COMMON TERMS AGREEMENT
1
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
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 ▇▇▇▇▇'▇ 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
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
accordance with clause
2.1.5
Additional Obligor
2.1.6
Additional WCF Borrower
as a borrower under a Working Capital Facility on it becoming an Additional WCF
Borrower in accordance with clause
2.1.7
Adumo
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
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
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 ▇▇▇▇▇▇'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
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
plus, if this would result in R
1
Deposit Rate, 0.10 per cent.;
R
2
Period;
4
T = the number of days in the Broken JIBAR Period;
T
1
1
of the Broken JIBAR Period;
T
2
2
of the Broken JIBAR Period;
2.1.16
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
on which banks are open for general business in Johannesburg;
2.1.20
Cash Connect Capital
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
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
as defined in the Cash Connect Capital RCF Agreement;
2.1.23
Cash Connect Group Cession and Pledge
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
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
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
as defined in the Cash Connect Management Facilities Agreement;
2.1.27
Cash Connect Management Release Agreement
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
contemplated by clause
Initial conditions precedent
);
2.1.30
Code
2.1.31
Commitment
Commitment, the WesBank Commitment or a WCF Commitment;
2.1.32
Companies Act
promulgated under that act;
2.1.33
Compliance Certificate
Annexure F (
Form of Compliance Certificate
) or otherwise in the agreed form;
2.1.34
Confidential Information
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
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
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
form set out in Annexure I (Form of Confidentiality Undertaking) or otherwise in the
agreed form;
2.1.36
Control
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
Mandatory
prepayment - change of control or transfer of business
);
2.1.38
Counter-indemnity Agreement
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
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
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
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
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
Mercury Owner Trust, Master's Reference number IT000064/2025(G);
2.1.44
Default
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
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
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
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
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
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
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
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
Events of
Default
);
2.1.54
Excluded Subsidiary
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
Group arising under the Existing Finance Documents;
2.1.57
Existing Security
Agreement;
2.1.58
Existing Security Discharge Date
"Release Time" for that Existing Security as defined in the Lesaka Release Agreement;
2.1.59
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
the US government or any governmental or taxation authority in any other
jurisdiction;
2.1.61
FATCA Deduction
Finance Document required by FATCA;
2.1.62
FATCA Exempt Party
any FATCA Deduction;
2.1.63
Fee Letter
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
2.1.64
Final Discharge Date
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
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
Finance Party
, as the context requires, means any of them);
2.1.68
Financial Close
contemplated in clause
2.1.69
Financial Indebtedness
2.1.69.1
moneys borrowed, credit provided and debit balances at financial institutions;
2.1.69.2
any amount raised by acceptance under any acceptance credit facility or
dematerialised equivalent;
2.1.69.3
any amount raised pursuant to any note purchase facility or the issue of bonds,
notes, debentures, loan stock or any similar instrument;
13
2.1.69.4
the amount of any liability in respect of any lease or hire purchase contract which
would, in accordance with IFRS, be treated as a finance or capital lease but
excluding any Relevant Operating Lease notwithstanding any change (or the
implementation of any change) to IFRS on or after 1 January 2019;
2.1.69.5
receivables sold or discounted (other than any receivables to the extent they are
sold on a non-recourse basis);
2.1.69.6
any amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a borrowing;
2.1.69.7
any Treasury Transaction (and, when calculating the value of that Treasury
Transaction, only the mark-to-market value (or, if any actual amount is due as a
result of the termination or close-out of that derivative transaction, that amount)
shall be taken into account);
2.1.69.8
any amount raised by the issue of a share which by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable) is or
may become mandatorily redeemable or redeemable at the option of its holder
(including upon the occurrence of any default under the terms of issue of any
such share);
2.1.69.9
any counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by a bank
or financial institution; and
2.1.69.10
the amount of any liability in respect of any guarantee or indemnity for any of
the items referred to in clauses
2.1.70
Further Rights Letter
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
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
the US;
2.1.72
Group
means -
14
2.1.72.1
for the purposes of clauses
,
,
,
,
,
and
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
it has not ceased to be a Guarantor in accordance with clause
Guarantor);
2.1.75
Hazardous Substances
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
in securitatem debiti,
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
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
year changes in the US CPI since the Signature Date;
2.1.80
Insurance
on behalf of a member of the Group or under which it has a right to claim;
2.1.81
Intellectual Property Rights
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
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
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
2.1.86
Investec
company with limited liability duly incorporated in accordance with the laws of South
Africa;
2.1.87
JIBAR
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
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
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
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
inter
alios
provided the Existing Group Indebtedness (other than the Financial Indebtedness
relating to the Cash Connect Management Finance Documents) to the Group, which
inter alia
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
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
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
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
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
Obligor or a Material Subsidiary;
2.1.100
Material Insurance Proceeds
(Mandatory prepayment - material disposal and insurance proceeds);
2.1.101
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
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
(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
(Financial statements), as applicable);
2.1.101.4
the
EBITDA
or disposed of) will be determined on the same basis as Consolidated EBITDA
(as defined in clause
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
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
Obligor
, as the context
requires, means any of them);
2.1.105
Mobikwik
Mobikwik Systems Pvt Ltd) (Corporate Identity Number
U64201HR2008PLC053766), a company registered under the laws of India;
2.1.106
Original Financial Statements
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
the Original Guarantors (and
Original Obligor
, as the context requires, means any of
them);
2.1.108
Original Senior RCF Lender
RCF Commitment set opposite its name in Column 5 (Senior RCF Commitment) of
the table in Part II of
2.1.109
Original Senior Term Facility A Lender
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
2.1.110
Original Senior Term Facility B Lender
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
2.1.111
Original Senior Term Facility Lender
and each Senior Term Facility B Lender;
2.1.112
Original WCF Agreement
facility agreement/s, dated on or about the Signature Date, between the Original WCF
▇▇▇▇▇▇ (as lender), and various members of the Covenant Group (as borrowers and
guarantors);
22
2.1.113
Original WCF Lender
2.1.114
Original Working Capital Facility
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
2.1.116
Permitted Acquisition
(Acquisitions);
2.1.117
Permitted 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
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
2.1.120
Permitted Distribution
(Distributions);
2.1.121
Permitted Encumbrance
pledge);
2.1.122
Permitted Financial Indebtedness
(Financial Indebtedness);
2.1.123
Permitted Guarantee
guarantees);
23
2.1.124
Permitted Loan
2.1.125
Permitted Share Issue
(Share
Capital);
2.1.126
Permitted Treasury Transaction
(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
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
Refinanced
shall be construed accordingly. For the purpose of this definition any Permitted
Financial Indebtedness pursuant to clause
relation to Holdco, be
excluded
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
and Refinancing Penalties);
2.1.131
Relevant Nominating Body
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
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
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
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
that determined in accordance with clause
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
which are made or deemed to be repeated under clause
representations and warranties);
2.1.137
Representative
nominee, attorney, trustee or custodian;
25
2.1.138
Resignation Letter
(Form of Resignation Letter);
2.1.139
RMB
division);
2.1.140
Sanctioned Entity
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
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
or restrictive measures imposed, administered or enforced from time to time by any
Sanctions Authority;
2.1.143
Sanctions Authority
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
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
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"
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
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
, 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 ▇▇ 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
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
Bank Limited and secured in favour of the Debt Guarantor;
2.1.149
Security
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
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
African Obligors and Material Subsidiaries) of Annexure G (Transaction
Security);
2.1.150.4
each security agreement referred to in clause
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
2.1.151
Security Cession & Pledge
in securitatem debiti,
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
(South African Obligors and Material Subsidiaries) of Annexure G (Transaction
Security);
2.1.152
Security Document
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
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
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
Capital Facilities (and
Senior Facility
, as the context requires, means any of them);
2.1.156
Senior Facility Agreements
RCF Agreement and the WCF Agreements (and
Senior Facility Agreement
, as the
context requires, means any of them);
2.1.157
Senior Facility Commitments
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
Senior RCF Outstandings and the WCF Outstandings;
2.1.159
Senior RCF
(Senior RCF) made available under this Agreement and the Senior RCF Agreement;
2.1.160
Senior RCF Agreement
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
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
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
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
2.1.164
Senior RCF Outstandings
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
clause
Senior Term Facility A Agreement;
2.1.166
Senior Term Facility A Agreement
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
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
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
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
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
2.1.170
Senior Term Facility A Outstandings
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
clause
Senior Term Facility B Agreement;
2.1.172
Senior Term Facility B Agreement
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
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
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
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
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
2.1.176
Senior Term Facility B Outstandings
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
B;
2.1.178
Senior Term Facility Agreements
the Senior Term Facility B Agreement;
34
2.1.179
Senior Term Facility Commitment
and each Senior Term Facility B Commitment;
2.1.180
Senior Term Facility Lenders
Senior Term Facility B Lenders;
2.1.181
Senior Term Facility Loan
Facility B Loan;
2.1.182
Senior Term Facility Outstandings
and the Senior Term Facility B Outstandings, or either one of them, as the context may
require;
2.1.183
Shareholder Claims
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
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
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
2.1.185
Signature Date
the Parties, it is signed by the last Party to do so;
2.1.186
Subordination Agreement
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
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
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
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
Commitments;
2.1.191
Total Senior Term Facility Commitments
Facility Commitments;
2.1.192
Total WCF Commitments
2.1.193
Transaction Security
benefit of, amongst others, the Finance Parties pursuant to the Security Documents;
2.1.194
Transfer
Lenders);
2.1.195
Transfer Certificate
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
with protection against or to benefit from fluctuations in any rate, price, index or credit
rating;
2.1.198
Unpaid Sum
Finance Documents;
2.1.199
US
means the United States of America;
2.1.200
US CPI
U) for the U.S. City Average, 1982-84=100 published by the US Bureau of Labor
Statistics;
2.1.201
Utilisation
2.1.202
Utilisation Date
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
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
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
2.1.209
WCF Commitment
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
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
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
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
2.1.214
WesBank Agreement
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
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
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
of ZAR227,000,000 as at the Signature Date made available under the WesBank
Agreements; and
2.1.218
Working Capital Facility
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
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
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
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 ▇▇▇▇▇'▇ 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
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
(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
(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
(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
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
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
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
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
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
each year;
2.2.12
Measurement Period
Date;
2.2.13
Net Debt to EBITDA Ratio
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
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
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
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
its successors in title, permitted cessionaries and permitted transferees;
2.3.1.2
a document being in the
agreed 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
replacement, restatement or variation and
amend
2.3.1.4
assets
rights of every description and whether present or future, actual or contingent;
2.3.1.5
an
authorisation
permit, exemption, filing, notarisation, lodgement or registration;
2.3.1.6
authority
supranational body, agency, department or any regulatory, self-regulatory or
other authority;
2.3.1.7
a
disposal
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
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
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
Guarantee and Indemnity
)) any
guarantee, bo▇▇, 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
for the payment or repayment of money, whether present or future, actual or
contingent;
2.3.1.12
know your customer requirements
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
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
(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
within any applicable remedy period expressly provided for in a Finance Document or
waived in writing, and an Event of Default is
continuing
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
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
limiting the meaning of the general wording preceding it, and the
eiusdem generis
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
Precedent) have been received in form and substance satisfactory to the Lenders. The
Facility Agent shall notify the Term/RCF Bo▇▇▇▇▇▇ ▇s 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
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 Le▇▇▇▇'▇ participation in the Loans (together with all
other Senior Facility Outstandings due to that Lender) on the last day of the Interest
Period for each Loan occurring after the Facility Agent has notified the Term/RCF
Borrower (provided that if the last day of any such Interest Period for a Loan falls on
a day earlier than the tenth Business Day after delivery of such notice, then the relevant
Borrower shall make such repayment by no later than such tenth Business Day) or, if
earlier, the date specified by the Lender in the notice delivered to the Facility Agent
(being no earlier than the last day of any applicable grace period permitted by law).
8.2
Mandatory prepayment - sanctions
8.2.1
If any member of the Group or any Security Provider -
8.2.1.1
is or becomes a Sanctioned Entity;
8.2.1.2
participates in any manner in any Sanctioned Transaction;
8.2.1.3
contravenes any Sanctions, or it is targeted under any Sanctions,
each Obligor shall notify the Facility Agent promptly upon becoming aware of that
event (unless that Obligor is aware that a notification has already been provided by
another Obligor).
54
8.2.2
If any event contemplated by clause
8.2.2.1
upon the Facility Agent receiving a notice from an Obligor under clause
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 Le▇▇▇▇ ▇nd 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
Ma▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ 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 Le▇▇▇▇ ▇nd 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
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
clause
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
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
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
Insurance Proceeds; and
8.4.4
Mobikwik Disposal Proceeds
any member of the Group following a Disposal by the Group of any shares and/or
claims held against Mo▇▇▇▇▇▇ ▇nd/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
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
8.7.1.2
any Lender claims indemnification from the Term/RCF Borrower or any other
Obligor under clause
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
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
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
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
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 Le▇▇▇▇▇ 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
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
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
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 ▇▇▇▇▇▇'s Pro Rata Share (and for purposes of determining
its Pro Rata Share the provisions of clause
mutatis
mutandis
),,
except, in respect of clauses
made to a particular Lender or Lenders under this clause
Offers and Priorities).
8.10
Other provisions
8.10.1
If the Facility Agent receives any notice of prepayment or cancellation under this
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
Senior Facility Agreement, or an offer of prepayment under clause
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
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
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
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
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
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 ▇▇▇▇▇▇'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
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
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
, 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
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
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
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 ▇▇▇▇▇▇'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
(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
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
14.1.4
Tax Deduction
payment under a Finance Document, other than a FATCA Deduction;
14.1.5
Tax Payment
Party under clause
14.1.6
Unless a contrary indication appears, in this clause
determines
determined
making the determination.
14.2
Tax gross -up
14.2.1
Each Obligor shall make all payments to be made by it free and clear of and without
any Tax Deduction, unless a Tax Deduction is required by law.
14.2.2
The Term/RCF Borrower shall promptly upon becoming aware that an Obligor must
make a Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Facility Agent accordingly. Similarly, a Lender shall notify the
Facility Agent, as soon as reasonably practicable, on becoming so aware in respect of
a payment payable to that Lender. If the Facility Agent receives such notification from
a Lender it shall notify the Term/RCF Borrower and that Obligor.
71
14.2.3
If a Tax Deduction is required by law to be made by an Obligor, the amount of the
payment due from that Obligor shall be increased to an amount which (after making
any Tax Deduction) leaves an amount equal to the payment which would have been
due if no Tax Deduction had been required.
14.2.4
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax
Deduction and any payment required in connection with that Tax Deduction within the
time allowed and in the minimum amount required by law.
14.2.5
Within thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction shall
deliver to the Facility Agent for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax Deduction has been made or
(as applicable) any appropriate payment paid to the relevant taxing authority.
14.3
Tax indemnity
14.3.1
Each Obligor shall (within three Business Days of demand by the Facility Agent)
indemnify each Protected Party against, and shall pay to a Protected Party an amount
equal to the loss, liability or cost which that Protected Party determines will be or has
been (directly or indirectly) suffered for or on account of Tax by that Protected Party
in respect of a Finance Document.
14.3.2
Clause
14.3.2.1
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
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
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
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
Expenses) directly to such third parties as is contemplated in clause
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
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
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
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
the Facility Agent, as soon as reasonably possible after becoming aware of the claim,
of the event giving rise to the claim, following which the Facility Agent shall notify
the Term/RCF Borrower as soon as reasonably practicable.
15.2.2
Each Finance Party shall, as soon as practicable after a demand by the Facility Agent,
provide a certificate confirming the amount of its Increased Costs and setting out a
76
calculation of the amount of its Increased Cost (without having to provide details of
the manner in which any variable (including any figure or data) used in the calculation
of its Increased Cost was determined).
15.3
Exceptions
15.3.1
Clause
15.3.1.1
attributable to a Tax Deduction required by law to be made by an Obligor;
15.3.1.2
compensated for by clause
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
term in clause
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
Indemnities) or clause
17.1.2
Clause
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
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
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 ▇▇▇▇▇▇▇'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
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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
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
omission, matter or thing which, but for this clause, would reduce, release or prejudice any
of its obligations under this clause
any Finance Party) including -
19.4.1
any time, waiver or consent granted to, or composition with, any Obligor or other
person;
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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
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
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
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
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
,
,
,
,
,
. 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 ▇▇▇▇▇▇, 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
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
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
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
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
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
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
20.21.1.2
creditors' process described in clause
has been taken or threatened in relation to it or any other member of the Group and
none of the circumstances described in clause
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
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
precedent) or clause
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
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
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
Covenants) has been complied with and make an accurate comparison between
the financial position indicated in those financial statements and the Original
Financial Statements.
21.2.3
Any reference in this Agreement to those financial statements shall be construed as a
reference to those financial statements as adjusted to reflect the basis upon which the
Original Financial Statements were prepared.
21.3
Compliance Certificate
100
21.3.1
The Term/RCF Borrower shall supply a Compliance Certificate to the Facility Agent
with each set of financial statements, SEC Form and management accounts delivered
pursuant to clause
21.3.2
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
the purposes of determining compliance with clause
provided that the Compliance Certificate delivered together with the financial
statements pursuant to clause
, 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
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
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
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
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
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
or clause
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
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 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
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
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
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
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
Compliance Certificate delivered pursuant to clause
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
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
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
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
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
above, Total Net Finance Costs shall be recalculated, taking into account the relevant
reduction resulting from the operation of clause
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
prepayment) and the application of clauses
; and
22.3.5.2
the recalculations of all Relevant Financial following the payment of the Cure
Amount in accordance with clause
prepayment) and the application of clauses
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
deemed to have been remedied.
22.3.7
The rights of the Term/RCF Borrower under this clause
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
prepayments).
23
GENERAL UNDERTAKINGS
Each Obligor is bound by the undertakings set out in this clause
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
,
,
. The undertakings in this clause
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
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
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
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
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
equivalent in another currency or currencies), which member of the Covenant
Group or Holdco may only incur Financial Indebtedness under this
clause
23.5.1.18.1
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
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
23.6.2
a disposal of any asset by a member of the Covenant Group (the
disposing entity
) to
another member of the Covenant Group (other than an Excluded Subsidiary) (the
acquiring entity
) incorporated in the same jurisdiction, but only if -
118
23.6.2.1
where the disposing entity is an Obligor, the acquiring entity must also be an
Obligor (other than Holdco);
23.6.2.2
if the relevant asset is subject to Transaction Security, the acquiring entity must
provide equivalent Security for the benefit of the Finance Parties (in form and
substance satisfactory to the Facility Agent) and the following shall be delivered
to the Facility Agent in respect thereof to the Facility Agent’s satisfaction -
23.6.2.2.1
legal opinions as to the capacity and authority of the relevant Obligor to
grant such Transaction Security and the enforceability of such Transaction
Security; and
23.6.2.2.2
copies of all resolutions required to be passed in respect of the authorisation
of the granting of such Transaction Security; and
23.6.2.3
where the disposing entity is a Guarantor, the acquiring entity must also be a
Guarantor in the Covenant Group guaranteeing an amount at all times no less
than that guaranteed by the disposing entity;
23.6.3
a disposal of obsolete or redundant vehicles, plant and equipment for cash;
23.6.4
a disposal of assets (not being a business and not being shares, securities, interests in
real property or rights under any Finance Document) in exchange for other assets
comparable or superior as to type, value and quality and for a similar purpose (but, if
the assets disposed of were subject to Transaction Security, only if Transaction
Security is established for the benefit of the Finance Parties (in form and substance
satisfactory to the Facility Agent) over any assets so acquired) and the following shall
be delivered to the Facility Agent in respect thereof to the Facility Agent’s
satisfaction -
23.6.4.1
legal opinions as to the capacity and authority of the relevant Obligor to grant
such Transaction Security and the enforceability of such Transaction Security;
and
23.6.4.2
copies of all resolutions required to be passed in respect of the authorisation of
the granting of such Transaction Security;
23.6.5
a disposal of Cash Equivalents -
23.6.5.1
for Cash; or
119
23.6.5.2
in exchange for other Cash Equivalents,
but, if the Cash Equivalents disposed of were subject to Transaction Security, only if
Transaction Security is established for the benefit of the Finance Parties (in form and
substance satisfactory to the Facility Agent) over any Cash Equivalents so acquired;
23.6.6
a disposal arising as a result of a Permitted Encumbrance;
23.6.7
any other disposal expressly permitted in writing by the Facility Agent;
23.6.8
a disposal by the Term/RCF Borrower of any treasury shares which it holds in Holdco
in order to pay the purchase consideration (or a part thereof) in relation to a Permitted
Acquisition envisaged in clause
;
23.6.9
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
insurance proceeds) are complied with;
23.6.11
any other disposal not referred to in this clause
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
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ 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
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
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
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
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
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
,
,
,
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
▇▇▇▇▇▇▇▇▇ 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
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
23.12.5
loans provided by -
23.12.5.1
one Obligor to another Obligor (other than Holdco); and/or
23.12.5.2
an Obligor to another member of the Covenant Group (which is not an Obligor
in the Covenant Group) or a third party, provided that the loans outstanding
together with the indebtedness incurred in accordance with clauses
23.12.5.3
a member of the Covenant Group which is not an Obligor to another member of
the Covenant Group which is not an Obligor in the Covenant Group or an
Excluded Subsidiary, provided that the loans outstanding do not exceed
ZAR50,000,000 at any time;
23.12.6
any loan which is made pursuant to the Permitted Cash Management Arrangement;
23.12.7
loans or credit expressly permitted in writing by the Facility Agent;
129
23.12.8
loans or credit not otherwise permitted by this clause above provided by a member of
the Covenant Group to its customers, provided that it may only provide loans or credit
under this clause
23.12.8.1
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
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
Indebtedness) and
in another currency or currencies), and the remainder of the provisions of clause
mutatis mutandis
; and
23.13.11
the Facility Agent has, in relation to any guarantee or indemnity that replaces the
guarantee or indemnity that is in effect as at the Closing Date (the
Existing
Guarantee/Indemnity
), confirmed that it is satisfied with the form of the replacement
guarantee or indemnity and such form of guarantee or indemnity, as well as the
Existing Guarantee/Indemnity, is not amended or replaced without the express prior
written consent of the Facility Agent.
23.14
Treasury Transactions
131
23.14.1
No Obligor shall (and the Obligors shall ensure that no other member of the Covenant
Group will) enter into any Treasury Transaction. This restriction does not apply to the
following Treasury Transactions (each a
Permitted Treasury Transaction
) -
23.14.1.1
spot and forward delivery foreign exchange contracts entered into in the ordinary
course of business -
23.14.1.1.1
under a WCF Agreement; or
23.14.1.1.2
with any other financial institution, provided that no Security is provided
to such financial institution and the aggregate Financial Indebtedness
incurred by the members of the Covenant Group falls within the amounts
set out in clause
23.14.1.2
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
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
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
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
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
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
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
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
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
payment);
23.21.2.2.4
all amounts payable under clause
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
without the express prior written consent of the Facility Agent or which are minor or
administrative in nature and will not adversely affect the interests of the Finance
Parties.
23.23.2
The Term/RCF Borrower must promptly supply to the Facility Agent a copy of any
amendment to any of the documents referred to in clause
23.24
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
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
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
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
statements), as applicable);
142
23.26.3.4
the
EBITDA
Consolidated EBITDA (as defined in clause
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
any proposed or (with the prior approval of the Facility Agent in relation to only those
Material Agreements referred to in clause
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
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
24.3.2
No Event of Default under clause
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
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
Financial Indebtedness or commitment for Financial Indebtedness falling within
clauses
equivalent in another currency or currencies).
24.6
Insolvency
24.6.1
A Material Group Company, Security Provider or any member of the Group is or is
deemed for the purposes of any applicable law to be insolvent or unable to pay its debts
as they fall due, admits its insolvency or its inability to pay its debts as they fall due,
suspends making payments on any of its debts or announces an intention to do so or,
by reason of actual or anticipated financial difficulties, commences negotiations with
one or more of its creditors with a view to the rescheduling, restructuring or
compromise of any of its indebtedness.
24.6.2
A Material Group Company, Security Provider or any member of the Group is or is
deemed for the purposes of any applicable law to be "Financially Distressed" (as
defined in the Companies Act).
24.6.3
The value of the assets of a Material Group Company, Security Provider or any
member of the Group is less than its liabilities (taking into account contingent and
prospective liabilities).
24.6.4
A moratorium is declared, instituted or takes effect in respect of any of the
indebtedness of any Material Group Company, Security Provider or any member of
the Group (in which event the ending of the moratorium will not remedy any Event of
Default caused by that moratorium).
24.7
Insolvency and business rescue proceedings
24.7.1
Any corporate action, legal proceedings or other procedure or step (including an
application to court, proposal or convening of a meeting) is taken with a view to -
24.7.1.1
the suspension of payments, a moratorium of any indebtedness, liquidation,
winding-up, dissolution, administration, business rescue or reorganisation (by
way of voluntary arrangement, scheme of arrangement or otherwise) of any
Material Group Company, Security Provider or any member of the Group;
24.7.1.2
a composition, compromise, assignment or arrangement with any creditor of a
Material Group Company, Security Provider or any member of the Group;
148
24.7.1.3
the appointment of a liquidator (other than in respect of a solvent liquidation of
a member of the Group which is not a member of the Covenant Group), receiver,
administrative receiver, administrator, compulsory manager, business rescue
practitioner or other similar officer in respect of any Material Group Company,
Security Provider or any member of the Group or any of their assets; or
24.7.1.4
enforcement of any Security over any assets of any Material Group Company,
Security Provider or any member of the Group,
or any analogous procedure or step is taken in any jurisdiction;
24.7.2
A meeting is proposed or convened by the directors of any Material Group Company,
Security Provider or any member of the Group, a resolution is proposed or passed,
application is made or an order is applied for or granted, to authorise the entry into or
implementation of any business rescue proceedings (or any similar proceedings) in
respect of any Material Group Company, Security Provider or any member of the
Group, or any analogous procedure or step is taken in any jurisdiction.
24.8
Creditors' process
Any expropriation, attachment, sequestration, implementation of any business rescue plan,
distress or execution affects any asset or assets of a member of the Covenant Group or a
Security Provider. No Event of Default will occur under this clause
24.8.1
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
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
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
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
accordance with clause
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
▇▇▇▇▇▇, 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
Indemnities)) or pay any Increased Cost (as defined in clause
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
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 ▇▇▇▇ 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
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
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
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
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
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
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
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
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
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
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 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
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
the Facility Agent under the Finance Documents;
31.5.1.2
second
, in or towards payment
pro rata
or commission due but unpaid under the Finance Documents ;
31.5.1.3
third
, in or towards payment
pro rata
Finance Documents;
163
31.5.1.4
fourth
, in or towards payment
pro rata
the Finance Documents.
31.5.2
This clause
accordance with clause
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
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
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, ▇▇▇ ▇▇▇▇▇ Ave &, ▇▇▇▇▇▇ ▇▇,
Rosebank, Johannesburg, 2196
Email address - XXX with a copy to XXX
For the attention of - Chief Financial Officer - ▇▇▇▇▇▇ ▇▇▇▇▇
34.2.2
the case of the Term/RCF Borrower -
Address - President Place, ▇▇▇ ▇▇▇▇▇ Ave &, ▇▇▇▇▇▇ ▇▇,
Rosebank, Johannesburg, 2196
Email address - XXX with a copy to XXX
For the attention of - Chief Financial Officer - ▇▇▇▇▇▇ ▇▇▇▇▇
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 - ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
cnr ▇▇▇▇▇▇▇ Drive and Rivonia Road
Sandton, 2196
166
Email address - 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
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇,
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
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
domicilium citandi et executandi
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
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 ▇▇▇▇▇▇▇▇ (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
in writing and signed by or on behalf of the relevant Parties.
35.4
An amendment of any provision of clause
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
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
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
documents delivered pursuant to the Finance Documents on its behalf;
36.2.2.4
who invests in or otherwise finances (or may potentially invest in or otherwise
finance), directly or indirectly, any transaction referred to in clauses
36.2.2.5
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
,
, 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
,
, 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
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
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
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
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
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
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
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
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Authorised
Designation
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Authorised Signatory
Designation
1
THE ORIGINAL SENIOR LENDER
Signed at Sandton on 27 February 2025
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Authorised
Designation
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Authorised Signatory
Designation
2
Signed at Sandton on 27 February 2025
Investec Bank Limited (acting through its
Investment Banking division: Corporate
Solutions)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Authorised Signatory
Designation
Investec Bank Limited (acting through its
Investment Banking division: Corporate
Solutions)
/s/ ▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇ ▇▇▇▇
Name of Signatory
Authorised Signatory
Designation
1
THE ORIGINAL WCF LENDER
Signed at JHB on 27 Feb 25 2025
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇
Name of Signatory
Authorised
Designation
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Authorised
Designation
1
WESBANK
Signed at JOHANNESBURG on 27/02/25 2025
FirstRand Bank Limited (acting through its
WesBank division)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇▇▇
Name of Signatory
Sales Manager
Designation
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
Bowwood and Main No 408 (RF) Proprietary
Limited
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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
Lesaka Technologies, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇▇
Name of Signatory
Group Chief Financial Officer
Designation
1
THE ORIGINAL OBLIGORS
TERM / RCF BORROWER
Signed at CAPE TOWN on 27 February 2025
Lesaka Technologies Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
Group COO
Designation
1
THE ORIGINAL OBLIGORS
THE WCF BORROWERS
Signed at CAPE TOWN on 27 February 2025
Cash Connect Management Solutions
Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
2
Signed at CAPE TOWN on 27 February 2025
EasyPay Financial Services Proprietary
Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
3
Signed at CAPE TOWN on 27 February 2025
Lesaka Technologies Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
4
Signed at Parkhurst on 27 February 2025
Adumo (RF) Proprietary Limited
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇▇
Name of Signatory
Group Chief Financial Officer
Designation
5
Signed at JHB on 27/02/2025 2025
Cash Connect Rentals Proprietary Limited
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Director
Designation
6
Signed at CAPE TOWN on 27 February 2025
Main Street 1723 Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
7
THE ORIGINAL OBLIGORS
THE ORIGINAL GUARANTORS
Signed at CAPE TOWN on 27 February 2025
Lesaka Technologies Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
8
Signed at Parkhurst on 27 February 2025
Lesaka Technologies, Inc.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇▇
Name of Signatory
Group Chief Financial Officer
Designation
9
Signed at CAPE TOWN on 27 February 2025
Prism Holdings Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
10
Signed at CAPE TOWN on 27 February 2025
Net1 Finance Holdings Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
11
Signed at CAPE TOWN on 27 February 2025
EasyPay Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
12
Signed at CAPE TOWN on 27 February 2025
Prism Payment Technologies Proprietary
Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
13
Signed at CAPE TOWN on 27 February 2025
Cash Connect Management Solutions
Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
14
Signed at JHB on 27 February 2025
Deposit Manager Proprietary Limited
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Director
Designation
15
Signed at JHB on 27 February 2025
Cash Connect Rentals Proprietary Limited
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Director
Designation
16
Signed at CAPE TOWN on 27 February 2025
Main Street 1723 Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
17
Signed at CAPE TOWN on 27 February 2025
EasyPay Financial Services Proprietary
Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
18
Signed at Durban on 27 February 2025
GAAP Point-of-Sale Proprietary Limited
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
Financial Director
Designation
19
Signed at Cape Town on 27 February 2025
Adumo Payments Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name of Signatory
Director
Designation
20
Signed at Cape Town on 27 February 2025
Adumo Payouts Proprietary Limited
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Name of Signatory
CEO
Designation
21
Signed at Cape Town on 27/02/2025 2025
Adumo Technologies Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name of Signatory
Director
Designation
22
Signed at Cape Town on 27 February 2025
Adumo Management Company Proprietary
Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name of Signatory
Director
Designation
23
Signed at Parkhurst on 27 February 2025
Adumo (RF) Proprietary Limited
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇▇
Name of Signatory
Group Chief Financial Officer
Designation
24
Signed at Jhb on 27 February 2025
Ovobix (RF) Proprietary Limited
/s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Director
Designation
25
Signed at CAPE TOWN on 27 February 2025
Luxanio 227 Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
26
Signed at CAPE TOWN on 27 February 2025
K2021477132 (South Africa) Proprietary
Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
27
Signed at CAPE TOWN on 27 February 2025
Easypay Cash Proprietary Limited
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
who warrants that he is duly
authorised hereto
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation
28
ANNEXURE
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
▇▇▇▇/▇▇▇▇▇▇/▇▇
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
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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Cnr ▇▇▇▇▇▇▇ 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
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
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇, 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
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
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
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
To - [
Facility Agent
], as Facility Agent
[●]
[●]
From -
[
The Existing Lender
] (the
Existing Lender
) and [
the New Lender
]
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
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
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
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
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
PART II - ADDITIONAL GUARANTOR
To - [
Facility Agent
], as Facility Agent
[●]
[●]
From -
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
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
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
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
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 -
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
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
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
& 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
▇▇▇▇▇▇ 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
To - [
FACILITY AGENT
], as Facility Agent
[●]
[●]
From -
[●], 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
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
*
51
[
Term/RCF Borrower
]
[
Term/RCF Borrower
]
52
ANNEXURE
To - [
FACILITY AGENT
], as Facility Agent
[●]
[●]
From -
[●], 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 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
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
prepayment) and the application of clauses
; and
7.1.1.2
the recalculations of all Relevant Financial Undertakings following the
payment of the Cure Amount in accordance with clause
- mandatory prepayment) and the application of clauses
]
8
Obligor coverage
8.1
[
The Obligors are in compliance with clause
][
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
*
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
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
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
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
Secured Account.
57
ANNEXURE
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
▇▇▇▇▇▇▇▇▇ 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
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
*
†
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
*
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
*
†
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
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
Holdco
Permitted Purpose
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
Please acknowledge your agreement to the above by signing and returning the enclosed copy.
Yours faithfully
*
62
ANNEXURE
Name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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
1
ANNEXURE
1
ANNEXURE
1.
the master agreement entered into with
inter ▇▇▇▇
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 ▇▇▇▇
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.