Exhibit 10.13
MIH LIMITED
-and-
VILLIERS SECURITIES LIMITED
-and-
ABSA BANK LIMITED
--------------------------------
FACILITIES AGREEMENT
relating to a loan and guarantee
facility of US$62,000,000
--------------------------------
TABLE OF CONTENTS
1 Interpretation .................................................... 1
2 The Facilities .................................................... 8
3 Loan Facility ..................................................... 9
4 Repayment ......................................................... 10
5 Prepayment and Cancellation of Loan Facility ...................... 10
6 Interest Periods .................................................. 11
7 Interest .......................................................... 12
8 Certificates and Determination .................................... 12
9 Guarantee Facility ................................................ 12
10 Indemnity ......................................................... 13
11 Guarantee Commission .............................................. 14
12 Cash Collateral ................................................... 14
13 Payments and Default Interest ..................................... 15
14 Changes in Circumstances .......................................... 16
15 Representations and Warranties .................................... 17
16 Conditions Precedent .............................................. 19
17 Undertakings ...................................................... 20
18 Financial Information ............................................. 23
19 Financial Covenants ............................................... 24
20 Demand Events ..................................................... 27
21 Fees .............................................................. 30
22 Set-off ........................................................... 30
23 Stamp Duties ...................................................... 30
24 Delay and Remedies Cumulative ..................................... 30
25 Notices ........................................................... 30
26 Currency Indemnity ................................................ 31
27 Assignments ....................................................... 31
28 Costs ............................................................. 31
29 Severability ...................................................... 32
30 Joint and Several Liability ....................................... 32
31 Counterparts ...................................................... 32
32 Existing Facilities ............................................... 32
33 Law and Jurisdiction .............................................. 32
DATE: 10 December 1999
PARTIES:
(1) MIH Limited ("MIH"), a company incorporated in the British Virgin
Islands, registered number I.B.C. No.: 47572;
(2) Villiers Securities Limited ("VILLIERS"), a company incorporated in
Mauritius, registered number 19334/3571; and
(3) ABSA Bank Limited (the "BANK") acting through its London Branch at
▇▇/▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
WHEREAS the Bank has agreed to make available to the Borrowers a loan
facility and a guarantee facility aggregating US$62,000,000 upon and subject
to the terms of this agreement.
OPERATIVE PROVISIONS:
1 INTERPRETATION
1.1 In this agreement, unless the context otherwise requires:
"ADVANCE" means the principal amount of a borrowing made by a Borrower
hereunder or, as the context may require, the principal amount thereof
for the time being outstanding (together the "ADVANCES");
"BORROWERS" means MIH and Villiers (each, a "BORROWER");
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
in the City of London and New York City banks are open for ordinary
banking business;
"DEFAULT RATE" means the rate determined by the Bank to be the rate
which would have been payable if, during the period of non-payment
thereof, the overdue amount had constituted an Advance under this
agreement, made for successive Interest Periods of such duration as the
Bank may from time to time select, plus an additional 2% per annum.
Such interest shall be compounded at the end of such selected Interest
Period;
"DEMAND EVENT" means any of the events referred to in Clause 20.1;
"EXISTING GUARANTEES" means the guarantees issued by the Bank in favour
of Ergobank S.A. in respect of facilities granted to Subsidiaries of
NetMed Hellas SA and issued on 30 July 1998 and 30 November 1999 and in
the amounts of Greek Drachma 1,920,000,000 and 3,000,000,000
respectively and includes any replacements thereof that may be issued
in the discretion of the Bank prior to the date that the conditions set
forth in Clause 16 have been satisfied;
"FACILITIES" means the Loan Facility and the Guarantee Facility (each a
"FACILITY");
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"FINAL REPAYMENT DATE" means the date falling 3 years from the date of
this agreement;
"FINANCIAL INDEBTEDNESS" means indebtedness in respect of (i) money
borrowed or raised; (ii) debit balances at any bank; (iii) any bond,
note, loan, loan stock, debenture or similar instrument or security;
(iv) acceptance or documentary credit facilities or ▇▇▇▇ discounting,
note purchase or factoring facilities other than those entered into on
a non-recourse basis; (v) the payment for assets or services acquired
deferred in excess of a period of 30 days; (vi) rental payments under
leases (whether in respect of land, machinery, equipment or otherwise)
which are accounted for as finance leases in accordance with
accounting principles, concepts, bases and policies generally adopted;
and (vii) guarantees, indemnities or other similar assurances against
financial loss in respect of indebtedness of any person in respect of
any of the types referred to in paragraphs (i) to (vi) inclusive of
this definition but excluding, for the avoidance of doubt, (a) operating
leases, and those relating to transponder leases (whether or not such
transponder leases would otherwise fall within this definition of
Financial Indebtedness) (b) non-interest bearing programme and film
rights payable and (c) performance guarantees in relation to
programming contracts;
"GUARANTEE" means a guarantee or bond or similar instrument requested
by a Borrower to the Bank to be issued by the Bank including (subject
to Clause 9.5) the Existing Guarantees (together "GUARANTEES");
"GUARANTEE FACILITY" means the U.S. Dollar and Optional Currency
guarantee facility referred to in Clause 2.2;
"GUARANTORS" means MIH, Villiers, MIH Holdings, MIH Investments,
MultiChoice, Myriad Africa, Myriad Asia, Myriad, Mindport and NetMed
(each a "GUARANTOR");
"INTEREST PERIOD" means, in relation to an Advance, each period
ascertained in accordance with Clause 6.1 commencing on the date on
which such Advance is made;
"IRDETO" means Irdeto Access B.V., a company incorporated in the
Netherlands, registered number 34073774;
"LOAN FACILITY" means the U.S. Dollar revolving loan facility referred
to in Clause 2.1;
"MARGIN" means, in relation to each Advance, two per cent. per annum;
"MATERIAL ADVERSE EFFECT" means any effect which, in the reasonable
opinion of the Bank, might reasonably be expected to affect the
business, assets or financial condition of the MIH Group as a whole in
a manner which might reasonably be expected to materially affect the
ability of the Obligors to comply with their obligations under any
Security Document;
"MIH CHINA" means MIH China Limited, a company incorporated in Hong
Kong registered No.592359;
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"MIH CHINA SHARE CHARGE" means a charge or pledge by Myriad Asia in
favour of the Bank in a form acceptable to the Bank over all the right,
title and interest of Myriad Asia in and to its shares in the capital
of MIH China, securing all liabilities of the Obligors to the Bank
from time to time;
"MIH GROUP" means MIH and each of its Subsidiaries (other than OTV
Holdings Limited and its Subsidiaries and M-Web Holdings Limited) and
"MIH GROUP COMPANY" means any one of them;
"MIH GUARANTEE" means a guarantee and indemnity from MIH to the Bank in
respect of obligations of the Obligors in a form acceptable to the Bank;
"MIH HOLDINGS" means MIH Holdings S.A., a company incorporated in
Luxembourg, registered number R.C.B. 58.846;
"MIH HOLDINGS GUARANTEE" means a guarantee and indemnity from MIH
Holdings to the Bank in respect of obligations of the Obligors in a form
acceptable to the Bank;
"MIH HOLDINGS SHARE CHARGE" means a pledge by MIH (and any other
shareholder of MIH Holdings) in favour of the Bank in a form acceptable
to the Bank over all the right, title and interest of MIH (and any
other such shareholder) in and to its shares in the capital of MIH
Holdings, securing all liabilities of the Obligors to the Bank from
time to time;
"MIH INVESTMENTS" means MIH Investments S.A. a company incorporated in
Luxembourg, registered number R.C.B. 58.760;
"MIH INVESTMENTS GUARANTEE" means a guarantee and indemnity from MIH
Investments to the Bank in respect of obligations of the Obligors in a
form acceptable to the Bank;
"MIH INVESTMENTS SHARE CHARGE" means a pledge by MIH Holdings (and any
other shareholder of MIH Investments) in favour of the Bank in a form
acceptable to the Bank over all the right, title and interest of MIH
Holdings (and any other such shareholder) in and to its shares in the
capital of MIH Investments, securing all liabilities of the Obligors to
the Bank from time to time;
"MINDPORT" means Mindport B.V., a company incorporated in the
Netherlands, registered number 34083174;
"MINDPORT GUARANTEE" means a guarantee and indemnity from Mindport to
the Bank in respect of obligations of the Obligors in a form acceptable
to the Bank;
"MINDPORT SHARE CHARGE" means a pledge by Mindport in favour of the
Bank in a form acceptable to the Bank over all the right, title and
interest of Mindport in and to its shares in the capital of Irdeto,
securing all liabilities of the Obligors to the Bank from time to time;
"MULTICHOICE" means MultiChoice Africa Limited, a company incorporated
in the British Virgin Islands, registered number I.B.C. No.: 14927;
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"MULTICHOICE AFRICA GUARANTEE" means a guarantee and indemnity from
MultiChoice to the Bank in respect of obligations of the Obligors in a
form acceptable to the Bank;
"MULTICHOICE AFRICA PTY" means MultiChoice Africa (Pty) Limited, a
company incorporated in the Republic of South Africa, registered
number 94/09083/07;
"MULTICHOICE AFRICA PTY GROUP" means MultiChoice Africa Pty and each
of its Subsidiaries and MultiChoice Africa Pty Group Company means any
one of them;
"MYRIAD" means Myriad International Holdings B.V., a company
incorporated in the Netherlands, registered number 34099856;
"MYRIAD AFRICA" means Myriad Holdings Africa B.V., a company
incorporated in the Netherlands, registered number 34093407;
"MYRIAD AFRICA GUARANTEE" means a guarantee and indemnity from Myriad
Africa to the Bank in respect of obligations of the Obligors in a form
acceptable to the Bank;
"MYRIAD ASIA" means Myriad International Holdings Asia B.V., a company
incorporated in the Netherlands, registered number 34097195;
"MYRIAD ASIA GUARANTEE" means a guarantee and indemnity from Myriad
Asia to the Bank in respect of obligations of the Obligors in a form
acceptable to the Bank;
"MYRIAD GUARANTEE" means a guarantee and indemnity from Myriad to the
Bank in respect of obligations of the Obligors in a form acceptable to
the Bank;
"MYRIAD SHARE CHARGE" means a pledge by MIH Investments in favour of
the Bank in a form acceptable to the Bank over all the right, title
and interest of MIH Investments in and to its shares in the capital of
Myriad, securing all liabilities of the Obligors to the Bank from time
to time;
"MYRIAD BV SHARE CHARGE" means a pledge or pledges by Myriad in favour
of the Bank in a form acceptable to the Bank over all the right, title
and interest of Myriad in and to its shares in each of Myriad Africa,
Myriad Asia, Mindport and NetMed, securing all liabilities of the
Obligors to the Bank from time to time;
"NASDAQ" means The NASDAQ Stock Market, Inc.;
"NETMED" means NetMed B.V., a company incorporated in the Netherlands,
registered number 34093295;
"NETMED GUARANTEE" means a guarantee and indemnity from NetMed to the
Bank in respect of obligations of the Obligors in a form acceptable to
the Bank;
"NEW SUBSCRIPTION PROCEEDS" means the gross proceeds of any issue of
any equity securities after the date of this agreement by MIH in
connection with any listing of the shares in MIH (or any other MIH
Group Company other than an Obligor or other MIH Group Company whose
shares are intended to be the
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subject of security in favour of the Bank pursuant to the Security
Documents) on NASDAQ less all costs and expenses of that issue;
"OBLIGORS" means each of the Borrowers and the Guarantors and Irdeto
(each an "OBLIGOR");
"OPTIONAL CURRENCY" means Sterling and any other currency (other than
U.S. Dollars) which the Bank has agreed with the Borrowers should be
made available;
"ORIGINAL SUBSCRIPTION PROCEEDS" means US$130,000,000;
"OUTSTANDING GUARANTEE" means at any time a Guarantee issued by the
Bank in respect of which the Bank may have in its opinion any actual
or contingent liability;
"PERMITTED DISPOSAL" means any disposal:
(i) in the ordinary course of trade and on arm's length terms;
(ii) by any Subsidiary to an Obligor or by any Subsidiary (other
than an Obligor) to any Subsidiary;
(iii) of cash where such disposal is not otherwise prohibited by
this agreement;
(iv) which constitutes the creation of a Permitted Security
Interest;
(v) in exchange for assets (other than cash or cash equivalents)
comparable or superior as to type, value and quality;
(vi) of receivables or property under receivables financing or
securitisation arrangements on commercial terms;
(vii) on arm's length terms where the whole of the proceeds of such
sale, transfer or disposal (after the deduction of all
reasonable costs, fees and expenses) are retained by the
MIH Group pending reinvestment in a manner not otherwise
prohibited by this agreement;
"PERMITTED SECURITY INTEREST" means
(i) any Security Interest over or affecting (a) any asset
acquired by a MIH Group Company after the date hereof and
subject to which such asset is acquired or (b) any asset of
any company which becomes a MIH Group Company after the date
of this agreement where such Security Interest is created
prior to the date on which such company becomes a MIH Group
Company, provided that, in each case:
(a) such Security Interest was not created in contemplation
of the acquisition of such asset by a MIH Group Company
or the acquisition of such company;
(b) the amount thereby secured has not increased in
contemplation of, or since the date of, the acquisition
of such asset by a MIH Group
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Company or the acquisition of such company;
(c) that Security Interest is discharged within 6 months
of the date of the acquisition;
(ii) any netting or set-off arrangement entered into by any MIH
Group Company in the ordinary course of its banking
arrangements;
(iii) any netting or set-off arrangement under any agreement for
any interest rate swap, currency swap, forward foreign
exchange transactions, cap, floor, collar or option
transaction or any combination thereof or any other
derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate
or price (but not any related arrangement for the provision
of cash collateral or any other related Security Interest,
except as otherwise permitted hereunder);
(iv) any title transfer or retention of title arrangements entered
into by any MIH Group Company in the ordinary course of its
trading activities on the counterparty's standard or usual
terms or any liens arising in the ordinary course of trade
by operation of law;
(v) any Security Interest created or subsisting with the prior
consent of the Bank or in favour of the Bank;
(vi) any Security Interest subsisting at the date of this agreement
provided that the aggregate value (taking the higher of book
value or market value for the relevant asset) of the assets
subject to such Security Interests does not exceed
US$2,000,000);
(vii) any Security Interest over any asset acquired by a MIH Group
Company which was created solely for the purpose of
securing indebtedness incurred only to finance the price or
construction costs of such asset;
(viii) any Security Interest over shares in companies which are not
Obligors or intended to be the subject of security in favour
of the Bank pursuant to the Security Documents;
(ix) any Security Interest created by any MIH Group Company which
Security Interest is not within paragraphs (i) to (viii) above
provided that the aggregate value (taking the higher of book
value or market value for the relevant asset) of the assets
subject to such Security Interest does not exceed
US$10,000,000);
"REPAYMENT DATE" means the date falling 1 year from the date of this
agreement and, subject to the prior agreement in writing of the Bank
from time to time in accordance with Clause 4.4, each anniversary
thereof up to and including the Final Repayment Date;
"SECURITY DOCUMENTS" means this agreement, the MIH Guarantee, the
Villiers Guarantee, the MIH Holdings Guarantee, the MIH Investments
Guarantee, the MultiChoice Africa Guarantee, the Myriad Guarantee, the
Myriad Africa Guarantee, the Myriad Asia Guarantee, the Mindport
Guarantee, the NetMed Guarantee, the UBC Share Charge, the MIH
Holdings Share Charge, the MIH
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Investments Share Charge, the MIH China Share Charge, the Myriad Share
Charge, the Myriad BV Share Charge and the Mindport Share Charge;
"SECURITY INTEREST" means (a) any mortgage, pledge, lien, charge,
security assignment, hypothecation, security trust or security interest
and (b) any other agreement or arrangement entered into to create or
confer security over any asset;
"STERLING" and "L" means the lawful currency of the United Kingdom;
"SUBSIDIARY" shall have the meaning attributed to that expression by
Section 736 of the Companies ▇▇▇ ▇▇▇▇ and "SUBSIDIARIES" shall be
construed accordingly;
"UBC" means United Broadcasting Corporation Public Company Limited, a
company incorporated in Thailand;
"UBC MARKET VALUATION" means at any time the market value of those
shares in UBC subject to a pledge or charge under the UBC Share Charge
in favour of the Bank based on the mid-market price for shares in UBC
on the Stock Exchange of Thailand at close of business on the relevant
date all as determined by the Bank;
"UBC SHARE CHARGE" means a pledge or charge by MIH in favour of the
Bank in a form acceptable to the Bank over all the right, title and
interest of MIH in and to its shares in the capital of UBC, securing
all liabilities of the Obligors to the Bank from time to time;
"U.S. DOLLARS" and "US$" means the lawful money of the United States of
America;
"U.S. DOLLAR AMOUNT" means in relation to the Guarantee Facility in
relation to each Guarantee on any proposed issue date of any Guarantee:
(i) if a Guarantee is or is to be denominated in U.S. Dollars, the
face amount in U.S. Dollars of such Guarantee; or
(ii) if a Guarantee is or is to be denominated in an Optional
Currency, the amount in U.S. Dollars that would be obtained by
converting the face amount of such Guarantee into U.S. Dollars
on the basis of the Bank's spot rate of exchange for the
purchase of U.S. Dollars with that Optional Currency on the
proposed issue date;
"VILLIERS GUARANTEE" means a guarantee and indemnity from Villiers to
the Bank in respect of obligations of the Obligors in a form
acceptable to the Bank.
1.2 In this agreement, unless the contrary intention appears, a reference
to:
a "PERSON" shall be construed as a reference to an individual, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of them and shall include its successors
and permitted assigns;
a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental body,
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agency, department or regulatory, self-regulatory, or other authority or
organisation;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month save that, where any such period would otherwise end on
a day which is not a Business Day, it shall end on the next Business
Day, unless that Business Day falls in the following calendar month,
in which case it shall end on the preceding Business Day or if there
is no numerically corresponding day in the month in which that period
ends, that period shall end on the last Business Day in that later
month (and references to "months" shall be construed accordingly);
"SECURITY" includes any mortgage, pledge, lien, charge, security
assignment, hypothecation, security trust and any other security of a
real or personal nature;
"TAX" includes any tax, levy, impost, duty or other charge of a
similar nature (including any penalty or interest payable in
connection with any failure to pay or delay in paying the same) and
"taxation" shall be construed accordingly;
the winding-up, receivership, administration, insolvency or bankruptcy
of a person, or such a person making an assignment for the benefit of
or composition with creditors or to the occurrence of any attachment,
sequestration, distress or execution affecting any assets of any
person, and any cognate references, shall include any equivalent or
analogous proceedings or events under the laws of any other
jurisdiction;
a provision of law is a reference to that provision as amended or
re-enacted;
a "CLAUSE" or a "SCHEDULE" is a reference to a clause of or a schedule
to this deed; and
THIS AGREEMENT OR ANY OTHER AGREEMENT, DEED OR DOCUMENT is a reference
to the same as from time to time amended, novated or supplemented.
1.3 As used in this agreement, "including" shall be construed as not
limiting any general words or expressions in connection with which it is
used.
1.4 The index to and the headings in this agreement are for convenience
only and are to be ignored in construing this agreement.
1.5 Unless the context otherwise requires, words importing the singular
number shall include the plural and vice versa.
1.6 Where there is a reference in this agreement or any Security Document
to any amount, limit or threshold specified in U.S. Dollars, in
ascertaining whether or not that amount, limit or threshold has been
attained, broken, or achieved, as the case may be, a non-U.S. Dollar
amount shall be counted on the basis of the equivalent in U.S. Dollars
of that amount using the Bank's relevant spot rate of exchange.
2 THE FACILITIES
2.1 Subject to the terms and conditions of this agreement (including but
not limited to the conditions set forth in Clause 16), the Bank agrees
to make available to the
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Borrowers a revolving loan facility whereby the Bank agrees to make
Advances in U.S. Dollars up to a maximum aggregate principal amount not
exceeding US$50,000,000 at any one time.
2.2 Subject to the terms and conditions of this agreement (including but
not limited to the conditions set forth in Clause 16), the Bank agrees
to make available to the Borrowers a guarantee facility whereby the
Bank agrees to issue Guarantees at the request of a Borrower
denominated in U.S. Dollars or in any Optional Currency up to a maximum
aggregate principal U.S. Dollar Amount not exceeding US$12,000,000 at
any one time.
2.3 Clause 2.1 above shall not require the Bank to make available to the
Borrowers any Advances where, because the UBC Market Valuation as then
determined by the Bank at such time is less than US$100,000,000, a
prepayment obligation would arise in respect of such Advance, on the
notice of the Bank, in accordance with Clause 5.2.
3 LOAN FACILITY
3.1 The proceeds of the Advances shall be utilised by the Borrowers for
their general corporate purposes including, without limitation, the
acquisition and development of pay-TV, technology and internet related
businesses.
3.2 The Bank shall not be obliged to concern itself with such utilisation.
3.3 When a Borrower wishes to borrow an Advance hereunder, it shall give to
the Bank notice in writing (which shall be irrevocable) to be received
by the Bank no later than 10:00 a.m. (London time) two Business Days
prior to the proposed date for borrowing specifying;
3.3.1 the date therof (which must be a Business Day no later than
the date one month before the then current Repayment Date);
3.3.2 the amount in U.S. Dollars thereof (which must be an integral
multiple of US$1,000,000 or the balance of the Loan Facility);
and
3.3.3 (subject to Clause 6.1) the duration of the first Interest
Period relating to such Advance.
3.4 The Bank will make each Advance available to an account of the relevant
Borrower at the Bank.
3.5 If any Advance is not advanced after notice of borrowing therefor has
been served pursuant to Clause 3.3 as a result of a failure to fulfil
any of the conditions precedent set out in Clause 16 or as a result of
a Borrower failing to comply with this Clause 3, the Borrowers will pay
to the Bank such amount as the Bank may certify (which certificate
shall constitute conclusive evidence of the amount due) as necessary to
compensate the Bank for any losses on account of funds borrowed or
contracted for in order to fund such Advance.
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4 REPAYMENT
4.1 Subject to the provisions of Clause 20 (Demand Events), the Borrowers
shall repay the full amount of each Advance on the last day of the
Interest Period relating to the Advance. Subject to Clause 4.3, amounts
so repaid in accordance with this Clause 4.1 may, subject to the terms
of this agreement, be reborrowed.
4.2 Without prejudice to the Borrowers' obligation to repay the full amount
of each Advance on the due date, where on the same day as the Borrowers
are due to repay an Advance a Borrower also requests and is entitled in
accordance with this agreement to borrow an Advance, the amounts to be
so repaid and so borrowed shall be netted against each other to the
intent that there shall be an actual transfer of funds from the Bank to
such Borrower or, as the case may be, from the Borrowers to the Bank of
the net amount.
4.3 Subject to the provisions of Clauses 5.2, 5.3 and Clause 20 (Demand
Events), all outstanding Advances shall be repaid in full on the then
current Repayment Date.
4.4 Any Borrower may on any date falling not more than 90 days prior to the
then current Repayment Date nor less than 60 days prior to the then
current Repayment Date request that such date be extended from the then
current Repayment Date to the anniversary thereof. If the Bank agrees
to such extension, it shall notify the Borrowers in writing of its
agreement thereto and the Repayment Date shall thereupon be so extended
provided always that no such request by a Borrower pursuant to this
Clause shall operate to extend the relevant Repayment Date beyond the
Final Repayment Date.
5 PREPAYMENT AND CANCELLATION
5.1 A Borrower may prepay an Advance (together with accrued interest
thereon) on any Business Day in whole but not in part on giving not
less than fourteen days' prior written notice to the Bank. Such notice
shall be irrevocable and shall constitute an obligation to prepay
accordingly. Any amounts prepaid under this Clause 5.1 may, subject to
the terms of this agreement, be reborrowed. The relevant Borrower will
pay to the Bank such amounts as may be due to it under Clause 13.5 if
any such prepayment is made on a day other than the last day of an
Interest Period relative to such Advance.
5.2 If at any time the UBC Market Valuation as then determined by the Bank
is less than US$100,000,000 and the ratio of the sum as then determined
by the Bank of (i) the aggregate amount of the Advances outstanding
plus (ii) its contingent liabilities under Outstanding Guarantees plus
(iii) amounts due to the Bank pursuant to Clause 10.1 and unpaid
(together, the "OUTSTANDING AMOUNTS") to the UBC Market Valuation is
more than 1:2, the Borrowers shall, if there are any Advances
outstanding at such time, within 10 Business Days of notice thereof
from the Bank repay the lesser of such amount of the Advances (together
with accrued interest thereon) as shall ensure that immediately after
such repayment:
(i) the ratio of the Outstanding Amounts to the UBC Market Valuation
is not more than 1:2; or
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(ii) the Outstanding Amounts plus US$38,000,000 does not then exceed
the UBC Market Valuation.
The Borrowers will pay to the Bank such amounts as may be due to it
under Clause 13.5 if any such payment is made on a day other than the
last day of an Interest Period. Amounts repaid under this Clause 5.2
may not be reborrowed and the Loan Facility shall be reduced to the
amount of the Advances outstanding following any such repayment under
this Clause 5.2, until such time as the UBC Market Valuation as then
determined by the Bank has increased in value by more than
US$2,000,000 whereupon such increase may be reborrowed and the Loan
Facility shall be reinstated to the extent necessary to support such
reborrowing subject to the other terms and conditions of this
agreement.
5.3 MIH may on giving not less than fourteen days' prior written notice
to the Bank cancel without cost or penalty the unutilised portion of
the Loan Facility in whole or in part (but, if in part, in a minimum
amount of US$5,000,000 and an integral multiple of US$1,000,000). On
the expiry of such notice the Loan Facility shall be cancelled or, as
applicable, appropriately reduced. No notice of cancellation may be
withdrawn or revoked. No Borrower shall be entitled to cancel any part
of the Loan Facility otherwise than in accordance with the express
provisions of this agreement and no amount of the Loan Facility
cancelled may thereafter be utilised.
6 INTEREST PERIODS
6.1 Each Interest Period shall, subject as follows, be of a duration of
one, two or three months, as selected by the relevant Borrower in any
notice in writing issued pursuant to Clause 3.3 provided that:
6.1.1 if any Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next Business Day
falls in the next calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
6.1.2 the first Interest Period relative to each Advance (other than
the first Advance) shall end on the same day as the then
current Interest Period relative to the first Advance to the
intent that on the expiration of the first Interest Period
relative to each Advance (other than the first Advance) all
Advances shall thereafter be treated as one Advance and, to
the extent practicable, all Interest Periods shall be
co-terminous;
6.1.3 if the Borrower fails to select an Interest Period for an
Advance in accordance with Clause 3.3 that Interest Period
shall (subject to the other provisions of this Clause) be one
month; and
6.1.4 the then current Repayment Date shall be the last day of an
Interest Period.
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7 INTEREST
7.1 The Borrowers shall pay to the Bank interest on each Advance during
each Interest Period relative thereto at the rate per annum determined
by the Bank to be the aggregate of the Margin and the offered rate
quoted to the Bank by leading banks in the London Interbank Market at
or about 11:00 a.m. (London time) on the first day of such Interest
Period for deposits denominated in the currency of, and of comparable
amount to, such Advance for the same period as that of such Interest
Period.
7.2 Save as provided otherwise herein, interest in respect of each Advance
shall be paid in arrears on the last day of each Interest Period
relative thereto.
7.3 Interest determined as aforesaid shall accrue from day to day and be
calculated on the actual number of days elapsed and the basis of a 360
day year and shall be payable both before and after judgment.
7.4 If in relation to an Advance and a particular Interest Period the Bank
shall have determined that by reason of circumstances affecting the
London Interbank Market generally adequate and fair means do not exist
for ascertaining the rate of interest applicable to that Advance during
such Interest Period pursuant to Clause 7.1, the Bank shall as soon as
practicable and in any event prior to the commencement of the relevant
such Interest Period give notice of such determination to the relevant
Borrowers. In the event that the Advance is made available by the Bank
or is outstanding, the Bank shall as soon as practicable thereafter
notify the relevant Borrowers of a substitute interest rate to be
applicable to the Advance during such Interest Period, reflecting the
cost to the Bank of funding the Advance plus the Margin from such
sources as it may select in good faith. If such substitute rate is not
acceptable to the relevant Borrower, it may prepay the Advance in full
within ten Business Days after such notification on giving to the Bank
not less than two Business Days' notice thereof or on such other date as
is mutually agreed. Such prepayment shall be made together with accrued
interest on the amount so prepaid at the substitute rate notified as
aforesaid, together with all other amounts due to the Bank.
8 CERTIFICATES AND DETERMINATION
Any certification or determination by the Bank of a rate or amount under
this agreement shall, in the absence of manifest error, be conclusive
evidence of the matters to which it relates.
9 GUARANTEE FACILITY
9.1 Subject to the terms and conditions of this agreement (including but
not limited to the conditions set forth in Clause 16), the Bank agrees
to issue Guarantees at the request of a Borrower denominated in U.S.
Dollars or in any Optional Currency up to a maximum aggregate principal
U.S. Dollar Amount not exceeding US$12,000,000 at any one time for its
general corporate purposes subject to Clause 9.5 provided that prior to
the date on which the conditions set forth in Clause 16 have been
satisfied or at any time whilst those Existing Guarantees remain
Outstanding Guarantees the Bank shall not be obliged to issue Guarantees
hereunder in excess of that amount which is equal to US$12,000,000 less
the principal amount of the Existing Guarantees and for this purpose the
principal
12
amount of an Existing Guarantee shall be calculated by converting the
face amount of such Existing Guarantee into U.S. Dollars on the basis
of the Bank's spot rate of exchange for the purchase of U.S. Dollars
with the currency in which it is denominated on each proposed issue
date of any Guarantee requested to be issued by a Borrower hereunder.
9.2 When a Borrower wishes the Bank to issue a Guarantee (other than the
Existing Guarantees), it shall give to the Bank notice in writing (which
shall be irrevocable) to be received by the Bank not less than five
Business Days prior to the proposed issue date of the Guarantee:
9.2.1 requesting the issue thereof;
9.2.2 specifying the proposed issued date (which must be a Business
Day no later than the date three months before the then current
Repayment Date); and
9.2.3 accompanied by a copy of such Guarantee initialled by the
Borrower for the purpose of identification and such other
information or documentation relating to such Guarantee as the
Bank may request.
9.3 The Bank shall not be under any obligation to issue any Guarantee
pursuant to this agreement unless (i) it is in a form reasonably
acceptable to the Bank and (ii) it has been initialled for the
purposes of identification by the Borrowers and the Bank.
9.4 A Borrower may on giving not less than fourteen days' prior written
notice to the Bank cancel without penalty on the expiry of such notice
the unutilised portion of the Guarantee Facility in whole or in part
(but, if in part, in an integral multiple of Us$1,000,000). The
Guarantee Facility shall then at the expiry of such notice be cancelled
or, as applicable, appropriately reduced. No notice of cancellation may
be withdrawn or revoked. MIH shall not be entitled to cancel any part
of the Guarantee Facility otherwise than in accordance with the express
provisions of this agreement and no amount cancelled may thereafter be
utilised.
9.5 With effect from the date of the conditions set forth in Clause 16 have
been satisfied, each of the Existing Guarantees shall be deemed to be a
Guarantee issued in accordance with the terms of this Agreement and all
the terms of this Agreement relating to Guarantees and otherwise
applicable shall apply to the Existing Guarantees from such time.
10 INDEMNITY
10.1 Each Borrower hereby indemnifies and agrees to keep the Bank
indemnified from and against all payments, claims, demands,
liabilities, losses, costs and expenses made, suffered or incurred by
the Bank in relation to or arising out of the issue by it of each
Guarantee and will pay to the Bank on its demand for payment each
such payment, claim, demand, liability, loss, cost and expense made,
suffered or incurred by the Bank in the currency in which the same was
made, suffered or incurred.
10.2 Each Borrower irrevocably authorises the Bank to make any payment or
comply with any demand which appears or purports to be claimed or made
under any
13
Guarantee, without any reference to or further authority from any
Borrower, without enquiry into the justification therefor or the
validity, genuiness or accuracy of any statement or certificate by
the Bank with respect to or under such Guarantee and despite any
contestation on the part of any Borrower, and each Borrower agrees
that any such claim or demand shall be binding on it and shall, as
between the Bank and such Borrower, be accepted by such Borrower as
conclusive evidence that the Bank was liable to pay or comply with the
same.
10.3 Each Borrower further agrees with the Bank that its obligations under
this Clause shall not in any way be discharged or impaired by:-
10.3.1 any waiver, time or other indulgence that may be granted to or
by the Bank with respect to any Guarantee;
10.3.2 any amendment, extension or variation of any Guarantee or any
other agreement;
10.3.3 any legal limitation, disability, incapacity, insolvency or
other circumstances relating to any person, whether or not
known to the Bank or any other person; or
10.3.4 any invalidity or irregularity in or unenforceability of the
obligations of any person .
10.4 Each Borrower further agrees with the Bank that its obligations under
this Clause shall exist independently of and shall not be affected by:-
10.4.1 any right, claim, assurance or security that the Bank or any
other person may from time to time have, or have failed to
obtain, enforce or assert; or
10.4.2 anything done or omitted to be done which but for this
provision might constitute a legal or equitable discharge of
or defence for it.
10.5 Each Borrower further agrees that the Bank may debit any account of it
with the Bank with any sum demanded by the Bank under this Clause 10.
11 GUARANTEE COMMISSION
On the date of issue of each Guarantee and on each date which falls
three months after the date on which such Guarantee is issued the
Borrowers will pay to the Bank a commission calculated at the rate of
one-quarter of one per cent. of the maximum potential liability of the
Bank under such Guarantee as at such date of issue or such
three-monthly date (as the case may be).
12 CASH COLLATERAL
If a Borrower requests and the Bank agrees to issue any Guarantee with
an expiry date falling after the then current Repayment Date, the Bank
may by notice in writing given to the Borrower not less than 10
Business Days before the then current Repayment Date declare that the
Borrower shall provide the Bank with one hundred per cent. cash cover in
respect of the maximum potential liability of the
14
Bank under such Guarantee and the Borrower shall provide such cash
cover on or before the then current Repayment Date.
13 PAYMENTS AND DEFAULT INTEREST
13.1 All payments to be made by any Borrower under this agreement shall be
made on the due date in immediately available funds to the Bank by
payment in U.S. Dollars (or in the case of a Guarantee denominated in
an Optional Currency or costs, expenses and taxes and the like in the
relevant Optional Currency or in the currency in which they are
incurred (as the case may be)) to the Bank's U.S. Dollar Account Number
3582 023094 001 at Standard Chartered Bank, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ SWIFT-ID SCBLUS33 or such other account as the Bank may
specify.
13.2 All payments to be made by any Borrower under or in connection with
this agreement shall be made without any set-off or counterclaim and
free of and without deduction for any taxes or other deductions of
any nature whatsoever now or hereafter imposed or made, all of which
shall be for the account of such Borrower. Should any such payment be
subject to any such tax or deduction, the Borrowers shall indemnify
the Bank against the same and shall pay to the Bank as provided above
such additional amounts as may be necessary to enable the Bank to
receive a net amount equal to the full amount provided for under this
agreement, had there been no such tax or deduction. The relevant
Borrower shall deliver to the Bank within thirty days of each such
payment by the relevant Borrower of such tax evidence satisfactory to
the Bank (including all relevant tax receipts) that such tax has been
duly remitted to the appropriate authority.
13.3 If the Bank determines, in its absolute discretion, that it has
received, realised, utilised and retained a tax benefit by reason of
any deduction or withholding in respect of which a Borrower has made
an indemnity payment under Clause 13.2, the Bank shall, as and when
it has received all amounts which are then due and payable by the
Obligors under any Security Document, pay to that Borrower (to the
extent that the Bank can do so without prejudicing the amount of the
benefit or repayment and right of the Bank to obtain any other benefit,
relief or allowance which may be available to it) such amount, if any,
as the Bank, in its absolute discretion shall determine, will leave
the Bank in no worse position that it would have been in if the
deduction or withholding had not been required, provided that:
13.1.1 the Bank shall have an absolute discretion as to the time at
which and the order and manner in which it realises or utilises
any tax benefit and shall not be obliged to arrange its
business or its tax affairs in any particular way in order to
be eligible for any credit or refund or similar benefit, and
13.3.2 the Bank shall not be obliged to disclose any information
regarding its business, tax affairs or tax computation.
13.4 Whenever any payment under this agreement shall become due on a day
which is not a Business Day, the due date therefor shall be the next
succeeding Business Day if it falls in the same calendar month and the
immediately preceding business Day if not and interest shall be
adjusted accordingly.
15
13.5 If any Borrower makes any payment of any principal amount of any advance
otherwise than on the last day of an Interest Period, such Borrower
will on demand by the Bank pay to the Bank such additional amounts as
the Bank may certify as necessary to compensate it for any loss or
expense sustained or incurred in liquidating or re-deploying funds
acquired or arranged to effect or maintain such Advance.
13.6 If any Borrower fails to pay any amount payable by it under this
agreement on the due date therefor, such Borrower shall on demand by the
Bank from time to time pay interest on such overdue amount from the due
date up to the date of actual payment (as well after as before judgment
or winding up) at the Default Rate.
14 CHANGES IN CIRCUMSTANCES
14.1 If:
14.1.1 any change in any law, regulation or official directive
(whether or not having the force of law);
14.1.2 any change in the interpretation or application thereof by any
authority charged with the administration thereof;
14.1.3 compliance by any office of the Bank in good faith with any
request or directive of any applicable monetary or fiscal agency
or authority (whether or not having the force of law);
results in:
14.1.4 the Bank incurring a cost (including the cost of complying
with any reserve, special deposit, liquidity, cash or other
requirement or any capital adequacy rules) as a result of
having entered into this agreement; or
14.1.5 a reduction in the amount of principal or interest receivable
by the Bank under this agreement; or
14.1.6 the Bank making any payment or foregoing any interest or other
return on or calculated by reference to any sum received or
receivable by it under this agreement;
then, upon demand being made to any Borrower by the Bank, the Borrowers
shall pay to the Bank such amount as shall compensate the Bank for such
cost, reduction, payment or foregone interest or other return. The
certificate of the Bank setting out the amount shall, in the absence of
manifest error, be conclusive evidence thereof.
14.2 If the Bank is prohibited by law from making, issuing, maintaining or
funding (or it is contrary to any directive of any applicable authority
for the Bank to make, issue, maintain or fund) any Advance or any
Guarantee or any part thereof, then if such Advance has not already
been made or such Guarantee has not been issued, the Bank shall not be
obliged to make available such Advance or to issue such Guarantee and,
if such Advance has already been made or such Guarantee
16
has already been issued, the Borrowers will forthwith on demand by the
Bank repay such advance together with all accrued interest and all other
amounts due to the Bank under this agreement and provide the Bank with
one hundred per cent. cash cover in respect of the maximum potential
liability of the Bank under such Guarantee and the Facilities shall be
reduced to zero.
14.3 If circumstances arise which would or would upon the giving of notice
result in any Borrower being liable to make any indemnity payment under
Clause 13.2 or to pay any compensation under Clause 14.1 or to make any
repayment under clause 14.2 then without in any way limiting, reducing,
or otherwise qualifying such Borrower's obligations under any of such
Clauses, the Bank shall in consultation with the Borrowers, take such
steps as the Bank in its opinion considers are reasonably open to it to
mitigate the effects of such circumstances including the transfer of
its rights and obligations hereunder to another financial institution
willing to participate in the Facilities provided that the Bank shall be
under no obligation to take any such steps if, in the bona fide opinion
of the Bank, such steps would or might have an adverse effect upon its
business, operations or financial condition or cause it to incur any
material costs or expenses.
15 REPRESENTATIONS AND WARRANTIES
15.1 The Borrowers make the representations and warranties in Clauses 15.2
to 15.9 for the benefit of the Bank as of the date of this agreement and
on the first day of each Interest Period and on the issue date of each
Guarantee (or, in the case of the representation and warranty in
Clause 15.9, the date of delivery of the relevant corporate structure
chart referred to in Clause 16.1.6 or Clause 18.2.3 (as the case may be))
as if made on each such day in respect of the circumstances then
prevailing.
15.2 It, and each other Obligor, is a limited liability company validly
existing under the laws of the jurisdiction of its incorporation and is
in good standing and has the power and authority to own its property and
assets and carry on its business as it is now being conducted.
15.3 It has the power to make and carry out the terms of this agreement and
the other Security Documents to which it is party and has taken all
necessary corporate action to authorise the execution, delivery and
performance of this agreement and such Security Documents and the
borrowing of the Advances and the issue of the Guarantees hereunder and
(other than in the case of the Security Documents (other than the UBC
Share Charge) where no representation or warranty is made about any
requirement for South African Reserve Bank approval and the affect of any
failure, to obtain such approval) each other Obligor has the power to make
and carry out the terms of the Security Documents to which such Obligor is
party and has taken all necessary corporate action to authorise the
execution, delivery and performance of such Security Documents.
15.4 This agreement and (other than in the case of the Security Documents
(other than the UBC Share Charge) where no representation or warranty is
made about any requirement for South African Reserve Bank approval and
the affect of any failure to obtain such approval) the other Security
Documents to which it or any Obligor is party constitute the legally
binding obligations of it or such Obligor enforceable in accordance
with their respective terms.
17
15.5 The making and performance of this agreement and (other than in the
case of the Security Documents (other than the UBC Share Charge) where
no representation or warrant is made about any requirement for South
African Reserve Bank approval and the affect of any failure to obtain
such approval) the other Security Documents to which it or any Obligor
is party do not and will not:
15.5.1 violate any provision of:
(a) any law or regulation or any order or decree of any
governmental authority or agency or of any court in any
respect;
(b) the laws and documents incorporating and constituting it
or any Obligor in any respect; or
(c) any mortgage, contract or other undertaking to which it
or any Obligor is a party or which is binding upon it or
any Obligor or any of its or such Obligor's assets in any
material respect;
15.5.2 result in the creation or imposition of any security interest,
lien, charge or other encumbrance on any of its or such Obligor's
assets pursuant to the provisions of any such mortgage, contract
or other undertaking (other than in favour of the Bank).
15.6 It and (other than in the case of the Security Documents (other than
the UBC Share Charge) where no representation or warranty is made about
any requirement for South African Reserve Bank approval and the affect of
any failure to obtain such approval) each other Obligor has received or
obtained (or will have received or obtained by the time of its entry into
of the relevant Security Document) every consent of, licence from or
exemption by any governmental or administrative body or authority
required to authorise or required in connection with the performance,
validity or enforceability of this agreement and the other Security
Documents to which it or any Obligor is party, the borrowings and
indemnities by it and any Obligor under this agreement and the payments
by it or any Obligor in accordance with the provisions of this agreement
and the other Security Documents to which it or any Obligor is party, and
the same are (or will be as aforesaid) valid and subsisting.
15.7 Neither it nor any other Obligor is in default under any agreement to
which it or any Obligor is a party or by which it or any Obligor may be
bound, and no litigation or administrative proceeding is presently
pending or, to the knowledge of it, threatened against it or any Obligor
which might reasonably be expected to have a Material Adverse Effect.
15.8 No Demand Event, or (save as disclosed pursuant to Clause 17.2.2) other
event which with the passing of time or the giving of notice or happening
of other condition would constitute a Demand Event, has occurred and is
continuing or would result from the making of any Advance or from the
issue of any Guarantee.
15.9 The corporate structure chart referred to in Clause 16.1.6 (as updated
from time to time by any corporate structure chart delivered by the
Borrowers to the Bank in accordance with Clause 18.2.3) is true, complete
and up to date.
18
16 CONDITIONS PRECEDENT
16.1 The obligation of the Bank to make the first Advance pursuant to
Clause 3 or to issue the first Guarantee falling to be issued after
the date of this agreement pursuant to Clause 9 are subject to the
condition that the Bank shall have received all of the following in
form and substance satisfactory to it by no later than 28 February 2000:
16.1.1 certified true and up-to-date copies of the constitutional
documents of each of the Borrowers, MIH Holdings, MIH
Investments, MultiChoice, Myriad, Myriad Africa, Myriad Asia,
Mindport, NetMed, UBC, MIH China and Irdeto together with
certificates addressed to the Bank from a duly authorised
officer of each Obligor setting out the names and signatures
of the persons authorised to execute on behalf of such Obligor
each Security Document to which it is expressed to be a party
and confirming such other matters as the Bank may require;
16.1.2 certified true copies of board resolutions or other necessary
corporate action required to authorise the execution, delivery
and performance by each of the Obligors of those Security
Documents to which they are respectively party and authorising
appropriate persons to execute and deliver the same on their
respective behalves;
16.1.3 each of the MIH Guarantee, the Villiers Guarantee, the MIH
Holdings Guarantee, the MIH Investments Guarantee, the
MultiChoice Africa Guarantee, the Myriad Guarantee, the Myriad
Africa Guarantee, the Myriad Asia Guarantee, the Mindport
Guarantee and the NetMed Guarantee duly executed and delivered
by the parties thereto;
16.1.4 each of the UBC Share Charge, the MIH Holdings Share Charge,
the MIH Investments Share Charge, the Myriad Share Charge, the
MIH China Share Charge, the Myriad BV Share Charge and the
Mindport Share Charge duly executed and delivered by the
parties thereto together with (to the extent necessary) duly
executed transfer forms of the relevant shares in favour of
the Bank (or its nominee) and the corresponding share
certificates and such other documents and information as the
Bank may in its discretion require to enable the charge to be
perfected;
16.1.5 the Bank's standard account opening documentation, duly
completed and signed on behalf of the Borrowers;
16.1.6 a copy, certified true by a director or the secretary of MIH,
of the corporate structure chart of MIH and its Subsidiaries;
16.1.7 evidence satisfactory to the Bank that all necessary approvals
have been given or obtained by each party to the Security
Documents to give effect to the transactions contemplated
hereby;
16.1.8 such evidence of the appointment of process agents in England
and the acceptance of such appointments as the Bank may
require in respect of the Security Documents;
19
16.1.9 all legal and other matters in relation to the Security
Documents and the Existing Guarantees and the transactions
contemplated by this agreement and the other Security
Documents and the Existing Guarantees shall be in form and
substance satisfactory to the Bank;
16.1.10 the Bank shall have received opinions from its Thai, Dutch,
Luxembourg, Mauritius, British Virgin Islands and Hong Kong
legal advisers in relation to the Security Documents, together
with such opinions from legal advisers in such other
jurisdictions as the Bank in its sole and absolute discretion
may require, each in form and substance satisfactory to the
Bank;
provided that the Bank may waive on such terms as it thinks fit any of
the foregoing in whole or in part and it is further agreed and
acknowledged by the Bank that if South African Reserve Bank approval
is required for entry into of any Security Document (other than this
agreement) the Bank will waive any conditions precedent in so far as
they relate solely to the entry into of such Security Document and
it is further agreed and acknowledged that each Security Document (other
than the UBC Share Charge and this agreement) shall include a provision
to the effect that such document shall only take effect to the extent
that no South African Reserve Bank approval is required for the
entry into of such document.
16.2 The obligation of the Bank to make any Advance or to issue any
Guarantee under this agreement is subject to the further conditions
that at the time of the making of such Advance or the issue of such
Guarantee;
16.2.1 no Demand Event, or (other than in the case of an Advance that
is drawn down solely to repay the full amount of an Advance
on the due date for repayment of the second Advance such that,
in accordance with Clause 4.2, the Bank is not required to
transfer funds to the Borrowers) other event which with the
passing of time or the giving of notice or happening of other
condition would constitute a Demand Event, has occurred and is
continuing or would result from the making of such Advance or
the issue of such Guarantee; and
16.2.2 the representations and warranties contained in Clause 15 are
true and accurate as of such date;
provided that the Bank may waive on such terms as it thinks fit any of
the foregoing in whole or in part.
17 UNDERTAKINGS
17.1 The undertakings in this Clause 17 remain in force from the date of this
agreement for so long as any sum is outstanding or is or may become
payable by any Borrower to the Bank under this agreement.
17.2 Unless in any particular case the Bank otherwise consents in writing
(such consent not to be unreasonably withheld in the case of Clauses
17.2.8(i) and 17.2.10 below) for the purposes of this agreement (in
which case the Borrowers will comply with the terms on and subject to
which that consent is given), the
20
Borrowers will and will procure that each of their Subsidiaries
(including without limitation the Obligors but excluding OTV Holdings
Limited and its Subsidiaries and M-Web Holdings Limited) will:-
17.2.1 not create or assume or have subsisting any Security Interest
on all or any part of its undertaking or assets (present or
future) except for Permitted Security Interests;
17.2.2 promptly on becoming aware of it inform the Bank in writing
about the happening or existence of a Demand Event and of any
other event which, after the passing of time or the giving of
a notice or the doing of anything else, or any one or more of
such things, would constitute a Demand Event, at the same time
informing the Bank about any action taken or proposed to be
taken in connection therewith;
17.2.3 duly and promptly observe and perform each and every
obligation on its part contained in each Security Document and
each other arrangement entered into as part of the obligations
of the Borrowers under this agreement;
17.2.4 on learning that litigation or administrative or arbitration
proceedings or a dispute with a governmental or other
authority or a labour or other dispute of any kind involving a
potential liability of any MIH Group Company exceeding
US$1,000,000 in aggregate is threatened or pending against it,
and immediately in any case after any such shall have started,
inform the Bank in writing about it;
17.2.5 comply in all material respects with all treaties, laws,
rules, regulations, franchises, permits, orders, consents and
decrees of any administrative, governmental or judicial
authority or organisation or body save where failure to do so
would not have a material adverse effect on its business,
financial condition or assets;
17.2.6 (other than in the case of the Security Documents (other than
the UBC Share Charge and this agreement) where no undertaking
is given as regards obtaining South African Reserve Bank
approval) maintain in full force and effect (or promptly
obtain or cause to be obtained) and comply in all material
respects with all the terms of all authorisations, approvals,
consents, licences and exemptions from and ratifications by,
and promptly file, register and qualify with, every person,
court and judicial, administrative and governmental authority
and organisation which, and do, or cause to be done, all other
acts and things which, in any case, are now or may at any time
become necessary or advisable for the continued legality,
validity, priority, admissibility in evidence and
enforceability of each Security Document in order that it may
duly and punctually perform and observe all of its obligations
under and exercise its rights under each Security Document;
17.2.7 maintain its corporate existence and its right to carry on its
operations and maintain and renew all rights, contracts,
powers, privileges, leases, lands, sanctions and franchises
necessary for the conduct of its operations, and the
performance of each Security Document;
21
a
17.2.8 not (either in a single transaction or in a series of
transactions, whether connected or not, and whether at one
time or over a period of time) sell, convey, transfer or
otherwise dispose of:
(i) any shares in any Obligor or which are intended to be the
subject of security in favour of the Bank pursuant to the
Security Documents to any other person other than in the
case of Irdeto as part of a Permitted Disposal where the
Bank is given security over any replacement assets
obtained in connection with the disposal; or
(ii) any other of its undertaking or assets to any other
person other than Permitted Disposals;
17.2.9 not, whether by acquisition or otherwise, make any alteration
to the nature of its business which might result in a material
change in the general nature of the business conducted by the
MIH Group as a whole as at the date of this agreement being
the ownership and management of pay-TV, technology and
internet related business;
17.2.10 (in the case of any Obligor or MIH China only) not enter into
any merger or consolidation into or with any other person
other than in the case of Irdeto as part of a Permitted
Disposal where the Bank is given security over any replacement
assets obtained in connection with the disposal;
17.2.11 other than from the Original Subscription Proceeds and the New
Subscription Proceeds, not acquire any shares comprising more
than 50 per cent. of the issued share capital of any company
unless where the company acquired becomes a wholly owned
Subsidiary, the company acquired executes a guarantee in
favour of the Bank in respect of the obligations of the
Obligors in a form acceptable to the Bank and in all other
cases the shares which are acquired are charged or pledged in
favour of the Bank in a form acceptable to the Bank to secure
all liabilities of the Obligors to the Bank from time to time
in either case within 2 months of the relevant acquisition;
17.2.12 effect and maintain such insurance over and in respect of its
assets and business and in such manner and to such extent as
is reasonable and customary for a business enterprise engaged
in the same or a similar business and in comparable localities;
17.2.13 forthwith on or at any time after the occurrence of a Demand
Event provide the Bank on demand with such additional security
as the Bank shall request;
17.2.14 not grant, or agree to grant, any loans, whether to a
Subsidiary or any other person save that MIH may lend an
aggregate of up to the amount of the Original Subscription
Proceeds and any New Subscriptions Proceeds (i) to other
Subsidiaries or (ii) to other persons on arm's length terms or
better;
22
17.2.15 not have any of its obligations guaranteed by any other
person, other than its obligations:
(a) which may be guaranteed by any MIH Group Company;
(b) which may be guaranteed by any person in the ordinary
course of business; or
(c) under any lease of premises or other assets in the
ordinary course of business (not being an obligation in
respect of Financial Indebtedness);
17.2.16 ensure that its and the other Obligors' obligations under this
agreement and the other Security Documents do and will rank at
least pari passu with all its and such Obligors' other present
and future unsecured unsubordinated obligations, except for
claims which are mandatorily preferred by bankruptcy,
insolvency or similar laws applying to companies generally.
17.3 Any Borrower may procure that one of its Subsidiaries becomes a
guarantor or provides security to the Bank in form and substance
satisfactory to the Bank and may request that a Security Document be
released by the Bank in connection with such transaction. The Bank will
consider such a request and if it in its discretion agrees to such a
request it shall release the relevant Security Document on terms and
conditions acceptable to it provided that such release shall in no
sense affect the enforceability of any other Security Documents.
18 FINANCIAL INFORMATION
18.1 The undertakings in this Clause 18 remain in force from the date of
this agreement for so long as any sum is outstanding or is or may
become payable by any Borrower to the Bank under this agreement.
18.2 Unless in any particular case the Bank otherwise consents in writing
for the purposes of this agreement (in which case the relevant
Borrowers will comply with the terms on and subject to which that
consent is given):
18.2.1 the Borrowers will and will procure that each other Obligor
and MultiChoice Africa Pty will deliver to the Bank a copy
(certified by a director of a Borrower) of their unaudited
semi-annual accounts (and, in the case of MIH, its unaudited
consolidated semi-annual accounts and, in the case of
MultiChoice Africa Pty, its consolidated income statement and
balance sheet relating to such period initialled by a firm of
independent chartered or certified public accountants of good
international repute), for each of their financial half-years
as soon as possible but in any event no later than 90 days
after the end of each such half-year prepared in accordance
with generally acceptable accounting principles consistently
applied;
18.2.2 the Borrowers will and will procure that each other Obligor
and MultiChoice Africa Pty will deliver to the Bank a copy
(certified by a director of a Borrower) of their audited
balance sheet and accounts (and,
23
in the case of MIH, its audited consolidated balance sheet
and accounts and, in the case of MultiChoice Africa Pty, its
consolidated income statement and balance sheet relating to
such period initialled by a firm of independent chartered or
certified public accountants of good international repute) for
each of their financial years as soon as possible, but in any
event no later than 120 days after the end of each such
financial year, prepared in accordance with generally accepted
accounting principles consistently applied and audited by a
firm of independent chartered or certified public accountants
of good international repute;
18.2.3 each Borrower will deliver to the Bank together with the
accounts of such Borrower specified in Clause 18.2.1 and
18.2.2 above a certificate signed on its behalf by one of its
directors setting out in reasonable detail computations
establishing compliance with each of the financial covenants
contained in Clause 19.2 together with a corporate structure
chart of MIH and its Subsidiaries;
18.2.4 each Borrower will deliver to the Bank a certificate signed on
its behalf by one of its directors setting out in reasonable
detail computations showing the Minimum Subscribers (as
defined in Clause 19) at the end of each calendar month as
soon as possible but in any event no later than 30 days after
the end of each such calendar month;
18.2.5 the Borrowers will and will procure that each other Obligor
and MultiChoice Africa Pty will, promptly after a request to
that effect, give to the Bank such other financial or other
information relating to it or its business as the Bank may
from time to time reasonably request.
19 FINANCIAL COVENANTS
19.1 The undertakings in this Clause 19 remain in force from the date of
this agreement for so long as any sum is outstanding or is or may
become payable by any Borrower to the Bank under this agreement.
19.2 The Borrowers shall procure that:
(a) Consolidated Financial Indebtedness shall not at any time
exceed either twenty per cent. (20%) of Consolidated Market
Value at such time or US$300,000,000 for such time as the
Consolidated Market Value exceeds US$1,500,000,000;
(b) Consolidated EBITDA during the following periods shall not be
less than the amount set out opposite such periods:
PERIOD AMOUNT IN US$
12 months ended 31 March 2000 13,000,000
12 months ending on each 30 September
and 31 March thereafter 18,000,000; and
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(c) Minimum Subscribers during each period listed below as
averaged out over such period on the basis of the figures
provided by the Borrowers pursuant to Clause 18.2.4 shall not
be less than the number of subscribers set out opposite such
period:
PERIOD NUMBER OF SUBSCRIBERS
3 months ended 31 December 1999 268,429
3 months ended 31 January 2000 272,514
3 months ended 29 February 2000 275,701
3 months ended 31 March 2000 274,356
3 months ended 30 April 2000 273,128
3 months ended 31 May 2000 271,367
3 months ended 30 June 2000 264,078
3 months ended 31 July 2000 252,201
3 months ended 31 August 2000 244,835
3 months ended 30 September 2000 251,445
3 months ended 31 October 2000 266,856
3 months ended 30 November 2000 279,669
3 months ended 31 December 2000 290,369
3 months ended 31 January 2001 298,080
3 months ended 28 February 2001 305,515
3 months ended 31 March 2001 307,495
3 months ended 30 April 2001 308,993
3 months ended 31 May 2001 309,344
3 months ended 30 June 2001 302,254
3 months ended 31 July 2001 289,077
3 months ended 31 August 2001 279,926
3 months ended 30 September 2001 284,961
3 months ended 31 October 2001 299,739
3 months ended 30 November 2001 311,983
3 months ended 31 December 2001 322,201
3 months ended 31 January 2002 329,189
3 months ended 28 February 2002 335,710
3 months ended 31 March 2002 337,280
3 months ended 30 April 2002 338,238
3 months ended 31 May 2002 338,080
3 months ended 30 June 2002 330,862
3 months ended 31 July 2002 317,875
25
3 months ended 31 August 2002 309,041
3 months ended 30 September 2002 314,379
3 months ended 31 October 2002 329,348
3 months ended 30 November 2002 341,645
3 months ended 31 December 2002 351,820
19.3 In this Clause 19:
"CONSOLIDATED EBITDA" means for any specified period the consolidated
operating profit of the MultiChoice Africa Pty Group during that
period before deduction of interest and taxation (but after deduction
of interest relating to transponder leases) and before (or, if already
deducted, adding back) depreciation and amortisation of goodwill and
any other intangible assets charged for that period and before
foreign exchange gains and losses and before crediting or deducting
extraordinary and exceptional items;
"CONSOLIDATED FINANCIAL INDEBTEDNESS" means at any time the aggregate
on a consolidated basis of the Financial Indebtedness of the MIH Group
(including, for these purposes, OTV Holdings Limited and its
Subsidiaries) plus the aggregate amount of money received by any MIH
Group Company from making a disposal of receivables or property under
receivables financing or securitisation arrangements on commercial
terms;
"CONSOLIDATED MARKET VALUE" means on any day the market capitalisation
of MIH based on the mid-market price for its shares quoted on NASDAQ
at close of business on the relevant day (or, if such date is not a
Business Day, the preceding such Business Day) as determined by the
Bank; and
"MINIMUM SUBSCRIBERS" means at the end of each calendar month the
total number of customers of NetMed Hellas SA or MultiChoice Hellas
SA resident in Greece who are subscribing on standard payment terms
for pay television services in Greece as determined by reference to
the end of each calendar month.
19.4 The financial covenants referred to in Clause 19.2(a) and (b) shall be
tested semi-annually each 31 March and 30 September in each year
commencing on 31 March 2000, and the financial covenant referred to in
Clause 19.2(c) shall be tested at the end of each calendar month
commencing with the calendar month ending 31 December 1999, by
reference as appropriate to the audited consolidated annual accounts
or unaudited consolidated semi-annual accounts of the MIH Group
(including, for these purposes, OTV Holdings Limited and its
Subsidiaries) or the MultiChoice Africa Pty Group (as the case may be)
and to market capitalisations determined by the Bank in accordance
with the definition of "Consolidated Market Value" and to the
subscriber figures provided by the Borrowers from time to time. Any
calculation shall be made by the Bank and such calculation shall be
conclusive and binding on the Borrowers except in the case of manifest
error.
19.5 If the accounting principles and practices in the MIH Group's or the
MultiChoice Africa Pty Group's audited consolidated or unconsolidated
annual accounts or unaudited consolidated or unconsolidated
semi-annual accounts change after the date of this agreement or the
shares in MIH are no longer quoted on NASDAQ or
26
the accounting reference date of any MIH Group Company
(including, for these purposes, OTV Holdings Limited and its
Subsidiaries) or any MultiChoice Africa Pty Group Company changes or
any other change in law or accounting principles occurs after the date
of this agreement, the Borrowers shall, if the Bank requests, consider
in good faith changes to the financial covenants set out in this
Clause 19 to reflect such change provided that if there is no
agreement as to the proposed changes then in the case of the shares in
MIH no longer being quoted on NASDAQ the changes specified by the Bank
to reflect such changes shall prevail and take effect in accordance
with their terms and in all other cases MIH shall in addition to
delivering accounts reflecting such change in accordance with this
agreement deliver accounts prepared on the basis that such change had
not been made in accordance with this agreement.
20. DEMAND EVENTS
20.1 The following shall be Demand Events:
20.1.1 any Obligor fails to pay to the Bank on its due date any
amount payable under this agreement or any other Security
Document unless the failure to pay such amount is due solely
to administrative or technical delays in the transmission of
funds which are not the fault of the relevant Obligor and such
amount is paid within 2 Business Days after its due date for
payment; or
20.1.2 the Borrowers fail to comply with the terms of Clause 19:
20.1.3 any Obligor fails to pay when due to any other person any
amount payable under any Security Document or fails to comply
with any other provision of this agreement or any other
Security Document (other than those referred to in Clauses
20.1.1, and 20.1.2) and, if such default is capable of remedy,
within the earlier of fourteen days after MIH shall have
received notice of such default from the Bank or the relevant
Obligor becoming aware of the default, the relevant Obligor
shall have failed to cure such default;
20.1.4 any Financial Indebtedness (in excess of in aggregate
US$2,500,000) of any Obligor or MIH China becomes due and
payable or capable of being declared due and payable prior to
the stated maturity thereof by reason of default (howsoever
described) or any such indebtedness is not paid when due or
within any originally applicable grace period or any guarantee
of indebtedness in excess of in aggregate US$2,500,000
given by any Obligor or MIH China is not honoured when due and
called upon or any Security Interest present or future and
created or assumed by any Obligor or MIH China securing
Financial Indebtedness in excess of in aggregate US$2,500,000
becomes enforceable by reason of default (howsoever described);
20.1.5 any representation or warranty in this agreement or any other
Security Document or in any certificate or statement delivered
under this agreement or any other Security Document or in
writing in connection with this agreement or any other
Security Document proves to be untrue in any material respect
on the date as of which it was made or would, if
27
made at any time with reference to the facts and circumstances
then subsisting, be untrue in any material respect at that time;
20.1.6 a distress or other execution in excess of in aggregate
US$2,500,000 is levied or enforced or sued out upon or against
any part of the property or assets of any Obligor or MIH China
and is not discharged within seven days of having been so
levied, enforced or sued out;
20.1.7 any Obligor or MIH China becomes bankrupt or insolvent, makes a
general assignment for the benefit of creditors, enters into
any composition or arrangement for the benefit of its
creditors, is unable to pay its debts as they fall due, or
admits in writing its inability to pay its debts as they
mature;
20.1.8 an encumbrancer takes possession or a receiver is appointed of
all or any part (the aggregate value (taking the higher of
book value or market value for the relevant assets) of assets
of which is in excess of $2,500,000) of the assets of any Obligor
or MIH China;
20.1.9 (other than in connection with a solvent reconstruction, the
terms of which have been previously approved in writing by the
Bank or a winding up petition which is discharged within 14 days
of its presentation and before it is advertised) a petition is
presented or any order is made or resolution passed for the
liquidation or winding-up of any Obligor or MIH China or any
meeting is convened for the purpose of passing such a
resolution or an application to the court is made to appoint a
receiver, administrator, administrative receiver, trustee in
bankruptcy or similar officer in respect of any Obligor or MIH
China or any property of any Obligor or MIH China or any such
appointment is made or any application for an administration
order in relation to any Obligor or MIH China is presented to
the court or any meeting of any Obligor or MIH China or the
Board of Directors of any Obligor or MIH China is convened for
the purpose of considering any resolution to present an
application for such an order;
20.1.10 anything analogous to and having a substantially similar
effect to any of the events specified in Clauses 20.1.6, 20.1.7,
20.1.8 or 20.1.9 above shall happen under the laws of any
applicable jurisdiction in relation to any Obligor or MIH China;
20.1.11 any Obligor or MIH China shall cease or threaten to cease all
or a substantial part of its operations;
20.1.12 any authorisation, approval or consent required in connection
with the execution, performance, validity and/or
enforceability of this agreement and/or any other Security
Document shall be withdrawn or modified in a manner
unacceptable to the Bank or shall for any reason whatsoever
cease to be in full force and effect;
20.1.13 there shall occur any Material Adverse Effect;
20.1.14 there shall occur any change in the legal or beneficial
ownership of the share capital in any Obligor (other than MIH
or, in the case of Irdeto,
28
where such change is made in accordance with this agreement)
or MIH shall cease to be (directly or indirectly) a subsidiary
of MIH Holdings Limited (in terms of MIH Holdings Limited
holding a majority of the voting rights in MIH), which company
is incorporated in the Republic of South Africa (or if MIH
Holdings Limited merges or is consolidated with MIH Investments
(Pty) Limited, which is incorporated in the Republic of South
Africa, and/or Naspers Limited, which is incorporated in the
Republic of South Africa, MIH Investments (Pty) Limited and/or
Naspers Limited (as the case may be));
20.1.15 anything is done or suffered or omitted to be done by any
Obligor or any MIH Group Company which in the reasonable opinion
of the Bank imperils or may imperil the security granted by
any of the Security Documents or which materially adversely
affects or may affect the ability of any Obligor to perform
their obligations under the Security Documents;
20.1.16 this agreement or any other Security Document or any related
document or thing or the security contemplated thereby for any
reason ceases to be in full force and effect or is void or
illegal or is repudiated by an Obligor or the legality,
validity, priority, admissibility in evidence or enforceability
of any of them is contested by any Obligor or any MIH Group
Company or any of its Subsidiaries; or
20.1.17 it becomes unlawful for any Obligor to perform any of its
obligations under this agreement or any other Security Document.
20.2 If a Demand Event shall occur, the Bank may by notice in writing to the
Borrowers:
20.2.1 terminate the obligations of the Bank hereunder whereupon the
same shall be so terminated; and/or
20.2.2 declare the Advances and all amounts payable hereunder
immediately due and payable, whereupon the Advances together
with all accrued interest thereon and all amounts payable
hereunder shall become immediately due and payable; and/or
20.2.3 declare that the Borrowers shall provide the Bank with one
hundred per cent. cash cover in respect of the maximum potential
liability of the Bank under the Guarantees which the Borrowers
shall provide immediately.
20.3 Without prejudice to the foregoing provisions of this Clause 20, the
Borrowers shall indemnify the Bank against any loss or expense which the
Bank may sustain or incur as a consequence of the happening of any
Demand Event whether or not the Advances are declared to be immediately
due and payable or demand is made on the Borrowers for cash cover in
respect of the Guarantees, including but not limited to any interest or
fees paid or payable on account of any funds borrowed in order to
carry any unpaid amounts.
29
21 FEES
21.1 The Borrowers shall pay to the Bank a commitment fee in U.S. Dollars
computed at the rate of three-fifths of one per cent. per annum on the
average daily amount of the undrawn and unutilised balance of the Loan
Facility contemplated by this agreement, commencing with effect from the
date of this agreement. The commitment fee shall accrue on a daily basis
and shall be payable quarterly in arrears, the first payment to be made
on the date three months after the date of this agreement.
21.2 The Borrowers shall pay to the Bank an arrangement fee of US$475,000 on
the date of this agreement.
22 SET-OFF
Each Borrower hereby authorises the Bank in the event of any
non-payment of any amount under this agreement when due at any time:
22.1.1 to apply any credit balance standing upon any account of it
with any branch of the Bank and in any currency in or towards
satisfaction of any sum due to the Bank under this agreement;
and
22.1.2 in the name of the relevant Borrower and/or the Bank to do all
such acts and execute all such documents as may be necessary or
expedient for any such purpose, including the conversion of any
currency at the Bank's spot rate at the time of such
application.
23 STAMP DUTIES
The Borrowers shall pay and indemnify the Bank in respect of all stamp
duties and like taxes or charges (if any) which may be payable or
determined to be payable in connection with the making, performance or
enforcement of this agreement or any of the other Security Documents.
24 DELAY AND REMEDIES CUMULATIVE
No failure to exercise and no delay in exercising on the part of the
Bank any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege. The Bank's rights and
remedies herein provided are cumulative and not exclusive of any rights
or remedies provided by law.
30
25 NOTICES
25.1 All notices or other communications to or upon any part to this
agreement shall be deemed to have been duly given or made when
delivered (in the case of personal delivery or letter) and when
despatched (in the case of fax) to the party to which such notice or
other communication is required to be given or made under this
agreement, addressed to the addressee at its address identified with
its signature below provided that any party hereto may specify any
other address by notice in writing to the other.
25.2 A written notice or other communication includes, for the purposes of
this agreement, one given or made by fax. It shall, however, be
confirmed promptly by letter provided that failure to comply with such
obligation shall not prejudice the effect or validity of the faxed
notice or other communication.
26 CURRENCY INDEMNITY
26.1 If the Bank receives an amount in respect of the liability of any
Borrower under this agreement or under any Security Document or if such
liability is converted into a claim, proof, judgment or order in a
currency other than the currency (the "contractual currency") in which
the amount is expressed to be payable under this agreement or the
relevant Security Document:
26.1.1 such Borrower shall indemnify the Bank as an independent
obligation against any loss or liability arising out of our
as a result of the conversion;
26.1.2 if the amount received by the Bank, when converted into the
contractual currency at a market rate in the usual course
of its business is less than the amount owed in the
contractual currency, such Borrower shall forthwith on demand
pay to the Bank an amount in the contractual currency equal to
the deficit; and
26.1.3 such Borrower shall pay to the Bank forthwith on demand any
exchange costs and taxes payable in connection with any such
conversion.
26.2 The Borrowers waive any right they may have in any jurisdiction to pay
any amount under this agreement or under any Security Document in a
currency other than that in which it is expressed to be payable.
27 ASSIGNMENTS
This agreement shall be binding upon an inure to the benefit of the
Borrowers and the Bank and their respective successors and assigns,
except that the Borrowers may not assign or transfer all or any of
their rights or obligations hereunder without the prior written consent
of the Bank and the Bank may at any time assign or otherwise transfer
all or any part of its rights hereunder. The Bank may disclose to any
person with whom it may enter into contractual relations in relation to
this agreement such information as it may consider appropriate about
this agreement and the Borrowers.
31
28 COSTS
The Borrowers shall pay all reasonable costs and expenses and
registration charges (including legal fees and value added tax)
incurred or to be incurred by the Bank in the negotiation and
preparation of this agreement and the other Security Documents and any
Guarantee and shall also pay all costs and expenses and registration
charges (including legal fees and value added tax) incurred or to be
incurred by the bank in the preservation of rights under and
enforcement of this agreement and the other Security Documents.
29 SEVERABILITY
Any provision of this agreement which is prohibited or unenforceable in
any jurisdiction shall as to such jurisdiction be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions of this agreement or affecting the validity or
enforceability of such prohibition in any other jurisdiction.
30 JOINT AND SEVERAL LIABILITY
The liability of the borrowers hereunder shall be joint and several and
any demand for payment made on any Borrower shall be deemed to be a
demand made on each of the Borrowers. The Bank may release or discharge
any Borrower from liability hereunder or compound with or make any
other arrangements with such Borrower without thereby releasing or
discharging the other Borrower or otherwise prejudicing its rights
against the other Borrower.
31 COUNTERPARTS
This agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same instrument.
32
32 EXISTING FACILITIES
From the date of this agreement, each Borrower ceases to be entitled
to use any facilities previously made available by the Bank other
than solely with respect to the Existing Guarantees.
33 LAW AND JURISDICTION
33.1 This agreement shall be governed by and construed in accordance with
English law.
33.2 The Borrowers agree for the benefit of the Bank that the courts of
England shall have jurisdiction to hear and determine any suit,
action or proceeding and to settle any disputes, which may arise out
of or in connection with this agreement and, for such purposes,
irrevocably submit to the jurisdiction of such courts.
33.3 The Borrowers irrevocably waive any objection which they might now
or hereafter have to the courts referred to in Clause 33.2 being
nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this agreement and agree not to claim that any such
court is not a convenient or appropriate forum.
33.4 The submission to the jurisdiction of the courts referred to in
Clause 33.2 shall not (and shall not be construed so as to) limit
the right of the Bank to take proceedings against the Borrowers or
any party to any Security Document in any other court of competent
jurisdiction nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other
jurisdictions, whether concurrently or not.
33.5 Each Borrower agrees that the process by which any suit, action or
proceeding against them in England is begun may be served on them by
being delivered to ▇▇▇▇▇▇▇▇ Chance Secretaries Limited at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
IN WITNESS whereof the parties hereto have caused this agreement to be duly
executed on the date first above written.
33
SIGNATORIES
THE BORROWERS
MIH LIMITED
By: /s/ Illegible
-------------------------------------------
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Group Director: Corporate Finance
VILLIERS SECURITIES LIMITED
By: /s/ Illegible
-------------------------------------------
Address: ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Group Director: Corporate Finance
THE BANK
ABSA BANK LIMITED
By: /s/ Illegible
-------------------------------------------
Address: ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Corporate Banking
34