
constitutional
documents
or
the
constitutional
documents
of
any
Obligor,
including
the
filing
of
any
Memorandum
of
Incorporation
under
the
Companies Act, where
such changes do,
or are reasonably
likely to, adversely
affect
the interest of the Finance Parties;
21.10.4
promptly
upon
becoming
aware
of
them,
the
details
of
any
litigation,
arbitration,
administrative
proceedings,
liquidation
applications,
winding
up
applications
or
business rescue
applications which
are current,
threatened or
pending against
it, any
other member
of the Covenant
Group (other than
any Excluded
Subsidiary) or
Holdco,
and,
in
the
case
of
any
litigation, arbitration
or
administrative
proceedings, involve
104
liability in an aggregate
amount which (together with any
other liability in respect
of
litigation,
arbitration
or
administrative
proceedings)
is
in
excess
of
R10,000,000
in
aggregate (or
its equivalent in
another currency or
currencies) or which,
if adversely
determined, would
or might
reasonably be
expected to
have a
Material Adverse
Effect;
21.10.5
promptly upon
the implementation
of any
disposal or
acquisition of
any shares
by a
member of the Group, a
Group Structure Chart, in
a substantially similar format
to the
Group Structure Chart attached as Annexure L (Group Structure Chart);
21.10.6
within
a
reasonable
time
of
receipt
of
written
request,
an
up
to
date
copy
of
the
securities register of any Obligor or any other member of the Covenant
Group;
21.10.7
within
a
reasonable
time
of
receipt
of
written
request,
such
further
information
regarding
compliance
by
Holdco
or
any
other
member
of
the
Group
with
Environmental
Laws,
as
any
Finance
Party
(through
the
Facility
Agent)
may
reasonably request
in
writing, including
in
relation to
financial provisioning
by any
member of the Group;
21.10.8
promptly
on
request,
such
further
information
regarding
the
actual
or
potential
withdrawal,
suspension,
cancellation,
revocation,
other
termination,
amendment
or
renewal of any
Material Agreement, as
any Finance Party
(through the Facility Agent)
may reasonably request in writing;
21.10.9
promptly upon receipt
of
information regarding
CPS and its
Subsidiaries, such further
information
regarding
CPS
and
its
Subsidiaries
as
any
Finance
Party
(through
the
Facility Agent) may reasonably request in writing;
21.10.10
promptly,
such
further
information
regarding
the
financial
condition,
business
and
operations of
it, Holdco
or any
other member
of the
Covenant Group
(other than
an
Excluded Subsidiary),
or regarding
any asset
subject to
Transaction Security,
as any
Finance Party (through the Facility Agent) may reasonably request
in writing; or
21.10.11
promptly,
notice
of
any
change
in
authorised
signatories
in
respect
of
the
Finance
Documents of it or
any other Obligor signed
by a director or
company secretary of it
or such other
Obligor (as
the case
may be) accompanied
by specimen
signatures of
any
new authorised signatories
(and such additional
information or documentation
as the
Facility Agent
may require
in order
to verify
that any
such signatory
has been
duly
authorised).
21.11
Know your customer checks
105
21.11.1
If -
21.11.1.1
the introduction
of or
any change
in (or
in the
interpretation, administration or
application of) any law or regulation made after the Signature Date;
21.11.1.2
any change in the status of any member of the Group after the Signature Date;
21.11.1.3
the on-going compliance with any know your customer or similar identification
procedures; or
21.11.1.4
a proposed
Transfer by
a Lender of
any of
its rights
and obligations under
this
Agreement to a party that is not a Lender prior to such Transfer,
obliges the Facility
Agent or
any Lender (or, in
the case of
clause
21.11.1.4 above
, any
prospective new Lender) to comply
with know your customer
or similar identification
procedures
(whether
in
terms
of
the
Financial
Intelligence
Centre
Act,
2001
or
otherwise) in circumstances where the
necessary information is not already
available
to it, a member of the Group shall promptly
upon the request in writing of the Facility
Agent or any Lender
supply, or
procure the supply of, such
documentation and other
evidence as is
reasonably requested
by the Facility
Agent (for
itself or on
behalf of
any
Lender)
or
any
Lender
(for
itself
or,
in
the
case
of
the
event
described
in
clause
21.11.1.4
above
, on
behalf of
any prospective
new Lender)
in order
for the
Facility
Agent, such
Lender or,
in the
case of
the event
described in
clause
21.11.1.4 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.
21.11.2
Each Lender
shall as
soon as
reasonably practicable
following request
in writing
by
the
Facility
Agent, supply,
or
procure the
supply
of,
such
documentation and
other
evidence as
is reasonably requested
by the
Facility Agent (for
itself) in
order for the
Facility Agent
to carry
out and
be satisfied
it has
complied with
all necessary
know
your
customer
or
other
similar
checks
under
all
applicable
laws
and
regulations
pursuant to the transactions contemplated in the Finance Documents.
21.11.3
Following the
giving of
any notice
pursuant to
clause
26.2
(Additional WCF
Borrower)
or clause
26.3
(Additional Guarantors), if
the accession
of such
Additional Obligors
obliges the
Facility Agent
or any
Lender to
comply with
know your
customer or
similar
identification
procedures
in
circumstances
where
the
necessary
information
is
not
already
available
to
it,
the
Term/RCF
Borrower
shall promptly
upon
the
request in
writing
of
the
Facility
Agent
or
any
Lender
supply,
or
procure
the
supply
of,
such
106
documentation and
other evidence
as is
reasonably requested
by the
Facility Agent
(for
itself
or
on
behalf
of
any
Lender)
or
any
Lender
(for
itself
or
on
behalf
of
any
prospective
new
Lender)
in
order
for
the
Facility
Agent
or
such
Lender
or
any
prospective new Lender
to carry out
and be satisfied
it has complied
with all necessary
know your customer or other similar checks under all applicable laws and regulations
pursuant
to
the
accession
of
such
Subsidiary
to
this
Agreement
as
an
Additional
Obligor.
21.12
FATCA
Undertakings
21.12.1
Subject to
clause
21.12.3
, each
Party shall, within
10 Business
Days of a
reasonable
request in writing by another Party -
21.12.1.1
confirm in writing to that other Party whether it is -
21.12.1.1.1
a FATCA
Exempt Party; or
21.12.1.1.2
not a FATCA
Exempt Party; and
21.12.1.2
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
21.12.1.3
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.
21.12.2
If a
Party confirms
to another
Party pursuant
to clause
21.12.1.1
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 promptly notify that other Party in writing.
21.12.3
Clause
21.12.1
shall not oblige
any Finance Party
to do anything,
and clause
21.12.1.3
shall not oblige any
other Party to
do anything, which
would or might in
its reasonable
opinion constitute a breach of -
21.12.3.1
any law or regulation;
21.12.3.2
any fiduciary duty; or
21.12.3.3
any duty of confidentiality.
107
21.12.4
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
clause
21.12.1.1
or
21.12.1.2
(including,
for
the
avoidance
of
doubt,
where
clause
21.12.3
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.
22
FINANCIAL COVENANTS
22.1
Undertakings in relation to financial condition
22.1.1
Net Debt to EBITDA Ratio
The
Obligors
shall
ensure
that
the
Net
Debt
to
EBITDA
Ratio
in
respect
of
any
Measurement Period specified in column 1 below shall not exceed the ratio set
out in
column 2 below opposite that Measurement Period -
Measurement Period
[Column 1]
Ratio
[Column 2]
Each Measurement Period ending on or before 31 December 2025
3.25
Each Measurement Period ending after 31 December 2025 but on or
before 31 December 2026
3.00
Each Measurement Period ending after 31 December 2026
but on or
before 31 December 2027
2.50
Each Measurement Period ending after 31 December 2027
2.00
22.1.2
Interest Cover Ratio
The Obligors shall ensure that
the Interest Cover Ratio
in respect of any Measurement
Period specified in column 1 below is greater than the ratio set out
in column 2 below
opposite that Measurement Period -
108
Measurement Period
[Column 1]
Ratio
[Column 2]
Each Measurement Period ending on or before 31 December 2025
1.75
Each Measurement Period ending after 31 December 2025 but on or
before 31 December 2026
2.00
Each Measurement Period ending after 31 December 2026
3.00
22.2
Basis of calculations
22.2.1
All the
terms defined
in clause
2.2
(Financial definitions)
are to
be determined
on a
consolidated basis
and (except
as may
be expressly
included or
excluded in
the relevant
definition, or as stated below) in accordance with IFRS.
22.2.2
The financial
undertakings in
clauses
22.1.1
and
22.1.2
(Undertakings in
relation to
financial condition) (unless
expressly otherwise stated)
shall apply on each
day during
the term of this Agreement.
22.2.3
Compliance
(or
otherwise)
with
the
financial
undertakings
in
clauses
22.1.1
,
and
22.1.2
(Undertakings in relation to
financial condition) as at
each Measurement Date
shall
be
verified
by
reference
to
(i)
the
financial
statements,
SEC
Form
and
management
accounts
of
Holdco
and/or
the
Covenant
Group
delivered
under
clause
21.1
(Financial
statements)
as
at
that
Measurement
Date
and
(ii)
the
Compliance Certificate delivered pursuant to
clause
21.3
(Compliance Certificate) in
relation to that Measurement Date.
22.2.4
No item shall be deducted or credited more than once in any calculation.
22.2.5
Where
an
amount
in
any
financial
statements
delivered
pursuant
to
clause
21
(Information
Undertakings)
is
not
denominated
in
Rand,
it
shall
be
converted
into
Rand at the rates specified in those financial statements.
22.3
Equity cure
In this clause -
22.3.1
Cure
Amount
means
the
amount
of
cash
proceeds
received
by
the
Term/RCF
Borrower
from
a
Shareholder
Contribution
to
be
applied
in
accordance
with
this
clause; and
109
22.3.2
Cure
Period
, in
relation to
a Measurement
Period, means
the period
ending on
the
earlier
of
the
date
on
which
the
Term/RCF
Borrower
is
required
to
deliver
a
Compliance Certificate in respect
of that Measurement
Period and the date on
which a
Compliance Certificate is actually delivered in respect of that Measurement
Period.
22.3.3
If, as at a
Measurement Date, the
Term/RCF Borrower calculates that
any requirement
of
clauses
22.1.1
or
22.1.2
(Undertakings in
relation to
financial condition)
(each a
Relevant
Financial
Undertaking
)
is
not
met,
the
Term/RCF
Borrower
may
treat
(solely
for
the
purpose
of
measuring
compliance
with
the
Relevant
Financial
Undertaking under this
clause, and not
for any other
purpose) a Cure
Amount received
and paid to
the Facility Agent
(for the account
of the Senior
Term Facility Lenders and
Senior
RCF
Lenders)
in
accordance
with
clause
22.4
(Cure
Amounts
-
mandatory
prepayment) within
the applicable
Cure Period,
by way
of a
notional adjustment,
as
follows -
22.3.3.1
in
relation
to
the
Net
Debt
to
EBITDA
Ratio,
as
a
reduction
of
Total
Net
Borrowings by an equivalent amount at the relevant Measurement Date;
and
22.3.3.2
in relation to the Interest
Cover Ratio, as giving rise to a
reduction in Total
Net
Finance Costs in
the amount by
which Total Net Finance Costs
would have been
reduced if
the Senior
Term Facility Loans
and Senior
RCF Loans
had been
repaid
(
pro
rata
across all
Senior Term
Facilities and
the Senior
RCF) in
an amount
equal
to
the
Cure
Amount
on
the
date
which
falls
12 months
before
the
applicable Measurement Date.
22.3.4
Only so much
of a Cure
Amount as is
required to ensure
compliance with the
Relevant
Financial Undertakings may be taken
into account by way of the
notional adjustments
referred to in
clause
22.3.3.1
and
22.3.3.2
above. For the
purposes of clause
22.3.3.2
above, Total
Net Finance Costs shall be recalculated, taking into account the relevant
reduction resulting from the
operation of clause
22.3.3.2
above, for each financial
half
year of the
Covenant Group which
occurs during the
12 month-period ending
on the
applicable
Measurement
Date.
In
respect
of
the
relevant
subsequent
Measurement
Dates
where the
Measurement Period
ending on
that date
includes a
part of
that 12
month-period (each such part of that Measurement Period,
for the purposes hereof, an
Overlapping Period
), the Total
Net Finance Costs amount for
the full Measurement
Period shall
include those
amounts for
each Overlapping
Period taking
into account
any notional reduction allocable to that Overlapping Period under
this clause.
110
22.3.5
Following payment of a Cure Amount to the Facility Agent, the Term/RCF Borrower
shall, by no
later than the
last day of
the relevant Cure
Period, deliver to
the Facility
Agent the
Compliance Certificate
which the
Term/RCF Borrower is
required to
deliver
in terms
of clause
21.3
, provided
that such
Compliance Certificate
shall include
the
breach of the Relevant
Financial Covenant,
the application of
the Cure Amount
within
the Cure Period and reflect the results of -
22.3.5.1
the
calculations of
all Relevant
Financial Undertakings
before the
payment of
the
Cure Amount
in
accordance with
clause
22.4
(Cure Amounts
- mandatory
prepayment) and the application of clauses
22.3.3
and
22.3.4
; and
22.3.5.2
the recalculations
of all
Relevant Financial
following the
payment of
the Cure
Amount
in
accordance
with
clause
22.4
(Cure
Amounts
-
mandatory
prepayment) and the application of clauses
22.3.3
and
22.3.4.
22.3.6
If, following payment
to the Facility
Agent of a
Cure Amount and
a recalculation of
the
Relevant
Financial
Undertakings,
as
contemplated
under
clause
22.3.5.2
,
the
Relevant
Financial
Undertakings
are
met,
the
requirements
of
clause
22.1
(Undertakings in relation
to financial
condition) will be
deemed to have
been satisfied,
retrospectively on the relevant
Measurement Date, and any Default
which arose under
clause
24.2
(Financial Covenants) as a result of the original failure to comply shall be
deemed to have been remedied.
22.3.7
The
rights
of
the
Term/RCF
Borrower
under
this
clause
22.3
are
subject
to
the
following restrictions -
22.3.7.1
a Cure
Amount may
not be
raised and
taken into
account under
this clause for
two consecutive Measurement Periods; and
22.3.7.2
no more than three Cure Amounts in total may
be taken into account before the
Final Discharge Date for the purposes of this clause.
22.4
Cure Amounts - mandatory prepayment
22.4.1
The Term/RCF
Borrower shall
apply all
the proceeds
of any
Cure Amount
received
by it in or
towards payment, repayment or prepayment of the
Loans and other Senior
Facility Outstandings under the Senior Term
Facilities and the Senior RCF,
promptly
upon receipt and, in any event, no later than the last day of the relevant Cure
Period.
111
22.4.2
All amounts paid,
repaid or prepaid
under this clause
shall be applied
in the order
of
priority set out in (and otherwise as required
under) clause
8.9
(Application of partial
prepayments).
23
GENERAL UNDERTAKINGS
Each Obligor is bound
by the undertakings set out
in this clause
23
relating to it or
the Group or
the
Covenant Group
(as
applicable), provided
that any
undertaking in
relation to
the
Covenant
Group shall
be construed
to exclude
the Excluded
Subsidiaries, save
in relation
to the
undertakings
contained in
clauses
23.1
,
23.2
,
23.19
and
23.25
.
The undertakings
in
this clause
23
remain in
force
from
the
Signature
Date
for
so
long
as
any
amount
is
outstanding
under
the
Finance
Documents or any Commitment is in force.
23.1
Authorisations
Each Obligor shall
(and the Obligors shall
ensure that each
other member of the
Covenant
Group will) promptly -
23.1.1
obtain, comply
with and
do all
that is
necessary to
maintain in
full force
and effect;
and
23.1.2
supply copies to the Facility Agent of,
any authorisation required to enable it to -
23.1.3
perform
its
obligations
under
the
Finance
Documents
to
which
it
is
a
party
and
to
ensure
the
legality,
validity,
enforceability
or
admissibility
in
evidence
in
its
jurisdiction of incorporation or formation of any such Finance Document;
and
23.1.4
carry on
its business
in the
ordinary course
and in
all material
respects as
it is
being
conducted.
23.2
Compliance with laws
Each
Obligor shall
(and
the
Obligors
shall
ensure that
each
other member
of
the
Group)
comply with all laws, permits and licenses which are material to the conduct of its business
(including in relation to the making of loans available to individuals).
23.3
Pari passu ranking
Each Obligor must ensure that -
112
23.3.1
its payment
obligations under
the Finance
Documents at
all times
rank at
least
pari
passu
with all
its present
and future
unsecured unsubordinated
payment obligations,
except for obligations mandatorily preferred
by law applying to
companies generally
in its
jurisdiction of
incorporation or
formation or
any other
jurisdiction where
it carries
on business; and
23.3.2
the Security conferred
by each Security
Document to which
it is a party
constitutes the
ranking in
priority which
it is
expressed to
have in
the Transaction Security
Documents
and
Security
of
the
type
described,
over
the
assets
referred
to,
in
that
Security
Document and that
those assets are
not subject to any
prior or
pari passu
Security in
favour of any other person.
23.4
Negative pledge
23.4.1
No Obligor shall (and the Obligors
shall ensure that no other
member of the Covenant
Group will) create or permit to subsist any Security over any of its assets.
23.4.2
No Obligor shall (and the Obligors
shall ensure that no other
member of the Covenant
Group will) -
23.4.2.1
sell, transfer or otherwise dispose of any of its assets on terms whereby they are
or
may be
leased to
or re-acquired
by an
Obligor or
any other
member of
the
Covenant Group;
23.4.2.2
sell, transfer or otherwise dispose of any of its receivables on recourse
terms;
23.4.2.3
enter into or permit to subsist any title retention arrangement;
23.4.2.4
enter into or
permit to
subsist 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
23.4.2.5
enter into
or permit
to subsist
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.
23.4.3
Clauses
23.4.1
and
23.4.2
above
do
not
apply
to
the
following
Security
(each
a
Permitted Encumbrance
) -
113
23.4.3.1
any
Existing
Security,
but
only
until
the
Existing
Security
Discharge
Date
in
respect of that Existing Security;
23.4.3.2
the
Cash
Connect
Group
Cession
and
Pledge,
provided
that
no
additional
Security is given after the Signature Date;
23.4.3.3
any Security given or purported to be given as Transaction Security;
23.4.3.4
any lien
arising by
operation of
law and
in the
ordinary course
of trading,
and
not as a
result of any
default or omission
by any member
of the Covenant
Group;
23.4.3.5
any netting or set-off arrangement entered into by any member
of the Covenant
Group
(other
than
the
Term/RCF
Borrower)
pursuant
to
a
Permitted
Cash
Management Agreement in the ordinary course of
its banking arrangements for
the purpose of netting
debit and credit balances
and the cession
in security of the
loans created
pursuant to
such Permitted
Cash Management
Agreement, but
only
so long as (i)
such arrangement does
not permit credit
balances of Obligors
to be
netted with debit balances of
members of the Group which
are not Obligors, and
(ii) such arrangement does not give rise to any Security (other than such netting
and set-off arrangements and the aforementioned cession)
over the assets of any
member of the Covenant Group;
23.4.3.6
any
netting
of
payments
under
a
Permitted
Treasury
Transaction
(including
netting on a close-out of a Permitted Treasury Transaction);
23.4.3.7
the cession
of a
bank account
in favour
of Nedbank
Limited in
relation to
the
guarantee facility referred to in clause
23.5.1.5;
23.4.3.8
a cession
and pledge
by a
member of
the Covenant
Group of
its shares
in and
claims against an Excluded Subsidiary in relation to any Financial Indebtedness
incurred by that Excluded Subsidiary;
23.4.3.9
any Security arising under -
23.4.3.9.1
an instalment
sale or
a finance
or capital
lease of
vehicles, plant,
equipment
or computers; or
23.4.3.9.2
any
retention
of
title,
hire
purchase
or
conditional
sale
arrangement
or
arrangements
having
a
similar
effect
in
respect
of
goods
supplied
to
a
member of
the Covenant
Group in
the ordinary
course of
trading and
on
114
the supplier's standard or usual terms, and not as a result of any
default or
omission by any member of the Covenant Group,
which, in each case, qualifies as Permitted Financial Indebtedness;
23.4.3.10
any Security arising as a result of a Permitted Disposal;
23.4.3.11
any cash
Security in
the maximum
amount of
ZAR5,000,000 granted
to Nedbank
Limited in respect
of the
Permitted Financial Indebtedness
envisaged in clause
23.5.1.5;
or
23.4.3.12
any Security expressly permitted in writing by the Facility Agent.
23.5
Financial Indebtedness
23.5.1
No Obligor shall (and the Obligors
shall ensure that no other
member of the Covenant
Group
will)
incur
or
allow
to
remain
outstanding
any
Financial
Indebtedness.
This
restriction does
not
apply to
the following
items of
Financial Indebtedness
(in each
case, a
Permitted Financial Indebtedness
) -
23.5.1.1
any
Existing
Group
Indebtedness,
provided
all
such
Existing
Group
Indebtedness is discharged in full on the first Utilisation Date;
23.5.1.2
any Financial Indebtedness incurred under the Finance Documents (excluding a
WCF Document);
23.5.1.3
the
Cash
Connect
Management
Finance
Documents,
provided
that
all
such
Financial Indebtedness is discharged in full on the first Utilisation Date;
23.5.1.4
the
Financial
Indebtedness
owing
by
the
Term/RCF
Borrower
to
the
sellers
pursuant to the
Recharger Acquisition Agreement,
provided that the
Recharger
Acquisition Agreement is not
amended without the prior
written consent of the
Facility Agent and as further set out in clause
23.10.5;
23.5.1.5
the
Financial
Indebtedness
incurred
by
the
Term/RCF
Borrower,
EasyPay
Proprietary Limited
and Prism
Payment Technologies
Proprietary in
favour of
Nedbank in an amount not exceeding ZAR5,000,000 in aggregate at
any time;
23.5.1.6
the Financial
Indebtedness incurred
by GAAP
Point-Of-Sale Proprietary
Limited
in relation to -
115
23.5.1.6.1
a
facility
agreement
concluded
with
FirstRand
Bank
Limited,
acting
through its First
National Bank division
and dated 23
May 2022, in
respect
of direct, credit card,
settlement and asset finance
facilities, provided that
such Financial Indebtedness does not exceed ZAR16,500,000;
23.5.1.6.2
a facility agreement with The Standard Bank of South Africa Limited and
dated
30
January
2025
in
respect
of
fleet
cards,
provided
that
such
Financial Indebtedness does not exceed ZAR1,200,000;
23.5.1.7
the Financial Indebtedness incurred
by Adumo Payments Proprietary
Limited in
relation to -
23.5.1.7.1
a facility agreement
with Nedbank Limited dated
13 July 2020
in respect
of fleet cards,
provided that such
Financial Indebtedness does not
exceed
ZAR150,000;
23.5.1.7.2
a
facility
agreement
with
Nedbank
Limited
dated
7
December
2018
in
respect of a credit card facility,
provided that such Financial Indebtedness
does not exceed ZAR1,800,010;
23.5.1.7.3
an
overdraft facility
with Capitec
Bank Limited
dated 17
October 2022,
provided such Financial Indebtedness does not exceed ZAR2,000,000;
23.5.1.7.4
a debit order facility with Capitec
Bank Limited dated 28
December 2023,
provided
that
such
Financial
Indebtedness
does
not
exceed
ZAR30,000,000;
23.5.1.8
the Financial Indebtedness
incurred by Adumo
in relation to
a facility agreement
with Nedbank Limited
dated 12 April
2021 in respect of
credit cards, provided
that such Financial Indebtedness does not exceed ZAR100,000;
23.5.1.9
the
Financial
Indebtedness
incurred
by
Adumo
Technologies
Proprietary
Limited in relation to:
23.5.1.9.1
a
facility
agreement
with
Nedbank
Limited
dated
13
February
2015
in
respect of a credit card facility,
provided that such Financial Indebtedness
does not exceed ZAR200,000;
and
23.5.1.9.2
a
debit
order
facility
with
Nedbank
Limited
dated
20
August
2024,
provided that
such Financial
Indebtedness does
not exceed
ZAR5,000,000;
116
23.5.1.10
the
Financial
Indebtedness
incurred
by
Adumo
Management
Company
Proprietary
Limited
in
favour
of
Nedbank
in
an
amount
not
exceeding
ZAR1,500,000 in aggregate at any time;
23.5.1.11
the Financial
Indebtedness incurred
by Adumo
Payouts Proprietary
Limited in
relation to a facility agreement with Nedbank Limited dated 13 August 2019,
in
respect of fleet
cards, provided that
such Financial Indebtedness
does not exceed
ZAR50,000;
23.5.1.12
the indemnity provided by the
Term/RCF Borrower in
favour of Investec Bank
Limited
(
Investec
)
on
or
about
30
September
2024,
pursuant
to
which
the
Term/RCF Borrower indemnified Investec
against any
Tax claims relating to
the
preference shares which were issued to Investec by Adumo;
23.5.1.13
any Financial Indebtedness incurred under a WCF Document,
provided that –
23.5.1.13.1
the WCF Lender
is or becomes
party to this
Agreement, the Intercreditor
Agreement
and
any
Subordination
Agreement
before
or
on
the
date
on
which that WCF Document is entered into;
23.5.1.13.2
the aggregate WCF Commitments in relation
to the Covenant Group may
not exceed the amounts set out in the definition of "WCF Commitments";
without the express prior consent of the Facility Agent;
23.5.1.14
any Financial Indebtedness incurred under the WesBank Agreement;
23.5.1.15
any
Financial
Indebtedness
arising
under
a
Permitted
Loan,
a
Permitted
Guarantee or a Permitted Treasury Transaction;
23.5.1.16
any Financial
Indebtedness permitted
under clause
23.5.1.3
in respect
of trade
credit extended to a member of the Covenant Group by a supplier, which -
23.5.1.16.1
is entered into
in in the
ordinary course of
its day-to-day business
of that
member of the Covenant Group; and
23.5.1.16.2
which does not have a term in excess of 120 days; and
23.5.1.17
any Financial Indebtedness
expressly permitted in writing
by the Facility Agent;
or
117
23.5.1.18
any Financial Indebtedness of any
member or members of the
Covenant Group
(other than the Term/RCF Borrower)
or Holdco not otherwise permitted by this
clause above, which together with the indebtedness incurred pursuant
to clauses
23.13.10
and
23.12.5.2
does
not
at
any
time
exceed
ZAR50,000,000
(or
its
equivalent in
another currency
or currencies),
which member
of the
Covenant
Group
or
Holdco
may
only
incur
Financial
Indebtedness
under
this
clause
23.5.1.18
if -
23.5.1.18.1
no Default is then continuing nor would result from such incurrence;
and
23.5.1.18.2
the
Term/RCF
Borrower
is
in
compliance
with
each
of
the
financial
undertakings set
out in
clause
22.1
(
Undertakings in relation
to financial
condition
) immediately prior to
and (taking into account
the amount of the
proposed
Financial
Indebtedness
if
it
were
to
be
incurred)
immediately
following such incurrence.
23.5.2
Holdco
shall
ensure
that
no
member
of
the
Covenant
Group
incurs
any
Financial
Indebtedness in
respect
of any
loans advanced
by
any direct
shareholder in
Holdco
unless
such
loans
are
funded
through
Shareholder
Contributions,
and
after
being
received by Holdco are
paid to the Term/RCF
Borrower firstly,
and thereafter by the
Term/RCF
Borrower
to
such
member
of
the
Covenant
Group
by
a
payment
or
sequence of payments through the Group's
capital structure and otherwise, if
relevant,
comply with clause
23.12.8
(Loans out).
23.6
Disposals
No Obligor
shall (and
the Obligors
shall ensure
that no
other member
of the Covenant
Group
will), enter into
a single transaction
or a series
of transactions (whether related
or not) and
whether voluntary
or involuntary
to sell,
lease, transfer
or otherwise
dispose of
any asset.
This restriction
does not
apply to
the following
disposals which
are (except
for clause
23.6.2
)
on arm's length terms (each a
Permitted Disposal
) –
23.6.1
a disposal of
trading stock for
cash or for
trade credit that
is a Permitted
Loan pursuant
to clause
23.12.1
(Loans out), in each case, in the ordinary course of trading;
23.6.2
a disposal of any asset by a
member of the Covenant Group (the
disposing entity
) to
another
member
of
the
Covenant
Group
(other
than
an
Excluded
Subsidiary)
(the
acquiring entity
) incorporated in the same jurisdiction, but only if -
118
23.6.2.1
where the
disposing entity
is
an
Obligor,
the
acquiring entity
must
also be
an
Obligor (other than Holdco);
23.6.2.2
if the relevant asset is subject to Transaction Security,
the acquiring entity must
provide equivalent
Security for
the benefit
of the
Finance Parties
(in form
and
substance satisfactory to the
Facility Agent) and
the following shall be
delivered
to the Facility Agent in respect thereof to the Facility Agent’s satisfaction -
23.6.2.2.1
legal opinions
as to
the capacity
and authority
of the
relevant Obligor
to
grant such Transaction Security and
the enforceability of such
Transaction
Security; and
23.6.2.2.2
copies of
all resolutions
required to
be passed
in respect
of the
authorisation
of the granting of such Transaction Security; and
23.6.2.3
where the
disposing entity
is
a
Guarantor,
the
acquiring entity
must
also be
a
Guarantor in
the Covenant
Group guaranteeing
an amount
at all
times no
less
than that guaranteed by the disposing entity;
23.6.3
a disposal of obsolete or redundant vehicles, plant and equipment
for cash;
23.6.4
a disposal of assets (not
being a business and not
being shares, securities, interests in
real
property
or
rights
under
any
Finance
Document)
in
exchange
for
other
assets
comparable or superior as to type, value and
quality and for a similar purpose (but, if
the
assets
disposed
of
were
subject
to
Transaction
Security,
only
if
Transaction
Security is
established for
the benefit
of the
Finance Parties
(in form
and substance
satisfactory to the Facility Agent) over any
assets so acquired) and the following
shall
be
delivered
to
the
Facility
Agent
in
respect
thereof
to
the
Facility
Agent’s
satisfaction -
23.6.4.1
legal opinions
as to
the capacity
and authority
of the
relevant Obligor
to grant
such Transaction
Security and
the enforceability
of such
Transaction Security;
and
23.6.4.2
copies of all
resolutions required to be
passed in respect of
the authorisation of
the granting of such Transaction Security;
23.6.5
a disposal of Cash Equivalents -
23.6.5.1
for Cash; or
119
23.6.5.2
in exchange for other Cash Equivalents,
but, if the Cash
Equivalents disposed of were subject to
Transaction Security,
only if
Transaction Security is established for the
benefit of the Finance Parties (in form and
substance satisfactory to the Facility Agent) over any Cash Equivalents
so acquired;
23.6.6
a disposal arising as a result of a Permitted Encumbrance;
23.6.7
any other disposal expressly permitted in writing by the Facility Agent;
23.6.8
a disposal by the Term/RCF Borrower of any
treasury shares which it holds
in Holdco
in order to pay the purchase consideration (or a part thereof)
in relation to a Permitted
Acquisition envisaged in clause
23.10.6
or
23.10.7
;
23.6.9
the disposal
by Holdco
to a
member of
the Covenant
Group of
Holdco's shares
and
claims in
Kwande, provided
that the
Term/RCF
Borrower has
provided the
Facility
Agent with
at least
30 Business
Days prior
written notice
thereof and
the Facility
Agent
has
notified the
Term/RCF
Borrower
that
the
Finance Parties
are
satisfied
with
the
terms and conditions of that disposal prior to the implementation
thereof;
23.6.10
any disposal of Mobikwik provided that -
23.6.10.1
the consideration for such disposal consists only of cash;
23.6.10.2
no Default is then continuing or would result from such disposal;
and
23.6.10.3
the
provisions
of
clause
8.4
(Mandatory
prepayment
-
material
disposal
and
insurance proceeds)
are complied with;
23.6.11
any other disposal not referred to in this clause
23.6
above which is for cash, made on
arm's-length terms and for full market value and on the condition that -
23.6.11.1
no Default is then continuing nor would result from such disposal;
23.6.11.2
the aggregate book
value (determined with
reference to the
most recent financial
statements, SEC Form or management accounts delivered to the Facility
Agent)
of assets Disposed for the
period commencing on the Signature
Date and ending
on
the
Discharge
Date
does
not
exceed
R60,000,000
(sixty
million
Rand)
(excluding the proceeds received on account of the Disposal of Mobikwik;
and
23.6.11.3
the Term/RCF Borrower
is in
compliance with
each of
the financial
undertakings
set
out
in
clause
22.1
(Undertakings
in
relation
to
financial
condition)
120
immediately
prior
to
and
(taking
into
account
the
amount
of
the
proposed
disposal if it were to be implemented) immediately following such disposal.
23.7
Change of business
The Obligors
shall procure
that no
substantial change is
made to
the general
nature of
the
business of any member
of the Covenant
Group or the
Covenant Group as a
whole from that
carried on at the Signature Date.
23.8
Merger
No Obligor
shall (and
the Obligors
shall ensure
that no
other member
of the Covenant
Group
will)
enter
into
any
amalgamation,
demerger,
merger,
unbundling
or
corporate
reconstruction. This restriction does not apply to -
23.8.1
any transaction or combination
of transactions which is
required to be implemented
or
expressly permitted by the terms of this Agreement; or
23.8.2
any
other
amalgamation, demerger,
merger,
unbundling or
corporate
reconstruction
permitted in writing by the Facility Agent.
23.9
Assets
Each Obligor shall (and the Obligors shall ensure that each member of the Covenant Group
will) maintain in good working order and condition
(ordinary wear and tear excepted) all of
its assets necessary in the conduct of its business.
23.10
Acquisitions
No Obligor (other
than Holdco) shall
(and the Obligors
shall ensure that
no other member
of the Covenant Group will)
acquire or subscribe for shares or
other ownership interests in
or equity securities
of any company
or other person,
acquire any business
or incorporate any
company or other person. This restriction
does not apply to the following
transactions (each
a
Permitted Acquisition
) -
23.10.1
the acquisition by a member of the Covenant Group of an asset from another member
of the Covenant Group pursuant to a Permitted Disposal;
23.10.2
an acquisition of shares or equity securities pursuant to a Permitted Share
Issue;
23.10.3
the acquisition of Cash Equivalents;
23.10.4
the incorporation of a company as a member of the Covenant Group, but
only if -
121
23.10.4.1
it is
incorporated in a
jurisdiction in Africa
as a
limited liability company
or if
not
incorporated
in
a
jurisdiction
in
Africa
with
limited
liability,
the
Facility
Agent
has
consented
to
the
incorporation
of
such
company
in
the
relevant
jurisdiction;
23.10.4.2
the aggregate amount paid upon incorporation
or establishment of that company
to capitalise it does not exceed R20,000 (or
its equivalent in any other currency
or currencies);
23.10.4.3
no Default is
continuing on, or
would occur as
a result of,
the incorporation of
that company; and
23.10.4.4
the shares
in the
company,
if held
by an
Obligor (other
than Holdco),
become
subject to Transaction
Security, in form and
substance satisfactory
to the Facility
Agent and
the following
shall be
delivered to
the Facility
Agent in
respect thereof
to the Facility Agent’s satisfaction -
23.10.4.4.1
legal opinions
as to
the capacity
and authority
of the
relevant Obligor
to
grant such Transaction Security and
the enforceability of such
Transaction
Security; and
23.10.4.4.2
copies of
all resolutions
required to
be passed
in respect
of the
authorisation
of the granting of such Transaction Security,
within 30 days of the date of its incorporation;
23.10.5
the
acquisition
of
Recharger
Proprietary
Limited
(
Recharger
)
by
the
Term/RCF
Borrower or Prism Holdings Proprietary Limited (
Prism Holdings
) provided that -
23.10.5.1
no Default has occurred which is continuing;
23.10.5.2
the
sale
of
shares
agreement
concluded
between
the
Term/RCF
Borrower,
Holdco,
Ninety Nine
Holdings
Proprietary Limited
and Imtiaz
Dhooma on
or
about
19
November
2024
(the
Recharger
Sale
Agreement
)
or
any
other
agreement referred
to therein
is not
amended without
the prior
written consent
of the Facility Agent;
23.10.5.3
the consideration payable by the Term/RCF
Borrower or Prism Holdings to the
sellers
in
terms
of
the
Recharger
Sale
Agreement
shall
not
exceed
ZAR507,000,000, of
which ZAR332,000,000
shall be
payable in
cash and
the
balance
thereof
by
the
delivery,
to
the
sellers,
of
ordinary
shares
in
Holdco
122
which,
as
at
the
Signature
Date,
are
held
by
the
Term/RCF
Borrower
(and
if
Prism Holdings
acquires the
shares in
Recharger,
by the
Term/RCF
Borrower
making
such
payments
on
behalf
of
Prism
Holdings
and
creation
of
a
corresponding
loan
account
between
the
Term/RCF
Borrower
and
Prism
Holdings);
23.10.5.4
the
Term/RCF
Borrower shall
(either on
its own
behalf or
on behalf
of Prism
Holdings) loan
an amount
not
exceeding ZAR43,000,000
to
discharge
certain
Financial Indebtedness of Recharger
on the date
on which it
acquires all of
the
shares
in
Recharger
(and
if
the
Term/RCF
Borrower
advances
the
loan
to
Recharger on
behalf of
Prism Holdings,
a corresponding
loan account
shall be
created between the Term/RCF Borrower and Prism Holdings);
23.10.5.5
the
cash
consideration
payable
to
the
sellers
in
terms
of
the
Recharger
Acquisition Agreement
and the
amount contributed
to Recharger
is funded
by
Internally
Generated
Cash
of
the
Covenant
Group
and/or
is
funded
under
the
Senior Term Facilities (subject to the conditions contained therein);
and
23.10.5.6
Recharger
shall become
an Obligor
withing 30
days of
the
date on
which the
Term/RCF
Borrower,
or
Prism
Holdings
(as
applicable),
acquires
all
of
the
shares in Recharger;
23.10.6
an acquisition for cash on arm's length
terms from entities other than Related Parties,
of (i)
at least
the majority
(or acquiring
additional shares
in which
a member
of the
Covenant Group already holds a majority) of the issued share capital and other equity
securities of a limited liability company,
or any business or undertaking carried on as
a
going
concern
(a
Majority
Acquisition
)
funded,
in
each
case,
by
(A)
Internally
Generated Cash (B)
proceeds under the
Facilities,
(C) the transfer of
treasury shares in
Holdco held by the Term/RCF Borrower to the applicable seller but only if -
23.10.6.1
the Term/RCF Borrower has given 10 Business
Days' prior notice to
the Facility
Agent of the intention to make such acquisition;
23.10.6.2
subject
to
clause
23.10.6.3.2
below,
the
company,
business or
undertaking (as
applicable)
has
generated
positive
earnings
before
interest,
tax,
depreciation,
amortisation and impairment charges and positive cash flows (calculated, in the
case of earnings before
interest, tax, depreciation, amortisation and
impairment
charges, on a
pro forma
standalone basis and on substantially the same basis
as
Consolidated EBITDA,
except that
references to
the Term/RCF
Borrower will
be
construed
as
references
to
that
Subsidiary,
company
or
business),
for
the
123
12 month period ending on
the most recent month-end
prior to the
closing date
for
that
acquisition
(or,
if
not
ascertainable,
for
the
financial
year
of
that
company, business or
undertaking most recently ended prior to the closing
date
for such acquisition);
23.10.6.3
the acquiring entity procures that Security
for the benefit of the
Finance Parties
(and
the
documents
evidencing
or
creating
that
Security
to
be
in
form
and
substance satisfactory to the
Facility Agent) is provided
by all shareholders (and
not only the acquiring entity) over all
the issued shares in and claims against
the
company acquired and the
following shall be
delivered to the
Facility Agent in
respect thereof to the Facility Agent’s satisfaction -
23.10.6.3.1
legal opinions as to the capacity and authority
of the relevant shareholders
to
grant
such
Transaction
Security
and
the
enforceability
of
such
Transaction Security; and
23.10.6.3.2
copies of
all resolutions
required to
be passed
in respect
of the
authorisation
of the granting of such Transaction Security;
23.10.6.3.3
the gross amount
of consideration payable
by any member
of the Covenant
Group
in
relation
to
such
acquisition,
when
taken
together
with
the
aggregate
amount
of
gross
consideration
applied
in
funding
any
other
Majority Acquisitions
under this
clause
23.10.6.3.2
, does
not at
any time
exceed R500,000,000 (or its equivalent in another currency or currencies)
plus any amount which the
Term/RCF Borrower was entitled to Distribute
to Holdco
but that
was not
Distributed less
the aggregate
amount paid
in
relation to any
Minority Acquisitions
(as defined in
clause
23.10.9)
funded
out of Internally Generated Cash or the proceeds of the Facilities; and
23.10.6.4
the Term/RCF Borrower
is in
compliance with
each of
the financial
undertakings
set
out
in
clause
22.1
(Undertakings
in
relation
to
financial
condition)
immediately prior to and (taking into
account the proposed acquisition if
it were
to be made) immediately following the implementation of such acquisition;
23.10.6.5
no Default is continuing or would occur as a result of that acquisition;
or
23.10.7
an acquisition for cash on arm's length
terms from entities other than Related Parties,
of
Majority
Acquisitions,
funded
by
(A)
Shareholder
Contributions
and/or
(B)
the
transfer of treasury
shares in
Holdco held by
the Term/RCF Borrower to
the applicable
seller but only if -
124
23.10.7.1
the Term/RCF Borrower has given 10 Business
Days' prior notice to
the Facility
Agent of the intention to make such acquisition;
23.10.7.2
the applicable
entity,
business or
undertaking to
be acquired
is congruent
with
the Covenant Group's strategy;
23.10.7.3
the
company,
business
or
undertaking
(as
applicable)
has
generated
positive
earnings before interest, tax, depreciation, amortisation and impairment charges
and positive cash
flows (calculated, in
the case of
earnings before interest,
tax,
depreciation, amortisation
and impairment
charges, on
a
pro
forma
standalone
basis and on substantially the
same basis as Consolidated EBITDA, except
that
references
to
the
Term/RCF
Borrower
will
be
construed
as
references
to
that
Subsidiary,
company or business),
for the 12 month
period ending on
the most
recent
month-end
prior
to
the
closing
date
for
that
acquisition
(or,
if
not
ascertainable,
for
the
financial year
of
that
company,
business
or
undertaking
most recently ended prior to the closing date for such acquisition);
23.10.7.4
if
the
acquiring
entity
is
an
Obligor
(or
required
to
become
an
Obligor),
it
procures that Security for the benefit of the
Finance Parties (and the documents
evidencing or creating
that Security to
be in form
and substance satisfactory
to
the Facility
Agent) is
provided by
all shareholders
(and not
only the
acquiring
entity) over all
the issued shares
in and claims
against the company
acquired and
the following
shall be
delivered to
the Facility
Agent in
respect thereof
to the
Facility Agent’s satisfaction -
23.10.7.4.1
legal opinions as to the capacity and authority
of the relevant shareholders
to
grant
such
Transaction
Security
and
the
enforceability
of
such
Transaction Security; and
23.10.7.4.2
copies of
all resolutions
required to
be passed
in respect
of the
authorisation
of the granting of such Transaction Security;
23.10.7.5
the Term/RCF Borrower
is in
compliance with
each of
the financial
undertakings
set
out
in
clause
22.1
(Undertakings
in
relation
to
financial
condition)
immediately prior to and (taking into
account the proposed acquisition if
it were
to be made) immediately following the implementation of such acquisition;
23.10.7.6
no Default is continuing or would occur as a result of that acquisition;
125
23.10.8
an acquisition for cash on arm's length
terms from entities other than Related Parties,
of
a
Majority
Acquisition
if
such
entity
has
not
generated
positive
earnings
before
interest,
tax,
depreciation,
amortisation
and
impairment
charges
or
not
generated
positive
cash
flows
(calculated,
in
the
case
of
earnings
before
interest,
tax,
depreciation, amortisation
and impairment
charges, on
a
pro
forma
standalone basis
and on substantially
the same basis
as Consolidated EBITDA, except
that references
to the
Term/RCF Borrower
will be
construed as
references to
that Subsidiary, company
or business), for
the 12 month period
ending on the
most recent month-end
prior to the
closing date for that
acquisition (or, if
not ascertainable, for the
financial year of that
company,
business or
undertaking most
recently ended
prior to
the
closing date
for
such
acquisition),
funded
by
(A)
Shareholder
Contributions
or
(B)
Internally
Generated Cash of but only if -
23.10.8.1
the Term/RCF Borrower has given 10 Business
Days' prior notice to
the Facility
Agent of the intention to make such acquisition;
23.10.8.2
the applicable
entity,
business or
undertaking to
be acquired
is congruent
with
the Covenant Group's strategy;
23.10.8.3
the Term/RCF Borrower
is in
compliance with
each of
the financial
undertakings
set
out
in
clause
22.1
(Undertakings
in
relation
to
financial
condition)
immediately prior to and (taking into
account the proposed acquisition if
it were
to be made) immediately following the implementation of such acquisition;
23.10.8.4
the
gross
amount
of
consideration
payable
by
any
member
of
the
Covenant
Group
in
relation to
such acquisition,
when taken
together
with the
aggregate
amount of
gross consideration
applied in
funding any
other acquisitions
under
this clause
23.10.8
, does not at any time exceed R100,000,000 (or its equivalent
in another currency or currencies); and
23.10.8.5
no Default is continuing or would occur as a result of that acquisition;
23.10.9
the acquisition
by a
member of
the Covenant
Group of
20% or
more of the
issued share
capital and other equity securities of a limited
liability company but less than 50% of
the issued
share capital
and other
equity securities
of a
limited liability
company (a
Minority Acquisition
) -
23.10.9.1
funded out of -
126
23.10.9.1.1
either Internally Generated
Cash or the proceeds
of the Facilities,
provided
that the requirements in
clauses
23.10.6.1
,
23.10.6.2
,
23.10.6.4
,
23.10.6.5
are met in respect of that Minority Acquisition
mutatis mutandis
; or
23.10.9.1.2
Shareholder
Contributions,
provided
that
the
requirements
in
clauses
23.10.7.1
,
23.10.7.2
,
23.10.7.3
,
23.10.7.5
and
23.10.7.6
are met in respect
of that Minority Acquisition,
mutatis mutandis
;
23.10.9.2
the
gross
amount
of
consideration
payable
by
any
member
of
the
Covenant
Group
in
relation to
such acquisition,
when taken
together
with the
aggregate
amount of
gross consideration
applied in
funding any
other acquisitions
under
this clause
23.10.9
, does not at any time exceed R300,000,000 (or its equivalent
in another currency or currencies); and
23.10.9.3
if
the
acquiring
entity
is
an
Obligor
(or
required
to
become
an
Obligor),
it
procures that Security for the benefit of the
Finance Parties (and the documents
evidencing or creating
that Security to
be in form
and substance satisfactory
to
the Facility Agent) is
provided by the acquiring entity
over the issued shares in
and claims against the company
acquired and the following
shall be delivered to
the Facility Agent in respect thereof to the Facility Agent’s satisfaction -
23.10.9.3.1
legal opinions as
to the
capacity and
authority of the
relevant member of
the
Covenant
Group
to
grant
such
Transaction
Security
and
the
enforceability of such Transaction Security; and
23.10.9.3.2
copies of
all resolutions
required to
be passed
in respect
of the
authorisation
of the granting of such Transaction Security;
23.10.10
the acquisition by a member of
the Covenant Group of Holdco's shares and
claims in
Kwande, provided that the Term/RCF Borrower has provided the Facility Agent with
at
least
30
Business
Days
prior
written
notice
thereof
and
the
Facility
Agent
has
notified the Term/RCF
Borrower that the Finance
Parties are satisfied with
the terms
and conditions of that acquisition prior to the implementation thereof;
23.10.11
any acquisition expressly permitted in writing by the Facility Agent.
23.11
Joint Ventures
23.11.1
No Obligor shall (and the Obligors
shall ensure that no other
member of the Covenant
Group will) -
127
23.11.1.1
enter into, invest
in or acquire
(or agree to
acquire) any shares,
stocks, securities,
partnership interest or other interest in any Joint Venture; or
23.11.1.2
transfer any
assets to
or lend
to or
guarantee or
give an
indemnity for
or grant
any
security
interest
for
the
obligations
of
a
Joint
Venture
or
maintain
the
solvency of, or provide
working capital to, any
Joint Venture (or agree to do any
of the foregoing).
23.12
Loans out
No Obligor (other
than Holdco) shall
(and the Obligors
shall ensure that
no other member
of
the
Covenant
Group will)
be a
creditor in
respect of
any
Financial Indebtedness.
This
restriction does not apply to the following items (each a
Permitted Loan
) -
23.12.1
trade credit extended
by a
member of the
Covenant Group
(save for EasyPay
Financial
Services Proprietary Limited and EasyPay Proprietary Limited) to
its customers -
23.12.1.1
on its standard terms
(unless the terms
of that trade
credit are more favourable
to
it than those standard terms);
23.12.1.2
in the ordinary course of its trading activities; and
23.12.1.3
which has a credit term of not more than 120 days;
23.12.2
loans
provided
by
EasyPay
Financial
Services
Proprietary
Limited
and
EasyPay
Proprietary Limited to their customers -
23.12.2.1
on their standard terms;
23.12.2.2
in the ordinary course of its trading activities; and
23.12.2.3
which has a credit term of not more than 12 Months;
23.12.3
the
loan
by
the
Term/RCF
Borrower
to
Recharger
in
an
amount
not
exceeding
ZAR43,000,000 as envisaged in the Recharger Acquisition Agreement to be made on
the
date
on
which
the
Term/RCF
Borrower
acquires
all
of
the
issued
shares
in
Recharger and as further envisaged in clause
23.10.5
, provided that such agreement is
not amended without the prior written consent of the Facility Agent;
23.12.4
loans
provided
by
the
Term/RCF
Borrower
to
Holdco,
which
shall
not
exceed
an
aggregate of the ZAR
equivalent of USD10,000,000 (Indexed) in any
Financial Year
less (i)
the amount
of any
Kwande Distributions received
in that
Financial Year
and
128
(ii) the
amount of
any Distributions
made by
the Term/RCF
Borrower to
Holdco in
any Financial Year in accordance with clause
23.21.2
, provided that -
23.12.4.1
any
and
all
Authorisations
required
by
any
regulatory
authority
(including
without limitation
the Financial
Surveillance Department
of the
South African
Reserve Bank) to make such loan has been obtained;
23.12.4.2
no other amount due
and payable under the
Senior Facilities remains unpaid as
at the date on which the payment is proposed to be made;
23.12.4.3
no Default is then continuing or would result from that payment;
23.12.4.4
taking
into
account
the
amount
of
the
proposed
loan
if
it
were
to
be
made
immediately
prior
to
and
immediately
following
such
payment
each
of
the
financial
undertakings
set
out
in
clause
22.1
(Undertakings
in
relation
to
financial condition)
has been
met, as
prima facie
evidenced by
delivery to
the
Facility Agent
of a
certificate in
the agreed
form signed
the chief
financial officer
of the Group and at least one director of the Term/RCF Borrower setting out (in
reasonable
detail)
computations
of
such
compliance
(and
which
includes
pro
forma
adjustments to take into account the amount of the proposed payment);
23.12.5
loans provided by -
23.12.5.1
one Obligor to another Obligor (other than Holdco);
and/or
23.12.5.2
an Obligor to another
member of the Covenant Group
(which is not an
Obligor
in
the
Covenant
Group)
or
a
third
party,
provided
that
the
loans
outstanding
together with
the indebtedness
incurred in
accordance with
clauses
23.5.1.18
and
23.13.10
do not exceed ZAR50,000,000 at any time;
23.12.5.3
a member of the Covenant Group which is not an
Obligor to another member of
the
Covenant
Group
which
is
not
an
Obligor
in
the
Covenant
Group
or
an
Excluded
Subsidiary,
provided
that
the
loans
outstanding
do
not
exceed
ZAR50,000,000 at any time;
23.12.6
any loan which is made pursuant to the Permitted Cash Management
Arrangement;
23.12.7
loans or credit expressly permitted in writing by the Facility Agent;
129
23.12.8
loans or credit not otherwise permitted by this clause above provided by a member of
the Covenant Group to
its customers, provided that
it may only provide
loans or credit
under this clause
23.12.8
in the regular and ordinary course of business -
23.12.8.1
if no Default is then continuing nor would result from such provision;
23.12.8.2
to
persons
that
are
not
direct
or
indirect
shareholders
of
Holdco
and/or
any
related or interrelated persons
(as defined in the Companies
Act) to any direct
or
indirect shareholders of Holdco;
23.12.8.3
if such
loan is
not to
a Sanctioned
Entity and
will not
constitute a
Sanctioned
Transaction; and
23.12.8.4
the Term/RCF Borrower
is in
compliance with
each of
the financial
undertakings
set
out
in
clause
22.1
(Undertakings
in
relation
to
financial
condition)
immediately prior to
and (taking into
account the
amount of the
proposed loan
or credit
if it
were to
be provided)
immediately following
the advance
of such
loan or credit.
23.13
Third party guarantees
No Obligor
shall (and
the Obligors
shall ensure
that no
other member
of the Covenant
Group
will)
incur
or
allow
to
remain
outstanding
any
guarantee
or
suretyship
in
respect
of
any
obligation of
any person.
This
restriction does
not apply
to
the
following (in
each
case a
Permitted Guarantee
) -
23.13.1
any guarantee arising under the Finance Documents;
23.13.2
guarantees provided
by Holdco
to a
seller in
respect of
an acquisition,
provided that
such acquisition
is a
Permitted Acquisition
contemplated in
clause
23.10.6
,
23.10.7
,
23.10.8
,
23.10.9
, or
23.10.11.
23.13.3
guarantees by
Obligors in
the Covenant
Group in
respect of
the Permitted
Financial
Indebtedness of other Obligors in the Covenant Group;
23.13.4
any guarantee required
to be
given to any
municipality or utility
provider, and
made
by a member of the Covenant Group in the regular and ordinary course
of business;
23.13.5
any guarantee provided by a member of the Covenant Group to a third party
financier
of an
Excluded Subsidiary, provided
that the
Facility Agent
is satisfied
that the
liability
130
of that member of the Covenant Group is limited
to the shares and claims held by that
member of the Covenant Group in the applicable Excluded Subsidiary;
23.13.6
any guarantee
provided by
the Term/RCF
Borrower to
RMB in
connection with
the
guarantee
facility
provided
by
RMB
to
Sandulela
Technology
Proprietary
Limited,
registration
number
2002/021487/07,
in
terms
of
a
working
capital
facility
letter
reference no: CM/01/Sandulela/2025,
as may be amended,
varied, restated or
replaced
from time
to time
(the
Facility Letter
), provided
that the
aggregate amount
payable
by
the
Term/RCF
Borrower
in
terms
of
that
guarantee
shall
not
exceed
ZAR30,000,000, together with interest,
costs and expenses relating
thereto as set out
in the Facility Letter;
23.13.7
any guarantee given by
a member of the
Covenant Group in relation
to the Financial
Indebtedness envisaged in clause
23.5.1.3;
23.13.8
any
suretyship
and/or
guarantee
entered
into
pursuant
to
the
Permitted
Cash
Management Arrangement;
23.13.9
any guarantee expressly permitted in writing by the Facility Agent;
23.13.10
a
guarantee
(i)
provided
by
an
Obligor
in
the
Covenant
Group
for
the
Financial
Indebtedness of another Obligor in
the Covenant Group, or
(ii) provided by an
entity
which
is
not
an
Obligor
in
the
Covenant
Group
for
the
Financial
Indebtedness
of
another
entity
which
is
not
an
Obligor
in
the
Covenant
Group
,
provided
that
the
aggregate
indebtedness
pursuant
to
this
clause
and
clauses
23.5.1.18
(Financial
Indebtedness) and
23.12.5.2
does not
at any
time exceed
R50,000,000 (or
its equivalent
in
another
currency
or
currencies),
and
the
remainder
of
the
provisions
of
clause
23.5.1.18
are complied with,
mutatis mutandis
; and
23.13.11
the
Facility
Agent
has,
in
relation
to
any
guarantee
or
indemnity
that
replaces
the
guarantee
or
indemnity
that
is
in
effect
as
at
the
Closing
Date
(the
Existing
Guarantee/Indemnity
), confirmed
that it is
satisfied with the
form of the
replacement
guarantee
or
indemnity
and
such
form
of
guarantee
or
indemnity,
as
well
as
the
Existing Guarantee/Indemnity,
is not
amended or
replaced without
the express
prior
written consent of the Facility Agent.
23.14
Treasury Transactions
131
23.14.1
No Obligor shall (and the Obligors
shall ensure that no other
member of the Covenant
Group will) enter into any Treasury Transaction. This restriction does
not apply to the
following Treasury Transactions (each a
Permitted Treasury Transaction
) -
23.14.1.1
spot and
forward delivery
foreign exchange
contracts entered
into in
the ordinary
course of business -
23.14.1.1.1
under a WCF Agreement;
or
23.14.1.1.2
with any other
financial institution, provided that
no Security is
provided
to
such
financial
institution
and
the
aggregate
Financial
Indebtedness
incurred by the members
of the Covenant Group falls
within the amounts
set out in clause
23.5.1.18,
but not for speculative purposes; or
23.14.1.2
any Treasury Transaction expressly permitted in writing by the Facility Agent.
23.15
Arm's length transactions
No Obligor
shall (and
the Obligors
shall ensure
that no
other member
of the Covenant
Group
will) enter
into any transaction
with any
person, otherwise than
on arm's-length
terms and
for full market value, save for -
23.15.1
loans
made
or
credit
provided
by
members
of
the
Covenant
Group
as
permitted
in
terms of this Agreement;
23.15.2
transactions
between
members
of
the
Covenant
Group
concluded
in
the
ordinary
course
of
business
and,
in
circumstances
where
one
or
more
of
the
parties
to
such
transactions are not wholly owned
Subsidiaries of the Term/RCF
Borrower, on arms'
length terms.
23.16
Insurance
23.16.1
In this clause a
prudent owner
means a prudent owner and operator of any business,
and of
assets of
a type
and size,
similar in
all cases
to those
owned and
operated by
any member of the Covenant Group in a similar location.
23.16.2
Each
Obligor
shall
(and
the
Obligors
shall
ensure
that
each
other
member
of
the
Covenant Group will) ensure that its Insurances -
132
23.16.2.1
insure it for its
insurable interest in respect of
all risks which are required
to be
insured
against
under
any
applicable
law
or
regulation
and
which
a
prudent
owner would insure against;
23.16.2.2
insure
it
against
losses
arising
from
business
interruption
(if
a
prudent
owner
would do so); and
23.16.2.3
in the case of any other
asset or risk, provide cover
up to a limit which a
prudent
owner would buy.
23.16.3
Each
Obligor
shall
(and
the
Obligors
shall
ensure
that
each
other
member
of
the
Covenant Group will) -
23.16.4
ensure that
its Insurances
are underwritten
by an
insurance company
or underwriter
which is of
international standing and
is not a
captive insurer which
is a member
of the
Covenant Group; and
23.16.5
ensure the
terms of its
Insurances are
no less favourable
than those which
are generally
available to a prudent owner, and subject to no greater excess, deductible or retention
than a prudent owner of its assets and businesses would carry.
23.17
Insurances - Notice under the Short-Term Insurance Act
23.17.1
Each
Obligor
confirms, in
respect
of
all
Insurances
required to
be maintained
by it
under
the
Finance
Documents, that
it
is
aware
and fully
appraised of
the
following
choices it has
under section 43
of the Short-Term
Insurance Act, 1998
(
Short-Term
Insurance Act
) -
23.17.1.1
a
choice
of
entering
into
a
new
policy
contract,
making
available
an
existing
policy contract or using a combination of those options; and
23.17.1.2
a choice as to the identity
of the insurer (if a new
policy contract is to be entered
into)
and
the
person
(if
any)
who
is
to
render
services
as
intermediary
in
connection with the transaction; and
23.17.1.3
subject to
the provisions
of this
Agreement, a
choice as
to
whether or
not the
value of the relevant
policy contracts will exceed
the value of the
interests of the
Finance Parties.
23.17.2
This clause
23.17
constitutes written notification to the Obligors of
their rights under
section 43 of the
Short-Term Insurance Act.
Regardless of the sequence in which
the
133
Finance Documents
are executed,
no benefits
under any
policy contract
made available
to the
Finance Parties under
a Finance
Document shall accrue
to the
Finance Parties
before the Signature Date.
23.17.3
Each Obligor confirms that it
exercised its freedom of choice
under section 43 of the
Short-Term
Insurance Act and
that it
was not
subject to
any coercion
or inducement
as to the manner in which that freedom of choice was exercised.
23.18
Intellectual Property Rights
23.18.1
Except as provided below, each Obligor shall (and the Obligors shall ensure that each
other member of the Covenant Group will) -
23.18.1.1
make
any
registration and
pay
any
fee
or
other amount
which is
necessary to
retain
and
protect
the
Intellectual
Property
Rights
which
are
material
to
the
business of a member of the Covenant Group;
23.18.1.2
record its interest in those Intellectual Property Rights;
23.18.1.3
take
such
steps
as
are
necessary
and
commercially
reasonable
(including
the
institution
of
legal
proceedings)
to
prevent
third
parties
infringing
those
Intellectual Property Rights;
23.18.1.4
not use or permit any such
Intellectual Property Right to
be used in a way which
may, or take or omit
to take any
action which
may, adversely affect the existence
or value of such Intellectual Property Right; and
23.18.1.5
not grant any licence
in respect of
those Intellectual Property
Rights, without the
express prior consent of the Facility Agent.
23.18.2
Clause
23.18.1
above
does
not
apply
to
licence
arrangements
entered into
between
members of the Covenant Group for so long as
they remain members of the Covenant
Group or to licence arrangements entered into
on normal commercial terms and in
the
ordinary course of its business.
23.19
Environmental matters
23.19.1
Each Obligor shall
(and the Obligors
shall ensure that
each other
member of the
Group
will) -
23.19.1.1
comply with
all Environmental
Law to
which it
is subject
in all
material respects;
134
23.19.1.2
obtain, maintain and ensure compliance with all Environmental Permits that are
required to carry on its business in the ordinary course; and
23.19.2
implement procedures to
monitor compliance with
and to prevent
liability under any
Environmental Law, including monitoring adequate
financial provisioning as
required
in respect thereof.
23.19.3
Each Obligor shall -
23.19.3.1
as
soon
as
reasonably
practicable
and,
in
any
event,
within
30
days
upon
becoming aware of the same, inform the Facility Agent
in writing of any breach
of
Environmental
Law
by
any
member
of
the
Group,
where
the
breach
of
Environmental Laws is
material to the
conduct of the
business of
a member of
the Group or is reasonably likely to result in any liability for a Finance
Party;
23.19.3.2
as soon as reasonably possible and,
in any event, within 14 days
upon becoming
aware of
the same
(or such
longer period
as the
Facility Agent
may agree)
inform
the Facility Agent in writing of -
23.19.3.2.1
any
Environmental
Claim
against
it
or
any
other
member
of
the
Group
which is current, pending or threatened; and
23.19.3.2.2
any
facts
or
circumstances
which
are
reasonably
likely
to
result
in
any
Environmental
Claim
being
commenced
or
threatened
against
it
or
any
other member of the Group,
where the
Environmental Claim
is material
to the
conduct of
the business
of a
member of
the Group
or is
reasonably likely
to result
in any
liability for
a Finance
Party;
23.19.3.3
as
soon
as
reasonably
practicable
following
request
by
the
Facility
Agent,
prepare and deliver to the Facility Agent -
23.19.3.3.1
a written
report, in form
and substance satisfactory
to the
Facility Agent,
in
respect
of
any
such
breach
of
Environmental
Law
or
any
actual
or
threatened Environmental Claim; and
23.19.3.3.2
a corrective action plan
in respect of any
failure by a member
of the Group
to
comply
with
Environmental Laws
(being
a
written
plan,
in
form
and
substance
satisfactory
to
the
Facility
Agent,
to
remedy
any
actual
or
potential adverse consequences of any such failure).
135
23.19.4
The
Term/RCF
Borrower
hereby
indemnifies
each
Finance
Party
and
its
officers,
employees, agents and delegates (together
the
Indemnified Parties
) against any loss
or liability suffered or incurred by that Indemnified Party (except to the extent caused
by such Indemnified Party's own gross negligence or wilful default) which -
23.19.4.1
arises
by
virtue
of
any
actual
or
alleged
breach
of
any
Environmental
Law
(whether by any Obligor, an Indemnified Party or any other person); or
23.19.4.2
arises in connection with an Environmental Claim,
which relates to
the Group,
any assets
of the
Group or the
operation of all
or part of
the
business
of
the
Group
(or,
in
each
case,
any
member
of
the
Group)
and
which
would not have arisen
if the Finance Documents
or any of them
had not been executed
by that Finance Party.
23.20
Share capital
23.20.1
No Obligor shall (and the Obligors
shall ensure that no other
member of the Covenant
Group will) -
23.20.1.1
redeem, purchase,
defease, retire
or repay
any of
its shares
or share
capital (or
any instrument convertible into shares or share capital) or resolve to do
so;
23.20.1.2
issue any shares (or
any instrument convertible
into shares) which by
their terms
are redeemable or
carry any right
to a return
prior to the
Final Discharge Date;
or
23.20.1.3
issue
any shares
or
share capital
(or any
instrument convertible
into shares
or
share capital) to any person.
23.20.2
Clauses
23.20.1.2
and
23.20.1.3
above do
not apply
to the
following (each
a
Permitted
Share Issue
) -
23.20.2.1
the issue of shares by a member of the Covenant Group which is not an Obligor
to another member of the
Covenant Group, provided
that those shares are
issued
to the existing shareholders of that member of the Covenant Group;
23.20.2.2
the
issue
of
shares
by
an
Obligor
or
a
member
of
the
Group
which
is
not
an
Obligor to
another Obligor,
provided that
if
any shares
in
the
Obligor issuing
those shares are the subject
of Transaction Security, any further shares so issued
136
become
the
subject
of
an
equivalent
Security
for
the
benefit
of
the
Finance
Parties on the same terms;
23.20.2.3
any issue of
shares by Holdco
provided that such
issue does not
lead to a
Control
Event;
23.20.2.4
an issue
of shares
to a
person with
the express
prior consent
of the
Facility Agent.
23.21
Distributions
23.21.1
No
Obligor
(other
than
Holdco)
shall
(and
the
Obligors
shall
ensure
that
no
other
member of the Covenant Group will)
make any distribution. This restriction does not
apply to the following distributions (each a
Permitted Distribution
) -
23.21.1.1
any cash distribution by
a member of the
Covenant Group to its
direct Holding
Company that is another member of the Covenant Group;
23.21.1.2
any cash distribution by a member of the Covenant Group to any of its
minority
shareholders provided such distribution is in relation to a dividend declared
pro
rata
between all shareholders of that member of the Covenant Group;
23.21.1.3
any other distribution made with
the express prior consent of the
Facility Agent.
23.21.2
The Term/RCF Borrower may make payment of a cash distribution to Holdco, -
23.21.2.1
which shall not
exceed an aggregate of
the ZAR equivalent
of USD10,000,000
(Indexed) in any Financial
Year less (i) the amount of any
Kwande Distributions
received
in
that
Financial Year
and
(ii)
the
amount
of
any loans
made
by
the
Term/RCF
Borrower to
Holdco in
any Financial
Year
as permitted
in terms
of
clause
23.12.4
, provided that -
23.21.2.1.1
any and all Authorisations required by any regulatory authority (including
without
limitation
the
Financial
Surveillance
Department
of
the
South
African Reserve Bank) to make such Distribution has been obtained;
23.21.2.1.2
no
other
amount
due
and
payable
under
the
Senior
Facilities
remains
unpaid as at the date on which the payment is proposed to be made;
23.21.2.1.3
no Default is then continuing or would result from that payment;
23.21.2.1.4
taking into
account the
amount of
the proposed
payment if
it were
to be
made immediately prior to and immediately following such payment each
137
of
the
financial
undertakings
set
out
in
clause
22.1
(Undertakings
in
relation to financial condition) has been met,
as
prima facie
evidenced by
delivery to the Facility Agent of a certificate in the agreed form signed by
the
chief
financial
officer
of
the
Group
and
at
least
one
director
of
the
Term/RCF
Borrower
setting
out
(in
reasonable
detail)
computations
of
such compliance
(and which includes
pro forma
adjustments to
take into
account the amount of the proposed payment); and
23.21.2.2
in addition to
the cash distribution
envisaged in
clause
23.21.2.1
, if the
following
conditions are met -
23.21.2.2.1
the Term/RCF
Borrower has
given 10
Business Days'
prior notice
to the
Facility Agent of the intention to make such payment;
23.21.2.2.2
a
Compliance
Certificate
for
the
Measurement
Period
ending
on
the
Measurement Date immediately preceding
the date on which
that payment
is proposed to be made has been delivered to the Facility Agent;
23.21.2.2.3
taking into
account the
amount of
the proposed
payment if
it were
to be
made -
23.21.2.2.3.1
immediately prior to and immediately following such payment -
23.21.2.2.3.1.1
the
ratio
of
Total
Borrowings
immediately
prior
to
and
following such
payment to
Consolidated EBITDA
for the
12
Month period ending on the most recent
Measurement Date is
less than 2.00; and
23.21.2.2.3.1.2
each
of
the
financial
undertakings
set
out
in
clause
22.1
(Undertakings in relation to financial condition) has been met;
and
23.21.2.2.3.2
for
the
next
three
Measurement
Periods
ending
on
the
three
Measurement Dates immediately following
that payment each of the
financial
undertakings
set
out
in
clause
22.1
(Undertakings
in
relation
to
financial
condition)
(on
the
basis
of
reasonable
assumptions) are forecast to be met,
in each case, as
prima facie
evidenced by delivery to the Facility Agent of
a certificate in the agreed form
signed by the chief financial officer
of the
Group and at least one director
of the Term/RCF
Borrower setting out (in
138
reasonable detail)
computations of
such compliance
(and which
includes
pro
forma
adjustments
to
take
into
account
the
amount
of
the
proposed
payment);
23.21.2.2.4
all amounts payable
under clause
9
(Prepayment offers and
priorities) have
been received in full by the relevant Lenders;
23.21.2.2.5
any
and
all
Authorisations(including
without
limitation
the
Financial
Surveillance Department of the South African
Reserve Bank) required by
any regulatory authority to make such Distribution has been obtained;
23.21.2.2.6
no
other
amount
due
and
payable
under
the
Senior
Facilities
remains
unpaid as at the date on which the payment is proposed to be made;
23.21.2.2.7
no Default is then continuing or would result from that payment;
23.21.2.2.8
that payment is not prohibited under any applicable law; and
23.21.2.2.9
no more than
two such payments
may be made
during any financial
year
of the Group.
23.22
Taxes
23.22.1
Each Obligor shall
(and the Obligors
shall ensure that
each other
member of the
Group
will) pay and discharge all
Taxes imposed
upon it or its assets
within the time period
allowed without incurring penalties unless and only to the extent that -
23.22.1.1
such payment is being contested in good faith;
23.22.1.2
the amount
under dispute
is not
in excess
of 2%
in aggregate
of Consolidated
EBITDA (calculated with reference
to Holdco's most recently
delivered annual
financial statements);
23.22.1.3
adequate reserves are being
maintained for those Taxes and the costs
required to
contest them which have been disclosed in its latest financial statements;
and
23.22.1.4
such payment can be lawfully withheld.
23.22.2
No member of the Group may change its residence for Tax purposes.
23.23
Amendments to documents
139
23.23.1
No
Obligor
(other
than
Holdco)
shall
(and
the
Obligors
shall
ensure
that
no
other
member of the Covenant Group will) -
23.23.1.1
amend its memorandum of incorporation or other constitutional documents;
23.23.1.2
amend
or
waive
any
term
of
any
document
delivered
to
the
Facility
Agent
pursuant to clause
5.1
(Initial conditions precedent),
without the express prior written
consent of the Facility Agent
or which are minor or
administrative
in
nature
and
will
not
adversely
affect
the
interests
of
the
Finance
Parties.
23.23.2
The Term/RCF
Borrower must
promptly supply
to the
Facility Agent
a copy
of any
amendment to any of the documents referred to in clause
23.23.1
above.
23.24
Access
23.24.1
Upon reasonable
notice by
the
Facility Agent,
each Obligor
shall (and
the Obligors
shall
ensure
that
each
other
member
of
the
Group
will)
allow
any
one
or
more
representatives of
the Finance
Parties and/or
accountants or
other professional
advisers
appointed by
the Finance
Parties to have
access during normal
business hours to
the
premises, assets, books and records of that member of the Group.
23.24.2
The Facility
Agent may
not give
notice under clause
23.24.1
above more than
twice
every financial year, unless it
reasonably believes that a Default is continuing or may
have occurred or may occur and notifies the Term/RCF
Borrower that it is exercising
its rights under this clause
23.24.
23.25
Anti-corruption laws and Sanctions
23.25.1
No Obligor
shall (and
the Obligors
shall ensure
that no
other member
of the
Group
will) -
23.25.1.1
contravene any Sanctions;
23.25.1.2
at any
time be
a party
to or
participate in
a Sanctioned
Transaction in
any manner;
or
23.25.1.3
directly
or
indirectly
use
the
proceeds
of
any
Facility
for
any
purpose
which
would breach
the Prevention
and Combatting
of Corrupt
Activities Act,
2004,
the
United
Kingdom
Bribery
Act
2010,
the
United
States
Foreign
Corrupt
Practices Act of 1977 or other similar legislation in other jurisdictions.
140
23.25.2
Each Obligor shall (and Holdco shall ensure that each member of
the Group will) -
23.25.2.1
take all
reasonable steps
to ensure
that appropriate
controls and
safeguards are
in place, designed to prevent it or any other member of
the Group from being or
becoming involved in a Sanctioned Transaction; and
23.25.2.2
conduct its
businesses in
compliance with
applicable anti-corruption
laws and
maintain policies and
procedures designed to
promote and
achieve compliance
with such laws.
23.26
Further Transaction Security
23.26.1
Each
Additional
Guarantor
shall,
immediately
upon
becoming
an
Additional
Guarantor, execute and deliver to
the Debt Guarantor (on
behalf of the Facility
Agent)
such Security Documents, in form and substance satisfactory to the Facility Agent, as
may
be
necessary
to
ensure
that
all
of
the
Transaction
Security
required
under
Annexure
G
(Transaction
Security)
from
it
is
established
in
favour
of
the
Debt
Guarantor over all of its assets.
23.26.2
If,
after
the
Closing Date
or
the
date
upon which
it became
an
Obligor,
an Obligor
(other than
Holdco) acquires
any relevant
assets (including
any shares
or ownership
interests
in
and/or
claims
against
any
person)
over
which it
is
required
to
establish
Transaction Security
pursuant to Annexure G
(Transaction Security), it
shall execute
and deliver
to the
Debt Guarantor
such Security
Documents, in
form and
substance
satisfactory to the Facility Agent, as may be necessary to ensure that at all times such
required
effective
first-ranking
Transaction
Security
is
established
in
favour
of
the
Debt
Guarantor
over
those
assets,
within
10
Business
Days
of
being
acquired
(in
respect
of
any
such
assets
situated,
or
entity
established,
in
South
Africa)
or
30 Business Days
of being
acquired (in
respect of
any such
assets situated,
or entity
established, in another jurisdiction).
23.26.3
If, at any
time after the
Closing Date, the
aggregate of the
gross assets, EBITDA
(as
defined
in
clause
2.1.101.4
above)
or
total
revenue
of
the
Subsidiaries
of
the
Term/RCF
Borrower
which
are
members
of
the
Covenant
Group
incorporated
in
a
jurisdiction outside South Africa, and who are not Obligors at that time, (the
Non-SA
Subsidiaries
) equal
or exceed
10% of
Consolidated EBITDA
or 10%
of the
total assets
or total revenue of the
Covenant Group, as evidenced by reference to the
most recent
Compliance
Certificate,
financial
statements
of
any
such
Subsidiary
and
the
consolidated financial statements or management accounts of
the Covenant Group or
SEC Form
(as applicable),
then the
Term/RCF Borrower must
procure that
the relevant
141
member or
members of
the Covenant
Group holding
shares, equity
securities and
other
ownership interests in any such
Non-SA Subsidiaries enter into Security
Documents,
in
form
and
substance
satisfactory
to
the
Facility
Agent,
in
favour
of
the
Debt
Guarantor to
establish the
Security equivalent
to that
described in
clause 1.2
(South
African
Obligors
and
Material
Subsidiaries)
of
Annexure
G
(Transaction
Security)
over all its
shares, equity securities
and other ownership
interests it holds,
from time
to
time,
in
any
such
Non-SA
Subsidiary
(together
with
all
its
debt
claims
(on
shareholder loan
account or
otherwise) against
that Non-SA
Subsidiary), in
relation
only
to
so
many
of
such
Non-SA
Subsidiaries
as
is
required
to
ensure
that
if
the
financial
position
of
such
Non-SA
Subsidiaries
were
not
taken
into
account
in
calculating the gross assets, EBITDA or total revenue of all Non-SA Subsidiaries,
the
aggregate of (i) the EBITDA of
the Non-SA Subsidiaries would be
less than 10%, of
Consolidated
EBITDA
and
(ii)
of
the
gross
assets
or
total
revenue
of
the
Non-SA
Subsidiaries would
be less
than 10%
of the
Consolidated EBITDA,
gross assets
or total
revenue of the Covenant Group. For this purpose -
23.26.3.1
the
EBITDA,
gross
assets
or
total
revenue
of
a
Non-SA
Subsidiary
of
the
Term/RCF
Borrower
which
is
a
member
of
the
Covenant
Group
will
be
determined from its financial statements or management accounts
(in each case,
consolidated
if
it
has
Subsidiaries)
which
were
consolidated
into
the
latest
audited
consolidated
financial
statements
or
management
accounts
of
the
Term/RCF
Borrower
or
the
SEC
Form
(adjusted
on
a
pro
forma
basis
as
contemplated
in
clause
21.1.1.3
or
21.1.5.2
(Financial
statements),
as
applicable);
23.26.3.2
if a
Non-SA Subsidiary
of the
Term/RCF
Borrower becomes
a member
of the
Covenant Group after the
date on which the
latest audited consolidated financial
statements
or
management
accounts
of
the
Term/RCF
Borrower
or
the
SEC
Form have
been prepared,
the EBITDA,
gross assets
or total
revenue of
that Non-
SA
Subsidiary
will
be
determined
from
its
latest
financial
statements
or
management accounts (in each case, consolidated if it has Subsidiaries);
23.26.3.3
the Consolidated EBITDA, gross assets or total revenue of the Covenant Group
will be
determined from
the latest
audited consolidated
financial statements
or
management accounts of
the Term/RCF Borrower or
the SEC Form
(adjusted on
a
pro
forma
basis
as
contemplated
in
clause
21.1.1.3
or
21.1.5.2
(Financial
statements), as applicable);
142
23.26.3.4
the
EBITDA
of a
Non-SA Subsidiary will
be determined on
the same basis
as
Consolidated EBITDA (as defined in clause
2.2
(Financial Definitions) above),
except that references to the Covenant Group
will be construed as references to
that Non-SA Subsidiary; and
23.26.3.5
where financial
statements and
management accounts
of a
Non-SA Subsidiary
or
the
Term/RCF
Borrower
are
available
in
respect
of
the
same
accounting
period,
the
financial
statements
shall
be
used
for
purposes
of
making
the
necessary determinations.
23.26.4
The
Term/RCF
Borrower must
procure that
the
Security
Documents required
to
be
entered into under
this clause are
entered into, and
to the extent
necessary registered
at any applicable statutory public
register in any relevant
jurisdiction, within 60 days
of the date of delivery of
a Compliance Certificate, financial
statements,
SEC Form or
management accounts, as applicable.
23.26.5
Each Obligor shall
(and shall procure
that each other
relevant member of
the Covenant
Group
which
is
its
Subsidiary
will)
at
its
own
expense,
execute
and
do
all
such
assurances, acts and things as the Facility Agent may reasonably require -
23.26.5.1
for
registering
any
Security
Documents
in
any
applicable
statutory
public
register; or
23.26.5.2
for perfecting or protecting the Transaction
Security intended to be afforded by
the Security Documents; and
23.26.5.3
if a
Security Document
has become
enforceable, for
facilitating the
realisation
of all or any
part of the assets which
are subject to that
Security Document and
the exercise of all powers, authorities and discretions vested in
a Finance Party,
and in
particular shall execute
all transfers, cessions
and releases of
that Transaction
Security, whether to the Debt Guarantor or to
its nominees and give all notices,
orders
and directions which the Facility Agent may reasonably think expedient.
23.27
Ownership of Guarantors
The Term/RCF Borrower shall ensure that -
23.27.1
in
relation
to
each
Original
Guarantor,
unless
otherwise
permitted
under
this
Agreement, the
percentage of
the
equity securities
in the
issued capital
of any
such
Original
Guarantor
owned,
directly
or
indirectly,
legally
and
beneficially,
by
the
143
Term/RCF
Borrower are
equal to
or greater
than those
percentages stipulated
in the
Group Structure Chart unless otherwise agreed in writing by the Facility Agent;
and
23.27.2
in
relation
to
each
Additional
Guarantor,
unless
otherwise
permitted
under
this
Agreement, the
percentage of
the
equity securities
in the
issued capital
of any
such
Additional
Guarantor
owned,
directly
or
indirectly,
legally
and
beneficially,
by
the
Term/RCF Borrower are not less than
the percentage held
by the Term/RCF Borrower
at the
time such Additional
Guarantor became
a Guarantor
pursuant to
this Agreement.
23.28
Guarantor coverage
23.28.1
The
Term/RCF
Borrower
shall
ensure
that,
at
all
times
after
the
Closing
Date,
the
aggregate contribution
of the
Guarantors (calculated
on an
unconsolidated basis
and
excluding
all
intra-Covenant
Group
items
and
investments
in
Subsidiaries
of
any
member of the Covenant Group) represents not less than 90% of -
23.28.1.1
the Consolidated EBITDA of the Covenant Group;
23.28.1.2
gross assets of the Covenant Group; and
23.28.1.3
total revenue of the Covenant Group.
23.28.2
If, at any time after the Signature Date -
23.28.2.1
it is
demonstrated by
reference to
the most
recent Compliance
Certificate, the
financial statements of any Subsidiary
that is a member
of the Covenant Group
and
the
consolidated
financial
statements
or
management
accounts
of
the
Covenant Group or the SEC Form that any member of
the Covenant Group is a
Material Subsidiary; or
23.28.2.2
a member of
the Covenant
Group otherwise
is or becomes
a Material
Subsidiary,
then
the
Term/RCF
Borrower
shall,
subject
to
clause
21.11
(
Know
your
customer
checks
) and
the prior
written consent of
the Facility
Agent being
obtained, promptly
and in any
event within
10 Business Days
of the delivery
of those financial
statements,
SEC Form or management accounts procure that
that Material Subsidiary becomes an
Additional Guarantor in the manner required by clause
26.3
(
Additional Guarantors
).
23.29
Dormant Subsidiaries
No Obligor shall (and each Obligor
shall ensure no other member of the
Group will) cause
or permit any member of the Covenant Group which is a Dormant
Subsidiary to commence
144
trading
or
cease
to
satisfy
the
criteria
for
a
Dormant
Subsidiary
unless
such
Dormant
Subsidiary
becomes
an
Additional
Guarantor
in
accordance
with
clause
26.3
(
Additional
Guarantors
)
if
required
to
comply
with
the
requirements
of
clause
23.28
(
Guarantor
coverage
).
23.30
Material Agreements
23.30.1
No Obligor shall (and the Obligors
shall ensure that no other
member of the Covenant
Group will) amend, vary or terminate any Material Agreement -
23.30.1.1
without the prior approval of the Facility Agent;
or
23.30.1.2
unless such amendments are more favourable to the Covenant Group;
or
23.30.1.3
unless
such
amendments
are
minor
or
administrative
in
nature
and
do
not
adversely impact
the interests
of the
Finance Parties
in relation
to the
Finance
Documents.
23.30.2
The Term/RCF
Borrower shall
promptly (or
shall procure
the prompt)
supply to
the
Facility Agent of the details and
copies of any amendments or variations proposed to
or
(with
the
prior
approval
of
the
Facility
Agent
in
relation
to
only
those
Material
Agreements referred to in clause
23.30.1
above) made to any
Material Agreement and
any proposed or (with
the prior approval of
the Facility Agent in
relation to only those
Material
Agreements
referred
to
in
clause
23.30.1
above)
actual
termination
of
a
Material Agreement.
23.31
EBITDA
Holdco and
the Term/RCF Borrower
shall ensure
that, at
all times,
the Term/RCF Borrower's
earnings before interest, tax, depreciation, amortisation and impairment charges (calculated
on the same basis as EBITDA) is equal to at least 90% of Holdco's
earnings before interest,
tax,
depreciation,
amortisation
and
impairment
charges
(calculated
on
the
same
basis
as
EBITDA) in any financial year.
24
EVENTS OF DEFAULT
Each of the
events or circumstances set
out in this clause
24
(other than
24.17
(
Acceleration
)) is
an Event of
Default. For
the purposes
of this
clause
24
, any
reference to a
member of the
Covenant
Group shall be deemed to exclude any Excluded Subsidiaries.
24.1
Non-payment
145
An
Obligor
does
not
pay
on
the
due
date
any
amount
payable
by
it
under
a
Finance
Document, at the place and in the currency in which it is expressed
to be payable unless -
24.1.1
that failure to pay is
caused by administrative or
technical error or a Disruption
Event;
and
24.1.2
payment is made in full within 3 Business Days of its due date.
24.2
Financial covenants
Any requirement of clause
22
(
Financial Covenants
) is not satisfied, unless that breach -
24.2.1
is capable of remedy under clause
22.3
(
Equity cure
); and
24.2.2
is remedied, timeously and in full, in accordance with the requirements of
that clause.
24.3
Other obligations
24.3.1
An
Obligor
or
Security
Provider
fails
to
comply,
timeously
and
in
full,
with
any
provision of
a Finance Document
to which
it is
party (in
respect of an
Obligor only,
other than those referred to in clauses
24.1
and
24.2
above).
24.3.2
No Event of Default
under clause
24.3.1
above will occur,
if the failure is
capable of
remedy and is
remedied within
5 Business Days
of the earlier
of (A)
the Facility Agent
giving notice to the Term/RCF Borrower and (B) the applicable failure to comply.
24.4
Misrepresentation
24.4.1
Any representation
or statement made
or deemed
to be made
by an Obligor
or Security
Provider in the
Finance Documents or any
other document delivered by
or on behalf
of any
Obligor or
Security Provider
under or
in connection
with any
Finance Document
is or proves
to have been
incorrect or
misleading when
made or deemed
to be
repeated.
24.4.2
No Event of Default under clause
24.4.1
above will occur, if
the circumstance giving
rise to
that misrepresentation
is capable
of remedy
and is
remedied w
within 5 Business
Days of the earlier of (A) the Facility Agent giving notice to the Term/RCF Borrower
and (B) the applicable failure to comply.
24.5
Cross default and cross acceleration
24.5.1
Any of the
following occurs
in respect of
a member of
the Covenant Group
or Security
Provider -
146
24.5.1.1
any
of
its
Financial
Indebtedness
(or
any
amount
payable
in
respect
of
its
Financial Indebtedness) is not paid when
due (after the expiry of
any originally
applicable grace period); or
24.5.1.2
any of its Financial Indebtedness -
24.5.1.2.1
is declared to be or otherwise becomes prematurely due and payable prior
to
its
stated
maturity
or,
if
the
Financial
Indebtedness
arises
under
a
guarantee, prior to the stated
maturity of the Financial Indebtedness
which
is the subject of the guarantee; or
24.5.1.2.2
is placed on demand;
24.5.1.2.3
is capable of being
declared by or on
behalf of a creditor
to be prematurely
due and payable or of being placed on demand;
24.5.1.2.4
is required to be
mandatorily prepaid in
full or is capable
of being required
to be
mandatorily prepaid
in full
(whether or
not the
event giving
rise to
such right has been waived by the creditor); or
24.5.1.2.5
is terminated or closed out or is capable of being terminated or
closed out,
in each case, as a result
of an event of default or
any provision having a similar
effect (howsoever described); or
24.5.1.3
any
commitment
of
a
provider
of
Financial
Indebtedness
to
it
is
cancelled
or
suspended, or
is capable
of being
cancelled or
suspended by
such provider,
in
each
case, as
a result
of
an event
of default
or any
provision having
a similar
effect (howsoever described);
24.5.1.4
any
creditor
becomes
entitled
to
declare
any
Financial
Indebtedness
of
a
Covenant
Group
Member
or
a
Security
Provider
due
and
payable
prior
to
its
specified
maturity
as
a
result
of
an
event
of
default
(however
described),
mandatory
prepayment event
(however
described)
or
any
provisions
having
a
similar effect; or
24.5.1.5
any
creditor
of
a
Covenant
Group
Member
or
a
Security
Provider
becomes
entitled
to
foreclose
on
any
Security
given
to
secure
any
of
its
Financial
Indebtedness.
147
24.5.2
No
Event
of
Default
will
occur
under
this
clause
24.5
if
the
aggregate
amount
of
Financial
Indebtedness
or
commitment
for
Financial
Indebtedness
falling
within
clauses
24.5.1
to
24.5.1.2
is
less
than
R20,000,000
(twenty
million
Rand)
(or
its
equivalent in another currency or currencies).
24.6
Insolvency
24.6.1
A Material
Group Company,
Security Provider
or any
member of
the Group
is or
is
deemed for
the purposes
of any
applicable law
to be
insolvent or
unable to
pay its
debts
as they fall due,
admits its insolvency or
its inability to pay
its debts as they
fall due,
suspends making payments on any
of its debts or
announces an intention to
do so or,
by reason of actual or
anticipated financial difficulties, commences negotiations with
one
or
more
of
its
creditors
with
a
view
to
the
rescheduling,
restructuring
or
compromise of any of its indebtedness.
24.6.2
A Material
Group Company,
Security Provider
or any
member of
the Group
is or
is
deemed
for
the
purposes
of
any
applicable
law
to
be
"Financially
Distressed"
(as
defined in the Companies Act).
24.6.3
The
value
of
the
assets
of
a
Material
Group
Company,
Security
Provider
or
any
member
of
the
Group
is
less
than
its
liabilities
(taking
into
account
contingent and
prospective liabilities).
24.6.4
A
moratorium
is
declared,
instituted
or
takes
effect
in
respect
of
any
of
the
indebtedness of
any Material
Group Company,
Security Provider
or any
member of
the Group (in which event the ending
of the moratorium will not remedy
any Event of
Default caused by that moratorium).
24.7
Insolvency and business rescue proceedings
24.7.1
Any
corporate
action,
legal
proceedings
or
other
procedure
or
step
(including
an
application to court, proposal or convening of a meeting) is taken with
a view to -
24.7.1.1
the
suspension
of
payments,
a
moratorium
of
any
indebtedness,
liquidation,
winding-up,
dissolution,
administration,
business
rescue
or
reorganisation
(by
way
of
voluntary
arrangement,
scheme
of
arrangement
or
otherwise)
of
any
Material Group Company, Security Provider or any member of the Group;
24.7.1.2
a composition,
compromise, assignment
or arrangement
with any
creditor of
a
Material Group Company, Security Provider or any member of the Group;
148
24.7.1.3
the appointment of a liquidator (other than in
respect of a solvent liquidation of
a member of
the Group which
is not a
member of the
Covenant Group),
receiver,
administrative
receiver,
administrator,
compulsory
manager,
business
rescue
practitioner or other similar officer
in respect of any Material
Group Company,
Security Provider or any member of the Group or any of their assets; or
24.7.1.4
enforcement of
any Security
over any
assets of
any Material
Group Company,
Security Provider or any member of the Group,
or any analogous procedure or step is taken in any jurisdiction;
24.7.2
A meeting is proposed or convened by the directors of any Material Group Company,
Security
Provider or
any member
of
the
Group, a
resolution is
proposed or
passed,
application is made or an order is applied for or granted, to authorise the entry into or
implementation
of
any
business
rescue
proceedings (or
any
similar
proceedings) in
respect
of
any
Material
Group
Company,
Security
Provider
or
any
member
of
the
Group, or any analogous procedure or step is taken in any jurisdiction.
24.8
Creditors' process
Any expropriation, attachment, sequestration,
implementation of any business
rescue plan,
distress or
execution affects
any asset
or assets
of a
member of
the Covenant
Group or
a
Security Provider. No Event of Default will occur under this clause
24.8
if -
24.8.1
the affected assets are not subject to any Transaction Security and
the aggregate value
of
those assets
is
less than
R20,000,000 (twenty
million Rand)
(or its
equivalent in
another currency or currencies); or
24.8.2
that expropriation,
attachment, sequestration, implementation
of any
business rescue
plan, distress or execution is being contested in good faith and with due diligence
and
is discharged or set aside within 14 days.
24.9
Legal proceedings
24.9.1
Any
member
of
the
Covenant
Group
or
Holdco
fails
to
discharge
in
full,
within
5
Business Days
of the
due date,
any amount
payable pursuant
to a
final judgment
or
order made or
given by any
court or other
authority of competent
jurisdiction in any
litigation, arbitration,
administrative, governmental,
regulatory or
other investigations,
proceedings or enquiry (including any such investigations, proceedings or enquiry by
any
competition
authority,
environmental
authority,
tax
authority
or
sector
specific
regulatory authority).
149
24.9.2
For the purposes of clause
24.9.1
above, a final judgment or
order means a judgment
or order -
24.9.2.1
which is
not appealable
or is
appealable but
in respect
of which
the period
for
the lodging of an appeal has lapsed and the
applicable member of the Covenant
Group or Holdco has failed to institute appeal proceedings; and
24.10
which
is
not
capable of
rescission or
is
capable of
rescission but
in
respect
of
which
the
period for
applying for
rescission has
lapsed and
the applicable
member of
the Covenant
Group
or
Holdco
has
failed
to
apply
for
rescission
or
has
applied
for
rescission
of
such
judgment or order and the application for rescission has been denied.
24.11
Cessation of business
A Group Company or Security Provider suspends, ceases, or threatens to suspend or cease,
to carry on
all or a
substantial part of
its business or
to change the
nature of its
business from
that undertaken at the Signature Date.
24.12
Finance Documents
24.12.1
It
is
or
becomes
unlawful
for
a
party
(other
than
a
Finance
Party)
to
a
Finance
Document to perform any of its obligations under the Finance Documents.
24.12.2
Any obligation of a
party (other than a
Finance Party) to a
Finance Document, under
a Finance Document, for any reason, becomes unlawful or is not or
ceases to be -
24.12.2.1
legal, valid or binding; or
24.12.2.2
enforceable or effective in accordance with
its terms, or is alleged by
a party to
it (other than a Finance Party) to be ineffective in accordance with its terms.
24.12.3
Any Transaction Security
created or
expressed to
be created
or evidenced
by a
Security
Document, or
any subordination
created under
a Finance
Document, for
any reason,
becomes unlawful or is not or ceases to be -
24.12.3.1
legal, valid or binding; or
24.12.3.2
enforceable or effective,
or is alleged
by a party
to it (other
than a Finance
Party)
to be ineffective,
fails or ceases
to establish
the ranking
and the priority
of claims
which it purports to create.
150
24.12.4
A party
(other than
a Finance
Party) to
a Finance
Document repudiates that
Finance
Document or evidences an intention to repudiate a Finance Document.
24.13
Material adverse change
Any event or circumstance occurs which the
Majority Lenders reasonably believe has or is
reasonably likely to have a Material Adverse Effect.
24.14
Audit qualification
The Auditors qualify the audited annual consolidated financial statements
of Holdco or the
audited annual financial statements of any other Obligor.
24.15
Expropriation
24.15.1
The authority
or ability
of Holdco,
any member
of the
Covenant Group
or
Security
Provider to
conduct its
business is
wholly or
substantially curtailed
by any
seizure,
expropriation, nationalisation, intervention, restriction or other action by or on
behalf
of any governmental, regulatory or other authority or other person.
24.15.2
By the authority of any governmental, regulatory or other authority or other
person -
24.15.2.1
the management of
any member of
the Covenant Group
or any Security
Provider
is wholly or substantially replaced; or
24.15.2.2
all or a majority of the shares of a member of the Covenant Group or a Security
Provider or the whole
or any part of
its assets or revenues
is seized, expropriated
or compulsorily acquired.
24.16
Material Agreements
24.16.1
A member of
the Covenant Group
does not comply
with any provision
of a Material
Agreement to which it is a party.
24.16.2
Any Material Agreement
ceases to be
in full force and
effect by operation of
law or by
reason of the default of any member of the Covenant Group.
24.17
Acceleration
If
an
Event of
Default is
continuing, the
Facility Agent
may,
by notice
to
the
Term/RCF
Borrower and without prejudice to any other rights or remedies which a Finance Party may
have under any Finance Document or at law -
151
24.17.1
cancel all
or any
part of
the Total
Commitments (whereupon they
shall immediately
be cancelled);
24.17.2
declare that
all or
part of
the Loans,
together with
accrued interest,
all other
Senior
Term
Facility Outstandings under the
Senior Term
Facility and all other
Senior RCF
Outstandings under the Senior RCF -
24.17.2.1
are
immediately
due
and
payable
(whereupon
they
shall
become immediately
due and payable); and/or
24.17.2.2
are payable on
demand (whereupon they shall immediately
become payable on
demand by the Facility Agent);
24.17.3
claim
immediate
payment
of
all
or
part
of
any
Loans
and
other
Senior
Facility
Outstandings (whereupon they shall be immediately payable); and/or
24.17.4
exercise
or
direct
the
Debt
Guarantor
to
exercise
any
or
all
of
its
rights,
remedies,
powers or discretions under the Security Documents.
25
CHANGES TO THE LENDERS
25.1
Cessions and delegations by the Lenders
25.1.1
Subject to this clause
25
, a Lender (the
Existing Lender
) may cede and/or delegate
(a
Transfer
) any or all of its rights and/or obligations under this Agreement, any Senior
Facility Agreement to which it is
a party and/or under any other Finance
Document 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 (a
New Lender
), provided that an Existing Lender
shall be required to Transfer a
pro rata
portion of its rights
and obligations under each
Senior Facility Agreement in relation to any Transfer.
25.1.2
Each
Obligor
consents
to
any
splitting
of
claims
which
may
arise
as
a
result
of
a
Transfer implemented under this Agreement.
25.2
Conditions of Transfer
25.2.1
The consent of the
Term/RCF Borrower is
not required for a Transfer
by an Existing
Lender if -
25.2.1.1
the New Lender is another Lender or an Affiliate of a Lender;
25.2.1.2
the New Lender is a person identified in Annexure H (Acceptable Lenders);
or
152
25.2.1.3
a Default is continuing.
25.2.2
Except as detailed above, the
express consent of the Term/RCF
Borrower is required
for
a
Transfer
to
a
prospective
New
Lender.
Where
the
consent
of
the
Term/RCF
Borrower to a Transfer is required that
consent must not be unreasonably withheld or
delayed.
25.2.3
The Term/RCF Borrower will
be deemed to have given its consent 10 Business Days
after the
Existing Lender has
requested it, unless
consent is expressly
refused by the
Term/RCF Borrower within that time.
25.2.4
A
Transfer
will
only
be
effective
if
the
procedure
set
out
in
clause
25.4
below
is
complied with.
25.2.5
Each
New
Lender,
by
executing
the
relevant
Transfer
Certificate
confirms,
for
the
avoidance of doubt, that
the Facility 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 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.
25.3
Limitation of responsibility of Existing Lenders
25.3.1
Unless expressly agreed
to the contrary,
an Existing Lender
makes no representation
or warranty and assumes no responsibility to a New Lender
for -
25.3.1.1
the
legality,
validity,
effectiveness,
adequacy
or
enforceability of
the
Finance
Documents or any other documents;
25.3.1.2
the financial condition of any Obligor;
25.3.1.3
the
performance
and
observance
by
any
Obligor
of
its
obligations
under
the
Finance Documents or any other documents; or
25.3.1.4
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.
25.3.2
Each New Lender confirms
to the Existing
Lender and the other
Finance Parties that
it -
153
25.3.2.1
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
25.3.2.2
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.
25.3.3
Nothing in any Finance Document obliges an Existing Lender to -
25.3.3.1
accept
a
re-Transfer
from
a
New
Lender
of
any
of
the
rights
and
obligations
Transferred under this clause
25
; or
25.3.3.2
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.
25.4
Procedure for transfer
25.4.1
Subject
to
the
conditions
set
out
in
clause
25.2
above
a
Transfer
is
effected
in
accordance with
clause
25.4.3 below
when the
Facility Agent
executes an
otherwise
duly completed
Transfer Certificate delivered
to it by
the Existing Lender
and the New
Lender. The Facility Agent
shall, subject to
clause
25.4.2 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.
25.4.2
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered
to
it by the Existing Lender and the New Lender once it is satisfied it has complied with
all necessary
know your
customer or
other similar
checks under
all applicable
laws
and regulations that apply to it (if any) in relation to the transfer to such New Lender.
25.4.3
On the Transfer Date -
25.4.3.1
the
Transfer
shall
take
effect
under
the
Finance
Documents so
that
the
rights
and/or
obligations
which
are
the
subject
of
the
Transfer
shall
be
ceded
and
delegated
by
the
Existing Lender
to
the
New
Lender
(being
the
Transferred
Rights and Obligations
);
154
25.4.3.2
each of the
Obligors shall perform
their obligations and
exercise their rights
in
relation to
the Transferred Rights
and Obligations
in favour
of or
against the
New
Lender, as the case may be;
25.4.3.3
the
Facility Agent,
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
Senior Lender with
the rights and/or obligations
comprising the Transferred Rights
and Obligations;
25.4.3.4
the
Existing
Lender
shall
be
released
from
further
obligations
to
each
other
Lender under the
Finance Documents to
the extent of
the Transferred Rights and
Obligations; and
25.4.3.5
the New Lender shall become a Party as a
Lender
.
25.5
Costs resulting from a change of Lender
If -
25.5.1
a Lender Transfers any of its rights or obligations under the Finance Documents; and
25.5.2
as a result of circumstances existing at the date the Transfer occurs, an Obligor
would
be
obliged
to
make
a
Tax
Payment
(as
defined
in
clause
14
(Tax
Gross-up
and
Indemnities)) or pay any Increased Cost (as defined in clause
15
(Changes in Costs)),
then, unless the Transfer is made by a Lender in order to mitigate any circumstances giving
rise to the Tax
Payment, Increased Cost or a right to
be prepaid and/or cancelled by reason
of
illegality,
the
Obligor
need
only
pay
that
Tax
Payment or
Increased
Cost
to
the
same
extent that it would have been obliged to if the Transfer had not occurred.
25.6
Copy of Transfer Certificate to the Term/RCF
Borrower
The Facility Agent
shall send
to the Term/RCF Borrower
a copy of
each Transfer Certificate
executed by
it in accordance
with clause
25.4.1 above
as soon
as reasonably
practicable after
it has executed any such Transfer Certificate.
25.7
Accession of WCF Lenders
25.7.1
No
person
providing a
Working
Capital Facility
to
any
Obligor
shall be
entitled
to
share
in
any Transaction
Security
or
to
benefit from
any
guarantee
or
indemnity in
respect
of
any
amounts
which
are
or
may
become
owing
to
it
under
that
Working
155
Capital Facility, and no such amount will
be treated as WCF Outstandings,
unless that
person is or becomes party (as WCF Lender) to -
25.7.1.1
this Agreement;
25.7.1.2
the Intercreditor Agreement; and
25.7.1.3
the Subordination Agreement (to the extent one is entered into).
25.7.2
A person shall not become party to any Finance Document as a WCF Lender (and no
amounts which
are or may
become owing to
it will
be treated as
WCF Outstandings
for purposes of a Finance Document), unless -
25.7.2.1
the Facility Agent
has consented to
that person becoming
a WCF Lender
(except
that this requirement will not apply to a person
which is a Lender or an Affiliate
of a Lender); and
25.7.2.2
that person has
executed and
delivered to
the Facility Agent
an Accession Letter.
25.7.3
Subject to the requirements
of this clause
25.7
, with effect from
the date of acceptance
by the
Facility Agent
of an
Accession Letter
duly executed
and delivered
to the
Facility
Agent by
a person
who proposes
to accede
to the
Finance Documents
as a
WCF Lender
(or, if later, the date specified
in that Accession
Letter), that person
shall become party
to this Agreement, the
Intercreditor Agreement, the Subordination Agreement (to the
extent one
is entered
into) and
the other
Finance Documents
as
a WCF
Lender and
shall assume the same obligations and
become entitled to the same
rights, as if it had
been an original party to those Finance Documents as a WCF Lender.
26
CHANGES TO THE OBLIGORS
26.1
Transfers by the Obligors
No Obligor may cede any of its rights nor delegate any of its
obligations under the Finance
Documents.
26.2
Additional WCF Borrower
26.2.1
Subject
to
compliance
with
the
provisions
of
clause
21.11
(Know
your
customer
checks), the Term/RCF
Borrower may request that
(i) any wholly-owned member
of
the
Covenant
Group
becomes
an
Additional WCF
Borrower.
That
member
of
the
Covenant Group shall become a WCF Borrower if -
26.2.1.1
all the Lenders approve the addition of that member;
156
26.2.1.2
the
Term/RCF
Borrower
delivers
to
the
Facility
Agent
a
duly
completed
and
executed Accession Letter;
26.2.1.3
the Term/RCF
Borrower confirms that no Default is
continuing or would occur
as a result of that
member of the Covenant Group
becoming an Additional WCF
Borrower; and
26.2.1.4
the Facility Agent has received all
of the documents and other
evidence listed in
Part II of
Annexure B
(Conditions precedent) in relation to the Additional WCF
Borrower, each in form and substance satisfactory to the Facility Agent.
26.2.2
The Facility
Agent shall
notify the
Term/RCF
Borrower and
the Lenders
as soon
as
reasonably practicable 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
Annexure B
(Conditions precedent).
26.3
Additional Guarantors
26.3.1
If the Term/RCF Borrower -
26.3.1.1
requests that
a member
of the
Covenant Group
becomes an
Additional Guarantor
and if the Lenders consent thereto; or
26.3.1.2
is
required
under
this
Agreement to
ensure
that
any
member
of
the
Covenant
Group
becomes
an
Additional
Guarantor
(including
without
limitation,
if
a
member
of
the
Covenant
Group
becomes
a
WCF
Borrower
or
a
Material
Subsidiary after the Signature Date),
it must give not less than 10 Business Days' prior notice to the Facility Agent.
26.3.2
The Term RCF Borrower shall ensure that any member of the Covenant Group which
becomes
a
Material
Subsidiary
after
the
Signature
Date
becomes
an
Additional
Guarantor by
no later
than the
date 10
Business Days
after the
date on
which that
entity
becomes a Material Subsidiary.
26.3.3
The Term/RCF
Borrower must ensure
that any such
member of the
Covenant Group
(including Adumo and its
subsidiaries listed above, once
they become members of
the
Covenant Group) supplies
to the Facility
Agent all the
documents and evidence
set out
in Part II of
Annexure B
(Conditions Precedent), in form
and substance satisfactory to
it.
157
26.3.4
The
relevant
member
of
the
Covenant
Group
(subject
to
the
Lenders'
prior
written
consent
in
circumstances
where
the
Term/RCF
Borrower
has
requested
that
such
member of the Covenant Group becomes
a Guarantor to ensure that compliance with
clause
23.28.1)
-
26.3.4.1
will become an Additional Guarantor ;
26.3.4.2
will accede
and become bound
as an
Indemnifier under (and
as defined in)
the
Counter-indemnity Agreement;
26.3.4.3
if incorporated in South Africa, will accede and become bound
as an Additional
Cedent under (and as defined in) the Security Cession & Pledge and will, to the
extent relevant,
grant any
other Security
referred to
in clause
1
(South African
Obligors and Material Subsidiaries) of Annexure G (Transaction Security);
26.3.4.4
if incorporated
in a
jurisdiction other
than South
Africa, must
grant such
Security
as
may
be
required
in
terms
of
clause
2
(Non-South
African
Obligors
and
Material Subsidiaries) of
Annexure G (Transaction
Security) under the
laws of
its jurisdiction of incorporation or formation,
26.3.5
on the date of the
Accession Letter executed by
it and provided that the
Facility Agent
is satisfied that such entity become an Additional Guarantor.
26.4
Repetition of Representations
Delivery of an Accession Letter constitutes confirmation
by the relevant Subsidiary that the
Repeating Representations 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.
26.5
Resignation of a Guarantor
26.5.1
The
Term/RCF
Borrower
may
request
that
a
Guarantor
(other
than
Holdco
or
a
Borrower) ceases to be
a Guarantor and an
Indemnifier under the Counter-indemnity
Agreement, and
be released
from any
Security
Document to
which it
is
a party,
by
delivering to the Facility Agent a Resignation Letter.
26.5.2
The
Facility
Agent
shall
accept
a
Resignation
Letter
and
notify
the
Term/RCF
Borrower and the Lenders of its acceptance if -
26.5.2.1
no Default is continuing or would result from the acceptance of the Resignation
Letter (and the Term/RCF Borrower has confirmed this is the case); and
158
26.5.2.2
all the Lenders have consented to the Term/RCF Borrower's request.
27
FACILITY AGENT
27.1
Under the Intercreditor Agreement –
27.1.1
each Lender has
appointed the Facility
Agent to act
as its facility
agent under and
in
connection with the Finance Documents;
27.1.2
each WCF
Lender has
appointed the
Facility Agent
to act
as its
facility agent
under
and
in
connection
with
the
Finance
Documents,
other
than
the
day-to-day
administration of the WCF Documents,
27.1.3
WesBank
has
appointed
the
Facility
Agent
to
act
as
its
facility
agent
under
and
in
connection with the
Finance, other than
the day-to-day administration
of the WesBank
Agreements;
27.1.4
including,
in
respect
of
the
Senior
Term
Facilities
and
the
Senior
RCF,
the
disbursement
of
Loans,
the
receipt
of
amounts
payable
to
the
Lenders
under
the
Finance Documents, any amendments of,
or waivers or consents under, the applicable
Finance Documents,
the receipt
of documents
and information
required to
be delivered
to the
Lenders under
the Finance
Documents, the
receipt of
notices from
the Term/RCF
Borrower to the
Finance Parties (or
any of them)
under the Finance
Documents, and
the
giving
of
notices
to
the
Term/RCF
Borrower
by
the
Finance
Parties
(or
any
of
them) under the Finance Documents (together, the
Agency Matters
).
27.2
A reference
to the
Facility Agent
in any
Finance Document,
is a
reference to
the Facility
Agent acting in its capacity as such.
27.3
The Obligors –
27.3.1
may assume that
the Facility Agent
is duly authorised
to represent the
other Finance
Parties
in
all
Agency
Matters
and
that
all
actions
taken
by
the
Facility
Agent
in
connection with an Agency Matter are duly authorised; and
27.3.2
are not entitled
nor obliged
directly to
deal with,
or act
on the
instructions of,
a Finance
Party other than the Facility Agent,
unless expressly otherwise provided in a
Finance
Document.
27.4
A reference in
a Finance Document
to any
action undertaken or
required to be
undertaken
by
the
Facility
Agent
in
relation
to
an
Agency
Matter
(including
the
exercise
of
any
159
discretion under
the Finance
Documents) is a
reference to
the Facility
Agent acting as
the
duly authorised agent of the Finance Parties.
27.5
An Obligor shall have no claim against
the Facility Agent for the recovery of any
losses or
damages which it may suffer as a result of anything
which the Facility Agent does, or omits
to do, in
performing its
functions as the
Facility Agent
under the Finance
Documents (unless
such losses or damages arise
by reason of gross negligence
or wilful default of the Facility
Agent alone).
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
31
(Payment
Mechanics)
(a
Recovered
Amount
) and applies that amount to a payment due under the Finance Documents
then -
28.1.1
the
Recovering
Finance
Party
shall,
within
3
Business
Days,
notify
details
of
the
receipt or recovery, to the Facility Agent;
28.1.2
the Facility 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 Facility Agent
and distributed in accordance
with clause
31
(Payment Mechanics), without
taking account of any
Tax which would be imposed
on the Facility Agent in relation to the receipt, recovery or distribution;
and
28.1.3
the Recovering Finance Party shall,
within 3 Business Days
of demand by the Facility
Agent,
pay
to
the
Facility
Agent
an
amount
(the
Sharing
Payment
)
equal
to
such
receipt
or
recovery
less
any
amount
which
the
Facility
Agent
determines
may
be
retained by the Recovering Finance Party as its share of any payment to
be made.
28.2
Redistribution of payments
The
Facility 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
the
Intercreditor
Agreement
towards the obligations of that Obligor to the Sharing Finance Parties.
28.3
Recovering Finance Party's rights
28.3.1
On a distribution by
the Facility Agent under
clause
28.2 above
of a payment received
by a Recovering Finance Party from an
Obligor, as between the relevant
Obligor and
160
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.
28.3.2
If and to
the extent that
the Recovering Finance Party
is not able
to rely on
its rights
under clause
28.3.1 above
(that is, an amount equal to the Sharing Payment is
treated
as
having
been
paid
by
the
relevant
Obligor),
the
Obligors
shall
be
liable
to
the
Recovering
Finance
Party
for
a
debt
equal
to
the
Sharing
Payment
which
is
immediately due and payable.
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 -
28.4.1
each Sharing
Finance Party
shall, upon
request of
the Facility
Agent, pay
to the
Facility
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
28.4.2
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
28.5.1
This clause
28
shall not apply to
the extent that
the Recovering Finance Party
would
not, after
making any
payment pursuant
to this
clause, have
a valid
and enforceable
claim against the Obligors.
28.5.2
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 -
28.5.2.1
it notified that other Finance Party of the legal or arbitration proceedings;
and
28.5.2.2
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.
161
29
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will -
29.1
interfere
with
the
right
of
any
Finance
Party
to
arrange
its
affairs
(tax
or
otherwise)
in
whatever manner it thinks fit;
29.2
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
29.3
oblige any Finance Party
to disclose any information
relating to its affairs (tax
or otherwise)
or any computations in respect of Tax.
30
FINANCE PARTY RIGHTS
Clauses
27
(The Facility Agent) to clause
29
(Conduct of business by the Finance Parties) are for
the benefit of
the Finance Parties
only. The Obligors do
not have any
rights or benefits
under those
clauses.
31
PAYMENT
MECHANICS
31.1
Payments to the Facility Agent
31.1.1
On each date on which an Obligor or a Lender is required to make a payment under a
Finance
Document
(other
than
a
WCF
Agreement
or
a
WesBank
Agreement),
that
Obligor
or
Lender
shall
make
the
same
available
to
the
Facility
Agent
(unless
a
contrary indication appears
in a Finance Document)
in Rand for value by
no later than
12h00 (Johannesburg time) on the due
date and in such funds
specified by the Facility
Agent.
31.1.2
All such
payments shall be
made to
such account in
South Africa with
such bank
as
the Facility Agent may specify by notice to the Term/RCF
Borrower. Until otherwise
notified
by
the
Facility
Agent
from
time
to
time,
its
bank
account
details
for
these
purposes are as follows -
Account Name -
RMB Domestic Money Market Account
Bank -
First National Bank
Account Number -XXX
Branch Name -
XXX
Branch Code -
XXX
Reference -
XXX
31.2
Distributions to an Obligor
162
The Facility
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.
31.3
Clawback
31.3.1
Where
a
sum
is
to
be
paid
to
the
Facility
Agent
under
the
Finance
Documents
for
another Party, the
Facility 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.
31.3.2
If the Facility Agent pays an amount to another Party and it proves to be the case that
the Facility 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
Facility
Agent shall on demand refund the same
to the Facility Agent together with
interest on
that
amount
from
the
date
of
payment to
the
date
of
receipt
by
the
Facility
Agent,
calculated by the Facility Agent to reflect its cost of funds.
31.4
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.
31.5
Partial payments
31.5.1
Subject to clause
8.9
(Application of partial
prepayments) in respect
of the application
of
partial
payments
as
between
the
Senior
Term
Facility
Lenders
and
Senior
RCF
Lenders, if
the Facility
Agent receives
a payment
that is
insufficient to
discharge all
the amounts
then due
and payable
by an
Obligor under
the Finance
Documents, the
Facility Agent shall apply that payment towards the obligations of that Obligor under
the Finance Documents in the following order -
31.5.1.1
first
, in or towards
payment
pro rata
of any unpaid fees,
costs and expenses of
the Facility Agent under the Finance Documents;
31.5.1.2
second
, in
or towards
payment
pro rata
of any
accrued interest,
fees, Break
Costs
or commission due but unpaid under the Finance Documents ;
31.5.1.3
third
, in or towards payment
pro rata
of any principal due but unpaid under the
Finance Documents;
163
31.5.1.4
fourth
, in or
towards payment
pro rata
of any other
sum due but unpaid
under
the Finance Documents.
31.5.2
This
clause
31.5
will
override
any
appropriation
made
by
an
Obligor
other
than
in
accordance with clause
8.9
(Application of partial prepayments).
31.6
Business Days
31.6.1
If a
payment under
the Finance
Documents is
due on
a day
which is
not a
Business
Day, the
due date for that payment will
instead be the next Business Day
in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
31.6.2
During
any extension
of
the
due
date
for
payment of
any
principal
or
Unpaid
Sum
under a Senior Facility Agreement interest is payable on the principal or Unpaid Sum
at
the
rate
payable
on
the
original
due
date,
subject
to
any
provisions
in
a
Senior
Facility Agreement relating to the accrual and payment of default interest.
31.7
Currency of account
31.7.1
Subject to
the provisions
of this
clause below,
Rand is
the
currency of
account and
payment for any sum due from an Obligor under any Finance Document.
31.7.2
Each payment in respect of costs, expenses or
Taxes shall be
made in the currency in
which the costs, expenses or Taxes are incurred.
31.7.3
Any amount
expressed to
be payable
in a
currency other
than Rand
shall be
paid in
that other currency.
31.8
Disruption to Payment Systems etc.
If either
the Facility
Agent determines
(in its
discretion) that
a Disruption
Event has
occurred
or
the
Facility Agent
is
notified
by
the
Term/RCF
Borrower that
a
Disruption Event
has
occurred -
31.8.1
the Facility
Agent may,
and shall
if requested
to do
so by
the Term/RCF
Borrower,
consult
with
the
Term/RCF
Borrower
with
a
view
to
agreeing
with
the
Term/RCF
Borrower
such
changes
to
the
operation
or
administration
of
the
Facilities
as
the
Facility Agent may deem necessary in the circumstances;
31.8.2
the
Facility
Agent
shall
not
be
obliged
to
consult
with
the
Term/RCF
Borrower
in
relation to
any changes
mentioned in
clause
31.8.1 above
if, in
its opinion,
it is
not
164
practicable to do so in the circumstances
and, in any event, shall have
no obligation to
agree to such changes;
31.8.3
the
Facility Agent
shall
consult
with
the
Finance
Parties in
relation to
any
changes
mentioned in clause
31.8.1 above
but shall not be obliged to do so if, in its opinion, it
is not practicable to do so in the circumstances;
31.8.4
any such
changes agreed
upon by
the Facility
Agent and
the Term/RCF Borrower
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
35
(Amendments and Waivers);
31.8.5
the
Facility
Agent
shall
not
be
liable
for
any
damages,
costs
or
losses
whatsoever
arising
as
a
result
of
its
taking,
or
failing
to
take,
any
actions
pursuant
to
or
in
connection with this clause
31.8
; and
31.8.6
the Facility
Agent shall
notify the
Finance Parties
of all
changes agreed
pursuant to
clause
31.8.4 above.
32
SET-OFF
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
CALCULATIONS AND CERTIFICATES
33.1
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.
33.2
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, prima facie evidence of the matters to which
it relates.
165
33.3
Day count convention
Any interest, commission or
fee accruing under
a Finance Document will
accrue from day
to day and is calculated on the basis of the actual number of days elapsed and a year of 365
days (irrespective of whether the year in question is a leap year).
34
NOTICES
34.1
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.
34.2
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 -
34.2.1
in the case of Holdco -
Address -
President Place, Jan Smuts Ave &, Bolton Rd,
Rosebank, Johannesburg, 2196
Email address -
XXX with a copy to XXX
For the attention of -
Chief Financial Officer - Daniel Smith
34.2.2
the case of the Term/RCF Borrower -
Address -
President Place, Jan Smuts Ave &, Bolton Rd,
Rosebank, Johannesburg, 2196
Email address -
XXX with a copy to XXX
For the attention of -
Chief Financial Officer - Daniel Smith
34.2.3
in
the
case
of
each
other
Obligor,
the
address
and
other
details
specified
for
the
Term/RCF Borrower in clause
34.2.1 above;
34.2.4
in the case of the Facility Agent (in its capacity as such) -
Address -
1 Merchant Place - 16th Floor
cnr Fredman Drive and Rivonia Road
Sandton, 2196
166
Email address -
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
For the attention of -
Head of Transaction Management - Investment Banking
Division
34.2.5
in the case of the Debt Guarantor -
Address -
TMF Building
2 Conference Lane, Bridgewater One, Block 1,
Bridgeways Precinct, Century City, 7446
Email address -
XXX
For the attention of -
The Managing Director
34.2.6
in the
case of
each Original
Senior Lender
(in its
capacity as
such), the
address and
other details specified opposite its name in Part II of
Annexure A
(The Parties);
34.2.7
in
the
case
of
any
other
Lender
or
Obligor,
those
details
notified
in
writing
to
the
Facility Agent on or before the date on which it becomes a Party,
or any substitute
address or email
address or department
or officer as
the Party may
notify
to the
Facility Agent
(or the
Facility Agent
may notify
to the
other Parties,
if a
change is
made by the Facility Agent) by not less than five Business Days' notice.
34.3
Domicilia
34.3.1
Each
Party
chooses
its
physical
address
provided
under
or
pursuant
to
clause
34.2
above
as its
domicilium citandi et
executandi
at which documents
in legal proceedings
in connection with a Finance Document may be served.
34.3.2
Any Party may by written notice to the other Parties change its
domicilium
from time
to time
to another
address, not
being a
post office
box or
a
poste restante
, in
South
167
Africa, provided
that any
such change
shall only
be effective
on the
fourteenth day
after deemed receipt of the notice by the other Parties under clause
34.4 below.
34.4
Delivery
34.4.1
Any communication or
document made or
delivered by one
person to
another under
or in connection with the Finance Documents will -
34.4.1.1
if by way
of email, be deemed
to have been
received on the first
Business Day
following the date of transmission;
34.4.1.2
if delivered
by hand,
be deemed
to have
been received at
the time
of delivery;
and
34.4.1.3
if by
way of
courier service,
be deemed
to have
been received
on the
seventh
Business Day following the date of such sending,
and provided,
if a
particular department
or officer
is specified
as part
of its
address
details under
clause
34.2 above
, if
such communication or
document is
addressed to
that department or officer.
34.4.2
Any communication or
document to be
made or delivered
to the Facility
Agent will be
effective
only
when
actually
received
by
the
Facility
Agent
and
then
only
if
it
is
expressly
marked
for
the
attention
of
the
department
or
officer
identified
with
the
Facility Agent's signature
below (or any
substitute department
or officer as
the Facility
Agent shall specify for this purpose).
34.5
Obligors
34.5.1
Subject to clause
34.5.9
, all communications under
the Finance Documents to or
from
the Term/RCF Borrower must be sent through the Facility Agent.
34.5.2
Subject to clause
34.5.9
, all communications under
the Finance Documents to or
from
an Obligor (other than the Term/RCF
Borrower) must be sent through the Term/RCF
Borrower.
34.5.3
Each Obligor (other than
the Term/RCF Borrower) by its execution
of this Agreement
or an Accession Letter irrevocably
appoints the Term/RCF
Borrower (acting through
one or
more authorised
signatories) to act
on its
behalf as
its agent
in relation
to the
Finance Documents and irrevocably authorises -
168
34.5.3.1
the Term/RCF Borrower on its behalf
to supply all information
concerning itself
contemplated by
this Agreement
to the
Finance Parties
and to
give all
notices,
information and
instructions (including,
in
the
case
of a
Borrower,
Utilisation
Requests) to execute on its behalf
all documents under or in connection
with the
Finance Documents (including any Accession Letter), to make such agreements
and to
effect
the
relevant amendments,
supplements and
variations 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
34.5.3.2
each Finance
Party to
give any
notice, demand or
other communication to
that
Obligor pursuant to the Finance Documents to the Term/RCF Borrower,
and in each case the Obligor shall be bound as though the Obligor itself had given
the
notices, information and instructions
or executed or made
the agreements or effected
the amendments,
supplements or variations,
or received the
relevant notice, demand
or
other communication.
34.5.4
Every
act,
omission,
agreement,
undertaking,
settlement,
waiver,
amendment,
supplement, variation,
notice or
other communication
given or
made by
the Term/RCF
Borrower or given
to the Term/RCF Borrower 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.
34.5.5
The respective liabilities
of each
of the
Obligors under the
Finance Documents shall
not be in any way affected by -
34.5.5.1
any
actual
or
purported
irregularity
in
any
act
done,
or
failure
to
act,
by
the
Term/RCF Borrower;
34.5.5.2
the Term/RCF Borrower acting (or purporting to act) in any respect outside any
authority conferred upon it by any Obligor; or
34.5.5.3
any
actual or
purported failure
by,
or
inability of,
the Term/RCF
Borrower to
inform
any
Obligor
of
receipt
by
it
of
any
notification
under
the
Finance
Documents.
169
34.5.6
In
the
event
of
any
conflict
between
any
notices
or
other
communications
of
the
Term/RCF
Borrower and
any other
Obligor,
those of
the Term/RCF
Borrower shall
prevail.
34.5.7
Any communication given
to the
Term/RCF
Borrower in
connection with
a Finance
Document will be deemed to have been given also to the other Obligors.
34.5.8
A
Finance
Party
may
assume
that
any
communication
made
by
the
Term/RCF
Borrower
on
behalf
of
an
Obligor
is
made
with
the
knowledge
and
consent
of
that
Obligor.
34.5.9
The Parties record that -
34.5.9.1
a WCF
Lender shall
be entitled to
communicate and
transact directly
with any
member of the
Covenant Group in respect of
the day to day
administration and
operation of the applicable Working Capital Facility; and
34.5.9.2
WesBank
shall
be
entitled
to
communicate
and
transact
directly
with
any
member of the
Covenant Group in respect of
the day to day
administration and
operation of the applicable WesBank Facility.
34.6
Notification of address and email address
Upon receipt
of notification
of an
address or
email address
or change
of address
or email
address pursuant
to
clause
34.2 above
, or
changing its
own address
or
email address,
the
Facility Agent shall notify the other Parties as soon as reasonably
practicable.
34.7
Electronic communication
34.7.1
Any communication to be made between the Facility Agent
and a Lender under or in
connection
with
the
Finance
Documents
may
be
made
by
electronic
mail
or
other
electronic means, if the Facility Agent and the relevant Lender -
34.7.1.1
agree that, unless
and until notified
to the contrary, this is
to be an accepted
form
of communication;
34.7.1.2
notify
each
other
in
writing
of
their
electronic
mail
address
and/or
any
other
information
required
to
enable
the
sending
and
receipt
of
information
by
that
means; and
34.7.1.3
notify each
other of
any change
to their
address or
any other
such information
supplied by them.
170
34.7.2
Any electronic communication made between the
Facility Agent and a Lender will be
effective only
when actually
received in
readable form
and in
the case
of any
electronic
communication made by a Lender to the Facility Agent only if it is addressed in
such
a manner as the Facility Agent shall specify for this purpose.
34.8
English language
Any
notice
or
other
document given
under
or
in
connection
with any
Finance Document
must be in English.
35
AMENDMENTS AND WAIVERS
35.1
A term of the Finance
Documents may be amended or waived
only with the consent of the
Facility
Agent
(acting
on
the
instructions
of
the
applicable
Finance
Parties
under
the
Intercreditor Agreement) and the Obligors.
35.2
The Facility Agent may effect and execute,
on behalf of any Finance Party, any amendment
or waiver permitted by this clause.
35.3
No amendment
or waiver
contemplated by
this clause
35
shall be
of any
force or
effect unless
in writing and signed by or on behalf of the relevant Parties.
35.4
An amendment of any provision of clause
27
(The Facility Agent) may be effected without
the consent of
or notice to
any Obligor,
provided that such
amendment does not
place any
additional obligation or liability on any Obligor.
35.5
Each Obligor agrees to any such amendment or waiver permitted by this clause
35
which is
agreed to
by the
Term/RCF Borrower. This includes
any amendment
or waiver
which would,
but for this clause
35.5
, require the consent of all of the Obligors.
36
CONFIDENTIALITY
36.1
Confidential Information
Each
Finance
Party
agrees
to
keep
all
Confidential
Information
confidential
and
not
to
disclose it to
anyone, save to the
extent permitted by clause
36.2 below
, 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.
36.2
Disclosure of Confidential Information
Any Finance Party may disclose -
171
36.2.1
to
any of
its
Affiliates
and Related
Funds and
any of
its
or their
officers,
directors,
employees,
professional
advisers,
auditors,
partners
and
Representatives
such
Confidential Information
as that
Finance Party
shall consider
appropriate if any
person
to whom the
Confidential Information is to
be given pursuant
to this clause
36.2.1
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
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;
36.2.2
to any other person -
36.2.2.1
to (or through) whom it Transfers
(or may potentially Transfer) all
or any of its
rights and
obligations under
this Agreement
and to
any of
that person's
Affiliates,
Related Funds, Representatives and professional advisers;
36.2.2.2
with (or
through) whom
it enters
into (or
may
potentially enter
into), whether
directly
or
indirectly,
any
sub-participation
or
other
credit
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;
36.2.2.3
appointed
by
any
Finance
Party
or
by
a
person
to
whom
clauses
36.2.2.1
or
36.2.2.2
above
applies
to
receive
communications,
notices,
information
or
documents delivered pursuant to the Finance Documents on its behalf;
36.2.2.4
who invests in
or otherwise finances
(or may potentially
invest in or
otherwise
finance), directly or indirectly,
any transaction referred to in clauses
36.2.2.1
or
36.2.2.2 above;
36.2.2.5
to
whom information
is
required
or
requested to
be disclosed
by any
court
of
competent
jurisdiction
or
any
governmental,
banking,
taxation
or
other
regulatory
authority,
rating
agency
or
similar
body,
the
rules
of
any
relevant
stock exchange or pursuant to any applicable law or regulation;
36.2.2.6
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;
172
36.2.2.7
who is a Party; or
36.2.2.8
with the express prior consent of the Term/RCF Borrower,
36.2.3
in
each
case,
such
Confidential
Information
as
that
Finance
Party
shall
consider
appropriate if -
36.2.3.1.1
in relation
to clauses
36.2.2.1
,
36.2.2.2
and
36.2.2.3 above
, the
person to
whom
the
Confidential
Information
is
to
be
given
has
entered
into
a
Confidentiality Undertaking except that
there shall be
no requirement for
a Confidentiality Undertaking if the recipient is a professional
adviser and
is subject to professional obligations to maintain the confidentiality of the
Confidential Information;
36.2.3.1.2
in relation to
clause
36.2.2.4 above
, the person
to whom the
Confidential
Information is to
be given has
entered into a
Confidentiality Undertaking
or is otherwise bound by requirements
of confidentiality in relation to the
Confidential Information they receive
and is informed
that some or
all of
such Confidential Information may be price-sensitive information;
and
36.2.3.1.3
in relation
to clauses
36.2.2.5
,
36.2.2.6
and
36.2.2.7 above
, the
person to
whom
the
Confidential
Information
is
to
be
given
is
informed
of
its
confidential nature and
that some
or all
of such
Confidential Information
may
be
price-sensitive
information
except
that
there
shall
be
no
requirement to so
inform if, in
the opinion of
that Finance Party,
it is
not
practicable so to do in the circumstances; and
36.2.4
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 any Finance
Party, the Finance Documents
and/or the Obligors.
36.3
Entire agreement
This
clause
36
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.
36.4
Inside information
173
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.
36.5
Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted
by law and regulation) to inform
the Term/RCF Borrower -
36.5.1
of the circumstances
of any disclosure
of Confidential Information made
pursuant to
clause
36.2.2.4
above
except
where
such
disclosure
is
made
to
any
of
the
persons
referred to
in that
clause during
the ordinary
course of
its supervisory
or regulatory
function; and
36.5.2
upon becoming
aware that
Confidential Information
has been
disclosed in
breach of
this clause
36.
36.6
Continuing obligations
The obligations in this clause
36
are continuing and, in particular, shall
survive and remain
binding on each Finance Party for a period of twelve months from
the earlier of -
36.6.1
The date
on which
all amounts
payable by
the Obligors
under or
in connection
with
the
Finance
Documents
have
been
paid
in
full
and
all
Commitments
have
been
cancelled or otherwise cease to be available; and
36.6.2
the date on
which all amounts
on which such
Finance Party otherwise ceases
to be a
Finance Party.
37
GENERAL PROVISIONS
37.1
Sole agreement
The Finance Documents
constitute the sole
record of the
agreement between the Parties
in
regard to the subject matter thereof.
37.2
No implied terms
No Party shall be bound
by any express or implied term,
representation, warranty, promise
or the like, not recorded in a Finance Document.
174
37.3
Rights and remedies
37.3.1
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 of each
Finance Party under the Finance Documents -
37.3.1.1
are cumulative and not exclusive of its rights under the general law;
37.3.1.2
may be exercised as often as the Finance Party requires; and
37.3.1.3
may be waived only in writing and specifically.
37.3.2
Delay in the exercise or non-exercise of any right is not a waiver of
that right.
37.4
Extensions and waivers
No latitude,
extension of
time or
other indulgence
which may
be given
or allowed by
any
Party to any
other Party in
respect of the
performance of any
obligation or enforcement
of
any right
under a
Finance Document, and
no single or
partial exercise of
any right
by any
Party, shall be construed
to be an implied consent by such Party or operate as a waiver or a
novation
of,
or
otherwise
affect
any
of
that
Party’s
rights
under
or
in
connection
with
a
Finance Document or estop
such Party from enforcing,
at any time and without
notice, strict
and punctual compliance with each and every provision or term of a Finance Document.
37.5
Partial invalidity
If,
at
any
time,
any
provision
of
a
Finance
Document
is
or
becomes
illegal,
invalid,
unenforceable or
inoperable in
any
respect
under
any law
of
any
jurisdiction, neither
the
legality,
validity,
enforceability or
operation of
the
remaining provisions
nor
the
legality,
validity, enforceability or operation
of such provision
under the law
of any other
jurisdiction
will
in
any
way
be
affected
or
impaired.
The
term
inoperable
in
this
clause
37.5
shall
include, without limitation, inoperable by way of suspension or cancellation.
37.6
Renunciation of benefits
Each Obligor renounces, to
the extent permitted
under applicable law,
the benefits of
each
of the
legal exceptions
of excussion,
division, revision
of accounts,
no value
received,
errore
calculi
,
non causa debiti
,
non numeratae pecuniae
and cession of actions, and declares that
it understands the meaning of each such
legal exception and the effect of such renunciation.
175
37.7
Further assurances
Each Obligor must
perform, or procure
the performance, of
all further things,
and execute
and
deliver
(or
procure
the
execution
and
delivery)
of
all
further
documents,
as
may
be
required
by
any
applicable
law
or
regulation
or
as
may
be
necessary
or
desirable
to
implement
or
give
effect
to
this
Agreement
and
the
other
Finance
Documents
and
the
transactions contemplated therein.
37.8
Independent advice
Each Obligor
acknowledges that
it has
been free
to secure
independent legal
and other
advice
as to the nature and effect
of all of the provisions of
the Finance Documents and that it has
either taken
such independent
legal and
other advice
or dispensed
with the
necessity of
doing
so. Further, each Obligor acknowledges
that all of the
provisions of each
Finance Document
and
the
restrictions
therein
contained
are
part
of
the
overall
intention
of
the
Parties
in
connection with the Finance Documents.
37.9
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.
38
GOVERNING LAW
This
Agreement and
any non-contractual
obligations arising
out of
or in
connection with
it are
governed by South African law.
39
JURISDICTION
39.1
The Parties
hereby irrevocably
and unconditionally
consent to
the non-exclusive
jurisdiction
of the
High Court
of South
Africa (Gauteng
Local Division,
Johannesburg) (or
any successor
to that
division) in
regard to
all matters
arising from
the Finance
Documents (including
a
dispute relating to the existence, validity or termination
of a Finance Document or any non-
contractual obligation arising
out of or
in connection with
a Finance Document)
(a
dispute
).
39.2
The Parties
agree that
the courts
of South
Africa are
the most
appropriate and
convenient
courts to settle disputes. The Parties
agree not to argue to
the contrary and waive objection
to this court on the
grounds of inconvenient forum
or otherwise in relation
to proceedings in
connection with any Finance Document.
176
39.3
This clause
39
is for
the benefit
of the
Finance Parties only.
As a
result, no
Finance Party
shall
be
prevented
from
taking
proceedings
relating
to
a
dispute
in
any
other
court
with
jurisdiction. To the extent allowed by
law, a Finance Party may take
concurrent proceedings
in any number of jurisdictions.
40
WAIVER
OF IMMUNITY
Each Obligor irrevocably and unconditionally -
40.1
agrees not
to
claim any
immunity from
suit, execution,
attachment or
other legal
process
brought by a Finance Party against
it in relation to a
Finance Document, and to ensure that
no such claim is made on its behalf;
40.2
consents generally to the giving of any relief or the issue of any process in
connection with
those proceedings; and
40.3
waives
any
right
it
may
have
to
claim
for
itself
or
any
of
its
assets
immunity from
suit,
execution, attachment or other legal process.
1
THE FACILITY AGENT
Signed at Sandton
on 27 February
2025
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Kedy Mazibuko
who warrants that he is duly
authorised hereto
Kedy Mazibuko
Name of Signatory
Authorised
Designation
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Eric Mphohoni
who warrants that he is duly
authorised hereto
Eric Mphohoni
Name of Signatory
Authorised Signatory
Designation
1
THE ORIGINAL SENIOR LENDER
Signed at Sandton
on 27 February
2025
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Kedy Mazibuko
who warrants that he is duly
authorised hereto
Kedy Mazibuko
Name of Signatory
Authorised
Designation
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Eric Mphohoni
who warrants that he is duly
authorised hereto
Eric Mphohoni
Name of Signatory
Authorised Signatory
Designation
2
Signed at Sandton
on 27 February
2025
for
Investec Bank Limited (acting through its
Investment Banking division: Corporate
Solutions)
/s/ Kerry Caldwell
who warrants that he is duly
authorised hereto
Kerry Caldwell
Name of Signatory
Authorised Signatory
Designation
for
Investec Bank Limited (acting through its
Investment Banking division: Corporate
Solutions)
/s/ Sean Rule
who warrants that he is duly
authorised hereto
Sean Rule
Name of Signatory
Authorised Signatory
Designation
1
THE ORIGINAL WCF LENDER
Signed at JHB
on 27 Feb 25
2025
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Wally Laurens
who warrants that he is duly
authorised hereto
Wally Laurens
Name of Signatory
Authorised
Designation
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Kedy Mazibuko
who warrants that he is duly
authorised hereto
Kedy Mazibuko
Name of Signatory
Authorised
Designation
1
WESBANK
Signed at JOHANNESBURG
on 27/02/25
2025
for
FirstRand Bank Limited (acting through its
WesBank division)
/s/ Sharon Bekker
who warrants that he is duly
authorised hereto
Sharon Bekker
Name of Signatory
Sales Manager
Designation
for
FirstRand Bank Limited (acting through its
WesBank division)
who warrants that he is duly
authorised hereto
Name of Signatory
Designation
1
THE DEBT GUARANTOR
Signed at Woodmead
on 27 February
2025
for
Bowwood and Main No 408 (RF) Proprietary
Limited
/s/ Phillemon Ledwaba
who warrants that he is duly
authorised hereto
Phillemon Ledwaba
Name of Signatory
Duly Authorised
Designation
1
HOLDCO
Signed at Parkhurst
on 27 February
2025
for
Lesaka Technologies, Inc.
/s/ Daniel Smith
who warrants that he is duly
authorised hereto
Daniel Smith
Name of Signatory
Group Chief Financial Officer
Designation
1
THE ORIGINAL OBLIGORS
TERM / RCF BORROWER
Signed at CAPE TOWN
on 27 February
2025
for
Lesaka Technologies Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
Group COO
Designation
1
THE ORIGINAL OBLIGORS
THE WCF BORROWERS
Signed at CAPE TOWN
on 27 February
2025
for
Cash Connect Management Solutions
Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
2
Signed at CAPE TOWN
on 27 February
2025
for
EasyPay Financial Services Proprietary
Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
3
Signed at CAPE TOWN
on 27 February
2025
for
Lesaka Technologies Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
4
Signed at Parkhurst
on 27 February
2025
for
Adumo (RF) Proprietary Limited
/s/ Daniel Smith
who warrants that he is duly
authorised hereto
Daniel Smith
Name of Signatory
Group Chief Financial Officer
Designation
5
Signed at JHB
on 27/02/2025
2025
for
Cash Connect Rentals Proprietary Limited
/s/ Steven John Heilbron
who warrants that he is duly
authorised hereto
Steven John Heilbron
Name of Signatory
Director
Designation
6
Signed at CAPE TOWN
on 27 February
2025
for
Main Street 1723 Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
7
THE ORIGINAL OBLIGORS
THE ORIGINAL GUARANTORS
Signed at CAPE TOWN
on 27 February
2025
for
Lesaka Technologies Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
8
Signed at Parkhurst
on 27 February
2025
for
Lesaka Technologies, Inc.
/s/ Daniel Smith
who warrants that he is duly
authorised hereto
Daniel Smith
Name of Signatory
Group Chief Financial Officer
Designation
9
Signed at CAPE TOWN
on 27 February
2025
for
Prism Holdings Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
10
Signed at CAPE TOWN
on 27 February
2025
for
Net1 Finance Holdings Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
11
Signed at CAPE TOWN
on 27 February
2025
for
EasyPay Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
12
Signed at CAPE TOWN
on 27 February
2025
for
Prism Payment Technologies Proprietary
Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
13
Signed at CAPE TOWN
on 27 February
2025
for
Cash Connect Management Solutions
Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
14
Signed at JHB
on 27 February
2025
for
Deposit Manager Proprietary Limited
/s/ Steven John Heilbron
who warrants that he is duly
authorised hereto
Steven John Heilbron
Name of Signatory
Director
Designation
15
Signed at JHB
on 27 February
2025
for
Cash Connect Rentals Proprietary Limited
/s/ Steven John Heilbron
who warrants that he is duly
authorised hereto
Steven John Heilbron
Name of Signatory
Director
Designation
16
Signed at CAPE TOWN
on 27 February
2025
for
Main Street 1723 Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
17
Signed at CAPE TOWN
on 27 February
2025
for
EasyPay Financial Services Proprietary
Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
18
Signed at Durban
on 27 February
2025
for
GAAP Point-of-Sale Proprietary Limited
/s/ Irshaad Essa
who warrants that he is duly
authorised hereto
Irshaad Essa
Name of Signatory
Financial Director
Designation
19
Signed at Cape Town
on 27 February
2025
for
Adumo Payments Proprietary Limited
/s/ Grant Michael Manicom
who warrants that he is duly
authorised hereto
Grant Michael Manicom
Name of Signatory
Director
Designation
20
Signed at Cape Town
on 27 February
2025
for
Adumo Payouts Proprietary Limited
/s/ Stephen John Mallaby
who warrants that he is duly
authorised hereto
Stephen John Mallaby
Name of Signatory
CEO
Designation
21
Signed at Cape Town
on 27/02/2025
2025
for
Adumo Technologies Proprietary Limited
/s/ Grant Michael Manicom
who warrants that he is duly
authorised hereto
Grant Michael Manicom
Name of Signatory
Director
Designation
22
Signed at Cape Town
on 27 February
2025
for
Adumo Management Company Proprietary
Limited
/s/ Grant Michael Manicom
who warrants that he is duly
authorised hereto
Grant Michael Manicom
Name of Signatory
Director
Designation
23
Signed at Parkhurst
on 27 February
2025
for
Adumo (RF) Proprietary Limited
/s/ Daniel Smith
who warrants that he is duly
authorised hereto
Daniel Smith
Name of Signatory
Group Chief Financial Officer
Designation
24
Signed at Jhb
on 27 February
2025
for
Ovobix (RF) Proprietary Limited
/s/ Steven John Heilbron
who warrants that he is duly
authorised hereto
Steven John Heilbron
Name of Signatory
Director
Designation
25
Signed at CAPE TOWN
on 27 February
2025
for
Luxanio 227 Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
26
Signed at CAPE TOWN
on 27 February
2025
for
K2021477132 (South Africa) Proprietary
Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
27
Signed at CAPE TOWN
on 27 February
2025
for
Easypay Cash Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation
28
ANNEXURE
A
- THE PARTIES
Part I
The Original Obligors
Term/RCF Borrower
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
Name of WCF Borrowers
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Cash Connect Management Solutions
Proprietary Limited
South Africa
2006/010530/07
2
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
3
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
4
Adumo (RF) Proprietary Limited
South Africa
2017/540380/07
5
Cash Connect Rentals Proprietary Limited
South Africa
2009/007139/07
6
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
7
EasyPay Proprietary Limited
South Africa
1983/008597/07
Name of Original Guarantors
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
2
Lesaka Technologies, Inc.
State of Florida,
United States
P9700001098
3
Prism Holdings Proprietary Limited
South Africa
1998/018949/07
4
Net1 Finance Holdings Proprietary Limited
South Africa
1998/020801/07
29
5
EasyPay Proprietary Limited
South Africa
1983/008597/07
6
Prism Payment Technologies Proprietary
Limited
South Africa
1990/005062/07
7
Cash Connect Management Solutions
Proprietary Limited
South Africa
2006/010530/07
8
Deposit Manager Proprietary Limited
South Africa
2010/016889/07
9
Cash Connect Rentals Proprietary Limited
South Africa
2009/007139/07
10
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
11
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
12
GAAP Point-of-Sale Proprietary Limited
South Africa
1999/003571/07
13
Adumo Payments Proprietary Limited
South Africa
2015/427833/07
14
Adumo Payouts Proprietary Limited
South Africa
2005/010672/07
15
Adumo Technologies Proprietary Limited
South Africa
2000/029811/07
16
Adumo Management Company Proprietary
Limited
South Africa
2021/147994/07
17
Adumo (RF) Proprietary Limited
South Africa
2017/540380/07
18
Ovobix (RF) Proprietary Limited
South Africa
2013/068120/07
19
Luxanio 227 Proprietary Limited
South Africa
2018/605739/07
20
K2021477132 (South Africa) Proprietary
Limited
South Africa
2021/477132/07
21
EasyPay Cash Proprietary Limited
South Africa
2001/028826/07
30
Part II
The Original Senior Lenders
under the Senior Term Facilities and Senior RCF
Original Senior
Lenders
Address for Purposes of clause
34
(Notices)
Senior Term
Facility A
Commitment
Senior Term
Facility B
Commitment
Senior RCF
Commitment
[Column 1]
[Column 2]
[Column 3]
[Column 4]
[Column 5]
1.
FirstRand Bank
Limited (acting
through its Rand
Merchant Bank
division)
1 Merchant Place, 16th Floor
Cnr Fredman Drive and Rivonia Road
Sandton, 2196
Email -
XXX;
XXX;
XXX;
XXX;
XXX;
XXX;
XXX;
XXX;
XXX;
XXX;
XXX
Att -
Head
of
Transaction
Management
-
Investment
Banking
R1,609,245,740.62
R746,493,641.20
The amount of
voluntary
prepayments of
Senior Term
Facility A Loans
which were made
by that Original
Senior Lender
31
2
Investec Bank
Limited (acting
through its
Investment
Banking
division:
Corporate
Solutions
100
Grayston
Drive,
Sandown,
Sandton,
Johannesburg, 2196
Email- XXX
Attention:
Head of Investment Banking
R546,493,641.20
R253,506,358.80
The amount of
voluntary
prepayments of
Senior Term
Facility A Loans
which were made
by that Original
Senior Lender
R2,155,739,381.82
R1,000,000,000
32
ANNEXURE
B
- CONDITIONS PRECEDENT
Part I
Conditions Precedent to Initial Utilisation
1.
OBLIGORS AND SECURITY PROVIDERS
1.1
A copy of the constitutional documents of each Obligor and Security
Provider.
1.2
A copy of
a resolution of
the board of
directors of each
Obligor and Security
Provider which
is a party to a Finance Document, to the extent applicable -
1.2.1
approving the terms of, and the transactions
contemplated by, the Finance Documents
to which it is a party
and resolving that it execute the Finance
Documents to which it
is a party;
1.2.2
authorising it, for all purposes required under sections 45 and/or 46 of the Companies
Act
(as
applicable),
to
provide
the
"
financial
assistance
"
and
to
make
any
"
distribution
"
that
may
arise
as
a
result
of
its
entry
into
the
Finance
Documents to
which it is a party;
1.2.3
authorising a specified person or persons to execute the Finance Documents to which
it is a party on its behalf; and
1.2.4
authorising
a
specified
person
or
persons,
on
its
behalf,
to
sign
and/or
despatch all
documents
and notices
to
be
signed and/or
despatched by
it
under or
in
connection
with the Finance Documents to which it is a party.
1.3
To
the extent
applicable, a
copy of
a special
resolution duly
passed by
the holders
of the
issued shares of each Obligor and Security Provider authorising
it, for all purposes required
under section 45 of the Companies Act, to provide the "
financial assistance
" that may arise
as a result of its entry into the Finance Documents to which it is a party.
1.4
To the extent required by the Companies Act, any other applicable law or the constitutional
documents of
an Obligor
and Security
Provider, a
copy of
a resolution duly
passed by
the
holders of
the issued
shares of
that Obligor
or Security
Provider ,
approving the
terms of,
and
the
transactions
contemplated
by,
the
Finance
Documents
to
which
that
Obligor
or
Security Provider is a party.
1.5
A specimen of the
signature of each person
authorised by the
resolution referred to
in clause
1.2 above.
1.6
A certificate of an authorised signatory of each Obligor and each other
Security Provider -
1.6.1
confirming
that
borrowing,
guaranteeing
or
securing,
as
appropriate,
the
Total
Commitments would not cause any borrowing, guaranteeing,
securing or similar limit
binding on it to be exceeded; and
1.6.2
certifying that each copy document
relating to it specified in
this Part I of
Annexure B
is correct, complete and in full force and effect as at a date no earlier than the Closing
Date.
1.6.3
no
Default
has
occurred
or
is
continuing
or
will
result
from
the
execution
of
the
Finance Documents;
33
1.6.4
the representations and
warranties set out
in clause
20
(Representations) are true
and
correct in all respects;
1.6.5
no
event
or
series
of
events
or
circumstances
has
occurred
or
arisen
which,
in
that
entity’s opinion, is likely to have a Material Adverse Effect;
1.6.6
no investigation, litigation, arbitration or
administrative proceedings of or before any
court, arbitral body,
competent competition authority or other
regulatory authority or
government agency which, if
adversely determined, will
have or is
reasonably likely
to have a Material
Adverse Effect have, to
the best of its
knowledge and belief, been
started or threatened against it or any member of the Covenant Group;
and
1.6.7
no event or
circumstance has arisen,
and there has
been no change
in circumstances,
in relation to any Environmental Matters since 30 June 2024.
1.7
In relation to Holdco -
1.7.1
a certificate as to the active status of Holdco from the Florida Department of State, in
form and substance satisfactory to the Facility Agent and its counsel;
and
1.7.2
a solvency certificate signed
by the chief financial
officer or chief
accounting officer
of Holdco in form and substance satisfactory to the Facility Agent.
2.
Legal opinions
2.1
A legal
opinion of
Werksmans
Inc, legal
advisers to
the Finance
Parties, addressed
to the
Facility Agent for and on behalf of the Finance Parties, substantially in the
form distributed
to
the
Original
Senior
Lenders
prior to
signing
this Agreement
in
respect
of
the
legality,
validity and enforceability of the Finance Documents.
2.2
A legal opinion
of Webber Wentzel attorneys, legal advisers
to the Obligors
in South Africa,
addressed to the Facility Agent for and on behalf of the Finance Parties, substantially in the
form distributed to
the Original Senior
Lenders prior to
signing this Agreement, in
respect
of the capacity, powers and
authority of the Obligors
and other Security
Providers which are
party to
the Finance
Documents, to
enter into
and perform
their obligations
under the
Finance
Documents and the due execution of those documents.
2.3
A legal opinion of McDermott Will &
Emery, LLP,
legal advisers to the Finance Parties in
the US] and in the
State of Florida addressed to
the Facility Agent for and
on behalf of the
Finance Parties, substantially in the form distributed to the Original Senior Lenders prior to
signing this Agreement, in respect of the
capacity, powers and authority
of Holdco to enter
into and
perform its
obligations under
the Finance
Documents and
the due
execution of
those
documents under Florida law.
3.
Finance Documents
3.1
An original of each of the following Finance Documents duly entered into by each Party to
it -
3.1.1
this Agreement;
3.1.2
each Senior Term Facility Agreement;
3.1.3
the Senior RCF Agreement;
3.1.4
each WCF Agreement;
34
3.1.5
each WesBank Agreement;
3.1.6
the Lesaka Release Agreement;
3.1.7
the Cash Connect Management Release Agreement;
3.1.8
the Debt Guarantee;
3.1.9
the Counter-indemnity Agreement;
3.1.10
each Security Structure Document;
3.1.11
each Security Agreement;
3.1.12
the Fee Letters; and
3.1.13
the Further Rights Letter.
3.2
The
following
documents
of
title
and
related
documents
in
relation
to
shares
and
other
securities that are subject to Transaction Security -
3.2.1
the
original
share
certificates
(or
applicable
certificates
of
title
in
respect
of
other
securities);
3.2.2
an original securities
transfer form duly
executed by the
relevant Obligor (undated
and
left blank as to the transferee);
3.2.3
a
resolution
by
the
directors
of
each
company
the
shares
of
which
are
subject
to
Transaction
Security,
acknowledging
the
pledge
and
agreeing
to
give
effect
to
any
transfer of shares that may occur as a result;
3.2.4
any
waivers
of
pre-emptive
rights
which
may
be
required
in
respect
of
any
shares
which are subject to the Transaction Security; and
3.2.5
all other documents of title required to be provided under the Security
Documents.
3.3
A copy
of all
notices required
to be
sent, acknowledgements
required to
be delivered
and
other documents
required to be
executed under the
Security Documents, duly
executed by
the persons party thereto.
3.4
A
copy
of
the
securities
register
of
Holdco,
each
other
Obligor
and
each
member
of
the
Covenant Group whose shares are subject to the Transaction Security.
4.
Regulatory authorisations
All regulatory approvals required for the implementation of the transactions contemplated by the
Finance Documents
(including to
the extent
that any
such approval
is required
to establish
any
Security under the Security Documents).
5.
Credit Approval
The approval of the credit committee
of each Original Lender of the
grant of the Facilities to the
Borrowers under the Finance Documents.
35
6.
Know Your
Customer Requirements
Such documentation and
other evidence
as is reasonably
requested by the
Facility Agent
(for itself
or on behalf of any other Finance Party) to carry out and be satisfied that it has complied with all
necessary
know
your
customer
or
similar
identification
procedures
under
applicable
laws
and
regulations (including
the Financial
Intelligence Centre
Act, 2001)
pursuant to
the
transactions
contemplated in the Finance Documents.
7.
Other documents and evidence
7.1
Evidence that the fees, costs and expenses then due from the Term/RCF Borrower pursuant
to clause
13
(Fees), clause
14.5
(Stamp taxes) and
clause
18
(Costs and expenses)
have been
paid or will be paid by the first Utilisation Date.
7.2
A Compliance
Certificate dated on
or about the
Closing Date which
demonstrates that the
Borrower
will
comply
with
the
provisions
of
clause
22.1
(Undertaking
in
relation
to
Financial
Condition)
if
such
Financial
Covenants
were
to
be
calculated
as
at
the
first
Utilisation Date, taking into account the amount of such Utilisations.
7.3
Evidence to the satisfaction of
the Facility Agent that
Cash Connect Management has
paid
any and all
interest which would
be due and
payable by it,
on the
first Utilisation Date,
in
terms of the Cash Connect Management Facilities Agreement.
7.4
A copy of the Original Financial Statements.
7.5
Evidence that all required Insurances are in place.
7.6
A copy
of any
other authorisation
or other
document, opinion
or assurance
which the
Facility
Agent
considers
to
be
necessary
or
desirable
(if
it
has
notified
the
Term/RCF
Borrower
accordingly)
in
connection
with
the
entry
into
and
performance
of
the
transactions
contemplated by
any Finance
Document or
for the
validity and
enforceability of
any Finance
Document.
36
Part II
Conditions Precedent Required to be
Delivered by an Additional Obligor and/or in relation to further Transaction Security
1
An Accession Letter, duly executed by the Additional Obligor and the Term/RCF Borrower.
2
A copy of the constitutional documents of the Additional Obligor.
3
A copy of a resolution of the board of directors of the Additional Obligor
-
3.1
approving the terms of, and the transactions
contemplated by, the
Accession Letter and the
Finance Documents and resolving that it execute the Accession Letter;
3.2
in the case of an Additional Obligor, authorising it, for all purposes required under sections
45
and
46
of
the
Companies
Act,
to
provide
the
"
financial
assistance
"
and
to
make
any
"
distribution
" that may arise as
a result of its entry into
the Finance Documents to which it
is a party (or, in the case of any Additional Obligor incorporated in a jurisdiction other than
South Africa, any equivalent authorisations required under the laws of such
jurisdiction);
3.3
authorising a specified person or persons to execute the Accession Letter on
its behalf; and
3.4
authorising
a
specified
person
or
persons,
on
its
behalf, to
sign
and/or
despatch all
other
documents and notices to be signed and/or despatched by it under or in connection with the
Finance Documents.
4
A copy
of a
special resolution
duly passed
by the
holders of
the issued
shares of
an Additional
Obligor authorising it,
for all purposes
required under section
45 of the
Companies Act,
to provide
the
"
financial assistance
"
that may
arise as
a result
of its
entry into
the Finance
Documents to
which it
is a
party (or
in the
case of
any Additional
Obligor incorporated in
a jurisdiction
other
than South Africa, any equivalent authorisations required under the
laws of such jurisdiction).
5
To the
extent required with reference to the constitutional documents of an Additional Obligor, a
copy of
a resolution
duly passed
by the
holders of
the issued
shares of
that Additional
Obligor,
approving the
terms of,
and the
transactions contemplated by,
the Finance
Documents to
which
that Additional Obligor is a party.
6
A specimen
of the
signature of
each person
authorised by
the resolution
referred to
in clause
3
above.
37
7
A certificate
of the
Additional Obligor
(signed by
a director)
confirming that
borrowing and/or
guaranteeing,
as
appropriate,
the
Total
Commitments
would
not
cause
any
borrowing,
guaranteeing or similar limit binding on it to be exceeded.
8
A
certificate
of
an
authorised
signatory
of
the
Additional
Obligor
certifying
that
each
copy
document listed in this Part
II of
Annexure B
is correct, complete and in full
force and effect as at
a date no earlier than the date of the Accession Letter.
9
If available, the latest audited financial statements of the Additional
Obligor.
10
Security Documents
duly executed
by the
Additional Obligor
in respect
of all
Transaction Security
it is required to provide in accordance with Annexure G (Transaction Security).
11
Security Documents duly executed by the relevant member of
the Covenant Group in its capacity
as
shareholder in
the
Additional Obligor
in
respect of
all
Transaction
Security it
is
required to
provide in accordance with Annexure G (Transaction Security).
12
All
documents
required
to
procure
registration
of
the
notarial
bonds
set
out
in
Annexure
G
(Transaction Security),
including a
power of
attorney in
favour of
the Finance
Parties' conveyancer
to pass and register each such Security Document at the applicable
statutory public register.
13
Evidence that each general notarial bond and deeds of hypothecations of trademarks, patents and
designs,
in
each
case,
referred
to
in
Annexure
G
(Transaction
Security),
if
so
required
by
the
Facility Agent, has been lodged for registration at the applicable
statutory public registry.
14
The following documents of title and
related documents in relation to shares
and other securities
that are subject to Transaction Security -
14.1
the original share
certificates (or applicable
certificates of title
in respect of
other securities);
14.2
an original securities transfer form
duly executed by the relevant Obligor
(undated and left
blank as to the transferee);
14.3
a resolution by the directors
of each company the shares
of which are subject to
Transaction
Security, acknowledging the pledge and agreeing
to give effect to any
transfer of shares that
may occur as a result; and
14.4
all other documents of title required to be provided under the Security
Documents.
38
15
A copy
of all
notices required
to be
sent, acknowledgements
required to
be delivered
and other
documents required to
be executed under the
Security Documents, duly executed
by the persons
party thereto.
16
A copy of the securities register of the Additional Obligor.
17
All
necessary
regulatory
approvals
to
the
satisfaction
of
the
Facility
Agent
required
for
the
accession of the Additional Obligor as an Obligor.
18
A legal opinion of the
legal advisers to the
Finance Parties and the
Facility Agent in
South Africa.
19
A legal opinion of the legal advisers to the Obligors in South Africa.
20
In relation to
any Additional
Obligor incorporated in
a jurisdiction other
than South Africa,
a legal
opinion from legal counsel in that jurisdiction acceptable to the Facility
Agent.
21
If the Additional Obligor is incorporated in a jurisdiction other than South Africa, a legal opinion
of the legal
advisers to the
Finance Parties in
the jurisdiction in
which the Additional
Obligor is
incorporated.
22
A
copy
of
any
other
authorisation
or
other
document,
opinion
or
assurance
which
the
Facility
Agent considers to be necessary
or desirable in connection with
the entry into and
performance of
the transactions contemplated
by the Accession Letter
or for the validity and
enforceability of any
Finance Document.
39
ANNEXURE
C
- FORM OF TRANSFER CERTIFICATE
To -
[
Facility Agent
], as Facility Agent
[●]
[●]
From -
[
The Existing Lender
] (the
Existing Lender
) and [
the New Lender
]
(the
New Lender
)
[●], 20
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Common Terms Agreement, dated [●], 2025
(
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
25.4
(Procedure for transfer).
3
The Existing
Lender and
the New
Lender agree
to the
Existing Lender
transferring to
the New
Lender
by
cession
and
delegation
all
or
part
of
the
Existing
Lender's
Commitment,
rights
and
obligations referred to in the Schedule in accordance with clause
25.4
(Procedure for transfer).
4
The proposed Transfer Date is [●].
5
The address of the New
Lender, email address and attention details
for notices of the New
Lender
for the purposes of clause
34.2
(Addresses) are set out in the Schedule.
6
On and with effect from the Transfer Date the New Lender -
6.1
becomes party to the Agreement as a [Senior Term Facility Lender] [Senior RCF Lender];
6.2
becomes party to the Intercreditor Agreement;
6.3
undertakes
to
perform
all
the
obligations
expressed
in
the
Agreement,
the
Intercreditor
Agreement and other applicable Finance Documents to be assumed by
a Lender; and
40
6.4
agrees
that
it
shall
be
bound
by
all
the
provisions
of
the
Agreement,
the
Intercreditor
Agreement and
other applicable
Finance Documents
as if
it had
been an
original party
to
those Finance Documents as a Lender.
7
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set
out in clause
25.3
(Limitation of responsibility of Existing Lenders).
8
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.
9
This Transfer Certificate and any non-contractual obligations arising out of or in connection with
it are governed by South African law.
10
This Transfer Certificate has been entered into on the date stated at the beginning of this
Transfer
Certificate.
[
EXISTING LENDER
]
By -
[
NEW LENDER
]
By -
[
FACILITY AGENT
]
By -
As Facility Agent and for and
on behalf of each of the parties
to the Agreement (other than the Existing
Lender
and the
New Lender)
[and
each
of
the
parties to
the
Intercreditor Agreement
(other than
the
Existing Lender and the New Lender)].
Note -
The
execution
of
this
Transfer
Certificate
may
not
transfer
a
proportionate
share
of
the
Existing Lender's interest in security in all cases. It is the responsibility of the New Lender to ascertain
whether any other documents
or other formalities are
required to perfect a
transfer of such a
share in the
Existing Lender's
security and,
if so,
to arrange
for execution
of those
documents and
completion of
those formalities.
41
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details, including applicable Commitment (or part) and participation in
Loans
]
Part 1
Commitments
Senior Term Facility A
Commitment
Senior Term Facility B
Commitment
Senior RCF
Commitment
[●]
[●]
[●]
Part 2
Participations in Loans
Senior Term Facility A
Loan
Senior Term Facility B Loan
Senior RCF Loans
[●]
[●]
[●]
Part 3
Administrative Details of the New Lender
[
Insert details of address for notices and payment details, etc.
]
This Transfer Certificate is
accepted by the Facility
Agent and the
Transfer Date is confirmed
as [●].
[
Facility Agent
]
By
-
42
ANNEXURE
D
- FORMS OF ACCESSION LETTER
PART
II - ADDITIONAL GUARANTOR
To -
[
Facility Agent
], as Facility Agent
[●]
[●]
From -
[●] PROPRIETARY LIMITED
And -
[
SUBSIDIARY
]
[●], 20
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
1
We refer to -
1.1
the Agreement; and
1.2
the Security Cession & Pledge (as defined in the Agreement).
2
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.
3
[
Subsidiary
] agrees, with effect from the date of this Accession Letter, to -
3.1
become an Additional
Guarantor under the Agreement
and to be
bound by the
terms of
the Agreement as an Additional Guarantor;
3.2
become an Indemnifier under (and as defined in) the Counter-indemnity Agreement and
to be bound by the terms of the Counter-indemnity Agreement
as an Indemnifier; and
3.3
become an
Additional Cedent under
(and as defined
in) the
Security Cession &
Pledge
and to be bound by the terms of the Security Cession & Pledge as an
Additional Cedent,
pursuant to clause
26.3
(Additional Guarantors) of the Agreement.
4
[
Subsidiary
] (in its
capacity as Additional
Cedent) pledges
to the Debt
Guarantor all
its Shares
and
Investments
(in
each
case,
as
defined
in
the
Security
Cession
&
Pledge)
and
cedes
in
securitatem debiti
to the
Debt Guarantor
all its
Secured Property
(as defined
in the
Security
Cession
&
Pledge),
in
each
case
individually
and
collectively
with
all
the
other
Secured
43
Property
(as
defined
in
the
Security
Cession
&
Pledge),
as
continuing
general
covering
collateral security for the
due, proper and timeous
payment and performance in full
of all the
Secured Obligations (as defined in the Security Cession & Pledge), on the terms set out in the
Security Cession
& Pledge,
which pledge
and cession
the Debt
Guarantor (in
its capacity
as
Debt
Guarantor
under
the
Security
Cession
&
Pledge)
accepts.
For
the
purposes
hereof,
Secured
Property
means
all
the
Secured
Property
(as
defined
in
the
Security
Cession
&
Pledge) of [
Subsidiary
].
5
With effect from the
date of this Accession Letter the Security Cession &
Pledge will be read
and construed
for all
purposes as
if the
Additional Cedent
had been
an original
party in
the
capacity of Cedent
(but so that
the Security created
on this accession
will be created
on the date
of this Accession Letter).
6
[
Subsidiary
]
is
a
company
duly
incorporated
under
the
laws
of
[
name
of
relevant
jurisdiction
].
7
[
Subsidiary's
] administrative details are as follows -
Address -
[●]
Email Address -
[●]
Attention - [●]
8
All representations and
warranties set out
in clause
20
(Representations) are correct
on the date
of this Accession Letter.
9
This Accession Letter is a Finance Document.
10
This Accession
Letter may
be executed
in any number
of counterparts.
This has
the same
effect
as if the signatures on the counterparts were on a single copy of this Accession
Letter.
11
This Accession Letter and any non-contractual
obligations arising out of or in
connection with
it are governed by South African law.
[●] PROPRIETARY LIMITED
[
SUBSIDIARY
]
By -
By -
44
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
Accepted by the Debt Guarantor -
For and on behalf of -
Bowwood and Main No 408 (RF)
Proprietary Limited
Name -
Office
-
Date -
(who warrants his authority)
45
PART
II - ADDITIONAL WCF BORROWER
To -
[
Facility Agent
], as Facility Agent
[●]
[●]
From -
[●] PROPRIETARY LIMITED
And -
[
MEMBER OF THE COVENANT GROUP
]
[●], 20
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
1
We refer to -
1.1
the Agreement; and
1.2
the Security Cession & Pledge (as defined in the Agreement).
2
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.
3
[
Subsidiary
] (
Additional WCF
Borrower
) agrees, with
effect from the
date of this
Accession
Letter, to -
3.1
become an Additional
WCF Borrower
under the
Agreement and
to be bound
by the
terms
of the Agreement as an Additional WCF Borrower;
3.2
become a Borrower
under (and as
defined in) the
WCF Agreement and
to be bound
by
the terms of the WCF Agreement as a Borrower (as defined in the WCF
Agreement);
3.3
become an Indemnifier under (and as defined in) the Counter-indemnity Agreement and
to be bound by the terms of the Counter-indemnity Agreement
as an Indemnifier; and
3.4
become an
Additional Cedent under
(and as defined
in) the
Security Cession &
Pledge
and to be bound by the terms of the Security Cession & Pledge as an
Additional Cedent,
pursuant to clause
26.2
(Additional WCF Borrower) of the Agreement.
46
4
The
Additional
WCF
Borrower
(in
its
capacity
as
Additional
Cedent)
pledges
to
the
Debt
Guarantor all
its Shares
and Investments
(in each
case, as
defined in
the Security
Cession &
Pledge)
and
cedes
in
securitatem
debiti
to
the
Debt
Guarantor
all
its
Secured
Property
(as
defined in the Security
Cession & Pledge), in
each case individually and
collectively with all
the other
Secured Property
(as defined
in the Security
Cession &
Pledge), as
continuing general
covering collateral security
for the due,
proper and timeous
payment and performance
in full
of all the Secured Obligations (as
defined in the Security Cession &
Pledge), on the terms set
out
in
the
Security
Cession
&
Pledge,
which
pledge and
cession the
Debt
Guarantor (in
its
capacity as
Debt Guarantor
under the
Security Cession
& Pledge)
accepts. For
the purposes
hereof,
Secured Property
means all the Secured Property (as defined in the Security Cession
& Pledge) of the Additional WCF Borrower.
5
With effect from the
date of this Accession Letter the Security Cession &
Pledge will be read
and construed
for all
purposes as
if the
Additional Cedent
had been
an original
party in
the
capacity of Cedent
(but so that
the Security created
on this accession
will be created
on the date
of this Accession Letter);
6
The Additional
WCF Borrower
is a company
duly incorporated
under the
laws of
South Africa.
7
The Additional WCF Borrower's administrative details are as follows -
Address -
[●]
Email address -
[●]
Attention - [●]
8
The Repeating Representations are correct on the date of this Accession
Letter.
9
This Accession Letter is a Finance Document.
10
This Accession
Letter may
be executed
in any number
of counterparts.
This has
the same
effect
as if the signatures on the counterparts were on a single copy of this Accession
Letter.
11
This Accession Letter and any non-contractual
obligations arising out of or in
connection with
it are governed by South African law.
[
MEMBER OF THE COVENANT GROUP
]
[
MEMBER OF THE COVENANT GROUP
]
By -
By -
47
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
Accepted by the Debt Guarantor -
For and on behalf of -
Bowwood and Main No 408 (RF)
Proprietary Limited
Name -
Office
-
Date -
(who warrants his authority)
48
PART
III - WCF LENDERS
To -
[
Facility Agent
], as Facility Agent
[●]
[●]
From -
[
WCF LENDER
]
[●], 20
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Common Terms Agreement, dated [●], 2025
(
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.
[
WCF Lender
] agrees, with effect
from the date of
this Accession Letter,
to become a
WCF
Lender and to be bound by the terms of -
2.1
the Agreement; [and]
2.2
the Intercreditor Agreement[,]/[; and
2.3
the Subordination Agreement,]
as a WCF Lender, pursuant to clause [
●
] (Accession of WCF Lenders) of the Agreement.
3.
[
WCF
Lender
]
is
a
company
duly
incorporated
under
the
laws
of
[
name
of
relevant
jurisdiction
].
4.
[
WCF Lender
] administrative details are as follows -
Address -
[●]
Email address -
[●]
Attention - [●]
5.
This Accession
Letter may
be executed
in any number
of counterparts.
This has
the same
effect
as if the signatures on the counterparts were on a single copy of this Accession
Letter.
6.
This Accession Letter and any non-contractual
obligations arising out of or in
connection with
it are governed by South African law.
49
For and on behalf of -
[
WCF Lender
]
For and on behalf of -
[
WCF Lender
]
Name
-
Name -
Office
-
Office -
(who warrants his authority)
(who warrants his authority)
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
50
*
ANNEXURE
E
- FORM OF RESIGNATION LETTER
To -
[
FACILITY AGENT
], as Facility Agent
[●]
[●]
From -
[●] PROPRIETARY LIMITED
[●], 20[●]
Dear Sirs,
Lesaka Technologies Proprietary Limited
Common Terms Agreement, dated [●], 2025
(
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
Resignation Letter.
2
Pursuant to clause
26.5
(Resignation of a Guarantor), we
request that [resigning Guarantor] be
released from -
2.1
its obligations as a Guarantor under the Agreement; and
2.2
its obligations as an Indemnifier under the Counter-indemnity Agreement.
3
We confirm that -
3.1
no Default is continuing or would result from the acceptance of this
request; and
3.2
[●].
4
This
Resignation Letter
and any
non-contractual obligations
arising
out
of
or
in
connection
with it are governed by South African law.
Yours
faithfully,
Signed -
…..........................................
…..........................................
Director
Director
*
Insert any other conditions required by the Agreement.
51
[
Term/RCF Borrower
]
[
Term/RCF Borrower
]
52
ANNEXURE
F
- FORM OF COMPLIANCE CERTIFICATE
To -
[
FACILITY AGENT
], as Facility Agent
[●]
[●]
From -
[●] PROPRIETARY LIMITED
[●], 20[●]
Dear Sirs,
Lesaka Technologies Proprietary Limited
Common Terms Agreement, dated [●], 2025
(
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
[
relevant
testing
date
]
(the
Test
Date
)
the
following
financial
ratios
referred to in clause
22
(Financial Covenants) were at the levels set out below -
Financial Covenant Ratio
As
Calculated
Covenant
Level
Compliance
[Y / N]
1.
Net Debt to EBITDA Ratio
[●]
[●]
[●]
2.
Interest Cover Ratio
[●]
[●]
[●]
3
We set out below calculations establishing the figures in clause
2 above
-
[●]
4
We confirm that the following companies were Material Subsidiaries at the Test Date -
[●]
5
We
confirm
that
the
[financial
statements]/[management
accounts]/[SEC
Form]
which
this
compliance certificate accompanies fairly represents the
financial condition of the Group as at
the
date
as
to
which
those
[financial
statements]/[management
accounts/[SEC
Form]
were
drawn up.
53
*
6
[We confirm that no Default is continuing as at the Test Date.]
7
Cure Amount
7.1.1
[Details to
be included
as required
in clauses
22.3
(Equity Cure)
and
22.4
(Cure
Amounts -
Mandatory Prepayment),
and in
particular the
breach of
the Relevant
Financial Covenant,
the application
of the
Cure Amount
within the
Cure Period,
and the results of -
7.1.1.1
the calculations of
all Relevant
Financial Undertakings
before the payment
of
the Cure Amount
in accordance with
clause
22.4
(Cure Amounts
- mandatory
prepayment) and the application of clauses
22.3.3
and
22.3.4
; and
7.1.1.2
the
recalculations
of
all
Relevant
Financial
Undertakings
following
the
payment of the Cure Amount in accordance
with clause
22.4
(Cure Amounts
- mandatory prepayment) and the application of clauses
22.3.3
and
22.3.4.
]
8
Obligor coverage
8.1
[
The Obligors are
in compliance with
clause
23.28.1
(Guarantor Coverage).
][
Each of the
following
persons
are
required
to
become
an
Additional
Guarantor
in
order
for
the
Obligors to comply with clause
23.28
-
8.1.1
[●]; and
8.1.2
[●].
]
8.2
[
Each Material
Subsidiary is
a Guarantor.
][
The following
persons are
required to
become
an Additional Guarantor such that each Material Subsidiary is a Guarantor.
]
9
Group Structure Chart
[Pursuant to clause
21.10.5
, the updated Group Structure Chart is attached hereto as [schedule
1].]
10
Non-SA Subsidiaries
*
Note - to be updated as applicable.
54
[The aggregate of
the gross assets,
EBITDA (as defined
in clause
2.1.101.4
) or
total revenue
of the Non-SA Subsidiaries is [less than] 10% of
the total assets,
EBITDA or total revenue of
the Covenant Group.]
11
Material Agreement
The following agreements constitute Material Agreements -
11.1.1
[●]; and
11.1.2
[●].
12
Litigation
[Pursuant
to
clause
21.10.4
,
the
litigation,
arbitration,
administrative
proceeds,
liquidation
applications,
winding
up
applications
or
business
rescue
applies
which
are
required
to
be
disclosed are as follows -
12.1.1
[●]; and
12.1.2
[●].
13.
[Please include any other obligations required under the Finance Documents].
[Yours
faithfully,
Signed -
…..........................................
…..........................................
Director
Director
[Term/RCF Borrower]
[Term/RCF Borrower]
55
ANNEXURE
G
- TRANSACTION SECURITY
Each Obligor must
enter into Security
Documents in favour
of the
Debt Guarantor to
establish the
Security set
out below
over the
assets described
below (except
to the
extent that
any such
asset is
expressly
excluded
by
a
Security
Document
from
the
Security
created
under
that
agreement
or
otherwise stipulated below) -
1
South African Obligors and Material Subsidiaries
1.1
A pledge and cession
in securitatem debiti
by that Obligor (other than Holdco) of all the
shares,
securities
and
other
ownership
interests
it
holds,
from
time
to
time,
in
any
Affiliate, associate company or
another person (other than
a Dormant Subsidiary), each
incorporated or established
in South Africa, in
which it is invested
(including, in the case
of
the
Term/RCF
Borrower,
all
the
shares,
securities
and
other
ownership
interests
it
holds, from time to time, in the relevant Obligors (other than Holdco)), together with all
its debt claims (on shareholder loan account or otherwise) against any such person, save
for any loans created pursuant to the Permitted Cash Management Arrangement.
1.2
A cession
in securitatem debiti
by that Obligor
(other than Holdco)
of all its
rights and
claims
in
respect
of
bank
accounts
maintained
in
its
jurisdiction
of
incorporation
(including
all
cash
balances
standing
to
the
credit
of
those
bank
accounts),
insurance
policies, book debts,
Insurance Proceeds,
intellectual property, Disposal Proceeds
and all
cash and cash equivalents, from time to time.
1.3
A
general
notarial
bond
to
be
registered
over
the
moveable
assets
of
each
Additional
Obligor, it so required by the Facility Agent.
1.4
A mortgage bond to be registered over the immoveable property of any
Obligor, if such
Obligor
acquired
immoveable
property
valued
at
R10,000,000
(ten
million
Rand)
or
more.
2
Non-South African Obligors and Material Subsidiaries
2.1
Each member
of the
Covenant Group
(other than
an Excluded
Subsidiary) holding
shares,
securities and
other ownership
interests in
an Obligor
or Material
Subsidiary incorporated
in a jurisdiction
other than South
Africa must enter
into Security Documents,
in form and
substance satisfactory to the Facility Agent, in favour of the Debt Guarantor to establish
the
Security
equivalent
to
that
described
in
clause
1.2
(South
African
Obligors
and
Material Subsidiaries) above over all its
shares, securities and other ownership interests
it holds,
from time
to time,
in that
Obligor or
Material Subsidiary,
together with all
its
debt claims (on shareholder
loan account or otherwise)
against that Obligor or
Material
Subsidiary.
56
2.2
In relation to any
Obligor or Material
Subsidiary incorporated in
a jurisdiction other than
South Africa, Holdco must procure that such member of the
Covenant Group enters into
Security Documents, in form and
substance satisfactory to the Facility
Agent, in favour
of the
Debt Guarantor
to establish
the Security
equivalent to
that described
in clause
1
(South African
Obligors and Material
Subsidiaries) above over
its assets
(except to
the
extent that
any such
asset is
expressly excluded
by a
Security Document
from the
Security
created under that agreement).
3
Holdco
3.1
A pledge
and cession
in securitatem
debiti
by Holdco
of its
rights, title
and interest
in
and to all of the shares and claims it holds in the Term/RCF Borrower.
3.2
A
cession
in
securitatem debiti
by
Holdco of
its
rights, title
and interest
in
and to
the
Secured Account.
57
ANNEXURE
H
- ACCEPTABLE LENDERS
1.
South African Banks
1.1
Absa Bank Limited
1.2
The Standard Bank of South Africa Limited
1.3
Investec Bank Limited
1.4
FirstRand Limited
1.5
Nedbank Group Limited
2.
Financial institutions
2.1
Aluwani Capital Partners
2.2
Ashburton Fund Managers Proprietary Limited
2.3
Futuregrowth Asset Management Proprietary Limited
2.4
Liberty Group Limited
2.5
Ninety One SA Proprietary Limited
2.6
Sanlam Life Insurance Limited
3.
Affiliates
Any affiliate, subsidiary or holding company
of the banks or financial
institutions listed in this
Annexure,
and any fund or entity managed by any of them or any of their
affiliates.
58
*
†
ANNEXURE
I
- FORM OF CONFIDENTIALITY UNDERTAKING
To -
[
Insert name of Potential Purchaser/Purchaser’s agent/broker
]
[●]
[●]
[●], 20
Dear Sirs,
Lesaka Technologies Proprietary Limited
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
We understand that you are
considering [
acquiring
]
[
arranging the acquisition
of
]
an interest in
the
Senior Facilities (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
the Confidential
Information confidential and
not to
disclose it
to
anyone
except
as
provided
for
by
clause
2
below
and
to
ensure
that
the
Confidential
Information is protected with security measures and a degree of care that would apply to your
own confidential
information, (b)
to use
the Confidential
Information only
for the
Permitted
Purpose, (c) to use all reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed
under clause [
2.2 or
] 2.3 below) acknowledges
and
complies with the provisions
of this letter as
if that person
were also a party
to it, and
(d) not
to make enquiries of any
member of the Group
or any of their officers,
directors, employees or
professional advisers relating directly or indirectly to the Acquisition.
2.
PERMITTED DISCLOSURE
We agree that you may disclose Confidential Information -
2.1
to
members
of
the
Purchaser
Group
and
their
officers,
directors,
employees
and
professional
advisers
to
the
extent
necessary
for
the
Permitted
Purpose
and
to
any
auditors of members of the Purchaser Group;
2.2
[
subject to the
requirements of the Agreement, in
accordance with the Permitted
Purpose
so long as any prospective
purchaser has delivered
a letter to you in equivalent form
to
this letter
;]
2.3
subject to
the requirements of
the Agreement, to
any person to
(or through) whom
you
assign or transfer (or may potentially assign or transfer) all or
any of the rights, benefits
and obligations which you may acquire
under the Agreement or with
(or through) whom
you enter into (or may
potentially enter into) any sub-participation in relation to,
or any
*
Delete if addressee is acting as broker or agent.
†
Delete if addressee is acting as principal.
59
*
other transaction under
which payments are to
be made by
reference to, the
Agreement
or Holdco or any other member
of the Group so long as that
person has delivered a letter
to you in equivalent form to this letter; and
2.4
(i) where requested or required by any court of competent jurisdiction or any competent
judicial, governmental, supervisory
or regulatory body,
(ii) where required
by the rules
of
any
stock
exchange
on
which
the
shares
or
other
securities
of
any
member
of
the
Purchaser
Group
are
listed
or
(iii)
where
required
by
the
laws
or
regulations
of
any
country with jurisdiction over the affairs of any member of the Purchaser Group.
3.
NOTIFICATION OF REQUIRED OR UNAUTHORISED DISCLOSURE
You
agree
(to
the
extent
permitted
by
law)
to
inform
us
of
the
full
circumstances
of
any
disclosure under
clause 2.4
or upon
becoming aware
that Confidential
Information has
been
disclosed in breach of this letter.
4.
RETURN OF COPIES
If we so request in writing, you shall return all Confidential Information
supplied to you by us
and destroy or permanently erase all copies of Confidential Information made by you
and use
all reasonable endeavours to ensure that anyone to
whom you have supplied any Confidential
Information
destroys
or
permanently
erases
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 clause
2 above.
5.
CONTINUING OBLIGATIONS
The obligations in this letter are continuing
and, in particular, shall
survive the termination of
any discussions
or negotiations
between you
and us.
Notwithstanding the
previous sentence,
the obligations in
this letter shall
cease (a) if
you become a
party to or
otherwise acquire (by
assignment
or
sub-participation)
an
interest,
direct
or
indirect,
in
the
Agreement
or
(b)
12
(twelve) months after
you have returned
all Confidential
Information supplied
to you by
us and
destroyed or
permanently erased
all
copies of
Confidential Information
made
by you
(other
than any
such Confidential
Information or
copies which
have been
disclosed under
clause 2
above (other than sub-clause 2.4 above) or which, pursuant
to clause 4 above, are not required
to be returned or destroyed).
6.
NO REPRESENTATION,
CONSEQUENCES OF BREACH, ETC.
You
acknowledge and agree that -
6.1
neither
we
[
nor our
principal
]
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
*
Delete if letter is sent out by the Seller rather than the Seller’s
broker or agent.
60
*
†
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 our principal
]
or members of
the Group
may be irreparably
harmed by
the breach
of the terms hereof 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.
SOLE AGREEMENT,
NO IMPLIED TERMS, NO VARIATION,
EXTENSIONS AND
WAIVERS
7.1
This letter
constitutes the
sole record
of the
agreement between
us and
you (each,
a
Party
,
and collectively the
Parties
) in regard to the subject matter hereof.
7.2
No
Party
shall
be
bound
by
any
express
or
implied
term,
representation,
warranty,
promise or the like, not recorded in this letter.
7.3
No
addition
to,
variation
or
consensual
cancellation
of
this
letter
and
no
extension
of
time, waiver or relaxation or
suspension of any of the
provisions or terms hereof
shall be
of any force or effect unless in writing and signed by or on behalf of all the Parties.
7.4
No latitude, extension
of time or
other indulgence which
may be given
or allowed by
any
Party
to
any
other Party
in
respect
of
the
performance of
any
obligation hereunder
or
enforcement of any right arising
from this letter and
no single or partial
exercise of any
right by any
Party shall under any
circumstances be construed to
be an implied consent
by
such
Party or
operate as
a
waiver
or
a
novation of,
or
otherwise affect
any of
that
Party’s rights in terms of or
arising from this letter or
estop such Party from enforcing,
at
any
time
and
without
notice,
strict
and
punctual
compliance
with
each
and
every
provision or term hereof.
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 relating
to insider
dealing 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
(without implying
any
fiduciary obligations on our part) are also given
by the benefit of [
our principal
]
Holdco and
each other member of the Group.
10.
GOVERNING LAW AND JURISDICTION
This letter (including the agreement
constituted by your acknowledgment
of its terms) shall be
governed by and construed in accordance with the
laws of South Africa and the parties submit
to the non-exclusive jurisdiction
of the High
Court of South Africa
(Gauteng Local Division,
*
Delete if letter is sent out by the Seller rather than the Seller’s
broker or agent.
†
Delete if letter is sent out by the Seller rather than the Seller’s
broker or agent.
61
*
Johannesburg)
(or
any
successor
to
that
Division)
in
regard
to
all
matters
arising
from
this
letter.
11.
DEFINITIONS
In this letter, terms defined in the Agreement
shall, unless the context otherwise
requires, have
the
same
meaning
and
the
words
and
expressions
set
forth
below
shall
bear
the
following
meanings and cognate expressions shall bear corresponding meanings -
Confidential
Information
means
any
information
relating
to
Holdco,
the
Group,
the
Agreement and/or the Acquisition provided to you 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 knowledge other than
as a direct or indirect result of
any breach of this letter or (b) 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 thereafter,
other than
from a
source which
is connected
with the
Group and
which, in either case, as far as you are aware, has
not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;
Group
shall bear the meaning defined in the Agreement;
Holdco
shall bear the meaning defined in the Agreement;
Permitted
Purpose
means
[
subject
to
the
terms
of
this
letter,
passing
on
information
to
a
prospective purchaser for the purpose
of
]
considering and evaluating
whether to enter
into the
Acquisition; and
Purchaser Group
means you, and each of your affiliates.
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours
faithfully
*
Delete if addressee is acting as principal.
62
ANNEXURE
J
- DORMANT SUBSIDIARIES
Name of Dormant Subsidiary
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Net1 Universal Electronic Technological
Solutions (Pty) Ltd
South Africa
2009/001034/07
2
Pros Software (Pty) Ltd
South Africa
2005/043662/07
3
Lizwe Administration Services Proprietary
Limited
South Africa
2017/484589/07
4
Uzalo Payment Logistics Proprietary Limited
South Africa
2017/406347/07
5
SmartSwitch Eswatini Investments (Pty) Ltd
Swaziland
R7/52203
6
SmartSwitch Tanzania Limited
Tanzania
60807
7
Evertrade 187 (Pty) Ltd
South Africa
2000/007099/07
8
Adumo Receipts (Pty) Ltd (previously named
Prodigi Africa (Pty) Ltd)
South Africa
2016/309815/07
9
Flickpay (Pty) Ltd
South Africa
2014/061617/07
10
Cash Paymaster Services (Pty) Ltd
South Africa
1998/000033/07
63
ANNEXURE
K
- DISCLOSURE SCHEDULE
1
ANNEXURE
L
- GROUP STRUCTURE
1
ANNEXURE
M
- MATERIAL CONTRACTS AS AT THE SIGNATURE
DATE
1.
the master agreement
entered into with
inter alia
Grindrod Bank Limited (now
African Bank
Limited) and
Lesaka Technologies
Proprietary Limited on
28 October 2010,
and all
of its
13
addenda most recently entered into on 31 October 2024;
2.
the
EFT
sponsorship
agreement
entered
into
with
inter
alia
Grindrod
Bank
Limited
(now
African Bank Limited) and Lesaka Technologies Proprietary Limited on 25 March 2015;
3.
the independent
sales organisation
(ISO) agreement
entered into
between Nedbank
Limited and
Sureswipe Proprietary Limited on 16 July 2018;
4.
the hardware and
software supply
and service
agreement entered
into between
KFC Proprietary
Limited and GAAP Point-of-Sale Proprietary limited on 9 December 2020;
5.
the independent
sales organisation
(ISO) agreement
entered into
between Nedbank
Limited and
Mainstreet 1723 Proprietary Limited on 9 February 2021;
6.
the
payment
service
provider
agreement
entered
into
between
Absa
Bank
Limited
and
Mainstreet 1723 Proprietary Limited on 1 April 2022;
7.
the wholesale cash
purchase agreement
entered into between
African Bank Limited
and Lesaka
Technologies Proprietary Limited on 19 September 2024;
8.
the
cash
services
agreement
entered
into
between
African
Bank
Limited
and
Lesaka
Technologies Proprietary Limited on 19 September 2024;
9.
the cash purchase
agreement entered
into between African
Bank Limited, Lesaka
Technologies
Proprietary Limited and Izi Group Proprietary Limited on 20 September
2024; and
10.
the cash purchase
agreement entered
into between African
Bank Limited, Lesaka
Technologies
Proprietary Limited and Fidelity Cash Solutions Proprietary Limited on
23 September 2024.