1
COMMON TERMS AGREEMENT
SENIOR TERM LOAN, REVOLVING
 
LOAN AND WORKING CAPITAL FACILITIES
and
LESAKA TECHNOLOGIES PROPRIETARY
 
LIMITED
(as
Term/RCF
 
Borrower
)
and
FIRSTRAND BANK LIMITED
 
(acting through its Rand Merchant Bank division)
(as
Facility Agent
)
and
BOWWOOD AND MAIN NO 408 (RF) PROPRIETARY
 
LIMITED
(as
Debt Guarantor
)
Exhibit 10.46
i
TABLE
 
OF CONTENTS
ii
ANNEXURES
1
1
PARTIES
1.1
The Parties to this Agreement are –
1.1.1
Lesaka Technologies, Inc. (
Holdco
);
1.1.2
Lesaka
 
Technologies
 
Proprietary Limited,
 
registration number
 
2002/031446/07 (the
Term/RCF Borrower
);
1.1.3
the Parties
 
listed in
 
Part I
 
of Annexure
 
A (
The Original
 
Parties
) as
 
general banking
facility borrowers (the
Original WCF Borrowers
);
 
1.1.4
the Parties listed in Part
 
I of Annexure A (
The Original Parties
) as original guarantors
(the
Original Guarantors
);
1.1.5
the
 
Financial
 
Institutions
 
listed
 
in
 
Part
 
II
 
of
 
Annexure
 
A
 
(
the
 
Original
 
Parties
),
 
as
original lenders under the
 
Senior Term Facilities and the Senior
 
RCF (in this capacity,
together with the Original WCF Lender, the
Original Senior Lenders
);
1.1.6
FirstRand Bank Limited (acting through
 
its Rand Merchant Bank division) as
 
original
lender under Working Capital
 
Facilities (in
 
this capacity, the
Original WCF Lender
);
1.1.7
FirstRand
 
Bank
 
Limited
 
(acting
 
through
 
its
 
WesBank
 
division)
 
as
 
original
 
lender
under the WesBank Facility (in this capacity,
WesBank
);
1.1.8
FirstRand Bank Limited (acting
 
through its Rand Merchant
 
Bank division) as agent
 
of
the other Finance Parties (the
Facility Agent
); and
1.1.9
Bowwood
 
and
 
Main
 
No
 
408
 
(RF)
 
Proprietary
 
Limited,
 
registration
 
number
2024/200503/07, as holder of security for the benefit of the Finance Parties (the
Debt
Guarantor
).
1.2
The Parties agree as set out below.
2
INTERPRETATION
2.1
In this Agreement,
 
unless the
 
context indicates a
 
contrary intention,
 
the following words
 
and
expressions bear
 
the meanings
 
assigned to
 
them and
 
cognate expressions
 
bear corresponding
meanings –
2.1.1
Acceptable Bank
 
means -
2.1.1.1
any
 
of
 
Absa
 
Bank
 
Limited,
 
FirstRand
 
Bank
 
Limited,
 
Investec
 
Bank
 
Limited,
Nedbank Limited and The Standard Bank of South Africa Limited;
2
2.1.1.2
a bank or financial institution which has an international rating for its long-term
unsecured
 
and
 
non-credit
 
enhanced
 
debt
 
obligations
 
of
 
BBB-
 
or
 
higher
 
by
Standard
 
&
 
Poor's
 
Ratings
 
Services
 
or
 
Baa3
 
or
 
higher
 
by
 
Moody's
 
Investor
Services
 
Limited,
 
or
 
a
 
comparable
 
rating
 
from
 
an
 
internationally
 
recognised
credit rating agency; or
2.1.1.3
any other bank or financial institution approved by the Facility Agent;
2.1.2
Accession Letter means
 
-
2.1.2.1
in relation to an Additional
 
Guarantor, a document
 
substantially in the form set
out in Part I of Annexure D (Forms of Accession Letter);
 
2.1.2.2
in relation
 
to an
 
Additional WCF
 
Borrower, a document
 
substantially in
 
the form
set out in Part II of Annexure D (Forms of Accession Letter); and
2.1.2.3
in relation to a WCF
 
Lender, a document substantially in
 
the form set out in
 
Part
III of Annexure D (Forms of Accession Letter);
2.1.3
Acquisition
 
GBF
 
means
 
the
 
general
 
banking
 
facilities
 
provided
 
by
 
RMB
 
to
 
the
Term/RCF
 
Borrower
 
on
 
or
 
about
 
30
 
September
 
2024,
 
to
 
enable
 
the
 
Term/RCF
Borrower to acquire all of the shares and claims in Adumo;
2.1.4
Additional Guarantor
 
means a
 
person which
 
becomes an
 
Additional Guarantor
 
in
accordance with clause
 
(Additional Guarantors);
2.1.5
Additional Obligor
 
means an Additional
 
WCF Borrower or
 
an Additional Guarantor;
2.1.6
Additional WCF Borrower
 
means a member
 
of the Covenant Group
 
in its capacity
as a
 
borrower under
 
a Working
 
Capital Facility
 
on it
 
becoming an
 
Additional WCF
Borrower in accordance with clause
 
(Additional WCF Borrower);
2.1.7
Adumo
 
means
 
Adumo
 
(RF)
 
Proprietary
 
Limited,
 
registration
 
number
2017/540380/07,
 
a
 
private
 
company
 
with
 
limited
 
liability
 
duly
 
incorporated
 
in
accordance with the laws of South Africa;
2.1.8
Affiliate
, in
 
relation to
 
any person,
 
means a
 
Subsidiary of
 
that person
 
or a
 
Holding
Company of that person, or any other Subsidiary of that Holding Company;
2.1.9
Agreement
 
means this common terms agreement and its schedules;
 
3
12
121
1
TT
]R[R]T[T
RR
-
-´-
+=
2.1.10
Applicable Margin
, in relation
 
to a
 
Loan, has the
 
meaning given to
 
that term in
 
the
Senior Facility Agreement relating to that Loan;
2.1.11
Auditors
 
means
 
one
 
of
 
PwC,
 
EY,
 
KPMG
 
or
 
Deloitte,
 
BDO,
 
or
 
any
 
other
 
firm
approved in writing in advance by the Facility Agent;
2.1.12
Availability
 
Period
,
 
in
 
relation
 
to
 
the
 
applicable
 
Senior
 
Term
 
Facility
 
or
 
the
Senior RCF,
 
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
the
 
applicable
 
Senior
 
Facility
Agreement;
2.1.13
Available
 
Commitment
,
 
in
 
relation
 
to
 
the
 
applicable
 
Senior
 
Term
 
Facility
 
or
 
the
Senior RCF, means a Lender's Commitment under that Senior Facility minus -
2.1.13.1
the
 
amount
 
of
 
its
 
participation
 
in
 
any
 
outstanding
 
Loans
 
under
 
that
 
Senior
Facility; and
2.1.13.2
in
 
relation
 
to
 
any
 
proposed
 
Utilisation,
 
the
 
amount
 
of
 
its
 
participation
 
in
 
any
Loans
 
that
 
are
 
due
 
to
 
be
 
made
 
under
 
that
 
Senior
 
Facility
 
on
 
or
 
before
 
the
proposed Utilisation Date;
2.1.14
Available
 
Facility
,
 
in
 
relation
 
to
 
the
 
applicable
 
Senior
 
Term
 
Facility
 
or
 
the
 
Senior
RCF, means the aggregate for the time being of
 
each Lender's Available Commitment
in respect of that Senior Facility;
2.1.15
Base Rate
 
means for an Interest Period of
 
any Loan or Unpaid Sum, JIBAR,
 
or for an
Interest Period
 
of a
 
Loan or
 
Unpaid Sum
 
which is
 
less than
 
a full
 
period of
 
three months
(a
Broken
 
JIBAR
 
Period
),
 
the
 
rate
 
determined
 
in
 
accordance
 
with
 
the
 
following
formula -
where -
R
 
=
 
the Base Rate;
R
1
 
=
 
JIBAR for the period closest to but less than the Broken JIBAR Period
plus,
 
if
 
this
 
would
 
result
 
in
 
R
1
 
being
 
equal
 
to
 
the
 
JIBAR
 
Overnight
Deposit Rate, 0.10 per cent.;
R
2
 
=
 
JIBAR
 
for
 
the
 
period
 
closest
 
to
 
but
 
greater
 
than
 
the
 
Broken
 
JIBAR
Period;
4
T
 
=
 
the number of days in the Broken JIBAR Period;
T
1
 
=
 
the number of days in the
 
period for which R
1
 
is quoted on the first day
of the Broken JIBAR Period;
T
2
 
=
 
the number of days in the
 
period for which R
2
 
is quoted on the first day
of the Broken JIBAR Period;
2.1.16
Borrower
 
means the Term/RCF Borrower or a WCF Borrower;
2.1.17
Break Costs
, in relation to any Senior Facility,
 
has the meaning given to that term in
the applicable Senior Facility Agreement;
2.1.18
Break Gains
, in relation to any Senior Facility, has the meaning given to that term in
the applicable Senior Facility Agreement;
2.1.19
Business Day
 
means a day
 
(other than a
 
Saturday, a Sunday or official
 
public holiday)
on which banks are open for general business in Johannesburg;
2.1.20
Cash Connect Capital
 
means Cash Connect Capital
 
Proprietary Limited, registration
number 2017/029430/07, a private company
 
duly incorporated in accordance with
 
the
laws of South Africa;
2.1.21
Cash
 
Connect
 
Capital
 
RCF
 
Agreement
 
means
 
the
 
revolving
 
credit
 
facility
agreement concluded between
inter alios
Cash Connect Capital and RMB
 
on or about
29 November 2022,
 
pursuant to which
 
RMB agreed to
 
make a revolving
 
credit facility
of R300,000,000 available to Cash Connect Capital;
 
2.1.22
Cash Connect
 
Capital RCF
 
Finance Documents
 
means the
 
"Finance Documents"
as defined in the Cash Connect Capital RCF Agreement;
2.1.23
Cash Connect Group
 
Cession and Pledge
 
means the amended and
 
restated cession
in
 
security
 
provided
 
by
 
Cash
 
Connect
 
Capital,
 
Cash
 
Connect
 
Management,
 
Cash
Connect Rentals, Deposit Manager
 
and Main Street
 
1723 to RMB
 
as security for the
obligations
 
owing
 
to
 
RMB
 
on
 
account
 
of
 
the
 
Cash
 
Connect
 
Capital
 
RCF
 
Finance
Documents and the Cash Connect Management Finance Documents;
2.1.24
Cash Connect
 
Management
 
means Cash
 
Connect Management
 
Solutions Proprietary
Limited, registration
 
number 2006/010530/07,
 
a private
 
company with
 
limited liability
duly incorporated in accordance with the laws of South Africa;
5
2.1.25
Cash
 
Connect
 
Management
 
Facilities
 
Agreement
 
means
 
the
 
facilities
 
agreement
concluded
 
on
 
or
 
about
 
24
 
January
 
2022
 
between
 
Cash
 
Connect
 
Management
 
and
RMB, pursuant
 
to which
 
RMB made
 
facilities of
 
R1,050,000,000 available
 
to Cash
Connect Management;
2.1.26
Cash Connect Management
 
Finance Documents
 
means the “Finance
 
Documents”
as defined in the Cash Connect Management Facilities Agreement;
2.1.27
Cash
 
Connect
 
Management
 
Release
 
Agreement
 
means
 
the
 
release
 
and
 
consent
agreements, dated on
 
or about the
 
Signature Date, pursuant
 
to which RMB
 
agrees to
release -
2.1.27.1
any all security held by it
 
in relation to the Cash Connect Management Finance
Documents on the terms and on the conditions contained therein; and
 
2.1.27.2
Cash Connect Management, Cash Connect Rentals, Deposit Manager and Main
Street 1723 from the Cash Connect Group Cession and Pledge;
2.1.28
Cash Connect Rentals
means Cash Connect
 
Rentals Proprietary
 
Limited, registration
number 2009/007139/07, a
 
private company with
 
limited liability duly
 
incorporated in
accordance with the laws of South Africa;
 
2.1.29
Closing
 
Date
 
means
 
the
 
date
 
on
 
which
 
the
 
Facility
 
Agent
 
issues
 
the
 
notice
contemplated by clause
 
(
Initial conditions precedent
);
2.1.30
Code
 
means the United States Revenue Code of 1986;
2.1.31
Commitment
 
means
 
a
 
Senior
 
Term
 
Facility
 
Commitment,
 
a
 
Senior
 
RCF
Commitment,
 
the WesBank Commitment or a WCF Commitment;
2.1.32
Companies
 
Act
 
means
 
the
 
Companies
 
Act,
 
2008,
 
including
 
all
 
regulations
promulgated under that act;
2.1.33
Compliance
 
Certificate
 
means
 
a
 
certificate
 
substantially
 
in
 
the
 
form
 
set
 
out
 
in
Annexure F (
Form of Compliance Certificate
) or otherwise in the agreed form;
2.1.34
Confidential
 
Information
 
means
 
all
 
information
 
relating
 
to
 
Holdco,
 
any
 
other
Obligor, the Group, the Finance Documents or a Senior Facility in the
 
possession of a
Finance Party
 
in its
 
capacity as,
 
or for
 
the purpose
 
of becoming,
 
a Finance
 
Party or
which is received by
 
a Finance Party in
 
relation to, or for
 
the purpose of becoming
 
a
Finance Party under, the Finance Documents or a Senior Facility from either -
6
2.1.34.1
any member of the Group or any of its advisers; or
2.1.34.2
another
 
Finance
 
Party,
 
if
 
the
 
information
 
was
 
obtained
 
by
 
that
 
Finance
 
Party
from any member of the Group,
in whatever form, and
 
includes information given
 
orally and any document,
 
electronic
file
 
or
 
any other
 
way
 
of representing
 
or
 
recording information
 
which contains
 
or
 
is
derived or copied from such information but excludes information that -
2.1.34.2.1
is or
 
becomes public
 
information other
 
than as
 
a result
 
of any
 
breach by
that Finance Party of clause
 
(Confidentiality); or
2.1.34.2.2
is identified
 
in writing
 
at the
 
time of
 
delivery as
 
non-confidential by any
member of the Group or any of its advisers; or
2.1.34.2.3
is known by that
 
Finance Party before
 
the date the information
 
is disclosed
to it
 
in accordance
 
with clauses
 
or
 
or is
 
lawfully
obtained by
 
that Finance
 
Party after that
 
date, from
 
a source
 
which is,
 
as
far as that Finance Party is
 
aware, unconnected with the Group
 
and which,
in either case, as far as
 
that Finance Party is aware, has not
 
been obtained
in
 
breach
 
of,
 
and
 
is
 
not
 
otherwise
 
subject
 
to,
 
any
 
obligation
 
of
confidentiality;
2.1.35
Confidentiality Undertaking
 
means a confidentiality
 
undertaking substantially
 
in the
form set out in Annexure I (Form of Confidentiality Undertaking) or otherwise in
 
the
agreed form;
2.1.36
Control
 
means, in relation to any company or organisation or person -
2.1.36.1
the power
 
(whether by
 
way of
 
ownership of
 
shares, proxy,
 
contract, agency or
otherwise) to -
2.1.36.1.1
cast, or control the
 
casting of, more than
 
50.00 per cent. of
 
the maximum
number of votes that might be cast at a general meeting of that person; or
2.1.36.1.2
appoint or remove all, or the
 
majority, of
 
the directors or other equivalent
officers of that person; or
2.1.36.1.3
give directions with
 
respect to the
 
operating and financial policies
 
of that
person with which the directors or other equivalent officers of that
 
person
are obliged to comply; and/or
7
2.1.36.2
the holding
 
(beneficially or
 
legally) of
 
more than
 
50.00 per
 
cent. of
 
the issued
share capital of
 
that person (excluding
 
any part of
 
that issued share
 
capital that
carries no
 
right to
 
participate beyond
 
a specified
 
amount in
 
a distribution
 
of either
profits or capital),
and
Controlled
shall be construed accordingly;
2.1.37
Control
 
Event
 
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
clause
 
(
Mandatory
prepayment - change of control or transfer of business
);
2.1.38
Counter-indemnity
 
Agreement
 
means
 
the
 
written
 
counter-indemnity,
 
dated
 
on
 
or
about the Signature
 
Date, given by
 
the Obligors (on
 
a joint and
 
several basis) in
 
favour
of the Debt Guarantor;
2.1.39
Covenant Group
 
means the
 
Term/RCF
 
Borrower and
 
each of
 
its Subsidiaries
 
from
time to
 
time and
 
any partnership,
 
Joint Venture,
 
trust, juristic
 
person or
 
other entity
Controlled
 
by
 
the
 
Term/RCF
 
Borrower
 
or
 
any
 
of
 
its
 
Subsidiaries,
 
but
 
specifically
excluding CPS;
2.1.40
CPS
 
means
 
Cash
 
Paymaster
 
Services
 
Proprietary
 
Limited,
 
registration
 
number
1997/013382/07, a private company duly incorporated in accordance with the laws of
South Africa,
 
a company which is, as at the Signature Date, in liquidation;
2.1.41
Debt Guarantee
 
means the written first-ranking
 
debt guarantee, dated on
 
or about the
Signature Date,
 
given by
 
the Debt
 
Guarantor in
 
favour of
 
the Finance
 
Parties (other
than the
 
Debt Guarantor)
 
for the
 
obligations of
 
the Obligors
 
owed to
 
those Finance
Parties under the Finance Documents;
2.1.42
Debt Guarantor
 
Management Agreement
 
means the
 
agreement for
 
the management
and
 
administration
 
of
 
the
 
Debt
 
Guarantor,
 
dated
 
on
 
or
 
about
 
the
 
Signature
 
Date,
between the Debt Guarantor and
 
TMF Corporate Services (South Africa)
 
Proprietary
Limited;
2.1.43
Debt Guarantor
 
Owner Trust
 
means the
 
trustees for
 
the time
 
being of
 
the Project
Mercury Owner Trust, Master's Reference number IT000064/2025(G);
2.1.44
Default
 
means –
2.1.44.1
an Event of Default; or
8
2.1.44.2
any event or
 
circumstance which
 
(with the expiry
 
of any
 
applicable grace
 
period,
the
 
giving
 
of
 
notice,
 
the
 
making
 
of
 
any
 
determination
 
under
 
the
 
Finance
Documents or
 
any combination of
 
any of
 
the foregoing)
 
would be
 
an Event
 
of
Default;
2.1.45
Deposit Manager
means Deposit Manager
 
Proprietary Limited, registration
 
number
2010/016889/07,
 
a
 
private
 
company
 
with
 
limited
 
liability
 
duly
 
incorporated
 
in
accordance with the laws of South Africa;
 
2.1.46
Disruption Event
 
means either or both of –
2.1.46.1
a material
 
disruption to
 
those payment
 
or communications
 
systems or
 
to those
financial
 
markets
 
which
 
are,
 
in
 
each
 
case,
 
required
 
to
 
operate
 
in
 
order
 
for
payments to
 
be made
 
in connection
 
with the
 
Senior Facilities
 
(or otherwise
 
in
order for the transactions contemplated by the Finance Documents to be carried
out) which disruption is
 
not caused by,
 
and is beyond the
 
control of, any of
 
the
Parties; or
2.1.46.2
the occurrence of any other event which results in a disruption
 
(of a technical or
systems-related
 
nature)
 
to
 
the
 
treasury
 
or
 
payments
 
operations
 
of
 
a
 
Party
preventing that, or any other Party –
2.1.46.2.1
from performing its
 
payment obligations under
 
the Finance Documents;
 
or
2.1.46.2.2
from communicating with
 
other Parties
 
in accordance with
 
the terms of
 
the
Finance Documents,
and which
 
(in either
 
such case)
 
is not
 
caused by,
 
and is
 
beyond the
 
control of,
the Party whose operations are disrupted;
2.1.47
Dormant Subsidiary
 
means any member of the Covenant Group -
2.1.47.1
which does not trade (for itself or as agent for any person);
 
and
 
2.1.47.2
which does not
 
own, legally
 
or beneficially, assets (including
 
indebtedness owed
to it) which in aggregate (together with all such other members of the Covenant
Group which
 
are Dormant
 
Subsidiaries) have
 
a value
 
of R10,000,000
 
or more
(or its equivalent in other currencies);
 
2.1.48
Environment
 
means humans, animals,
 
plants and all
 
other living organisms
 
including
the ecological systems of which they form part and the following
 
media -
9
2.1.48.1
air
 
(including,
 
without
 
limitation,
 
air
 
within
 
natural
 
or
 
man-made
 
structures,
whether above or below ground);
2.1.48.2
water (including, without limitation, territorial, coastal and inland waters, water
under or within land and water in drains and sewers); and
2.1.48.3
land (including, without limitation, land under water);
2.1.49
Environmental
 
Claim
 
means
 
any
 
claim,
 
litigation,
 
arbitral
 
proceedings
 
or
administrative proceedings, formal notice or investigation by any authority in
 
respect
of
 
any Environmental
 
Law or
 
any authorisation
 
held (or
 
required to
 
be held)
 
under
applicable Environmental Law;
2.1.50
Environmental Law
 
means any applicable law or regulation which relates to -
2.1.50.1
the pollution or protection of the Environment;
2.1.50.2
harm to or the protection of human health and safety; or
2.1.50.3
the
 
generation,
 
handling,
 
transport,
 
storage,
 
burial,
 
use,
 
release,
 
disposal,
emission
 
or
 
spillage
 
of
 
any
 
Hazardous
 
Substances
 
which,
 
alone
 
or
 
in
combination
 
with
 
any
 
other,
 
is
 
capable
 
of
 
causing
 
harm
 
to
 
the
 
Environment,
including, without limitation, any waste;
2.1.51
Environmental Matters
 
means all matters relating to -
2.1.51.1
the pollution or protection of the Environment and/or human health and
 
safety;
2.1.51.2
the use, treatment,
 
storage, burial, disposal, transport
 
or handling of
 
Hazardous
Substances; or
2.1.51.3
Environmental Permits;
2.1.52
Environmental Permit
 
means any permit and/or other authorisation and the filing of
any notification, report or
 
assessment required under any
 
Environmental Law for the
operation of the business of any member of
 
the Group or in respect of any immovable
properties owned or used by any member of the Group;
2.1.53
Event of
 
Default
 
means any event
 
or circumstance specified
 
in clause
 
(
Events of
Default
);
2.1.54
Excluded Subsidiary
 
means -
10
2.1.54.1
Cash Connect Capital;
 
2.1.54.2
K2020 Connect Proprietary Limited, registration number 2020/263969/07;
 
and
 
2.1.54.3
any other
 
Subsidiary of
 
the Term/RCF
 
Borrower which
 
the Facility
 
Agent has
agreed in writing will be designated as an Excluded Subsidiary;
2.1.55
Existing
 
Finance
 
Documents
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
the
 
Lesaka
Release Agreement;
2.1.56
Existing Group
 
Indebtedness
 
means Financial
 
Indebtedness of the
 
members of
 
the
Group arising under the Existing Finance Documents;
2.1.57
Existing
 
Security
 
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
the
 
Lesaka
 
Release
Agreement;
2.1.58
Existing
 
Security
 
Discharge
 
Date
 
means,
 
in
 
respect
 
of
 
any
 
Existing
 
Security,
 
the
"Release Time" for
 
that Existing
 
Security as
 
defined in
 
the Lesaka
 
Release Agreement;
2.1.59
Facility
 
means a Senior Term Facility, the Senior RCF or a Working
 
Capital Facility;
2.1.60
FATCA
means -
2.1.60.1
sections 1471 to 1474 of the Code or any associated regulations;
2.1.60.2
any
 
treaty,
 
law
 
or
 
regulation
 
of
 
any
 
other
 
jurisdiction,
 
or
 
relating
 
to
 
an
intergovernmental agreement between the US and any other
 
jurisdiction, which
(in either
 
case) facilitates the
 
implementation of any
 
law or
 
regulation referred
to in clause
; or
2.1.60.3
any agreement
 
pursuant to
 
the implementation
 
of any
 
treaty,
 
law or
 
regulation
referred to in clauses
 
or
 
with the US Internal Revenue
 
Service,
the
 
US
 
government
 
or
 
any
 
governmental
 
or
 
taxation
 
authority
 
in
 
any
 
other
jurisdiction;
2.1.61
FATCA
 
Deduction
 
means
 
a
 
deduction
 
or
 
withholding
 
from
 
a
 
payment
 
under
 
a
Finance Document required by FATCA;
2.1.62
FATCA
 
Exempt Party
 
means a Party
 
that is entitled
 
to receive payments
 
free from
any FATCA
 
Deduction;
2.1.63
Fee
 
Letter
 
means
 
any
 
letter
 
or
 
letters
 
entered into
 
by
 
reference
 
to
 
this
 
Agreement,
dated on or
 
about the Signature Date,
 
between the Facility Agent
 
and/or the Original
11
Senior Lenders (or
 
any one of
 
them) and the
 
Term/RCF Borrower
 
setting out any
 
of
the fees referred to in clause
 
(Fees);
2.1.64
Final Discharge Date
 
means the date on which -
2.1.64.1
the
 
Senior
 
Term
 
Facility
 
Outstandings,
 
the
 
Senior
 
RCF
 
Outstandings
 
,
 
the
WesBank
 
Outstandings and
 
the WCF
 
Outstandings have
 
been irrevocably
 
and
unconditionally
 
paid
 
and
 
discharged
 
in
 
full
 
(whether
 
or
 
not
 
as
 
a
 
result
 
of
enforcement); and
2.1.64.2
no
 
Finance
 
Party
 
has
 
any
 
commitment
 
whatsoever
 
to
 
provide
 
finance
 
or
 
any
other form
 
of credit
 
or financial
 
accommodation to
 
any person
 
under any
 
Finance
Document,
as
 
certified
 
in
 
writing
 
by
 
the
 
Facility
 
Agent
 
(acting
 
on
 
the
 
instructions
 
of
 
all
 
the
Lenders)
 
within
 
5
 
Business
 
Days
 
of
 
receipt
 
of
 
a
 
request
 
for
 
confirmation
 
from
 
the
Term/RCF Borrower, if all the requirements above have in fact been met;
2.1.65
Final Maturity Date
, in relation to each Senior Term Facility or the Senior RCF, has
the meaning
 
given to
 
that term
 
in the
 
applicable Senior
 
Term
 
Facility Agreement
 
or
the Senior RCF Agreement, respectively;
2.1.66
Finance Document
 
means -
2.1.66.1
this Agreement;
2.1.66.2
the Senior Term Facility A Agreement;
2.1.66.3
the Senior Term Facility B Agreement;
2.1.66.4
the Senior RCF Agreement;
2.1.66.5
each WCF Document;
2.1.66.6
each WesBank Agreement;
2.1.66.7
the Lesaka Release Agreement;
2.1.66.8
the Cash Connect Management Release Agreement;
2.1.66.9
the Debt Guarantee;
2.1.66.10
the Counter-indemnity Agreement;
12
2.1.66.11
each Security Document;
2.1.66.12
each Security Structure Document;
2.1.66.13
each Fee Letter;
2.1.66.14
the Further Rights Letter;
2.1.66.15
any Intercreditor Agreement;
2.1.66.16
any
Subordination Agreement;
2.1.66.17
any Transfer Certificate;
2.1.66.18
any Accession Letter;
2.1.66.19
any Resignation Letter;
 
2.1.66.20
each Utilisation Request;
2.1.66.21
each Compliance Certificate;
2.1.66.22
each document
 
amending any
 
Finance Document
 
referred to
 
in this
 
clause above;
and
2.1.66.23
any other document
 
designated as
 
such by agreement
 
between the
 
Facility Agent
and the Term/RCF Borrower;
2.1.67
Finance Parties
 
means the Lenders, the
 
Facility Agent and the
 
Debt Guarantor (and
Finance Party
, as the context requires, means any of them);
2.1.68
Financial
 
Close
 
means
 
the
 
date
 
on
 
which
 
the
 
Facility
 
Agent
 
delivers
 
the
 
notice
contemplated in clause
 
to the Term/RCF Borrower;
2.1.69
Financial Indebtedness
 
means any indebtedness for or in respect of -
2.1.69.1
moneys borrowed, credit provided and debit balances at financial
 
institutions;
2.1.69.2
any
 
amount
 
raised
 
by
 
acceptance
 
under
 
any
 
acceptance
 
credit
 
facility
 
or
dematerialised equivalent;
2.1.69.3
any amount raised
 
pursuant to any
 
note purchase facility
 
or the issue
 
of bonds,
notes, debentures, loan stock or any similar instrument;
13
2.1.69.4
the amount
 
of any
 
liability in
 
respect of
 
any lease
 
or hire
 
purchase contract
 
which
would,
 
in
 
accordance
 
with
 
IFRS,
 
be
 
treated
 
as
 
a
 
finance
 
or
 
capital
 
lease
 
but
excluding
 
any
 
Relevant
 
Operating
 
Lease
 
notwithstanding
 
any
 
change
 
(or
 
the
implementation of any change) to IFRS on or after 1 January 2019;
2.1.69.5
receivables sold or discounted (other than any receivables to the extent they are
sold on a non-recourse basis);
2.1.69.6
any
 
amount raised
 
under
 
any other
 
transaction (including
 
any forward
 
sale or
purchase agreement) having the commercial effect of a borrowing;
2.1.69.7
any
 
Treasury
 
Transaction
 
(and,
 
when
 
calculating
 
the
 
value
 
of
 
that
 
Treasury
Transaction, only the mark-to-market value (or, if any actual amount is due as a
result of the termination or close-out of that derivative transaction, that amount)
shall be taken into account);
2.1.69.8
any amount raised by the issue of a share which by its terms (or by the
 
terms of
any security
 
into which
 
it is
 
convertible or
 
for which
 
it is
 
exchangeable) is
 
or
may become
 
mandatorily redeemable
 
or redeemable
 
at the
 
option of
 
its holder
(including upon
 
the occurrence
 
of any
 
default under
 
the terms
 
of issue
 
of any
such share);
2.1.69.9
any
 
counter-indemnity
 
obligation
 
in
 
respect
 
of
 
a
 
guarantee,
 
indemnity,
 
bond,
standby or documentary letter of
 
credit or any other instrument
 
issued by a bank
or financial institution; and
2.1.69.10
the amount
 
of any
 
liability in
 
respect of any
 
guarantee or indemnity
 
for any
 
of
the items referred to in clauses
 
to
2.1.70
Further Rights
 
Letter
 
means the
 
letter agreement,
 
dated on
 
or about
 
the Signature
Date,
 
between,
 
amongst
 
others,
 
the
 
Term/RCF
 
Borrower
 
and
 
each
 
Original
 
Senior
Lender in
 
respect of
 
the Original
 
Senior Lenders'
 
rights in
 
relation to
inter alia
 
(i) a
refinancing by the Term/RCF Borrower of the Senior Term Facility Loans, the Senior
Term Facility Outstandings, the Senior
 
RCF Loans and the Senior RCF Outstandings
under the
 
Finance Documents,
 
and (ii)
 
the right
 
to quote
 
in relation
 
to any
 
transactional
banking requirements of Adumo and any of its Subsidiaries;
2.1.71
GAAP
 
means, in
 
relation to Holdco,
 
the generally accepted
 
accounting principles in
the US;
 
2.1.72
Group
means -
14
2.1.72.1
for the purposes of clauses
,
,
 
,
,
,
,
and
 
of this
 
Agreement, Holdco and
 
each of its
 
Subsidiaries from time
 
to
time
 
and
 
any
 
partnership,
 
Joint
 
Venture,
 
trust,
 
juristic
 
person
 
or
 
other
 
entity
Controlled by Holdco and/or any of its Subsidiaries ; and
 
2.1.72.2
for
 
all
 
other
 
clauses
 
in
 
this
 
Agreement
 
which
 
are
 
not
 
referred
 
to
 
in
 
clause
,
 
Holdco
 
and
 
each
 
of
 
its
 
Subsidiaries
 
from
 
time
 
to
 
time
 
and
 
any
partnership,
 
Joint
 
Venture,
 
trust,
 
juristic
 
person
 
or
 
other
 
entity
 
Controlled
 
by
Holdco
 
and/or
 
any
 
of
 
its
 
Subsidiaries
 
but
 
specifically
 
excluding
 
CPS
 
and
 
its
Subsidiaries;
2.1.73
Group Structure Chart
means the written
 
group structure
 
diagram attached hereto
 
as
Annexure
 
L
 
(Group
 
Structure
 
Chart),
 
or,
 
if
 
Holdco
 
has
 
delivered
 
a
 
further
 
group
structure
 
diagram
 
pursuant
 
to
 
clause
,
 
the
 
most
 
recently
 
delivered
 
group
structure diagram;
 
2.1.74
Guarantor
 
means an
 
Original Guarantor
 
or an
 
Additional Guarantor, to
 
the extent
 
that
it has
 
not ceased to
 
be a
 
Guarantor in
 
accordance with clause
 
(Resignation of a
Guarantor);
2.1.75
Hazardous
 
Substances
 
means
 
any
 
wastes,
 
pollutants,
 
contaminants
 
and
 
any
 
other
natural or
 
artificial substance
 
(whether in
 
the form
 
of a
 
solid, liquid,
 
gas or
 
vapour)
which, alone
 
or in
 
combination with other
 
substances, is capable
 
of causing harm
 
or
damage to the Environment or human health;
2.1.76
Holdco Cession & Pledge
 
means the pledge and cession
in securitatem debiti,
 
dated
on or about the Signature Date, given
 
in favour of the Debt Guarantor by Holdco
 
over
inter alia
 
-
2.1.76.1
its shares in and claims and related rights against the Term/RCF Borrower;
 
and
 
2.1.76.2
its rights, title and interest in and to the Secured Account;
2.1.77
Holding Company
, in
 
relation to
 
a company
 
or corporation,
 
means any
 
other company
or corporation in respect of which it is a Subsidiary;
2.1.78
IFRS
 
means
 
international
 
accounting
 
standards
 
promulgated
 
by
 
the
 
International
Accounting Standards Board
 
from time to
 
time, to the
 
extent applicable to
 
the relevant
financial statements or IFRS for small and medium enterprises, as applicable;
15
2.1.79
Indexed
 
in relation to
 
any sum, that
 
sum adjusted annually
 
to take account
 
of year-on-
year changes in the US CPI since the Signature Date;
2.1.80
Insurance
 
means any contract or policy of insurance and reinsurance taken out by or
on behalf of a member of the Group or under which it has a
 
right to claim;
2.1.81
Intellectual Property Rights
 
means -
2.1.81.1
any know-how,
 
patent, trade
 
mark, service
 
mark, design,
 
invention, trading
 
or
business name, domain name, topographical or similar right;
2.1.81.2
any copyright, data base or other intellectual property right; or
2.1.81.3
any interest and rights to use (including by way of licence) in the above,
in each case whether registered or not, and includes any related application;
2.1.82
Intercreditor
 
Agreement
 
means
 
the
 
intercreditor
 
agreement
 
entered
 
into
 
or
 
to
 
be
entered into between, amongst others, the Finance Parties;
2.1.83
Interest Payment Date
, in relation to a
 
Senior Term
 
Facility or the Senior
 
RCF,
 
has
the meaning
 
given to
 
that term
 
in the
 
applicable Senior
 
Term
 
Facility Agreement
 
or
the Senior RCF Agreement, respectively;
2.1.84
Interest Period
, in
 
relation to
 
a Senior
 
Term
 
Facility or
 
the Senior
 
RCF or
 
Unpaid
Sum in
 
relation thereto,
 
has the
 
meaning given
 
to that
 
term in
 
the applicable
 
Senior
Term Facility Agreement or the Senior RCF Agreement, respectively;
2.1.85
Internally Generated
 
Cash
 
means funds
 
generated from
 
the operating
 
activities of
the Covenant Group in the ordinary course of business which -
2.1.85.1
excludes
 
the
 
proceeds
 
of
 
any
 
Shareholder
 
Contributions
 
or
 
Financial
Indebtedness raised by a member of the Covenant Group; and
2.1.85.2
includes any disposal proceeds
 
generated through any
 
disposals contemplated in
clause
 
(Disposals);
2.1.86
Investec
 
means Investec Bank
 
Limited, registration number
 
1969/004763/06, a public
company with limited liability
 
duly incorporated in accordance
 
with the laws of
 
South
Africa;
 
2.1.87
JIBAR
 
means, for an Interest Period of any Loan or Unpaid Sum -
16
2.1.87.1
the applicable Screen Rate; or
2.1.87.2
(if
 
no
 
Screen
 
Rate
 
is
 
available for
 
the
 
Interest
 
Period of
 
that
 
Loan
 
or
 
Unpaid
Sum) the arithmetic
 
mean of the rates
 
(rounded upwards to
 
four decimal places),
as supplied to the
 
Facility Agent at
 
its request, quoted
 
by the Reference
 
Banks to
leading banks in the Johannesburg interbank market,
as
 
of
 
11h00
 
on the
 
Quotation Day
 
for the
 
offering
 
of deposits
 
in
 
Rand for
 
a period
comparable to that Interest Period;
2.1.88
JIBAR Overnight Deposit Rate
 
means -
2.1.88.1
the applicable Screen Rate; or
2.1.88.2
(if no
 
Screen Rate
 
is available)
 
the arithmetic
 
mean of
 
the rates
 
(rounded upwards
to four
 
decimal places),
 
as supplied
 
to the
 
Facility Agent at
 
its request,
 
quoted
by the Reference Banks to leading banks in the Johannesburg interbank market,
as of 11h00 on the Quotation Day for the offering of overnight deposits in Rand;
2.1.89
Joint
 
Venture
 
means
 
any
 
joint
 
venture
 
entity,
 
whether
 
a
 
company,
 
unincorporated
firm, undertaking,
 
association, joint
 
venture or
 
partnership (whether
 
an
en commandite
partnership or
 
any other partnership)
 
or similar
 
person, comprising an
 
association of
two or
 
more persons
 
to undertake
 
a business
 
enterprise through
 
a combination
 
of assets
and/or expertise
 
but specifically
 
excluding any
 
arrangement which
 
comprises solely
 
of
a profit-sharing arrangement;
2.1.90
Kwande
means
 
Kwande
 
Group
 
Proprietary
 
Limited,
 
registration
 
number
2000/003245/07,
 
a
 
private
 
company
 
with
 
limited
 
liability
 
duly
 
incorporated
 
in
accordance with the laws of South Africa;
2.1.91
Lenders
 
means -
2.1.91.1
the Senior Term Facility Lenders;
2.1.91.2
the Senior RCF Lenders;
 
2.1.91.3
WesBank;
 
and
2.1.91.4
the WCF Lenders,
and
Lender
, as the context requires, means any of them;
17
2.1.92
Lesaka
 
Release Agreement
 
means
 
the
 
agreement to
 
be
 
entered into
 
between
inter
alios
 
Holdco, the Term/RCF
 
Borrower and the
 
Facility Agent and persons
 
who have
provided
 
the
 
Existing
 
Group
 
Indebtedness
 
(other
 
than
 
the
 
Financial
 
Indebtedness
relating to
 
the Cash
 
Connect Management Finance
 
Documents) to
 
the Group,
 
which
inter alia
 
regulates –
2.1.92.1
the payment of the Existing Group Indebtedness; and
 
2.1.92.2
the release of the Existing Security;
2.1.93
Loan
means a
 
loan made
 
or to
 
be made
 
under a
 
Senior Facility, or
 
the principal
 
amount
outstanding of that loan from time to time;
2.1.94
Longstop Date
 
means 31 March 2025;
2.1.95
Main Street 1723
means Main Street
 
1723 Proprietary Limited, registration
 
number
2019/300711/07,
 
a
 
private
 
company
 
with
 
limited
 
liability
 
duly
 
incorporated
 
in
accordance with the laws of South Africa;
 
2.1.96
Majority Lenders
 
means, at any time, Lenders -
2.1.96.1
if there is any
 
Loan outstanding and no Default has
 
occurred and is continuing,
whose share in
 
the outstanding Loans
 
then aggregate 66⅔
 
per cent. or
 
more of
the aggregate of all the outstanding Loans of all of the Lenders;
2.1.96.2
if
 
there
 
is
 
any
 
Loan
 
then
 
outstanding
 
and
 
a
 
Default
 
has
 
occurred
 
and
 
is
continuing,
 
whose
 
share
 
in
 
the
 
outstanding
 
Loans
 
and
 
whose
 
undrawn
Commitments then
 
aggregate 66⅔
 
per cent
 
or more
 
of the
 
aggregate of
 
all the
outstanding Loans and the undrawn Commitments of all the Lenders;
2.1.96.3
if
 
there
 
is
 
no
 
Loan
 
then
 
outstanding,
 
whose
 
undrawn
 
Commitments
 
then
aggregate 66⅔ per cent or more of the Total Commitments; or
2.1.96.4
if
 
there
 
is
 
no
 
Loan
 
then
 
outstanding
 
and
 
the
 
Total
 
Commitments
 
have
 
been
reduced to
 
zero, whose
 
Commitments aggregated
 
66⅔ per
 
cent or
 
more of
 
the
Total Commitments immediately before the reduction;
2.1.97
Material
 
Adverse
 
Effect
 
means
 
an
 
event
 
or
 
circumstances
 
which
 
has
 
or,
 
in
 
the
reasonable
 
opinion of
 
the
 
Facility
 
Agent (acting
 
on the
 
instructions of
 
the
 
Majority
Lenders), is reasonably likely to have a material adverse effect on -
18
2.1.97.1
the business, operations
 
or financial
 
condition of any
 
Obligor, Security Provider,
the Group taken as a whole and/or the Covenant Group taken as
 
a whole;
2.1.97.2
the ability
 
of an
 
Obligor or
 
Security Provider
 
to perform
 
its payment
 
and/or other
material obligations under the Finance Documents; or
2.1.97.3
the
 
validity
 
or
 
enforceability
 
of
 
the
 
Finance
 
Documents
 
or
 
the
 
validity
 
or
enforceability
 
of,
 
or
 
the
 
effectiveness
 
or
 
ranking
 
of
 
any
 
Transaction
 
Security
granted or purported to be granted pursuant to any of the Finance
 
Documents or
the rights or
 
remedies of
 
any Finance
 
Party under
 
any of
 
the Finance
 
Documents;
2.1.98
Material Agreements
 
means -
 
2.1.98.1
any contract which contributes more than 5% the
 
total revenue of the Covenant
Group
 
(other than
 
the
 
Excluded
 
Subsidiaries) or
 
which contributes
 
more
 
than
2.5%
 
of
 
the
 
Consolidated EBITDA
 
(calculated
 
with reference
 
to
 
the
 
Holdco's
most recently delivered annual financial statements);
2.1.98.2
any other
 
agreement that
 
is material
 
to the
 
business of
 
the Covenant
 
Group (other
than
 
the
 
Excluded
 
Subsidiaries)
 
and
 
for
 
this
 
purpose
 
an
 
agreement
 
shall
 
be
considered
 
to
 
be
 
"material"
 
if
 
the
 
termination
 
of
 
that
 
agreement
 
(whether
voluntarily,
 
by
 
mutual
 
agreement or
 
pursuant to
 
a
 
breach of
 
the
 
terms
 
of
 
that
agreement by any party thereto) would have a Material Adverse Effect; and
2.1.98.3
any
 
other
 
written
 
agreement
 
or
 
document
 
at
 
any
 
time
 
designated
 
a
 
Material
Agreement
 
by
 
written
 
agreement
 
between
 
the
 
Term/RCF
 
Borrower
 
and
 
the
Facility Agent,
 
and the Material Contracts listed in Annexure M;
2.1.99
Material Group
 
Company
, where
 
used in
 
clause
 
(Events of
 
Default), means
 
an
Obligor or a Material Subsidiary;
2.1.100
Material
 
Insurance
 
Proceeds
 
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
clause
(Mandatory prepayment - material disposal and insurance proceeds);
2.1.101
Material Subsidiary
 
means, (i) any holding
 
company of another
 
Material Subsidiary,
and (ii) a Subsidiary of the Term/RCF
 
Borrower or a Subsidiary of any other Obligor
whose gross
 
assets, EBITDA (as
 
defined in
 
clause
 
below) or
 
total revenue
equal or exceed 5% of the gross assets, Consolidated EBITDA or total revenue of the
Covenant Group (excluding the Excluded Subsidiaries).
 
For this purpose -
19
2.1.101.1
the
 
gross
 
assets,
 
EBITDA
 
or
 
total
 
revenue
 
of
 
a
 
Subsidiary
 
of
 
the
 
Term/RCF
Borrower
 
or
 
a
 
Subsidiary
 
of
 
any
 
other
 
Obligor
 
(other
 
than
 
an
 
Excluded
Subsidiary)
 
will
 
be
 
determined
 
from
 
its
 
financial
 
statements
 
or
 
management
accounts
 
(in
 
each
 
case,
 
consolidated
 
if
 
it
 
has
 
Subsidiaries)
 
which
 
were
consolidated
 
into
 
the
 
latest
 
SEC
 
Form
 
and/or
 
latest
 
audited
 
consolidated
financial
 
statements
 
or
 
management
 
accounts
 
of
 
the
 
Term/RCF
 
Borrower
(adjusted
 
on
 
a
 
pro
 
forma
 
basis
 
as
 
contemplated
 
in
 
clause
 
or
(Financial statements), as applicable);
2.1.101.2
if a Subsidiary of the Term/RCF Borrower
 
or a Subsidiary of any other Obligor
becomes a member of the Covenant Group
 
(and is not an Excluded Subsidiary)
after
 
the
 
date
 
on
 
which the
 
latest
 
audited
 
consolidated financial
 
statements
 
or
management accounts of
 
the Term/RCF Borrower have been
 
prepared, the gross
assets, EBITDA or total revenue of that Subsidiary will be determined from the
latest SEC Form and/or the Term/RCF Borrower's
 
latest financial statements or
management accounts (in each case, consolidated if it has Subsidiaries);
2.1.101.3
the gross assets, Consolidated EBITDA or total revenue of the Covenant Group
will be determined from
 
the latest SEC
 
Form and/or the Term/RCF
 
Borrower's
latest
 
audited
 
consolidated
 
financial
 
statements
 
or
 
management
 
accounts
(adjusted
 
on
 
a
 
pro
 
forma
 
basis
 
as
 
contemplated
 
in
 
clause
 
or
(Financial statements), as applicable);
2.1.101.4
the
EBITDA
 
of a Subsidiary (or
 
a company or
 
business subsequently acquired
or disposed of) will
 
be determined on the
 
same basis as Consolidated
 
EBITDA
(as defined
 
in clause
 
(Financial Definitions)
 
below), except
 
that references
to
 
the
 
Covenant
 
Group
 
will
 
be
 
construed
 
as
 
references
 
to
 
that
 
Subsidiary,
company or business; and
2.1.101.5
where
 
financial
 
statements
 
and
 
management
 
accounts
 
of
 
a
 
Subsidiary
 
or
 
the
Term/RCF Borrower or
 
a Subsidiary
 
of any
 
other Obligor
 
are available
 
in respect
of the
 
same accounting
 
period, the
 
financial statements
 
shall be
 
used for
 
purposes
of making the necessary determinations.
2.1.102
Notwithstanding
 
the
 
above,
 
each
 
of
 
the
 
following
 
companies
 
will
 
be
 
a
 
Material
Subsidiary -
2.1.102.1.1
each Guarantor (other than Holdco);
20
2.1.102.1.2
any Subsidiary of the
 
Term/RCF Borrower
 
or any other Obligor
 
which is
party to a Material Agreement;
2.1.103
Month
 
means
 
a
 
period
 
starting
 
on
 
one
 
day
 
in
 
a
 
calendar
 
month
 
and
 
ending
 
on
 
the
numerically corresponding day in the next calendar month, except that -
2.1.103.1
(subject to clause
) if the numerically
 
corresponding day is not
 
a
Business Day,
 
that period
 
shall end
 
on the
 
next Business
 
Day in
 
that calendar
month
 
in
 
which that
 
period
 
is
 
to
 
end
 
if
 
there
 
is
 
one,
 
or
 
if
 
there
 
is
 
not,
 
on
 
the
immediately preceding Business Day;
2.1.103.2
if there is no numerically
 
corresponding day in the calendar
 
month in which that
period is to
 
end, that period
 
shall end on
 
the last Business
 
Day in that
 
calendar
month; and
2.1.103.3
if an
 
Interest Period
 
begins on
 
the last
 
Business Day
 
of a
 
calendar month,
 
that
Interest Period shall
 
end on the
 
last Business Day
 
in the calendar
 
month in which
that Interest Period is to end;
The above rules will only apply to the last Month of any period;
2.1.104
Obligors
 
means
 
the
 
Borrowers
 
and
 
the
 
Guarantors
 
(and
Obligor
,
 
as
 
the
 
context
requires, means any of them);
2.1.105
Mobikwik
 
means
 
One
 
Mobikwik
 
Systems
 
Limited
 
(previously
 
known
 
as
 
One
Mobikwik
 
Systems
 
Pvt
 
Ltd)
 
(Corporate
 
Identity
 
Number
U64201HR2008PLC053766), a company registered under the laws of
 
India;
2.1.106
Original Financial Statements
 
means, in relation to -
2.1.106.1
to
 
Holdco,
 
its
 
audited
 
consolidated
 
financial
 
statements
 
for
 
its
 
financial
 
year
ended 30 June 2024;
2.1.106.2
the
 
Term/RCF
 
Borrower,
 
its
 
audited
 
consolidated
 
financial
 
statements
 
for
 
the
financial year ended 30 June 2022;
 
2.1.106.3
Luxanio
 
227
 
Proprietary
 
Limited,
 
its
 
audited
 
financial
 
statements
 
for
 
the
financial year ended 31 July 2022;
2.1.106.4
GAAP Point of Sale Proprietary Limited,
 
its audited financial statements for
 
the
financial year ended 30 September 2024;
21
2.1.106.5
each
 
of
 
Adumo,
 
Adumo
 
Technologies
 
Proprietary
 
Limited,
 
Adumo
 
Payouts
Proprietary
 
Limited,
 
Adumo
 
Management
 
Company
 
Proprietary
 
Limited
 
and
Adumo
 
Payments Proprietary
 
Limited, its
 
audited financial
 
statements for
 
the
financial year ended 30 September 2023;
2.1.106.6
each
 
of
 
Deposit
 
Manager,
 
Cash
 
Connect
 
Management,
 
EasyPay
 
Proprietary
Limited, Main
 
Street 1723,
 
Prism Holdings
 
Technologies
 
Proprietary Limited,
Net1 Finance Holdings
 
Proprietary Limited, Cash
 
Connect Rentals and
 
EasyPay
Financial
 
Services Proprietary
 
Limited its
 
audited financial
 
statements for
 
the
financial year ended 30 June 2023;
2.1.106.7
each
 
of
 
Prism
 
Payment
 
Technologies
 
Proprietary
 
Limited,
 
Easypay
 
Cash
Proprietary
 
Limited,
 
K2021477132
 
(South
 
Africa)
 
Proprietary
 
Limited,
 
its
audited financial statements for the financial year ended 30 June 2022; and
2.1.106.8
Obovix
 
(RF)
 
Proprietary
 
Limited,
 
its
 
audited
 
financial
 
statements
 
for
 
the
financial year ended 28 February 2018;
2.1.107
Original Obligors
 
means the Term/RCF Borrower, the Original WCF Borrowers
 
and
the Original Guarantors (and
Original Obligor
, as the context requires, means any of
them);
2.1.108
Original Senior RCF
 
Lender
 
means each Original Senior
 
Lender which has
 
a Senior
RCF Commitment
 
set opposite
 
its name
 
in Column
 
5 (Senior
 
RCF Commitment) of
the table in Part II of
 
(The Parties);
2.1.109
Original Senior Term
 
Facility A Lender
 
means each Original Senior Lender which
has a Senior Term Facility A Commitment set opposite its name in Column 3 (Senior
Term Facility A Commitment) of the table in Part II of
 
(The Parties);
2.1.110
Original Senior Term
 
Facility B Lender
 
means each Original Senior Lender which
has a Senior Term
 
Facility B Commitment set opposite its name in Column 4 (Senior
Term Facility A Commitment) of the table in Part II of
 
(The Parties);
2.1.111
Original Senior
 
Term
 
Facility Lender
 
means each
 
Senior Term
 
Facility A
 
Lender
and each Senior Term Facility B Lender;
2.1.112
Original WCF Agreement
 
means the working capital
 
facility and/or general banking
facility agreement/s, dated on or about
 
the Signature Date, between the Original
 
WCF
Lender (as
 
lender), and
 
various members
 
of the
 
Covenant Group
 
(as borrowers
 
and
guarantors);
 
22
2.1.113
Original WCF Lender
 
means RMB;
2.1.114
Original
 
Working
 
Capital
 
Facility
 
means
 
a
 
direct
 
and
 
indirect
 
general
 
banking
and/or
 
working
 
capital
 
facility
 
provided
 
by
 
the
 
Original
 
WCF
 
Lender
 
to
 
the
 
WCF
Borrowers (or any one of them) under any Original WCF Agreement;
2.1.115
Party
 
means a party to this Agreement;
2.1.116
Permitted
 
Acquisition
 
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
clause
(Acquisitions);
2.1.117
Permitted Cash Management
 
Agreement
 
means any cash
 
management agreement
between a
 
member of
 
the Covenant
 
Group (other
 
than an
 
Excluded Subsidiary)
 
and
the Original WCF
 
Lender), but only for
 
so long as
 
it complies with
 
the requirements
of a Permitted Cash Management Arrangement;
2.1.118
Permitted Cash
 
Management Arrangement
 
means an
 
intra-day cash
 
pooling or
 
cash
concentration arrangement maintained with the
 
Original WCF Lender which provides
for the
 
aggregation of
 
positive cash
 
balances in
 
bank accounts
 
of Obligors
 
(who are
members of
 
the Covenant
 
Group and
 
for the
 
avoidance of
 
doubt excludes
 
Holdco) held
with the Original WCF Lender and/or set
 
off of such aggregate cash balances against
bank accounts deficits
 
of Obligors(who are
 
members of the
 
Covenant Group and
 
for
the avoidance of doubt
 
excludes Holdco) held with
 
the Original WCF Lender
 
for the
purposes
 
of
 
maximising
 
the
 
aggregate
 
interest
 
earned
 
of
 
those
 
Obligors
 
(who
 
are
members of the Covenant
 
Group and for the
 
avoidance of doubt excludes
 
Holdco) and
minimising
 
the
 
aggregate
 
interest
 
paid
 
by
 
those
 
Obligors
 
(who
 
are
 
members
 
of
 
the
Covenant Group and for the avoidance of doubt excludes Holdco);
2.1.119
Permitted Disposal
 
has the meaning given to that term in clause
 
(Disposals);
2.1.120
Permitted
 
Distribution
 
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
clause
(Distributions);
2.1.121
Permitted Encumbrance
 
has the meaning
 
given to that
 
term in clause
 
(Negative
pledge);
2.1.122
Permitted Financial Indebtedness
 
has the meaning given to that term in clause
(Financial Indebtedness);
2.1.123
Permitted Guarantee
 
has the meaning given
 
to that term in
 
clause
 
(Third party
guarantees);
23
2.1.124
Permitted Loan
 
has the meaning given to that term in clause
 
(Loans out);
2.1.125
Permitted Share
 
Issue
 
has
 
the meaning
 
given to
 
that term
 
in
 
clause
(Share
Capital);
2.1.126
Permitted Treasury Transaction
 
has the meaning given to that term in clause
(Treasury Transactions);
2.1.127
Quotation Day
, in relation
 
to any period
 
for which an
 
interest rate is
 
to be determined,
means the first
 
day of that
 
period or such
 
other day as
 
the Facility Agent
 
determines
is generally
 
treated
 
as
 
the
 
rate
 
fixing
 
day
 
by
 
market
 
practice
 
in
 
the
 
Johannesburg
interbank market;
2.1.128
Reference
 
Banks
 
means the
 
principal Johannesburg
 
offices
 
of Absa
 
Bank Limited,
FirstRand Bank Limited, Investec Bank Limited, Nedbank Limited and The Standard
Bank of South
 
Africa Limited, or
 
such other banks
 
as may be
 
appointed by
 
the Facility
Agent in consultation with the Term/RCF Borrower;
2.1.129
Refinancing
means the repayment,
 
prepayment, cancellation or
 
replacement, in full,
of
 
the
 
Senior
 
Term
 
Facility
 
Loans
 
and
 
Senior
 
Term
 
Facility
 
Outstandings
 
and
 
the
Senior RCF
 
Loans and
 
Senior RCF
 
Outstandings funded,
 
directly or
 
indirectly, by way
of the incurrence
 
by Holdco, the
 
Term/RCF
 
Borrower, any
 
other Obligor and/or
 
any
other member
 
of the Group
 
of Financial Indebtedness,
 
and
Refinance
 
and
Refinanced
shall
 
be
 
construed
 
accordingly.
 
For
 
the
 
purpose
 
of
 
this
 
definition
 
any
 
Permitted
Financial
 
Indebtedness
 
pursuant
 
to
 
clause
 
(Financial
 
Indebtedness)
 
shall,
 
in
relation to Holdco, be
excluded
 
from "Financial Indebtedness" to the
 
extent that that
Permitted Financial Indebtedness
 
is not funded
 
through the incurrence
 
by any member
of the Group (or any Affiliate of a member of the Group) of Financial Indebtedness;
2.1.130
Refinancing Penalties
has the meaning
 
given to that
 
term in clause
 
(Refinancing
and Refinancing Penalties);
2.1.131
Relevant
 
Nominating
 
Body
 
means
 
any
 
applicable
 
central
 
bank,
 
regulator
 
or
 
other
supervisory
 
authority
 
or
 
a
 
group
 
of
 
them,
 
or
 
any
 
working
 
group
 
or
 
committee
sponsored or chaired by, or constituted at the request of, any of them;
2.1.132
Related Fund
 
in relation to
 
a fund (the
first fund
), means a
 
fund which is
 
managed
or advised by the same investment manager or investment adviser as the first fund or,
if it is
 
managed by
 
a different investment
 
manager or
 
investment adviser, a
 
fund whose
24
investment manager
 
or investment
 
adviser is
 
an Affiliate
 
of the
 
investment manager
or investment adviser of the first fund;
2.1.133
Related Party
 
means, in relation to the Group –
2.1.133.1
any shareholder of
 
a member of
 
the Group who
 
is not a
 
member of the
 
Group;
and
 
2.1.133.2
any Affiliate of any shareholder referred to in clause
other than, in each case, a Lender or an Affiliate of a Lender or any person who holds
less than
 
5% of
 
the issued
 
shares of
 
Holdco (itself
 
and together
 
with any
 
of its
 
Affiliates
and any of its Related Funds);
2.1.134
Replacement Benchmark
 
means a replacement for a Screen Rate -
 
2.1.134.1
that is
 
formally designated, nominated
 
or recommended as
 
the replacement for
that Screen Rate by:
2.1.134.1.1
the administrator of that Screen Rate; or
2.1.134.1.2
any Relevant Nominating Body,
 
provided that
 
if the
 
replacement for
 
that Screen
 
Rate has,
 
at the
 
relevant time,
been
 
formally
 
designated,
 
nominated
 
or
 
recommended
 
under
 
both
 
clauses
 
and
 
above, the
 
accepted Replacement
 
Benchmark will
 
be
that determined in accordance with clause
 
above; or
2.1.134.2
in the
 
opinion of
 
the Parties,
 
generally accepted
 
in the
 
international market
 
or
any relevant
 
domestic syndicated
 
loan market,
 
as the
 
appropriate replacement
 
for
that Screen Rate; or
2.1.134.3
in the opinion of the Parties, an appropriate replacement to that Screen
 
Rate;
2.1.135
Remaining Distributable
 
Balance
has the
 
meaning given
 
to this
 
term in
 
clause
(Remaining amount of Distributable Balance);
2.1.136
Repeating
 
Representations
 
means,
 
at
 
any time,
 
the
 
representations and
 
warranties
which
 
are
 
made
 
or
 
deemed
 
to
 
be
 
repeated
 
under
 
clause
 
(Times
 
for
 
making
representations and warranties);
2.1.137
Representative
 
means
 
any
 
representative,
 
delegate,
 
agent,
 
manager,
 
administrator,
nominee, attorney, trustee or custodian;
25
2.1.138
Resignation
 
Letter
 
means
 
a
 
letter
 
substantially
 
in
 
the
 
form
 
set
 
out
 
in
 
Annexure
 
E
(Form of Resignation Letter);
2.1.139
RMB
 
means
 
FirstRand
 
Bank
 
Limited
 
(acting
 
through
 
its
 
Rand
 
Merchant
 
Bank
division);
2.1.140
Sanctioned Entity
 
means -
2.1.140.1
a person, country or territory which
 
is listed on a
 
Sanctions List or is subject
 
to
Sanctions; and
2.1.140.2
a person which is ordinarily
 
resident in a country or
 
territory which is listed on
 
a
Sanctions List or is subject to Sanctions;
2.1.141
Sanctioned Transaction
 
means the use of
 
the proceeds of
 
the Senior Facilities
 
for the
purpose of financing or providing any credit, directly or indirectly, to -
2.1.141.1
a Sanctioned Entity; or
2.1.141.2
any other person or entity,
 
if a member of
 
the Group has actual knowledge that
the person
 
or entity
 
proposes to
 
use the
 
proceeds of
 
the financing
 
or credit
 
for
the
 
purpose
 
of
 
financing
 
or
 
providing
 
any
 
credit,
 
directly
 
or
 
indirectly,
 
to
 
a
Sanctioned Entity,
in each case to the extent that to do so is prohibited by, or would cause any breach of,
Sanctions;
2.1.142
Sanctions
 
means trade, economic
 
or financial sanctions,
 
laws, regulations, embargoes
or restrictive
 
measures imposed,
 
administered or
 
enforced from
 
time to
 
time by
 
any
Sanctions Authority;
2.1.143
Sanctions Authority
 
means -
2.1.143.1
the United Nations;
2.1.143.2
the European Union;
2.1.143.3
the Council of Europe (founded under the Treaty of London, 1946);
2.1.143.4
the government of the United States of America;
2.1.143.5
the government of the United Kingdom;
26
2.1.143.6
the government of the Republic of France; and
2.1.143.7
the government of Switzerland,
and any of their governmental authorities, including, without limitation, the Office of
Foreign
 
Assets
 
Control
 
for
 
the
 
US
 
Department
 
of
 
Treasury
 
(
OFAC
),
 
the
 
US
Department
 
of
 
Commerce,
 
the
 
US
 
State
 
Department
 
or
 
the
 
US
 
Department
 
of
 
the
Treasury,
 
Her Majesty's Treasury (
HMT
) and the French Ministry of Finance.
2.1.144
Sanctions List
 
means -
2.1.144.1
the
 
Specially
 
Designated
 
Nationals
 
and
 
Blocked
 
Persons
 
List
 
maintained
 
by
OFAC;
2.1.144.2
the
 
Consolidated List
 
of
 
Financial Sanctions
 
Targets
 
and the
 
Investments Ban
List maintained by HMT,
and any similar list maintained, or
 
a public announcement of a Sanctions
 
designation
made,
 
by
 
any
 
Sanctions
 
Authority,
 
in
 
each
 
case
 
as
 
amended,
 
supplemented
 
or
substituted from time to time;
2.1.145
Screen Rate
 
means -
2.1.145.1
for JIBAR,
 
the Johannesburg
 
Interbank Agreed
 
Rate, polled
 
and published
 
by
the South African Futures Exchange
 
(a division of the JSE Limited)
 
for deposits
in Rand for
 
the relevant period,
 
as displayed on
 
the Reuters Screen
 
SAFEY Page
alongside the caption "
YLD"
 
at the applicable time; or
2.1.145.2
for the JIBAR
 
Overnight Deposit Rate, the
 
SAFEX overnight call
 
deposit rate,
polled and published
 
by the South
 
African Futures Exchange
 
(a division of
 
the
JSE Limited) for
 
deposits in Rand,
 
as displayed on
 
the Reuters Screen
 
SAFEY
Page alongside the caption "
SFXROD
" at the applicable time.
If the
 
relevant page is
 
replaced or
 
the information service
 
ceases to
 
be available, the
Facility Agent (after consultation with
 
the Term/RCF Borrower and the Lenders) may
specify another page or service displaying the appropriate rate;
2.1.146
Screen Rate Replacement Event
 
means in relation to a Screen Rate -
2.1.146.1
the methodology, formula or other means of
 
determining the Screen Rate
 
has, in
the opinion of the parties, materially changed;
 
27
2.1.146.2
the
 
administrator of
 
the
 
Screen
 
Rate
 
or
 
its
 
supervisor publicly
 
announces that
such administrator is insolvent;
2.1.146.3
information is published in any order, decree, notice, petition or filing, however
described,
 
of
 
or
 
filed
 
with
 
a
 
court,
 
tribunal, exchange,
 
regulatory authority
 
or
similar
 
administrative,
 
regulatory
 
or
 
judicial
 
body
 
which
 
reasonably
 
confirms
that the administrator of the Screen Rate is insolvent,
provided that,
 
in each
 
case contemplated
 
by clauses
 
and
, at
 
that
time there is no successor administrator to continue to provide the Screen
 
Rate;
2.1.146.4
the administrator of
 
the Screen Rate
 
publicly announces
 
that it has
 
ceased or will
cease, to provide
 
the Screen Rate
 
permanently or indefinitely
 
and, at that
 
time,
there is no successor administrator to continue to provide the Screen Rate;
2.1.146.5
the supervisor
 
of the
 
administrator of
 
the Screen
 
Rate publicly
 
announces that
the Screen Rate has been or will be permanently or indefinitely discontinued;
2.1.146.6
the administrator of the Screen Rate or its supervisor announces that the
 
Screen
Rate may no longer be used;
2.1.146.7
the administrator of
 
the Screen Rate
 
determines that the
 
Screen Rate should
 
be
calculated in
 
accordance with
 
its reduced
 
submissions or
 
other contingency
 
or
fallback policies or arrangements and the circumstance(s) or event(s) leading to
such determination are not (in the opinion of
 
the Facility Agent) relevant for the
purposes of this Agreement;
 
2.1.146.8
any Relevant Nominating Body formally designates, nominates or recommends
a replacement for a Screen Rate;
 
2.1.146.9
in
 
the
 
opinion
 
of
 
the
 
Parties,
 
the
 
Screen
 
Rate
 
is
 
otherwise
 
no
 
longer
representative or
 
appropriate for
 
the purposes
 
of calculating
 
interest under
 
this
Agreement;
 
2.1.146.10
a public statement or publication of information by the
 
regulatory supervisor or
competent
 
authority
 
of
 
the
 
administrator
 
of
 
the
 
Screen
 
Rate,
 
an
 
insolvency
official with jurisdiction over the administrator
 
for the Screen Rate, an authority
with jurisdiction
 
over the administrator
 
for the Screen
 
Rate or a
 
court or
 
an entity
with similar insolvency
 
or authority over
 
the administrator for
 
the Screen Rate
 
is
made or issued which states that
 
the administrator of the Screen Rate
 
has ceased
or
 
will
 
cease
 
to
 
provide
 
the
 
Screen
 
Rate
 
(for
 
any
 
tenor)
 
permanently
 
or
28
indefinitely and, at
 
that time, there
 
is no
 
successor administrator to
 
continue to
provide that Screen Rate;
2.1.146.11
a public statement or publication of information by the
 
regulatory supervisor or
competent authority of
 
the administrator of
 
the Screen Rate
 
announces that the
Screen Rate (for any tenor) is no longer or,
 
as of a specified future date, will no
longer be
 
representative for
 
ZAR or
 
of the
 
underlying market
 
or the
 
economic
reality
 
that
 
the
 
Screen
 
Rate
 
is
 
intended
 
to
 
measure
 
and/or
 
that
 
such
representativeness will not be restored; or
2.1.146.12
the Screen
 
Rate ceases to
 
be permitted to
 
be used
 
as a
 
benchmark or
 
reference
rate or will be
 
prohibited from being
 
used or its
 
use will be
 
subject to restrictions
or adverse consequences;
2.1.147
SEC Form
 
means Holdco's -
2.1.147.1
quarterly
 
reports
 
filed
 
with
 
the
 
United
 
States
 
Securities
 
and
 
Exchange
Commission (
SEC
) on
 
Form 10-Q
 
in respect
 
of the
 
first 3
 
quarters of
 
each of
Holdco's financial
 
years
 
and which
 
include unaudited
 
condensed consolidated
financial statements; and
2.1.147.2
annual reports
 
filed with the SEC
 
on Form 10-K
 
in respect of each
 
of Holdco's
financial year ends and
 
which include audited
 
consolidated financial statements;
2.1.148
Secured Account
 
means a ring-fenced
 
bank account held
 
by Holdco with
 
FirstRand
Bank Limited and secured in favour of the Debt Guarantor;
2.1.149
Security
 
means -
2.1.149.1
a
 
mortgage
 
bond,
 
notarial
 
bond,
 
cession
 
in
 
security,
 
pledge,
 
hypothec,
 
lien,
charge,
 
assignment
 
or
 
other
 
security
 
interest
 
securing
 
any
 
obligation
 
of
 
any
person
 
or
 
any
 
other
 
agreement
 
or
 
arrangement
 
having
 
a
 
similar
 
effect
 
but
excluding statutory preferences;
2.1.149.2
any arrangement under which money or claims may
 
be applied, set off or made
subject to a combination of accounts
 
so as to effect
 
discharge of any sum owed
or payable to any person; or
2.1.149.3
any
 
other
 
type
 
of
 
preferential
 
agreement
 
or
 
arrangement
 
(including
 
title
retention) having an effect similar to the creation of a security interest;
29
2.1.150
Security Agreement
 
means -
2.1.150.1
the Security Cession & Pledge;
2.1.150.2
the Holdco Cession & Pledge;
2.1.150.3
each other pledge or cession
in securitatem debiti
 
referred to in clause
 
(South
African
 
Obligors
 
and
 
Material
 
Subsidiaries)
 
of
 
Annexure
 
G
 
(Transaction
Security);
2.1.150.4
each security agreement
 
referred to
 
in clause
 
(Non-South African
 
Obligors and
Material Subsidiaries) of
 
Annexure G (Transaction
 
Security) under the
 
laws of
the jurisdiction of
 
incorporation or formation
 
of any Obligor
 
who is
 
incorporated
or formed in a jurisdiction other than South Africa; and
2.1.150.5
each
 
security
 
agreement
 
entered,
 
or
 
required
 
to
 
be
 
entered,
 
into
 
under
clause
 
(Further Transaction Security);
2.1.151
Security Cession & Pledge
 
means the pledge and cession
in securitatem debiti,
 
dated
on or about the
 
Signature Date, given
 
in favour of the
 
Debt Guarantor by each
 
Obligor
(other than Holdco)) incorporated
 
in, or having property
 
situated in, South Africa
 
over
its rights,
 
claims and
 
interest in
 
and to
 
its property
 
stipulated in
 
clauses
 
and
(South
 
African
 
Obligors
 
and
 
Material
 
Subsidiaries)
 
of
 
Annexure
 
G
 
(Transaction
Security);
2.1.152
Security Document
 
means -
2.1.152.1
any Security Agreement; or
2.1.152.2
any other
 
document evidencing
 
or creating
 
any Security
 
over any
 
asset of
 
any
person
 
to
 
secure
 
any
 
obligation
 
of
 
any
 
Obligor
 
to
 
a
 
Finance
 
Party
 
under
 
the
Finance Documents;
2.1.153
Security Provider
 
means -
2.1.153.1
an Obligor;
2.1.153.2
Holdco; or
2.1.153.3
any
 
other person
 
party to
 
a
 
Security
 
Document from
 
time
 
to
 
time
 
pursuant to
which that
 
person provides
 
Transaction Security
 
for the
 
benefit of
 
the Finance
Parties;
30
2.1.154
Security Structure Document
 
means -
2.1.154.1
the memorandum of incorporation of the Debt Guarantor;
2.1.154.2
the Debt Guarantor Management Agreement; and
2.1.154.3
the trust
 
deed by
 
which the
 
Debt Guarantor
 
Owner Trust
 
has been
 
established
(together with the letters of authority
 
issued by the Master of
 
the High Court in
favour of the trustees of the Debt Guarantor Owner Trust);
2.1.155
Senior Facilities
 
means the Senior Term
 
Facilities, the Senior RCF and the Working
Capital Facilities (and
Senior Facility
, as the context requires, means any of them);
2.1.156
Senior Facility Agreements
 
means the Senior Term
 
Facility Agreements, the Senior
RCF Agreement
 
and the
 
WCF Agreements
 
(and
Senior Facility
 
Agreement
, as
 
the
context requires, means any of them);
2.1.157
Senior
 
Facility
 
Commitments
 
means
 
the
 
Senior
 
Term
 
Facility
 
Commitments,
 
the
Senior
 
RCF
 
Commitments
 
and
 
the
 
WCF
 
Commitments
 
(and
Senior
 
Facility
Commitment
, as the context requires, means any of them);
2.1.158
Senior
 
Facility
 
Outstandings
 
means
 
the
 
Senior
 
Term
 
Facility
 
Outstandings,
 
the
Senior RCF Outstandings and the WCF Outstandings;
2.1.159
Senior RCF
 
means the
 
secured revolving
 
credit loan facility
 
described in clause
(Senior RCF) made available under this Agreement and the Senior RCF Agreement;
2.1.160
Senior RCF Agreement
 
means the revolving
 
credit loan facility
 
agreement of up
 
to
the
 
Senior
 
RCF
 
Commitment,
 
dated
 
on
 
or
 
about
 
the
 
Signature
 
Date,
 
between
 
the
Original
 
Senior
 
RCF
 
Lenders,
 
the
 
Facility
 
Agent
 
and
 
the
 
Term/RCF
 
Borrower
 
(as
borrower);
2.1.161
Senior RCF Commitment
 
means -
2.1.161.1
in relation to an
 
Original Senior RCF Lender,
 
the amount set opposite its
 
name
under
 
the
 
heading
 
"Senior
 
RCF
 
Commitment"
 
in
 
Part
 
II
 
of
 
(The
Parties) plus any amounts voluntarily
 
repaid in relation to
 
Senior Term
 
Facility
A and the amount of any
 
other Senior RCF Commitment transferred to it under
this Agreement; and
2.1.161.2
in
 
relation
 
to
 
any
 
other
 
Senior
 
RCF
 
Lender,
 
the
 
amount
 
of
 
any
 
Senior
 
RCF
Commitment transferred to it under this Agreement,
31
to the extent
 
not cancelled, reduced
 
or transferred by
 
it under this
 
Agreement or the
Senior RCF Agreement;
2.1.162
Senior RCF Lenders
 
means -
2.1.162.1
any Original Senior RCF Lender; and
2.1.162.2
any bank, financial institution, trust, fund or other entity which
 
becomes a Party
as a
 
Senior RCF
 
Lender after
 
the Signature
 
Date in
 
accordance with
 
clause
(Changes to the Lenders);
in each case,
 
which has not ceased
 
to be a
 
Party in accordance
 
with the terms
 
of this
Agreement (and
Senior RCF Lender
, as the context requires, means any of them);
2.1.163
Senior RCF Loan
 
means a Loan under the Senior RCF;
2.1.164
Senior RCF Outstandings
 
means at any time,
 
in relation to
 
a Senior RCF
 
Lender, the
aggregate of all amounts of loan principal, accrued interest, Break Costs, prepayment
penalties, fees and
 
all other amounts
 
outstanding in respect
 
of the Senior
 
RCF under
the
 
Finance
 
Documents
 
(including,
 
without
 
limitation,
 
any
 
claim
 
for
 
damages
 
or
restitution, any claim as a result of any
 
recovery by an Obligor, a Security Provider or
another person
 
of a
 
payment or
 
discharge under
 
the Finance
 
Documents on
 
the grounds
of preference, and each
 
amount which would be
 
included in any of
 
the above but for
any
 
discharge,
 
non-provability
 
or
 
unenforceability
 
of
 
a
 
claim
 
in
 
any
 
insolvency
 
or
other proceedings);
2.1.165
Senior
 
Term
 
Facility
 
A
 
means
 
the
 
secured
 
bullet
 
term
 
loan
 
facility
 
described
 
in
clause
 
(Senior
 
Term
 
Facility
 
A)
 
made
 
available
 
under
 
this
 
Agreement
 
and
 
the
Senior Term Facility A Agreement;
2.1.166
Senior Term Facility A Agreement
 
means the
 
bullet term loan facility
 
agreement of
up
 
to
 
Senior
 
Term
 
Facility
 
A
 
Commitment,
 
dated
 
on
 
or
 
about
 
the
 
Signature
 
Date,
between
 
the
 
Original
 
Senior
 
Term
 
Facility
 
A
 
Lenders,
 
the
 
Facility
 
Agent
 
and
 
the
Term/RCF Borrower (as borrower);
2.1.167
Senior Term Facility A Commitment
 
means -
2.1.167.1
in relation
 
to an Original
 
Senior Term Facility A
 
Lender, the amount
 
set opposite
its name under the
 
heading "Senior Term
 
Facility A Commitment" in Part
 
II of
 
(The Parties) and
 
the amount of
 
any other Senior
 
Term
 
Facility A
Commitment transferred to it under this Agreement; and
32
2.1.167.2
in relation to
 
any other Senior
 
Term Facility A Lender, the amount
 
of any Senior
Term Facility A Commitment transferred to it under this Agreement,
to the
 
extent not
 
cancelled, reduced
 
or transferred
 
by it
 
under this
 
Agreement or
 
the
Senior Term Facility A Agreement;
2.1.168
Senior Term Facility A Lenders
 
means -
2.1.168.1
each Original Senior Term Facility A Lender; and
2.1.168.2
each bank, financial
 
institution, trust,
 
fund or other
 
entity which
 
becomes a Party
as a Senior Term
 
Facility A Lender after the Signature Date in accordance with
clause
 
(Changes to the Lenders),
in each case,
 
which has not ceased
 
to be a
 
Party in accordance
 
with the terms
 
of this
Agreement (and
Senior Term Facility A
 
Lender
, as the context requires, means any
of them);
2.1.169
Senior Term Facility A Loan
 
means a Loan under Senior Term Facility A;
2.1.170
Senior Term Facility A
 
Outstandings
 
means at
 
any time,
 
in relation
 
to a
 
Senior Term
Facility
 
A
 
Lender,
 
the
 
aggregate
 
of
 
all
 
amounts
 
of
 
loan
 
principal,
 
accrued
 
interest,
Break Costs, prepayment penalties, fees
 
and all other amounts
 
outstanding in respect
of Senior
 
Term Facility A
 
under the
 
Finance Documents
 
(including, without
 
limitation,
any
 
claim
 
for
 
damages
 
or
 
restitution,
 
any
 
claim
 
as
 
a
 
result
 
of
 
any
 
recovery
 
by
 
an
Obligor,
 
a Security
 
Provider or
 
another person
 
of a
 
payment or
 
discharge under
 
the
Finance Documents on
 
the grounds
 
of preference,
 
and each amount
 
which would be
included in any
 
of the above
 
but for any
 
discharge, non-provability or
 
unenforceability
of a claim in any insolvency or other proceedings);
2.1.171
Senior Term
 
Facility B
 
means the secured amortising term loan facility described in
clause
 
(Senior
 
Term
 
Facility
 
B)
 
made
 
available
 
under
 
this
 
Agreement
 
and
 
the
Senior Term Facility B Agreement;
2.1.172
Senior
 
Term
 
Facility
 
B
 
Agreement
 
means
 
the
 
amortising
 
term
 
loan
 
facility
agreement
 
of
 
up
 
to
 
Senior
 
Term
 
Facility
 
B
 
Commitment,
 
dated
 
on
 
or
 
about
 
the
Signature
 
Date,
 
between
 
the
 
Original
 
Senior
 
Term
 
Facility
 
B
 
Lenders,
 
the
 
Facility
Agent and the Term/RCF Borrower (as borrower);
2.1.173
Senior Term Facility B Commitment
 
means -
33
2.1.173.1
in relation to
 
an Original
 
Senior Term Facility B
 
Lender, the amount set
 
opposite
its name under
 
the heading "Senior Term
 
Facility B Commitment" in
 
Part II of
 
(The Parties) and
 
the amount
 
of any other
 
Senior Term
 
Facility B
Commitment transferred to it under this Agreement; and
2.1.173.2
in relation to any
 
other Senior Term Facility B Lender, the
 
amount of any
 
Senior
Term Facility B Commitment transferred to it under this Agreement,
to the
 
extent not
 
cancelled, reduced
 
or transferred
 
by it
 
under this
 
Agreement or
 
the
Senior Term Facility B Agreement;
2.1.174
Senior Term Facility B Lenders
 
means -
2.1.174.1
each Original Senior Term Facility B Lender; and
2.1.174.2
each bank, financial
 
institution, trust,
 
fund or other
 
entity which
 
becomes a Party
as a Senior Term
 
Facility B Lender after the Signature Date in
 
accordance with
clause
 
(Changes to the Lenders),
in each case,
 
which has not ceased
 
to be a
 
Party in accordance
 
with the terms
 
of this
Agreement (and
Senior Term
 
Facility B Lender
, as the context requires, means any
of them);
2.1.175
Senior Term Facility B Loan
 
means a Loan under Senior Term Facility B;
2.1.176
Senior Term Facility B
 
Outstandings
 
means at
 
any time,
 
in relation
 
to a Senior
 
Term
Facility
 
B
 
Lender,
 
the
 
aggregate
 
of
 
all
 
amounts
 
of
 
loan
 
principal,
 
accrued
 
interest,
Break Costs, prepayment penalties, fees
 
and all other amounts
 
outstanding in respect
of Senior
 
Term Facility B
 
under the
 
Finance Documents
 
(including, without
 
limitation,
any
 
claim
 
for
 
damages
 
or
 
restitution,
 
any
 
claim
 
as
 
a
 
result
 
of
 
any
 
recovery
 
by
 
an
Obligor,
 
a Security
 
Provider or
 
another person
 
of a
 
payment or
 
discharge under
 
the
Finance Documents on
 
the grounds
 
of preference,
 
and each amount
 
which would be
included in any
 
of the above
 
but for any
 
discharge, non-provability or
 
unenforceability
of a claim in any insolvency or other proceedings);
2.1.177
Senior Term Facilities
 
means the
 
Senior Term Facility
 
A and
 
the Senior
 
Term Facility
B;
2.1.178
Senior Term Facility Agreements
 
means the Senior Term Facility A Agreement
 
and
the Senior Term Facility B Agreement;
34
2.1.179
Senior Term Facility Commitment
 
means each
 
Senior Term Facility
 
A Commitment
and each Senior Term Facility B Commitment;
2.1.180
Senior
 
Term
 
Facility Lenders
 
means the
 
Senior Term
 
Facility A
 
Lenders and
 
the
Senior Term Facility B Lenders;
2.1.181
Senior Term
 
Facility Loan
 
means a Senior
 
Term
 
Facility A Loan or
 
a Senior Term
Facility B Loan;
2.1.182
Senior Term Facility Outstandings
 
means the Senior Term Facility A Outstandings
and the Senior
 
Term Facility B Outstandings,
 
or either
 
one of them,
 
as the context
 
may
require;
2.1.183
Shareholder Claims
 
means, in relation to a shareholder in any relevant person -
2.1.183.1
claims on
 
shareholders loan
 
account which
 
that shareholder
 
may have
 
against
that person; and
2.1.183.2
claims
 
arising from,
 
or
 
in connection
 
with, the
 
holding by
 
that shareholder
 
of
shares of any
 
class in that
 
person (including ordinary and/or
 
preference shares)
and
 
including
 
any
 
rights
 
to
 
dividends
 
and
 
other
 
distributions
 
of
 
whatsoever
nature that person;
2.1.184
Shareholder Contribution
 
means the aggregate amount of -
2.1.184.1
the subscription price received by
 
Holdco in respect of
 
shares subscribed for in
the share capital of Holdco,
 
provided such share issue is a
 
Permitted Share Issue
under clause
 
(Share capital); and
2.1.184.2
the proceeds of
 
loans advanced to
 
Holdco by its
 
direct shareholders where
 
any
Financial
 
Indebtedness
 
arising
 
as
 
a
 
result
 
is
 
Permitted Financial
 
Indebtedness
under clause
 
(Financial Indebtedness);
2.1.185
Signature Date
 
means the date on which, once
 
this Agreement has been signed by
 
all
the Parties, it is signed by the last Party to do so;
2.1.186
Subordination Agreement
 
means any
 
subordination agreement
 
in
 
the
 
agreed form
between,
 
amongst
 
others,
 
the
 
Obligors,
 
the
 
Finance
 
Parties,
 
Holdco
 
and
 
any
 
other
relevant subordinated creditors,
 
pursuant to which,
 
amongst others, the
 
claims of the
members
 
of
 
the
 
Group
 
and
 
any
 
other
 
relevant
 
subordinated
 
creditors
 
against
 
the
35
Obligors
 
and
 
the
 
Covenant
 
Group
 
are
 
subordinated
 
in
 
favour
 
of
 
all
 
claims
 
of
 
the
Finance Parties under the Finance Documents;
2.1.187
Subsidiary
 
means in relation to any person -
2.1.187.1
a subsidiary as defined in the Companies
 
Act (including any person who would,
but for not being
 
a company under
 
the Companies Act,
 
qualify as a subsidiary
 
as
defined in the Companies Act);
2.1.187.2
any partnership, Joint
 
Venture, trust, juristic person or other
 
entity Controlled by
that person;
2.1.188
Tax
 
means
 
any
 
tax,
 
levy,
 
impost,
 
duty
 
or
 
other
 
charge
 
or
 
withholding
 
of
 
a
 
similar
nature (including any penalty or interest payable
 
in connection with any failure to pay
or any delay in paying any of the same);
2.1.189
Total
 
Commitments
 
means the aggregate of the following -
2.1.189.1
the Total Senior Term
 
Facility Commitments;
 
2.1.189.2
the Total Senior RCF Commitments; and
2.1.189.3
the WesBank Commitment;
 
2.1.189.4
the Total WCF Commitments;
2.1.190
Total
 
Senior
 
RCF
 
Commitments
 
means
 
the
 
aggregate
 
of
 
the
 
Senior
 
RCF
Commitments;
2.1.191
Total
 
Senior Term
 
Facility Commitments
 
means the aggregate of the
 
Senior Term
Facility Commitments;
2.1.192
Total WCF Commitments
 
means the aggregate of the WCF Commitments;
2.1.193
Transaction
 
Security
 
means the
 
Security created
 
or expressed
 
to be
 
created for
 
the
benefit of, amongst others, the Finance Parties pursuant to the Security Documents;
2.1.194
Transfer
 
has the meaning given to it in
 
clause
 
(Cessions and delegations by the
Lenders);
2.1.195
Transfer Certificate
 
means a certificate substantially
 
in the form set out
 
in Annexure
C (Form of Transfer Certificate) or otherwise in the agreed form;
36
2.1.196
Transfer Date
, in relation to a Transfer, means the later of -
2.1.196.1
the proposed Transfer Date specified in the Transfer Certificate; and
2.1.196.2
the date on which the Facility Agent executes the Transfer Certificate;
2.1.197
Treasury
 
Transaction
 
means
 
any derivative
 
transaction entered
 
into in
 
connection
with protection against
 
or to benefit
 
from fluctuations in
 
any rate, price,
 
index or credit
rating;
2.1.198
Unpaid
 
Sum
 
means
 
any sum
 
due
 
and
 
payable but
 
unpaid
 
by
 
an
 
Obligor under
 
the
Finance Documents;
2.1.199
US
means the United States of America;
2.1.200
US CPI
 
means the
 
All Items Consumer
 
Price Index for
 
All Urban Consumers
 
(CPI-
U)
 
for
 
the
 
U.S.
 
City
 
Average,
 
1982-84=100
 
published
 
by
 
the
 
US
 
Bureau
 
of
 
Labor
Statistics;
 
2.1.201
Utilisation
 
means a utilisation of a Senior Facility;
2.1.202
Utilisation Date
 
means the date of a Utilisation, being the date on which the relevant
Loan is to be made;
2.1.203
Utilisation Request
, in relation to a
 
Senior Term
 
Facility or the Senior RCF,
 
has the
meaning given
 
to that
 
term in
 
the applicable
 
Senior Term
 
Facility Agreement
 
or the
Senior RCF Agreement, as applicable;
2.1.204
VAT
 
means value added tax
 
as provided for in
 
the Value
 
Added Tax
 
Act, 1991, and
any other Tax of a similar nature in a jurisdiction other than South Africa;
2.1.205
VCP Investment Fund
means Value
 
Capital Partners H4 QI Hedge Fund Portfolio;
2.1.206
VCP
 
Investment
 
Portfolios
means
 
Sentinel
 
Retirement
 
Fund,
 
the
 
Standard
 
Bank
Group
 
Retirement
 
Fund,
 
FirstRand
 
Group
 
Retirement
 
Fund,
 
Eskom
 
Pension
 
and
Provident
 
Fund,
 
Telkom
 
Retirement
 
Fund,
 
Old
 
Mutual
 
Life
 
Assurance
 
Company
(South
 
Africa)
 
Limited
 
(acting
 
through
 
its
 
Old
 
Mutual
 
Multi-Managers
 
Division),
Transnet Retirement Fund and such similar funds that VCP Investment Manager may
manage from time to time;
 
2.1.207
WCF Agreement
 
means -
2.1.207.1
each Original WCF Agreement; or
37
2.1.207.2
any other facility agreement or facility
 
letter entered into by one
 
or more of the
WCF Borrowers
 
(and, if
 
applicable other
 
members of
 
the Covenant
 
Group (other
than an Excluded
 
Subsidiary)) and
 
a WCF Lender
 
to regulate the
 
terms on which
a Working Capital Facility is to be provided;
2.1.208
WCF Borrower
 
means an Original WCF Borrower
 
or an Additional WCF Borrower;
2.1.209
WCF Commitment
 
means -
2.1.209.1
direct facilities in
 
an amount of
 
up to R743,901,000.00, indirect
 
facilities in an
amount of
 
up to
 
R57,700,000.00 as
 
at the
 
Signature Date
 
(provided that
 
direct
facilities may be reallocated
 
as indirect facilities, but
 
indirect facilities may not
be
 
reallocated
 
as
 
direct
 
facilities)
 
and
 
settlement
 
lines
 
in
 
an
 
amount
 
of
 
up
 
to
R326,000,00.00,
 
in respect of general banking facilities; and
2.1.209.2
the amount
 
which any
 
WCF Lender
 
has agreed
 
(whether or
 
not subject
 
to the
satisfaction of conditions precedent) to
 
make available from time
 
to time under
a Working Capital Facility concluded after the Signature Date,
to the extent
 
not cancelled or
 
reduced under the
 
applicable WCF Agreement relating
to the applicable Working Capital Facility
 
(subject to the provisions
 
of clause
(Financial Indebtedness) and the other requirements of the Finance Documents);
2.1.210
WCF Document
 
means -
2.1.210.1
a WCF Agreement; and
2.1.210.2
each
 
document
 
(including
 
a
 
document
 
in
 
electronic
 
format
 
only)
 
entered
 
into
from
 
time
 
to
 
time
 
between
 
a
 
WCF
 
Lender
 
and
 
one
 
or
 
more
 
of
 
the
 
WCF
Borrowers
 
(or,
 
if
 
applicable, another
 
member
 
of
 
the
 
Covenant
 
Group),
 
which
evidences a facility,
 
financial instrument or a
 
financial service provided as
 
part
of a Working Capital Facility;
2.1.211
WCF Lenders
 
means -
2.1.211.1
the Original WCF Lender;
 
and
2.1.211.2
each other
 
person which
 
becomes a
 
party to
 
this Agreement
 
and any
 
Intercreditor
Agreement as
 
a provider
 
of a
 
Working
 
Capital Facility,
 
to one
 
or more
 
of the
WCF Borrowers
 
(and, if
 
applicable other
 
members of
 
the Covenant
 
Group (other
than an Excluded Subsidiary)),
38
and
WCF Lender
, as the context requires, means any of them
2.1.212
WCF Outstandings
 
means, at any time, in relation to a WCF Lender
 
and a Working
Capital
 
Facility,
 
the
 
aggregate
 
of
 
the
 
following
 
amounts
 
outstanding
 
under
 
that
Working Capital Facility -
2.1.212.1
the principal
 
amount outstanding
 
under each
 
overdraft facility
 
and on-demand
short term loan facility;
2.1.212.2
the
 
face
 
amount
 
of
 
each
 
guarantee,
 
bond,
 
letter
 
of
 
credit
 
and
 
any
 
similar
instrument under that Working Capital Facility;
2.1.212.3
the amount of the
 
aggregate exposure (excluding
 
interest and similar charges)
 
of
that WCF Lender under each other
 
type of accommodation provided under that
Working Capital Facility; and
2.1.212.4
all
 
accrued
 
interest
 
and
 
other
 
amounts
 
then
 
due
 
and
 
payable
 
under
 
that
 
WCF
Agreement,
(including,
 
without limitation,
 
any
 
claim
 
for
 
damages or
 
restitution, any
 
claim
 
as
 
a
result of a recovery by an
 
Obligor or another person of a
 
payment or discharge under
that Working
 
Capital Facility
 
on the
 
grounds of
 
preference, and
 
each amount
 
which
would
 
be
 
included
 
in
 
any
 
of
 
the
 
above
 
but
 
for
 
any
 
discharge,
 
non-provability
 
or
unenforceability of a claim in any insolvency or other proceedings); and
2.1.213
WesBank
 
means FirstRand Bank Limited, acting through its WesBank division;
 
2.1.214
WesBank Agreement
 
means -
2.1.214.1
written
 
vehicle
 
asset finance
 
facility through
 
WesBank's
 
Asset
 
Based Finance
Division) recorded in an instalment sale agreement and facility
 
letter;
 
2.1.214.2
the full maintenance leasing facility through WesBank's
 
Fleet Management and
Leasing Division) recorded in a master rental agreement and term sheet;
 
and
2.1.214.3
any other facility
 
letter or document
 
to be
 
concluded with WesBank
 
from time
to time,
all on
 
the terms
 
and subject
 
to the
 
conditions contained
 
therein and
 
concluded between
WesBank and certain Obligors;
2.1.215
WesBank Commitment
 
means -
39
2.1.215.1
an amount equal to ZAR227,000,000; and
2.1.215.2
the amount
 
which WesBank has
 
agreed (whether
 
or not
 
subject to
 
the satisfaction
of conditions precedent) to make available from
 
time to time under a
 
WesBank
Agreement concluded after the Signature Date,
to
 
the
 
extent
 
not
 
cancelled
 
or
 
reduced
 
under
 
the
 
applicable
 
WesBank
 
Agreement
relating to the applicable WesBank Facility subject to the requirements
 
of the Finance
Documents);
2.1.216
WesBank Outstandings
 
means, at any time, in relation to WesBank
 
and a WesBank
Facility,
 
the
 
aggregate
 
of
 
the
 
amounts
 
outstanding
 
under
 
that
 
WesBank
 
Facility
including
 
without
 
limitation
 
the
 
principal
 
amount,
 
all
 
accrued
 
interest
 
and
 
other
amounts
 
then
 
due
 
and
 
payable
 
under
 
that
 
WesBank
 
Facility,
 
(including,
 
without
limitation, any claim for damages or restitution, any claim as
 
a result of a recovery by
an Obligor or another
 
person of a payment or
 
discharge under that WesBank
 
Facility
on the grounds of preference, and each
 
amount which would be included in
 
any of the
above
 
but
 
for
 
any
 
discharge,
 
non-provability
 
or
 
unenforceability
 
of
 
a
 
claim
 
in
 
any
insolvency or other proceedings);
2.1.217
WesBank Facility
 
means the asset finance facilities in a
 
maximum principal amount
of
 
ZAR227,000,000
 
as
 
at
 
the
 
Signature
 
Date
 
made
 
available
 
under
 
the
 
WesBank
Agreements; and
2.1.218
Working Capital Facility
 
means -
2.1.218.1
the Original Working Capital Facility;
2.1.218.2
any other
 
direct and
 
indirect working
 
capital facility, in
 
each case
 
for a
 
maximum
funding
 
commitment
 
or
 
facility
 
exposure
 
equal
 
to
 
the
 
applicable
 
WCF
Commitment,
 
provided
 
by
 
a
 
WCF
 
Lender
 
to
 
one
 
or
 
more
 
members
 
of
 
the
Covenant Group (other than an Excluded Subsidiary)
 
(as borrowers), from time
to time after the Closing Date.
2.2
Financial definitions
In this Agreement the following terms have the meanings set out below -
2.2.1
Cash
 
means an amount (denominated in Rand or any other currency approved by the
Facility
 
Agent)
 
of
 
cash
 
in
 
hand,
 
or
 
credit
 
balances
 
or
 
amounts
 
on
 
deposit
 
with
 
an
Acceptable Bank to which a member of the Covenant Group (other than an
 
Excluded
40
Subsidiary) is
 
alone (or
 
together with
 
other members
 
of
 
the Covenant
 
Group (other
than an Excluded Subsidiary)) beneficially entitled if -
2.2.1.1
the cash
 
is accessible
 
and may
 
be withdrawn
 
in full by
 
a member
 
of the
 
Covenant
Group (other than an Excluded Subsidiary)
 
within 30 days;
2.2.1.2
access to and withdrawal of the
 
cash is not contingent on the
 
prior discharge of
any indebtedness of any person or the satisfaction of any other condition;
2.2.1.3
no
 
Security
 
exists
 
over
 
the
 
cash
 
or
 
over
 
claims
 
in
 
respect
 
thereof
 
(other
 
than
Security
 
arising
 
under
 
the
 
Security
 
Documents
 
or
 
any
 
Security
 
permitted
pursuant to clause
 
(Negative pledge)); and
2.2.1.4
the cash is freely
 
and (except as mentioned
 
in clause
) immediately
available to be applied in repayment or prepayment of the Senior Facilities;
2.2.2
Cash Equivalents
 
means, at any time -
2.2.2.1
certificates
 
of
 
deposit
 
maturing
 
within
 
90
 
days
 
after
 
the
 
relevant
 
date
 
of
calculation, issued by an Acceptable Bank in South Africa;
2.2.2.2
investments accessible
 
and which
 
can be
 
monetised within
 
90 days
 
in a
 
South
African money market collective investment scheme which -
2.2.2.2.1
is a
 
money market
 
collective investment
 
scheme of
 
Absa Bank
 
Limited,
FirstRand Bank Limited, Investec Bank
 
Limited, Nedbank Limited or The
Standard Bank
 
of South
 
Africa Limited or
 
otherwise has an
 
international
credit rating of
 
BBB- or higher by
 
Standard & Poor's Ratings Services
 
or
Baa3
 
or
 
higher
 
by
 
Moody's
 
Investor
 
Services
 
Limited,
 
or
 
a
 
comparable
rating from an internationally recognised credit rating agency; and
2.2.2.2.2
invests
 
substantially
 
all
 
its
 
assets
 
in
 
securities
 
of
 
the
 
type
 
described
 
in
clause
; or
2.2.2.3
any other debt security expressly approved by the Facility Agent
 
in writing,
in each case,
 
denominated in Rand
 
or another currency
 
approved by the
 
Facility Agent
in writing, and to which any member of the Covenant Group (other than an
 
Excluded
Subsidiary) is
 
alone (or
 
together with
 
other members
 
of
 
the Covenant
 
Group (other
than an Excluded
 
Subsidiary)) beneficially
 
entitled at that
 
time and which
 
is not issued
41
or guaranteed by any member
 
of the Covenant Group
 
or subject to any Security
 
(other
than Security arising under the Security Documents);
2.2.3
Consolidated EBITDA
, in relation to any Measurement Period, means the aggregate
of
 
the
 
consolidated
 
operating
 
income
 
of
 
the
 
Group,
 
in
 
each
 
case,
 
for
 
that
 
period,
without taking any account of the following items (without double counting) -
2.2.3.1
any Interest
 
accrued as
 
an obligation
 
of any
 
member of
 
the Group,
 
whether or
not paid, deferred or capitalised during that period;
2.2.3.2
any amount of
 
Tax
 
on profits,
 
gains or income
 
paid or payable
 
by members of
the Group
 
and any
 
amount of
 
any rebate
 
or credit
 
in respect
 
of Tax
 
on profits,
gains or income received or receivable by members of the Group;
2.2.3.3
any depreciation or amortisation whatsoever,
 
and any charge for
 
impairment or
any reversal in that
 
period of any previous
 
impairment charge in
 
relation to the
Group;
2.2.3.4
any loss against book value incurred by
 
a member of the Group on the
 
disposal
of any asset (other than trading stock) during that period;
2.2.3.5
any
 
gain
 
over
 
book
 
value
 
arising
 
in
 
favour
 
of
 
a
 
member
 
of
 
the
 
Group
 
on
 
the
disposal of any
 
asset (other than
 
trading stock) during
 
that period and
 
any gain
arising on any revaluation of an asset during that period;
2.2.3.6
any
 
unrealised
 
gains
 
or
 
losses
 
due
 
to
 
exchange
 
rate
 
movements
 
which
 
are
reported through the income statement in relation to the Group;
2.2.3.7
any
 
unrealised
 
gains
 
or
 
losses
 
on
 
any
 
financial
 
instrument
 
(other
 
than
 
any
financial instrument which is accounted for on a hedge accounting basis) which
are reported through the income statement of the Group;
2.2.3.8
any stock based
 
payment charges incurred
 
by a member
 
of the Group
 
recognised
on the issuance of
 
stock based awards to management and staff:
2.2.3.9
for
 
each
 
Measurement
 
Period,
 
any
 
Transaction
 
Costs
 
to
 
the
 
extent
 
that
 
those
costs are accrued or paid during that period;
 
2.2.3.10
any income or expenses related to the Lesaka
 
Employee Share Trust established
and
 
registered
 
in
 
accordance
 
with
 
the
 
laws
 
of
 
South
 
Africa,
 
with
 
Master’s
reference number IT001901/2024(G) and
 
42
2.2.3.11
any Exceptional Items approved by the Facility Agent in writing,
2.2.4
and adjusted by -
2.2.4.1
including
 
only
 
the
 
operating
 
profit
 
before
 
interest,
 
tax,
 
depreciation
 
and
amortisation
 
(calculated
 
on
 
the
 
same
 
basis
 
as
 
Consolidated
 
EBITDA)
 
of
 
a
member of
 
the Covenant
 
Group (or
 
attributable to
 
a business
 
or assets)
 
(other
than any Excluded Subsidiaries) acquired during that Measurement Period (and
added back
 
as if
 
it was
 
acquired at
 
the start
 
of that
 
relevant Measurement
 
Period);
2.2.4.2
including
 
only the amount of cash
 
received by members of the
 
Covenant Group
(other
 
than
 
Excluded
 
Subsidiaries)
 
through
 
distributions
 
by
 
any
 
associate
 
or
Investment
 
(which
 
is
 
not
 
a
 
member
 
of
 
the
 
Covenant
 
Group)
 
in
 
which
 
any
member
 
of
 
the
 
Covenant
 
Group
 
(other
 
than
 
an
 
Excluded
 
Subsidiary)
 
has
 
an
ownership interest;
2.2.4.3
excluding
 
the operating profit
 
before interest, tax,
 
depreciation and amortisation
(calculated
 
on
 
the
 
same
 
basis
 
as
 
Consolidated
 
EBITDA)
 
attributable
 
to
 
any
member
 
of
 
the
 
Group
 
(or
 
to
 
any
 
business
 
or
 
assets)
 
disposed
 
of
 
during
 
the
Measurement Period
 
(and removed
 
as
 
if it
 
was disposed
 
of at
 
the
 
start of
 
that
relevant Measurement Period);
 
2.2.4.4
excluding
 
the operating profit
 
before interest, tax,
 
depreciation and amortisation
(calculated
 
on
 
the
 
same
 
basis
 
as
 
Consolidated
 
EBITDA)
 
attributable
 
to
 
any
Excluded Subsidiary or any
 
other Subsidiary of Holdco
 
which is not a
 
member
of the Covenant Group during the Measurement Period;
2.2.4.5
for
 
purposes
 
of
 
this
 
Agreement,
 
continuing
 
to
 
treat
 
each
 
Relevant
 
Operating
Lease as
 
an operating
 
lease for
 
accounting purposes,
 
notwithstanding any
 
change
(or the implementation of any change) to IFRS on or after 1 January
 
2019;
2.2.5
Exceptional Items
 
means any
 
exceptional, once-off,
 
non-recurring or
 
extraordinary
items, including material items of an unusual or non-recurring nature which represent
gains or losses arising on -
2.2.5.1
the restructuring of the activities of an entity and reversals of any provisions for
the cost of restructuring;
2.2.5.2
disposals,
 
revaluations,
 
provisions,
 
write-downs or
 
impairment
 
of
 
non-current
assets or any reversal of any provisions or write-down or impairment;
 
and
43
2.2.5.3
disposals of assets associated with discontinued operations;
2.2.6
Interest
 
means -
2.2.6.1
interest and amounts in the nature of interest accrued;
2.2.6.2
prepayment
 
penalties
 
or
 
premiums
 
incurred
 
in
 
repaying
 
or
 
prepaying
 
any
Financial Indebtedness;
2.2.6.3
discount fees
 
and acceptance
 
fees payable
 
or deducted
 
in respect
 
of any
 
Financial
Indebtedness,
 
including
 
fees
 
payable
 
in
 
respect
 
of
 
letters
 
of
 
credit
 
and
guarantees;
2.2.6.4
any net payment
 
(or, if appropriate in
 
the context, receipt)
 
under any interest
 
rate
hedging agreement or instrument, taking into account any premiums payable;
2.2.6.5
any
 
dividends
 
on
 
shares
 
if
 
those
 
shares
 
constitute
 
Financial
 
Indebtedness
 
for
purposes of this Agreement; and
2.2.6.6
any other payments and
 
deductions of similar effect
 
(including the finance cost
element of finance leases),
and includes commitment and non-utilisation fees (including those
 
payable under the
Finance
 
Documents),
 
but
 
excludes
 
facility
 
agents'
 
and
 
front-end,
 
management,
arrangement
 
and
 
participation
 
fees
 
with
 
respect
 
to
 
any
 
Financial
 
Indebtedness
(including those payable under the Finance Documents);
2.2.7
Interest Cover Ratio
 
means, as at each
 
Measurement Date, the
 
ratio of the sum
 
of the
Consolidated EBITDA and
 
the Kwande Distributions
 
to Total
 
Net Finance Costs
 
for
the Measurement Period ending on that date;
2.2.8
Interest
 
Receivable
,
 
in
 
relation
 
to
 
any
 
Measurement
 
Period,
 
means
 
all
 
Interest
received or
 
receivable by
 
members of
 
the Covenant
 
Group (other
 
than an
 
Excluded
Subsidiary)
 
during
 
that
 
period
 
in
 
respect
 
of
 
Cash
 
deposits
 
at
 
banks
 
and
 
financial
institutions and Cash Equivalents, calculated on a
 
consolidated basis (after deducting
applicable withholding Tax);
2.2.9
Investment
 
means any
 
person in
 
which the
 
Term/RCF
 
Borrower from
 
time to
 
time
holds, directly or indirectly, shares
 
of any class in
 
its issued share capital
 
or equivalent
ownership interest of such person;
44
2.2.10
Kwande Distributions
 
means, in
 
relation to
 
any Measurement
 
Period, the
 
amounts
received
 
by
 
Holdco
 
from
 
its
 
investment
 
in
 
Kwande,
 
limited
 
to
 
a
 
maximum
 
of
USD10,000,000
 
(Indexed)
 
for
 
each
 
Measurement
 
Period,
 
to
 
the
 
extent
 
that
 
such
amounts have been deposited into a Secured Account;
2.2.11
Measurement Date
 
means the last day
 
of March, June, September and
 
December of
each year;
2.2.12
Measurement
 
Period
 
means
 
each
 
period
 
of
 
12
 
months
 
ending
 
on
 
a
 
Measurement
Date;
2.2.13
Net Debt to
 
EBITDA Ratio
 
means, as at each
 
Measurement Date, the ratio
 
of Total
Net Borrowings on
 
that Measurement Date
 
to the
 
sum of the
 
Consolidated EBITDA
and the Kwande Distributions for the Measurement Period ending on that
 
date;
2.2.14
Relevant
 
Operating
 
Lease
 
means
 
a
 
lease
 
that
 
would
 
have
 
been
 
classified
 
as
 
an
operating lease
 
under IFRS prior
 
to 1 January
 
2019, notwithstanding any
 
change (or
the implementation of any change) to IFRS on or after 1 January 2019;
2.2.15
Total
 
Borrowings
in
 
respect
 
of
 
the
 
Covenant
 
Group
 
(other
 
than
 
any
 
Excluded
Subsidiaries),
 
at
 
any
 
time,
 
means
 
the
 
aggregate
 
at
 
that
 
time
 
of
 
the
 
Financial
Indebtedness
 
of
 
the
 
members
 
of
 
the
 
Covenant
 
Group
 
(other
 
than
 
any
 
Excluded
Subsidiaries)
 
from sources external to
 
the Covenant Group
 
calculated at its
 
nominal or
principal
 
amount
 
(or,
 
if
 
greater,
 
the
 
maximum
 
amount
 
payable
 
on
 
repayment
 
or
redemption of
 
the
 
relevant liabilities
 
at
 
such time)
 
together
 
with capitalised
 
interest
thereon at such time;
2.2.16
Total
 
Finance
 
Costs
,
 
in
 
relation
 
to
 
any
 
Measurement
 
Period,
 
means
 
all
 
Interest
accrued
 
in
 
relation to
 
Total
 
Borrowings during
 
such
 
period
 
as
 
an
 
obligation of
 
any
member of
 
the Covenant
 
Group (other
 
than an
 
Excluded Subsidiary)
 
whether or
 
not
paid or capitalised
 
during or deferred for
 
payment after such period),
 
calculated on a
consolidated basis;
2.2.17
Total
 
Net
 
Borrowings
 
means,
 
at
 
any
 
time,
 
Total
 
Borrowings
 
less
 
the
 
aggregate
amount at
 
that time
 
of all
 
Cash and
 
Cash Equivalents
 
held by
 
members of
 
the Covenant
Group (other than any Excluded Subsidiaries);
 
2.2.18
Total Net Finance
 
Costs
, in
 
relation to
 
any Measurement
 
Period, means
 
Total Finance
Costs
 
for
 
that
 
period
 
less
 
Interest
 
Receivable
 
for
 
that
 
period,
 
calculated
 
on
 
a
consolidated basis;
45
2.2.19
Transaction Costs
 
means all non-recurring,
 
once-off fees, costs and
 
expenses, stamp,
registration and
 
other Taxes incurred by
 
the Term/RCF Borrower or
 
any other
 
member
of the Covenant
 
Group in connection
 
with (i) acquisitions,
 
disposals or other
 
corporate
activity,
 
and/or (ii)
 
the entry
 
into of
 
Finance Documents and
 
limited to
 
an aggregate
maximum
 
amount
 
of
 
ZAR200,000,000
 
(or
 
its
 
equivalent
 
in
 
any
 
other
 
currency
 
or
currencies) or such other amount agreed to in writing by the Facility Agent.
 
2.3
Construction
2.3.1
In this Agreement, unless inconsistent with the context, any reference
 
to -
2.3.1.1
the
Facility Agent
, any
Finance Party
, any
Lender
, any
Obligor
, any
Party
,
any
Security Provider
 
or any
 
other person
 
shall be
 
construed so
 
as to
 
include
its successors in title, permitted cessionaries and permitted transferees;
2.3.1.2
a
 
document
 
being
 
in
 
the
agreed
 
form
 
means
 
that
 
the
 
document
 
is
 
in
 
a
 
form
previously agreed in writing by or on behalf
 
of the Term/RCF Borrower and the
Facility Agent
 
or, if
 
not so
 
agreed, is
 
in form
 
and substance
 
satisfactory to
 
the
Facility Agent;
2.3.1.3
an
amendment
 
includes
 
an
 
amendment,
 
supplement,
 
novation,
 
re-enactment,
replacement, restatement or variation
 
and
amend
 
will be construed accordingly;
2.3.1.4
assets
 
includes
 
businesses,
 
undertakings,
 
securities,
 
properties,
 
revenues
 
or
rights of every description and whether present or future, actual or contingent;
2.3.1.5
an
authorisation
 
includes authorisation, consent,
 
approval, resolution, licence,
permit, exemption, filing, notarisation, lodgement or registration;
2.3.1.6
authority
 
includes
 
any
 
court
 
or
 
any
 
governmental,
 
intergovernmental
 
or
supranational
 
body,
 
agency,
 
department
 
or
 
any
 
regulatory,
 
self-regulatory
 
or
other authority;
2.3.1.7
a
disposal
 
means
 
a
 
sale,
 
transfer,
 
cession,
 
assignment,
 
donation,
 
grant,
 
lease,
licence
 
or
 
other
 
alienation
 
or
 
disposal,
 
whether
 
voluntary
 
or
 
involuntary
 
and
whether pursuant to a single
 
transaction or a series of
 
transactions, and
dispose
will be construed accordingly;
2.3.1.8
distribution
 
means
 
a
 
transfer
 
by
 
a
 
company
 
of
 
money
 
or
 
other
 
assets
 
of
 
the
company
 
(other
 
than
 
its
 
own
 
shares)
 
to,
 
or
 
to
 
the
 
order
 
(or
 
otherwise
 
for
 
the
benefit) of, one
 
or more holders of
 
shares in that company
 
or another company
46
within the
 
same group
 
of companies,
 
including any
 
principal or
 
interest in
 
respect
of amounts due (whether in respect of an intercompany or a shareholder loan or
otherwise);
 
any
 
dividend
 
(including
 
any
 
interest
 
on
 
any
 
unpaid
 
amount
 
of
 
a
dividend), charge, fee, consideration or other distribution (whether in cash or in
kind)
 
on
 
or
 
in
 
respect
 
of
 
its
 
shares
 
or
 
share
 
capital
 
(or
 
any
 
class
 
of
 
its
 
share
capital); any
 
repayment or
 
distribution of
 
any share
 
premium account;
 
and the
payment of any management, advisory or other fee;
2.3.1.9
a
Finance Document
 
or
 
any other
 
agreement or
 
instrument includes
 
(without
prejudice
 
to
 
any
 
prohibition
 
on
 
amendments)
 
all
 
amendments
 
(however
fundamental)
 
to
 
that
 
Finance
 
Document
 
or
 
other
 
agreement
 
or
 
instrument,
including any amendment providing for any increase in the amount of a facility
or any additional facility or replacement facility;
2.3.1.10
a
guarantee
 
means
 
(other
 
than
 
in
 
clause
 
(
Guarantee
 
and
 
Indemnity
))
 
any
guarantee, bond, letter
 
of credit, indemnity or
 
similar assurance against
 
financial
loss,
 
or
 
any
 
obligation, direct
 
or
 
indirect,
 
actual
 
or
 
contingent, to
 
purchase
 
or
assume any indebtedness
 
of any
 
person or to
 
make an
 
investment in
 
or loan to
any
 
person
 
or
 
to
 
purchase
 
assets
 
of
 
any
 
person,
 
where,
 
in
 
each
 
case,
 
that
obligation is assumed
 
in order to
 
maintain or assist
 
the ability of
 
that person to
meet any of its indebtedness;
2.3.1.11
indebtedness
 
includes any
 
obligation (whether
 
incurred as
 
principal or
 
as surety)
for
 
the
 
payment
 
or
 
repayment
 
of
 
money,
 
whether
 
present
 
or
 
future,
 
actual
 
or
contingent;
2.3.1.12
know your customer requirements
 
are the identification checks
 
that a Finance
Party
 
requests
 
in
 
order
 
to
 
meet
 
its
 
obligations
 
under
 
any
 
applicable
 
law
 
or
regulation to identify a person who is (or is to become) its customer;
2.3.1.13
a
person
 
includes
 
any
 
individual,
 
company,
 
corporation,
 
unincorporated
association
 
or
 
body
 
(including
 
a
 
partnership,
 
trust,
 
fund,
 
joint
 
venture
 
or
consortium), government, state, agency,
 
organisation or other entity
 
whether or
not having separate legal personality;
2.3.1.14
a
regulation
 
includes any regulation,
 
rule, official directive,
 
request or guideline
(whether or not having the force of
 
law but, if not having the force
 
of law, being
of a type with which any person to which
 
it applies is accustomed to comply) of
any
 
governmental,
 
inter-governmental
 
or
 
supranational
 
body,
 
agency,
department or regulatory, self-regulatory or other authority;
47
2.3.1.15
a provision of law is a
 
reference to that provision as
 
extended, applied, amended
or re-enacted, and includes any subordinate legislation;
2.3.1.16
one gender includes
 
a reference to
 
the others; the
 
singular includes the
 
plural and
vice versa
; natural persons include juristic persons and vice versa; and
2.3.1.17
a time of day is a reference to Johannesburg time.
2.3.2
Section, clause
 
and Annexure
 
headings are
 
for ease
 
of reference
 
only,
 
and do
 
not in
any way affect the interpretation of a Finance Document.
2.3.3
Unless a contrary
 
indication appears, a
 
term used in
 
any other Finance
 
Document or in
any
 
notice
 
given
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document
 
has
 
the
 
same
meaning in that Finance Document or notice as in this Agreement.
2.3.4
A Default (other
 
than an Event
 
of Default) is
continuing
 
if it has
 
not been remedied
within any applicable
 
remedy period expressly
 
provided for in a
 
Finance Document or
waived in writing, and an Event
 
of Default is
continuing
 
if it has not been
 
waived in
writing.
2.3.5
If any provision
 
in a definition
 
is a substantive
 
provision conferring rights
 
or imposing
obligations
 
on
 
any
 
Party,
 
notwithstanding
 
that
 
it
 
appears
 
only
 
in
 
an
 
interpretation
clause, effect
 
shall be
 
given to
 
it as
 
if it
 
were a
 
substantive provision of
 
the relevant
Finance Document.
2.3.6
A term
 
defined in
 
a particular
 
clause of
 
a Finance
 
Document, unless
 
it is
 
clear from
the clause in
 
question that
 
application of
 
the term is
 
to be
 
limited to the
 
relevant clause,
shall bear
 
the meaning
 
ascribed to
 
it for
 
all purposes
 
of the
 
relevant Finance
 
Document,
notwithstanding that that term has not been defined in any interpretation clause.
2.3.7
The Annexures to
 
a Finance Document
 
form an integral
 
part thereof and
 
a reference
to
 
a
clause
 
or
 
a
Annexure
is
 
a
 
reference
 
to
 
a
 
clause
 
of,
 
or
 
an
 
annexure
 
to,
 
this
Agreement.
2.3.8
Unless expressly otherwise provided
 
in a Finance
 
Document or inconsistent with
 
the
context, any number of days prescribed in a Finance Document must be calculated
 
by
including the first and
 
excluding the last day,
 
unless the day before that
 
last day falls
on a
 
day that
 
is not
 
a Business
 
Day,
 
in which
 
case, the
 
day before
 
that last
 
day will
instead be the next Business Day.
48
2.3.9
The rule of construction that, in the event of ambiguity, a contract shall be interpreted
against
 
the
 
party
 
responsible
 
for
 
the
 
drafting
 
thereof,
 
shall
 
not
 
apply
 
in
 
the
interpretation of the Finance Documents.
2.3.10
The use of the word
including
 
followed by specific examples will
 
not be construed as
limiting the meaning
 
of the general
 
wording preceding it,
 
and the
eiusdem generis
 
rule
must
 
not
 
be
 
applied
 
in
 
the
 
interpretation
 
of
 
such
 
general
 
wording
 
or
 
such
 
specific
examples.
2.3.11
The expiry or termination of any Finance Documents shall not affect those provisions
of the Finance Documents that expressly provide that they will operate after any such
expiry
 
or
 
termination or
 
which of
 
necessity must
 
continue to
 
have effect
 
after
 
such
expiry or
 
termination,
 
notwithstanding that
 
the
 
clauses
 
themselves do
 
not
 
expressly
provide for this.
2.3.12
The Finance Documents shall to the extent permitted by applicable law be binding on
and enforceable
 
by the
 
administrators, trustees,
 
permitted cessionaries,
 
business rescue
practitioners or liquidators of the Parties as fully and effectually
 
as if they had signed
the Finance Documents
 
in the first
 
instance and reference
 
to any Party
 
shall be deemed
to include
 
such Party’s administrators,
 
trustees, permitted
 
cessionaries, business
 
rescue
practitioners or liquidators, as the case may be.
2.3.13
Unless the contrary intention appears -
2.3.13.1
a reference to
 
a Party will
 
not include
 
any person if
 
it has ceased
 
to be
 
a Party
under this Agreement;
2.3.13.2
any
 
obligation
 
of
 
an
 
Obligor
 
under
 
the
 
Finance
 
Documents
 
which
 
is
 
not
 
a
payment obligation remains in
 
force for so long as any
 
payment obligation of an
Obligor is
 
or may
 
be or
 
is capable
 
of becoming
 
outstanding under
 
the Finance
Documents; and
2.3.13.3
any
 
obligation
 
of
 
an
 
Obligor
 
under
 
the
 
Finance
 
Documents
 
includes
 
an
obligation on that Obligor not
 
to contract or agree
 
to do something or
 
not to do
something
 
which
 
would
 
breach
 
that
 
first
 
obligation,
 
unless
 
such
 
contract
 
or
agreement is conditional
 
on the approval
 
of the Facility
 
Agent (as required
 
under
any Finance Document).
2.4
Third party rights
49
2.4.1
Except as expressly
 
provided for in
 
this Agreement or
 
in any other
 
Finance Document,
no provision of any Finance Document constitutes a stipulation for
 
the benefit of any
person who is not a party to that Finance Document.
2.4.2
Notwithstanding any term of
 
any Finance Document,
 
the consent of
 
any person who
is not a party to that Finance Document is not required to rescind or vary
 
that Finance
Document at any time except to the extent that the relevant variation or rescission (as
the case may be) relates directly to the right conferred
 
upon any applicable third party
under
 
a stipulation
 
for the
 
benefit
 
of
 
that party
 
that has
 
been accepted
 
by that
 
third
party.
2.5
Currency Symbols and Definitions
Rand or R denotes the lawful currency of South Africa.
3
THE SENIOR FACILITIES
3.1
Senior Term Facility A
Subject to
 
the terms
 
of this
 
Agreement and
 
the Senior
 
Term Facility A
 
Agreement, the
 
Senior
Term
 
Facility A
 
Lenders make
 
available to
 
the Term/RCF
 
Borrower a
 
Rand-denominated
bullet
 
term
 
loan
 
facility
 
in
 
an
 
aggregate
 
amount
 
equal
 
to
 
the
 
Senior
 
Term
 
Facility
 
A
Commitments.
3.2
Senior Term Facility B
Subject to
 
the terms
 
of this
 
Agreement and
 
the Senior
 
Term Facility B
 
Agreement, the
 
Senior
Term
 
Facility B
 
Lenders make
 
available to
 
the Term/RCF
 
Borrower a
 
Rand-denominated
amortising term
 
loan facility
 
in an
 
aggregate amount
 
equal to
 
the Senior
 
Term
 
Facility B
Commitments.
3.3
Senior RCF
Subject
 
to
 
the
 
terms
 
of
 
this
 
Agreement
 
and
 
the
 
Senior
 
RCF
 
Agreement,
 
the
 
Senior
 
RCF
Lenders make
 
available to
 
the Term/RCF
 
Borrower a
 
Rand-denominated revolving
 
credit
facility in an aggregate amount equal to the Total Senior RCF Commitments.
3.4
WesBank Facility
3.4.1
Subject to the
 
terms of this
 
Agreement and the
 
WesBank Agreement,
 
WesBank makes
available to certain of the Obligors in an aggregate amount of ZAR227,000,000
 
as set
out in that WesBank Agreement.
50
3.4.2
The WesBank
 
Agreement may
 
be supplemented
 
or replaced
 
with another
 
WesBank
Facility concluded
 
with WesBank,
 
subject to
 
clause
 
(
Financial Indebtedness
).
3.5
Working Capital Facility
3.5.1
Subject
 
to
 
the
 
terms
 
of
 
this
 
Agreement
 
and
 
the
 
applicable
 
WCF
 
Agreement,
 
the
Original
 
WCF
 
Lender
 
makes
 
available
 
to
 
the
 
relevant
 
WCF
 
Borrowers
 
general
working capital facilities in
 
an aggregate amount equal
 
to the WCF
 
Commitments as
set out in that WCF Agreement.
3.5.2
The Original Working Capital Facility may be supplemented or replaced with
 
another
Working
 
Capital Facility
 
concluded
 
with
 
a
 
WCF
 
Lender,
 
subject
 
to
 
clause
(
Financial Indebtedness
).
3.6
Finance Parties' rights and obligations
3.6.1
The obligations of each Finance Party under the Finance Documents are separate and
independent. Failure by
 
a Finance Party
 
to perform its
 
obligations under the
 
Finance
Documents
 
does
 
not
 
affect
 
the
 
obligations
 
of
 
any
 
other
 
Party
 
under
 
the
 
Finance
Documents. No Finance Party
 
is responsible for the
 
obligations of any other
 
Finance
Party under the Finance Documents.
3.6.2
The rights of each Finance Party under
 
or in connection with the Finance Documents
are separate and
 
independent rights and
 
any debt arising
 
under the Finance
 
Documents
to a
 
Finance Party
 
from an
 
Obligor is
 
a separate
 
and independent
 
debt in
 
respect of
which a Finance Party shall be entitled to enforce its rights
 
in accordance with clause
. The rights
 
of each Finance
 
Party include any
 
debt owing to
 
that Finance Party
under the Finance
 
Documents and, for the
 
avoidance of doubt,
 
any part of
 
a Loan or
any other amount owed by an Obligor which relates to
 
a Finance Party’s participation
in a Facility or
 
its role under
 
a Finance Document
 
(including any such
 
amount payable
to the
 
Facility Agent
 
on its
 
behalf) is
 
a debt
 
owing to
 
that Finance
 
Party by
 
that Obligor.
3.6.3
A Finance Party
 
may, except as otherwise stated
 
in the Finance
 
Documents, separately
enforce its rights under the Finance Documents.
4
PURPOSE
4.1
Purpose
4.1.1
The Term/RCF Borrower shall apply all amounts borrowed by it under -
51
4.1.1.1
Senior Term Facility
 
A towards
 
refinancing the
 
Existing Group
 
Indebtedness and
the Cash Connect Management Finance Documents,
 
funding Transaction Costs
and for general corporate purposes;
4.1.1.2
Senior
 
Term
 
Facility B
 
towards
 
refinancing the
 
Existing Group
 
Indebtedness,
refinancing the
 
amounts payable
 
in terms
 
of the
 
Acquisition GBF
 
and for
 
general
corporate purposes;
 
and
4.1.1.3
the Senior
 
RCF,
 
towards general
 
corporate (including
 
capital expenditure)
 
and
working capital purposes of the Covenant Group,
 
and for no other purpose whatsoever.
4.1.2
Each WCF
 
Borrower shall
 
apply all
 
amounts utilised
 
by it
 
under a
 
Working
 
Capital
Facility for
 
the purposes
 
of funding
 
the general
 
corporate requirements
 
of the
 
Covenant
Group (other than the Excluded Subsidiaries).
4.1.3
Each Obligor which
 
is a party to
 
the WesBank Facility shall apply all
 
amounts utilised
by it
 
under that
 
Facility for
 
the purposes
 
of financing
 
vehicles required
 
by the
 
Covenant
Group (other than the Excluded Subsidiaries).
 
4.2
Monitoring
No
 
Finance
 
Party is
 
bound
 
to
 
monitor
 
or
 
verify
 
the
 
application of
 
any
 
amount borrowed
pursuant to this Agreement and a Senior Facility Agreement.
5
CONDITIONS OF UTILISATION
5.1
Initial conditions precedent
A Utilisation Request may
 
not be given
 
(and a Lender shall
 
have no obligation to
 
advance
any Loan or provide any other form of credit or financial accommodation under any Senior
Facility to
 
any person)
 
unless the
 
Facility Agent
 
has notified
 
the
 
Term/RCF
 
Borrower in
writing that all the documents
 
and other evidence listed
 
in Part I of
 
(Conditions
Precedent)
 
have
 
been
 
received
 
in
 
form
 
and
 
substance
 
satisfactory
 
to
 
the
 
Lenders.
 
The
Facility Agent shall notify the Term/RCF
 
Borrower as soon as reasonably practicable upon
receiving confirmation of all the Lenders being so satisfied.
5.2
Further conditions precedent
Subject to
 
the terms of
 
this Agreement,
 
a Lender
 
will only
 
be obliged
 
to participate
 
in a Loan
or other Utilisation under a Senior Facility if -
52
5.2.1
in the
 
opinion of
 
that Lender, on
 
the date
 
of the
 
Utilisation Request
 
and on
 
the proposed
Utilisation Date -
5.2.1.1
the Representations are correct in all respects; and
5.2.1.2
no Default is continuing or would result from the proposed Loan; and
5.2.2
where the Utilisation is to be applied towards
 
the refinancing of a portion of Existing
Group Indebtedness and/or the Financial Indebtedness
 
owing under the Cash Connect
Management Finance
 
Documents, the
 
Lender is satisfied
 
that the Covenant
 
Group will
discharge any interest or costs
 
which would be payable
 
on the date that such
 
Financial
Indebtedness is settled.
5.3
Waiver or deferral of conditions precedent
Each condition precedent referred to in this clause
 
is for the benefit solely of the Lenders.
The
 
Facility
 
Agent
 
(acting
 
on
 
the
 
instructions
 
of
 
all
 
the
 
Lenders)
 
may,
 
by
 
notice
 
to
 
the
Term/RCF Borrower, waive or
 
defer delivery
 
of any
 
condition precedent,
 
in whole
 
or in
 
part,
and subject to such other conditions (if any) as it may determine.
5.4
Failure to close
If the Closing
 
Date has not
 
occurred by 16h00
 
on the Longstop
 
Date (or such
 
later date as
may be agreed
 
in writing by
 
the Facility Agent,
 
acting on the
 
instructions of
 
all the Lenders),
the
 
Total
 
Commitments
 
shall
 
immediately,
 
automatically
 
and
 
without
 
a
 
requirement
 
for
notice to be given to any person, be cancelled and reduced to zero.
6
UTILISATION
6.1
Utilisations under a Senior Facility Agreement
Subject to
 
the
 
terms of
 
this Agreement,
 
a Borrower
 
may
 
utilise a
 
Senior Facility
 
under
 
a
Senior Facility
 
Agreement to
 
which it
 
is a party
 
on the
 
terms and
 
conditions of
 
the applicable
Senior Facility Agreement.
6.2
Automatic cancellation
The Commitments of each
 
Lender under the Senior Term Facility or the
 
Senior RCF which,
at that time,
 
are unutilised, shall
 
automatically be
 
cancelled immediately at
 
11h00 on the last
day of the
 
Availability Period for the
 
Senior Term Facility or, as
 
applicable, the
 
Senior RCF.
53
7
REPAYMENT
Subject to
 
the terms
 
of this
 
Agreement, each
 
Borrower shall repay
 
all Loans
 
made to
 
it under
 
a
Senior Facility Agreement to which it is a party in full, in the amounts and
 
on the dates specified
in
 
that
 
Senior
 
Facility
 
Agreement,
 
and
 
otherwise
 
in
 
accordance
 
with
 
the
 
terms
 
of
 
that
 
Senior
Facility Agreement.
8
PREPAYMENT
 
AND CANCELLATION
8.1
Mandatory prepayment - illegality
If
 
it
 
becomes
 
unlawful
 
in
 
any
 
applicable
 
jurisdiction
 
for
 
a
 
Lender
 
to
 
perform
 
any
 
of
 
its
obligations as contemplated
 
by this Agreement
 
or to fund
 
or maintain its
 
participation in any
Facility -
8.1.1
that
 
Lender
 
shall
 
notify
 
the
 
Facility
 
Agent
 
as
 
soon
 
as
 
reasonably
 
practicable
 
upon
becoming aware of that event;
8.1.2
upon the Facility Agent notifying
 
the Term/RCF
 
Borrower, the Commitments of
 
that
Lender will be immediately cancelled; and
8.1.3
each Borrower
 
shall repay that
 
Lender's participation in
 
the Loans
 
(together with
 
all
other Senior
 
Facility Outstandings due
 
to that
 
Lender) on
 
the last
 
day of
 
the Interest
Period
 
for
 
each
 
Loan occurring
 
after
 
the
 
Facility Agent
 
has
 
notified the
 
Term/RCF
Borrower (provided that if the last day of any
 
such Interest Period for a Loan falls on
a day
 
earlier than
 
the tenth
 
Business Day
 
after delivery
 
of such
 
notice, then
 
the relevant
Borrower shall make such repayment by no later than
 
such tenth Business Day) or,
 
if
earlier, the
 
date specified by
 
the Lender
 
in the
 
notice delivered to
 
the Facility
 
Agent
(being no earlier than the last day of any applicable grace period permitted
 
by law).
8.2
Mandatory prepayment - sanctions
8.2.1
If any member of the Group or any Security Provider -
8.2.1.1
is or becomes a Sanctioned Entity;
8.2.1.2
participates in any manner in any Sanctioned Transaction;
8.2.1.3
contravenes any Sanctions, or it is targeted under any Sanctions,
each Obligor
 
shall notify
 
the Facility
 
Agent promptly
 
upon becoming
 
aware of
 
that
event (unless
 
that Obligor
 
is aware
 
that a
 
notification has
 
already been
 
provided by
another Obligor).
54
8.2.2
If any event contemplated by clause
 
occurs, the following shall apply -
8.2.2.1
upon the
 
Facility Agent
 
receiving a
 
notice from
 
an Obligor
 
under clause
 
or a similar
 
notice from any
 
Finance Party,
 
it shall notify
 
the Lenders as
soon as reasonably practicable;
8.2.2.2
a Lender shall not be obliged to fund any Utilisation;
8.2.2.3
if
 
a
 
Lender
 
so
 
requires,
 
the
 
Facility
 
Agent
 
shall
 
immediately
 
cancel
 
the
Commitments of that
 
Lender and declare
 
the participation of
 
that Lender in
 
all
outstanding Loans,
 
together with
 
all other
 
Senior Facility
 
Outstandings due
 
to
that Lender
 
due and payable,
 
whereupon the Commitments
 
of that
 
Lender will
be cancelled immediately
 
and all such
 
outstanding amounts
 
will become due
 
and
payable on the
 
last day
 
of the
 
Interest Period for
 
each Loan
 
occurring after the
Facility Agent has so notified the Term/RCF Borrower (provided that if
 
the last
day of
 
any such
 
Interest Period
 
for a
 
Loan falls
 
on a
 
day earlier
 
than the
 
tenth
Business Day after
 
delivery of such
 
notice, then the
 
Term/RCF
 
Borrower shall
procure that such repayment is
 
made by no later
 
than such tenth Business Day)
or,
 
if
 
earlier,
 
the
 
date
 
specified by
 
the
 
Facility
 
Agent in
 
that
 
notice (being
 
no
earlier than the last day of any
 
applicable grace period permitted by
 
law or other
legal obligation of any Finance Party).
8.3
Mandatory prepayment - change of control or transfer of business
8.3.1
If at any time –
 
8.3.1.1
prior
 
to
 
the
 
date
 
on
 
which the
 
Net Debt
 
to
 
EBITDA Ratio
 
has
 
been less
 
than
1.75x
 
for
 
two
 
consecutive
 
Measurement
 
Periods,
 
VCP
 
Investment
 
Fund
 
and
VCP
 
Investment
 
Portfolios, collectively,
 
do
 
not,
 
or
 
cease
 
to,
 
hold
 
legally
 
and
beneficially,
 
and have
 
the right
 
to vote
 
as they
 
see fit
 
7.5% of
 
the issued
 
share
capital of Holdco;
8.3.1.2
prior
 
to
 
the
 
date
 
on
 
which the
 
Net Debt
 
to
 
EBITDA Ratio
 
has
 
been less
 
than
1.75x
 
for
 
two
 
consecutive
 
Measurement
 
Periods,
 
VCP
 
Investment
 
Fund
 
and
VCP Investment
 
Portfolios collectively
 
Dispose of
 
50% or
 
more of
 
the shares
which they hold in Holdco as at the Signature Date;
8.3.1.3
prior
 
to
 
the
 
date
 
on
 
which the
 
Net Debt
 
to
 
EBITDA Ratio
 
has
 
been less
 
than
1.75x
 
for
 
two
 
consecutive
 
Measurement
 
Periods,
 
VCP
 
Investment
 
Fund
 
and
55
VCP Investment Portfolios cease to be able to appoint a director to the board of
directors of Holdco;
8.3.1.4
if,
 
without
 
the
 
prior
 
written
 
consent
 
of
 
the
 
Facility
 
Agent
 
(acting
 
on
 
the
instructions
 
of
 
the
 
Majority Lenders),
 
4
 
or more
 
of
 
Ali
 
Mazanderani, Lincoln
Mali, Daniel
 
Smith, Steven
 
Heilbron, Naeem
 
E. Kola,
 
Martin Wright,
 
George
Roussos,
 
Paul
 
Kent
 
and
 
Basie
 
Kok
 
cease
 
to
 
be
 
employed
 
by
 
Holdco
 
or
 
any
member of the Covenant Group during the period from the Signature Date until
the Discharge Date;
8.3.1.5
any person or group of persons directly or indirectly gains Control of Holdco;
8.3.1.6
the
 
shares of
 
common stock
 
of
 
Holdco
 
are
 
delisted
 
from the
 
NASDAQ stock
market or the trade in
 
those shares is suspended
 
for more than three trading
 
days
(other
 
than
 
by
 
reason
 
of
 
a
 
general
 
suspension
 
of
 
trading
 
in
 
securities
 
by
 
the
NASDAQ stock market);
8.3.1.7
Holdco does not,
 
or ceases to,
 
hold legally and
 
beneficially,
 
and have the
 
right
to
 
vote
 
as
 
it
 
sees
 
fit,
 
directly,
 
100%
 
of
 
the
 
issued
 
share
 
capital
 
of
 
Term/RCF
Borrower, or otherwise ceases to Control the Term/RCF Borrower;
8.3.1.8
the Term/RCF Borrower
 
does not,
 
or ceases
 
to, hold
 
legally and
 
beneficially, and
have the
 
right to
 
vote as
 
it seems
 
fit, directly
 
or indirectly,
 
100% of
 
the issued
share capital of any Obligor (other than Holdco), or otherwise ceases to Control
any other Obligor (other than Holdco);
8.3.1.9
there is one
 
or more sales
 
(whether in a
 
single transaction or a
 
series of related
transactions) over the term of this Agreement of assets of one or more members
of the Covenant
 
Group associated
 
with any
 
operating division
 
or business
 
which,
on
 
a
 
cumulative
 
basis
 
taking
 
account
 
of
 
each
 
such
 
asset's
 
Rand
 
contribution
(direct or indirect) to total assets or Consolidated EBITDA of the
 
Group for the
Measurement Period most recently
 
ended prior to
 
its sale, aggregate
 
more than
25%
 
of
 
total
 
assets
 
or
 
Consolidated
 
EBITDA
 
of
 
the
 
Covenant
 
Group
 
for
 
the
Measurement Period most recently ended,
(each
 
a
Control
 
Event
)
 
the
 
Term/RCF
 
Borrower shall
 
promptly
 
notify the
 
Facility
Agent upon becoming aware of that Control Event, and the following
 
shall apply -
8.3.1.10
a Lender shall not be obliged to fund any Utilisation; and
56
8.3.1.11
if a Lender so requires by delivery of
 
a notice to the Facility Agent to that
 
effect
within 30 Business
 
Days of being
 
notified by
 
the Facility
 
Agent that a
 
Control
Event
 
has
 
occurred,
 
the
 
Facility
 
Agent
 
shall,
 
by
 
notice
 
to
 
the
 
Term/RCF
Borrower, immediately cancel the Commitments of
 
that Lender and declare the
participation
 
of
 
that
 
Lender
 
in
 
all
 
outstanding
 
Loans,
 
together
 
with
 
all
 
other
Senior
 
Facility
 
Outstandings due
 
to
 
that
 
Lender
 
due and
 
payable
 
on
 
the
 
tenth
Business
 
Day
 
following
 
delivery
 
of
 
that
 
notice,
 
whereupon
 
the
 
Available
Commitments
 
of
 
that
 
Lender
 
(as
 
well
 
as
 
any
 
WCF
 
Commitment
 
and
 
any
WesBank Commitment)
 
will be cancelled immediately and all such outstanding
amounts will become due and
 
payable by no later than
 
such tenth Business Day.
8.4
Mandatory prepayment - material disposal and insurance proceeds
In this Agreement -
8.4.1
Excluded Insurance
 
Proceeds
 
means Insurance
 
Proceeds received
 
by a
 
member of
the Covenant Group (other than an Excluded Subsidiary)
 
-
8.4.1.1
which are,
 
or are to
 
be, applied to
 
meet a
 
third party liability
 
claim or to
 
cover
operating losses (including business interruption losses) in
 
respect of which the
relevant Insurance claim was made;
8.4.1.2
which are in an amount per claim which is
 
R30,000,000 or less and, when taken
together with the
 
value of any
 
other claims made
 
by members of
 
the Covenant
Group (other than
 
any Excluded Subsidiaries)
 
during the term
 
of this Agreement
except
 
for
 
those
 
insurance
 
proceeds
 
contemplated
 
in
 
clause
 
above
 
and
clause
 
below, are R30,000,000 or less; or
8.4.1.3
which, when taken together with
 
the amount of Insurance Proceeds
 
in respect of
any
 
other
 
claims
 
made
 
by
 
members
 
of
 
the
 
Covenant
 
Group
 
(other
 
than
 
any
Excluded
 
Subsidiaries)
 
during
 
the
 
term
 
of
 
this
 
Agreement
 
except
 
for
 
those
proceeds contemplated in clause
 
above, are more than R30,000,000, but
only to the extent that, under the authority of a
 
resolution of the directors of the
relevant member of the Covenant Group, adopted
 
and passed within 30 days of
receipt of
 
those Insurance
 
Proceeds, they
 
are to
 
be or
 
are contractually
 
committed
to be applied (and are then so
 
applied), within 90 days of the date
 
of receipt (or
such longer period as the Facility Agent may
 
agree in writing), in reinstating or
replacing (on a like for
 
like basis) any asset, or
 
in defraying the loss or
 
liability
to which the claim relates;
57
8.4.2
Insurance Proceeds
 
means the
 
proceeds of
 
a claim
 
under any
 
contract of
 
Insurance
maintained by or
 
which may be
 
claimed by a
 
member of the
 
Covenant Group (other
than an
 
Excluded Subsidiary),
 
after deducting
 
the reasonable,
 
properly evidenced
 
costs
and expenses
 
incurred by
 
members of
 
the Covenant
 
Group (other
 
than an
 
Excluded
Subsidiary
 
)
 
to
 
persons
 
who
 
are
 
not
 
members
 
of
 
the
 
Covenant
 
Group
 
directly
 
in
connection with the recovery of that claim;
8.4.3
Material
 
Insurance
 
Proceeds
 
means
 
Insurance
 
Proceeds
 
other
 
than
 
Excluded
Insurance Proceeds; and
8.4.4
Mobikwik Disposal Proceeds
 
means the gross
 
amount of consideration
 
received by
any
 
member
 
of
 
the
 
Group following
 
a
 
Disposal by
 
the
 
Group
 
of
 
any
 
shares
 
and/or
claims held against Mobikwik and/or the Disposal of assets by Mobikwik and -
8.4.4.1
including the amount
 
of any intercompany
 
loan repaid by
 
a person
 
who ceases
to be a member of the Group to continuing members of the Group;
8.4.4.2
treating
 
any
 
amount
 
owing
 
by,
 
or
 
set
 
off
 
by,
 
any
 
purchaser
 
of
 
assets
 
as
consideration received in cash;
8.4.4.3
treating
 
consideration
 
initially
 
received
 
in
 
a
 
form
 
other
 
than
 
cash
 
or
 
such
instruments, as being
 
received when and
 
if that
 
consideration is converted
 
into
cash
 
or
 
such
 
instruments
 
or
 
becomes
 
readily
 
so
 
convertible
 
on
 
reasonable
commercial terms;
8.4.4.4
after deducting
 
Taxes (and amounts
 
reserved in
 
respect of
 
Taxes) paid or
 
payable
as a result of that disposal of those assets in Mobikwik; and
8.4.4.5
after deducting
 
the properly
 
evidenced costs
 
and expenses
 
incurred directly
 
in
connection with that disposal of assets.
8.4.5
the Term/RCF
 
Borrower must
 
notify the
 
Facility Agent
 
within 10
 
Business Days
 
of
the receipt
 
of any
 
Mobikwik Disposal Proceeds
 
or Material
 
Insurance Proceeds by
 
a
member of the Group.
8.4.6
If
 
a
 
member
 
of
 
the
 
Group
 
receives
 
any
 
Material
 
Insurance
 
Proceeds
 
or
 
Mobikwik
Disposal
 
Proceeds,
 
the
 
Term/RCF
 
Borrower
 
shall
 
offer
 
to
 
prepay
 
the
 
Senior
 
Term
Facility Loans and
 
other Senior Term Facility
 
Outstandings and
 
the Senior RCF
 
Loans
and
 
other
 
Senior
 
RCF
 
Outstandings,
 
and
 
cancel
 
Available
 
Commitments
 
under
 
the
Senior RCF, in
 
an amount equal to the balance of those Mobikwik Disposal Proceeds
or Material Insurance
 
Proceeds, and procure
 
that the Mobikwik
 
Disposal Proceeds
 
and
58
Material Insurance Proceeds are applied to discharge any payments and
 
cancellations
required to
 
be made as
 
a result
 
of an
 
acceptance of any
 
such offer,
 
all in
 
accordance
with the requirements of clause
 
(Prepayment Offers and Priorities).
8.5
Voluntary prepayment
The Term/RCF Borrower may,
 
if the Term/RCF Borrower has given the Facility Agent not
less than 5 Business Days' prior notice, prepay any Senior Term
 
Facility Loan, Senior RCF
Loan or other amount utilised under
 
a Senior Term
 
Facility or the Senior RCF at
 
any time,
in whole
 
or in
 
part. A
 
prepayment of
 
part of
 
a Senior
 
Term
 
Facility Loan
 
or Senior
 
RCF
Loan
 
must
 
be
 
in
 
a
 
minimum
 
amount
 
of
 
ZAR10,000,000
 
and
 
an
 
integral
 
multiple
 
of
ZAR1,000,000 or such lesser amount as may
 
be outstanding under the Finance Documents
(or such
 
other amount
 
as may
 
be agreed
 
by the
 
Facility Agent).
 
The Borrower
 
may,
 
in its
discretion, elect whether to prepay any
 
Senior Term Facility Loan or any Senior RCF Loan.
 
8.6
Voluntary cancellation
8.6.1
The Term/RCF Borrower may,
 
by giving the Facility Agent not less than 10 Business
Days' prior notice (or such
 
shorter period as the Facility
 
Agent may agree in writing)
cancel
 
an
 
Available
 
Facility under
 
the
 
Senior Term
 
Facility,
 
in
 
whole or
 
in
 
part. A
partial cancellation
 
of any
 
such Available
 
Facility must be
 
in a
 
minimum amount of
ZAR10,000,000 and
 
an integral
 
multiple of
 
ZAR1,000,000 or,
 
if less,
 
the Available
Facility applicable at that time.
8.6.2
Any
 
partial
 
cancellation
 
of
 
an
 
Available
 
Facility
 
under
 
this
 
clause
 
must
 
be
 
applied
against the Commitment of each Lender under the relevant Senior Facility
pro rata
.
8.6.3
A Working Capital Facility may be cancelled as provided in the WCF Documents.
8.6.4
A
WesBank Facility may be cancelled as provided in the WesBank Agreement.
 
8.7
Cancellation and prepayment of a single Lender on a change of costs
8.7.1
If -
8.7.1.1
any sum payable to any
 
Lender by an Obligor is required
 
to be increased under
clause
 
(Tax gross-up); or
8.7.1.2
any Lender
 
claims indemnification from
 
the Term/RCF
 
Borrower or
 
any other
Obligor under clause
 
(Tax indemnity) or clause
 
(Changes in Costs),
59
the Term/RCF
 
Borrower may,
 
whilst the circumstance giving
 
rise to the requirement
for
 
that
 
increase
 
or
 
indemnification
 
continues,
 
give
 
the
 
Facility
 
Agent
 
notice
 
of
cancellation
 
of
 
the
 
Commitments
 
of
 
that
 
Lender
 
and
 
its
 
intention
 
to
 
procure
 
the
repayment of that Lender's participation in the Loans.
8.7.2
On
 
receipt
 
of
 
a
 
notice
 
of
 
cancellation
 
referred
 
to
 
in
 
clause
,
 
the
Commitments of that Lender shall immediately be cancelled and reduced
 
to zero.
8.7.3
On
 
the
 
last
 
day
 
of
 
each
 
Interest
 
Period
 
in
 
relation
 
to
 
a
 
Loan
 
which
 
ends
 
after
 
the
Term/RCF
 
Borrower has given
 
notice of cancellation and/or
 
repayment under clause
 
(or earlier, subject to the payment of
 
any Break Costs), each Borrower to
which a Utilisation
 
is outstanding
 
shall repay
 
that Lender's participation
 
in the relevant
Utilisations together with
 
all other
 
Senior Facility Outstandings
 
owed to that
 
Lender
under the relevant Facilities.
8.8
Re-borrowing and reinstatement
8.8.1
No
 
amount
 
of
 
a
 
Senior
 
Term
 
Facility
 
Loan
 
paid,
 
repaid
 
or
 
prepaid
 
under
 
this
Agreement
 
or
 
the
 
Senior
 
Term
 
Facility
 
Agreement
 
may
 
be
 
re-borrowed
 
under
 
the
Senior Term Facility Agreement.
8.8.2
Unless
 
a
 
contrary
 
indication
 
appears
 
in
 
this
 
Agreement,
 
the
 
amount
 
of
 
any
 
Loan
voluntarily
 
prepaid
 
under
 
the
 
Senior
 
RCF
 
pursuant
 
to
 
clause
 
(Voluntary
prepayment) may be re-borrowed on the terms of the Senior RCF
 
Agreement.
8.8.3
Unless a contrary indication appears in this Agreement, the amount of any Loan paid,
repaid or prepaid
 
under a Working Capital
 
Facility, may be re-borrowed
 
subject to and
in accordance with the terms of the relevant WCF Documents.
8.8.4
No
 
amount
 
of
 
the
 
Total
 
Commitments
 
cancelled
 
under
 
this
 
Agreement or
 
a
 
Senior
Facility Agreement may
 
be reinstated
 
other than
 
Total
 
Senior RCF
 
Commitments in
accordance with the provisions of clause
 
(Senior RCF).
8.9
Application of partial prepayments
Any amount to
 
be applied in
 
prepayment of Senior
 
Term
 
Facility Loans (and
 
other Senior
Term Facility
 
Outstandings) or Senior RCF Loans (and other Senior
 
RCF Outstandings) in
accordance with this Agreement or a Senior Facility Agreement -
8.9.1
in
 
respect of
 
a Senior
 
Term
 
Facility,
 
shall be
 
applied in
 
or
 
towards discharging
 
the
participation of
 
Lenders in
 
Loans and
 
other Senior
 
Facility Outstandings
 
under that
60
Senior Term Facility in
 
each Lender's Pro
 
Rata Share
 
(and for purposes
 
of determining
its
 
Pro
 
Rata
 
Share
 
the
 
provisions
 
of
 
clause
 
above
 
shall
 
be
 
applied
mutatis
mutandis
);
8.9.2
in respect of voluntary prepayments in relation to the
 
Senior RCF, shall
 
be applied in
or towards discharging the participation of Lenders
 
in Loans and other Senior Facility
Outstandings
 
under
 
the
 
Senior
 
RCF
in
 
each
 
such
 
Lender's
 
Pro
 
Rata
 
Share
 
(and
 
for
purposes of determining its Pro
 
Rata Share the provisions of
 
clause
 
above shall
be applied
mutatis mutandis
);
 
8.9.3
in respect of any
 
mandatory prepayment of Senior
 
RCF, shall be applied in or towards
discharging
 
the
 
participation
 
of
 
Lenders
 
in
 
Loans
 
and
 
other
 
Senior
 
Facility
Outstandings under the
 
Senior RCF and
 
a cancellation of
 
the RCF
 
Commitments,
 
in
each such Lender's
 
Pro Rata Share
 
(and for purposes
 
of determining its
 
Pro Rata Share
the provisions of clause
 
above shall be applied
mutatis mutandis
); and
8.9.4
in respect of any mandatory prepayment of Senior RCF
 
Loans made to the Lenders in
accordance
 
with
 
the
 
provisions
 
of
 
clause
 
(Cure
 
Amounts
 
-
 
mandatory
prepayment), shall
 
be applied
 
in prepayment
 
of the Lenders'
 
participation in
 
Loans and
other Senior
 
Facility Outstandings
 
under the
 
Senior RCF
 
and a
 
cancellation of
 
the RCF
Commitments, in each such Lender's
 
Pro Rata Share (and for purposes
 
of determining
its
 
Pro
 
Rata
 
Share
 
the
 
provisions
 
of
 
clause
 
above
 
shall
 
be
 
applied
mutatis
mutandis
),,
except, in respect of clauses
 
and
 
above, for a prepayment which
 
is required to be
made to
 
a particular
 
Lender or
 
Lenders under this
 
clause
 
or under
 
clause
 
(Prepayment
Offers and Priorities).
8.10
Other provisions
8.10.1
If
 
the
 
Facility
 
Agent
 
receives
 
any
 
notice
 
of
 
prepayment
 
or
 
cancellation
 
under
 
this
clause
 
or a
 
Senior Facility
 
Agreement, or
 
an offer
 
of prepayment
 
under clause
(Initial Prepayment
 
Offers), it shall
 
forward a copy
 
of that
 
notice as soon
 
as reasonably
practicable to the Term/RCF Borrower or the affected Finance Parties, as appropriate.
8.10.2
Any notice
 
of
 
prepayment or
 
cancellation given
 
by a
 
Party
 
under this
 
clause
 
or a
Senior
 
Facility
 
Agreement,
 
or
 
an
 
offer
 
of
 
prepayment
 
under
 
clause
 
(Initial
Prepayment Offers), shall be
 
irrevocable and, unless a
 
contrary indication appears
 
in a
Finance Document,
 
shall specify
 
the date
 
or dates
 
upon which
 
the relevant
 
cancellation
or prepayment is to be made and the amount of that cancellation or
 
prepayment.
61
8.10.3
Except as
 
expressly otherwise
 
provided in
 
this clause
 
or a
 
Senior Facility
 
Agreement,
any prepayment shall
 
be made together
 
with accrued interest
 
on the amount
 
prepaid,
without premium
 
or
 
penalty except
 
for any
 
Break Costs,
 
Break Gains
 
or applicable
Refinancing
 
Penalties
 
which
 
arise,
 
as
 
a
 
result
 
of
 
such
 
prepayment
 
or
 
as
 
may
 
be
otherwise provided in the applicable Senior Facility Agreement.
8.10.4
No Borrower
 
shall pay,
 
repay or
 
prepay all
 
or any
 
part of
 
the Loans
 
or cancel
 
all or
any part of
 
the Commitments except
 
at the times
 
and in the
 
manner expressly provided
for in this Agreement and the applicable Senior Facility Agreement.
8.10.5
The Facility Agent may agree a shorter notice period for a voluntary prepayment or a
voluntary cancellation under a Senior Facility.
8.11
Refinancing
 
Subject to
 
the Further
 
Rights Letter,
 
the Term/RCF
 
Borrower may
 
prepay (or
 
procure the
prepayment of) any Senior
 
Term Facility Loan and other Senior Term Facility Outstandings
and/or any Senior
 
RCF Loan and
 
other Senior RCF
 
Outstandings from
 
amounts raised
 
under
a Refinancing, on
 
the condition that
 
all other Senior
 
Term
 
Facility Loans and
 
other Senior
Term Facility
 
Outstandings and Senior RCF Loans and other Senior RCF Outstandings are
prepaid in full at the same time and the Total Senior Term
 
Facility Commitments and Total
Senior RCF Commitments are cancelled and reduced to zero.
9
PREPAYMENT
 
OFFERS AND PRIORITIES
The provisions of this
 
clause
 
shall apply to all
 
amounts that are required
 
to be offered
 
towards
the prepayment of the Senior Term Facility Loans (and other Senior Term
 
Facility Outstandings)
and
 
Senior
 
RCF
 
Loans
 
(and
 
other
 
Senior
 
RCF
 
Outstandings),
 
and
 
cancellation
 
of
 
Available
Commitments under the
 
Senior RCF,
 
pursuant to clauses
 
(Mandatory prepayment -
 
material
disposal and insurance proceeds).
9.1
Initial Prepayment Offers
9.1.1
If a member
 
of the Group
 
receives any amount
 
of Mobikwik Disposal
 
Proceeds and/or
a member
 
of the
 
Covenant Group
 
(other than
 
an Excluded
 
Subsidiary) receives
 
any
Material Insurance
 
Proceeds (the
Distributable Balance
), the
 
Term/RCF
 
Borrower,
by way
 
of a
 
notice (an
Initial Offer
 
Notice
) delivered to
 
the Facility
 
Agent no
 
later
than
 
10
 
Business
 
Days
 
after
 
receipt
 
of
 
those
 
Mobikwik
 
Disposal
 
Proceeds
 
and/or
Material Insurance Proceeds, shall offer (an
Initial Prepayment Offer
) to -
62
9.1.1.1
pay and
 
discharge the
 
participation of
 
each Lender
 
in Senior
 
Term Facility Loans
(and other Senior
 
Term Facility Outstandings) that remain
 
outstanding under the
Senior Term Facilities; and
9.1.1.2
pay and
 
discharge the
 
participation of
 
each Lender
 
in Senior
 
RCF Loans
 
(and
other Senior RCF Outstandings)
 
that remain outstanding under
 
the Senior RCF
and/or cancel Available Commitments in relation to the Senior RCF,
in
 
each
 
case,
 
for
 
an
 
amount
 
determined
 
in
 
accordance
 
with
 
clause
 
below
 
(in
respect of each such Lender, its
Distributable Share
), and such notice shall stipulate
how
 
the
 
Term/RCF
 
Borrower
 
intends
 
to
 
apply
 
any
 
remaining
 
balance
 
(or
 
any
 
part
thereof),
 
as
 
contemplated
 
in
 
clause
 
(
Remaining
 
amount
 
of
 
Distributable
Balance
).
9.1.2
Each Lender's
Distributable Share
 
shall be determined as follows -
9.1.2.1
the
 
Distributable
 
Balance
 
will
 
be
 
deemed
 
to
 
be
 
offered
 
by
 
the
 
Term/RCF
Borrower
 
in
 
prepayment
 
of
 
all
 
Senior
 
Term
 
Facility
 
Loans
 
(and
 
other
 
Senior
Term Facility Outstandings), and
 
in prepayment
 
and/or cancellation
 
of all
 
Senior
RCF Loans (and other
 
Senior RCF Outstandings)
 
and Available Commitment in
relation to the
 
Senior RCF,
 
in proportion to
 
the Senior Term
 
Facilities' and the
Senior RCF's Senior Facility Pro Rata Share (defined below);
9.1.2.2
in relation to the Senior Term
 
Facility, a Lender's Distributable Share
 
under the
Senior Term
 
Facility (in respect of
 
each such Lender,
 
its
Pro Rata Share
) will
be -
9.1.2.2.1
if at
 
any relevant
 
time there
 
are no
 
Senior Term Facility
 
Outstandings under
the
 
Senior
 
Term
 
Facility,
 
its
pro
 
rata
proportion
of
 
the
 
relevant
 
Senior
Facility Pro Rata
 
Share determined
 
by applying
 
that Lender's
 
Commitment
under the
 
Senior Term
 
Facility to
 
all the
 
Commitments under
 
the Senior
Term Facility; or
 
9.1.2.2.2
at any other
 
time, its
pro rata
proportion
of the relevant
 
Senior Facility Pro
Rata
 
Share
 
determined
 
by
 
applying
 
that
 
Lender's
 
Senior
 
Term
 
Facility
Outstandings
 
under
 
that
 
Senior
 
Term
 
Facility
 
to
 
all
 
the
 
Senior
 
Term
Facility Outstandings under the Senior Term Facility; and
9.1.2.3
in relation to the Senior RCF,
 
a Senior RCF Lender's Distributable Share under
the Senior RCF (in respect of each such Lender, its
Pro Rata Share
) will be its
63
pro rata
proportion
of the relevant Senior
 
Facility Pro Rata
 
Share determined by
applying
 
that
 
Lender's
 
Senior
 
RCF
 
Commitment
 
to
 
all
 
the
 
Total
 
Senior
 
RCF
Commitments.
9.1.3
For purposes of this
 
clause
,
Senior Facility Pro Rata Share
, at any relevant
 
time,
in respect of
 
the Senior Term Facility or
 
the Senior RCF
 
(a
Relevant Senior Facility
),
means the proportion (expressed as a percentage) borne by -
9.1.3.1
the aggregate amount, at that time, of (i) the Senior Facility Outstandings under
the
 
Relevant
 
Senior
 
Facility,
 
and
 
(ii)
 
the
 
Available
 
Commitment
 
under
 
the
Relevant Senior Facility; to
9.1.3.2
the aggregate amount, at that time, of (i) the Senior Facility Outstandings under
all
 
Senior
 
Term
 
Facilities
 
and
 
the
 
Senior
 
RCF,
 
and
 
(ii)
 
the
 
Available
Commitment under the Senior RCF.
 
9.2
Acceptances and Additional Prepayment Offers
9.2.1
If a
 
Lender wishes
 
to accept
 
an Initial
 
Prepayment Offer
 
or any
 
part thereof,
 
it must
advise the Facility Agent of its acceptance and provide to it the following
 
details -
9.2.1.1
the amount of its available Distributable
 
Share which it requires to be
 
paid to it
and/or,
 
as
 
applicable,
 
applied
 
in
 
cancellation
 
of
 
its
 
Available
 
Commitments
under the Senior RCF (an
Accepted Prepayment Amount
); and
9.2.1.2
the
 
maximum
 
amount
 
(the
Additional
 
Acceptances Limit
)
 
of
 
any
 
additional
part of
 
the
 
Distributable Balance
 
it would
 
be prepared
 
to
 
accept (if
 
any) in
 
or
towards payment
 
and discharge
 
of its
 
participation in
 
Senior Term Facility
 
Loans
(and other Senior
 
Term Facility Outstandings) that remain
 
outstanding under the
Senior
 
Term
 
Facilities
 
and
 
Senior
 
RCF
 
Loans
 
(and
 
other
 
Senior
 
RCF
Outstandings) that remain
 
outstanding under the
 
Senior RCF,
 
in circumstances
where
 
one or
 
more
 
Lenders were
 
to
 
decline
 
the
 
applicable Initial
 
Prepayment
Offers made to them,
9.2.2
by way of a notice delivered to the Facility Agent no
 
later than 5 Business Days after
receipt
 
of
 
any
 
applicable
 
Initial Offer
 
Notice
 
(each
 
such
 
Lender
 
which
 
accepts any
applicable Initial
 
Prepayment Offer
 
for the
 
amount of
 
its Distributable
 
Share or
 
any
part thereof,
 
being a
Participating Lender
).
 
If a
 
Lender fails
 
to
 
advise the
 
Facility
Agent of its acceptance
 
of an Initial Prepayment
 
Offer, as
 
required under this clause,
then it shall be deemed to have accepted the Initial Prepayment Offer in full.
64
9.2.3
The Facility Agent will advise the Term/RCF Borrower and the Lenders, by way of
 
a
notice (an
Acceptances Confirmation
) delivered to
 
each of
 
them within 2
 
Business
Days following
 
expiry of
 
the 5
 
Business Day
 
period within
 
which any
 
applicable Initial
Prepayment Offers may be accepted, of the following -
9.2.3.1
the Initial Prepayment Offers accepted
 
(including offers that are deemed
 
to have
been accepted)
 
and declined
 
and the
 
aggregate amount
 
of Distributable
 
Shares
for which Initial
 
Prepayment Offers have
 
been declined (the
Declined Balance
);
and
9.2.3.2
in
 
relation
 
to
 
each
 
Participating
 
Lender,
 
that
 
portion
 
of
 
the
 
Declined
 
Balance
allocable to it (the
Additional Prepayment Amount
), being its Pro Rata Share
(and for
 
purposes of
 
determining its
 
Pro Rata
 
Share the
 
provisions of
 
clause
above shall
 
be applied
mutatis mutandis
except that (i)
 
reference in that
 
clause
to Distributable Share
 
shall be deemed
 
to be a reference
 
to a Lender's Additional
Prepayment Amount, (ii) reference in
 
that clause to Distributable
 
Balance shall
be deemed to be a reference to the amount of the Declined
 
Balance and
(iii)
it is
assumed that the
 
Senior Term
 
Facility Outstandings, Senior RCF
 
Outstandings
and Senior RCF
 
Commitments of the
 
Lenders declining the
 
Initial Prepayment
Offer
 
are
 
nil)
 
of
 
the
 
Declined
 
Balance
 
limited
 
to
 
its
 
Additional
 
Acceptances
Limit.
9.2.4
Upon delivery of an Acceptances Confirmation -
9.2.4.1
the
 
Term/RCF
 
Borrower
 
will
 
be
 
irrevocably
 
deemed
 
to
 
have
 
offered
 
(the
Additional
 
Prepayment
 
Offer
)
 
to
 
pay
 
and
 
discharge
 
to
 
each
 
Participating
Lender (in addition to amounts accepted
 
by it pursuant to clause
) its
participation
 
in
 
Senior
 
Term
 
Facility
 
Loans
 
(and
 
other
 
Senior
 
Term
 
Facility
Outstandings)
 
that
 
remain
 
outstanding
 
and
 
the
 
Senior
 
RCF
 
Loans
 
(and
 
other
Senior RCF Outstandings) that remain outstanding; and
9.2.4.2
each
 
Participating
 
Lender
 
will
 
be
 
deemed
 
to
 
have
 
accepted
 
the
 
Additional
Prepayment Offer,
9.2.5
in each case, for an amount equal to the Additional Prepayment Amount of each such
Lender.
9.3
Application of payment
65
Following a receipt
 
of any Mobikwik
 
Disposal Proceeds
 
and/or Material
 
Insurance Proceeds
and delivery
 
of an
 
Acceptances Confirmation
 
to the
 
Term/RCF
 
Borrower,
 
the
 
Term/RCF
Borrower shall pay
 
to the Facility
 
Agent, for the
 
account of each
 
Participating Lender, the
Accepted
 
Prepayment
 
Amount
 
and
 
the
 
Additional
 
Prepayment
 
Amount
 
(if
 
any)
 
of
 
that
Participating Lender, in full -
9.3.1
on the Interest Payment Date immediately following-
9.3.1.1
receipt of the Mobikwik Disposal Proceeds;
 
9.3.1.2
expiry of
 
the 30-day
 
period referred to
 
in the
 
definition of
 
Excluded Insurance
Proceeds in clause
 
(Mandatory prepayment
 
- material disposal
 
and insurance
proceeds)
 
(the
30-Day
 
Period
)
 
if
 
a
 
resolution
 
of
 
the
 
directors
 
of
 
the
 
relevant
member of the Covenant Group has not been adopted and passed within the 30-
Day Period; or
9.3.1.3
expiry
 
of
 
where
 
a
 
resolution
 
of
 
the
 
directors
 
of
 
the
 
relevant
 
member
 
of
 
the
Covenant Group has been adopted and
 
passed within the 30-Day Period,
 
the 90-
day period
 
referred to
 
in the
 
definitions of
 
Excluded Insurance
 
Proceeds in
 
clause
 
(Mandatory prepayment
 
- material
 
disposal and
 
insurance proceeds)
 
if the
relevant Material Insurance
 
Proceeds have not
 
been applied within
 
that 90-day
period; or
9.3.2
if an Event of Default is continuing, no later
 
than the first Business Day following the
date
 
on
 
which
 
the
 
Facility
 
Agent
 
delivers
 
an
 
Acceptances
 
Confirmation
 
to
 
the
Term/RCF Borrower,
and
 
in
 
respect
 
of
 
any
 
Participating
 
Lender
 
in
 
relation
 
to
 
the
 
Senior
 
RCF,
 
its
 
Accepted
Prepayment Amount and the
 
Additional Prepayment Amount
 
(if any) shall be applied
 
in the
following order -
9.3.2.1
firstly, in prepayment of its participation in
 
Senior RCF Loans and other Senior
RCF
 
Outstandings,
 
with
 
a
 
corresponding
 
cancellation
 
of
 
RCF
 
Commitments;
and
9.3.2.2
secondly
 
and
 
without
 
double
 
counting,
 
in
 
cancellation
 
of
 
its
 
Available
Commitments under the Senior RCF.
9.4
Remaining amount of Distributable Balance
66
If, after having implemented the provisions of clauses
 
and
, the full amount of
any Distributable Balance offered to Lenders is not required to be applied in or towards the
payment, repayment
 
or prepayment
 
of Senior
 
Term
 
Facility Loans
 
and other
 
Senior Term
Facility
 
Outstandings
 
and
 
Senior
 
RCF
 
Loans
 
and
 
other
 
Senior
 
RCF
 
Outstandings,
 
any
remaining balance
 
(or any
 
part thereof)
 
(the
Remaining Distributable
 
Balance
) shall
 
be
available for application as follows -
9.4.1
it may
 
be retained
 
in the
 
Covenant Group and
 
used for
 
the general
 
operations of the
members of the Covenant Group; and
9.4.2
it
 
may
 
be
 
used
 
to
 
make
 
a
 
distribution
 
to
 
Holdco
 
subject
 
to
 
the
 
requirements
 
of
clause
 
(Distributions).
10
INTEREST AND INTEREST PERIODS
10.1
Calculation, accrual and payment
All
 
interest
 
on
 
a
 
Loan
 
made
 
to
 
a
 
Borrower
 
under
 
a
 
Senior
 
Facility
 
Agreement
 
shall
 
be
calculated, accrue
 
and be
 
paid by
 
that Borrower
 
for the
 
account of
 
the Lenders
 
under the
relevant Senior Facility in accordance with the terms of that Senior Facility
 
Agreement.
10.2
Interest Periods
The
 
Interest Periods
 
which apply
 
to
 
a
 
Loan or
 
Unpaid Sum
 
made to
 
a Borrower
 
under a
Senior Facility Agreement
 
shall be governed
 
by the terms
 
of that Senior
 
Facility Agreement.
11
CHANGES TO THE CALCULATION OF INTEREST
11.1
Absence of quotations
Subject to
 
clause
, if
 
JIBAR is
 
to be
 
determined by
 
reference to
 
the Reference
Banks but
 
a Reference
 
Bank does
 
not supply a
 
quotation by 12h00
 
on the
 
Quotation Day,
JIBAR
 
shall
 
be
 
determined
 
on
 
the
 
basis
 
of
 
the
 
quotations
 
provided
 
by
 
the
 
remaining
Reference Banks.
11.2
Market disruption
11.2.1
If a Market Disruption Event occurs in relation to a Loan for any Interest
 
Period, then
the rate of interest on each Lender's share of that Loan for the
 
Interest Period shall be
the percentage rate per annum which is the sum of -
11.2.1.1
the Applicable Margin; and
67
11.2.1.2
the highest of the rates notified to
 
the Facility Agent by the relevant Lenders as
soon as practicable
 
and in any
 
event before interest is
 
due to be
 
paid in respect
of that Interest Period,
 
to be that which
 
expresses as a percentage
 
rate per annum
the
 
cost
 
to
 
those
 
Lenders
 
of
 
funding
 
their
 
participation
 
in
 
that
 
Loan
 
from
whatever source(s) they may reasonably select.
11.2.2
In
 
this
 
Agreement
Market
 
Disruption
 
Event
 
means,
 
in
 
relation
 
to
 
a
 
Senior
 
Term
Facility or the Senior RCF -
11.2.2.1
at or about noon
 
on the Quotation
 
Day for the
 
relevant Interest Period
 
the Screen
Rate is not
 
available and none
 
or only one
 
of the Reference
 
Banks supplies a
 
rate
to the Facility Agent to determine JIBAR for the relevant Interest Period;
 
or
11.2.2.2
before close of business in
 
Johannesburg on the
 
Quotation Day for the relevant
Interest
 
Period,
 
the
 
Facility
 
Agent
 
receives
 
notifications
 
from
 
one
 
or
 
more
Lenders whose
 
aggregate participations
 
in Loans
 
under the
 
applicable Facility
exceed 30
 
per cent.
 
of aggregate
 
principal amount
 
of Loans
 
outstanding under
that Senior Facility that -
11.2.2.2.1
the cost to them of funding their
 
participation in that Loan from whatever
source they may reasonably select would
 
be in excess of JIBAR
 
(provided
that
 
the
 
relevant
 
Lenders
 
must
 
first
 
consider
 
funding
 
available
 
in
 
the
Johannesburg
 
Interbank
 
Market
 
prior
 
to
 
considering
 
other
 
sources
 
of
funding);
11.2.2.2.2
the cost to
 
it or them
 
of obtaining matching
 
deposits in the
 
Johannesburg
interbank
 
market
 
would
 
be
 
in
 
excess
 
of
 
JIBAR
 
for
 
the
 
relevant
 
Interest
Period; or
11.2.2.2.3
matching
 
deposits
 
will
 
not
 
be
 
available
 
to
 
them
 
in
 
the
 
Johannesburg
interbank
 
market
 
in
 
the
 
ordinary
 
course
 
of
 
business
 
to
 
fund
 
their
participation in that Loan for the relevant Interest Period.
11.3
Alternative basis of interest or funding
11.3.1
Without prejudice to the generality
 
of clause
, if a Market Disruption
 
Event
occurs
 
and
 
the
 
Facility
 
Agent
 
or
 
the
 
Term/RCF
 
Borrower
 
so
 
requires,
 
the
 
Facility
Agent and
 
the Term/RCF
 
Borrower shall
 
enter into
 
negotiations (for
 
a period
 
of not
more than 30 days,
 
or such longer period
 
as the Facility Agent
 
may agree) with a
 
view
to agreeing a substitute basis for determining the rate of interest.
68
11.3.2
Any
 
alternative
 
basis
 
agreed
 
pursuant
 
to
 
clause
 
shall,
 
with
 
the
 
prior
consent of all the Lenders and the Term/RCF Borrower, be binding on all Parties.
11.4
Replacement of Screen Rate
11.4.1
If a
 
Screen Rate
 
Replacement Event has
 
occurred in
 
relation to
 
the Screen
 
Rate, the
Parties shall enter into negotiations in
 
good faith with a view to
 
agreeing the use of a
Replacement Benchmark in place of that Screen Rate.
11.4.2
Any amendment
 
or
 
waiver which
 
relates to
 
providing for
 
the
 
use of
 
a Replacement
Benchmark and -
11.4.2.1
aligning any provision of any Finance Document to
 
the use of that Replacement
Benchmark;
11.4.2.2
enabling that Replacement Benchmark to
 
be used for the
 
calculation of interest
under this Agreement (including, without limitation, any consequential changes
required to enable
 
that Replacement Benchmark
 
to be used
 
for the purposes
 
of
this Agreement);
11.4.2.3
implementing market conventions applicable to that Replacement Benchmark;
11.4.2.4
providing
 
for
 
appropriate
 
fallback
 
(and
 
market
 
disruption)
 
provisions
 
for
 
that
Replacement Benchmark; or
11.4.2.5
adjusting the pricing to reduce
 
or eliminate, to the
 
extent reasonably practicable,
any
 
transfer
 
of
 
economic
 
value
 
from
 
one
 
Party
 
to
 
another
 
as
 
a
 
result
 
of
 
the
application of
 
that Replacement
 
Benchmark (and
 
if any
 
adjustment or
 
method
for
 
calculating
 
any
 
adjustment
 
has
 
been
 
formally
 
designated,
 
nominated
 
or
recommended
 
by
 
the
 
Relevant
 
Nominating
 
Body,
 
the
 
adjustment
 
shall
 
be
determined on the basis of that designation, nomination or recommendation),
may be made with the consent of the Parties.
12
BREAK COSTS AND BREAK GAINS
12.1
Each
 
Borrower
 
shall, within
 
3
 
Business
 
Days
 
of
 
demand by
 
a
 
Finance Party,
 
pay to
 
that
Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being
repaid or
 
prepaid on
 
a day
 
other than
 
the last
 
day of
 
an Interest
 
Period for
 
that Loan
 
or Unpaid
Sum.
69
12.2
On the condition that no Event of Default
 
is then continuing, a Senior Term Facility Lender
or
 
Senior
 
RCF
 
Lender,
 
as
 
applicable,
 
shall,
 
within
 
10
 
Business
 
Days
 
of
 
demand
 
by
 
the
Term/RCF
 
Borrower,
 
pay
 
to
 
the
 
Term/RCF
 
Borrower
 
the
 
amount
 
of
 
any
 
Break
 
Gains
attributable
 
to
 
all
 
or
 
any
 
part
 
of
 
the
 
participation of
 
that
 
Senior
 
Term
 
Facility
 
Lender
 
or
Senior RCF Lender in a Loan being repaid or prepaid on a day other than the last day of an
Interest Period for that Loan.
12.3
Each Lender shall,
 
as soon as
 
reasonably practicable after
 
a demand by
 
the Facility Agent
(made
 
following
 
receipt
 
by
 
the
 
Facility
 
Agent
 
of
 
a
 
written
 
request
 
from
 
the
 
Term/RCF
Borrower to make
 
such demand),
 
provide a certificate
 
confirming the amount
 
of its
 
Break
Costs or Break Gains (as applicable) for any Interest Period in which
 
they accrue.
13
FEES
13.1
Non-refundable Deal Structuring Fee
The Term/RCF
 
Borrower shall
 
pay to
 
each Original
 
Senior Lender
 
a non-refundable
 
deal
structuring fee in the amount and at the times agreed in a Fee Letter.
13.2
Commitment Fees
13.2.1
The
 
Term/RCF
 
Borrower
 
must
 
pay
 
to
 
the
 
Facility
 
Agent
 
(for
 
the
 
account
 
of
 
each
Senior
 
RCF
 
Lender
 
and
 
each
 
Senior
 
Term
 
Facility
 
Lender,
 
if
 
applicable)
 
a
commitment fee computed
 
at the
 
rate equal to
 
30% of the
 
applicable Margin
 
on that
Senior
 
Term
 
Facility
 
Lender's Available
 
Commitment
 
or
 
that
 
Senior
 
RCF
 
Lender's
Available
 
Commitment
 
(except
 
ignoring
 
for
 
the
 
purpose
 
of
 
determining
 
Available
Commitment
 
in
 
this
 
context
 
the
 
provisions
 
of
 
clause
 
of
 
clause
(Definitions))
 
under
 
the
 
applicable
 
Senior
 
Term
 
Facility
 
or
 
the
 
Senior
 
RCF
 
for
 
the
Availability Period applicable to that Senior Term Facility or the Senior RCF.
13.2.2
The accrued commitment fees accrue daily with effect from the Closing Date
 
and are
payable on each Interest
 
Payment Date which
 
occurs during the
 
relevant period during
which commitment fees apply, on the last day of the relevant Availability Period and,
if cancelled in
 
full, on the
 
cancelled amount of
 
the relevant Lender's
 
Commitment at
the time the cancellation is effective.
13.3
Agency fee
The Term/RCF Borrower shall pay to
 
the Facility Agent (for
 
its own account) an
 
agency fee
in the amount and at the times agreed in a Fee Letter.
70
13.4
Administration fee
The Term/RCF
 
Borrower shall pay
 
to TMF Corporate
 
Services (South Africa)
 
Proprietary
Limited the administration services fees in the amounts and at the times agreed in the letter
by
 
TMF
 
Corporate
 
Services
 
(South
 
Africa)
 
Proprietary
 
Limited,
 
dated
 
24
 
June
 
2024
 
(as
amended from time to time, with the approval of the Facility Agent).
14
TAX GROSS-UP AND INDEMNITIES
14.1
Definitions
14.1.1
In this Agreement -
14.1.2
Protected Party
 
means a Finance Party which is or will be subject to any liability, or
required to make any payment, for or on account of
 
Tax in relation
 
to a sum received
or receivable (or
 
any sum deemed
 
for the purposes
 
of Tax to be
 
received or receivable)
under a Finance Document;
14.1.3
Tax Credit
 
means a credit against, relief or remission for, or repayment of any Tax;
14.1.4
Tax
 
Deduction
 
means a
 
deduction or
 
withholding for
 
or
 
on account
 
of
 
Tax
 
from a
payment under a Finance Document, other than a FATCA
 
Deduction;
14.1.5
Tax Payment
 
means either
 
the increase in
 
a payment made
 
by an Obligor
 
to a Finance
Party under clause
 
or a payment under clause
14.1.6
Unless a
 
contrary indication
 
appears, in
 
this clause
 
a reference
 
to
determines
 
or
determined
 
means
 
a
 
determination
 
made
 
in
 
the
 
absolute
 
discretion
 
of
 
the
 
person
making the determination.
14.2
Tax gross
 
-up
14.2.1
Each Obligor shall make
 
all payments to be
 
made by it free
 
and clear of and
 
without
any Tax Deduction, unless a Tax
 
Deduction is required by law.
14.2.2
The Term/RCF
 
Borrower shall promptly upon
 
becoming aware that an
 
Obligor must
make a
 
Tax
 
Deduction (or
 
that there
 
is any
 
change in
 
the rate
 
or the
 
basis of
 
a Tax
Deduction) notify the Facility Agent accordingly.
 
Similarly, a Lender shall
 
notify the
Facility Agent, as soon as reasonably practicable, on becoming so aware in respect of
a payment payable
 
to that Lender. If
 
the Facility Agent
 
receives such notification
 
from
a Lender it shall notify the Term/RCF Borrower and that Obligor.
71
14.2.3
If a
 
Tax
 
Deduction is
 
required by
 
law to
 
be made
 
by an
 
Obligor,
 
the amount
 
of the
payment due from
 
that Obligor shall
 
be increased to
 
an amount which
 
(after making
any Tax
 
Deduction) leaves an
 
amount equal
 
to the
 
payment which would
 
have been
due if no Tax Deduction had been required.
 
14.2.4
If an Obligor
 
is required to
 
make a
 
Tax
 
Deduction, that Obligor
 
shall make that
 
Tax
Deduction and
 
any payment
 
required in connection
 
with that
 
Tax Deduction within
 
the
time allowed and in the minimum amount required by law.
 
14.2.5
Within
 
thirty
 
days
 
of
 
making
 
either
 
a
 
Tax
 
Deduction
 
or
 
any
 
payment
 
required
 
in
connection
 
with
 
that
 
Tax
 
Deduction,
 
the
 
Obligor
 
making
 
that
 
Tax
 
Deduction
 
shall
deliver to
 
the
 
Facility Agent
 
for the
 
Finance Party
 
entitled to
 
the payment
 
evidence
reasonably satisfactory to that Finance
 
Party that the Tax Deduction has been made or
(as applicable) any appropriate payment paid to the relevant taxing
 
authority.
14.3
Tax indemnity
14.3.1
Each
 
Obligor
 
shall
 
(within
 
three
 
Business
 
Days
 
of
 
demand
 
by
 
the
 
Facility
 
Agent)
indemnify each Protected Party against, and shall
 
pay to a Protected Party an amount
equal to the loss, liability or cost which that Protected Party determines will be or has
been (directly or indirectly) suffered for
 
or on account of Tax
 
by that Protected Party
in respect of a Finance Document.
14.3.2
Clause
 
shall not apply -
14.3.2.1
with respect to
 
any Tax
 
assessed on a
 
Finance Party -
 
(A) under the
 
law of the
jurisdiction
 
in
 
which
 
that
 
Finance
 
Party
 
is
 
incorporated
 
or,
 
if
 
different,
 
the
jurisdiction (or
 
jurisdictions) in
 
which that
 
Finance Party
 
is treated
 
as resident
for tax
 
purposes or
 
(B) under
 
the law
 
of the
 
jurisdiction in
 
which that
 
Finance
Party's facility office
 
is located in
 
respect of amounts
 
received or
 
receivable in
that jurisdiction, if
 
that Tax
 
is imposed on
 
or calculated by
 
reference to the
 
net
income
 
received
 
or
 
receivable
 
(but
 
not
 
any
 
sum
 
deemed
 
to
 
be
 
received
 
or
receivable) by that Finance Party;
14.3.2.2
to the extent a loss, liability or cost is compensated for by an
 
increased payment
under clause
 
(Tax
 
gross-up) or relates
 
to a
 
FATCA
 
Deduction required to
be made by a Party.
14.3.3
A Protected
 
Party making,
 
or intending
 
to make
 
a claim
 
under clause
,
shall notify
 
the Facility
 
Agent as
 
soon as
 
reasonably practicable
 
of the
 
event which
72
will give,
 
or has
 
given, rise
 
to the
 
claim, following
 
which the
 
Facility Agent
 
shall notify
the Term/RCF Borrower or relevant Obligor of such claim.
14.3.4
A Protected
 
Party shall,
 
on receiving
 
a payment
 
from an
 
Obligor under
 
this clause
,
notify the Facility Agent.
14.4
Tax Credit
Subject to
 
clause
 
(Conduct of
 
Business by
 
the Finance
 
Parties), if
 
an Obligor
 
makes a
Tax Payment and the relevant Finance Party determines that -
14.4.1
a Tax Credit is attributable either to an increased payment of which that Tax Payment
forms part, or to that Tax Payment; and
 
14.4.2
that Finance Party has obtained, utilised and retained that Tax Credit,
 
the Finance
 
Party shall
 
pay an
 
amount to
 
that Obligor,
 
as soon
 
as reasonably
 
practicable,
which that Finance Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to be made by the
Obligor.
14.5
Stamp taxes
Each Obligor shall
 
(within three Business
 
Days of demand)
 
indemnify each Finance
 
Party
against, and
 
shall pay
 
to the
 
relevant Finance
 
Party, any cost,
 
loss or
 
liability that
 
the relevant
Finance
 
Party
 
incurs
 
in
 
relation
 
to
 
all
 
stamp
 
duty,
 
registration
 
and
 
other
 
similar
 
Taxes
payable in respect of any Finance Document.
14.6
Value
 
added tax
14.6.1
All amounts
 
set out
 
or expressed
 
to be
 
payable under
 
a Finance
 
Document by
 
any Party
to a Finance Party which
 
(in whole or in part)
 
constitute the consideration
 
for a supply
or supplies for
 
VAT
 
purposes shall be
 
deemed to be
 
exclusive of any
 
VAT
 
which is
chargeable on
 
such supply
 
or supplies,
 
and accordingly, subject
 
to clause
,
if
 
VAT
 
is or
 
becomes chargeable
 
on any
 
supply made
 
by any
 
Finance Party
 
to any
Party under a Finance
 
Document, that Party shall
 
pay to the Finance Party
 
(in addition
to and at the same time as paying any other consideration for such supply) an amount
equal to the
 
amount of such
 
VAT
 
(and such Finance
 
Party shall provide
 
an appropriate
VAT
 
invoice to such Party as soon as reasonably practicable).
14.6.2
If
 
VAT
 
is
 
or
 
becomes
 
chargeable
 
on
 
any
 
supply
 
made
 
by
 
any
 
Finance
 
Party
 
(the
Supplier
) to any other Finance Party (the
Recipient
) under a Finance Document, and
73
any Party other than the Recipient (the
Subject Party
) is required by the terms of any
Finance Document to pay an amount equal to the consideration for such supply to the
Supplier
 
(rather
 
than
 
being
 
required
 
to
 
reimburse
 
the
 
Recipient
 
in
 
respect
 
of
 
that
consideration), such Party
 
shall also pay to
 
the Supplier (in addition
 
to and at the
 
same
time
 
as
 
paying
 
such
 
amount)
 
an
 
amount
 
equal
 
to
 
the
 
amount
 
of
 
such
 
VAT.
 
The
Recipient
 
will
 
promptly
 
pay
 
to
 
the
 
Subject
 
Party
 
an
 
amount
 
equal
 
to
 
any
 
credit
 
or
repayment
 
obtained
 
by
 
the
 
Recipient
 
from
 
the
 
relevant
 
tax
 
authority
 
which
 
the
Recipient reasonably determines is in respect of such VAT.
14.6.3
Notwithstanding anything to the contrary contained in
 
this clause
 
(Value
 
Added
Tax),
 
each Obligor
 
irrevocably and
 
unconditionally appoints
 
the
 
Facility Agent
 
and
each Lender as its representative
 
and agent to, in its
 
name place and stead, and
 
for and
on
 
its
 
behalf,
 
make
 
payment
 
of
 
all
 
expenses
 
referred
 
to
 
in
 
clause
 
(Costs
 
and
Expenses)
 
directly
 
to
 
such
 
third
 
parties
 
as
 
is
 
contemplated
 
in
 
clause
 
(Costs
 
and
Expenses), which
 
amounts shall
 
be immediately
 
due and
 
recoverable from
 
the relevant
Obligor on demand.
14.6.4
Where a
 
Finance Document requires
 
any Party
 
to reimburse
 
or indemnify
 
a Finance
Party for
 
any costs
 
or expenses, that
 
Party shall
 
reimburse or
 
indemnify (as
 
the case
may be) such
 
Finance Party
 
for the full
 
amount of
 
such cost or
 
expense, including
 
such
part thereof as represents VAT,
 
save to the extent that such
 
Finance Party reasonably
determines that
 
it is
 
entitled to
 
credit or repayment
 
in respect
 
of such
 
VAT
 
from the
relevant tax authority.
14.7
FATCA
 
Deduction
 
14.7.1
Each Party may make any
 
FATCA
 
Deduction it is required to
 
make by FATCA,
 
and
any
 
payment
 
required
 
in
 
connection
 
with
 
that
 
FATCA
 
Deduction,
 
and
 
no
 
Party
 
is
required
 
to
 
increase
 
any
 
payment
 
in
 
respect
 
of
 
which
 
it
 
makes
 
such
 
a
 
FATCA
Deduction
 
or
 
otherwise
 
compensate
 
the
 
recipient
 
of
 
the
 
payment
 
for
 
that
 
FATCA
Deduction.
14.7.2
Each Party must, promptly
 
on becoming aware
 
that it must
 
make a FATCA
 
Deduction
(or that there is any change in the rate or the basis of such FATCA
 
Deduction), notify
the Party
 
to whom
 
it is
 
making the
 
payment and,
 
in addition,
 
must notify
 
the Term/RCF
Borrower and
 
the Facility
 
Agent, and
 
the Facility
 
Agent must
 
promptly notify
 
the other
Finance Parties.
 
74
15
CHANGES IN COSTS
15.1
Increased costs
15.1.1
Subject
 
to
 
clause
,
 
the
 
Term/RCF
 
Borrower
 
shall,
 
within three
 
Business
Days of
 
a demand
 
by the
 
Facility Agent,
 
pay for
 
the account
 
of a
 
Finance Party
 
the
amount of any
 
Increased Costs incurred by
 
that Finance Party or
 
any of its
 
Affiliates
as a result of -
15.1.1.1
the introduction
 
of or
 
any change
 
in (or
 
in the
 
interpretation, administration or
application of) any law or regulation;
15.1.1.2
compliance with any law or regulation; or
15.1.1.3
compliance with
 
any aspect
 
of the
 
Consolidated Basel
 
Framework (including
 
any
national
 
regulation
 
which
 
implements
 
the
 
Consolidated
 
Basel
 
Framework)
whether implemented before or after the Signature Date,
including, without limitation, any
 
such law or regulation
 
(including the Consolidated
Basel
 
Framework)
 
concerning
 
capital
 
adequacy
 
requirements,
 
liquid
 
asset
 
holding
requirements, special deposit requirements, prudential limits, reserve
 
assets or Tax.
15.1.2
In this Agreement -
15.1.3
Increased Costs
 
means -
15.1.3.1
a reduction in the
 
rate of return from
 
a Senior Facility or
 
on a Finance Party's
 
(or
its
 
Affiliate's)
 
overall
 
capital
 
(including,
 
without limitation,
 
as
 
a
 
result
 
of
 
any
reduction
 
in
 
the
 
rate of
 
return on
 
capital
 
brought about
 
by more
 
capital being
required to be allocated by such Finance Party);
15.1.3.2
an additional or increased cost; or
15.1.3.3
a reduction of any amount due and payable under any Finance Document,
which is incurred
 
or suffered by
 
a Finance Party
 
or any of
 
its Affiliates to
 
the extent
that
 
it
 
is
 
attributable
 
to
 
that
 
Finance
 
Party
 
having
 
entered
 
into
 
its
 
Commitment
 
or
funding or performing its obligations under any Finance Document;
15.1.4
Basel IV
 
means papers prepared by the Basel Committee on
 
Banking Supervision (i)
in January 2016
 
entitled "Minimum Capital
 
Market Requirements",
 
(ii) in March
 
2016
entitled
 
"Revisions to
 
the Standardised
 
Approach for
 
credit
 
risk", (iii)
 
in
 
June 2016
entitled "Reducing variation in credit
 
risk-weighted assets – constraints on
 
the use of
75
internal model
 
approaches", and
 
(iv) all
 
other publications
 
considered part
 
of Basel
 
IV,
and in
 
each case,
 
as updated
 
from time
 
to
 
time, or
 
any rules,
 
regulations, guidance,
interpretations
 
or
 
directives
 
promulgated
 
or
 
issued
 
in
 
connection
 
therewith
 
by
 
any
bank regulatory
 
agency (whether
 
or not
 
having the
 
force of
 
law but
 
which are
 
generally
complied with);
15.1.5
Consolidated Basel Framework
 
means -
15.1.5.1
the
 
agreements
 
on
 
capital requirements,
 
leverage
 
ratio
 
and
 
liquidity
 
standards
contained in Basel III - A global
 
regulatory framework for more resilient banks
and
 
banking
 
systems,
 
Basel
 
III
 
-
 
International
 
framework
 
for
 
liquidity
 
risk
measurement,
 
standards and
 
monitoring
 
and Guidance
 
for
 
national
 
authorities
operating the
 
countercyclical capital
 
buffer published
 
by the
 
Basel Committee
on
 
Banking
 
Supervision
 
in
 
December
 
2010,
 
each
 
as
 
amended,
 
supplemented,
restated or reformed;
15.1.5.2
the
 
rules
 
for
 
global
 
systemically
 
important
 
banks
 
contained
 
in
 
Global
systemically important banks - assessment methodology and the
 
additional loss
absorbency
 
requirement
 
-
 
Rules
 
text
 
published
 
by
 
the
 
Basel
 
Committee
 
on
Banking Supervision in November
 
2011, as amended, supplemented or
 
restated;
and
15.1.5.3
any
 
revised
 
principles
 
or
 
standards
 
published
 
by
 
the
 
Basel
 
Committee
 
on
Banking Supervision relating to any reforms of Basel III or other principles and
standards
 
incorporated
 
into
 
the
 
consolidated
 
Basel
 
Framework
 
by
 
the
 
Basel
Committee
 
on
 
Banking
 
Supervision
 
relating
 
to
 
the
 
regulation,
 
supervision,
governance and risk management of the banking sector;
 
and
15.1.5.4
any other guidance,
 
standards or
 
directives published
 
by the
 
Basel Committee
 
on
Banking Supervision relating to Basel III,
 
the Basel III reforms or Basel IV;
15.2
Increased Cost claims
15.2.1
A Finance Party intending to make a claim
 
pursuant to clause
 
shall notify
the Facility Agent, as soon as reasonably possible after becoming aware of the
 
claim,
of the
 
event giving rise
 
to the
 
claim, following which
 
the Facility
 
Agent shall notify
the Term/RCF Borrower as soon as reasonably practicable.
15.2.2
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent,
provide a
 
certificate confirming
 
the
 
amount of
 
its Increased
 
Costs and
 
setting out
 
a
76
calculation of
 
the amount
 
of its
 
Increased Cost
 
(without having
 
to provide
 
details of
the manner in which
 
any variable (including
 
any figure or data)
 
used in the calculation
of its Increased Cost was determined).
15.3
Exceptions
15.3.1
Clause
 
(Increased costs) does not apply to the extent any Increased Cost is -
15.3.1.1
attributable to a Tax Deduction required by law to be made by an Obligor;
15.3.1.2
compensated
 
for
 
by
 
clause
 
(Tax
 
indemnity)
 
(or
 
would
 
have
 
been
compensated for
 
under that
 
clause but
 
was not
 
so compensated
 
solely because
any of the exclusions in that clause applied);
 
15.3.1.3
attributable to the wilful breach by the relevant Finance Party or its Affiliates of
any law or regulation; or
 
15.3.1.4
attributable to a FATCA
 
Deduction required to be made by a Party.
15.3.2
In this clause
, a reference to a
Tax Deduction
 
has the same meaning
 
given to the
term in clause
 
(Definitions).
16
OTHER INDEMNITIES
16.1
Currency indemnity
16.1.1
If any sum due from an Obligor under the Finance Documents (a
Sum
), or any order,
judgment or award
 
given or made
 
in relation to
 
a Sum, has
 
to be converted
 
from the
currency (the
First Currency
) in which
 
that Sum is
 
payable into
 
another currency
 
(the
Second Currency
) for the purpose of -
16.1.1.1
making or filing a claim or proof against that Obligor; or
16.1.1.2
obtaining or enforcing
 
an order,
 
judgment or award in
 
relation to any
 
litigation
or arbitration proceedings,
16.1.2
that Obligor
 
shall as
 
an independent
 
obligation, within
 
three Business
 
Days of
 
demand,
indemnify
 
each
 
Finance
 
Party
 
to
 
whom
 
that
 
Sum
 
is
 
due
 
against
 
any
 
cost,
 
loss
 
or
liability
 
arising
 
out
 
of
 
or
 
as
 
a
 
result
 
of
 
the
 
conversion
 
including
 
any
 
discrepancy
between (A)
 
the rate
 
of exchange
 
used to
 
convert that
 
Sum from
 
the First
 
Currency
into the Second Currency
 
and (B) the rate
 
or rates of exchange
 
available to that person
at the time of its receipt of that Sum.
77
16.1.3
Each Obligor waives
 
any right
 
it may have
 
in any
 
jurisdiction to
 
pay any amount
 
under
the
 
Finance Documents
 
in a
 
currency or
 
currency unit
 
other than
 
that in
 
which it
 
is
expressed to be payable.
16.2
Other indemnities
16.2.1
The Obligors
 
shall, within
 
three Business
 
Days of
 
demand, indemnify
 
each Finance
Party against, and shall pay to each Finance
 
Party, any properly evidenced cost or any
loss or
 
liability (other
 
than consequential
 
damages or
 
opportunity costs)
 
incurred by
that Finance Party as a result of -
16.2.1.1
the occurrence of any Default;
16.2.1.2
any
 
information
 
produced
 
or
 
approved
 
by
 
Holdco
 
or
 
any
 
member
 
of
 
the
Covenant
 
Group
 
under
 
or
 
in
 
connection
 
with
 
the
 
Finance
 
Documents
 
being
misleading or deceptive in any respect;
16.2.1.3
any enquiry, investigation, subpoena (or similar order) or litigation with respect
to
 
any
 
Obligor
 
or
 
other
 
Security
 
Provider,
 
or
 
with
 
respect
 
to
 
the
 
transactions
contemplated or financed under this Agreement;
16.2.1.4
a failure by an Obligor or
 
other Security Provider to pay any amount
 
due under
a Finance Document on its due date;
16.2.1.5
funding, or
 
making arrangements to
 
fund, its
 
participation in
 
a Loan
 
requested
by a Borrower in a
 
Utilisation Request but not made by reason
 
of the operation
of any one or more of the provisions of this Agreement (other than by reason of
gross negligence or wilful default of that Finance Party alone); or
16.2.1.6
a Loan (or part of a
 
Loan) not being prepaid in
 
accordance with the terms of
 
this
Agreement.
16.2.2
Each Obligor’s liability in each case includes any loss
 
or expense on account of funds
borrowed, contracted
 
for or
 
utilised to
 
fund any
 
amount payable
 
under any
 
Finance
Document or any Loan.
16.3
Indemnity to the Facility Agent
16.3.1
Each
 
Obligor
 
hereby
 
indemnifies
 
the
 
Facility
 
Agent
 
against,
 
and
 
shall
 
pay
 
to
 
the
Facility Agent within three Business Days of
 
demand, any cost, loss or liability (other
78
than consequential damages or
 
opportunity costs) incurred by the
 
Facility Agent as a
result of -
16.3.1.1
investigating or
 
taking any
 
other action
 
in connection
 
with any
 
event which
 
it
reasonably believes is a Default; or
16.3.1.2
acting
 
or
 
relying
 
on
 
any
 
notice,
 
request
 
or
 
instruction
 
which
 
it
 
reasonably
believes to be genuine, correct and appropriately authorised.
16.3.2
Each
 
Obligor
 
hereby
 
indemnifies
 
the
 
Facility
 
Agent
 
against,
 
and
 
shall
 
pay
 
to
 
the
Facility
 
Agent
 
within
 
three
 
Business
 
Days
 
of
 
demand,
 
any
 
cost,
 
loss
 
or
 
liability
incurred by the Facility Agent as a result of -
16.3.2.1
the taking,
 
holding, protection
 
or enforcement
 
of any
 
Transaction
 
Security (or
giving any instructions to the Debt Guarantor in this regard);
16.3.2.2
any default by an
 
Obligor in the
 
performance of any
 
of the obligations
 
expressed
to be assumed by it under the Finance Documents; or
16.3.2.3
the performance of its
 
functions or the exercise
 
of the rights, powers,
 
discretions
and remedies vested in
 
the Facility Agent, in
 
its capacity as such,
 
by the Finance
Documents or by
 
law, except for any such
 
cost, loss or
 
liability arising as
 
a result
of the gross negligence or wilful default of the Facility Agent.
16.3.3
The Term/RCF Borrower shall reimburse to the
 
Facility Agent all such out-of-pocket
expenses actually and
 
reasonably incurred and properly
 
evidenced within 5 Business
Days of
 
the Facility
 
Agent presenting the
 
Term/RCF
 
Borrower with
 
a tax
 
invoice in
respect thereof.
16.4
Indemnity to the Debt Guarantor
Each Obligor hereby
 
indemnifies the Debt
 
Guarantor against, and
 
shall pay
 
to the
 
Facility
Agent for
 
the account
 
of the
 
Debt Guarantor,
 
on demand,
 
any cost,
 
loss or
 
liability (other
than consequential damages
 
or opportunity costs) incurred
 
by the Debt Guarantor
 
as a result
of -
16.4.1
acting or relying on
 
any notice, request or instruction
 
which it reasonably believes to
be
 
genuine,
 
correct
 
and
 
appropriately
 
authorised
 
(other
 
than
 
by
 
reason
 
of
 
gross
negligence or wilful default of the Debt Guarantor);
16.4.2
the taking, holding or enforcement of any Transaction Security;
79
16.4.3
the performance
 
of its
 
functions or
 
the exercise
 
of the rights,
 
in its
 
capacity as
 
such,
under the
 
Finance Documents,
 
except for
 
any such
 
cost, loss
 
or liability
 
arising as
 
a
result of the gross negligence or wilful default of the Debt Guarantor;
16.4.4
any breach by an Obligor of its obligations under the Finance Documents.
17
MITIGATION BY THE LENDERS
17.1
Mitigation
17.1.1
Each
 
Finance
 
Party
 
shall,
 
in
 
consultation
 
with
 
the
 
Term/RCF
 
Borrower,
 
take
 
all
reasonable steps to mitigate any circumstances which arise and which would result in
any amount becoming
 
payable under or
 
pursuant to, or
 
cancelled pursuant to,
 
any of
clause
 
(Mandatory
 
prepayment
 
-
 
Illegality),
 
clause
 
(Tax
 
Gross-up
 
and
Indemnities) or clause
 
(Changes in Costs).
17.1.2
Clause
 
does not
 
in any
 
way limit
 
the obligations
 
of any
 
Obligor under
the Finance Documents.
17.2
Limitation of liability
17.2.1
The
 
Term/RCF
 
Borrower
 
hereby
 
indemnifies
 
each
 
Finance
 
Party
 
against,
 
and
undertakes to pay to it on demand, all
 
costs and expenses reasonably incurred by that
Finance Party as a result of steps taken by it under clause
17.2.2
A
 
Finance
 
Party
 
is
 
not
 
obliged
 
to
 
take
 
any
 
steps
 
under clause
 
if,
 
in
 
the
opinion of that Finance Party (acting reasonably) -
17.2.2.1
any law or regulation would not allow or permit it; or
17.2.2.2
to do so might be prejudicial to it.
 
18
COSTS AND EXPENSES
18.1
Transaction expenses
18.1.1
The Term/RCF Borrower
 
shall promptly
 
on demand
 
pay the
 
Facility Agent
 
the amount
of all
 
costs and
 
expenses (including
 
legal fees)
 
incurred by
 
it in
 
connection with
 
the
negotiation, preparation, printing and execution of -
18.1.1.1
this Agreement, the other Finance
 
Documents and any other documents
 
referred
to in this Agreement (including all costs of
 
registering or perfecting Transaction
Security); and
80
18.1.1.2
any Finance Documents executed after the Signature Date.
18.1.2
For
 
the
 
avoidance
 
of
 
doubt
 
the
 
Term/RCF
 
Borrower
 
will
 
be
 
liable
 
for
 
the
 
costs
contemplated in
 
clause
 
notwithstanding that
 
this Agreement
 
or any
 
other Finance
Documents are not executed or if the Facilities are not advanced or are
 
withdrawn.
18.2
Amendment costs
18.2.1
If
 
an
 
Obligor
 
requests
 
an
 
amendment,
 
waiver
 
or
 
consent,
 
the
 
Term/RCF
 
Borrower
shall,
 
within three
 
Business Days
 
of
 
demand, reimburse
 
each
 
Finance
 
Party for
 
the
amount of all costs and expenses (including legal fees) incurred by that Finance Party
in relation to any such requested amendment, waiver or consent.
18.2.2
If there is any
 
change in law or any
 
regulation which requires an amendment, waiver
or consent under the Finance Documents, the Term/RCF Borrower shall, within three
Business Days
 
of demand,
 
reimburse each
 
Finance Party
 
for the
 
amount of
 
all costs
and expenses (including legal fees) incurred by that Finance Party in connection with
any such required amendment, waiver or consent.
18.3
Enforcement costs
The Term/RCF Borrower shall, within three Business
 
Days of demand, pay to each
 
Finance
Party
 
the
 
amount
 
of
 
all
 
costs
 
and
 
expenses (including
 
legal
 
fees
 
on
 
the
 
scale as
 
between
attorney and own client whether
 
incurred before or after judgment)
 
incurred by that Finance
Party in
 
connection with
 
the enforcement
 
of, or
 
the preservation
 
of any
 
rights under,
 
any
Finance Document.
19
GUARANTEE AND INDEMNITY
19.1
Guarantee and indemnity
Each Guarantor irrevocably and unconditionally
 
jointly and severally, as a principal obligor
and not merely as a surety and on the basis of discrete obligations
 
enforceable against it -
 
19.1.1
guarantees to
 
each Finance
 
Party punctual
 
performance by
 
each other
 
Obligor of
 
all
that Obligor's obligations under the Finance Documents;
 
19.1.2
undertakes with
 
each Finance
 
Party that
 
whenever an
 
Obligor does
 
not pay
 
any amount
when
 
due under
 
or
 
in
 
connection with
 
any Finance
 
Document, that
 
Guarantor shall
immediately on demand pay that amount as if it were the principal obligor;
 
and
81
19.1.3
agrees with
 
each Finance Party
 
that if
 
any obligation guaranteed
 
by it
 
is or
 
becomes
unenforceable,
 
invalid
 
or
 
illegal,
 
it
 
will,
 
as
 
an
 
independent
 
and
 
primary
 
obligation,
indemnify that Finance
 
Party immediately
 
on demand against
 
any cost, loss
 
or liability
it incurs
 
as a
 
result of
 
an Obligor
 
not paying
 
any amount
 
which would,
 
but for
 
such
unenforceability,
 
invalidity or
 
illegality,
 
have been
 
payable by
 
it under
 
any Finance
Document
 
on
 
the
 
date
 
when
 
it
 
would
 
have
 
been
 
due.
 
The
 
amount
 
payable
 
by
 
a
Guarantor under this indemnity
 
will not exceed the
 
amount it would have
 
had to pay
under
 
this
 
clause
 
if
 
the
 
amount
 
claimed
 
had
 
been
 
recoverable
 
on
 
the
 
basis
 
of
 
a
guarantee.
19.2
Continuing guarantee
This
 
guarantee is
 
a continuing
 
guarantee and
 
will extend
 
to
 
the ultimate
 
balance of
 
sums
payable
 
by
 
any
 
Obligor
 
under
 
the
 
Finance
 
Documents,
 
regardless
 
of
 
any
 
intermediate
payment or discharge in whole or in part.
19.3
Reinstatement
If any payment by
 
an Obligor or any
 
discharge, release or arrangement given
 
by a Finance
Party
 
(whether
 
in
 
respect
 
of
 
the
 
obligations
 
of
 
any
 
Obligor
 
or
 
any
 
security
 
for
 
those
obligations or
 
otherwise) is
 
avoided or
 
reduced for
 
any reason
 
(including, without
 
limitation,
as a result
 
of insolvency, business rescue
 
proceedings, liquidation, winding-up
 
or otherwise)
-
19.3.1
the liability of each Obligor shall continue as
 
if the payment, discharge, avoidance or
reduction had not occurred; and
19.3.2
each Finance Party shall be entitled to recover the value
 
or amount of that security or
payment from each Obligor, as if the payment, discharge,
 
avoidance or reduction had
not occurred.
19.4
Waiver of defences
The
 
obligations
 
of
 
each
 
Guarantor
 
under
 
this
 
clause
 
will
 
not
 
be
 
affected
 
by
 
an
 
act,
omission, matter or thing which, but for this
 
clause, would reduce, release or prejudice any
of its obligations under this clause
 
(without limitation and whether or not known to it or
any Finance Party) including -
19.4.1
any
 
time,
 
waiver
 
or
 
consent
 
granted
 
to,
 
or
 
composition
 
with,
 
any
 
Obligor
 
or
 
other
person;
82
19.4.2
the release
 
of any
 
other Obligor
 
or any
 
other person
 
under the
 
terms of
 
any composition
or arrangement with any creditor of any member of the Covenant Group;
 
19.4.3
the
 
taking,
 
variation,
 
compromise,
 
exchange,
 
renewal
 
or
 
release
 
of,
 
or
 
refusal
 
or
neglect
 
to
 
perfect,
 
execute,
 
take
 
up
 
or
 
enforce,
 
any
 
rights
 
against,
 
or
 
security
 
over
assets of,
 
any Obligor
 
or other
 
person or
 
any non-presentation
 
or non-observance of
any formality or
 
other requirement
 
in respect of
 
any instrument
 
or any
 
failure to
 
realise
the full value of any security;
19.4.4
any
 
incapacity
 
or
 
lack
 
of
 
power,
 
authority
 
or
 
legal
 
personality
 
of
 
or
 
dissolution
 
or
change in the members or status of an Obligor or any other person;
19.4.5
any amendment, novation, supplement, extension, restatement (however fundamental
and whether
 
or not
 
more onerous)
 
or replacement
 
of any
 
Finance Document
 
or any
other document or security including without limitation any change in the purpose
 
of,
any extension
 
of or
 
any increase
 
in any
 
facility or
 
the addition
 
of any
 
new facility
 
under
any Finance Document or other document or security;
19.4.6
any unenforceability, illegality, invalidity, suspension
 
or cancellation
 
of any
 
obligation
of
 
any
 
person
 
under
 
this
 
Agreement
 
or
 
any
 
other
 
Finance
 
Document
 
or
 
any
 
other
document or security;
19.4.7
any
 
insolvency,
 
liquidation,
 
winding-up,
 
business
 
rescue
 
or
 
similar
 
proceedings
(including, but not limited to, receipt of any distribution made under or in
 
connection
with those proceedings);
19.4.8
this
 
Agreement
 
or
 
any
 
other
 
Finance
 
Document
 
not
 
being
 
executed
 
by
 
or
 
binding
against any other Guarantor or any other party; or
19.4.9
any other fact or
 
circumstance arising on which a
 
Guarantor might otherwise be able
to rely on a defence based on prejudice, waiver or estoppel.
19.5
Guarantor intent
Without
 
prejudice
 
to
 
the
 
generality
 
of
 
clause
 
(Waiver
 
of
 
defences),
 
each
 
Guarantor
expressly confirms that
 
it intends that
 
this guarantee shall
 
extend from time
 
to time to
 
any
(however fundamental) variation, increase,
 
extension or addition of or
 
to any of the Finance
Documents
 
and/or
 
any
 
facility
 
or
 
amount
 
made
 
available
 
under
 
any
 
of
 
the
 
Finance
Documents
 
for
 
the
 
purposes
 
of
 
or
 
in
 
connection
 
with
 
any
 
of
 
the
 
following
 
-
 
business
acquisitions of any nature; increasing working capital; enabling
 
investor distributions to be
made;
 
carrying
 
out
 
restructurings;
 
refinancing
 
existing
 
facilities;
 
refinancing
 
any
 
other
83
indebtedness; making facilities available
 
to new borrowers; any other
 
variation or extension
of the purposes for which any such
 
facility or amount might be made
 
available from time to
time; and any fees, costs and/or expenses associated with any of the
 
foregoing.
19.6
Immediate recourse
Each Guarantor
 
waives any
 
right it
 
may have
 
of first
 
requiring any
 
Finance Party
 
(or any
trustee or
 
agent on
 
its behalf)
 
to proceed
 
against or
 
enforce any
 
other rights
 
or security
 
or
claim payment from
 
any person before
 
claiming from that
 
Guarantor under this
 
clause
.
This waiver applies irrespective
 
of any law or
 
any provision of a
 
Finance Document to the
contrary.
19.7
Deferral of Guarantors' rights
19.7.1
Until
 
all
 
amounts
 
which
 
may
 
be
 
or
 
become
 
payable
 
by
 
the
 
Obligors
 
under
 
or
 
in
connection with the Finance Documents have been irrevocably paid
 
in full and unless
the
 
Facility Agent
 
otherwise directs,
 
no Guarantor
 
will exercise
 
any rights
 
which it
may
 
have
 
by
 
reason
 
of
 
performance
 
by
 
it
 
of
 
its
 
obligations
 
under
 
the
 
Finance
Documents or by
 
reason of any
 
amount being payable,
 
or liability arising,
 
under this
clause
 
-
19.7.1.1
to be indemnified by an Obligor;
19.7.1.2
to claim any contribution from any other
 
guarantor of or provider of security
 
for
any Obligor's obligations under the Finance Documents;
19.7.1.3
to
 
take
 
the
 
benefit
 
(in
 
whole
 
or
 
in
 
part
 
and
 
whether
 
by
 
way
 
of
 
subrogation,
cession
 
of
 
action
 
or
 
otherwise) of
 
any
 
rights
 
of
 
the
 
Finance
 
Parties
 
under
 
the
Finance Documents or
 
of any other
 
guarantee or security
 
taken pursuant to,
 
or in
connection with, the Finance Documents by any Finance Party;
19.7.1.4
to bring
 
legal or
 
other proceedings
 
for an
 
order requiring
 
any Obligor
 
to make
any payment, or perform any obligation,
 
in respect of which any
 
Guarantor has
given a
 
guarantee, undertaking or
 
indemnity under
 
clause
 
(Guarantee and
indemnity);
19.7.1.5
to exercise any right of set-off against any Obligor; and/or
19.7.1.6
to
 
claim,
 
rank,
 
prove
 
or
 
vote
 
as
 
a
 
creditor
 
or
 
shareholder
 
of
 
any
 
Obligor
 
in
competition with any Finance Party.
84
19.7.2
If a Guarantor receives any benefit, payment or
 
distribution in relation to such rights,
it shall hold that
 
benefit, payment or distribution to
 
the extent necessary to enable
 
all
amounts which
 
may be
 
or become
 
payable to
 
the Finance
 
Parties by
 
the Obligors
 
under
or
 
in
 
connection
 
with
 
the
 
Finance
 
Documents
 
to
 
be
 
repaid
 
in
 
full
 
on
 
trust
 
for,
 
or
otherwise for the benefit of, the Finance Parties and shall promptly
 
pay or transfer the
same
 
to
 
the
 
Facility
 
Agent
 
or
 
as
 
the
 
Facility
 
Agent
 
may
 
direct
 
for
 
application
 
in
accordance with clause
 
(Payment Mechanics).
19.8
Release of Guarantors' right of contribution
If any Guarantor
 
(a
Retiring Guarantor
) ceases to
 
be a Guarantor
 
in accordance with
 
the
terms
 
of
 
this
 
Agreement
 
for
 
the
 
purpose
 
of
 
any
 
sale
 
or
 
other
 
disposal
 
of
 
that
 
Retiring
Guarantor then on the date such Retiring Guarantor ceases to be
 
a Guarantor -
19.8.1
that Retiring
 
Guarantor is
 
automatically released
 
by each
 
other Guarantor
 
from any
liability (whether past,
 
present or future
 
and whether actual
 
or contingent) to
 
make a
contribution to any other Guarantor
 
arising by reason of the performance
 
by any other
Guarantor of its obligations under the Finance Documents; and
19.8.2
each other Guarantor
 
waives any rights
 
it may have
 
by reason of
 
the performance of
its obligations
 
under the
 
Finance Documents
 
to take
 
the benefit
 
(in whole
 
or in
 
part
and whether by
 
way of subrogation,
 
cession of action
 
or otherwise) of
 
any rights of
 
the
Finance Parties under any
 
Finance Document or of
 
any other security taken
 
pursuant
to,
 
or
 
in
 
connection
 
with,
 
any
 
Finance
 
Document
 
where
 
such
 
rights
 
or
 
security are
granted by or in relation to the assets of the Retiring Guarantor.
19.9
Additional security
This guarantee is in addition
 
to and is not
 
in any way prejudiced by
 
any other guarantee or
security now or subsequently
 
held by any Finance
 
Party (which a Finance
 
Party may release
as it sees fit, without prejudice to its rights hereunder).
20
REPRESENTATIONS
Each Obligor makes
 
the representations and
 
warranties set out
 
in this
 
clause
 
to each Finance
Party on the Signature Date. A reference in this clause to "it" or "its" includes, unless the
 
context
otherwise requires, each
 
Obligor. Any reference to
 
a member of
 
the Covenant Group
 
in this clause
 
shall be deemed to exclude a reference to any Excluded Subsidiary, save in relation to clauses
,
,
,
,
,
 
and
.
 
The
 
Finance
 
Parties
 
enter
 
into
 
the
 
Finance
Documents
 
to
 
which
 
they
 
are
 
party
 
on
 
the
 
strength
 
of
 
and
 
relying
 
on
 
the
 
representations
 
and
warranties set out in this
 
clause
, each of which is
 
a separate representation and
 
warranty, given
85
without
 
prejudice
 
to
 
any
 
other
 
representation
 
or
 
warranty
 
and
 
is
 
deemed
 
to
 
be
 
a
 
material
representation or warranty
 
(as applicable) inducing
 
the Finance
 
Parties to enter
 
into the
 
Finance
Documents.
20.1
Status
20.1.1
It is a limited liability company or corporation, duly incorporated and validly existing
under the laws of its jurisdiction of incorporation or formation.
20.1.2
It and each
 
of its Subsidiaries
 
(save for CPS
 
and its Subsidiaries)
 
has the power
 
to own
its assets and carry on its business as it is being conducted.
20.2
Capacity, power and authority
20.2.1
It
 
has
 
the
 
legal
 
capacity
 
and
 
power
 
to
 
enter
 
into
 
and
 
perform,
 
and
 
has
 
taken
 
all
necessary
 
action
 
to
 
authorise
 
the
 
entry
 
into
 
and
 
performance
 
of,
 
the
 
Finance
Documents to which it
 
is or will be a
 
party and the transactions
 
contemplated by those
Finance Documents.
20.2.2
No limit on its powers will be exceeded as a result of the borrowing, grant of security
or
 
giving
 
of
 
guarantees
 
or
 
indemnities
 
contemplated
 
by
 
the
 
Finance
 
Documents
 
to
which it is a party.
20.3
Binding obligations
20.3.1
The obligations expressed to be
 
assumed by it in
 
each Finance Document to which it
is a party
 
are legal, valid,
 
binding and
 
enforceable obligations
 
enforceable against
 
such
Obligor in accordance with its respective terms.
20.3.2
Each Finance Document to
 
which it is a party
 
is in the proper
 
form for its enforcement
in the jurisdiction of its incorporation or formation.
20.4
Non-conflict with other obligations
The entry into and performance by it
 
of, and the transactions contemplated by,
 
the Finance
Documents to which it is a
 
party and the establishment of Transaction
 
Security pursuant to
the Security Documents to which it is a party, do not and will not conflict with -
20.4.1
any law or regulation applicable to it;
20.4.2
its or any of its Subsidiaries' constitutional documents; or
86
20.4.3
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or
any
 
of
 
its
 
Subsidiaries'
 
assets
 
or
 
constitute a
 
default
 
or
 
termination
 
event
 
(however
described) under any such agreement or instrument.
20.5
Authorisations
All authorisations required -
20.5.1
to enable
 
it lawfully
 
to enter
 
into, exercise
 
its rights
 
and comply
 
with its
 
obligations
under the Finance Documents to which it is a party;
 
20.5.2
to
 
make the
 
Finance Documents
 
to
 
which it
 
is a
 
party admissible
 
in
 
evidence in
 
its
jurisdiction of incorporation or formation; and
20.5.3
for it and those of its Subsidiaries which are members
 
of the Covenant Group to carry
on their
 
respective businesses
 
in the
 
ordinary course
 
and in
 
all material
 
respects as
 
they
are being conducted,
have been obtained or effected and are in full force and effect.
20.6
No default
20.6.1
No Event
 
of Default
 
and, on
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
Utilisation Request
 
and each
 
Utilisation Date,
 
no Default
 
is continuing
 
or is
 
reasonably
likely to result
 
from the making
 
of any Utilisation
 
or the entry
 
into, the performance
of, or any transaction contemplated by, any Finance Document to which it is a party.
20.6.2
No other event or circumstance
 
is outstanding which constitutes (or
 
with the expiry of
a grace period, the giving of notice, the making
 
of any determination, the satisfaction
of
 
any
 
other
 
applicable
 
condition
 
or
 
any
 
combination
 
of
 
the
 
foregoing,
 
would
constitute) a default or termination event (however described) or an event resulting in
an
 
obligation
 
to
 
create
 
security,
 
under
 
any
 
other
 
agreement
 
or
 
instrument
 
which
 
is
binding on it or any
 
of its Subsidiaries which are members of
 
the Covenant Group or
to which
 
its (or
 
any of
 
its Subsidiaries'
 
which are
 
members of
 
the Covenant
 
Group)
assets are subject,
 
to an extent or
 
in a manner which
 
has or is reasonably
 
likely to have
a Material Adverse Effect.
20.7
Financial statements
Its audited financial statements most recently delivered to the Facility
 
Agent -
87
20.7.1
have been
 
prepared in
 
accordance with
 
IFRS in
 
relation to
 
the Covenant
 
Group and
GAAP in relation to Holdco,
 
consistently applied; and
20.7.2
give a true
 
and fair view
 
of its financial
 
condition (consolidated,
 
if applicable) as
 
at the
date to which they were drawn up,
except, in each
 
case, as disclosed to
 
the contrary in
 
those financial statements or
 
as set out
in Annexure K (Disclosure Schedule).
20.8
Material adverse change
There
 
has
 
been
 
no
 
material
 
adverse
 
change
 
in
 
the
 
business
 
or
 
financial
 
condition
 
of
 
any
Obligor, or the business
 
or consolidated financial
 
condition of the
 
Covenant Group since
 
the
date to which the most recent audited financial statements
 
(including management accounts
and/or
 
SEC
 
Form)
 
delivered
 
to
 
the
 
Facility
 
Agent
 
pursuant
 
to
 
clause
 
(Financial
statements) were drawn up.
20.9
Assets
20.9.1
It and each of its Subsidiaries which are
 
members of the Covenant Group owns or
 
has
leased
 
or
 
licenced
 
to
 
it,
 
and
 
has
 
all
 
authorisations required
 
under
 
applicable
 
law or
regulations to use, the
 
assets necessary to carry
 
on its business as
 
presently conducted.
20.9.2
It is
 
the sole
 
legal and
 
beneficial owner
 
of the
 
shares and
 
other assets
 
which are
 
the
subject matter of the Security Documents to which it is a party.
20.10
Financial Indebtedness and Security
20.10.1
No
 
member
 
of
 
the
 
Covenant
 
Group
 
or
 
Holdco
 
has
 
any
 
Financial
 
Indebtedness
outstanding other
 
than Financial
 
Indebtedness which
 
constitutes Permitted
 
Financial
Indebtedness.
20.10.2
No
 
Security
 
exists
 
over
 
the
 
whole
 
or
 
any
 
part
 
of
 
the
 
assets
 
of
 
any
 
member
 
of
 
the
Covenant
 
Group
 
or
 
Holdco,
 
other
 
than
 
Security
 
which
 
constitutes
 
a
 
Permitted
Encumbrance.
20.10.3
Subject
 
to
 
filing
 
and
 
registration
 
required
 
by
 
law
 
(where
 
applicable)
 
with
 
the
appropriate statutory
 
public register,
 
each
 
Security Document
 
to
 
which it
 
is
 
a
 
party
creates the security interests which it
 
purports to create, and the
 
Transaction Security
so established -
20.10.3.1
is valid and effective;
88
20.10.3.2
constitutes first
 
priority Security
 
of the
 
type described, over
 
the assets
 
referred
to, in
 
the relevant
 
Security Document
 
and those
 
assets are
 
not subject
 
to any
 
prior
or
pari passu
 
Security in favour of any other person; and
20.10.3.3
is
 
not
 
subject
 
to
 
avoidance
 
in
 
the
 
event
 
of
 
any
 
winding-up,
 
dissolution
 
or
administration involving any Obligor.
20.11
Ranking
20.11.1
Its payment obligations
 
under the Finance
 
Documents rank at
 
least
pari passu
 
with the
claims of all
 
its other unsecured
 
and unsubordinated creditors, except
 
for obligations
mandatorily preferred by law applying to companies generally.
20.11.2
The
 
Transaction
 
Security
 
has
 
or,
 
upon
 
the
 
registration
 
thereof
 
with
 
any
 
applicable
statutory public
 
registry (if
 
required under
 
applicable law),
 
will have
 
the ranking
 
in
priority which it
 
is expressed to
 
have in the
 
Transaction Security Documents
 
in respect
of the assets of the Obligors which are the subject matter thereof, and those assets are
not subject to any prior ranking or
pari passu
 
ranking Security.
20.12
Information
20.12.1
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request and
each
 
Utilisation
 
Date,
 
all
 
forecasts
 
and
 
projections
 
contained
 
in
 
any
 
information
supplied
 
by or
 
on
 
behalf of
 
Holdco, any
 
other Obligor
 
or
 
any other
 
member
 
of
 
the
Covenant
 
Group
 
to
 
the
 
Facility
 
Agent
 
or
 
any
 
other
 
Finance
 
Party
 
under
 
or
 
in
connection with
 
the Finance
 
Documents were
 
prepared on
 
the basis
 
of recent
 
historical
information and assumptions which were
 
fair and reasonable at that date
 
and were not
misleading in any respect.
20.12.2
All other
 
information supplied
 
by or
 
on behalf
 
of Holdco,
 
any other
 
Obligor or
 
any
other member of the Covenant Group
 
to the Facility Agent or any other
 
Finance Party
under or in connection with the
 
Finance Documents is true, complete and accurate
 
in
all material respects as at the date it was given and is not misleading
 
in any respect.
20.12.3
No information has been given or withheld by any Obligor which, if disclosed, might
result in the information
 
or projections referred
 
to above being untrue
 
or misleading in
any respect.
20.13
Group Structure Chart
89
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request
 
and each
Utilisation Date, the Group
 
Structure Chart is true,
 
complete and accurate
 
in all respects and
shows the following information -
20.13.1
Holdco
 
and
 
each
 
member
 
of
 
the
 
Group,
 
including
 
current
 
name
 
and
 
company
registration
 
number,
 
its
 
jurisdiction
 
of
 
incorporation
 
or
 
formation
 
and/or
 
its
jurisdiction of establishment,
 
a list of direct
 
and indirect shareholders
 
and indicating if
a company is a Dormant Subsidiary or is not a company with limited liability;
 
and
20.13.2
all minority interests in any member of the
 
Covenant Group and any person in which
any
 
member
 
of
 
the
 
Covenant
 
Group
 
holds
 
shares
 
in
 
its
 
issued
 
share
 
capital
 
or
equivalent ownership interest of such person.
20.14
Ownership of securities
20.14.1
All securities in
 
the issued capital
 
of each Guarantor
 
(other than Holdco)
 
are owned,
directly
 
or
 
indirectly,
 
legally
 
and
 
beneficially,
 
by
 
the
 
Term/RCF
 
Borrower
 
unless
otherwise specified in the Group Structure Chart.
20.14.2
Holdco directly owns, legally
 
and beneficially, 100% of the issued share
 
capital of the
Term/RCF Borrower.
20.14.3
There are no agreements in force which provide for the issue or allotment of, or grant
any person the right to
 
call for the issue
 
or allotment of, any share, debenture
 
or loan
capital of
 
any member
 
of the
 
Covenant Group
 
(including any
 
option or
 
right of
 
pre-
emption or conversion).
20.14.4
No person has
 
a right to
 
obtain an order
 
for the rectification of
 
the securities register
of a member of the Covenant Group.
20.14.5
The shares of
 
any member
 
of the Covenant
 
Group which
 
are subject to
 
the Transaction
Security are fully paid and not subject to any option to purchase or similar
 
rights.
20.14.6
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request and
each
 
Utilisation
 
Date,
 
the
 
constitutional
 
documents
 
of
 
companies
 
whose
 
shares
 
are
subject to the
 
Transaction Security do
 
not restrict
 
or inhibit
 
any transfer
 
of those shares
(whether pursuant
 
to a
 
right
 
of pre-emption
 
in favour
 
of any
 
party or
 
otherwise) on
creation or enforcement
 
of the Transaction
 
Security (or if any
 
such restriction exists,
all
 
applicable consents,
 
waivers or
 
resolutions by
 
shareholders and
 
directors for
 
the
purposes of
 
authorising such
 
a transfer
 
have been
 
obtained and
 
are in
 
full force
 
and
effect).
90
20.15
Other documents
20.15.1
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request and
each Utilisation Date,
 
the documents delivered
 
to the Facility Agent
 
by or on behalf
 
of
any Obligor under clause
 
(Initial conditions precedent) are
 
genuine (or, in the case
of
 
copy
 
documents,
 
are
 
true,
 
complete
 
and
 
accurate
 
copies
 
of
 
originals
 
which
 
are
genuine), are up-to-date and in full force and effect (or if a
 
copy, the original is up-to-
date and in full force and effect) and have not been amended.
20.15.2
As at
 
the date
 
of their
 
delivery,
 
the documents delivered
 
to the
 
Facility Agent under
this Agreement by or on behalf of any Obligor after the Closing Date are genuine (or,
in
 
the
 
case
 
of
 
copy
 
documents,
 
are
 
true,
 
complete
 
and
 
accurate
 
copies
 
of
 
originals
which are
 
genuine), are
 
up-to-date and
 
in full
 
force and
 
effect (or, if
 
a copy, the
 
original
is up-to-date and in full force and effect) and have not been amended.
20.16
No proceedings pending or threatened
As at the Signature Date, the Closing Date and the first Utilisation Date only-
20.16.1
except
 
as
 
disclosed in
 
Annexure K
 
(Disclosure Schedule),
 
no
 
litigation,
 
arbitration,
expert determination,
 
alternative dispute
 
resolution or
 
administrative proceedings
 
of
or before any court, arbitral body, expert or agency are
 
current, pending or, to the best
of its knowledge, threatened against any member of the Covenant Group
 
or Holdco;
 
20.16.2
no dispute with any regulatory authority which is the subject of
 
any administrative or
statutory proceedings
 
of or
 
before any
 
court or
 
agency is
 
current, pending
 
or,
 
to the
best
 
of
 
its
 
knowledge,
 
threatened
 
against
 
any
 
member
 
of
 
the
 
Covenant
 
Group
 
or
Holdco;
20.16.3
no labour disputes are current
 
or, to the best of its knowledge and belief
 
(having made
due and
 
careful enquiry),
 
threatened against
 
any member
 
of the
 
Covenant Group
 
or
Holdco which
 
have or
 
might reasonably
 
be expected
 
to have
 
a Material
 
Adverse Effect.
20.17
No breach of laws
 
20.17.1
It has
 
not (and none
 
of its Subsidiaries
 
has) breached any
 
law or
 
regulation which is
material to the conduct of its business.
20.17.2
Each member of
 
the Covenant Group
 
which is required
 
to comply with
 
the National
Credit Act, No 34 of 2005 complies in all respects with that legislation.
91
20.18
Environmental matters
20.18.1
Each member
 
of the
 
Group is
 
in compliance
 
with clause
 
(Environmental
 
matters)
and
 
no
 
circumstances
 
have
 
occurred
 
which
 
would
 
prevent
 
such
 
compliance,
 
in
 
a
manner
 
or
 
to
 
an
 
extent
 
which
 
has
 
or
 
might
 
reasonably
 
be
 
expected
 
to
 
(a)
 
have
 
a
Material Adverse Effect, or (b) result in a financial liability for any Finance Party.
20.18.2
All Environmental Permits required
 
for it and
 
its Subsidiaries which
 
are members of
the
 
Group
 
to
 
carry
 
on
 
their
 
respective
 
businesses
 
in
 
the
 
ordinary
 
course
 
have
 
been
obtained or effected and are in full force and effect.
20.18.3
No
 
Environmental Claim
 
has
 
been commenced,
 
is
 
outstanding or
 
(to the
 
best of
 
its
knowledge and
 
belief (having
 
made due
 
and careful
 
enquiry)) is
 
threatened against
 
any
member
 
of
 
the
 
Group
 
where
 
that
 
claim
 
has
 
or
 
might
 
reasonably
 
be
 
expected,
 
if
determined against that member of the Group, to have a Material Adverse
 
Effect.
20.18.4
There are
 
no Environmental
 
Matters which
 
might reasonably
 
be expected
 
to have
 
a
material
 
negative
 
impact
 
on
 
the
 
financial
 
or
 
trading
 
position
 
of
 
any
 
member
 
of
 
the
Group.
20.18.5
Holdco and each
 
other member of
 
the Group has
 
produced and provided
 
to the Facility
Agent all materially relevant reports and information on Environmental
 
Matters.
20.18.6
Holdco
 
has
 
provided
 
to
 
the
 
Facility
 
Agent
 
all
 
materially
 
relevant
 
reports
 
and
information
 
on
 
Environmental
 
Matters
 
relating
 
to
 
members
 
of
 
the
 
Group
 
promptly
upon receiving the same
20.19
Insurance
20.19.1
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request and
each Utilisation Date, there is no outstanding insured loss or liability incurred by it or
any member of the Group.
20.19.2
There
 
has
 
been
 
no
 
non-disclosure,
 
misrepresentation
 
or
 
breach
 
of
 
any
 
term
 
of
 
any
material Insurance
 
taken out
 
by it
 
or any
 
member of
 
the Group
 
which would
 
entitle
any insurer of that insurance to
 
repudiate, rescind or cancel it or to
 
treat it as avoided
in whole or in part, or otherwise decline any
 
valid claim under it by or on
 
behalf of it
or any member of the Group.
20.20
Intellectual Property Rights
92
20.20.1
It and each of its Subsidiaries which are members of the Covenant Group -
20.20.1.1
is
 
the
 
sole
 
legal
 
and
 
beneficial
 
owner
 
of,
 
or
 
has
 
licenced
 
to
 
it
 
on
 
normal
commercial terms, all the Intellectual Property
 
Rights which are material in
 
the
conduct
 
of
 
its
 
business
 
and
 
which
 
are
 
required
 
by
 
it
 
in
 
order
 
to
 
carry
 
on
 
its
business in all material respects as it is being conducted;
20.20.1.2
has taken all
 
formal or procedural actions
 
(including payment of
 
fees) required
to maintain those Intellectual Property Rights; and
 
20.20.1.3
does not, in carrying on its business,
 
infringe any Intellectual Property Rights
 
of
any third party in any respect which has a Material Adverse Effect.
20.20.2
As at
 
the Signature Date,
 
the Closing Date.
 
The date of
 
each utilisation Request
 
and
each Utilisation
 
Date, none
 
of those Intellectual
 
Property Rights
 
is being
 
infringed, nor
(to
 
the
 
best
 
of
 
its
 
knowledge)
 
is
 
there
 
any
 
threatened
 
infringement
 
of
 
any
 
of
 
those
Intellectual Property Rights, in any respect.
20.21
Insolvency and Financial Distress
20.21.1
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request and
each Utilisation Date, no -
20.21.1.1
corporate action, legal proceeding or other
 
procedure or step described in clause
 
(Insolvency and business rescue proceedings); or
20.21.1.2
creditors' process described in clause
 
(Creditors' process),
has been
 
taken or
 
threatened in
 
relation to
 
it or
 
any other
 
member of
 
the Group
 
and
none of
 
the circumstances
 
described in
 
clause
 
(Insolvency) applies
 
to it
 
or any
other member of the Group.
20.21.2
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request and
each Utilisation Date,
 
neither it nor
 
any member of
 
the Group is
 
Financially Distressed
(as defined in the Companies Act).
20.22
Taxes
20.22.1
It and each
 
of its Subsidiaries
 
which are members of
 
the Group is
 
not overdue in
 
the
filing of any Tax
 
returns (save as set
 
out in Annexure K (Disclosure
 
Schedule))
 
or in
the payment of any Tax (taking into account
 
any extensions granted by any
 
applicable
Tax authority for the filing of such returns) unless and only to the extent that -
93
20.22.1.1
such payment is being contested in good faith;
20.22.1.2
the amount under dispute
 
is not in excess of 2%
 
of the Consolidated EBITDA
 
in
aggregate (calculated with reference to Holdco's most recently delivered annual
financial statements);
20.22.1.3
adequate reserves are being
 
maintained for those Taxes and the costs required
 
to
contest them which have been disclosed in its latest financial statements;
 
and
20.22.1.4
such payment can be lawfully withheld.
20.22.2
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request and
each Utilisation
 
Date, no
 
claims or
 
investigations by
 
any Tax
 
authority are
 
being or
are reasonably likely to
 
be made or conducted
 
against it which
 
are reasonably likely
 
to
result in a liability
 
of or claim against
 
any member of the
 
Group to pay any
 
amount of,
or
 
in
 
respect
 
of,
 
Tax
 
of
 
more
 
than
 
2%
 
in
 
aggregate
 
of
 
Consolidated
 
EBITDA
(calculated
 
with
 
reference
 
to
 
Holdco's
 
most
 
recently
 
delivered
 
annual
 
financial
statements).
20.22.3
It is resident for Tax purposes only in its jurisdiction of incorporation or formation.
20.22.4
As at
 
the Signature
 
Date, the
 
Closing Date,
 
the date
 
of each
 
Utilisation Request and
each Utilisation Date it
 
is not required
 
to make any deduction
 
for or on account
 
of Tax
from any payment it may make under any Finance Document.
20.23
No filing or stamp taxes
Under the
 
law of
 
its jurisdiction
 
of incorporation
 
or formation
 
it is
 
not necessary
 
that the
Finance Documents be
 
filed, recorded or
 
enrolled with any
 
court or other
 
authority in that
jurisdiction or that
 
any stamp, registration
 
or similar tax
 
(other than any
 
securities transfer
tax
 
payable
 
on
 
any
 
share
 
transaction
 
or
 
fees
 
payable
 
at
 
the
 
applicable
 
public
 
registry
 
(if
required in respect
 
of the applicable
 
Security Document under
 
applicable law)) be
 
paid on
or in relation
 
to those Finance
 
Documents or
 
the transactions contemplated
 
by those Finance
Documents.
20.24
Material Agreements
20.24.1
Each Material Agreement
 
to which a
 
member of the
 
Covenant Group is
 
a party validly
exists and is in full force and effect and no event or circumstance is continuing which
constitutes
 
a
 
breach
 
or
 
default
 
under,
 
and
 
which
 
entitles
 
another
 
party
 
to
 
call
 
for
 
a
termination of, any Material Agreement which is binding on the Term/RCF Borrower
94
or any members of the Covenant Group or to which its (or its Subsidiaries’ which are
members of the Covenant Group) assets are subject.
20.24.2
No member
 
of the
 
Covenant Group
 
is in
 
breach of
 
any of
 
its obligations
 
under any
Material Agreement.
20.24.3
There
 
is
 
no
 
dispute
 
between
 
the
 
parties
 
to
 
any
 
Material
 
Agreement
 
to
 
which
 
any
member of
 
the Covenant
 
Group is
 
a party
 
which is
 
reasonably likely
 
to result
 
in the
termination of such Material Agreement.
20.24.4
Save
 
as
 
permitted
 
under
 
the
 
terms
 
of
 
the
 
Finance
 
Documents
 
or
 
save
 
as
 
otherwise
disclosed
 
to
 
the
 
Facility
 
Agent,
 
there
 
are
 
no
 
documents
 
or
 
agreements in
 
existence
which have the
 
effect of varying,
 
amending or supplementing
 
any Material
 
Agreement
to which any member of the Covenant Group is a party.
20.25
Governing law and enforcement
20.25.1
The choice
 
of South
 
African law
 
as the
 
governing law
 
of those
 
Finance Documents
which
 
are
 
expressed
 
to
 
be
 
governed
 
by
 
South
 
African
 
law
 
will
 
be
 
recognised
 
and
enforced in its jurisdiction of incorporation or formation.
20.25.2
Its -
20.25.2.1
submission under this Agreement to the jurisdiction of the
 
High Court of South
Africa
 
(Gauteng
 
Local
 
Division,
 
Johannesburg)
 
(or
 
any
 
successor
 
to
 
that
division); and
20.25.2.2
agreement not to claim any immunity to which it or its assets may be entitled,
are
 
legal,
 
valid
 
and
 
binding
 
under
 
the
 
laws
 
of
 
its
 
jurisdiction
 
of
 
incorporation
 
or
formation.
20.25.3
Any judgment
 
obtained in
 
South Africa
 
in relation
 
to a
 
Finance Document
 
which is
governed by
 
the laws
 
of South
 
Africa will
 
be recognised
 
and enforced
 
in its
 
jurisdiction
of incorporation or formation.
20.26
No adverse consequences
20.26.1
It is not
 
necessary under the
 
laws of the
 
jurisdiction of incorporation or
 
formation of
that Obligor that any Finance Party should be licensed, qualified or otherwise entitled
to carry on business in that jurisdiction -
95
20.26.1.1
in
 
order
 
to
 
enable
 
any
 
Finance
 
Party
 
to
 
enforce
 
its
 
rights
 
under
 
any
 
Finance
Document; or
20.26.1.2
by reason of
 
any Finance
 
Party having
 
entered into
 
any Finance
 
Document or
 
the
performance by it of its obligations under any Finance Document.
20.26.2
No Finance
 
Party is
 
or will
 
be deemed
 
to be
 
resident, domiciled
 
or carrying
 
on business
in the
 
jurisdiction of
 
incorporation or
 
formation of
 
an Obligor
 
by reason
 
only of
 
the
entry into, performance and/or enforcement of any Finance Document.
20.27
No immunity
20.27.1
The entry into
 
by it of
 
each Finance Document to
 
which it is
 
a party constitutes, and
the exercise by
 
it of its
 
rights and
 
performance of its
 
obligations under each
 
Finance
Document
 
will
 
constitute
 
private
 
and
 
commercial
 
acts
 
performed
 
for
 
private
 
and
commercial purposes.
20.27.2
In any
 
proceedings taken
 
in South
 
Africa or
 
in
 
any other
 
jurisdiction, it
 
will not
 
be
entitled to
 
claim for
 
itself or
 
any of
 
its assets
 
immunity from
 
suit, execution,
 
attachment
or other legal process in relation to this Agreement or any other Finance
 
Document.
20.28
Authorised signatories
Any
 
person
 
specified as
 
its
 
authorised
 
signatory
 
under
 
Part
 
I
 
of
 
(Conditions
precedent) or clause
 
(Information - miscellaneous) is
 
authorised to sign Utilisation
Requests and other communications under the Finance Documents on
 
its behalf.
20.29
Anti-corruption laws and Sanctions
20.29.1
No member of
 
the Group, Holdco
 
nor any entity
 
in which any
 
member of the
 
Group
or Holdco holds an investment-
20.29.1.1
is
 
using
 
nor
 
will
 
use
 
the
 
proceeds
 
of
 
any
 
Senior
 
Facility
 
for
 
the
 
purpose
 
of
financing or making funds
 
available directly or indirectly
 
to any person or entity
which is currently a Sanctioned Entity or as part of
 
a Sanctioned Transaction, to
the extent such financing or
 
provision of funds would currently
 
be prohibited by
Sanctions or would otherwise cause any person to be in breach of Sanctions;
20.29.1.2
is contributing
 
nor will
 
contribute or otherwise
 
make available
 
the proceeds
 
of
any Senior Facility to any other person
 
or entity for the purpose of financing the
activities of any person or entity which is currently listed on a
 
Sanctions List, to
96
the
 
extent
 
such
 
contribution
 
or
 
provision
 
of
 
proceeds
 
would
 
currently
 
be
prohibited by Sanctions or would otherwise cause any person to be in breach of
Sanctions; or
 
20.29.1.3
to the best of its knowledge and belief -
20.29.1.3.1
has been nor is targeted under any Sanctions; or
20.29.1.3.2
has violated or is violating any applicable Sanctions.
20.29.2
Each member
 
of the
 
Group and
 
Holdco has
 
conducted its
 
businesses in
 
compliance
with
 
applicable
 
anti-corruption laws
 
and
 
has
 
instituted
 
and
 
maintained
 
policies and
procedures designed to promote and achieve compliance with such
 
laws.
20.30
Guarantors
20.30.1
As at the Closing Date, the
 
date of each Utilisation Request
 
and each Utilisation Date,
each Material Subsidiary, as at each relevant date, is or will be an Obligor.
20.30.2
As at the Closing Date, the
 
date of each Utilisation Request
 
and each Utilisation Date,
the aggregate contribution
 
of the Guarantors who
 
are members of the
 
Covenant Group
(calculated on an unconsolidated basis and excluding all intra- Covenant Group items
and investments in Subsidiaries
 
of any member of
 
the Covenant Group)
 
represents not
less
 
than
 
90%
 
of
 
the
 
gross
 
assets,
 
Consolidated
 
EBITDA
 
and
 
total
 
revenue
 
of
 
the
Covenant Group, in each case, on each relevant date.
20.31
Dormant Subsidiaries
As at the Closing Date, the date of each Utilisation Request and each Utilisation Date, each
of the companies listed in Annexure J (Dormant Subsidiaries) is a Dormant Subsidiary.
20.32
Times for making representations and warranties
20.32.1
Unless
 
a representation
 
and warranty
 
is
 
expressed to
 
be
 
given at
 
a specific
 
date (in
which case it shall not be deemed to be repeated on another date),
 
each representation
and warranty is deemed to be repeated by -
20.32.1.1
each Obligor on
 
the Closing Date,
 
on the date
 
of each Utilisation
 
Request, on the
date of each Utilisation and on the first day of each Interest Period;
97
20.32.1.2
each Additional Obligor, on the
 
day on which it becomes (or it is
 
proposed that
it
 
becomes)
 
an
 
Obligor,
 
on
 
the
 
date
 
of
 
each
 
Utilisation
 
Request,
 
on
 
each
Utilisation Date and on the first day of each Interest Period.
20.32.2
When
 
a
 
representation
 
and
 
warranty
 
is
 
repeated,
 
it
 
is
 
made
 
with
 
reference
 
to
 
the
circumstances existing at the time of repetition.
21
INFORMATION UNDERTAKINGS
The
 
undertakings in
 
this clause
 
remain in
 
force from
 
the
 
Signature Date
 
for so
 
long as
 
any
amount is outstanding under the Finance Documents or any Commitment
 
is in force.
21.1
Financial statements
The Term/RCF Borrower shall supply to the Facility Agent -
21.1.1
as soon as the same
 
become available, but in
 
any event within 12
 
Months after the last
day of
 
each financial year
 
of the
 
Covenant Group for
 
their financial years
 
ending on
30 June 2024 and 30 June 2025 -
21.1.1.1
the Term/RCF
 
Borrower's audited consolidated
 
annual financial statements
 
for
that financial year;
21.1.1.2
the
 
audited
 
financial
 
statements
 
(consolidated
 
if
 
appropriate)
 
of
 
each
 
other
Obligor (other than Holdco) for that financial year; and
 
21.1.1.3
the Term/RCF Borrower's
pro forma
annual income
 
statement, statement
 
of cash
flows
 
and
 
balance
 
sheet
 
for
 
that
 
year
 
that
 
excludes
 
the
 
financial
 
results
 
and
position of the Excluded Subsidiaries,
 
along with sufficient explanatory notes
 
to
understand any exclusions;
21.1.2
as soon as the same become available, but in any
 
event within 6 Months after the last
day of
 
each financial year
 
of the
 
Covenant Group for
 
their financial years
 
ending on
or after 30 June 2026 -
21.1.2.1
the Term/RCF
 
Borrower's audited consolidated
 
annual financial statements
 
for
that financial year;
21.1.2.2
the
 
audited
 
financial
 
statements
 
(consolidated
 
if
 
appropriate)
 
of
 
each
 
other
Obligor (other than Holdco) for that financial year; and
 
98
21.1.2.3
the
 
Term/RCF
 
Borrower's
pro
 
forma
consolidated annual
 
financial statements
for
 
that
 
financial
 
year
 
that
 
excludes
 
the
 
financial
 
results
 
and
 
position,
 
to
 
the
extent included, of the Excluded Subsidiaries over that period;
21.1.3
as soon as the
 
same become available, but in
 
any event within 120
 
days after the last
day of each financial year of Holdco -
21.1.3.1
Holdco's audited
 
consolidated annual
 
financial statements
 
for that financial
 
year;
and
 
21.1.3.2
Holdco's
pro
 
forma
 
consolidated annual
 
financial statements
 
for that
 
financial
year that excludes
 
the financial results
 
and position, to
 
the extent included,
 
of the
Excluded
 
Subsidiaries
 
and
 
each
 
other
 
Subsidiary
 
of
 
Holdco
 
which
 
is
 
not
 
a
member of the Covenant Group, over the period;
21.1.4
as soon as the same become
 
available, but in any event within
 
50 days after the end of
each quarter of
 
each of its
 
financial years, Holdco's
 
most recent SEC
 
Form, together
with an
 
aggregation of the
 
cashflow statement,
 
income statement and
 
balance sheets
related to that SEC
 
Form and such other
 
SEC Forms published prior
 
to that SEC Form
so as to enable a
 
measurement of the 12
 
month period ending on
 
the date on which
 
the
last SEC Form was published;
 
and
21.1.5
as soon
 
as the
 
same become
 
available, but
 
in any
 
event within
 
50 days
 
after the
 
last
day
 
of
 
each
 
quarter
 
of
 
each
 
financial
 
year
 
of
 
the
 
Covenant
 
Group
 
the
 
Term/RCF
Borrower’s -
21.1.5.1
aggregated
 
management
 
accounts
 
for
 
that
 
quarter
 
(and
 
to
 
include
 
cumulative
consolidated management accounts
 
for the financial
 
year of the
 
Covenant Group
to date);
 
21.1.5.2
pro
 
forma
 
aggregated
 
management
 
accounts
 
for
 
that
 
quarter
 
(and
 
to
 
include
cumulative
 
consolidated
 
management
 
accounts
 
for
 
the
 
financial
 
year
 
of
 
the
Covenant Group to date), that excludes
 
the financial results and position, to
 
the
extent included, of the Excluded Subsidiaries over that period.
21.2
Requirements as to financial statements
21.2.1
The Term/RCF Borrower shall ensure that each
 
set of financial statements,
 
SEC Form
and management accounts delivered pursuant to clause
 
–
99
21.2.1.1
is
 
certified
 
by
 
a
 
director
 
of
 
the
 
relevant
 
company
 
as
 
fairly
 
representing
 
its
financial
 
condition
 
as
 
at
 
the
 
date
 
as
 
to
 
which
 
those
 
financial statements,
 
SEC
Form or management accounts were drawn up;
21.2.1.2
comprises at
 
least a
 
balance sheet,
 
profit and
 
loss account
 
and cashflow
 
statement
for the
 
financial period
 
then ended,
 
and (in
 
the case
 
of management
 
accounts)
for the financial year to date and the period of 12 months ending on the last day
of the half year financial period;
21.2.1.3
is
 
prepared
 
using
 
IFRS
 
or
 
GAAP
 
(as
 
applicable),
 
accounting
 
practices
 
and
financial reference periods
 
consistent with
 
those applied in
 
the preparation of
 
the
Original
 
Financial
 
Statements
 
unless,
 
in
 
relation
 
to
 
any
 
set
 
of
 
financial
statements, it notifies the Facility Agent that there has been a
 
change in IFRS or
GAAP (as
 
applicable),
 
those accounting
 
practices or
 
those reference
 
periods; and
21.2.1.4
contains,
 
in
 
narrative
 
form,
 
commentary
 
in
 
reasonable
 
detail
 
on
 
the
 
financial
results
 
and
 
the
 
financial
 
position
 
of
 
the
 
person
 
to
 
which
 
those
 
financial
statements relate.
21.2.2
If the Term/RCF Borrower
 
notifies the
 
Facility Agent
 
of any
 
change in IFRS
 
or GAAP
(as applicable),
 
as contemplated
 
by clause
, it
 
shall procure
 
that its
 
Auditors
(or, if appropriate,
 
the Auditors
 
of the
 
relevant member
 
of the
 
Covenant Group)
 
deliver
to the Facility Agent –
21.2.2.1
a description
 
of
 
any change
 
necessary for
 
those financial
 
statements to
 
reflect
IFRS
 
or
 
GAAP
 
(as
 
applicable),
 
the
 
accounting
 
practices
 
and
 
the
 
reference
periods as applied in the preparation of the Original Financial Statements;
 
and
21.2.2.2
sufficient information, in
 
form and substance
 
reasonably required by
 
the Facility
Agent,
 
to
 
enable
 
the
 
Lenders
 
to
 
determine
 
whether
 
clause
 
(Financial
Covenants) has been complied with
 
and make an accurate comparison
 
between
the
 
financial
 
position
 
indicated
 
in
 
those
 
financial
 
statements
 
and
 
the
 
Original
Financial Statements.
21.2.3
Any reference in this Agreement to
 
those financial statements shall be construed as
 
a
reference to those financial statements as
 
adjusted to reflect the basis upon
 
which the
Original Financial Statements were prepared.
21.3
Compliance Certificate
100
21.3.1
The Term/RCF
 
Borrower shall supply a Compliance Certificate to the
 
Facility Agent
with each set of financial statements,
 
SEC Form and management accounts delivered
pursuant to clause
 
and clause
 
(Financial statements).
21.3.2
Each Compliance Certificate shall, amongst others –
21.3.2.1
be signed by chief financial officer of
 
the Group and at least one director of
 
the
Term/RCF Borrower;
21.3.2.2
confirm that the Covenant Group is in compliance with the provisions of clause
21.3.2.3
set
 
out
 
(in
 
reasonable
 
detail)
 
computations
 
and
 
calculations
 
as
 
to
 
compliance
with clause
 
(Financial Covenants) as at the applicable
 
Measurement Date for
the purposes of determining compliance with clause
 
(Financial Covenants);
provided
 
that
 
the
 
Compliance
 
Certificate
 
delivered
 
together
 
with
 
the
 
financial
statements
 
pursuant
 
to
 
clause
 
or
,
 
for
 
the
 
purposes
 
of
 
calculating
Consolidated EBITDA -
21.3.2.3.1
all references
 
to "Group"
 
shall be
 
replaced with
 
references to
 
"Covenant
Group"; and
 
21.3.2.3.2
any and
 
all costs
 
of Holdco
 
not already
 
taken into
 
account in
 
calculating
consolidated operating
 
income of
 
the Term/RCF Borrower
 
shall be
 
deemed
to be costs of the Term/RCF Borrower;
21.3.2.4
include any adjustments required to
 
reverse the effect of IFRS16 with
 
regards to
Relevant Operating Leases
 
for purposes of
 
determining Consolidated EBITDA
and Total Borrowings;
21.3.2.5
confirm compliance with
 
the requirements of
 
clause
 
(Guarantor coverage)
as at the relevant Measurement Date; and
21.3.2.6
if requested in
 
writing by the
 
Facility Agent, be
 
accompanied by a
 
report from
the Auditors in the
 
agreed form certifying that the
 
adjustments contemplated in
clause
 
above represent
 
an accurate
 
reflection of
 
the revised
 
EBITDA,
gross assets
 
and revenue
 
of the
 
Covenant Group,
 
with such
 
report by
 
the Auditors
being, in the absence of manifest error, conclusive and binding on all Parties.
101
21.3.3
The Facility Agent
 
may not deliver
 
a notice pursuant
 
to clause
 
more than four
times during the period up to the Final Discharge Date, unless a Default is continuing
or,
 
in
 
the
 
reasonable
 
opinion of
 
the
 
Facility
 
Agent,
 
is
 
likely
 
to
 
occur
 
as
 
a
 
result
 
of
obtaining that Compliance Certificate.
21.4
Board packs
If
 
a
 
Default has
 
occurred and
 
is
 
continuing,
 
the
 
Term/RCF
 
Borrower
 
shall deliver
 
to
 
the
Facility Agent at the
 
same time they are
 
distributed to the
 
relevant board of directors,
 
copies
of all board packs submitted to the board of directors of an Obligor.
21.5
Insurance reports
The
 
Term/RCF
 
Borrower
 
shall
 
deliver
 
to
 
the
 
Facility
 
Agent
 
annually,
 
on
 
or
 
before
 
31
December in any
 
year (a reporting date),
 
the following information, in
 
form and substance
satisfactory to the Facility Agent -
21.5.1
a summary
 
of each
 
Insurance policy
 
maintained by
 
or on
 
behalf of
 
a member
 
of the
Group as at the reporting date;
21.5.2
confirmation that all
 
premiums due in
 
respect of the
 
Insurances of the
 
Group for the
full period of the then current financial year have been paid in full;
 
and
21.5.3
a summary of
 
all material changes
 
(if any) made
 
to a contract
 
or policy of
 
insurance
since the previous reporting date or confirmation that there were no such
 
changes.
21.6
Financial year-end
Without the express prior consent of the Facility Agent, an
 
Obligor (other than Adumo and
its Subsidiaries)
 
shall not
 
change the
 
date of
 
its financial
 
year end
 
from 30
 
June and
 
shall
ensure that -
21.6.1
the financial year end of each
 
member of the Covenant Group falls on the
 
same date;
and
21.6.2
the financial year end of Adumo and each of its Subsidiaries is changed to 30 June as
soon as reasonably possible but in any event by no later 30 June 2025
.
 
21.7
Auditors
102
21.7.1
Holdco
 
must
 
ensure
 
that
 
one
 
of
 
the
 
firms
 
named
 
in
 
or
 
approved
 
pursuant
 
to
 
the
definition
 
of
Auditors
 
is
 
retained
 
to
 
audit
 
its
 
and
 
the
 
Term/RCF
 
Borrower's
consolidated annual financial statements.
21.7.2
If
 
the
 
Facility
 
Agent wishes
 
to
 
discuss the
 
financial position
 
of
 
any
 
member
 
of
 
the
Covenant
 
Group
 
with
 
the
 
Auditors,
 
the
 
Facility
 
Agent
 
may
 
notify
 
the
 
Term/RCF
Borrower,
 
stating the
 
questions or
 
issues which
 
the Facility
 
Agent wishes
 
to discuss
with the Auditors.
 
In this
 
event, the
 
Term/RCF Borrower shall ensure
 
that the
 
Auditors
are authorised (at the expense of the Term/RCF Borrower) -
21.7.2.1
to discuss the financial
 
position of each
 
member of the
 
Covenant Group with the
Facility Agent on request in writing from the Facility Agent; and
21.7.2.2
to disclose to
 
the Facility Agent
 
for the Finance
 
Parties any information
 
which
the Facility Agent may reasonably request in writing.
21.7.3
The Facility Agent may
 
not give notice under
 
clause
 
more than once in
any
 
financial
 
year
 
of
 
the
 
Term/RCF
 
Borrower,
 
unless
 
it
 
reasonably
 
believes
 
that
 
a
Default is continuing or may have occurred or may occur, and notifies the Term/RCF
Borrower that it is exercising its rights under this clause
21.8
Presentations
Once
 
in
 
every
 
financial
 
year
 
of
 
the
 
Term/RCF
 
Borrower
 
if
 
requested
 
in
 
writing
 
by
 
the
Facility Agent,
 
or
 
within 7
 
days
 
following a
 
request in
 
writing by
 
the Facility
 
Agent if
 
a
Default is
 
continuing, at least
 
the chief financial
 
officer of
 
the Group
 
and a director
 
of the
Term/RCF
 
Borrower must,
 
if
 
requested to
 
do
 
so
 
by the
 
Facility
 
Agent in
 
writing, give
 
a
presentation (on a date and at a
 
venue agreed with the Facility Agent)
 
to the Finance Parties
as to -
21.8.1
the on-going business and financial performance of the Covenant Group;
 
and
21.8.2
any other matter which a Finance Party may reasonably request in writing.
21.9
Notification of default
21.9.1
Each Obligor
 
shall notify
 
the Facility
 
Agent of
 
any Default
 
(and the
 
steps, if
 
any, being
taken
 
to
 
remedy
 
it)
 
promptly
 
upon
 
becoming
 
aware
 
of
 
its
 
occurrence
 
(unless
 
that
Obligor is aware that a notification has already been provided by another
 
Obligor).
103
21.9.2
As soon as
 
reasonably practical following a
 
request in writing
 
by the Facility
 
Agent,
the Term/RCF Borrower shall supply to the Facility Agent a certificate signed by two
of its directors or
 
senior officers on its
 
behalf certifying that no Default is
 
continuing
(or if a Default is continuing, specifying the Default and the steps, if any, being taken
to remedy it).
21.10
Information - miscellaneous
The Term/RCF
 
Borrower shall supply to
 
the Facility Agent (in
 
sufficient copies for
 
all the
Lenders, if the Facility Agent so requests in writing) -
21.10.1
at
 
the
 
same
 
time
 
as
 
they
 
are
 
dispatched,
 
copies
 
of
 
all
 
documents
 
dispatched
 
by
 
an
Obligor to its shareholders -
21.10.1.1
as required pursuant
 
to the Companies
 
Act (or applicable analogous
 
legislation
in
 
that
 
Obligor's
 
jurisdiction
 
of
 
incorporation
 
or
 
formation)
 
or
 
that
 
Obligor's
constitutional documents; or
 
21.10.1.2
which
 
contain
 
information
 
in
 
respect
 
of
 
any
 
Environmental
 
Matters,
 
matters
relating
 
to
 
any
 
Material
 
Agreement
 
(including,
 
in
 
each
 
case,
 
the
 
actual
 
or
potential
 
withdrawal,
 
suspension,
 
cancellation,
 
revocation,
 
other
 
termination,
amendment or renewal
 
of any Material Agreement)
 
and matters which
 
will, or is
reasonably
 
likely
 
to,
 
adversely
 
affect
 
the
 
Senior
 
Facilities
 
and/or
 
any
 
of
 
the
Finance Parties' rights under
 
and in terms of
 
the Finance Documents (or any
 
of
them);
21.10.2
copies
 
of
 
all
 
documents
 
dispatched by
 
an
 
Obligor to
 
its
 
creditors
 
generally
 
(or
 
any
class of them), in each case at the same time as they are dispatched;
21.10.3
promptly upon becoming aware
 
of them, details and
 
copies of any changes
 
proposed
to
 
or
 
made
 
to
 
its
 
constitutional
 
documents
 
or
 
the
 
constitutional
 
documents
 
of
 
any
Obligor,
 
including
 
the
 
filing
 
of
 
any
 
Memorandum
 
of
 
Incorporation
 
under
 
the
Companies Act, where
 
such changes do,
 
or are reasonably
 
likely to, adversely
 
affect
the interest of the Finance Parties;
21.10.4
promptly
 
upon
 
becoming
 
aware
 
of
 
them,
 
the
 
details
 
of
 
any
 
litigation,
 
arbitration,
administrative
 
proceedings,
 
liquidation
 
applications,
 
winding
 
up
 
applications
 
or
business rescue
 
applications which
 
are current,
 
threatened or
 
pending against
 
it, any
other member
 
of the Covenant
 
Group (other than
 
any Excluded
 
Subsidiary) or
 
Holdco,
and,
 
in
 
the
 
case
 
of
 
any
 
litigation, arbitration
 
or
 
administrative
 
proceedings, involve
104
liability in an aggregate
 
amount which (together with any
 
other liability in respect
 
of
litigation,
 
arbitration
 
or
 
administrative
 
proceedings)
 
is
 
in
 
excess
 
of
 
R10,000,000
 
in
aggregate (or
 
its equivalent in
 
another currency or
 
currencies) or which,
 
if adversely
determined, would
 
or might
 
reasonably be
 
expected to
 
have a
 
Material Adverse
 
Effect;
21.10.5
promptly upon
 
the implementation
 
of any
 
disposal or
 
acquisition of
 
any shares
 
by a
member of the Group, a
 
Group Structure Chart, in
 
a substantially similar format
 
to the
Group Structure Chart attached as Annexure L (Group Structure Chart);
 
21.10.6
within
 
a
 
reasonable
 
time
 
of
 
receipt
 
of
 
written
 
request,
 
an
 
up
 
to
 
date
 
copy
 
of
 
the
securities register of any Obligor or any other member of the Covenant
 
Group;
21.10.7
within
 
a
 
reasonable
 
time
 
of
 
receipt
 
of
 
written
 
request,
 
such
 
further
 
information
regarding
 
compliance
 
by
 
Holdco
 
or
 
any
 
other
 
member
 
of
 
the
 
Group
 
with
Environmental
 
Laws,
 
as
 
any
 
Finance
 
Party
 
(through
 
the
 
Facility
 
Agent)
 
may
reasonably request
 
in
 
writing, including
 
in
 
relation to
 
financial provisioning
 
by any
member of the Group;
21.10.8
promptly
 
on
 
request,
 
such
 
further
 
information
 
regarding
 
the
 
actual
 
or
 
potential
withdrawal,
 
suspension,
 
cancellation,
 
revocation,
 
other
 
termination,
 
amendment
 
or
renewal of any
 
Material Agreement, as
 
any Finance Party
 
(through the Facility Agent)
may reasonably request in writing;
21.10.9
promptly upon receipt
 
of
 
information regarding
 
CPS and its
 
Subsidiaries, such further
information
 
regarding
 
CPS
 
and
 
its
 
Subsidiaries
 
as
 
any
 
Finance
 
Party
 
(through
 
the
Facility Agent) may reasonably request in writing;
21.10.10
promptly,
 
such
 
further
 
information
 
regarding
 
the
 
financial
 
condition,
 
business
 
and
operations of
 
it, Holdco
 
or any
 
other member
 
of the
 
Covenant Group
 
(other than
 
an
Excluded Subsidiary),
 
or regarding
 
any asset
 
subject to
 
Transaction Security,
 
as any
Finance Party (through the Facility Agent) may reasonably request
 
in writing; or
21.10.11
promptly,
 
notice
 
of
 
any
 
change
 
in
 
authorised
 
signatories
 
in
 
respect
 
of
 
the
 
Finance
Documents of it or
 
any other Obligor signed
 
by a director or
 
company secretary of it
or such other
 
Obligor (as
 
the case
 
may be) accompanied
 
by specimen
 
signatures of
 
any
new authorised signatories
 
(and such additional
 
information or documentation
 
as the
Facility Agent
 
may require
 
in order
 
to verify
 
that any
 
such signatory
 
has been
 
duly
authorised).
21.11
Know your customer checks
105
21.11.1
If -
21.11.1.1
the introduction
 
of or
 
any change
 
in (or
 
in the
 
interpretation, administration or
application of) any law or regulation made after the Signature Date;
21.11.1.2
any change in the status of any member of the Group after the Signature Date;
 
21.11.1.3
the on-going compliance with any know your customer or similar identification
procedures; or
21.11.1.4
a proposed
 
Transfer by
 
a Lender of
 
any of
 
its rights
 
and obligations under
 
this
Agreement to a party that is not a Lender prior to such Transfer,
obliges the Facility
 
Agent or
 
any Lender (or, in
 
the case of
 
clause
, any
prospective new Lender) to comply
 
with know your customer
 
or similar identification
procedures
 
(whether
 
in
 
terms
 
of
 
the
 
Financial
 
Intelligence
 
Centre
 
Act,
 
2001
 
or
otherwise) in circumstances where the
 
necessary information is not already
 
available
to it, a member of the Group shall promptly
 
upon the request in writing of the Facility
Agent or any Lender
 
supply, or
 
procure the supply of, such
 
documentation and other
evidence as is
 
reasonably requested
 
by the Facility
 
Agent (for
 
itself or on
 
behalf of
 
any
Lender)
 
or
 
any
 
Lender
 
(for
 
itself
 
or,
 
in
 
the
 
case
 
of
 
the
 
event
 
described
 
in
 
clause
, on
 
behalf of
 
any prospective
 
new Lender)
 
in order
 
for the
 
Facility
Agent, such
 
Lender or,
 
in the
 
case of
 
the event
 
described in
 
clause
,
any
 
prospective
 
new
 
Lender
 
to
 
carry
 
out
 
and
 
be
 
satisfied
 
it
 
has
 
complied
 
with
 
all
necessary know your
 
customer or other
 
similar checks under
 
all applicable laws
 
and
regulations pursuant to the transactions contemplated in the Finance
 
Documents.
21.11.2
Each Lender
 
shall as
 
soon as
 
reasonably practicable
 
following request
 
in writing
 
by
the
 
Facility
 
Agent, supply,
 
or
 
procure the
 
supply
 
of,
 
such
 
documentation and
 
other
evidence as
 
is reasonably requested
 
by the
 
Facility Agent (for
 
itself) in
 
order for the
Facility Agent
 
to carry
 
out and
 
be satisfied
 
it has
 
complied with
 
all necessary
 
know
your
 
customer
 
or
 
other
 
similar
 
checks
 
under
 
all
 
applicable
 
laws
 
and
 
regulations
pursuant to the transactions contemplated in the Finance Documents.
21.11.3
Following the
 
giving of
 
any notice
 
pursuant to
 
clause
 
(Additional WCF
 
Borrower)
or clause
 
(Additional Guarantors), if
 
the accession
 
of such
 
Additional Obligors
obliges the
 
Facility Agent
 
or any
 
Lender to
 
comply with
 
know your
 
customer or
 
similar
identification
 
procedures
 
in
 
circumstances
 
where
 
the
 
necessary
 
information
 
is
 
not
already
 
available
 
to
 
it,
 
the
 
Term/RCF
 
Borrower
 
shall promptly
 
upon
 
the
 
request in
writing
 
of
 
the
 
Facility
 
Agent
 
or
 
any
 
Lender
 
supply,
 
or
 
procure
 
the
 
supply
 
of,
 
such
106
documentation and
 
other evidence
 
as is
 
reasonably requested
 
by the
 
Facility Agent
 
(for
itself
 
or
 
on
 
behalf
 
of
 
any
 
Lender)
 
or
 
any
 
Lender
 
(for
 
itself
 
or
 
on
 
behalf
 
of
 
any
prospective
 
new
 
Lender)
 
in
 
order
 
for
 
the
 
Facility
 
Agent
 
or
 
such
 
Lender
 
or
 
any
prospective new Lender
 
to carry out
 
and be satisfied
 
it has complied
 
with all necessary
know your customer or other similar checks under all applicable laws and regulations
pursuant
 
to
 
the
 
accession
 
of
 
such
 
Subsidiary
 
to
 
this
 
Agreement
 
as
 
an
 
Additional
Obligor.
21.12
FATCA
 
Undertakings
21.12.1
Subject to
 
clause
, each
 
Party shall, within
 
10 Business
 
Days of a
 
reasonable
request in writing by another Party -
21.12.1.1
confirm in writing to that other Party whether it is -
21.12.1.1.1
a FATCA
 
Exempt Party; or
21.12.1.1.2
not a FATCA
 
Exempt Party; and
21.12.1.2
supply
 
to
 
that
 
other
 
Party
 
such
 
forms,
 
documentation
 
and
 
other
 
information
relating to its
 
status under FATCA as that other Party
 
reasonably requests for
 
the
purposes of that other Party’s compliance with FATCA;
 
and
21.12.1.3
supply
 
to
 
that
 
other
 
Party
 
such
 
forms,
 
documentation
 
and
 
other
 
information
relating to
 
its status
 
as that
 
other Party
 
reasonably requests for
 
the purposes
 
of
that
 
other
 
Party's
 
compliance
 
with
 
any
 
other
 
law,
 
regulation,
 
or
 
exchange
 
of
information regime.
21.12.2
If a
 
Party confirms
 
to another
 
Party pursuant
 
to clause
 
that it
 
is a
 
FATCA
Exempt Party and
 
it subsequently becomes
 
aware that it
 
is not, or
 
has ceased to
 
be a
FATCA
 
Exempt Party, that Party shall promptly notify that other Party in writing.
21.12.3
Clause
 
shall not oblige
 
any Finance Party
 
to do anything,
 
and clause
shall not oblige any
 
other Party to
 
do anything, which
 
would or might in
 
its reasonable
opinion constitute a breach of -
21.12.3.1
any law or regulation;
21.12.3.2
any fiduciary duty; or
21.12.3.3
any duty of confidentiality.
 
 
 
 
 
 
 
 
 
 
 
 
 
107
21.12.4
If a
 
Party fails
 
to confirm
 
whether or
 
not it
 
is a
 
FATCA
 
Exempt Party
 
or to
 
supply
forms,
 
documentation
 
or
 
other
 
information
 
requested
 
in
 
accordance
 
with
clause
 
or
 
(including,
 
for
 
the
 
avoidance
 
of
 
doubt,
 
where
 
clause
 
applies),
 
then
 
such
 
Party
 
shall
 
be
 
treated
 
for
 
the
 
purposes
 
of
 
the
 
Finance
Documents (and
 
payments under
 
them) as
 
if it
 
is
 
not a
 
FATCA
 
Exempt
 
Party until
such
 
time
 
as
 
the
 
Party
 
in
 
question
 
provides
 
the
 
requested
 
confirmation,
 
forms,
documentation or other information.
22
FINANCIAL COVENANTS
22.1
Undertakings in relation to financial condition
22.1.1
Net Debt to EBITDA Ratio
The
 
Obligors
 
shall
 
ensure
 
that
 
the
 
Net
 
Debt
 
to
 
EBITDA
 
Ratio
 
in
 
respect
 
of
 
any
Measurement Period specified in column 1 below shall not exceed the ratio set
 
out in
column 2 below opposite that Measurement Period -
Measurement Period
 
[Column 1]
Ratio
 
[Column 2]
Each Measurement Period ending on or before 31 December 2025
3.25
Each Measurement Period ending after 31 December 2025 but on or
before 31 December 2026
 
3.00
Each Measurement Period ending after 31 December 2026
 
but on or
before 31 December 2027
2.50
Each Measurement Period ending after 31 December 2027
2.00
22.1.2
Interest Cover Ratio
The Obligors shall ensure that
 
the Interest Cover Ratio
 
in respect of any Measurement
Period specified in column 1 below is greater than the ratio set out
 
in column 2 below
opposite that Measurement Period -
 
 
 
 
 
 
 
 
 
 
 
 
108
Measurement Period
 
[Column 1]
Ratio
 
[Column 2]
Each Measurement Period ending on or before 31 December 2025
1.75
Each Measurement Period ending after 31 December 2025 but on or
before 31 December 2026
2.00
Each Measurement Period ending after 31 December 2026
 
3.00
22.2
Basis of calculations
22.2.1
All the
 
terms defined
 
in clause
 
(Financial definitions)
 
are to
 
be determined
 
on a
consolidated basis
 
and (except
 
as may
 
be expressly
 
included or
 
excluded in
 
the relevant
definition, or as stated below) in accordance with IFRS.
22.2.2
The financial
 
undertakings in
 
clauses
 
and
 
(Undertakings in
 
relation to
financial condition) (unless
 
expressly otherwise stated)
 
shall apply on each
 
day during
the term of this Agreement.
22.2.3
Compliance
 
(or
 
otherwise)
 
with
 
the
 
financial
 
undertakings
 
in
 
clauses
,
 
and
 
(Undertakings in relation to
 
financial condition) as at
 
each Measurement Date
shall
 
be
 
verified
 
by
 
reference
 
to
 
(i)
 
the
 
financial
 
statements,
 
SEC
 
Form
 
and
management
 
accounts
 
of
 
Holdco
 
and/or
 
the
 
Covenant
 
Group
 
delivered
 
under
clause
 
(Financial
 
statements)
 
as
 
at
 
that
 
Measurement
 
Date
 
and
 
(ii)
 
the
Compliance Certificate delivered pursuant to
 
clause
 
(Compliance Certificate) in
relation to that Measurement Date.
22.2.4
No item shall be deducted or credited more than once in any calculation.
22.2.5
Where
 
an
 
amount
 
in
 
any
 
financial
 
statements
 
delivered
 
pursuant
 
to
 
clause
(Information
 
Undertakings)
 
is
 
not
 
denominated
 
in
 
Rand,
 
it
 
shall
 
be
 
converted
 
into
Rand at the rates specified in those financial statements.
22.3
Equity cure
In this clause -
22.3.1
Cure
 
Amount
 
means
 
the
 
amount
 
of
 
cash
 
proceeds
 
received
 
by
 
the
 
Term/RCF
Borrower
 
from
 
a
 
Shareholder
 
Contribution
 
to
 
be
 
applied
 
in
 
accordance
 
with
 
this
clause; and
109
22.3.2
Cure
 
Period
, in
 
relation to
 
a Measurement
 
Period, means
 
the period
 
ending on
 
the
earlier
 
of
 
the
 
date
 
on
 
which
 
the
 
Term/RCF
 
Borrower
 
is
 
required
 
to
 
deliver
 
a
Compliance Certificate in respect
 
of that Measurement
 
Period and the date on
 
which a
Compliance Certificate is actually delivered in respect of that Measurement
 
Period.
22.3.3
If, as at a
 
Measurement Date, the
 
Term/RCF Borrower calculates that
 
any requirement
of
 
clauses
 
or
 
(Undertakings in
 
relation to
 
financial condition)
 
(each a
Relevant
 
Financial
 
Undertaking
)
 
is
 
not
 
met,
 
the
 
Term/RCF
 
Borrower
 
may
 
treat
(solely
 
for
 
the
 
purpose
 
of
 
measuring
 
compliance
 
with
 
the
 
Relevant
 
Financial
Undertaking under this
 
clause, and not
 
for any other
 
purpose) a Cure
 
Amount received
and paid to
 
the Facility Agent
 
(for the account
 
of the Senior
 
Term Facility Lenders and
Senior
 
RCF
 
Lenders)
 
in
 
accordance
 
with
 
clause
 
(Cure
 
Amounts
 
-
 
mandatory
prepayment) within
 
the applicable
 
Cure Period,
 
by way
 
of a
 
notional adjustment,
 
as
follows -
22.3.3.1
in
 
relation
 
to
 
the
 
Net
 
Debt
 
to
 
EBITDA
 
Ratio,
 
as
 
a
 
reduction
 
of
 
Total
 
Net
Borrowings by an equivalent amount at the relevant Measurement Date;
 
and
22.3.3.2
in relation to the Interest
 
Cover Ratio, as giving rise to a
 
reduction in Total
 
Net
Finance Costs in
 
the amount by
 
which Total Net Finance Costs
 
would have been
reduced if
 
the Senior
 
Term Facility Loans
 
and Senior
 
RCF Loans
 
had been
 
repaid
(
pro
 
rata
 
across all
 
Senior Term
 
Facilities and
 
the Senior
 
RCF) in
 
an amount
equal
 
to
 
the
 
Cure
 
Amount
 
on
 
the
 
date
 
which
 
falls
 
12 months
 
before
 
the
applicable Measurement Date.
22.3.4
Only so much
 
of a Cure
 
Amount as is
 
required to ensure
 
compliance with the
 
Relevant
Financial Undertakings may be taken
 
into account by way of the
 
notional adjustments
referred to in
 
clause
 
and
 
above. For the
 
purposes of clause
above, Total
 
Net Finance Costs shall be recalculated, taking into account the relevant
reduction resulting from the
 
operation of clause
 
above, for each financial
 
half
year of the
 
Covenant Group which
 
occurs during the
 
12 month-period ending
 
on the
applicable
 
Measurement
 
Date.
 
In
 
respect
 
of
 
the
 
relevant
 
subsequent
 
Measurement
Dates
 
where the
 
Measurement Period
 
ending on
 
that date
 
includes a
 
part of
 
that 12
month-period (each such part of that Measurement Period,
 
for the purposes hereof, an
Overlapping Period
), the Total
 
Net Finance Costs amount for
 
the full Measurement
Period shall
 
include those
 
amounts for
 
each Overlapping
 
Period taking
 
into account
any notional reduction allocable to that Overlapping Period under
 
this clause.
110
22.3.5
Following payment of a Cure Amount to the Facility Agent, the Term/RCF Borrower
shall, by no
 
later than the
 
last day of
 
the relevant Cure
 
Period, deliver to
 
the Facility
Agent the
 
Compliance Certificate
 
which the
 
Term/RCF Borrower is
 
required to
 
deliver
in terms
 
of clause
, provided
 
that such
 
Compliance Certificate
 
shall include
 
the
breach of the Relevant
 
Financial Covenant,
 
the application of
 
the Cure Amount
 
within
the Cure Period and reflect the results of -
22.3.5.1
the
 
calculations of
 
all Relevant
 
Financial Undertakings
 
before the
 
payment of
the
 
Cure Amount
 
in
 
accordance with
 
clause
 
(Cure Amounts
 
- mandatory
prepayment) and the application of clauses
 
and
; and
22.3.5.2
the recalculations
 
of all
 
Relevant Financial
 
following the
 
payment of
 
the Cure
Amount
 
in
 
accordance
 
with
 
clause
 
(Cure
 
Amounts
 
-
 
mandatory
prepayment) and the application of clauses
 
and
22.3.6
If, following payment
 
to the Facility
 
Agent of a
 
Cure Amount and
 
a recalculation of
the
 
Relevant
 
Financial
 
Undertakings,
 
as
 
contemplated
 
under
 
clause
,
 
the
Relevant
 
Financial
 
Undertakings
 
are
 
met,
 
the
 
requirements
 
of
 
clause
(Undertakings in relation
 
to financial
 
condition) will be
 
deemed to have
 
been satisfied,
retrospectively on the relevant
 
Measurement Date, and any Default
 
which arose under
clause
 
(Financial Covenants) as a result of the original failure to comply shall be
deemed to have been remedied.
22.3.7
The
 
rights
 
of
 
the
 
Term/RCF
 
Borrower
 
under
 
this
 
clause
 
are
 
subject
 
to
 
the
following restrictions -
22.3.7.1
a Cure
 
Amount may
 
not be
 
raised and
 
taken into
 
account under
 
this clause for
two consecutive Measurement Periods; and
22.3.7.2
no more than three Cure Amounts in total may
 
be taken into account before the
Final Discharge Date for the purposes of this clause.
22.4
Cure Amounts - mandatory prepayment
22.4.1
The Term/RCF
 
Borrower shall
 
apply all
 
the proceeds
 
of any
 
Cure Amount
 
received
by it in or
 
towards payment, repayment or prepayment of the
 
Loans and other Senior
Facility Outstandings under the Senior Term
 
Facilities and the Senior RCF,
 
promptly
upon receipt and, in any event, no later than the last day of the relevant Cure
 
Period.
111
22.4.2
All amounts paid,
 
repaid or prepaid
 
under this clause
 
shall be applied
 
in the order
 
of
priority set out in (and otherwise as required
 
under) clause
 
(Application of partial
prepayments).
23
GENERAL UNDERTAKINGS
Each Obligor is bound
 
by the undertakings set out
 
in this clause
 
relating to it or
 
the Group or
the
 
Covenant Group
 
(as
 
applicable), provided
 
that any
 
undertaking in
 
relation to
 
the
 
Covenant
Group shall
 
be construed
 
to exclude
 
the Excluded
 
Subsidiaries, save
 
in relation
 
to the
 
undertakings
contained in
 
clauses
,
,
 
and
.
 
The undertakings
 
in
 
this clause
 
remain in
force
 
from
 
the
 
Signature
 
Date
 
for
 
so
 
long
 
as
 
any
 
amount
 
is
 
outstanding
 
under
 
the
 
Finance
Documents or any Commitment is in force.
23.1
Authorisations
Each Obligor shall
 
(and the Obligors shall
 
ensure that each
 
other member of the
 
Covenant
Group will) promptly -
23.1.1
obtain, comply
 
with and
 
do all
 
that is
 
necessary to
 
maintain in
 
full force
 
and effect;
and
23.1.2
supply copies to the Facility Agent of,
any authorisation required to enable it to -
23.1.3
perform
 
its
 
obligations
 
under
 
the
 
Finance
 
Documents
 
to
 
which
 
it
 
is
 
a
 
party
 
and
 
to
ensure
 
the
 
legality,
 
validity,
 
enforceability
 
or
 
admissibility
 
in
 
evidence
 
in
 
its
jurisdiction of incorporation or formation of any such Finance Document;
 
and
23.1.4
carry on
 
its business
 
in the
 
ordinary course
 
and in
 
all material
 
respects as
 
it is
 
being
conducted.
23.2
Compliance with laws
Each
 
Obligor shall
 
(and
 
the
 
Obligors
 
shall
 
ensure that
 
each
 
other member
 
of
 
the
 
Group)
comply with all laws, permits and licenses which are material to the conduct of its business
(including in relation to the making of loans available to individuals).
23.3
Pari passu ranking
Each Obligor must ensure that -
112
23.3.1
its payment
 
obligations under
 
the Finance
 
Documents at
 
all times
 
rank at
 
least
pari
passu
with all
 
its present
 
and future
 
unsecured unsubordinated
 
payment obligations,
except for obligations mandatorily preferred
 
by law applying to
 
companies generally
in its
 
jurisdiction of
 
incorporation or
 
formation or
 
any other
 
jurisdiction where
 
it carries
on business; and
23.3.2
the Security conferred
 
by each Security
 
Document to which
 
it is a party
 
constitutes the
ranking in
 
priority which
 
it is
 
expressed to
 
have in
 
the Transaction Security
 
Documents
and
 
Security
 
of
 
the
 
type
 
described,
 
over
 
the
 
assets
 
referred
 
to,
 
in
 
that
 
Security
Document and that
 
those assets are
 
not subject to any
 
prior or
pari passu
 
Security in
favour of any other person.
23.4
Negative pledge
23.4.1
No Obligor shall (and the Obligors
 
shall ensure that no other
 
member of the Covenant
Group will) create or permit to subsist any Security over any of its assets.
23.4.2
No Obligor shall (and the Obligors
 
shall ensure that no other
 
member of the Covenant
Group will) -
23.4.2.1
sell, transfer or otherwise dispose of any of its assets on terms whereby they are
or
 
may be
 
leased to
 
or re-acquired
 
by an
 
Obligor or
 
any other
 
member of
 
the
Covenant Group;
23.4.2.2
sell, transfer or otherwise dispose of any of its receivables on recourse
 
terms;
23.4.2.3
enter into or permit to subsist any title retention arrangement;
 
23.4.2.4
enter into or
 
permit to
 
subsist any
 
arrangement under
 
which money or
 
the benefit
of
 
a
 
bank
 
or
 
other
 
account
 
may
 
be
 
applied,
 
set-off
 
or
 
made
 
subject
 
to
 
a
combination of accounts; or
23.4.2.5
enter into
 
or permit
 
to subsist
 
any other
 
preferential arrangement
 
having a
 
similar
effect,
in circumstances
 
where the
 
arrangement or
 
transaction is
 
entered into
 
primarily as
 
a
method of raising Financial Indebtedness or of financing the acquisition
 
of an asset.
23.4.3
Clauses
 
and
 
do
 
not
 
apply
 
to
 
the
 
following
 
Security
 
(each
 
a
Permitted Encumbrance
) -
113
23.4.3.1
any
 
Existing
 
Security,
 
but
 
only
 
until
 
the
 
Existing
 
Security
 
Discharge
 
Date
 
in
respect of that Existing Security;
23.4.3.2
the
 
Cash
 
Connect
 
Group
 
Cession
 
and
 
Pledge,
 
provided
 
that
 
no
 
additional
Security is given after the Signature Date;
 
23.4.3.3
any Security given or purported to be given as Transaction Security;
23.4.3.4
any lien
 
arising by
 
operation of
 
law and
 
in the
 
ordinary course
 
of trading,
 
and
not as a
 
result of any
 
default or omission
 
by any member
 
of the Covenant
 
Group;
23.4.3.5
any netting or set-off arrangement entered into by any member
 
of the Covenant
Group
 
(other
 
than
 
the
 
Term/RCF
 
Borrower)
 
pursuant
 
to
 
a
 
Permitted
 
Cash
Management Agreement in the ordinary course of
 
its banking arrangements for
the purpose of netting
 
debit and credit balances
 
and the cession
 
in security of the
loans created
 
pursuant to
 
such Permitted
 
Cash Management
 
Agreement, but
 
only
so long as (i)
 
such arrangement does
 
not permit credit
 
balances of Obligors
 
to be
netted with debit balances of
 
members of the Group which
 
are not Obligors, and
(ii) such arrangement does not give rise to any Security (other than such netting
and set-off arrangements and the aforementioned cession)
 
over the assets of any
member of the Covenant Group;
 
23.4.3.6
any
 
netting
 
of
 
payments
 
under
 
a
 
Permitted
 
Treasury
 
Transaction
 
(including
netting on a close-out of a Permitted Treasury Transaction);
23.4.3.7
the cession
 
of a
 
bank account
 
in favour
 
of Nedbank
 
Limited in
 
relation to
 
the
guarantee facility referred to in clause
23.4.3.8
a cession
 
and pledge
 
by a
 
member of
 
the Covenant
 
Group of
 
its shares
 
in and
claims against an Excluded Subsidiary in relation to any Financial Indebtedness
incurred by that Excluded Subsidiary;
 
23.4.3.9
any Security arising under -
23.4.3.9.1
an instalment
 
sale or
 
a finance
 
or capital
 
lease of
 
vehicles, plant,
 
equipment
or computers; or
23.4.3.9.2
any
 
retention
 
of
 
title,
 
hire
 
purchase
 
or
 
conditional
 
sale
 
arrangement
 
or
arrangements
 
having
 
a
 
similar
 
effect
 
in
 
respect
 
of
 
goods
 
supplied
 
to
 
a
member of
 
the Covenant
 
Group in
 
the ordinary
 
course of
 
trading and
 
on
114
the supplier's standard or usual terms, and not as a result of any
 
default or
omission by any member of the Covenant Group,
which, in each case, qualifies as Permitted Financial Indebtedness;
23.4.3.10
any Security arising as a result of a Permitted Disposal;
23.4.3.11
any cash
 
Security in
 
the maximum
 
amount of
 
ZAR5,000,000 granted
 
to Nedbank
Limited in respect
 
of the
 
Permitted Financial Indebtedness
 
envisaged in clause
 
or
23.4.3.12
any Security expressly permitted in writing by the Facility Agent.
23.5
Financial Indebtedness
23.5.1
No Obligor shall (and the Obligors
 
shall ensure that no other
 
member of the Covenant
Group
 
will)
 
incur
 
or
 
allow
 
to
 
remain
 
outstanding
 
any
 
Financial
 
Indebtedness.
 
This
restriction does
 
not
 
apply to
 
the following
 
items of
 
Financial Indebtedness
 
(in each
case, a
Permitted Financial Indebtedness
) -
23.5.1.1
any
 
Existing
 
Group
 
Indebtedness,
 
provided
 
all
 
such
 
Existing
 
Group
Indebtedness is discharged in full on the first Utilisation Date;
23.5.1.2
any Financial Indebtedness incurred under the Finance Documents (excluding a
WCF Document);
23.5.1.3
the
 
Cash
 
Connect
 
Management
 
Finance
 
Documents,
 
provided
 
that
 
all
 
such
Financial Indebtedness is discharged in full on the first Utilisation Date;
23.5.1.4
the
 
Financial
 
Indebtedness
 
owing
 
by
 
the
 
Term/RCF
 
Borrower
 
to
 
the
 
sellers
pursuant to the
 
Recharger Acquisition Agreement,
 
provided that the
 
Recharger
Acquisition Agreement is not
 
amended without the prior
 
written consent of the
Facility Agent and as further set out in clause
23.5.1.5
the
 
Financial
 
Indebtedness
 
incurred
 
by
 
the
 
Term/RCF
 
Borrower,
 
EasyPay
Proprietary Limited
 
and Prism
 
Payment Technologies
 
Proprietary in
 
favour of
Nedbank in an amount not exceeding ZAR5,000,000 in aggregate at
 
any time;
23.5.1.6
the Financial
 
Indebtedness incurred
 
by GAAP
 
Point-Of-Sale Proprietary
 
Limited
in relation to -
115
23.5.1.6.1
a
 
facility
 
agreement
 
concluded
 
with
 
FirstRand
 
Bank
 
Limited,
 
acting
through its First
 
National Bank division
 
and dated 23
 
May 2022, in
 
respect
of direct, credit card,
 
settlement and asset finance
 
facilities, provided that
such Financial Indebtedness does not exceed ZAR16,500,000;
23.5.1.6.2
a facility agreement with The Standard Bank of South Africa Limited and
dated
 
30
 
January
 
2025
 
in
 
respect
 
of
 
fleet
 
cards,
 
provided
 
that
 
such
Financial Indebtedness does not exceed ZAR1,200,000;
23.5.1.7
the Financial Indebtedness incurred
 
by Adumo Payments Proprietary
 
Limited in
relation to -
23.5.1.7.1
a facility agreement
 
with Nedbank Limited dated
 
13 July 2020
 
in respect
of fleet cards,
 
provided that such
 
Financial Indebtedness does not
 
exceed
ZAR150,000;
 
23.5.1.7.2
a
 
facility
 
agreement
 
with
 
Nedbank
 
Limited
 
dated
 
7
 
December
 
2018
 
in
respect of a credit card facility,
 
provided that such Financial Indebtedness
does not exceed ZAR1,800,010;
23.5.1.7.3
an
 
overdraft facility
 
with Capitec
 
Bank Limited
 
dated 17
 
October 2022,
provided such Financial Indebtedness does not exceed ZAR2,000,000;
23.5.1.7.4
a debit order facility with Capitec
 
Bank Limited dated 28
 
December 2023,
provided
 
that
 
such
 
Financial
 
Indebtedness
 
does
 
not
 
exceed
ZAR30,000,000;
23.5.1.8
the Financial Indebtedness
 
incurred by Adumo
 
in relation to
 
a facility agreement
with Nedbank Limited
 
dated 12 April
 
2021 in respect of
 
credit cards, provided
that such Financial Indebtedness does not exceed ZAR100,000;
23.5.1.9
the
 
Financial
 
Indebtedness
 
incurred
 
by
 
Adumo
 
Technologies
 
Proprietary
Limited in relation to:
23.5.1.9.1
a
 
facility
 
agreement
 
with
 
Nedbank
 
Limited
 
dated
 
13
 
February
 
2015
 
in
respect of a credit card facility,
 
provided that such Financial Indebtedness
does not exceed ZAR200,000;
 
and
 
23.5.1.9.2
a
 
debit
 
order
 
facility
 
with
 
Nedbank
 
Limited
 
dated
 
20
 
August
 
2024,
provided that
 
such Financial
 
Indebtedness does
 
not exceed
 
ZAR5,000,000;
116
23.5.1.10
the
 
Financial
 
Indebtedness
 
incurred
 
by
 
Adumo
 
Management
 
Company
Proprietary
 
Limited
 
in
 
favour
 
of
 
Nedbank
 
in
 
an
 
amount
 
not
 
exceeding
ZAR1,500,000 in aggregate at any time;
23.5.1.11
the Financial
 
Indebtedness incurred
 
by Adumo
 
Payouts Proprietary
 
Limited in
relation to a facility agreement with Nedbank Limited dated 13 August 2019,
 
in
respect of fleet
 
cards, provided that
 
such Financial Indebtedness
 
does not exceed
ZAR50,000;
23.5.1.12
the indemnity provided by the
 
Term/RCF Borrower in
 
favour of Investec Bank
Limited
 
(
Investec
)
 
on
 
or
 
about
 
30
 
September
 
2024,
 
pursuant
 
to
 
which
 
the
Term/RCF Borrower indemnified Investec
 
against any
 
Tax claims relating to
 
the
preference shares which were issued to Investec by Adumo;
23.5.1.13
any Financial Indebtedness incurred under a WCF Document,
 
provided that –
 
23.5.1.13.1
the WCF Lender
 
is or becomes
 
party to this
 
Agreement, the Intercreditor
Agreement
 
and
 
any
 
Subordination
 
Agreement
 
before
 
or
 
on
 
the
 
date
 
on
which that WCF Document is entered into;
23.5.1.13.2
the aggregate WCF Commitments in relation
 
to the Covenant Group may
not exceed the amounts set out in the definition of "WCF Commitments";
without the express prior consent of the Facility Agent;
23.5.1.14
any Financial Indebtedness incurred under the WesBank Agreement;
 
23.5.1.15
any
 
Financial
 
Indebtedness
 
arising
 
under
 
a
 
Permitted
 
Loan,
 
a
 
Permitted
Guarantee or a Permitted Treasury Transaction;
23.5.1.16
any Financial
 
Indebtedness permitted
 
under clause
 
in respect
 
of trade
credit extended to a member of the Covenant Group by a supplier, which -
23.5.1.16.1
is entered into
 
in in the
 
ordinary course of
 
its day-to-day business
 
of that
member of the Covenant Group; and
23.5.1.16.2
which does not have a term in excess of 120 days; and
23.5.1.17
any Financial Indebtedness
 
expressly permitted in writing
 
by the Facility Agent;
or
117
23.5.1.18
any Financial Indebtedness of any
 
member or members of the
 
Covenant Group
(other than the Term/RCF Borrower)
 
or Holdco not otherwise permitted by this
clause above, which together with the indebtedness incurred pursuant
 
to clauses
 
and
 
does
 
not
 
at
 
any
 
time
 
exceed
 
ZAR50,000,000
 
(or
 
its
equivalent in
 
another currency
 
or currencies),
 
which member
 
of the
 
Covenant
Group
 
or
 
Holdco
 
may
 
only
 
incur
 
Financial
 
Indebtedness
 
under
 
this
clause
 
if -
23.5.1.18.1
no Default is then continuing nor would result from such incurrence;
 
and
23.5.1.18.2
the
 
Term/RCF
 
Borrower
 
is
 
in
 
compliance
 
with
 
each
 
of
 
the
 
financial
undertakings set
 
out in
 
clause
 
(
Undertakings in relation
 
to financial
condition
) immediately prior to
 
and (taking into account
 
the amount of the
proposed
 
Financial
 
Indebtedness
 
if
 
it
 
were
 
to
 
be
 
incurred)
 
immediately
following such incurrence.
23.5.2
Holdco
 
shall
 
ensure
 
that
 
no
 
member
 
of
 
the
 
Covenant
 
Group
 
incurs
 
any
 
Financial
Indebtedness in
 
respect
 
of any
 
loans advanced
 
by
 
any direct
 
shareholder in
 
Holdco
unless
 
such
 
loans
 
are
 
funded
 
through
 
Shareholder
 
Contributions,
 
and
 
after
 
being
received by Holdco are
 
paid to the Term/RCF
 
Borrower firstly,
 
and thereafter by the
Term/RCF
 
Borrower
 
to
 
such
 
member
 
of
 
the
 
Covenant
 
Group
 
by
 
a
 
payment
 
or
sequence of payments through the Group's
 
capital structure and otherwise, if
 
relevant,
comply with clause
 
(Loans out).
23.6
Disposals
No Obligor
 
shall (and
 
the Obligors
 
shall ensure
 
that no
 
other member
 
of the Covenant
 
Group
will), enter into
 
a single transaction
 
or a series
 
of transactions (whether related
 
or not) and
whether voluntary
 
or involuntary
 
to sell,
 
lease, transfer
 
or otherwise
 
dispose of
 
any asset.
This restriction
 
does not
 
apply to
 
the following
 
disposals which
 
are (except
 
for clause
)
on arm's length terms (each a
Permitted Disposal
) –
23.6.1
a disposal of
 
trading stock for
 
cash or for
 
trade credit that
 
is a Permitted
 
Loan pursuant
to clause
 
(Loans out), in each case, in the ordinary course of trading;
23.6.2
a disposal of any asset by a
 
member of the Covenant Group (the
disposing entity
) to
another
 
member
 
of
 
the
 
Covenant
 
Group
 
(other
 
than
 
an
 
Excluded
 
Subsidiary)
 
(the
acquiring entity
) incorporated in the same jurisdiction, but only if -
118
23.6.2.1
where the
 
disposing entity
 
is
 
an
 
Obligor,
 
the
 
acquiring entity
 
must
 
also be
 
an
Obligor (other than Holdco);
 
23.6.2.2
if the relevant asset is subject to Transaction Security,
 
the acquiring entity must
provide equivalent
 
Security for
 
the benefit
 
of the
 
Finance Parties
 
(in form
 
and
substance satisfactory to the
 
Facility Agent) and
 
the following shall be
 
delivered
to the Facility Agent in respect thereof to the Facility Agent’s satisfaction -
23.6.2.2.1
legal opinions
 
as to
 
the capacity
 
and authority
 
of the
 
relevant Obligor
 
to
grant such Transaction Security and
 
the enforceability of such
 
Transaction
Security; and
23.6.2.2.2
copies of
 
all resolutions
 
required to
 
be passed
 
in respect
 
of the
 
authorisation
of the granting of such Transaction Security; and
23.6.2.3
where the
 
disposing entity
 
is
 
a
 
Guarantor,
 
the
 
acquiring entity
 
must
 
also be
 
a
Guarantor in
 
the Covenant
 
Group guaranteeing
 
an amount
 
at all
 
times no
 
less
than that guaranteed by the disposing entity;
23.6.3
a disposal of obsolete or redundant vehicles, plant and equipment
 
for cash;
23.6.4
a disposal of assets (not
 
being a business and not
 
being shares, securities, interests in
real
 
property
 
or
 
rights
 
under
 
any
 
Finance
 
Document)
 
in
 
exchange
 
for
 
other
 
assets
comparable or superior as to type, value and
 
quality and for a similar purpose (but, if
the
 
assets
 
disposed
 
of
 
were
 
subject
 
to
 
Transaction
 
Security,
 
only
 
if
 
Transaction
Security is
 
established for
 
the benefit
 
of the
 
Finance Parties
 
(in form
 
and substance
satisfactory to the Facility Agent) over any
 
assets so acquired) and the following
 
shall
be
 
delivered
 
to
 
the
 
Facility
 
Agent
 
in
 
respect
 
thereof
 
to
 
the
 
Facility
 
Agent’s
satisfaction -
23.6.4.1
legal opinions
 
as to
 
the capacity
 
and authority
 
of the
 
relevant Obligor
 
to grant
such Transaction
 
Security and
 
the enforceability
 
of such
 
Transaction Security;
and
23.6.4.2
copies of all
 
resolutions required to be
 
passed in respect of
 
the authorisation of
the granting of such Transaction Security;
23.6.5
a disposal of Cash Equivalents -
23.6.5.1
for Cash; or
119
23.6.5.2
in exchange for other Cash Equivalents,
but, if the Cash
 
Equivalents disposed of were subject to
 
Transaction Security,
 
only if
Transaction Security is established for the
 
benefit of the Finance Parties (in form and
substance satisfactory to the Facility Agent) over any Cash Equivalents
 
so acquired;
23.6.6
a disposal arising as a result of a Permitted Encumbrance;
23.6.7
any other disposal expressly permitted in writing by the Facility Agent;
 
23.6.8
a disposal by the Term/RCF Borrower of any
 
treasury shares which it holds
 
in Holdco
in order to pay the purchase consideration (or a part thereof)
 
in relation to a Permitted
Acquisition envisaged in clause
 
or
;
 
23.6.9
the disposal
 
by Holdco
 
to a
 
member of
 
the Covenant
 
Group of
 
Holdco's shares
 
and
claims in
 
Kwande, provided
 
that the
 
Term/RCF
 
Borrower has
 
provided the
 
Facility
Agent with
 
at least
 
30 Business
 
Days prior
 
written notice
 
thereof and
 
the Facility
 
Agent
has
 
notified the
 
Term/RCF
 
Borrower
 
that
 
the
 
Finance Parties
 
are
 
satisfied
 
with
 
the
terms and conditions of that disposal prior to the implementation
 
thereof;
23.6.10
any disposal of Mobikwik provided that -
23.6.10.1
the consideration for such disposal consists only of cash;
 
23.6.10.2
no Default is then continuing or would result from such disposal;
 
and
23.6.10.3
the
 
provisions
 
of
 
clause
 
(Mandatory
 
prepayment
 
-
 
material
 
disposal
 
and
insurance proceeds)
 
are complied with;
23.6.11
any other disposal not referred to in this clause
 
above which is for cash, made on
arm's-length terms and for full market value and on the condition that -
23.6.11.1
no Default is then continuing nor would result from such disposal;
 
23.6.11.2
the aggregate book
 
value (determined with
 
reference to the
 
most recent financial
statements, SEC Form or management accounts delivered to the Facility
 
Agent)
of assets Disposed for the
 
period commencing on the Signature
 
Date and ending
on
 
the
 
Discharge
 
Date
 
does
 
not
 
exceed
 
R60,000,000
 
(sixty
 
million
 
Rand)
(excluding the proceeds received on account of the Disposal of Mobikwik;
 
and
23.6.11.3
the Term/RCF Borrower
 
is in
 
compliance with
 
each of
 
the financial
 
undertakings
set
 
out
 
in
 
clause
 
(Undertakings
 
in
 
relation
 
to
 
financial
 
condition)
120
immediately
 
prior
 
to
 
and
 
(taking
 
into
 
account
 
the
 
amount
 
of
 
the
 
proposed
disposal if it were to be implemented) immediately following such disposal.
23.7
Change of business
The Obligors
 
shall procure
 
that no
 
substantial change is
 
made to
 
the general
 
nature of
 
the
business of any member
 
of the Covenant
 
Group or the
 
Covenant Group as a
 
whole from that
carried on at the Signature Date.
23.8
Merger
No Obligor
 
shall (and
 
the Obligors
 
shall ensure
 
that no
 
other member
 
of the Covenant
 
Group
will)
 
enter
 
into
 
any
 
amalgamation,
 
demerger,
 
merger,
 
unbundling
 
or
 
corporate
reconstruction. This restriction does not apply to -
23.8.1
any transaction or combination
 
of transactions which is
 
required to be implemented
 
or
expressly permitted by the terms of this Agreement; or
23.8.2
any
 
other
 
amalgamation, demerger,
 
merger,
 
unbundling or
 
corporate
 
reconstruction
permitted in writing by the Facility Agent.
23.9
Assets
Each Obligor shall (and the Obligors shall ensure that each member of the Covenant Group
will) maintain in good working order and condition
 
(ordinary wear and tear excepted) all of
its assets necessary in the conduct of its business.
23.10
Acquisitions
No Obligor (other
 
than Holdco) shall
 
(and the Obligors
 
shall ensure that
 
no other member
of the Covenant Group will)
 
acquire or subscribe for shares or
 
other ownership interests in
or equity securities
 
of any company
 
or other person,
 
acquire any business
 
or incorporate any
company or other person. This restriction
 
does not apply to the following
 
transactions (each
a
Permitted Acquisition
) -
23.10.1
the acquisition by a member of the Covenant Group of an asset from another member
of the Covenant Group pursuant to a Permitted Disposal;
23.10.2
an acquisition of shares or equity securities pursuant to a Permitted Share
 
Issue;
23.10.3
the acquisition of Cash Equivalents;
23.10.4
the incorporation of a company as a member of the Covenant Group, but
 
only if -
121
23.10.4.1
it is
 
incorporated in a
 
jurisdiction in Africa
 
as a
 
limited liability company
 
or if
not
 
incorporated
 
in
 
a
 
jurisdiction
 
in
 
Africa
 
with
 
limited
 
liability,
 
the
 
Facility
Agent
 
has
 
consented
 
to
 
the
 
incorporation
 
of
 
such
 
company
 
in
 
the
 
relevant
jurisdiction;
23.10.4.2
the aggregate amount paid upon incorporation
 
or establishment of that company
to capitalise it does not exceed R20,000 (or
 
its equivalent in any other currency
or currencies);
 
23.10.4.3
no Default is
 
continuing on, or
 
would occur as
 
a result of,
 
the incorporation of
that company; and
23.10.4.4
the shares
 
in the
 
company,
 
if held
 
by an
 
Obligor (other
 
than Holdco),
 
become
subject to Transaction
 
Security, in form and
 
substance satisfactory
 
to the Facility
Agent and
 
the following
 
shall be
 
delivered to
 
the Facility
 
Agent in
 
respect thereof
to the Facility Agent’s satisfaction -
23.10.4.4.1
legal opinions
 
as to
 
the capacity
 
and authority
 
of the
 
relevant Obligor
 
to
grant such Transaction Security and
 
the enforceability of such
 
Transaction
Security; and
23.10.4.4.2
copies of
 
all resolutions
 
required to
 
be passed
 
in respect
 
of the
 
authorisation
of the granting of such Transaction Security,
 
within 30 days of the date of its incorporation;
23.10.5
the
 
acquisition
 
of
 
Recharger
 
Proprietary
 
Limited
 
(
Recharger
)
 
by
 
the
 
Term/RCF
Borrower or Prism Holdings Proprietary Limited (
Prism Holdings
) provided that -
23.10.5.1
no Default has occurred which is continuing;
 
23.10.5.2
the
 
sale
 
of
 
shares
 
agreement
 
concluded
 
between
 
the
 
Term/RCF
 
Borrower,
Holdco,
 
Ninety Nine
 
Holdings
 
Proprietary Limited
 
and Imtiaz
 
Dhooma on
 
or
about
 
19
 
November
 
2024
 
(the
Recharger
 
Sale
 
Agreement
)
 
or
 
any
 
other
agreement referred
 
to therein
 
is not
 
amended without
 
the prior
 
written consent
of the Facility Agent;
 
23.10.5.3
the consideration payable by the Term/RCF
 
Borrower or Prism Holdings to the
sellers
 
in
 
terms
 
of
 
the
 
Recharger
 
Sale
 
Agreement
 
shall
 
not
 
exceed
ZAR507,000,000, of
 
which ZAR332,000,000
 
shall be
 
payable in
 
cash and
 
the
balance
 
thereof
 
by
 
the
 
delivery,
 
to
 
the
 
sellers,
 
of
 
ordinary
 
shares
 
in
 
Holdco
122
which,
 
as
 
at
 
the
 
Signature
 
Date,
 
are
 
held
 
by
 
the
 
Term/RCF
 
Borrower
 
(and
 
if
Prism Holdings
 
acquires the
 
shares in
 
Recharger,
 
by the
 
Term/RCF
 
Borrower
making
 
such
 
payments
 
on
 
behalf
 
of
 
Prism
 
Holdings
 
and
 
creation
 
of
 
a
corresponding
 
loan
 
account
 
between
 
the
 
Term/RCF
 
Borrower
 
and
 
Prism
Holdings);
 
23.10.5.4
the
 
Term/RCF
 
Borrower shall
 
(either on
 
its own
 
behalf or
 
on behalf
 
of Prism
Holdings) loan
 
an amount
 
not
 
exceeding ZAR43,000,000
 
to
 
discharge
 
certain
Financial Indebtedness of Recharger
 
on the date
 
on which it
 
acquires all of
 
the
shares
 
in
 
Recharger
 
(and
 
if
 
the
 
Term/RCF
 
Borrower
 
advances
 
the
 
loan
 
to
Recharger on
 
behalf of
 
Prism Holdings,
 
a corresponding
 
loan account
 
shall be
created between the Term/RCF Borrower and Prism Holdings);
 
23.10.5.5
the
 
cash
 
consideration
 
payable
 
to
 
the
 
sellers
 
in
 
terms
 
of
 
the
 
Recharger
Acquisition Agreement
 
and the
 
amount contributed
 
to Recharger
 
is funded
 
by
Internally
 
Generated
 
Cash
 
of
 
the
 
Covenant
 
Group
 
and/or
 
is
 
funded
 
under
 
the
Senior Term Facilities (subject to the conditions contained therein);
 
and
 
23.10.5.6
Recharger
 
shall become
 
an Obligor
 
withing 30
 
days of
 
the
 
date on
 
which the
Term/RCF
 
Borrower,
 
or
 
Prism
 
Holdings
 
(as
 
applicable),
 
acquires
 
all
 
of
 
the
shares in Recharger;
23.10.6
an acquisition for cash on arm's length
 
terms from entities other than Related Parties,
of (i)
 
at least
 
the majority
 
(or acquiring
 
additional shares
 
in which
 
a member
 
of the
Covenant Group already holds a majority) of the issued share capital and other equity
securities of a limited liability company,
 
or any business or undertaking carried on as
a
 
going
 
concern
 
(a
Majority
 
Acquisition
)
 
funded,
 
in
 
each
 
case,
 
by
 
(A)
 
Internally
Generated Cash (B)
 
proceeds under the
 
Facilities,
 
(C) the transfer of
 
treasury shares in
Holdco held by the Term/RCF Borrower to the applicable seller but only if -
23.10.6.1
the Term/RCF Borrower has given 10 Business
 
Days' prior notice to
 
the Facility
Agent of the intention to make such acquisition;
23.10.6.2
subject
 
to
 
clause
 
below,
 
the
 
company,
 
business or
 
undertaking (as
applicable)
 
has
 
generated
 
positive
 
earnings
 
before
 
interest,
 
tax,
 
depreciation,
amortisation and impairment charges and positive cash flows (calculated, in the
case of earnings before
 
interest, tax, depreciation, amortisation and
 
impairment
charges, on a
pro forma
standalone basis and on substantially the same basis
 
as
Consolidated EBITDA,
 
except that
 
references to
 
the Term/RCF
 
Borrower will
be
 
construed
 
as
 
references
 
to
 
that
 
Subsidiary,
 
company
 
or
 
business),
 
for
 
the
123
12 month period ending on
 
the most recent month-end
 
prior to the
 
closing date
for
 
that
 
acquisition
 
(or,
 
if
 
not
 
ascertainable,
 
for
 
the
 
financial
 
year
 
of
 
that
company, business or
 
undertaking most recently ended prior to the closing
 
date
for such acquisition);
23.10.6.3
the acquiring entity procures that Security
 
for the benefit of the
 
Finance Parties
(and
 
the
 
documents
 
evidencing
 
or
 
creating
 
that
 
Security
 
to
 
be
 
in
 
form
 
and
substance satisfactory to the
 
Facility Agent) is provided
 
by all shareholders (and
not only the acquiring entity) over all
 
the issued shares in and claims against
 
the
company acquired and the
 
following shall be
 
delivered to the
 
Facility Agent in
respect thereof to the Facility Agent’s satisfaction -
23.10.6.3.1
legal opinions as to the capacity and authority
 
of the relevant shareholders
to
 
grant
 
such
 
Transaction
 
Security
 
and
 
the
 
enforceability
 
of
 
such
Transaction Security; and
23.10.6.3.2
copies of
 
all resolutions
 
required to
 
be passed
 
in respect
 
of the
 
authorisation
of the granting of such Transaction Security;
23.10.6.3.3
the gross amount
 
of consideration payable
 
by any member
 
of the Covenant
Group
 
in
 
relation
 
to
 
such
 
acquisition,
 
when
 
taken
 
together
 
with
 
the
aggregate
 
amount
 
of
 
gross
 
consideration
 
applied
 
in
 
funding
 
any
 
other
Majority Acquisitions
 
under this
 
clause
, does
 
not at
 
any time
exceed R500,000,000 (or its equivalent in another currency or currencies)
plus any amount which the
 
Term/RCF Borrower was entitled to Distribute
to Holdco
 
but that
 
was not
 
Distributed less
 
the aggregate
 
amount paid
 
in
relation to any
 
Minority Acquisitions
 
(as defined in
 
clause
 
funded
out of Internally Generated Cash or the proceeds of the Facilities; and
 
23.10.6.4
the Term/RCF Borrower
 
is in
 
compliance with
 
each of
 
the financial
 
undertakings
set
 
out
 
in
 
clause
 
(Undertakings
 
in
 
relation
 
to
 
financial
 
condition)
immediately prior to and (taking into
 
account the proposed acquisition if
 
it were
to be made) immediately following the implementation of such acquisition;
 
23.10.6.5
no Default is continuing or would occur as a result of that acquisition;
 
or
 
23.10.7
an acquisition for cash on arm's length
 
terms from entities other than Related Parties,
of
 
Majority
 
Acquisitions,
 
funded
 
by
 
(A)
 
Shareholder
 
Contributions
 
and/or
 
(B)
 
the
transfer of treasury
 
shares in
 
Holdco held by
 
the Term/RCF Borrower to
 
the applicable
seller but only if -
124
23.10.7.1
the Term/RCF Borrower has given 10 Business
 
Days' prior notice to
 
the Facility
Agent of the intention to make such acquisition;
23.10.7.2
the applicable
 
entity,
 
business or
 
undertaking to
 
be acquired
 
is congruent
 
with
the Covenant Group's strategy;
 
23.10.7.3
the
 
company,
 
business
 
or
 
undertaking
 
(as
 
applicable)
 
has
 
generated
 
positive
earnings before interest, tax, depreciation, amortisation and impairment charges
and positive cash
 
flows (calculated, in
 
the case of
 
earnings before interest,
 
tax,
depreciation, amortisation
 
and impairment
 
charges, on
 
a
pro
 
forma
standalone
basis and on substantially the
 
same basis as Consolidated EBITDA, except
 
that
references
 
to
 
the
 
Term/RCF
 
Borrower
 
will
 
be
 
construed
 
as
 
references
 
to
 
that
Subsidiary,
 
company or business),
 
for the 12 month
 
period ending on
 
the most
recent
 
month-end
 
prior
 
to
 
the
 
closing
 
date
 
for
 
that
 
acquisition
 
(or,
 
if
 
not
ascertainable,
 
for
 
the
 
financial year
 
of
 
that
 
company,
 
business
 
or
 
undertaking
most recently ended prior to the closing date for such acquisition);
23.10.7.4
if
 
the
 
acquiring
 
entity
 
is
 
an
 
Obligor
 
(or
 
required
 
to
 
become
 
an
 
Obligor),
 
it
procures that Security for the benefit of the
 
Finance Parties (and the documents
evidencing or creating
 
that Security to
 
be in form
 
and substance satisfactory
 
to
the Facility
 
Agent) is
 
provided by
 
all shareholders
 
(and not
 
only the
 
acquiring
entity) over all
 
the issued shares
 
in and claims
 
against the company
 
acquired and
the following
 
shall be
 
delivered to
 
the Facility
 
Agent in
 
respect thereof
 
to the
Facility Agent’s satisfaction -
23.10.7.4.1
legal opinions as to the capacity and authority
 
of the relevant shareholders
to
 
grant
 
such
 
Transaction
 
Security
 
and
 
the
 
enforceability
 
of
 
such
Transaction Security; and
23.10.7.4.2
copies of
 
all resolutions
 
required to
 
be passed
 
in respect
 
of the
 
authorisation
of the granting of such Transaction Security;
23.10.7.5
the Term/RCF Borrower
 
is in
 
compliance with
 
each of
 
the financial
 
undertakings
set
 
out
 
in
 
clause
 
(Undertakings
 
in
 
relation
 
to
 
financial
 
condition)
immediately prior to and (taking into
 
account the proposed acquisition if
 
it were
to be made) immediately following the implementation of such acquisition;
 
23.10.7.6
no Default is continuing or would occur as a result of that acquisition;
 
125
23.10.8
an acquisition for cash on arm's length
 
terms from entities other than Related Parties,
of
 
a
 
Majority
 
Acquisition
 
if
 
such
 
entity
 
has
 
not
 
generated
 
positive
 
earnings
 
before
interest,
 
tax,
 
depreciation,
 
amortisation
 
and
 
impairment
 
charges
 
or
 
not
 
generated
positive
 
cash
 
flows
 
(calculated,
 
in
 
the
 
case
 
of
 
earnings
 
before
 
interest,
 
tax,
depreciation, amortisation
 
and impairment
 
charges, on
 
a
pro
 
forma
standalone basis
and on substantially
 
the same basis
 
as Consolidated EBITDA, except
 
that references
to the
 
Term/RCF Borrower
 
will be
 
construed as
 
references to
 
that Subsidiary, company
or business), for
 
the 12 month period
 
ending on the
 
most recent month-end
 
prior to the
closing date for that
 
acquisition (or, if
 
not ascertainable, for the
 
financial year of that
company,
 
business or
 
undertaking most
 
recently ended
 
prior to
 
the
 
closing date
 
for
such
 
acquisition),
 
funded
 
by
 
(A)
 
Shareholder
 
Contributions
 
or
 
(B)
 
Internally
Generated Cash of but only if -
23.10.8.1
the Term/RCF Borrower has given 10 Business
 
Days' prior notice to
 
the Facility
Agent of the intention to make such acquisition;
23.10.8.2
the applicable
 
entity,
 
business or
 
undertaking to
 
be acquired
 
is congruent
 
with
the Covenant Group's strategy;
 
23.10.8.3
the Term/RCF Borrower
 
is in
 
compliance with
 
each of
 
the financial
 
undertakings
set
 
out
 
in
 
clause
 
(Undertakings
 
in
 
relation
 
to
 
financial
 
condition)
immediately prior to and (taking into
 
account the proposed acquisition if
 
it were
to be made) immediately following the implementation of such acquisition;
 
23.10.8.4
the
 
gross
 
amount
 
of
 
consideration
 
payable
 
by
 
any
 
member
 
of
 
the
 
Covenant
Group
 
in
 
relation to
 
such acquisition,
 
when taken
 
together
 
with the
 
aggregate
amount of
 
gross consideration
 
applied in
 
funding any
 
other acquisitions
 
under
this clause
, does not at any time exceed R100,000,000 (or its equivalent
in another currency or currencies); and
23.10.8.5
no Default is continuing or would occur as a result of that acquisition;
 
23.10.9
the acquisition
 
by a
 
member of
 
the Covenant
 
Group of
 
20% or
 
more of the
 
issued share
capital and other equity securities of a limited
 
liability company but less than 50% of
the issued
 
share capital
 
and other
 
equity securities
 
of a
 
limited liability
 
company (a
Minority Acquisition
) -
23.10.9.1
funded out of -
126
23.10.9.1.1
either Internally Generated
 
Cash or the proceeds
 
of the Facilities,
 
provided
that the requirements in
 
clauses
,
,
,
are met in respect of that Minority Acquisition
mutatis mutandis
; or
 
23.10.9.1.2
Shareholder
 
Contributions,
 
provided
 
that
 
the
 
requirements
 
in
 
clauses
,
,
,
 
and
 
are met in respect
of that Minority Acquisition,
mutatis mutandis
;
 
23.10.9.2
the
 
gross
 
amount
 
of
 
consideration
 
payable
 
by
 
any
 
member
 
of
 
the
 
Covenant
Group
 
in
 
relation to
 
such acquisition,
 
when taken
 
together
 
with the
 
aggregate
amount of
 
gross consideration
 
applied in
 
funding any
 
other acquisitions
 
under
this clause
, does not at any time exceed R300,000,000 (or its equivalent
in another currency or currencies); and
23.10.9.3
if
 
the
 
acquiring
 
entity
 
is
 
an
 
Obligor
 
(or
 
required
 
to
 
become
 
an
 
Obligor),
 
it
procures that Security for the benefit of the
 
Finance Parties (and the documents
evidencing or creating
 
that Security to
 
be in form
 
and substance satisfactory
 
to
the Facility Agent) is
 
provided by the acquiring entity
 
over the issued shares in
and claims against the company
 
acquired and the following
 
shall be delivered to
the Facility Agent in respect thereof to the Facility Agent’s satisfaction -
23.10.9.3.1
legal opinions as
 
to the
 
capacity and
 
authority of the
 
relevant member of
the
 
Covenant
 
Group
 
to
 
grant
 
such
 
Transaction
 
Security
 
and
 
the
enforceability of such Transaction Security; and
23.10.9.3.2
copies of
 
all resolutions
 
required to
 
be passed
 
in respect
 
of the
 
authorisation
of the granting of such Transaction Security;
23.10.10
the acquisition by a member of
 
the Covenant Group of Holdco's shares and
 
claims in
Kwande, provided that the Term/RCF Borrower has provided the Facility Agent with
at
 
least
 
30
 
Business
 
Days
 
prior
 
written
 
notice
 
thereof
 
and
 
the
 
Facility
 
Agent
 
has
notified the Term/RCF
 
Borrower that the Finance
 
Parties are satisfied with
 
the terms
and conditions of that acquisition prior to the implementation thereof;
 
23.10.11
any acquisition expressly permitted in writing by the Facility Agent.
23.11
Joint Ventures
23.11.1
No Obligor shall (and the Obligors
 
shall ensure that no other
 
member of the Covenant
Group will) -
127
23.11.1.1
enter into, invest
 
in or acquire
 
(or agree to
 
acquire) any shares,
 
stocks, securities,
partnership interest or other interest in any Joint Venture; or
 
23.11.1.2
transfer any
 
assets to
 
or lend
 
to or
 
guarantee or
 
give an
 
indemnity for
 
or grant
any
 
security
 
interest
 
for
 
the
 
obligations
 
of
 
a
 
Joint
 
Venture
 
or
 
maintain
 
the
solvency of, or provide
 
working capital to, any
 
Joint Venture (or agree to do any
of the foregoing).
23.12
Loans out
No Obligor (other
 
than Holdco) shall
 
(and the Obligors
 
shall ensure that
 
no other member
of
 
the
 
Covenant
 
Group will)
 
be a
 
creditor in
 
respect of
 
any
 
Financial Indebtedness.
 
This
restriction does not apply to the following items (each a
Permitted Loan
) -
23.12.1
trade credit extended
 
by a
 
member of the
 
Covenant Group
 
(save for EasyPay
 
Financial
Services Proprietary Limited and EasyPay Proprietary Limited) to
 
its customers -
23.12.1.1
on its standard terms
 
(unless the terms
 
of that trade
 
credit are more favourable
 
to
it than those standard terms);
23.12.1.2
in the ordinary course of its trading activities; and
23.12.1.3
which has a credit term of not more than 120 days;
 
23.12.2
loans
 
provided
 
by
 
EasyPay
 
Financial
 
Services
 
Proprietary
 
Limited
 
and
 
EasyPay
Proprietary Limited to their customers -
23.12.2.1
on their standard terms;
23.12.2.2
in the ordinary course of its trading activities; and
23.12.2.3
which has a credit term of not more than 12 Months;
23.12.3
the
 
loan
 
by
 
the
 
Term/RCF
 
Borrower
 
to
 
Recharger
 
in
 
an
 
amount
 
not
 
exceeding
ZAR43,000,000 as envisaged in the Recharger Acquisition Agreement to be made on
the
 
date
 
on
 
which
 
the
 
Term/RCF
 
Borrower
 
acquires
 
all
 
of
 
the
 
issued
 
shares
 
in
Recharger and as further envisaged in clause
, provided that such agreement is
not amended without the prior written consent of the Facility Agent;
 
23.12.4
loans
 
provided
 
by
 
the
 
Term/RCF
 
Borrower
 
to
 
Holdco,
 
which
 
shall
 
not
 
exceed
 
an
aggregate of the ZAR
 
equivalent of USD10,000,000 (Indexed) in any
 
Financial Year
less (i)
 
the amount
 
of any
 
Kwande Distributions received
 
in that
 
Financial Year
 
and
128
(ii) the
 
amount of
 
any Distributions
 
made by
 
the Term/RCF
 
Borrower to
 
Holdco in
any Financial Year in accordance with clause
, provided that -
23.12.4.1
any
 
and
 
all
 
Authorisations
 
required
 
by
 
any
 
regulatory
 
authority
 
(including
without limitation
 
the Financial
 
Surveillance Department
 
of the
 
South African
Reserve Bank) to make such loan has been obtained;
23.12.4.2
no other amount due
 
and payable under the
 
Senior Facilities remains unpaid as
at the date on which the payment is proposed to be made;
23.12.4.3
no Default is then continuing or would result from that payment;
23.12.4.4
taking
 
into
 
account
 
the
 
amount
 
of
 
the
 
proposed
 
loan
 
if
 
it
 
were
 
to
 
be
 
made
immediately
 
prior
 
to
 
and
 
immediately
 
following
 
such
 
payment
 
each
 
of
 
the
financial
 
undertakings
 
set
 
out
 
in
 
clause
 
(Undertakings
 
in
 
relation
 
to
financial condition)
 
has been
 
met, as
prima facie
evidenced by
 
delivery to
 
the
Facility Agent
 
of a
 
certificate in
 
the agreed
 
form signed
 
the chief
 
financial officer
of the Group and at least one director of the Term/RCF Borrower setting out (in
reasonable
 
detail)
 
computations
 
of
 
such
 
compliance
 
(and
 
which
 
includes
pro
forma
 
adjustments to take into account the amount of the proposed payment);
 
23.12.5
loans provided by -
23.12.5.1
one Obligor to another Obligor (other than Holdco);
 
and/or
23.12.5.2
an Obligor to another
 
member of the Covenant Group
 
(which is not an
 
Obligor
in
 
the
 
Covenant
 
Group)
 
or
 
a
 
third
 
party,
 
provided
 
that
 
the
 
loans
 
outstanding
together with
 
the indebtedness
 
incurred in
 
accordance with
 
clauses
 
and
 
do not exceed ZAR50,000,000 at any time;
23.12.5.3
a member of the Covenant Group which is not an
 
Obligor to another member of
the
 
Covenant
 
Group
 
which
 
is
 
not
 
an
 
Obligor
 
in
 
the
 
Covenant
 
Group
 
or
 
an
Excluded
 
Subsidiary,
 
provided
 
that
 
the
 
loans
 
outstanding
 
do
 
not
 
exceed
ZAR50,000,000 at any time;
 
23.12.6
any loan which is made pursuant to the Permitted Cash Management
 
Arrangement;
23.12.7
loans or credit expressly permitted in writing by the Facility Agent;
129
23.12.8
loans or credit not otherwise permitted by this clause above provided by a member of
the Covenant Group to
 
its customers, provided that
 
it may only provide
 
loans or credit
under this clause
 
in the regular and ordinary course of business -
23.12.8.1
if no Default is then continuing nor would result from such provision;
 
23.12.8.2
to
 
persons
 
that
 
are
 
not
 
direct
 
or
 
indirect
 
shareholders
 
of
 
Holdco
 
and/or
 
any
related or interrelated persons
 
(as defined in the Companies
 
Act) to any direct
 
or
indirect shareholders of Holdco;
 
23.12.8.3
if such
 
loan is
 
not to
 
a Sanctioned
 
Entity and
 
will not
 
constitute a
 
Sanctioned
Transaction; and
23.12.8.4
the Term/RCF Borrower
 
is in
 
compliance with
 
each of
 
the financial
 
undertakings
set
 
out
 
in
 
clause
 
(Undertakings
 
in
 
relation
 
to
 
financial
 
condition)
immediately prior to
 
and (taking into
 
account the
 
amount of the
 
proposed loan
or credit
 
if it
 
were to
 
be provided)
 
immediately following
 
the advance
 
of such
loan or credit.
23.13
Third party guarantees
No Obligor
 
shall (and
 
the Obligors
 
shall ensure
 
that no
 
other member
 
of the Covenant
 
Group
will)
 
incur
 
or
 
allow
 
to
 
remain
 
outstanding
 
any
 
guarantee
 
or
 
suretyship
 
in
 
respect
 
of
 
any
obligation of
 
any person.
 
This
 
restriction does
 
not apply
 
to
 
the
 
following (in
 
each
 
case a
Permitted Guarantee
) -
23.13.1
any guarantee arising under the Finance Documents;
23.13.2
guarantees provided
 
by Holdco
 
to a
 
seller in
 
respect of
 
an acquisition,
 
provided that
such acquisition
 
is a
 
Permitted Acquisition
 
contemplated in
 
clause
,
,
,
, or
23.13.3
guarantees by
 
Obligors in
 
the Covenant
 
Group in
 
respect of
 
the Permitted
 
Financial
Indebtedness of other Obligors in the Covenant Group;
23.13.4
any guarantee required
 
to be
 
given to any
 
municipality or utility
 
provider, and
 
made
by a member of the Covenant Group in the regular and ordinary course
 
of business;
23.13.5
any guarantee provided by a member of the Covenant Group to a third party
 
financier
of an
 
Excluded Subsidiary, provided
 
that the
 
Facility Agent
 
is satisfied
 
that the
 
liability
130
of that member of the Covenant Group is limited
 
to the shares and claims held by that
member of the Covenant Group in the applicable Excluded Subsidiary;
23.13.6
any guarantee
 
provided by
 
the Term/RCF
 
Borrower to
 
RMB in
 
connection with
 
the
guarantee
 
facility
 
provided
 
by
 
RMB
 
to
 
Sandulela
 
Technology
 
Proprietary
 
Limited,
registration
 
number
 
2002/021487/07,
 
in
 
terms
 
of
 
a
 
working
 
capital
 
facility
 
letter
reference no: CM/01/Sandulela/2025,
 
as may be amended,
 
varied, restated or
 
replaced
from time
 
to time
 
(the
Facility Letter
), provided
 
that the
 
aggregate amount
 
payable
by
 
the
 
Term/RCF
 
Borrower
 
in
 
terms
 
of
 
that
 
guarantee
 
shall
 
not
 
exceed
ZAR30,000,000, together with interest,
 
costs and expenses relating
 
thereto as set out
in the Facility Letter;
23.13.7
any guarantee given by
 
a member of the
 
Covenant Group in relation
 
to the Financial
Indebtedness envisaged in clause
23.13.8
any
 
suretyship
 
and/or
 
guarantee
 
entered
 
into
 
pursuant
 
to
 
the
 
Permitted
 
Cash
Management Arrangement;
 
23.13.9
any guarantee expressly permitted in writing by the Facility Agent;
23.13.10
a
 
guarantee
 
(i)
 
provided
 
by
 
an
 
Obligor
 
in
 
the
 
Covenant
 
Group
 
for
 
the
 
Financial
Indebtedness of another Obligor in
 
the Covenant Group, or
 
(ii) provided by an
 
entity
which
 
is
 
not
 
an
 
Obligor
 
in
 
the
 
Covenant
 
Group
 
for
 
the
 
Financial
 
Indebtedness
 
of
another
 
entity
 
which
 
is
 
not
 
an
 
Obligor
 
in
 
the
 
Covenant
 
Group
 
,
 
provided
 
that
 
the
aggregate
 
indebtedness
 
pursuant
 
to
 
this
 
clause
 
and
 
clauses
 
(Financial
Indebtedness) and
 
does not
 
at any
 
time exceed
 
R50,000,000 (or
 
its equivalent
in
 
another
 
currency
 
or
 
currencies),
 
and
 
the
 
remainder
 
of
 
the
 
provisions
 
of
 
clause
 
are complied with,
mutatis mutandis
; and
 
23.13.11
the
 
Facility
 
Agent
 
has,
 
in
 
relation
 
to
 
any
 
guarantee
 
or
 
indemnity
 
that
 
replaces
 
the
guarantee
 
or
 
indemnity
 
that
 
is
 
in
 
effect
 
as
 
at
 
the
 
Closing
 
Date
 
(the
Existing
Guarantee/Indemnity
), confirmed
 
that it is
 
satisfied with the
 
form of the
 
replacement
guarantee
 
or
 
indemnity
 
and
 
such
 
form
 
of
 
guarantee
 
or
 
indemnity,
 
as
 
well
 
as
 
the
Existing Guarantee/Indemnity,
 
is not
 
amended or
 
replaced without
 
the express
 
prior
written consent of the Facility Agent.
23.14
Treasury Transactions
131
23.14.1
No Obligor shall (and the Obligors
 
shall ensure that no other
 
member of the Covenant
Group will) enter into any Treasury Transaction. This restriction does
 
not apply to the
following Treasury Transactions (each a
Permitted Treasury Transaction
) -
23.14.1.1
spot and
 
forward delivery
 
foreign exchange
 
contracts entered
 
into in
 
the ordinary
course of business -
23.14.1.1.1
under a WCF Agreement;
 
or
 
23.14.1.1.2
with any other
 
financial institution, provided that
 
no Security is
 
provided
to
 
such
 
financial
 
institution
 
and
 
the
 
aggregate
 
Financial
 
Indebtedness
incurred by the members
 
of the Covenant Group falls
 
within the amounts
set out in clause
 
but not for speculative purposes; or
23.14.1.2
any Treasury Transaction expressly permitted in writing by the Facility Agent.
23.15
Arm's length transactions
No Obligor
 
shall (and
 
the Obligors
 
shall ensure
 
that no
 
other member
 
of the Covenant
 
Group
will) enter
 
into any transaction
 
with any
 
person, otherwise than
 
on arm's-length
 
terms and
for full market value, save for -
23.15.1
loans
 
made
 
or
 
credit
 
provided
 
by
 
members
 
of
 
the
 
Covenant
 
Group
 
as
 
permitted
 
in
terms of this Agreement;
 
23.15.2
transactions
 
between
 
members
 
of
 
the
 
Covenant
 
Group
 
concluded
 
in
 
the
 
ordinary
course
 
of
 
business
 
and,
 
in
 
circumstances
 
where
 
one
 
or
 
more
 
of
 
the
 
parties
 
to
 
such
transactions are not wholly owned
 
Subsidiaries of the Term/RCF
 
Borrower, on arms'
length terms.
23.16
Insurance
 
23.16.1
In this clause a
prudent owner
 
means a prudent owner and operator of any business,
and of
 
assets of
 
a type
 
and size,
 
similar in
 
all cases
 
to those
 
owned and
 
operated by
any member of the Covenant Group in a similar location.
23.16.2
Each
 
Obligor
 
shall
 
(and
 
the
 
Obligors
 
shall
 
ensure
 
that
 
each
 
other
 
member
 
of
 
the
Covenant Group will) ensure that its Insurances -
132
23.16.2.1
insure it for its
 
insurable interest in respect of
 
all risks which are required
 
to be
insured
 
against
 
under
 
any
 
applicable
 
law
 
or
 
regulation
 
and
 
which
 
a
 
prudent
owner would insure against;
23.16.2.2
insure
 
it
 
against
 
losses
 
arising
 
from
 
business
 
interruption
 
(if
 
a
 
prudent
 
owner
would do so); and
23.16.2.3
in the case of any other
 
asset or risk, provide cover
 
up to a limit which a
 
prudent
owner would buy.
23.16.3
Each
 
Obligor
 
shall
 
(and
 
the
 
Obligors
 
shall
 
ensure
 
that
 
each
 
other
 
member
 
of
 
the
Covenant Group will) -
23.16.4
ensure that
 
its Insurances
 
are underwritten
 
by an
 
insurance company
 
or underwriter
which is of
 
international standing and
 
is not a
 
captive insurer which
 
is a member
 
of the
Covenant Group; and
23.16.5
ensure the
 
terms of its
 
Insurances are
 
no less favourable
 
than those which
 
are generally
available to a prudent owner, and subject to no greater excess, deductible or retention
than a prudent owner of its assets and businesses would carry.
23.17
Insurances - Notice under the Short-Term Insurance Act
23.17.1
Each
 
Obligor
 
confirms, in
 
respect
 
of
 
all
 
Insurances
 
required to
 
be maintained
 
by it
under
 
the
 
Finance
 
Documents, that
 
it
 
is
 
aware
 
and fully
 
appraised of
 
the
 
following
choices it has
 
under section 43
 
of the Short-Term
 
Insurance Act, 1998
 
(
Short-Term
Insurance Act
) -
23.17.1.1
a
 
choice
 
of
 
entering
 
into
 
a
 
new
 
policy
 
contract,
 
making
 
available
 
an
 
existing
policy contract or using a combination of those options; and
23.17.1.2
a choice as to the identity
 
of the insurer (if a new
 
policy contract is to be entered
into)
 
and
 
the
 
person
 
(if
 
any)
 
who
 
is
 
to
 
render
 
services
 
as
 
intermediary
 
in
connection with the transaction; and
23.17.1.3
subject to
 
the provisions
 
of this
 
Agreement, a
 
choice as
 
to
 
whether or
 
not the
value of the relevant
 
policy contracts will exceed
 
the value of the
 
interests of the
Finance Parties.
23.17.2
This clause
 
constitutes written notification to the Obligors of
 
their rights under
section 43 of the
 
Short-Term Insurance Act.
 
Regardless of the sequence in which
 
the
133
Finance Documents
 
are executed,
 
no benefits
 
under any
 
policy contract
 
made available
to the
 
Finance Parties under
 
a Finance
 
Document shall accrue
 
to the
 
Finance Parties
before the Signature Date.
23.17.3
Each Obligor confirms that it
 
exercised its freedom of choice
 
under section 43 of the
Short-Term
 
Insurance Act and
 
that it
 
was not
 
subject to
 
any coercion
 
or inducement
as to the manner in which that freedom of choice was exercised.
23.18
Intellectual Property Rights
23.18.1
Except as provided below, each Obligor shall (and the Obligors shall ensure that each
other member of the Covenant Group will) -
23.18.1.1
make
 
any
 
registration and
 
pay
 
any
 
fee
 
or
 
other amount
 
which is
 
necessary to
retain
 
and
 
protect
 
the
 
Intellectual
 
Property
 
Rights
 
which
 
are
 
material
 
to
 
the
business of a member of the Covenant Group;
23.18.1.2
record its interest in those Intellectual Property Rights;
23.18.1.3
take
 
such
 
steps
 
as
 
are
 
necessary
 
and
 
commercially
 
reasonable
 
(including
 
the
institution
 
of
 
legal
 
proceedings)
 
to
 
prevent
 
third
 
parties
 
infringing
 
those
Intellectual Property Rights;
23.18.1.4
not use or permit any such
 
Intellectual Property Right to
 
be used in a way which
may, or take or omit
 
to take any
 
action which
 
may, adversely affect the existence
or value of such Intellectual Property Right; and
23.18.1.5
not grant any licence
 
in respect of
 
those Intellectual Property
 
Rights, without the
express prior consent of the Facility Agent.
23.18.2
Clause
 
does
 
not
 
apply
 
to
 
licence
 
arrangements
 
entered into
 
between
members of the Covenant Group for so long as
 
they remain members of the Covenant
Group or to licence arrangements entered into
 
on normal commercial terms and in
 
the
ordinary course of its business.
23.19
Environmental matters
23.19.1
Each Obligor shall
 
(and the Obligors
 
shall ensure that
 
each other
 
member of the
 
Group
will) -
23.19.1.1
comply with
 
all Environmental
 
Law to
 
which it
 
is subject
 
in all
 
material respects;
134
23.19.1.2
obtain, maintain and ensure compliance with all Environmental Permits that are
required to carry on its business in the ordinary course; and
23.19.2
implement procedures to
 
monitor compliance with
 
and to prevent
 
liability under any
Environmental Law, including monitoring adequate
 
financial provisioning as
 
required
in respect thereof.
23.19.3
Each Obligor shall -
23.19.3.1
as
 
soon
 
as
 
reasonably
 
practicable
 
and,
 
in
 
any
 
event,
 
within
 
30
 
days
 
upon
becoming aware of the same, inform the Facility Agent
 
in writing of any breach
of
 
Environmental
 
Law
 
by
 
any
 
member
 
of
 
the
 
Group,
 
where
 
the
 
breach
 
of
Environmental Laws is
 
material to the
 
conduct of the
 
business of
 
a member of
the Group or is reasonably likely to result in any liability for a Finance
 
Party;
23.19.3.2
as soon as reasonably possible and,
 
in any event, within 14 days
 
upon becoming
aware of
 
the same
 
(or such
 
longer period
 
as the
 
Facility Agent
 
may agree)
 
inform
the Facility Agent in writing of -
23.19.3.2.1
any
 
Environmental
 
Claim
 
against
 
it
 
or
 
any
 
other
 
member
 
of
 
the
 
Group
which is current, pending or threatened; and
23.19.3.2.2
any
 
facts
 
or
 
circumstances
 
which
 
are
 
reasonably
 
likely
 
to
 
result
 
in
 
any
Environmental
 
Claim
 
being
 
commenced
 
or
 
threatened
 
against
 
it
 
or
 
any
other member of the Group,
where the
 
Environmental Claim
 
is material
 
to the
 
conduct of
 
the business
 
of a
member of
 
the Group
 
or is
 
reasonably likely
 
to result
 
in any
 
liability for
 
a Finance
Party;
23.19.3.3
as
 
soon
 
as
 
reasonably
 
practicable
 
following
 
request
 
by
 
the
 
Facility
 
Agent,
prepare and deliver to the Facility Agent -
23.19.3.3.1
a written
 
report, in form
 
and substance satisfactory
 
to the
 
Facility Agent,
in
 
respect
 
of
 
any
 
such
 
breach
 
of
 
Environmental
 
Law
 
or
 
any
 
actual
 
or
threatened Environmental Claim; and
23.19.3.3.2
a corrective action plan
 
in respect of any
 
failure by a member
 
of the Group
to
 
comply
 
with
 
Environmental Laws
 
(being
 
a
 
written
 
plan,
 
in
 
form
 
and
substance
 
satisfactory
 
to
 
the
 
Facility
 
Agent,
 
to
 
remedy
 
any
 
actual
 
or
potential adverse consequences of any such failure).
135
23.19.4
The
 
Term/RCF
 
Borrower
 
hereby
 
indemnifies
 
each
 
Finance
 
Party
 
and
 
its
 
officers,
employees, agents and delegates (together
 
the
Indemnified Parties
) against any loss
or liability suffered or incurred by that Indemnified Party (except to the extent caused
by such Indemnified Party's own gross negligence or wilful default) which -
23.19.4.1
arises
 
by
 
virtue
 
of
 
any
 
actual
 
or
 
alleged
 
breach
 
of
 
any
 
Environmental
 
Law
(whether by any Obligor, an Indemnified Party or any other person); or
23.19.4.2
arises in connection with an Environmental Claim,
which relates to
 
the Group,
 
any assets
 
of the
 
Group or the
 
operation of all
 
or part of
the
 
business
 
of
 
the
 
Group
 
(or,
 
in
 
each
 
case,
 
any
 
member
 
of
 
the
 
Group)
 
and
 
which
would not have arisen
 
if the Finance Documents
 
or any of them
 
had not been executed
by that Finance Party.
23.20
Share capital
23.20.1
No Obligor shall (and the Obligors
 
shall ensure that no other
 
member of the Covenant
Group will) -
23.20.1.1
redeem, purchase,
 
defease, retire
 
or repay
 
any of
 
its shares
 
or share
 
capital (or
any instrument convertible into shares or share capital) or resolve to do
 
so;
23.20.1.2
issue any shares (or
 
any instrument convertible
 
into shares) which by
 
their terms
are redeemable or
 
carry any right
 
to a return
 
prior to the
 
Final Discharge Date;
or
23.20.1.3
issue
 
any shares
 
or
 
share capital
 
(or any
 
instrument convertible
 
into shares
 
or
share capital) to any person.
23.20.2
Clauses
 
and
 
above do
 
not apply
 
to the
 
following (each
 
a
Permitted
Share Issue
) -
23.20.2.1
the issue of shares by a member of the Covenant Group which is not an Obligor
to another member of the
 
Covenant Group, provided
 
that those shares are
 
issued
to the existing shareholders of that member of the Covenant Group;
23.20.2.2
the
 
issue
 
of
 
shares
 
by
 
an
 
Obligor
 
or
 
a
 
member
 
of
 
the
 
Group
 
which
 
is
 
not
 
an
Obligor to
 
another Obligor,
 
provided that
 
if
 
any shares
 
in
 
the
 
Obligor issuing
those shares are the subject
 
of Transaction Security, any further shares so issued
136
become
 
the
 
subject
 
of
 
an
 
equivalent
 
Security
 
for
 
the
 
benefit
 
of
 
the
 
Finance
Parties on the same terms;
23.20.2.3
any issue of
 
shares by Holdco
 
provided that such
 
issue does not
 
lead to a
 
Control
Event;
23.20.2.4
an issue
 
of shares
 
to a
 
person with
 
the express
 
prior consent
 
of the
 
Facility Agent.
23.21
Distributions
23.21.1
No
 
Obligor
 
(other
 
than
 
Holdco)
 
shall
 
(and
 
the
 
Obligors
 
shall
 
ensure
 
that
 
no
 
other
member of the Covenant Group will)
 
make any distribution. This restriction does not
apply to the following distributions (each a
Permitted Distribution
) -
23.21.1.1
any cash distribution by
 
a member of the
 
Covenant Group to its
 
direct Holding
Company that is another member of the Covenant Group;
23.21.1.2
any cash distribution by a member of the Covenant Group to any of its
 
minority
shareholders provided such distribution is in relation to a dividend declared
pro
rata
 
between all shareholders of that member of the Covenant Group;
23.21.1.3
any other distribution made with
 
the express prior consent of the
 
Facility Agent.
23.21.2
The Term/RCF Borrower may make payment of a cash distribution to Holdco, -
23.21.2.1
which shall not
 
exceed an aggregate of
 
the ZAR equivalent
 
of USD10,000,000
(Indexed) in any Financial
 
Year less (i) the amount of any
 
Kwande Distributions
received
 
in
 
that
 
Financial Year
 
and
 
(ii)
 
the
 
amount
 
of
 
any loans
 
made
 
by
 
the
Term/RCF
 
Borrower to
 
Holdco in
 
any Financial
 
Year
 
as permitted
 
in terms
 
of
clause
, provided that -
23.21.2.1.1
any and all Authorisations required by any regulatory authority (including
without
 
limitation
 
the
 
Financial
 
Surveillance
 
Department
 
of
 
the
 
South
African Reserve Bank) to make such Distribution has been obtained;
23.21.2.1.2
no
 
other
 
amount
 
due
 
and
 
payable
 
under
 
the
 
Senior
 
Facilities
 
remains
unpaid as at the date on which the payment is proposed to be made;
23.21.2.1.3
no Default is then continuing or would result from that payment;
23.21.2.1.4
taking into
 
account the
 
amount of
 
the proposed
 
payment if
 
it were
 
to be
made immediately prior to and immediately following such payment each
137
of
 
the
 
financial
 
undertakings
 
set
 
out
 
in
 
clause
 
(Undertakings
 
in
relation to financial condition) has been met,
 
as
prima facie
evidenced by
delivery to the Facility Agent of a certificate in the agreed form signed by
the
 
chief
 
financial
 
officer
 
of
 
the
 
Group
 
and
 
at
 
least
 
one
 
director
 
of
 
the
Term/RCF
 
Borrower
 
setting
 
out
 
(in
 
reasonable
 
detail)
 
computations
 
of
such compliance
 
(and which includes
pro forma
 
adjustments to
 
take into
account the amount of the proposed payment); and
 
23.21.2.2
in addition to
 
the cash distribution
 
envisaged in
 
clause
, if the
 
following
conditions are met -
23.21.2.2.1
the Term/RCF
 
Borrower has
 
given 10
 
Business Days'
 
prior notice
 
to the
Facility Agent of the intention to make such payment;
23.21.2.2.2
a
 
Compliance
 
Certificate
 
for
 
the
 
Measurement
 
Period
 
ending
 
on
 
the
Measurement Date immediately preceding
 
the date on which
 
that payment
is proposed to be made has been delivered to the Facility Agent;
23.21.2.2.3
taking into
 
account the
 
amount of
 
the proposed
 
payment if
 
it were
 
to be
made -
23.21.2.2.3.1
immediately prior to and immediately following such payment -
23.21.2.2.3.1.1
the
 
ratio
 
of
 
Total
 
Borrowings
 
immediately
 
prior
 
to
 
and
following such
 
payment to
 
Consolidated EBITDA
 
for the
 
12
Month period ending on the most recent
 
Measurement Date is
less than 2.00; and
23.21.2.2.3.1.2
each
 
of
 
the
 
financial
 
undertakings
 
set
 
out
 
in
 
clause
(Undertakings in relation to financial condition) has been met;
and
23.21.2.2.3.2
for
 
the
 
next
 
three
 
Measurement
 
Periods
 
ending
 
on
 
the
 
three
Measurement Dates immediately following
 
that payment each of the
financial
 
undertakings
 
set
 
out
 
in
 
clause
 
(Undertakings
 
in
relation
 
to
 
financial
 
condition)
 
(on
 
the
 
basis
 
of
 
reasonable
assumptions) are forecast to be met,
in each case, as
prima facie
evidenced by delivery to the Facility Agent of
a certificate in the agreed form
 
signed by the chief financial officer
 
of the
Group and at least one director
 
of the Term/RCF
 
Borrower setting out (in
138
reasonable detail)
 
computations of
 
such compliance
 
(and which
 
includes
pro
 
forma
 
adjustments
 
to
 
take
 
into
 
account
 
the
 
amount
 
of
 
the
 
proposed
payment);
23.21.2.2.4
all amounts payable
 
under clause
 
(Prepayment offers and
 
priorities) have
been received in full by the relevant Lenders;
23.21.2.2.5
any
 
and
 
all
 
Authorisations(including
 
without
 
limitation
 
the
 
Financial
Surveillance Department of the South African
 
Reserve Bank) required by
any regulatory authority to make such Distribution has been obtained;
23.21.2.2.6
no
 
other
 
amount
 
due
 
and
 
payable
 
under
 
the
 
Senior
 
Facilities
 
remains
unpaid as at the date on which the payment is proposed to be made;
23.21.2.2.7
no Default is then continuing or would result from that payment;
23.21.2.2.8
that payment is not prohibited under any applicable law; and
23.21.2.2.9
no more than
 
two such payments
 
may be made
 
during any financial
 
year
of the Group.
 
23.22
Taxes
23.22.1
Each Obligor shall
 
(and the Obligors
 
shall ensure that
 
each other
 
member of the
 
Group
will) pay and discharge all
 
Taxes imposed
 
upon it or its assets
 
within the time period
allowed without incurring penalties unless and only to the extent that -
23.22.1.1
such payment is being contested in good faith;
23.22.1.2
the amount
 
under dispute
 
is not
 
in excess
 
of 2%
 
in aggregate
 
of Consolidated
EBITDA (calculated with reference
 
to Holdco's most recently
 
delivered annual
financial statements);
23.22.1.3
adequate reserves are being
 
maintained for those Taxes and the costs
 
required to
contest them which have been disclosed in its latest financial statements;
 
and
23.22.1.4
such payment can be lawfully withheld.
23.22.2
No member of the Group may change its residence for Tax purposes.
23.23
Amendments to documents
139
23.23.1
No
 
Obligor
 
(other
 
than
 
Holdco)
 
shall
 
(and
 
the
 
Obligors
 
shall
 
ensure
 
that
 
no
 
other
member of the Covenant Group will) -
23.23.1.1
amend its memorandum of incorporation or other constitutional documents;
 
23.23.1.2
amend
 
or
 
waive
 
any
 
term
 
of
 
any
 
document
 
delivered
 
to
 
the
 
Facility
 
Agent
pursuant to clause
 
(Initial conditions precedent),
without the express prior written
 
consent of the Facility Agent
 
or which are minor or
administrative
 
in
 
nature
 
and
 
will
 
not
 
adversely
 
affect
 
the
 
interests
 
of
 
the
 
Finance
Parties.
23.23.2
The Term/RCF
 
Borrower must
 
promptly supply
 
to the
 
Facility Agent
 
a copy
 
of any
amendment to any of the documents referred to in clause
 
above.
23.24
Access
23.24.1
Upon reasonable
 
notice by
 
the
 
Facility Agent,
 
each Obligor
 
shall (and
 
the Obligors
shall
 
ensure
 
that
 
each
 
other
 
member
 
of
 
the
 
Group
 
will)
 
allow
 
any
 
one
 
or
 
more
representatives of
 
the Finance
 
Parties and/or
 
accountants or
 
other professional
 
advisers
appointed by
 
the Finance
 
Parties to have
 
access during normal
 
business hours to
 
the
premises, assets, books and records of that member of the Group.
23.24.2
The Facility
 
Agent may
 
not give
 
notice under clause
 
above more than
 
twice
every financial year, unless it
 
reasonably believes that a Default is continuing or may
have occurred or may occur and notifies the Term/RCF
 
Borrower that it is exercising
its rights under this clause
23.25
Anti-corruption laws and Sanctions
23.25.1
No Obligor
 
shall (and
 
the Obligors
 
shall ensure
 
that no
 
other member
 
of the
 
Group
will) -
23.25.1.1
contravene any Sanctions;
23.25.1.2
at any
 
time be
 
a party
 
to or
 
participate in
 
a Sanctioned
 
Transaction in
 
any manner;
or
23.25.1.3
directly
 
or
 
indirectly
 
use
 
the
 
proceeds
 
of
 
any
 
Facility
 
for
 
any
 
purpose
 
which
would breach
 
the Prevention
 
and Combatting
 
of Corrupt
 
Activities Act,
 
2004,
the
 
United
 
Kingdom
 
Bribery
 
Act
 
2010,
 
the
 
United
 
States
 
Foreign
 
Corrupt
Practices Act of 1977 or other similar legislation in other jurisdictions.
140
23.25.2
Each Obligor shall (and Holdco shall ensure that each member of
 
the Group will) -
23.25.2.1
take all
 
reasonable steps
 
to ensure
 
that appropriate
 
controls and
 
safeguards are
in place, designed to prevent it or any other member of
 
the Group from being or
becoming involved in a Sanctioned Transaction; and
23.25.2.2
conduct its
 
businesses in
 
compliance with
 
applicable anti-corruption
 
laws and
maintain policies and
 
procedures designed to
 
promote and
 
achieve compliance
with such laws.
23.26
Further Transaction Security
23.26.1
Each
 
Additional
 
Guarantor
 
shall,
 
immediately
 
upon
 
becoming
 
an
 
Additional
Guarantor, execute and deliver to
 
the Debt Guarantor (on
 
behalf of the Facility
 
Agent)
such Security Documents, in form and substance satisfactory to the Facility Agent, as
may
 
be
 
necessary
 
to
 
ensure
 
that
 
all
 
of
 
the
 
Transaction
 
Security
 
required
 
under
Annexure
 
G
 
(Transaction
 
Security)
 
from
 
it
 
is
 
established
 
in
 
favour
 
of
 
the
 
Debt
Guarantor over all of its assets.
23.26.2
If,
 
after
 
the
 
Closing Date
 
or
 
the
 
date
 
upon which
 
it became
 
an
 
Obligor,
 
an Obligor
(other than
 
Holdco) acquires
 
any relevant
 
assets (including
 
any shares
 
or ownership
interests
 
in
 
and/or
 
claims
 
against
 
any
 
person)
 
over
 
which it
 
is
 
required
 
to
 
establish
Transaction Security
 
pursuant to Annexure G
 
(Transaction Security), it
 
shall execute
and deliver
 
to the
 
Debt Guarantor
 
such Security
 
Documents, in
 
form and
 
substance
satisfactory to the Facility Agent, as may be necessary to ensure that at all times such
required
 
effective
 
first-ranking
 
Transaction
 
Security
 
is
 
established
 
in
 
favour
 
of
 
the
Debt
 
Guarantor
 
over
 
those
 
assets,
 
within
 
10
 
Business
 
Days
 
of
 
being
 
acquired
 
(in
respect
 
of
 
any
 
such
 
assets
 
situated,
 
or
 
entity
 
established,
 
in
 
South
 
Africa)
 
or
30 Business Days
 
of being
 
acquired (in
 
respect of
 
any such
 
assets situated,
 
or entity
established, in another jurisdiction).
23.26.3
If, at any
 
time after the
 
Closing Date, the
 
aggregate of the
 
gross assets, EBITDA
 
(as
defined
 
in
 
clause
 
above)
 
or
 
total
 
revenue
 
of
 
the
 
Subsidiaries
 
of
 
the
Term/RCF
 
Borrower
 
which
 
are
 
members
 
of
 
the
 
Covenant
 
Group
 
incorporated
 
in
 
a
jurisdiction outside South Africa, and who are not Obligors at that time, (the
Non-SA
Subsidiaries
) equal
 
or exceed
 
10% of
 
Consolidated EBITDA
 
or 10%
 
of the
 
total assets
or total revenue of the
 
Covenant Group, as evidenced by reference to the
 
most recent
Compliance
 
Certificate,
 
financial
 
statements
 
of
 
any
 
such
 
Subsidiary
 
and
 
the
consolidated financial statements or management accounts of
 
the Covenant Group or
SEC Form
 
(as applicable),
 
then the
 
Term/RCF Borrower must
 
procure that
 
the relevant
141
member or
 
members of
 
the Covenant
 
Group holding
 
shares, equity
 
securities and
 
other
ownership interests in any such
 
Non-SA Subsidiaries enter into Security
 
Documents,
in
 
form
 
and
 
substance
 
satisfactory
 
to
 
the
 
Facility
 
Agent,
 
in
 
favour
 
of
 
the
 
Debt
Guarantor to
 
establish the
 
Security equivalent
 
to that
 
described in
 
clause 1.2
 
(South
African
 
Obligors
 
and
 
Material
 
Subsidiaries)
 
of
 
Annexure
 
G
 
(Transaction
 
Security)
over all its
 
shares, equity securities
 
and other ownership
 
interests it holds,
 
from time
to
 
time,
 
in
 
any
 
such
 
Non-SA
 
Subsidiary
 
(together
 
with
 
all
 
its
 
debt
 
claims
 
(on
shareholder loan
 
account or
 
otherwise) against
 
that Non-SA
 
Subsidiary), in
 
relation
only
 
to
 
so
 
many
 
of
 
such
 
Non-SA
 
Subsidiaries
 
as
 
is
 
required
 
to
 
ensure
 
that
 
if
 
the
financial
 
position
 
of
 
such
 
Non-SA
 
Subsidiaries
 
were
 
not
 
taken
 
into
 
account
 
in
calculating the gross assets, EBITDA or total revenue of all Non-SA Subsidiaries,
 
the
aggregate of (i) the EBITDA of
 
the Non-SA Subsidiaries would be
 
less than 10%, of
Consolidated
 
EBITDA
 
and
 
(ii)
 
of
 
the
 
gross
 
assets
 
or
 
total
 
revenue
 
of
 
the
 
Non-SA
Subsidiaries would
 
be less
 
than 10%
 
of the
 
Consolidated EBITDA,
 
gross assets
 
or total
revenue of the Covenant Group. For this purpose -
23.26.3.1
the
 
EBITDA,
 
gross
 
assets
 
or
 
total
 
revenue
 
of
 
a
 
Non-SA
 
Subsidiary
 
of
 
the
Term/RCF
 
Borrower
 
which
 
is
 
a
 
member
 
of
 
the
 
Covenant
 
Group
 
will
 
be
determined from its financial statements or management accounts
 
(in each case,
consolidated
 
if
 
it
 
has
 
Subsidiaries)
 
which
 
were
 
consolidated
 
into
 
the
 
latest
audited
 
consolidated
 
financial
 
statements
 
or
 
management
 
accounts
 
of
 
the
Term/RCF
 
Borrower
 
or
 
the
 
SEC
 
Form
 
(adjusted
 
on
 
a
 
pro
 
forma
 
basis
 
as
contemplated
 
in
 
clause
 
or
 
(Financial
 
statements),
 
as
applicable);
23.26.3.2
if a
 
Non-SA Subsidiary
 
of the
 
Term/RCF
 
Borrower becomes
 
a member
 
of the
Covenant Group after the
 
date on which the
 
latest audited consolidated financial
statements
 
or
 
management
 
accounts
 
of
 
the
 
Term/RCF
 
Borrower
 
or
 
the
 
SEC
Form have
 
been prepared,
 
the EBITDA,
 
gross assets
 
or total
 
revenue of
 
that Non-
SA
 
Subsidiary
 
will
 
be
 
determined
 
from
 
its
 
latest
 
financial
 
statements
 
or
management accounts (in each case, consolidated if it has Subsidiaries);
23.26.3.3
the Consolidated EBITDA, gross assets or total revenue of the Covenant Group
will be
 
determined from
 
the latest
 
audited consolidated
 
financial statements
 
or
management accounts of
 
the Term/RCF Borrower or
 
the SEC Form
 
(adjusted on
a
 
pro
 
forma
 
basis
 
as
 
contemplated
 
in
 
clause
 
or
 
(Financial
statements), as applicable);
142
23.26.3.4
the
EBITDA
 
of a
 
Non-SA Subsidiary will
 
be determined on
 
the same basis
 
as
Consolidated EBITDA (as defined in clause
 
(Financial Definitions) above),
except that references to the Covenant Group
 
will be construed as references to
that Non-SA Subsidiary; and
23.26.3.5
where financial
 
statements and
 
management accounts
 
of a
 
Non-SA Subsidiary
or
 
the
 
Term/RCF
 
Borrower
 
are
 
available
 
in
 
respect
 
of
 
the
 
same
 
accounting
period,
 
the
 
financial
 
statements
 
shall
 
be
 
used
 
for
 
purposes
 
of
 
making
 
the
necessary determinations.
23.26.4
The
 
Term/RCF
 
Borrower must
 
procure that
 
the
 
Security
 
Documents required
 
to
 
be
entered into under
 
this clause are
 
entered into, and
 
to the extent
 
necessary registered
at any applicable statutory public
 
register in any relevant
 
jurisdiction, within 60 days
of the date of delivery of
 
a Compliance Certificate, financial
 
statements,
 
SEC Form or
management accounts, as applicable.
23.26.5
Each Obligor shall
 
(and shall procure
 
that each other
 
relevant member of
 
the Covenant
Group
 
which
 
is
 
its
 
Subsidiary
 
will)
 
at
 
its
 
own
 
expense,
 
execute
 
and
 
do
 
all
 
such
assurances, acts and things as the Facility Agent may reasonably require -
23.26.5.1
for
 
registering
 
any
 
Security
 
Documents
 
in
 
any
 
applicable
 
statutory
 
public
register; or
23.26.5.2
for perfecting or protecting the Transaction
 
Security intended to be afforded by
the Security Documents; and
23.26.5.3
if a
 
Security Document
 
has become
 
enforceable, for
 
facilitating the
 
realisation
of all or any
 
part of the assets which
 
are subject to that
 
Security Document and
the exercise of all powers, authorities and discretions vested in
 
a Finance Party,
and in
 
particular shall execute
 
all transfers, cessions
 
and releases of
 
that Transaction
Security, whether to the Debt Guarantor or to
 
its nominees and give all notices,
 
orders
and directions which the Facility Agent may reasonably think expedient.
23.27
Ownership of Guarantors
The Term/RCF Borrower shall ensure that -
23.27.1
in
 
relation
 
to
 
each
 
Original
 
Guarantor,
 
unless
 
otherwise
 
permitted
 
under
 
this
Agreement, the
 
percentage of
 
the
 
equity securities
 
in the
 
issued capital
 
of any
 
such
Original
 
Guarantor
 
owned,
 
directly
 
or
 
indirectly,
 
legally
 
and
 
beneficially,
 
by
 
the
143
Term/RCF
 
Borrower are
 
equal to
 
or greater
 
than those
 
percentages stipulated
 
in the
Group Structure Chart unless otherwise agreed in writing by the Facility Agent;
 
and
23.27.2
in
 
relation
 
to
 
each
 
Additional
 
Guarantor,
 
unless
 
otherwise
 
permitted
 
under
 
this
Agreement, the
 
percentage of
 
the
 
equity securities
 
in the
 
issued capital
 
of any
 
such
Additional
 
Guarantor
 
owned,
 
directly
 
or
 
indirectly,
 
legally
 
and
 
beneficially,
 
by
 
the
Term/RCF Borrower are not less than
 
the percentage held
 
by the Term/RCF Borrower
at the
 
time such Additional
 
Guarantor became
 
a Guarantor
 
pursuant to
 
this Agreement.
23.28
Guarantor coverage
23.28.1
The
 
Term/RCF
 
Borrower
 
shall
 
ensure
 
that,
 
at
 
all
 
times
 
after
 
the
 
Closing
 
Date,
 
the
aggregate contribution
 
of the
 
Guarantors (calculated
 
on an
 
unconsolidated basis
 
and
excluding
 
all
 
intra-Covenant
 
Group
 
items
 
and
 
investments
 
in
 
Subsidiaries
 
of
 
any
member of the Covenant Group) represents not less than 90% of -
23.28.1.1
the Consolidated EBITDA of the Covenant Group;
23.28.1.2
gross assets of the Covenant Group; and
23.28.1.3
total revenue of the Covenant Group.
23.28.2
If, at any time after the Signature Date -
23.28.2.1
it is
 
demonstrated by
 
reference to
 
the most
 
recent Compliance
 
Certificate, the
financial statements of any Subsidiary
 
that is a member
 
of the Covenant Group
and
 
the
 
consolidated
 
financial
 
statements
 
or
 
management
 
accounts
 
of
 
the
Covenant Group or the SEC Form that any member of
 
the Covenant Group is a
Material Subsidiary; or
23.28.2.2
a member of
 
the Covenant
 
Group otherwise
 
is or becomes
 
a Material
 
Subsidiary,
then
 
the
 
Term/RCF
 
Borrower
 
shall,
 
subject
 
to
 
clause
 
(
Know
 
your
 
customer
checks
) and
 
the prior
 
written consent of
 
the Facility
 
Agent being
 
obtained, promptly
and in any
 
event within
 
10 Business Days
 
of the delivery
 
of those financial
 
statements,
SEC Form or management accounts procure that
 
that Material Subsidiary becomes an
Additional Guarantor in the manner required by clause
 
(
Additional Guarantors
).
23.29
Dormant Subsidiaries
No Obligor shall (and each Obligor
 
shall ensure no other member of the
 
Group will) cause
or permit any member of the Covenant Group which is a Dormant
 
Subsidiary to commence
144
trading
 
or
 
cease
 
to
 
satisfy
 
the
 
criteria
 
for
 
a
 
Dormant
 
Subsidiary
 
unless
 
such
 
Dormant
Subsidiary
 
becomes
 
an
 
Additional
 
Guarantor
 
in
 
accordance
 
with
 
clause
 
(
Additional
Guarantors
)
 
if
 
required
 
to
 
comply
 
with
 
the
 
requirements
 
of
 
clause
 
(
Guarantor
coverage
).
23.30
Material Agreements
23.30.1
No Obligor shall (and the Obligors
 
shall ensure that no other
 
member of the Covenant
Group will) amend, vary or terminate any Material Agreement -
23.30.1.1
without the prior approval of the Facility Agent;
 
or
 
23.30.1.2
unless such amendments are more favourable to the Covenant Group;
 
or
 
23.30.1.3
unless
 
such
 
amendments
 
are
 
minor
 
or
 
administrative
 
in
 
nature
 
and
 
do
 
not
adversely impact
 
the interests
 
of the
 
Finance Parties
 
in relation
 
to the
 
Finance
Documents.
23.30.2
The Term/RCF
 
Borrower shall
 
promptly (or
 
shall procure
 
the prompt)
 
supply to
 
the
Facility Agent of the details and
 
copies of any amendments or variations proposed to
or
 
(with
 
the
 
prior
 
approval
 
of
 
the
 
Facility
 
Agent
 
in
 
relation
 
to
 
only
 
those
 
Material
Agreements referred to in clause
 
above) made to any
 
Material Agreement and
any proposed or (with
 
the prior approval of
 
the Facility Agent in
 
relation to only those
Material
 
Agreements
 
referred
 
to
 
in
 
clause
 
above)
 
actual
 
termination
 
of
 
a
Material Agreement.
23.31
EBITDA
Holdco and
 
the Term/RCF Borrower
 
shall ensure
 
that, at
 
all times,
 
the Term/RCF Borrower's
earnings before interest, tax, depreciation, amortisation and impairment charges (calculated
on the same basis as EBITDA) is equal to at least 90% of Holdco's
 
earnings before interest,
tax,
 
depreciation,
 
amortisation
 
and
 
impairment
 
charges
 
(calculated
 
on
 
the
 
same
 
basis
 
as
EBITDA) in any financial year.
 
24
EVENTS OF DEFAULT
Each of the
 
events or circumstances set
 
out in this clause
 
(other than
 
(
Acceleration
)) is
an Event of
 
Default. For
 
the purposes
 
of this
 
clause
, any
 
reference to a
 
member of the
 
Covenant
Group shall be deemed to exclude any Excluded Subsidiaries.
24.1
Non-payment
145
An
 
Obligor
 
does
 
not
 
pay
 
on
 
the
 
due
 
date
 
any
 
amount
 
payable
 
by
 
it
 
under
 
a
 
Finance
Document, at the place and in the currency in which it is expressed
 
to be payable unless -
24.1.1
that failure to pay is
 
caused by administrative or
 
technical error or a Disruption
 
Event;
and
24.1.2
payment is made in full within 3 Business Days of its due date.
24.2
Financial covenants
Any requirement of clause
 
(
Financial Covenants
) is not satisfied, unless that breach -
24.2.1
is capable of remedy under clause
 
(
Equity cure
); and
24.2.2
is remedied, timeously and in full, in accordance with the requirements of
 
that clause.
24.3
Other obligations
24.3.1
An
 
Obligor
 
or
 
Security
 
Provider
 
fails
 
to
 
comply,
 
timeously
 
and
 
in
 
full,
 
with
 
any
provision of
 
a Finance Document
 
to which
 
it is
 
party (in
 
respect of an
 
Obligor only,
other than those referred to in clauses
 
and
 
above).
24.3.2
No Event of Default
 
under clause
 
above will occur,
 
if the failure is
 
capable of
remedy and is
 
remedied within
 
5 Business Days
 
of the earlier
 
of (A)
 
the Facility Agent
giving notice to the Term/RCF Borrower and (B) the applicable failure to comply.
24.4
Misrepresentation
24.4.1
Any representation
 
or statement made
 
or deemed
 
to be made
 
by an Obligor
 
or Security
Provider in the
 
Finance Documents or any
 
other document delivered by
 
or on behalf
of any
 
Obligor or
 
Security Provider
 
under or
 
in connection
 
with any
 
Finance Document
is or proves
 
to have been
 
incorrect or
 
misleading when
 
made or deemed
 
to be
 
repeated.
24.4.2
No Event of Default under clause
 
above will occur, if
 
the circumstance giving
rise to
 
that misrepresentation
 
is capable
 
of remedy
 
and is
 
remedied w
 
within 5 Business
Days of the earlier of (A) the Facility Agent giving notice to the Term/RCF Borrower
and (B) the applicable failure to comply.
24.5
Cross default and cross acceleration
24.5.1
Any of the
 
following occurs
 
in respect of
 
a member of
 
the Covenant Group
 
or Security
Provider -
146
24.5.1.1
any
 
of
 
its
 
Financial
 
Indebtedness
 
(or
 
any
 
amount
 
payable
 
in
 
respect
 
of
 
its
Financial Indebtedness) is not paid when
 
due (after the expiry of
 
any originally
applicable grace period); or
24.5.1.2
any of its Financial Indebtedness -
24.5.1.2.1
is declared to be or otherwise becomes prematurely due and payable prior
to
 
its
 
stated
 
maturity
 
or,
 
if
 
the
 
Financial
 
Indebtedness
 
arises
 
under
 
a
guarantee, prior to the stated
 
maturity of the Financial Indebtedness
 
which
is the subject of the guarantee; or
24.5.1.2.2
is placed on demand;
24.5.1.2.3
is capable of being
 
declared by or on
 
behalf of a creditor
 
to be prematurely
due and payable or of being placed on demand;
 
24.5.1.2.4
is required to be
 
mandatorily prepaid in
 
full or is capable
 
of being required
to be
 
mandatorily prepaid
 
in full
 
(whether or
 
not the
 
event giving
 
rise to
such right has been waived by the creditor); or
24.5.1.2.5
is terminated or closed out or is capable of being terminated or
 
closed out,
in each case, as a result
 
of an event of default or
 
any provision having a similar
effect (howsoever described); or
24.5.1.3
any
 
commitment
 
of
 
a
 
provider
 
of
 
Financial
 
Indebtedness
 
to
 
it
 
is
 
cancelled
 
or
suspended, or
 
is capable
 
of being
 
cancelled or
 
suspended by
 
such provider,
 
in
each
 
case, as
 
a result
 
of
 
an event
 
of default
 
or any
 
provision having
 
a similar
effect (howsoever described);
 
24.5.1.4
any
 
creditor
 
becomes
 
entitled
 
to
 
declare
 
any
 
Financial
 
Indebtedness
 
of
 
a
Covenant
 
Group
 
Member
 
or
 
a
 
Security
 
Provider
 
due
 
and
 
payable
 
prior
 
to
 
its
specified
 
maturity
 
as
 
a
 
result
 
of
 
an
 
event
 
of
 
default
 
(however
 
described),
mandatory
 
prepayment event
 
(however
 
described)
 
or
 
any
 
provisions
 
having
 
a
similar effect; or
 
24.5.1.5
any
 
creditor
 
of
 
a
 
Covenant
 
Group
 
Member
 
or
 
a
 
Security
 
Provider
 
becomes
entitled
 
to
 
foreclose
 
on
 
any
 
Security
 
given
 
to
 
secure
 
any
 
of
 
its
 
Financial
Indebtedness.
 
147
24.5.2
No
 
Event
 
of
 
Default
 
will
 
occur
 
under
 
this
 
clause
 
if
 
the
 
aggregate
 
amount
 
of
Financial
 
Indebtedness
 
or
 
commitment
 
for
 
Financial
 
Indebtedness
 
falling
 
within
clauses
 
to
 
is
 
less
 
than
 
R20,000,000
 
(twenty
 
million
 
Rand)
 
(or
 
its
equivalent in another currency or currencies).
24.6
Insolvency
24.6.1
A Material
 
Group Company,
 
Security Provider
 
or any
 
member of
 
the Group
 
is or
 
is
deemed for
 
the purposes
 
of any
 
applicable law
 
to be
 
insolvent or
 
unable to
 
pay its
 
debts
as they fall due,
 
admits its insolvency or
 
its inability to pay
 
its debts as they
 
fall due,
suspends making payments on any
 
of its debts or
 
announces an intention to
 
do so or,
by reason of actual or
 
anticipated financial difficulties, commences negotiations with
one
 
or
 
more
 
of
 
its
 
creditors
 
with
 
a
 
view
 
to
 
the
 
rescheduling,
 
restructuring
 
or
compromise of any of its indebtedness.
24.6.2
A Material
 
Group Company,
 
Security Provider
 
or any
 
member of
 
the Group
 
is or
 
is
deemed
 
for
 
the
 
purposes
 
of
 
any
 
applicable
 
law
 
to
 
be
 
"Financially
 
Distressed"
 
(as
defined in the Companies Act).
24.6.3
The
 
value
 
of
 
the
 
assets
 
of
 
a
 
Material
 
Group
 
Company,
 
Security
 
Provider
 
or
 
any
member
 
of
 
the
 
Group
 
is
 
less
 
than
 
its
 
liabilities
 
(taking
 
into
 
account
 
contingent and
prospective liabilities).
24.6.4
A
 
moratorium
 
is
 
declared,
 
instituted
 
or
 
takes
 
effect
 
in
 
respect
 
of
 
any
 
of
 
the
indebtedness of
 
any Material
 
Group Company,
 
Security Provider
 
or any
 
member of
the Group (in which event the ending
 
of the moratorium will not remedy
 
any Event of
Default caused by that moratorium).
24.7
Insolvency and business rescue proceedings
24.7.1
Any
 
corporate
 
action,
 
legal
 
proceedings
 
or
 
other
 
procedure
 
or
 
step
 
(including
 
an
application to court, proposal or convening of a meeting) is taken with
 
a view to -
24.7.1.1
the
 
suspension
 
of
 
payments,
 
a
 
moratorium
 
of
 
any
 
indebtedness,
 
liquidation,
winding-up,
 
dissolution,
 
administration,
 
business
 
rescue
 
or
 
reorganisation
 
(by
way
 
of
 
voluntary
 
arrangement,
 
scheme
 
of
 
arrangement
 
or
 
otherwise)
 
of
 
any
Material Group Company, Security Provider or any member of the Group;
24.7.1.2
a composition,
 
compromise, assignment
 
or arrangement
 
with any
 
creditor of
 
a
Material Group Company, Security Provider or any member of the Group;
148
24.7.1.3
the appointment of a liquidator (other than in
 
respect of a solvent liquidation of
a member of
 
the Group which
 
is not a
 
member of the
 
Covenant Group),
 
receiver,
administrative
 
receiver,
 
administrator,
 
compulsory
 
manager,
 
business
 
rescue
practitioner or other similar officer
 
in respect of any Material
 
Group Company,
Security Provider or any member of the Group or any of their assets; or
24.7.1.4
enforcement of
 
any Security
 
over any
 
assets of
 
any Material
 
Group Company,
Security Provider or any member of the Group,
or any analogous procedure or step is taken in any jurisdiction;
24.7.2
A meeting is proposed or convened by the directors of any Material Group Company,
Security
 
Provider or
 
any member
 
of
 
the
 
Group, a
 
resolution is
 
proposed or
 
passed,
application is made or an order is applied for or granted, to authorise the entry into or
implementation
 
of
 
any
 
business
 
rescue
 
proceedings (or
 
any
 
similar
 
proceedings) in
respect
 
of
 
any
 
Material
 
Group
 
Company,
 
Security
 
Provider
 
or
 
any
 
member
 
of
 
the
Group, or any analogous procedure or step is taken in any jurisdiction.
24.8
Creditors' process
Any expropriation, attachment, sequestration,
 
implementation of any business
 
rescue plan,
distress or
 
execution affects
 
any asset
 
or assets
 
of a
 
member of
 
the Covenant
 
Group or
 
a
Security Provider. No Event of Default will occur under this clause
 
if -
24.8.1
the affected assets are not subject to any Transaction Security and
 
the aggregate value
of
 
those assets
 
is
 
less than
 
R20,000,000 (twenty
 
million Rand)
 
(or its
 
equivalent in
another currency or currencies); or
24.8.2
that expropriation,
 
attachment, sequestration, implementation
 
of any
 
business rescue
plan, distress or execution is being contested in good faith and with due diligence
 
and
is discharged or set aside within 14 days.
24.9
Legal proceedings
24.9.1
Any
 
member
 
of
 
the
 
Covenant
 
Group
 
or
 
Holdco
 
fails
 
to
 
discharge
 
in
 
full,
 
within
 
5
Business Days
 
of the
 
due date,
 
any amount
 
payable pursuant
 
to a
 
final judgment
 
or
order made or
 
given by any
 
court or other
 
authority of competent
 
jurisdiction in any
litigation, arbitration,
 
administrative, governmental,
 
regulatory or
 
other investigations,
proceedings or enquiry (including any such investigations, proceedings or enquiry by
any
 
competition
 
authority,
 
environmental
 
authority,
 
tax
 
authority
 
or
 
sector
 
specific
regulatory authority).
149
24.9.2
For the purposes of clause
 
above, a final judgment or
 
order means a judgment
or order -
24.9.2.1
which is
 
not appealable
 
or is
 
appealable but
 
in respect
 
of which
 
the period
 
for
the lodging of an appeal has lapsed and the
 
applicable member of the Covenant
Group or Holdco has failed to institute appeal proceedings; and
24.10
which
 
is
 
not
 
capable of
 
rescission or
 
is
 
capable of
 
rescission but
 
in
 
respect
 
of
 
which
 
the
period for
 
applying for
 
rescission has
 
lapsed and
 
the applicable
 
member of
 
the Covenant
Group
 
or
 
Holdco
 
has
 
failed
 
to
 
apply
 
for
 
rescission
 
or
 
has
 
applied
 
for
 
rescission
 
of
 
such
judgment or order and the application for rescission has been denied.
24.11
Cessation of business
A Group Company or Security Provider suspends, ceases, or threatens to suspend or cease,
to carry on
 
all or a
 
substantial part of
 
its business or
 
to change the
 
nature of its
 
business from
that undertaken at the Signature Date.
24.12
Finance Documents
24.12.1
It
 
is
 
or
 
becomes
 
unlawful
 
for
 
a
 
party
 
(other
 
than
 
a
 
Finance
 
Party)
 
to
 
a
 
Finance
Document to perform any of its obligations under the Finance Documents.
24.12.2
Any obligation of a
 
party (other than a
 
Finance Party) to a
 
Finance Document, under
a Finance Document, for any reason, becomes unlawful or is not or
 
ceases to be -
24.12.2.1
legal, valid or binding; or
24.12.2.2
enforceable or effective in accordance with
 
its terms, or is alleged by
 
a party to
it (other than a Finance Party) to be ineffective in accordance with its terms.
 
24.12.3
Any Transaction Security
 
created or
 
expressed to
 
be created
 
or evidenced
 
by a
 
Security
Document, or
 
any subordination
 
created under
 
a Finance
 
Document, for
 
any reason,
becomes unlawful or is not or ceases to be -
24.12.3.1
legal, valid or binding; or
24.12.3.2
enforceable or effective,
 
or is alleged
 
by a party
 
to it (other
 
than a Finance
 
Party)
to be ineffective,
 
fails or ceases
 
to establish
 
the ranking
 
and the priority
 
of claims
which it purports to create.
150
24.12.4
A party
 
(other than
 
a Finance
 
Party) to
 
a Finance
 
Document repudiates that
 
Finance
Document or evidences an intention to repudiate a Finance Document.
24.13
Material adverse change
Any event or circumstance occurs which the
 
Majority Lenders reasonably believe has or is
reasonably likely to have a Material Adverse Effect.
24.14
Audit qualification
The Auditors qualify the audited annual consolidated financial statements
 
of Holdco or the
audited annual financial statements of any other Obligor.
24.15
Expropriation
24.15.1
The authority
 
or ability
 
of Holdco,
 
any member
 
of the
 
Covenant Group
 
or
 
Security
Provider to
 
conduct its
 
business is
 
wholly or
 
substantially curtailed
 
by any
 
seizure,
expropriation, nationalisation, intervention, restriction or other action by or on
 
behalf
of any governmental, regulatory or other authority or other person.
24.15.2
By the authority of any governmental, regulatory or other authority or other
 
person -
24.15.2.1
the management of
 
any member of
 
the Covenant Group
 
or any Security
 
Provider
is wholly or substantially replaced; or
24.15.2.2
all or a majority of the shares of a member of the Covenant Group or a Security
Provider or the whole
 
or any part of
 
its assets or revenues
 
is seized, expropriated
or compulsorily acquired.
24.16
Material Agreements
24.16.1
A member of
 
the Covenant Group
 
does not comply
 
with any provision
 
of a Material
Agreement to which it is a party.
24.16.2
Any Material Agreement
 
ceases to be
 
in full force and
 
effect by operation of
 
law or by
reason of the default of any member of the Covenant Group.
24.17
Acceleration
If
 
an
 
Event of
 
Default is
 
continuing, the
 
Facility Agent
 
may,
 
by notice
 
to
 
the
 
Term/RCF
Borrower and without prejudice to any other rights or remedies which a Finance Party may
have under any Finance Document or at law -
151
24.17.1
cancel all
 
or any
 
part of
 
the Total
 
Commitments (whereupon they
 
shall immediately
be cancelled);
24.17.2
declare that
 
all or
 
part of
 
the Loans,
 
together with
 
accrued interest,
 
all other
 
Senior
Term
 
Facility Outstandings under the
 
Senior Term
 
Facility and all other
 
Senior RCF
Outstandings under the Senior RCF -
24.17.2.1
are
 
immediately
 
due
 
and
 
payable
 
(whereupon
 
they
 
shall
 
become immediately
due and payable); and/or
24.17.2.2
are payable on
 
demand (whereupon they shall immediately
 
become payable on
demand by the Facility Agent);
 
24.17.3
claim
 
immediate
 
payment
 
of
 
all
 
or
 
part
 
of
 
any
 
Loans
 
and
 
other
 
Senior
 
Facility
Outstandings (whereupon they shall be immediately payable); and/or
24.17.4
exercise
 
or
 
direct
 
the
 
Debt
 
Guarantor
 
to
 
exercise
 
any
 
or
 
all
 
of
 
its
 
rights,
 
remedies,
powers or discretions under the Security Documents.
25
CHANGES TO THE LENDERS
25.1
Cessions and delegations by the Lenders
25.1.1
Subject to this clause
, a Lender (the
Existing Lender
) may cede and/or delegate
 
(a
Transfer
) any or all of its rights and/or obligations under this Agreement, any Senior
Facility Agreement to which it is
 
a party and/or under any other Finance
 
Document to
another bank
 
or financial
 
institution or
 
to a
 
trust, fund or
 
other entity
 
which is
 
regularly
engaged in or established for the purpose of making, purchasing
 
or investing in loans,
securities or other financial assets (a
New Lender
), provided that an Existing Lender
shall be required to Transfer a
pro rata
 
portion of its rights
 
and obligations under each
Senior Facility Agreement in relation to any Transfer.
25.1.2
Each
 
Obligor
 
consents
 
to
 
any
 
splitting
 
of
 
claims
 
which
 
may
 
arise
 
as
 
a
 
result
 
of
 
a
Transfer implemented under this Agreement.
25.2
Conditions of Transfer
25.2.1
The consent of the
 
Term/RCF Borrower is
 
not required for a Transfer
 
by an Existing
Lender if -
25.2.1.1
the New Lender is another Lender or an Affiliate of a Lender;
25.2.1.2
the New Lender is a person identified in Annexure H (Acceptable Lenders);
 
or
152
25.2.1.3
a Default is continuing.
25.2.2
Except as detailed above, the
 
express consent of the Term/RCF
 
Borrower is required
for
 
a
 
Transfer
 
to
 
a
 
prospective
 
New
 
Lender.
 
Where
 
the
 
consent
 
of
 
the
 
Term/RCF
Borrower to a Transfer is required that
 
consent must not be unreasonably withheld or
delayed.
25.2.3
The Term/RCF Borrower will
 
be deemed to have given its consent 10 Business Days
after the
 
Existing Lender has
 
requested it, unless
 
consent is expressly
 
refused by the
Term/RCF Borrower within that time.
25.2.4
A
 
Transfer
 
will
 
only
 
be
 
effective
 
if
 
the
 
procedure
 
set
 
out
 
in
 
clause
 
is
complied with.
25.2.5
Each
 
New
 
Lender,
 
by
 
executing
 
the
 
relevant
 
Transfer
 
Certificate
 
confirms,
 
for
 
the
avoidance of doubt, that
 
the Facility Agent has
 
authority to execute on
 
its behalf any
amendment or waiver that has
 
been approved by or
 
on behalf of the
 
requisite Lender
or
 
Lenders in
 
accordance with
 
this
 
Agreement on
 
or prior
 
to
 
the
 
date on
 
which the
Transfer becomes effective in accordance with this Agreement and that it is bound by
that
 
decision
 
to
 
the
 
same
 
extent
 
as
 
the
 
Existing
 
Lender
 
would
 
have
 
been
 
had
 
it
remained a Lender.
25.3
Limitation of responsibility of Existing Lenders
25.3.1
Unless expressly agreed
 
to the contrary,
 
an Existing Lender
 
makes no representation
or warranty and assumes no responsibility to a New Lender
 
for -
25.3.1.1
the
 
legality,
 
validity,
 
effectiveness,
 
adequacy
 
or
 
enforceability of
 
the
 
Finance
Documents or any other documents;
25.3.1.2
the financial condition of any Obligor;
25.3.1.3
the
 
performance
 
and
 
observance
 
by
 
any
 
Obligor
 
of
 
its
 
obligations
 
under
 
the
Finance Documents or any other documents; or
25.3.1.4
the accuracy
 
of any
 
statements (whether
 
written or
 
oral) made
 
in or
 
in connection
with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
25.3.2
Each New Lender confirms
 
to the Existing
 
Lender and the other
 
Finance Parties that
it -
 
153
25.3.2.1
has
 
made
 
(and
 
shall
 
continue to
 
make)
 
its
 
own
 
independent investigation
 
and
assessment of the financial condition and
 
affairs of each Obligor and
 
its related
entities in connection with its participation in this Agreement and has not relied
exclusively
 
on
 
any
 
information
 
provided
 
to
 
it
 
by
 
the
 
Existing
 
Lender
 
in
connection with any Finance Document; and
25.3.2.2
will continue
 
to make its
 
own independent appraisal
 
of the
 
creditworthiness of
each Obligor and its related entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in force.
25.3.3
Nothing in any Finance Document obliges an Existing Lender to -
25.3.3.1
accept
 
a
 
re-Transfer
 
from
 
a
 
New
 
Lender
 
of
 
any
 
of
 
the
 
rights
 
and
 
obligations
Transferred under this clause
; or
 
25.3.3.2
support any losses
 
directly or indirectly
 
incurred by the
 
New Lender by
 
reason
of
 
the
 
non-performance
 
by
 
any
 
Obligor
 
of
 
its
 
obligations
 
under
 
the
 
Finance
Documents or otherwise.
25.4
Procedure for transfer
25.4.1
Subject
 
to
 
the
 
conditions
 
set
 
out
 
in
 
clause
 
a
 
Transfer
 
is
 
effected
 
in
accordance with
 
clause
 
when the
 
Facility Agent
 
executes an
 
otherwise
duly completed
 
Transfer Certificate delivered
 
to it by
 
the Existing Lender
 
and the New
Lender. The Facility Agent
 
shall, subject to
 
clause
, as soon
 
as reasonably
practicable after receipt by it
 
of a duly completed Transfer Certificate
 
appearing on its
face to comply with the terms of this Agreement and
 
delivered in accordance with the
terms of this Agreement, execute that Transfer Certificate.
25.4.2
The Facility Agent shall only be obliged to execute a Transfer Certificate delivered
 
to
it by the Existing Lender and the New Lender once it is satisfied it has complied with
all necessary
 
know your
 
customer or
 
other similar
 
checks under
 
all applicable
 
laws
and regulations that apply to it (if any) in relation to the transfer to such New Lender.
 
25.4.3
On the Transfer Date -
25.4.3.1
the
 
Transfer
 
shall
 
take
 
effect
 
under
 
the
 
Finance
 
Documents so
 
that
 
the
 
rights
and/or
 
obligations
 
which
 
are
 
the
 
subject
 
of
 
the
 
Transfer
 
shall
 
be
 
ceded
 
and
delegated
 
by
 
the
 
Existing Lender
 
to
 
the
 
New
 
Lender
 
(being
 
the
Transferred
Rights and Obligations
);
154
25.4.3.2
each of the
 
Obligors shall perform
 
their obligations and
 
exercise their rights
 
in
relation to
 
the Transferred Rights
 
and Obligations
 
in favour
 
of or
 
against the
 
New
Lender, as the case may be;
 
25.4.3.3
the
 
Facility Agent,
 
the
 
New Lender
 
and
 
other Lenders
 
shall acquire
 
the
 
same
rights and assume the same obligations between themselves as they would have
acquired and assumed had the
 
New Lender been an Original
 
Senior Lender with
the rights and/or obligations
 
comprising the Transferred Rights
 
and Obligations;
25.4.3.4
the
 
Existing
 
Lender
 
shall
 
be
 
released
 
from
 
further
 
obligations
 
to
 
each
 
other
Lender under the
 
Finance Documents to
 
the extent of
 
the Transferred Rights and
Obligations; and
25.4.3.5
the New Lender shall become a Party as a
Lender
.
25.5
Costs resulting from a change of Lender
If -
25.5.1
a Lender Transfers any of its rights or obligations under the Finance Documents; and
25.5.2
as a result of circumstances existing at the date the Transfer occurs, an Obligor
 
would
be
 
obliged
 
to
 
make
 
a
 
Tax
 
Payment
 
(as
 
defined
 
in
 
clause
 
(Tax
 
Gross-up
 
and
Indemnities)) or pay any Increased Cost (as defined in clause
 
(Changes in Costs)),
then, unless the Transfer is made by a Lender in order to mitigate any circumstances giving
rise to the Tax
 
Payment, Increased Cost or a right to
 
be prepaid and/or cancelled by reason
of
 
illegality,
 
the
 
Obligor
 
need
 
only
 
pay
 
that
 
Tax
 
Payment or
 
Increased
 
Cost
 
to
 
the
 
same
extent that it would have been obliged to if the Transfer had not occurred.
25.6
Copy of Transfer Certificate to the Term/RCF
 
Borrower
 
The Facility Agent
 
shall send
 
to the Term/RCF Borrower
 
a copy of
 
each Transfer Certificate
executed by
 
it in accordance
 
with clause
 
as soon
 
as reasonably
 
practicable after
it has executed any such Transfer Certificate.
25.7
Accession of WCF Lenders
25.7.1
No
 
person
 
providing a
 
Working
 
Capital Facility
 
to
 
any
 
Obligor
 
shall be
 
entitled
 
to
share
 
in
 
any Transaction
 
Security
 
or
 
to
 
benefit from
 
any
 
guarantee
 
or
 
indemnity in
respect
 
of
 
any
 
amounts
 
which
 
are
 
or
 
may
 
become
 
owing
 
to
 
it
 
under
 
that
 
Working
155
Capital Facility, and no such amount will
 
be treated as WCF Outstandings,
 
unless that
person is or becomes party (as WCF Lender) to -
25.7.1.1
this Agreement;
25.7.1.2
the Intercreditor Agreement; and
25.7.1.3
the Subordination Agreement (to the extent one is entered into).
25.7.2
A person shall not become party to any Finance Document as a WCF Lender (and no
amounts which
 
are or may
 
become owing to
 
it will
 
be treated as
 
WCF Outstandings
for purposes of a Finance Document), unless -
25.7.2.1
the Facility Agent
 
has consented to
 
that person becoming
 
a WCF Lender
 
(except
that this requirement will not apply to a person
 
which is a Lender or an Affiliate
of a Lender); and
25.7.2.2
that person has
 
executed and
 
delivered to
 
the Facility Agent
 
an Accession Letter.
25.7.3
Subject to the requirements
 
of this clause
, with effect from
 
the date of acceptance
by the
 
Facility Agent
 
of an
 
Accession Letter
 
duly executed
 
and delivered
 
to the
 
Facility
Agent by
 
a person
 
who proposes
 
to accede
 
to the
 
Finance Documents
 
as a
 
WCF Lender
(or, if later, the date specified
 
in that Accession
 
Letter), that person
 
shall become party
to this Agreement, the
 
Intercreditor Agreement, the Subordination Agreement (to the
extent one
 
is entered
 
into) and
 
the other
 
Finance Documents
 
as
 
a WCF
 
Lender and
shall assume the same obligations and
 
become entitled to the same
 
rights, as if it had
been an original party to those Finance Documents as a WCF Lender.
26
CHANGES TO THE OBLIGORS
26.1
Transfers by the Obligors
No Obligor may cede any of its rights nor delegate any of its
 
obligations under the Finance
Documents.
26.2
Additional WCF Borrower
26.2.1
Subject
 
to
 
compliance
 
with
 
the
 
provisions
 
of
 
clause
 
(Know
 
your
 
customer
checks), the Term/RCF
 
Borrower may request that
 
(i) any wholly-owned member
 
of
the
 
Covenant
 
Group
 
becomes
 
an
 
Additional WCF
 
Borrower.
 
That
 
member
 
of
 
the
Covenant Group shall become a WCF Borrower if -
26.2.1.1
all the Lenders approve the addition of that member;
156
26.2.1.2
the
 
Term/RCF
 
Borrower
 
delivers
 
to
 
the
 
Facility
 
Agent
 
a
 
duly
 
completed
 
and
executed Accession Letter;
26.2.1.3
the Term/RCF
 
Borrower confirms that no Default is
 
continuing or would occur
as a result of that
 
member of the Covenant Group
 
becoming an Additional WCF
Borrower; and
26.2.1.4
the Facility Agent has received all
 
of the documents and other
 
evidence listed in
Part II of
 
(Conditions precedent) in relation to the Additional WCF
Borrower, each in form and substance satisfactory to the Facility Agent.
26.2.2
The Facility
 
Agent shall
 
notify the
 
Term/RCF
 
Borrower and
 
the Lenders
 
as soon
 
as
reasonably practicable upon being
 
satisfied that it has received
 
(in form and substance
satisfactory to it) all the documents and other evidence
 
listed in Part II of
(Conditions precedent).
26.3
Additional Guarantors
26.3.1
If the Term/RCF Borrower -
26.3.1.1
requests that
 
a member
 
of the
 
Covenant Group
 
becomes an
 
Additional Guarantor
and if the Lenders consent thereto; or
26.3.1.2
is
 
required
 
under
 
this
 
Agreement to
 
ensure
 
that
 
any
 
member
 
of
 
the
 
Covenant
Group
 
becomes
 
an
 
Additional
 
Guarantor
 
(including
 
without
 
limitation,
 
if
 
a
member
 
of
 
the
 
Covenant
 
Group
 
becomes
 
a
 
WCF
 
Borrower
 
or
 
a
 
Material
Subsidiary after the Signature Date),
it must give not less than 10 Business Days' prior notice to the Facility Agent.
26.3.2
The Term RCF Borrower shall ensure that any member of the Covenant Group which
becomes
 
a
 
Material
 
Subsidiary
 
after
 
the
 
Signature
 
Date
 
becomes
 
an
 
Additional
Guarantor by
 
no later
 
than the
 
date 10
 
Business Days
 
after the
 
date on
 
which that
 
entity
becomes a Material Subsidiary.
 
26.3.3
The Term/RCF
 
Borrower must ensure
 
that any such
 
member of the
 
Covenant Group
(including Adumo and its
 
subsidiaries listed above, once
 
they become members of
 
the
Covenant Group) supplies
 
to the Facility
 
Agent all the
 
documents and evidence
 
set out
in Part II of
 
(Conditions Precedent), in form
 
and substance satisfactory to
it.
157
26.3.4
The
 
relevant
 
member
 
of
 
the
 
Covenant
 
Group
 
(subject
 
to
 
the
 
Lenders'
 
prior
 
written
consent
 
in
 
circumstances
 
where
 
the
 
Term/RCF
 
Borrower
 
has
 
requested
 
that
 
such
member of the Covenant Group becomes
 
a Guarantor to ensure that compliance with
clause
 
-
26.3.4.1
will become an Additional Guarantor ;
 
26.3.4.2
will accede
 
and become bound
 
as an
 
Indemnifier under (and
 
as defined in)
 
the
Counter-indemnity Agreement;
26.3.4.3
if incorporated in South Africa, will accede and become bound
 
as an Additional
Cedent under (and as defined in) the Security Cession & Pledge and will, to the
extent relevant,
 
grant any
 
other Security
 
referred to
 
in clause
 
(South African
Obligors and Material Subsidiaries) of Annexure G (Transaction Security);
26.3.4.4
if incorporated
 
in a
 
jurisdiction other
 
than South
 
Africa, must
 
grant such
 
Security
as
 
may
 
be
 
required
 
in
 
terms
 
of
 
clause
 
(Non-South
 
African
 
Obligors
 
and
Material Subsidiaries) of
 
Annexure G (Transaction
 
Security) under the
 
laws of
its jurisdiction of incorporation or formation,
26.3.5
on the date of the
 
Accession Letter executed by
 
it and provided that the
 
Facility Agent
is satisfied that such entity become an Additional Guarantor.
26.4
Repetition of Representations
Delivery of an Accession Letter constitutes confirmation
 
by the relevant Subsidiary that the
Repeating Representations are true
 
and correct in relation to
 
it as at the date
 
of delivery as if
made by reference to the facts and circumstances then existing.
26.5
Resignation of a Guarantor
26.5.1
The
 
Term/RCF
 
Borrower
 
may
 
request
 
that
 
a
 
Guarantor
 
(other
 
than
 
Holdco
 
or
 
a
Borrower) ceases to be
 
a Guarantor and an
 
Indemnifier under the Counter-indemnity
Agreement, and
 
be released
 
from any
 
Security
 
Document to
 
which it
 
is
 
a party,
 
by
delivering to the Facility Agent a Resignation Letter.
26.5.2
The
 
Facility
 
Agent
 
shall
 
accept
 
a
 
Resignation
 
Letter
 
and
 
notify
 
the
 
Term/RCF
Borrower and the Lenders of its acceptance if -
26.5.2.1
no Default is continuing or would result from the acceptance of the Resignation
Letter (and the Term/RCF Borrower has confirmed this is the case); and
158
26.5.2.2
all the Lenders have consented to the Term/RCF Borrower's request.
27
FACILITY AGENT
27.1
Under the Intercreditor Agreement –
27.1.1
each Lender has
 
appointed the Facility
 
Agent to act
 
as its facility
 
agent under and
 
in
connection with the Finance Documents;
27.1.2
each WCF
 
Lender has
 
appointed the
 
Facility Agent
 
to act
 
as its
 
facility agent
 
under
and
 
in
 
connection
 
with
 
the
 
Finance
 
Documents,
 
other
 
than
 
the
 
day-to-day
administration of the WCF Documents,
 
27.1.3
WesBank
 
has
 
appointed
 
the
 
Facility
 
Agent
 
to
 
act
 
as
 
its
 
facility
 
agent
 
under
 
and
 
in
connection with the
 
Finance, other than
 
the day-to-day administration
 
of the WesBank
Agreements;
27.1.4
including,
 
in
 
respect
 
of
 
the
 
Senior
 
Term
 
Facilities
 
and
 
the
 
Senior
 
RCF,
 
the
disbursement
 
of
 
Loans,
 
the
 
receipt
 
of
 
amounts
 
payable
 
to
 
the
 
Lenders
 
under
 
the
Finance Documents, any amendments of,
 
or waivers or consents under, the applicable
Finance Documents,
 
the receipt
 
of documents
 
and information
 
required to
 
be delivered
to the
 
Lenders under
 
the Finance
 
Documents, the
 
receipt of
 
notices from
 
the Term/RCF
Borrower to the
 
Finance Parties (or
 
any of them)
 
under the Finance
 
Documents, and
the
 
giving
 
of
 
notices
 
to
 
the
 
Term/RCF
 
Borrower
 
by
 
the
 
Finance
 
Parties
 
(or
 
any
 
of
them) under the Finance Documents (together, the
Agency Matters
).
27.2
A reference
 
to the
 
Facility Agent
 
in any
 
Finance Document,
 
is a
 
reference to
 
the Facility
Agent acting in its capacity as such.
27.3
The Obligors –
27.3.1
may assume that
 
the Facility Agent
 
is duly authorised
 
to represent the
 
other Finance
Parties
 
in
 
all
 
Agency
 
Matters
 
and
 
that
 
all
 
actions
 
taken
 
by
 
the
 
Facility
 
Agent
 
in
connection with an Agency Matter are duly authorised; and
27.3.2
are not entitled
 
nor obliged
 
directly to
 
deal with,
 
or act
 
on the
 
instructions of,
 
a Finance
Party other than the Facility Agent,
 
unless expressly otherwise provided in a
 
Finance
Document.
27.4
A reference in
 
a Finance Document
 
to any
 
action undertaken or
 
required to be
 
undertaken
by
 
the
 
Facility
 
Agent
 
in
 
relation
 
to
 
an
 
Agency
 
Matter
 
(including
 
the
 
exercise
 
of
 
any
159
discretion under
 
the Finance
 
Documents) is a
 
reference to
 
the Facility
 
Agent acting as
 
the
duly authorised agent of the Finance Parties.
27.5
An Obligor shall have no claim against
 
the Facility Agent for the recovery of any
 
losses or
damages which it may suffer as a result of anything
 
which the Facility Agent does, or omits
to do, in
 
performing its
 
functions as the
 
Facility Agent
 
under the Finance
 
Documents (unless
such losses or damages arise
 
by reason of gross negligence
 
or wilful default of the Facility
Agent alone).
28
SHARING AMONG THE FINANCE PARTIES
28.1
Payments to Finance Parties
If a Finance Party (a
Recovering Finance Party
) receives or recovers any amount from an
Obligor
 
other
 
than
 
in
 
accordance
 
with
 
clause
 
(Payment
 
Mechanics)
 
(a
Recovered
Amount
) and applies that amount to a payment due under the Finance Documents
 
then -
28.1.1
the
 
Recovering
 
Finance
 
Party
 
shall,
 
within
 
3
 
Business
 
Days,
 
notify
 
details
 
of
 
the
receipt or recovery, to the Facility Agent;
28.1.2
the Facility Agent
 
shall determine whether the
 
receipt or recovery
 
is in excess
 
of the
amount the
 
Recovering Finance
 
Party would
 
have been
 
paid had
 
the receipt
 
or recovery
been received or made
 
by the Facility Agent
 
and distributed in accordance
 
with clause
 
(Payment Mechanics), without
 
taking account of any
 
Tax which would be imposed
on the Facility Agent in relation to the receipt, recovery or distribution;
 
and
28.1.3
the Recovering Finance Party shall,
 
within 3 Business Days
 
of demand by the Facility
Agent,
 
pay
 
to
 
the
 
Facility
 
Agent
 
an
 
amount
 
(the
Sharing
 
Payment
)
 
equal
 
to
 
such
receipt
 
or
 
recovery
 
less
 
any
 
amount
 
which
 
the
 
Facility
 
Agent
 
determines
 
may
 
be
retained by the Recovering Finance Party as its share of any payment to
 
be made.
28.2
Redistribution of payments
The
 
Facility Agent
 
shall treat
 
the
 
Sharing Payment
 
as
 
if
 
it
 
had been
 
paid by
 
the
 
relevant
Obligor
 
and distribute
 
it
 
between the
 
Finance Parties
 
(other than
 
the
 
Recovering Finance
Party)
 
(the
Sharing
 
Finance
 
Parties
)
 
in
 
accordance
 
with
 
the
 
Intercreditor
 
Agreement
towards the obligations of that Obligor to the Sharing Finance Parties.
28.3
Recovering Finance Party's rights
28.3.1
On a distribution by
 
the Facility Agent under
 
clause
 
of a payment received
by a Recovering Finance Party from an
 
Obligor, as between the relevant
 
Obligor and
160
the
 
Recovering
 
Finance
 
Party,
 
an
 
amount
 
of
 
the
 
Recovered
 
Amount
 
equal
 
to
 
the
Sharing Payment will be treated as not having been paid by that Obligor.
28.3.2
If and to
 
the extent that
 
the Recovering Finance Party
 
is not able
 
to rely on
 
its rights
under clause
 
(that is, an amount equal to the Sharing Payment is
 
treated
as
 
having
 
been
 
paid
 
by
 
the
 
relevant
 
Obligor),
 
the
 
Obligors
 
shall
 
be
 
liable
 
to
 
the
Recovering
 
Finance
 
Party
 
for
 
a
 
debt
 
equal
 
to
 
the
 
Sharing
 
Payment
 
which
 
is
immediately due and payable.
28.4
Reversal of redistribution
If any
 
part of
 
the Sharing
 
Payment received
 
or
 
recovered by
 
a Recovering
 
Finance Party
becomes repayable and is repaid by that Recovering Finance Party, then -
28.4.1
each Sharing
 
Finance Party
 
shall, upon
 
request of
 
the Facility
 
Agent, pay
 
to the
 
Facility
Agent
 
for
 
the
 
account
 
of
 
that
 
Recovering
 
Finance
 
Party
 
an
 
amount
 
equal
 
to
 
the
appropriate part
 
of
 
its share
 
of
 
the
 
Sharing Payment
 
(together with
 
an amount
 
as is
necessary to reimburse
 
that Recovering Finance
 
Party for its
 
proportion of any
 
interest
on the Sharing Payment which that Recovering Finance
 
Party is required to pay) (the
Redistributed Amount); and
28.4.2
as between the
 
relevant Obligor and each
 
relevant Sharing Finance Party,
 
an amount
equal to the relevant Redistributed Amount will be treated as not having been paid by
that Obligor.
28.5
Exceptions
28.5.1
This clause
 
shall not apply to
 
the extent that
 
the Recovering Finance Party
 
would
not, after
 
making any
 
payment pursuant
 
to this
 
clause, have
 
a valid
 
and enforceable
claim against the Obligors.
28.5.2
A Recovering Finance Party is not
 
obliged to share with any other
 
Finance Party any
amount which the
 
Recovering Finance Party
 
has received or
 
recovered as a
 
result of
taking legal or arbitration proceedings, if -
28.5.2.1
it notified that other Finance Party of the legal or arbitration proceedings;
 
and
28.5.2.2
that
 
other
 
Finance
 
Party
 
had
 
an
 
opportunity
 
to
 
participate
 
in
 
those
 
legal
 
or
arbitration
 
proceedings
 
but
 
did
 
not
 
do
 
so
 
as
 
soon
 
as
 
reasonably
 
practicable
having received notice
 
and did not
 
take separate legal
 
or arbitration proceedings.
161
29
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will -
29.1
interfere
 
with
 
the
 
right
 
of
 
any
 
Finance
 
Party
 
to
 
arrange
 
its
 
affairs
 
(tax
 
or
 
otherwise)
 
in
whatever manner it thinks fit;
29.2
oblige any
 
Finance Party to
 
investigate or claim
 
any credit, relief,
 
remission or repayment
available to it or the extent, order and manner of any claim; or
29.3
oblige any Finance Party
 
to disclose any information
 
relating to its affairs (tax
 
or otherwise)
or any computations in respect of Tax.
30
FINANCE PARTY RIGHTS
Clauses
 
(The Facility Agent) to clause
 
(Conduct of business by the Finance Parties) are for
the benefit of
 
the Finance Parties
 
only. The Obligors do
 
not have any
 
rights or benefits
 
under those
clauses.
31
PAYMENT
 
MECHANICS
31.1
Payments to the Facility Agent
31.1.1
On each date on which an Obligor or a Lender is required to make a payment under a
Finance
 
Document
 
(other
 
than
 
a
 
WCF
 
Agreement
 
or
 
a
 
WesBank
 
Agreement),
 
that
Obligor
 
or
 
Lender
 
shall
 
make
 
the
 
same
 
available
 
to
 
the
 
Facility
 
Agent
 
(unless
 
a
contrary indication appears
 
in a Finance Document)
 
in Rand for value by
 
no later than
12h00 (Johannesburg time) on the due
 
date and in such funds
 
specified by the Facility
Agent.
31.1.2
All such
 
payments shall be
 
made to
 
such account in
 
South Africa with
 
such bank
 
as
the Facility Agent may specify by notice to the Term/RCF
 
Borrower. Until otherwise
notified
 
by
 
the
 
Facility
 
Agent
 
from
 
time
 
to
 
time,
 
its
 
bank
 
account
 
details
 
for
 
these
purposes are as follows -
Account Name -
 
RMB Domestic Money Market Account
Bank -
 
First National Bank
Account Number -XXX
Branch Name -
 
XXX
Branch Code -
 
XXX
Reference -
 
XXX
31.2
Distributions to an Obligor
162
The Facility
 
Agent may
 
(with the
 
consent of
 
the Obligor
 
or in
 
accordance with
 
clause
(Set-off)) apply
 
any amount
 
received by
 
it for
 
that Obligor
 
in or
 
towards payment (on
 
the
date and
 
in the
 
currency and funds
 
of receipt)
 
of any
 
amount due from
 
that Obligor
 
under
the Finance Documents.
31.3
Clawback
31.3.1
Where
 
a
 
sum
 
is
 
to
 
be
 
paid
 
to
 
the
 
Facility
 
Agent
 
under
 
the
 
Finance
 
Documents
 
for
another Party, the
 
Facility Agent is not obliged to pay that sum to that
 
other Party (or
to enter
 
into or
 
perform any
 
related exchange
 
contract) until
 
it has
 
been able
 
to establish
to its satisfaction that it has actually received that sum.
31.3.2
If the Facility Agent pays an amount to another Party and it proves to be the case that
the Facility Agent had not actually received that amount, then the Party to whom that
amount (or
 
the
 
proceeds of
 
any related
 
exchange contract)
 
was paid
 
by the
 
Facility
Agent shall on demand refund the same
 
to the Facility Agent together with
 
interest on
that
 
amount
 
from
 
the
 
date
 
of
 
payment to
 
the
 
date
 
of
 
receipt
 
by
 
the
 
Facility
 
Agent,
calculated by the Facility Agent to reflect its cost of funds.
31.4
No set-off by Obligors
All payments
 
to be
 
made by
 
an Obligor
 
under the
 
Finance Documents
 
shall be
 
calculated
and be made without (and free and clear of any deduction for) set-off or counterclaim.
31.5
Partial payments
31.5.1
Subject to clause
 
(Application of partial
 
prepayments) in respect
 
of the application
of
 
partial
 
payments
 
as
 
between
 
the
 
Senior
 
Term
 
Facility
 
Lenders
 
and
 
Senior
 
RCF
Lenders, if
 
the Facility
 
Agent receives
 
a payment
 
that is
 
insufficient to
 
discharge all
the amounts
 
then due
 
and payable
 
by an
 
Obligor under
 
the Finance
 
Documents, the
Facility Agent shall apply that payment towards the obligations of that Obligor under
the Finance Documents in the following order -
31.5.1.1
first
, in or towards
 
payment
pro rata
 
of any unpaid fees,
 
costs and expenses of
the Facility Agent under the Finance Documents;
31.5.1.2
second
, in
 
or towards
 
payment
pro rata
 
of any
 
accrued interest,
 
fees, Break
 
Costs
or commission due but unpaid under the Finance Documents ;
31.5.1.3
third
, in or towards payment
pro rata
 
of any principal due but unpaid under the
Finance Documents;
163
31.5.1.4
fourth
, in or
 
towards payment
pro rata
 
of any other
 
sum due but unpaid
 
under
the Finance Documents.
31.5.2
This
 
clause
 
will
 
override
 
any
 
appropriation
 
made
 
by
 
an
 
Obligor
 
other
 
than
 
in
accordance with clause
 
(Application of partial prepayments).
31.6
Business Days
31.6.1
If a
 
payment under
 
the Finance
 
Documents is
 
due on
 
a day
 
which is
 
not a
 
Business
Day, the
 
due date for that payment will
 
instead be the next Business Day
 
in the same
calendar month (if there is one) or the preceding Business Day
 
(if there is not).
31.6.2
During
 
any extension
 
of
 
the
 
due
 
date
 
for
 
payment of
 
any
 
principal
 
or
 
Unpaid
 
Sum
under a Senior Facility Agreement interest is payable on the principal or Unpaid Sum
at
 
the
 
rate
 
payable
 
on
 
the
 
original
 
due
 
date,
 
subject
 
to
 
any
 
provisions
 
in
 
a
 
Senior
Facility Agreement relating to the accrual and payment of default interest.
31.7
Currency of account
31.7.1
Subject to
 
the provisions
 
of this
 
clause below,
 
Rand is
 
the
 
currency of
 
account and
payment for any sum due from an Obligor under any Finance Document.
31.7.2
Each payment in respect of costs, expenses or
 
Taxes shall be
 
made in the currency in
which the costs, expenses or Taxes are incurred.
31.7.3
Any amount
 
expressed to
 
be payable
 
in a
 
currency other
 
than Rand
 
shall be
 
paid in
that other currency.
31.8
Disruption to Payment Systems etc.
If either
 
the Facility
 
Agent determines
 
(in its
 
discretion) that
 
a Disruption
 
Event has
 
occurred
or
 
the
 
Facility Agent
 
is
 
notified
 
by
 
the
 
Term/RCF
 
Borrower that
 
a
 
Disruption Event
 
has
occurred -
31.8.1
the Facility
 
Agent may,
 
and shall
 
if requested
 
to do
 
so by
 
the Term/RCF
 
Borrower,
consult
 
with
 
the
 
Term/RCF
 
Borrower
 
with
 
a
 
view
 
to
 
agreeing
 
with
 
the
 
Term/RCF
Borrower
 
such
 
changes
 
to
 
the
 
operation
 
or
 
administration
 
of
 
the
 
Facilities
 
as
 
the
Facility Agent may deem necessary in the circumstances;
31.8.2
the
 
Facility
 
Agent
 
shall
 
not
 
be
 
obliged
 
to
 
consult
 
with
 
the
 
Term/RCF
 
Borrower
 
in
relation to
 
any changes
 
mentioned in
 
clause
 
if, in
 
its opinion,
 
it is
 
not
164
practicable to do so in the circumstances
 
and, in any event, shall have
 
no obligation to
agree to such changes;
31.8.3
the
 
Facility Agent
 
shall
 
consult
 
with
 
the
 
Finance
 
Parties in
 
relation to
 
any
 
changes
mentioned in clause
 
but shall not be obliged to do so if, in its opinion, it
is not practicable to do so in the circumstances;
31.8.4
any such
 
changes agreed
 
upon by
 
the Facility
 
Agent and
 
the Term/RCF Borrower
 
shall
(whether
 
or
 
not
 
it
 
is
 
finally
 
determined
 
that
 
a
 
Disruption
 
Event
 
has
 
occurred)
 
be
binding upon the
 
Parties as an
 
amendment to (or,
 
as the case
 
may be,
 
waiver of) the
terms
 
of
 
the
 
Finance
 
Documents
 
notwithstanding
 
the
 
provisions
 
of
 
clause
(Amendments and Waivers);
31.8.5
the
 
Facility
 
Agent
 
shall
 
not
 
be
 
liable
 
for
 
any
 
damages,
 
costs
 
or
 
losses
 
whatsoever
arising
 
as
 
a
 
result
 
of
 
its
 
taking,
 
or
 
failing
 
to
 
take,
 
any
 
actions
 
pursuant
 
to
 
or
 
in
connection with this clause
; and
31.8.6
the Facility
 
Agent shall
 
notify the
 
Finance Parties
 
of all
 
changes agreed
 
pursuant to
clause
32
SET-OFF
A
 
Finance
 
Party
 
may
 
set
 
off
 
any
 
matured
 
obligation
 
due
 
from
 
an
 
Obligor
 
under
 
the
 
Finance
Documents (to
 
the extent
 
beneficially owned
 
by that
 
Finance Party)
 
against any
 
matured obligation
owed by that Finance Party
 
to that Obligor, regardless of the
 
place of payment, booking
 
branch or
currency of either obligation. If the obligations are in different currencies, the Finance Party may
convert either
 
obligation at
 
a market
 
rate of
 
exchange in
 
its usual
 
course of
 
business for
 
the purpose
of the set-off.
33
CALCULATIONS AND CERTIFICATES
33.1
Accounts
In any
 
litigation or
 
arbitration proceedings
 
arising out
 
of or
 
in connection
 
with a
 
Finance
Document, the entries made
 
in the accounts maintained
 
by a Finance Party
 
are prima facie
evidence of the matters to which they relate.
33.2
Certificates and Determinations
Any certification or determination
 
by a Finance Party
 
of a rate or
 
amount under any
 
Finance
Document is, in the absence of manifest error, prima facie evidence of the matters to which
it relates.
165
33.3
Day count convention
Any interest, commission or
 
fee accruing under
 
a Finance Document will
 
accrue from day
to day and is calculated on the basis of the actual number of days elapsed and a year of 365
days (irrespective of whether the year in question is a leap year).
34
NOTICES
34.1
Communications in writing
Any communication to
 
be made under
 
or in connection
 
with the
 
Finance Documents shall
be made in writing and, unless otherwise stated, may be made by email or
 
letter.
34.2
Addresses
The address and email
 
address (and the
 
department or officer, if any, for whose
 
attention the
communication is
 
to be made)
 
of each Party
 
for any communication
 
or document
 
to be made
or delivered under or in connection with the Finance Documents is -
34.2.1
in the case of Holdco -
Address -
 
President Place, Jan Smuts Ave &, Bolton Rd,
Rosebank, Johannesburg, 2196
Email address -
 
XXX with a copy to XXX
For the attention of -
 
Chief Financial Officer - Daniel Smith
34.2.2
the case of the Term/RCF Borrower -
Address -
 
President Place, Jan Smuts Ave &, Bolton Rd,
Rosebank, Johannesburg, 2196
Email address -
 
XXX with a copy to XXX
For the attention of -
 
Chief Financial Officer - Daniel Smith
34.2.3
in
 
the
 
case
 
of
 
each
 
other
 
Obligor,
 
the
 
address
 
and
 
other
 
details
 
specified
 
for
 
the
Term/RCF Borrower in clause
34.2.4
in the case of the Facility Agent (in its capacity as such) -
Address -
 
1 Merchant Place - 16th Floor
cnr Fredman Drive and Rivonia Road
Sandton, 2196
 
 
166
Email address -
 
XXX
 
XXX
 
XXX
 
XXX
 
XXX
 
XXX
 
XXX
 
XXX
For the attention of -
 
Head of Transaction Management - Investment Banking
Division
34.2.5
in the case of the Debt Guarantor -
Address -
 
TMF Building
2 Conference Lane, Bridgewater One, Block 1,
Bridgeways Precinct, Century City, 7446
Email address -
XXX
For the attention of -
 
The Managing Director
34.2.6
in the
 
case of
 
each Original
 
Senior Lender
 
(in its
 
capacity as
 
such), the
 
address and
other details specified opposite its name in Part II of
 
(The Parties);
34.2.7
in
 
the
 
case
 
of
 
any
 
other
 
Lender
 
or
 
Obligor,
 
those
 
details
 
notified
 
in
 
writing
 
to
 
the
Facility Agent on or before the date on which it becomes a Party,
or any substitute
 
address or email
 
address or department
 
or officer as
 
the Party may
 
notify
to the
 
Facility Agent
 
(or the
 
Facility Agent
 
may notify
 
to the
 
other Parties,
 
if a
 
change is
made by the Facility Agent) by not less than five Business Days' notice.
34.3
Domicilia
34.3.1
Each
 
Party
 
chooses
 
its
 
physical
 
address
 
provided
 
under
 
or
 
pursuant
 
to
 
clause
 
as its
domicilium citandi et
 
executandi
 
at which documents
 
in legal proceedings
in connection with a Finance Document may be served.
34.3.2
Any Party may by written notice to the other Parties change its
domicilium
 
from time
to time
 
to another
 
address, not
 
being a
 
post office
 
box or
 
a
poste restante
, in
 
South
167
Africa, provided
 
that any
 
such change
 
shall only
 
be effective
 
on the
 
fourteenth day
after deemed receipt of the notice by the other Parties under clause
34.4
Delivery
34.4.1
Any communication or
 
document made or
 
delivered by one
 
person to
 
another under
or in connection with the Finance Documents will -
34.4.1.1
if by way
 
of email, be deemed
 
to have been
 
received on the first
 
Business Day
following the date of transmission;
 
34.4.1.2
if delivered
 
by hand,
 
be deemed
 
to have
 
been received at
 
the time
 
of delivery;
and
34.4.1.3
if by
 
way of
 
courier service,
 
be deemed
 
to have
 
been received
 
on the
 
seventh
Business Day following the date of such sending,
and provided,
 
if a
 
particular department
 
or officer
 
is specified
 
as part
 
of its
 
address
details under
 
clause
, if
 
such communication or
 
document is
 
addressed to
that department or officer.
34.4.2
Any communication or
 
document to be
 
made or delivered
 
to the Facility
 
Agent will be
effective
 
only
 
when
 
actually
 
received
 
by
 
the
 
Facility
 
Agent
 
and
 
then
 
only
 
if
 
it
 
is
expressly
 
marked
 
for
 
the
 
attention
 
of
 
the
 
department
 
or
 
officer
 
identified
 
with
 
the
Facility Agent's signature
 
below (or any
 
substitute department
 
or officer as
 
the Facility
Agent shall specify for this purpose).
34.5
Obligors
34.5.1
Subject to clause
, all communications under
 
the Finance Documents to or
 
from
the Term/RCF Borrower must be sent through the Facility Agent.
 
34.5.2
Subject to clause
, all communications under
 
the Finance Documents to or
 
from
an Obligor (other than the Term/RCF
 
Borrower) must be sent through the Term/RCF
Borrower.
34.5.3
Each Obligor (other than
 
the Term/RCF Borrower) by its execution
 
of this Agreement
or an Accession Letter irrevocably
 
appoints the Term/RCF
 
Borrower (acting through
one or
 
more authorised
 
signatories) to act
 
on its
 
behalf as
 
its agent
 
in relation
 
to the
Finance Documents and irrevocably authorises -
168
34.5.3.1
the Term/RCF Borrower on its behalf
 
to supply all information
 
concerning itself
contemplated by
 
this Agreement
 
to the
 
Finance Parties
 
and to
 
give all
 
notices,
information and
 
instructions (including,
 
in
 
the
 
case
 
of a
 
Borrower,
 
Utilisation
Requests) to execute on its behalf
 
all documents under or in connection
 
with the
Finance Documents (including any Accession Letter), to make such agreements
and to
 
effect
 
the
 
relevant amendments,
 
supplements and
 
variations capable
 
of
being
 
given,
 
made
 
or
 
effected
 
by
 
any
 
Obligor
 
notwithstanding
 
that
 
they
 
may
affect
 
the Obligor,
 
without further
 
reference to
 
or the
 
consent of
 
that Obligor;
and
34.5.3.2
each Finance
 
Party to
 
give any
 
notice, demand or
 
other communication to
 
that
Obligor pursuant to the Finance Documents to the Term/RCF Borrower,
and in each case the Obligor shall be bound as though the Obligor itself had given
 
the
notices, information and instructions
 
or executed or made
 
the agreements or effected
the amendments,
 
supplements or variations,
 
or received the
 
relevant notice, demand
 
or
other communication.
34.5.4
Every
 
act,
 
omission,
 
agreement,
 
undertaking,
 
settlement,
 
waiver,
 
amendment,
supplement, variation,
 
notice or
 
other communication
 
given or
 
made by
 
the Term/RCF
Borrower or given
 
to the Term/RCF Borrower under
 
any Finance Document
 
on behalf
of
 
another
 
Obligor
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document
 
(whether
 
or
 
not
known to any other Obligor and whether occurring before or after
 
such other Obligor
became an Obligor under any Finance
 
Document) shall be binding for all purposes
 
on
that Obligor as if that Obligor had expressly made, given or concurred
 
with it.
34.5.5
The respective liabilities
 
of each
 
of the
 
Obligors under the
 
Finance Documents shall
not be in any way affected by -
34.5.5.1
any
 
actual
 
or
 
purported
 
irregularity
 
in
 
any
 
act
 
done,
 
or
 
failure
 
to
 
act,
 
by
 
the
Term/RCF Borrower;
34.5.5.2
the Term/RCF Borrower acting (or purporting to act) in any respect outside any
authority conferred upon it by any Obligor; or
34.5.5.3
any
 
actual or
 
purported failure
 
by,
 
or
 
inability of,
 
the Term/RCF
 
Borrower to
inform
 
any
 
Obligor
 
of
 
receipt
 
by
 
it
 
of
 
any
 
notification
 
under
 
the
 
Finance
Documents.
169
34.5.6
In
 
the
 
event
 
of
 
any
 
conflict
 
between
 
any
 
notices
 
or
 
other
 
communications
 
of
 
the
Term/RCF
 
Borrower and
 
any other
 
Obligor,
 
those of
 
the Term/RCF
 
Borrower shall
prevail.
34.5.7
Any communication given
 
to the
 
Term/RCF
 
Borrower in
 
connection with
 
a Finance
Document will be deemed to have been given also to the other Obligors.
34.5.8
A
 
Finance
 
Party
 
may
 
assume
 
that
 
any
 
communication
 
made
 
by
 
the
 
Term/RCF
Borrower
 
on
 
behalf
 
of
 
an
 
Obligor
 
is
 
made
 
with
 
the
 
knowledge
 
and
 
consent
 
of
 
that
Obligor.
34.5.9
The Parties record that -
34.5.9.1
a WCF
 
Lender shall
 
be entitled to
 
communicate and
 
transact directly
 
with any
member of the
 
Covenant Group in respect of
 
the day to day
 
administration and
operation of the applicable Working Capital Facility; and
 
34.5.9.2
WesBank
 
shall
 
be
 
entitled
 
to
 
communicate
 
and
 
transact
 
directly
 
with
 
any
member of the
 
Covenant Group in respect of
 
the day to day
 
administration and
operation of the applicable WesBank Facility.
34.6
Notification of address and email address
Upon receipt
 
of notification
 
of an
 
address or
 
email address
 
or change
 
of address
 
or email
address pursuant
 
to
 
clause
, or
 
changing its
 
own address
 
or
 
email address,
 
the
Facility Agent shall notify the other Parties as soon as reasonably
 
practicable.
34.7
Electronic communication
34.7.1
Any communication to be made between the Facility Agent
 
and a Lender under or in
connection
 
with
 
the
 
Finance
 
Documents
 
may
 
be
 
made
 
by
 
electronic
 
mail
 
or
 
other
electronic means, if the Facility Agent and the relevant Lender -
34.7.1.1
agree that, unless
 
and until notified
 
to the contrary, this is
 
to be an accepted
 
form
of communication;
34.7.1.2
notify
 
each
 
other
 
in
 
writing
 
of
 
their
 
electronic
 
mail
 
address
 
and/or
 
any
 
other
information
 
required
 
to
 
enable
 
the
 
sending
 
and
 
receipt
 
of
 
information
 
by
 
that
means; and
34.7.1.3
notify each
 
other of
 
any change
 
to their
 
address or
 
any other
 
such information
supplied by them.
170
34.7.2
Any electronic communication made between the
 
Facility Agent and a Lender will be
effective only
 
when actually
 
received in
 
readable form
 
and in
 
the case
 
of any
 
electronic
communication made by a Lender to the Facility Agent only if it is addressed in
 
such
a manner as the Facility Agent shall specify for this purpose.
34.8
English language
Any
 
notice
 
or
 
other
 
document given
 
under
 
or
 
in
 
connection
 
with any
 
Finance Document
must be in English.
35
AMENDMENTS AND WAIVERS
35.1
A term of the Finance
 
Documents may be amended or waived
 
only with the consent of the
Facility
 
Agent
 
(acting
 
on
 
the
 
instructions
 
of
 
the
 
applicable
 
Finance
 
Parties
 
under
 
the
Intercreditor Agreement) and the Obligors.
35.2
The Facility Agent may effect and execute,
 
on behalf of any Finance Party, any amendment
or waiver permitted by this clause.
35.3
No amendment
 
or waiver
 
contemplated by
 
this clause
 
shall be
 
of any
 
force or
 
effect unless
in writing and signed by or on behalf of the relevant Parties.
35.4
An amendment of any provision of clause
 
(The Facility Agent) may be effected without
the consent of
 
or notice to
 
any Obligor,
 
provided that such
 
amendment does not
 
place any
additional obligation or liability on any Obligor.
35.5
Each Obligor agrees to any such amendment or waiver permitted by this clause
 
which is
agreed to
 
by the
 
Term/RCF Borrower. This includes
 
any amendment
 
or waiver
 
which would,
but for this clause
, require the consent of all of the Obligors.
36
CONFIDENTIALITY
36.1
Confidential Information
Each
 
Finance
 
Party
 
agrees
 
to
 
keep
 
all
 
Confidential
 
Information
 
confidential
 
and
 
not
 
to
disclose it to
 
anyone, save to the
 
extent permitted by clause
, and to
 
ensure that
all Confidential
 
Information is
 
protected with
 
security measures
 
and a
 
degree of
 
care that
would apply to its own confidential information.
36.2
Disclosure of Confidential Information
Any Finance Party may disclose -
171
36.2.1
to
 
any of
 
its
 
Affiliates
 
and Related
 
Funds and
 
any of
 
its
 
or their
 
officers,
 
directors,
employees,
 
professional
 
advisers,
 
auditors,
 
partners
 
and
 
Representatives
 
such
Confidential Information
 
as that
 
Finance Party
 
shall consider
 
appropriate if any
 
person
to whom the
 
Confidential Information is to
 
be given pursuant
 
to this clause
 
is
informed in writing of its confidential
 
nature and that some or
 
all of such Confidential
Information
 
may
 
be
 
price-sensitive
 
information
 
except
 
that
 
there
 
shall
 
be
 
no
 
such
requirement
 
to
 
so
 
inform
 
if
 
the
 
recipient
 
is
 
subject
 
to
 
professional
 
obligations
 
to
maintain the confidentiality of the information or is otherwise bound by requirements
of confidentiality in relation to the Confidential Information;
36.2.2
to any other person -
36.2.2.1
to (or through) whom it Transfers
 
(or may potentially Transfer) all
 
or any of its
rights and
 
obligations under
 
this Agreement
 
and to
 
any of
 
that person's
 
Affiliates,
Related Funds, Representatives and professional advisers;
 
36.2.2.2
with (or
 
through) whom
 
it enters
 
into (or
 
may
 
potentially enter
 
into), whether
directly
 
or
 
indirectly,
 
any
 
sub-participation
 
or
 
other
 
credit
 
participation
 
in
relation to,
 
or any other
 
transaction under
 
which payments
 
are to be
 
made or
 
may
be made
 
by reference
 
to, one
 
or more
 
Finance Documents
 
and/or one
 
or more
Obligors and
 
to any
 
of that
 
person's Affiliates,
 
Related Funds,
 
Representatives
and professional advisers;
 
36.2.2.3
appointed
 
by
 
any
 
Finance
 
Party
 
or
 
by
 
a
 
person
 
to
 
whom
 
clauses
 
or
 
applies
 
to
 
receive
 
communications,
 
notices,
 
information
 
or
documents delivered pursuant to the Finance Documents on its behalf;
 
36.2.2.4
who invests in
 
or otherwise finances
 
(or may potentially
 
invest in or
 
otherwise
finance), directly or indirectly,
 
any transaction referred to in clauses
 
or
36.2.2.5
to
 
whom information
 
is
 
required
 
or
 
requested to
 
be disclosed
 
by any
 
court
 
of
competent
 
jurisdiction
 
or
 
any
 
governmental,
 
banking,
 
taxation
 
or
 
other
regulatory
 
authority,
 
rating
 
agency
 
or
 
similar
 
body,
 
the
 
rules
 
of
 
any
 
relevant
stock exchange or pursuant to any applicable law or regulation;
36.2.2.6
to whom information is required to be disclosed in
 
connection with, and for the
purposes
 
of,
 
any
 
litigation,
 
arbitration,
 
administrative
 
or
 
other
 
investigations,
proceedings or disputes;
172
36.2.2.7
who is a Party; or
36.2.2.8
with the express prior consent of the Term/RCF Borrower,
36.2.3
in
 
each
 
case,
 
such
 
Confidential
 
Information
 
as
 
that
 
Finance
 
Party
 
shall
 
consider
appropriate if -
36.2.3.1.1
in relation
 
to clauses
,
 
and
, the
 
person to
whom
 
the
 
Confidential
 
Information
 
is
 
to
 
be
 
given
 
has
 
entered
 
into
 
a
Confidentiality Undertaking except that
 
there shall be
 
no requirement for
a Confidentiality Undertaking if the recipient is a professional
 
adviser and
is subject to professional obligations to maintain the confidentiality of the
Confidential Information;
36.2.3.1.2
in relation to
 
clause
, the person
 
to whom the
 
Confidential
Information is to
 
be given has
 
entered into a
 
Confidentiality Undertaking
or is otherwise bound by requirements
 
of confidentiality in relation to the
Confidential Information they receive
 
and is informed
 
that some or
 
all of
such Confidential Information may be price-sensitive information;
 
and
36.2.3.1.3
in relation
 
to clauses
,
 
and
, the
 
person to
whom
 
the
 
Confidential
 
Information
 
is
 
to
 
be
 
given
 
is
 
informed
 
of
 
its
confidential nature and
 
that some
 
or all
 
of such
 
Confidential Information
may
 
be
 
price-sensitive
 
information
 
except
 
that
 
there
 
shall
 
be
 
no
requirement to so
 
inform if, in
 
the opinion of
 
that Finance Party,
 
it is
 
not
practicable so to do in the circumstances; and
36.2.4
to
 
any
 
rating
 
agency
 
(including
 
its
 
professional
 
advisers)
 
such
 
Confidential
Information as may
 
be required to be
 
disclosed to enable such
 
rating agency to
 
carry
out its normal
 
rating activities
 
in relation
 
to any Finance
 
Party, the Finance Documents
and/or the Obligors.
36.3
Entire agreement
This
 
clause
 
constitutes
 
the
 
entire
 
agreement
 
between
 
the
 
Parties
 
in
 
relation
 
to
 
the
obligations
 
of
 
the
 
Finance
 
Parties
 
under
 
the
 
Finance
 
Documents
 
regarding
 
Confidential
Information and supersedes any previous agreement, whether express or implied, regarding
Confidential Information.
36.4
Inside information
173
Each of the
 
Finance Parties acknowledges that some
 
or all of
 
the Confidential Information
is
 
or
 
may
 
be
 
price-sensitive
 
information
 
and
 
that
 
the
 
use
 
of
 
such
 
information
 
may
 
be
regulated or prohibited by applicable
 
legislation including securities law relating
 
to insider
dealing
 
and
 
market
 
abuse
 
and
 
each
 
of
 
the
 
Finance
 
Parties
 
undertakes
 
not
 
to
 
use
 
any
Confidential Information for any unlawful purpose.
36.5
Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted
 
by law and regulation) to inform
the Term/RCF Borrower -
36.5.1
of the circumstances
 
of any disclosure
 
of Confidential Information made
 
pursuant to
clause
 
except
 
where
 
such
 
disclosure
 
is
 
made
 
to
 
any
 
of
 
the
 
persons
referred to
 
in that
 
clause during
 
the ordinary
 
course of
 
its supervisory
 
or regulatory
function; and
36.5.2
upon becoming
 
aware that
 
Confidential Information
 
has been
 
disclosed in
 
breach of
this clause
36.6
Continuing obligations
The obligations in this clause
 
are continuing and, in particular, shall
 
survive and remain
binding on each Finance Party for a period of twelve months from
 
the earlier of -
36.6.1
The date
 
on which
 
all amounts
 
payable by
 
the Obligors
 
under or
 
in connection
 
with
the
 
Finance
 
Documents
 
have
 
been
 
paid
 
in
 
full
 
and
 
all
 
Commitments
 
have
 
been
cancelled or otherwise cease to be available; and
36.6.2
the date on
 
which all amounts
 
on which such
 
Finance Party otherwise ceases
 
to be a
Finance Party.
37
GENERAL PROVISIONS
37.1
Sole agreement
The Finance Documents
 
constitute the sole
 
record of the
 
agreement between the Parties
 
in
regard to the subject matter thereof.
37.2
No implied terms
No Party shall be bound
 
by any express or implied term,
 
representation, warranty, promise
or the like, not recorded in a Finance Document.
174
37.3
Rights and remedies
37.3.1
No failure to
 
exercise, nor any
 
delay in exercising,
 
on the part
 
of any
 
Finance Party,
any right or remedy under the Finance Documents shall operate as a waiver, nor shall
any
 
single
 
or
 
partial
 
exercise
 
of
 
any
 
right
 
or
 
remedy
 
prevent
 
any
 
further
 
or
 
other
exercise or the exercise of any other right or remedy. The rights and remedies of each
Finance Party under the Finance Documents -
37.3.1.1
are cumulative and not exclusive of its rights under the general law;
37.3.1.2
may be exercised as often as the Finance Party requires; and
37.3.1.3
may be waived only in writing and specifically.
37.3.2
Delay in the exercise or non-exercise of any right is not a waiver of
 
that right.
37.4
Extensions and waivers
No latitude,
 
extension of
 
time or
 
other indulgence
 
which may
 
be given
 
or allowed by
 
any
Party to any
 
other Party in
 
respect of the
 
performance of any
 
obligation or enforcement
 
of
any right
 
under a
 
Finance Document, and
 
no single or
 
partial exercise of
 
any right
 
by any
Party, shall be construed
 
to be an implied consent by such Party or operate as a waiver or a
novation
 
of,
 
or
 
otherwise
 
affect
 
any
 
of
 
that
 
Party’s
 
rights
 
under
 
or
 
in
 
connection
 
with
 
a
Finance Document or estop
 
such Party from enforcing,
 
at any time and without
 
notice, strict
and punctual compliance with each and every provision or term of a Finance Document.
37.5
Partial invalidity
If,
 
at
 
any
 
time,
 
any
 
provision
 
of
 
a
 
Finance
 
Document
 
is
 
or
 
becomes
 
illegal,
 
invalid,
unenforceable or
 
inoperable in
 
any
 
respect
 
under
 
any law
 
of
 
any
 
jurisdiction, neither
 
the
legality,
 
validity,
 
enforceability or
 
operation of
 
the
 
remaining provisions
 
nor
 
the
 
legality,
validity, enforceability or operation
 
of such provision
 
under the law
 
of any other
 
jurisdiction
will
 
in
 
any
 
way
 
be
 
affected
 
or
 
impaired.
 
The
 
term
inoperable
 
in
 
this
 
clause
 
shall
include, without limitation, inoperable by way of suspension or cancellation.
37.6
Renunciation of benefits
Each Obligor renounces, to
 
the extent permitted
 
under applicable law,
 
the benefits of
 
each
of the
 
legal exceptions
 
of excussion,
 
division, revision
 
of accounts,
 
no value
 
received,
errore
calculi
,
non causa debiti
,
non numeratae pecuniae
 
and cession of actions, and declares that
it understands the meaning of each such
 
legal exception and the effect of such renunciation.
175
37.7
Further assurances
Each Obligor must
 
perform, or procure
 
the performance, of
 
all further things,
 
and execute
and
 
deliver
 
(or
 
procure
 
the
 
execution
 
and
 
delivery)
 
of
 
all
 
further
 
documents,
 
as
 
may
 
be
required
 
by
 
any
 
applicable
 
law
 
or
 
regulation
 
or
 
as
 
may
 
be
 
necessary
 
or
 
desirable
 
to
implement
 
or
 
give
 
effect
 
to
 
this
 
Agreement
 
and
 
the
 
other
 
Finance
 
Documents
 
and
 
the
transactions contemplated therein.
37.8
Independent advice
Each Obligor
 
acknowledges that
 
it has
 
been free
 
to secure
 
independent legal
 
and other
 
advice
as to the nature and effect
 
of all of the provisions of
 
the Finance Documents and that it has
either taken
 
such independent
 
legal and
 
other advice
 
or dispensed
 
with the
 
necessity of
 
doing
so. Further, each Obligor acknowledges
 
that all of the
 
provisions of each
 
Finance Document
and
 
the
 
restrictions
 
therein
 
contained
 
are
 
part
 
of
 
the
 
overall
 
intention
 
of
 
the
 
Parties
 
in
connection with the Finance Documents.
37.9
Counterparts
Each Finance
 
Document may be
 
executed in
 
any number
 
of counterparts,
 
and this has
 
the
same effect
 
as if
 
the
 
signatures on
 
the
 
counterparts were
 
on a
 
single copy
 
of the
 
Finance
Document.
38
GOVERNING LAW
This
 
Agreement and
 
any non-contractual
 
obligations arising
 
out of
 
or in
 
connection with
 
it are
governed by South African law.
39
JURISDICTION
39.1
The Parties
 
hereby irrevocably
 
and unconditionally
 
consent to
 
the non-exclusive
 
jurisdiction
of the
 
High Court
 
of South
 
Africa (Gauteng
 
Local Division,
 
Johannesburg) (or
 
any successor
to that
 
division) in
 
regard to
 
all matters
 
arising from
 
the Finance
 
Documents (including
 
a
dispute relating to the existence, validity or termination
 
of a Finance Document or any non-
contractual obligation arising
 
out of or
 
in connection with
 
a Finance Document)
 
(a
dispute
).
39.2
The Parties
 
agree that
 
the courts
 
of South
 
Africa are
 
the most
 
appropriate and
 
convenient
courts to settle disputes. The Parties
 
agree not to argue to
 
the contrary and waive objection
to this court on the
 
grounds of inconvenient forum
 
or otherwise in relation
 
to proceedings in
connection with any Finance Document.
176
39.3
This clause
 
is for
 
the benefit
 
of the
 
Finance Parties only.
 
As a
 
result, no
 
Finance Party
shall
 
be
 
prevented
 
from
 
taking
 
proceedings
 
relating
 
to
 
a
 
dispute
 
in
 
any
 
other
 
court
 
with
jurisdiction. To the extent allowed by
 
law, a Finance Party may take
 
concurrent proceedings
in any number of jurisdictions.
40
WAIVER
 
OF IMMUNITY
Each Obligor irrevocably and unconditionally -
40.1
agrees not
 
to
 
claim any
 
immunity from
 
suit, execution,
 
attachment or
 
other legal
 
process
brought by a Finance Party against
 
it in relation to a
 
Finance Document, and to ensure that
no such claim is made on its behalf;
40.2
consents generally to the giving of any relief or the issue of any process in
 
connection with
those proceedings; and
40.3
waives
 
any
 
right
 
it
 
may
 
have
 
to
 
claim
 
for
 
itself
 
or
 
any
 
of
 
its
 
assets
 
immunity from
 
suit,
execution, attachment or other legal process.
 
 
 
 
 
 
1
THE FACILITY AGENT
 
Signed at Sandton
 
on 27 February
 
2025
 
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
 
/s/ Kedy Mazibuko
who warrants that he is duly
authorised hereto
Kedy Mazibuko
Name of Signatory
 
Authorised
Designation
 
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Eric Mphohoni
 
who warrants that he is duly
authorised hereto
Eric Mphohoni
Name of Signatory
 
Authorised Signatory
Designation
 
 
 
 
 
 
1
THE ORIGINAL SENIOR LENDER
Signed at Sandton
 
on 27 February
 
2025
 
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
 
/s/ Kedy Mazibuko
who warrants that he is duly
authorised hereto
Kedy Mazibuko
Name of Signatory
 
Authorised
Designation
 
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Eric Mphohoni
 
who warrants that he is duly
authorised hereto
Eric Mphohoni
Name of Signatory
 
Authorised Signatory
Designation
 
 
 
 
 
 
2
Signed at Sandton
 
on 27 February
 
2025
 
for
Investec Bank Limited (acting through its
Investment Banking division: Corporate
Solutions)
 
/s/ Kerry Caldwell
who warrants that he is duly
authorised hereto
Kerry Caldwell
Name of Signatory
 
Authorised Signatory
Designation
 
for
Investec Bank Limited (acting through its
Investment Banking division: Corporate
Solutions)
/s/ Sean Rule
who warrants that he is duly
authorised hereto
Sean Rule
Name of Signatory
 
Authorised Signatory
Designation
 
 
 
 
 
 
1
THE ORIGINAL WCF LENDER
Signed at JHB
 
on 27 Feb 25
 
2025
 
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
 
/s/ Wally Laurens
who warrants that he is duly
authorised hereto
Wally Laurens
Name of Signatory
 
Authorised
Designation
 
for
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ Kedy Mazibuko
who warrants that he is duly
authorised hereto
Kedy Mazibuko
Name of Signatory
 
Authorised
Designation
 
 
 
 
 
 
1
WESBANK
Signed at JOHANNESBURG
 
on 27/02/25
 
2025
 
for
FirstRand Bank Limited (acting through its
WesBank division)
 
/s/ Sharon Bekker
who warrants that he is duly
authorised hereto
Sharon Bekker
Name of Signatory
 
Sales Manager
Designation
 
for
FirstRand Bank Limited (acting through its
WesBank division)
who warrants that he is duly
authorised hereto
Name of Signatory
 
Designation
 
 
 
1
THE DEBT GUARANTOR
 
Signed at Woodmead
 
on 27 February
 
2025
 
for
Bowwood and Main No 408 (RF) Proprietary
Limited
/s/ Phillemon Ledwaba
who warrants that he is duly
authorised hereto
Phillemon Ledwaba
Name of Signatory
 
Duly Authorised
Designation
 
 
 
 
1
HOLDCO
Signed at Parkhurst
 
on 27 February
 
2025
 
for
Lesaka Technologies, Inc.
/s/ Daniel Smith
who warrants that he is duly
authorised hereto
Daniel Smith
Name of Signatory
 
Group Chief Financial Officer
Designation
 
 
 
 
1
THE ORIGINAL OBLIGORS
 
TERM / RCF BORROWER
 
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Lesaka Technologies Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
Group COO
Designation
 
 
 
 
1
THE ORIGINAL OBLIGORS
 
THE WCF BORROWERS
 
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Cash Connect Management Solutions
Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
2
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
EasyPay Financial Services Proprietary
Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
3
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Lesaka Technologies Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
4
Signed at Parkhurst
 
on 27 February
 
2025
 
for
Adumo (RF) Proprietary Limited
/s/ Daniel Smith
who warrants that he is duly
authorised hereto
Daniel Smith
Name of Signatory
 
Group Chief Financial Officer
Designation
 
 
 
 
 
5
Signed at JHB
 
on 27/02/2025
 
2025
 
for
Cash Connect Rentals Proprietary Limited
/s/ Steven John Heilbron
who warrants that he is duly
authorised hereto
Steven John Heilbron
Name of Signatory
 
Director
Designation
 
 
 
 
 
6
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Main Street 1723 Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
7
THE ORIGINAL OBLIGORS
 
THE ORIGINAL GUARANTORS
 
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Lesaka Technologies Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
8
Signed at Parkhurst
 
on 27 February
 
2025
 
for
Lesaka Technologies, Inc.
/s/ Daniel Smith
who warrants that he is duly
authorised hereto
Daniel Smith
Name of Signatory
 
Group Chief Financial Officer
Designation
 
 
 
 
 
9
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Prism Holdings Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
10
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Net1 Finance Holdings Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
11
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
EasyPay Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
12
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Prism Payment Technologies Proprietary
Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
13
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Cash Connect Management Solutions
Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
14
Signed at JHB
 
on 27 February
 
2025
 
for
Deposit Manager Proprietary Limited
/s/ Steven John Heilbron
who warrants that he is duly
authorised hereto
Steven John Heilbron
Name of Signatory
 
Director
Designation
 
 
 
 
 
15
Signed at JHB
 
on 27 February
 
2025
 
for
Cash Connect Rentals Proprietary Limited
/s/ Steven John Heilbron
who warrants that he is duly
authorised hereto
Steven John Heilbron
Name of Signatory
 
Director
Designation
 
 
 
 
 
16
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Main Street 1723 Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
17
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
EasyPay Financial Services Proprietary
Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
18
Signed at Durban
 
on 27 February
 
2025
 
for
GAAP Point-of-Sale Proprietary Limited
/s/ Irshaad Essa
who warrants that he is duly
authorised hereto
Irshaad Essa
Name of Signatory
 
Financial Director
Designation
 
 
 
 
 
19
Signed at Cape Town
 
on 27 February
 
2025
 
for
Adumo Payments Proprietary Limited
/s/ Grant Michael Manicom
who warrants that he is duly
authorised hereto
Grant Michael Manicom
Name of Signatory
 
Director
Designation
 
 
 
 
 
20
Signed at Cape Town
 
on 27 February
 
2025
 
for
Adumo Payouts Proprietary Limited
/s/ Stephen John Mallaby
who warrants that he is duly
authorised hereto
Stephen John Mallaby
Name of Signatory
 
CEO
Designation
 
 
 
 
 
21
Signed at Cape Town
 
on 27/02/2025
 
2025
 
for
Adumo Technologies Proprietary Limited
/s/ Grant Michael Manicom
who warrants that he is duly
authorised hereto
Grant Michael Manicom
Name of Signatory
 
Director
Designation
 
 
 
 
 
22
Signed at Cape Town
 
on 27 February
 
2025
 
for
Adumo Management Company Proprietary
Limited
/s/ Grant Michael Manicom
who warrants that he is duly
authorised hereto
Grant Michael Manicom
Name of Signatory
 
Director
Designation
 
 
 
 
 
23
Signed at Parkhurst
 
on 27 February
 
2025
 
for
Adumo (RF) Proprietary Limited
/s/ Daniel Smith
who warrants that he is duly
authorised hereto
Daniel Smith
Name of Signatory
 
Group Chief Financial Officer
Designation
 
 
 
 
 
24
Signed at Jhb
 
on 27 February
 
2025
 
for
Ovobix (RF) Proprietary Limited
/s/ Steven John Heilbron
who warrants that he is duly
authorised hereto
Steven John Heilbron
Name of Signatory
 
Director
Designation
 
 
 
 
 
25
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Luxanio 227 Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
26
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
K2021477132 (South Africa) Proprietary
Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
27
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
Easypay Cash Proprietary Limited
/s/ Naeem Ebrahim Kola
who warrants that he is duly
authorised hereto
Naeem Ebrahim Kola
Name of Signatory
 
GCOO
Designation
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
28
ANNEXURE
 
A
 
- THE PARTIES
Part I
The Original Obligors
Term/RCF Borrower
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
Name of WCF Borrowers
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Cash Connect Management Solutions
Proprietary Limited
South Africa
2006/010530/07
2
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
3
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
4
Adumo (RF) Proprietary Limited
South Africa
 
2017/540380/07
5
Cash Connect Rentals Proprietary Limited
South Africa
2009/007139/07
6
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
7
EasyPay Proprietary Limited
 
South Africa
1983/008597/07
Name of Original Guarantors
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
2
Lesaka Technologies, Inc.
State of Florida,
United States
P9700001098
3
Prism Holdings Proprietary Limited
South Africa
1998/018949/07
4
Net1 Finance Holdings Proprietary Limited
South Africa
1998/020801/07
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
29
5
EasyPay Proprietary Limited
South Africa
1983/008597/07
6
Prism Payment Technologies Proprietary
Limited
South Africa
1990/005062/07
7
Cash Connect Management Solutions
Proprietary Limited
 
South Africa
2006/010530/07
8
Deposit Manager Proprietary Limited
South Africa
2010/016889/07
9
Cash Connect Rentals Proprietary Limited
 
South Africa
2009/007139/07
10
Main Street 1723 Proprietary Limited
South Africa
 
2019/300711/07
11
EasyPay Financial Services Proprietary
Limited
South Africa
 
1998/020799/07
12
GAAP Point-of-Sale Proprietary Limited
South Africa
1999/003571/07
13
Adumo Payments Proprietary Limited
South Africa
2015/427833/07
14
Adumo Payouts Proprietary Limited
South Africa
 
2005/010672/07
15
Adumo Technologies Proprietary Limited
South Africa
2000/029811/07
16
Adumo Management Company Proprietary
Limited
South Africa
 
2021/147994/07
17
Adumo (RF) Proprietary Limited
South Africa
 
2017/540380/07
18
 
Ovobix (RF) Proprietary Limited
 
South Africa
 
2013/068120/07
19
 
Luxanio 227 Proprietary Limited
 
South Africa
 
2018/605739/07
20
K2021477132 (South Africa) Proprietary
Limited
South Africa
2021/477132/07
21
 
EasyPay Cash Proprietary Limited
South Africa
2001/028826/07
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
30
Part II
The Original Senior Lenders
under the Senior Term Facilities and Senior RCF
Original Senior
Lenders
Address for Purposes of clause
 
(Notices)
Senior Term
Facility A
Commitment
Senior Term
Facility B
Commitment
Senior RCF
Commitment
[Column 1]
[Column 2]
[Column 3]
[Column 4]
[Column 5]
1.
FirstRand Bank
Limited (acting
through its Rand
Merchant Bank
division)
1 Merchant Place, 16th Floor
Cnr Fredman Drive and Rivonia Road
Sandton, 2196
Email -
 
XXX;
 
XXX;
 
XXX;
 
XXX;
 
XXX;
XXX;
 
XXX;
 
XXX;
 
XXX;
 
XXX;
 
XXX
Att -
 
Head
 
of
 
Transaction
Management
 
-
 
Investment
Banking
R1,609,245,740.62
 
R746,493,641.20
The amount of
voluntary
prepayments of
Senior Term
Facility A Loans
which were made
by that Original
Senior Lender
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
31
2
Investec Bank
Limited (acting
through its
Investment
Banking
division:
Corporate
Solutions
100
 
Grayston
 
Drive,
 
Sandown,
 
Sandton,
Johannesburg, 2196
Email- XXX
Attention:
 
Head of Investment Banking
R546,493,641.20
R253,506,358.80
The amount of
voluntary
prepayments of
Senior Term
Facility A Loans
which were made
by that Original
Senior Lender
R2,155,739,381.82
R1,000,000,000
32
ANNEXURE
 
B
 
- CONDITIONS PRECEDENT
Part I
Conditions Precedent to Initial Utilisation
1.
OBLIGORS AND SECURITY PROVIDERS
1.1
A copy of the constitutional documents of each Obligor and Security
 
Provider.
1.2
A copy of
 
a resolution of
 
the board of
 
directors of each
 
Obligor and Security
 
Provider which
is a party to a Finance Document, to the extent applicable -
1.2.1
approving the terms of, and the transactions
 
contemplated by, the Finance Documents
to which it is a party
 
and resolving that it execute the Finance
 
Documents to which it
is a party;
1.2.2
authorising it, for all purposes required under sections 45 and/or 46 of the Companies
Act
 
(as
 
applicable),
 
to
 
provide
 
the
 
"
financial
 
assistance
"
 
and
 
to
 
make
 
any
"
distribution
"
 
that
 
may
 
arise
 
as
 
a
 
result
 
of
 
its
 
entry
 
into
 
the
 
Finance
 
Documents to
which it is a party;
1.2.3
authorising a specified person or persons to execute the Finance Documents to which
it is a party on its behalf; and
1.2.4
authorising
 
a
 
specified
 
person
 
or
 
persons,
 
on
 
its
 
behalf,
 
to
 
sign
 
and/or
 
despatch all
documents
 
and notices
 
to
 
be
 
signed and/or
 
despatched by
 
it
 
under or
 
in
 
connection
with the Finance Documents to which it is a party.
1.3
To
 
the extent
 
applicable, a
 
copy of
 
a special
 
resolution duly
 
passed by
 
the holders
 
of the
issued shares of each Obligor and Security Provider authorising
 
it, for all purposes required
under section 45 of the Companies Act, to provide the "
financial assistance
" that may arise
as a result of its entry into the Finance Documents to which it is a party.
1.4
To the extent required by the Companies Act, any other applicable law or the constitutional
documents of
 
an Obligor
 
and Security
 
Provider, a
 
copy of
 
a resolution duly
 
passed by
 
the
holders of
 
the issued
 
shares of
 
that Obligor
 
or Security
 
Provider ,
 
approving the
 
terms of,
and
 
the
 
transactions
 
contemplated
 
by,
 
the
 
Finance
 
Documents
 
to
 
which
 
that
 
Obligor
 
or
Security Provider is a party.
1.5
A specimen of the
 
signature of each person
 
authorised by the
 
resolution referred to
 
in clause
1.6
A certificate of an authorised signatory of each Obligor and each other
 
Security Provider -
1.6.1
confirming
 
that
 
borrowing,
 
guaranteeing
 
or
 
securing,
 
as
 
appropriate,
 
the
 
Total
Commitments would not cause any borrowing, guaranteeing,
 
securing or similar limit
binding on it to be exceeded; and
1.6.2
certifying that each copy document
 
relating to it specified in
 
this Part I of
is correct, complete and in full force and effect as at a date no earlier than the Closing
Date.
1.6.3
no
 
Default
 
has
 
occurred
 
or
 
is
 
continuing
 
or
 
will
 
result
 
from
 
the
 
execution
 
of
 
the
Finance Documents;
33
1.6.4
the representations and
 
warranties set out
 
in clause
 
(Representations) are true
 
and
correct in all respects;
1.6.5
no
 
event
 
or
 
series
 
of
 
events
 
or
 
circumstances
 
has
 
occurred
 
or
 
arisen
 
which,
 
in
 
that
entity’s opinion, is likely to have a Material Adverse Effect;
1.6.6
no investigation, litigation, arbitration or
 
administrative proceedings of or before any
court, arbitral body,
 
competent competition authority or other
 
regulatory authority or
government agency which, if
 
adversely determined, will
 
have or is
 
reasonably likely
to have a Material
 
Adverse Effect have, to
 
the best of its
 
knowledge and belief, been
started or threatened against it or any member of the Covenant Group;
 
and
1.6.7
no event or
 
circumstance has arisen,
 
and there has
 
been no change
 
in circumstances,
in relation to any Environmental Matters since 30 June 2024.
1.7
In relation to Holdco -
1.7.1
a certificate as to the active status of Holdco from the Florida Department of State, in
form and substance satisfactory to the Facility Agent and its counsel;
 
and
1.7.2
a solvency certificate signed
 
by the chief financial
 
officer or chief
 
accounting officer
of Holdco in form and substance satisfactory to the Facility Agent.
2.
Legal opinions
2.1
A legal
 
opinion of
 
Werksmans
 
Inc, legal
 
advisers to
 
the Finance
 
Parties, addressed
 
to the
Facility Agent for and on behalf of the Finance Parties, substantially in the
 
form distributed
to
 
the
 
Original
 
Senior
 
Lenders
 
prior to
 
signing
 
this Agreement
 
in
 
respect
 
of
 
the
 
legality,
validity and enforceability of the Finance Documents.
2.2
A legal opinion
 
of Webber Wentzel attorneys, legal advisers
 
to the Obligors
 
in South Africa,
addressed to the Facility Agent for and on behalf of the Finance Parties, substantially in the
form distributed to
 
the Original Senior
 
Lenders prior to
 
signing this Agreement, in
 
respect
of the capacity, powers and
 
authority of the Obligors
 
and other Security
 
Providers which are
party to
 
the Finance
 
Documents, to
 
enter into
 
and perform
 
their obligations
 
under the
 
Finance
Documents and the due execution of those documents.
2.3
A legal opinion of McDermott Will &
 
Emery, LLP,
 
legal advisers to the Finance Parties in
the US] and in the
 
State of Florida addressed to
 
the Facility Agent for and
 
on behalf of the
Finance Parties, substantially in the form distributed to the Original Senior Lenders prior to
signing this Agreement, in respect of the
 
capacity, powers and authority
 
of Holdco to enter
into and
 
perform its
 
obligations under
 
the Finance
 
Documents and
 
the due
 
execution of
 
those
documents under Florida law.
3.
Finance Documents
3.1
An original of each of the following Finance Documents duly entered into by each Party to
it -
3.1.1
this Agreement;
3.1.2
each Senior Term Facility Agreement;
3.1.3
the Senior RCF Agreement;
3.1.4
each WCF Agreement;
34
3.1.5
each WesBank Agreement;
3.1.6
the Lesaka Release Agreement;
3.1.7
the Cash Connect Management Release Agreement;
 
3.1.8
the Debt Guarantee;
3.1.9
the Counter-indemnity Agreement;
3.1.10
each Security Structure Document;
3.1.11
each Security Agreement;
3.1.12
the Fee Letters; and
3.1.13
the Further Rights Letter.
3.2
The
 
following
 
documents
 
of
 
title
 
and
 
related
 
documents
 
in
 
relation
 
to
 
shares
 
and
 
other
securities that are subject to Transaction Security -
3.2.1
the
 
original
 
share
 
certificates
 
(or
 
applicable
 
certificates
 
of
 
title
 
in
 
respect
 
of
 
other
securities);
3.2.2
an original securities
 
transfer form duly
 
executed by the
 
relevant Obligor (undated
 
and
left blank as to the transferee);
3.2.3
a
 
resolution
 
by
 
the
 
directors
 
of
 
each
 
company
 
the
 
shares
 
of
 
which
 
are
 
subject
 
to
Transaction
 
Security,
 
acknowledging
 
the
 
pledge
 
and
 
agreeing
 
to
 
give
 
effect
 
to
 
any
transfer of shares that may occur as a result;
 
3.2.4
any
 
waivers
 
of
 
pre-emptive
 
rights
 
which
 
may
 
be
 
required
 
in
 
respect
 
of
 
any
 
shares
which are subject to the Transaction Security; and
3.2.5
all other documents of title required to be provided under the Security
 
Documents.
3.3
A copy
 
of all
 
notices required
 
to be
 
sent, acknowledgements
 
required to
 
be delivered
 
and
other documents
 
required to be
 
executed under the
 
Security Documents, duly
 
executed by
the persons party thereto.
3.4
A
 
copy
 
of
 
the
 
securities
 
register
 
of
 
Holdco,
 
each
 
other
 
Obligor
 
and
 
each
 
member
 
of
 
the
Covenant Group whose shares are subject to the Transaction Security.
4.
Regulatory authorisations
All regulatory approvals required for the implementation of the transactions contemplated by the
Finance Documents
 
(including to
 
the extent
 
that any
 
such approval
 
is required
 
to establish
 
any
Security under the Security Documents).
5.
Credit Approval
The approval of the credit committee
 
of each Original Lender of the
 
grant of the Facilities to the
Borrowers under the Finance Documents.
35
6.
Know Your
 
Customer Requirements
Such documentation and
 
other evidence
 
as is reasonably
 
requested by the
 
Facility Agent
 
(for itself
or on behalf of any other Finance Party) to carry out and be satisfied that it has complied with all
necessary
 
know
 
your
 
customer
 
or
 
similar
 
identification
 
procedures
 
under
 
applicable
 
laws
 
and
regulations (including
 
the Financial
 
Intelligence Centre
 
Act, 2001)
 
pursuant to
 
the
 
transactions
contemplated in the Finance Documents.
7.
Other documents and evidence
7.1
Evidence that the fees, costs and expenses then due from the Term/RCF Borrower pursuant
to clause
 
(Fees), clause
 
(Stamp taxes) and
 
clause
 
(Costs and expenses)
 
have been
paid or will be paid by the first Utilisation Date.
7.2
A Compliance
 
Certificate dated on
 
or about the
 
Closing Date which
 
demonstrates that the
Borrower
 
will
 
comply
 
with
 
the
 
provisions
 
of
 
clause
 
(Undertaking
 
in
 
relation
 
to
Financial
 
Condition)
 
if
 
such
 
Financial
 
Covenants
 
were
 
to
 
be
 
calculated
 
as
 
at
 
the
 
first
Utilisation Date, taking into account the amount of such Utilisations.
7.3
Evidence to the satisfaction of
 
the Facility Agent that
 
Cash Connect Management has
 
paid
any and all
 
interest which would
 
be due and
 
payable by it,
 
on the
 
first Utilisation Date,
 
in
terms of the Cash Connect Management Facilities Agreement.
 
7.4
A copy of the Original Financial Statements.
7.5
Evidence that all required Insurances are in place.
7.6
A copy
 
of any
 
other authorisation
 
or other
 
document, opinion
 
or assurance
 
which the
 
Facility
Agent
 
considers
 
to
 
be
 
necessary
 
or
 
desirable
 
(if
 
it
 
has
 
notified
 
the
 
Term/RCF
 
Borrower
accordingly)
 
in
 
connection
 
with
 
the
 
entry
 
into
 
and
 
performance
 
of
 
the
 
transactions
contemplated by
 
any Finance
 
Document or
 
for the
 
validity and
 
enforceability of
 
any Finance
Document.
36
Part II
Conditions Precedent Required to be
Delivered by an Additional Obligor and/or in relation to further Transaction Security
1
An Accession Letter, duly executed by the Additional Obligor and the Term/RCF Borrower.
2
A copy of the constitutional documents of the Additional Obligor.
3
A copy of a resolution of the board of directors of the Additional Obligor
 
-
3.1
approving the terms of, and the transactions
 
contemplated by, the
 
Accession Letter and the
Finance Documents and resolving that it execute the Accession Letter;
3.2
in the case of an Additional Obligor, authorising it, for all purposes required under sections
45
 
and
 
46
 
of
 
the
 
Companies
 
Act,
 
to
 
provide
 
the
 
"
financial
 
assistance
"
 
and
 
to
 
make
 
any
"
distribution
" that may arise as
 
a result of its entry into
 
the Finance Documents to which it
is a party (or, in the case of any Additional Obligor incorporated in a jurisdiction other than
South Africa, any equivalent authorisations required under the laws of such
 
jurisdiction);
3.3
authorising a specified person or persons to execute the Accession Letter on
 
its behalf; and
3.4
authorising
 
a
 
specified
 
person
 
or
 
persons,
 
on
 
its
 
behalf, to
 
sign
 
and/or
 
despatch all
 
other
documents and notices to be signed and/or despatched by it under or in connection with the
Finance Documents.
4
A copy
 
of a
 
special resolution
 
duly passed
 
by the
 
holders of
 
the issued
 
shares of
 
an Additional
Obligor authorising it,
 
for all purposes
 
required under section
 
45 of the
 
Companies Act,
 
to provide
the
 
"
financial assistance
"
 
that may
 
arise as
 
a result
 
of its
 
entry into
 
the Finance
 
Documents to
which it
 
is a
 
party (or
 
in the
 
case of
 
any Additional
 
Obligor incorporated in
 
a jurisdiction
 
other
than South Africa, any equivalent authorisations required under the
 
laws of such jurisdiction).
5
To the
 
extent required with reference to the constitutional documents of an Additional Obligor, a
copy of
 
a resolution
 
duly passed
 
by the
 
holders of
 
the issued
 
shares of
 
that Additional
 
Obligor,
approving the
 
terms of,
 
and the
 
transactions contemplated by,
 
the Finance
 
Documents to
 
which
that Additional Obligor is a party.
6
A specimen
 
of the
 
signature of
 
each person
 
authorised by
 
the resolution
 
referred to
 
in clause
37
7
A certificate
 
of the
 
Additional Obligor
 
(signed by
 
a director)
 
confirming that
 
borrowing and/or
guaranteeing,
 
as
 
appropriate,
 
the
 
Total
 
Commitments
 
would
 
not
 
cause
 
any
 
borrowing,
guaranteeing or similar limit binding on it to be exceeded.
8
A
 
certificate
 
of
 
an
 
authorised
 
signatory
 
of
 
the
 
Additional
 
Obligor
 
certifying
 
that
 
each
 
copy
document listed in this Part
 
II of
 
is correct, complete and in full
 
force and effect as at
a date no earlier than the date of the Accession Letter.
9
If available, the latest audited financial statements of the Additional
 
Obligor.
10
Security Documents
 
duly executed
 
by the
 
Additional Obligor
 
in respect
 
of all
 
Transaction Security
it is required to provide in accordance with Annexure G (Transaction Security).
11
Security Documents duly executed by the relevant member of
 
the Covenant Group in its capacity
as
 
shareholder in
 
the
 
Additional Obligor
 
in
 
respect of
 
all
 
Transaction
 
Security it
 
is
 
required to
provide in accordance with Annexure G (Transaction Security).
12
All
 
documents
 
required
 
to
 
procure
 
registration
 
of
 
the
 
notarial
 
bonds
 
set
 
out
 
in
 
Annexure
 
G
(Transaction Security),
 
including a
 
power of
 
attorney in
 
favour of
 
the Finance
 
Parties' conveyancer
to pass and register each such Security Document at the applicable
 
statutory public register.
13
Evidence that each general notarial bond and deeds of hypothecations of trademarks, patents and
designs,
 
in
 
each
 
case,
 
referred
 
to
 
in
 
Annexure
 
G
 
(Transaction
 
Security),
 
if
 
so
 
required
 
by
 
the
Facility Agent, has been lodged for registration at the applicable
 
statutory public registry.
14
The following documents of title and
 
related documents in relation to shares
 
and other securities
that are subject to Transaction Security -
14.1
the original share
 
certificates (or applicable
 
certificates of title
 
in respect of
 
other securities);
14.2
an original securities transfer form
 
duly executed by the relevant Obligor
 
(undated and left
blank as to the transferee);
14.3
a resolution by the directors
 
of each company the shares
 
of which are subject to
 
Transaction
Security, acknowledging the pledge and agreeing
 
to give effect to any
 
transfer of shares that
may occur as a result; and
14.4
all other documents of title required to be provided under the Security
 
Documents.
38
15
A copy
 
of all
 
notices required
 
to be
 
sent, acknowledgements
 
required to
 
be delivered
 
and other
documents required to
 
be executed under the
 
Security Documents, duly executed
 
by the persons
party thereto.
16
A copy of the securities register of the Additional Obligor.
17
All
 
necessary
 
regulatory
 
approvals
 
to
 
the
 
satisfaction
 
of
 
the
 
Facility
 
Agent
 
required
 
for
 
the
accession of the Additional Obligor as an Obligor.
18
A legal opinion of the
 
legal advisers to the
 
Finance Parties and the
 
Facility Agent in
 
South Africa.
 
19
A legal opinion of the legal advisers to the Obligors in South Africa.
20
In relation to
 
any Additional
 
Obligor incorporated in
 
a jurisdiction other
 
than South Africa,
 
a legal
opinion from legal counsel in that jurisdiction acceptable to the Facility
 
Agent.
21
If the Additional Obligor is incorporated in a jurisdiction other than South Africa, a legal opinion
of the legal
 
advisers to the
 
Finance Parties in
 
the jurisdiction in
 
which the Additional
 
Obligor is
incorporated.
22
A
 
copy
 
of
 
any
 
other
 
authorisation
 
or
 
other
 
document,
 
opinion
 
or
 
assurance
 
which
 
the
 
Facility
Agent considers to be necessary
 
or desirable in connection with
 
the entry into and
 
performance of
the transactions contemplated
 
by the Accession Letter
 
or for the validity and
 
enforceability of any
Finance Document.
 
39
ANNEXURE
 
C
 
- FORM OF TRANSFER CERTIFICATE
To -
 
[
Facility Agent
], as Facility Agent
[●]
[●]
From -
[
The Existing Lender
] (the
Existing Lender
) and [
the New Lender
]
 
 
(the
New Lender
)
[●], 20
 
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
1
We
 
refer to the
 
Agreement. This is a
 
Transfer Certificate. Terms
 
defined in the
 
Agreement have
the same
 
meaning in
 
this Transfer
 
Certificate unless
 
given a
 
different meaning
 
in
 
this Transfer
Certificate.
2
We refer to clause
 
(Procedure for transfer).
3
The Existing
 
Lender and
 
the New
 
Lender agree
 
to the
 
Existing Lender
 
transferring to
 
the New
Lender
 
by
 
cession
 
and
 
delegation
 
all
 
or
 
part
 
of
 
the
 
Existing
 
Lender's
 
Commitment,
 
rights
 
and
obligations referred to in the Schedule in accordance with clause
 
(Procedure for transfer).
4
The proposed Transfer Date is [●].
5
The address of the New
 
Lender, email address and attention details
 
for notices of the New
 
Lender
for the purposes of clause
 
(Addresses) are set out in the Schedule.
6
On and with effect from the Transfer Date the New Lender -
6.1
becomes party to the Agreement as a [Senior Term Facility Lender] [Senior RCF Lender];
6.2
becomes party to the Intercreditor Agreement;
6.3
undertakes
 
to
 
perform
 
all
 
the
 
obligations
 
expressed
 
in
 
the
 
Agreement,
 
the
 
Intercreditor
Agreement and other applicable Finance Documents to be assumed by
 
a Lender; and
40
6.4
agrees
 
that
 
it
 
shall
 
be
 
bound
 
by
 
all
 
the
 
provisions
 
of
 
the
 
Agreement,
 
the
 
Intercreditor
Agreement and
 
other applicable
 
Finance Documents
 
as if
 
it had
 
been an
 
original party
 
to
those Finance Documents as a Lender.
7
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set
out in clause
 
(Limitation of responsibility of Existing Lenders).
8
This Transfer
 
Certificate may
 
be executed
 
in any
 
number of
 
counterparts and
 
this has
 
the same
effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
9
This Transfer Certificate and any non-contractual obligations arising out of or in connection with
it are governed by South African law.
10
This Transfer Certificate has been entered into on the date stated at the beginning of this
 
Transfer
Certificate.
[
EXISTING LENDER
]
By -
[
NEW LENDER
]
By -
[
FACILITY AGENT
]
By -
As Facility Agent and for and
 
on behalf of each of the parties
 
to the Agreement (other than the Existing
Lender
 
and the
 
New Lender)
 
[and
 
each
 
of
 
the
 
parties to
 
the
 
Intercreditor Agreement
 
(other than
 
the
Existing Lender and the New Lender)].
Note -
 
The
 
execution
 
of
 
this
 
Transfer
 
Certificate
 
may
 
not
 
transfer
 
a
 
proportionate
 
share
 
of
 
the
Existing Lender's interest in security in all cases. It is the responsibility of the New Lender to ascertain
whether any other documents
 
or other formalities are
 
required to perfect a
 
transfer of such a
 
share in the
Existing Lender's
 
security and,
 
if so,
 
to arrange
 
for execution
 
of those
 
documents and
 
completion of
those formalities.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
41
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details, including applicable Commitment (or part) and participation in
Loans
]
Part 1
Commitments
Senior Term Facility A
Commitment
Senior Term Facility B
Commitment
Senior RCF
Commitment
[●]
[●]
[●]
Part 2
Participations in Loans
Senior Term Facility A
Loan
Senior Term Facility B Loan
 
Senior RCF Loans
[●]
[●]
[●]
Part 3
Administrative Details of the New Lender
[
Insert details of address for notices and payment details, etc.
]
This Transfer Certificate is
 
accepted by the Facility
 
Agent and the
 
Transfer Date is confirmed
 
as [●].
[
Facility Agent
]
By
 
-
42
ANNEXURE
 
D
 
- FORMS OF ACCESSION LETTER
PART
 
II - ADDITIONAL GUARANTOR
To -
 
[
Facility Agent
], as Facility Agent
[●]
[●]
From -
 
[●] PROPRIETARY LIMITED
And -
 
[
SUBSIDIARY
]
[●], 20
 
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
1
We refer to -
1.1
the Agreement; and
1.2
the Security Cession & Pledge (as defined in the Agreement).
 
2
This is
 
an Accession
 
Letter.
 
Terms
 
defined in
 
the Agreement
 
have the
 
same meaning
 
in this
Accession Letter unless given a different meaning in this Accession Letter.
3
[
Subsidiary
] agrees, with effect from the date of this Accession Letter, to -
3.1
become an Additional
 
Guarantor under the Agreement
 
and to be
 
bound by the
 
terms of
the Agreement as an Additional Guarantor;
 
3.2
become an Indemnifier under (and as defined in) the Counter-indemnity Agreement and
to be bound by the terms of the Counter-indemnity Agreement
 
as an Indemnifier; and
3.3
become an
 
Additional Cedent under
 
(and as defined
 
in) the
 
Security Cession &
 
Pledge
and to be bound by the terms of the Security Cession & Pledge as an
 
Additional Cedent,
pursuant to clause
 
(Additional Guarantors) of the Agreement.
4
[
Subsidiary
] (in its
 
capacity as Additional
 
Cedent) pledges
 
to the Debt
 
Guarantor all
 
its Shares
and
 
Investments
 
(in
 
each
 
case,
 
as
 
defined
 
in
 
the
 
Security
 
Cession
 
&
 
Pledge)
 
and
 
cedes
in
securitatem debiti
 
to the
 
Debt Guarantor
 
all its
 
Secured Property
 
(as defined
 
in the
 
Security
Cession
 
&
 
Pledge),
 
in
 
each
 
case
 
individually
 
and
 
collectively
 
with
 
all
 
the
 
other
 
Secured
43
Property
 
(as
 
defined
 
in
 
the
 
Security
 
Cession
 
&
 
Pledge),
 
as
 
continuing
 
general
 
covering
collateral security for the
 
due, proper and timeous
 
payment and performance in full
 
of all the
Secured Obligations (as defined in the Security Cession & Pledge), on the terms set out in the
Security Cession
 
& Pledge,
 
which pledge
 
and cession
 
the Debt
 
Guarantor (in
 
its capacity
 
as
Debt
 
Guarantor
 
under
 
the
 
Security
 
Cession
 
&
 
Pledge)
 
accepts.
 
For
 
the
 
purposes
 
hereof,
Secured
 
Property
 
means
 
all
 
the
 
Secured
 
Property
 
(as
 
defined
 
in
 
the
 
Security
 
Cession
 
&
Pledge) of [
Subsidiary
].
5
With effect from the
 
date of this Accession Letter the Security Cession &
 
Pledge will be read
and construed
 
for all
 
purposes as
 
if the
 
Additional Cedent
 
had been
 
an original
 
party in
 
the
capacity of Cedent
 
(but so that
 
the Security created
 
on this accession
 
will be created
 
on the date
of this Accession Letter).
6
[
Subsidiary
]
 
is
 
a
 
company
 
duly
 
incorporated
 
under
 
the
 
laws
 
of
 
[
name
 
of
 
relevant
jurisdiction
].
7
[
Subsidiary's
] administrative details are as follows -
Address -
 
[●]
Email Address -
 
[●]
Attention - [●]
8
All representations and
 
warranties set out
 
in clause
 
(Representations) are correct
 
on the date
of this Accession Letter.
9
This Accession Letter is a Finance Document.
10
This Accession
 
Letter may
 
be executed
 
in any number
 
of counterparts.
 
This has
 
the same
 
effect
as if the signatures on the counterparts were on a single copy of this Accession
 
Letter.
11
This Accession Letter and any non-contractual
 
obligations arising out of or in
 
connection with
it are governed by South African law.
[●] PROPRIETARY LIMITED
[
SUBSIDIARY
]
By -
By -
 
 
 
44
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
Accepted by the Debt Guarantor -
For and on behalf of -
Bowwood and Main No 408 (RF)
Proprietary Limited
Name -
Office
-
Date -
(who warrants his authority)
 
45
PART
 
II - ADDITIONAL WCF BORROWER
To -
 
[
Facility Agent
], as Facility Agent
[●]
[●]
From -
 
[●] PROPRIETARY LIMITED
And -
 
[
MEMBER OF THE COVENANT GROUP
]
[●], 20
 
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
1
We refer to -
1.1
the Agreement; and
1.2
the Security Cession & Pledge (as defined in the Agreement).
 
2
This is
 
an Accession
 
Letter.
 
Terms
 
defined in
 
the Agreement
 
have the
 
same meaning
 
in this
Accession Letter unless given a different meaning in this Accession Letter.
3
[
Subsidiary
] (
Additional WCF
 
Borrower
) agrees, with
 
effect from the
 
date of this
 
Accession
Letter, to -
3.1
become an Additional
 
WCF Borrower
 
under the
 
Agreement and
 
to be bound
 
by the
 
terms
of the Agreement as an Additional WCF Borrower;
3.2
become a Borrower
 
under (and as
 
defined in) the
 
WCF Agreement and
 
to be bound
 
by
the terms of the WCF Agreement as a Borrower (as defined in the WCF
 
Agreement);
3.3
become an Indemnifier under (and as defined in) the Counter-indemnity Agreement and
to be bound by the terms of the Counter-indemnity Agreement
 
as an Indemnifier; and
3.4
become an
 
Additional Cedent under
 
(and as defined
 
in) the
 
Security Cession &
 
Pledge
and to be bound by the terms of the Security Cession & Pledge as an
 
Additional Cedent,
pursuant to clause
 
(Additional WCF Borrower) of the Agreement.
46
4
The
 
Additional
 
WCF
 
Borrower
 
(in
 
its
 
capacity
 
as
 
Additional
 
Cedent)
 
pledges
 
to
 
the
 
Debt
Guarantor all
 
its Shares
 
and Investments
 
(in each
 
case, as
 
defined in
 
the Security
 
Cession &
Pledge)
 
and
 
cedes
in
 
securitatem
 
debiti
 
to
 
the
 
Debt
 
Guarantor
 
all
 
its
 
Secured
 
Property
 
(as
defined in the Security
 
Cession & Pledge), in
 
each case individually and
 
collectively with all
the other
 
Secured Property
 
(as defined
 
in the Security
 
Cession &
 
Pledge), as
 
continuing general
covering collateral security
 
for the due,
 
proper and timeous
 
payment and performance
 
in full
of all the Secured Obligations (as
 
defined in the Security Cession &
 
Pledge), on the terms set
out
 
in
 
the
 
Security
 
Cession
 
&
 
Pledge,
 
which
 
pledge and
 
cession the
 
Debt
 
Guarantor (in
 
its
capacity as
 
Debt Guarantor
 
under the
 
Security Cession
 
& Pledge)
 
accepts. For
 
the purposes
hereof,
Secured Property
 
means all the Secured Property (as defined in the Security Cession
& Pledge) of the Additional WCF Borrower.
5
With effect from the
 
date of this Accession Letter the Security Cession &
 
Pledge will be read
and construed
 
for all
 
purposes as
 
if the
 
Additional Cedent
 
had been
 
an original
 
party in
 
the
capacity of Cedent
 
(but so that
 
the Security created
 
on this accession
 
will be created
 
on the date
of this Accession Letter);
6
The Additional
 
WCF Borrower
 
is a company
 
duly incorporated
 
under the
 
laws of
 
South Africa.
7
The Additional WCF Borrower's administrative details are as follows -
Address -
 
[●]
Email address -
 
[●]
Attention - [●]
8
The Repeating Representations are correct on the date of this Accession
 
Letter.
9
This Accession Letter is a Finance Document.
10
This Accession
 
Letter may
 
be executed
 
in any number
 
of counterparts.
 
This has
 
the same
 
effect
as if the signatures on the counterparts were on a single copy of this Accession
 
Letter.
11
This Accession Letter and any non-contractual
 
obligations arising out of or in
 
connection with
it are governed by South African law.
[
MEMBER OF THE COVENANT GROUP
]
[
MEMBER OF THE COVENANT GROUP
]
By -
By -
 
 
 
 
47
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
Accepted by the Debt Guarantor -
For and on behalf of -
Bowwood and Main No 408 (RF)
Proprietary Limited
Name -
Office
-
Date -
(who warrants his authority)
48
PART
 
III - WCF LENDERS
To -
 
[
Facility Agent
], as Facility Agent
[●]
[●]
From -
[
WCF LENDER
]
[●], 20
 
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
1.
We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have
the same meaning in this Accession Letter
 
unless given a different meaning in
 
this Accession
Letter.
2.
[
WCF Lender
] agrees, with effect
 
from the date of
 
this Accession Letter,
 
to become a
 
WCF
Lender and to be bound by the terms of -
2.1
the Agreement; [and]
2.2
the Intercreditor Agreement[,]/[; and
2.3
the Subordination Agreement,]
as a WCF Lender, pursuant to clause [
●
] (Accession of WCF Lenders) of the Agreement.
3.
[
WCF
 
Lender
]
 
is
 
a
 
company
 
duly
 
incorporated
 
under
 
the
 
laws
 
of
 
[
name
 
of
 
relevant
jurisdiction
].
4.
[
WCF Lender
] administrative details are as follows -
Address -
 
[●]
Email address -
 
[●]
Attention - [●]
5.
This Accession
 
Letter may
 
be executed
 
in any number
 
of counterparts.
 
This has
 
the same
 
effect
as if the signatures on the counterparts were on a single copy of this Accession
 
Letter.
6.
This Accession Letter and any non-contractual
 
obligations arising out of or in
 
connection with
it are governed by South African law.
 
 
 
 
49
For and on behalf of -
[
WCF Lender
]
For and on behalf of -
[
WCF Lender
]
Name
-
Name -
Office
-
Office -
(who warrants his authority)
(who warrants his authority)
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
 
50
ANNEXURE
 
E
 
- FORM OF RESIGNATION LETTER
To -
 
[
FACILITY AGENT
], as Facility Agent
[●]
[●]
From -
 
[●] PROPRIETARY LIMITED
[●], 20[●]
Dear Sirs,
Lesaka Technologies Proprietary Limited
Common Terms Agreement, dated [●], 2025
 
(
the
Agreement)
1
We refer to the Agreement. This is
 
a Resignation Letter. Terms defined in the Agreement
 
have
the
 
same
 
meaning
 
in
 
this
 
Resignation
 
Letter
 
unless
 
given
 
a
 
different
 
meaning
 
in
 
this
Resignation Letter.
2
Pursuant to clause
 
(Resignation of a Guarantor), we
 
request that [resigning Guarantor] be
released from -
2.1
its obligations as a Guarantor under the Agreement; and
2.2
its obligations as an Indemnifier under the Counter-indemnity Agreement.
3
We confirm that -
3.1
no Default is continuing or would result from the acceptance of this
 
request; and
3.2
[●].
4
This
 
Resignation Letter
 
and any
 
non-contractual obligations
 
arising
 
out
 
of
 
or
 
in
 
connection
with it are governed by South African law.
Yours
 
faithfully,
Signed -
…..........................................
…..........................................
Director
Director
*
 
Insert any other conditions required by the Agreement.
51
[
Term/RCF Borrower
]
[
Term/RCF Borrower
]
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
52
ANNEXURE
 
F
 
- FORM OF COMPLIANCE CERTIFICATE
To -
 
[
FACILITY AGENT
], as Facility Agent
[●]
[●]
From -
 
[●] PROPRIETARY LIMITED
[●], 20[●]
Dear Sirs,
Lesaka Technologies Proprietary Limited
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
1
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement
have
 
the
 
same
 
meaning
 
when
 
used
 
in
 
this
 
Compliance
 
Certificate
 
unless
 
given
 
a
 
different
meaning in this Compliance Certificate.
2
We
 
confirm
 
that
 
as
 
at
 
[
relevant
 
testing
 
date
]
 
(the
Test
 
Date
)
 
the
 
following
 
financial
 
ratios
referred to in clause
 
(Financial Covenants) were at the levels set out below -
Financial Covenant Ratio
As
Calculated
Covenant
Level
Compliance
[Y / N]
1.
Net Debt to EBITDA Ratio
[●]
[●]
[●]
2.
Interest Cover Ratio
[●]
[●]
[●]
3
We set out below calculations establishing the figures in clause
 
-
[●]
4
We confirm that the following companies were Material Subsidiaries at the Test Date -
[●]
5
We
 
confirm
 
that
 
the
 
[financial
 
statements]/[management
 
accounts]/[SEC
 
Form]
 
which
 
this
compliance certificate accompanies fairly represents the
 
financial condition of the Group as at
the
 
date
 
as
 
to
 
which
 
those
 
[financial
 
statements]/[management
 
accounts/[SEC
 
Form]
 
were
drawn up.
 
53
6
[We confirm that no Default is continuing as at the Test Date.]
7
Cure Amount
7.1.1
[Details to
 
be included
 
as required
 
in clauses
 
(Equity Cure)
 
and
 
(Cure
Amounts -
 
Mandatory Prepayment),
 
and in
 
particular the
 
breach of
 
the Relevant
Financial Covenant,
 
the application
 
of the
 
Cure Amount
 
within the
 
Cure Period,
and the results of -
7.1.1.1
the calculations of
 
all Relevant
 
Financial Undertakings
 
before the payment
 
of
the Cure Amount
 
in accordance with
 
clause
 
(Cure Amounts
 
- mandatory
prepayment) and the application of clauses
 
and
; and
7.1.1.2
the
 
recalculations
 
of
 
all
 
Relevant
 
Financial
 
Undertakings
 
following
 
the
payment of the Cure Amount in accordance
 
with clause
 
(Cure Amounts
- mandatory prepayment) and the application of clauses
 
and
]
8
Obligor coverage
8.1
[
The Obligors are
 
in compliance with
 
clause
 
(Guarantor Coverage).
][
Each of the
following
 
persons
 
are
 
required
 
to
 
become
 
an
 
Additional
 
Guarantor
 
in
 
order
 
for
 
the
Obligors to comply with clause
 
-
 
8.1.1
[●]; and
8.1.2
[●].
]
8.2
[
Each Material
 
Subsidiary is
 
a Guarantor.
][
The following
 
persons are
 
required to
 
become
an Additional Guarantor such that each Material Subsidiary is a Guarantor.
]
9
Group Structure Chart
[Pursuant to clause
, the updated Group Structure Chart is attached hereto as [schedule
1].]
10
Non-SA Subsidiaries
*
 
Note - to be updated as applicable.
 
54
[The aggregate of
 
the gross assets,
 
EBITDA (as defined
 
in clause
) or
 
total revenue
of the Non-SA Subsidiaries is [less than] 10% of
 
the total assets,
 
EBITDA or total revenue of
the Covenant Group.]
11
Material Agreement
The following agreements constitute Material Agreements -
 
11.1.1
[●]; and
11.1.2
[●].
 
12
Litigation
[Pursuant
 
to
 
clause
,
 
the
 
litigation,
 
arbitration,
 
administrative
 
proceeds,
 
liquidation
applications,
 
winding
 
up
 
applications
 
or
 
business
 
rescue
 
applies
 
which
 
are
 
required
 
to
 
be
disclosed are as follows -
 
12.1.1
[●]; and
12.1.2
[●].
 
13.
 
[Please include any other obligations required under the Finance Documents].
[Yours
 
faithfully,
Signed -
…..........................................
…..........................................
Director
Director
[Term/RCF Borrower]
 
[Term/RCF Borrower]
55
ANNEXURE
 
G
 
- TRANSACTION SECURITY
Each Obligor must
 
enter into Security
 
Documents in favour
 
of the
 
Debt Guarantor to
 
establish the
Security set
 
out below
 
over the
 
assets described
 
below (except
 
to the
 
extent that
 
any such
 
asset is
expressly
 
excluded
 
by
 
a
 
Security
 
Document
 
from
 
the
 
Security
 
created
 
under
 
that
 
agreement
 
or
otherwise stipulated below) -
1
South African Obligors and Material Subsidiaries
1.1
A pledge and cession
in securitatem debiti
 
by that Obligor (other than Holdco) of all the
shares,
 
securities
 
and
 
other
 
ownership
 
interests
 
it
 
holds,
 
from
 
time
 
to
 
time,
 
in
 
any
Affiliate, associate company or
 
another person (other than
 
a Dormant Subsidiary), each
incorporated or established
 
in South Africa, in
 
which it is invested
 
(including, in the case
of
 
the
 
Term/RCF
 
Borrower,
 
all
 
the
 
shares,
 
securities
 
and
 
other
 
ownership
 
interests
 
it
holds, from time to time, in the relevant Obligors (other than Holdco)), together with all
its debt claims (on shareholder loan account or otherwise) against any such person, save
for any loans created pursuant to the Permitted Cash Management Arrangement.
1.2
A cession
in securitatem debiti
 
by that Obligor
 
(other than Holdco)
 
of all its
 
rights and
claims
 
in
 
respect
 
of
 
bank
 
accounts
 
maintained
 
in
 
its
 
jurisdiction
 
of
 
incorporation
(including
 
all
 
cash
 
balances
 
standing
 
to
 
the
 
credit
 
of
 
those
 
bank
 
accounts),
 
insurance
policies, book debts,
 
Insurance Proceeds,
 
intellectual property, Disposal Proceeds
 
and all
cash and cash equivalents, from time to time.
1.3
A
 
general
 
notarial
 
bond
 
to
 
be
 
registered
 
over
 
the
 
moveable
 
assets
 
of
 
each
 
Additional
Obligor, it so required by the Facility Agent.
1.4
A mortgage bond to be registered over the immoveable property of any
 
Obligor, if such
Obligor
 
acquired
 
immoveable
 
property
 
valued
 
at
 
R10,000,000
 
(ten
 
million
 
Rand)
 
or
more.
2
Non-South African Obligors and Material Subsidiaries
2.1
Each member
 
of the
 
Covenant Group
 
(other than
 
an Excluded
 
Subsidiary) holding
 
shares,
securities and
 
other ownership
 
interests in
 
an Obligor
 
or Material
 
Subsidiary incorporated
in a jurisdiction
 
other than South
 
Africa must enter
 
into Security Documents,
 
in form and
substance satisfactory to the Facility Agent, in favour of the Debt Guarantor to establish
the
 
Security
 
equivalent
 
to
 
that
 
described
 
in
 
clause
 
1.2
 
(South
 
African
 
Obligors
 
and
Material Subsidiaries) above over all its
 
shares, securities and other ownership interests
it holds,
 
from time
 
to time,
 
in that
 
Obligor or
 
Material Subsidiary,
 
together with all
 
its
debt claims (on shareholder
 
loan account or otherwise)
 
against that Obligor or
 
Material
Subsidiary.
56
2.2
In relation to any
 
Obligor or Material
 
Subsidiary incorporated in
 
a jurisdiction other than
South Africa, Holdco must procure that such member of the
 
Covenant Group enters into
Security Documents, in form and
 
substance satisfactory to the Facility
 
Agent, in favour
of the
 
Debt Guarantor
 
to establish
 
the Security
 
equivalent to
 
that described
 
in clause
(South African
 
Obligors and Material
 
Subsidiaries) above over
 
its assets
 
(except to
 
the
extent that
 
any such
 
asset is
 
expressly excluded
 
by a
 
Security Document
 
from the
 
Security
created under that agreement).
3
Holdco
3.1
A pledge
 
and cession
in securitatem
 
debiti
by Holdco
 
of its
 
rights, title
 
and interest
 
in
and to all of the shares and claims it holds in the Term/RCF Borrower.
 
3.2
A
 
cession
in
 
securitatem debiti
 
by
 
Holdco of
 
its
 
rights, title
 
and interest
 
in
 
and to
 
the
Secured Account.
 
57
ANNEXURE
 
H
 
- ACCEPTABLE LENDERS
1.
South African Banks
1.1
Absa Bank Limited
1.2
The Standard Bank of South Africa Limited
1.3
Investec Bank Limited
1.4
FirstRand Limited
1.5
Nedbank Group Limited
2.
Financial institutions
2.1
Aluwani Capital Partners
2.2
Ashburton Fund Managers Proprietary Limited
2.3
Futuregrowth Asset Management Proprietary Limited
2.4
Liberty Group Limited
2.5
Ninety One SA Proprietary Limited
2.6
Sanlam Life Insurance Limited
3.
Affiliates
Any affiliate, subsidiary or holding company
 
of the banks or financial
 
institutions listed in this
Annexure,
 
and any fund or entity managed by any of them or any of their
 
affiliates.
 
58
ANNEXURE
 
I
 
- FORM OF CONFIDENTIALITY UNDERTAKING
To -
 
[
Insert name of Potential Purchaser/Purchaser’s agent/broker
]
[●]
[●]
[●], 20
 
Dear Sirs,
Lesaka Technologies Proprietary Limited
Common Terms Agreement, dated [●], 2025
(
the
Agreement)
We understand that you are
 
considering [
acquiring
]
 
[
arranging the acquisition
 
of
]
 
an interest in
 
the
Senior Facilities (the
Acquisition
). In consideration of us agreeing to make available to you certain
information, by your signature of a copy of this letter you agree as follows
 
-
1.
CONFIDENTIALITY UNDERTAKING
You
 
undertake (a)
 
to keep
 
the Confidential
 
Information confidential and
 
not to
 
disclose it
 
to
anyone
 
except
 
as
 
provided
 
for
 
by
 
clause
 
2
 
below
 
and
 
to
 
ensure
 
that
 
the
 
Confidential
Information is protected with security measures and a degree of care that would apply to your
own confidential
 
information, (b)
 
to use
 
the Confidential
 
Information only
 
for the
 
Permitted
Purpose, (c) to use all reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed
 
under clause [
2.2 or
] 2.3 below) acknowledges
 
and
complies with the provisions
 
of this letter as
 
if that person
 
were also a party
 
to it, and
 
(d) not
to make enquiries of any
 
member of the Group
 
or any of their officers,
 
directors, employees or
professional advisers relating directly or indirectly to the Acquisition.
2.
PERMITTED DISCLOSURE
We agree that you may disclose Confidential Information -
2.1
to
 
members
 
of
 
the
 
Purchaser
 
Group
 
and
 
their
 
officers,
 
directors,
 
employees
 
and
professional
 
advisers
 
to
 
the
 
extent
 
necessary
 
for
 
the
 
Permitted
 
Purpose
 
and
 
to
 
any
auditors of members of the Purchaser Group;
2.2
[
subject to the
 
requirements of the Agreement, in
 
accordance with the Permitted
 
Purpose
so long as any prospective
 
purchaser has delivered
 
a letter to you in equivalent form
 
to
this letter
;]
2.3
subject to
 
the requirements of
 
the Agreement, to
 
any person to
 
(or through) whom
 
you
assign or transfer (or may potentially assign or transfer) all or
 
any of the rights, benefits
and obligations which you may acquire
 
under the Agreement or with
 
(or through) whom
you enter into (or may
 
potentially enter into) any sub-participation in relation to,
 
or any
*
 
Delete if addressee is acting as broker or agent.
†
 
Delete if addressee is acting as principal.
 
59
other transaction under
 
which payments are to
 
be made by
 
reference to, the
 
Agreement
or Holdco or any other member
 
of the Group so long as that
 
person has delivered a letter
to you in equivalent form to this letter; and
2.4
(i) where requested or required by any court of competent jurisdiction or any competent
judicial, governmental, supervisory
 
or regulatory body,
 
(ii) where required
 
by the rules
of
 
any
 
stock
 
exchange
 
on
 
which
 
the
 
shares
 
or
 
other
 
securities
 
of
 
any
 
member
 
of
 
the
Purchaser
 
Group
 
are
 
listed
 
or
 
(iii)
 
where
 
required
 
by
 
the
 
laws
 
or
 
regulations
 
of
 
any
country with jurisdiction over the affairs of any member of the Purchaser Group.
3.
NOTIFICATION OF REQUIRED OR UNAUTHORISED DISCLOSURE
You
 
agree
 
(to
 
the
 
extent
 
permitted
 
by
 
law)
 
to
 
inform
 
us
 
of
 
the
 
full
 
circumstances
 
of
 
any
disclosure under
 
clause 2.4
 
or upon
 
becoming aware
 
that Confidential
 
Information has
 
been
disclosed in breach of this letter.
4.
RETURN OF COPIES
If we so request in writing, you shall return all Confidential Information
 
supplied to you by us
and destroy or permanently erase all copies of Confidential Information made by you
 
and use
all reasonable endeavours to ensure that anyone to
 
whom you have supplied any Confidential
Information
 
destroys
 
or
 
permanently
 
erases
 
such
 
Confidential
 
Information
 
and
 
any
 
copies
made by them, in
 
each case save to
 
the extent that you
 
or the recipients
 
are required to retain
any
 
such
 
Confidential
 
Information
 
by
 
any
 
applicable
 
law,
 
rule
 
or
 
regulation
 
or
 
by
 
any
competent
 
judicial,
 
governmental,
 
supervisory
 
or
 
regulatory
 
body
 
or
 
in
 
accordance
 
with
internal policy, or where
 
the Confidential
 
Information has
 
been disclosed
 
under clause
 
2 above.
5.
CONTINUING OBLIGATIONS
The obligations in this letter are continuing
 
and, in particular, shall
 
survive the termination of
any discussions
 
or negotiations
 
between you
 
and us.
 
Notwithstanding the
 
previous sentence,
the obligations in
 
this letter shall
 
cease (a) if
 
you become a
 
party to or
 
otherwise acquire (by
assignment
 
or
 
sub-participation)
 
an
 
interest,
 
direct
 
or
 
indirect,
 
in
 
the
 
Agreement
 
or
 
(b)
 
12
(twelve) months after
 
you have returned
 
all Confidential
 
Information supplied
 
to you by
 
us and
destroyed or
 
permanently erased
 
all
 
copies of
 
Confidential Information
 
made
 
by you
 
(other
than any
 
such Confidential
 
Information or
 
copies which
 
have been
 
disclosed under
 
clause 2
above (other than sub-clause 2.4 above) or which, pursuant
 
to clause 4 above, are not required
to be returned or destroyed).
6.
NO REPRESENTATION,
 
CONSEQUENCES OF BREACH, ETC.
You
 
acknowledge and agree that -
6.1
neither
 
we
 
[
nor our
 
principal
]
 
nor
 
any
 
member
 
of
 
the
 
Group
 
nor
 
any
 
of
 
our
 
or
 
their
respective
 
officers,
 
employees
 
or
 
advisers
 
(each
 
a
Relevant
 
Person
)
 
(i)
 
make
 
any
representation or warranty, express or
 
implied, as to, or
 
assume any responsibility
 
for the
accuracy, reliability or completeness of any of the Confidential Information or any other
information supplied by us or the assumptions on which it is based or (ii) shall be under
any obligation to
 
update or correct
 
any inaccuracy in
 
the Confidential Information
 
or any
*
 
Delete if letter is sent out by the Seller rather than the Seller’s
 
broker or agent.
 
60
other
 
information
 
supplied by
 
us
 
or
 
be
 
otherwise liable
 
to
 
you
 
or
 
any
 
other person
 
in
respect of the Confidential Information or any such information; and
6.2
we [
or our principal
]
 
or members of
 
the Group
 
may be irreparably
 
harmed by
 
the breach
of the terms hereof and damages may not be an adequate remedy; each
 
Relevant Person
may be granted an
 
injunction or specific performance
 
for any threatened or
 
actual breach
of the provisions of this letter by you.
7.
SOLE AGREEMENT,
 
NO IMPLIED TERMS, NO VARIATION,
 
EXTENSIONS AND
WAIVERS
7.1
This letter
 
constitutes the
 
sole record
 
of the
 
agreement between
 
us and
 
you (each,
 
a
Party
,
and collectively the
Parties
) in regard to the subject matter hereof.
7.2
No
 
Party
 
shall
 
be
 
bound
 
by
 
any
 
express
 
or
 
implied
 
term,
 
representation,
 
warranty,
promise or the like, not recorded in this letter.
7.3
No
 
addition
 
to,
 
variation
 
or
 
consensual
 
cancellation
 
of
 
this
 
letter
 
and
 
no
 
extension
 
of
time, waiver or relaxation or
 
suspension of any of the
 
provisions or terms hereof
 
shall be
of any force or effect unless in writing and signed by or on behalf of all the Parties.
7.4
No latitude, extension
 
of time or
 
other indulgence which
 
may be given
 
or allowed by
 
any
Party
 
to
 
any
 
other Party
 
in
 
respect
 
of
 
the
 
performance of
 
any
 
obligation hereunder
 
or
enforcement of any right arising
 
from this letter and
 
no single or partial
 
exercise of any
right by any
 
Party shall under any
 
circumstances be construed to
 
be an implied consent
by
 
such
 
Party or
 
operate as
 
a
 
waiver
 
or
 
a
 
novation of,
 
or
 
otherwise affect
 
any of
 
that
Party’s rights in terms of or
 
arising from this letter or
 
estop such Party from enforcing,
 
at
any
 
time
 
and
 
without
 
notice,
 
strict
 
and
 
punctual
 
compliance
 
with
 
each
 
and
 
every
provision or term hereof.
8.
INSIDE INFORMATION
You acknowledge that some or all of the Confidential Information is
 
or may be price-sensitive
information and that the use of such information may be regulated or prohibited by applicable
legislation relating
 
to insider
 
dealing and
 
you undertake
 
not to
 
use any
 
Confidential Information
for any unlawful purpose.
9.
NATURE OF UNDERTAKINGS
The
 
undertakings
 
given
 
by
 
you
 
under
 
this
 
letter
 
are
 
given
 
to
 
us
 
and
 
(without implying
 
any
fiduciary obligations on our part) are also given
 
by the benefit of [
our principal
]
 
Holdco and
each other member of the Group.
10.
GOVERNING LAW AND JURISDICTION
This letter (including the agreement
 
constituted by your acknowledgment
 
of its terms) shall be
governed by and construed in accordance with the
 
laws of South Africa and the parties submit
to the non-exclusive jurisdiction
 
of the High
 
Court of South Africa
 
(Gauteng Local Division,
*
 
Delete if letter is sent out by the Seller rather than the Seller’s
 
broker or agent.
†
 
Delete if letter is sent out by the Seller rather than the Seller’s
 
broker or agent.
 
61
Johannesburg)
 
(or
 
any
 
successor
 
to
 
that
 
Division)
 
in
 
regard
 
to
 
all
 
matters
 
arising
 
from
 
this
letter.
11.
DEFINITIONS
In this letter, terms defined in the Agreement
 
shall, unless the context otherwise
 
requires, have
the
 
same
 
meaning
 
and
 
the
 
words
 
and
 
expressions
 
set
 
forth
 
below
 
shall
 
bear
 
the
 
following
meanings and cognate expressions shall bear corresponding meanings -
Confidential
 
Information
 
means
 
any
 
information
 
relating
 
to
 
Holdco,
 
the
 
Group,
 
the
Agreement and/or the Acquisition provided to you by
 
us or any of our affiliates or advisers, in
whatever form, and includes
 
information given orally and any
 
document, electronic file or
 
any
other way of
 
representing or recording
 
information which
 
contains or is
 
derived or
 
copied from
such information but excludes information that (a) is or becomes public knowledge other than
as a direct or indirect result of
 
any breach of this letter or (b) is
 
known by you before the date
the
 
information
 
is
 
disclosed
 
to
 
you
 
by
 
us
 
or
 
any
 
of
 
our
 
affiliates
 
or
 
advisers
 
or
 
is
 
lawfully
obtained by
 
you thereafter,
 
other than
 
from a
 
source which
 
is connected
 
with the
 
Group and
which, in either case, as far as you are aware, has
 
not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;
Group
 
shall bear the meaning defined in the Agreement;
Holdco
 
shall bear the meaning defined in the Agreement;
Permitted
 
Purpose
 
means
 
[
subject
 
to
 
the
 
terms
 
of
 
this
 
letter,
 
passing
 
on
 
information
 
to
 
a
prospective purchaser for the purpose
 
of
]
 
considering and evaluating
 
whether to enter
 
into the
Acquisition; and
Purchaser Group
 
means you, and each of your affiliates.
Please acknowledge your agreement to the above by signing and returning
 
the enclosed copy.
Yours
 
faithfully
*
 
Delete if addressee is acting as principal.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
62
ANNEXURE
 
J
 
- DORMANT SUBSIDIARIES
Name of Dormant Subsidiary
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Net1 Universal Electronic Technological
Solutions (Pty) Ltd
South Africa
2009/001034/07
2
Pros Software (Pty) Ltd
South Africa
2005/043662/07
3
Lizwe Administration Services Proprietary
Limited
South Africa
2017/484589/07
4
Uzalo Payment Logistics Proprietary Limited
South Africa
2017/406347/07
5
SmartSwitch Eswatini Investments (Pty) Ltd
Swaziland
R7/52203
6
SmartSwitch Tanzania Limited
 
Tanzania
60807
7
Evertrade 187 (Pty) Ltd
South Africa
2000/007099/07
8
Adumo Receipts (Pty) Ltd (previously named
Prodigi Africa (Pty) Ltd)
South Africa
2016/309815/07
9
Flickpay (Pty) Ltd
South Africa
2014/061617/07
10
Cash Paymaster Services (Pty) Ltd
South Africa
1998/000033/07
63
ANNEXURE
 
K
 
- DISCLOSURE SCHEDULE
1
ANNEXURE
 
L
 
- GROUP STRUCTURE
1
ANNEXURE
 
M
 
- MATERIAL CONTRACTS AS AT THE SIGNATURE
 
DATE
1.
the master agreement
 
entered into with
inter alia
 
Grindrod Bank Limited (now
 
African Bank
Limited) and
 
Lesaka Technologies
 
Proprietary Limited on
 
28 October 2010,
 
and all
 
of its
 
13
addenda most recently entered into on 31 October 2024;
 
2.
the
 
EFT
 
sponsorship
 
agreement
 
entered
 
into
 
with
inter
 
alia
 
Grindrod
 
Bank
 
Limited
 
(now
African Bank Limited) and Lesaka Technologies Proprietary Limited on 25 March 2015;
3.
the independent
 
sales organisation
 
(ISO) agreement
 
entered into
 
between Nedbank
 
Limited and
Sureswipe Proprietary Limited on 16 July 2018;
4.
the hardware and
 
software supply
 
and service
 
agreement entered
 
into between
 
KFC Proprietary
Limited and GAAP Point-of-Sale Proprietary limited on 9 December 2020;
5.
the independent
 
sales organisation
 
(ISO) agreement
 
entered into
 
between Nedbank
 
Limited and
Mainstreet 1723 Proprietary Limited on 9 February 2021;
6.
the
 
payment
 
service
 
provider
 
agreement
 
entered
 
into
 
between
 
Absa
 
Bank
 
Limited
 
and
Mainstreet 1723 Proprietary Limited on 1 April 2022;
7.
the wholesale cash
 
purchase agreement
 
entered into between
 
African Bank Limited
 
and Lesaka
Technologies Proprietary Limited on 19 September 2024;
8.
the
 
cash
 
services
 
agreement
 
entered
 
into
 
between
 
African
 
Bank
 
Limited
 
and
 
Lesaka
Technologies Proprietary Limited on 19 September 2024;
9.
the cash purchase
 
agreement entered
 
into between African
 
Bank Limited, Lesaka
 
Technologies
Proprietary Limited and Izi Group Proprietary Limited on 20 September
 
2024; and
10.
the cash purchase
 
agreement entered
 
into between African
 
Bank Limited, Lesaka
 
Technologies
Proprietary Limited and Fidelity Cash Solutions Proprietary Limited on
 
23 September 2024.