EX-10.50 12 ex1050.htm EX-10.50
1
PLEDGE AND CESSION IN SECURITY AGREEMENT
between
LESAKA TECHNOLOGIES, INC.
(as Cedent)
and
LESAKA APPLIED TECHNOLOGIES PROPRIETARY
LIMITED
(
as
obligors' agent
and
Term/RCF
Borrower)
and
BOWWOOD AND MAIN NO 408 (RF) PROPRIETARY
LIMITED
(as Debt Guarantor)
and
FIRSTRAND BANK LIMITED
(ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)
(as Facility Agent)
Exhibit 10.50
i
TABLE
OF CONTENTS
1
PARTIES
................................
................................
................................
...................... 1
2
INTERPRETATION
................................
................................
................................
.....
1
3
BACKGROUND
................................
................................
................................
........... 5
4
PLEDGE AND CESSION IN SECURITY
................................
................................
...... 5
5
DURATION
................................
................................
................................
.................. 6
6
REPRESENTATIONS
................................
................................
................................
...
7
7
UNDERTAKINGS BY THE CEDENT
................................
................................
......... 10
8
PERFECTION AND DELIVERY OF DOCUMENTS
................................
................... 12
9
CONSENT AND ACKNOWLEDGEMENT OF SECURITY
................................
........ 13
10
RIGHTS OF THE CEDENT BEFORE AN EVENT OF DEFAULT
.............................. 14
11
ENFORCEMENT
................................
................................
................................
....... 15
12
APPROPRIATION OF PROCEEDS
................................
................................
............ 18
13
POWER OF ATTORNEY
................................
................................
........................... 19
14
ADDITIONAL RIGHTS
................................
................................
.............................. 19
15
CEDENT BOUND NOTWITHSTANDING CERTAIN
CIRCUMSTANCES
................. 20
16
KEEPING, INSPECTION AND DELIVERY OF RECORDS
................................
....... 20
17
EXEMPTION FROM LIABILITY
................................
................................
.............. 21
18
CHANGES TO THE PARTIES
................................
................................
................... 21
19
NOTICES
................................
................................
................................
................... 22
20
GENERAL
................................
................................
................................
.................. 22
21
GOVERNING LAW
................................
................................
................................
.... 26
22
JURISDICTION
................................
................................
................................
.......... 26
ANNEXURES
ANNEXURE
A
- FORM OF RESOLUTION
ANNEXURE B
- NOTICE TO BANK
1
1
PARTIES
1.1
The Parties to this Agreement are -
1.1.1
Lesaka Technologies, Inc. (as Cedent);
1.1.2
Lesaka
Technologies
Proprietary
Limited
(as
obligors'
agent
and
Term/RCF
Borrower);
1.1.3
Bowwood and Main No 408 (RF) Proprietary Limited (as Debt Guarantor);
and
1.1.4
FirstRand Bank
Limited (acting
through its
Rand Merchant
Bank division)
(as Facility
Agent).
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
Agreement
means
this
pledge
and
cession
in
security
agreement,
including
all
annexures hereto;
2.1.2
Cedent
means
Lesaka
Technologies,
Inc,
a
corporation
duly
incorporated
in
accordance with the laws of State of Florida, United States;
2.1.3
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,
the Cedent (as Holdco), RMB and the Debt Guarantor;
2.1.4
Counter-indemnity
Agreement
means
the
written
counter-indemnity
agreement
concluded
or
to
be
concluded
on
or
about
the
Signature
Date
between,
inter
alios
,
certain of the Original Obligors (as original indemnifiers),
the Facility Agent and the
Debt
Guarantor in
terms
of
which,
inter
alia
,
the
Indemnifiers (as
defined
therein)
give a counter-indemnity on
a joint and several basis
in favour of the
Debt Guarantor;
2
2.1.5
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;
2.1.6
Effective
Date
has
the meaning
given
to
the
term
"
Release Date
and Time
"
in
the
Lesaka Release Agreement;
2.1.7
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;
2.1.8
Party
means a party to this Agreement;
2.1.9
Related
Rights
means
in
relation
to
the
Secured
Property
(other
than
the
Related
Rights) –
2.1.9.1
any monies and proceeds
(including dividends and the
proceeds of a disposal or
other realisation) accrued or receivable in respect of all or part thereof;
2.1.9.2
all
rights
and
benefits
in
respect
of
any
agreement
for
the
disposal
or
other
realisation thereof;
2.1.9.3
all contracts, warranties,
remedies, Security, indemnities and
other undertakings
in respect thereof; and
2.1.9.4
any of the reversionary interests referred to in clause
6.9.4;
2.1.10
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;
2.1.11
Secured
Account
means
the
following
bank
account
held
by
the
Cedent
with
FirstRand
Bank
Limited
and
all
amounts
standing
to
the
credit
of
that
ring-fenced
bank account from time to time -
Account Name
Lesaka Technologies Inc-XXX
3
Bank
Rand Merchant Bank, a division of FirstRand
Bank Limited
Account Number
XXX
Branch Code
XXX
2.1.12
Secured
Obligations
means all
present and
future
obligations and
indebtedness of
whatsoever nature
which an
Obligor may
now or
at any
time hereafter
owe or
have
towards
the
Finance
Parties
under
or
in
connection
with
the
Finance
Documents
(including the Counter-indemnity
Agreement) whether present or
future, matured or
not matured, liquidated or
not liquidated, incurred solely
or jointly or severally
and as
principal
or
surety
or
in
any
other
capacity,
including
any
claim
for
damages
or
restitution and
any claim
as a
result of
any recovery
by an
Obligor (or
any business
rescue
practitioner,
liquidator
or
trustee,
as
the
case
may
be,
of
an
Obligor)
of
a
payment or discharge on the
grounds of preference, and
any amounts which would
be
included in
any of
the above
but for
any discharge,
non-provability or
unenforceability
of those amounts in any insolvency or other proceedings;
2.1.13
Secured Property
means all of the Cedent's rights, title and interests in and to -
2.1.13.1
the Secured Account;
2.1.13.2
the Shareholder & Group Claims;
2.1.13.3
the Shares;
and
2.1.13.4
the Related Rights,
of
whatsoever
nature
and
howsoever
arising
(whether
actual,
prospective
or
contingent, direct or
indirect, arising
under common
law or
statute, whether a
claim
for the
payment of
money or
the performance
of another
obligation and
whether or
not
those
rights
and
interests
were
within
the
contemplation
of
the
Parties
at
the
Signature
Date,
the
Effective
Date
or
otherwise)
and,
in
each
case,
any
property
forming part thereof;
4
2.1.14
Shareholder & Group Claims
means all of the
Cedent's current and
future claims of
whatsoever
nature
against
the
Term/RCF
Borrower,
whether
in
the
form
of
shareholder
loans,
other
intercompany
loans,
any
other
form
of
credit
provided
or
otherwise, together with the benefit of any
Security given to the Cedent in respect of
those claims excluding
any present or
future loans created
pursuant to the
Permitted
Cash Management Arrangement;
2.1.15
Shares
means all
of the
shares and
securities in
the Term/RCF
Borrower which
the
Cedent
is
or
becomes
the
owner
of
from
time
to
time
or
which
may
be
issued,
transferred,
reinstated
to
or
otherwise
acquired
by
it
in
future,
including
the
following –
2.1.15.1
all the shares of any class in the share capital of the Term/RCF Borrower;
2.1.15.2
all
other
securities
in
the
capital
of
the
Term/RCF
Borrower
(including
any
capitalisation shares or
bonus shares issued
in respect of
the shares referred
to
in clause
2.1.15.1
above); and
2.1.15.3
any
securities
issued
in
substitution
or
exchange
for
the
securities
in
clauses
2.1.15.1
and
2.1.15.2
above,
including all dividends (whether
paid or unpaid), rights
to dividends and voting
rights
in relation to those shares and securities;
2.1.16
Signature
Date
means
the
date
of
signature
of
this
Agreement
by
the
Party
last
signing; and
2.1.17
Term/RCF
Borrower
means
Lesaka
Applied
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
Clauses 2.3 (
Construction
) and clause 2.4 (
Third party rights
) of the Common Terms
Agreement are incorporated by
reference in this
Agreement
mutatis mutandis
on the
basis that references therein to -
2.2.1.1
the
Common
Terms
Agreement
are
to
be
construed
as
references
to
this
Agreement; and
5
2.2.1.2
Parties are to be construed as the Parties to this Agreement.
2.2.2
This
Agreement and
the
rights and
obligations of
the Parties
under this
Agreement
shall
in
all
respects
be
subject
to
the
terms
and
conditions
of
the
Common
Terms
Agreement and in the event of any conflict between the provisions of
this Agreement
and
the
provisions
of
the
Common
Terms
Agreement,
the
provisions
of
this
Agreement shall prevail.
2.2.3
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
Facility Agent
Unless
inconsistent
with
the
context
or
a
contrary
indication
appears,
references
to
the
Facility Agent's written
consent, election 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
As Security for
the due
and punctual payment
and performance of
the Secured Obligations,
the
Cedent has agreed to pledge the Shares
and to cede in
securitatem debiti
all the Secured Property
to the Debt
Guarantor, on
the terms set
out in this
Agreement. It is recorded
that the Term/RCF
Borrower is a Party to this Agreement as obligors' agent.
4
PLEDGE AND CESSION IN SECURITY
4.1
Pledge and cession in security
4.1.1
With
effect
from
the
Effective
Date,
the
Cedent
hereby
irrevocably
and
unconditionally pledges to
the Debt Guarantor all
the Shares and cedes
in
securitatem
debiti
to the Debt Guarantor all the Secured Property, as continuing general covering
collateral security for
the due, proper
and punctual payment
and performance in full
of all the
Secured Obligations, on the
terms set out
in this Agreement, which
pledge
and cession
in securitatem debiti
the Debt Guarantor accepts.
6
4.1.2
The
pledge
and
cession
in
securitatem
debiti
(as
applicable)
contemplated
in
clause
4.1.1
constitutes first ranking Security in favour of
the Debt Guarantor in that
it ranks in preference and prior to any other current or future Security.
4.2
Nature of pledge and cession
4.2.1
The
pledge
and
cession
in
securitatem
debiti
contemplated
by
this
Agreement
is
intended to operate as a
pledge and a cession
in securitatem debiti
of each part and
all
of the Shares and the other Secured Property, individually and collectively.
4.2.2
If,
for
any
reason,
any
Security
intended
to
be
created
under
this
Agreement
is
or
becomes illegal, invalid or unenforceable in respect of some of the Shares
or some of
the Secured Property, the pledge of those Shares and
the cession
in securitatem debiti
of
that Secured
Property shall
be severed
from this
Agreement and
this Agreement
and all the Security created
over the remainder of the
Secured Property shall continue
in full force and effect.
4.2.3
The
cession
in
securitatem
debiti
contemplated
by
this
Agreement
operates
as
a
security cession and not as an outright cession and the Cedent retains bare ownership
of its Secured
Property, subject to the
rights of the
Debt Guarantor
as secured
creditor.
4.3
Cedent remains liable to perform obligations
Notwithstanding any other
provision of a
Finance Document, the
Cedent shall remain
liable
to perform all its duties and obligations, whether contractual or otherwise, in respect of the
Shares and
Secured Property
and nothing
in this
Agreement or
the exercise
by a
Finance
Party of any right
under a Finance Document
shall constitute or be
deemed to constitute a
delegation to or acceptance by a Finance Party of any obligation
of the Cedent or any other
person.
5
DURATION
5.1
This
Agreement
comes
into
full
force
and
effect
on
the
Signature
Date,
and
will
not
terminate before the Final Discharge Date.
5.2
In relation to the Cedent,
the Security created by this Agreement -
5.2.1
comes
into
full
force
and
effect
on
the
Effective
Date
without
any
further
action,
consent or authority required from any person;
7
5.2.2
unless expressly
otherwise agreed
by the Facility
Agent, shall
not terminate before
the
Final Discharge Date; and
5.2.3
shall remain
of full
force and
effect, notwithstanding
any intermediate
discharge or
settlement of, or temporary fluctuation in, the Secured Obligations.
6
REPRESENTATIONS
6.1
The Cedent and the Term/RCF Borrower make -
6.1.1
the
representations
and
warranties
set
out
in
this
clause
6
(
Representations
)
(other
than the representations and warranties set
out in clauses
6.9.4,
6.9.5
and
6.9.6
) as at
the Signature Date; and
6.1.2
the
representations and
warranties set
out in
clauses
6.9.4
,
6.9.5
and
6.9.6
as
at the
Effective Date.
6.2
The Finance Parties enter into the Finance Documents
on the strength of and relying on the
representations
and
warranties
set
out
in
this
clause
6
,
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 the Finance Documents.
6.3
Status
6.3.1
In relation
to the
Cedent, it
is a
corporation,
duly incorporated
and validly
existing
under the law of its jurisdiction of incorporation.
6.3.2
In
relation
to
the
Term/RCF
Borrower,
it
is
a
limited
liability
company,
duly
incorporated and validly existing under the law of its jurisdiction of incorporation.
6.3.3
It has the power to own its assets and carry on its business as it is being
conducted.
6.4
Capacity, powers and authority
6.4.1
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.
6.4.2
No limit on its powers will be exceeded as a
result of the granting of the Transaction
Security or giving of indemnities contemplated by this Agreement.
8
6.5
Binding obligations
6.5.1
The
obligations
expressed
to
be
assumed
by
it
in
this
Agreement
are
legal,
valid,
binding and enforceable obligations.
6.5.2
This
Agreement
is
in
the
proper
form
for
its
enforcement
in
the
jurisdiction
of
its
incorporation.
6.5.3
Without
limiting
the
generality
of
clause
6.5.1
above,
this
Agreement
creates
the
Security which this
Agreement purports
to create and
those security interests
are valid
and effective.
6.6
Non-conflict with other obligations
The
entry
into
and
performance
by
it
of,
and
the
transactions
contemplated
by,
this
Agreement and the establishment of Security, do not and will not -
6.6.1
conflict with -
6.6.1.1
any law or regulation applicable to it;
6.6.1.2
its or the constitutional documents of the Term/RCF Borrower;
or
6.6.1.3
any
agreement
or
instrument
which
is
binding
upon
it
or
the
Term/RCF
Borrower or constitute
a default or
termination event
(however described)
under
any such agreement or instrument;
and/or
6.6.2
cause
any
negative
pledge
or
other
restriction
imposed
on
it
to
be
exceeded
or
breached.
6.7
Authorisations
6.7.1
All authorisations -
6.7.1.1
to
enable
it
to
lawfully
to
enter
into,
exercise
its
rights
and
comply
with
its
obligations under this Agreement;
and
6.7.1.2
to make this Agreement admissible in evidence in South Africa,
have been obtained or effected and are in full force and effect.
9
6.7.2
If
it
is
required to
give
notice to
or
obtain consents
or
waivers from
any
person to
pledge
the
Shares
and
cede
the
Secured
Property
under
this
Agreement,
all
such
notices have been given and consents or waivers obtained before the Signature
Date.
6.8
Governing Law and enforcement
6.8.1
The
choice
of
the
law
stated
to
be
the
governing
law
of
this
Agreement
will
be
recognised and enforced in South Africa.
6.8.2
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.
6.9
Shares and Secured Property
6.9.1
The Shares
are and
shall remain
fully paid
up and
have been
validly allotted
and issued
or transferred to it in compliance with all applicable laws and regulations.
6.9.2
The Cedent is
reflected as the
holder of the
Shares in respect
of which it
purports to
grant
Security
under
this
Agreement
in
the
securities
register
of
the
Term/RCF
Borrower.
6.9.3
The Cedent is the sole legal and beneficial
owner of the Secured Property over which
it purports to grant Security under this Agreement to the exclusion of all others.
6.9.4
No
part
of
the
Secured
Property
has
been
pledged,
ceded
(either
outright
or
as
security),
discounted,
factored,
mortgaged
under
notarial
bond
or
otherwise,
or
otherwise disposed of or hypothecated, nor is it
subject to any other right or claim in
favour
of
any
person
(including
any
rights
of
pre-emption)
which
would
apply
on
enforcement by the Debt Guarantor
of its rights under
this Agreement.
If any Secured
Property is subject to any Security in breach of this representation
and warranty then,
without
prejudice
to
any
other
rights
that
the
Debt
Guarantor
may
have,
any
reversionary or other interests
the Cedent may have
in the said
Secured Property are
also ceded
in securitatem debiti
to the Debt Guarantor.
6.9.5
The
Secured
Property is
not
subject
to
any right
of
retention
or
other limitation
or
encumbrance, other than contemplated
in this Agreement, and may
be pledged and/or
ceded
in securitatem debiti
by the Cedent in terms hereof without any limitation.
10
6.9.6
No
person
has
an
option
or
right
of
refusal
over
the
Secured
Property
or
any
part
thereof which would apply on enforcement by the
Debt Guarantor of its rights under
this Agreement.
6.9.7
No right of pre-emption
or option exists or,
if such right or
option exists, it has been
or
will,
in
all
other
instances
(for
so
long
as
the
Shares
are
pledged
and
Secured
Property
is
ceded
in
securitatem
debiti
in
terms
hereof)
be
unconditionally
and
unequivocally waived by
the relevant holders
thereof to the
satisfaction of the
Facility
Agent.
6.10
Repetition
The representations
and warranties
set out
in this
clause
6
(
Representations
)
made by
the
Cedent 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.
7
UNDERTAKINGS BY THE CEDENT
7.1
General
The
Cedent
is
bound
by
the
undertakings
set
out
in
this
clause
7
(
Undertakings
by
the
Cedent
)
relating to
it. The
undertakings in
this clause
7
(
Undertakings by
the Cedent
)
remain
in force from the Effective Date until the Final Discharge Date.
7.2
Negative pledge
The Cedent –
7.2.1
shall not -
7.2.1.1
grant any further Security over any Secured Property; or
7.2.1.2
enter into a single transaction or a series of transactions (whether related or not
and
whether
voluntary
or
involuntary)
to
sell,
lease,
licence,
transfer
or
otherwise dispose of any Secured Property,
without the prior written consent of the Debt Guarantor; and
7.2.2
must
at
all
times
keep
its
Secured
Property
free
of
judicial
attachments
and
other
Security.
11
7.3
Preservation of Secured Property
7.3.1
The Cedent shall –
7.3.1.1
do no wilful act or
suffer any wilful omission, and
will not wilfully permit any
other person to do any act or suffer any omission, which is intended to have
the
effect
of
diminishing
or
adversely
affecting
the
rights
of
the
Debt
Guarantor
hereunder
or
the
value
or
effectiveness
of
the
Security
conferred
by
this
Agreement;
7.3.1.2
not permit any
depreciation of the
value of, or
a variation of
rights relating to,
the Secured Property or
any of them to
occur without the prior
written consent
of the Debt Guarantor;
7.3.1.3
not
to take
or
omit to
take any
action which
could reasonably
be expected
to
adversely affect
the rights
of the
Debt Guarantor
under this
Agreement or
the
effectiveness of the Security created by this Agreement;
7.3.1.4
take all
appropriate steps required
from time
to time
for the
care, preservation
and
protection
of
the
Secured
Property
and
the
rights
of
the
Debt
Guarantor
under this Agreement; and
7.3.1.5
timeously
comply
in
full
with
all
its
obligations
in
respect
of
the
Secured
Property, from time to time.
7.3.2
The Cedent
waives for
the benefit of
the Debt Guarantor
any and all
rights it
may have
in respect of the Secured Property
which conflict with or may
restrict the rights of the
Debt Guarantor under this Agreement.
7.4
Amendments
The Cedent undertakes that it shall
not allow the amendment of the
Term/RCF Borrower's
memorandum of incorporation, other than as permitted in the Finance Documents.
7.5
Shares
The Cedent shall
not allow any
alteration to
the authorised or
issued share capital
(including
the issue
of any
new shares)
of the
Term/RCF
Borrower other
than the
issue of
any new
shares that
are subject
to Security
in terms
of this
Agreement and
that constitutes
a Permitted
Share Issue.
12
8
PERFECTION AND DELIVERY OF DOCUMENTS
8.1
General
The
documents
set
out
in
clauses
8.2
(
Shares
and
Shareholder
&
Group
Claims
)
and
8.3
(
Secured Account
)
must be delivered to the Facility Agent as follows –
8.1.1
in respect of
any Shares
and Secured
Property held
as at
the Effective Date,
by no
later
than the Effective Date; and
8.1.2
in
respect
of
any Shares
and
Secured
Property acquired
after the
Effective
Date or
otherwise arising before
the Final Discharge
Date,
by no later
than 2 Business
Days
after the date of such acquisition; and
8.2
Shares and Shareholder & Group Claims
The Cedent shall deliver
to the Facility Agent
in respect of all
its Shares and Shareholder
&
Group Claims –
8.2.1
the original share certificates in respect of those Shares;
8.2.2
share transfer forms
in respect of
those Shares, undated
and duly signed
by the Cedent
as transferor and left blank as to transferee; and
8.2.3
a copy of the resolutions of the director(s) of the Term/RCF Borrower approving any
transfer
of
Shares
and
Shareholder & Group Claims
pursuant
to
this
Agreement,
substantially in the form of
Annexure A
, or any other form acceptable to
the Facility
Agent.
8.3
Secured Account
The Cedent must deliver to
the Facility Agent,
in respect of the Secured Account,
a copy of
a notice
to Rand
Merchant Bank,
a division
of FirstRand
Bank Limited,
of the
cession
in
securitatem
debiti
of
the
Secured
Account
under
this
Agreement,
together
with
an
acknowledgement of
that notice
signed by
Rand Merchant
Bank, a
division of
FirstRand
Bank Limited, in
each case substantially
in the form
of
Annexure B
or in such
other form
as the Facility Agent may agree.
13
8.4
Other requirements
8.4.1
The Cedent
shall deliver to
the Facility
Agent, within 5
Business Days of
request, a
list of the Secured Property as
at the date of that
request, which list shall be certified
true and correct
by a director
of the Cedent
and shall describe
each part of
the Secured
Property
in
reasonable
detail,
and
shall
in
particular,
in
respect
of
the
Secured
Account,
set
out
the
name
of
the
account
bank,
the
account
number
and
the
latest
available balance of monies standing to the credit or debit of the Secured
Account.
8.4.2
If
any
Secured
Property,
or
part
thereof,
is
evidenced by
a
document, or
when the
Cedent holds Security
for any obligation
owed to it
in respect of
Secured Property
and
that
Security
is
evidenced
by
a
document,
the
Cedent
shall,
at
the
request
of
the
Facility Agent deliver a
certified copy of that
document to the Facility
Agent within 5
Business Days of request thereof.
8.4.3
In addition to the documents
referred to above, the Cedent
shall deliver to the Facility
Agent
any other
documents relating
to
the
Secured Property
for
which the
Facility
Agent may at any time call,
which documents must be delivered to
the Facility Agent
within a period as agreed between
the Facility Agent and the Cedent
and, failing such
agreement, within 5 Business Days.
8.4.4
The Facility Agent
may retain possession
of all documents
delivered to it
under this
clause
8
(
Perfection and
Delivery of
Documents
)
and deal
with them
in accordance
with the Finance Documents until the Final Discharge Date, after
which they shall be
returned to the Cedent as soon as reasonably possible.
9
CONSENT AND ACKNOWLEDGEMENT OF SECURITY
It is recorded that the Term/RCF
Borrower and the Cedent are both Party to
this Agreement and
accordingly -
9.1
the Term/RCF Borrower hereby –
9.1.1
confirms its consent to, and acknowledges and agrees that -
9.1.1.1
the Cedent has,
inter alia
, pledged all its Shares and ceded
in securitatem debiti
all its Secured Property to the Debt Guarantor; and
9.1.1.2
with effect
from the
date on
which the
Debt Guarantor notifies
the Term/RCF
Borrower in writing that
an Event of Default
has occurred and
is continuing and
14
thereafter
until
otherwise
notified
by
the
Debt
Guarantor,
the
Cedent
hereby
irrevocably
instructs
and
authorises
the
Term/RCF
Borrower
to
make
all
payments to be
made to the
Cedent in respect
of its Shares
and Secured Property
directly to the Debt Guarantor by payment into any bank account
nominated by
the Debt Guarantor in writing;
9.2
the
Cedent
hereby
agrees
that
the
Term/RCF
Borrower
may
comply
with
clause
9.1.1.2
without any further permission from the Cedent and without
any enquiry by the Term/RCF
Borrower as to the justification for or validity of any request, notice
or instruction; and
9.3
the Term/RCF Borrower -
9.3.1
confirms that it has not received notice of the interest of any third party in the Shares
and Secured Property;
9.3.2
irrevocably and
unconditionally undertakes that,
in the
event of
the Debt
Guarantor
exercising
its
rights
under
this
Agreement
(including
but
not
limited
to
clause
11
(
Enforcement
)), it will -
9.3.2.1
give effect thereto
and perform
its obligations
in relation
to the
Secured Property
to and in favour of the Debt Guarantor; and
9.3.2.2
recognise
any
person
to
whom
the
Shares
and/or
Secured
Property
are
to
be
transferred and approve the transfer to that person.
10
RIGHTS OF THE CEDENT BEFORE AN EVENT OF DEFAULT
10.1
Shares and Secured Property
10.1.1
Subject to clause
10.1.2
, the Cedent is entitled, at its own cost, to –
10.1.1.1
enforce and
receive payment
for,
delivery of
or
performance in
respect of
all
amounts or obligations owing in
respect of the Secured Property
in the ordinary
course
of
business
and,
subject
to
the
Finance
Documents,
to
appropriate
amounts so recovered to its
own use, including any dividends
or other benefits
in respect of its Shares;
10.1.1.2
receive
notice
of
every
general
meeting
of
shareholders
of
the
Term/RCF
Borrower (provided that each such
notice is to be forwarded
to each of the Debt
15
Guarantor
and
Facility
Agent
as
if
it
were
a
shareholder
of
the
Term/RCF
Borrower); and
10.1.1.3
attend every
general meeting
of the
shareholders of
the Term/RCF
Borrower,
and exercise all
the votes attaching
to the Shares
at such meetings
(provided that
it will not exercise those votes
in a manner which is reasonably likely
to (a) be
prejudicial
to
the
validity
or
enforceability
of
this
Agreement;
(b)
materially
impair the value
of any Shares;
(c) permit any
variation of rights
other than in
accordance
with
the
Finance
Documents;
or
(d)
be
otherwise
materially
prejudicial to the Debt Guarantor or the other Finance Parties).
10.1.2
If an
Event of
Default has
occurred and
is continuing,
all of
the rights,
powers and
privileges attaching to
the Secured Property,
including those set
out in clause
10.1.1
above, shall vest
in the Debt
Guarantor with the
power to exercise
them either in
its
own name or in the name
of the Cedent or,
if the Debt Guarantor so directs
upon the
occurrence of an
Event of Default
which has occurred and
is continuing, the
Cedent
shall exercise the Debt Guarantor's rights, powers and privileges in its own
name and
to the greatest extent permitted by applicable law.
10.2
General
10.2.1
Without
detracting
from
this
clause
10
(
Rights
of
the
Cedent
before
an
Event
of
Default
)
, the Debt Guarantor is not obliged to −
10.2.1.1
perform any obligation of the Cedent;
10.2.1.2
make any payment,
or to make
any enquiry as
to the nature
or sufficiency of any
payment received by it or the Cedent;
or
10.2.1.3
present
or
file
any
claim
or
take
any
other
action
to
collect
or
enforce
the
payment of any amount to which it may be entitled under this Agreement,
in respect of the Secured Property.
11
ENFORCEMENT
11.1
Realisation
If
an
Event
of
Default has
occurred and
is
continuing, the
Debt Guarantor
may,
without
prejudice to
any other
rights it may
have against
the Cedent,
exercise its
rights under
this
16
clause
11.1
(
Realisation
)
,
and
otherwise
put
into
force
and
effect
all
rights,
powers
and
remedies available
to
it
in relation
to
the
Secured Property,
in
such manner
and on
such
terms and conditions as it
in its sole discretion considers most
expedient. Without limiting
the foregoing, if an Event of Default has occurred and is continuing, the Debt Guarantor or
its
nominee
may,
and
the
Cedent
hereby
irrevocably
and
unconditionally
authorises
and
empowers
the
Debt
Guarantor or
its
nominee, and
appoints it
in
rem
suam
,
without
any
further authority or
consent of any
nature whatsoever
required from any
person, in the
name
of the Debt Guarantor or its nominee or in the name of the Cedent to -
11.1.1
exercise
all
or
any
of
the
rights,
powers
and
privileges
and
enforce
all
or
any
obligations attaching to the Secured Property (or any of
them) in such manner and on
such terms as the Debt Guarantor in its sole discretion deems fit;
11.1.2
receive
payment
for,
delivery
of,
and/or
performance
in
respect
of,
the
Secured
Property (or any of them) in its own name or that of its nominee;
11.1.3
authorise any officer of the Debt Guarantor (whose appointment need not be proved)
to sign,
on behalf
of and
in the
name of
the Cedent,
any share
transfer form
or any
other document that may be
necessary to give effect
to any disposal or
realisation of
the
Secured
Property
(or
any
of
them)
by
the
Debt
Guarantor
under
this
clause
11
(
Enforcement
)
;
11.1.4
claim
and
receive
payment
of
the
amount
standing
to
the
credit
of
the
Secured
Account;
11.1.5
at the election of the Debt Guarantor -
11.1.5.1
sell or
otherwise realise all
or some
of the
Secured Property by
public auction
or private treaty;
11.1.5.2
take over all or some of the Secured Property at Fair Value (as defined below),
and for the
purposes of
clause
11.1.5.2
above, the
Fair Value
of any Secured
Property
will be
the
value agreed
in writing
between the
Debt Guarantor
and the
Cedent or,
failing
agreement
within
5 Business
Days
after
delivery
of
a
notice
to
the
Cedent
stating that the Debt Guarantor intends to
exercise its rights under this clause
11.1.5
,
the value determined by an appropriate employee of an independent investment bank
agreed
to
by
the
Debt
Guarantor
and
the
Cedent
or,
failing
agreement
within
5
Business Days, appointed, at the request of any of the Debt
Guarantor or the Cedent,
17
by
the
President
for
the
time
being
of
the
South
African
Institute
of
Chartered
Accountants, or
the successor
body thereto,
which person
shall act
as an
expert and
not as an
arbitrator, shall be
instructed to make
their determination
within 10 Business
Days
after
being
requested
to
do
so,
provided that
if
a
determination is
manifestly
unjust and a
court exercises its
general power,
if any,
to correct
such determination,
all
the
Parties
shall
be
bound
thereby.
The
Cedent
shall
be
liable
for
any
charges
incurred in the
determination of the Fair
Value
and if the
Debt Guarantor or Facility
Agent
has
paid
the
charges
of
determining
the
Fair
Value,
such
charges
shall
be
recoverable from the Cedent on demand;
11.1.6
institute
any
legal
proceedings
which
the
Debt
Guarantor
may
deem
necessary
in
connection
with
any
sale,
purchase
or
other
realisation
or
transfer
of
any
of
the
Secured Property and to
prosecute such proceedings
to their final end
and conclusion,
including the
prosecution of
such appeals
and reviews
as
the Debt
Guarantor in
its
discretion may determine;
11.1.7
compromise any of the
Secured Property, grant
any extension or other indulgence in
respect of
the Secured
Property,
agree to
amend the
terms of
the Secured
Property,
and/or release any
security, guarantee
or suretyship held for
the Secured Property or
waive any right which relates to or constitutes part of the Secured Property;
11.1.8
give transfer
of and
convey valid
title in
any Secured
Property to
any person
(including
the Debt Guarantor or any other Finance Party); and/or
11.1.9
take all such
further or other
steps as the
Debt Guarantor may
consider necessary to
deal
with
the
Secured
Property
(or
any
of
them)
in
order
to
give
effect
to
this
Agreement.
11.2
Undertakings by the Cedent in respect of realisation
On
the
Debt
Guarantor
taking
any
action
under
clause
11.1
(
Realisation
)
above,
or
otherwise
as
required
by
the
Debt
Guarantor
if
an
Event
of
Default
has
occurred
and
is
continuing, the Cedent shall on demand by the Debt Guarantor –
11.2.1
give notice to
all persons required
by the Debt
Guarantor that payment
for, delivery
of
or
performance in
respect of
the relevant
Secured Property
must be
made to
the
Debt Guarantor and
that payment, delivery
or performance to
the Cedent or to
anyone
else
will
not
constitute
valid
payment,
delivery
or
performance,
and
the
Debt
18
Guarantor shall be
entitled to
do likewise. The
Cedent shall on
demand by the
Debt
Guarantor provide proof that such notification has been duly given;
11.2.2
refuse to accept any payment, delivery,
or performance tendered in respect of
any of
the
Secured
Property
and
order
that
such
payment,
delivery
or
performance
be
tendered to the Debt Guarantor;
11.2.3
forthwith pay over or deliver to the Debt Guarantor
any interest, dividend, negotiable
instruments or other monetary
benefits of any nature
accrued or received in
respect of
the Secured Property after the date
of an Event of Default
which has occurred and is
continuing by depositing the
same into any bank
account in South Africa
nominated
by the Debt Guarantor;
11.2.4
deliver
to
the
Debt
Guarantor
any
property
which
the
Cedent
acquires
or
which
accrues to it in connection with the Secured Property;
11.2.5
at its own cost, carry out
any lawful directions the
Debt Guarantor may give in
regard
to
the
realisation
of
the
Secured
Property
and
sign
any
document
or
do
any
other
lawful act necessary
to (a) vest
the Secured Property
in the Debt
Guarantor; (b) enable
any sale, purchase
or other realisation
or transfer of
Secured Property,
or (c) perfect
and
complete
(to
the
extent
necessary)
the
pledge
and
the
cession
of
any
Secured
Property under this Agreement.
11.3
No obligation on the Debt Guarantor
Notwithstanding anything to the contrary contained in this Agreement, the Debt Guarantor
shall
not
be
obliged
to
take
any
steps
to
preserve,
protect,
collect,
recover
or
otherwise
enforce its rights under or in respect of the Secured Property.
12
APPROPRIATION OF PROCEEDS
The Debt Guarantor shall
apply the net
proceeds of all
amounts received pursuant to
the sale or
other realisation of Secured Property or from the appropriation of cash amounts
which constitute
Secured Property
under this
Agreement (after
deducting all
properly evidenced
costs and
expenses
incurred by the Debt
Guarantor in relation to
that sale, realisation or
appropriation) in reduction
or discharge of the Secured Obligations in such
order and in such manner as the Debt Guarantor
deems fit. Any amount remaining thereafter shall be paid to the Cedent within 15 Business Days
of the Final Discharge Date.
19
13
POWER OF ATTORNEY
13.1
If at
any time
during the
term of
this Agreement
the Debt
Guarantor becomes
entitled to
exercise its
rights under
clause
11.1
(
Realisation
)
, the
Cedent hereby
irrevocably nominates,
constitutes
and
appoints
the
Debt
Guarantor
or
its
nominee
(acting
through
any
of
the
directors,
general
manager
or
manager
for
the
time
being
of
the
Debt
Guarantor
(or
its
nominee) holding
office from
time to
time) with
power of
substitution, to
be its
true and
lawful attorney to do
all such things which
the Cedent is
obliged but fails to
do under this
Agreement and
to complete
and sign
all such
documentation for
the purposes
of the
sale,
assignment, cession, transfer and
perfecting of the Debt
Guarantor's security,
or otherwise
disposing of
the Secured
Property,
or any
part thereof or
the realisation
of the
underlying
value in respect thereof, and
for all purposes incidental thereto,
and the institution of legal
proceedings. The
Cedent ratifies
and confirms
whatever the
Debt Guarantor
(or its
nominee)
does or purports to do under this clause
13
(
Power of Attorney
)
.
13.2
The Cedent shall
immediately on
demand, pay
to the Debt
Guarantor the
amount of
all costs
and expenses (including legal fees)
incurred by the Debt
Guarantor (or its nominee) under
its
appointment
under
this
clause
13
(
Power
of
Attorney
)
,
and
keep
the
Debt
Guarantor
indemnified against any failure or delay in paying those costs or expenses.
14
ADDITIONAL RIGHTS
The
rights
conferred
on
the
Debt
Guarantor
by
this
Agreement
are
additional
to
and
not
in
substitution for or in any way prejudiced by –
14.1
any other rights the
Debt Guarantor has, or may
at any time in
the future have, against
the
Cedent or any other person; and
14.2
any other Security
held or hereafter
to be held
by the Debt
Guarantor from the
Cedent, or
any
other
person,
in
connection
with
the
Secured
Obligations.
The
Debt
Guarantor
may
release any Security held by it without prejudice to its rights under this Agreement.
20
15
CEDENT BOUND NOTWITHSTANDING CERTAIN
CIRCUMSTANCES
15.1
The
Cedent
agrees
that
with
effect
from
the
Signature
Date,
it
will
be
bound
under
this
Agreement to the full extent hereof, despite the fact
that –
15.1.1
any
additional
Security
from
the
Cedent
or
any
other
person
for
the
Secured
Obligations may not be
obtained or may
be released or may
cease to be held for any
other reason;
15.1.2
there
is
any
intermediate
discharge
or
settlement
of,
or
fluctuation
in
the
Secured
Obligations in which event the
pledge and cession
in securitatem debiti
contained in
this Agreement shall operate as Security for any
indebtedness subsequently arising in
favour of the Debt Guarantor in relation to the Secured Obligations;
15.1.3
the Finance Parties may
agree any amendment of the Finance
Documents (including
any amendment providing for
the increase in the amount
of a Facility or an
additional
facility);
15.1.4
insolvency,
administration,
business
rescue,
reorganisation,
arrangement,
readjustment
of
debt,
dissolution,
liquidation
or
similar
proceedings
have
been
instituted by or against the Cedent or any other person;
15.1.5
any Finance
Party may
receive a
dividend or
benefit in
any insolvency,
liquidation,
business rescue or any compromise
or composition, whether in terms
of any statutory
enforcement or the common law;
15.1.6
the Debt Guarantor may grant any indulgences to the
Cedent or may not exercise any
one or more of its rights under the Finance Documents, either timeously or
at all;
or
15.1.7
any other fact
or circumstance
may arise on which
the Cedent
might otherwise
be able
to rely on a defence based on prejudice, waiver or estoppel.
15.2
If the Cedent suffers
any loss arising
from any of
the facts, circumstances,
acts or omissions
referred to above, it will have no claim against any Finance Party in respect
thereof.
16
KEEPING, INSPECTION AND DELIVERY OF RECORDS
16.1
The
Cedent
shall
at
all
times
keep
up-to-date
records
of
the
Secured
Property
and
shall
comply with
any reasonable
directions the
Facility Agent and/or
the Debt
Guarantor may
give in regard to the keeping of such records.
21
16.2
The Facility Agent,
Debt Guarantor or
anyone authorised by
either the Facility
Agent or the
Debt Guarantor may at
any time and on
reasonable notice inspect
any of the Cedent's
books
of account
and other
records including
books of
account and
records of
the Secured
Property
in the possession of a third party.
16.3
If the Facility Agent or Debt Guarantor at any time so requests, the
Cedent shall at its own
cost
deliver
to
the
Debt
Guarantor
or
its
order
certified
copies
of
any
of
the
books
and
records referred to in clauses
16.1
and
16.2
above.
17
EXEMPTION FROM LIABILITY
A
Finance Party,
its officers, trustees, agents, beneficiaries,
employees and advisors shall not be
liable for any
loss or damage,
whether direct, indirect,
consequential or otherwise,
suffered by the
Cedent howsoever arising in connection with this Agreement, whether
that loss or damage arises
as a
result of a
breach of contract
(whether total, fundamental
or otherwise), delict
or any
other
cause and whether this Agreement has been
terminated or not, other than as
a result of the gross
negligence or wilful
misconduct of
that Finance
Party. The provision of
this clause
17
(
Exemption
from liability
)
constitute a stipulation for the benefit of
the Finance Parties capable of acceptance
at any time.
18
CHANGES TO THE PARTIES
18.1
Transfers by the Debt Guarantor
18.1.1
The Debt Guarantor may cede
any of its rights and/or
delegate any of its
obligations
under this Agreement
to any person
to whom
it cedes any
of its rights
and/or delegates
any of its
obligations under the
Finance Documents. The
Cedent and the
Term/RCF
Borrower
agree
to
co-operate
and
take
all
such
steps
as
the
Debt
Guarantor
may
reasonably request to give effect to any such cession or delegation.
18.1.2
The Cedent and the Term/RCF
Borrower agree to any splitting
of claims which may
arise from such a cession and/or delegation.
18.2
Transfers by the Cedent
The
Cedent
may
not
cede any
of
its rights
nor
delegate
any of
its
obligations under
this
Agreement.
22
18.3
Transfers by the Term/RCF
Borrower
The Term/RCF
Borrower may not cede any of its rights nor
delegate any of its obligations
under this Agreement
18.4
Changes to Facility Agent
The
Facility
Agent
shall
be
entitled
to
cede,
delegate
and/or
transfer
its
rights
and/or
obligations
under
this
Agreement
in
accordance
with
the
applicable
provisions
of
the
Common
Terms
Agreement
and
any
Intercreditor
Agreement
and
the
Cedent,
the
Term/RCF
Borrower and Debt
Guarantor hereby irrevocably
and unconditionally consent
to any splitting of rights or claims which may arise from such a cession
and transfer.
19
NOTICES
19.1
The Parties select as their respective
domicilia citandi et executandi
the physical addresses
contemplated
in
clause
34.2
(
Addresses
)
of
the
Common
Terms
Agreement,
and
for
the
purposes of giving
or sending any
notice provided for
or required under
this Agreement, the
said physical addresses as well as the email addresses contained therein.
19.2
The provisions
of clause 34
(
Notices
) of
the Common Terms
Agreement are incorporated
by reference herein,
mutatis mutandis
, as if repeated herein in full in this
Agreement on the
basis that references therein to -
19.2.1
Finance
Documents
and/or
the
Common
Terms
Agreement
shall
be
construed
as
references to this Agreement; and
19.2.2
Parties shall be construed as references to the Parties to this Agreement.
20
GENERAL
20.1
Further Assurances
The Cedent shall generally
promptly do everything that
may be required in order
to comply
with its
obligations under
this Agreement
and as
may otherwise
be required
by the
Debt
Guarantor or
the Facility
Agent, for
the purposes
of and
to give
effect to
this Agreement,
failing which the Debt
Guarantor or the Facility Agent,
may,
to the extent possible, attend
thereto
on
behalf
of
the
Cedent
and
recover
on
demand
from
the
Cedent
any
expenses
incurred in relation thereto.
In particular the
Cedent shall execute and
do all such acts
and
23
things
as
the
Debt
Guarantor
or
the
Facility
Agent,
in
their
reasonable
discretion,
may
require –
20.1.1
to perfect
or protect
the Security
created (or
intended to
be created)
by this
Agreement;
20.1.2
to preserve
or protect
any of
the rights
of the
Debt Guarantor
or the
Facility Agent
under this Agreement;
20.1.3
to
enforce
any
Security
created
under
this
Agreement
on
or
at
any
time
after
it
becomes enforceable;
20.1.4
for the exercise of any power, authority or discretion vested in the Debt Guarantor or
the Facility Agent under this Agreement;
20.1.5
to carry out the effect, intent and purpose of this Agreement,
in any
such case,
forthwith upon
demand by
the Debt
Guarantor or
the Facility
Agent, to
the maximum extent permitted by law and at the expense of the Cedent.
20.2
Sole Agreement
20.2.1
This Agreement
constitutes the
sole record
of the
agreement between
the Parties
in
regard to the subject matter hereof.
20.2.2
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.
20.3
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.
20.4
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
20.5
Costs and Expenses
The
Term/RCF
Borrower
shall
pay
to
the
Debt
Guarantor
and/or
the
Facility
Agent
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
Debt
Guarantor
and/or the Facility Agent in connection with the enforcement of, or the preservation of any
rights under, this Agreement.
20.6
Certificates and Determinations
Any
certification
or
determination
by
the
Debt
Guarantor
or
Facility
Agent
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.
20.7
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
20.7
(
Partial Invalidity
)
shall include, without limitation, inoperable by way of suspension or cancellation.
20.8
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.
20.9
Rights and remedies
20.9.1
No failure to exercise, nor any delay in
exercising, on the part of the Debt Guarantor
or
the
Facility Agent,
any right
or remedy
under this
Agreement shall
operate as
a
25
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 the Debt Guarantor and the Facility Agent under this Agreement
-
20.9.1.1
are cumulative and not exclusive of its rights under the general law;
20.9.1.2
may be exercised as often as the Debt Guarantor or the Facility Agent requires;
and
20.9.1.3
may be waived only in writing and specifically.
20.9.2
Delay in the exercise or non-exercise of any right is not a waiver of
that right.
20.10
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.
20.11
Renunciation of benefits
The Cedent
renounces, to
the extent
permitted under
any 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.
20.12
Independent advice
Each of
the Cedent
and the
Term/RCF Borrower 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,
the
Cedent
and
the
Term/RCF
Borrower
acknowledge
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.
20.13
Counterparts
26
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.
21
GOVERNING LAW
This
Agreement and
any
non-contractual obligations
arising
out
of
or
in
connection
with
it
is
governed by South African law.
22
JURISDICTION
22.1
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 this Agreement (including a
dispute
relating
to
the
existence,
validity
or
termination
of
this
Agreement
or
any
non-
contractual obligation arising out of or in connection with this Agreement) (
Dispute
).
22.2
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.
22.3
Clause
22
(
Jurisdiction
)
is for the benefit of the Debt Guarantor and the Facility Agent. As
a result,
neither the Debt
Guarantor nor the
Facility Agent shall
be prevented from
taking
proceedings relating to a Dispute
in any other court with
jurisdiction. To the extent allowed
by law, the Debt Guarantor and the Facility Agent may take concurrent proceedings in any
number of jurisdictions.
27
ANNEXURE
A
- FORM OF RESOLUTION
RESOLUTIONS PASSED BY THE WRITTEN CONSENT OF THE [SOLE] DIRECTOR[S]
OF LESAKA TECHNOLOGIES PROPRIETARY LIMITED (REGISTRATION NUMBER
2002/031446/07)
(the "Company")
WHEREAS –
Lesaka
Technologies,
Inc
(
Cedent
)
has
concluded
or
will
conclude
a
written
pledge
and
cession
in
security
(as
amended,
restated,
supplemented
and/or
replaced
from
time
to
time)
(the
Pledge
and
Cession in Security
) with,
inter alios
, Bowwood and
Main No 408
(RF) Proprietary Limited
(the
Debt
Guarantor
) and FirstRand
Bank Limited (acting through
its Rand Merchant Bank
division) (as facility
agent).
Unless otherwise defined herein, words and expressions defined in the Pledge and Cession in Security
have the meaning when used herein.
Under
the
Pledge
and
Cession
in
Security,
the
Cedent,
inter
alia,
pledges
the
Shares
and
cedes
in
securitatem debiti
the Shareholder & Group Claims,
to the Debt Guarantor.
RESOLVED THAT
-
1
RESOLUTION 1
The Company notes and gives its consent to the pledge and cession in security of the Shares and
Shareholder &
Group Claims,
as applicable,
by the Cedent
to and
in favour
of the
Debt Guarantor.
2
RESOLUTION 2
The Company consents to any
transfer of the Shares
and Shareholder & Group Claims
pursuant
to any enforcement by the Debt Guarantor of its rights under the Pledge
and Cession in Security.
3
RESOLUTION 3
Any director of the Company is hereby authorised to sign any document necessary to give effect
to resolution number 1 and resolution 2 above.
[signatures of all directors]
28
ANNEXURE
B
- NOTICE TO BANK
To
:
FirstRand Bank Limited
(the
Bank
or
you
)
[
Insert email address and Attention
]
From
:
Lesaka Technologies, Inc (the
Cedent
)
[
Insert email address and Attention
]
And
:
Bowwood and Main No 408 (RF) Proprietary Limited (the
Debt Guarantor
)
[
Insert Address and Attention
]
Copy
:
FirstRand Bank
Limited (acting
through its
Rand Merchant
Bank division)
(the
Facility
Agent
)
[
Insert Address and Attention
]
20
Dear all
Notice of cession
in securitatem debiti
1
We
refer
to
the
written
pledge
and
cession
in
security
agreement
(as
amended,
restated,
supplemented and/or replaced from time to time) concluded between,
inter alios
, the Cedent and
the Debt Guarantor (
Pledge and Cession in Security
).
2
In this notice,
words and expressions
defined in the
Pledge and Cession
in Security have
the same
meaning where used in this notice.
3
This notice
constitutes notice
from the
Cedent and
the Debt
Guarantor to
you that
under the
Pledge
and
Cession
in
Security
the
Cedent
has
ceded
in
securitatem
debiti,
in
favour
of
the
Debt
Guarantor,
inter alia
, all of
its rights and
interests in and
to the bank
account that it
maintains with
you
under
the
following
account
number
[●]
(including
all
its
claims
in
respect
of
amounts
standing to the credit of such bank account from time to time) (the "
Secured Account
").
4
The Cedent hereby irrevocably instructs and authorises you
to disclose to the Debt Guarantor
or
the
Facility Agent
any information
relating to
the Secured
Account requested
from you
by the
Debt Guarantor or the Facility Agent.
5
The Cedent
hereby irrevocably instructs
and authorises you
with effect
from the
date on
which
the Debt
Guarantor notifies
you in
writing that
an Event
of Default
has occurred
and is
continuing,
and thereafter until otherwise notified by the Debt Guarantor, to –
29
5.1
comply with the terms of any
written notice or instruction relating to
the Secured Account
received by you
from the Debt
Guarantor or the
Facility Agent (acting
on behalf of
or for
the benefit of the Debt Guarantor);
5.2
hold
all
sums
standing
to
the
credit
of
the
Secured
Account
to
the
order
of
the
Debt
Guarantor;
5.3
pay or release any
sum standing to
the credit of the
Secured Account in
accordance with the
written instructions of the Debt
Guarantor or the Facility Agent (acting
on behalf of or for
the benefit of the Debt Guarantor); and
5.4
pay
all
sums
received
by you
for
the
account
of
the
Cedent
to
the
credit
of
the
Secured
Account with you.
6
The Cedent acknowledges
that you may
comply with the
instructions in this
notice without any
further permission from us
and without any
enquiry by you as
to the justification for
or validity
of any request, notice or instruction.
7
The instructions in this notice may
not be revoked or amended without
the prior written consent
of the
Facility Agent
(acting on
behalf of
or for
the benefit
of the
Debt Guarantor)
or the
Debt
Guarantor.
8
This notice and
any non-contractual obligations
arising out of
or in connection
with it is governed
by the laws of South Africa.
Please send a signed version of the acknowledgement attached as schedule 1
of this notice confirming
your agreement to the above.
30
Yours
faithfully,
For and on behalf of
Lesaka Technologies, Inc
(as
Cedent
)
Signature
Name of Signatory
Designation of Signatory
For and on behalf of
Bowwood and Main No 408
(RF) Proprietary Limited
(as
Debt
Guarantor
)
Signature
Name of Signatory
Designation of Signatory
31
Schedule 1: Form of acknowledgement
PRIVATE
AND CONFIDENTIAL
The Cedent:
The Cessionary:
Date: _____________
Dear Sirs
NOTICE IN RESPECT OF CESSION IN SECURITY ("NOTICE")
1.
We, [RELEVANT
BANK], acknowledge receipt of, and refer to, the following
documents:
1.1
the
written
agreement
titled
"
Pledge
and
Cession
in
Security
Agreement
"
(the
Cession
in
Security
) executed by
[●] (Registration Number
[●]) (the
Cedent
) dated [●]
202___ in favour
of [●]
(Registration number
[●]) (the
Cessionary
) in
terms of
which,
inter alia
, the
Cedent agreed
to cede
in securitatem debiti
in favour of the Cessionary all of
its rights, title and interests in and
to the bank
accounts listed
in Schedule 1
hereto (
Known Bank Accounts
) and held
by them with
[
RELEVANT
BANK
], from
time to
time (
Future Bank
Accounts
) (the
Known Bank Accounts
and the Future Bank accounts collectively referred to as the
Bank Accounts
); and
1.2
the written notification in respect of the Cession in Security from
the Cedent to [
RELEVANT
BANK
], dated [●] 202___ (the
Cedent’s Notice
).
2.
Unless specifically
defined in this
Notice, terms
and expressions defined
in the Cession
in Security
shall
bear
the
same
meaning
when
used
herein.
For
the
sake
of
clarity,
notwithstanding
the
definition of the “
Secured Property
” in the Cession in Security, the provisions of this Notice shall
only apply in respect of the Bank Accounts.
3.
[RELEVANT
BANK],
hereby
consents
to
the
cession
of
the
Bank
Accounts
in
terms
of
the
Cession in Security,
subject to the terms of this Notice. Subject to
paragraphs 4 and 5 below,
and
following delivery
of a
written notification
purportedly from
the Cessionary
substantially in
the
form of Schedule 2 hereto, in terms of
which, amongst other things, the Cessionary confirms that
it has
become entitled
to enforce
its rights
under the
Cession in
Security (the
Enforcement Notice
),
[RELEVANT
BANK], undertakes:
3.1
in respect
of the
Known Bank
Accounts by
0h00 (midnight)
on the
date that
falls 1
(one) Business
Day (being a
day which is
not a
Saturday,
Sunday or official
public holiday in
the Republic of
South Africa) (Business Day) following the date of receipt of the Enforcement
Notice; and
3.2
in respect
of the
Future Bank
Accounts, by
0h00 (midnight)
on the
date that
falls 2
(two) Business
Days following the date of receipt of the Enforcement Notice,
(the date and time of
the expiration of the above periods referred
to as the
Enforcement Date
),
to:
32
3.3
comply with the
terms of any
written notice or
instruction relating
to the Bank
Accounts received
from the Cessionary;
3.4
only
permit
withdrawals
from
the
Bank
Accounts
with
the
prior
written
consent
of
the
Cessionary;
3.5
hold all sums standing to the credit of the Bank Accounts to the order
of the Cessionary;
3.6
subject
to
clause
5.12,
provide
the
Cessionary
with
such
information
concerning
the
Bank
Accounts as the Cessionary may from time to time require; and
3.7
pay
the
Final
Balance (as
such
term
is
defined in
paragraph 5.10
below)
to
the
bank
account
stipulated in writing by the Cessionary for such purpose.
4.
The
Cessionary
hereby
undertakes
to
address
the
Enforcement
Notice
to
the
following
[
RELEVANT BANK
], representatives at the following email addresses:
4.1
[RELEVANT
BANK], Corporate Legal – [
INSERT NAME AND EMAIL ADDRESS];
4.2
Relationship Manager in respect of the Cedent, [
INSERT NAME AND EMAIL ADDRESS
];
4.3
Relationship Analyst in respect of the Cedent, [
INSERT NAME AND EMAIL ADDRESS
];
4.4
Credit Evaluation Manager in respect of the Cedent, [
INSERT NAME AND EMAIL ADDRESS
];
or any
other person
occupying such
role/s on
the date
of the
Enforcement Notice, as
advised by
[
RELEVANT BANK
], in writing to
the Cessionary in terms of
paragraph 6.8 below,
on request of
the
Cessionary,
and
to
deliver
same
in
original
duplicate
form
to
[RELEVANT
BANK],
’s
domicilium address
as specified
below,
including to
[RELEVANT
BANK], ’s
Sandton address.
The requirement
to deliver
an Enforcement
Notice to
the persons
at the
addresses set
out in
this
Notice, is
a requirement
for the
benefit of
[RELEVANT
BANK], only.
[RELEVANT
BANK],
shall be entitled to waive
strict conformance with the
aforegoing, in its sole discretion
and without
notice to the Cessionary and/or Cedent.
5.
[RELEVANT
BANK], the Cedent and the
Cessionary (individually, a
Party and collectively,
the
Parties) hereby agree and confirm that:
5.1
[RELEVANT
BANK], shall not
be required to
verify whether or
not the Cessionary
is entitled
to enforce its rights under the Cession in Security;
5.2
the Cedent, by
its signature
hereto, expressly
consents to
the provision
by [RELEVANT BANK],
of all
such information
as may
be required
in respect
of the
Bank Accounts
to the
Cessionary
with effect from the date of signature
of this Notice by the Cedent
and the Cedent hereby waives
any right of confidentiality (if any)
to which it would otherwise
have been entitled to in respect
of
any
disclosure
of
any
statement,
notice
or
information
by
[RELEVANT
BANK],
to
the
Cessionary in terms hereof;
5.3
[RELEVANT
BANK],
shall
not
be
required
to
determine
the
lawfulness
or
validity
of
the
Enforcement
Notice,
the
correctness
thereof
or
whether
the
Enforcement
Notice
has
been
properly authorized or signed by the Cessionary;
5.4
[RELEVANT
BANK], shall not be required to act on or comply with the Enforcement Notice
if
doing
so
would
be
in
contravention
of
any
law,
regulation
or
requirement
of
any
judicial,
governmental, supervisory
or regulatory
body,
court of
law or
legal process,
it being
recorded
that if the
aforegoing is applicable
at the time
of receiving an
Enforcement Notice, [RELEVANT
BANK], shall notify the Cessionary accordingly;
5.5
it is recorded that by operation
of law,
[RELEVANT
BANK], will suspend the operation of the
Bank Accounts upon it becoming aware that any
business rescue proceedings have commenced
in respect of the
Cedent, or that an
application for the liquidation (whether
provisional or final)
of the
Cedent, has
been lodged
and such
Bank Accounts
shall only
be operated
by and
on the
instructions of the business
rescue practitioner or the
liquidator (as applicable). If
the Cessionary
33
requests in
writing as
to whether
a particular
Bank Account
has been
suspended and
provides
[RELEVANT
BANK],
with
the
details
of
such
Bank
Account,
[RELEVANT
BANK],
shall
notify the Cessionary accordingly;
5.6
[RELEVANT
BANK], shall not be required to
act on or comply with
the Enforcement Notice in
relation to (i) the
transfer of Final Balances/s
into an account nominated
by the Cessionary or
(ii)
the
suspension
of
the
Bank
Accounts
on
or
after
the
date
on
which
any
business
rescue
proceedings
have
commenced
in
respect
of
the
Cedent,
or
an
application
for
the
liquidation
(whether provisional or
final) of the
Cedent has been
lodged unless, (i)
[RELEVANT
BANK],
receives consent from the business rescue practitioner of the Cedent, or
(ii) it is instructed to do
so by the business rescue practitioner
or the liquidator or (iii) it is
instructed to do so by a
court
order;
5.7
the Cedent
undertakes to
inform all
the relevant
individuals listed
in paragraph
4 above,
if the
Cedent becomes subject to liquidation proceedings;
5.8
[RELEVANT
BANK], shall
not be
obliged to
voluntarily become party
and/or to
join itself
to
any claim or
dispute of any nature
which any party (including,
inter alia, the
Cedent and/or the
Cessionary) may allege;
5.9
notwithstanding
any
other
provision
hereof,
the
Cedent
and
the
Cessionary
hereby
further
acknowledge and agree
that, prior to
the Enforcement Date,
[RELEVANT BANK], is not able to
control the flow
of funds into
or out of
the Bank Accounts
due to the
transactional nature thereof.
As such,
[RELEVANT BANK], is not
able to
guarantee and/or
give the
Cessionary any
assurance
as to
the amount
of funds
available in
the Bank
Accounts to
be recovered
by the
Cessionary under
the
Cession in
Security; accordingly,
[RELEVANT
BANK], shall
not,
at
any time
before the
Enforcement Date,
be obliged
to load a
pledge indicator
on the Bank
Accounts, or
otherwise treat
the rights to
the balances from
time to time
on such accounts
as having been
ceded in terms
of
the Cession in Security;
5.10
in the event that [RELEVANT
BANK], suspends the operation of the Bank Accounts following
receipt of an
Enforcement Notice, [RELEVANT
BANK], will
only be in
a position to
confirm
the final balance
of the Bank
Accounts, on the
Enforcement Date (Final
Balance), which Final
Balance will remain subject
to correction, late entries and
is further subject to the
provisions of
paragraph 5.19, 5.20 and 5.21;
5.11
the Cessionary undertakes in favour of [RELEVANT
BANK], that it shall not cede
its rights or
delegate
its
obligations
under
the
Cession
in
Security
to
any
other
party
unless,
prior
to,
or
simultaneously with such cession, delegation or
transfer, the new Cessionary has acceded to this
Notice by delivering to the
Parties an accession undertaking
substantially in the form
attached as
Schedule 3 hereto. The Cedent hereby agrees to such accession under this
Notice;
5.12
as
soon
as
practicably
possible
after
receipt
of
a
written
notification
purportedly
from
the
Cessionary
substantially
in
the
form
of
Schedule
4
hereto,
in
terms
of
which
the
Cessionary
requests
certain
information
in
relation
to
the
Known
Bank
Accounts
(Information
Notice)
[RELEVANT
BANK],
shall
provide
the
Cessionary,
with
such
information
concerning
the
Known Bank Accounts as
the Cessionary may from
time to time
require under the Information
Notice;
5.13
[RELEVANT
BANK], shall, as soon as practicably
possible following receipt of an
Information
Notice
to
this effect
from the
Cessionary,
notify the
Cessionary of
the
closure of
any Known
Bank Accounts it
is aware of
as at the
date of receipt
of the Information
Notice to this
effect from
the Cessionary;
5.14
the
Cedents
and
the
Cessionary,
undertake
to
promptly
provide
[RELEVANT
BANK],
with
written notification of the termination or cancellation of the Cession in Security;
34
5.15
after the Enforcement Date,
[RELEVANT BANK], will not act on any instruction
received from
the Cedent in respect of the
Bank Accounts unless [RELEVANT BANK], has obtained the prior
consent of
the Cessionary
and [RELEVANT
BANK], shall
advise the
Cessionary if
any third
party seeks to enforce any rights against the Bank Accounts;
5.16
subsequent to the delivery
of the Enforcement Notice,
the Cessionary undertakes to
do all such
things and
provide all
such documents
as may
be required
by [RELEVANT
BANK], in
order
that [RELEVANT BANK], complies with all applicable legislative
and regulatory requirements,
including, without limitation, any “Know Your Client” requirements;
5.17
the
Cedent
and
the
Cessionary
hereby
waive
any
claims
they
may
have
or
obtain
against
[RELEVANT BANK], arising directly or indirectly from any
losses or damages which
they may
suffer
as
a
result
of
[RELEVANT
BANK],
acting
in
terms
of
the
Enforcement
Notice
or
Information Notice, unless [RELEVANT BANK], has acted with gross negligence
and/or wilful
default;
5.18
the
Cedent
hereby
indemnifies
[RELEVANT
BANK],
in
respect
of
any
claims,
demands
or
actions
made
against
[RELEVANT
BANK],
or
losses,
damages
expenses
and/or
legal
costs
(including on
a scale
of attorney-own-client) suffered
by [RELEVANT
BANK], in
connection
with
this
Notice
and/or
or
the
delivery
of
an
Enforcement
Notice
or
Information
Notice
and
[RELEVANT
BANK], ’s
actioning of
such Enforcement
Notice or
Information Notice,
unless
[RELEVANT
BANK], has acted with gross negligence, fraud or wilful default;
5.19
notwithstanding any provision hereof, [RELEVANT BANK], reserves the right to:
5.19.1
close, cancel or suspend the operation of the Bank Accounts; and/or
5.19.2
include
the
Bank
Accounts on
any
of
its
cash
management services
(the
Service/s) and
to
accordingly
exercise
its
rights
to
the
operation
of
automatic
set-off
and/or
its
rights
of
combination of accounts, up until the Enforcement Date;
5.20
the rights of the Cessionary
will be subject to the
provisions of this Notice
and specifically to the
automatic
set-off
which
will
operate
in
respect
of
the
balances
on
the
Bank
Accounts
in
accordance with the Service/s and/or in terms of law, up until the Enforcement Date;
5.21
to the extent that:
5.21.1
the
Bank
Accounts
form
part
of
any
contractual
netting
arrangement,
cash
management
scheme
or
similar
arrangement
(Arrangement),
[RELEVANT
BANK],
will
take
action
to
remove the
Bank Accounts
from the
Arrangement following
the receipt
of an
Enforcement
Notice and be entitled to
debit the Bank Accounts in respect
of any amounts due under
such
Arrangement until their removal from any Arrangement is effected;
5.21.2
there are any
debit orders, salary
files, pre-loaded payment
runs or other
post-dated debits
that
are automated and have, or will ,be processed, including those which may not
yet be debited
to the Bank Accounts, [RELEVANT BANK], will despite service of
the Enforcement Action
be entitled to permit these payments to run and honour these debits;
and
both
of
the
Cedent
and the
Cessionary herby
indemnify
[RELEVANT
BANK], and
hold
[RELEVANT
BANK],
harmless
in
respect
of
all
claims,
demands
or
actions
made
against
[RELEVANT
BANK], or
losses, damages expenses
and/or legal costs
(including on
a scale
of
attorney-own-client)
suffered
by
[RELEVANT
BANK],
in
connection
with
[RELEVANT
BANK], acting in accordance with this clause;
5.22
[RELEVANT
BANK], shall
be entitled,
but not
obliged, from
time to
time to
amend, vary
or
alter, by written notice to
each of the Cedents
and the Cessionary
at the domicilium
addresses set
out in this Notice, the details in paragraph 4 above;
35
5.23
other than what is
stipulated herein, [RELEVANT BANK], makes no undertaking
whatsoever in
relation
to
the
Bank
Accounts,
the
Enforcement
Notice,
the
Information
Notice
and/or
the
Cession in Security; and
5.24
[RELEVANT
BANK], does not confirm the validity or otherwise of the Cession in Security.
6.
General
6.1
Limitation of Liability
Notwithstanding anything to the contrary contained in this Notice, the Parties shall not be liable
to each other for any indirect or consequential loss or damage, including without
limitation, loss
of
profit,
revenue,
anticipated
savings,
business
transactions
or
goodwill
or
other
contracts
whether arising from negligence or breach of contract.
6.2
Certificate
A
certificate
signed
by
any
manager
or
director
of
[RELEVANT
BANK],
(whose
authority,
qualification
or
appointment
need
not
be
proved)
setting
out
the
Final
Balance
or
any
other
amount
in
respect
of
the
Bank
Accounts,
the
rates
of
interest
or
any
other
fact,
shall,
upon
presentation, be prima facie proof of the facts contained therein.
6.3
Governing Law
The
laws
of
the
Republic
of
South
Africa
shall
govern
the
validity,
interpretation
and
performance of this Notice and the courts of South Africa shall have
sole jurisdiction.
6.4
Severability
The invalidity, illegality
or unenforceability
of any
of the
provisions of
this Notice
shall not
affect
the validity, legality and enforceability of the remaining provisions of this Notice.
6.5
No Waiver
The failure of either Party to
insist upon the strict performance
of any provision of this
Notice or
to exercise
any right,
power or
remedy consequent
upon a
breach hereof
shall not
constitute a
waiver by such Party to require strict and punctual compliance with each and every provision of
this Notice.
6.6
Entire Agreement and Variation
6.6.1
This Notice embodies the entire agreement between the Parties in relation to the consent and
acknowledgement of
[RELEVANT BANK], of the Cession
in Security
of the Bank
Accounts.
6.6.2
In
this
Notice, words
importing the
singular shall
include the
plural and
vice versa,
words
importing the masculine gender shall include the feminine and neuter genders and vice versa
and words importing natural persons shall include legal persons and
vice versa.
6.6.3
No amendment
or variation
of any
of the
provisions of
this Notice
shall be
of any
force or
effect unless reduced
to writing and
signed by all
the Parties. This
requirement will only
be
satisfied
if
such
amendment
or
variation
is
made
in
a
written,
paper
based
form.
The
provisions of the Electronic Communications and Transactions Act 25 of 2002 are expressly
excluded from this paragraph 6.6.
6.7
Consent to Jurisdiction
The Parties hereby consent
to the non-exclusive
jurisdiction of the High
Court of South Africa
in
respect of any proceedings in connection with this Notice.
6.8
Notices and Domicilium
6.8.1
The
Parties
choose
as
their
domicilium citandi
et
executandi
(address
for
purpose
of
legal
proceedings and legal notices) their respective addresses set out in paragraph
6.8.2 below, at
36
which addresses all processes and notices arising out of or in connection with this Notice, its
breach or termination shall be served upon or delivered to the Parties.
6.8.2
For the purpose of this Notice, the Parties' domicilium citandi et executandi
is:
6.8.2.1
as regards [RELEVANT
BANK],
Attention:
[●]
With a copy to be sent to:
[●]
6.8.2.2
as regards the Cedent:
Attention:
[insert]
[insert full address including street name, area and area code]
Email:
[●];
6.8.2.3
as regards the Cessionary:
Attention:
[insert]
[insert full address including street name, area and area code]
Email:
[●];
or at
such other
physical address,
not being
a post
office box
or poste
restante, of
which the
Party concerned may notify the others in writing.
6.8.3
Any notice given in terms of this Notice shall be in writing and shall
-
6.8.3.1
if
delivered by
hand be
deemed to
have been
duly
received by
the
addressee on
the
first
Business Day after the date of delivery;
6.8.3.2
if posted
by prepaid registered
post be
deemed to
have been received
by the
addressee on
the 8th Business Day following the date of such posting;
6.8.3.3
if transmitted by facsimile be deemed to have been received by the addressee one Business
Day after the date of despatch;
6.8.3.4
if
sent
electronically,
shall
be
deemed
to
have
been
received
on
the
first
Business
Day
following the
successful transmission
thereof as
evidenced by
the electronic
confirmation
of receipt (unless the contrary is proven).
6.8.4
It is recorded for
the avoidance of doubt
that a legal notice
sent by a Party
shall not be regarded
as valid legal notice, if sent electronically in terms of this paragraph
6.8.3.4.
6.8.5
Notwithstanding anything
to
the
contrary contained
or implied
in
this
Notice, but
subject to
paragraph 6.8.4
above and
paragraph 6.9
below,
a written
notice or
communication actually
received by one
of the Parties
from another including
by way of
email or facsimile
transmission
shall be adequate written notice or communication to such Party.
6.9
Fax and Email Indemnity
6.9.1
The Cedent and Cessionary:
6.9.1.1
acknowledge that it is
not practical for [RELEVANT
BANK], to establish the
authenticity
of instructions that, on the face of such document(s), purports to emanate from a Cedent
or
the
Cessionary
in
terms
of
this
Notice
(“Instructions”),
that
is
to
establish
whether
such
Instructions are
fraudulent, authentic
or
duly
authorised or
whether the
Instructions were
signed by duly authorised representatives;
6.9.1.2
agree
that
[RELEVANT
BANK],
is
not
to
be
held
liable
for
Instructions
which
are
fraudulent,
unauthentic,
unauthorised
or
signed
by
unauthorised
representatives
37
(“Fraudulent or
Unauthorised Instructions”),
any errors
or delays
in transmissions,
or any
misinterpretation on receipt of an Instruction; and
6.9.1.3
waive any rights that it may have or obtain now or in future against [RELEVANT BANK],
arising directly
or indirectly from
any losses
or damages
which any of
the Cedents and/or
Cessionary
may
suffer
as
a
result
of
[RELEVANT
BANK],
acting
or
declining
to
act
(wholly or
in part)
on any
Fraudulent or
Unauthorised Instruction
(save for
instances of
gross
negligence and
wilful default),
and each
of the
Cedent and
the Cessionary, hereby
indemnify
[RELEVANT
BANK],
in
respect
of
any
claims,
demands
or
actions
made
against
[RELEVANT
BANK], or losses or damages suffered by [RELEVANT
BANK], because it
so acted or declined to act, excluding losses arising solely and
exclusively from the proven
unlawful,
grossly
negligent
or
fraudulent
acts
of
[RELEVANT
BANK],
and/or
its
employees.
6.10
Counterparts
This Notice may
be signed in
counterparts and the
copies signed in
counterpart shall constitute
the agreement between the Parties.
7.
Save
as
specifically
contemplated
in
this
Notice,
this
Notice
is
given
without
prejudice
to
[RELEVANT BANK], or any
of its
rights, and
[RELEVANT BANK], hereby reserves
all its
rights
in respect of the Bank Accounts.
8.
Kindly confirm
your acceptance
of the
terms and
conditions of
this Notice
by signing
and returning
an originally signed copy to us within 30 days from the date of
this Notice.
9.
If we do not receive
the originally signed copy
from both the Cedent
and the Cessionary within
30
(thirty) days of the date of this Notice then:
9.1
according to the
terms of our
agreements with the
Cedent, the Cedent
may not cede
or transfer
any
of
its
rights
or
obligations
(duties)
in
connection
with
their
bank
accounts
held
with
us
without our prior written consent; and
9.2
we do not consent to the cession as requested; and
9.3
we
will
not
be
acting
in
accordance
with
the
request in
the
cession
notice
or
any
subsequent
requests in connection therewith; and
9.4
for the avoidance of doubt,
we will not be liable to
the Cessionary or the Cedent
in respect of the
cession contemplated in this
Notice and will continue
to conduct our relations
with the Cedent in
accordance with the ordinary banker/client relationship.
[
TO BE SIGNED BY ACCOUNT BANK
]
SIGNED
AT
____________________
ON
THE
___________
DAY
OF
_________________________________ 202___
For and on behalf of [RELEVANT BANK], ACTING THROUGH ITS [●] DIVISION
Signature
________________________
38
Full Names
________________________
Designation
________________________
SIGNED
AT
____________________
ON
THE
___________
DAY
OF
__________________________________ 202__
For and on behalf of [RELEVANT BANK], ACTING THROUGH ITS [●] DIVISION
Signature
________________________
Full Names
________________________
Designation
________________________
39
SCHEDULE 1
BANK ACCOUNTS
NAME OF ACCOUNT
[RELEVANT BANK], ACCOUNT NUMBER
40
SCHEDULE 2
SPECIMEN
ENFORCEMENT
NOTICE
TO
BE
PLACED
ON
CESSIONARY’S
LETTERHEAD
Attention:
With a copy to be sent to each Cedent specified in the Notice
Date:
Dear Sirs
ENFORCEMENT NOTICE
We,
_______________ (“the
Cessionary
”)
refer
to
the
Notice
in
respect
of
the
Cession
in
Security
provided
to
(“[RELEVANT
BANK],”)
by____________
(the
Cedent
)
and
the
Cessionary
dated
____________ (“the
Notice
”).
Unless specifically
defined in
this Enforcement
Notice, terms
and expressions
defined in
the Notice
shall bear the same meaning when used herein.
The Cessionary hereby confirms that it is entitled to enforce its rights under the Cession in
Security in
respect of Bank
Accounts listed in the table
below, and
as well as all
other bank accounts held
by the
Cedent with the Bank as at the date of response to this Enforcement Notice.
Accordingly,
this
letter
serves
as
a
formal
Enforcement
Notice
by
the
Cessionary
to
[RELEVANT
BANK], as is contemplated in the Notice, in respect of the Bank
Accounts.
(*please select the appropriate option/s)
*Option 1
The Cessionary hereby requests [RELEVANT BANK], to provide it with the following information in
respect of the Known Bank Accounts which are listed below:
[●]
[●]
as well
as all other
bank accounts held
by the Cedent
with the Bank
as at the
date of response
to this
Enforcement Notice:
[insert information]
41
AND/OR
*Option 2
The Cessionary hereby requests [RELEVANT
BANK], to confirm the Final
Balance in respect of the
Bank Accounts which
are listed below
as well as
all other bank accounts
held by the
Cedent with the
Bank as at the date of response to this Enforcement Notice.
AND/OR
*Option 3
The Cessionary
hereby requests
[RELEVANT
BANK], to
suspend the
operation of,
and confirm
the
Final Balances of,
the Bank
Accounts which are
listed below as
well all
other bank accounts
held by
the Cedent with the Bank as at the date of response to this Enforcement
Notice.
The
Cessionary
further
requests
[RELEVANT
BANK],
to
transfer
the
Final
Balance/s
into
account
number
___________ (“the
Cessionary’s
Account”) on
or
before the
________ day
of
______ 20_,
subject to paragraph 5.10 of the Notice.
Name of Account
[RELEVANT
BANK]
Account Number
[●]
Final Balance
[●]
Kindly
acknowledge
receipt
of
this
Enforcement
Notice
by
replying
to
the
following
email
address_________.
Yours
Faithfully
Signed at ______________on the _____________day of ________________20___
___________________
Cessionary’s Authorised Signatory 1
Name:
___________________
Capacity:
___________________
Signature:
___________________
42
___________________
Cessionary’s Authorised Signatory 2
Name:
___________________
Capacity:
___________________
Signature:
__________________
43
SCHEDULE 3
SPECIMEN
ACCESSION
UNDERTAKING
TO
BE
PLACED
ON
NEW
CESSIONARY’S
LETTERHEAD
Attention:
With a copy to be sent to each Cedent specified in the Notice
Date:
Dear Sirs
ACCESSION UNDERTAKING
We,
_______________ (the
New Cessionary
) refer to the Notice in respect of the Cession in Security
provided
by
([RELEVANT
BANK],
)
to
____________ (the
Cedent
)
and
the
_____________
(the
Transferring Cessionary
) dated ____________ (the
Notice
).
Unless specifically defined in this
accession undertaking, terms and expressions defined
in the Notice
shall bear the same meaning when used herein.
The Transferring
Cessionary,
by its
signature hereto,
hereby confirms
that it
has ceded,
delegated or
otherwise transferred its rights under the Cession in Security and Notice to
the New Cessionary.
The New Cessionary hereby
confirms that it has accepted
the rights and obligations
of the Transferring
Cessionary under the Cession in
Security and the Notice. Accordingly, with effect from
the date of this
accession undertaking, all references to
the “Cessionary” under the Notice
shall be deemed to refer
to
the New Cessionary.
Kindly
acknowledge
receipt
of
this
Enforcement
Notice
by
replying
to
the
following
email
address_________.
44
Yours
Faithfully
Signed at ______________on the _____________day of ________________20___
______________________________
New Cessionary’s Authorized Signatory 1
Name:
___________________
Capacity:
___________________
Signature:
___________________
______________________________
New Cessionary’s Authorized Signatory 2
Name:
___________________
Capacity:
___________________
Signature:
___________________
______________________________
Transferring Cessionary’s Authorized Signatory 1
Name:
___________________
Capacity:
___________________
Signature:
___________________
______________________________
Transferring Cessionary’s Authorized Signatory 2
Name:
___________________
Capacity:
___________________
Signature:
___________________
45
SCHEDULE 4
SPECIMEN INFORMATION NOTICE
TO BE
PLACED ON
CESSIONARY’S LETTERHEAD
Attention:
With a copy to be sent to each Cedent specified in the Notice
Date: ____________
Dear Sirs
INFORMATION NOTICE
We,
_______________ (“the
Cessionary
”)
refer
to
the
Notice
in
respect
of
the
Cession
in
Security
provided
by
(“[RELEVANT
BANK],”)
to
____________
(the
Cedent
)
and
the
Cessionary
dated
____________ (“the
Notice
”).
Unless specifically
defined in
this Information
Notice, terms
and expressions
defined in
the Notice
shall
bear the same meaning when used herein.
The Cessionary hereby confirms that it is entitled to enforce its rights under the Cession in
Security in
respect of Bank
Accounts listed in the table
below, and
as well as all
other bank accounts held
by the
Cedent with the Bank as at the date of response to this Information Notice.
Accordingly,
this
letter
serves
as
a
formal
Information
Notice
by
the
Cessionary
to
[RELEVANT
BANK], as is contemplated in the Notice, in respect of the Bank
Accounts.
The Cessionary hereby requests [RELEVANT BANK], to provide it with the following information in
respect of the Known Bank Accounts which are listed below:
Name of Account
[RELEVANT
BANK]
Account Number
[●]
as well as the
all other bank accounts
held by the Cedent
with the Bank as
at the date of
response to this
Enforcement Notice:
[insert information requested]
46
Kindly
acknowledge
receipt
of
this
Information
Notice
by
replying
to
the
following
email
address_________.
Yours
Faithfully
Signed at ______________on the _____________day of ________________20___
___________________
Cessionary’s Authorised Signatory 1
Name:
___________________
Capacity:
___________________
Signature:
___________________
___________________
Cessionary’s Authorised Signatory 2
Name:
___________________
Capacity:
___________________
Signature:
___________________
1
SIGNATURE PAGES
Signed at Parkhurst
on 27 February
2025
for
LESAKA TECHNOLOGIES, INC.
(in its
capacity as
Cedent
)
/s/ Daniel Smith
Signature
Daniel Smith
Name of Signatory
Group Chief Financial Officer
Designation of Signatory
2
Signed at CAPE TOWN
on 27 February
2025
for
LESAKA TECHNOLOGIES
PROPRIETARY LIMITED
(in its capacity
as
obligors' agent
and
Term/RCF
Borrower
)
/s/ Naeem Ebrahim Kola
Signature
Naeem Ebrahim Kola
Name of Signatory
GCOO
Designation of Signatory
3
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
4
Signed at Sandon
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