PLEDGE AND CESSION IN SECURITY AGREEMENT

 
1
between
LESAKA TECHNOLOGIES, INC.
(as Cedent)
and
LESAKA APPLIED TECHNOLOGIES PROPRIETARY
 
LIMITED
(
as
obligors' agent
 
and
Term/RCF
 
Borrower)
and
BOWWOOD AND MAIN NO 408 (RF) PROPRIETARY
 
LIMITED
(as Debt Guarantor)
and
 
FIRSTRAND BANK LIMITED
 
(ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)
(as Facility Agent)
Exhibit 10.50
i
TABLE
 
OF CONTENTS
ANNEXURES
1
1
PARTIES
 
1.1
The Parties to this Agreement are -
 
1.1.1
Lesaka Technologies, Inc. (as Cedent);
 
1.1.2
Lesaka
 
Technologies
 
Proprietary
 
Limited
 
(as
 
obligors'
 
agent
 
and
 
Term/RCF
Borrower);
1.1.3
Bowwood and Main No 408 (RF) Proprietary Limited (as Debt Guarantor);
 
and
 
1.1.4
FirstRand Bank
 
Limited (acting
 
through its
 
Rand Merchant
 
Bank division)
 
(as Facility
Agent).
 
1.2
The Parties agree as set out below.
 
2
INTERPRETATION
2.1
Definitions
In this Agreement, unless the context
 
indicates a contrary intention,
 
terms and expressions
defined in the Common Terms Agreement have the
 
same meaning and the following
 
words
and
 
expressions
 
bear
 
the
 
meanings
 
assigned
 
to
 
them
 
and
 
cognate
 
expressions
 
bear
corresponding meanings -
2.1.1
Agreement
 
means
 
this
 
pledge
 
and
 
cession
 
in
 
security
 
agreement,
 
including
 
all
annexures hereto;
2.1.2
Cedent
 
means
 
Lesaka
 
Technologies,
 
Inc,
 
a
 
corporation
 
duly
 
incorporated
 
in
accordance with the laws of State of Florida, United States;
2.1.3
Common Terms Agreement
 
means the written common
 
terms agreement concluded
or to be concluded
 
on or about the
 
Signature Date between,
inter alios
, the Term/RCF
Borrower,
 
the Cedent (as Holdco), RMB and the Debt Guarantor;
2.1.4
Counter-indemnity
 
Agreement
 
means
 
the
 
written
 
counter-indemnity
 
agreement
concluded
 
or
 
to
 
be
 
concluded
 
on
 
or
 
about
 
the
 
Signature
 
Date
 
between,
inter
 
alios
,
certain of the Original Obligors (as original indemnifiers),
 
the Facility Agent and the
Debt
 
Guarantor in
 
terms
 
of
 
which,
inter
 
alia
,
 
the
 
Indemnifiers (as
 
defined
 
therein)
give a counter-indemnity on
 
a joint and several basis
 
in favour of the
 
Debt Guarantor;
 
 
 
 
 
 
 
2
2.1.5
Debt
 
Guarantor
 
means
 
Bowwood
 
and
 
Main
 
No
 
408
 
(RF)
 
Proprietary
 
Limited,
registration
 
number
 
2024/200503/07, a
 
private
 
company
 
with
 
limited
 
liability
 
duly
incorporated in accordance with the laws of South Africa;
2.1.6
Effective
 
Date
 
has
 
the meaning
 
given
 
to
 
the
 
term
 
"
Release Date
 
and Time
"
 
in
 
the
Lesaka Release Agreement;
 
2.1.7
Facility Agent
 
means RMB, acting in its capacity as
 
agent for the Finance Parties, or
any
 
replacement
 
facility
 
agent
 
which
 
has
 
become
 
a
 
party
 
to
 
the
 
Common
 
Terms
Agreement as the Facility Agent in accordance with the terms of
 
the Common Terms
Agreement;
2.1.8
Party
 
means a party to this Agreement;
2.1.9
Related
 
Rights
 
means
 
in
 
relation
 
to
 
the
 
Secured
 
Property
 
(other
 
than
 
the
 
Related
Rights) –
 
2.1.9.1
any monies and proceeds
 
(including dividends and the
 
proceeds of a disposal or
other realisation) accrued or receivable in respect of all or part thereof;
2.1.9.2
all
 
rights
 
and
 
benefits
 
in
 
respect
 
of
 
any
 
agreement
 
for
 
the
 
disposal
 
or
 
other
realisation thereof;
2.1.9.3
all contracts, warranties,
 
remedies, Security, indemnities and
 
other undertakings
in respect thereof; and
2.1.9.4
any of the reversionary interests referred to in clause
2.1.10
RMB
 
means FirstRand Bank
 
Limited, registration number
 
1929/001225/06, a limited
liability public
 
company duly
 
incorporated in
 
South Africa,
 
acting through
 
its Rand
Merchant Bank division;
2.1.11
Secured
 
Account
 
means
 
the
 
following
 
bank
 
account
 
held
 
by
 
the
 
Cedent
 
with
FirstRand
 
Bank
 
Limited
 
and
 
all
 
amounts
 
standing
 
to
 
the
 
credit
 
of
 
that
 
ring-fenced
bank account from time to time -
 
Account Name
 
 
 
 
 
 
 
 
 
 
 
 
 
3
Bank
Rand Merchant Bank, a division of FirstRand
Bank Limited
 
Account Number
XXX
Branch Code
XXX
2.1.12
Secured
 
Obligations
 
means all
 
present and
 
future
 
obligations and
 
indebtedness of
whatsoever nature
 
which an
 
Obligor may
 
now or
 
at any
 
time hereafter
 
owe or
 
have
towards
 
the
 
Finance
 
Parties
 
under
 
or
 
in
 
connection
 
with
 
the
 
Finance
 
Documents
(including the Counter-indemnity
 
Agreement) whether present or
 
future, matured or
not matured, liquidated or
 
not liquidated, incurred solely
 
or jointly or severally
 
and as
principal
 
or
 
surety
 
or
 
in
 
any
 
other
 
capacity,
 
including
 
any
 
claim
 
for
 
damages
 
or
restitution and
 
any claim
 
as a
 
result of
 
any recovery
 
by an
 
Obligor (or
 
any business
rescue
 
practitioner,
 
liquidator
 
or
 
trustee,
 
as
 
the
 
case
 
may
 
be,
 
of
 
an
 
Obligor)
 
of
 
a
payment or discharge on the
 
grounds of preference, and
 
any amounts which would
 
be
included in
 
any of
 
the above
 
but for
 
any discharge,
 
non-provability or
 
unenforceability
of those amounts in any insolvency or other proceedings;
2.1.13
Secured Property
 
means all of the Cedent's rights, title and interests in and to -
 
2.1.13.1
the Secured Account;
2.1.13.2
the Shareholder & Group Claims;
 
2.1.13.3
the Shares;
 
and
2.1.13.4
the Related Rights,
of
 
whatsoever
 
nature
 
and
 
howsoever
 
arising
 
(whether
 
actual,
 
prospective
 
or
contingent, direct or
 
indirect, arising
 
under common
 
law or
 
statute, whether a
 
claim
for the
 
payment of
 
money or
 
the performance
 
of another
 
obligation and
 
whether or
not
 
those
 
rights
 
and
 
interests
 
were
 
within
 
the
 
contemplation
 
of
 
the
 
Parties
 
at
 
the
Signature
 
Date,
 
the
 
Effective
 
Date
 
or
 
otherwise)
 
and,
 
in
 
each
 
case,
 
any
 
property
forming part thereof;
4
2.1.14
Shareholder & Group Claims
 
means all of the
 
Cedent's current and
 
future claims of
whatsoever
 
nature
 
against
 
the
 
Term/RCF
 
Borrower,
 
whether
 
in
 
the
 
form
 
of
shareholder
 
loans,
 
other
 
intercompany
 
loans,
 
any
 
other
 
form
 
of
 
credit
 
provided
 
or
otherwise, together with the benefit of any
 
Security given to the Cedent in respect of
those claims excluding
 
any present or
 
future loans created
 
pursuant to the
 
Permitted
Cash Management Arrangement;
2.1.15
Shares
 
means all
 
of the
 
shares and
 
securities in
 
the Term/RCF
 
Borrower which
 
the
Cedent
 
is
 
or
 
becomes
 
the
 
owner
 
of
 
from
 
time
 
to
 
time
 
or
 
which
 
may
 
be
 
issued,
transferred,
 
reinstated
 
to
 
or
 
otherwise
 
acquired
 
by
 
it
 
in
 
future,
 
including
 
the
following –
 
2.1.15.1
all the shares of any class in the share capital of the Term/RCF Borrower;
2.1.15.2
all
 
other
 
securities
 
in
 
the
 
capital
 
of
 
the
 
Term/RCF
 
Borrower
 
(including
 
any
capitalisation shares or
 
bonus shares issued
 
in respect of
 
the shares referred
 
to
in clause
 
above); and
2.1.15.3
any
 
securities
 
issued
 
in
 
substitution
 
or
 
exchange
 
for
 
the
 
securities
 
in
 
clauses
 
and
 
above,
including all dividends (whether
 
paid or unpaid), rights
 
to dividends and voting
 
rights
in relation to those shares and securities;
2.1.16
Signature
 
Date
 
means
 
the
 
date
 
of
 
signature
 
of
 
this
 
Agreement
 
by
 
the
 
Party
 
last
signing; and
2.1.17
Term/RCF
 
Borrower
 
means
 
Lesaka
 
Applied
 
Technologies
 
Proprietary
 
Limited,
registration
 
number
 
2002/031446/07, a
 
private
 
company
 
with
 
limited
 
liability
 
duly
incorporated in accordance with the laws of South Africa.
2.2
Construction
2.2.1
Clauses 2.3 (
Construction
) and clause 2.4 (
Third party rights
) of the Common Terms
Agreement are incorporated by
 
reference in this
 
Agreement
mutatis mutandis
on the
basis that references therein to -
2.2.1.1
the
 
Common
 
Terms
 
Agreement
 
are
 
to
 
be
 
construed
 
as
 
references
 
to
 
this
Agreement; and
5
2.2.1.2
Parties are to be construed as the Parties to this Agreement.
 
2.2.2
This
 
Agreement and
 
the
 
rights and
 
obligations of
 
the Parties
 
under this
 
Agreement
shall
 
in
 
all
 
respects
 
be
 
subject
 
to
 
the
 
terms
 
and
 
conditions
 
of
 
the
 
Common
 
Terms
Agreement and in the event of any conflict between the provisions of
 
this Agreement
and
 
the
 
provisions
 
of
 
the
 
Common
 
Terms
 
Agreement,
 
the
 
provisions
 
of
 
this
Agreement shall prevail.
2.2.3
If any amount paid to a Finance Party under a Finance Document is capable of being
avoided
 
or
 
otherwise
 
set
 
aside
 
on
 
the
 
liquidation
 
or
 
administration
 
of
 
the
 
payer
 
or
otherwise,
 
then
 
that
 
amount
 
will
 
not
 
be
 
considered
 
to
 
have
 
been
 
irrevocably
discharged for the purposes of this Agreement.
2.3
Facility Agent
Unless
 
inconsistent
 
with
 
the
 
context
 
or
 
a
 
contrary
 
indication
 
appears,
 
references
 
to
 
the
Facility Agent's written
 
consent, election approval
 
of or any
 
other similar action,
 
decision
or determination in this Agreement shall be to the Facility Agent acting on the instructions
of
 
the
 
applicable Finance
 
Parties
 
in
 
accordance with
 
the
 
terms
 
of
 
the
 
applicable Finance
Documents.
3
BACKGROUND
As Security for
 
the due
 
and punctual payment
 
and performance of
 
the Secured Obligations,
 
the
Cedent has agreed to pledge the Shares
 
and to cede in
securitatem debiti
all the Secured Property
to the Debt
 
Guarantor, on
 
the terms set
 
out in this
 
Agreement. It is recorded
 
that the Term/RCF
Borrower is a Party to this Agreement as obligors' agent.
 
4
PLEDGE AND CESSION IN SECURITY
4.1
Pledge and cession in security
4.1.1
With
 
effect
 
from
 
the
 
Effective
 
Date,
 
the
 
Cedent
 
hereby
 
irrevocably
 
and
unconditionally pledges to
 
the Debt Guarantor all
 
the Shares and cedes
in
securitatem
debiti
to the Debt Guarantor all the Secured Property, as continuing general covering
collateral security for
 
the due, proper
 
and punctual payment
 
and performance in full
of all the
 
Secured Obligations, on the
 
terms set out
 
in this Agreement, which
 
pledge
and cession
in securitatem debiti
the Debt Guarantor accepts.
6
4.1.2
The
 
pledge
 
and
 
cession
in
 
securitatem
 
debiti
 
(as
 
applicable)
 
contemplated
 
in
clause
 
constitutes first ranking Security in favour of
 
the Debt Guarantor in that
it ranks in preference and prior to any other current or future Security.
4.2
Nature of pledge and cession
4.2.1
The
 
pledge
 
and
 
cession
in
 
securitatem
 
debiti
 
contemplated
 
by
 
this
 
Agreement
 
is
intended to operate as a
 
pledge and a cession
 
in securitatem debiti
 
of each part and
 
all
of the Shares and the other Secured Property, individually and collectively.
4.2.2
If,
 
for
 
any
 
reason,
 
any
 
Security
 
intended
 
to
 
be
 
created
 
under
 
this
 
Agreement
 
is
 
or
becomes illegal, invalid or unenforceable in respect of some of the Shares
 
or some of
the Secured Property, the pledge of those Shares and
 
the cession
in securitatem debiti
of
 
that Secured
 
Property shall
 
be severed
 
from this
 
Agreement and
 
this Agreement
and all the Security created
 
over the remainder of the
 
Secured Property shall continue
in full force and effect.
4.2.3
The
 
cession
in
 
securitatem
 
debiti
 
contemplated
 
by
 
this
 
Agreement
 
operates
 
as
 
a
security cession and not as an outright cession and the Cedent retains bare ownership
of its Secured
 
Property, subject to the
 
rights of the
 
Debt Guarantor
 
as secured
 
creditor.
4.3
Cedent remains liable to perform obligations
Notwithstanding any other
 
provision of a
 
Finance Document, the
 
Cedent shall remain
 
liable
to perform all its duties and obligations, whether contractual or otherwise, in respect of the
Shares and
 
Secured Property
 
and nothing
 
in this
 
Agreement or
 
the exercise
 
by a
 
Finance
Party of any right
 
under a Finance Document
 
shall constitute or be
 
deemed to constitute a
delegation to or acceptance by a Finance Party of any obligation
 
of the Cedent or any other
person.
5
DURATION
5.1
This
 
Agreement
 
comes
 
into
 
full
 
force
 
and
 
effect
 
on
 
the
 
Signature
 
Date,
 
and
 
will
 
not
terminate before the Final Discharge Date.
 
5.2
In relation to the Cedent,
 
the Security created by this Agreement -
5.2.1
comes
 
into
 
full
 
force
 
and
 
effect
 
on
 
the
 
Effective
 
Date
 
without
 
any
 
further
 
action,
consent or authority required from any person;
7
5.2.2
unless expressly
 
otherwise agreed
 
by the Facility
 
Agent, shall
 
not terminate before
 
the
Final Discharge Date; and
5.2.3
shall remain
 
of full
 
force and
 
effect, notwithstanding
 
any intermediate
 
discharge or
settlement of, or temporary fluctuation in, the Secured Obligations.
6
REPRESENTATIONS
6.1
The Cedent and the Term/RCF Borrower make -
6.1.1
the
 
representations
 
and
 
warranties
 
set
 
out
 
in
 
this
 
clause
 
(
 
(other
than the representations and warranties set
 
out in clauses
 
and
) as at
the Signature Date; and
6.1.2
the
 
representations and
 
warranties set
 
out in
 
clauses
,
 
and
 
as
 
at the
Effective Date.
6.2
The Finance Parties enter into the Finance Documents
 
on the strength of and relying on the
representations
 
and
 
warranties
 
set
 
out
 
in
 
this
 
clause
,
 
each
 
of
 
which
 
is
 
a
 
separate
representation and
 
warranty, given without
 
prejudice to
 
any other
 
representation or
 
warranty
and
 
is
 
deemed
 
to
 
be
 
a
 
material
 
representation
 
or
 
warranty
 
(as
 
applicable)
 
inducing
 
the
Finance Parties to enter into the Finance Documents.
6.3
Status
6.3.1
In relation
 
to the
 
Cedent, it
 
is a
 
corporation,
 
duly incorporated
 
and validly
 
existing
under the law of its jurisdiction of incorporation.
6.3.2
In
 
relation
 
to
 
the
 
Term/RCF
 
Borrower,
 
it
 
is
 
a
 
limited
 
liability
 
company,
 
duly
incorporated and validly existing under the law of its jurisdiction of incorporation.
6.3.3
It has the power to own its assets and carry on its business as it is being
 
conducted.
6.4
Capacity, powers and authority
6.4.1
It has the
 
legal capacity and
 
power to
 
enter into, perform
 
and deliver,
 
and has taken
all
 
necessary
 
action
 
to
 
authorise
 
its
 
entry
 
into,
 
performance
 
and
 
delivery
 
of,
 
this
Agreement and the transactions contemplated by this Agreement.
6.4.2
No limit on its powers will be exceeded as a
 
result of the granting of the Transaction
Security or giving of indemnities contemplated by this Agreement.
8
6.5
Binding obligations
6.5.1
The
 
obligations
 
expressed
 
to
 
be
 
assumed
 
by
 
it
 
in
 
this
 
Agreement
 
are
 
legal,
 
valid,
binding and enforceable obligations.
6.5.2
This
 
Agreement
 
is
 
in
 
the
 
proper
 
form
 
for
 
its
 
enforcement
 
in
 
the
 
jurisdiction
 
of
 
its
incorporation.
6.5.3
Without
 
limiting
 
the
 
generality
 
of
 
clause
 
above,
 
this
 
Agreement
 
creates
 
the
Security which this
 
Agreement purports
 
to create and
 
those security interests
 
are valid
and effective.
6.6
Non-conflict with other obligations
The
 
entry
 
into
 
and
 
performance
 
by
 
it
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by,
 
this
Agreement and the establishment of Security, do not and will not -
6.6.1
conflict with -
6.6.1.1
any law or regulation applicable to it;
6.6.1.2
its or the constitutional documents of the Term/RCF Borrower;
 
or
6.6.1.3
any
 
agreement
 
or
 
instrument
 
which
 
is
 
binding
 
upon
 
it
 
or
 
the
 
Term/RCF
Borrower or constitute
 
a default or
 
termination event
 
(however described)
 
under
any such agreement or instrument;
 
and/or
6.6.2
cause
 
any
 
negative
 
pledge
 
or
 
other
 
restriction
 
imposed
 
on
 
it
 
to
 
be
 
exceeded
 
or
breached.
6.7
Authorisations
6.7.1
All authorisations -
6.7.1.1
to
 
enable
 
it
 
to
 
lawfully
 
to
 
enter
 
into,
 
exercise
 
its
 
rights
 
and
 
comply
 
with
 
its
obligations under this Agreement;
 
and
6.7.1.2
to make this Agreement admissible in evidence in South Africa,
have been obtained or effected and are in full force and effect.
9
6.7.2
If
 
it
 
is
 
required to
 
give
 
notice to
 
or
 
obtain consents
 
or
 
waivers from
 
any
 
person to
pledge
 
the
 
Shares
 
and
 
cede
 
the
 
Secured
 
Property
 
under
 
this
 
Agreement,
 
all
 
such
notices have been given and consents or waivers obtained before the Signature
 
Date.
6.8
Governing Law and enforcement
6.8.1
The
 
choice
 
of
 
the
 
law
 
stated
 
to
 
be
 
the
 
governing
 
law
 
of
 
this
 
Agreement
 
will
 
be
recognised and enforced in South Africa.
6.8.2
Any judgment obtained in
 
relation to this
 
Agreement in the jurisdiction of
 
the stated
governing law of this Agreement will be recognised and enforced in South Africa.
6.9
Shares and Secured Property
6.9.1
The Shares
 
are and
 
shall remain
 
fully paid
 
up and
 
have been
 
validly allotted
 
and issued
or transferred to it in compliance with all applicable laws and regulations.
 
6.9.2
The Cedent is
 
reflected as the
 
holder of the
 
Shares in respect
 
of which it
 
purports to
grant
 
Security
 
under
 
this
 
Agreement
 
in
 
the
 
securities
 
register
 
of
 
the
 
Term/RCF
Borrower.
6.9.3
The Cedent is the sole legal and beneficial
 
owner of the Secured Property over which
it purports to grant Security under this Agreement to the exclusion of all others.
 
6.9.4
No
 
part
 
of
 
the
 
Secured
 
Property
 
has
 
been
 
pledged,
 
ceded
 
(either
 
outright
 
or
 
as
security),
 
discounted,
 
factored,
 
mortgaged
 
under
 
notarial
 
bond
 
or
 
otherwise,
 
or
otherwise disposed of or hypothecated, nor is it
 
subject to any other right or claim in
favour
 
of
 
any
 
person
 
(including
 
any
 
rights
 
of
 
pre-emption)
 
which
 
would
 
apply
 
on
enforcement by the Debt Guarantor
 
of its rights under
 
this Agreement.
 
If any Secured
Property is subject to any Security in breach of this representation
 
and warranty then,
without
 
prejudice
 
to
 
any
 
other
 
rights
 
that
 
the
 
Debt
 
Guarantor
 
may
 
have,
 
any
reversionary or other interests
 
the Cedent may have
 
in the said
 
Secured Property are
also ceded
in securitatem debiti
 
to the Debt Guarantor.
 
6.9.5
The
 
Secured
 
Property is
 
not
 
subject
 
to
 
any right
 
of
 
retention
 
or
 
other limitation
 
or
encumbrance, other than contemplated
 
in this Agreement, and may
 
be pledged and/or
ceded
in securitatem debiti
 
by the Cedent in terms hereof without any limitation.
10
6.9.6
No
 
person
 
has
 
an
 
option
 
or
 
right
 
of
 
refusal
 
over
 
the
 
Secured
 
Property
 
or
 
any
 
part
thereof which would apply on enforcement by the
 
Debt Guarantor of its rights under
this Agreement.
 
6.9.7
No right of pre-emption
 
or option exists or,
 
if such right or
 
option exists, it has been
or
 
will,
 
in
 
all
 
other
 
instances
 
(for
 
so
 
long
 
as
 
the
 
Shares
 
are
 
pledged
 
and
 
Secured
Property
 
is
 
ceded
in
 
securitatem
 
debiti
 
in
 
terms
 
hereof)
 
be
 
unconditionally
 
and
unequivocally waived by
 
the relevant holders
 
thereof to the
 
satisfaction of the
 
Facility
Agent.
6.10
Repetition
The representations
 
and warranties
 
set out
 
in this
 
clause
 
(
 
made by
 
the
Cedent are deemed to be repeated by reference to the facts and circumstances then
 
existing
on the date
 
of each Utilisation Request, the
 
date of each Utilisation
 
and on the first
 
day of
each Interest Period until the Final Discharge Date.
7
UNDERTAKINGS BY THE CEDENT
7.1
General
The
 
Cedent
 
is
 
bound
 
by
 
the
 
undertakings
 
set
 
out
 
in
 
this
 
clause
 
(
 
relating to
 
it. The
 
undertakings in
 
this clause
 
(
 
remain
in force from the Effective Date until the Final Discharge Date.
7.2
Negative pledge
The Cedent –
 
7.2.1
shall not -
7.2.1.1
grant any further Security over any Secured Property; or
7.2.1.2
enter into a single transaction or a series of transactions (whether related or not
and
 
whether
 
voluntary
 
or
 
involuntary)
 
to
 
sell,
 
lease,
 
licence,
 
transfer
 
or
otherwise dispose of any Secured Property,
without the prior written consent of the Debt Guarantor; and
7.2.2
must
 
at
 
all
 
times
 
keep
 
its
 
Secured
 
Property
 
free
 
of
 
judicial
 
attachments
 
and
 
other
Security.
11
7.3
Preservation of Secured Property
7.3.1
The Cedent shall –
 
7.3.1.1
do no wilful act or
 
suffer any wilful omission, and
 
will not wilfully permit any
other person to do any act or suffer any omission, which is intended to have
 
the
effect
 
of
 
diminishing
 
or
 
adversely
 
affecting
 
the
 
rights
 
of
 
the
 
Debt
 
Guarantor
hereunder
 
or
 
the
 
value
 
or
 
effectiveness
 
of
 
the
 
Security
 
conferred
 
by
 
this
Agreement;
7.3.1.2
not permit any
 
depreciation of the
 
value of, or
 
a variation of
 
rights relating to,
the Secured Property or
 
any of them to
 
occur without the prior
 
written consent
of the Debt Guarantor;
7.3.1.3
not
 
to take
 
or
 
omit to
 
take any
 
action which
 
could reasonably
 
be expected
 
to
adversely affect
 
the rights
 
of the
 
Debt Guarantor
 
under this
 
Agreement or
 
the
effectiveness of the Security created by this Agreement;
7.3.1.4
take all
 
appropriate steps required
 
from time
 
to time
 
for the
 
care, preservation
and
 
protection
 
of
 
the
 
Secured
 
Property
 
and
 
the
 
rights
 
of
 
the
 
Debt
 
Guarantor
under this Agreement; and
7.3.1.5
timeously
 
comply
 
in
 
full
 
with
 
all
 
its
 
obligations
 
in
 
respect
 
of
 
the
 
Secured
Property, from time to time.
7.3.2
The Cedent
 
waives for
 
the benefit of
 
the Debt Guarantor
 
any and all
 
rights it
 
may have
in respect of the Secured Property
 
which conflict with or may
 
restrict the rights of the
Debt Guarantor under this Agreement.
7.4
Amendments
The Cedent undertakes that it shall
 
not allow the amendment of the
 
Term/RCF Borrower's
memorandum of incorporation, other than as permitted in the Finance Documents.
7.5
Shares
The Cedent shall
 
not allow any
 
alteration to
 
the authorised or
 
issued share capital
 
(including
the issue
 
of any
 
new shares)
 
of the
 
Term/RCF
 
Borrower other
 
than the
 
issue of
 
any new
shares that
 
are subject
 
to Security
 
in terms
 
of this
 
Agreement and
 
that constitutes
 
a Permitted
Share Issue.
12
8
PERFECTION AND DELIVERY OF DOCUMENTS
8.1
General
The
 
documents
 
set
 
out
 
in
 
clauses
 
(
 
and
 
(
 
must be delivered to the Facility Agent as follows –
8.1.1
in respect of
 
any Shares
 
and Secured
 
Property held
 
as at
 
the Effective Date,
 
by no
 
later
than the Effective Date; and
8.1.2
in
 
respect
 
of
 
any Shares
 
and
 
Secured
 
Property acquired
 
after the
 
Effective
 
Date or
otherwise arising before
 
the Final Discharge
 
Date,
 
by no later
 
than 2 Business
 
Days
after the date of such acquisition; and
8.2
Shares and Shareholder & Group Claims
The Cedent shall deliver
 
to the Facility Agent
 
in respect of all
 
its Shares and Shareholder
 
&
Group Claims –
 
8.2.1
the original share certificates in respect of those Shares;
 
8.2.2
share transfer forms
 
in respect of
 
those Shares, undated
 
and duly signed
 
by the Cedent
as transferor and left blank as to transferee; and
8.2.3
a copy of the resolutions of the director(s) of the Term/RCF Borrower approving any
transfer
 
of
 
Shares
 
and
 
Shareholder & Group Claims
 
pursuant
 
to
 
this
 
Agreement,
substantially in the form of
, or any other form acceptable to
 
the Facility
Agent.
 
8.3
Secured Account
The Cedent must deliver to
 
the Facility Agent,
 
in respect of the Secured Account,
 
a copy of
a notice
 
to Rand
 
Merchant Bank,
 
a division
 
of FirstRand
 
Bank Limited,
 
of the
 
cession
in
securitatem
 
debiti
 
of
 
the
 
Secured
 
Account
 
under
 
this
 
Agreement,
 
together
 
with
 
an
acknowledgement of
 
that notice
 
signed by
 
Rand Merchant
 
Bank, a
 
division of
 
FirstRand
Bank Limited, in
 
each case substantially
 
in the form
 
of
 
or in such
 
other form
as the Facility Agent may agree.
13
8.4
Other requirements
8.4.1
The Cedent
 
shall deliver to
 
the Facility
 
Agent, within 5
 
Business Days of
 
request, a
list of the Secured Property as
 
at the date of that
 
request, which list shall be certified
true and correct
 
by a director
 
of the Cedent
 
and shall describe
 
each part of
 
the Secured
Property
 
in
 
reasonable
 
detail,
 
and
 
shall
 
in
 
particular,
 
in
 
respect
 
of
 
the
 
Secured
Account,
 
set
 
out
 
the
 
name
 
of
 
the
 
account
 
bank,
 
the
 
account
 
number
 
and
 
the
 
latest
available balance of monies standing to the credit or debit of the Secured
 
Account.
 
8.4.2
If
 
any
 
Secured
 
Property,
 
or
 
part
 
thereof,
 
is
 
evidenced by
 
a
 
document, or
 
when the
Cedent holds Security
 
for any obligation
 
owed to it
 
in respect of
 
Secured Property
 
and
that
 
Security
 
is
 
evidenced
 
by
 
a
 
document,
 
the
 
Cedent
 
shall,
 
at
 
the
 
request
 
of
 
the
Facility Agent deliver a
 
certified copy of that
 
document to the Facility
 
Agent within 5
Business Days of request thereof.
8.4.3
In addition to the documents
 
referred to above, the Cedent
 
shall deliver to the Facility
Agent
 
any other
 
documents relating
 
to
 
the
 
Secured Property
 
for
 
which the
 
Facility
Agent may at any time call,
 
which documents must be delivered to
 
the Facility Agent
within a period as agreed between
 
the Facility Agent and the Cedent
 
and, failing such
agreement, within 5 Business Days.
8.4.4
The Facility Agent
 
may retain possession
 
of all documents
 
delivered to it
 
under this
clause
 
(
 
and deal
 
with them
 
in accordance
with the Finance Documents until the Final Discharge Date, after
 
which they shall be
returned to the Cedent as soon as reasonably possible.
9
CONSENT AND ACKNOWLEDGEMENT OF SECURITY
It is recorded that the Term/RCF
 
Borrower and the Cedent are both Party to
 
this Agreement and
accordingly -
9.1
the Term/RCF Borrower hereby –
9.1.1
confirms its consent to, and acknowledges and agrees that -
9.1.1.1
the Cedent has,
inter alia
, pledged all its Shares and ceded
in securitatem debiti
all its Secured Property to the Debt Guarantor; and
9.1.1.2
with effect
 
from the
 
date on
 
which the
 
Debt Guarantor notifies
 
the Term/RCF
Borrower in writing that
 
an Event of Default
 
has occurred and
 
is continuing and
14
thereafter
 
until
 
otherwise
 
notified
 
by
 
the
 
Debt
 
Guarantor,
 
the
 
Cedent
 
hereby
irrevocably
 
instructs
 
and
 
authorises
 
the
 
Term/RCF
 
Borrower
 
to
 
make
 
all
payments to be
 
made to the
 
Cedent in respect
 
of its Shares
 
and Secured Property
directly to the Debt Guarantor by payment into any bank account
 
nominated by
the Debt Guarantor in writing;
 
9.2
the
 
Cedent
 
hereby
 
agrees
 
that
 
the
 
Term/RCF
 
Borrower
 
may
 
comply
 
with
 
clause
without any further permission from the Cedent and without
 
any enquiry by the Term/RCF
Borrower as to the justification for or validity of any request, notice
 
or instruction; and
9.3
the Term/RCF Borrower -
9.3.1
confirms that it has not received notice of the interest of any third party in the Shares
and Secured Property;
 
9.3.2
irrevocably and
 
unconditionally undertakes that,
 
in the
 
event of
 
the Debt
 
Guarantor
exercising
 
its
 
rights
 
under
 
this
 
Agreement
 
(including
 
but
 
not
 
limited
 
to
 
clause
 
(
)), it will -
9.3.2.1
give effect thereto
 
and perform
 
its obligations
 
in relation
 
to the
 
Secured Property
to and in favour of the Debt Guarantor; and
9.3.2.2
recognise
 
any
 
person
 
to
 
whom
 
the
 
Shares
 
and/or
 
Secured
 
Property
 
are
 
to
 
be
transferred and approve the transfer to that person.
10
RIGHTS OF THE CEDENT BEFORE AN EVENT OF DEFAULT
10.1
Shares and Secured Property
10.1.1
Subject to clause
, the Cedent is entitled, at its own cost, to –
10.1.1.1
enforce and
 
receive payment
 
for,
 
delivery of
 
or
 
performance in
 
respect of
 
all
amounts or obligations owing in
 
respect of the Secured Property
 
in the ordinary
course
 
of
 
business
 
and,
 
subject
 
to
 
the
 
Finance
 
Documents,
 
to
 
appropriate
amounts so recovered to its
 
own use, including any dividends
 
or other benefits
in respect of its Shares;
10.1.1.2
receive
 
notice
 
of
 
every
 
general
 
meeting
 
of
 
shareholders
 
of
 
the
 
Term/RCF
Borrower (provided that each such
 
notice is to be forwarded
 
to each of the Debt
15
Guarantor
 
and
 
Facility
 
Agent
 
as
 
if
 
it
 
were
 
a
 
shareholder
 
of
 
the
 
Term/RCF
Borrower); and
10.1.1.3
attend every
 
general meeting
 
of the
 
shareholders of
 
the Term/RCF
 
Borrower,
and exercise all
 
the votes attaching
 
to the Shares
 
at such meetings
 
(provided that
it will not exercise those votes
 
in a manner which is reasonably likely
 
to (a) be
prejudicial
 
to
 
the
 
validity
 
or
 
enforceability
 
of
 
this
 
Agreement;
 
(b)
 
materially
impair the value
 
of any Shares;
 
(c) permit any
 
variation of rights
 
other than in
accordance
 
with
 
the
 
Finance
 
Documents;
 
or
 
(d)
 
be
 
otherwise
 
materially
prejudicial to the Debt Guarantor or the other Finance Parties).
10.1.2
If an
 
Event of
 
Default has
 
occurred and
 
is continuing,
 
all of
 
the rights,
 
powers and
privileges attaching to
 
the Secured Property,
 
including those set
 
out in clause
above, shall vest
 
in the Debt
 
Guarantor with the
 
power to exercise
 
them either in
 
its
own name or in the name
 
of the Cedent or,
 
if the Debt Guarantor so directs
 
upon the
occurrence of an
 
Event of Default
 
which has occurred and
 
is continuing, the
 
Cedent
shall exercise the Debt Guarantor's rights, powers and privileges in its own
 
name and
to the greatest extent permitted by applicable law.
10.2
General
10.2.1
Without
 
detracting
 
from
 
this
 
clause
 
(
, the Debt Guarantor is not obliged to −
10.2.1.1
perform any obligation of the Cedent;
10.2.1.2
make any payment,
 
or to make
 
any enquiry as
 
to the nature
 
or sufficiency of any
payment received by it or the Cedent;
 
or
10.2.1.3
present
 
or
 
file
 
any
 
claim
 
or
 
take
 
any
 
other
 
action
 
to
 
collect
 
or
 
enforce
 
the
payment of any amount to which it may be entitled under this Agreement,
in respect of the Secured Property.
11
ENFORCEMENT
11.1
Realisation
If
 
an
 
Event
 
of
 
Default has
 
occurred and
 
is
 
continuing, the
 
Debt Guarantor
 
may,
 
without
prejudice to
 
any other
 
rights it may
 
have against
 
the Cedent,
 
exercise its
 
rights under
 
this
16
clause
 
(
,
 
and
 
otherwise
 
put
 
into
 
force
 
and
 
effect
 
all
 
rights,
 
powers
 
and
remedies available
 
to
 
it
 
in relation
 
to
 
the
 
Secured Property,
 
in
 
such manner
 
and on
 
such
terms and conditions as it
 
in its sole discretion considers most
 
expedient. Without limiting
the foregoing, if an Event of Default has occurred and is continuing, the Debt Guarantor or
its
 
nominee
 
may,
 
and
 
the
 
Cedent
 
hereby
 
irrevocably
 
and
 
unconditionally
 
authorises
 
and
empowers
 
the
 
Debt
 
Guarantor or
 
its
 
nominee, and
 
appoints it
in
 
rem
 
suam
,
 
without
 
any
further authority or
 
consent of any
 
nature whatsoever
 
required from any
 
person, in the
 
name
of the Debt Guarantor or its nominee or in the name of the Cedent to -
11.1.1
exercise
 
all
 
or
 
any
 
of
 
the
 
rights,
 
powers
 
and
 
privileges
 
and
 
enforce
 
all
 
or
 
any
obligations attaching to the Secured Property (or any of
 
them) in such manner and on
such terms as the Debt Guarantor in its sole discretion deems fit;
 
11.1.2
receive
 
payment
 
for,
 
delivery
 
of,
 
and/or
 
performance
 
in
 
respect
 
of,
 
the
 
Secured
Property (or any of them) in its own name or that of its nominee;
 
11.1.3
authorise any officer of the Debt ▇▇▇▇▇▇▇▇▇ (whose appointment need not be proved)
to sign,
 
on behalf
 
of and
 
in the
 
name of
 
the Cedent,
 
any share
 
transfer form
 
or any
other document that may be
 
necessary to give effect
 
to any disposal or
 
realisation of
the
 
Secured
 
Property
 
(or
 
any
 
of
 
them)
 
by
 
the
 
Debt
 
Guarantor
 
under
 
this
 
clause
 
(
;
 
11.1.4
claim
 
and
 
receive
 
payment
 
of
 
the
 
amount
 
standing
 
to
 
the
 
credit
 
of
 
the
 
Secured
Account;
11.1.5
at the election of the Debt Guarantor -
11.1.5.1
sell or
 
otherwise realise all
 
or some
 
of the
 
Secured Property by
 
public auction
or private treaty;
11.1.5.2
take over all or some of the Secured Property at Fair Value (as defined below),
and for the
 
purposes of
 
clause
 
above, the
Fair Value
 
of any Secured
 
Property
will be
 
the
 
value agreed
 
in writing
 
between the
 
Debt Guarantor
 
and the
 
Cedent or,
failing
 
agreement
 
within
 
5 Business
 
Days
 
after
 
delivery
 
of
 
a
 
notice
 
to
 
the
 
Cedent
stating that the Debt Guarantor intends to
 
exercise its rights under this clause
,
the value determined by an appropriate employee of an independent investment bank
agreed
 
to
 
by
 
the
 
Debt
 
Guarantor
 
and
 
the
 
Cedent
 
or,
 
failing
 
agreement
 
within
 
5
Business Days, appointed, at the request of any of the Debt
 
Guarantor or the Cedent,
17
by
 
the
 
President
 
for
 
the
 
time
 
being
 
of
 
the
 
South
 
African
 
Institute
 
of
 
Chartered
Accountants, or
 
the successor
 
body thereto,
 
which person
 
shall act
 
as an
 
expert and
not as an
 
arbitrator, shall be
 
instructed to make
 
their determination
 
within 10 Business
Days
 
after
 
being
 
requested
 
to
 
do
 
so,
 
provided that
 
if
 
a
 
determination is
 
manifestly
unjust and a
 
court exercises its
 
general power,
 
if any,
 
to correct
 
such determination,
all
 
the
 
Parties
 
shall
 
be
 
bound
 
thereby.
 
The
 
Cedent
 
shall
 
be
 
liable
 
for
 
any
 
charges
incurred in the
 
determination of the Fair
 
Value
 
and if the
 
Debt Guarantor or Facility
Agent
 
has
 
paid
 
the
 
charges
 
of
 
determining
 
the
 
Fair
 
Value,
 
such
 
charges
 
shall
 
be
recoverable from the Cedent on demand;
 
11.1.6
institute
 
any
 
legal
 
proceedings
 
which
 
the
 
Debt
 
Guarantor
 
may
 
deem
 
necessary
 
in
connection
 
with
 
any
 
sale,
 
purchase
 
or
 
other
 
realisation
 
or
 
transfer
 
of
 
any
 
of
 
the
Secured Property and to
 
prosecute such proceedings
 
to their final end
 
and conclusion,
including the
 
prosecution of
 
such appeals
 
and reviews
 
as
 
the Debt
 
Guarantor in
 
its
discretion may determine;
 
11.1.7
compromise any of the
 
Secured Property, grant
 
any extension or other indulgence in
respect of
 
the Secured
 
Property,
 
agree to
 
amend the
 
terms of
 
the Secured
 
Property,
and/or release any
 
security, guarantee
 
or suretyship held for
 
the Secured Property or
waive any right which relates to or constitutes part of the Secured Property;
 
11.1.8
give transfer
 
of and
 
convey valid
 
title in
 
any Secured
 
Property to
 
any person
 
(including
the Debt Guarantor or any other Finance Party); and/or
 
11.1.9
take all such
 
further or other
 
steps as the
 
Debt Guarantor may
 
consider necessary to
deal
 
with
 
the
 
Secured
 
Property
 
(or
 
any
 
of
 
them)
 
in
 
order
 
to
 
give
 
effect
 
to
 
this
Agreement.
11.2
Undertakings by the Cedent in respect of realisation
On
 
the
 
Debt
 
Guarantor
 
taking
 
any
 
action
 
under
 
clause
 
(
 
above,
 
or
otherwise
 
as
 
required
 
by
 
the
 
Debt
 
Guarantor
 
if
 
an
 
Event
 
of
 
Default
 
has
 
occurred
 
and
 
is
continuing, the Cedent shall on demand by the Debt Guarantor –
11.2.1
give notice to
 
all persons required
 
by the Debt
 
Guarantor that payment
 
for, delivery
of
 
or
 
performance in
 
respect of
 
the relevant
 
Secured Property
 
must be
 
made to
 
the
Debt Guarantor and
 
that payment, delivery
 
or performance to
 
the Cedent or to
 
anyone
else
 
will
 
not
 
constitute
 
valid
 
payment,
 
delivery
 
or
 
performance,
 
and
 
the
 
Debt
18
Guarantor shall be
 
entitled to
 
do likewise. The
 
Cedent shall on
 
demand by the
 
Debt
Guarantor provide proof that such notification has been duly given;
11.2.2
refuse to accept any payment, delivery,
 
or performance tendered in respect of
 
any of
the
 
Secured
 
Property
 
and
 
order
 
that
 
such
 
payment,
 
delivery
 
or
 
performance
 
be
tendered to the Debt Guarantor;
11.2.3
forthwith pay over or deliver to the Debt Guarantor
 
any interest, dividend, negotiable
instruments or other monetary
 
benefits of any nature
 
accrued or received in
 
respect of
the Secured Property after the date
 
of an Event of Default
 
which has occurred and is
continuing by depositing the
 
same into any bank
 
account in South Africa
 
nominated
by the Debt Guarantor;
11.2.4
deliver
 
to
 
the
 
Debt
 
Guarantor
 
any
 
property
 
which
 
the
 
Cedent
 
acquires
 
or
 
which
accrues to it in connection with the Secured Property;
11.2.5
at its own cost, carry out
 
any lawful directions the
 
Debt Guarantor may give in
 
regard
to
 
the
 
realisation
 
of
 
the
 
Secured
 
Property
 
and
 
sign
 
any
 
document
 
or
 
do
 
any
 
other
lawful act necessary
 
to (a) vest
 
the Secured Property
 
in the Debt
 
Guarantor; (b) enable
any sale, purchase
 
or other realisation
 
or transfer of
 
Secured Property,
 
or (c) perfect
and
 
complete
 
(to
 
the
 
extent
 
necessary)
 
the
 
pledge
 
and
 
the
 
cession
 
of
 
any
 
Secured
Property under this Agreement.
11.3
No obligation on the Debt Guarantor
Notwithstanding anything to the contrary contained in this Agreement, the Debt Guarantor
shall
 
not
 
be
 
obliged
 
to
 
take
 
any
 
steps
 
to
 
preserve,
 
protect,
 
collect,
 
recover
 
or
 
otherwise
enforce its rights under or in respect of the Secured Property.
12
APPROPRIATION OF PROCEEDS
The Debt Guarantor shall
 
apply the net
 
proceeds of all
 
amounts received pursuant to
 
the sale or
other realisation of Secured Property or from the appropriation of cash amounts
 
which constitute
Secured Property
 
under this
 
Agreement (after
 
deducting all
 
properly evidenced
 
costs and
 
expenses
incurred by the Debt
 
Guarantor in relation to
 
that sale, realisation or
 
appropriation) in reduction
or discharge of the Secured Obligations in such
 
order and in such manner as the Debt Guarantor
deems fit. Any amount remaining thereafter shall be paid to the Cedent within 15 Business Days
of the Final Discharge Date.
19
13
POWER OF ATTORNEY
13.1
If at
 
any time
 
during the
 
term of
 
this Agreement
 
the Debt
 
Guarantor becomes
 
entitled to
exercise its
 
rights under
 
clause
 
(
, the
 
Cedent hereby
 
irrevocably nominates,
constitutes
 
and
 
appoints
 
the
 
Debt
 
Guarantor
 
or
 
its
 
nominee
 
(acting
 
through
 
any
 
of
 
the
directors,
 
general
 
manager
 
or
 
manager
 
for
 
the
 
time
 
being
 
of
 
the
 
Debt
 
Guarantor
 
(or
 
its
nominee) holding
 
office from
 
time to
 
time) with
 
power of
 
substitution, to
 
be its
 
true and
lawful attorney to do
 
all such things which
 
the Cedent is
 
obliged but fails to
 
do under this
Agreement and
 
to complete
 
and sign
 
all such
 
documentation for
 
the purposes
 
of the
 
sale,
assignment, cession, transfer and
 
perfecting of the Debt
 
Guarantor's security,
 
or otherwise
disposing of
 
the Secured
 
Property,
 
or any
 
part thereof or
 
the realisation
 
of the
 
underlying
value in respect thereof, and
 
for all purposes incidental thereto,
 
and the institution of legal
proceedings. The
 
Cedent ratifies
 
and confirms
 
whatever the
 
Debt Guarantor
 
(or its
 
nominee)
does or purports to do under this clause
 
(
.
13.2
The Cedent shall
 
immediately on
 
demand, pay
 
to the Debt
 
Guarantor the
 
amount of
 
all costs
and expenses (including legal fees)
 
incurred by the Debt
 
Guarantor (or its nominee) under
its
 
appointment
 
under
 
this
 
clause
 
(
,
 
and
 
keep
 
the
 
Debt
 
Guarantor
indemnified against any failure or delay in paying those costs or expenses.
14
ADDITIONAL RIGHTS
The
 
rights
 
conferred
 
on
 
the
 
Debt
 
Guarantor
 
by
 
this
 
Agreement
 
are
 
additional
 
to
 
and
 
not
 
in
substitution for or in any way prejudiced by –
14.1
any other rights the
 
Debt Guarantor has, or may
 
at any time in
 
the future have, against
 
the
Cedent or any other person; and
14.2
any other Security
 
held or hereafter
 
to be held
 
by the Debt
 
Guarantor from the
 
Cedent, or
any
 
other
 
person,
 
in
 
connection
 
with
 
the
 
Secured
 
Obligations.
 
The
 
Debt
 
Guarantor
 
may
release any Security held by it without prejudice to its rights under this Agreement.
20
15
CEDENT BOUND NOTWITHSTANDING CERTAIN
 
CIRCUMSTANCES
15.1
The
 
Cedent
 
agrees
 
that
 
with
 
effect
 
from
 
the
 
Signature
 
Date,
 
it
 
will
 
be
 
bound
 
under
 
this
Agreement to the full extent hereof, despite the fact
 
that –
 
15.1.1
any
 
additional
 
Security
 
from
 
the
 
Cedent
 
or
 
any
 
other
 
person
 
for
 
the
 
Secured
Obligations may not be
 
obtained or may
 
be released or may
 
cease to be held for any
other reason;
15.1.2
there
 
is
 
any
 
intermediate
 
discharge
 
or
 
settlement
 
of,
 
or
 
fluctuation
 
in
 
the
 
Secured
Obligations in which event the
 
pledge and cession
in securitatem debiti
 
contained in
this Agreement shall operate as Security for any
 
indebtedness subsequently arising in
favour of the Debt Guarantor in relation to the Secured Obligations;
15.1.3
the Finance Parties may
 
agree any amendment of the Finance
 
Documents (including
any amendment providing for
 
the increase in the amount
 
of a Facility or an
 
additional
facility);
15.1.4
insolvency,
 
administration,
 
business
 
rescue,
 
reorganisation,
 
arrangement,
readjustment
 
of
 
debt,
 
dissolution,
 
liquidation
 
or
 
similar
 
proceedings
 
have
 
been
instituted by or against the Cedent or any other person;
15.1.5
any Finance
 
Party may
 
receive a
 
dividend or
 
benefit in
 
any insolvency,
 
liquidation,
business rescue or any compromise
 
or composition, whether in terms
 
of any statutory
enforcement or the common law;
15.1.6
the Debt Guarantor may grant any indulgences to the
 
Cedent or may not exercise any
one or more of its rights under the Finance Documents, either timeously or
 
at all;
 
or
15.1.7
any other fact
 
or circumstance
 
may arise on which
 
the Cedent
 
might otherwise
 
be able
to rely on a defence based on prejudice, waiver or estoppel.
15.2
If the Cedent suffers
 
any loss arising
 
from any of
 
the facts, circumstances,
 
acts or omissions
referred to above, it will have no claim against any Finance Party in respect
 
thereof.
16
KEEPING, INSPECTION AND DELIVERY OF RECORDS
16.1
The
 
Cedent
 
shall
 
at
 
all
 
times
 
keep
 
up-to-date
 
records
 
of
 
the
 
Secured
 
Property
 
and
 
shall
comply with
 
any reasonable
 
directions the
 
Facility Agent and/or
 
the Debt
 
Guarantor may
give in regard to the keeping of such records.
21
16.2
The Facility Agent,
 
Debt Guarantor or
 
anyone authorised by
 
either the Facility
 
Agent or the
Debt Guarantor may at
 
any time and on
 
reasonable notice inspect
 
any of the Cedent's
 
books
of account
 
and other
 
records including
 
books of
 
account and
 
records of
 
the Secured
 
Property
in the possession of a third party.
16.3
If the Facility Agent or Debt Guarantor at any time so requests, the
 
Cedent shall at its own
cost
 
deliver
 
to
 
the
 
Debt
 
Guarantor
 
or
 
its
 
order
 
certified
 
copies
 
of
 
any
 
of
 
the
 
books
 
and
records referred to in clauses
 
and
 
above.
17
EXEMPTION FROM LIABILITY
A
Finance Party,
 
its officers, trustees, agents, beneficiaries,
 
employees and advisors shall not be
liable for any
 
loss or damage,
 
whether direct, indirect,
 
consequential or otherwise,
 
suffered by the
Cedent howsoever arising in connection with this Agreement, whether
 
that loss or damage arises
as a
 
result of a
 
breach of contract
 
(whether total, fundamental
 
or otherwise), delict
 
or any
 
other
cause and whether this Agreement has been
 
terminated or not, other than as
 
a result of the gross
negligence or wilful
 
misconduct of
 
that Finance
 
Party. The provision of
 
this clause
 
(
 
constitute a stipulation for the benefit of
 
the Finance Parties capable of acceptance
at any time.
18
CHANGES TO THE PARTIES
18.1
Transfers by the Debt Guarantor
18.1.1
The Debt Guarantor may cede
 
any of its rights and/or
 
delegate any of its
 
obligations
under this Agreement
 
to any person
 
to whom
 
it cedes any
 
of its rights
 
and/or delegates
any of its
 
obligations under the
 
Finance Documents. The
 
Cedent and the
 
Term/RCF
Borrower
 
agree
 
to
 
co-operate
 
and
 
take
 
all
 
such
 
steps
 
as
 
the
 
Debt
 
Guarantor
 
may
reasonably request to give effect to any such cession or delegation.
18.1.2
The Cedent and the Term/RCF
 
Borrower agree to any splitting
 
of claims which may
arise from such a cession and/or delegation.
18.2
Transfers by the Cedent
The
 
Cedent
 
may
 
not
 
cede any
 
of
 
its rights
 
nor
 
delegate
 
any of
 
its
 
obligations under
 
this
Agreement.
22
18.3
Transfers by the Term/RCF
 
Borrower
The Term/RCF
 
Borrower may not cede any of its rights nor
 
delegate any of its obligations
under this Agreement
18.4
Changes to Facility Agent
The
 
Facility
 
Agent
 
shall
 
be
 
entitled
 
to
 
cede,
 
delegate
 
and/or
 
transfer
 
its
 
rights
 
and/or
obligations
 
under
 
this
 
Agreement
 
in
 
accordance
 
with
 
the
 
applicable
 
provisions
 
of
 
the
Common
 
Terms
 
Agreement
 
and
 
any
 
Intercreditor
 
Agreement
 
and
 
the
 
Cedent,
 
the
Term/RCF
 
Borrower and Debt
 
Guarantor hereby irrevocably
 
and unconditionally consent
to any splitting of rights or claims which may arise from such a cession
 
and transfer.
19
NOTICES
19.1
The Parties select as their respective
▇▇▇▇▇▇▇▇▇ citandi et executandi
 
the physical addresses
contemplated
 
in
 
clause
 
34.2
 
(
Addresses
)
 
of
 
the
 
Common
 
Terms
 
Agreement,
 
and
 
for
 
the
purposes of giving
 
or sending any
 
notice provided for
 
or required under
 
this Agreement, the
said physical addresses as well as the email addresses contained therein.
19.2
The provisions
 
of clause 34
 
(
Notices
) of
 
the Common Terms
 
Agreement are incorporated
by reference herein,
mutatis mutandis
, as if repeated herein in full in this
 
Agreement on the
basis that references therein to -
19.2.1
Finance
 
Documents
 
and/or
 
the
 
Common
 
Terms
 
Agreement
 
shall
 
be
 
construed
 
as
references to this Agreement; and
19.2.2
Parties shall be construed as references to the Parties to this Agreement.
20
GENERAL
20.1
Further Assurances
The Cedent shall generally
 
promptly do everything that
 
may be required in order
 
to comply
with its
 
obligations under
 
this Agreement
 
and as
 
may otherwise
 
be required
 
by the
 
Debt
Guarantor or
 
the Facility
 
Agent, for
 
the purposes
 
of and
 
to give
 
effect to
 
this Agreement,
failing which the Debt
 
Guarantor or the Facility Agent,
 
may,
 
to the extent possible, attend
thereto
 
on
 
behalf
 
of
 
the
 
Cedent
 
and
 
recover
 
on
 
demand
 
from
 
the
 
Cedent
 
any
 
expenses
incurred in relation thereto.
 
In particular the
 
Cedent shall execute and
 
do all such acts
 
and
23
things
 
as
 
the
 
Debt
 
Guarantor
 
or
 
the
 
Facility
 
Agent,
 
in
 
their
 
reasonable
 
discretion,
 
may
require –
20.1.1
to perfect
 
or protect
 
the Security
 
created (or
 
intended to
 
be created)
 
by this
 
Agreement;
 
20.1.2
to preserve
 
or protect
 
any of
 
the rights
 
of the
 
Debt Guarantor
 
or the
 
Facility Agent
under this Agreement;
 
20.1.3
to
 
enforce
 
any
 
Security
 
created
 
under
 
this
 
Agreement
 
on
 
or
 
at
 
any
 
time
 
after
 
it
becomes enforceable;
 
20.1.4
for the exercise of any power, authority or discretion vested in the Debt Guarantor or
the Facility Agent under this Agreement;
 
20.1.5
to carry out the effect, intent and purpose of this Agreement,
 
in any
 
such case,
 
forthwith upon
 
demand by
 
the Debt
 
Guarantor or
 
the Facility
 
Agent, to
the maximum extent permitted by law and at the expense of the Cedent.
20.2
Sole Agreement
20.2.1
This Agreement
 
constitutes the
 
sole record
 
of the
 
agreement between
 
the Parties
 
in
regard to the subject matter hereof.
20.2.2
This Agreement supersedes and replaces
 
any and all agreements
 
between the Parties
(and other
 
persons, as may
 
be applicable) and
 
undertakings given to
 
or on
 
behalf of
the Parties (and other persons, as
 
may be applicable) in relation to
 
the subject matter
hereof.
20.3
No implied terms
No Party shall be bound by any express or implied term, representation, warranty, promise
or the like, not recorded in this Agreement.
20.4
Variations to be in writing
No
 
addition
 
to
 
or
 
variation,
 
deletion,
 
or
 
agreed
 
cancellation
 
of
 
all
 
or
 
any
 
clauses
 
or
provisions of this Agreement will be of
 
any force or effect unless in
 
writing and signed by
the Parties.
24
20.5
Costs and Expenses
The
 
Term/RCF
 
Borrower
 
shall
 
pay
 
to
 
the
 
Debt
 
Guarantor
 
and/or
 
the
 
Facility
 
Agent
 
the
amount of all costs and expenses (including legal fees
 
on the scale as between attorney and
own
 
client,
 
whether
 
incurred
 
before
 
or
 
after
 
judgment)
 
incurred
 
by
 
the
 
Debt
 
Guarantor
and/or the Facility Agent in connection with the enforcement of, or the preservation of any
rights under, this Agreement.
20.6
Certificates and Determinations
Any
 
certification
 
or
 
determination
 
by
 
the
 
Debt
 
Guarantor
 
or
 
Facility
 
Agent
 
of
 
a
 
rate
 
or
amount
 
under
 
any
 
Finance
 
Document
 
is,
 
in
 
the
 
absence
 
of
 
manifest
 
error,
prima
 
facie
evidence of the matters to which it relates.
20.7
Partial Invalidity
If, at any
 
time, any
 
provision of
 
this Agreement
 
is or becomes
 
illegal, invalid,
 
unenforceable
or inoperable in any respect under any law of any jurisdiction,
 
neither the legality, validity,
enforceability
 
or
 
operation
 
of
 
the
 
remaining
 
provisions
 
nor
 
the
 
legality,
 
validity,
enforceability or operation of such provision under the law of any other jurisdiction will in
any way
 
be affected
 
or impaired.
 
The term
inoperable
 
in this
 
clause
 
(
)
shall include, without limitation, inoperable by way of suspension or cancellation.
20.8
Provisions severable
All provisions and
 
the various clauses
 
of this
 
Agreement are, notwithstanding the
 
manner
in
 
which they
 
have
 
been grouped
 
together
 
or
 
linked grammatically,
 
severable from
 
each
other. Any provision or clause of
 
this Agreement which
 
is or becomes unenforceable
 
in any
jurisdiction, whether
 
due to
 
voidness, invalidity,
 
illegality,
 
unlawfulness or
 
for any
 
other
reason
 
whatsoever,
 
shall,
 
in
 
such
 
jurisdiction
 
only
 
and
 
only
 
to
 
the
 
extent
 
that
 
it
 
is
 
so
unenforceable, be
 
treated as
pro
 
non scripto
 
and the
 
remaining provisions
 
and clauses
 
of
this
 
Agreement
 
shall
 
remain
 
of
 
full
 
force
 
and
 
effect.
 
The
 
Parties
 
declare
 
that
 
it
 
is
 
their
intention that
 
this Agreement
 
would be
 
executed without
 
such unenforceable
 
provision if
they were aware of such unenforceability at the time of execution
 
hereof.
20.9
Rights and remedies
20.9.1
No failure to exercise, nor any delay in
 
exercising, on the part of the Debt Guarantor
or
 
the
 
Facility Agent,
 
any right
 
or remedy
 
under this
 
Agreement shall
 
operate as
 
a
25
waiver,
 
nor
 
shall any
 
single or
 
partial
 
exercise
 
of
 
any right
 
or
 
remedy prevent
 
any
further or other exercise
 
or the exercise of
 
any other right or
 
remedy.
 
The rights and
remedies of the Debt Guarantor and the Facility Agent under this Agreement
 
-
20.9.1.1
are cumulative and not exclusive of its rights under the general law;
20.9.1.2
may be exercised as often as the Debt Guarantor or the Facility Agent requires;
and
20.9.1.3
may be waived only in writing and specifically.
20.9.2
Delay in the exercise or non-exercise of any right is not a waiver of
 
that right.
20.10
Extensions and waivers
No latitude, extension
 
of time or
 
other indulgence which
 
may be given
 
or allowed by
 
any
Party to any other
 
Party in respect of the
 
performance of any obligation or
 
enforcement of
any right under this Agreement, and no single or partial exercise of any right by any Party,
shall be
 
construed to
 
be an
 
implied consent
 
by such
 
Party or
 
operate as
 
a waiver
 
or a
 
novation
of, or otherwise affect any
 
of that Party’s rights under or
 
in connection with this
 
Agreement
or
 
estop
 
such
 
Party
 
from
 
enforcing,
 
at
 
any
 
time
 
and
 
without
 
notice,
 
strict
 
and
 
punctual
compliance with each and every provision or term of this Agreement.
20.11
Renunciation of benefits
The Cedent
 
renounces, to
 
the extent
 
permitted under
 
any applicable
 
law, the benefits
 
of each
of the
 
legal exceptions
 
of excussion,
 
division, revision
 
of accounts,
 
no value
 
received,
errore
calculi
,
non causa debiti
,
non numeratae pecuniae
 
and cession of actions, and declares
 
that
it understands the meaning
 
of each such legal
 
exception and the effect
 
of such renunciation.
20.12
Independent advice
Each of
 
the Cedent
 
and the
 
Term/RCF Borrower acknowledges
 
that it
 
has been
 
free to
 
secure
independent legal and other advice
 
as to the nature and effect of
 
all of the provisions of this
Agreement and that
 
it has either
 
taken such independent
 
legal and other
 
advice or dispensed
with
 
the
 
necessity
 
of
 
doing
 
so.
 
Further,
 
the
 
Cedent
 
and
 
the
 
Term/RCF
 
Borrower
acknowledge
 
that
 
all
 
of
 
the
 
provisions
 
of
 
this
 
Agreement
 
and
 
the
 
restrictions
 
therein
contained are part of the overall intention of the Parties in connection
 
with this Agreement.
20.13
Counterparts
26
This Agreement
 
may be
 
executed in
 
any number
 
of counterparts,
 
and this
 
has the
 
same effect
as if the signatures on the counterparts were on a single copy of this Agreement.
21
GOVERNING LAW
This
 
Agreement and
 
any
 
non-contractual obligations
 
arising
 
out
 
of
 
or
 
in
 
connection
 
with
 
it
 
is
governed by South African law.
22
JURISDICTION
22.1
The Parties
 
hereby irrevocably
 
and unconditionally
 
consent to
 
the non-exclusive
 
jurisdiction
of
 
the
 
High
 
Court
 
of
 
South
 
Africa
 
(Gauteng
 
Local
 
Division,
 
Johannesburg)
 
(or
 
any
successor to that division) in regard to all matters arising from this Agreement (including a
dispute
 
relating
 
to
 
the
 
existence,
 
validity
 
or
 
termination
 
of
 
this
 
Agreement
 
or
 
any
 
non-
contractual obligation arising out of or in connection with this Agreement) (
Dispute
).
22.2
The Parties
 
agree that
 
the courts
 
of South
 
Africa are
 
the most
 
appropriate and convenient
courts to settle Disputes.
 
The Parties agree not to argue to the contrary and waive
 
objection
to this court
 
on the grounds of
 
inconvenient forum or otherwise
 
in relation to
 
proceedings
in connection with this Agreement.
22.3
Clause
 
(
 
is for the benefit of the Debt Guarantor and the Facility Agent. As
a result,
 
neither the Debt
 
Guarantor nor the
 
Facility Agent shall
 
be prevented from
 
taking
proceedings relating to a Dispute
 
in any other court with
 
jurisdiction. To the extent allowed
by law, the Debt Guarantor and the Facility Agent may take concurrent proceedings in any
number of jurisdictions.
 
 
27
ANNEXURE
 
A
 
- FORM OF RESOLUTION
RESOLUTIONS PASSED BY THE WRITTEN CONSENT OF THE [SOLE] DIRECTOR[S]
OF LESAKA TECHNOLOGIES PROPRIETARY LIMITED (REGISTRATION NUMBER
2002/031446/07)
 
(the "Company")
WHEREAS –
Lesaka
 
Technologies,
 
Inc
 
(
Cedent
)
 
has
 
concluded
 
or
 
will
 
conclude
 
a
 
written
 
pledge
 
and
 
cession
 
in
security
 
(as
 
amended,
 
restated,
 
supplemented
 
and/or
 
replaced
 
from
 
time
 
to
 
time)
 
(the
Pledge
 
and
Cession in Security
) with,
inter alios
, Bowwood and
 
Main No 408
 
(RF) Proprietary Limited
 
(the
Debt
Guarantor
) and FirstRand
 
Bank Limited (acting through
 
its Rand Merchant Bank
 
division) (as facility
agent).
Unless otherwise defined herein, words and expressions defined in the Pledge and Cession in Security
have the meaning when used herein.
Under
 
the
 
Pledge
 
and
 
Cession
 
in
 
Security,
 
the
 
Cedent,
inter
 
alia,
pledges
 
the
 
Shares
 
and
 
cedes
in
securitatem debiti
 
the Shareholder & Group Claims,
 
to the Debt Guarantor.
 
RESOLVED THAT
 
-
1
RESOLUTION 1
The Company notes and gives its consent to the pledge and cession in security of the Shares and
Shareholder &
 
Group Claims,
 
as applicable,
 
by the Cedent
 
to and
 
in favour
 
of the
 
Debt Guarantor.
2
RESOLUTION 2
The Company consents to any
 
transfer of the Shares
 
and Shareholder & Group Claims
 
pursuant
to any enforcement by the Debt Guarantor of its rights under the Pledge
 
and Cession in Security.
3
RESOLUTION 3
Any director of the Company is hereby authorised to sign any document necessary to give effect
to resolution number 1 and resolution 2 above.
[signatures of all directors]
 
 
 
28
ANNEXURE
 
B
 
- NOTICE TO BANK
To
:
 
FirstRand Bank Limited
(the
Bank
or
 
you
)
[
Insert email address and Attention
]
From
:
 
Lesaka Technologies, Inc (the
Cedent
)
[
Insert email address and Attention
]
And
:
 
Bowwood and Main No 408 (RF) Proprietary Limited (the
Debt Guarantor
)
[
Insert Address and Attention
]
 
Copy
:
 
FirstRand Bank
 
Limited (acting
 
through its
 
Rand Merchant
 
Bank division)
 
(the
Facility
Agent
)
[
Insert Address and Attention
]
 
20
 
Dear all
Notice of cession
in securitatem debiti
1
We
 
refer
 
to
 
the
 
written
 
pledge
 
and
 
cession
 
in
 
security
 
agreement
 
(as
 
amended,
 
restated,
supplemented and/or replaced from time to time) concluded between,
inter alios
, the Cedent and
the Debt Guarantor (
Pledge and Cession in Security
).
2
In this notice,
 
words and expressions
 
defined in the
 
Pledge and Cession
 
in Security have
 
the same
meaning where used in this notice.
 
3
This notice
 
constitutes notice
 
from the
 
Cedent and
 
the Debt
 
Guarantor to
 
you that
 
under the
 
Pledge
and
 
Cession
 
in
 
Security
 
the
 
Cedent
 
has
 
ceded
in
 
securitatem
 
debiti,
in
 
favour
 
of
 
the
 
Debt
Guarantor,
inter alia
, all of
 
its rights and
 
interests in and
 
to the bank
 
account that it
 
maintains with
you
 
under
 
the
 
following
 
account
 
number
 
[●]
 
(including
 
all
 
its
 
claims
 
in
 
respect
 
of
 
amounts
standing to the credit of such bank account from time to time) (the "
Secured Account
").
4
The Cedent hereby irrevocably instructs and authorises you
 
to disclose to the Debt Guarantor
 
or
the
 
Facility Agent
 
any information
 
relating to
 
the Secured
 
Account requested
 
from you
 
by the
Debt Guarantor or the Facility Agent.
5
The Cedent
 
hereby irrevocably instructs
 
and authorises you
 
with effect
 
from the
 
date on
 
which
the Debt
 
Guarantor notifies
 
you in
 
writing that
 
an Event
 
of Default
 
has occurred
 
and is
 
continuing,
and thereafter until otherwise notified by the Debt Guarantor, to –
 
29
5.1
comply with the terms of any
 
written notice or instruction relating to
 
the Secured Account
received by you
 
from the Debt
 
Guarantor or the
 
Facility Agent (acting
 
on behalf of
 
or for
the benefit of the Debt Guarantor);
5.2
hold
 
all
 
sums
 
standing
 
to
 
the
 
credit
 
of
 
the
 
Secured
 
Account
 
to
 
the
 
order
 
of
 
the
 
Debt
Guarantor;
5.3
pay or release any
 
sum standing to
 
the credit of the
 
Secured Account in
 
accordance with the
written instructions of the Debt
 
Guarantor or the Facility Agent (acting
 
on behalf of or for
the benefit of the Debt Guarantor); and
5.4
pay
 
all
 
sums
 
received
 
by you
 
for
 
the
 
account
 
of
 
the
 
Cedent
 
to
 
the
 
credit
 
of
 
the
 
Secured
Account with you.
6
The Cedent acknowledges
 
that you may
 
comply with the
 
instructions in this
 
notice without any
further permission from us
 
and without any
 
enquiry by you as
 
to the justification for
 
or validity
of any request, notice or instruction.
7
The instructions in this notice may
 
not be revoked or amended without
 
the prior written consent
of the
 
Facility Agent
 
(acting on
 
behalf of
 
or for
 
the benefit
 
of the
 
Debt Guarantor)
 
or the
 
Debt
Guarantor.
8
This notice and
 
any non-contractual obligations
 
arising out of
 
or in connection
 
with it is governed
by the laws of South Africa.
Please send a signed version of the acknowledgement attached as schedule 1
 
of this notice confirming
your agreement to the above.
 
 
 
 
 
 
30
Yours
 
faithfully,
For and on behalf of
Lesaka Technologies, Inc
 
(as
Cedent
)
Signature
Name of Signatory
Designation of Signatory
For and on behalf of
Bowwood and Main No 408
(RF) Proprietary Limited
(as
Debt
Guarantor
)
Signature
Name of Signatory
Designation of Signatory
 
 
31
Schedule 1: Form of acknowledgement
PRIVATE
 
AND CONFIDENTIAL
The Cedent:
 
The Cessionary:
 
Date: _____________
Dear Sirs
NOTICE IN RESPECT OF CESSION IN SECURITY ("NOTICE")
1.
We, [RELEVANT
 
BANK], acknowledge receipt of, and refer to, the following
 
documents:
1.1
the
 
written
 
agreement
 
titled
 
"
Pledge
 
and
 
Cession
 
in
 
Security
 
Agreement
"
 
(the
Cession
 
in
Security
) executed by
 
[●] (Registration Number
 
[●]) (the
Cedent
) dated [●]
 
202___ in favour
of [●]
 
(Registration number
 
[●]) (the
Cessionary
) in
 
terms of
 
which,
inter alia
, the
 
Cedent agreed
to cede
in securitatem debiti
 
in favour of the Cessionary all of
 
its rights, title and interests in and
to the bank
 
accounts listed
 
in Schedule 1
 
hereto (
Known Bank Accounts
) and held
 
by them with
[
RELEVANT
 
BANK
], from
 
time to
 
time (
Future Bank
 
Accounts
) (the
 
Known Bank Accounts
and the Future Bank accounts collectively referred to as the
Bank Accounts
); and
1.2
the written notification in respect of the Cession in Security from
 
the Cedent to [
RELEVANT
BANK
], dated [●] 202___ (the
Cedent’s Notice
).
2.
 
Unless specifically
 
defined in this
 
Notice, terms
 
and expressions defined
 
in the Cession
 
in Security
shall
 
bear
 
the
 
same
 
meaning
 
when
 
used
 
herein.
 
For
 
the
 
sake
 
of
 
clarity,
 
notwithstanding
 
the
definition of the “
Secured Property
” in the Cession in Security, the provisions of this Notice shall
only apply in respect of the Bank Accounts.
3.
 
[RELEVANT
 
BANK],
 
hereby
 
consents
 
to
 
the
 
cession
 
of
 
the
 
Bank
 
Accounts
 
in
 
terms
 
of
 
the
Cession in Security,
 
subject to the terms of this Notice. Subject to
 
paragraphs 4 and 5 below,
 
and
following delivery
 
of a
 
written notification
 
purportedly from
 
the Cessionary
 
substantially in
 
the
form of Schedule 2 hereto, in terms of
 
which, amongst other things, the Cessionary confirms that
it has
 
become entitled
 
to enforce
 
its rights
 
under the
 
Cession in
 
Security (the
Enforcement Notice
),
[RELEVANT
 
BANK], undertakes:
3.1
 
in respect
 
of the
 
Known Bank
 
Accounts by
 
0h00 (midnight)
 
on the
 
date that
 
falls 1
 
(one) Business
Day (being a
 
day which is
 
not a
 
Saturday,
 
Sunday or official
 
public holiday in
 
the Republic of
South Africa) (Business Day) following the date of receipt of the Enforcement
 
Notice; and
 
3.2
 
in respect
 
of the
 
Future Bank
 
Accounts, by
 
0h00 (midnight)
 
on the
 
date that
 
falls 2
 
(two) Business
Days following the date of receipt of the Enforcement Notice,
 
(the date and time of
 
the expiration of the above periods referred
 
to as the
Enforcement Date
),
to:
32
3.3
 
comply with the
 
terms of any
 
written notice or
 
instruction relating
 
to the Bank
 
Accounts received
from the Cessionary;
3.4
 
only
 
permit
 
withdrawals
 
from
 
the
 
Bank
 
Accounts
 
with
 
the
 
prior
 
written
 
consent
 
of
 
the
Cessionary;
3.5
 
hold all sums standing to the credit of the Bank Accounts to the order
 
of the Cessionary;
3.6
 
subject
 
to
 
clause
 
5.12,
 
provide
 
the
 
Cessionary
 
with
 
such
 
information
 
concerning
 
the
 
Bank
Accounts as the Cessionary may from time to time require; and
 
3.7
 
pay
 
the
 
Final
 
Balance (as
 
such
 
term
 
is
 
defined in
 
paragraph 5.10
 
below)
 
to
 
the
 
bank
 
account
stipulated in writing by the Cessionary for such purpose.
4.
 
The
 
Cessionary
 
hereby
 
undertakes
 
to
 
address
 
the
 
Enforcement
 
Notice
 
to
 
the
 
following
[
RELEVANT BANK
], representatives at the following email addresses:
4.1
 
[RELEVANT
 
BANK], Corporate Legal – [
INSERT NAME AND EMAIL ADDRESS];
4.2
 
Relationship Manager in respect of the Cedent, [
INSERT NAME AND EMAIL ADDRESS
];
4.3
 
Relationship Analyst in respect of the Cedent, [
INSERT NAME AND EMAIL ADDRESS
];
4.4
 
Credit Evaluation Manager in respect of the Cedent, [
INSERT NAME AND EMAIL ADDRESS
];
or any
 
other person
 
occupying such
 
role/s on
 
the date
 
of the
 
Enforcement Notice, as
 
advised by
[
RELEVANT BANK
], in writing to
 
the Cessionary in terms of
 
paragraph 6.8 below,
 
on request of
the
 
Cessionary,
 
and
 
to
 
deliver
 
same
 
in
 
original
 
duplicate
 
form
 
to
 
[RELEVANT
 
BANK],
 
’s
domicilium address
 
as specified
 
below,
 
including to
 
[RELEVANT
 
BANK], ’s
 
Sandton address.
The requirement
 
to deliver
 
an Enforcement
 
Notice to
 
the persons
 
at the
 
addresses set
 
out in
 
this
Notice, is
 
a requirement
 
for the
 
benefit of
 
[RELEVANT
 
BANK], only.
 
[RELEVANT
 
BANK],
shall be entitled to waive
 
strict conformance with the
 
aforegoing, in its sole discretion
 
and without
notice to the Cessionary and/or Cedent.
5.
 
[RELEVANT
 
BANK], the Cedent and the
 
Cessionary (individually, a
 
Party and collectively,
 
the
Parties) hereby agree and confirm that:
5.1
 
[RELEVANT
 
BANK], shall not
 
be required to
 
verify whether or
 
not the Cessionary
 
is entitled
to enforce its rights under the Cession in Security;
5.2
 
the Cedent, by
 
its signature
 
hereto, expressly
 
consents to
 
the provision
 
by [RELEVANT BANK],
of all
 
such information
 
as may
 
be required
 
in respect
 
of the
 
Bank Accounts
 
to the
 
Cessionary
with effect from the date of signature
 
of this Notice by the Cedent
 
and the Cedent hereby waives
any right of confidentiality (if any)
 
to which it would otherwise
 
have been entitled to in respect
of
 
any
 
disclosure
 
of
 
any
 
statement,
 
notice
 
or
 
information
 
by
 
[RELEVANT
 
BANK],
 
to
 
the
Cessionary in terms hereof;
5.3
 
[RELEVANT
 
BANK],
 
shall
 
not
 
be
 
required
 
to
 
determine
 
the
 
lawfulness
 
or
 
validity
 
of
 
the
Enforcement
 
Notice,
 
the
 
correctness
 
thereof
 
or
 
whether
 
the
 
Enforcement
 
Notice
 
has
 
been
properly authorized or signed by the Cessionary;
5.4
 
[RELEVANT
 
BANK], shall not be required to act on or comply with the Enforcement Notice
 
if
doing
 
so
 
would
 
be
 
in
 
contravention
 
of
 
any
 
law,
 
regulation
 
or
 
requirement
 
of
 
any
 
judicial,
governmental, supervisory
 
or regulatory
 
body,
 
court of
 
law or
 
legal process,
 
it being
 
recorded
that if the
 
aforegoing is applicable
 
at the time
 
of receiving an
 
Enforcement Notice, [RELEVANT
BANK], shall notify the Cessionary accordingly;
5.5
 
it is recorded that by operation
 
of law,
 
[RELEVANT
 
BANK], will suspend the operation of the
Bank Accounts upon it becoming aware that any
 
business rescue proceedings have commenced
in respect of the
 
Cedent, or that an
 
application for the liquidation (whether
 
provisional or final)
of the
 
Cedent, has
 
been lodged
 
and such
 
Bank Accounts
 
shall only
 
be operated
 
by and
 
on the
instructions of the business
 
rescue practitioner or the
 
liquidator (as applicable). If
 
the Cessionary
33
requests in
 
writing as
 
to whether
 
a particular
 
Bank Account
 
has been
 
suspended and
 
provides
[RELEVANT
 
BANK],
 
with
 
the
 
details
 
of
 
such
 
Bank
 
Account,
 
[RELEVANT
 
BANK],
 
shall
notify the Cessionary accordingly;
5.6
 
[RELEVANT
 
BANK], shall not be required to
 
act on or comply with
 
the Enforcement Notice in
relation to (i) the
 
transfer of Final Balances/s
 
into an account nominated
 
by the Cessionary or
 
(ii)
the
 
suspension
 
of
 
the
 
Bank
 
Accounts
 
on
 
or
 
after
 
the
 
date
 
on
 
which
 
any
 
business
 
rescue
proceedings
 
have
 
commenced
 
in
 
respect
 
of
 
the
 
Cedent,
 
or
 
an
 
application
 
for
 
the
 
liquidation
(whether provisional or
 
final) of the
 
Cedent has been
 
lodged unless, (i)
 
[RELEVANT
 
BANK],
receives consent from the business rescue practitioner of the Cedent, or
 
(ii) it is instructed to do
so by the business rescue practitioner
 
or the liquidator or (iii) it is
 
instructed to do so by a
 
court
order;
5.7
 
the Cedent
 
undertakes to
 
inform all
 
the relevant
 
individuals listed
 
in paragraph
 
4 above,
 
if the
Cedent becomes subject to liquidation proceedings;
5.8
 
[RELEVANT
 
BANK], shall
 
not be
 
obliged to
 
voluntarily become party
 
and/or to
 
join itself
 
to
any claim or
 
dispute of any nature
 
which any party (including,
 
inter alia, the
 
Cedent and/or the
Cessionary) may allege;
5.9
 
notwithstanding
 
any
 
other
 
provision
 
hereof,
 
the
 
Cedent
 
and
 
the
 
Cessionary
 
hereby
 
further
acknowledge and agree
 
that, prior to
 
the Enforcement Date,
 
[RELEVANT BANK], is not able to
control the flow
 
of funds into
 
or out of
 
the Bank Accounts
 
due to the
 
transactional nature thereof.
As such,
 
[RELEVANT BANK], is not
 
able to
 
guarantee and/or
 
give the
 
Cessionary any
 
assurance
as to
 
the amount
 
of funds
 
available in
 
the Bank
 
Accounts to
 
be recovered
 
by the
 
Cessionary under
the
 
Cession in
 
Security; accordingly,
 
[RELEVANT
 
BANK], shall
 
not,
 
at
 
any time
 
before the
Enforcement Date,
 
be obliged
 
to load a
 
pledge indicator
 
on the Bank
 
Accounts, or
 
otherwise treat
the rights to
 
the balances from
 
time to time
 
on such accounts
 
as having been
 
ceded in terms
 
of
the Cession in Security;
5.10
 
in the event that [RELEVANT
 
BANK], suspends the operation of the Bank Accounts following
receipt of an
 
Enforcement Notice, [RELEVANT
 
BANK], will
 
only be in
 
a position to
 
confirm
the final balance
 
of the Bank
 
Accounts, on the
 
Enforcement Date (Final
 
Balance), which Final
Balance will remain subject
 
to correction, late entries and
 
is further subject to the
 
provisions of
paragraph 5.19, 5.20 and 5.21;
 
5.11
 
the Cessionary undertakes in favour of [RELEVANT
 
BANK], that it shall not cede
 
its rights or
delegate
 
its
 
obligations
 
under
 
the
 
Cession
 
in
 
Security
 
to
 
any
 
other
 
party
 
unless,
 
prior
 
to,
 
or
simultaneously with such cession, delegation or
 
transfer, the new Cessionary has acceded to this
Notice by delivering to the
 
Parties an accession undertaking
 
substantially in the form
 
attached as
Schedule 3 hereto. The Cedent hereby agrees to such accession under this
 
Notice;
5.12
 
as
 
soon
 
as
 
practicably
 
possible
 
after
 
receipt
 
of
 
a
 
written
 
notification
 
purportedly
 
from
 
the
Cessionary
 
substantially
 
in
 
the
 
form
 
of
 
Schedule
 
4
 
hereto,
 
in
 
terms
 
of
 
which
 
the
 
Cessionary
requests
 
certain
 
information
 
in
 
relation
 
to
 
the
 
Known
 
Bank
 
Accounts
 
(Information
 
Notice)
[RELEVANT
 
BANK],
 
shall
 
provide
 
the
 
Cessionary,
 
with
 
such
 
information
 
concerning
 
the
Known Bank Accounts as
 
the Cessionary may from
 
time to time
 
require under the Information
Notice;
 
5.13
 
[RELEVANT
 
BANK], shall, as soon as practicably
 
possible following receipt of an
 
Information
Notice
 
to
 
this effect
 
from the
 
Cessionary,
 
notify the
 
Cessionary of
 
the
 
closure of
 
any Known
Bank Accounts it
 
is aware of
 
as at the
 
date of receipt
 
of the Information
 
Notice to this
 
effect from
the Cessionary;
5.14
 
the
 
Cedents
 
and
 
the
 
Cessionary,
 
undertake
 
to
 
promptly
 
provide
 
[RELEVANT
 
BANK],
 
with
written notification of the termination or cancellation of the Cession in Security;
 
34
5.15
 
after the Enforcement Date,
 
[RELEVANT BANK], will not act on any instruction
 
received from
the Cedent in respect of the
 
Bank Accounts unless [RELEVANT BANK], has obtained the prior
consent of
 
the Cessionary
 
and [RELEVANT
 
BANK], shall
 
advise the
 
Cessionary if
 
any third
party seeks to enforce any rights against the Bank Accounts;
5.16
 
subsequent to the delivery
 
of the Enforcement Notice,
 
the Cessionary undertakes to
 
do all such
things and
 
provide all
 
such documents
 
as may
 
be required
 
by [RELEVANT
 
BANK], in
 
order
that [RELEVANT BANK], complies with all applicable legislative
 
and regulatory requirements,
including, without limitation, any “Know Your Client” requirements;
5.17
 
the
 
Cedent
 
and
 
the
 
Cessionary
 
hereby
 
waive
 
any
 
claims
 
they
 
may
 
have
 
or
 
obtain
 
against
[RELEVANT BANK], arising directly or indirectly from any
 
losses or damages which
 
they may
suffer
 
as
 
a
 
result
 
of
 
[RELEVANT
 
BANK],
 
acting
 
in
 
terms
 
of
 
the
 
Enforcement
 
Notice
 
or
Information Notice, unless [RELEVANT BANK], has acted with gross negligence
 
and/or wilful
default;
5.18
 
the
 
Cedent
 
hereby
 
indemnifies
 
[RELEVANT
 
BANK],
 
in
 
respect
 
of
 
any
 
claims,
 
demands
 
or
actions
 
made
 
against
 
[RELEVANT
 
BANK],
 
or
 
losses,
 
damages
 
expenses
 
and/or
 
legal
 
costs
(including on
 
a scale
 
of attorney-own-client) suffered
 
by [RELEVANT
 
BANK], in
 
connection
with
 
this
 
Notice
 
and/or
 
or
 
the
 
delivery
 
of
 
an
 
Enforcement
 
Notice
 
or
 
Information
 
Notice
 
and
[RELEVANT
 
BANK], ’s
 
actioning of
 
such Enforcement
 
Notice or
 
Information Notice,
 
unless
[RELEVANT
 
BANK], has acted with gross negligence, fraud or wilful default;
 
5.19
 
notwithstanding any provision hereof, [RELEVANT BANK], reserves the right to:
5.19.1
 
close, cancel or suspend the operation of the Bank Accounts; and/or
5.19.2
 
include
 
the
 
Bank
 
Accounts on
 
any
 
of
 
its
 
cash
 
management services
 
(the
 
Service/s) and
 
to
accordingly
 
exercise
 
its
 
rights
 
to
 
the
 
operation
 
of
 
automatic
 
set-off
 
and/or
 
its
 
rights
 
of
combination of accounts, up until the Enforcement Date;
 
5.20
 
the rights of the Cessionary
 
will be subject to the
 
provisions of this Notice
 
and specifically to the
automatic
 
set-off
 
which
 
will
 
operate
 
in
 
respect
 
of
 
the
 
balances
 
on
 
the
 
Bank
 
Accounts
 
in
accordance with the Service/s and/or in terms of law, up until the Enforcement Date;
 
5.21
 
to the extent that:
5.21.1
 
the
 
Bank
 
Accounts
 
form
 
part
 
of
 
any
 
contractual
 
netting
 
arrangement,
 
cash
 
management
scheme
 
or
 
similar
 
arrangement
 
(Arrangement),
 
[RELEVANT
 
BANK],
 
will
 
take
 
action
 
to
remove the
 
Bank Accounts
 
from the
 
Arrangement following
 
the receipt
 
of an
 
Enforcement
Notice and be entitled to
 
debit the Bank Accounts in respect
 
of any amounts due under
 
such
Arrangement until their removal from any Arrangement is effected;
5.21.2
 
there are any
 
debit orders, salary
 
files, pre-loaded payment
 
runs or other
 
post-dated debits
 
that
are automated and have, or will ,be processed, including those which may not
 
yet be debited
to the Bank Accounts, [RELEVANT BANK], will despite service of
 
the Enforcement Action
be entitled to permit these payments to run and honour these debits;
 
and
 
both
 
of
 
the
 
Cedent
 
and the
 
Cessionary herby
 
indemnify
 
[RELEVANT
 
BANK], and
 
hold
[RELEVANT
 
BANK],
 
harmless
 
in
 
respect
 
of
 
all
 
claims,
 
demands
 
or
 
actions
 
made
 
against
[RELEVANT
 
BANK], or
 
losses, damages expenses
 
and/or legal costs
 
(including on
 
a scale
 
of
attorney-own-client)
 
suffered
 
by
 
[RELEVANT
 
BANK],
 
in
 
connection
 
with
 
[RELEVANT
BANK], acting in accordance with this clause;
5.22
 
[RELEVANT
 
BANK], shall
 
be entitled,
 
but not
 
obliged, from
 
time to
 
time to
 
amend, vary
 
or
▇▇▇▇▇, by written notice to
 
each of the Cedents
 
and the Cessionary
 
at the domicilium
 
addresses set
out in this Notice, the details in paragraph 4 above;
35
5.23
 
other than what is
 
stipulated herein, [RELEVANT BANK], makes no undertaking
 
whatsoever in
relation
 
to
 
the
 
Bank
 
Accounts,
 
the
 
Enforcement
 
Notice,
 
the
 
Information
 
Notice
 
and/or
 
the
Cession in Security; and
5.24
 
[RELEVANT
 
BANK], does not confirm the validity or otherwise of the Cession in Security.
 
6.
 
General
6.1
 
Limitation of Liability
Notwithstanding anything to the contrary contained in this Notice, the Parties shall not be liable
to each other for any indirect or consequential loss or damage, including without
 
limitation, loss
of
 
profit,
 
revenue,
 
anticipated
 
savings,
 
business
 
transactions
 
or
 
goodwill
 
or
 
other
 
contracts
whether arising from negligence or breach of contract.
 
6.2
 
Certificate
A
 
certificate
 
signed
 
by
 
any
 
manager
 
or
 
director
 
of
 
[RELEVANT
 
BANK],
 
(whose
 
authority,
qualification
 
or
 
appointment
 
need
 
not
 
be
 
proved)
 
setting
 
out
 
the
 
Final
 
Balance
 
or
 
any
 
other
amount
 
in
 
respect
 
of
 
the
 
Bank
 
Accounts,
 
the
 
rates
 
of
 
interest
 
or
 
any
 
other
 
fact,
 
shall,
 
upon
presentation, be prima facie proof of the facts contained therein.
6.3
 
Governing Law
The
 
laws
 
of
 
the
 
Republic
 
of
 
South
 
Africa
 
shall
 
govern
 
the
 
validity,
 
interpretation
 
and
performance of this Notice and the courts of South Africa shall have
 
sole jurisdiction.
6.4
 
Severability
The invalidity, illegality
 
or unenforceability
 
of any
 
of the
 
provisions of
 
this Notice
 
shall not
 
affect
the validity, legality and enforceability of the remaining provisions of this Notice.
6.5
 
No Waiver
The failure of either Party to
 
insist upon the strict performance
 
of any provision of this
 
Notice or
to exercise
 
any right,
 
power or
 
remedy consequent
 
upon a
 
breach hereof
 
shall not
 
constitute a
waiver by such Party to require strict and punctual compliance with each and every provision of
this Notice.
6.6
 
Entire Agreement and Variation
6.6.1
 
This Notice embodies the entire agreement between the Parties in relation to the consent and
acknowledgement of
 
[RELEVANT BANK], of the Cession
 
in Security
 
of the Bank
 
Accounts.
6.6.2
 
In
 
this
 
Notice, words
 
importing the
 
singular shall
 
include the
 
plural and
 
vice versa,
 
words
importing the masculine gender shall include the feminine and neuter genders and vice versa
and words importing natural persons shall include legal persons and
 
vice versa.
6.6.3
 
No amendment
 
or variation
 
of any
 
of the
 
provisions of
 
this Notice
 
shall be
 
of any
 
force or
effect unless reduced
 
to writing and
 
signed by all
 
the Parties. This
 
requirement will only
 
be
satisfied
 
if
 
such
 
amendment
 
or
 
variation
 
is
 
made
 
in
 
a
 
written,
 
paper
 
based
 
form.
 
The
provisions of the Electronic Communications and Transactions Act 25 of 2002 are expressly
excluded from this paragraph 6.6.
6.7
 
Consent to Jurisdiction
The Parties hereby consent
 
to the non-exclusive
 
jurisdiction of the High
 
Court of South Africa
 
in
respect of any proceedings in connection with this Notice.
6.8
 
Notices and Domicilium
6.8.1
 
The
 
Parties
 
choose
 
as
 
their
 
domicilium citandi
 
et
 
executandi
 
(address
 
for
 
purpose
 
of
 
legal
proceedings and legal notices) their respective addresses set out in paragraph
 
6.8.2 below, at
36
which addresses all processes and notices arising out of or in connection with this Notice, its
breach or termination shall be served upon or delivered to the Parties.
6.8.2
 
For the purpose of this Notice, the Parties' domicilium citandi et executandi
 
is:
 
6.8.2.1
 
as regards [RELEVANT
 
BANK],
 
Attention:
 
[●]
With a copy to be sent to:
 
[●]
6.8.2.2
 
as regards the Cedent:
Attention:
 
[insert]
[insert full address including street name, area and area code]
Email:
 
[●];
6.8.2.3
 
as regards the Cessionary:
Attention:
 
[insert]
[insert full address including street name, area and area code]
Email:
 
[●];
or at
 
such other
 
physical address,
 
not being
 
a post
 
office box
 
or poste
 
restante, of
 
which the
Party concerned may notify the others in writing.
6.8.3
 
Any notice given in terms of this Notice shall be in writing and shall
 
-
6.8.3.1
 
if
 
delivered by
 
hand be
 
deemed to
 
have been
 
duly
 
received by
 
the
 
addressee on
 
the
 
first
Business Day after the date of delivery;
6.8.3.2
 
if posted
 
by prepaid registered
 
post be
 
deemed to
 
have been received
 
by the
 
addressee on
the 8th Business Day following the date of such posting;
6.8.3.3
 
if transmitted by facsimile be deemed to have been received by the addressee one Business
Day after the date of despatch;
6.8.3.4
 
if
 
sent
 
electronically,
 
shall
 
be
 
deemed
 
to
 
have
 
been
 
received
 
on
 
the
 
first
 
Business
 
Day
following the
 
successful transmission
 
thereof as
 
evidenced by
 
the electronic
 
confirmation
of receipt (unless the contrary is proven).
 
6.8.4
 
It is recorded for
 
the avoidance of doubt
 
that a legal notice
 
sent by a Party
 
shall not be regarded
as valid legal notice, if sent electronically in terms of this paragraph
 
6.8.3.4.
6.8.5
 
Notwithstanding anything
 
to
 
the
 
contrary contained
 
or implied
 
in
 
this
 
Notice, but
 
subject to
paragraph 6.8.4
 
above and
 
paragraph 6.9
 
below,
 
a written
 
notice or
 
communication actually
received by one
 
of the Parties
 
from another including
 
by way of
 
email or facsimile
 
transmission
shall be adequate written notice or communication to such Party.
6.9
 
Fax and Email Indemnity
6.9.1
 
The Cedent and Cessionary:
6.9.1.1
 
acknowledge that it is
 
not practical for [RELEVANT
 
BANK], to establish the
 
authenticity
of instructions that, on the face of such document(s), purports to emanate from a Cedent
 
or
the
 
Cessionary
 
in
 
terms
 
of
 
this
 
Notice
 
(“Instructions”),
 
that
 
is
 
to
 
establish
 
whether
 
such
Instructions are
 
fraudulent, authentic
 
or
 
duly
 
authorised or
 
whether the
 
Instructions were
signed by duly authorised representatives;
6.9.1.2
 
agree
 
that
 
[RELEVANT
 
BANK],
 
is
 
not
 
to
 
be
 
held
 
liable
 
for
 
Instructions
 
which
 
are
fraudulent,
 
unauthentic,
 
unauthorised
 
or
 
signed
 
by
 
unauthorised
 
representatives
37
(“Fraudulent or
 
Unauthorised Instructions”),
 
any errors
 
or delays
 
in transmissions,
 
or any
misinterpretation on receipt of an Instruction; and
6.9.1.3
 
waive any rights that it may have or obtain now or in future against [RELEVANT BANK],
arising directly
 
or indirectly from
 
any losses
 
or damages
 
which any of
 
the Cedents and/or
Cessionary
 
may
 
suffer
 
as
 
a
 
result
 
of
 
[RELEVANT
 
BANK],
 
acting
 
or
 
declining
 
to
 
act
(wholly or
 
in part)
 
on any
 
Fraudulent or
 
Unauthorised Instruction
 
(save for
 
instances of
 
gross
negligence and
 
wilful default),
 
and each
 
of the
 
Cedent and
 
the Cessionary, hereby
 
indemnify
[RELEVANT
 
BANK],
 
in
 
respect
 
of
 
any
 
claims,
 
demands
 
or
 
actions
 
made
 
against
[RELEVANT
 
BANK], or losses or damages suffered by [RELEVANT
 
BANK], because it
so acted or declined to act, excluding losses arising solely and
 
exclusively from the proven
unlawful,
 
grossly
 
negligent
 
or
 
fraudulent
 
acts
 
of
 
[RELEVANT
 
BANK],
 
and/or
 
its
employees.
6.10
 
Counterparts
This Notice may
 
be signed in
 
counterparts and the
 
copies signed in
 
counterpart shall constitute
the agreement between the Parties.
 
7.
 
Save
 
as
 
specifically
 
contemplated
 
in
 
this
 
Notice,
 
this
 
Notice
 
is
 
given
 
without
 
prejudice
 
to
[RELEVANT BANK], or any
 
of its
 
rights, and
 
[RELEVANT BANK], hereby reserves
 
all its
 
rights
in respect of the Bank Accounts.
 
8.
 
Kindly confirm
 
your acceptance
 
of the
 
terms and
 
conditions of
 
this Notice
 
by signing
 
and returning
an originally signed copy to us within 30 days from the date of
 
this Notice.
 
9.
 
If we do not receive
 
the originally signed copy
 
from both the Cedent
 
and the Cessionary within
 
30
(thirty) days of the date of this Notice then:
9.1
 
according to the
 
terms of our
 
agreements with the
 
Cedent, the Cedent
 
may not cede
 
or transfer
any
 
of
 
its
 
rights
 
or
 
obligations
 
(duties)
 
in
 
connection
 
with
 
their
 
bank
 
accounts
 
held
 
with
 
us
without our prior written consent; and
9.2
 
we do not consent to the cession as requested; and
9.3
 
we
 
will
 
not
 
be
 
acting
 
in
 
accordance
 
with
 
the
 
request in
 
the
 
cession
 
notice
 
or
 
any
 
subsequent
requests in connection therewith; and
9.4
 
for the avoidance of doubt,
 
we will not be liable to
 
the Cessionary or the Cedent
 
in respect of the
cession contemplated in this
 
Notice and will continue
 
to conduct our relations
 
with the Cedent in
accordance with the ordinary banker/client relationship.
[
TO BE SIGNED BY ACCOUNT BANK
]
SIGNED
 
AT
 
____________________
 
ON
 
THE
 
___________
 
DAY
 
OF
_________________________________ 202___
For and on behalf of [RELEVANT BANK], ACTING THROUGH ITS [●] DIVISION
 
Signature
 
________________________
 
38
 
Full Names
 
________________________
 
 
Designation
 
________________________
 
SIGNED
 
AT
 
____________________
 
ON
 
THE
 
___________
 
DAY
 
OF
__________________________________ 202__
For and on behalf of [RELEVANT BANK], ACTING THROUGH ITS [●] DIVISION
 
 
Signature
 
________________________
 
 
Full Names
 
________________________
 
 
Designation
 
________________________
 
 
 
 
 
 
 
 
 
 
39
SCHEDULE 1
BANK ACCOUNTS
NAME OF ACCOUNT
[RELEVANT BANK], ACCOUNT NUMBER
 
40
SCHEDULE 2
SPECIMEN
 
ENFORCEMENT
 
NOTICE
 
TO
 
BE
 
PLACED
 
ON
 
CESSIONARY’S
LETTERHEAD
Attention:
 
With a copy to be sent to each Cedent specified in the Notice
Date:
Dear Sirs
ENFORCEMENT NOTICE
 
We,
 
_______________ (“the
Cessionary
”)
 
refer
 
to
 
the
 
Notice
 
in
 
respect
 
of
 
the
 
Cession
 
in
 
Security
provided
 
to
 
(“[RELEVANT
 
BANK],”)
 
by____________
 
(the
Cedent
)
 
and
 
the
 
Cessionary
 
dated
____________ (“the
Notice
”).
 
Unless specifically
 
defined in
 
this Enforcement
 
Notice, terms
 
and expressions
 
defined in
 
the Notice
shall bear the same meaning when used herein.
The Cessionary hereby confirms that it is entitled to enforce its rights under the Cession in
 
Security in
respect of Bank
 
Accounts listed in the table
 
below, and
 
as well as all
 
other bank accounts held
 
by the
Cedent with the Bank as at the date of response to this Enforcement Notice.
Accordingly,
 
this
 
letter
 
serves
 
as
 
a
 
formal
 
Enforcement
 
Notice
 
by
 
the
 
Cessionary
 
to
 
[RELEVANT
BANK], as is contemplated in the Notice, in respect of the Bank
 
Accounts.
 
(*please select the appropriate option/s)
 
*Option 1
The Cessionary hereby requests [RELEVANT BANK], to provide it with the following information in
respect of the Known Bank Accounts which are listed below:
 
[●]
 
[●]
as well
 
as all other
 
bank accounts held
 
by the Cedent
 
with the Bank
 
as at the
 
date of response
 
to this
Enforcement Notice:
[insert information]
41
AND/OR
*Option 2
The Cessionary hereby requests [RELEVANT
 
BANK], to confirm the Final
 
Balance in respect of the
Bank Accounts which
 
are listed below
 
as well as
 
all other bank accounts
 
held by the
 
Cedent with the
Bank as at the date of response to this Enforcement Notice.
AND/OR
*Option 3
The Cessionary
 
hereby requests
 
[RELEVANT
 
BANK], to
 
suspend the
 
operation of,
 
and confirm
 
the
Final Balances of,
 
the Bank
 
Accounts which are
 
listed below as
 
well all
 
other bank accounts
 
held by
the Cedent with the Bank as at the date of response to this Enforcement
 
Notice.
The
 
Cessionary
 
further
 
requests
 
[RELEVANT
 
BANK],
 
to
 
transfer
 
the
 
Final
 
Balance/s
 
into
 
account
number
 
___________ (“the
 
Cessionary’s
 
Account”) on
 
or
 
before the
 
________ day
 
of
 
______ 20_,
subject to paragraph 5.10 of the Notice.
 
Name of Account
 
[RELEVANT
 
BANK]
 
Account Number
 
[●]
Final Balance
 
[●]
Kindly
 
acknowledge
 
receipt
 
of
 
this
 
Enforcement
 
Notice
 
by
 
replying
 
to
 
the
 
following
 
email
address_________.
 
Yours
 
Faithfully
Signed at ______________on the _____________day of ________________20___
___________________
Cessionary’s Authorised Signatory 1
 
Name:
 
___________________
Capacity:
 
___________________
Signature:
 
___________________
42
___________________
Cessionary’s Authorised Signatory 2
Name:
 
___________________
Capacity:
 
___________________
Signature:
 
__________________
 
43
SCHEDULE 3
SPECIMEN
 
ACCESSION
 
UNDERTAKING
 
TO
 
BE
 
PLACED
 
ON
 
NEW
 
CESSIONARY’S
LETTERHEAD
Attention:
 
With a copy to be sent to each Cedent specified in the Notice
Date:
Dear Sirs
ACCESSION UNDERTAKING
We,
 
_______________ (the
New Cessionary
) refer to the Notice in respect of the Cession in Security
provided
 
by
 
([RELEVANT
 
BANK],
 
)
 
to
 
____________ (the
Cedent
)
 
and
 
the
 
_____________
 
(the
Transferring Cessionary
) dated ____________ (the
Notice
).
 
Unless specifically defined in this
 
accession undertaking, terms and expressions defined
 
in the Notice
shall bear the same meaning when used herein.
The Transferring
 
Cessionary,
 
by its
 
signature hereto,
 
hereby confirms
 
that it
 
has ceded,
 
delegated or
otherwise transferred its rights under the Cession in Security and Notice to
 
the New Cessionary.
The New Cessionary hereby
 
confirms that it has accepted
 
the rights and obligations
 
of the Transferring
Cessionary under the Cession in
 
Security and the Notice. Accordingly, with effect from
 
the date of this
accession undertaking, all references to
 
the “Cessionary” under the Notice
 
shall be deemed to refer
 
to
the New Cessionary.
Kindly
 
acknowledge
 
receipt
 
of
 
this
 
Enforcement
 
Notice
 
by
 
replying
 
to
 
the
 
following
 
email
address_________.
 
44
Yours
 
Faithfully
Signed at ______________on the _____________day of ________________20___
______________________________
New Cessionary’s Authorized Signatory 1
 
Name:
 
___________________
Capacity:
 
___________________
Signature:
 
___________________
______________________________
New Cessionary’s Authorized Signatory 2
Name:
 
___________________
Capacity:
 
___________________
Signature:
 
___________________
______________________________
Transferring ▇▇▇▇▇▇▇▇▇▇’s Authorized Signatory 1
 
Name:
 
___________________
Capacity:
 
___________________
Signature:
 
___________________
______________________________
Transferring ▇▇▇▇▇▇▇▇▇▇’s Authorized Signatory 2
Name:
 
___________________
Capacity:
 
___________________
Signature:
 
___________________
 
45
SCHEDULE 4
SPECIMEN INFORMATION NOTICE
 
TO BE
 
PLACED ON
 
CESSIONARY’S LETTERHEAD
Attention:
 
With a copy to be sent to each Cedent specified in the Notice
Date: ____________
Dear Sirs
INFORMATION NOTICE
 
We,
 
_______________ (“the
Cessionary
”)
 
refer
 
to
 
the
 
Notice
 
in
 
respect
 
of
 
the
 
Cession
 
in
 
Security
provided
 
by
 
(“[RELEVANT
 
BANK],”)
 
to
 
____________
 
(the
Cedent
)
 
and
 
the
 
Cessionary
 
dated
____________ (“the
Notice
”).
 
Unless specifically
 
defined in
 
this Information
 
Notice, terms
 
and expressions
 
defined in
 
the Notice
 
shall
bear the same meaning when used herein.
The Cessionary hereby confirms that it is entitled to enforce its rights under the Cession in
 
Security in
respect of Bank
 
Accounts listed in the table
 
below, and
 
as well as all
 
other bank accounts held
 
by the
Cedent with the Bank as at the date of response to this Information Notice.
Accordingly,
 
this
 
letter
 
serves
 
as
 
a
 
formal
 
Information
 
Notice
 
by
 
the
 
Cessionary
 
to
 
[RELEVANT
BANK], as is contemplated in the Notice, in respect of the Bank
 
Accounts.
 
The Cessionary hereby requests [RELEVANT BANK], to provide it with the following information in
respect of the Known Bank Accounts which are listed below:
 
Name of Account
 
[RELEVANT
 
BANK]
Account Number
 
[●]
 
as well as the
 
all other bank accounts
 
held by the Cedent
 
with the Bank as
 
at the date of
 
response to this
Enforcement Notice:
[insert information requested]
46
Kindly
 
acknowledge
 
receipt
 
of
 
this
 
Information
 
Notice
 
by
 
replying
 
to
 
the
 
following
 
email
address_________.
 
Yours
 
Faithfully
Signed at ______________on the _____________day of ________________20___
___________________
Cessionary’s Authorised Signatory 1
 
Name:
 
___________________
Capacity:
 
___________________
Signature:
 
___________________
___________________
Cessionary’s Authorised Signatory 2
Name:
 
___________________
Capacity:
 
___________________
Signature:
 
___________________
 
 
 
 
1
SIGNATURE PAGES
Signed at Parkhurst
 
on 27 February
 
2025
 
for
LESAKA TECHNOLOGIES, INC.
 
(in its
capacity as
Cedent
)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Signature
▇▇▇▇▇▇ ▇▇▇▇▇
Name of Signatory
Group Chief Financial Officer
Designation of Signatory
 
 
 
 
2
Signed at CAPE TOWN
 
on 27 February
 
2025
 
for
LESAKA TECHNOLOGIES
PROPRIETARY LIMITED
 
(in its capacity
as
obligors' agent
 
and
Term/RCF
Borrower
)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Signature
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Name of Signatory
GCOO
Designation of Signatory
 
 
 
 
3
Signed at Woodmead
 
on 27 February
 
2025
 
for
BOWWOOD AND MAIN NO 408 (RF)
PROPRIETARY LIMITED
 
(in its capacity
as
Debt Guarantor
)
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Signature
Phillemon Ledwaba
Name of Signatory
Duly Authorised
Designation of Signatory
 
 
 
 
 
 
 
4
Signed at Sandon
 
on 27 February
 
2025
 
for
FIRSTRAND BANK LIMITED (ACTING
THROUGH ITS RAND MERCHANT
BANK DIVISION)
(in its capacity as
Facility Agent
)
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Signature
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Authorised
Designation of Signatory
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Signature
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name of Signatory
Authorised Signatory
Designation of Signatory

Document Metadata

Filed: May 7th, 2025