EX-10.51 13 ex1051.htm EX-10.51
1
SUBORDINATION AGREEMENT
between
LESAKA TECHNOLOGIES PROPRIETARY
LIMITED
(as Term/RCF
Borrower)
and
THE PERSONS LISTED IN
Annexure A
(as Original Subordinated Parties)
and
THE PERSONS LISTED IN
Annexure B
(as Original Obligors)
and
THE PERSONS LISTED IN
Annexure C
(as Original Lenders)
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 10.51
i
TABLE
OF CONTENTS
1
PARTIES
................................
................................
................................
...................... 1
2
INTERPRETATION
................................
................................
................................
.....
1
3
BACKGROUND
................................
................................
................................
........... 7
4
SUBORDINATION
................................
................................
................................
....... 8
5
PROOF OF CLAIMS
................................
................................
................................
..
10
6
TURNOVER OF NON-PERMITTED RECOVERIES
................................
.................. 11
7
CONSENTS
................................
................................
................................
................ 12
8
REPRESENTATIONS
................................
................................
................................
.
12
9
WAIVER
OF DEFENCES
................................
................................
........................... 15
10
DEFAULT
INTEREST
................................
................................
................................ 16
11
ADDITIONAL SUBORDINATED PARTIES
................................
............................... 16
12
CHANGES TO THE PARTIES
................................
................................
................... 17
13
STIPULATION FOR THE BENEFIT OF THE ADDITIONAL FINANCE
PARTIES
................................
................................
................................
.................... 18
14
NOTICES
................................
................................
................................
................... 18
15
GENERAL
................................
................................
................................
.................. 23
16
GOVERNING LAW
................................
................................
................................
.... 25
17
ENFORCEMENT
................................
................................
................................
....... 25
ANNEXURES
ANNEXURE
A
- ORIGINAL SUBORDINATED PARTIES
ANNEXURE B
- ORIGINAL OBLIGORS
ANNEXURE C
- ORIGINAL LENDERS
ANNEXURE D
- DOCUMENTS TO BE DELIVERED BY AN ADDITIONAL
SUBORDINATED PARTY
ANNEXURE E
- FORM OF ACCESSION LETTER
1
1
PARTIES
1.1
The Parties to this Agreement are -
1.1.1
Lesaka Technologies Proprietary Limited (as Term/RCF Borrower);
1.1.2
the persons listed in
Annexure A
(as Original Subordinated Parties);
1.1.3
the persons listed in
Annexure B
(as Original Obligors);
1.1.4
the persons listed in
Annexure C
(as Original Lenders);
1.1.5
FirstRand Bank
Limited (acting
through its
Rand Merchant
Bank division)
(as Facility
Agent); and
1.1.6
Bowwood and Main No 408 (RF) Proprietary Limited (as Debt Guarantor).
1.2
The Parties agree as set out below.
2
INTERPRETATION
2.1
Definitions
In this Agreement, unless the context
indicates a contrary intention,
terms and expressions
defined in the Common Terms Agreement have the
same meaning and the following
words
and
expressions
bear
the
meanings
assigned
to
them
and
cognate
expressions
bear
corresponding meanings -
2.1.1
Accession Date
means in relation to -
2.1.1.1
an Additional
Subordinated Party
that is
an Additional
Guarantor,
the date
on
which
that
Additional
Guarantor
becomes
a
party
to
the
Common
Terms
Agreement
as
an
Obligor
as
contemplated
in
clause
26 (
Changes
to
the
Obligors
) of the Common Terms Agreement;
and
2.1.1.2
an Additional Subordinated Party
that is not
an Additional Guarantor,
the date
on which the
Facility Agent delivers the
notice to the Additional
Subordinated
Party and other Finance Parties as contemplated in clause
11.3;
2
2.1.2
Accession Letter
in relation to any Additional Subordinated Party that -
2.1.2.1
is also an
Additional Guarantor, has
the meaning given
to the term
"
Accession
Letter
" in the Common Terms Agreement;
or
2.1.2.2
is not an Additional Guarantor,
means an undertaking substantially in the form
as set out in
Annexure E;
2.1.3
Additional Finance Parties
means any person (other than
the Debt Guarantor) who
is
or
becomes
a
Finance
Party
(as
such
term
is
defined
in
the
Common
Terms
Agreement), from time to time, in accordance with the Common Terms Agreement;
2.1.4
Additional Subordinated Parties
means -
2.1.4.1
the Additional Guarantors; and
2.1.4.2
any person
that accedes
and becomes
party to
this Agreement
in accordance
with
clause
11
(
Additional Subordinated Parties
)
as a Subordinated Party;
2.1.5
Agreement
means this subordination agreement, including all annexures hereto;
2.1.6
Common Terms Agreement
means the written common
terms agreement concluded
or to be concluded
on or about the
Signature Date between,
inter alios
, the Term/RCF
Borrower,
Holdco,
RMB, Investec and the Debt Guarantor;
2.1.7
Debt
Guarantor
means
Bowwood
and
Main
No
408
(RF)
Proprietary
Limited,
registration
number
2024/200503/07, a
private
company
with
limited
liability
duly
incorporated in accordance with the laws of South Africa;
2.1.8
Facility Agent
means RMB,
acting in its capacity as agent for the
Finance Parties, or
any
replacement
facility
agent
which
has
become
a
party
to
the
Common
Terms
Agreement as the Facility Agent in accordance with the terms of
the Common Terms
Agreement;
2.1.9
Finance Parties
means -
2.1.9.1
the Debt Guarantor;
2.1.9.2
the Facility Agent;
2.1.9.3
the Original Lenders; and
3
2.1.9.4
the Additional Finance Parties;
2.1.10
Holdco
means Lesaka UEPS Technologies, Inc, a Florida corporation;
2.1.11
Investec
means
Investec
Bank
Limited,
registration
number
1969/004763/06,
a
limited liability public company duly incorporated in South
Africa, acting through its
Investment Banking division: Corporate Solutions;
2.1.12
Obligors
means the Original Obligors
and each Additional Guarantor;
2.1.1
Original Lenders
means the persons listed in
Annexure C;
2.1.2
Original Obligors
means the persons listed in
Annexure B;
2.1.3
Original Subordinated Parties
means the persons listed in
Annexure A;
2.1.4
Party
means a party to this Agreement;
2.1.5
Release Date and Time
has the meaning given to the term "
Release Date and Time
"
in the Lesaka
Release Agreement;
2.1.6
RMB
means FirstRand Bank
Limited, registration number
1929/001225/06, a limited
liability public
company duly
incorporated in
South Africa,
acting through
its Rand
Merchant Bank division;
2.1.7
Senior Claims
means all and
any claims, whether
actual or contingent,
of the Finance
Parties
of
whatsoever
nature
or
howsoever
arising
against
any
Obligor
under
the
Finance Documents;
2.1.8
Signature
Date
means
the
date
of
signature
of
this
Agreement
by
the
Party
last
signing;
2.1.9
Subordinated
Claims
means
in
relation
to
each
Subordinated
Party,
all
and
any
claims (including,
inter alia
, shareholder
loans and
intra-group loans)
of any
nature
whatsoever,
whether actual,
prospective or
contingent, direct
or indirect,
whether a
claim for
the payment
of money
(whether in
respect of
interest, principal
or otherwise)
or otherwise,
which that
Subordinated Party
may now, or in
the future,
have or
acquire
against an Obligor or other member of the Covenant Group;
4
2.1.10
Subordinated Parties
means the Original Subordinated Parties
and each Additional
Subordinated Party;
2.1.11
Subordination Period
means the
period beginning
on the
Release Date
and Time and
ending on the Final Discharge Date;
and
2.1.12
Term/RCF
Borrower
means Lesaka Technologies
Proprietary Limited, registration
number 2002/031446/07, a
private company
with limited
liability duly incorporated
in accordance with the laws of South Africa.
2.2
Construction
2.2.1
Unless a contrary indication appears, a reference in this Agreement to -
2.2.1.1
the
Facility
Agent
,
any
Finance
Party
,
any
Obligor
,
any
Party
,
any
Subordinated
Party,
the
Debt
Guarantor
or
any
other
person
shall
be
construed
so
as
to
include
its
successors
in
title,
permitted
cessionaries
and
permitted transferees;
2.2.1.2
an
amendment
includes
an
amendment, supplement,
novation,
re-enactment,
replacement, restatement or variation and
amend,
amended
or
amendments
is
to be construed accordingly;
2.2.1.3
assets
includes
businesses,
undertakings,
securities,
properties,
revenues
or
rights of every description and whether present or future, actual or contingent;
2.2.1.4
an
authorisation
includes authorisation, consent, approval, resolution, licence,
permit, exemption, filing, notarisation, lodgement or registration;
2.2.1.5
authority
includes
any
court
or
any
governmental,
intergovernmental
or
supranational
body,
agency,
department
or
any
regulatory,
self-regulatory
or
other authority;
2.2.1.6
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;
2.2.1.7
this
Agreement
, the
Common Terms
Agreement
, any
Finance Document
or
any
other
agreement
or
instrument
includes
(without
prejudice
to
any
5
prohibition
on
amendments)
all
amendments
(however
fundamental)
to
this
Agreement, the Common Terms Agreement or that Finance Document or other
agreement or
instrument, including
any amendment
or novation
providing for
any
increase
in
the
amount
of
the
Facilities
or
any
additional
facility
or
replacement facility;
2.2.1.8
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;
2.2.1.9
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;
2.2.1.10
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 or organisation;
2.2.1.11
a provision of
law is a
reference to that
provision as extended,
applied, amended
or re-enacted, and includes any subordinate legislation;
2.2.1.12
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
2.2.1.13
a time of day is a reference to Johannesburg time.
2.2.2
Clause and Annexure
headings are for
ease of reference
only and do
not in any
way
affect the interpretation of this Agreement.
2.2.3
Unless a
contrary indication appears,
a word
or expression used
in any
notice given
under or in connection with this Agreement has the same meaning in
that notice as in
this Agreement.
6
2.2.4
A Default (other than
an Event of Default) is
continuing
if it has not
been remedied
or waived in writing and an
Event of Default is
continuing
if it has not been waived
in writing.
2.2.5
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 this
Agreement.
2.2.6
The annexures
to this
Agreement form
an integral
part thereof
and a
reference to
a
clause
or an
annexure
is a reference
to a clause
of, or an
annexure to, this
Agreement.
2.2.7
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 this Agreement.
2.2.8
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.
2.2.9
The expiry or
termination of this
Agreement shall not affect
those provisions of
this
Agreement
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.
2.2.10
This
Agreement
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
this
Agreement
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.
2.2.11
The use of
any expression in
this Agreement
covering a process
available under
South
African law such as winding-up (without limitation) shall, if any of the parties to this
Agreement is
subject to
the law
of any
other jurisdiction,
be construed
as including
any equivalent or analogous proceedings under the law of such other
jurisdiction.
7
2.2.12
Where figures are referred to
in numerals and in
words in this Agreement, if
there is
any conflict between the two, the words shall prevail.
2.2.13
Unless
expressly
otherwise
provided
in
this
Agreement
or
inconsistent
with
the
context,
any
number
of
days
prescribed
in
this
Agreement
must
be
calculated
by
including the first and excluding the last day, unless that last day falls
on a day that is
not a Business Day, in which case the last day will instead be the next Business Day.
2.2.14
If any amount paid to a Finance Party under a Finance Document is capable of being
avoided
or
otherwise
set
aside
on
the
liquidation
or
administration
of
the
payer
or
otherwise,
then
that
amount
will
not
be
considered
to
have
been
irrevocably
discharged for the purposes of this Agreement.
2.3
Third party rights
2.3.1
Except as expressly
provided for in
this Agreement, no
provision of this
Agreement
constitutes
a
stipulation
for
the
benefit
of
any
person
who
is
not
a
party
to
this
Agreement.
2.3.2
Notwithstanding any term of this Agreement,
the consent of any person who
is not a
party to this Agreement is not required to rescind or vary
this Agreement 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.
2.4
Facility Agent
Unless
inconsistent
with
the
context
or
a
contrary
indication
appears,
references
to
the
Facility
Agent's
written
consent,
approval
of
or
any
other
similar
action,
decision
or
determination in this Agreement shall be to the Facility Agent acting on the instructions of
the
applicable
Finance
Parties
in
accordance
with
the
terms
of
the
applicable
Finance
Documents.
3
BACKGROUND
3.1
The
Obligors
and
the
Finance
Parties
have
entered
into,
or
will
enter
into,
the
Finance
Documents. The Finance Parties require the Subordinated Claims to be subordinated to the
Senior Claims, all on the terms and subject to the conditions
set out in this Agreement. The
8
Subordinated Parties have
agreed to subordinate
the Subordinated Claims in
favour of the
Senior Claims.
3.2
The
Parties
wish
to
record
in
writing
their
agreement
in
respect
of
the
above
matters
ancillary thereto.
4
SUBORDINATION
4.1
Subordination
During
the
Subordination
Period,
each
Subordinated
Party
hereby
irrevocably
and
unconditionally subordinates
its Subordinated Claims in favour of the Senior Claims.
4.2
Undertakings of the Subordinated Parties
4.2.1
In
accordance
with
and
to
give
effect
to
the
subordination contained
in
clause
4.1,
each Subordinated Party agrees that, save as
may otherwise be expressly permitted in
any Finance Document -
4.2.1.1
whether
secured
or
unsecured,
the
Senior
Claims
will
rank
in
priority
to
the
Subordinated Claims;
4.2.1.2
it shall
not demand,
take, claim,
receive or
accept, directly
or indirectly, payment
of any of its Subordinated Claims;
4.2.1.3
it
shall
not
take,
accept
or
receive
the
benefit
of
any
Security,
guarantee,
indemnity or
other assurance
from any
Obligor or
other member
of the
Covenant
Group in respect of its Subordinated Claims;
4.2.1.4
it shall not demand, take,
accept or receive any Distributions
in relation to or on
account of any Subordinated Claim;
4.2.1.5
it shall not obtain
or enforce any
judgment against any
Obligor or other member
of the Covenant Group in any jurisdiction in relation to any of its Subordinated
Claims;
4.2.1.6
it shall not exercise its rights or
powers (or take any steps to
do so) in respect of
any
of
its
Subordinated
Claims
or
otherwise
against
any
Obligor
or
other
member of the Covenant Group;
9
4.2.1.7
it
shall
not
petition,
or
apply
for
a
vote,
in
favour
of
any
resolution
for
the
winding-up,
sequestration,
business
rescue,
dissolution,
de-registration
or
administration or
any analogous or
similar process
with regard
to any
Obligor
or other member of the Covenant Group;
4.2.1.8
it shall not allow
any Subordinated Claims owed
by and to it
to be evidenced by
a negotiable instrument;
4.2.1.9
it shall not allow any Subordinated
Claims owed by and to it
to be subordinated
to any person other than in accordance with this Agreement;
4.2.1.10
it shall
not take
or omit
to take
any action
which might
impair the
priority or
subordination achieved or intended to be achieved by this Agreement;
4.2.1.11
it shall
not in
any way
dispose of
or encumber
or create
any Security
over its
Subordinated Claims or any part thereof to any person (or agree to do so) other
than as contemplated in the Transaction Security;
and
4.2.1.12
it shall not institute
any legal proceedings of any
nature against any Obligor or
other
member
of
the
Covenant
Group,
arising
out
of
any
cause
of
action,
in
relation to any of the Subordinated Claims.
4.2.2
Each Subordinated Party subordinates
the Subordinated Claims to the Senior
Claims
for the
benefit of
the
Finance Parties
so as
to
enable the
Finance Parties
to
receive
preferent payment in relation to the Senior
Claims, ahead of the Subordinated Claims
and so that -
4.2.2.1
the claims of the Finance Parties on account of the
Senior Claims, both present
and future, will rank in preference to its Subordinated Claims; and
4.2.2.2
subject
to
clause
5
(
Proof
of
claims
)
below,
in
the
event
of
the
liquidation
(whether
provisional
or
final),
winding-up,
business
rescue
proceedings,
receivership, de-registration,
dissolution, sequestration
or any
other analogous
or similar
process in
respect of
any Obligor
or other
member of
the Covenant
Group, a Subordinated
Party will not
prove or seek
to prove any
Subordinated
Claims without the prior written consent of the Facility Agent.
4.3
Undertakings of the Obligors
10
Each Obligor acknowledges
the rights afforded
to the Finance Parties
under this Agreement
in
respect
of
the
Subordinated Claims
and agrees
not to
(and
shall procure
that no
other
Covenant
Group
member
shall),
save
as
may
otherwise
be
expressly
permitted
in
any
Finance Document -
4.3.1
pay or
repay or
make any
Distribution in
respect of
or on
account of,
any Subordinated
Claims owed by it whether in cash or in kind from any source;
4.3.2
allow
any
Subordinated
Claims
owed
by
it
(or
any
other member
of
the
Covenant
Group) in respect
of which Security
has been granted
for the benefit
of any Finance
Party to be discharged;
4.3.3
allow
to
exist
the
benefit
of
any
Security,
guarantee, indemnity
or
other
assurance
against loss in
respect of any Subordinated
Claims owed by it (or
any other member
of the Covenant Group);
4.3.4
allow
any
Subordinated
Claims
owed
by
it
(or
any
other member
of
the
Covenant
Group) to be evidenced by a negotiable instrument;
4.3.5
allow
any
Subordinated
Claims
owed
by
it
(or
any
other member
of
the
Covenant
Group)
to
be
subordinated
to
any
other
person
other
than
in
accordance
with
this
Agreement; or
4.3.6
take
or
omit
to
take
any
action
which
might
impair
the
priority
or
subordination
achieved or intended to be achieved by this Agreement.
5
PROOF OF CLAIMS
5.1
Notwithstanding the provisions of
clause
4
(
Subordination
)
, a Subordinated Party
shall be
entitled to prove or seek to prove claims in respect of any Subordinated
Claims -
5.1.1
with the prior written consent of the Facility Agent; or
5.1.2
in circumstances in which it may otherwise permanently lose its rights to file a claim
against any Obligor
(or other member
of the Covenant
Group) if a
claim is not
filed
at that
time (provided that
prior written
notice of such
claim is
given to the
Finance
Parties),
provided that (in both such circumstances) –
11
5.1.3
such
Subordinated
Party
notifies
the
Facility
Agent
in
writing
of
such
claim
(and
attaches a
copy of
the relevant
claim to
such notification)
not less
than 10
Business
Days prior to filing any such claim;
5.1.4
each Subordinated Party hereby cedes (jointly and severally) in
securitatem debiti
all
and any rights, title and interest
in and to all and any
amounts received or receivable
by
that
Subordinated
Party
pursuant
to
any
such
claim
to
the
Finance
Parties
as
security for its obligations under the Finance Documents; and
5.1.5
any amount received by such Subordinated Party pursuant to any such claim shall be
immediately paid by such Subordinated Party to the Facility Agent for distribution
to
the Finance Parties in accordance with the Finance Documents.
5.2
Each
Subordinated
Party
agrees
and
undertakes
that,
in
the
event
that
business
rescue
proceedings
have
commenced
in
relation
to
an
Obligor
(or
any
other
member
of
the
Covenant Group), in accordance with the
provisions of chapter 6 of
the Companies Act, it
shall exercise any voting rights it may have in respect of such Obligor (or other member of
the Covenant Group)
strictly in accordance with
the instructions of the
Facility Agent and
that it shall not, to the extent permissible under applicable law -
5.2.1
vote to approve
or oppose a
proposed business rescue
plan in relation
to such business
rescue proceedings
in the
manner contemplated
in section
152(3) of
the Companies
Act;
5.2.2
provide, or call for, a vote of
approval for the preparation
and publication of a revised
business rescue plan as contemplated in section 153(1) of the Companies Act;
or
5.2.3
make
a
binding
offer
to
purchase
the
voting
interests
of
one
or
more
persons
who
opposed adoption of
the business rescue
plan in the
manner contemplated in
section
153(1)(b)(ii) of the Companies Act,
without the prior written consent of the Facility Agent.
6
TURNOVER OF NON-PERMITTED RECOVERIES
6.1
If contrary to the provisions clause
4.2
or clause
4.3
, any Obligor (or any other member of
the Covenant
Group) makes
payment to
any Subordinated
Party and/or
any Subordinated
Party receives
any payment
on account
of its
Subordinated Claim,
then that
Subordinated
Party
shall,
forthwith,
pay
the
amount
of
such
payment
into
a
dedicated,
single-purpose
12
proceeds bank
account of
that Subordinated
Party held
with a
bank acceptable
to the
Facility
Agent
(a
Proceeds
Account
)
or
as
the
Facility
Agent
may
from
time
to
time
direct
in
writing.
6.2
Each
Subordinated
Party
cedes
in
securitatem
debiti
,
individually
and
collectively,
as
a
continuing general covering
security for the punctual
performance in full
of all the payment
obligations of the Subordinated Parties to
the Finance Parties under this Agreement,
all its
rights and interest in
and to its Proceeds
Account and any monies standing
to the credit of
its Proceeds
Account, which
cession
in securitatem
debiti
the Finance
Parties hereby
accept.
To the
extent necessary, each Obligor and each Subordinated Party hereby
consents to any
splitting of claims which may arise as a result of the cession contained
in this clause
6.2.
6.3
Each Subordinated Party agrees
that it may not encumber, withdraw
or transfer any amount
from its
Proceeds Account,
except as
required under
this
Agreement or
with the
express
prior consent of the Facility Agent.
7
CONSENTS
Each Subordinated Party hereby -
7.1
irrevocably
and
unconditionally
consents
to
the
entry
into
by
the
Obligors
of,
and
the
implementation of, the terms of this Agreement and each Finance Document;
and
7.2
waives any default or
event of default (however
described) under any document
evidencing
or recording the terms of
any Subordinated Claim, that
has arisen or may arise
as a result of
such entry into by the Obligors of, and the implementation of, the terms of this
Agreement
or any Finance Document.
8
REPRESENTATIONS
Each Original Subordinated Party and
Original Obligor makes the representations
and warranties
set out in
this clause
8
(
Representations
)
to each Finance
Party on the
Signature Date.
A
reference
in
this
clause
to
"it"
or
"its"
includes,
unless
the
context
otherwise
requires,
each
Original
Subordinated Party
and Original
Obligor.
The Finance Parties
enter into
this Agreement
on the
strength
of
and
relying
on
the
representations
and
warranties
set
out
in
this
clause
8
(
Representations
)
,
each
of
which
is
a
separate
representation
and
warranty,
given
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
this Agreement.
13
8.1
Status
8.1.1
It
is
a
corporation,
duly
incorporated
and
validly
existing
under
the
law
of
its
jurisdiction of incorporation.
8.1.2
It has the power to own its assets and carry on its business as it is being
conducted.
8.2
Binding obligations
8.2.1
The
obligations
expressed
to
be
assumed
by
it
in
this
Agreement
are
legal,
valid,
binding and enforceable obligations.
8.2.2
Without
limiting
the
generality
of
clause
8.2.1
above,
this
Agreement
creates
the
Security which this
Agreement purports
to create and
those security interests
are valid
and effective.
8.3
Non-conflict with other obligations
The
entry
into
and
performance
by
it
of,
and
the
transactions
contemplated
by,
this
Agreement and the granting of Security, do not and will not -
8.3.1
conflict with -
8.3.1.1
any law or regulation applicable to it;
8.3.1.2
any of its constitutional documents; or
8.3.1.3
any agreement or instrument binding upon
it or any of its
assets or constitute a
default or termination event
(however described) under any
such agreement or
instrument;
and/or
8.3.2
cause
any
negative
pledge
or
other
restriction
imposed
on
it
to
be
exceeded
or
breached.
14
8.4
Powers and authority
8.4.1
It has the
legal capacity and
power to
enter into, perform
and deliver,
and has taken
all
necessary
action
to
authorise
its
entry
into,
performance
and
delivery
of,
this
Agreement and the transactions contemplated by this Agreement.
8.4.2
No limit on
its powers will
be exceeded as
a result of
the granting of
the subordination
or giving of indemnities contemplated by this Agreement.
8.5
Authorisations
All authorisations required and any other acts, conditions or things required or
desirable -
8.5.1
to enable it
to lawfully to
enter into, exercise
its rights and
comply with its
obligations
under this Agreement;
8.5.2
to make this Agreement admissible in evidence in South Africa; and
8.5.3
to carry on its business
in the ordinary course
and in all material
respects as it is
being
conducted,
have been obtained or effected and are in full force and effect.
8.6
Governing Law and enforcement
8.6.1
The choice
of the
law stated
to be
the governing
law this
Agreement will
be recognised
and enforced in South Africa.
8.6.2
Any judgment obtained in
relation to this
Agreement in the jurisdiction of
the stated
governing law of this Agreement will be recognised and enforced in South Africa.
8.7
Subordinated Claims
8.7.1
Each Subordinated
Party is
the sole
legal and
beneficial owner
of the
Subordinated
Claims owed to it and, with effect from the Release Date and Time, the Subordinated
Claims are
free from
any Security
or option
in favour
of any
person other
than the
Debt Guarantor.
8.7.2
The Subordinated
Claims are
not subject
to any
set-off, counterclaim
or other
defence.
15
8.8
Finance Documents
It
is
familiar
with
the
relevant
terms,
conditions,
words
and
expressions
in
the
Finance
Documents
that
are
incorporated
into
this
Agreement
(including
all
the
defined
terms
contained
therein
and
utilised
in
this
Agreement)
and
agrees
to
be
bound
by
the
terms
thereof.
8.9
Repetition
The representations
and warranties
set out
in this
clause
8
(
Representations
)
which are
made
by -
8.9.1
the
Original
Subordinated
Parties
and
each
Original
Obligor,
are
deemed
to
be
repeated by reference to the facts and circumstances then existing on the date of each
Utilisation Request, the
date of each
Utilisation and on
the first
day of
each Interest
Period until the Final Discharge Date;
and
8.9.2
each Additional Subordinated
Party, are made on the relevant Accession
Date and are
deemed to be
repeated by reference
to the facts
and circumstances then
existing on the
date of
each Utilisation
Request, the
date of
each Utilisation
and on
the first
day of
each Interest Period until the Final Discharge Date.
9
WAIVER
OF DEFENCES
The
subordination
and
priority
provisions
in
this
Agreement
and
the
obligations
of
the
Subordinated Parties
and Obligors
under this
Agreement will
not be
affected by
any act,
omission,
matter or
thing (whether
or not
known to
the Subordinated
Parties, the
Obligors or
the Finance
Parties) which, but for this clause
9
(
Waiver
of Defences
)
, would reduce, release or prejudice the
subordination of any of those obligations. This includes –
9.1
any time or waiver granted to,
or composition with, any Obligor,
member of the Covenant
Group, or any other person;
9.2
any release of any Obligor,
member of the Covenant Group, or any
other person under the
terms of any composition or arrangement;
9.3
the taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to
perfect,
take
up
or
enforce,
any
rights
against,
or
Security
over
assets
of,
any
Obligor,
member of the Covenant Group, or any other person;
16
9.4
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;
9.5
any incapacity or lack
of power, authority or legal
personality of or dissolution
or change in
the members or status of
any Obligor,
member of the Covenant Group,
or any other person;
9.6
any amendment of a
Finance Document or any other
document or Security (including
any
extension of the Subordination Period);
9.7
any unenforceability,
illegality or
invalidity of
any obligation
of any
Obligor,
member of
the
Covenant
Group,
or
any
other
person
under
any
Finance
Document
or
any
other
document or Security; or
9.8
any insolvency, business rescue or similar proceedings.
10
DEFAULT
INTEREST
10.1
If a Subordinated
Party fails to
pay any amount
payable by it
under this Agreement
on its
due date, interest
shall accrue on
that overdue amount
from the
due date up
to the date
of
actual payment (both before
and after judgement) at
a rate which is
2.00% higher than the
rate which would have applied if the overdue amount had not become
due.
10.2
Any interest accruing under
this clause
10
(
Default Interest
) shall be
immediately payable
by the Subordinated Party on demand by the Facility Agent.
10.3
Interest (if unpaid) on an
overdue amount will be compounded at the
end of each calendar
month, but will remain immediately due and payable.
11
ADDITIONAL SUBORDINATED PARTIES
11.1
During the Subordination Period, if any person (who
is not a Subordinated Party) acquires
any Subordinated Claim
(or part thereof),
becomes a shareholder
of an Obligor, or
advances
any shareholder loan
or other inter-company
loan to any
Obligor after the
Signature Date,
the applicable
Obligor shall
procure that
such person
accedes to
this Agreement
and delivers
to the Facility Agent and the Debt Guarantor -
11.1.1
an
Accession
Letter
agreeing
to
be
bound
by
the
terms
and
conditions
of
this
Agreement as a Subordinated Party; and
11.1.2
in a
form and
substance satisfactory to
the Facility
Agent, all
of the
documents and
other evidence contemplated in
Annexure D,
17
without delay
and in
any case
on or
before such
person acquires
the applicable
Subordinated
Claim (or
part thereof), becomes
a shareholder of
the applicable Obligor,
or advances
the
applicable shareholder loan or other inter-company loan to the applicable
Obligor.
11.2
During the Subordinated Period, without derogating from the provisions of clause
4.2.1.11
above, in the event that
any Subordinated Claims are disposed by
any Subordinated Party,
that
Subordinated
Party
shall,
save
to
the
extent
that
the
acquirer
of
such
claims
is
a
Subordinated Party,
procure that
the
acquirer of
the Subordinated
Claims accedes
to
this
Agreement and delivers to -
11.2.1
the Facility Agent and the Debt Guarantor, an Accession Letter agreeing to be bound
by the terms and conditions of this Agreement as a Subordinated Party;
and
11.2.2
the Facility
Agent,
in a
form and
substance satisfactory to
the Facility
Agent, all
of
the documents and other evidence contemplated in,
Annexure D,
without delay and in any case on the date on which the disposal becomes unconditional.
11.3
The Facility
Agent shall notify
such Additional Subordinated
Party and the
other Finance
Parties as
soon as
reasonably possible
after being
satisfied it
has received
the documents
and other evidence listed in
Annexure D.
11.4
Notwithstanding anything set out herein, the delivery of the documents and evidence listed
in
Annexure D
is solely for
the benefit of
the Finance Parties
and the Facility
Agent may,
by notice to
such Additional Subordinated Party and
other Finance Parties, waive
or defer
delivery
of
the
documents
and
evidence
listed
in
Annexure D
,
in
whole
or
in
part,
and
subject to any conditions (if any) as the Facility Agent may determine.
12
CHANGES TO THE PARTIES
12.1
Transfers by the Debt Guarantor
The Debt Guarantor shall
not cede any of
its rights nor delegate
any of its obligations
under
this Agreement without the prior consent of the Facility Agent.
12.2
Transfers by the Finance Parties
Subject to the Common Terms Agreement,
a Finance Party (other
than the Debt Guarantor)
may,
at
its
cost,
cede
its
rights
under
this
Agreement
(either
absolutely
or
as
collateral
Security) to any
person without notice
to, or
the consent
of, the
Obligors or Subordinated
18
Parties. To
the extent
that a
splitting of
claims arises
as
a result
of the
provisions of
this
clause
12.2
(
Transfers by
the Finance Parties
), each Subordinated Party
and each Obligor
hereby consent to such splitting of claims.
12.3
Transfers by a Subordinated Party or an Obligor
The Subordinated Parties and the Obligors may not cede any of their rights or delegate any
of their obligations under this Agreement.
12.4
Additional Subordinated Party
Each
Additional
Subordinated
Party
will
become
a
Subordinated
Party
on
the
relevant
Accession Date.
12.5
Additional Guarantor
12.5.1
Each
person
which
becomes
an
Additional
Guarantor
under
the
Common
Terms
Agreement will become
an Additional Subordinated
Party and an
Obligor as set
out
in the applicable Accession Letter.
12.5.2
An Additional Guarantor will become an Additional Subordinated Party and Obligor
under this Agreement on the relevant Accession Date.
13
STIPULATION FOR THE BENEFIT OF THE ADDITIONAL FINANCE PARTIES
The provisions of this
Agreement which confer
benefits upon the
Finance Parties, shall
constitute
stipulations for
the benefit
of any
person becoming
an Additional
Finance Party
in accordance
with the provisions of
the Finance Documents, capable
of acceptance at any
time. To
the extent
that a splitting
of claims arises as
a result of
the provisions of
this clause
13
(
Stipulation for the
benefit
of
the
Additional
Finance
Parties
),
the
Subordinated
Parties
and
the
Obligors
hereby
consent to such splitting of claims.
14
NOTICES
14.1
Communications in writing
Any communication to be made under or in connection with this Agreement shall be made
in writing and, unless otherwise stated, may be made by email or letter.
19
14.2
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 this Agreement is -
14.2.1
in the case of Holdco -
Physical address:
President Place, Jan Smuts Ave &, Bolton Rd, Rosebank,
Johannesburg, 2196 ;
Email:
XXX with a copy to XXX;
Attention:
Chief Financial Officer - Daniel Smith;
14.2.2
in the case of the Term/RCF Borrower -
Physical address:
President Place, Jan Smuts Ave &, Bolton Rd, Rosebank,
Johannesburg, 2196;
Email:
XXX with a copy to XXX;
Attention:
Chief Financial Officer - Daniel Smith;
14.2.3
in the case
of each Original
Subordinated Party that is
an Obligor and
each Original
Obligor, the address and
other details specified
for the Term/RCF Borrower in
14.2.2;
14.2.4
in
the
case
of
any
Additional
Subordinated
Party
or
any
Additional
Guarantor,
as
specified in its Accession Letter;
14.2.5
in the case of each Original Lenders -
Physical address:
as specified in
Annexure C;
Email:
as specified in
Annexure C;
Attention:
as specified in
Annexure C;
14.2.6
in the case of the Facility Agent -
Physical address:
1
Merchant
Place
-
14th
Floor,
Cnr
Fredman Drive
and
Rivonia Road, Sandton, 2196;
20
Email:
XXX,
XXX,
XXX,
XXX,
XXX,
XXX,
XXX,
XXX,
XXX;
Attention:
Head of
Transaction Management
- Investment
Banking
Division;
14.2.7
in the case of the Debt Guarantor -
Physical address:
1st
Floor,
Building
15,
Woodlands
Office
Park,
20
Woodlands Drive, Woodmead
2191;
Email:
XXX;
Attention:
the Managing Director;
or any
substitute address
or email
address or
department or
officer as either
Party may
notify
to the other Party by not less than five Business Days' notice.
14.3
Domicilia
14.3.1
Each
Party
chooses
its
physical
address
provided
under
or
pursuant
to
clause
14.2
(
Addresses
) as its
domicilium citandi et executandi
at which documents in legal
proceedings in connection with this Agreement may be served.
14.3.2
Either Party may by
written notice to the
other Party change its
domicilium from time
to time
to another
address, not
being a
post office
box or
a poste
restante, in
South
Africa, provided
that any
such change
shall only
be effective
on the
fourteenth day
after deemed receipt of the notice by the other Party under clause
14.4
(
Delivery
).
14.4
Delivery
14.4.1
Any communication or
document made or delivered
by one person
to another under
or
in
connection
with
this
Agreement
will
only
be
effective
when
received
by
the
recipient and, unless the contrary is proved, shall be deemed to be
received -
14.4.1.1
if by way of email,
be deemed to have been
received on the first Business Day
following the date of transmission;
14.4.1.2
if delivered by
hand, be deemed
to have been
received at the
time of delivery;
and
21
14.4.1.3
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
14.2
(
Addresses
),
if
such
communication
or
document
is
addressed to that department or officer.
14.4.2
Any communication or document to
be made or delivered to the
Facility Agent or the
Debt Guarantor will be
effective only when actually received
by the Facility Agent
or
the
Debt
Guarantor and
then
only
if
it
is
expressly marked
for
the
attention of
the
department
or
officer
identified
in
clauses
14.2.6
and
14.2.7
,
respectively
(or
any
substitute department or officer as the Facility Agent or Debt Guarantor shall specify
for this purpose).
14.5
Obligors
14.5.1
All communications under this
Agreement to or from
the Term/RCF
Borrower must
be sent through the Facility Agent.
14.5.2
All
communications
under
this
Agreement
to
or
from
an
Obligor
(other
than
the
Term/RCF Borrower)
must be sent through the Term/RCF Borrower.
14.5.3
Each Obligor (other
than the Term/RCF
Borrower)
by its execution
of the Common
Terms
Agreement or
an Accession
Letter has
irrevocably appointed
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 has irrevocably authorised
-
14.5.3.1
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 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
14.5.3.2
each Finance Party to
give any notice,
demand or other communication
to that
Obligor pursuant to the Finance Documents to the Term/RCF Borrower,
22
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.
14.5.4
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
this
Agreement
on
behalf
of
another Obligor or in
connection with this Agreement
(whether or not known
to any
other
Obligor and
whether occurring
before or
after such
other Obligor
became an
Obligor under this Agreement) shall be binding for
all purposes on that Obligor as if
that Obligor had expressly made, given or concurred with it.
14.5.5
The respective liabilities of
each of the
Obligors under the Finance
Documents shall
not be in any way affected by -
14.5.5.1
any
actual
or
purported
irregularity
in
any
act
done,
or
failure
to
act,
by
the
Term/RCF Borrower;
14.5.5.2
the Term/RCF Borrower acting (or purporting to act) in
any respect outside any
authority conferred upon it by any Obligor; or
14.5.5.3
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.
14.5.6
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.
14.5.7
Any
communication
given
to
the
Term/RCF
Borrower
in
connection
with
this
Agreement will be deemed to have been given to the other Obligors.
14.5.8
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.
14.6
Notification of address and email address
23
As soon as
reasonably practicable
after receipt of
notification of
an address or
email address
or change
of address
or email address
pursuant to
clause
14.2
(
Addresses
)
or changing its
own address or email address, the Facility Agent shall notify the other Parties.
14.7
English language
Any notice or other document
given under or in connection
with this Agreement must be
in
English.
15
GENERAL
15.1
Further assurances
Each Subordinated Party and
each Obligor undertakes
at all times to
do all such things,
to
perform all such acts and to
take all such steps and
to procure the doing of all
such things,
the performance of all such actions and the taking of all such steps as may be open to them
and necessary for the putting
into effect or maintenance of
the terms, conditions and import
of this Agreement.
15.2
Whole Agreement
15.2.1
This Agreement
constitutes the whole
of the
agreement between the
Parties relating
to the matters dealt with herein.
15.2.2
This Agreement supersedes and replaces
any and all agreements
between the Parties
(and other
persons, as may
be applicable) and
undertakings given to
or on
behalf of
the Parties (and other persons, as
may be applicable) in relation to
the subject matter
hereof.
15.3
No implied terms
No Party shall be bound by any express or implied term, representation, warranty, promise
or the like, not recorded in this Agreement.
15.4
Variations to be in writing
No
addition
to
or
variation,
deletion,
or
agreed
cancellation
of
all
or
any
clauses
or
provisions of this Agreement will be of
any force or effect unless in
writing and signed by
the Parties.
24
15.5
Costs and Expenses
The Subordinated Parties
and the Obligors
shall pay to
the Finance Parties
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
the Finance
Parties in
connection
with the enforcement of, or the preservation of any rights under, this Agreement.
15.6
Partial Invalidity
If, at any
time, any
provision of
this Agreement
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
15.6
(
Partial Invalidity
)
shall include, without limitation, inoperable by way of suspension or cancellation.
15.7
Provisions severable
All provisions and
the various clauses
of this
Agreement are, notwithstanding the
manner
in
which they
have
been grouped
together
or
linked grammatically,
severable from
each
other. Any provision or clause of
this Agreement which
is or becomes unenforceable
in any
jurisdiction, whether
due to
voidness, invalidity,
illegality,
unlawfulness or
for any
other
reason
whatsoever,
shall,
in
such
jurisdiction
only
and
only
to
the
extent
that
it
is
so
unenforceable, be
treated as
pro
non scripto
and the
remaining provisions
and clauses
of
this
Agreement
shall
remain
of
full
force
and
effect.
The
Parties
declare
that
it
is
their
intention that
this Agreement
would be
executed without
such unenforceable
provision if
they were aware of such unenforceability at the time of execution
hereof.
15.8
Rights and remedies
15.8.1
No failure to
exercise, nor any delay
in exercising, on the
part of any
Finance Party,
any
right
or
remedy under
this
Agreement
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 this Agreement -
15.8.1.1
are cumulative and not exclusive of its rights under the general law;
15.8.1.2
may be exercised as often as the Finance Party requires; and
25
15.8.1.3
may be waived only in writing and specifically.
15.8.2
Delay in the exercise or non-exercise of any right is not a waiver of
that right.
15.9
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 this Agreement, 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 this
Agreement
or
estop
such
Party
from
enforcing,
at
any
time
and
without
notice,
strict
and
punctual
compliance with each and every provision or term of this Agreement.
15.10
Independent advice
Each
Subordinated
Party
and
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 this
Agreement and that
it has either
taken such independent
legal and other
advice or dispensed
with the necessity of
doing so. Further, each Subordinated Party
and Obligor acknowledges
that all of the provisions of
this Agreement and the restrictions
therein contained are part of
the overall intention of the Parties in connection with this Agreement.
15.11
Counterparts
This Agreement
may be
executed in
any number
of counterparts,
and this
has the
same effect
as if the signatures on the counterparts were on a single copy of this Agreement.
16
GOVERNING LAW
This Agreement
and any
non-contractual obligations
arising out
of or
in connection
with it
are
governed by South African law.
17
ENFORCEMENT
17.1
The Parties
hereby irrevocably
and unconditionally
consent to
the non-exclusive
jurisdiction
of the
High Court
of South
Africa, Gauteng
Division, Johannesburg
(or any
successor to
that
division)
in
regard
to
all
matters
arising
from
this
Agreement
(including
a
dispute
relating
to
the
existence,
validity
or
termination
this
Agreement
or
any
non-contractual
obligation arising out of or in connection with this Agreement) (
Dispute
).
26
17.2
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 this Agreement.
17.3
Clause
17.1
is for the benefit
of the Finance Parties.
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, the
Finance Parties may take concurrent
proceedings in any
number of jurisdictions.
27
ANNEXURE
A
- ORIGINAL SUBORDINATED PARTIES
No.
Name of Original Subordinated Party
Jurisdiction of
Incorporation
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
N/A
3.
Prism Holdings Proprietary Limited
South Africa
1998/018949/07
4.
Net1 Finance Holdings Proprietary Limited
South Africa
1998/020801/07
5.
EasyPay Proprietary Limited
South Africa
1983/008597/07
6.
Prism Payment Technologies Proprietary
Limited
South Africa
1990/005062/07
7.
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
8.
Cash Connect Management Solutions
Proprietary Limited
South Africa
2017/029430/07
9.
Deposit Manager Proprietary Limited
South Africa
2010/016889/07
10.
Cash Connect Rentals Proprietary Limited
South Africa
2009/007139/07
11.
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
12.
Adumo (RF) Proprietary Limited
South Africa
2017/540380/07
13.
Adumo Management Company Proprietary
Limited
South Africa
2021/147994/07
14.
Adumo Technologies Proprietary Limited
South Africa
2000/029811/07
15.
Adumo Payouts Proprietary Limited
South Africa
2005/010672/07
16.
Adumo Payments Proprietary Limited
South Africa
2015/427833/07
17.
GAAP Point-of-Sale Proprietary Limited
South Africa
1999/003571/07
18.
Ovobix (RF) Proprietary Limited
South Africa
2013/068120/07
19.
Luxaino 227 Proprietary Limited
South Africa
2018/605739/07
20.
K2021477132 (South Africa) Proprietary
Limited
South Africa
2021/477132/07
28
21.
Easypay Cash Proprietary Limited
South Africa
2001/028826/07
29
ANNEXURE
B
- ORIGINAL OBLIGORS
No.
Name of Original Subordinated Party
Jurisdiction of
Incorporation
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
N/A
3.
Prism Holdings Proprietary Limited
South Africa
1998/018949/07
4.
Net1 Finance Holdings Proprietary Limited
South Africa
1998/020801/07
5.
EasyPay Proprietary Limited
South Africa
1983/008597/07
6.
Prism Payment Technologies Proprietary
Limited
South Africa
1990/005062/07
7.
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
8.
Cash Connect Management Solutions
Proprietary Limited
South Africa
2017/029430/07
9.
Deposit Manager Proprietary Limited
South Africa
2010/016889/07
10.
Cash Connect Rentals Proprietary Limited
South Africa
2009/007139/07
11.
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
12.
Adumo (RF) Proprietary Limited
South Africa
2017/540380/07
13.
Adumo Management Company Proprietary
Limited
South Africa
2021/147994/07
14.
Adumo Technologies Proprietary Limited
South Africa
2000/029811/07
15.
Adumo Payouts Proprietary Limited
South Africa
2005/010672/07
16.
Adumo Payments Proprietary Limited
South Africa
2015/427833/07
17.
GAAP Point-of-Sale Proprietary Limited
South Africa
1999/003571/07
18.
Ovobix (RF) Proprietary Limited
South Africa
2013/068120/07
19.
Luxaino 227 Proprietary Limited
South Africa
2018/605739/07
20.
K2021477132 (South Africa) Proprietary
Limited
South Africa
2021/477132/07
30
21.
Easypay Cash Proprietary Limited
South Africa
2001/028826/07
31
ANNEXURE
C
- ORIGINAL LENDERS
Name of Original Lender
Registration number
Details
for
the
purposes
of
clause
14
(
NOTICES)
FirstRand
Bank
Limited
(acting
through
its
Rand
Merchant
Bank
division) (as
Original Senior
RCF
Lender
and
Original
Senior
Term
Facility Lender)
1929/001225/06
Physical address:
Floor, 1 Merchant Place, C/O
Fredman Dr.
and Rivonia Rd, Sandton, 2196
Email:
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
Attention:
Head
of
Transaction
Management
-
Investment Banking Division
Investec
Bank
Limited
(acting
through
its
Investment
Banking
division:
Corporate
Solutions)
(as
Original
Senior
RCF
Lender
and
Original
Senior
Term
Facility
Lender)
1969/004763/06
Physical address:
100
Grayston
Drive,
Sandown,
Sandton,
Johannesburg, 2196
Email:
XXX;XXX;
XXX
Attention:
Head of Investment Banking
FirstRand
Bank
Limited
(acting
through
its
Rand
Merchant
Bank
1929/001225/06
Physical address:
32
division)
(as
Original
WCF
Lender)
9th Floor, 1 Merchant Place, C/O
Fredman
Dr. and Rivonia Rd, Sandton, 2196
Email: XXX
Attention: Head of Legal
FirstRand
Bank
Limited
(acting
through its
Wesbank
division) (as
WesBank)
1929/001225/06
Physical address:
WesBank,
Enterprise Road,
Fairland, 2170
Email:
XXX
Attention:
WesBank Legal: ABF and FML
33
ANNEXURE
D
- DOCUMENTS
TO
BE
DELIVERED
BY
AN
ADDITIONAL
SUBORDINATED PARTY
1
Accession Letter
An Accession Letter,
duly executed by the Additional Subordinated Party.
2
Constitutional documents
A copy of the constitutional documents of the Additional Subordinated
Party.
3
Resolutions
3.1
A copy of a resolution of the board of directors of the Additional Subordinated
Party -
3.1.1
approving the
terms of,
and the
transactions contemplated
by,
the Accession
Letter
and this Agreement and resolving that it execute Accession Letter;
3.1.2
to
the
extent
required
under
the
Companies
Act,
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 of this Agreement;
3.1.3
authorising
a
specified
person
or
persons
to
execute
the
Accession
Letter
on
its
behalf; and
3.1.4
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 this Agreement.
3.2
To
the extent
required under the
Companies Act, a
copy of
the special
resolution/s of
the
holders of the
issued shares in
that Additional Subordinated
Party,
approving the granting
of any "
financial assistance
" by that Additional Subordinated
Party pursuant to the
Finance
Documents to
which it
is a
party under, and
in compliance
with, section
45 of
the Companies
Act.
3.3
To the extent required by
the Companies
Act, any other
applicable law or
the Constitutional
Documents of that Additional
Subordinated Party, a copy of a
resolution duly passed
by the
holders of the issued shares of that
Additional Subordinated Party, approving the
terms of,
and the transactions contemplated by, the Finance Documents
to which that that Additional
Subordinated Party.
34
4
Formalities certificate
A formalities certificate of the Additional Subordinated Party addressed
to the Facility Agent -
4.1
setting out a specimen of the signature of each person authorised by the resolution referred
to
in
paragraph
3
of
this
Annexure D
in
relation
to
the
Finance
Documents
and
related
documents to which it is a party; and
4.2
certifying
that
each
copy
document
relating
to
it
listed
in
this
Annexure D
is
correct,
complete and in full force and effect and has not been amended or superseded.
5
Legal opinions
5.1
A legal opinion of the legal advisers to the Finance Parties, addressed to the Facility Agent
for and on
behalf of
the Finance
Parties,
in respect
of the
legality, validity and enforceability
of the Accession Letter.
5.2
A
legal
opinion of
the
legal
advisers to
the
Additional Subordinated
Party in
connection
with the capacity,
powers and authority of
the Additional Subordinated Party
to enter into
and
perform
its
obligations
under
the
Accession
Letter
and
the
due
execution
of
the
Accession Letter.
6
Know your customer requirements
All documentation
required by
the Finance
Parties in
order for
them to
complete all
applicable
know-your-customer or similar procedures, as
required by the Finance Parties
in connection with
the transactions contemplated by the Accession Letter.
7
Other documents and evidence
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
thereof.
35
ANNEXURE
E
- FORM OF ACCESSION LETTER
To
:
FIRSTRAND
BANK
LIMITED
(ACTING
THROUGH
ITS
RAND
MERCHANT
BANK DIVISION)
(as Facility Agent)
From:
[
Entity
]
(as Additional Subordinated Party)
20
Dear all,
Subordination Agreement dated [●]
("
Agreement
")
1
We refer to the Agreement.
2
This is an Accession Letter
and terms used in this Accession
Letter have the same
meanings as in
the Agreement.
3
[
Entity
]
agrees,
with
effect
from
the
date
of
this
Accession
Letter,
to
become
an
Additional
Subordinated Party
under the
Agreement and
to
be bound
by the
terms of
the Agreement
as a
Subordinated Party pursuant to with clause
10
(
DEFAULT
INTEREST
)
of the Agreement.
4
[
Entity
]
is a company duly incorporated under the laws of [name of relevant
jurisdiction].
5
For the
purposes of
clause
14.2.4
of the
Agreement,
[
Entity
]
administrative details
are as
follows –
Address:
[
●
];
Email Address:
[
●
];
For the attention of:
[
●
].
6
This Accession Letter is a Finance Document.
7
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.
8
This Accession Letter and any non-contractual obligations arising out of or in connection with it
are governed by South African law.
36
Signed at
on
20___
for
[●] PROPRIETARY LIMITED
(as
Additional Subordinated Party)
Signature
Name of Signatory
Designation of Signatory
37
Accepted by the Facility Agent:
Accepted this the
day of
2025
for
FIRSTRAND BANK LIMITED (ACTING
THROUGH ITS RAND MERCHANT
BANK DIVISION)
(in its capacity as
Facility Agent
)
Signature
Name of Signatory
Designation of Signatory
38
Accepted by the Debt Guarantor:
Accepted this the
day of
2025
for
BOWWOOD AND MAIN NO 408 (RF)
PROPRIETARY LIMITED
(in its capacity
as
Debt Guarantor
)
Signature
Name of Signatory
Designation of Signatory
39
SIGNATURE PAGES
Signed at CAPE TOWN
on 27 February
2025
for
LESAKA TECHNOLOGIES
PROPRIETARY LIMITED
(in its capacity
as obligors' agent,
Term/RCF Borrower
,
Original Subordinated Party
and
Original
Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
40
Signed at CAPE TOWN
on 27 February
2025
for
CASH CONNECT MANAGEMENT
SOLUTIONS PROPRIETARY LIMITED
(in its capacity as
Original Subordinated
Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
41
Signed at CAPE TOWN
on 27 February
2025
for
EASYPAY
FINANCIAL SERVICES
PROPRIETARY LIMITED
(in its capacity
as
Original Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
42
Signed at Parkhurst
on 27 February
2025
for
LESAKA TECHNOLOGIES INC
(in its
capacity as
Original Subordinated Party
and
Original Obligor
)
/s/ Daniel Smith
Signature
Daniel Smith
Name of Signatory
Group Chief Financial Officer
Designation of Signatory
43
Signed at CAPE TOWN
on 27 February
2025
for
PRISM HOLDINGS PROPRIETARY
LIMITED
(in its capacity as
Original
Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
44
Signed at CAPE TOWN
on 27 February
2025
for
NET1 FINANCE HOLDINGS
PROPRIETARY LIMITED
(in its capacity
as
Original Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
45
Signed at CAPE TOWN
on 27 February
2025
for
EASYPAY
PROPRIETARY
LIMITED
(in
its capacity as
Original Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
46
Signed at CAPE TOWN
on 27 February
2025
for
PRISM PAYMENT
TECHNOLOGIES
PROPRIETARY LIMITED
(in its capacity
as
Original Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
47
Signed at JHB
on 27/02/2025
2025
for
DEPOSIT MANAGER PROPRIETARY
LIMITED
(in its capacity as
Original
Subordinated Party
and
Original Obligor
)
/s/ Steven John Heilbron
Signature
Steven John Heilbron
Name of Signatory
Director
Designation of Signatory
48
Signed at JHB
on 27/02
2025
for
CASH CONNECT RENTALS
PROPRIETARY LIMITED
(in its capacity
as
Original Subordinated Party
and
Original Obligor
)
/s/ Steven John Heilbron
Signature
Steven John Heilbron
Name of Signatory
Director
Designation of Signatory
49
Signed at CAPE TOWN
on 27 February
2025
for
MAIN STREET 1723 PROPRIETARY
LIMITED
(in its capacity as
Original
Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
50
Signed at Parkhurst
on 27 February
2025
for
ADUMO (RF)
PROPRIETARY LIMITED
(in its capacity as
Original Subordinated
Party
and
Original Obligor
)
/s/ Daniel Smith
Signature
Daniel Smith
Name of Signatory
Group Chief Financial Officer
Designation of Signatory
51
Signed at Cape Town
on 27 February
2025
for
ADUMO MANAGEMENT COMPANY
PROPRIETARY LIMITED
(in its capacity
as
Original Subordinated Party
and
Original Obligor
)
/s/ Grant Michael Manicom
Signature
Grant Michael Manicom
Name of Signatory
Director
Designation of Signatory
52
Signed at Cape Town
on 27 February
2025
for
ADUMO TECHNOLOGIES
PROPRIETARY LIMITED
(in its capacity
as
Original Subordinated Party
and
Original Obligor
)
/s/ Grant Michael Manicom
Signature
Grant Michael Manicom
Name of Signatory
Director
Designation of Signatory
53
Signed at Cape Town
on 27/02/2025
2025
for
ADUMO PAYOUTS
PROPRIETARY
LIMITED
(in its capacity as
Original
Subordinated Party
and
Original Obligor
)
/s/ Stephen John Mallaby
Signature
Stephen John Mallaby
Name of Signatory
Director
Designation of Signatory
54
Signed at Cape Town
on 27 February
2025
for
ADUMO PAYMENTS
PROPRIETARY
LIMITED
(in its capacity as
Original
Subordinated Party
and
Original Obligor
)
/s/ Grant Michael Manicom
Signature
Grant Michael Manicom
Name of Signatory
Director
Designation of Signatory
55
Signed at Durban
on 27 February
2025
for
GAAP POINT-OF-SALE PROPRIETARY
LIMITED
(in its capacity as
Original
Subordinated Party
and
Original Obligor
)
/s/ Irshaad Essa
Signature
Irshaad Essa
Name of Signatory
Financial Director
Designation of Signatory
56
Signed at JHB
on 27/02/2025
2025
for
OVOBIX (RF) PROPRIETARY LIMITED
(in its capacity as
Original Subordinated
Party
and
Original Obligor
)
/s/ Steven John Heilbron
Signature
Steven John Heilbron
Name of Signatory
Director
Designation of Signatory
57
Signed at CAPE TOWN
on February 27
2025
for
LUXAINO 227
PROPRIETARY
LIMITED
(in its capacity as
Original
Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
58
Signed at CAPE TOWN
on February 27
2025
for
K2021477132 (SOUTH AFRICA)
PROPRIETARY LIMITED
(in its capacity
as
Original Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
59
Signed at CAPE TOWN
on February 27
2025
for
EASYPAY
CASH
PROPRIETARY
LIMITED
(in its capacity as
Original
Subordinated Party
and
Original Obligor
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
60
Signed at Sandon
on 27 February
2025
for
FIRSTRAND BANK LIMITED (ACTING
THROUGH ITS RAND MERCHANT
BANK DIVISION)
(in its capacity as
Original Senior RCF
Lender
and
Original Senior Term Facility
Lender
)
/s/
Kedy Mazibuko
Signature
Kedy Mazibuko
Name of Signatory
Authorised
Designation of Signatory
/s/ Eric Mphohoni
Signature
Eric Mphohoni
Name of Signatory
Authorised Signatory
Designation of Signatory
61
Signed at Sandon
on 27 February
2025
for
INVESTEC BANK LIMITED (ACTING
THROUGH ITS INVESTMENT
BANKING DIVISION: CORPORATE
SOLUTIONS)
(in its capacity as
Original Senior RCF
Lender
and
Original Senior Term Facility
Lender
)
/s/ Kerry Caldwell
Signature
Kerry Caldwell
Name of Signatory
Authorised signatory
Designation of Signatory
/s/ Sean Rule
Signature
Sean Rule
Name of Signatory
Authorised Signatory
Designation of Signatory
62
Signed at JHB
on 27 Feb 25
2025
for
FIRSTRAND BANK LIMITED (ACTING
THROUGH ITS RAND MERCHANT
BANK DIVISION)
(in its capacity as
Original WCF Lender
)
/s/ Wally Laurens
Signature
Wally Laurens
Name of Signatory
Authorised
Designation of Signatory
/s/
Kedy Mazibuko
Signature
Kedy Mazibuko
Name of Signatory
Authorised
Designation of Signatory
63
Signed at JOHANNESBURG
on 28/02/25
2025
for
FIRSTRAND BANK LIMITED (ACTING
THROUGH WESBANK DIVISION)
(in its capacity as
WesBank
)
/s/ Sharon Bekker
Signature
Sharon Bekker
Name of Signatory
Sales Manager
Designation of Signatory
Signature
Name of Signatory
Designation of Signatory
64
Signed at Sandton
on 27 February
2025
for
FIRSTRAND BANK LIMITED (ACTING
THROUGH ITS RAND MERCHANT
BANK DIVISION)
(in its capacity as
Facility Agent
)
/s/
Kedy Mazibuko
Signature
Kedy Mazibuko
Name of Signatory
Authorised
Designation of Signatory
/s/ Eric Mphohoni
Signature
Eric Mphohoni
Name of Signatory
Authorised Signatory
Designation of Signatory
65
Signed at Woodmead
on 27 February
2025
for
BOWWOOD AND MAIN NO 408 (RF)
PROPRIETARY LIMITED
(in its capacity
as
Debt Guarantor
)
/s/ Phillemon Ledwaba
Signature
Phillemon Ledwaba
Name of Signatory
Duly Authorised
Designation of Signatory