EX-10.55 2 ex1055.htm EXHIBIT 10.55 ex1055
1
EXECUTION
DATED 24 JANUARY,
 
2022
between
CASH CONNECT MANAGEMENT SOLUTIONS PROPRIETARY
 
LIMITED
(as Borrower)
arranged by
FIRSTRAND BANK LIMITED
 
(ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)
(as Mandated Lead Arranger)
and
FIRSTRAND BANK LIMITED
(ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)
(as Facility Agent)
 
2
CONTENTS
Clause
 
Page
3
Schedule 1 The Original Parties
 
........................................................................................................... 95
Schedule 2 Conditions Precedent
 
.......................................................................................................... 97
Schedule 3 Form of Utilisation Request
 
.............................................................................................. 102
Schedule 4 Repayment Schedule
 
........................................................................................................ 103
Schedule 5 Form of Transfer Certificate
 
.............................................................................................. 106
Schedule 6 Form of Accession Letter
 
.................................................................................................. 109
Schedule
 
7 Form of Compliance Certificate
 
........................................................................................
111
Schedule 8 Form of Equity Cure Notice
 
.............................................................................................. 112
Schedule 9 Transaction Security
 
......................................................................................................... 114
Schedule 10 Acceptable Lenders
 
........................................................................................................ 115
Schedule 11 Disclosure Schedule
 
....................................................................................................... 116
1
THIS AGREEMENT
 
is made between:
(1)
CASH CONNECT MANAGEMENT
 
SOLUTIONS PROPRIETARY
 
LIMITED
, registration number
 
2006/010530/07, a
company incorporated under the laws of South Africa, as borrower (the
Borrower
);
(2)
THE PARTIES
 
listed in Part I of
 
(The Original Parties) as original guarantors (the
Original Guarantors
);
(3)
FIRSTRAND BANK LIMITED (ACTING THROUGH ITS RAND MERCHANT
 
BANK DIVISION)
 
as mandated lead
arranger (the
Arranger
);
(4)
THE FINANCIAL INSTITUTIONS
 
listed in Part II
 
of
 
(The Original Parties) as
 
term lenders (the
Original Term
Lenders
);
(5)
FIRSTRAND BANK
 
LIMITED (ACTING
 
THROUGH ITS
 
RAND MERCHANT
 
BANK DIVISION)
 
as lender
 
under
the general banking facilities (the
GBF
Lender
);
(6)
FIRSTRAND BANK
 
LIMITED (ACTING
 
THROUGH ITS
 
RAND MERCHANT
 
BANK DIVISION)
 
as facility
 
agent
of the other Finance Parties (the
Facility Agent
).
IT IS AGREED
 
as follows:
SECTION 1
INTERPRETATION
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
1.1.1
Absa Release
 
Letter
means the
 
release letter
 
dated on
 
or about
 
the date
 
of this
 
Agreement given
 
by Absa
 
Bank
Limited.
1.1.2
Acceptable Bank
 
means:
(a)
any of Absa
 
Bank Limited, Capitec
 
Bank Limited, FirstRand
 
Bank Limited, Investec
 
Bank Limited, Nedbank
Limited and The Standard Bank of South Africa Limited;
(b)
Bank Windhoek Limited and First National Bank of Namibia Limited and Standard Bank Namibia Limited;
(c)
First National Bank of Botswana Limited, Bank Gaborone Limited and
 
Absa Bank Botswana Limited;
(d)
a bank
 
or financial
 
institution which
 
has an
 
international rating
 
for its
 
long-term unsecured
 
and non-credit
enhanced debt obligations
 
of A+
 
or higher by
 
Standard & Poor's
 
Ratings Services or
 
A1 or higher
 
by Moody's
Investor Services Limited, or a comparable rating from
 
an internationally recognised credit rating agency; or
(a)
any other bank or financial institution approved by the Facility Agent.
1.1.3
Accession Letter
means, in respect of
 
an Additional Guarantor, a document substantially in
 
the form set out
 
in Part
I of
 
(
).
1.1.4
Accounting Reference Date
 
means:
(a)
from the Closing Date until 28 February,
 
2022, the last day of February each year;
(b)
from 1 March, 2022, 30 June each year (or such other date each year
 
agreed by the Facility Agent).
1.1.5
Acquisition
 
means the purchase
 
by Net1 of
 
the shares and
 
claims in the
 
Target
 
Companies from
 
the "Sellers" as
defined in the SPA.
 
2
1
2
1
2
1
1
T
T
]
R
[R
]
T
[T
R
R
-
-
´
-
+
=
1.1.6
Acquisition Date
means the date on which the Acquisition is implemented.
1.1.7
Acquisition Documents
 
means:
(a)
the SPA;
(b)
the agreement
 
entitled "Cancellation Agreement"
 
concluded on
 
31 October 2021
 
between Luxanio
 
and the
Borrower;
(c)
the agreement entitled "Redemption
 
Agreement" concluded on 31 October
 
2021 between the Borrower and
Richard Phillips;
(d)
the
 
agreement
 
entitled
 
"Share
 
Sale
 
Agreement"
 
concluded
 
on
 
31 October
 
2021
 
between
 
Pierre
 
Johann
Liebenberg and the Borrower; and
(e)
the agreement entitled
 
"Share Sale Agreement"
 
concluded on 31 October
 
2021 between Alan
 
Serrurier and
the Borrower;
(f)
any other document designated
 
as an “Acquisition Document”
 
by written agreement between
 
the Borrower
and the Facility Agent.
1.1.8
Additional Guarantor
 
means a company which becomes
 
an Additional Guarantor in accordance with
 
Clause
(
).
1.1.9
Additional Obligor
means an Additional Guarantor.
1.1.10
Affiliate
, in relation to any person, means a Subsidiary of that person or a
 
Holding Company of that person, or any
other Subsidiary of that Holding Company.
1.1.11
Annual Financial Statements
 
has the meaning given to that term in Clause
 
(Information Undertakings).
1.1.12
Auditors
 
means PwC, EY,
 
KPMG, Deloitte and BDO or any other firm approved in advance by the Lenders (such
approval not to be unreasonably withheld or delayed).
1.1.13
Authorisation
 
means
 
an
 
authorisation,
 
consent,
 
approval,
 
resolution,
 
licence,
 
exemption,
 
filing,
 
notarisation
 
or
registration.
1.1.14
Availability
 
Period
 
means, in relation
 
to a Term
 
Facility,
 
the period from
 
and including the
 
Closing Date to
 
and
including the date falling two weeks from the Closing Date.
1.1.15
Available Commitment
 
means, in relation to a Term
 
Facility, a Lender's Commitment under
 
that Facility minus:
(a)
the amount of its participation in any outstanding Loans under that Facility; and
(b)
in relation to
 
any proposed Utilisation,
 
the amount of
 
its participation in
 
any other Loans
 
that are due
 
to be
made under that Facility on or before the proposed Utilisation Date.
1.1.16
Available Facility
 
means, in relation
 
to a Term Facility, the aggregate
 
for the time
 
being of each
 
Lender's Available
Commitment in respect of that Facility.
1.1.17
Base Case Model
 
means the financial model in a form agreed between the Borrower and the Finance Parties prior
to the Closing Date.
1.1.18
Base Rate
means for an Interest
 
Period of the
 
Loan or Unpaid Sum,
 
JIBAR, or for an
 
Interest Period of the
 
Loan
or Unpaid Sum which is less than or greater than a full period of three months (a
Broken JIBAR Period
), the rate
determined in accordance with the following formula:
3
where:
R
 
=
 
the Base Rate;
R
1
 
=
 
JIBAR for the period closest to but less than the Broken JIBAR Period plus, if this would result in
R
1
 
being equal to the JIBAR Overnight Deposit Rate, 0.10 per cent.;
R
2
 
=
 
JIBAR for the period closest to but greater than the Broken JIBAR Period;
T
 
=
 
the number of days in the Broken JIBAR Period;
T
1
 
=
 
the
 
number
 
of days
 
in
 
the period
 
for
 
which
 
R
1
 
is quoted
 
on the
 
first
 
day
 
of
 
the Broken
 
JIBAR
Period;
T
2
 
=
 
the
 
number
 
of days
 
in
 
the period
 
for
 
which
 
R
2
 
is quoted
 
on the
 
first
 
day
 
of
 
the Broken
 
JIBAR
Period.
1.1.19
BEE
 
Party
 
means
 
a
 
juristic
 
person,
 
trust
 
or
 
entity
 
in
 
respect
 
of
 
which
 
historically
 
disadvantaged
 
persons
beneficially hold and control at least the
 
minimum percentage ownership interests therein
 
and/or derive therefrom
the minimum economic
 
benefits as may be
 
stipulated from time to
 
time pursuant to the
 
applicable industry sector
charter, as read with any applicable black economic empowerment codes of conduct and which,
 
in any case, is not
a member of the Group.
1.1.20
Borrower
 
means the Borrower.
1.1.21
Borrowings
 
has the meaning given to that term in Clause
 
(
).
1.1.22
Break Costs
 
means the amount (if any) by which:
(a)
the interest excluding the
 
Margin which a Lender should
 
have received for the
 
period from the date
 
of receipt
of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in
respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last
day of that Interest Period;
exceeds:
(b)
the amount which
 
that Lender would
 
be able to
 
obtain by placing
 
an amount equal
 
to the principal
 
amount
or Unpaid
 
Sum received
 
by it
 
on deposit
 
with a
 
leading bank
 
in the
 
Johannesburg
 
interbank market
 
for a
period starting on
 
the Business Day
 
following receipt or
 
recovery and ending
 
on the last
 
day of the
 
current
Interest Period.
1.1.23
Break Gains
 
means the amount (if
 
any) by which the
 
amount referred to in
 
Clause
 
exceeds the amount
referred to in Clause
1.1.24
Business Day
 
means a
 
day (other
 
than a
 
Saturday or
 
Sunday) on
 
which banks
 
are open
 
for general
 
business in
Johannesburg.
1.1.25
Capital Expenditure
 
has the meaning given to that term in Clause
 
(
).
1.1.26
Cash
 
means, at any time,
 
cash denominated in ZAR
 
in hand or
 
at bank and (in
 
the latter case)
 
credited to an
 
account
in the name of
 
an Obligor with an
 
Acceptable Bank and to which
 
an Obligor is alone
 
beneficially entitled and for
so long as:
(a)
that cash is repayable on demand or within 30 days after the relevant date
 
of calculation;
(b)
repayment of that cash is not
 
contingent on the prior discharge
 
of any other indebtedness of
 
any member of
the Group or of any other person whatsoever
 
or on the satisfaction of any other condition;
4
(c)
there is no Security
 
over that cash except
 
for Transaction
 
Security or any Permitted
 
Security constituted by
a netting or set-off
 
arrangement entered into by members of
 
the Group in the ordinary course of
 
its banking
arrangements; and
(d)
the cash
 
is freely
 
and (except
 
as mentioned
 
in paragraph
 
above) immediately
 
available to
 
be applied
 
in
repayment or prepayment of the Facilities.
1.1.27
Cash Connect Capital
 
means Cash Connect Capital Proprietary Limited (registration number 2017/029430/07), a
company registered under the laws of South Africa.
1.1.28
Cash Equivalent Investments
 
means at any time:
(a)
certificates
 
of
 
deposit
 
maturing
 
within
 
90
 
days
 
after
 
the
 
relevant
 
date
 
of
 
calculation
 
and
 
issued
 
by
 
an
Acceptable Bank;
(b)
commercial paper not convertible or exchangeable to any other security:
(i)
for which a recognised trading market exists;
(ii)
which matures within 90 days after the relevant date of calculation; and
(iii)
which has a credit rating of either A-1 or higher by Standard & Poor's Rating Services or F1 or higher
by Fitch Ratings
 
Ltd or P-1
 
or higher by
 
Moody's Investors Service
 
Limited, or, if no
 
rating is available
in respect of the commercial
 
paper, the issuer of
 
which has, in respect of its long
 
-term unsecured and
non-credit enhanced debt obligations, an equivalent rating;
(c)
any investment in:
(i)
a
 
money
 
market
 
collective
 
investment
 
scheme
 
of
 
Absa
 
Bank
 
Limited,
 
FirstRand
 
Bank
 
Limited,
Investec Bank
 
Limited, Nedbank
 
Limited or
 
The Standard
 
Bank of
 
South Africa
 
Limited or
 
money
market funds which have a credit rating of either A-1 or higher by Standard
 
& Poor's Rating Services
or F1 or higher by Fitch Ratings Ltd or P-1 or higher by Moody's Investors Service
 
Limited; and
(ii)
invest substantially all their assets in securities of the types described in paragraphs
 
to
 
above,
to the extent that investment can be turned into cash on not more than 30 days' notice;
 
or
(d)
any other debt security approved by the Lenders,
in each case, denominated in ZAR and to which any Obligor is alone beneficially entitled at that time and which is
not subject to any Security (other than Security arising under the Transaction
 
Security Documents).
1.1.29
Cashflow
 
has the meaning given to that term in Clause
 
(
).
1.1.30
Change of Control
 
means, in respect
 
of the Borrower, Net1
 
ceases to
 
directly or indirectly
 
have the power
 
(whether
by way of ownership of shares, proxy,
 
contract, agency or otherwise) to:
(a)
cast, or control the casting of:
(i)
before
 
any
 
Permitted
 
BEE
 
Transaction,
 
100
 
per
 
cent.
 
of
 
the
 
votes
 
that
 
might
 
be
 
cast
 
at
 
a
 
general
meeting of the Borrower;
(ii)
after
 
any
 
Permitted
 
BEE
 
Transaction,
 
75.00
 
per
 
cent.
 
of
 
the
 
votes
 
that
 
might
 
be
 
cast
 
at
 
a
 
general
meeting of the Borrower;
(b)
appoint or remove all, or the majority,
 
of the directors or other equivalent officers of the Borrower; or
(c)
give directions with respect
 
to the operating and financial policies
 
of the Borrower with which
 
the directors
or other equivalent officers of the Borrower are obliged to
 
comply.
5
1.1.31
Closing Date
 
means
 
the date
 
on which
 
the Facility
 
Agent
 
issues the
 
notice
 
contemplated
 
by Clause
 
(
.
1.1.32
Code
 
means the US Internal Revenue Code of 1986.
1.1.33
Commitment
 
means:
(a)
a Facility A Commitment;
(b)
a Facility B Commitment;
 
(c)
a GBF Commitment.
1.1.34
Compliance Certificate
 
means a certificate
 
substantially in the
 
form set out
 
in
 
(
).
1.1.35
Confidential
 
Information
 
means
 
all
 
information
 
relating
 
to
 
the
 
Group,
 
any
 
other
 
Obligor,
 
the
 
Acquisition
Documents, the Acquisition,
 
the Finance Documents
 
or a Facility
 
of which a
 
Finance Party becomes
 
aware in its
capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to,
or for the purpose of becoming a Finance Party under,
 
the Finance Documents or a Facility from either:
(a)
any member of the Group, or any of its advisers; or
(b)
another Finance Party,
 
if the information was obtained by
 
that Finance Party directly or indirectly
 
from any
member of the Group or any of its advisers,
in whatever
 
form,
 
and includes
 
information
 
given orally
 
and any
 
document,
 
electronic file
 
or
 
any
 
other
 
way of
representing or recording information which contains or is derived or copied from
 
such information but excludes:
(i)
information that:
(A)
is or becomes
 
public information
 
other than as
 
a direct or
 
indirect result of
 
any breach by
 
that
Finance Party of Clause
 
(Confidential Information); or
(B)
is identified in writing at
 
the time of delivery as non-confidential
 
by any member of the
 
Group
or any of its advisers; or
(C)
is known by
 
that Finance Party
 
before the date
 
the information is
 
disclosed to it in
 
accordance
with paragraphs
 
or
 
above or
 
is lawfully
 
obtained by
 
that Finance
 
Party after
 
that date,
from a source
 
which is, as far
 
as that Finance
 
Party is aware,
 
unconnected with the
 
Group and
which, in either
 
case, as far as
 
that Finance Party
 
is aware, has not
 
been obtained in
 
breach of,
and is not otherwise subject to, any obligation of confidentiality.
 
1.1.36
Confidentiality
 
Undertaking
 
means
 
a
 
confidentiality
 
undertaking
 
substantially
 
in
 
a
 
recommended
 
form
 
of the
LMA, or in any other form agreed between the Borrower and the Facility Agent.
1.1.37
Default
 
means an Event of Default or any event or circumstance specified in Clause
 
(Events of Default) which
would (with the expiry of
 
a grace period, the giving of
 
notice, the making of any determination
 
under the Finance
Documents or any combination of any of the foregoing) be an Event of Default.
1.1.38
Deposit Manager
means Deposit Manager Proprietary Limited (registration number 2010/016889/07), a company
registered under the laws of South Africa.
1.1.39
Disclosure Schedule
means the disclosure schedule set out in
 
(
).
1.1.40
Disposal
 
has the meaning given to that term in Clause
 
(
).
1.1.41
Disruption Event
 
means:
6
(a)
a material disruption
 
to those payment or
 
communications systems or to
 
those financial markets which
 
are,
in
 
each
 
case,
 
required
 
to
 
operate
 
in
 
order
 
for
 
payments
 
to
 
be
 
made
 
in
 
connection
 
with
 
the
 
Facilities
 
(or
otherwise
 
in
 
order
 
for
 
the
 
transactions
 
contemplated
 
by
 
the Finance
 
Documents
 
to
 
be
 
carried
 
out)
 
which
disruption is not caused by,
 
and is beyond the control of, any of the Parties; or
(b)
the occurrence of
 
any other event
 
which results in
 
a disruption (of
 
a technical or
 
systems-related nature) to
the treasury or payments operations of a Party preventing that, or any other Party:
(i)
from performing its payment obligations under the Finance Documents;
 
or
(ii)
from communicating with other Parties in accordance with the terms of
 
the Finance Documents,
and which (in either such case) is
 
not caused by, and is beyond the control of, the Party whose
 
operations are
disrupted.
1.1.42
EBITDA
 
has the meaning given to that term in Clause
 
(
).
1.1.43
Eligible Institution
 
means any
 
Lender or
 
other bank,
 
financial institution,
 
trust, fund
 
or other
 
entity selected
 
by
the Borrower.
1.1.44
Environment
 
means humans,
 
animals, plants
 
and all
 
other living
 
organisms including
 
the ecological
 
systems of
which they form part and the following media:
(a)
air
 
(including,
 
without
 
limitation,
 
air
 
within
 
natural
 
or
 
man-made
 
structures,
 
whether
 
above
 
or
 
below
ground);
(b)
water (including,
 
without limitation,
 
territorial,
 
coastal and
 
inland
 
waters, water
 
under or
 
within land
 
and
water in drains and sewers); and
(c)
land (including, without limitation, land under water).
1.1.45
Environmental
 
Claim
 
means any
 
claim, proceeding,
 
formal notice
 
or investigation
 
by any
 
person in
 
respect of
any Environmental Law.
1.1.46
Environmental Law
 
means any applicable law or regulation which relates to:
(a)
the pollution or protection of the Environment;
(b)
the conditions of the workplace; or
(c)
the generation,
 
handling, storage,
 
use, release
 
or spillage
 
of any
 
substance which,
 
alone or
 
in combination
with any other, is capable of causing harm
 
to the Environment, including, without limitation, any waste.
1.1.47
Environmental
 
Permits
 
means any
 
permit
 
and other
 
Authorisation
 
and
 
the filing
 
of any
 
notification,
 
report or
assessment required under
 
any Environmental Law
 
for the operation of
 
the business of any
 
member of the Group
conducted on or from the properties owned or used by any member of the
 
Group.
1.1.48
Equity Cure Proceeds
has the meaning given to that term in Clause
 
(
).
1.1.49
Event of Default
 
means any event or circumstance specified as such in Clause
 
(Events of Default).
1.1.50
Excess Cashflow
, on an Excess Cashflow
 
Measurement Date, means the
 
Cash and Cash Equivalents Investments
balances of the Group:
(a)
minus
 
all proceeds received
 
in cash by any
 
member of the Group
 
in respect of the
 
disposal of an asset
 
or a
claim under a contract of insurance which, under the authority of a resolution of the directors of the relevant
member
 
of the
 
Group,
 
adopted and
 
passed within
 
90 days
 
of receipt
 
of those
 
proceeds,
 
are to
 
be applied
within 180
 
days of
 
receipt to
 
replace an
 
asset or
 
insurance or
 
disposal proceeds
 
offered and
 
not applied
 
in
prepayment of the Facility Outstandings;
7
(b)
minus
 
all Capital
 
Expenditure projected
 
to fall due
 
for payment
 
by members of
 
the Group during
 
the next
six months, if the projected Capital Expenditure:
(i)
has been approved by the board of the relevant member of the Group;
(ii)
is disclosed to
 
the Facility Agent
 
in a schedule
 
of projected Capital
 
Expenditure for the
 
next six months
delivered to it with the Compliance Certificate;
(c)
minus
 
ZAR25,000,000.
1.1.51
Excess Cashflow Measurement
 
Date
means the last day of the
 
Financial Year
 
and the last day of each
 
Financial
Half-Year
 
.
1.1.52
Existing Absa
 
Financial Indebtedness
means the
 
existing Financial
 
Indebtedness owing
 
to Absa
 
Bank Limited
disclosed in the Disclosure Schedule and of which:
(a)
"Facility A",
 
"Facility B",
 
"Facility C",
 
the "Overdraft
 
Facility" and
 
the "Asset
 
Finance Facility"
 
shall be
refinanced in full on the first Utilisation Date; and
(b)
the remainder
 
shall be
 
refinanced in
 
full within
 
60 days
 
of the
 
Closing Date
 
or such
 
later
 
date as
 
may be
agreed by the Facility Agent acting reasonably.
1.1.53
Existing Financial Indebtedness
means the existing Financial Indebtedness disclosed in the Disclosure Schedule.
1.1.54
Facility
 
means a Term Facility or
 
the GBF Facility.
1.1.55
Facility
 
A
 
means
 
the
 
term
 
loan
 
facility
 
made
 
available
 
under
 
this
 
Agreement
 
as
 
described
 
in
 
Clause
 
(
).
1.1.56
Facility A Commitment
 
means:
(a)
in
 
relation
 
to
 
an
 
Original
 
Term
Lender,
 
the
 
amount
 
set
 
opposite
 
its
 
name
 
under
 
the
 
heading
 
"Facility
 
A
Commitment" in Part II
 
of
 
(
) and the amount of
 
any other Facility A Commitment
transferred to it under this Agreement; and
(b)
in
 
relation
 
to
 
any
 
other
 
Lender,
 
the
 
amount
 
of
 
any
 
Facility
 
A
 
Commitment
 
transferred
 
to
 
it
 
under
 
this
Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
1.1.57
Facility A
 
Loan
 
means a
 
loan made
 
or to
 
be made
 
under Facility
 
A or
 
the principal
 
amount outstanding
 
for the
time being of that loan.
1.1.58
Facility
 
B
 
means
 
the
 
term
 
loan
 
facility
 
made
 
available
 
under
 
this
 
Agreement
 
as
 
described
 
in
 
Clause
 
(The
Facilities).
1.1.59
Facility B Commitment
 
means:
(a)
in
 
relation
 
to
 
an
 
Original
 
Term
Lender,
 
the
 
amount
 
set
 
opposite
 
its
 
name
 
under
 
the
 
heading
 
"Facility
 
B
Commitment" in Part II
 
of
 
(
) and the amount of
 
any other Facility B Commitment
transferred to it under this Agreement; and
(b)
in
 
relation
 
to
 
any
 
other
 
Lender,
 
the
 
amount
 
of
 
any
 
Facility
 
B
 
Commitment
 
transferred
 
to
 
it
 
under
 
this
Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
1.1.60
Facility B
 
Loan
 
means a
 
loan made
 
or to
 
be made
 
under Facility
 
B or
 
the principal
 
amount outstanding
 
for the
time being of that loan.
8
1.1.61
FATCA
 
means:
(a)
sections 1471 to 1474 of the Code or any associated regulations;
(b)
any treaty, law or regulation of any
 
other jurisdiction, or relating to
 
an intergovernmental agreement between
the
 
US
 
and
 
any
 
other
 
jurisdiction,
 
which
 
(in
 
either
 
case)
 
facilitates
 
the
 
implementation
 
of
 
any
 
law
 
or
regulation referred to in paragraph
 
above; or
(c)
any agreement pursuant
 
to the implementation
 
of any treaty,
 
law or regulation
 
referred to in paragraphs
or
 
above
 
with the
 
US Internal
 
Revenue
 
Service,
 
the US
 
government
 
or any
 
governmental
 
or taxation
authority in any other jurisdiction.
1.1.62
FATCA
 
Application Date
 
means:
(a)
in
 
relation
 
to
 
a
withholdable
 
payment
 
described
 
in
 
section
 
1473(1)(A)(i)
 
of
 
the
 
Code
 
(which
 
relates
 
to
payments of interest and certain other payments from sources within the US), 1
 
July 2014; or
(b)
in relation to a
passthru payment
 
described in section 1471(d)(7)
 
of the Code not falling within
 
paragraph
 
above, the first
 
date from which
 
such payment may
 
become subject to
 
a deduction or
 
withholding required
by FATCA.
1.1.63
FATCA
 
Deduction
 
means a
 
deduction
 
or withholding
 
from a
 
payment under
 
a Finance
 
Document
 
required by
FATCA.
1.1.64
FATCA
 
Exempt Party
 
means a Party that is entitled to receive payments free from any FATCA
 
Deduction.
1.1.65
Fee Letter
 
means:
(a)
any letter or
 
letters dated on
 
or about the
 
date of this
 
Agreement between
 
the Arranger and
 
a Borrower (or
the Facility Agent and a Borrower) setting out any of the fees referred to in Clause
 
(Fees); and
(b)
any agreement setting out fees payable to a Finance Party under any other
 
Finance Document.
1.1.66
Final Maturity
 
Date
 
means, in relation
 
to Facility A
 
and Facility B,
 
the date falling
 
five years
 
from the
 
Closing
Date.
1.1.67
Finance Document
 
means:
(a)
this Agreement;
(b)
each Transaction Security Document;
(c)
the Funds Flow and Release Agreement;
(d)
each GBF Document;
(e)
any Accession Letter;
(f)
any Compliance Certificate;
(g)
any Fee Letter;
 
(h)
any Resignation Letter;
 
(i)
any Utilisation Request; or
 
(j)
any other document designated as a "Finance Document" by the Facility Agent
 
and a Borrower.
1.1.68
Finance Lease
 
has the meaning given to that term in Clause
 
(
).
1.1.69
Finance Party
 
means:
9
(a)
the Facility Agent;
 
(b)
the Arranger; or
(c)
a Lender.
1.1.70
Financial Indebtedness
 
means, without double counting, any indebtedness for or in respect of:
(a)
moneys borrowed, credit provided and debit balances at banks or other financial
 
institutions;
(b)
any acceptance under any acceptance credit or bill discounting facility (or
 
dematerialised equivalent);
(c)
any note purchase facility or the issue of bonds, notes, debentures, loan
 
stock or any similar instrument;
(d)
the amount of any liability in respect of Finance Leases;
(e)
receivables sold or discounted (other than any receivables to the extent they are sold on a
 
non-recourse basis
and meet any requirement for de-recognition under IFRS or IFRS for
 
SMEs (as applicable));
(f)
any Treasury Transaction
 
(and, when calculating the value of that Treasury
 
Transaction, only the marked to
market
 
value
 
(or,
 
if
 
any
 
actual amount
 
is due
 
as
 
a
 
result
 
of
 
the
 
termination
 
or
 
close-out of
 
that
 
Treasury
Transaction, that amount) shall be taken
 
into account);
(g)
without
 
double
 
counting,
 
any
 
counter-indemnity
 
obligation
 
in
 
respect
 
of
 
a
 
guarantee,
 
bond,
 
standby
 
or
documentary letter of credit or any other instrument issued by a bank or financial
 
institution;
(h)
any amount raised by the issue of shares which are redeemable (other
 
than at the option of the issuer) or are
otherwise classified as borrowings under IFRS or IFRS for SMEs (as applicable);
(i)
any amount of any
 
liability under an
 
advance or deferred
 
purchase agreement if (i)
 
one of the
 
primary reasons
behind entering into the agreement is
 
to raise finance or to
 
finance the acquisition or construction of
 
the asset
or service
 
in question
 
or (ii)
 
the agreement
 
is in
 
respect of
 
the supply
 
of assets
 
or services
 
and payment
 
is
due more than 90 days after the date of supply;
(j)
any amount raised under any other transaction (including any forward sale or
 
purchase, sale and sale back or
sale
 
and
 
leaseback
 
agreement)
 
having
 
the
 
commercial
 
effect
 
of
 
a
 
borrowing
 
or
 
otherwise
 
classified
 
as
borrowings under IFRS or IFRS for SMEs (as applicable); and
(k)
without double counting, the amount of
 
any liability in respect of any guarantee
 
or indemnity for any of the
items referred to in paragraphs
 
to
 
above.
1.1.71
Financial Half-Year
 
has the meaning given to that term in Clause
 
(
).
1.1.72
Financial Year
 
has the meaning given to that term in Clause
 
(
).
1.1.73
GBF Agreement
 
means:
(a)
the Original GBF Agreement; or
(b)
any other facility agreement or facility letter entered into by a Borrower and the GBF Lender to regulate the
terms on which a GBF Facility is to be provided.
1.1.74
GBF Commitment
means the Original
 
GBF Commitment, to
 
the extent not
 
cancelled or reduced
 
under the GBF
Agreement relating to the applicable GBF Facility (subject to the requirements
 
of the Finance Documents).
1.1.75
GBF Document
means:
(a)
a GBF Agreement; or
(b)
a document
 
(including
 
a document
 
in electronic
 
format only)
 
entered
 
into from
 
time to
 
time between
 
the
10
GBF Lender and a Borrower, which evidences a facility, financial instrument or a financial service provided
as part of the GBF Facility.
1.1.76
GBF
Facility
 
means:
(a)
the Original GBF Facility; or
(b)
any other direct
 
and indirect general
 
banking facility provided
 
by the GBF Lender
 
to a Borrower
 
under the
GBF Agreement.
1.1.77
Group
 
means the Borrower and K2021 and each of their Subsidiaries for the time
 
being.
1.1.78
Guarantor
means:
(a)
each Original Guarantor; or
(b)
any other Additional Guarantor.
1.1.79
Holding Company
 
means, in relation to a person, any other person in respect of which it is a Subsidiary.
1.1.80
IFRS
 
means
 
international
 
accounting
 
standards
 
within the
 
meaning
 
of IAS
 
Regulation
 
1606/2002
 
to
 
the extent
applicable to the relevant financial statements.
1.1.81
Intellectual Property
 
means:
(a)
any patents, trade marks, service marks, designs, business names,
 
copyrights, database rights, design rights,
domain names, moral
 
rights, inventions, confidential
 
information, knowhow and
 
other intellectual property
rights and interests (which may now or in the future subsist), whether registered or unregistered;
 
and
(b)
the benefit of all applications and rights to use such assets of each member of the Group (which may now or
in the future subsist).
1.1.82
Interest Payment Date
 
means each of 31 March, 30 June, 30 September
 
and 31 December, and the Final Maturity
Date.
1.1.83
Interest
 
Period
 
means,
 
in
 
relation
 
to
 
a
 
Loan,
 
each
 
period
 
determined
 
in
 
accordance
 
with
 
Clause
 
(Interest
Periods)
 
and,
 
in
 
relation
 
to
 
an
 
Unpaid
 
Sum,
 
each
 
period
 
determined
 
in
 
accordance
 
with
 
Clause
 
(Default
interest).
1.1.84
Internally
 
Generated
 
Cash
 
means
 
funds
 
generated
 
from
 
the
 
operating
 
activities
 
of
 
the
 
Group
 
in
 
the
 
ordinary
course of business
 
but excluding,
 
for the avoidance
 
of doubt, any
 
Equity Cure Proceeds
 
and any proceeds
 
of any
Financial Indebtedness raised from any Refinancing.
1.1.85
JIBAR
means, for an Interest Period of a Loan or Unpaid Sum:
(a)
the applicable Screen Rate; or
(b)
(if no Screen Rate is available for the Interest Period of the Loan or Unpaid Sum) the arithmetic mean of the
rates (rounded upwards to four decimal places), as
 
supplied to the Facility Agent at
 
its request, quoted by the
Reference Banks to leading banks
 
in the Johannesburg interbank
 
market, as of 11h00 on
 
the Quotation Day
for the offering of deposits in Rand for a period comparable to
 
that Interest Period.
1.1.86
JIBAR Overnight Deposit Rate
means:
(a)
the applicable Screen Rate; or
(b)
(if no Screen
 
Rate is available)
 
the arithmetic
 
mean of
 
the rates (rounded
 
upwards to four
 
decimal places),
as
 
supplied
 
to
 
the
 
Facility
 
Agent
 
at
 
its
 
request,
 
quoted
 
by
 
the
 
Reference
 
Banks
 
to
 
leading
 
banks
 
in
 
the
Johannesburg interbank
 
market, as of 11h00
 
on the Quotation
 
Day for the offering
 
of overnight deposits
 
in
Rand.
 
11
1.1.87
Joint Venture
 
means any joint
 
venture entity,
 
partnership or similar
 
person, comprising an
 
association of two
 
or
more persons
 
to undertake
 
a business
 
enterprise through
 
a combination
 
of assets
 
and/or expertise,
 
the ownership
of, or
 
other interest in,
 
which does
 
not require
 
any member of
 
the Group
 
to consolidate the
 
results of that
 
person
with its own as a Subsidiary.
1.1.88
K2020
means K2020263969 (South
 
Africa)
Proprietary Limited (registration
 
number 2020/263969/07), a
 
company
registered under the laws of South Africa.
1.1.89
K2020 Facility Agreement
means the facility agreement dated on
 
or about 15 February, 2021 between K2020 and
FirstRand Bank Limited (acting through its Rand Merchant Bank division).
1.1.90
K2021
means K2021477132 (South
 
Africa) Proprietary Limited
 
(registration number 2021/477132/07), a
 
company
registered under the laws of South Africa.
1.1.91
K2021
 
Consent
means
 
the
 
consent
 
given
 
by
 
FirstRand
 
Bank
 
Limited
 
(acting
 
through
 
its Rand
 
Merchant
 
Bank
division) to K2021 to enter into this Agreement.
1.1.92
Kazang
 
Prepaid
 
means Kazang
 
Prepaid (Proprietary)
 
Limited (registration
 
number
 
CO2017/2253),
 
a company
registered under the laws of Botswana.
1.1.93
Lender
 
means:
(a)
any Original Term
Lender;
 
(b)
the GBF Lender; or
(c)
any
 
bank,
 
financial
 
institution,
 
trust,
 
fund
 
or
 
other
 
entity
 
which
 
has
 
become
 
a
 
Party
 
as
 
a
 
"Lender"
 
in
accordance with Clause
 
(Changes to the Lenders),
which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.
1.1.94
LMA
 
means the Loan Market Association.
1.1.95
Loan
 
means a loan made or to be made under a Facility,
 
or the principal amount outstanding for the time being of
that loan.
1.1.96
Margin
 
means:
(a)
in relation to any Facility A Loan:
(i)
while the Leverage Ratio is greater than or equal to 3.50 times, 4.00 per cent. per
 
annum;
(ii)
while the Leverage Ratio is between 2.50 times and 3.5 times, 3.75 per cent. per
 
annum;
(iii)
while the Leverage Ratio is less than or equal to 2.50 times, 3.40 per cent. per annum,
with effect from the date of occurrence of an Event of Default and for so long as it is continuing, the Margin
detailed above plus 2.00 per cent.
(b)
in relation to any Facility B Loan:
(i)
while the Leverage Ratio is greater than or equal to 3.50 times, 4.00 per cent. per
 
annum;
(ii)
while the Leverage Ratio is between 2.50 times and 3.5 times, 3.75 per cent. per
 
annum;
(iii)
while the Leverage Ratio is less than or equal to 2.50 times, 3.40 per cent. per annum,
with effect from the date of occurrence of an Event of Default and for so long as it is continuing, the Margin
detailed above plus 2.00 per cent.
12
(c)
in relation to any Unpaid Sum
 
relating or referable to a Facility,
 
the rate per annum specified above for
 
that
Facility; and
(d)
in relation to any other Unpaid Sum, the highest rate specified above.
1.1.97
Luxanio
 
means
 
Luxanio
 
227
 
Proprietary
 
Limited
 
(registration
 
number
 
2018/605739/07),
 
a
 
company
 
registered
under the laws of South Africa.
1.1.98
Main Street 1723
 
means Main Street 1723 Proprietary Limited (registration number 2019/300711/07), a company
registered under the laws of South Africa.
1.1.99
Material Adverse Effect
 
means the occurrence
 
of any event or
 
circumstance or the
 
change in any circumstances
which, in the reasonable opinion of the Lender,
 
is likely to have a material adverse effect on:
(a)
the business, operations, property,
 
condition (financial or otherwise), or prospects of any Obligor;
(b)
the ability of an Obligor to perform its obligations under the Finance Documents
 
to which it is a party; or
(c)
the validity
 
or enforceability of
 
any of, or
 
the effectiveness
 
or ranking of
 
any Transaction
 
Security granted
or
 
purporting
 
to
 
be
 
granted
 
pursuant
 
to
 
any
 
of,
 
the
 
Finance
 
Documents
 
or
 
the
 
rights
 
or
 
remedies
 
of
 
any
Finance Party under any of the Finance Documents.
1.1.100
Material Subsidiary
 
means a Subsidiary of the Borrower
 
whose gross assets, EBITDA (as defined
 
in this Clause
below) or total
 
revenue equal or exceed
 
5.00 per cent. or
 
more of the gross
 
assets, Consolidated EBITDA
 
or total
revenue of the Group.
 
For this purpose:
(a)
the gross assets, EBITDA
 
or total revenue of a
 
Subsidiary of the Borrower
 
will be determined using
 
the latest
audited consolidated financial statements of the Borrower;
(b)
if a
 
Subsidiary of
 
the Borrower
 
becomes a
 
member of
 
the Group after
 
the date on
 
which the
 
latest audited
consolidated
 
financial statements
 
of the
 
Borrower
 
have been
 
prepared,
 
the gross
 
assets, EBITDA
 
or total
revenue of that Subsidiary will be determined from its latest consolidated financial
 
statements;
(c)
the
 
gross
 
assets,
 
Consolidated
 
EBITDA
 
or
 
total
 
revenue
 
of the
 
Group
 
will be
 
determined
 
from
 
the latest
audited consolidated financial statements of the Borrower;
(d)
the
EBITDA
 
of
 
a
 
Subsidiary
 
(or
 
a
 
company
 
or
 
business
 
subsequently
 
acquired
 
or
 
disposed
 
of)
 
will
 
be
determined on the same basis as Consolidated EBITDA (as defined in Clause
 
 
(Financial Definitions)),
except
 
that
 
references
 
to
 
the
 
Borrower
 
will
 
be
 
construed
 
as
 
references
 
to
 
that
 
Subsidiary,
 
company
 
or
business.
Notwithstanding the above, each of the following
 
companies will be a Material Subsidiary:
(i)
each Original Guarantor;
(ii)
any Subsidiary of the Borrower which is a direct Holding Company of an Obligor;
(iii)
each directly or indirectly wholly-owned Subsidiary of the Borrower;
 
or
(iv)
any member of the Group to
 
which an Obligor or a
 
Material Subsidiary disposes of all or
 
any substantial part
of its assets (on the date of that transfer and for any applicable period thereafter).
1.1.101
Measurement Date
has the meaning given to that term in Clause
 
(
).
1.1.102
Measurement Period
 
has the meaning given to that term in Clause
 
(
).
1.1.103
Month
 
means a period starting
 
on one day in
 
a calendar month and ending
 
on the numerically corresponding
 
day
in the next calendar month, except that:
13
(a)
(subject to paragraph
 
below) if the numerically corresponding
 
day is not a
 
Business Day, that period shall
end on the next Business Day in that calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business Day;
(b)
if there is no numerically corresponding day in the calendar month in which that period is to
 
end, that period
shall end on the last Business Day in that calendar month; and
(c)
if an
 
Interest Period
 
begins on
 
the last
 
Business Day
 
of a calendar
 
month, that
 
Interest Period
 
shall end on
the last Business Day in the calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
1.1.104
Net1
 
means Net1 Applied Technologies
 
South Africa Proprietary Limited
 
(registration number 2002/031446/07),
a company registered under the laws of South Africa.
1.1.105
Net1 Loan
 
means the R350,000,000 loan dated on or about the Closing Date to be made by the Borrower to Net1.
1.1.106
New Lender
 
has the meaning given to that term in Clause
 
(Changes to the Lenders).
1.1.107
Obligor
means a Borrower or a Guarantor.
1.1.108
Original Financial Statements
 
means the audited financial statements
 
of the Borrower for its
 
financial year ended
28 February, 2021.
 
1.1.109
Original
 
GBF
 
Agreement
means
 
the
 
general
 
banking
 
facility
 
agreement
 
dated
 
on
 
or
 
about
 
the
 
date
 
of
 
this
Agreement between
 
the Borrower
 
and the
 
GBF Lender,
 
to regulate
 
the terms
 
on which
 
the GBF Facility
 
is to
 
be
provided to the Borrower.
1.1.110
Original GBF Commitment
 
means ZAR247,960,000.
1.1.111
Original GBF
 
Facility
means each
 
direct and
 
indirect working
 
capital facility provided
 
by the
 
GBF Lender
 
to a
Borrower under the Original GBF Agreement.
1.1.112
Original Jurisdiction
 
means, in
 
relation to
 
an Obligor,
 
the jurisdiction under
 
whose laws it
 
is incorporated
 
as at
the date of this Agreement, or, in the case of an
 
Additional Obligor, as at the date on which that Additional Obligor
becomes Party as a Guarantor or a Borrower (as the case may be).
1.1.113
Ovobix
 
means
 
Ovobix
 
(RF)
 
Proprietary
 
Limited
 
(registration
 
number
 
2013/068120/07),
 
a
 
company
 
registered
under the laws of South Africa.
1.1.114
Party
 
means a party to this Agreement.
1.1.115
Permitted Acquisition
 
means:
(a)
the acquisition by an Obligor of an asset from another Obligor;
(b)
any acquisition of shares
 
and claims which,
 
is on arm's
 
length terms provided that
 
the Borrower has
 
delivered
a certificate (signed by a
 
director of the Borrower) to
 
the Facility Agent not later
 
than 10 Business Days
 
prior
to the date on which that acquisition is proposed to be made:
 
(i)
confirming the subject matter of the proposed acquisition;
(ii)
confirming that the acquisition made from Internally Generated Cash or
 
New Shareholder Injection;
(iii)
certifying that no Default would result from the acquiring that acquisition;
(iv)
including a
 
Compliance Certificate
 
setting out
 
(in reasonable
 
detail) computations
 
as to
 
compliance
with Clause
 
(Financial Covenants) prior to and immediately following such acquisition;
14
(v)
demonstrating
 
that the
 
acquisition would
 
have generated
 
a positive
 
EBITDA and
 
cash flow
 
for
 
the
twelve month period prior to the acquisition date;
(vi)
confirming the consideration (when aggregated with the consideration
 
of any other acquisitions in
 
any
financial year) does not exceed ZAR20,000,000 in any financial year;
(c)
the acquisition by the Borrower of 20.00 per cent. of the shares in the share capital
 
of Kazang Prepaid;
(d)
any acquisition entered into with the express prior consent of the Facility Agent.
1.1.116
Permitted BEE Transaction
 
means any acquisition
 
of shares or interests
 
by or disposal of
 
shares or interest to
 
a
BEE Party, provided that the transaction is concluded in
 
order to comply with the
 
requirements of the Group or any
member thereof
 
under an applicable
 
code of good
 
practice issued in
 
terms of section
 
9 of the
 
Broad Based Black
Economic Act 53 of 2003 and entered into with the express prior consent of
 
the Facility Agent.
1.1.117
Permitted Disposal
 
means any sale, lease, licence, transfer or other disposal which, is on arm's length terms:
 
(a)
of trading stock or cash made by any member of the Group in
 
the ordinary course of trading of the disposing
entity;
(b)
of assets
 
(other
 
than
 
shares, businesses,
 
Intellectual
 
Property)
 
in exchange
 
for other
 
assets comparable
 
or
superior as to type, value and quality (other than an exchange of a non-cash
 
asset for cash);
(c)
of obsolete or redundant vehicles, plant and equipment for
 
cash;
(d)
of Cash Equivalent Investments for cash or in exchange for other Cash Equivalent
 
Investments;
(e)
constituted by a licence of intellectual property rights permitted by
 
Clause
 
(Intellectual Property);
(f)
contemplated in the Acquisition Documents;
(g)
arising as a result of any Permitted Security;
 
(h)
a disposal pursuant to a Permitted BEE Transaction
 
provided it does not result in a Change of Control; or
(i)
any
 
Disposal
 
entered
 
into
 
with
 
the
 
express
 
prior
 
consent
 
of
 
the
 
Facility
 
Agent,
 
provided
 
that
 
(a)
 
the
consideration
 
for
 
the
 
Disposal,
 
when
 
aggregated
 
with
 
the
 
consideration
 
of
 
any
 
other
 
Disposals
 
in
 
any
financial year, does not
 
exceed ZAR100,000,000, or its equivalent in another
 
currency or currencies, in any
financial year
 
of the
 
Borrower and
 
(b) the Borrower
 
has delivered
 
a certificate
 
(signed by
 
a director
 
of the
Borrower) to the
 
Facility Agent not
 
later than 10
 
Business Days prior
 
to the date
 
on which that
 
Disposal is
proposed to be made:
 
(i)
confirming the subject matter of the proposed Disposal;
(ii)
certifying that no Default would result from the making of that Disposal;
(iii)
including a
 
Compliance Certificate
 
setting out
 
(in reasonable
 
detail) computations
 
as to
 
compliance
with Clause
 
(Financial Covenants) prior to and immediately following such Disposal.
1.1.118
Permitted Distribution
 
means:
(a)
the payment of
 
a distribution by
 
Subsidiaries of the
 
Borrower to the
 
direct shareholders of
 
such Subsidiary
pro rata to the ordinary shareholding;
(b)
the payment of a distribution by the Subsidiaries of K2020 to the direct
 
shareholders of such Subsidiary pro
rata to the ordinary shareholding;
(c)
the payment of fees and charges by K2020 to the Borrower
 
in the ordinary course of business;
15
(d)
the
 
payment
 
of
 
fees
 
and
 
charges
 
by
 
Deposit
 
Manager
 
and
 
Cash
 
Connect
 
Capital
 
to
 
the
 
Borrower
 
in
 
the
ordinary course of business;
(e)
the payment of any distribution by the Borrower if:
 
(i)
the Borrower
 
has not
 
less than
 
10 Business
 
Days prior
 
to the
 
proposed date
 
for the
 
payment of
 
that
distribution given the Facility Agent written notice of its intention to pay
 
that distribution;
(ii)
no
 
Default
 
is continuing
 
at
 
the time
 
that
 
distribution
 
is proposed
 
to be
 
paid
 
or will
 
result
 
from
 
the
payment of that distribution;
(iii)
the Borrower
 
has complied
 
with its
 
obligations
 
under
 
Clause
 
(
);
(iv)
the Borrower
 
has delivered
 
a certificate (signed
 
by a
 
director of
 
the Borrower)
 
to the
 
Facility Agent
not later than 10 Business Days prior to the date on which that distribution
 
is proposed to be made:
 
(A)
confirming the amount of the proposed distribution;
(B)
certifying that no Default would result from the making of that distribution;
(C)
including
 
a
 
Compliance
 
Certificate
 
setting
 
out
 
(in
 
reasonable
 
detail)
 
computations
 
as
 
to
compliance with Clause
 
(Financial Covenants) prior to, immediately following the payment
of such distribution and for the next four Measurement Dates after such
 
distribution;
provided that no more than two such distributions may be paid in any Financial Year;
 
(f)
any other distribution made with the express prior consent of the Facility Agent.
1.1.119
Permitted Financial Indebtedness
 
means Financial Indebtedness:
(a)
arising under the Finance Documents;
(b)
arising under the K2020 Facility Agreement;
(c)
disclosed in the Disclosure Schedule;
(d)
shareholder loans subordinated on terms acceptable to the Facility Agent;
(e)
arising under any Finance Lease;
(f)
incurred by way of a Permitted Loan or a Permitted Guarantee;
(g)
trade credit extended
 
to an Obligor
 
or a member
 
of the Group
 
which is entered
 
into on normal
 
commercial
terms and
 
in the
 
ordinary course
 
of its
 
trading activities
 
and which
 
has a
 
credit term
 
of not
 
more than
 
90
days;
(h)
any
 
Financial Indebtedness
 
arising under
 
unsecured general
 
or short
 
term banking
 
facilities provided
 
to a
member of the Group by another bank or
 
financial institution, provided that the maximum aggregate amount
of
 
Financial
 
Indebtedness
 
under
 
this paragraph
 
together with
 
the
 
aggregate
 
amount of
 
any
 
guarantees
under
 
Clause
 
does not
 
exceed
 
ZAR40,000,000
 
(or its
 
equivalent
 
in any
 
other currency)
 
at any
time;
(i)
incurred pursuant to a Refinancing permitted in terms of Clause
(j)
incurred with the express prior consent of the Facility Agent.
1.1.120
Permitted Guarantee
means:
(a)
any guarantee given in terms of the Finance Documents;
16
(b)
any guarantee given in terms of the K2020 Facility Agreement;
(c)
any guarantee of a Joint Venture
 
to the extent permitted by Clause
 
(
);
(d)
any guarantees disclosed in the Disclosure Schedule;
(e)
any
 
guarantee
 
given
 
by
 
the
 
Borrower,
 
provided
 
that
 
the
 
maximum
 
aggregate
 
amount
 
of
 
Financial
Indebtedness
 
under
 
Clause
 
together
 
with
 
the
 
aggregate
 
amount
 
of
 
any
 
guarantees
 
under
 
this
paragraph
 
does not exceed ZAR40,000,000 (or its equivalent in any other currency) at any time;
(f)
a guarantee given with the express prior consent of the Facility Agent.
1.1.121
Permitted Loan
 
means:
(a)
the Net1 Loan;
(b)
any loan disclosed in the Disclosure Schedule;
(c)
any
 
trade credit
 
extended by
 
any
 
member of
 
the Covenant
 
Group to
 
its customers
 
on normal
 
commercial
terms and in
 
the ordinary course of
 
its trading activities
 
and on payment
 
terms not exceeding
 
90 days or,
 
if
applicable,
 
such
 
longer periods
 
in
 
relation
 
to payment
 
arrangements
 
made
 
by
 
a member
 
of
 
the
 
Covenant
Group with its defaulting customers for repayment of such trade credit;
(d)
any loans made by Main
 
Street 1723 to its
 
customers in the ordinary course of
 
its business up to an
 
aggregate
amount of ZAR100,000,000 or such greater amount agreed by the
 
Facility Agent;
(e)
any loans made by Cash Connect Capital to its customers in the ordinary course
 
of its business;
(f)
subordinated loans or other
 
subordinated debt instruments in
 
the members of the Group,
 
provided that such
subordinated
 
loans
 
or
 
other
 
subordinated
 
debt
 
instruments
 
are
 
subordinated
 
on
 
terms
 
acceptable
 
to
 
the
Facility Agent; or
(g)
a loan made with the express prior consent of the Facility Agent.
1.1.122
Permitted Security
 
means:
(a)
any lien arising by operation of law and in the ordinary course of trading and
 
not as a result of any default or
omission by any member of the Group;
(b)
any Security arising pursuant to the Finance Documents;
(c)
any Security or
 
Quasi-Security which is
 
existing prior to
 
the date
 
of this
 
Agreement, which has
 
been disclosed
to
 
the
 
Facility
 
Agent
 
in
 
the
 
Disclosure
 
Schedule,
 
and
 
which
 
only
 
secures
 
indebtedness
 
under
 
facilities
outstanding at the date of
 
this Agreement, if the original
 
principal amount or original facility
 
thereby secured
is not increased after the date of this Agreement;
(d)
any
 
netting
 
or
 
set-off
 
arrangement
 
entered
 
into
 
by
 
any
 
Obligor
 
in
 
the
 
ordinary
 
course
 
of
 
its
 
banking
arrangements for the purpose of netting debit and credit balances of
 
Obligors;
(e)
any Security under a finance or capital lease which constitutes Permitted Financial
 
Indebtedness;
(f)
any payment or close out
 
netting or set-off arrangement
 
pursuant to any Treasury
 
Transaction comprised in
Permitted
 
Financial
 
Indebtedness,
 
excluding
 
any
 
Security
 
or
 
Quasi-Security
 
under
 
a
 
credit
 
support
arrangement;
(g)
any
 
Security
 
or
 
Quasi-Security
 
securing
 
indebtedness,
 
which
 
is
 
Permitted
 
Financial
 
Indebtedness,
 
the
principal amount of which (when aggregated with the principal amount of any other indebtedness which has
the benefit of Security given by any
 
Obligor or any member of the Borrower
 
Group other than that permitted
by this clause above) does not at any time exceed ZAR20,000,000 in aggregate;
17
(h)
any Security entered into with the express prior consent of the Facility Agent.
1.1.123
Quasi-Security
 
has the meaning given to that term in Clause
 
(Negative pledge).
1.1.124
Quotation Day
means, in relation to any period
 
for which an interest rate is to
 
be determined, the first day of
 
that
period
 
or
 
such
 
other
 
day
 
as
 
the
 
Facility
 
Agent
 
determines
 
is
 
generally
 
treated
 
as the
 
rate
 
fixing
 
day
 
by
 
market
practice in the Johannesburg interbank market.
1.1.125
Reference Bank Quotation
means any quotation supplied to the Facility Agent by a Reference Bank.
1.1.126
Reference
 
Banks
 
means
 
the
 
principal
 
Johannesburg
 
offices
 
of Absa
 
Bank
 
Limited,
 
FirstRand
 
Bank
 
Limited,
Investec Bank
 
Limited, Nedbank
 
Limited and The
 
Standard Bank of
 
South Africa Limited,
 
or such other
 
entities
as may be appointed by the Facility Agent in consultation with the Borrower.
1.1.127
Refinancing
means the repayment,
 
prepayment, cancellation
 
or replacement
 
of any of
 
the Facilities (in
 
whole or
in part) funded,
 
directly or indirectly,
 
by way of
 
the incurrence by a
 
Borrower or any
 
other member of
 
the Group
of Financial
 
Indebtedness or
 
the issue
 
of redeemable
 
preference shares
 
by the
 
Borrower or
 
any other
 
member of
the Group, and
Refinance
 
and
Refinanced
shall be construed accordingly.
1.1.128
Refinancing Penalties
has the meaning given to that term in Clause
).
1.1.129
Related
 
Fund
 
in
 
relation
 
to
 
a
 
fund
 
(the
first
 
fund
),
 
means
 
a
 
fund
 
which
 
is
 
managed
 
or
 
advised
 
by
 
the
 
same
investment manager or
 
investment adviser as
 
the first fund or,
 
if it is managed
 
by a different
 
investment manager
or investment
 
adviser,
 
a fund
 
whose investment
 
manager or
 
investment adviser
 
is an
 
Affiliate of
 
the investment
manager or investment adviser of the first fund.
1.1.130
Relevant Jurisdiction
 
means, in relation to an Obligor:
(a)
its Original Jurisdiction;
(b)
any jurisdiction where any asset subject to or intended to be subject
 
to the Transaction Security to be created
by it is situated;
(c)
any jurisdiction where it conducts its business; or
(d)
the jurisdiction whose laws govern the perfection of any of
 
the Transaction Security Documents entered into
by it.
1.1.131
Repayment Date
 
means each repayment date set out in
 
(
).
1.1.132
Repeating
 
Representations
 
means
 
each
 
of
 
the
 
representations
 
set
 
out
 
in
 
Clause
 
(
)
 
to
 
Clause
(
), Clause
 
(
), Clause
 
(
),
Clause
) (other than Clause
 
(
) and Clause
 
(
)
to Clause
 
(
).
1.1.133
Representative
 
means any
 
representative, delegate,
 
agent, manager,
 
administrator,
 
nominee, attorney,
 
trustee or
custodian.
1.1.134
Sanctioned Entity
 
means:
(a)
a person, country or territory which is listed on a Sanctions List or is subject to Sanctions; or
(b)
a person which is ordinarily resident in a country or territory which is listed on a Sanctions List or is subject
to Sanctions.
1.1.135
Sanctioned Transaction
 
means the
 
use of
 
the proceeds
 
of any
 
of the
 
Facilities for
 
the purpose
 
of financing
 
or
providing any credit, directly or indirectly,
 
to:
(a)
a Sanctioned Entity; or
18
(b)
any other person or entity, if a member of the Group has actual knowledge that the person or entity proposes
to use the proceeds of the financing or credit for the purpose of financing or providing any credit, directly or
indirectly, to a Sanctioned
 
Entity,
in each case to the extent that to do so is prohibited by,
 
or would cause any breach of, Sanctions.
1.1.136
Sanctions
 
means
 
trade,
 
economic
 
or
 
financial
 
sanctions,
 
laws,
 
regulations,
 
embargoes
 
or
 
restrictive
 
measures
imposed, administered or enforced from time to time by any Sanctions Authority.
1.1.137
Sanctions Authority
 
means:
(a)
the United Nations;
(b)
the European Union;
(c)
the Council of Europe (founded under the Treaty of London, 1946);
(d)
the government of the United States of America;
(e)
the government of the United Kingdom;
(f)
the government of the Republic of France;
(g)
the government of Switzerland;
(h)
the government of the Commonwealth of Australia,
and any of their governmental authorities and agencies, including, without limitation, the Office of Foreign Assets
Control for the US Department
 
of Treasury (
OFAC
), the US Department of Commerce,
 
the US State Department
or the US Department of the Treasury,
 
Her Majesty's Treasury (
HMT
) and the French Ministry of Finance.
1.1.138
Sanctions List
 
means:
(a)
the Specially Designated Nationals and Blocked Persons List maintained
 
by OFAC;
(b)
the Consolidated List of Financial Sanctions Targets
 
and the Investments Ban List maintained by HMT,
and
 
any
 
similar
 
list
 
maintained,
 
or
 
a
 
public
 
announcement
 
of
 
a
 
Sanctions
 
designation
 
made,
 
by
 
any
 
Sanctions
Authority, in each case
 
as amended, supplemented or substituted from time to time.
1.1.139
Screen Rate
means:
(a)
for
 
JIBAR, the
 
Johannesburg
 
Interbank
 
Agreed
 
Rate,
 
polled
 
and
 
published
 
by the
 
South
 
African
 
Futures
Exchange (a
 
division of
 
the JSE
 
Limited) for
 
deposits in
 
Rand for
 
the relevant
 
period, as
 
displayed on
 
the
Reuters Screen SAFEY Page alongside the caption "
YLD
" at the applicable time; and
(b)
for the JIBAR Overnight
 
Deposit Rate, the SAFEX
 
overnight call deposit
 
rate, polled and published
 
by the
South African
 
Futures Exchange
 
(a division
 
of the
 
JSE Limited)
 
for deposits
 
in Rand,
 
as displayed
 
on the
Reuters Screen SAFEY Page alongside the caption "
SFXROD
" at the applicable time.
If
 
the
 
relevant
 
page
 
is
 
replaced
 
or
 
the
 
information
 
service
 
ceases
 
to
 
be
 
available,
 
the
 
Facility
 
Agent
 
(after
consultation with
 
the Borrower
 
and the
 
Lenders) may
 
specify another
 
page or
 
service displaying
 
the appropriate
rate.
1.1.140
Secured Property
 
means all of the assets of
 
the Obligors and the other Security
 
Providers which from time to time
are, or are expressed to be, the subject of the Transaction
 
Security.
1.1.141
Security
 
means a mortgage bond,
 
notarial bond, cession in
 
security, charge, pledge, hypothec, lien or
 
other security
interest securing any obligation of any person or any other agreement
 
or arrangement having a similar effect.
19
1.1.142
Security Provider
means a person, other than an Obligor, which grants
 
Transaction Security.
1.1.143
SPA
 
means
 
the
 
share
 
purchase
 
agreement
 
dated
 
31 October,
 
2021
 
between,
 
amongst
 
others,
 
Net1,
 
Net1
 
UEPS
Technologies,
 
Inc.,
 
Old
 
Mutual
 
Life
 
Assurance
 
Company
 
(South
 
Africa)
 
Limited,
 
Lirast
 
(Mauritius)
 
Company
Limited, SIG
 
International Investment
 
(BVI) Limited,
 
Aldgate International
 
Limited, Ivan
 
Epstein, PFCC
 
(BVI)
Limited, PCF Investments (BVI) Limited, Luxanio, Vista Capital Investments Proprietary Limited, Vista
 
Treasury
Proprietary Limited, K2021 and the Borrower.
1.1.144
Subordination Agreement
 
means a subordination
 
agreement to be
 
entered into between
 
each Obligor,
 
Net1 and
the Finance Parties.
1.1.145
Subsidiary
 
means:
(a)
a “subsidiary” as
 
defined in the
 
Companies Act, 2008
 
and shall include
 
any person who
 
would, but for
 
not
being a “company”
 
under the Companies
 
Act, 2008, qualify
 
as a “subsidiary”
 
as defined in
 
the Companies
Act, 2008;
(b)
any partnership, joint venture, trust, juristic person or other entity controlled
 
by that person.
1.1.146
Target
 
Company
means each of:
(a)
the Borrower;
(b)
K2021;
(c)
Luxanio; and
(d)
Ovobix.
1.1.147
Target
 
Group
 
means each Target
 
Company and each of its Subsidiaries on the Acquisition Date.
 
1.1.148
Tax
 
means any tax, levy, impost, duty or other charge or withholding
 
of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in paying
 
any of the same).
1.1.149
Term
 
Facility
 
means Facility A or Facility B.
1.1.150
Term
 
Loan
 
means a Facility A Loan or a Facility B Loan.
1.1.151
Total
 
Commitments
 
means the aggregate of:
(a)
the Total Facility A Commitments;
(b)
the Total Facility B Commitments;
(c)
the Total GBF Commitments,
being ZAR1,297,960,000 at the date of this Agreement.
1.1.152
Total
 
Facility A Commitments
 
means the aggregate
 
of the Facility
 
A Commitments,
 
being ZAR700,000,000
 
at
the date of this Agreement.
1.1.153
Total
 
Facility B
 
Commitments
 
means the
 
aggregate of
 
the Facility
 
B Commitments,
 
being ZAR350,000,000
 
at
the date of this Agreement.
1.1.154
Total
 
GBF Commitments
 
means the aggregate of
 
the GBF Commitments, being
 
ZAR247,960,000 at the date
 
of
this Agreement.
1.1.155
Transaction
 
Security
 
means
 
the
 
Security
 
created
 
or
 
expressed
 
to
 
be
 
created
 
in
 
favour
 
of
 
the
 
Finance
 
Parties
pursuant to the Transaction Security Documents
 
and general notarial bonds.
20
1.1.156
Transaction Security Documents
 
means:
(a)
each pledge or cession in securitatem debiti referred to in
 
(
);
(b)
any
 
written
 
notice
 
to
 
a
 
third
 
person
 
of
 
the
 
Security
 
established
 
under
 
a
 
security
 
agreement
 
set
 
out
 
in
paragraph
 
and any
 
written acknowledgement of
 
that notice
 
which is
 
required to
 
be delivered
 
to the
 
Facility
Agent under that security agreement; or
(c)
any other
 
document evidencing
 
or creating
 
any guarantee
 
or Security Interest
 
over any
 
asset of an
 
Obligor
or any other
 
Security Provider to
 
secure any obligation
 
of an Obligor
 
to a Finance
 
Party under the
 
Finance
Documents.
1.1.157
Transfer
has the meaning given to that term in Clause
 
(
).
1.1.158
Transfer
 
Certificate
 
means
 
a
 
certificate
 
substantially
 
in
 
the
 
form
 
set
 
out
 
in
 
(
) or any other form agreed between the Facility Agent and the Obligors.
1.1.159
Transfer Date
 
means, in relation to a cession or a transfer, the later of:
(a)
the proposed Transfer Date specified in the
 
relevant Transfer Certificate; and
(b)
the date on which the Facility Agent executes the relevant Transfer
 
Certificate.
1.1.160
Treasury
 
Transactions
 
means
 
any
 
derivative
 
transaction
 
entered
 
into
 
in
 
connection
 
with
 
protection
 
against
 
or
benefit from fluctuation in any rate or price.
1.1.161
Unpaid Sum
 
means any sum due
 
and payable but unpaid
 
by an Obligor or
 
any other Security
 
Provider under the
Finance Documents.
1.1.162
US
 
means the United States of America.
1.1.163
US Tax Obligor
 
means an Obligor, but only if some or all of its payments under the Finance Documents are from
sources within the US for US federal income tax purposes.
1.1.164
Utilisation
 
means a utilisation of a Facility.
1.1.165
Utilisation Date
 
means the date of a Utilisation, being the date on which the relevant Loan is to be
 
made.
1.1.166
Utilisation Request
 
means a
 
notice substantially
 
in the
 
relevant form
 
set out
 
in
 
(
).
1.1.167
VAT
 
means:
(a)
any value added tax as provided for in the Value
 
Added Tax Act, 1991;
(b)
any general service tax; and
 
(c)
any other tax of a similar nature.
1.1.168
ZAR
 
means South African Rand, the lawful currency of South Africa.
1.2
Construction
1.2.1
Unless a contrary indication appears, a reference in this Agreement to:
(a)
the
Facility
 
Agent
,
 
the
Arranger
,
 
any
Finance
 
Party
,
 
any
Lender
,
 
the
Borrower
,
 
any
Obligor
,
 
any
Security Provider
 
any
Party
 
or any other
 
person shall be
 
construed so as to
 
include its successors
 
in title,
permitted
 
cessionaries
 
and
 
permitted
 
transferees
 
to,
 
or
 
of,
 
its rights
 
and/or
 
obligations
 
under
 
the
 
Finance
Documents;
21
(b)
a
 
document
 
in
agreed
 
form
 
is
 
a
 
document
 
which
 
is
 
previously
 
agreed
 
in
 
writing
 
by
 
or
 
on
 
behalf
 
of
 
the
Borrower and the Facility Agent or, if not so
 
agreed, is in the form specified by the Facility Agent;
(c)
assets
 
includes present and future properties, revenues and rights of every description;
(d)
authority
 
includes
 
any
 
court
 
or
 
any
 
governmental,
 
intergovernmental
 
or
 
supranational
 
body,
 
agency,
department or any regulatory,
 
self-regulatory or other authority;
(e)
distribution
 
means a
 
transfer by
 
a company
 
of money
 
or other
 
assets of
 
the company
 
(other than
 
its own
shares) to, or to the order (or otherwise for the benefit) of, one or more holders
 
of shares in that company or
another
 
company
 
within
 
the
 
same
 
group
 
of
 
companies,
 
including
 
any
 
principal
 
or
 
interest
 
in
 
respect
 
of
amounts
 
due
 
(whether
 
in
 
respect
 
of
 
an
 
intercompany
 
or
 
a
 
shareholder
 
loan
 
or
 
otherwise);
 
any
 
dividend
(including any interest on any unpaid amount of a dividend),
 
charge, fee, consideration or other distribution
(whether in cash
 
or in kind)
 
on or in
 
respect of its
 
shares or share
 
capital (or any
 
class of its
 
share capital);
any repayment or distribution of any share premium account;
 
and the payment of any management, advisory
or other fee;
(f)
a
Finance Document
 
or any other agreement or instrument is a reference to that
 
Finance Document or other
agreement or instrument as amended, novated, supplemented, extended
 
or restated;
(g)
a
group of Lenders
 
includes all the Lenders;
(h)
guarantee
 
means any
 
guarantee, letter
 
of credit,
 
bond, indemnity
 
or similar
 
assurance against
 
loss, or
 
any
obligation, direct or indirect, actual
 
or contingent, to purchase or
 
assume any indebtedness of any person
 
or
to make an investment in or loan to any person or to purchase assets of any person where, in each case, such
obligation is assumed in order to maintain or assist the ability of such person
 
to meet its indebtedness;
(i)
the use of
 
the word
including
 
followed by specific
 
examples will not be
 
construed as limiting
 
the meaning
of the general wording preceding it, and the eiusdem generis rule must not be applied in the interpretation of
such general wording or such specific examples;
(j)
indebtedness
 
includes
 
any
 
obligation
 
(whether
 
incurred
 
as
 
principal
 
or
 
as
 
surety)
 
for
 
the
 
payment
 
or
repayment of money,
 
whether present or future, actual or contingent;
(k)
a
person
 
includes any individual, firm, company,
 
corporation, government, state or agency of a state or any
association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal
personality);
(l)
a
regulation
 
includes any regulation, rule, official directive, request or guideline (whether or not having the
force of law, but, if not having the force
 
of law, being of a type with which any person
 
to which it applies is
accustomed to comply) of any governmental,
 
intergovernmental or supranational
 
body, agency,
 
department
or of any regulatory,
 
self-regulatory or other authority or organisation;
(m)
a provision of law is a reference to that provision as amended or re-enacted;
 
and
(n)
a time of day is a reference to Johannesburg time.
1.2.2
The determination of the extent to which a rate
 
is
for a period equal in length
 
to an Interest Period shall disregard
any inconsistency
 
arising from
 
the last
 
day of
 
that Interest
 
Period being
 
determined pursuant
 
to the
 
terms of
 
this
Agreement.
1.2.3
Section, Clause and Schedule headings are for ease of reference only.
1.2.4
Unless a contrary
 
indication appears,
 
a term used
 
in any other
 
Finance Document or
 
in any notice
 
given under or
in connection
 
with any
 
Finance Document
 
has the
 
same meaning
 
in that
 
Finance Document
 
or notice
 
as in
 
this
Agreement.
1.2.5
A
 
Default
 
(other
 
than
 
an
 
Event
 
of
 
Default)
 
is
continuing
 
if
 
it
 
has
 
not
 
been
 
remedied
 
to
 
the
 
satisfaction
 
of
 
the
Facility Agent within any
 
applicable remedy period
 
expressly provided for in
 
a Finance Document or
 
waived and
22
an Event of
 
Default is
continuing
 
if it has not
 
been waived in
 
writing and in
 
each case, any waiver
 
shall not take
effect unless any conditions of such waiver have been fulfilled to the
 
satisfaction of the Facility Agent.
1.2.6
If any
 
provision in
 
a definition is
 
a substantive
 
provision conferring
 
rights or
 
imposing obligations
 
on any
 
Party,
notwithstanding that it appears only in an interpretation clause, effect shall be given to it as if it were a substantive
provision of the relevant Finance Document.
1.2.7
Unless inconsistent with the context,
 
an expression in any Finance Document
 
which denotes the singular includes
the plural and vice versa.
1.2.8
The Schedules to
 
any Finance Document
 
form an integral
 
part thereof and
 
a reference to
 
a
Clause
 
or a
Schedule
is a reference to a clause of, or a schedule to, this Agreement.
1.2.9
The rule of construction that, in the event of ambiguity, a contract shall be interpreted against the party responsible
for the drafting thereof, shall not apply in the interpretation of the Finance
 
Documents.
1.2.10
The expiry
 
or termination of
 
any Finance Documents
 
shall not affect
 
those provisions
 
of the Finance
 
Documents
that
 
expressly
 
provide
 
that
 
they
 
will
 
operate
 
after
 
any
 
such
 
expiry
 
or
 
termination
 
or
 
which
 
of
 
necessity
 
must
continue
 
to
 
have
 
effect
 
after
 
such
 
expiry
 
or
 
termination,
 
notwithstanding
 
that
 
the
 
clauses
 
themselves
 
do
 
not
expressly provide for this.
1.2.11
The
 
Finance
 
Documents
 
shall
 
to
 
the
 
extent
 
permitted
 
by
 
applicable
 
law
 
be
 
binding
 
on
 
and
 
enforceable
 
by
 
the
administrators, trustees,
 
permitted cessionaries,
 
business rescue
 
practitioners or
 
liquidators of
 
the Parties
 
as fully
and effectually
 
as if they
 
had signed the
 
Finance Documents
 
in the first
 
instance and
 
reference to
 
any Party
 
shall
be deemed to include such Party’s administrators,
 
trustees, permitted cessionaries, business rescue practitioners or
liquidators, as the case may be.
1.2.12
Where figures are referred
 
to in numerals and in
 
words in any Finance Document,
 
if there is any conflict
 
between
the two, the words shall prevail.
1.2.13
Unless a
 
contrary
 
indication appears,
 
where
 
any number
 
of days
 
is to
 
be calculated
 
from a
 
particular
 
day,
 
such
number shall be calculated as including that particular day and excluding
 
the last day of such period.
 
1.3
Third party rights
1.3.1
Except as expressly provided for in
 
this Agreement or in any
 
other Finance Document, no provision of
 
any Finance
Document constitutes a stipulation for the benefit of any person who is not a party
 
to that Finance Document.
 
1.3.2
Subject to Clause
 
(
) but otherwise notwithstanding any term
 
of any Finance Document, the
 
consent
of any person who is
 
not a party to
 
that Finance Document is not
 
required to rescind or vary
 
that Finance Document
at any time except to
 
the extent that the relevant
 
variation or rescission (as the
 
case may be) relates
 
directly to the
right conferred upon
 
any applicable
 
third party under
 
a stipulation for
 
the benefit
 
of that party
 
that has
 
been accepted
by that third party.
23
SECTION 2
THE FACILITIES
2.
THE FACILITIES
2.1
The Term Facilities
Subject to the terms of this Agreement, the Lenders make available to the Borrower:
2.1.1
a ZAR term loan facility in an aggregate amount equal to the Total
 
Facility A Commitments; and
2.1.2
a ZAR term loan facility in an aggregate amount equal to the Total
 
Facility B Commitments.
2.2
The GBF Facility
Subject
 
to
 
the terms
 
of this
 
Agreement
 
and the
 
GBF Agreement,
 
the GBF
 
Lender
 
makes available
 
to the
 
Borrower a
general banking facility in an aggregate amount equal to the Original GBF Commitments.
2.3
Finance Parties' rights and obligations
2.3.1
The obligations
 
of each
 
Finance Party
 
under the
 
Finance Documents
 
are separate
 
and independent.
 
Failure by
 
a
Finance Party to perform its obligations
 
under the Finance Documents does not
 
affect the obligations of any other
Party under the Finance Documents.
 
No Finance Party is
 
responsible for the obligations of
 
any other Finance Party
under the Finance Documents.
2.3.2
The rights of each Finance Party under or in connection with the Finance Documents are separate and independent
rights and any debt arising under the Finance Documents to a Finance Party from an Obligor or any other Security
Provider is a separate and
 
independent debt in respect of
 
which a Finance Party
 
shall be entitled to
 
enforce its rights
in accordance with
 
Clause
 
below.
 
The rights of
 
each Finance Party
 
include any debt
 
owing to that
 
Finance
Party under the Finance Documents and, for the avoidance of doubt, any part of
 
a Loan or any other amount owed
by an
 
Obligor which
 
relates to
 
a Finance
 
Party's participation
 
in a
 
Facility or
 
its role
 
under a
 
Finance Document
(including any
 
such amount
 
payable to
 
the Facility
 
Agent on
 
its behalf)
 
is a debt
 
owing to
 
that Finance
 
Party by
that Obligor.
2.3.3
A Finance Party may, except as specifically provided in the
 
Finance Documents, separately enforce its rights
 
under
or in connection with the Finance Documents.
2.4
Borrower as agent of the Obligors
2.4.1
Each Obligor (other than the Borrower) by its execution of this
 
Agreement or an Accession Letter (as the case may
be) irrevocably appoints the Borrower (acting through one or more authorised signatories) to act
 
on its behalf as its
agent in relation to the Finance Documents and irrevocably authorises:
(a)
the Borrower on its behalf to supply all information concerning itself contemplated by this
 
Agreement to the
Finance Parties and
 
to give all
 
notices and instructions,
 
to make such
 
agreements and to
 
effect the relevant
amendments,
 
supplements
 
and
 
variations
 
capable
 
of
 
being
 
given,
 
made
 
or
 
effected
 
by
 
any
 
Obligor
notwithstanding that they may affect the Obligor, without further reference to or the consent of that Obligor;
and
(b)
each
 
Finance
 
Party
 
to
 
give
 
any
 
notice,
 
demand
 
or
 
other
 
communication
 
to
 
that
 
Obligor
 
pursuant
 
to
 
the
Finance Documents to the Borrower,
and in each
 
case the Obligor
 
shall be bound
 
as though the
 
Obligor itself had
 
given the notices
 
and instructions or
executed or made the
 
agreements or effected
 
the amendments, supplements
 
or variations, or received
 
the relevant
notice, demand or other communication.
2.4.2
Every act, omission,
 
agreement, undertaking, settlement,
 
waiver, amendment, supplement, variation,
 
notice or
 
other
communication given or
 
made by the
 
Borrower or given
 
to the Borrower
 
under any Finance Document
 
on behalf
of another Obligor
 
or in connection with
 
any Finance Document
 
(whether or not
 
known to any other
 
Obligor and
whether occurring
 
before or
 
after such
 
other Obligor
 
became an
 
Obligor under
 
any Finance
 
Document) shall
 
be
24
binding for all
 
purposes on that
 
Obligor as if
 
that Obligor had
 
expressly made, given
 
or concurred with
 
it.
 
In the
event of any
 
conflict between any
 
notices or other
 
communications of the
 
Borrower and any
 
other Obligor,
 
those
of the Borrower shall prevail.
3.
PURPOSE
3.1
Purpose
3.1.1
The Borrower shall apply all amounts borrowed by it under Facility A and Facility B towards:
(a)
partially refinancing the Existing Absa Financial Indebtedness;
(b)
making any distributions or loans pursuant to the SPA
 
and Funds Flow and Release Agreement; and
(c)
funding any associated Transaction Costs,
and may apply excess towards funding its general corporate requirements.
3.1.2
The Borrower
 
shall apply
 
all amounts
 
borrowed by
 
it under
 
a GBF
 
Facility towards
 
(a) refinancing
 
the Existing
Absa Financial Indebtedness and (b) funding its general corporate requirements (including working capital, capital
expenditure
 
and other general banking requirements).
3.2
Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed
 
pursuant to this Agreement.
4.
CONDITIONS OF UTILISATION
4.1
Initial conditions precedent
4.1.1
The Lenders
 
will only
 
be obliged
 
to comply
 
with Clause
 
(
) in
 
relation to
 
any proposed
Utilisation
 
if
 
on
 
or
 
before
 
the
 
Utilisation
 
Date
 
for
 
that
 
Utilisation,
 
the
 
Facility
 
Agent
 
has
 
received
 
all
 
of
 
the
documents
 
and
 
other
 
evidence
 
listed
 
in
 
Part
 
I
 
of
 
(
)
 
in
 
form
 
and
 
substance
satisfactory to
 
the Facility
 
Agent.
 
The Facility
 
Agent shall
 
notify the
 
Borrower and
 
the Lenders
 
promptly upon
being so satisfied.
4.1.2
Other than
 
to the
 
extent that
 
the Lenders
 
notify the
 
Facility Agent
 
in writing
 
to the
 
contrary before
 
the Facility
Agent gives the notification described in Clause
 
above, the Lenders authorise (but do
 
not require) the Facility
Agent to give that notification.
 
The Facility Agent shall not be liable for any damages,
 
costs or losses whatsoever
as a result of giving any such notification.
4.2
Further conditions precedent
Subject
 
to
 
Clause
 
above,
 
the
 
Lenders
 
will
 
only
 
be
 
obliged
 
to
 
comply
 
with
 
Clause
 
(
)
 
in
relation to a Utilisation if:
4.2.1
on the date of the Utilisation Request and on the proposed Utilisation Date:
(a)
no Default is continuing or would result from the proposed Utilisation; and
(b)
in the opinion of the Lenders no Material Adverse Effect has occurred
 
and is continuing;
 
4.2.2
in
 
relation
 
to
 
any
 
Utilisation
 
on
 
the
 
Closing
 
Date,
 
all
 
the
 
representations
 
and
 
warranties
 
in
 
Clause
(Representations) or, in relation to any other Utilisation, the Repeating Representations to be made by
 
the Obligors
are true in all respects.
4.3
Maximum number of Term
 
Loans
The Borrower
 
may not
 
deliver a Utilisation
 
Request if
 
as a
 
result of the
 
proposed Utilisation,
 
more than
 
one Facility A
Loan and one Facility B Loan would be outstanding.
25
SECTION 3
UTILISATION
5.
UTILISATION
5.1
Delivery of a Utilisation Request
The Borrower may
 
utilise a Term
 
Facility by delivery
 
to the Facility Agent
 
of a duly
 
completed Utilisation Request
 
not
later than 11h00
 
two Business Days
 
prior to the
 
Utilisation Date or
 
such shorter period
 
as the Facility
 
Agent (acting on
the instructions of all the Lenders) may agree.
5.2
Completion of a Utilisation Request
 
5.2.1
The Utilisation Request is irrevocable and will not be regarded as having been
 
duly completed unless:
(a)
the proposed Utilisation Date is
 
a Business Day within
 
the Availability Period applicable to that Facility;
 
and
(b)
the currency and amount of the proposed Utilisation comply with Clause
 
(Currency and amount).
5.2.2
Only one Facility A Loan and one Facility B Loan may be requested in the Utilisation
 
Request.
5.3
Currency and amount
The currency specified in a Utilisation Request must be ZAR.
5.4
Lenders' participation
5.4.1
If the
 
conditions set
 
out in
 
this Agreement
 
have been
 
met, each Lender
 
shall make
 
its participation
 
in each
 
Loan
available by the Utilisation Date.
5.4.2
The
 
amount
 
of each
 
Lender's
 
participation
 
in
 
each
 
Loan
 
will be
 
equal
 
to
 
the
 
proportion
 
borne
 
by its
 
Available
Commitment to the Available
 
Facility immediately prior to making the Loan.
5.4.3
The Facility
 
Agent shall
 
notify
 
each Lender
 
of the
 
amount of
 
its participation
 
in that
 
Loan and,
 
if different,
 
the
amount of that participation to be made available in accordance
 
with Clause
 
(Payments to the Facility Agent).
5.5
Cancellation of Commitment
5.5.1
The Facility
 
A Commitments
 
which, at
 
that time,
 
are unutilised
 
shall be
 
immediately cancelled
 
at the
 
end of
 
the
Availability Period
 
for Facility A.
5.5.2
The Facility
 
B Commitments
 
which, at
 
that time,
 
are unutilised
 
shall be
 
immediately cancelled
 
at the
 
end of
 
the
Availability Period
 
for Facility B.
26
SECTION 4
REPAYMENT,
 
PREPAYMENT
 
AND CANCELLATION
6.
REPAYMENT
6.1
Repayment of Term
 
Loans
6.1.1
The Borrower shall repay the aggregate Facility A Loans and Facility B Loans
 
in instalments by repaying on each
Repayment
 
Date
 
specified
 
in column
 
1
 
of
 
(
),
 
the
 
amount
 
specified
 
in
column 2 and column 3 of
 
(
).
6.1.2
The amount of
 
the Repayment Instalments shall
 
be decreased and recalculated
 
by the Facility Agent
 
from time to
time to account for any prepayments made pursuant to this Agreement.
6.1.3
Any amount of a Facility A Loan and Facility B Loan which remains outstanding
 
on the Final Maturity Date shall
be repaid in full on that date.
7.
ILLEGALITY,
 
VOLUNTARY
 
PREPAYMENT
 
AND CANCELLATION
7.1
Illegality
7.1.1
If, in any
 
applicable jurisdiction, it
 
becomes unlawful for a
 
Lender to perform
 
any of its
 
obligations as contemplated
by this Agreement
 
or to fund,
 
issue or maintain
 
its participation in
 
any Loan or
 
it becomes unlawful
 
for any Affiliate
of a Lender for that Lender to do so:
(a)
that Lender shall promptly notify the Facility Agent upon becoming aware
 
of that event;
(b)
upon
 
the
 
Facility
 
Agent
 
notifying
 
the
 
Borrower,
 
each
 
Available
 
Commitment
 
of
 
that
 
Lender
 
will
 
be
immediately cancelled; and
(c)
to the
 
extent that
 
the Lender's
 
participation has
 
not been
 
transferred pursuant
 
to Clause
 
(Replacement
of Lender),
 
the Borrower
 
shall repay
 
that Lender's
 
participation in
 
the Loans
 
made to
 
the Borrower
 
on the
last day of the Interest Period for each Loan occurring
 
after the Facility Agent has notified the Borrower or,
if earlier, the date specified by the Lender in the notice delivered to the Facility Agent (being no earlier
 
than
the last
 
day of any
 
applicable grace period
 
permitted by law)
 
and that
 
Lender's corresponding Commitment(s)
shall be cancelled in the amount of the participations repaid.
7.2
Voluntary
 
cancellation
7.2.1
A Borrower
 
may,
 
if it
 
gives
 
the Facility
 
Agent
 
not less
 
than
 
five
 
Business Days'
 
(or
 
such
 
shorter
 
period
 
as the
Lenders may agree)
 
prior notice, cancel
 
the whole or
 
any part (being
 
a minimum amount
 
of ZAR20,000,000
 
and
in integral multiples of
 
R5,000,000) of an Available
 
Facility.
 
Any cancellation under this Clause
 
shall reduce
the Commitments of the Lenders rateably under that Facility.
7.2.2
A GBF Facility may be cancelled as provided in the GBF Documents.
7.3
Voluntary
 
prepayment of Term
 
Loans
7.3.1
Subject to
 
Clause
 
below,
 
the Borrower
 
may,
 
if it gives
 
the Facility
 
Agent not
 
less than
 
five Business Days'
(or such shorter period as
 
the Lenders may agree) prior
 
notice, prepay the whole or
 
any part of that
 
Term Loan (but,
if in part,
 
being an amount
 
that reduces the
 
amount of that
 
Term Loan
 
by a minimum
 
amount of ZAR20,000,000
and in integral multiples of R5,000,000).
7.3.2
A Term
 
Loan may
 
only be
 
prepaid after
 
the last
 
day of
 
the Availability
 
Period for
 
the applicable
 
Facility (or,
 
if
earlier, the day on which the applicable Available
 
Facility is zero).
7.3.3
A prepayment of the Facility A Loans shall be applied against the remaining Facility A repayment instalments pro
rata.
 
27
7.3.4
A prepayment of the Facility B Loans shall be applied against the remaining
 
Facility B repayment instalments pro
rata.
 
7.4
Right of cancellation and repayment in relation
 
to a single Lender
7.4.1
If:
(a)
any
 
sum payable
 
to any
 
Lender by
 
an Obligor
 
or any
 
Security Provider
 
is required
 
to be
 
increased under
Clause
 
(Tax gross-up); or
(b)
any
 
Lender
 
claims
 
indemnification
 
from
 
an
 
Obligor
 
under
 
Clause
 
(Tax
 
indemnity)
 
or
 
Clause
(Increased costs),
a
 
Borrower
 
may,
 
whilst
 
the
 
circumstance
 
giving
 
rise
 
to
 
the
 
requirement
 
for
 
that
 
increase
 
or
 
indemnification
continues, give the
 
Facility Agent notice
 
of cancellation of
 
the Commitment(s) of
 
that Lender and
 
its intention to
procure the repayment of that Lender's participation in the Loans.
7.4.2
On receipt of a notice
 
referred to in Clause
 
above in relation to a
 
Lender, the
 
Commitment(s) of that Lender
shall immediately be reduced to zero.
7.4.3
On the last day
 
of each Interest
 
Period which ends
 
after a Borrower
 
has given notice
 
under Clause
 
above in
relation to a Lender (or,
 
if earlier, the date
 
specified by the Borrower in that notice),
 
the Borrower shall repay that
Lender's
 
participation
 
in
 
that
 
Loan
 
together
 
with
 
all
 
interest
 
and
 
other
 
amounts
 
accrued
 
under
 
the
 
Finance
Documents.
8.
MANDATORY
 
PREPAYMENT
 
AND CANCELLATION
8.1
Sanctions
8.1.1
If any member of the Group or any shareholder of any member of the Group:
(a)
is or becomes a Sanctioned Entity; or
(b)
participates in any manner in any Sanctioned Transaction,
on notice by the Facility Agent to the
 
Borrower, the Facilities will be cancelled and all outstanding Loans, together
with accrued interest, and all other amounts accrued under the Finance Documents, shall become immediately due
and payable.
8.2
Exit
8.2.1
Upon the occurrence of:
(a)
a Change of Control;
 
(b)
nationalisation or expropriation of any assets of any member of the Group; or
(c)
one or more sales (whether in a
 
single transaction or a series of related transactions) of all
 
or substantially all
the assets of
 
a member of the
 
Group associated with an
 
operating division or business
 
which, on a
 
cumulative
basis,
 
contributed
 
(directly or
 
indirectly)
 
more
 
than 25.00
 
per
 
cent. of
 
Consolidated
 
EBITDA for
 
the
 
last
completed financial year of the Group;
the Borrower shall promptly notify the Facility
 
Agent upon becoming aware of the
 
occurrence of such event or
 
that
such event will occur and (whether or not the Lenders have been notified
 
of such event by the Borrower)
 
then:
(i)
no Lender shall be obliged to fund a Utilisation under any Facility; and
(ii)
any Lender may
 
by not less than
 
five Business Days' notice
 
to the
 
Borrower immediately cancel
 
the
Commitments
 
of
 
that
 
Lender
 
and
 
declare
 
the
 
participation
 
of
 
that
 
Lender
 
in
 
all
 
outstanding
Utilisations,
 
together
 
with
 
all
 
other
 
amounts
 
owed
 
to
 
that
 
Lender,
 
immediately
 
due
 
and
 
payable
28
whereupon
 
the Commitments
 
of that
 
Lender will
 
be cancelled
 
immediately
 
and the
 
participation of
that Lender
 
in the outstanding
 
Utilisations, together
 
with all other
 
amounts owed
 
to that Lender
 
will
become immediately due and payable by the Borrower.
8.3
Disposal and Insurance Proceeds
8.3.1
For the purposes of this Clause
 
and Clause
 
(
:
 
(a)
Disposal
 
means a sale,
 
lease, licence, transfer,
 
loan or other
 
disposal by a
 
person of any
 
asset, undertaking
or business (whether by a voluntary or involuntary single transaction or
 
series of transactions).
(b)
Disposal Proceeds
 
means the consideration receivable by any member of
 
the Group (other than K2021 and
K2020) (including any amount receivable in repayment of intercompany debt repaid by a
 
person who ceases
to be a
 
member of the
 
Group to continuing
 
members of the
 
Group) for any
 
Disposal made by
 
any member
of the Group to persons who are not members of the Group except for Excluded Disposal Proceeds
 
and after
deducting:
(i)
any
 
reasonable
 
expenses
 
which
 
are
 
incurred
 
by
 
any
 
member
 
of
 
the
 
Group
 
to
 
persons
 
who
 
are
 
not
members of the Group with respect to that Disposal; and
(ii)
any Tax incurred and required to be paid by the seller in connection with that Disposal (as reasonably
determined
 
by
 
the
 
seller,
 
on
 
the
 
basis
 
of
 
existing
 
rates
 
and
 
taking
 
account
 
of
 
any
 
available
 
credit,
deduction or allowance).
(c)
Excluded Disposal
 
Proceeds
means any
 
Disposal Proceeds which,
 
when taken together
 
with the Disposal
Proceeds of all other disposals of assets
 
by members of the Group in aggregate, are less
 
than ZAR5,000,000,
but only to the extent that, such
 
Disposal Proceeds are committed to be applied (as
 
evidenced by a resolution
of
 
the
 
board
 
of
 
directors
 
of
 
the
 
relevant
 
member
 
of
 
the
 
Group
 
passed
 
within
 
60
 
days
 
of
 
receipt
 
of
 
such
Disposal Proceeds)
 
to replace
 
an asset
 
(not being
 
shares or
 
any other
 
ownership interest
 
in a
 
person) with
another asset of a substantially similar type for use in the Group's business (being a fixed asset in the case of
a disposal of a fixed asset) within 90 days of receipt of such Disposal Proceeds (or such longer period as the
Facility Agent may agree.
(d)
Excluded Insurance Proceeds
means any proceeds
 
of an insurance claim
 
which the Borrower
 
notifies the
Facility Agent are, or are to be, applied:
(i)
to meet a third party claim;
(ii)
to cover
 
operating losses
 
(including business
 
interruption, interruption
 
loss or other
 
loss of
 
revenue)
in respect of which the relevant insurance claim was made; or
(iii)
are less than ZAR5,000,000,
 
but only to the extent that, such Insurance Proceeds are committed to be
applied in
 
the replacement,
 
reinstatement and/or
 
repair of
 
the assets
 
or otherwise
 
in amelioration
 
of
the loss in respect of which the relevant insurance
 
claim was made, if such Insurance Proceeds are so
applied
 
within 180
 
days (or
 
such longer
 
period as
 
the Facility
 
Agent may
 
agree) of
 
receipt of
 
such
Insurance Proceeds, or committed to be applied (as evidenced by a
 
resolution of the board of directors
of the relevant member of
 
the Group passed within 60
 
days of receipt of such
 
Insurance Proceeds) to
replace, reinstate and/or repair the relevant asset and are
 
applied to such replacement, reinstatement or
repair within 90
 
days of receipt
 
of such Insurance Proceeds
 
(or such longer
 
period as the
 
Facility Agent
may agree)
.
 
(e)
Insurance
 
Proceeds
 
means
 
the
 
proceeds
 
of
 
any
 
insurance claim
 
under
 
any
 
insurance
 
maintained
 
by
 
any
member of the Group except for
 
Excluded Insurance Proceeds and after deducting
 
any reasonable expenses
in relation to that claim which are incurred by any member of the Group to persons who are not members of
the Group.
8.3.2
The Borrower shall prepay Loans, and cancel Available Commitments, in amounts equal to the following amounts
at the
 
times and
 
in the
 
order of
 
application contemplated
 
by Clause
 
(
):
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
29
(a)
the amount of Disposal Proceeds;
(b)
the amount of Insurance Proceeds.
8.4
Mandatory prepayment – cash sweep
8.4.1
Amounts required
 
to be
 
paid and/or
 
offered for
 
repayment or
 
prepayment under
 
this Clause,
 
shall be
 
determined
by reference
 
to the
 
following table
 
(the
Cash Sweep
 
Allocation Table
), and
 
the defined
 
terms set
 
out in
 
Clause
Leverage Ratio
Term Facilities
Sweep Percentage
Shareholder
Sweep Percentage
[Column 1]
[Column 2]
[Column 3]
If equal to or more than 3.00 times:
100.00%
0.00%
If less than 3.00 times,
 
but equal to or more
 
than
2.50 times:
75.00%
25.00%
If less than 2.50 times,
 
but equal to or more
 
than
2.00 times:
50.00%
50.00%
If less than 2.00 times:
0.00%
100.00%
8.4.2
In this Agreement:
Shareholder
 
Sweep Percentage
 
means, in
 
respect of
 
any Measurement
 
Period for
 
which the
 
Leverage Ratio
 
is
equal to or
 
exceeds a level
 
specified in Column
 
1 of the
 
Cash Sweep Allocation
 
Table,
 
the applicable percentage
specified opposite that level in Column 3 of the table;
Shareholder
 
Sweep
 
Amount
,
 
in
 
respect
 
of
 
a
 
Measurement
 
Period,
 
means
 
the
 
applicable
 
Shareholder
 
Sweep
Percentage multiplied by Excess Cashflow for that Measurement Period;
Term Facilities Sweep Percentage
 
means, in respect of any Measurement Period for which the Leverage Ratio is
equal to or
 
exceeds a level
 
specified in Column
 
1 of the
 
Cash Sweep Allocation
 
Table,
 
the applicable percentage
specified opposite that level in Column 2 of the table;
Term Facilities Sweep Amount
, in respect of a Measurement Period, means
 
the applicable Term Facilities Sweep
Percentage multiplied by Excess Cashflow for that Measurement
 
Period;
8.4.3
Within 45 days of each Excess Cashflow Measurement
 
Date, the Borrower shall calculate the Excess Cashflow of
the Group
 
for the
 
Measurement Period
 
which ended
 
on that
 
date and
 
deliver to
 
the Facility
 
Agent a
 
Compliance
Certificate, signed by the chief financial officer of the Group and one
 
other director of the Borrower, confirming:
(a)
the amount of any Excess Cashflow for that Measurement Period;
(b)
Term Facilities Sweep Amount.
8.4.4
If Excess Cashflow arises on any Excess Cashflow Measurement Date:
(a)
the
 
Borrower
 
shall
 
offer
 
to
 
pay,
 
repay
 
or
 
prepay
 
Loans
 
and
 
other
 
Facility
 
Outstandings
 
under
 
the
 
Term
Facilities in an amount equal to the
 
Term Facilities Sweep Amount in the order determined by the Borrower;
(b)
the Borrower may distribute the Shareholder Sweep Amount to the ordinary
 
shareholders of the Borrower.
8.4.5
A
 
payment
 
made
 
pursuant
 
to
 
this
 
Clause
 
is
 
not
 
subject
 
to
 
the
 
Refinancing
 
Penalties
 
set
 
out
 
in
 
Clause
(
).
30
8.5
Application of mandatory prepayments and cancellations
8.5.1
A prepayment of Loans
 
or cancellation of
 
Available Commitments made under Clause
 
 
(
) shall be applied in
 
prepayment of Term Loans as contemplated in Clauses
 
to
 
inclusive below.
8.5.2
Unless the Borrower
 
makes an election under
 
Clause
 
below,
 
the Borrower shall prepay
 
Loans in the case
 
of
any
 
prepayment
 
relating
 
to
 
the amounts
 
of
 
Disposal
 
Proceeds
 
or
 
Insurance
 
Proceeds,
 
promptly
 
upon
 
receipt
 
of
those proceeds.
8.5.3
A
 
prepayment
 
under
 
Clause
 
(
)
 
shall
 
prepay
 
the
 
Term
 
Loans
 
in
 
the
 
order
determined by the Borrower
.
8.5.4
Subject to Clause
 
below, a Borrower may elect
 
that any prepayment
 
under Clause
 
(
)
 
be applied
 
in prepayment
 
of
 
a Loan
 
on
 
the last
 
day
 
of
 
the Interest
 
Period
 
relating
 
to that
 
Loan.
 
If a
Borrower makes that election then a proportion of the Loan equal to the amount
 
of the relevant prepayment will be
due and payable on the last day of its Interest Period.
8.5.5
If a
 
Borrower has
 
made an
 
election under
 
Clause
 
above but
 
a Default
 
has occurred
 
and is
 
continuing, that
election shall no longer apply and
 
a proportion of the Loan in respect
 
of which the election was made
 
equal to the
amount
 
of
 
the
 
relevant
 
prepayment
 
shall
 
be
 
immediately
 
due
 
and
 
payable
 
(unless
 
the
 
Facility
 
Agent
 
otherwise
agrees in writing).
8.6
Excluded proceeds
Where Excluded Disposal Proceeds and Excluded Insurance Proceeds include amounts which are intended to be used for
a
 
specific
 
purpose
 
within
 
a
 
specified
 
period
 
(as
 
set
 
out
 
in
 
the
 
relevant
 
definition
 
of
 
Excluded
 
Disposal
 
Proceeds
 
or
Excluded Insurance Proceeds), the Borrower shall ensure that those amounts are
 
used for that purpose and shall promptly
deliver
 
a certificate
 
to the
 
Facility Agent
 
at the
 
time of
 
such application
 
and at
 
the end
 
of such
 
period confirming
 
the
amount (if any) which has been so applied within the requisite time periods provided
 
for in the relevant definition.
9.
RESTRICTIONS
9.1
Notices of cancellation or prepayment
Any
 
notice
 
of cancellation,
 
prepayment,
 
authorisation
 
or other
 
election
 
given
 
by any
 
Party under
 
Clause
 
(Illegality,
voluntary prepayment and cancellation) or Clause
 
(Application of Mandatory prepayments and cancellations) shall
(subject to the
 
terms of those
 
Clauses) be irrevocable
 
and, unless a
 
contrary indication
 
appears in this
 
Agreement, shall
specify
 
the
 
date
 
or
 
dates
 
upon
 
which
 
the
 
relevant
 
cancellation
 
or
 
prepayment
 
is
 
to
 
be
 
made
 
and
 
the
 
amount
 
of
 
that
cancellation or prepayment.
9.2
Interest and other amounts
Any prepayment under
 
this Agreement shall
 
be made together
 
with accrued interest
 
on the amount
 
prepaid and, subject
to any Break Costs or as otherwise provided in Clause
 
(
), without premium or penalty.
9.3
No reborrowing of Term
 
Facilities
The Borrower may not reborrow any part of a Term
 
Facility which is prepaid.
9.4
Reborrowing of GBF Facility
The
 
amount
 
of
 
any
 
Loan
 
paid,
 
repaid
 
or
 
prepaid
 
under
 
a
 
GBF
 
Facility
 
may
 
be
 
reborrowed
 
on
 
the
 
terms
 
of
 
the
 
GBF
Documents.
9.5
Prepayment in accordance with Agreement
The
 
Borrower
 
shall
 
not
 
repay
 
or
 
prepay
 
all
 
or
 
any
 
part
 
of
 
a
 
Term
 
Loan
 
or
 
cancel
 
all
 
or
 
any
 
part
 
of
 
the
 
Facility
 
A
Commitments or Facility
 
B Commitments, except
 
at the
 
times and in
 
the manner expressly
 
provided for in
 
this Agreement.
31
9.6
No reinstatement of Commitments
No
 
amount
 
of
 
the
 
Total
 
Commitments
 
cancelled
 
under
 
this
 
Agreement
 
or
 
the
 
GBF
 
Agreement
 
may
 
be
 
subsequently
reinstated.
9.7
Facility Agent's receipt of notices
If the Facility
 
Agent receives a
 
notice under
 
Clause
 
(Illegality,
 
voluntary prepayment
 
and cancellation) or
 
an election
under Clause
 
(Application of
 
Mandatory prepayments and
 
cancellations), it
 
shall promptly
 
forward a copy
 
of that
notice or election to either the Borrower or the affected Lender,
 
as appropriate.
9.8
Prepayment elections
The Facility Agent shall notify
 
the Lenders as soon as
 
possible of any proposed prepayment
 
of any Loan under
 
Clause
(Voluntary
 
prepayment of Term
 
Loans) or Clause
 
(
).
 
9.9
Effect of repayment and prepayment on Commitments
If all
 
or part
 
of any
 
Lender's participation
 
in a
 
Loan under
 
a Term
 
Facility is
 
repaid or
 
prepaid and
 
is not
 
available for
redrawing (other than
 
by operation of
 
Clause
 
(Further conditions precedent)),
 
an amount of
 
that Lender's Commitment
(equal to the amount of the participation which is repaid or prepaid) in respect of that Term Facility will be deemed to be
cancelled on the date of repayment or prepayment.
9.10
Application of prepayments
Any
 
prepayment
 
of
 
a
 
Loan
 
(other
 
than
 
a
 
prepayment
 
pursuant
 
to
 
Clause
 
(Illegality)
 
or
 
Clause
 
(Right
 
of
cancellation and repayment in relation to a single Lender))
 
shall be applied pro rata to each Lender's participation in that
Loan.
9.11
Refinancing
9.11.1
Subject to Clause
 
below, a Borrower may prepay
 
(or procure the prepayment of) any Loan or other amount
utilised under a Term Facility from amounts raised under a Refinancing, on
 
the condition that all other Term Loans
and all
 
other amounts
 
owing under
 
the Finance
 
Documents (other
 
than any
 
GBF Document)
 
are repaid
 
in full
 
at
the same time. The Borrower may
 
not Refinance any Loans or other
 
amounts owing under the Finance
 
Documents,
unless:
 
(a)
the Borrower has given at least 30 days' prior notice of the proposed Refinancing
 
to the Facility Agent;
(b)
the Facility Agent has received
 
evidence to its satisfaction that the
 
facilities that are to be made available
 
to
any
 
member
 
of
 
the
 
Group
 
under
 
the
 
proposed
 
Refinancing,
 
together
 
with
 
any
 
other
 
funds
 
that
 
may
 
be
available
 
to
 
the
 
Group),
 
will
 
be
 
sufficient
 
to
 
repay
 
to
 
the
 
Lenders
 
amounts
 
owing
 
under
 
the
 
Finance
Documents
 
(other
 
than
 
any
 
GBF
 
Document)
 
in
 
full
 
by
 
way
 
of
 
a
 
single
 
repayment
 
and
 
that
 
the
 
Total
Commitments (other than the Total
 
GBF Commitments), will be (to the extent not previously cancelled
 
and
reduced to zero) cancelled and reduced to zero; and
(c)
the Facility Agent is satisfied
 
that arrangements are in place to
 
ensure that the funds referred
 
to in this Clause
 
will be applied to repay and
 
discharge all Term Loans and other amounts outstanding under the Finance
Documents (other than any GBF Document) on the proposed repayment date.
9.11.2
The Borrower
 
may not prepay
 
the Term
 
Loans or other
 
amounts outstanding
 
under the Finance
 
Documents from
amounts
 
raised
 
by
 
way
 
of
 
any
 
Refinancing,
 
unless
 
it pays
 
to
 
the
 
Lenders
 
any
 
applicable
 
Refinancing
 
Penalties
calculated in accordance with Clause
 
(
).
9.12
Refinancing penalties
9.12.1
If, at any time on or before the third anniversary of the Closing Date a Borrower makes any voluntary prepayment
or repayment of any Loan pursuant to a Refinancing,
 
the Borrower shall pay to the Facility Agent, for the
 
account
of each Lender entitled
 
thereto, in addition to the
 
sum prepaid or to be prepaid
 
on any date pursuant to
 
Clause
32
(
), the
 
following refinancing
 
penalties (the
Refinancing Penalties
) on
 
the
relevant due date for any such prepayment:
(a)
3.00 per cent. of
 
the amount of the
 
Term Loans
 
prepaid during the period
 
from (and including) the
 
Closing
Date to (and including) the first anniversary of the Closing Date;
(b)
2.00
 
per
 
cent.
 
of
 
the
 
amount of
 
the
 
Term
 
Loans
 
prepaid
 
during
 
the
 
period
 
from
 
(but
 
excluding)
 
the
 
first
anniversary of the Closing Date to (and including) the second anniversary
 
of the Closing Date; and
(c)
1.00 per cent.
 
of the amount
 
of the Term
 
Loans prepaid
 
during the period
 
from (but
 
excluding) the second
anniversary of the Closing Date to (and including) the third anniversary
 
of the Closing Date.
9.12.2
Notwithstanding
 
Clause
,
 
no
 
Refinancing
 
Penalties
 
shall
 
be
 
payable
 
by
 
the
 
Borrower
 
in
 
respect
 
of
 
any
prepayment made pursuant to Clause
 
(
) using (without double counting):
(a)
Internally Generated Cash;
(b)
any Equity Cure Proceeds; or
(c)
any New Shareholder Injections.
9.12.3
If the Borrower offers
 
to the Lender the right to
 
refinance the Facility,
 
no Refinancing Penalty shall
 
be payable to
it under this Clause
33
SECTION 5
COSTS OF UTILISATION
10.
INTEREST
10.1
Calculation of interest
10.1.1
The rate of interest
 
on each Loan for
 
each Interest Period is
 
the percentage rate per
 
annum which is the
 
aggregate
of the applicable:
(a)
Margin;
(b)
the Base Rate.
10.2
Payment of interest
The Borrower
 
to which
 
a Loan
 
has been
 
made shall
 
pay accrued
 
interest on
 
that Loan
 
on the
 
last day
 
of each
 
Interest
Period.
10.3
Default interest
10.3.1
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue
on the
 
overdue amount
 
from the
 
due date
 
up to
 
the date
 
of actual
 
payment (both
 
before and
 
after judgment)
 
at a
rate which, subject to Clause
 
below, is 2.00 per cent. per annum higher than the rate which would have
 
been
payable if
 
the overdue
 
amount had,
 
during the
 
period of
 
non-payment, constituted
 
a Loan
 
in the
 
currency of
 
the
overdue
 
amount
 
for
 
successive
 
Interest
 
Periods,
 
each
 
of
 
a
 
duration
 
selected
 
by
 
the
 
Facility
 
Agent
 
(acting
reasonably).
 
Any interest accruing under this Clause
 
shall be immediately payable by the Obligor on demand
by the Facility Agent.
10.3.2
If any overdue
 
amount consists of all
 
or part of
 
a Loan which became
 
due on a day
 
which was not the
 
last day of
an Interest Period relating to that Loan:
(a)
the first Interest
 
Period for that
 
overdue amount shall
 
have a duration
 
equal to the
 
unexpired portion of
 
the
current Interest Period relating to that Loan; and
(b)
the rate of interest applying to the overdue amount during that first Interest Period shall be 2.00 per cent. per
annum higher than the rate which would have applied if the overdue amount
 
had not become due.
10.3.3
Default interest (if unpaid) arising on an overdue amount will be compounded
 
with the overdue amount at the end
of each Interest Period applicable to that overdue amount but will remain
 
immediately due and payable.
10.4
Notification of rates of interest
The Facility Agent shall promptly notify the relevant Lenders and the relevant Borrower of the determination of a rate of
interest under this Agreement.
11.
INTEREST PERIODS
11.1
Duration
11.1.1
Subject to the other provisions of this Clause, each Term
 
Loan has successive Interest Periods each:
(a)
commencing on (and including) the Utilisation Date of that Term Loan (in respect of the first Interest Period
for that Loan) and thereafter commencing on (and including) each successive Interest
 
Payment Date; and
(b)
ending on (but excluding) the next Interest Payment Date.
34
11.2
Non-Business Days
If an Interest Period
 
would otherwise end on
 
a day which is
 
not a Business Day,
 
that Interest Period will
 
instead end on
the next Business Day in that calendar month (if there is one) or the preceding
 
Business Day (if there is not).
12.
CHANGES TO THE CALCULATION
 
OF INTEREST
12.1
Absence of quotations
Subject
 
to
 
Clause
 
(
),
 
if
 
JIBAR
 
is
 
to
 
be
 
determined
 
by
 
reference
 
to
 
the
 
Reference
 
Banks
 
but
 
a
Reference Bank does not supply
 
a quotation by 12h00 on
 
the Quotation Day,
 
JIBAR shall be determined on
 
the basis of
the quotations provided by the remaining Reference Banks.
12.2
Market disruption
12.2.1
If a Market Disruption Event occurs in relation to the Loan for any Interest Period, then the rate of interest on each
Lender's share of the Loan for the Interest Period shall be the percentage rate per annum
 
which is the sum of:
(a)
the Margin; and
(b)
the highest
 
of the
 
rates notified
 
to the
 
Facility Agent
 
by any
 
relevant Lender
 
as soon
 
as practicable
 
and in
any event before
 
interest is due to
 
be paid in
 
respect of that
 
Interest Period, to
 
be that which
 
expresses as a
percentage rate
 
per annum
 
the cost
 
to that
 
Lender of
 
funding its
 
participation in
 
that Loan
 
from whatever
source(s) it may reasonably select.
12.2.2
In this Clause
:
 
(a)
Market Disruption Event
 
means:
(i)
at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is not available
and none or only one of the Reference Banks supplies a rate to the
 
Facility Agent to determine JIBAR
for the relevant Interest Period;
 
(ii)
before close
 
of business
 
in Johannesburg
 
on the
 
Quotation Day
 
for the
 
relevant Interest
 
Period, the
Facility Agent receives notifications
 
from one or more Lenders whose
 
aggregate participations in the
Loan exceed 30.00 per cent of aggregate principal amount of Loan that:
(A)
the
 
cost
 
to
 
them
 
of
 
funding
 
their
 
participation
 
in
 
the
 
Loan
 
from
 
whatever
 
source
 
they
 
may
reasonably select would be in excess of JIBAR;
(B)
the cost
 
to it
 
or them
 
of obtaining matching
 
deposits in the
 
Johannesburg interbank market
 
would
be in excess of JIBAR for the relevant Interest Period; or
(C)
matching
 
deposits will
 
not
 
be available
 
to them
 
in the
 
Johannesburg
 
interbank
 
market
 
in the
ordinary
 
course
 
of
 
business
 
to
 
fund
 
their
 
participation
 
in
 
that
 
Loan
 
for
 
the
 
relevant
 
Interest
Period.
12.3
Alternative basis of interest or funding
12.3.1
Without
 
prejudice to
 
the generality
 
of Clause
 
(
), if
 
a Market
 
Disruption Event
 
occurs and
the Facility Agent or a Borrower so requires, the Facility Agent and the Borrower shall enter into negotiations (for
a period of not more
 
than 30 days, or such longer
 
period as the Facility Agent may
 
agree) with a view to agreeing
a substitute basis for determining the rate of interest.
12.3.2
Any alternative
 
basis agreed
 
pursuant to
 
Clause
 
above shall,
 
with the
 
prior consent
 
of all
 
the Lenders
 
and
the applicable Borrower, be binding on
 
all Parties.
35
12.4
Break Costs and Break Gains
12.4.1
The Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break
Costs attributable to
 
all or any
 
part of a
 
Loan or Unpaid
 
Sum being paid
 
by the Borrower on
 
a day other
 
than the
last day of an Interest Period for that Loan or Unpaid Sum.
12.4.2
Unless a Default
 
is then continuing
 
or unless such Break
 
Gain is realised
 
as a consequence
 
of any prepayment
 
of
the Loan due to
 
the occurrence of an
 
Event of Default, a
 
Lender realising such Break Gain
 
shall, within 10 Business
Days of demand by a Borrower,
 
pay to the Borrower the amount of
 
any Break Gains attributable to all
 
or any part
of the Loan or an Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for
the Loan or that Unpaid Sum.
12.4.3
Each Lender
 
shall, as
 
soon as
 
reasonably practicable
 
after a
 
demand by
 
the Facility
 
Agent, provide
 
a certificate
confirming
 
the
 
amount
 
of
 
its Break
 
Costs
 
or
 
Break
 
Gains
 
(if
 
applicable)
 
for
 
any
 
Interest
 
Period
 
in
 
which
 
they
accrue.
13.
FEES
13.1
Non-refundable Structuring fee
13.1.1
The Borrower shall pay
 
to the Lender, a non-refundable
 
structuring fee in an
 
amount equal to
 
R4,000,000 (the
Non-
refundable Structuring Fee
).
13.1.2
The Non-refundable
 
Structuring Fee shall
 
accrue in
 
full on the
 
Closing Date and
 
be payable on
 
the Closing Date
(the
Non-refundable Structuring Fee Payment Date
).
13.1.3
All payments
 
to be
 
made by
 
the Borrower
 
to the
 
Lender in
 
terms of
 
this Clause
 
shall be
 
made at
 
or before
12h00 on the
 
Non-refundable Structuring Fee
 
Payment Date in immediately
 
available funds free
 
of set off,
 
taxes,
exchange, costs, charges, exchange rate variations,
 
expenses or any other deductions to a nominated bank account
in
 
South
 
Africa
 
the
 
details
 
of
 
which
 
will
 
be
 
set
 
out
 
on
 
the
 
respective
 
tax
 
invoice
 
issued
 
by
 
the
 
Lender
 
to
 
the
Borrower.
13.1.4
All fees due and
 
payable to the Lender under
 
this Clause
, once paid, are non-refundable
 
and will not discharge
any other obligations to pay any fees or other amount due under the Finance Documents.
13.2
Facility Agent fee
If the Lender
 
has transferred
 
a portion of
 
its rights and
 
obligations under
 
this Agreement, the
 
Borrower shall
 
pay to the
Facility Agent a Facility Agent fee in the amount and at the times agreed in
 
a Fee Letter.
36
SECTION 6
ADDITIONAL PAYMENT
 
OBLIGATIONS
14.
TAX GROSS UP AND INDEMNITIES
14.1
Definitions
In this Agreement:
14.1.1
Protected Party
 
means a Finance Party
 
which is or will
 
be subject to any
 
liability or required to
 
make any payment
for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes
 
of Tax to
be received or receivable) under a Finance Document.
14.1.2
Tax Credit
 
means a credit against, relief or remission for,
 
or repayment of, any Tax.
14.1.3
Tax
 
Deduction
 
means
 
a
 
deduction
 
or
 
withholding
 
for
 
or
 
on
 
account
 
of
 
Tax
 
from
 
a
 
payment
 
under
 
a
 
Finance
Document, other than a FATCA
 
Deduction.
14.1.4
Tax
 
Payment
 
means either
 
the increase
 
in a
 
payment made
 
by an
 
Obligor to
 
a Finance
 
Party under
 
Clause
(Tax gross-up) or
 
a payment under Clause
 
(Tax indemnity).
14.2
Tax gross
 
-up
14.2.1
Each
 
Obligor
 
shall make
 
all payments
 
to be
 
made by
 
it without
 
any
 
Tax
 
Deduction,
 
unless a
 
Tax
 
Deduction
 
is
required by law.
14.2.2
The Borrower
 
shall promptly upon
 
becoming aware
 
that an Obligor
 
must make
 
a Tax
 
Deduction (or that
 
there is
any change in the rate or the
 
basis of a Tax
 
Deduction) notify the Facility Agent
 
accordingly.
 
Similarly, a Lender
shall notify the Facility Agent on
 
becoming so aware in respect
 
of a payment payable to that
 
Lender.
 
If the Facility
Agent receives such notification from a Lender it shall notify the that Obligor
 
.
14.2.3
If a Tax Deduction is required by
 
law to be made by an Obligor, the amount of the payment due from that Obligor
shall be increased
 
to an amount
 
which (after making
 
any Tax
 
Deduction) leaves
 
an amount equal
 
to the payment
which would have been due if no Tax
 
Deduction had been required.
14.2.4
If an Obligor
 
is required to
 
make a Tax
 
Deduction, that Obligor
 
shall make that
 
Tax
 
Deduction and any
 
payment
required in connection
 
with that Tax
 
Deduction within the
 
time allowed and
 
in the minimum
 
amount required by
law.
14.2.5
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax
 
Deduction,
the
 
Obligor
 
making
 
that
 
Tax
 
Deduction
 
shall
 
deliver
 
to
 
the Facility
 
Agent
 
for
 
the
 
Finance
 
Party
 
entitled
 
to
 
the
payment
 
evidence
 
reasonably
 
satisfactory
 
to
 
that
 
Finance
 
Party
 
that
 
the
 
Tax
 
Deduction
 
has
 
been
 
made
 
or
 
(as
applicable) any appropriate payment paid to the relevant taxing authority.
14.3
Tax indemnity
14.3.1
The
 
Borrower
 
shall
 
(within
 
three
 
Business Days
 
of
 
demand
 
by
 
the
 
Facility
 
Agent)
 
pay
 
to
 
a
 
Protected
 
Party
 
an
amount equal
 
to the
 
loss, liability
 
or cost
 
which that
 
Protected Party
 
determines will
 
be or
 
has been
 
(directly or
indirectly) suffered for or on account of Tax
 
by that Protected Party in respect of a Finance Document.
14.3.2
Clause
 
above shall not apply:
(a)
with respect to any Tax
 
assessed on a Finance Party:
(i)
under
 
the
 
law
 
of
 
the
 
jurisdiction
 
in
 
which
 
that
 
Finance
 
Party
 
is
 
incorporated
 
or,
 
if
 
different,
 
the
jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for
 
tax purposes; or
(ii)
under the law of the jurisdiction in which that Finance Party is located in respect of amounts received
or receivable in that jurisdiction,
37
if
 
that
 
Tax
 
is imposed
 
on or
 
calculated
 
by reference
 
to the
 
net
 
income received
 
or receivable
 
(but not
 
any
 
sum
deemed to be received or receivable) by that Finance Party; or
(b)
to the extent a loss, liability or cost:
(i)
is compensated for by an increased payment under Clause
 
(Tax gross-up); or
(ii)
relates to a FATCA
 
Deduction required to be made by a Party.
14.3.3
A Protected Party
 
making, or
 
intending to
 
make a
 
claim under
 
Clause
 
above shall
 
promptly notify the
 
Facility
Agent of the event which will give, or
 
has given, rise to the claim, following which the Facility
 
Agent shall notify
the Obligors.
14.3.4
A Protected Party shall, on receiving a payment from an Obligor under this Clause
, notify the Facility Agent.
14.4
Tax Credit
14.4.1
If an Obligor makes a Tax
 
Payment and the relevant Finance Party determines that:
(a)
a
 
Tax
 
Credit
 
is
 
attributable
 
to
 
an
 
increased
 
payment
 
of
 
which
 
that
 
Tax
 
Payment
 
forms
 
part,
 
to
 
that
 
Tax
Payment or to a Tax
 
Deduction in consequence of which that Tax
 
Payment was required; and
(b)
that Finance Party has obtained and utilised that Tax
 
Credit,
the Finance Party
 
shall pay an amount
 
to the Obligor
 
which that Finance
 
Party determines will
 
leave it (after
 
that
payment)
 
in the
 
same after-Tax
 
position as
 
it would
 
have been
 
in had
 
the Tax
 
Payment not
 
been required
 
to be
made by the Obligor.
14.5
Stamp taxes
The Borrower shall pay and, within three Business Days of demand, indemnify each Finance Party
 
against any cost, loss
or liability that Finance
 
Party incurs in relation
 
to all stamp duty,
 
registration and other similar Taxes
 
payable in respect
of any Finance Document.
14.6
VAT
14.6.1
All amounts expressed to
 
be payable under
 
a Finance Document by
 
any Party to a Finance
 
Party which (in whole
or in part)
 
constitute the consideration
 
for any supply
 
for VAT
 
purposes are deemed
 
to be exclusive
 
of any VAT
which
 
is
 
chargeable
 
on
 
that
 
supply,
 
and
 
accordingly,
 
subject
 
to
 
Clause
 
below,
 
if
 
VAT
 
is
 
or
 
becomes
chargeable
 
on any
 
supply made
 
by any
 
Finance Party
 
to any
 
Party under
 
a Finance
 
Document and
 
such Finance
Party is required to account to the relevant tax authority for the VAT,
 
that Party must pay to such Finance Party (in
addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount
of the VAT
 
(and such Finance Party must promptly provide an appropriate VAT
 
invoice to that Party).
14.6.2
If VAT
 
is or becomes
 
chargeable on
 
any supply
 
made by
 
any Finance
 
Party (the
Supplier
) to
 
any other Finance
Party (the
Recipient
) under a
 
Finance Document, and
 
any Party other
 
than the Recipient
 
(the
Relevant Party
) is
required by the terms of
 
any Finance Document to pay an
 
amount equal to the consideration
 
for that supply to the
Supplier (rather than being required to reimburse or indemnify the
 
Recipient in respect of that consideration):
(a)
(where the Supplier is the person required to account to the relevant tax authority for the VAT)
 
the Relevant
Party must also
 
pay to the Supplier
 
(at the same time
 
as paying that amount)
 
an additional amount
 
equal to
the amount of the VAT.
 
The Recipient must (where this paragraph
 
applies) promptly pay to the
 
Relevant
Party an amount
 
equal to any
 
credit or
 
repayment the Recipient
 
receives from the
 
relevant tax authority
 
which
the Recipient reasonably determines relates to the VAT
 
chargeable on that supply; and
(b)
(where the Recipient is the
 
person required to account to
 
the relevant tax authority for
 
the VAT)
 
the Relevant
Party must
 
promptly,
 
following
 
demand
 
from
 
the Recipient,
 
pay
 
to the
 
Recipient an
 
amount
 
equal
 
to the
VAT
 
chargeable on that
 
supply but only to the
 
extent that the Recipient reasonably
 
determines that it is not
entitled to credit or repayment from the relevant tax authority in respect of that VAT.
38
14.6.3
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense,
that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or
expense,
 
including
 
such
 
part
 
thereof
 
as
 
represents
 
VAT,
 
save
 
to
 
the
 
extent
 
that
 
such
 
Finance
 
Party
 
reasonably
determines that it is entitled to credit or repayment in respect of such VAT
 
from the relevant tax authority.
14.7
FATCA
 
information
14.7.1
Subject to Clause
 
below, each Party shall, within 10
 
Business Days of a
 
reasonable request by another Party:
(a)
confirm to that other Party whether it is:
(i)
a FATCA
 
Exempt Party; or
(ii)
not a FATCA
 
Exempt Party;
(b)
supply
 
to
 
that
 
other
 
Party
 
such
 
forms,
 
documentation
 
and
 
other
 
information
 
relating
 
to
 
its
 
status
 
under
FATCA
 
as
 
that
 
other
 
Party
 
reasonably
 
requests
 
for
 
the
 
purposes
 
of
 
that
 
other
 
Party's
 
compliance
 
with
FATCA;
 
and
(c)
supply to that other Party such forms, documentation and other information relating to its status as
 
that other
Party reasonably requests for the purposes of that other
 
Party's compliance with any other law, regulation, or
exchange of information regime.
14.7.2
If a
 
Party confirms
 
to another
 
Party pursuant
 
to Clause
 
above that
 
it is
 
a FATCA
 
Exempt Party
 
and it
subsequently becomes aware
 
that it is not or
 
has ceased to be a
 
FATCA
 
Exempt Party,
 
that Party shall notify that
other Party reasonably promptly.
14.7.3
Clause
 
above shall not oblige any Finance Party to do anything, and Clause
 
above shall not oblige
any other Party to do anything, which would or might in its reasonable opinion
 
constitute a breach of:
(a)
any law or regulation;
(b)
any fiduciary duty; or
(c)
any duty of confidentiality.
14.7.4
If a Party fails to
 
confirm whether or not
 
it is a FATCA
 
Exempt Party or to
 
supply forms, documentation or
 
other
information
 
requested
 
in
 
accordance
 
with
 
Clauses
 
or
 
above
 
(including,
 
for
 
the
 
avoidance
 
of
doubt,
 
where
 
Clause
 
above
 
applies),
 
then
 
such
 
Party
 
shall
 
be
 
treated
 
for
 
the
 
purposes
 
of
 
the
 
Finance
Documents (and payments under
 
them) as if
 
it is not
 
a FATCA
 
Exempt Party until
 
such time as
 
the Party in
 
question
provides the requested confirmation, forms, documentation or
 
other information.
14.7.5
If a Borrower
 
is a US Tax
 
Obligor or the Facility
 
Agent reasonably believes
 
that its obligations under
 
FATCA
 
or
any other applicable law or regulation require it, each Lender shall, within 10
 
Business Days of:
(a)
where the
 
Borrower is
 
a US
 
Tax
 
Obligor and
 
the relevant
 
Lender is
 
an Original
 
Term
Lender or
 
the GBF
Lender, the date of this Agreement;
(b)
where a Borrower
 
is a US
 
Tax
 
Obligor on a
 
date on which
 
any other Lender
 
becomes a Party
 
as a Lender,
that date;
(c)
the date a new US Tax
 
Obligor accedes as a Borrower; or
(d)
where a Borrower is not a US Tax
 
Obligor, the date of a request from the Facility Agent,
supply to the Facility Agent:
(i)
a withholding certificate on Form W-8,
 
Form W-9 or any other relevant form; or
39
(ii)
any
 
withholding
 
statement
 
or
 
other
 
document,
 
authorisation
 
or
 
waiver
 
as
 
the
 
Facility
 
Agent
 
may
require to certify or establish the status of such Lender under FATCA
 
or that other law or regulation.
14.7.6
The Facility
 
Agent shall
 
provide any
 
withholding certificate,
 
withholding
 
statement, document,
 
authorisation or
waiver it receives from a Lender pursuant to Clause
 
above to the relevant Borrower.
14.7.7
If any
 
withholding certificate,
 
withholding statement,
 
document, authorisation
 
or waiver
 
provided to
 
the Facility
Agent by a Lender pursuant to Clause
 
above is or becomes materially inaccurate or incomplete, that Lender
shall
 
promptly
 
update
 
it
 
and
 
provide
 
such
 
updated
 
withholding
 
certificate,
 
withholding
 
statement,
 
document,
authorisation or waiver to the Facility Agent unless it is unlawful for the
 
Lender to do so (in which case the
 
Lender
shall
 
promptly
 
notify
 
the
 
Facility
 
Agent).
 
The
 
Facility
 
Agent
 
shall
 
provide
 
any
 
such
 
updated
 
withholding
certificate, withholding statement, document, authorisation or waiver
 
to the relevant Borrower.
14.7.8
The
 
Facility
 
Agent
 
may
 
rely on
 
any
 
withholding
 
certificate,
 
withholding
 
statement,
 
document,
 
authorisation
 
or
waiver
 
it
 
receives
 
from
 
a
 
Lender
 
pursuant
 
to
 
Clauses
 
or
 
above
 
without
 
further
 
verification.
 
The
Facility
 
Agent
 
shall
 
not
 
be
 
liable
 
for
 
any
 
action
 
taken
 
by
 
it
 
under
 
or
 
in
 
connection
 
with
 
Clauses
,
or
 
above.
14.8
FATCA
 
Deduction
14.8.1
Each
 
Party
 
may
 
make
 
any
 
FATCA
 
Deduction
 
it is
 
required
 
to
 
make
 
by
 
FATCA,
 
and
 
any
 
payment
 
required
 
in
connection with that FATCA Deduction, and no Party shall
 
be required to increase
 
any payment in
 
respect of which
it
 
makes
 
such
 
a
 
FATCA
 
Deduction
 
or
 
otherwise
 
compensate
 
the
 
recipient
 
of
 
the
 
payment
 
for
 
that
 
FATCA
Deduction.
14.8.2
Each Party shall
 
promptly, upon becoming aware that
 
it must
 
make a FATCA Deduction (or that there
 
is any change
in the
 
rate or
 
the basis
 
of such
 
FATCA
 
Deduction),
 
notify the
 
Party to
 
whom
 
it is
 
making the
 
payment
 
and, in
addition,
 
shall notify
 
the Borrower
 
and
 
the Facility
 
Agent and
 
the Facility
 
Agent
 
shall notify
 
the other
 
Finance
Parties.
15.
INCREASED COSTS
15.1
Increased costs
15.1.1
Subject to
 
Clause
 
(Exceptions) the
 
Borrower shall,
 
within three
 
Business Days
 
of a
 
demand by
 
the Facility
Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party
 
or
any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or
application
 
of)
 
any
 
law
 
or
 
regulation
 
or
 
(ii) compliance
 
with
 
any
 
law
 
or
 
regulation
 
made
 
after
 
the
 
date
 
of
 
this
Agreement.
15.1.2
In this Agreement
Increased Costs
 
means:
(a)
a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's)
 
overall capital;
(b)
an additional or increased cost; or
(c)
a reduction of any amount due and payable under any Finance Document,
(d)
which is incurred or suffered
 
by a Finance Party or any
 
of its Affiliates to the
 
extent that it is attributable
 
to
that Finance
 
Party having
 
entered into
 
its Commitment
 
or funding
 
or performing
 
its obligations
 
under any
Finance Document.
15.2
Increased cost claims
15.2.1
A Finance Party intending to make a
 
claim pursuant to Clause
 
(Increased costs) shall notify the Facility Agent
of the event giving rise to the claim, following which the Facility Agent shall promptly
 
notify the Borrower.
15.2.2
Each
 
Finance
 
Party
 
shall,
 
as
 
soon
 
as
 
practicable
 
after
 
a
 
demand
 
by
 
the
 
Facility
 
Agent,
 
provide
 
a
 
certificate
confirming the amount of its Increased Costs.
40
15.3
Exceptions
15.3.1
Clause
 
(Increased costs) does not apply to the extent any Increased Cost is:
(a)
attributable to a Tax
 
Deduction required by law to be made by an Obligor;
(b)
attributable to a FATCA
 
Deduction required to be made by a Party;
(c)
compensated for
 
by Clause
 
(Tax
 
indemnity) (or
 
would have
 
been compensated
 
for under
 
Clause
(Tax
 
indemnity)
 
but
 
was not
 
so
 
compensated
 
solely because
 
any
 
of the
 
exclusions
 
in
 
Clause
 
(Tax
indemnity) applied);
(d)
attributable to the wilful breach by the relevant Finance Party or its Affiliates
 
of any law or regulation.
15.3.2
In
 
this
 
Clause
 
reference
 
to
 
a
Tax
 
Deduction
 
has
 
the
 
same
 
meaning
 
given
 
to
 
the
 
term
 
in
 
Clause
(Definitions).
16.
OTHER INDEMNITIES
16.1
Other indemnities
The Obligors shall, within three Business Days of demand, indemnify the Arranger and each other Finance Party against
any cost, loss or liability incurred by it as a result of:
16.1.1
the occurrence of any Default;
16.1.2
a
 
failure
 
by
 
an
 
Obligor
 
to
 
pay
 
any
 
amount
 
due
 
under
 
a
 
Finance
 
Document
 
on
 
its
 
due
 
date,
 
including
 
without
limitation, any cost, loss or liability arising as a result of Clause
 
(Sharing among the Finance Parties);
16.1.3
funding,
 
or
 
making
 
arrangements
 
to
 
fund,
 
its
 
participation
 
in
 
a
 
Loan
 
requested
 
by
 
a
 
Borrower
 
in
 
a
 
Utilisation
Request but not made by
 
reason of the operation of
 
any one or more
 
of the provisions of this
 
Agreement (other than
by reason of default or negligence by that Finance Party alone); or
16.1.4
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment
 
given by the Obligor.
16.2
Environmental indemnity
The
 
Obligors
 
shall,
 
within
 
five Business
 
Days
 
of
 
demand,
 
indemnify
 
each Finance
 
Party and
 
its officers,
 
employees,
agents
 
and
 
delegates
 
(together
 
the
Indemnified
 
Parties
)
 
against
 
any
 
loss
 
or
 
liability
 
suffered
 
or
 
incurred
 
by
 
that
Indemnified Party (except to
 
the extent caused
 
by such Indemnified
 
Party's own gross
 
negligence or wilful default)
 
which:
16.2.1
arises by virtue of
 
any actual or alleged breach
 
of any Environmental Law
 
(whether by any member
 
of the Group
or any other person);
16.2.2
arises in connection with an Environmental Claim; or
16.2.3
arises
 
as
 
a
 
result
 
of
 
any
 
enquiry,
 
investigation,
 
subpoena
 
(or
 
similar
 
order)
 
or
 
litigation
 
with
 
respect
 
to
 
any
Environmental Claim
 
and any
 
other enquiry,
 
investigation, subpoena
 
(or similar
 
order) or
 
litigation in
 
respect of
any breach of
 
any Environmental Law
 
that has or
 
is reasonably likely
 
to give rise
 
to any liability for
 
any Finance
Party,
which relates to the Group, any assets of the Group or the
 
operation of all or part of the business of the Group
 
(or, in each
case, any member of the Group) and which would not have arisen if the Finance Documents or any of them had not been
executed
 
by
 
that
 
Finance
 
Party
 
or
 
the
 
Finance
 
Party
 
had
 
not
 
otherwise
 
participated
 
in
 
the
 
funding
 
arrangements
contemplated by the Finance Documents or any of them.
16.3
Indemnity to the Facility Agent
The
 
Borrower
 
shall
 
promptly
 
indemnify
 
the Facility
 
Agent
 
against
 
and
 
shall
 
pay
 
to the
 
Facility
 
Agent
 
and
 
each such
Representative any cost, loss or liability incurred by the Facility Agent or
 
Representative as a result of:
41
16.3.1
investigating or taking any other action in connection with any event which it reasonably
 
believes is a Default;
16.3.2
any failure by a Borrower to comply with its obligations under Clause
 
(
);
16.3.3
any
 
default
 
by
 
an
 
Obligor
 
or
 
any
 
other
 
Security
 
Provider
 
in
 
the
 
performance
 
of
 
any
 
of
 
the
 
other
 
obligations
expressed to be assumed by it in the Finance Documents;
16.3.4
acting
 
or
 
relying
 
on
 
any
 
notice,
 
request
 
or
 
instruction
 
which
 
it
 
reasonably
 
believes
 
to
 
be
 
genuine,
 
correct
 
and
appropriately authorised;
16.3.5
the exercise of any of
 
the rights, powers, discretions, authorities and
 
remedies vested in the Facility
 
Agent and each
Representative appointed
 
by the
 
Facility Agent
 
by the
 
Finance Documents
 
or by
 
law other
 
than by
 
reason of
 
the
Facility Agent's gross negligence or wilful default;
16.3.6
instructing lawyers, accountants,
 
tax advisers, surveyors
 
or other
 
professional advisers or
 
experts as
 
permitted under
this Agreement; or
16.3.7
instructing any Representative under the Finance Documents.
17.
MITIGATION
 
BY THE LENDERS
17.1
Mitigation
17.1.1
Each Finance Party shall, in
 
consultation with the Borrower, take all
 
reasonable steps to mitigate
 
any circumstances
which arise and which would result in any Facility ceasing to be available or any amount becoming
 
payable under
or pursuant to, or cancelled pursuant to, any
 
of Clause
 
(Illegality), Clause
 
(Tax gross-up and indemnities) or
Clause
 
(Increased Costs) including (but not
 
limited to) transferring its rights and
 
obligations under the Finance
Documents to another Affiliate.
17.1.2
Clause
 
above does not in any way limit the obligations of any Obligor under the Finance Documents.
17.2
Limitation of liability
17.2.1
The Borrower shall promptly indemnify each Finance
 
Party for all costs and expenses reasonably incurred
 
by that
Finance Party as a result of steps taken by it under Clause
 
(Mitigation).
17.2.2
A Finance Party
 
is not obliged
 
to take any
 
steps under
 
Clause
 
(Mitigation) if, in
 
the opinion
 
of that Finance
Party (acting reasonably), to do so might be prejudicial to it.
18.
COSTS AND EXPENSES
18.1
Transaction expenses
The Borrower shall, promptly
 
on demand, pay the Facility
 
Agent and the Arranger
 
the amount of all costs and
 
expenses
(including
 
reasonable
 
or
 
agreed
 
legal
 
fees
 
and
 
costs
 
relating
 
to
 
site
 
visits)
 
reasonably
 
incurred
 
by
 
any
 
of
 
them
 
in
connection with the negotiation, preparation, printing, execution, syndication
 
and perfection of:
18.1.1
this Agreement and any other documents referred to in this Agreement
 
and the Transaction Security; and
18.1.2
any other Finance Documents executed after the date of this Agreement.
18.2
Amendment costs
If:
18.2.1
an Obligor requests an amendment, waiver or consent; or
18.2.2
there is
 
any change
 
in law
 
or any
 
regulation which
 
requires an
 
amendment, waiver
 
or consent
 
under the
 
Finance
Documents,
42
the Borrower shall, within three Business Days of demand, reimburse
 
each Finance Party for the amount of all costs and
expenses (including legal fees)
 
reasonably incurred by that Finance
 
Party (and by any Representative
 
appointed by such
Finance Party) in responding to, evaluating, negotiating or complying with that
 
request or requirement.
18.3
Enforcement and preservation costs
The Borrower shall,
 
within three
 
Business Days
 
of demand, pay
 
to each Finance
 
Party the amount
 
of all
 
costs and
 
expenses
(including legal fees on the scale between attorney and own
 
client whether incurred before or after judgment) incurred by
it in
 
connection with the
 
enforcement of or
 
the preservation of
 
any rights under
 
any Finance
 
Document and the
 
Transaction
Security
 
and
 
any
 
proceedings
 
instituted
 
by
 
or
 
against
 
a
 
Finance
 
Party
 
as
 
a
 
consequence
 
of
 
taking
 
or
 
holding
 
the
Transaction Security or enforcing these rights.
43
SECTION 7
GUARANTEE
19.
GUARANTEE AND INDEMNITY
19.1
Guarantee and indemnity
19.2
Each Guarantor
 
irrevocably and
 
unconditionally jointly
 
and severally,
 
as a principal
 
obligor and
 
not merely
 
as a surety
on the basis of discrete obligations enforceable against it:
19.2.1
guarantees to each Finance
 
Party punctual performance
 
by each other
 
Obligor of all
 
that Obligor's obligations
 
under
the Finance Documents;
19.2.2
undertakes with each Finance Party that whenever another Obligor does not pay any amount when due under or in
connection with any Finance Document, that Guarantor
 
shall immediately on demand pay that amount
 
as if it was
the principal obligor; and
19.2.3
agrees
 
with
 
each
 
Finance
 
Party
 
that
 
if
 
any
 
obligation
 
guaranteed
 
by
 
it
 
is
 
or
 
becomes
 
unenforceable,
 
invalid
 
or
illegal, it
 
will, as
 
an independent
 
and primary
 
obligation, indemnify
 
that Finance
 
Party immediately
 
on demand
against any
 
cost, loss
 
or liability
 
it incurs
 
as a
 
result of
 
an Obligor
 
not paying
 
any amount
 
which would,
 
but for
such unenforceability,
 
invalidity or
 
illegality,
 
have been
 
payable by
 
it under
 
any Finance
 
Document on
 
the date
when it would have
 
been due.
 
The amount payable by
 
a Guarantor under this
 
indemnity will not exceed
 
the amount
it
 
would
 
have
 
had
 
to
 
pay
 
under
 
this
 
Clause
 
if
 
the
 
amount
 
claimed
 
had
 
been
 
recoverable
 
on
 
the
 
basis
 
of
 
a
guarantee.
19.3
Continuing guarantee
This guarantee
 
is a continuing
 
guarantee and
 
will extend to
 
the ultimate balance
 
of sums payable
 
by any Obligor
 
under
the Finance Documents, regardless of any intermediate payment
 
or discharge in whole or in part.
19.4
Reinstatement
If any
 
discharge, release
 
or arrangement
 
(whether in
 
respect of
 
the obligations
 
of any
 
Obligor or
 
any security
 
for those
obligations or
 
otherwise) is
 
made by
 
a Finance
 
Party in
 
whole or
 
in part
 
on the basis
 
of any
 
payment, security
 
or other
disposition which is avoided or must be restored
 
in insolvency,
 
business rescue proceedings, liquidation, administration,
winding up or otherwise, without limitation, then the liability of each Guarantor
 
under this Clause
 
will continue or be
reinstated as if the discharge, release or arrangement had not occurred.
19.5
Waiver of defences
19.5.1
The obligations
 
of each
 
Guarantor under
 
this Clause
 
will not
 
be affected
 
by an
 
act, omission,
 
matter or
 
thing
which, but for
 
this Clause
, would
 
reduce, release or
 
prejudice any of
 
its obligations under
 
this Clause
 
(without
limitation and whether or not known to it or any Finance Party) including:
(a)
any time, waiver or consent granted to, or composition with, any Obligor
 
or other person;
(b)
the release of any other Obligor or any
 
other person under the terms of any composition or
 
arrangement with
any creditor of any member of the Group;
(c)
the taking, variation,
 
compromise, exchange,
 
renewal or release
 
of, or refusal
 
or neglect to
 
perfect, take up
or enforce, any rights against, or security over assets of,
 
any Obligor or other person or any non-presentation
or non-observance of any formality or other
 
requirement in respect of any instrument
 
or any failure to realise
the full value of any security;
(d)
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or
status of an Obligor or any other person;
(e)
any
 
amendment,
 
novation,
 
supplement,
 
extension,
 
restatement
 
(however
 
fundamental
 
and
 
whether
 
or
 
not
more onerous) or replacement of a
 
Finance Document or any other document or
 
security including, without
44
limitation, any
 
change in
 
the purpose of,
 
any extension
 
of or increase
 
in any facility
 
or the addition
 
of any
new facility under any Finance Document or other document or security;
(f)
any unenforceability,
 
illegality, invalidity,
 
suspension or cancellation of any obligation
 
of any person under
any Finance Document or any other document or security; or
(g)
any insolvency,
 
liquidation, winding
 
up, business
 
rescue or
 
similar proceedings
 
(including, but
 
not limited
to, receipt of any distribution made under or in connection with those proceedings).
19.6
Guarantor intent
Without prejudice to the generality of Clause
 
(
Waiver of defences
), each Guarantor expressly
 
confirms that it intends
that this guarantee shall extend from time to time to
 
any (however fundamental) variation, increase, extension or addition
of or to any of the Finance Documents and/or any
 
facility or amount made available under any of the Finance
 
Documents
for the purposes
 
of or in
 
connection with any
 
of the following:
 
business acquisitions of
 
any nature; increasing
 
working
capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing
any other indebtedness; making facilities available to new borrowers; any other variation or extension of
 
the purposes for
which
 
any
 
such
 
facility
 
or
 
amount
 
might
 
be
 
made
 
available
 
from
 
time
 
to
 
time;
 
and
 
any
 
fees,
 
costs
 
and/or
 
expenses
associated with any of the foregoing.
19.7
Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to
proceed
 
against
 
or
 
enforce
 
any
 
other
 
rights
 
or
 
security
 
or
 
claim
 
payment
 
from
 
any
 
person
 
before
 
claiming
 
from
 
that
Guarantor under this Clause
.
 
This waiver applies irrespective
 
of any law or any
 
provision of a Finance
 
Document to
the contrary.
19.8
Appropriations
19.8.1
Until
 
all
 
amounts
 
which
 
may
 
be
 
or
 
become
 
payable
 
by
 
the
 
Obligors
 
under
 
or
 
in
 
connection
 
with
 
the
 
Finance
Documents have been irrevocably paid in full, each Finance Party (or
 
any trustee or agent on its behalf) may:
(a)
refrain from applying or
 
enforcing any other
 
moneys, security or
 
rights held or
 
received by that
 
Finance Party
(or any
 
agent or
 
other person
 
on its
 
behalf) in
 
respect of
 
those amounts,
 
or apply
 
and enforce
 
the same
 
in
such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor
 
shall be
entitled to the benefit of the same; and
(b)
hold in an interest-bearing suspense account any moneys received
 
from any Guarantor or on account of any
Guarantor's liability under this Clause
19.9
Deferral of Guarantors' rights
19.9.1
Until
 
all
 
amounts
 
which
 
may
 
be
 
or
 
become
 
payable
 
by
 
the
 
Obligors
 
under
 
or
 
in
 
connection
 
with
 
the
 
Finance
Documents have
 
been irrevocably
 
paid in
 
full and
 
unless the
 
Facility Agent
 
otherwise directs,
 
no Guarantor
 
will
exercise
 
any
 
rights
 
which
 
it
 
may
 
have
 
by
 
reason
 
of
 
performance
 
by
 
it
 
of
 
its
 
obligations
 
under
 
the
 
Finance
Documents or by reason of any amount being payable, or liability arising, under
 
this Clause
(a)
to be indemnified by an Obligor;
(b)
to claim
 
any contribution
 
from any
 
other guarantor
 
of or provider
 
of security
 
for any
 
Obligor's obligations
under the Finance Documents;
(c)
to take the benefit (in whole or in part and whether by way of
 
subrogation, cession of action or otherwise) of
any rights
 
of the Finance
 
Parties under
 
the Finance
 
Documents or of
 
any other
 
guarantee or
 
security taken
pursuant to, or in connection with, the Finance Documents by any Finance
 
Party;
(d)
to bring legal or other proceedings for an order requiring any Obligor
 
to make any payment, or perform any
obligation,
 
in
 
respect
 
of
 
which
 
any
 
Guarantor
 
has
 
given
 
a
 
guarantee,
 
undertaking
 
or
 
indemnity
 
under
Clause
 
(
Guarantee and indemnity
);
45
(e)
to exercise any right of set-off against any Obligor; and/or
(f)
to claim,
 
rank, prove
 
or vote
 
as a
 
creditor or
 
shareholder of
 
any Obligor
 
in competition
 
with any
 
Finance
Party.
19.9.2
If
 
a
 
Guarantor
 
receives
 
any
 
benefit,
 
payment
 
or
 
distribution
 
in
 
relation
 
to
 
such
 
rights
 
it shall
 
hold
 
that
 
benefit,
payment
 
or
 
distribution
 
to
 
the extent
 
necessary
 
to
 
enable
 
all
 
amounts
 
which
 
may
 
be
 
or
 
become
 
payable
 
to
 
the
Finance Parties by the Obligors under or
 
in connection with the Finance Documents to
 
be repaid in full on trust
 
for,
or otherwise for the benefit of,
 
the Finance Parties and shall promptly
 
pay or transfer the same to
 
the Facility Agent
or as the Facility Agent may direct for application in accordance with Clause
 
(
.
19.10
Additional security
This guarantee is in addition to and is not in any
 
way prejudiced by any other guarantee or security now
 
or subsequently
held by any Finance Party.
46
SECTION 8
REPRESENTATIONS,
 
UNDERTAKINGS
 
AND EVENTS OF DEFAULT
20.
REPRESENTATIONS
Each Obligor (other than K2020 and K2021) makes the representations and warranties set out in this Clause
 
to each Finance
Party.
 
A reference
 
in this
 
Clause to
 
"it" or
 
"its" includes,
 
unless the
 
context
 
otherwise
 
requires,
 
each Obligor.
 
The Finance
Parties
 
enter
 
into
 
the
 
Finance
 
Documents
 
to
 
which
 
they
 
are
 
party
 
on
 
the
 
strength
 
of
 
and
 
relying
 
on
 
the
 
representations
 
and
warranties set
 
out in
 
this Clause
, each
 
of which
 
is a
 
separate representation
 
and warranty,
 
given without
 
prejudice to
 
any
other representation or warranty and is deemed to be a material representation or warranty (as applicable) inducing
 
the Finance
Parties to enter into the Finance Documents.
20.1
Status
20.1.1
It is a limited liability corporation, duly incorporated and validly existing under the law
 
of its Original Jurisdiction.
20.1.2
Each of its Subsidiaries is a limited liability
 
corporation, duly incorporated and validly existing under the law of its
jurisdiction of incorporation.
20.1.3
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
20.2
Binding obligations
20.2.1
The obligations
 
expressed to
 
be assumed
 
by it
 
in each
 
Finance Document
 
to which
 
it is
 
a party
 
are legal,
 
valid,
binding and enforceable obligations.
20.2.2
Without limiting the generality of Clause
 
above, each Transaction Security Document to which
 
it is a party
creates the
 
Security which
 
that Transaction
 
Security Document
 
purports to
 
create and
 
that Security
 
is valid
 
and
effective.
20.3
Non-conflict with other obligations
The entry into and
 
performance by it of,
 
and the transactions contemplated
 
by, the
 
Finance Documents and
 
the granting
of the Transaction Security do not and will not conflict
 
with:
20.3.1
any law or regulation applicable to it;
20.3.2
the constitutional documents of any member of the Group; or
20.3.3
any agreement or
 
instrument binding upon
 
it or
 
any member of
 
the Group or
 
any of
 
its or any
 
member of the
 
Group's
assets or constitute a default or termination event (however described) under any
 
such agreement or instrument.
20.4
Power and authority
20.4.1
It has
 
the power
 
to enter
 
into, perform
 
and deliver,
 
and has
 
taken all
 
necessary action
 
to authorise
 
its entry
 
into,
performance
 
and
 
delivery
 
of,
 
the
 
Finance
 
Documents
 
to
 
which
 
it
 
is
 
or
 
will
 
be
 
a
 
party
 
and
 
the
 
transactions
contemplated by those Finance Documents.
20.4.2
No limit on
 
its powers
 
will be exceeded
 
as a result
 
of the borrowing,
 
grant of
 
security or giving
 
of guarantees
 
or
indemnities contemplated by the Finance Documents to which it is a party.
20.5
Validity
 
and admissibility in evidence
20.5.1
All Authorisations required or desirable:
(a)
to enable it
 
lawfully to
 
enter into,
 
exercise its
 
rights and
 
comply with
 
its obligations in
 
the Finance
 
Documents
to which it is a party; and
(b)
to make the Finance Documents to which it is a party admissible in evidence in its Relevant
 
Jurisdictions,
47
have been obtained or effected and are in full force and effect.
20.5.2
All Authorisations necessary for the conduct of the
 
business, trade and ordinary activities of members
 
of the Group
have been obtained or effected and are in full force and effect.
20.6
Acquisition Documents
 
20.6.1
The Acquisition Documents contain all the terms of the Acquisition.
20.6.2
Each Acquisition Document to which it is a party is in full force and effect.
20.6.3
It is not in unremedied breach of any of its obligations under any Acquisition Document.
20.6.4
There
 
have
 
been
 
no
 
amendments
 
to
 
any
 
Acquisition
 
Document
 
from
 
the
 
form
 
provided
 
to
 
the
 
Facility
 
Agent
pursuant to Clause
 
(
), other than any
 
amendment permitted pursuant to
 
Clause
(
).
20.7
Governing law and enforcement
20.7.1
The
 
choice
 
of
 
governing
 
law
 
of
 
the
 
Finance
 
Documents
 
will
 
be
 
recognised
 
and
 
enforced
 
in
 
its
 
Relevant
Jurisdictions.
20.7.2
Any judgment obtained in relation
 
to a Finance Document in the
 
jurisdiction of the governing law
 
of that Finance
Document will be recognised and enforced in its Relevant Jurisdictions.
20.8
Insolvency and Financial Distress
20.8.1
No:
(a)
corporate
 
action,
 
legal
 
proceeding
 
or
 
other
 
procedure
 
or
 
step
 
described
 
in
 
Clause
 
(Insolvency
proceedings); or
(b)
creditors' process described in Clause
 
(Creditors' process),
has been
 
taken or,
 
to the
 
knowledge of
 
the Borrower,
 
threatened in
 
relation to
 
any Obligor,
 
Security Provider
 
or
member
 
of
 
the
 
Group
 
other
 
than
 
Cash
 
Connect
 
Collateral
 
Rentals
 
Holding
 
Trust
 
(Masters
 
reference
 
number
IT3206/2011)
 
and
 
Cash
 
Connect
 
Management
 
Solutions
 
Employee
 
Incentive
 
Trust
 
(Masters
 
reference
 
number
IT2102/2021);
 
and
 
none
 
of
 
the
 
circumstances
 
described
 
in
 
Clause
 
(Insolvency)
 
applies
 
to
 
any
 
Obligor,
Security Provider or member of the Group.
20.8.2
Neither it
 
nor any other
 
Obligor, Security Provider or
 
any member of
 
the Group
 
is Financially Distressed
 
(as defined
in the Companies Act, 2008).
 
20.9
No filing or stamp taxes
Under the laws of
 
its Relevant Jurisdiction
 
it is not necessary
 
that the Finance
 
Documents be filed,
 
recorded or enrolled
with any
 
court or other
 
authority in
 
that jurisdiction
 
or that any
 
stamp, registration,
 
notarial or
 
similar Taxes
 
or fees
 
be
paid on or in relation to the Finance Documents or the transactions contemplate
 
d
 
by the Finance Documents.
 
20.10
Deduction of Tax
It is
 
not required
 
to make
 
any deduction
 
for or
 
on account
 
of Tax
 
from any
 
payment
 
it may
 
make under
 
any Finance
Document.
20.11
No default
20.11.1
No
 
Event
 
of
 
Default
 
and,
 
on
 
the
 
date
 
of
 
this
 
Agreement
 
and
 
the
 
Closing
 
Date,
 
no
 
Default
 
is
 
continuing
 
or
 
is
reasonably likely
 
to result
 
from the
 
making of
 
any Loan
 
or the entry
 
into, the performance
 
of, or
 
any transaction
contemplated by,
 
any Finance Document.
48
20.11.2
No other event
 
or circumstance is
 
outstanding which
 
constitutes (or,
 
with the expiry
 
of a grace
 
period, the giving
of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default
or termination event (however described) under any other agreement or instrument which is binding on it or
 
any of
its Subsidiaries
 
or to
 
which its
 
(or any
 
of its
 
Subsidiaries') assets
 
are subject
 
which has
 
or is
 
reasonably likely
 
to
have a Material Adverse Effect.
20.12
Base Case Model
The Base Case Model has been prepared on the basis
 
of, amongst other things, historical financial statements
 
which were
prepared
 
in
 
accordance
 
with
 
IFRS
 
for
 
SMEs
 
and
 
as
 
applied
 
to
 
the
 
Original
 
Financial
 
Statements,
 
and
 
the
 
financial
projections contained
 
in the
 
Base Case Model
 
have been
 
prepared on the
 
basis of
 
recent historical
 
information, are
 
fair
and based on reasonable assumptions and have been approved by
 
the board of directors of the Borrower.
20.13
Financial Statements
20.13.1
The Original Financial Statements were prepared in accordance with IFRS for SMEs
 
consistently applied.
20.13.2
The audited Original Financial Statements fairly present its financial
 
condition and its results of operations during
the relevant financial year.
20.13.3
There has been
 
no material adverse
 
change in its assets,
 
business or financial
 
condition (or the assets,
 
business or
consolidated financial condition of the Group), since the date of the Original
 
Financial Statements.
20.13.4
Its most recent financial statements delivered pursuant to Clause
 
(Financial statements):
(a)
have been
 
prepared in
 
accordance with
 
IFRS or
 
IFRS for
 
SMEs (as
 
applicable) as
 
applied to
 
the Original
Financial Statements; and
(b)
fairly present its
 
consolidated financial condition
 
as at the end
 
of, and its consolidated
 
results of operations
for, the period to which they relate.
20.13.5
The budgets and forecasts supplied under this Agreement were arrived at after careful consideration and
 
have been
prepared in
 
good faith
 
on the
 
basis of
 
recent historical
 
information and
 
on the
 
basis of
 
assumptions which
 
were
reasonable as at the date they were prepared and supplied.
20.14
No proceedings
Except as expressly set out in
 
(
):
20.14.1
no litigation,
 
arbitration or
 
administrative proceedings
 
or investigations
 
of, or
 
before, any
 
court, arbitral
 
body or
agency
 
have
 
(to
 
the
 
best
 
of
 
its
 
knowledge
 
and
 
belief,
 
having
 
made
 
due
 
and
 
careful
 
enquiry)
 
been
 
started
 
or
threatened against it or any of its Subsidiaries;
20.14.2
no judgment or order of
 
a court, arbitral body or agency
 
has (to the best of its knowledge
 
and belief, having made
due and careful enquiry) been made against it or any of its Subsidiaries which
 
remains outstanding.
20.15
No breach of laws
20.15.1
It has
 
not (and
 
no member
 
of the
 
Group has)
 
breached any
 
law or
 
regulation which
 
breach has
 
or is
 
reasonably
likely to have a Material Adverse Effect.
20.15.2
No labour disputes
 
are current or,
 
to the best
 
of its knowledge
 
and belief (having
 
made due and
 
careful enquiry),
threatened against any member
 
of the Group which
 
have or are
 
reasonably likely to have
 
a Material Adverse Effect.
20.16
Environmental laws
20.16.1
Each member
 
of the
 
Group is
 
in compliance
 
with Clause
) and
 
(to the
 
best of
 
its
knowledge and belief, having made due and careful
 
enquiry) no circumstances have occurred which would
 
prevent
such compliance in a manner or to an extent which has or is reasonably likely to
 
have a Material Adverse Effect.
49
20.16.2
No Environmental
 
Claim has been
 
commenced or
 
(to the best
 
of its
 
knowledge and
 
belief, having
 
made due
 
and
careful
 
enquiry) is
 
threatened
 
against any
 
member of
 
the Group
 
where that
 
claim has
 
or is
 
reasonably
 
likely,
 
if
determined against that member of the Group, to have a Material Adverse
 
Effect.
20.16.3
The cost to
 
the Group of
 
compliance with Environmental
 
Laws (including Environmental
 
Permits) is (to
 
the best
of its knowledge and belief, having made
 
due and careful enquiry) adequately provided for in
 
the Base Case Model
and
 
the
 
cost
 
of
 
compliance
 
with
 
the
 
recommendations
 
contained
 
in
 
the
 
Environmental
 
Report
 
is
 
adequately
provided for in the Base Case Model.
20.17
Taxation
20.17.1
It is not (and no
 
member of the Group
 
is) overdue in the filing of
 
any Tax returns
 
and it is not (and no
 
member of
the Group is) overdue in the payment of any amount in respect of Tax.
20.17.2
No claims or investigations are being, or are reasonably likely to be, made or conducted against it (or any member
of the Group) with respect to Taxes.
20.17.3
It is resident for Tax purposes
 
only in its Original Jurisdiction.
20.18
Anti-corruption law
Except as expressly set out in
 
(
), each member of the Group has conducted its
businesses in compliance with applicable anti-corruption laws and
 
has instituted and maintained policies and procedures
designed to promote and achieve compliance with such laws.
20.19
Security and Financial Indebtedness
Except as expressly set out in
 
(
):
20.19.1
no Security
 
or Quasi-Security
 
exists over
 
all or
 
any of
 
the present
 
or future
 
assets of
 
any member
 
of the
 
Group
other than the Permitted Security;
20.19.2
no
 
member
 
of
 
the
 
Group
 
has
 
any
 
Financial
 
Indebtedness
 
outstanding
 
other
 
than
 
the
 
Permitted
 
Financial
Indebtedness.
20.20
Ranking
The Transaction
 
Security has
 
or will
 
have first
 
ranking priority
 
and it
 
is not
 
subject to
 
any prior
 
ranking or
 
pari passu
ranking Security.
20.21
Sanctions
No Obligor is
 
(and no member
 
of the Group
 
is) party to
 
or participates in
 
any Sanctioned Transaction,
 
has contravened
any Sanctions or is targeted under any Sanctions.
 
20.22
Good title to assets
It and each of its Subsidiaries
 
has a good, valid and
 
marketable title to, or valid
 
leases or licences of, and all
 
appropriate
Authorisations to use, the assets necessary to carry on its business as presently conducted.
20.23
Legal and beneficial ownership
It and each of its Subsidiaries
 
is the sole legal and
 
beneficial owner of the respective assets
 
over which it purports to grant
Security.
20.24
Shares
20.24.1
The shares of any member of the
 
Group which are subject to the
 
Transaction Security are fully paid and not subject
to any option to purchase or similar rights which have not been waived.
 
50
20.24.2
The constitutional documents of companies whose
 
shares are subject to the Transaction
 
Security do not and could
not restrict or inhibit any transfer of those shares on creation or enforcement of
 
the Transaction Security.
 
20.24.3
There are no
 
agreements in force
 
which provide for
 
the issue or allotment
 
of, or grant any
 
person the right
 
to call
for the issue
 
or allotment of,
 
any share or loan
 
capital of any member
 
of the Group (including
 
any option or
 
right
of pre-emption or conversion) other than under the management incentive scheme approved by the Facility Agent.
20.25
Intellectual Property
It:
20.25.1
is the
 
sole legal
 
and beneficial
 
owner of or
 
has licensed to
 
it on
 
normal commercial terms
 
all the
 
Intellectual Property
which is material
 
in the context
 
of its business and
 
which is required by
 
it in order to
 
carry on its business
 
as it is
being conducted on the date of this Agreement and as contemplated in the Base Case Model;
20.25.2
does not, in carrying on its businesses, infringe any Intellectual Property of
 
any third party in any respect; and
20.25.3
has taken all formal
 
or procedural actions (including payment
 
of fees) required to
 
maintain any material Intellectual
Property owned by it.
20.26
Accounting Reference Date
The accounting reference date of each member of the Group is the Accounting
 
Reference Date.
20.27
No adverse consequences
20.27.1
It is not necessary under the laws of its Relevant Jurisdictions:
(a)
in order to enable any Finance Party to enforce its rights under any Finance Document; or
(b)
by reason
 
of the
 
execution of any
 
Finance Document
 
or the performance
 
by it
 
of its obligations
 
under any
Finance Document,
that any Finance Party should be
 
licensed, qualified or otherwise entitled to carry
 
on business in any of
 
its Relevant
Jurisdictions.
20.27.2
No Finance Party is
 
or will be
 
deemed to be resident,
 
domiciled or carrying on
 
business in its
 
Relevant Jurisdictions
by reason only of the execution, performance and/or enforcement of
 
any Finance Document.
20.28
Times when representations
 
made
20.28.1
All
 
the
 
representations
 
and
 
warranties
 
in
 
this
 
Clause
 
are
 
made
 
by
 
each
 
of
 
the
 
Obligors
 
on
 
the
 
date
 
of
 
this
Agreement.
20.28.2
All the
 
representations
 
and
 
warranties
 
in this
 
Clause
 
are deemed
 
to be
 
made
 
by each
 
of the
 
Obligors
 
on the
Closing Date.
20.28.3
The Repeating Representations are deemed to be made by each Obligor:
(a)
on the date of the Utilisation Request;
(b)
on the Utilisation Date; and
(c)
on the first day of each Interest Period.
20.28.4
Each representation
 
and warranty in
 
this Clause
 
is deemed to
 
be made by
 
each Additional
 
Obligor on
 
the day
which it becomes (or it is proposed that it becomes) an Additional Obligor.
20.28.5
Each representation
 
or warranty deemed
 
to be made
 
after the date of
 
this Agreement shall
 
be deemed to
 
be made
by reference to the
 
facts and circumstances existing
 
at the date
 
the representation or warranty
 
is deemed to
 
be made.
51
20.29
K2020 and K2021
20.29.1
K2020
 
makes
 
the
 
representations
 
and
 
warranties
 
set
 
out
 
in
 
clause
 
18
 
to
 
the
 
K2020
 
Facility
 
Agreement
mutatis
mutandis
 
in relation to this Agreement to each Finance Party.
 
20.29.2
K2021
 
makes
 
the
 
representations
 
and
 
warranties
 
set
 
out
 
in
 
clause
 
18
 
to
 
the
 
K2020
 
Facility
 
Agreement
 
as
 
if
 
a
reference to K2020 were a reference to K2021 and
mutatis mutandis
 
in relation to this Agreement to each Finance
Party.
20.29.3
The Finance Parties enter into the Finance Documents to which they are party on the strength of and relying on
 
the
representations
 
and
 
warranties
 
made
 
pursuant
 
to
 
Clauses
 
and
,
 
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.
20.29.4
The expiry or termination of the K2020 Facility Agreement will not affect
 
the provisions of this Clause
 
will
continue in force or which of necessity must continue to apply after that expiry or
 
termination.
21.
INFORMATION UNDERTAKINGS
21.1
The
 
undertakings
 
in
 
this
 
Clause
 
remain
 
in
 
force
 
from
 
the
 
date
 
of
 
this
 
Agreement
 
for
 
so
 
long
 
as
 
any
 
amount
 
is
outstanding under the Finance Documents or any Commitment is in force.
21.2
In this Clause
21.2.1
Annual Financial Statements means the financial statements for a Financial Year
 
delivered pursuant Clause
(
21.2.2
Quarterly Management Accounts
 
means the management accounts
 
delivered pursuant to Clause
 
(Financial
statements).
21.3
Financial statements
The Borrower shall supply to the Facility Agent in sufficient
 
copies for all the Lenders:
21.3.1
as soon as they are available, but in any event within 180 days after the end of each of its Financial Years
 
(or such
other period agreed to by the Facility Agent), its audited consolidated financial
 
statements for that Financial Year;
21.3.2
as soon as they
 
are available, but in
 
any event within 75
 
days after the end
 
of each quarter of
 
each of its financial
years (other than those for the fourth quarter of any financial year which shall be provided within 90 days after the
end
 
of
 
that
 
quarter),
 
its
 
quarterly
 
management
 
accounts
 
(which
 
shall
 
include,
 
without
 
limitation,
 
a
 
cash
 
flow
statement, income statement and
 
balance sheet on a year-to-year
 
basis) for that quarter on a consolidated
 
basis for
that quarter as well
 
as a cash flow
 
statement, income statement
 
and balance sheet on
 
a year-to-year basis
 
for each
other Obligor.
21.4
Provision and contents of Compliance Certificate
21.4.1
The Borrower
 
shall supply
 
a Compliance
 
Certificate to
 
the Facility
 
Agent with
 
each set
 
of its
 
Annual Financial
Statements and each set of management accounts for a quarter.
21.4.2
The Compliance Certificate
 
shall, amongst
 
other things, set
 
out (in
 
reasonable detail) computations
 
as to
 
compliance
with Clause
 
(Financial Covenants).
21.4.3
Each Compliance Certificate shall be signed by the financial director
 
and one other director of the Borrower.
21.5
Requirements as to financial statements
21.5.1
The Borrower
 
shall procure
 
that each
 
set of
 
Annual
 
Financial Statements
 
and
 
Quarterly
 
Management
 
Accounts
includes a balance sheet and income statement.
 
In addition the Borrower shall procure that:
52
(a)
each set of its Annual Financial Statements shall be audited by the Auditors;
(b)
each set of Quarterly Management Accounts is accompanied by a statement
 
by the directors of the Borrower
highlighting
 
any
 
material
 
developments
 
or
 
proposals
 
affecting
 
the
 
cashflow
 
of
 
the
 
Group,
 
including
Consolidated EBITDA, revenue, net income and capital expenditure.
21.5.2
Each set of financial statements delivered pursuant
 
to Clause
 
(Financial statements) (other than the Quarterly
Management Accounts):
(a)
shall be certified by
 
the finance director and one
 
other director of the relevant
 
company as fairly presenting
its financial condition and operations as at the date as at which those financial statements
 
were drawn up;
(b)
in the
 
case of
 
consolidated financial
 
statements of
 
the Group,
 
shall be
 
accompanied by
 
a statement
 
by the
directors
 
of
 
the
 
Borrower
 
comparing
 
actual performance
 
for
 
the
 
period
 
to
 
which
 
the financial
 
statements
relate to the actual performance
 
for the corresponding period
 
in the preceding Financial
 
Year
 
of the Group;
and
shall be prepared using IFRS or IFRS for SMEs
 
(as applicable), accounting practices and financial reference
periods
 
consistent
 
with
 
those
 
applied
 
in
 
the
 
preparation
 
of
 
the
 
Original
 
Financial
 
Statements,
 
unless,
 
in
relation
 
to
 
any
 
set of
 
financial
 
statements,
 
the
 
Borrower
 
notifies the
 
Facility
 
Agent
 
that
 
there
 
has
 
been
 
a
change in IFRS or IFRS for SMEs (as applicable) or the accounting practices and the Auditors deliver to the
Facility Agent:
(i)
a description of any change necessary for those financial statements
 
to reflect IFRS or IFRS for SMEs
(as applicable)
 
or accounting
 
practices upon
 
which the
 
Base Case
 
Model
 
or,
 
the Original
 
Financial
Statements were prepared; and
(ii)
sufficient information, in form and substance as may
 
be reasonably required by the Facility Agent, to
enable the Lenders to determine whether Clause
 
(Financial covenants) has been complied with and
to make an accurate comparison between the financial position indicated in those financial statements
and the Base Case Model or the Original Financial Statements.
21.5.3
Any reference
 
in this
 
Agreement to
 
any financial
 
statements shall
 
be construed
 
as a
 
reference to
 
those financial
statements as
 
adjusted to
 
reflect the
 
basis upon
 
which the
 
Base Case
 
Model or,
 
as the
 
case may
 
be, the
 
Original
Financial Statements were prepared.
21.5.4
If the Facility Agent wishes to
 
discuss the financial position of
 
any member of the Group with the
 
auditors of that
member of the Group,
 
the Facility Agent
 
may notify the Borrower, stating
 
the questions or issues
 
which the Facility
Agent
 
wishes
 
to
 
discuss
 
with
 
those
 
auditors.
 
In
 
this
 
event,
 
the
 
Borrower
 
must
 
ensure
 
that
 
those
 
auditors
 
are
authorised (at the expense of the Borrower):
(a)
to discuss the financial position of the
 
relevant member of the Group with
 
the Facility Agent on request from
the Facility Agent; and
(b)
to
 
disclose
 
to
 
the
 
Facility
 
Agent
 
for
 
the
 
Finance
 
Parties
 
any
 
information
 
which
 
the
 
Facility
 
Agent
 
may
reasonably request.
21.6
Presentations
Once
 
in
 
every
 
Financial
 
Year,
 
or
 
more
 
frequently
 
if
 
requested
 
to
 
do
 
so
 
by
 
the
 
Facility
 
Agent
 
if
 
the
 
Facility
 
Agent
reasonably suspects a
 
Default is continuing
 
or may
 
have occurred or
 
may occur, at
 
least one
 
director and the
 
chief financial
officer
 
of
 
the
 
Borrower
 
must
 
give
 
a
 
presentation
 
to
 
the
 
Finance
 
Parties
 
about
 
the
 
on-going
 
business
 
and
 
financial
performance of the Group.
21.7
Board packs
The Borrower shall, on request by the Facility Agent, deliver to the Facility Agent, in sufficient copies for all Lenders, at
the same time they
 
are distributed to
 
the relevant board
 
of directors, copies
 
of all board
 
packs submitted to
 
the board of
directors of an Obligor.
53
21.8
Year
 
-end
No
 
Obligor
 
shall
 
change
 
its
 
Accounting
 
Reference
 
Date
 
other
 
than
 
to
 
the
 
Accounting
 
Reference
 
Date
 
set
 
out
 
in
Clause
21.9
Information: miscellaneous
21.9.1
The Borrower
 
shall supply
 
to the
 
Facility Agent
 
(in sufficient
 
copies for
 
all the Lenders,
 
if the
 
Facility Agent
 
so
requests):
(a)
copies of all documents dispatched by an Obligor to:
(i)
its creditors (or any class of them) generally; or
(ii)
its shareholders (or any class of them) generally pursuant to any applicable law or regulation,
in each case, at the same time as they are dispatched;
(b)
promptly
 
upon
 
becoming
 
aware
 
of
 
them,
 
details
 
and
 
copies
 
of
 
any
 
changes
 
proposed
 
to
 
or
 
made
 
to
 
its
constitutional documents
 
or the constitutional
 
documents of it
 
or any
 
other Obligor (including
 
the filing of
any Memorandum
 
of Incorporation
 
under the
 
Companies Act),
 
where such
 
changes do,
 
or are
 
reasonably
likely to, adversely affect the interests of the Finance Parties;
(c)
promptly upon becoming aware of
 
them, the details of any
 
litigation, arbitration, administrative proceedings,
liquidation
 
applications,
 
winding
 
up
 
applications
 
or
 
business
 
rescue
 
applications
 
which
 
are
 
current,
threatened
 
or
 
pending
 
against
 
it
 
or
 
any
 
other
 
member
 
of
 
the
 
Group,
 
and,
 
in
 
the
 
case
 
of
 
any
 
litigation,
arbitration or administrative proceedings, involve liability
 
in an aggregate amount which (together with any
other liability in respect of litigation, arbitration or administrative proceedings) is in excess of R10,000,000;
and
(d)
promptly,
 
such further
 
information
 
regarding the
 
financial condition,
 
business and
 
operations
 
of it
 
or any
other member of the Group as any Finance Party (through the Facility Agent) may
 
reasonably request.
21.10
Notification of default
21.10.1
Each Obligor shall
 
notify the Facility
 
Agent of any
 
Default (and the
 
steps, if any, being
 
taken to remedy
 
it) promptly
upon becoming aware of its occurrence.
21.10.2
Promptly upon a request by the Facility Agent, the Borrower shall supply to the Facility Agent a certificate signed
by two
 
of its
 
directors or
 
senior officers
 
on its
 
behalf certifying
 
that no
 
Default is
 
continuing
 
(or if
 
a Default
 
is
continuing, specifying the Default and the steps, if any,
 
being taken to remedy it).
21.11
"Know your customer" checks
21.11.1
If:
(a)
the introduction
 
of or
 
any change
 
in (or
 
in the
 
interpretation, administration
 
or application
 
of) any
 
law or
regulation made after the date of this Agreement;
(b)
any change in the status of an Obligor or the
 
composition of the shareholders of an Obligor after the date
 
of
this Agreement; or
(c)
a proposed transfer by a Lender of any of its rights and/or obligations under this Agreement to a
 
party that is
not a Lender prior to such transfer,
obliges the
 
Facility Agent
 
or any
 
Lender (or,
 
in the case
 
of paragraph
 
above, any
 
prospective new
 
Lender) to
comply
 
with
 
"know
 
your
 
customer"
 
or
 
similar
 
identification
 
procedures
 
(whether
 
in
 
terms
 
of
 
the
 
Financial
Intelligence
 
Centre
 
Act,
 
2001
 
or
 
otherwise)
 
in
 
circumstances
 
where
 
the
 
necessary
 
information
 
is
 
not
 
already
available to it, each Obligor shall promptly upon the request of
 
the Facility Agent or any Lender supply, or procure
the supply
 
of, such
 
documentation and
 
other evidence
 
as is reasonably
 
requested by
 
the Facility Agent
 
(for itself
54
or on behalf of
 
any Lender) or any
 
Lender (for itself or,
 
in the case of the
 
event described in paragraph
 
above,
on behalf of any
 
prospective new Lender) in
 
order for the Facility
 
Agent, such Lender
 
or, in the
 
case of the event
described in paragraph
 
above, any prospective new Lender to carry out and be satisfied it has complied with all
necessary "know your customer"
 
or other similar checks
 
under all applicable laws and
 
regulations pursuant to
 
the
transactions contemplated in the Finance Documents.
21.11.2
Each
 
Lender
 
shall
 
promptly
 
upon
 
the
 
request
 
of
 
the
 
Facility
 
Agent
 
supply,
 
or
 
procure
 
the
 
supply
 
of,
 
such
documentation
 
and
 
other
 
evidence
 
as
 
is
 
reasonably
 
requested
 
by
 
the
 
Facility
 
Agent
 
(for
 
itself)
 
in
 
order
 
for
 
the
Facility Agent to
 
carry out and
 
be satisfied it
 
has complied with
 
all necessary "know
 
your customer" or
 
other similar
checks
 
under
 
all
 
applicable
 
laws
 
and
 
regulations
 
pursuant
 
to
 
the
 
transactions
 
contemplated
 
in
 
the
 
Finance
Documents.
21.11.3
The Borrower shall, by not less
 
than 10 Business Days' prior
 
written notice to the Facility Agent,
 
notify the Facility
Agent (which shall promptly notify
 
the Lenders) of its intention to request
 
that one of its Subsidiaries becomes an
Additional Obligor pursuant to Clause
 
(
).
21.11.4
Following the giving
 
of any notice pursuant
 
to Clause
 
above, if the
 
accession of such
 
Additional Obligor
obliges the Facility Agent or
 
any Lender to comply with
 
"know your customer" or similar
 
identification procedures
in circumstances where the
 
necessary information is not
 
already available to it, the
 
Borrower shall promptly upon
the request
 
of the
 
Facility Agent
 
or any
 
Lender supply,
 
or procure
 
the supply
 
of, such
 
documentation
 
and other
evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for
itself or on behalf of
 
any prospective new Lender) in order
 
for the Facility Agent or such
 
Lender or any prospective
new Lender to carry out and be satisfied it has complied
 
with all necessary "know your customer" or other
 
similar
checks under all applicable laws and regulations pursuant to the accession of such Subsidiary to this Agreement as
an Additional Obligor.
22.
FINANCIAL COVENANTS
22.1
Financial Definitions
In this Agreement:
22.1.1
Borrowings
 
means, at any time, the
 
aggregate outstanding principal, capital or
 
nominal amount (and any fixed or
minimum premium
 
payable on
 
prepayment or
 
redemption) of
 
any indebtedness
 
of the
 
members of
 
the Covenant
Group for or in respect of:
(a)
moneys borrowed, credit provider and debit balances at banks or other financial institutions;
(b)
any acceptances under any acceptance credit or bill discount facility (or
 
dematerialised equivalent);
(c)
any note purchase facility or the issue of bonds, notes, debentures, loan
 
stock or any similar instrument;
(d)
any Finance Lease;
(e)
receivables sold or discounted (other than any receivables to the extent they are sold on a
 
non-recourse basis
and meet any requirements for de-recognition under IFRS or IFRS for SMEs (as applicable));
(f)
any counter-indemnity obligation in respect of a guarantee,
 
bond, standby or documentary letter of credit or
any other instrument issued by a bank or financial institution in
 
respect of an underlying liability of an entity
which is not a member of the
 
Covenant Group which liability would
 
fall within one of the other paragraphs
of this definition;
(g)
any amount raised by the issue of shares which are redeemable (other
 
than at the option of the issuer) or are
otherwise classified as borrowings under IFRS or IFRS for SMEs (as applicable);
(h)
any amount of any liability under an advance or deferred purchase agreement
 
if:
(i)
one of
 
the primary
 
reasons behind
 
the entry
 
into the
 
agreement is
 
to raise
 
finance or
 
to finance
 
the
acquisition or construction of the asset or service in question; or
 
55
(ii)
the agreement is
 
in respect of
 
the supply of
 
assets or services
 
and payment is
 
due more than
 
90 days
after the date of supply;
(i)
any amount raised under
 
any other transaction (including
 
any forward sale or purchase
 
agreement, sale and
sale
 
back
 
or
 
sale
 
and
 
leaseback
 
agreement)
 
having
 
the
 
commercial
 
effect
 
of
 
a
 
borrowing
 
or
 
otherwise
classified as borrowings under IFRS or IFRS for SMEs (as applicable); and
(j)
(without double counting) the amount of any liability in respect of any guarantee or indemnity for any
 
of the
items referred to in paragraphs
 
to
 
above,
but shall exclude any debt which has been subordinated on terms acceptable to
 
the Facility Agent.
22.1.2
Capital
 
Expenditure
 
means any
 
expenditure or
 
obligation
 
in respect
 
of expenditure
 
which, in
 
accordance
 
with
IFRS or IFRS for SMEs (as applicable), is treated as capital expenditure.
22.1.3
Cashflow
 
means, in respect
 
of any Measurement Period,
 
Consolidated EBITDA for that
 
Measurement Period after:
(a)
adding the amount
 
of any decrease (and
 
deducting the amount
 
of any increase)
 
in Working
 
Capital for that
Measurement Period
 
(save for
 
any decrease
 
or increase
 
in relation
 
to activities
 
where the
 
Covenant Group
acted as agent);
(b)
adding
 
the
 
amount
 
of
 
any
 
cash
 
receipts
 
(and
 
deducting
 
the
 
amount
 
of
 
any
 
cash
 
payments)
 
during
 
that
Measurement
 
Period
 
in
 
respect
 
of
 
any
 
Exceptional
 
Items
 
not
 
already
 
taken
 
account
 
of
 
in
 
calculating
Consolidated
 
EBITDA
 
for
 
any
 
Measurement
 
Period
 
(other
 
than,
 
in
 
the
 
case
 
of
 
cash
 
receipts,
 
Relevant
Proceeds);
(c)
adding
 
the amount
 
of any
 
cash receipts
 
during
 
that Measurement
 
Period
 
in respect
 
of any
 
Tax
 
rebates or
credits
 
and
 
deducting
 
the
 
amount
 
actually
 
paid
 
or
 
due
 
and
 
payable
 
in
 
respect
 
of
 
Taxes
 
during
 
that
Measurement Period by any member of the Covenant Group;
(d)
adding (to
 
the extent
 
not already
 
taken into
 
account in
 
determining Consolidated
 
EBITDA) the
 
amount of
any
 
dividends
 
or
 
other
 
profit
 
distributions
 
received
 
in
 
cash
 
by
 
any
 
member
 
of
 
the
 
Group
 
during
 
that
Measurement Period from any entity which is itself not a member of the Group and deducting
 
(to the extent
not already deducted in
 
determining Consolidated EBITDA) the
 
amount of any dividends
 
paid in cash
 
during
the Measurement Period to minority shareholders in members of the
 
Group;
(e)
adding the
 
amount of
 
any increase in
 
provisions, other
 
non-cash debits
 
and other non
 
-cash charges
 
(which
are not Current
 
Assets or Current
 
Liabilities) and deducting
 
the amount of
 
any non-cash credits
 
(which are
not
 
Current
 
Assets
 
or
 
Current
 
Liabilities)
 
in
 
each
 
case
 
to
 
the
 
extent
 
taken
 
into
 
account
 
in
 
establishing
Consolidated EBITDA;
(f)
deducting the amount of any Capital Expenditure actually made (or due to be made) in cash
 
for the purposes
of maintenance during that
 
Measurement Period by
 
any member of
 
the Covenant Group
 
except (in each
 
case)
to the extent funded from:
(i)
the proceeds of any Disposal or insurance claims permitted to be retained
 
for this purpose; or
(ii)
New Shareholder Injections;
(g)
deducting the
 
amount of
 
any expansionary
 
Capital Expenditure
 
actually made
 
(or due
 
to be
 
made) in
 
cash
during that Measurement
 
Period by any
 
member of the
 
Covenant Group except
 
(in each case) to
 
the extent
it:
(i)
has been approved by the board of the relevant member of the Group;
(ii)
is disclosed
 
to the
 
Facility Agent
 
in a
 
schedule of
 
projected Capital
 
Expenditure delivered
 
to it
 
with
the Compliance Certificate for the next six months;
(h)
deducting the amount of any trade payable in relation to any Excess Inventory;
56
(i)
adding the amount of any trade payable in relation to any Excess Inventory as calculated at the beginning of
the Measurement Period,
and so that no amount shall be added (or deducted) more than once.
22.1.4
Consolidated EBITDA
 
means, in respect of any Measurement Period, the consolidated EBITDA of the Covenant
Group.
22.1.5
Covenant Group
 
means each member of the Group other than K2021 and K2020 Limited.
22.1.6
Current Assets
 
means the aggregate
 
(on a consolidated
 
basis) of all inventory,
 
work in progress,
 
trade and other
receivables of each
 
member of
 
the Covenant Group
 
including prepayments in
 
relation to operating
 
items and sundry
debtors (but excluding Cash and Cash Equivalent Investments) expected to be realised within twelve months
 
from
the date of computation but
excluding
 
amounts in respect of:
(a)
receivables in relation to Tax;
(b)
Exceptional Items and other non-operating items;
(c)
insurance claims; and
(d)
any interest owing to any member of the Covenant Group.
22.1.7
Current
 
Liabilities
 
means
 
the
 
aggregate
 
(on
 
a
 
consolidated
 
basis)
 
of
 
all
 
liabilities
 
(including
 
trade
 
creditors,
accruals and provisions) of each member of the Covenant Group expected to
 
be settled within 12 months from the
date of computation but
excluding
 
amounts in respect of:
(a)
liabilities for Borrowings and Finance Charges;
(b)
liabilities for Tax;
(c)
Exceptional Items and other non-operating items approved by the
 
Facility Agent; and
(d)
insurance claims; and.
(e)
liabilities in relation to dividends declared but not paid by a member
 
of the Covenant Group.
22.1.8
Debt Service
 
means, in respect of any Measurement Period, the aggregate of:
(a)
Net Finance Charges for that Measurement Period;
(b)
all
 
scheduled
 
and
 
mandatory
 
repayments
 
of
 
Borrowings
 
falling
 
due
 
during
 
that
 
Measurement
 
Period
 
but
excluding:
(i)
any
 
amounts
 
falling
 
due
 
under
 
any
 
GBF
 
Documents
 
and
 
which
 
were
 
available
 
for
 
simultaneous
redrawing according to the terms of that facility; and
(ii)
for
 
the avoidance
 
of doubt,
 
any mandatory
 
prepayment
 
made pursuant
 
to Clause
 
(
); and
(c)
the amount of the capital element of any payments in respect of that Measurement Period payable under any
Finance Lease entered into by any member of the Covenant Group,
and so that no amount shall be included more than once.
22.1.9
Debt Service Cover
 
means the ratio of Cashflow to Debt Service in respect of any Measurement Period.
22.1.10
EBITDA
, in
 
relation to
 
any Measurement
 
Period and
 
to a
 
member of
 
the Covenant
 
Group, means
 
the operating
income of that
 
member of the Covenant
 
Group for that
 
period, without taking
 
any account of
 
the following items
(without double counting):
57
(a)
any interest
 
accrued as
 
an obligation
 
of, or
 
owed to,
 
any member
 
of the
 
Covenant Group,
 
whether or
 
not
paid, deferred or capitalised during that period;
(b)
any amount of
 
Tax on
 
profits, gains or income
 
paid or payable by
 
that member of the
 
Covenant Group and
any amount
 
of any
 
rebate or
 
credit in
 
respect of
 
Tax
 
on profits,
 
gains or
 
income received
 
or receivable
 
by
that member of the Covenant Group;
(c)
any depreciation or amortisation whatsoever, and any charge for impairment or any reversal in
 
that period of
any previous impairment charge;
(d)
any loss or
 
gain (as applicable)
 
against book
 
value incurred by
 
that member of
 
the Covenant Group
 
on the
Disposal of any asset (other than trading stock or motor vehicles) during that period and any gain
 
arising on
any revaluation of an asset during that period;
(e)
any
 
unrealised
 
gains
 
or
 
losses
 
due
 
to
 
exchange
 
rate
 
movements
 
which
 
are
 
reported
 
through
 
the
 
income
statement;
(f)
any
 
unrealised
 
gains
 
or
 
losses
 
on
 
any
 
financial
 
instrument
 
(other
 
than
 
any
 
financial
 
instrument
 
which
 
is
accounted for on a hedge accounting basis) which are reported through
 
the income statement;
(g)
any Exceptional Items approved by the Facility Agent in writing before the applicable
 
Measurement Date;
(h)
any Transaction Expenses,
and
 
shall
 
include
 
the
 
amount
 
of
 
Cash
 
received
 
by
 
that
 
member
 
of
 
the
 
Covenant
 
Group
 
from
 
an
 
associate
 
or
investment (which is
 
not a member
 
of the Covenant
 
Group) in which
 
that member of
 
the Covenant Group
 
has an
ownership interest in the ordinary course of business.
22.1.11
Exceptional Items
 
means any exceptional, one
 
off, non-recurring or extraordinary
 
items, including (but
 
not limited
to) material items of an unusual or non-recurring nature which represent gains
 
or losses on:
(a)
the restructuring of the activities of an entity and reversals of any provisions for
 
the cost of restructuring;
(b)
disposals, revaluations, write
 
downs or impairment
 
of non-current assets
 
or any reversal of
 
any write down
or impairment;
(c)
disposals of assets associated with discontinued operations; and
(d)
disposals of assets associated with discontinued operations;
(e)
to the extent not included
 
in (a) to (d) above,
 
any other non-cash add
 
backs or series of non
 
-cash add backs
or other exceptional items (in the determination of the Facility Agent).
22.1.12
Excess Inventory
 
means the
 
difference
 
between
 
the current
 
airtime inventory
 
of the
 
members of
 
the Covenant
Group and the average daily cost of airtime inventory sold for the most recent month
 
multiplied by 3.5.
22.1.13
Finance Charges
 
means, for any Measurement Period, the aggregate amount of the accrued interest, commission,
fees, discounts, prepayment
 
fees, premiums or
 
charges and other
 
finance payments in
 
respect of Borrowings
 
paid
or payable
 
by any
 
member of
 
the Covenant
 
Group (calculated
 
on a
 
consolidated
 
basis) in
 
cash or
 
capitalised in
respect of that Measurement Period:
(a)
excluding
 
any upfront fees or costs;
(b)
including
the interest (but not the capital) element of payments in respect of Finance Leases;
(c)
excluding
 
any payments on Operating Leases;
(d)
including
 
any commission, fees, discounts and other finance payments
 
payable by (and deducting any such
amounts payable
 
to) any
 
member of
 
the Covenant
 
Group under
 
any interest
 
rate hedging
 
arrangement, but
excluding any unrealised gains or losses under any such hedging arrangement;
58
and so that no amount shall be added (or deducted) more than once.
22.1.14
Finance Lease
 
means any
 
lease or
 
hire purchase
 
contract, a
 
liability under
 
which would,
 
in accordance
 
with the
Accounting Principles in force, be treated as a balance sheet liability,
 
save for any Operating Lease.
22.1.15
Financial Half-Year
 
means the first six months after the Accounting Reference Date of the Borrower.
22.1.16
Financial Year
 
means the annual accounting period of the Group ending on the Accounting
 
Reference Date.
22.1.17
Interest Cover
 
means the ratio of
 
Consolidated EBITDA to Net
 
Finance Charges in
 
respect of any Measurement
Period.
22.1.18
Leverage
 
Ratio
 
means,
 
in
 
respect
 
of
 
any
 
Measurement
 
Period,
 
the
 
ratio
 
of
 
Total
 
Debt
 
on
 
the
 
last
 
day
 
of
 
that
Measurement Period to Consolidated EBITDA in respect of that Measurement
 
Period.
22.1.19
Measurement Date
means the last day of the Financial Year
 
and the last day of each other quarter.
22.1.20
Measurement Period
 
means each period of 12 months ending on a Measurement Date.
22.1.21
Net Finance Charges
 
means, for any Measurement Period, the
 
Finance Charges for that Measurement Period
 
after
deducting:
(a)
any
 
interest
 
accruing
 
in
 
respect
 
of
 
subordinated
 
debt
 
instruments,
 
provided
 
that
 
such
 
subordinated
 
debt
instruments are subordinated on terms acceptable to the Facility Agent;
 
(b)
any interest payable
 
in that
 
Measurement Period to
 
any member
 
of the
 
Covenant Group (other
 
than by
 
another
member of the Covenant Group) on any Cash or Cash Equivalent Investment.
22.1.22
New Shareholder Injections
 
means the aggregate
 
amount subscribed for by
 
any person (other
 
than a member of
the
 
Covenant
 
Group)
 
for
 
ordinary
 
shares
 
in
 
the
 
Borrower
 
or
 
for
 
subordinated
 
loans
 
or other
 
subordinated
 
debt
instruments
 
in
 
the
 
Borrower,
 
provided
 
that
 
such
 
subordinated
 
loans
 
or
 
other
 
subordinated
 
debt
 
instruments
 
are
subordinated on terms acceptable to the Facility Agent.
22.1.23
Operating Lease
 
means any lease contract (concluded either prior to or after 1 January,
 
2019), which would have
been classified as an operating lease under IAS17 prior to 1 January, 2019 and, solely as a result of the adoption of
IFRS16, with effect from 1 January,
 
2019 is now classified as a finance lease.
22.1.24
Relevant Proceeds
 
means Disposal Proceeds or
 
Insurance Proceeds (each as
 
defined in Clause
 
(
)).
22.1.25
Total Debt
 
means, at any time, the aggregate amount of all obligations of the members of the Covenant Group for
or in respect of Borrowings at that time but:
(a)
excluding
any such obligations to any other member of the Covenant Group;
(b)
excluding
any debt
 
provided by
 
the shareholders
 
of the
 
Borrower to
 
the Borrower
 
that is
 
subordinated on
terms acceptable to the Facility Agent;
 
and
(c)
including
, in the case of Finance Leases only,
 
their capitalised value,
and so that no amount shall be included or excluded more than once.
22.1.26
Transaction
 
Costs
 
means
 
any
 
non-recurring,
 
once-off
 
transaction
 
costs
 
(including
 
legal,
 
advisory
 
and
 
other
professional fees and
 
costs, front-end fees
 
payable under the Finance
 
Documents and the
 
Acquisition Documents
incurred and
 
paid for by
 
a member of
 
the Covenant
 
Group in
 
connection with
 
the Acquisition
 
within a
 
period of
twelve months from the Closing Date.
22.1.27
Working Capital
 
means, on any date, Current Assets less Current Liabilities.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
59
22.2
Financial condition
The Borrower shall ensure that:
22.2.1
Debt Service Cover:
The Obligors shall ensure that
 
the Debt Service Cover for any
 
Measurement Period shall not be
 
less than the ratio
set out in column 2 below opposite that Measurement Period:
Measurement Period
Ratio
[Column 1]
[Column 2]
Each Measurement Period ending before or on 31 December, 2022:
1.20 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2023:
1.20 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2024:
1.20 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2025:
1.20 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2026:
1.20 : 1
22.2.2
Interest Cover:
The Obligors shall ensure that the Interest
 
Cover for any Measurement Period shall not
 
be less than the ratio set
 
out
in column 2 below opposite that Measurement Period:
Measurement Period
Ratio
[Column 1]
[Column 2]
Each Measurement Period ending before or on 31 December, 2022:
2.50 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2023:
3.00 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2024:
3.50 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2025:
3.50 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2026:
3.50 : 1
22.2.3
Leverage Ratio:
The Obligors shall ensure that the Leverage Ratio for any Measurement
 
Period shall not be more than the ratio set
out in column 2 below opposite that Measurement Period:
 
 
 
 
 
 
 
 
 
 
 
 
 
60
Measurement Period
Ratio
[Column 1]
[Column 2]
Closing Date
3.75 : 1
Each Measurement Period ending before or on 31 December, 2022:
3.50 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2023:
3.25 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2024:
2.75 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2025:
2.50 : 1
Thereafter, each Measurement Period ending before or on 31 December,
2026:
2.25 : 1
22.3
Financial testing
22.3.1
The financial covenants set out in Clause
 
(
) shall be calculated in accordance with IFRS
 
or
IFRS for
 
SMEs (as
 
applicable)
 
and tested
 
by reference
 
to each
 
of the
 
financial statements
 
delivered
 
pursuant to
Clauses
 
and
 
(Financial
 
statements)
 
and/or
 
each
 
Compliance
 
Certificate
 
delivered
 
pursuant
 
to
Clause
 
(Provision and contents of Compliance Certificate).
22.3.2
In
 
respect
 
of
 
any
 
Measurement
 
Period
 
ending
 
on
 
a
 
Measurement
 
Date
 
occurring
 
less
 
than
 
12
 
months
 
after
 
the
Closing Date:
(a)
Net
 
Finance
 
Charges
 
shall
 
be calculated
 
on
 
a pro
 
forma
 
basis for
 
the period
 
from the
 
beginning
 
of that
Measurement Period until the Closing Date on the basis of annualising the actual Net Finance Charges from
the Closing Date until the end of that Measurement Period; and
(b)
Consolidated EBITDA
 
shall be Consolidated
 
EBITDA for the
 
12 month period
 
ending on
 
that Measurement
Date.
 
22.4
Equity Cure
22.4.1
If:
(a)
as at a Measurement Date, any requirement of Clauses
,
 
or
 
is not met;
(b)
a
 
Compliance
 
Certificate
 
to
 
be delivered
 
pursuant
 
to Clause
 
(
) will show, for any Measurement Period (the
Cure Measurement Period
) that there would be or
is likely to be a breach of Clause
 
(
),
the Borrower:
(i)
may procure
 
the provision
 
of New Shareholder
 
Injections in
 
an amount
 
sufficient to
 
prevent or
 
cure
the relevant breach
 
in accordance with
 
Clause
 
(such amount, the
Equity Cure
 
Proceeds
 
and,
such right, an
Equity Cure Right
); and
(ii)
if such New Shareholder Injection is
 
provided, shall procure that the Equity
 
Cure Proceeds are applied
in prepayment of the Term Facilities, and shall apply no less than the Equity Cure Proceeds towards a
prepayment of the Term
 
Facilities.
22.4.2
Any Equity
 
Cure Proceeds
 
must be
 
provided and
 
any Equity
 
Cure Proceeds
 
applied in
 
prepayment of
 
the Term
Facilities on or
 
prior to
 
the date (the
Equity Cure
 
Prepayment
 
Date
) occurring
 
45 days after
 
the date on
 
which
the Relevant Financial Undertaking was not met.
61
22.4.3
Upon receipt
 
in cash of
 
the Equity Cure
 
Proceeds and
 
the application
 
of the Equity
 
Cure Proceeds in
 
accordance
with
 
Clause
,
 
the
 
financial
 
covenants
 
shall
 
be calculated
 
for
 
the
 
Cure
 
Measurement
 
Period
 
and
 
the
immediately succeeding three Measurement Periods such that:
(a)
for the
 
purposes of
 
Leverage Ratio,
 
the amount
 
of the
 
Equity Cure
 
Proceeds applied
 
in prepayment
 
of the
Term
 
Facilities shall be deemed
 
to reduce the
 
amount of Borrowings
 
as at the Measurement
 
Date falling at
the end
 
of the
 
Cure Measurement
 
Period (the
Cure
 
Measurement
 
Date
), and
 
the amount
 
of Borrowings
resulting from such reduction shall be used in the calculation of the Leverage
 
Ratio; and
(b)
for the purposes of
 
the Interest Cover and
 
the Debt Service Cover,
 
the amount of the
 
Equity Cure Proceeds
applied in prepayment
 
of the Term
 
Facilities shall be deemed
 
(for this purpose
 
only) to have been
 
received
on
 
the
 
first
 
day
 
of
 
the
 
Cure
 
Measurement
 
Period
 
and
 
Net
 
Finance
 
Charges
 
and
 
Debt
 
Service
 
shall
 
be
calculated to reflect
 
such deemed prepayment
 
(by excluding any
 
Finance Charges and
 
Debt Service
 
in respect
of the
 
amount deemed
 
to have
 
been received),
 
and Net
 
Finance Charges
 
and Debt
 
Service resulting
 
from
such calculation shall be used in the calculation of the Interest Cover and
 
the Debt Service Cover,
 
in each case, making any further adjustment needed to ensure no double counting
 
or accumulation of cure benefit,
and as evidenced by delivery of the Compliance Certificate for the Cure Measurement
 
Period.
22.4.4
If after the
 
financial covenants in
 
Clause
 
(
) are calculated,
 
the breach has
 
been prevented
or cured,
 
the covenants
 
in Clause
 
(
) shall
 
be deemed
 
to have
 
been satisfied
 
on the
 
Cure
Measurement Date as
 
though no breach
 
had ever occurred
 
and any related Default
 
shall be deemed
 
never to have
occurred.
22.4.5
An Equity Cure Right may not be exercised:
(a)
in respect of two successive Measurement Periods; and
(b)
on more than three occasions during the term of the Facilities.
23.
GENERAL UNDERTAKINGS
The undertakings
 
in this
 
Clause
 
remain in
 
force from
 
the date
 
of this
 
Agreement for
 
so long
 
as any
 
amount is
 
outstanding
under the Finance Documents or any Commitment is in force.
23.1
Authorisations
Each Obligor shall (and shall procure that each other member of the Group
 
will) promptly:
23.1.1
obtain, comply with and do all that is necessary to maintain in full force and effect;
 
and
23.1.2
supply certified copies to the Facility Agent of,
any Authorisation required under any law or regulation of a Relevant Jurisdiction
 
to:
(a)
enable it to perform its obligations under the Finance Documents;
 
(b)
ensure the legality, validity,
 
enforceability or admissibility in evidence of any Finance
 
Document; and
(c)
carry on its business where failure to do so has or is reasonably likely to have a Material
 
Adverse Effect.
23.2
Compliance with laws
Each Obligor shall (and shall ensure that each member of the Group will) comply in all respects with all laws to which it
may be
 
subject, and
 
obtain and
 
comply with
 
all permits
 
and licenses,
 
in each
 
case, either (a)
 
to the
 
extent the
 
same are
material to the conduct of its business,
 
or (b) if failure so to comply
 
has or is reasonably likely to have
 
a Material Adverse
Effect.
62
23.3
Environmental compliance
23.3.1
Each Obligor shall (and shall ensure that each member of the Group
 
will):
(a)
comply with all Environmental Laws;
(b)
obtain, maintain and ensure compliance with all requisite Environmental
 
Permits; and
(c)
implement procedures to monitor compliance with and to prevent liability
 
under any Environmental Law,
where failure to do so has or is reasonably likely to have a Material Adverse Effect.
23.4
Environmental Claims
23.4.1
Each Obligor shall, promptly upon becoming aware of the same, inform
 
the Facility Agent in writing of:
(a)
any Environmental Claim against any member of the Group which is curr
 
ent, pending or threatened; and
(b)
any
 
facts
 
or
 
circumstances
 
which
 
are
 
reasonably
 
likely
 
to
 
result
 
in
 
any
 
Environmental
 
Claim
 
being
commenced or threatened against any member of the Group,
where the
 
claim, if
 
determined against
 
that member
 
of the
 
Group, has
 
or is
 
reasonably likely
 
to have
 
a Material
Adverse Effect or would result in a financial liability for the Finance
 
Parties.
23.5
Anti-corruption law
23.5.1
No Obligor shall (and shall
 
ensure that no other member of
 
the Group will) directly or
 
indirectly use the proceeds
of the
 
Facilities for
 
any purpose
 
which
 
would breach
 
the Prevention
 
and Combatting
 
of Corrupt
 
Activities Act,
2004,
 
the United
 
Kingdom
 
Bribery Act
 
2010, the
 
United States
 
Foreign
 
Corrupt Practices
 
Act of
 
1977 or
 
other
similar legislation in other jurisdictions.
23.5.2
Each Obligor shall (and shall ensure that each other member of the Group
 
will):
(a)
conduct its businesses in compliance with applicable anti-corruption
 
laws; and
(b)
maintain policies and procedures designed to promote and achieve compliance
 
with such laws.
23.6
Sanctions
23.6.1
No Obligor shall (and shall ensure that no other member of the Group will):
(a)
contravene any Sanctions;
(b)
be a party to or participate in a Sanctioned Transaction in
 
any manner.
23.6.2
Each Obligor
 
shall (and shall
 
ensure that
 
each other member
 
of the Group
 
will) maintain and
 
implement policies
and procedures designed to prevent it from being or becoming involved
 
in a Sanctioned Transaction.
 
23.7
Guarantor coverage
23.7.1
The Borrower
 
shall ensure
 
that, at
 
all times
 
after the
 
Closing Date,
 
the aggregate
 
contribution of
 
the Guarantors
(calculated on an unconsolidated basis and excluding
 
all intra-Group items and investments in Subsidiaries of any
member of the Group) represents not less than 90.00 per cent. of the gross assets, Consolidated
 
EBITDA and total
revenue of the Group.
23.7.2
If, at any time after the date of this Agreement:
(a)
it is demonstrated
 
by reference to
 
the financial statements
 
of any Subsidiary
 
and the consolidated
 
financial
statements of the Group that any member of the Group is a Material Subsidiary; or
(b)
a member of the Group otherwise is or becomes a Material Subsidiary,
63
then, the
 
Borrower shall,
 
subject to
 
Clause
 
(Information Undertakings),
 
promptly and
 
in any
 
event within
 
10
Business
 
Days
 
of
 
the
 
delivery
 
of
 
those
 
financial
 
statements
 
procure
 
that
 
that
 
Material
 
Subsidiary
 
becomes
 
an
Additional Guarantor in the manner required by Clause
 
(
).
23.8
Taxation
23.8.1
Each Obligor
 
shall (and
 
shall ensure
 
that each
 
member of
 
the Group
 
will) pay
 
and discharge
 
all Taxes
 
imposed
upon it or its assets within the time period allowed without incurring penalties unless and
 
only to the extent that:
(a)
such payment is being contested in good faith;
(b)
adequate reserves
 
are being
 
maintained for
 
those Taxes
 
and the costs
 
required to
 
contest them
 
which have
been disclosed in its latest
 
financial statements delivered to the
 
Facility Agent under Clause
 
(Financial
statements); and
(c)
such payment can be lawfully withheld.
23.8.2
No member of the Group may change its residence for Tax
 
purposes.
23.9
Merger
No
 
Obligor
 
shall
 
(and
 
shall
 
ensure
 
that
 
no
 
other
 
member
 
of
 
the
 
Group
 
will)
 
enter
 
into
 
any
 
amalgamation,
 
demerger,
merger,
 
consolidation or
 
corporate reconstruction
 
other than
 
as may be
 
contemplated in
 
the Acquisition
 
Documents (in
the form
 
provided to
 
the Facility
 
Agent pursuant
 
to Clause
 
(
)) or
 
with the
 
express prior
consent of the Facility Agent.
23.10
Change of business
The Borrower shall procure that no substantial change is made
 
to the general nature of its business or the business of the
Group taken as a whole from that carried on Group at the Acquisition Date.
23.11
Acquisitions
23.11.1
Except as permitted under
 
Clause
 
below, no Obligor shall (and
 
Borrower shall ensure that
 
no other member
of the Group will):
(a)
acquire a company
 
or any shares or
 
securities or a business
 
or undertaking (or,
 
in each case, any
 
interest in
any of them); or
(b)
incorporate a company.
23.11.2
Clause
 
above
 
does
 
not
 
apply
 
to
 
an
 
acquisition
 
of
 
a
 
company,
 
of
 
shares,
 
securities
 
or
 
a
 
business
 
or
undertaking (or,
 
in each case, any interest in
 
any of them) or the incorporation
 
of a company which is
 
a Permitted
Acquisition.
23.12
Joint ventures
23.12.1
No Obligor shall (and shall ensure that no other member of the Group will):
(a)
enter into, invest in or acquire
 
(or agree to acquire) any shares,
 
stocks, securities or other interest in any
 
Joint
Venture;
 
or
(b)
transfer any assets
 
or lend to or
 
guarantee or give
 
an indemnity for or
 
give Security for
 
the obligations of a
Joint Venture
 
or maintain
 
the solvency
 
of or
 
provide working
 
capital to
 
any Joint
 
Venture
 
(or agree
 
to do
any of the foregoing),
(a
Joint Venture
 
Investment
) other than with the prior written consent of the Lender.
23.12.2
Clause
 
does not apply to any investment in any Joint Venture
 
where:
64
(a)
the Joint Venture
 
carries on or will carry on a business similar to that undertaken by the Group as at the date
of the investment;
(b)
no Default is continuing on the completion of the investment or would occur
 
as a result; and
(c)
the aggregate
 
of all
 
Joint Venture
 
Investments of
 
any member
 
or members
 
of the
 
Group does
 
not exceed
R50,000,000 (or its equivalent in any other currency) at any time.
23.13
Preservation of assets
Each
 
Obligor
 
shall
 
(and
 
shall ensure
 
that
 
each other
 
member of
 
the
 
Group
 
will)
 
maintain
 
in
 
good
 
working
 
order
 
and
condition (ordinary wear and tear excepted) all of its assets necessary or
 
desirable in the conduct of its business.
23.14
Pari passu ranking
Each Obligor shall
 
ensure that at all
 
times any unsecured
 
and unsubordinated claims
 
of a Finance Party
 
against it under
the Finance
 
Documents rank
 
at least
 
pari passu
 
with the
 
claims of
 
all its
 
other unsecured
 
and unsubordinated
 
creditors
except those creditors whose claims are mandatorily preferred by laws of general
 
application to companies.
23.15
Negative pledge
23.15.1
In this Clause
,
Quasi-Security
 
means an arrangement or transaction described in Clause
 
below.
23.15.2
Except as permitted under paragraph
 
below:
(a)
No Obligor
 
shall (and shall
 
ensure that no
 
other member
 
of the Group
 
will) create or
 
permit to subsist
 
any
Security over any of its assets.
(b)
No Obligor shall (and shall ensure that no other member of the Group will):
(i)
sell, transfer or
 
otherwise dispose of
 
any of its
 
assets on terms
 
whereby they are
 
or may be
 
leased to
or re-acquired by any other member of the Group;
(ii)
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii)
enter into or permit to subsist any title retention arrangement;
(iv)
enter
 
into
 
any
 
arrangement
 
under
 
which
 
money
 
or
 
the
 
benefit
 
of
 
a
 
bank
 
or
 
other
 
account
 
may
 
be
applied, set-off or made subject to a combination of accounts; or
(v)
enter into any other preferential arrangement having a similar effect,
in
 
circumstances
 
where
 
the
 
arrangement
 
or
 
transaction
 
is
 
entered
 
into
 
primarily
 
as
 
a
 
method
 
of
 
raising
Financial Indebtedness or of financing the acquisition of an asset.
(c)
Paragraphs
 
and
 
above do not apply
 
to any Security
 
or (as the case
 
may be) Quasi-Security,
 
which is
Permitted Security.
23.16
Disposals
23.16.1
Except as
 
permitted under
 
Clause
 
below,
 
no Obligor
 
shall (and
 
shall ensure
 
that no
 
other member
 
of the
Group will) enter into a single
 
transaction or a series of transactions (whether related
 
or not) and whether voluntary
or involuntary to sell, lease, transfer or otherwise dispose of any
 
asset.
23.16.2
Clause
 
above does not apply to any sale, lease, transfer or other disposal which is a Permitted Disposal.
23.17
Arm's length basis
23.17.1
Except as permitted by
 
Clause
 
below, no Obligor shall (and shall ensure
 
that no other member
 
of the Group
will) enter into any transaction with any person except on arm's length terms and for full market
 
value.
65
23.17.2
The following transactions shall not be a breach of this Clause
(a)
transactions between Obligors which are on arm's length basis;
(b)
intra-Group loans that constitute Permitted Loans;
 
(c)
shareholder loans that constitute
 
Permitted Loans, provided that the
 
repayment of any such
 
shareholder loans
must comply with Clause
 
(
); and
(d)
fees,
 
costs
 
and
 
expenses
 
payable
 
under
 
the
 
Finance
 
Documents
 
in
 
the
 
amounts
 
set
 
out
 
in
 
the
 
Finance
Documents delivered
 
to the Facility
 
Agent under
 
Clause
 
(Initial conditions
 
precedent) or agreed
 
by the
Facility Agent.
23.18
Loans or credit
23.18.1
Except as
 
permitted under
 
Clause
 
below,
 
no Obligor
 
shall (and
 
shall ensure
 
that no
 
other member
 
of the
Group will) be a creditor in respect of any Financial Indebtedness.
23.18.2
Clause
 
above does not apply to a Permitted Loan.
23.19
No guarantees or indemnities
23.19.1
Except as
 
permitted under
 
Clause
 
below,
 
no Obligor
 
shall (and
 
shall ensure
 
that no
 
other member
 
of the
Group will) incur or allow to remain outstanding any guarantee in respect of
 
any obligation of any person.
23.19.2
Clause
 
does not apply to a guarantee which is a Permitted Guarantee.
23.20
Dividends and share redemption
23.20.1
Except as permitted under
 
Clause
 
below, the
 
Borrower shall not (and will
 
ensure that no other member of
the Group will):
(a)
declare,
 
make
 
or
 
pay
 
any
 
dividend,
 
charge,
 
fee
 
or
 
other
 
distribution
 
(or
 
interest
 
on
 
any
 
unpaid
 
dividend,
charge, fee or other distribution) (whether in cash or
 
in kind) on or in respect
 
of its share capital (or any class
of its share capital);
(b)
repay or distribute any dividend or share premium reserve;
(c)
pay or
 
allow any member
 
of the Group
 
to pay any
 
management, advisory
 
or other fee
 
to or to
 
the order
 
of
any of the shareholders of the Borrower; or
(d)
redeem, repurchase, defease, retire or repay any of its share capital or resolve
 
to do so.
23.20.2
Clause
 
above does not apply to a Permitted Distribution.
23.21
Financial Indebtedness
23.21.1
Except as permitted
 
under Clause
 
(
) below,
 
no Obligor shall (and
 
shall ensure that
no other member of the Group will) incur or allow to remain outstanding any Financial Indebtedness.
23.21.2
Clause
 
above does not apply to Financial Indebtedness which is Permitted Financial Indebtedness.
23.22
Share capital
23.22.1
No Obligor shall (and shall ensure that no other member of the Group will) issue any
 
shares.
23.22.2
Clause
 
does not apply to:
(a)
the issue
 
of shares
 
by a
 
member of
 
the Group
 
to another
 
person as
 
part of
 
a Permitted
 
BEE Transaction,
provided such issue does not lead to a Change of Control;
66
(b)
the issue of ordinary shares pursuant to the exercise of an Equity Cure Right;
(c)
the issue of
 
ordinary shares
 
by the Borrower
 
to Net1 where
 
such shares become
 
the subject of
 
Transaction
Security for the benefit of the Finance Parties;
(d)
the issue of
 
ordinary shares by
 
a member of
 
the Group to
 
another member of
 
the Group which
 
is a
 
shareholder
in it prior to
 
that issue where, if
 
any shares in the company
 
issuing those shares are the
 
subject of Transaction
Security,
 
such shares become the
 
subject of an equivalent
 
Security for the benefit
 
of the Finance Parties
 
on
the same terms;
(e)
the issue of redeemable preference shares by any member of the Group pursuant
 
to a Refinancing.
23.23
Insurance
23.23.1
In this Clause
, a prudent owner
 
means a prudent
 
owner and operator
 
of any business and
 
of any assets of
 
a
type and size, similar to those owned and operated by any member of the Group in a similar location.
23.23.2
Each Obligor shall (and shall ensure that each other member of the Group
 
will):
(a)
maintain insurances
 
on and
 
in relation to
 
its business and
 
assets against
 
those risks
 
and to the
 
extent that a
prudent owner would;
(b)
ensure that all insurances are placed with reputable independent insurance companies
 
or underwriters;
(c)
ensure that it is free to cede by way of security all amounts payable to it under each of its Insurances and
 
all
its rights in connection with those amounts in favour of the Finance Parties;
(d)
promptly pay (or
 
procure payment of)
 
all premiums and
 
do anything which
 
is necessary to keep
 
each of its
Insurances in full force and effect;
(e)
not
 
do or
 
allow
 
anything
 
to be
 
done
 
which
 
may
 
(and
 
promptly
 
notify
 
the Facility
 
Agent
 
of
 
any
 
event
 
or
circumstance which does or
 
is reasonably likely to)
 
entitle any insurer of any
 
of its Insurances to repudiate,
rescind or cancel it
 
or to treat it as avoided
 
in whole or in part or
 
otherwise decline any valid claim
 
under it
by or on behalf of any member of the Group; and
(f)
ensure that
 
the Facility
 
Agent is named
 
as loss payee
 
under all
 
Insurances maintained
 
with effect
 
from the
date on which notice
 
is given to the relevant
 
insurer by or on behalf
 
of the Facility Agent of
 
the occurrence
of an Event of Default and until that insurer is notified by or on behalf of
 
the Facility Agent that such Event
of Default has
 
ceased to be
 
continuing. Each Obligor
 
shall (and shall
 
ensure that each
 
other member of
 
the
Group will)
 
maintain insurances
 
on and
 
in relation
 
to its
 
business and
 
assets against
 
those risks
 
and to
 
the
extent as is usual for companies carrying on the same or substantially similar business.
23.24
Access
If a Default
 
is continuing or
 
the Facility Agent reasonably
 
suspects a Default
 
is continuing or
 
may occur,
 
each Obligor
shall, and shall
 
ensure that each member
 
of the Group
 
will, (not more
 
than once in
 
every Financial Year unless the Facility
Agent reasonably
 
suspects a Default
 
is continuing
 
or may
 
occur) permit
 
the Facility
 
Agent and/or
 
accountants or
 
other
professional advisers and contractors of the Facility Agent free access at all reasonable times and on reasonable notice at
the risk and cost of the Obligor to (a) the premises, assets, books, accounts and records of each member of the Group and
(b) meet and discuss matters with senior management of the Borrower.
23.25
Intellectual Property
23.25.1
Each Obligor shall (and shall procure that each other member of the Group
 
will):
(a)
preserve and maintain the
 
subsistence and validity of
 
the Intellectual Property necessary
 
for the business of
the relevant Group member;
(b)
use reasonable endeavours to prevent any infringement
 
in any material respect of the Intellectual Property;
67
(c)
make registrations
 
and pay all
 
registration fees
 
and taxes necessary
 
to maintain
 
the Intellectual Property
 
in
full force and
 
effect and record its interest in that Intellectual Property;
(d)
not use
 
or permit
 
the Intellectual
 
Property to
 
be used
 
in a
 
way or
 
take any
 
step or
 
omit to
 
take any
 
step in
respect of that Intellectual
 
Property which may materially
 
and adversely affect the
 
existence or value of the
Intellectual Property or imperil the right of any member of the Group to use
 
such property; and
(e)
not discontinue the use of the Intellectual Property,
where failure to
 
do so, in
 
the case of
 
paragraphs
 
and
 
above, or,
 
in the case
 
of paragraphs
 
and
 
above, such
use, permission to use, omission or discontinuation, is reasonably likely to have a Material
 
Adverse Effect.
23.26
Financial assistance
Each Obligor shall (and
 
shall procure each other member
 
of the Group will)
 
comply in all respects with
 
sections 44 and
45 of the Companies Act, 2008 and any equivalent legislation in other jurisdictions including in relation to the execution
of the Transaction Security Documents and payment
 
of amounts due under this Agreement.
23.27
Treasury Transactions
No Obligor
 
shall (and
 
will procure
 
that no
 
other member
 
of the
 
Group will)
 
enter into
 
any Treasury
 
Transaction,
 
other
than:
23.27.1
spot and
 
forward delivery
 
foreign exchange
 
contracts entered
 
into in
 
the ordinary
 
course of
 
business and
 
not for
investment or speculative purposes;
 
23.27.2
any Treasury Transaction
 
entered into for the hedging of
 
actual or projected real exposures arising
 
in the ordinary
course of trading
 
activities of a
 
member of the
 
Group for
 
a period
 
of not
 
more than
 
12 months
 
and not for
 
speculative
purposes.
23.28
Further assurance
23.28.1
Each
 
Obligor
 
shall
 
(and
 
shall
 
procure
 
that
 
each
 
other
 
member
 
of
 
the
 
Group
 
will)
 
promptly
 
do
 
all
 
such
 
acts
 
or
execute all such documents
 
(including assignments, transfers, mortgages,
 
charges, notices and instructions)
 
as the
Facility Agent may reasonably specify (and in such form as the Facility Agent may reasonably require in favour
 
of
the Finance Parties or their respective nominee(s)):
(a)
to
 
perfect
 
the
 
Security
 
created
 
or
 
intended
 
to
 
be
 
created
 
under
 
or
 
evidenced
 
by
 
the
 
Transaction
 
Security
Documents (which may include the
 
execution of a mortgage bond, charge, assignment
 
or other Security over
all or
 
any of
 
the assets
 
which are,
 
or are
 
intended to
 
be, the subject
 
of the
 
Transaction
 
Security) or
 
for the
exercise of
 
any rights,
 
powers and
 
remedies of
 
the Finance
 
Parties provided
 
by or
 
pursuant to
 
the Finance
Documents or by law;
(b)
to
 
confer
 
on
 
the
 
Finance
 
Parties
 
Security
 
over
 
any
 
property
 
and
 
assets
 
of
 
that
 
Obligor
 
located
 
in
 
any
jurisdiction equivalent
 
or similar to the
 
Security intended to
 
be conferred by
 
or pursuant to the
 
Transaction
Security Documents; and/or
(c)
to
 
facilitate
 
the
 
realisation
 
of
 
the
 
assets
 
which
 
are,
 
or
 
are
 
intended
 
to
 
be,
 
the
 
subject
 
of
 
the
 
Transaction
Security.
23.28.2
Each Obligor shall (and shall procure that each other member of the Group will) take all such action as is
 
available
to it (including making all filings and registrations) as may be
 
necessary for the purpose of the creation, perfection,
protection
 
or
 
maintenance
 
of
 
any
 
Security
 
conferred
 
or
 
intended
 
to
 
be
 
conferred
 
on
 
the
 
Finance
 
Parties
 
by
 
or
pursuant to the Finance Documents.
23.29
Acquisition Documents
23.29.1
The Borrower
 
shall not
 
amend, vary
 
or terminate
 
the Acquisition
 
Documents on
 
or before
 
the Acquisition
 
Date
without the express prior consent of the Facility Agent.
 
68
23.29.2
After the Acquisition
 
Date, the Borrower
 
shall not amend,
 
vary or terminate
 
the Acquisition Documents
 
in a
 
manner
which
 
could
 
reasonably
 
be
 
expected
 
to
 
be
 
materially
 
adverse
 
to
 
the
 
Finance
 
Parties
 
without
 
the
 
express
 
prior
consent of the Facility Agent.
23.29.3
Subject to Clause
 
above, the Borrower
 
shall promptly supply
 
to the Facility Agent,
 
the details and
 
copies
of
 
any
 
amendments
 
made
 
or
 
proposed
 
to
 
be
 
made
 
to
 
the
 
Acquisition
 
Documents
 
and
 
any
 
proposed
 
or
 
actual
termination of the Acquisition Documents.
24.
EVENTS OF DEFAULT
Each of the
 
events or circumstances
 
set out in this
 
Clause
 
is an Event
 
of Default (save
 
for Clause
 
(Acceleration) and
Clause
 
(Clean-Up Period)).
24.1
Non-payment
An
 
Obligor
 
or
 
any
 
other
 
Security
 
Provider
 
does
 
not
 
pay
 
on
 
the
 
due
 
date
 
any
 
amount
 
payable
 
pursuant
 
to
 
a
 
Finance
Document at the place at and in the currency in which it is expressed to be payable
 
unless its failure to pay is caused by:
24.1.1
administrative or technical error; or
24.1.2
a Disruption Event,
 
and payment is made within three Business Days of its due date.
24.2
Financial covenants and other obligations
24.2.1
Any requirement
 
of Clause
 
(Financial covenants)
 
is not
 
satisfied and
 
is not
 
cured in
 
accordance
 
with Clause
 
(
), or an Obligor does not comply with the provisions of Clause
 
(Information Undertakings) or
Clause
 
(General Undertakings)
24.2.2
An
 
Obligor
 
or
 
any
 
other
 
Security
 
Provider
 
does
 
not
 
comply
 
with
 
any
 
provision
 
of
 
any
 
Transaction
 
Security
Document.
24.3
Other obligations
24.3.1
An Obligor
 
or any other
 
Security Provider
 
does not comply
 
with any provision
 
of the Finance
 
Documents (other
than those referred to in Clause
 
(Non-payment) and Clause
 
(Financial covenants and other obligations)).
24.3.2
No Event
 
of Default
 
under
 
Clause
 
above
 
will occur
 
if the
 
failure
 
to comply
 
is capable
 
of remedy
 
and
 
is
remedied within seven
 
Business Days of the
 
earlier of (i) the
 
Facility Agent giving
 
notice to the Obligors
 
and (ii)
the Obligors or the relevant Security Provider becoming aware of the failure
 
to comply.
24.4
Misrepresentation
Any representation or statement made or deemed to be made by an Obligor or any other Security Provider in the Finance
Documents or
 
any other
 
document delivered
 
by or
 
on behalf
 
of any
 
Obligor or
 
any other Security
 
Provider under
 
or in
connection with
 
any Finance Document
 
is or proves
 
to have been
 
incorrect or
 
misleading in
 
any material
 
respect when
made or deemed to be made.
24.5
Cross default
24.5.1
Any Financial
 
Indebtedness of
 
any member
 
of the
 
Group, any
 
Obligor,
 
any other
 
Security Provider
 
or any
 
other
member of the Group is not paid when due nor within any originally applicable
 
grace period.
24.5.2
Any Financial
 
Indebtedness of any
 
member of the
 
Group, any Obligor
 
or any Security
 
Provider is declared
 
to be
or otherwise
 
becomes due
 
and payable
 
prior to
 
its specified
 
maturity as
 
a result
 
of an
 
event of
 
default (however
described).
69
24.5.3
Any commitment for
 
any Financial Indebtedness
 
of any member
 
of the Group,
 
any Obligor
 
or any Security
 
Provider
is cancelled or suspended by a creditor of any member of the Group, Obligor or
 
Security Provider as a result of an
event of default (however described).
24.5.4
Any creditor of any member of the Group, any Obligor
 
or any other Security Provider becomes entitled to declare
any
 
Financial
 
Indebtedness
 
of
 
any
 
member
 
of
 
the
 
Group,
 
any
 
Obligor
 
or
 
any
 
other
 
Security
 
Provider
 
due
 
and
payable prior to its specified maturity as a result of an event of default (however described).
24.5.5
No
 
Event
 
of
 
Default
 
will
 
occur
 
under
 
this
 
Clause
 
if
 
the
 
aggregate
 
amount
 
of
 
Financial
 
Indebtedness
 
or
commitment for
 
Financial Indebtedness
 
falling within
 
Clauses
 
to
 
above is
 
less than
 
ZAR5,000,000
(or its equivalent in any other currency or currencies).
24.6
Insolvency
24.6.1
A member of the Group, any Obligor or any other Security Provider:
(a)
is unable or admits inability to pay its debts as they fall due;
(b)
is deemed to, or is declared to, be unable to pay its debts under applicable law;
(c)
suspends or threatens to suspend making payments on any of its debts; or
(d)
by
 
reason
 
of
 
actual
 
or
 
anticipated
 
financial
 
difficulties,
 
commences
 
negotiations
 
with
 
one
 
or
 
more
 
of
 
its
creditors
 
(excluding
 
any
 
Finance
 
Party
 
in
 
its
 
capacity
 
as
 
such)
 
with
 
a
 
view
 
to
 
rescheduling
 
any
 
of
 
its
indebtedness.
24.6.2
The
 
Obligors
 
or
 
any
 
other
 
Security
 
Provider
 
is
 
or
 
is
 
deemed
 
by
 
any
 
authority
 
or
 
legislation
 
to
 
be
 
Financially
Distressed (as defined in the Companies Act, 2008).
24.6.3
The value
 
of the
 
assets of
 
any member
 
of the
 
Group, any
 
Obligor or
 
any other
 
Security Provider
 
is less
 
than its
liabilities (taking into account contingent and prospective liabilities).
24.6.4
A moratorium
 
is declared
 
in respect
 
of any
 
indebtedness of
 
any member
 
of the
 
Group, any
 
Obligor or
 
any other
Security Provider.
 
If a
 
moratorium occurs,
 
the ending
 
of the
 
moratorium will
 
not remedy
 
any Event
 
of Default
caused by that moratorium.
24.7
Insolvency and business rescue proceedings
24.7.1
Any corporate action, legal proceedings or other procedure or step is taken in relation
 
to:
(a)
the
 
suspension
 
of
 
payments,
 
a
 
moratorium
 
of
 
any
 
indebtedness,
 
liquidation,
 
winding-up,
 
dissolution,
administration, judicial managements,
 
business rescue or reorganisation
 
(by way of voluntary arrangement,
scheme
 
of
 
arrangement
 
or
 
otherwise)
 
of
 
any
 
member
 
of
 
the
 
Group,
 
any
 
Obligor
 
or
 
any
 
other
 
Security
Provider;
(b)
a composition, compromise, assignment or arrangement with any creditor of
 
any member of the Group, any
Obligor or any other Security Provider;
(c)
the
 
appointment
 
of
 
a
 
liquidator,
 
receiver,
 
administrative
 
receiver,
 
administrator,
 
compulsory
 
manager,
judicial manager, business rescue practitioner or other similar
 
officer in respect of any member
 
of the Group,
any Obligor any Security Provider or any of their assets; or
(d)
enforcement of any Security over any assets of any member of the Group, any Obligor or any other Security
Provider,
or any analogous procedure or step is taken in any jurisdiction.
24.7.2
A meeting is proposed or
 
convened by the directors of
 
any member of the Group,
 
any Obligor or any
 
other Security
Provider, a resolution
 
is proposed or passed, application
 
is made or an order is applied
 
for or granted, to authorise
the entry into or implementation of any business rescue proceedings (or any similar proceedings) in respect
 
of any
70
member of
 
the Group, any
 
Obligor or any
 
other Security
 
Provider or any
 
analogous procedure
 
or step is
 
taken in
any jurisdiction.
24.7.3
Clauses
 
and
 
shall
 
not
 
apply
 
to
 
any
 
winding-up
 
petition
 
which
 
is
 
frivolous
 
or
 
vexatious
 
and
 
is
discharged, stayed or dismissed within 14 days of commencement.
24.8
Creditors' process
Any expropriation,
 
attachment, sequestration,
 
implementation of
 
any business
 
rescue plan,
 
distress or
 
execution or
 
any
analogous process in
 
any jurisdiction affects
 
any asset or
 
assets of a member
 
of the Group,
 
any Obligor or
 
any Security
Provider and is not discharged within 14 days.
24.9
Unlawfulness and invalidity
24.9.1
It is or becomes unlawful for an Obligor or any other Security Provider to perform any of its obligations
 
under the
Finance Documents or any Transaction Security created or
 
expressed to be created or
 
evidenced by the Transaction
Security Documents
 
ceases to be
 
effective or
 
any subordination created
 
under the Subordination
 
Agreement is or
becomes unlawful.
24.9.2
Any obligation or obligations of any Obligor or any other Security Provider under any Finance Documents are not
or cease
 
to be
 
legal, valid,
 
binding or
 
enforceable and
 
the cessation
 
individually
 
or cumulatively
 
materially and
adversely affects the interests of the Lenders under the Finance
 
Documents.
24.9.3
Any
 
Finance
 
Document
 
ceases
 
to
 
be
 
in
 
full
 
force
 
and
 
effect
 
or
 
any
 
Transaction
 
Security
 
or
 
any
 
subordination
created under the Subordination Agreement ceases to be legal, valid, binding, enforceable or effective or is alleged
by a party to it (other than a Finance Party) to be ineffective.
24.10
Cessation of business
Any member
 
of the
 
Group, any
 
Obligor or
 
any other
 
Security Provider
 
suspends or
 
ceases to
 
carry on
 
(or threatens
 
to
suspend or cease to carry on) all or a material part of its business.
24.11
Audit qualification
The Auditors qualify the audited annual consolidated financial statements of
 
the Group.
24.12
Expropriation
The authority
 
or ability
 
of any
 
member of
 
the Group,
 
any Obligor
 
or any
 
Security
 
Provider to
 
conduct its
 
business is
limited or wholly or substantially
 
curtailed by any seizure, expropriation, nationalisation,
 
intervention, restriction or other
action by or on behalf of any governmental, regulatory or other
 
authority or other person in relation to any member of the
Group, any Obligor or any Security Provider or any of their assets.
24.13
Repudiation and rescission of agreements
An Obligor
 
or any
 
other Security
 
Provider (or
 
any other
 
relevant party)
 
rescinds or
 
purports to rescind
 
or repudiates
 
or
purports
 
to
 
repudiate
 
a
 
Finance
 
Document
 
or
 
any
 
of
 
the
 
Transaction
 
Security
 
or
 
evidences
 
an
 
intention
 
to
 
rescind
 
or
repudiate a Finance Document or any Transaction
 
Security.
24.14
Litigation
Any litigation, arbitration or administrative proceedings or investigations of, or before, any
 
court, arbitral body or agency
are started or threatened,
 
or any judgment or
 
order of a court, arbitral
 
body or agency is made,
 
in relation to the Finance
Documents or the transactions contemplated in the Finance Documents or against any member
 
of the Group, any Obligor
or any
 
Security Provider
 
or their
 
assets which
 
have, or
 
has, or
 
are, or
 
is, reasonably
 
likely to
 
have a
 
Material Adverse
Effect.
71
24.15
Material adverse change
Any event
 
or circumstance
 
occurs which
 
the Lenders
 
reasonably believe
 
has or
 
is reasonably
 
likely to
 
have a
 
Material
Adverse Effect.
24.16
Conditions Subsequent
The relevant Obligor fails to provide a power of
 
attorney in favour of attorneys Webber Wentzel to pass and register each
of those general notarial bonds at
 
the applicable Deeds Registry referred
 
to in
 
(
) and the
registration of such notarial bond within 20 Business Days of the Closing Date.
24.17
Acceleration
On and
 
at any
 
time after
 
the occurrence
 
of an
 
Event of
 
Default the
 
Facility Agent
 
may,
 
and shall
 
if so
 
directed by
 
the
Lenders:
24.17.1
by notice to the Borrower:
(a)
cancel the Total Commitments
 
at which time they shall immediately be cancelled;
(b)
declare
 
that
 
all
 
or
 
part
 
of
 
the
 
Loans,
 
together
 
with
 
accrued
 
interest,
 
and
 
all
 
other
 
amounts
 
accrued
 
or
outstanding under the Finance Documents be immediately due
 
and payable, at which time they shall
 
become
immediately due and payable;
(c)
declare that
 
all or
 
part of
 
the Loans
 
be payable
 
on demand,
 
at which
 
time they
 
shall immediately
 
become
payable on demand by the Facility Agent on the instructions of the Lenders; and/or
24.17.2
exercise or
 
direct the Facility
 
Agent to exercise
 
any or all
 
of its rights,
 
remedies, powers
 
or discretions
 
under the
Finance Documents.
24.18
Clean-Up Period
24.18.1
Notwithstanding any other provision of any Finance Document:
(a)
any breach by a member of the Target
 
Group of a representation under Clause
 
(Representations);
(b)
any breach by a member of the Target
 
Group of an undertaking given by the
 
Target
 
Group under Clause
(General Undertakings); or
(c)
any Event of Default by a member of the Target
 
Group,
will be deemed not to
 
be a breach of representation
 
or warranty, a breach of that undertaking or
 
an Event of Default
(as the case may be) if:
(i)
it would
 
have
 
been
 
(if
 
it were
 
not
 
for
 
this provision)
 
a
 
breach
 
of
 
representation
 
or
 
warranty,
 
a
 
breach
 
of
undertaking or an
 
Event of Default
 
only by reason
 
of circumstances relating
 
exclusively to that
 
member of
the Target
 
Group (or any obligation to procure or ensure in relation to a member of the Target
 
Group);
(ii)
it does not relate to an Excluded Representation or an Excluded Event of Default;
(iii)
it is capable
 
of remedy and reasonable steps are being taken to remedy it;
(iv)
it occurs and is remedied within 4 months of the Acquisition Date (the
Clean-up Date
);
(v)
the circumstances giving rise to it have not been procured by or approved
 
by any Original Obligor;
(vi)
it does not prevent the granting of security over the Target
 
Assets; and
(vii)
it is not reasonably likely to have a Material Adverse Effect.
72
24.18.2
If the relevant circumstances are continuing on or after the Clean-up Date, there shall be a breach of representation
or warranty,
 
breach of
 
covenant or
 
Event of
 
Default, as
 
the case may
 
be notwithstanding
 
the above
 
(and without
prejudice to the rights and remedies of the Finance Parties).
24.18.3
In this Clause
Excluded
 
Event
 
of
 
Default
 
means
 
an
 
Event
 
of
 
Default
 
under
 
Clause
 
(Non-payment),
 
Clause
(Misrepresentation) (but only in so far as it relates to an Excluded Representation);
 
and
Excluded
 
Representation
 
means
 
a
 
representation
 
made
 
under
 
Clause
 
(
),
 
Clause
 
(
), Clause
 
(
), Clause
 
(
), Clause
(
) and Clause
 
(
).
73
SECTION 9
CHANGES TO THE PARTIES
25.
CHANGES TO THE LENDERS
25.1
Cession and delegation by the Lenders
25.1.1
Subject to this Clause
, a Lender (the
Existing Lender
) may cede and/or
 
delegate (a
Transfer
) any or all of
 
its
rights and/or
 
obligations under
 
this Agreement
 
and/or under
 
any Finance
 
Document to
 
another bank
 
or financial
institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making,
purchasing or investing in loans, securities or other financial assets (the
New Lender
).
 
25.1.2
Each
 
Obligor
 
consents
 
to
 
any
 
splitting
 
of
 
claims
 
which
 
may
 
arise
 
as
 
a
 
result
 
of
 
a
 
Transfer
 
permitted
 
by
 
this
Agreement.
25.2
Obligor consent
25.2.1
The consent of the Obligors is not required for a Transfer
 
by an Existing Lender if:
(a)
the New Lender is another Lender or an Affiliate of a Lender;
(b)
the New Lender is a person identified in
 
(Acceptable Lenders); or
(c)
an Event of Default is continuing.
Except
 
as
 
detailed
 
above,
 
the
 
express
 
consent
 
of
 
the
 
Obligors
 
is
 
required
 
for
 
a
 
Transfer
 
to
 
a
 
prospective
 
New
Lender.
25.2.2
Where the
 
consent of
 
the Obligors
 
to a
 
Transfer is
 
required under
 
Clause
, that consent
 
must not
 
be
unreasonably withheld or delayed.
 
The Obligors will be deemed to have given
 
its consent 10 Business Days after
the Existing Lender has requested it, unless consent is expressly refused by the Obligors
 
within that time.
25.3
Other conditions of transfer
25.3.1
A Transfer
 
will only
 
be effective
 
if there
 
is compliance
 
with the
 
procedure set
 
out in
 
Clause
 
(
).
 
25.3.2
If:
(a)
a Lender Transfers any of its rights or obligations under
 
the Finance Documents; and
(b)
as a result of circumstances
 
existing at the date the Transfer
 
or change occurs, an Obligor would
 
be obliged
to make a payment to the New Lender under Clause
 
(Increased Costs),
then the New Lender only entitled
 
to receive payment under that Clause to
 
the same extent as the Existing Lender
would have been if the Transfer or change had not occurred.
 
25.3.3
Each New
 
Lender,
 
by executing
 
the relevant
 
Transfer
 
Certificate, confirms,
 
for the
 
avoidance of
 
doubt, that
 
the
Facility Agent
 
has authority
 
to execute
 
on its
 
behalf any
 
amendment or
 
waiver that
 
has been
 
approved by
 
or on
behalf of the
 
requisite Lender or
 
Lenders in accordance
 
with this Agreement
 
on or prior
 
to the date
 
on which
 
the
Transfer
 
becomes effective
 
in accordance
 
with this
 
Agreement and
 
that it
 
is bound
 
by that
 
decision to
 
the same
extent as the Existing Lender would have been had it remained a Lender.
25.4
Limitation of responsibility of Existing Lenders
25.4.1
Unless expressly agreed
 
to the contrary,
 
an Existing Lender
 
makes no representation
 
or warranty and
 
assumes no
responsibility to a New Lender for:
(a)
the legality,
 
validity,
 
effectiveness, adequacy
 
or enforceability
 
of the
 
Finance Documents,
 
the Transaction
Security or any other documents;
74
(b)
the financial condition of any Obligor or any Security Provider;
(c)
the
 
performance
 
and
 
observance
 
by
 
any
 
Obligor,
 
any
 
other
 
member
 
of
 
the
 
Group,
 
or
 
any
 
other
 
Security
Provider of its obligations under the Finance Documents or any other documents;
 
or
(d)
the accuracy of
 
any statements
 
(whether written or
 
oral) made
 
in or in
 
connection with any
 
Finance Document
or any other document,
and any representations or warranties implied by law are excluded.
25.4.2
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
(a)
has made
 
(and
 
shall continue
 
to make)
 
its own
 
independent investigation
 
and
 
assessment of
 
the financial
condition
 
and
 
affairs
 
of
 
each
 
Obligor
 
and
 
its
 
related
 
entities
 
in
 
connection
 
with
 
its
 
participation
 
in
 
this
Agreement and
 
has not
 
relied exclusively
 
on any
 
information provided
 
to it
 
by the Existing
 
Lender or
 
any
other Finance Party in connection with any Finance Document or the Transaction
 
Security; and
(b)
will continue to
 
make its own
 
independent appraisal of
 
the creditworthiness of
 
each Obligor and
 
its related
entities whilst any amount is or may be outstanding under the Finance Documents
 
or any Commitment is in
force.
25.4.3
Nothing in any Finance Document obliges an Existing Lender to:
(a)
accept a re-transfer from a
 
New Lender of any
 
of the rights and
 
obligations Transferred under this Clause
;
or
(b)
support any
 
losses directly
 
or indirectly
 
incurred by
 
the New Lender
 
by reason
 
of the non-performance
 
by
an Obligor of its obligations under the Finance Documents or otherwise.
25.5
Procedure for transfer
25.5.1
Subject to the conditions set out
 
in Clause
 
(
) and Clause
 
(Other conditions of transfer) a
Transfer
 
is effected
 
in accordance
 
with Clause
 
below when
 
the Facility
 
Agent executes
 
an otherwise
 
duly
completed
 
Transfer
 
Certificate delivered
 
to it
 
by the
 
Existing Lender
 
and
 
the New
 
Lender.
 
The Facility
 
Agent
shall,
 
subject
 
to
 
Clause
 
below,
 
as
 
soon
 
as
 
reasonably
 
practicable
 
after
 
receipt
 
by
 
it
 
of
 
a
 
duly
 
completed
Transfer Certificate appearing on
 
its face to comply with the terms of this Agreement and
 
delivered in accordance
with the terms of this Agreement, execute that Transfer
 
Certificate.
25.5.2
The Facility Agent shall only be
 
obliged to execute a Transfer Certificate delivered to it
 
by the Existing Lender and
the New Lender once it
 
is satisfied it has
 
complied with all necessary
 
"know your customer" or other
 
similar checks
under all applicable laws and regulations in relation to the transfer to such
 
New Lender.
25.5.3
On the Transfer Date:
(a)
the Transfer
 
shall take effect
 
under the Finance
 
Documents so that
 
the
 
rights and/or
 
obligations which
 
are
the
 
subject
 
of
 
the
 
Transfer
 
shall
 
be
 
ceded
 
and
 
delegated
 
by
 
the
 
Existing
 
Lender
 
to
 
the
 
new
 
Lender
 
(the
Transferred
 
Rights and Obligations
);
(b)
each Obligor
 
shall perform
 
their obligations
 
and exercise
 
their rights
 
in relation
 
to the
 
Transferred
 
Rights
and Obligations in favour of or against the New Lender,
 
as the case may be;
 
(c)
the Facility
 
Agent, the
 
Arranger,
 
the New
 
Lender and
 
the other
 
Lenders shall
 
acquire the
 
same rights
 
and
assume the
 
same obligations
 
between themselves
 
and in respect
 
of the
 
Transaction
 
Security as
 
they would
have
 
acquired
 
and
 
assumed
 
had
 
the
 
New
 
Lender
 
been
 
an
 
Original
 
Term
 
Lender
 
with
 
the
 
rights,
 
and/or
obligations comprising the Transferred Rights and
 
Obligations; and
(d)
the Facility Agent,
 
the Arranger
 
and the Existing
 
Lender shall be
 
released from
 
further obligations
 
to each
other,
 
and
 
the
 
Existing
 
Lender
 
shall
 
be
 
released
 
from
 
further
 
obligations
 
to
 
each
 
other
 
Lender
 
under
 
the
Finance Documents to the extent of the Transferred
 
Rights and Obligations; and
75
(e)
the New Lender shall become a Party as a "Lender".
25.6
Copy of Transfer
 
Certificate to Borrower
The
 
Facility
 
Agent
 
shall,
 
as
 
soon
 
as
 
reasonably
 
practicable
 
after
 
it
 
has
 
executed
 
a
 
Transfer
 
Certificate,
 
send
 
to
 
the
Borrower a copy of that Transfer Certificate.
26.
CHANGES TO THE OBLIGORS
26.1
Cessions and delegations by Obligors
No Obligor nor
 
any other Security
 
Provider may cede
 
any of its
 
rights or delegate
 
any of its
 
rights or obligations
 
under
the Finance Documents.
26.2
Additional Guarantors
26.2.1
Subject
 
to
 
compliance
 
with
 
the
 
provisions
 
of
 
Clauses
 
and
),
 
the
Borrower may request that any of its Subsidiaries become a Guarantor.
26.2.2
A member of the Group shall become an Additional Guarantor if:
(a)
the
 
Borrower
 
and
 
the
 
proposed
 
Additional
 
Guarantor
 
deliver
 
to
 
the
 
Facility
 
Agent
 
a
 
duly
 
completed
 
and
executed Accession Letter; and
(b)
the
 
Facility
 
Agent
 
has
 
received
 
all
 
of
 
the
 
documents
 
and
 
other
 
evidence
 
listed
 
in
 
Part
 
II
 
of
(
) in relation
 
to that
 
Additional Guarantor,
 
each in form
 
and substance
 
satisfactory to
the Facility Agent.
26.2.3
The Facility Agent shall notify the Borrower and the Lenders promptly upon being satisfied that it has received (in
form
 
and
 
substance
 
satisfactory
 
to
 
it)
 
all
 
the
 
documents
 
and
 
other
 
evidence
 
listed
 
in
 
Part
 
II
 
of
(
).
26.2.4
Other than
 
to the
 
extent that
 
the Lenders
 
notify the
 
Facility Agent
 
in writing
 
to the
 
contrary before
 
the Facility
Agent gives the
 
notification described in
 
Clause
 
above, the
 
Lenders authorise (but
 
do not
 
require) the Facility
Agent to give that notification.
 
The Facility Agent shall not be liable for any damages,
 
costs or losses whatsoever
as a result of giving any such notification.
26.3
Repetition of Representations
Delivery of an
 
Accession Letter constitutes
 
confirmation by the
 
relevant Subsidiary that
 
the representations and
 
warranties
referred
 
to
 
in
 
Clause
 
(
)
 
are
 
true
 
and
 
correct
 
in
 
relation
 
to
 
it
 
as
 
at
 
the
 
date
 
of
delivery as if made by reference to the facts and circumstances then existing.
76
SECTION 10
THE FINANCE PARTIES
27.
ROLE OF THE FACILITY
 
AGENT, THE ARRANGER
 
AND OTHERS
27.1
Appointment of the Facility Agent
27.1.1
Each of the Arranger
 
and the Lenders appoints
 
the Facility Agent
 
to act as its agent
 
under and in connection
 
with
the
 
Finance
 
Documents
 
(other
 
than,
 
in
 
respect
 
of
 
the
 
GBF
 
Lender
 
only,
 
in
 
connection
 
with
 
the
 
day-to-day
administration of the GBF Documents).
27.1.2
Each
 
of
 
the
 
Arranger
 
and
 
the
 
Lenders
 
authorises
 
the
 
Facility
 
Agent
 
to
 
perform
 
the
 
duties,
 
obligations
 
and
responsibilities and to
 
exercise the rights,
 
powers, authorities and
 
discretions specifically given
 
to the
 
Facility Agent
under or in
 
connection with the
 
Finance Documents
 
together with any
 
other incidental rights,
 
powers, authorities
and discretions.
27.2
Instructions
27.2.1
The Facility Agent shall:
(a)
unless a
 
contrary indication
 
appears in
 
a Finance
 
Document, exercise
 
or refrain
 
from exercising
 
any right,
power,
 
authority or
 
discretion vested
 
in it as
 
Facility Agent
 
in accordance
 
with any
 
instructions given
 
to it
by the Lenders;
(b)
not be
 
liable for
 
any act
 
(or omission)
 
if it
 
acts (or
 
refrains from
 
acting) in
 
accordance with
 
paragraph
above.
27.2.2
The Facility Agent shall be entitled to request instructions, or
 
clarification of any instruction, from the Lenders (or,
if the relevant Finance Document stipulates the matter is
 
a decision for any other Lender or group of Lenders, from
that Lender or
 
group of Lenders) as
 
to whether,
 
and in what manner,
 
it should exercise or
 
refrain from exercising
any right, power, authority or discretion and the Facility Agent may refrain from acting unless and until it receives
any such instructions or clarification that it has requested.
27.2.3
Save in the case of decisions stipulated to be a
 
matter for any other Lender or group of
 
Lenders under the relevant
Finance Document and
 
unless a contrary indication
 
appears in a Finance
 
Document, any instructions
 
given to the
Facility Agent
 
by the
 
Lenders shall
 
override
 
any conflicting
 
instructions
 
given by
 
any other
 
Parties and
 
will be
binding on all Finance Parties.
27.2.4
The Facility Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders
until it has received any indemnification and/or security that it may
 
in its discretion require (which may be greater
in extent than that contained
 
in the Finance Documents and
 
which may include payment
 
in advance) for any cost,
loss or liability which it may incur in complying with those instructions.
27.2.5
In the absence
 
of instructions, the
 
Facility Agent may
 
act (or refrain
 
from acting)
 
as it considers
 
to be in
 
the best
interest of the Lenders.
27.2.6
The Facility Agent is not
 
authorised to act on
 
behalf of a Lender
 
(without first obtaining that
 
Lender's consent) in
any legal or
 
arbitration proceedings relating
 
to any Finance Document.
 
This Clause
 
shall not apply
 
to any
legal or arbitration proceeding relating to the perfection, preservation or protection
 
of rights under the Transaction
Security Documents or enforcement of the Transaction
 
Security or Transaction Security Documents.
27.3
Duties of the Facility Agent
27.3.1
The Facility Agent's duties under the Finance Documents are solely mechanical
 
and administrative in nature.
27.3.2
Subject to Clause
 
below, the
 
Facility Agent shall promptly
 
forward to a Party
 
the original or a copy
 
of any
document which is delivered to the Facility Agent for that Party by any other Party.
27.3.3
Without
 
prejudice
 
to Clause
 
(
), Clause
 
above shall
 
not apply
 
to any
Transfer Certificate.
77
27.3.4
Except where a
 
Finance Document specifically
 
provides otherwise, the
 
Facility Agent is
 
not obliged
 
to review or
check the adequacy,
 
accuracy or completeness of any document it forwards to another Party.
27.3.5
If the Facility Agent receives notice from a Party referring to this Agreement, describing a Default and stating that
the circumstance described is a Default, it shall promptly notify the other
 
Finance Parties.
27.3.6
If the Facility
 
Agent is aware
 
of the non-payment
 
of any principal,
 
interest, commitment fee
 
or other fee
 
payable
to a
 
Finance Party
 
(other than
 
the Facility
 
Agent or
 
the Arranger)
 
under this
 
Agreement, it
 
shall promptly
 
notify
the other Finance Parties.
27.3.7
The Facility Agent shall have only those duties, obligations and
 
responsibilities expressly specified in the Finance
Documents to which it is expressed to be a party (and no others shall be implied).
27.4
Role of the Arranger
Except as specifically provided in the Finance Documents, the Arranger has no obligations
 
of any kind to any other Party
under or in connection with any Finance Document.
27.5
No fiduciary duties
27.5.1
Nothing in
 
any Finance
 
Document constitutes
 
the Facility
 
Agent or
 
the Arranger
 
as a
 
trustee or
 
fiduciary of
 
any
other person.
27.5.2
None
 
of
 
the
 
Facility
 
Agent
 
or
 
the
 
Arranger
 
shall
 
be
 
bound
 
to
 
account
 
to
 
any
 
Lender
 
for
 
any
 
sum
 
or
 
the
 
profit
element of any sum received by it for its own account.
27.6
Business with the Group and Security Providers
The Facility Agent
 
and the Arranger
 
may accept deposits
 
from, lend money
 
to and
 
generally engage in
 
any kind of
 
banking
or other business with any member of the Group, any Obligor and any
 
Security Provider.
27.7
Rights and discretions
27.7.1
The Facility Agent may:
(a)
rely
 
on any
 
representation,
 
communication,
 
notice
 
or
 
document
 
believed
 
by
 
it to
 
be genuine,
 
correct
 
and
appropriately authorised;
(b)
assume that:
(i)
any instructions received by it from the Lenders, any Lenders or
 
any group of Lenders are duly given
in accordance with the terms of the Finance Documents; and
(ii)
unless it has received notice of revocation, that those instructions have not been revoked;
 
and
(c)
rely on a certificate from any person:
(i)
as
 
to
 
any
 
matter
 
of
 
fact
 
or
 
circumstance
 
which
 
might
 
reasonably
 
be
 
expected
 
to
 
be
 
within
 
the
knowledge of that person; or
(ii)
to the effect that such person approves of any particular dealing,
 
transaction, step, action or thing,
as sufficient evidence
 
that that is the case and,
 
in the case of paragraph
 
above, may assume the truth
 
and
accuracy of that certificate.
27.7.2
The Facility Agent
 
may assume (unless
 
it has received
 
notice to the
 
contrary in its
 
capacity as agent
 
for the Lenders)
that:
(a)
no
 
Default
 
has
 
occurred
 
(unless
 
it
 
has
 
actual
 
knowledge
 
of
 
a
 
Default
 
arising
 
under
 
Clause
 
(Non-
payment));
78
(b)
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised;
and
27.7.3
The
 
Facility
 
Agent
 
may
 
engage
 
and
 
pay
 
for
 
the
 
advice
 
or
 
services
 
of
 
any
 
lawyers,
 
accountants,
 
tax
 
advisers,
surveyors or other professional advisers or experts.
27.7.4
Without prejudice
 
to the generality of
 
Clause
 
above or Clause
 
below,
 
the Facility Agent may
 
at any
time engage
 
and pay
 
for the
 
services of
 
any lawyers
 
to act
 
as independent
 
counsel to
 
the Facility
 
Agent (and
 
so
separate from any
 
lawyers instructed by
 
the Lenders) if
 
the Facility Agent in
 
its reasonable opinion
 
deems this to
be desirable.
27.7.5
The Facility Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other
professional
 
advisers or
 
experts (whether
 
obtained by
 
the Facility
 
Agent or
 
by any
 
other Party)
 
and shall
 
not be
liable for any damages, costs or losses to any person, any diminution in
 
value or any liability whatsoever arising as
a result of its so relying.
27.7.6
The Facility
 
Agent may
 
act in relation
 
to the
 
Finance Documents
 
through its
 
officers, employees
 
and agents
 
and
the Facility Agent shall not:
(a)
be liable for any error of judgment made by any such person; or
(b)
be bound to supervise, or
 
be in any way
 
responsible for, any loss incurred by reason of
 
misconduct, omission
or default on the part of any such person,
unless such error or such loss was directly caused by the Facility Agent's gross negligence
 
or wilful misconduct.
27.7.7
Unless a Finance
 
Document expressly provides
 
otherwise the Facility
 
Agent may disclose
 
to any other
 
Party any
information it reasonably believes it has received as agent under this Agreement.
27.7.8
Notwithstanding any
 
other provision of
 
any Finance Document
 
to the contrary,
 
neither the Facility
 
Agent nor the
Arranger is obliged to do or omit to do anything if it would, or might in its reasonable
 
opinion, constitute a breach
of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
27.7.9
Notwithstanding any provision
 
of any
 
Finance Document to
 
the contrary, the Facility
 
Agent is
 
not obliged to
 
expend
or
 
risk
 
its
 
own
 
funds
 
or
 
otherwise
 
incur
 
any
 
financial
 
liability
 
in
 
the
 
performance
 
of
 
its
 
duties,
 
obligations
 
or
responsibilities
 
or
 
the
 
exercise
 
of
 
any
 
right,
 
power,
 
authority
 
or
 
discretion
 
if
 
it
 
has
 
grounds
 
for
 
believing
 
the
repayment
 
of
 
such
 
funds
 
or
 
adequate
 
indemnity
 
against,
 
or
 
security
 
for,
 
such
 
risk
 
or
 
liability
 
is
 
not
 
reasonably
assured to it.
27.8
Responsibility for documentation
27.8.1
None of the Facility Agent or the Arranger is responsible or liable for:
(a)
the adequacy, accuracy or completeness of any information (whether oral
 
or written) supplied by the
 
Facility
Agent, the Arranger, an Obligor
 
or any other Security Provider or any other person
 
in or in connection with
any Finance Document or the transactions
 
contemplated in the Finance Documents
 
or any other agreement,
arrangement or document entered into, made or executed in anticipation of, under or in connection with any
Finance Document; or
(b)
the legality, validity,
 
effectiveness, adequacy or enforceability of any
 
Finance Document or the Transaction
Security or any other agreement, arrangement or
 
document entered into, made or executed in
 
anticipation of,
under or in connection with any Finance Document or the Transaction
 
Security; or
(c)
any determination
 
as to
 
whether any
 
information provided
 
or to
 
be provided
 
to any
 
Finance Party
 
is non-
public information the use
 
of which may be regulated
 
or prohibited by applicable
 
law or regulation relating
to insider dealing or otherwise.
27.9
No duty to monitor
27.9.1
The Facility Agent shall not be bound to enquire:
79
(a)
whether or not any Default has occurred;
(b)
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or
(c)
whether any other event specified in any Finance Document has occurred.
27.10
Exclusion of liability
27.10.1
Without
 
limiting Clause
 
below (and
 
without prejudice
 
to any
 
other provision
 
of any
 
Finance Document
excluding or limiting the liability of the Facility Agent,
 
the Facility Agent, will not be liable for:
(a)
any damages, costs or losses to any person, any
 
diminution in value, or any liability whatsoever arising as a
result of taking
 
or not
 
taking any
 
action under or
 
in connection
 
with any Finance
 
Document or
 
the Transaction
Security, unless directly
 
caused by its gross negligence or wilful misconduct;
(b)
exercising, or not
 
exercising, any right,
 
power, authority
 
or discretion given
 
to it by,
 
or in connection
 
with,
any Finance Document, the Transaction
 
Security or any other agreement, arrangement
 
or document entered
into,
 
made
 
or
 
executed
 
in
 
anticipation
 
of,
 
under
 
or
 
in
 
connection
 
with,
 
any
 
Finance
 
Document
 
or
 
the
Transaction Security; or
(c)
without
 
prejudice
 
to
 
the
 
generality
 
of
 
paragraphs
 
and
 
above,
 
any
 
damages,
 
costs
 
or
 
losses
 
to
 
any
person, any diminution in value or any liability whatsoever arising as a result of:
(i)
any act, event or circumstance not reasonably within its control; or
(ii)
the general risks of investment in, or the holding of assets in, any jurisdiction,
including (in each case and without limitation) such damages, costs, losses, diminution
 
in value or liability arising
as a
 
result of:
 
nationalisation, expropriation
 
or other
 
governmental actions;
 
any regulation,
 
currency restriction,
devaluation or
 
fluctuation; market
 
conditions affecting
 
the execution
 
or settlement of
 
transactions or the
 
value of
assets
 
(including
 
any
 
Disruption
 
Event);
 
breakdown,
 
failure
 
or
 
malfunction
 
of
 
any
 
third
 
party
 
transport,
telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or
revolution; or strikes or industrial action.
27.10.2
No Party
 
(other than
 
the Facility
 
Agent) may
 
take any
 
proceedings against
 
any officer,
 
employee or
 
agent of
 
the
Facility Agent, in respect of any claim it might have against the Facility Agent or in respect of any act or omission
of any kind
 
by that officer,
 
employee or agent
 
in relation to
 
any Finance Document
 
and any officer,
 
employee or
agent of the Facility Agent may rely on this Clause, subject to Clause
 
(Third party rights).
27.10.3
The Facility Agent
 
will not be
 
liable for
 
any delay
 
(or any related
 
consequences) in
 
crediting an account
 
with an
amount required under the
 
Finance Documents to be
 
paid by the Facility Agent
 
if the Facility Agent
 
has taken all
necessary steps
 
as soon
 
as reasonably
 
practicable to
 
comply with
 
the regulations
 
or operating
 
procedures of
 
any
recognised clearing or settlement system used by the Facility Agent for that purpose.
27.10.4
Nothing in this Agreement shall oblige the Facility Agent or the Arranger to carry
 
out:
(a)
any "know your customer" or other checks in relation to any person; or
(b)
any check on the extent to which any
 
transaction contemplated by this Agreement might be unlawful for any
Lender or for any Affiliate of any Lender,
on behalf of
 
any Lender and
 
each Lender confirms
 
to the
 
Facility Agent and
 
the Arranger that
 
it is solely
 
responsible
for any such
 
checks it is required
 
to carry out and
 
that it may not
 
rely on any statement
 
in relation to such
 
checks
made by the Facility Agent or the Arranger.
27.10.5
Without
 
prejudice to
 
any provision
 
of any
 
Finance Document
 
excluding or
 
limiting the
 
Facility Agent's liability,
any liability
 
of the
 
Facility Agent
 
arising under
 
or in
 
connection with
 
any Finance
 
Document or
 
the Transaction
Security shall
 
be limited
 
to the
 
amount of
 
actual loss
 
which has
 
been finally
 
judicially determined
 
to have
 
been
suffered (as determined
 
by reference to
 
the date of
 
default of the
 
Facility Agent or,
 
if later,
 
the date on
 
which the
loss arises
 
as a
 
result of
 
such default) but
 
without reference
 
to any
 
special conditions
 
or circumstances
 
known to
80
the Facility Agent at any time which increase the amount of that loss.
 
In no event shall the Facility Agent be liable
for
 
any loss
 
of profits,
 
goodwill, reputation,
 
business opportunity
 
or anticipated
 
saving, or
 
for special,
 
punitive,
indirect or
 
consequential damages,
 
whether or
 
not the
 
Facility Agent
 
has been
 
advised of
 
the possibility
 
of such
loss or damages.
27.11
Lenders' indemnity to the Facility Agent
27.11.1
Each Lender shall (in proportion to its share
 
of the Total Commitments or, if the Total Commitments are then zero,
to its share of
 
the Total
 
Commitments immediately
 
prior to their
 
reduction to zero)
 
indemnify the Facility
 
Agent,
within three Business Days of demand, against any cost,
 
loss or liability incurred by the Facility Agent (otherwise
than by reason of the Facility Agent's gross negligence or wilful misconduct)
 
in acting as Facility Agent under the
Finance Documents (unless
 
the Facility
 
Agent has been
 
reimbursed by an
 
Obligor pursuant
 
to a
 
Finance Document).
27.11.2
Subject
 
to
 
Clause
 
below,
 
the
 
Borrower
 
shall
 
immediately
 
on
 
demand
 
reimburse
 
any
 
Lender
 
for
 
any
payment that Lender makes to the Facility Agent pursuant to Clause
 
above.
27.11.3
Clause
 
above shall not
 
apply to the
 
extent that the
 
indemnity payment in respect
 
of which the
 
Lender claims
reimbursement relates to a liability of the Facility Agent to an Obligor.
27.12
Resignation of the Facility Agent
27.12.1
The Facility Agent
 
may resign and
 
appoint one of
 
its Affiliates acting
 
through an office in
 
South Africa as
 
successor
by giving notice to the Lenders and the Borrower.
27.12.2
Alternatively the
 
Facility Agent
 
may resign
 
by giving
 
30 days' notice
 
to the
 
Lenders and
 
the Borrower,
 
in which
case the Lenders (after consultation with the Borrower) may appoint a successor
 
Facility Agent.
27.12.3
If the
 
Lenders have
 
not appointed
 
a successor
 
Facility Agent
 
in accordance
 
with Clause
 
above within
 
20
days after
 
notice of resignation
 
was given, the
 
retiring Facility Agent
 
(after consultation
 
with the Borrower)
 
may
appoint a successor Facility Agent (acting through an office in South
 
Africa).
27.12.4
The retiring
 
Facility Agent
 
shall, at its
 
own cost,
 
make available to
 
the successor
 
Facility Agent such
 
documents
and records
 
and provide
 
such assistance as
 
the successor
 
Facility Agent
 
may reasonably
 
request for the
 
purposes
of performing its functions as Facility Agent under the Finance Documents.
 
27.12.5
The Facility Agent's resignation notice shall only take effect
 
upon the appointment of a successor.
27.12.6
Upon the appointment of a successor, the retiring Facility Agent shall be discharged from any further obligation in
respect of the Finance Documents (other than its obligations under Clause
 
above) but shall remain entitled
to the
 
benefit
 
of Clause
 
(Indemnity
 
to the
 
Facility Agent)
 
and
 
this Clause
 
(and
 
any
 
agency
 
fees for
 
the
account of the retiring Facility
 
Agent shall cease to
 
accrue from (and shall be
 
payable on) that date).
 
Any successor
and each
 
of the
 
other Parties
 
shall have
 
the same
 
rights and
 
obligations amongst
 
themselves as
 
they would
 
have
had if such successor had been an original Party.
27.12.7
The Facility
 
Agent shall
 
resign in
 
accordance with
 
Clause
 
above (and,
 
to the
 
extent applicable,
 
shall use
reasonable endeavours
 
to appoint
 
a successor
 
Facility Agent
 
pursuant to
 
Clause
 
above) if
 
on or
 
after the
date which
 
is three
 
months before
 
the earliest
 
FATCA
 
Application
 
Date relating
 
to any
 
payment
 
to the
 
Facility
Agent under the Finance Documents, either:
(a)
the Facility
 
Agent fails
 
to respond
 
to a request
 
under Clause
 
(FATCA
 
information) and
 
the Borrower
or a
 
Lender reasonably
 
believes that
 
the Facility
 
Agent
 
will not
 
be (or
 
will have
 
ceased to
 
be) a
 
FATCA
Exempt Party on or after that FATCA
 
Application Date;
(b)
the information supplied by the Facility
 
Agent pursuant to Clause
 
(FATCA
 
information) indicates that
the Facility
 
Agent will
 
not be (or
 
will have
 
ceased to be)
 
a FATCA
 
Exempt Party
 
on or
 
after that
 
FATCA
Application Date; or
(c)
the Facility
 
Agent notifies
 
the Borrower
 
and the
 
Lenders that
 
the Facility
 
Agent will
 
not be
 
(or will
 
have
ceased to be) a FATCA
 
Exempt Party on or after that FATCA
 
Application Date;
81
and (in
 
each case)
 
the Borrower
 
or a Lender
 
reasonably believes
 
that a Party
 
will be required
 
to make a
 
FATCA
Deduction that would not be required if the Facility Agent were a FATCA
 
Exempt Party, and the Borrower or
 
that
Lender, by notice to the Facility Agent, requires
 
it to resign.
27.13
Replacement of the Facility Agent
27.13.1
After consultation with the Borrower,
 
the Lenders may, by giving 30
 
days' notice to the Facility Agent replace the
Facility Agent by appointing a successor Facility Agent (acting through an office
 
in South Africa).
27.13.2
The retiring
 
Facility Agent
 
shall (at
 
the expense
 
of the
 
Lenders) make
 
available to
 
the successor
 
Facility Agent
such documents
 
and records
 
and provide
 
such assistance
 
as the
 
successor Facility
 
Agent may
 
reasonably request
for the purposes of performing its functions as Facility Agent under the Finance
 
Documents.
27.13.3
The
 
appointment
 
of
 
the
 
successor
 
Facility
 
Agent
 
shall
 
take
 
effect
 
on
 
the
 
date
 
specified
 
in
 
the
 
notice
 
from
 
the
Lenders to the retiring
 
Facility Agent.
 
As from this date, the
 
retiring Facility Agent shall
 
be discharged from
 
any
further obligation in respect of the Finance Documents (other than its obligations under
 
Clause
 
above) but
shall remain
 
entitled to
 
the benefit
 
of Clause
 
(Indemnity to
 
the Facility
 
Agent) and
 
this Clause
 
(and any
agency fees for the account
 
of the retiring Facility Agent
 
shall cease to accrue from (and
 
shall be payable on) that
date).
27.13.4
Any
 
successor
 
Facility
 
Agent
 
and
 
each of
 
the
 
other
 
Parties
 
shall
 
have
 
the
 
same rights
 
and
 
obligations
 
amongst
themselves as they would have had if such successor had been an original Party.
27.14
Confidentiality
27.14.1
In acting as agent for the Finance Parties, the
 
Facility Agent shall be regarded as acting through its agency division
which shall be treated as a separate entity from any other of its divisions or departments.
27.14.2
If information is received by another division or department of the Facility Agent, it may be treated as confidential
to that division or department and the Facility Agent shall not be deemed
 
to have notice of it.
27.15
Relationship with the Lenders
27.15.1
The Facility Agent may
 
treat the person shown
 
in its records as Lender
 
at the opening of business
 
(in the place of
the Facility Agent's principal office as notified to the Finance Parties from
 
time to time) as the Lender:
(a)
entitled to or liable for any payment due under any Finance Document on that
 
day; and
(b)
entitled to
 
receive and
 
act upon
 
any notice,
 
request, document
 
or communication
 
or make
 
any decision
 
or
determination under any Finance Document made or delivered
 
on that day,
unless it has received not less than five Business Days' prior notice from that Lender
 
to the contrary in accordance
with the terms of this Agreement.
27.15.2
Any
 
Lender
 
may
 
by
 
notice
 
to
 
the
 
Facility
 
Agent
 
appoint
 
a
 
person
 
to
 
receive
 
on
 
its
 
behalf
 
all
 
notices,
communications,
 
information
 
and
 
documents
 
to
 
be
 
made
 
or
 
despatched
 
to
 
that
 
Lender
 
under
 
the
 
Finance
Documents.
 
Such notice
 
shall contain
 
the address,
 
fax number
 
and (where
 
communication by
 
electronic mail
 
or
other electronic means is permitted under Clause
 
(Electronic communication)) electronic mail address and/or
any
 
other
 
information
 
required
 
to
 
enable
 
the
 
transmission
 
of
 
information
 
by
 
that
 
means (and,
 
in
 
each
 
case,
 
the
department or officer,
 
if any, for
 
whose attention communication is to
 
be made) and be treated as a
 
notification of
a substitute
 
address, fax
 
number,
 
electronic mail
 
address (or
 
such other
 
information), department
 
and officer
 
by
that Lender for the purposes of Clause
 
(Addresses) and Clause
 
(Electronic communication) and the
Facility
 
Agent
 
shall
 
be
 
entitled
 
to
 
treat
 
such
 
person
 
as
 
the
 
person
 
entitled
 
to
 
receive
 
all
 
such
 
notices,
communications, information and documents
 
as though that person were that Lender.
27.16
Credit appraisal by the Lenders
 
27.16.1
Without
 
affecting
 
the responsibility
 
of any
 
Obligor for
 
information supplied
 
by it
 
or on
 
its behalf
 
in connection
with any Finance Document, each Lender confirms to the
 
Facility Agent and the Arranger that it has
 
been, and will
82
continue to
 
be, solely
 
responsible for
 
making its
 
own independent
 
appraisal and
 
investigation of
 
all risks
 
arising
under or in connection with any Finance Document including but not limited
 
to:
(a)
the
 
financial
 
condition,
 
status
 
and
 
nature
 
of
 
each
 
member
 
of
 
the
 
Group,
 
each
 
Obligor
 
and
 
each
 
Security
Provider;
(b)
the legality,
 
validity,
 
effectiveness, adequacy
 
or enforceability
 
of any
 
Finance Document,
 
the Transaction
Security and any
 
other agreement, arrangement
 
or document entered
 
into, made or executed
 
in anticipation
of, under or in connection with any Finance Document or the Transaction
 
Security;
(c)
whether that Lender has
 
recourse, and the nature
 
and extent of that
 
recourse, against any Party
 
or any of its
respective
 
assets
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document,
 
the
 
Transaction
 
Security,
 
the
transactions
 
contemplated
 
by
 
the
 
Finance
 
Documents
 
or
 
any
 
other
 
agreement,
 
arrangement
 
or
 
document
entered into, made or executed in anticipation of,
 
under or in connection with any Finance Document or the
Transaction Security;
(d)
the adequacy,
 
accuracy or completeness of any
 
other information provided by
 
the Facility Agent, any Party
or by any other person under or
 
in connection with any Finance Document, the transactions contemplated by
any Finance Document or any other agreement, arrangement or document entered into,
 
made or executed in
anticipation of, under or in connection with any Finance Document; and
(e)
the right
 
or title of
 
any person
 
in or
 
to, or the
 
value or
 
sufficiency of
 
any part
 
of the Secured
 
Property,
 
the
priority of any of the Transaction Security or the
 
existence of any Security affecting the Secured Property.
27.17
Facility Agent's management time
At any
 
time
 
following
 
a
 
cession
 
and
 
delegation
 
by the
 
Original
 
Lender
 
in
 
accordance
 
with
 
Clause
 
(
) and provided that
 
an Event of Default
 
is then continuing, any
 
amount payable to the
 
Facility
Agent under Clause
 
(Indemnity to the
 
Facility Agent), Clause
 
(Costs and expenses)
 
and Clause
 
(Lenders'
indemnity to the Facility
 
Agent) shall include
 
the cost of
 
utilising the Facility
 
Agent's management time or
 
other resources
and will
 
be calculated on
 
the basis
 
of such reasonable
 
daily or
 
hourly rates as
 
the Facility
 
Agent may notify
 
to the
 
Borrower
and the Lenders, and is in addition to any fee paid or payable to the Facility Agent
 
under Clause
 
(Fees).
27.18
Deduction from amounts payable by the Facility Agent
If any
 
Party owes
 
an amount
 
to the
 
Facility Agent
 
under the
 
Finance Documents
 
the Facility
 
Agent may,
 
after giving
notice to that Party, deduct an
 
amount not exceeding that amount
 
from any payment to
 
that Party which the
 
Facility Agent
would
 
otherwise
 
be
 
obliged
 
to
 
make
 
under
 
the
 
Finance
 
Documents
 
and
 
apply
 
the
 
amount
 
deducted
 
in
 
or
 
towards
satisfaction
 
of
 
the
 
amount
 
owed.
 
For
 
the
 
purposes
 
of
 
the Finance
 
Documents
 
that
 
Party
 
shall
 
be
 
regarded
 
as
 
having
received any amount so deducted.
28.
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
28.1
interfere with the right of any Finance Party to arrange its affairs (tax
 
or otherwise) in whatever manner it thinks fit;
28.2
oblige any
 
Finance Party
 
to investigate
 
or claim
 
any credit,
 
relief, remission
 
or repayment
 
available to
 
it or
 
the extent,
order and manner of any claim; or
28.3
oblige
 
any
 
Finance
 
Party
 
to
 
disclose
 
any
 
information
 
relating
 
to
 
its
 
affairs
 
(tax
 
or
 
otherwise)
 
or
 
any
 
computations
 
in
respect of Tax.
29.
SHARING AMONG THE FINANCE PARTIES
29.1
Payments to Finance Parties
If
 
a
 
Finance
 
Party
 
(a
Recovering
 
Finance
 
Party
)
 
receives
 
or
 
recovers
 
any
 
amount
 
from
 
an
 
Obligor
 
other
 
than
 
in
accordance with Clause
) (a
Recovered Amount
) and applies
 
that amount to
 
a payment due
 
under
the Finance Documents then:
83
29.1.1
the Recovering
 
Finance Party
 
shall, within
 
three Business
 
Days, notify
 
details of
 
the receipt
 
or recovery,
 
to the
Facility Agent;
29.1.2
the Facility
 
Agent shall determine
 
whether the receipt
 
or recovery is
 
in excess
 
of the
 
amount the
 
Recovering Finance
Party would have been paid
 
had the receipt or
 
recovery been received or made
 
by the Facility Agent
 
and distributed
in accordance with Clause
 
((
), without taking account of any Tax
 
which would be imposed
on the Facility Agent in relation to the receipt, recovery or distribution; and
29.1.3
the Recovering Finance Party
 
shall, within three Business
 
Days of demand by
 
the Facility Agent, pay
 
to the Facility
Agent
 
an amount
 
(the
Sharing Payment
) equal
 
to such
 
receipt or
 
recovery
 
less any
 
amount which
 
the Facility
Agent
 
determines may
 
be retained
 
by the
 
Recovering
 
Finance Party
 
as its
 
share of
 
any payment
 
to be
 
made, in
accordance with Clause
 
(Partial payments).
29.2
Redistribution of payments
The Facility Agent shall treat the Sharing Payment as if it had been paid by the
 
relevant Obligor and distribute it between
the
 
Finance
 
Parties
 
(other
 
than
 
the
 
Recovering
 
Finance
 
Party)
 
(the
Sharing
 
Finance
 
Parties
)
 
in
 
accordance
 
with
Clause
 
(Partial payments) towards the obligations of that Obligors to the Sharing Finance Parties.
29.3
Recovering Finance Party's rights
On
 
a
 
distribution
 
by
 
the
 
Facility
 
Agent
 
under
 
Clause
 
(Redistribution
 
of
 
payments)
 
of
 
a
 
payment
 
received
 
by
 
a
Recovering Finance Party from an
 
Obligor, as between the relevant
 
Obligor and the Recovering
 
Finance Party, an amount
of the Recovered Amount equal to the Sharing Payment will be treated as not having
 
been paid by the that Obligor.
29.4
Reversal of redistribution
29.5
If any part of the Sharing Payment received or recovered by
 
a Recovering Finance Party becomes repayable and is repaid
by that Recovering Finance Party,
 
then:
29.5.1
each Sharing Finance
 
Party shall, upon
 
request of the
 
Facility Agent, pay
 
to the Facility Agent
 
for the account
 
of
that Recovering Finance Party an
 
amount equal to the
 
appropriate part of its
 
share of the Sharing
 
Payment (together
with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the
Sharing Payment which that Recovering Finance Party is required to pay)
 
(the
Redistributed Amount
); and
29.5.2
as
 
between
 
the
 
relevant
 
Obligor
 
and
 
each
 
relevant
 
Sharing
 
Finance
 
Party,
 
an
 
amount
 
equal
 
to
 
the
 
relevant
Redistributed Amount will be treated as not having been paid by that Obligor.
29.6
Exceptions
29.6.1
This Clause
 
shall not apply
 
to the extent
 
that the Recovering Finance
 
Party would not,
 
after making any
 
payment
pursuant to this Clause, have a valid and enforceable claim against the relevant
 
Obligor.
29.6.2
A Recovering Finance Party is
 
not obliged to share with
 
any other Finance Party any
 
amount which the Recovering
Finance Party has received or recovered as a result of taking legal or arbitration
 
proceedings, if:
(a)
it notified the other Finance Party of the legal or arbitration proceedings; and
(b)
the other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not
do so as soon as
 
reasonably practicable having received
 
notice and did not take
 
separate legal or arbitration
proceedings.
84
SECTION 11
ADMINISTRATION
30.
PAYMENT
 
MECHANICS
30.1
Payments to the Facility Agent
30.1.1
On each
 
date on
 
which an
 
Obligor or
 
a Lender
 
is required
 
to make
 
a payment
 
under a
 
Finance Document
 
(other
than
 
a
 
GBF
 
Document),
 
that
 
Obligor
 
or
 
Lender
 
shall
 
make
 
the
 
same
 
available
 
to
 
the
 
Facility
 
Agent
 
(unless
 
a
contrary indication appears in a Finance Document)
 
in ZAR for value by no later than 12h00 (Johannesburg
 
time)
on the due
 
date at the
 
time and in
 
such funds specified
 
by the Facility
 
Agent by
 
way of a
 
funds flow
 
schedule or
otherwise.
30.1.2
Payment shall be made to the following account of the Facility Agent:
Bank:
FirstRand Bank Limited
Account name:
RMB Domestic Money Market Account
Account number:
XXX
Branch code:
255005
Reference:
IBDZHZCC
or such other account in South Africa with such bank as the Facility Agent specifies.
30.2
Distributions by the Facility Agent
Each payment received by the
 
Facility Agent under the Finance
 
Documents for another Party shall,
 
subject to Clause
(
) and Clause
 
(
) be made available by the Facility Agent as soon as practicable
after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender), to such
account as
 
that Party
 
may notify
 
to the
 
Facility Agent by
 
not less than
 
five Business
 
Days' notice with
 
a bank
 
in South
Africa in writing.
30.3
Distributions to an Obligor
The Facility
 
Agent may
 
(with the
 
consent of
 
the Obligor
 
or in
 
accordance with
 
Clause
 
(Set-Off)) apply
 
any amount
received by it for that Obligor in or towards
 
payment (on the date and in the currency
 
and funds of receipt) of any amount
due from
 
that Obligor
 
under the Finance
 
Documents or
 
in or towards
 
purchase of
 
any amount of
 
any currency
 
to be so
applied.
30.4
Clawback
 
30.4.1
Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party, the Facility Agent
is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it
has been able to establish to its satisfaction that it has actually received
 
that sum.
30.4.2
If the Facility
 
Agent pays
 
an amount to
 
another Party and
 
it proves to
 
be the case
 
that the Facility
 
Agent had
 
not
actually
 
received
 
that
 
amount,
 
then
 
the
 
Party
 
to
 
whom
 
that
 
amount
 
(or
 
the
 
proceeds
 
of
 
any
 
related
 
exchange
contract) was paid
 
by the
 
Facility Agent shall
 
on demand refund
 
the same
 
to the
 
Facility Agent
 
together with interest
on that
 
amount from
 
the date
 
of payment
 
to the
 
date of
 
receipt by
 
the Facility
 
Agent, calculated
 
by the
 
Facility
Agent to reflect its cost of funds.
30.5
Partial payments
30.5.1
If the Facility Agent receives a payment for application against amounts due in respect of any Finance Documents
that is insufficient to
 
discharge all the
 
amounts then due
 
and payable by
 
an Obligor under
 
those Finance Documents,
the
 
Facility
 
Agent
 
shall
 
apply
 
that
 
payment
 
towards
 
the
 
obligations
 
of
 
the
 
that
 
Obligor
 
under
 
the
 
Finance
Documents in the following order:
85
(a)
first
, in
 
or towards
 
payment pro
 
rata of
 
any unpaid
 
amount owing
 
to the
 
Facility Agent
 
under the
 
Finance
Documents;
(b)
secondly
, in or
 
towards payment
 
pro rata
 
of any accrued
 
interest, fee or
 
commission due
 
but unpaid
 
under
those Finance Documents;
(c)
thirdly
, in or towards payment
 
pro rata of any principal
 
due but unpaid under those
 
Finance Documents; and
(d)
fourthly
, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
30.5.2
The
 
Facility
 
Agent
 
shall,
 
if
 
so
 
directed
 
by
 
the Lenders,
 
vary
 
the
 
order
 
set out
 
in
 
Clauses
 
to
above.
30.5.3
Clauses
 
and
 
above will override any appropriation made by an Obligor.
30.6
Set-off by the Obligors
All payments to be made by an Obligor under the Finance
 
Documents shall be calculated and be made without
 
(and free
and clear of any deduction for) set-off or counterclaim.
30.7
Business Days
30.7.1
Any payment under
 
the Finance Documents
 
which is due to
 
be made on a
 
day that is not
 
a Business Day shall
 
be
made on the next Business Day in the
 
same calendar month (if there is one)
 
or the preceding Business Day (if there
is not).
30.7.2
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is
payable on the principal or Unpaid Sum at the rate payable on the original due date.
30.8
Currency of account
30.8.1
Subject to Clauses
 
and
 
below, ZAR is the currency of account and payment for any sum due from an
Obligor under any Finance Document.
30.8.2
Each payment in respect of costs, expenses or Taxes
 
shall be made in the currency in which the costs, expenses or
Taxes are
 
incurred, provided that the Facility
 
Agent shall notify the Borrower
 
should there be any costs, expenses
or Taxes incurred
 
in a currency other than ZAR.
30.8.3
Any amount expressed to be payable in a currency other than ZAR shall be paid in
 
that other currency.
30.9
Disruption to payment systems etc.
If the Facility
 
Agent determines (in
 
its discretion) that
 
a Disruption Event
 
has occurred or
 
the Facility Agent
 
is notified
by the Borrower that a Disruption Event has occurred:
30.9.1
the Facility Agent may,
 
and shall if requested to
 
do so by the Borrower,
 
consult with the Borrower with
 
a view to
agreeing with the
 
Borrower such changes to
 
the operation or administration
 
of the Facilities as
 
the Facility Agent
may deem necessary in the circumstances;
30.9.2
the
 
Facility
 
Agent
 
shall
 
not
 
be
 
obliged
 
to
 
consult
 
with
 
the
 
Borrower
 
in
 
relation
 
to
 
any
 
changes
 
mentioned
 
in
Clause
 
above if, in its
 
opinion, it is not practicable
 
to do so in
 
the circumstances and, in any
 
event, shall have
no obligation to agree to such changes;
30.9.3
the
 
Facility
 
Agent
 
may
 
consult
 
with
 
the
 
Finance
 
Parties
 
in
 
relation
 
to
 
any
 
changes
 
mentioned
 
in
 
Clause
above but shall not be obliged to do so if, in its opinion, it is not practicable to do
 
so in the circumstances;
30.9.4
any such changes agreed upon by the Facility Agent and
 
the Borrower shall (whether or not it is
 
finally determined
that a
 
Disruption Event
 
has occurred)
 
be binding
 
upon the
 
Parties as
 
an amendment
 
to (or,
 
as the
 
case may
 
be,
waiver
 
of)
 
the terms
 
of
 
the Finance
 
Documents
 
notwithstanding
 
the provisions
 
of
 
Clause
 
(
);
86
30.9.5
the Facility Agent shall not be liable for any
 
damages, costs or losses to any person, any diminution in
 
value or any
liability whatsoever (including, without
 
limitation for negligence,
 
gross negligence or
 
any other category
 
of liability
whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or
failing to take, any actions pursuant to or in connection with this Clause
; and
30.9.6
the Facility Agent shall notify the Finance Parties of all changes agreed pursuant
 
to Clause
 
above.
31.
SET-OFF
A Finance Party
 
may set
 
off any matured
 
obligation due from
 
an Obligor under
 
the Finance
 
Documents (to the
 
extent beneficially
owned by that Finance Party) against any matured obligation owed by
 
that Finance Party to that Obligor, regardless of the place
of payment,
 
booking branch
 
or currency
 
of either
 
obligation.
 
If the
 
obligations are
 
in different
 
currencies, the
 
Finance Party
may convert either obligation at a market rate of exchange in its usual course
 
of business for the purpose of the set-off.
32.
NOTICES
32.1
Communications in writing
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless
otherwise stated, may be made by fax or letter.
32.2
Addresses
32.2.1
The address and fax number (and the department or officer,
 
if any, for whose attention the communication
 
is to be
made) of each Party for
 
any communication or document
 
to be made or delivered
 
under or in connection
 
with the
Finance Documents is:
(a)
in the case of the Obligors:
Address:
4 Harris Road
Sandton
Johannesburg
Gauteng
2196
Email:
XXX
For the attention of:
Steven Heilbron
(b)
in the case of the Facility Agent:
Address:
1 Merchant Place
14th Floor
Cnr Fredman Drive and Rivonia Road
Sandton, 2196
Email:
XXX
For the attention of:
Theresa Rheeder
(c)
in the case of the Arranger:
87
Address:
1 Merchant Place
14th Floor
Cnr Fredman Drive and Rivonia Road
Sandton, 2196
Email:
XXX
For the attention of:
Head
 
of
 
Transaction
 
Management
 
-
 
Investment
 
Banking
Division
(d)
in the case of the GBF Lender:
Address:
1 Merchant Place
14th Floor
Cnr Fredman Drive and Rivonia Road
Sandton, 2196
Email:
XXX
For the attention of:
Head
 
of
 
Transaction
 
Management
 
-
 
Investment
 
Banking
Division
(e)
in the case of each Original Term Lender,
 
the address and other details specified opposite its name in Part II
of
 
(
).
in the case of any other Lender, that notified in writing to the Facility Agent on or prior to the date on which
it becomes a Party,
or any substitute address,
 
fax number or department
 
or officer as the
 
Party may notify to
 
the Facility Agent (or
 
the Facility
Agent may
 
notify to
 
the other
 
Parties, if
 
a change
 
is made
 
by the
 
Facility Agent)
 
by not
 
less than
 
five Business
 
Days'
notice.
32.3
Domicilia
32.3.1
Each of the
 
Parties chooses its
 
physical address provided
 
under or in
 
connection with Clause
 
(
) as
its domicilium
 
citandi et
 
executandi at
 
which documents
 
in legal
 
proceedings in
 
connection with
 
this Agreement
or any other Finance Document may be served.
32.3.2
Any Party may
 
by written notice
 
to the other
 
Parties change its
 
domicilium from
 
time to time
 
to another address,
not being a
 
post office box or
 
a poste restante,
 
in South Africa,
 
provided that any
 
such change shall
 
only be effective
on the fourteenth day after deemed receipt of the notice by the other Parties pursuant to
 
Clause
 
(
).
 
32.4
Delivery
32.4.1
Any
 
communication
 
or
 
document
 
made
 
or
 
delivered
 
by
 
one
 
person
 
to
 
another
 
under
 
or
 
in
 
connection
 
with
 
the
Finance Documents will only
 
be effective when
 
received by the recipient and,
 
unless the contrary is
 
proved, shall
be deemed to be received:
(a)
if
 
by
 
way
 
of
 
fax,
 
be
 
deemed
 
to
 
have
 
been
 
received
 
on
 
the
 
first
 
Business
 
Day
 
following
 
the
 
date
 
of
transmission provided that the fax is received in legible form;
 
(b)
if delivered by hand, be deemed to have been received at the time of delivery; or
(c)
if by
 
way of
 
courier service,
 
be deemed
 
to have
 
been received
 
on the
 
seventh Business
 
Day following
 
the
date of such sending,
and,
 
if
 
a
 
particular
 
department
 
or
 
officer
 
is
 
specified
 
as
 
part
 
of
 
its
 
address
 
details
 
provided
 
under
 
Clause
(Addresses), if addressed to that department or officer.
88
32.4.2
Any communication or document to
 
be made or delivered to
 
the Facility Agent will
 
be effective only when actually
received by the Facility Agent and then only if it is expressly
 
marked for the attention of the department or officer
identified with
 
the Facility Agent's
 
signature below
 
(or any substitute
 
department or
 
officer as the
 
Facility Agent
shall specify for this purpose).
32.4.3
All notices from or to the Obligors shall be sent through the Facility Agent.
32.4.4
Any communication
 
or document
 
which
 
becomes
 
effective,
 
in accordance
 
with Clauses
 
to
 
above,
after 17h00. in the place of receipt shall be deemed only to become effective
 
on the following day.
32.5
Notification of address and fax number
Promptly upon receipt of notification of an address or fax number or change of address or fax number pursuant to Clause
 
(Addresses) or changing its own address
 
or fax number, the Facility Agent shall notify the
 
other Parties.
32.6
Electronic communication
32.6.1
Any communication to be made between any two Parties under or in connection with the Finance Documents may
be made by electronic mail or other
 
electronic means (including, without limitation,
 
by way of posting to a secure
website) if those two Parties:
(a)
notify each other in
 
writing of their electronic
 
mail address and/or any
 
other information required
 
to enable
the transmission of information by that means; and
(b)
notify each other of
 
any change to their address
 
or any other such information
 
supplied by them by not
 
less
than five Business Days' notice.
32.6.2
Any such
 
electronic communication
 
as specified
 
in Clause
 
above to
 
be made
 
between the
 
Obligors and
 
a
Finance Party may only be made in that
 
way to the extent that those
 
two Parties agree that, unless and until
 
notified
to the contrary,
 
this is to be an accepted form of communication.
32.6.3
Any
 
such
 
electronic
 
communication
 
as specified
 
in
 
Clause
 
above
 
made
 
between any
 
two
 
Parties
 
will be
effective
 
only
 
when
 
actually
 
received
 
(or
 
made
 
available)
 
in
 
readable
 
form
 
and
 
in
 
the
 
case
 
of
 
any
 
electronic
communication made by a Party to the Facility Agent only if it is addressed in such a manner as the Facility Agent
shall specify for this purpose.
32.6.4
Any electronic communication
 
which becomes effective,
 
in accordance with
 
Clause
 
above, after 17h00.
 
in
the place in which the
 
Party to whom the relevant
 
communication is sent or made
 
available has its address for
 
the
purpose of this Agreement shall be deemed only to become effective
 
on the following day.
32.6.5
Any reference in a Finance Document to a communication being sent or received shall be construed to
 
include that
communication being made available in accordance with this Clause
32.7
English language
32.7.1
Any notice given under or in connection with any Finance Document must be in
 
English.
32.7.2
All other documents provided under or in connection with any Finance
 
Document must be:
(a)
in English; or
(b)
if not in English,
 
and if so
 
required by the Facility
 
Agent, accompanied by a certified
 
English translation and,
in this
 
case, the
 
English translation
 
will prevail
 
unless the
 
document is
 
a constitutional,
 
statutory or
 
other
official document.
89
33.
CALCULATIONS
 
AND CERTIFICATES
33.1
Accounts
In any litigation or arbitration
 
proceedings arising out of
 
or in connection with a
 
Finance Document, the entries made
 
in
the accounts maintained by a Finance Party are prima facie evidence of
 
the matters to which they relate.
33.2
Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence
of manifest error, prima facie evidence
 
of the matters to which it relates.
33.3
Day count convention
Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the
basis of the actual
 
number of days elapsed
 
and a year of
 
365 days (irrespective
 
of whether the year
 
in question is a
 
leap
year).
34.
PARTIAL
 
INVALIDITY
If, at any time, any provision
 
of a Finance Document
 
is or becomes illegal, invalid,
 
unenforceable or inoperable in
 
any respect
under any law
 
of any jurisdiction,
 
neither the legality,
 
validity, enforceability
 
or operation of the
 
remaining provisions nor
 
the
legality, validity, enforceability or operation of such provision
 
under the law of
 
any other jurisdiction
 
will in any
 
way be affected
or
 
impaired.
 
The
 
term
inoperable
 
in
 
this
 
Clause
 
shall
 
include,
 
without
 
limitation,
 
inoperable
 
by
 
way
 
of
 
suspension
 
or
cancellation.
35.
REMEDIES AND WAIVERS
No
 
failure
 
to
 
exercise,
 
nor
 
any
 
delay
 
in
 
exercising,
 
on
 
the
 
part
 
of
 
any
 
Finance
 
Party,
 
any
 
right
 
or
 
remedy
 
under
 
a
 
Finance
Document or other document or
 
other indulgence shall operate as
 
a waiver, nor
 
shall any single or partial exercise
 
of any right
or remedy otherwise affect any of that Party’s rights in terms
 
of or arising from any Finance
 
Document or estop such Party from
enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term of any Finance
Document.
 
No consent to any waiver or novation of a Party’s rights in terms of or arising from any Finance Document shall be
effective unless it is
 
in writing.
 
No single or partial
 
exercise of any right
 
or remedy shall prevent
 
any further or other
 
exercise
or the exercise of
 
any other right or
 
remedy.
 
The rights and remedies
 
provided in each Finance
 
Document are cumulative and
not exclusive of any rights or remedies provided by law.
36.
AMENDMENTS AND WAIVERS
36.1
Required consents
36.1.1
Subject
 
to
 
Clause
 
(All
 
Lender
 
matters)
 
and
 
Clause
 
(Other
 
exceptions),
 
any
 
term
 
of
 
the
 
Finance
Documents may
 
be amended
 
or waived
 
only with
 
the express
 
consent of
 
the Lenders
 
and the
 
Borrower and
 
any
such amendment or waiver will be binding on all Parties.
36.1.2
The
 
Facility
 
Agent
 
may
 
effect,
 
on
 
behalf
 
of
 
any
 
Finance
 
Party,
 
any
 
amendment
 
or waiver
 
permitted
 
by
 
this
Clause
36.1.3
Without prejudice to the generality of Clauses
,
 
and
 
(Rights and discretions), the Facility
 
Agent
may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting
any amendment, waiver or consent under this Agreement.
36.1.4
Each
 
Obligor
 
agrees
 
to
 
any
 
such
 
amendment
 
or
 
waiver
 
permitted
 
by
 
this
 
Clause
 
which
 
is
 
agreed
 
to
 
by
 
the
Borrower.
 
36.2
All Lender matters
36.2.1
An amendment, waiver or (in the case
 
of a Transaction Security Document) a consent of, or in
 
relation to, any term
of any Finance Document that has the effect of changing or which
 
relates to:
90
(a)
an extension
 
to the date
 
of payment
 
of any amount
 
under the Finance
 
Documents (other
 
than in relation
 
to
Clause
 
(Mandatory prepayment and cancellation));
(b)
a
 
reduction
 
in
 
the
 
Margin
 
or
 
a
 
reduction
 
in
 
the
 
amount
 
of
 
any
 
payment
 
of
 
principal,
 
interest,
 
fees
 
or
commission payable;
(c)
a change in currency of payment of any amount under the Finance Documents;
(d)
an increase in
 
any Commitment or
 
the Total
 
Commitments, an extension
 
of any Availability
 
Period or any
requirement that a cancellation of Commitments
 
reduces the Commitments of the
 
Lenders rateably under the
relevant Facility;
(e)
any provision which expressly requires the consent of all the Lenders;
(f)
Clause
 
(Finance
 
Parties'
 
rights
 
and
 
obligations),
 
Clause
 
(Delivery
 
of
 
a
 
Utilisation
 
Request),
Clause
 
(Illegality),
 
Clause
 
(
),
 
the
 
definition
 
of
 
"Change
 
of
Control"
 
in
 
Clause
 
(Definitions),
 
Clause
 
(
, Clause
 
(Application of prepayments), Clause
 
(
), Clause
 
(
),
 
Clause
 
(
),
 
Clause
 
(Changes
 
to
 
the
 
Lenders),
 
Clause
(
), this Clause
 
or Clause
 
(Governing law);
 
(g)
(other than as expressly permitted by the provisions of any Finance Document)
 
the nature or scope of:
(i)
the Secured Property; or
(ii)
the manner in which the proceeds of enforcement of the Transaction
 
Security are distributed,
(except in the case of paragraphs
 
and
 
above, insofar as it relates to a sale or
 
disposal of an asset which
is
 
the
 
subject
 
of
 
the
 
Transaction
 
Security
 
where
 
such
 
sale
 
or
 
disposal
 
is
 
expressly
 
permitted
 
under
 
this
Agreement or any other Finance Document);
(h)
the
 
release
 
of
 
any
 
Transaction
 
Security
 
unless
 
permitted
 
under
 
this
 
Agreement
 
or
 
any
 
other
 
Finance
Document or relating to a sale or disposal of an asset which is the subject of the Transaction
 
Security where
such sale or disposal is permitted under this Agreement or any other Finance
 
Document;
(i)
any amendment to the subordination under any Finance Document,
shall not be made, or given, without the prior consent of all the Lenders.
36.3
Other exceptions
An amendment
 
or waiver
 
which relates
 
to the
 
rights or
 
obligations of
 
the Facility
 
Agent or
 
the Arranger
 
(each in
 
their
capacity as such) may not be effected without the express prior consent of the Facility Agent or the Arranger,
 
as the case
may be.
36.4
Replacement of Lender
36.4.1
If the Obligors becomes obliged to
 
repay any amount in accordance
 
with Clause
 
(Illegality) or to pay additional
amounts pursuant to
 
Clause
 
(Increased costs), Clause
 
(Tax
 
gross-up) or Clause
 
(Tax
 
Indemnity) to
any
 
Lender,
 
then
 
the
 
Borrower
 
may,
 
on
 
20
 
Business
 
Days'
 
prior
 
written
 
notice
 
to
 
the
 
Facility
 
Agent
 
and
 
such
Lender, replace
 
such Lender by
 
requiring such Lender
 
to (and, to the
 
extent permitted by
 
law, such
 
Lender shall)
transfer pursuant
 
to Clause
 
(Changes to
 
the Lenders) all
 
(and not part
 
only) of its
 
rights and obligations
 
under
this Agreement
 
to an Eligible
 
Institution (a
Replacement Lender
) which confirms
 
its willingness to
 
assume and
does assume all the
 
obligations of the transferring
 
Lender in accordance with
 
Clause
 
(Changes to the Lenders)
for a purchase price in cash payable at the time of
 
transfer in an amount equal to the outstanding
 
principal amount
of
 
such
 
Lender's
 
participation
 
in
 
the
 
outstanding
 
Loans
 
and
 
all
 
accrued
 
interest
 
and/or
 
Break
 
Costs
 
and
 
other
amounts payable in relation thereto under the Finance Documents.
36.4.2
The replacement of a Lender pursuant to this Clause
 
shall be subject to the following conditions:
91
(a)
the Borrower shall have no right to replace the Facility Agent;
(b)
neither the
 
Facility Agent
 
nor the
 
Lender shall
 
have any
 
obligation to
 
the Borrower
 
to find
 
a Replacement
Lender;
(c)
in
 
no
 
event
 
shall
 
the
 
Lender
 
replaced
 
under
 
this
 
Clause
 
be
 
required
 
to
 
pay
 
or
 
surrender
 
to
 
such
Replacement Lender any of the fees received by such Lender pursuant to
 
the Finance Documents; and
(d)
the Lender shall
 
only be obliged
 
to transfer its
 
rights and obligations
 
pursuant to Clause
 
above once
it is satisfied that it has complied with all necessary "know
 
your customer" or other similar checks under all
applicable laws and regulations in relation to that transfer.
36.4.3
A Lender shall perform the
 
checks described in Clause
 
above as soon as
 
reasonably practicable following
delivery of
 
a notice
 
referred to
 
in Clause
 
and shall
 
notify the
 
Facility Agent
 
and the
 
Borrower when
 
it is
satisfied that it has complied with those checks.
37.
CONFIDENTIAL INFORMATION
37.1
Confidentiality
Each Finance Party
 
agrees to keep all
 
Confidential Information confidential
 
and not to disclose
 
it to anyone,
 
save to the
extent permitted by Clause
 
(Disclosure of Confidential Information), and to ensure that all Confidential Information
is protected with security measures and a degree of care that would apply to
 
its own confidential information.
37.2
Disclosure of Confidential Information
Any Finance Party may disclose:
37.2.1
to any of
 
its Affiliates and
 
Related Funds and
 
any of its
 
or their officers,
 
directors, employees, professional advisers,
auditors,
 
partners
 
and
 
Representatives
 
such
 
Confidential
 
Information
 
as
 
that
 
Finance
 
Party
 
shall
 
consider
appropriate if any person to whom
 
the Confidential Information is to be given
 
pursuant to this paragraph
 
is
informed in writing
 
of its confidential nature
 
and that some or
 
all of such Confidential
 
Information may be
 
price-
sensitive
 
information
 
except
 
that
 
there
 
shall
 
be
 
no
 
such
 
requirement
 
to
 
so
 
inform
 
if
 
the
 
recipient
 
is
 
subject
 
to
professional obligations
 
to maintain
 
the confidentiality
 
of the information
 
or is otherwise
 
bound by
 
requirements
of confidentiality in relation to the Confidential Information;
37.2.2
to any person:
(a)
to (or
 
through)
 
whom it
 
Transfers
 
(or
 
may potentially
 
Transfer)
 
all or
 
any of
 
its rights
 
and/or obligations
under one or
 
more Finance Documents
 
or which succeeds
 
(or which may
 
potentially succeed) it
 
as Facility
Agent and, in
 
each case, to any
 
of that person's Affiliates,
 
Related Funds, Representatives
 
and professional
advisers;
(b)
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-
participation in
 
relation to, or
 
any other transaction
 
under which payments
 
are to be
 
made or may
 
be made
by reference to,
 
one or more
 
Finance Documents and/or
 
the Obligors and
 
to any of
 
that person's Affiliates,
Related Funds, Representatives and professional advisers;
(c)
appointed
 
by
 
any
 
Finance
 
Party
 
or
 
by
 
a
 
person
 
to
 
whom
 
paragraph
 
or
 
above
 
applies
 
to
 
receive
communications,
 
notices,
 
information
 
or
 
documents
 
delivered
 
pursuant
 
to
 
the
 
Finance
 
Documents
 
on
 
its
behalf
 
(including,
 
without
 
limitation,
 
any
 
person
 
appointed
 
under
 
Clause
 
(Relationship
 
with
 
the
Lenders));
(d)
who invests in
 
or otherwise finances
 
(or may potentially
 
invest in or
 
otherwise finance), directly
 
or indirectly,
any transaction referred to in paragraph
 
or
 
above;
(e)
to whom information
 
is required or requested
 
to be disclosed by
 
any court of competent
 
jurisdiction or any
governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant
 
stock
exchange or pursuant to any applicable law or regulation;
92
(f)
to whom information
 
is required to be
 
disclosed in connection
 
with, and for
 
the purposes of,
 
any litigation,
arbitration, administrative or other investigations, proceedings or disputes;
(g)
who is a Party; or
(h)
with the consent of the Borrower,
in each case, such Confidential Information as that Finance Party shall consider
 
appropriate if:
(i)
in relation to paragraphs
 
,
 
and
 
above, the person to whom the Confidential Information is to
be given has
 
entered into a Confidentiality
 
Undertaking except that
 
there shall be no
 
requirement for
a Confidentiality
 
Undertaking if
 
the recipient
 
is a professional
 
adviser and
 
is subject
 
to professional
obligations to maintain the confidentiality of the Confidential Information;
(ii)
in relation to paragraph
 
above, the person to whom the Confidential Information is to be given has
entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality
 
in
relation
 
to
 
the
 
Confidential
 
Information
 
they
 
receive
 
and
 
is
 
informed
 
that
 
some
 
or
 
all
 
of
 
such
Confidential Information may be price-sensitive information;
(iii)
in relation to
 
paragraphs
 
 
and
, the person to
 
whom the Confidential
 
Information is to
 
be given
is informed
 
of its
 
confidential nature
 
and that
 
some or
 
all of
 
such Confidential
 
Information may
 
be
price-sensitive information except that there shall be no requirement
 
to so inform if, in the opinion of
that Finance Party, it is not
 
practicable so to do in the circumstances; and
37.2.3
to any person appointed by that Finance Party or by a person to whom Clause
 
or
 
above applies
to
 
provide
 
administration
 
or
 
settlement services
 
in
 
respect
 
of
 
one
 
or
 
more of
 
the
 
Finance Documents
 
including
without limitation, in
 
relation to
 
the trading of
 
participations in respect
 
of the
 
Finance Documents, such
 
Confidential
Information
 
as
 
may
 
be
 
required
 
to
 
be
 
disclosed
 
to
 
enable
 
such
 
service
 
provider
 
to
 
provide
 
any
 
of
 
the
 
services
referred to
 
in this
 
Clause
 
if the
 
service provider
 
to whom
 
the Confidential
 
Information is
 
to be
 
given has
entered into a confidentiality agreement
 
substantially in the form of the LMA
 
Master Confidentiality Undertaking
for Use With Administration/Settlement Service Providers
 
or such other form
 
of confidentiality undertaking agreed
between the Borrower and the relevant Finance Party; and
37.2.4
to any rating
 
agency (including its
 
professional advisers)
 
such Confidential Information
 
as may be
 
required to be
disclosed to enable such rating agency to carry out its
 
normal rating activities in relation to the Finance Documents
and/or the Obligors.
37.3
Entire agreement
This Clause
 
constitutes the
 
entire agreement
 
between the
 
Parties in
 
relation to
 
the obligations
 
of the
 
Finance Parties
under
 
the
 
Finance
 
Documents
 
regarding
 
Confidential
 
Information
 
and
 
supersedes
 
any
 
previous
 
agreement,
 
whether
express or implied, regarding Confidential Information.
37.4
Inside information
Each of
 
the Finance
 
Parties acknowledges
 
that some or
 
all of
 
the Confidential
 
Information is
 
or may
 
be price-sensitive
information
 
and
 
that
 
the
 
use
 
of
 
such
 
information
 
may
 
be
 
regulated
 
or
 
prohibited
 
by
 
applicable
 
legislation
 
including
securities
 
law
 
relating
 
to
 
insider
 
dealing
 
and
 
market
 
abuse and
 
each of
 
the
 
Finance
 
Parties
 
undertakes
 
not
 
to use
 
any
Confidential Information for any unlawful purpose.
37.5
Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to
 
inform the Borrower:
37.5.1
of the circumstances of any
 
disclosure of Confidential Information
 
made pursuant to Clause
 
(
)
 
except
 
where
 
such
 
disclosure
 
is
 
made
 
to
 
any
 
of
 
the
 
persons
 
referred
 
to
 
in
 
that
clause during the ordinary course of its supervisory or regulatory function;
 
and
37.5.2
upon becoming aware that Confidential Information has been disclosed
 
in breach of this Clause
93
37.6
Continuing obligations
The obligations in this
 
Clause
 
are continuing and, in
 
particular, shall survive and remain
 
binding on each Finance
 
Party
for a period of 12 months from the earlier of:
37.6.1
the date on
 
which all amounts
 
payable by
 
the Obligors under
 
or in connection
 
with the Finance
 
Documents have
been paid in full and all Commitments have been cancelled or otherwise cease to be
 
available; and
37.6.2
the date on which such Finance Party otherwise ceases to be a Finance Party.
38.
RENUNCIATION OF
 
BENEFITS
Each Obligor renounces, to the extent permitted under applicable law, the
 
benefits of each of the legal exceptions of excussion,
division, revision of
 
accounts, no value
 
received, errore calculi,
 
non causa debiti,
 
non numeratae pecuniae and
 
cession of actions,
and declares that it understands the meaning of each such legal exception
 
and the effect of such renunciation.
 
39.
WAIVER
 
OF IMMUNITY
Each
 
Obligor
 
waives
 
generally
 
all
 
immunity
 
it
 
or
 
its
 
assets
 
or
 
revenues
 
may
 
otherwise
 
have
 
in
 
any
 
jurisdiction,
 
including
immunity in respect of:
39.1
the giving of any relief by way of an interdict or order for specific performance or for the recovery of assets or revenues;
and
39.2
the issue of
 
any process against
 
its assets or
 
revenues for
 
the enforcement of
 
a judgment or,
 
in an action
 
in rem, for
 
the
arrest, detention or sale of any of its assets and revenues.
40.
SOLE AGREEMENT
The Finance Documents constitute the sole record of the agreement between
 
the Parties in regard to the subject matter thereof.
41.
NO IMPLIED TERMS
No
 
Party
 
shall
 
be
 
bound
 
by
 
any
 
express or
 
implied
 
term,
 
representation,
 
warranty,
 
promise
 
or
 
the
 
like,
 
not recorded
 
in any
Finance Document in regard to the subject matter thereof.
42.
COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the
counterparts were on a single copy of the Finance Document.
94
SECTION 12
GOVERNING LAW
 
AND ENFORCEMENT
43.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection
 
with it are governed by South African law.
44.
JURISDICTION
44.1
The Parties hereby irrevocably and
 
unconditionally consent to the
 
non-exclusive jurisdiction of the
 
High Court of South
Africa, Gauteng Local Division, Johannesburg (or any successor to that division) in regard to all matters arising from the
Finance Documents
(including a dispute
 
relating to the existence,
 
validity or termination of
 
this Agreement or any
 
non-
contractual obligation arising out of or in connection with this Agreement)
 
(a
Dispute
).
44.2
The Parties
 
agree that
 
the courts
 
of South
 
Africa are
 
the most
 
appropriate and
 
convenient courts
 
to settle
 
Disputes and
accordingly no Party will argue to the contrary.
44.3
Notwithstanding Clause
 
above, no Finance Party shall be prevented from taking proceedings relating to
 
a Dispute in
any other courts with jurisdiction.
 
To the extent allowed by law,
 
the Finance Parties may take concurrent proceedings in
any number of jurisdictions.
THIS AGREEMENT
 
has been entered into on the date stated at the beginning of this Agreement.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
95
SCHEDULE 1
 
THE ORIGINAL PARTIES
Part I
The Guarantors
Name of Guarantor
Jurisdiction of
Incorporation
Registration number
(or equivalent, if any)
1.
Cash Connect Rentals Proprietary Limited
South Africa
2009/007139/07
2.
Deposit Manager Proprietary Limited
South Africa
2010/016889/07
3.
Cash Connect Capital Proprietary Limited
South Africa
2017/029430/07
4.
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
5.
K2021477132 (South Africa) Proprietary Limited
South Africa
2021/477132/07
6.
K2020263969 (South Africa) Proprietary Limited
South Africa
2020/263969/07
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
96
Part II
The Original Term
 
Lenders
Original Term Lender
Address for Purposes of Clause
 
(Notices)
FirstRand Bank Limited
(acting through its Rand
Merchant Bank division)
Address:
 
1 Merchant Place
14th Floor
Cnr Fredman Drive and Rivonia Road
Sandton, 2196
Email:
 
XXX
Attention:
 
Head of Transaction Management - Investment Banking Division
Commitments
Facility A
Original Term Lender
Facility A Commitment
FirstRand Bank Limited (acting through its Rand Merchant
Bank division)
ZAR700,000,000
Facility B
Original Term Lender
Facility B Commitment
FirstRand Bank Limited (acting through its Rand Merchant
Bank division)
ZAR350,000,000
97
SCHEDULE 2
CONDITIONS PRECEDENT
Part I
Conditions Precedent to Initial Utilisation
1.
OBLIGORS AND SECURITY PROVIDERS
1.2
A copy of the constitutional documents of the Obligors and each other
 
Security Provider.
1.3
A copy of a resolution of the board of directors of the Obligors and each other
 
Security Provider:
1.3.1
approving the
 
terms of,
 
and the
 
transactions contemplated
 
by,
 
the Finance
 
Documents to
 
which it
 
is a
 
party and
resolving that it execute, deliver and perform the Finance Documents to which
 
it is a party;
1.3.2
authorising
 
it,
 
for
 
all
 
purposes
 
required
 
under
 
sections 45
 
and
 
46
 
of
 
the
 
Companies
 
Act,
 
2008,
 
to
 
provide
 
the
"financial
 
assistance"
 
and
 
to
 
make
 
any
 
"distribution"
 
that
 
may
 
arise
 
as
 
a
 
result
 
of
 
its
 
entry
 
into
 
the
 
Finance
Documents to which it is a party;
1.3.3
authorising a specified person or persons to execute the Finance Documents to which it is
 
a party on its behalf; and
1.3.4
authorising
 
a
 
specified
 
person
 
or
 
persons,
 
on
 
its
 
behalf,
 
to
 
sign
 
and/or
 
despatch
 
all
 
documents
 
and
 
notices
(including, if
 
relevant, any
 
Utilisation Request)
 
to be
 
signed and/or
 
despatched by
 
it under
 
or in
 
connection with
the Finance Documents to which it is a party.
1.4
A specimen of the signature
 
of each person authorised
 
by the resolution referred to
 
in paragraph
 
above in relation to
the Finance Documents and related documents.
1.5
A copy
 
of a
 
special resolution
 
duly passed
 
by the
 
holders of
 
the issued
 
shares of
 
each Obligor
 
and each
 
other Security
Provider authorising it, for
 
all purposes required under
 
section 45 of the
 
Companies Act, 2008, to
 
provide the "financial
assistance" that may arise as a result of its entry into the Finance Documents to which
 
it is a party.
1.6
To
 
the extent required
 
by any
 
other applicable
 
law,
 
and with reference
 
to the
 
constitutional documents
 
of each
 
Obligor
and each other
 
Security Provider,
 
a copy of a
 
resolution duly passed
 
by the holders of
 
the issued shares of
 
each Obligor
or
 
that
 
Security
 
Provider
 
(as
 
applicable),
 
approving
 
the
 
terms
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by,
 
the
 
Finance
Documents to which that Security Provider is a party.
1.7
A certificate of each Obligor and each other Security Provider (signed
 
by a director):
1.7.1
confirming
 
that borrowing
 
or guaranteeing
 
or securing,
 
as appropriate,
 
the Total
 
Commitments would
 
not cause
any borrowing,
 
guarantee, security
 
or similar
 
limit binding
 
on that
 
Obligor or
 
any other
 
Security Provider
 
to be
exceeded;
1.7.2
certifying that
 
each copy document
 
relating to
 
it specified in
 
this Part I
 
of
 
is correct,
 
complete and
 
in
full force and effect and has
 
not been amended or superseded as
 
at a date no earlier
 
than the date of this
 
Agreement.
2.
FINANCE DOCUMENTS
2.1
An original of each of the following duly entered into by each Party to it:
2.1.1
this Agreement;
2.1.2
the GBF Agreement;
2.1.3
each Transaction Security Document (other than any Transaction
 
Security Document which is to be provided after
the Closing Date,
 
namely the Transaction Security
 
Documents referred to
 
in paragraph
 
of
 
(
);
 
98
2.1.4
the Funds Flow and Release Agreement;
2.1.5
the Fee Letters;
2.1.6
the K2021 Consent;
2.1.7
the Absa Release Agreement.
2.2
The following documents of title and related Transaction
 
Security Documents:
2.2.1
in relation to shares and other securities that are subject to Transaction
 
Security:
(a)
the original share certificates (or applicable certificates of title in respect of other
 
securities);
(b)
an original securities
 
transfer form duly
 
executed by the
 
relevant Security Provider
 
(undated and left
 
blank
as to the transferee);
(c)
a
 
resolution
 
by
 
the
 
directors
 
of
 
each
 
company
 
the
 
shares
 
of
 
which
 
are
 
subject
 
to
 
Transaction
 
Security,
acknowledging the pledge and agreeing to give effect to
 
any transfer of shares that may occur as a result;
(d)
to the extent
 
required, a duly
 
executed waiver of
 
pre-emptive or similar
 
rights by shareholders
 
who are not
members of the Group,
and all other documents of title required to be provided under the Transaction
 
Security Documents.
2.3
A copy of all notices required to be sent, acknowledgements required to be delivered and other documents required to be
executed under the Transaction Security Documents,
 
duly executed by the persons party thereto.
2.4
Evidence that each
 
general notarial bond
 
referred to in
 
paragraph
 
of
) has
 
been lodged
for registration at the applicable statutory public register.
3.
ACQUISITION
3.1
A copy of the Acquisition Documents and evidence that each Acquisition Document is unconditional in accordance with
its terms,
 
other than any condition requiring the Facilities Agreement to be unconditional
 
.
3.2
A copy of the shareholders register of each Obligor.
4.
NET1 FINANCING
Evidence that FirstRand Bank Limited (acting through its
 
Rand Merchant Bank division) will provide financing to
 
Net1 to meet
its obligations under the
 
Acquisition Documents, in form
 
and substance satisfactory to
 
Lenders is unconditional
 
in accordance
with its terms,
 
other than any condition requiring the Facilities Agreement to
 
be unconditional.
5.
LEGAL OPINIONS
The following legal opinions, each addressed
 
to the Facility Agent (for
 
an on behalf of the
 
Finance Parties) and capable of
 
being
relied upon by any persons who become Lenders pursuant to the primary syndication
 
of the Facilities.
5.1
A
 
legal
 
opinion
 
of
 
Webber
 
Wentzel,
 
legal
 
advisers
 
to
 
the
 
Facility
 
Agent
 
and
 
the
 
Arranger
 
as
 
to
 
South
 
African
 
law
substantially in the form distributed to the Lenders prior to signing this Agreement in respect of
 
the legality, validity and
enforceability of the Finance Documents.
5.2
A legal
 
opinion of
 
Cliffe Dekker
 
Hofmeyr,
 
legal advisers
 
to the
 
Borrower as
 
to South
 
African law
 
substantially in
 
the
form distributed
 
to the
 
Lenders prior
 
to signing
 
this Agreement
 
in respect
 
of the
 
capacity,
 
powers and
 
authority of
 
the
Obligors and Security Providers to enter into and perform their obligations
 
under the Finance Documents.
99
6.
CREDIT APPROVAL
The approval
 
of the credit
 
committees and/or
 
boards of directors
 
of each
 
Lender of the
 
grant of the
 
Facilities to the
 
Borrower
under the Finance Documents.
7.
KNOW YOUR CUSTOMER REQUIREMENTS
Such documentation
 
and other
 
evidence as
 
is reasonably
 
requested by
 
the Facility
 
Agent (for
 
itself or
 
on behalf
 
of any
 
other
Finance Party) to carry out and be satisfied that it has complied with all necessary know your customer or similar identification
procedures
 
under
 
applicable
 
laws
 
and
 
regulations
 
(including
 
the
 
Financial
 
Intelligence
 
Centre
 
Act,
 
2001)
 
pursuant
 
to
 
the
transactions contemplated in the Finance Documents.
8.
OTHER DOCUMENTS AND EVIDENCE
8.1
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause
 
(Fees), Clause
 
(Stamp
taxes) and Clause
 
(Costs and expenses) have been paid or will be paid by the Utilisation Date.
8.2
A copy of the Base Case Model.
8.3
Evidence that a management incentive scheme has or will be implemented on
 
terms satisfactory to the Facility Agent.
8.4
Evidence that the board composition of the Obligors is satisfactory to the Facility
 
Agent.
8.5
Evidence that Steven Heilbron has entered into restraints of trade on terms satisfactory
 
to the Facility Agent.
8.6
A
 
copy
 
of
 
any
 
required
 
independent
 
expert’s
 
reports
 
on
 
the
 
assets
 
to
 
be
 
acquired
 
under
 
the
 
Acquisition
 
Documents
(including, but not limited to, legal and technical due diligence reports).
8.7
A copy, certified by an
 
authorised signatory of the Borrower to be a true copy,
 
of the Original Financial Statements.
8.8
A copy
 
of any
 
other
 
Authorisation
 
or other
 
document,
 
opinion
 
or assurance
 
which
 
the Facility
 
Agent
 
considers
 
to be
necessary or desirable (if
 
it has notified the Borrower
 
accordingly) in connection with the entry
 
into and performance of
the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
100
Part II
Conditions Precedent Required to be Delivered
 
by an Additional Obligor
1.
An Accession Letter executed by the Additional Obligor and the Borrower.
9.
A copy of the constitutional documents of the Additional Obligor.
10.
A copy of a resolution of the board of directors of the Additional Obligor:
10.1
approving
 
the
 
terms
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by,
 
the
 
Accession
 
Letter
 
and
 
the
 
Finance
 
Documents
 
and
resolving that it execute, deliver and perform the Accession Letter and
 
any other Finance Document to which it is party;
10.2
if applicable,
 
authorising it,
 
for all
 
purposes required
 
under sections 45
 
and 46
 
of the
 
Companies Act,
 
2008, to
 
provide
the "financial
 
assistance" and to
 
make any "distribution"
 
that may arise
 
as a result
 
of the performance
 
of its obligations
under the Accession Letter and other Finance Documents to which it is a party;
10.3
authorising a specified person or persons to execute the Accession Letter and other
 
Finance Documents on its behalf;
10.4
authorising
 
a specified
 
person or
 
persons, on
 
its behalf,
 
to sign
 
and/or despatch
 
all other
 
documents
 
and notices
 
to be
signed and/or despatched by it under or in connection with the Finance Documents
 
to which it is a party; and
10.5
authorising the Borrower to act as its agent in connection with the Finance Documents.
11.
A specimen of the signature of each person authorised by the resolution referred to
 
in paragraph
 
above.
12.
A copy of a resolution signed by all the holders of the issued shares of the Additional
 
Obligor:
 
12.1
authorising it, for all purposes required under section 45
 
of the Companies Act, 2008 to provide the "financial
 
assistance"
that may arise as a result of its entry into the Accession Letter and the Finance Documents
 
to which it is a party; and
 
12.2
to the extent required, approving the terms of, and the
 
transactions contemplated by, the Finance Documents to which the
Additional Obligor is a party.
13.
A
 
certificate
 
of
 
the
 
Additional
 
Obligor
 
(signed
 
by
 
a
 
director)
 
confirming
 
that
 
borrowing,
 
guaranteeing
 
or
 
securing,
 
as
appropriate,
 
the Total
 
Commitments would
 
not cause
 
any borrowing,
 
guarantee, security
 
or similar
 
limit binding
 
on it
 
to be
exceeded.
14.
A certificate
 
of an
 
authorised signatory
 
of the
 
Additional Obligor
 
certifying that
 
each copy
 
document listed
 
in this
 
Part II of
 
is correct, complete and in full force and effect and has
 
not been amended or superseded as at a date no earlier than
the date of the Accession Letter.
15.
If available, the latest audited financial statements of the Additional Obligor.
16.
The following legal opinions, each addressed to the Facility Agent and
 
the Lenders:
16.1
a legal opinion of the legal advisers to the Facility Agent in South Africa, as to South African law in the form distributed
to the Lenders prior to signing the Accession Letter in respect of the enforceability of
 
the Accession Letter;
16.2
a
 
legal
 
opinion
 
of
 
the
 
legal
 
advisers
 
to
 
the
 
Additional
 
Obligor
 
in
 
South
 
Africa,
 
as
 
to
 
South
 
African
 
law
 
in
 
the
 
form
distributed to the Lenders prior
 
to signing the Accession Letter in
 
respect of the capacity and authority
 
of the Additional
Obligor to enter into the Accession Letter and other Finance Documents to which
 
it is party; and
16.3
in relation
 
to any
 
Additional Obligor
 
incorporated in
 
a jurisdiction
 
other than
 
South Africa,
 
a legal
 
opinion from
 
legal
counsel in that jurisdiction acceptable to the Facility Agent.
17.
Transaction Security Documents duly executed by the Additional Obligor
 
in respect of all Transaction Security it is required to
provide in accordance with
 
(
).
101
18.
All documents required
 
to procure
 
registration of the
 
mortgage bonds, special
 
notarial bonds, and
 
general notarial bonds
 
required
to be given by the proposed Additional Obligor and set out in
 
(
), including a power of attorney
in favour of
 
Webber
 
Wentzel
 
attorneys to pass
 
and register each
 
such Transaction
 
Security Document at
 
the applicable Deeds
Registry or other statutory public register.
19.
The following documents of title and related documents in relation to shares and other securities that are subject to Transaction
Security:
19.1
the original share certificates (or applicable certificates of title in respect of other
 
securities);
19.2
an original
 
securities transfer
 
form duly
 
executed by
 
the relevant
 
Additional Obligor
 
(undated and
 
left blank
 
as to
 
the
transferee);
19.3
a resolution by the directors of each company the shares of which are subject to Transaction Security, acknowledging the
pledge and agreeing to give effect to any transfer of shares that may
 
occur as a result; and
19.4
all other documents of title required to be provided under the Transaction
 
Security Documents.
20.
A
 
copy
 
of
 
all
 
notices
 
required
 
to
 
be
 
sent,
 
acknowledgements
 
required
 
to
 
be
 
delivered
 
and
 
other
 
documents
 
required
 
to
 
be
executed under the Transaction Security Documents,
 
duly executed by the persons party thereto.
21.
Evidence
 
that
 
each
 
mortgage
 
bond,
 
special
 
notarial
 
bond
 
and
 
general
 
notarial
 
bond
 
required
 
to
 
be
 
given
 
by
 
the
 
proposed
Additional Obligor and set out in
 
(
) has been lodged for registration
 
at the applicable statutory
public register.
22.
All necessary regulatory approvals to the satisfaction of the Facility Agent required
 
for the accession of the Additional Obligor
as an Additional Guarantor, as applicable.
23.
If the Additional Obligor is not incorporated in South Africa, such documentary evidence as legal counsel to the Facility Agent
may
 
require,
 
that
 
such
 
Additional
 
Obligor
 
has
 
complied
 
with
 
any
 
law
 
in
 
its
 
jurisdiction
 
relating
 
to
 
financial
 
assistance
 
or
analogous process.
24.
A copy of any other Authorisation or other document,
 
opinion or assurance which the Facility Agent considers
 
to be necessary
or desirable in connection
 
with the entry into and
 
performance of the transactions
 
contemplated by the Accession
 
Letter or for
the validity and enforceability of any Finance Document.
102
SCHEDULE 3
FORM OF UTILISATION
 
REQUEST
From:
 
Cash Connect Management Solutions Proprietary Limited
To:
 
[Facility Agent]
Dated: [
]
Dear Sirs
CASH CONNECT MANAGEMENT SOLUTIONS PROPRIETARY
 
LIMITED
Facilities Agreement dated [●], 2022
 
(the Facilities Agreement)
1.
We
 
refer to the Facilities
 
Agreement.
 
This is a Utilisation
 
Request.
 
Terms
 
defined in the Facilities
 
Agreement have the
 
same
meaning in this Utilisation Request unless given a different meaning
 
in this Utilisation Request.
2.
We wish to borro
 
w
 
a Loan on the following terms:
Proposed Utilisation Date:
[
] (or, if that is not a Business Day,
 
the next Business Day)
Facility to be utilised:
[Facility A]/[Facility B]
Amount:
[
] or, if less, the Available
 
Facility
3.
We
 
confirm that
 
each condition
 
specified in
 
Clause
 
(
) of the
 
Facilities Agreement
 
is satisfied
on the date of this Utilisation Request.
4.
The proceeds of this Loan should be credited to [account].
5.
This Utilisation Request is irrevocable.
Yours
 
faithfully
…………………………………
authorised signatory for
Cash Connect Management Solutions Proprietary Limited
103
SCHEDULE 4
 
REPAYMENT
 
SCHEDULE
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
104
Repayment Date
Facility A Repayment Instalment
Facility B Repayment Instalment
[Column 1]
[Column 2]
[Column 3]
Second Interest Payment Date after
the Closing Date
ZAR0
ZAR18,750,000
Third Interest Payment Date after the
Closing Date
ZAR0
ZAR18,750,000
Fourth Interest Payment Date after
the Closing Date
ZAR0
ZAR18,750,000
Fifth Interest Payment Date after the
Closing Date
ZAR0
ZAR18,750,000
Sixth Interest Payment Date after the
Closing Date
ZAR0
ZAR18,750,000
Seventh Interest Payment Date after
the Closing Date
ZAR0
ZAR18,750,000
Eighth Interest Payment Date after
the Closing Date
ZAR0
ZAR18,750,000
Nineth Interest Payment Date after
the Closing Date
ZAR0
ZAR18,750,000
Tenth Interest Payment Date after the
Closing Date
ZAR0
ZAR25,000,000
Eleventh Interest Payment Date after
the Closing Date
ZAR0
ZAR25,000,000
Twelfth Interest Payment Date after
the Closing Date
ZAR0
ZAR25,000,000
Thirteenth Interest Payment Date
after the Closing Date
ZAR0
ZAR25,000,000
Fourteenth Interest Payment Date
after the Closing Date
ZAR0
ZAR31,250,000
Fifteenth Interest Payment Date after
the Closing Date
ZAR0
ZAR31,250,000
Sixteenth Interest Payment Date after
the Closing Date
ZAR0
ZAR31,250,000
Seventeenth Interest Payment Date
after the Closing Date
ZAR25,000,000
ZAR6,250,000
Eighteenth Interest Payment Date
after the Closing Date
ZAR37,500,000
ZAR0
Nineteenth Interest Payment Date
after the Closing Date
ZAR37,500,000
ZAR0
Twentieth Interest Payment Date after
the Closing Date
ZAR37,500,000
ZAR0
Final Maturity Date
ZAR562,500,000
ZAR0
105
106
SCHEDULE 5
 
FORM OF TRANSFER CERTIFICATE
To:
 
[
] as Facility Agent
 
From:
 
[The Existing Lender] (the
Existing Lender
) and [The New Lender] (the
New Lender
)
Dated:
CASH CONNECT MANAGEMENT SOLUTIONS PROPRIETARY
 
LIMITED
Facilities Agreement dated [●], 2022
 
(the Facilities Agreement)
1.
We refer to the
 
Facilities Agreement.
 
This is a Transfer Certificate.
2.
Terms defined
 
in the Facilities Agreement have the same meaning
 
in this Transfer Certificate unless given a
 
different meaning
in this Transfer Certificate.
3.
We refer to Clause
 
(
) of the Facilities Agreement:
3.1
the Existing
 
Lender and
 
the New
 
Lender
 
agree to
 
the Existing
 
Lender transferring
 
to the
 
New Lender
 
by cession
 
and
delegation
 
all
 
or
 
part
 
of
 
the
 
Existing
 
Lender's
 
Commitment,
 
rights
 
and
 
obligations
 
referred
 
to
 
in
 
the
 
Schedule
 
in
accordance with Clause
 
(
) of the Facilities Agreement;
3.2
the proposed Transfer Date is [
];
3.3
the address, fax number
 
and attention details for notices
 
of the New Lender
 
for the purposes of Clause
 
(Addresses)
of the Facilities Agreement are set out in the Schedule.
4.
The
 
New
 
Lender
 
expressly
 
acknowledges
 
the
 
limitations
 
on
 
the
 
Existing
 
Lender's
 
obligations
 
set
 
out
 
in
 
Clause
(Limitation of responsibility of Existing Lenders) of the Facilities Agreement.
5.
The New Lender
 
agrees that it
 
shall assume the
 
same obligations towards
 
each other Finance
 
Party under the
 
Finance Documents
as if it had been an Original Term
 
Lender or GBF Lender (as applicable).
6.
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the
counterparts were on a single copy of this Transfer
 
Certificate.
7.
This
 
Transfer
 
Certificate
 
and
 
any
 
non-contractual
 
obligations
 
arising
 
out
 
of
 
or
 
in
 
connection
 
with
 
it
 
are
governed
 
by
 
South
African law.
8.
This Transfer Certificate has been entered
 
into on the date stated at the beginning of this Transfer Certificate.
[
EXISTING LENDER
]
By:
[
NEW LENDER
]
By:
[
FACILITY AGENT
]
By:
107
As Facility Agent and for and on behalf of each of the
 
parties to the Facilities Agreement (other than the Existing Lender and
 
the New
Lender).
Note:
 
The execution
 
of this Transfer Certificate may
 
not transfer
 
a proportionate share of
 
the Existing
 
Lender's interest
in the
 
Transaction
 
Security in
 
all jurisdictions.
 
It is the
 
responsibility of
 
the New
 
Lender to
 
ascertain whether
any
 
other
 
documents
 
or
 
other
 
formalities
 
are
 
required
 
to
 
perfect
 
a
 
transfer
 
of
 
such
 
a
 
share
 
in
 
the
 
Existing
Lender's Transaction
 
Security
 
in any
 
jurisdiction and,
 
if so,
 
to arrange
 
for execution
 
of those
 
documents
 
and
completion of those formalities.
 
 
 
 
 
 
108
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[address, fax number and attention details for notices and account
 
details for payments,]
[Existing Lender]
[New Lender]
By:
By:
This
 
Agreement
 
is
 
accepted
 
as
 
a
 
Transfer
 
Certificate
 
for
 
the
 
purposes
 
of
 
the
 
Facilities
 
Agreement
 
by
 
the
 
Facility
 
Agent,
 
and
 
the
Transfer Date is confirmed as [
].
[Facility Agent]
By:
109
SCHEDULE 6
 
FORM OF ACCESSION LETTER
Part I: Accession Letter - Additional Guarantor
To:
 
[
] as Facility Agent (the
Facility Agent
)
From:
 
[
Subsidiary
] and Cash Connect Management Solutions Proprietary Limited
[●], 20[●]
Dear Sirs
CASH CONNECT MANAGEMENT SOLUTIONS PROPRIETARY
 
LIMITED
Facilities Agreement dated [●], 2022
(the Facilities Agreement)
1.
We refer to:
24.1
the Facilities Agreement;
24.2
[the Subordination Agreement]; and
24.3
the
 
pledge
 
and
 
cession
 
in
 
security
 
dated
 
[●],
 
2022
 
between,
 
amongst
 
others,
 
Cash
 
Connect
 
Management
 
Solutions
Proprietary Limited (as original cedent) and the Lender (the
Obligor Pledge and Cession
).
25.
This letter (the
Accession Letter
) shall take effect as an Accession Letter for the purposes
 
of the Facilities Agreement, and the
Obligor Pledge and Cession.
 
26.
Terms defined
 
in the Facilities Agreement have the
 
same meaning in this Accession Letter unless
 
given a different meaning
 
in
this Accession Letter.
27.
With effect from the date of this Accession
 
Letter:
27.1
[
Subsidiary
] agrees to become an Additional Guarantor and to be bound by the terms of:
27.1.1
the
 
Facilities
 
Agreement
 
and
 
the
 
other
 
Finance
 
Documents
 
as
 
an
 
Additional
 
Guarantor
 
pursuant
 
to
 
clause
(
) of the Facilities Agreement;
27.1.2
the Obligor Pledge
 
and Cession as
 
an Additional Cedent
 
pursuant to clause
 
[19] (Additional Cedents)
 
of the Obligor
Pledge and Cession; and
27.1.3
[the
 
Subordination
 
Agreement
 
as
 
an
 
Additional
 
Subordinated
 
Creditor
 
and
 
an
 
Additional
 
Intergroup
 
Debtor
pursuant to
 
clause [15] (Additional
 
Subordinated Creditor
 
or Additional
 
Intergroup Debtor)
 
of the Subordination
Agreement;]
27.2
[
Subsidiary
] pledges
 
to
 
the Finance
 
Parties
 
all its
 
Shares and
 
cedes
in securitatem
 
debiti
 
to
 
the Finance
 
Parties
 
all its
Secured Property
 
(under and
 
as defined
 
in the
 
Obligor Pledge
 
and Cession),
 
in each
 
case individually
 
and collectively
with all
 
the other
 
Secured Property,
 
as continuing
 
general covering
 
collateral security
 
for the
 
due, proper
 
and timeous
payment and performance in full of
 
all the Secured Obligations (under and as
 
defined in the Obligor Pledge and Cession),
on the terms set out in this Accession Letter (as read with the Obligor Pledge and Cession), which pledge and cession the
Finance Parties accept; and
27.3
the Obligor Pledge
 
and Cession will be
 
read and construed
 
for all purposes as
 
if [
Subsidiary
] had been
 
an original party
to the Obligor Pledge and Cession in the capacity of a "Cedent" (but so that the Security created by this accession will be
created on the date of this Accession Letter).
 
 
 
 
 
 
 
 
 
 
 
 
110
28.
For purposes of the Obligor
 
Pledge and Cession, any
 
reference to "Secured Property"
 
will include a reference
 
to the following
assets of [
Subsidiary
]:
[
insert details of Secured Property
]
29.
[
Subsidiary
] is a company duly incorporated under the laws
 
of [
name of relevant jurisdiction
] and is a limited liability company
with registration number [
].
30.
[
Subsidiary's
] administrative details for the purposes of the Finance Documents are as follows:
Address:
Email:
Fax:
Attention:
9.
[
Subsidiary
] consents to the
 
appointment of the Borrower
 
to act on its
 
behalf as agent
 
in relation to the
 
Finance Documents in
accordance with clause
 
of the Facilities Agreement.
10.
This
 
Accession
 
Letter
 
may
 
be
 
executed
 
in
 
any
 
number
 
of counterparts.
 
This
 
has
 
the
 
same
 
effect
 
as if
 
the
 
signatures
 
on
 
the
counterparts were on a single copy of this Accession Letter.
11.
This Accession Letter and any non-contractual obligations arising out of or in
 
connection with it are governed by South African
law.
For and on behalf of:
[Subsidiary]
For and on behalf of:
Cash Connect Management Solutions
Proprietary Limited
Name:
Name:
Office:
Office:
(who warrants his authority)
(who warrants his authority)
Accepted by the Facility Agent:
For and on behalf of:
[Facility Agent]
For and on behalf of:
[Facility Agent]
Name:
Name:
Office:
Office:
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
111
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To:
 
[
] (as Facility Agent)
From:
 
Cash Connect Management Solutions Proprietary Limited (as Borrower
 
)
[●], 20[●]
Dear Sirs
CASH CONNECT MANAGEMENT SOLUTIONS PROPRIETARY
 
LIMITED
Facilities Agreement dated [●], 2022
 
(the Facilities Agreement)
1.
We
 
refer to
 
the Facilities
 
Agreement.
 
This is
 
a Compliance
 
Certificate.
 
Terms
 
defined in
 
the Facilities
 
Agreement have
 
the
same meaning when used in this Compliance Certificate unless given a different
 
meaning in this Compliance Certificate.
2.
We confirm that as at [relevant testing date] the following
 
financial ratios referred to in clause
 
(
) of the
Facilities Agreement were at the levels set out below:
Financial covenant ratio
As calculated
Required
Compliance Y/N
Debt Service Cover
Interest Cover
Leverage Ratio
[Insert details of covenants to be certified].
3.
We set out below
 
calculations establishing the figures in paragraph
[●]
4.
[We confirm
 
that no Default is continuing.]*
Signed
…………………..
……………………..
Director
Director
Cash Connect Management Solutions
Proprietary Limited
Cash Connect Management Solutions
Proprietary Limited
NOTES:
*
 
If this statement cannot be made, the certificate should identify
 
any Default that is continuing and the steps, if
 
any, being taken to remedy it.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
112
SCHEDULE 8
 
FORM OF EQUITY CURE NOTICE
To:
 
[
] (as Facility Agent)
From:
 
Cash Connect Management Solutions Proprietary Limited (as Borrower
 
)
Dated:
Dear Sirs
CASH CONNECT MANAGEMENT SOLUTIONS PROPRIETARY
 
LIMITED
Facilities Agreement dated [●], 2022
 
(the Facilities Agreement)
1.
We refer to the Facilities Agreement.
 
This is an Equity Cure Notice.
 
Terms defined in the Facilities Agreement
 
have the same
meaning when used in this Equity Cure Notice unless given a different
 
meaning in this Equity Cure Notice.
2.
We propose
 
raising a Cure Amount as follows:
2.1
Quantum of Cure Amount:
 
ZAR[●]
2.2
Date of payment:
 
[●], 20[●]
3.
We confirm
 
that as at [relevant testing date]:
3.1
the financial covenants, before taking
 
account of the Cure Amount specified
 
above, were at the levels set
 
out in Column
3 of the table below;
3.2
the financial covenants, after taking account of the Cure Amount specified above, are at the levels set out in Column 4 of
the table below:
Financial covenant ratio
Required
As Calculated
(before Cure Amount)
As Calculated
(after Cure Amount)
[Column 1]
[Column 2]
[Column 3]
[Column 4]
Debt Service Cover
[●]:1
[●]:1
[●]:1
Interest Cover
[●]:1
[●]:1
[●]:1
Leverage Ratio
[●]:1
[●]:1
[●]:1
4.
We set out below
 
calculations establishing the figures in paragraphs 3 and 4 above:
[●]
5.
[We confirm
 
that no Default is continuing.]*
Signed
…………………..
……………………..
Director
Director
Cash Connect Management Solutions
Proprietary Limited
Cash Connect Management Solutions
Proprietary Limited
113
NOTES:
*
 
If this statement cannot be made, the certificate should identify
 
any Default that is continuing and the steps, if
 
any, being taken to remedy it.
114
SCHEDULE 9
TRANSACTION SECURITY
1.
The Borrower shall enter into security documents with the Finance Parties, or other
 
Finance Party indicated below, to establish
the Security set
 
out below over
 
the assets described
 
below (except to
 
the extent that
 
any such asset
 
is expressly excluded
 
by a
Transaction Security Document from the Security
 
created under that agreement):
1.1
a pledge and cession
in securitatem debiti
of all the shares, securities and other ownership interests it holds, from time to
time, together with all its debt claims (on shareholder loan account or otherwise)
 
against any such person;
1.2
a cession
in securitatem
 
debiti
of all
 
its present
 
and future
 
claims, from
 
time to
 
time, against
 
any person
 
(including its
trade debtors);
1.3
a cession
in securitatem debiti
of all its rights
 
and claims in respect of
 
bank accounts (including all cash
 
balances standing
to the credit
 
of those bank accounts), from time to time;
1.4
a cession
in securitatem debiti
 
of all insurances taken out by or for the benefit of the Borrower, from time to time, and all
the proceeds receivable under those insurances at any time;
2.
Each Obligor
 
(other than
 
the Borrower
 
)
 
shall enter
 
into security
 
documents with
 
the Finance
 
Parties, or
 
other Finance
 
Party
indicated below, to establish the Security set out below over the assets described below (except to the extent that any such asset
is expressly excluded by a Transaction Security
 
Document from the Security created under that agreement):
2.1
a pledge and cession
in securitatem debiti
 
of all the shares, securities and other ownership interests it holds, from time to
time,
 
(other
 
than
 
those
 
in
 
any
 
subsidiary
 
of
 
Main
 
Street
 
1723)
 
together
 
with
 
all
 
its
 
debt
 
claims
 
(on
 
shareholder
 
loan
account or otherwise) against any such person;
2.2
a cession
in securitatem
 
debiti
 
of all
 
its present
 
and future
 
claims, from
 
time to
 
time, against
 
any person
 
(including its
trade debtors);
2.3
a cession
in securitatem debiti
 
of all its rights
 
and claims in respect of
 
bank accounts (including all cash
 
balances standing
to the credit of those bank accounts), from time to time;
2.4
a cession
in securitatem debiti
 
of all insurances taken out by or
 
for the benefit of that Obligor,
 
from time to time, and all
the proceeds receivable under those insurances at any time;
2.5
general notarial bonds over the movable assets of Cash Connect Rentals, Deposit Manager
 
and Main Street 1723.
3.
Net1, Luxanio and Ovobix, being the shareholders of the Borrower immediately after the Acquisition,
 
shall enter into a limited
recourse second ranking pledge and cession
in securitatem debiti
 
with the Finance Parties with effect from the Acquisition Date
over all
 
the shares,
 
securities and
 
other ownership
 
interests it
 
holds, from
 
time to
 
time, in
 
the Borrower
 
and K2021,
 
together
with all its debt claims (on shareholder loan account or otherwise) against the Borrower
 
and K2021.
115
SCHEDULE 10
 
ACCEPTABLE LENDERS
1.
SA BANKS
Absa Bank Limited
The Standard Bank of South Africa Limited
Investec Bank Limited
FirstRand Limited
Nedbank Group Limited
2.
FINANCIAL INSTITUTIONS
 
Aluwani Capital Partners Proprietary Limited
Liberty Group Limited
Momentum Metropolitan Holdings Limited
Momentum Metropolitan Life Limited
Old Mutual Life Assurance Company (South Africa) Limited
Old Mutual Limited
Old Mutual Specialised Finance Proprietary Limited
Futuregrowth Limited
Ninety-One SA Proprietary Limited
Stanlib Limited
Ashburton Fund Managers (Pty) Ltd
3.
AFFILIATES
Any affiliate, subsidiary or holding company of the banks and financial institutions listed in this Appendix, and any fund
or entity managed by any of them or any of their affiliates
116
SCHEDULE 11
 
DISCLOSURE SCHEDULE
 
 
 
 
 
 
 
117
CLAUSE NO
CLAUSE NAME
DISCLOSURE
20.14
No proceedings
CCMS received a summons (Case no.:26360/2015) from GJ Attorneys on behalf of Mosotlale Kildare Clothing (Pty) Limited (
Mosotlale
) on 14
December 2015. Mosotlale is claiming an amount of R221,000 together with costs and interest capitalised at 9% per annum. CCMS is defending the
action and claim. No correspondence has been received from Mosotlale since 28 January 2016. The summons and correspondence have been provided
to the Purchaser and included in the Virtual Data Room.
CCMS received a letter from the Breytenbach Mavuso Inc on behalf of Prestprops 1265 CC on 10 August 2021 claiming a suspected breach of
contract. The letter received and all further correspondence has been included in the Virtual Data Room. No value has been indicated
Xavier Bapoo (
Bapoo
) lodged an application with the Labour Court of (Case no.:J3006/17) on 11 September 2018 for what he termed was a
constructive dismissal, after having failed to meet his sales commission targets. Bapoo was claiming an amount of R45,000 related his salary for
November 2017 to January 2018. The application was defended and no further correspondence has been received. Bapoo’s previous attorney
(Kirchmanns Inc.) has withdrawn from the matter effective 6 July 2021 and no new attorney has been appointed.
Main Street 1723 was notified on 13 May 2021 of a CCMA arbitration hearing (scheduled for 14 July 2021) in respect of an ‘Equal pay for work of
equal value - Arbitrary ground’ case brought by Shosholoza Workers Union of South Africa (
Showusa
) on behalf of current employee, Amanda
Mqanda. The hearing was postponed until 10 November 2021 for the Commissioner to have the Main Street 1723 manager present at the hearing.
20.18
Anti-corruption
Confirmed that all businesses are in compliance with applicable anti-corruption laws. There are no formal documented policies in place at present.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
118
20.19
Security and
Financial
Indebtedness
Absa Bank Limited, to be repaid on the first Utilisation Date
Borrower
Lender
Facility Description
Facility Limit
CCMS
Absa Bank Limited
Facility A
ZAR182,812,000
CCMS
Absa Bank Limited
Facility B
ZAR275,000,000
CCMS
Absa Bank Limited
Facility C
ZAR215,000,000
CCMS
Absa Bank Limited
Overdraft Facility
ZAR125,000,000
CCMS
Absa Bank Limited
Guarantee
ZAR205,777
CCMS
Absa Bank Limited
Guarantee
ZAR345,000
Main Street 1723
Absa Bank Limited
Guarantee
ZAR530,716
Main Street 1723
Absa Bank Limited
Guarantee
ZAR200,000
Main Street 1723
Absa Bank Limited
Corporate Cards
ZAR100,000
Main Street 1723
Absa Bank Limited
Trading Limits
ZAR5,000,000
Main Street 1723
Absa Bank Limited
Trading Limits
ZAR2,000,000
Main Street 1723
Absa Bank Limited
Trading Limits
ZAR5,000,000
Main Street 1723 and Cash
Connect Rentals
Absa Bank Limited
Asset Finance Facility
ZAR55,000,000
FirstRand Bank Limited (acting through its Wesbank division)
The Wesbank instalment sale agreements dated 13 March, 2017 (in respect of Volkswagen
 
Caddy with engine number CLC154426 with a cash price
of R299,752.39) and 14 March, 2017 (in respect of Volkswagen
 
Caddy with engine number CLC153944 with a cash price of R274,326.39).
Borrower
Lender
Facility Description
Facility Limit
CCMS
FirstRand Bank Limited
Corporate Cards
ZAR822,721
Main Street 1723
FirstRand Bank Limited
Guarantee
ZAR2,573,947
Main Street 1723
FirstRand Bank Limited
Corporate Cards
ZAR200,000
Main Street 1723
FirstRand Bank Limited
Corporate Cards
R250,000
Credit cards and petrol cards held with RMB. See the listing of guarantees in 23.19 below
20.19
Security and
Financial
Indebtedness
Guarantee and Security has been provided to Absa Bank Limited in terms of the CTA and Commercial Asset Facility.
 
 
 
 
 
 
119
23.18
Loans or credit
Main Street 1723 – deposit advance and merchant advance product disclosed
Cash Connect Capital – short term loans (same as K2020)
There are inter-group loans between Cash Connect Management Solutions and the following:
Cash Connect Capital
Cash Connect Rentals
Deposit Manager
Main Street 1723
There are inter-group loans between Main Street 1723 and the following:
Kazang Prepaid Proprietary Limited
Sandulela Technology Proprietary Limited
There are inter-company loans between Ovobix and Luxanio and their respective shareholders that will be purchased by Net 1.
Loan from CCMS to Net1 for R350m disclosed
23.19
No guarantees or
indemnities
Existing guarantee in place between CCMS and K2020 which RMB requested for their funding is disclosed
Lease
 
demand
 
guarantee
 
in
 
the
 
amount
 
of
 
R205,777
 
entered
 
into
 
between
 
FirstRand
 
Bank
 
Limited
 
(as
 
guarantor),
 
CCMS
 
(as
 
applicant)
 
and
Accelerate Property
 
Fund (Proprietary)
 
Limited
 
(as beneficiary)
 
(
Accelerate
) on
 
or
 
about
 
6
 
December 2017
 
in respect
 
of
 
the
 
lease agreement
entered into between CCMS (as lessee) and Accelerate in respect of offices situated at 17th Floor, Portside, 4 Bree Street, Cape Town, 8001.
Lease
 
demand
 
guarantee
 
in
 
the
 
amount
 
of
 
R345,000
 
entered
 
into
 
between
 
FirstRand
 
Bank
 
Limited
 
(as
 
guarantor),
 
CCMS
 
(as
 
applicant)
 
and
Chandolin Investments
 
(Proprietary) Limited
 
(as beneficiary)
 
(
Chandolin
) on
 
or about
 
5 August
 
2016 in
 
respect of
 
the lease agreement
 
entered
into between CCMS (as lessee) and Chandolin in respect of the premises situated at 4 Harris Road, Sandton, 2196.
Performance demand guarantee in the amount R200,000 with Syntell, Main Street 1723 and ABSA (as
 
guarantor), Main Street 1723 (as applicant)
and Syntell Proprietary Limited (as beneficiary)
 
(
Syntell
) in respect of Main
 
Street 1723's obligations under a contract
 
between Main Street 1723
and Syntell in respect of the payment of funds due to Syntell.
Lease demand guarantee
 
in the
 
amount of R530,715.72
 
entered into
 
between ABSA (as
 
guarantor), Main Street
 
1723 (as applicant)
 
and Fundamental
Holdings Proprietary Limited
 
(as beneficiary) (
Fundamental Holdings
) on or
 
about 30 July
 
2018 in respect
 
of the
 
lease agreement entered
 
into
between
 
Main
 
Street 1723
 
(as
 
lessee) and
 
Fundamental
 
Holdings
 
in
 
respect
 
of
 
Erf
 
Sable
 
Square, c/o
 
Bosmansdam
 
Road
 
and
 
Ratanga
 
Roads,
Milnerton Cape Town.
Sandulela Technology
 
was required
 
to provide
 
the City
 
of Cape
 
Town
 
with a
 
guarantee/performance security
 
in the
 
amount of
 
R2,573,946.76
(
Sandulela Guarantee
) as a condition to the tender contract.
 
Sandulela Technology approached FirstRand Bank Limited (acting through its RMB
Corporate Banking division) (
RMB
) to provide the City of Cape Town with the Sandulela Guarantee and RMB simultaneously required Sandulela
Technology to provide security or obtain a third party indemnity to indemnify RMB against the Sandulela Guarantee.
 
Accordingly:
Main Street 1723 (as holder of 49% of the shares
 
in Sandulela Technology) provided
 
a third party indemnity to RMB in respect of the Sandulela
Guarantee (the
Main Street 1723 Indemnity
); and
Nkululeko Ntsikelelo Mvulana indemnified
 
Main Street 1723
 
against payment to RMB
 
under the Main Street
 
1723 Indemnity for
 
an amount in
excess
 
of
 
the
 
pro
 
rata
 
shareholding
 
ratio
 
(as
 
required
 
under
 
the
 
shareholders
 
agreement
 
in
 
respect
 
of
 
Sandulela
 
Technology)
 
(the
Mvulana
Indemnity
).
 
 
 
 
 
 
1
SIGNATURE PAGE
THE BORROWER
/s/ Steven J Heilbron
For and on behalf of:
Cash Connect Management Solutions
Proprietary Limited
For and on behalf of:
Cash Connect Management Solutions
Proprietary Limited
Name:
Steven J. Heilbron
Name:
Office:
Director
Office:
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
2
SIGNATURE PAGE
THE GUARANTORS
/s/ Steven J Heilbron
For and on behalf of:
Cash Connect Rentals Proprietary Limited
For and on behalf of:
Cash Connect Rentals Proprietary Limited
Name:
Steven J. Heilbron
Name:
Office:
Director
Office:
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
3
SIGNATURE PAGE
THE GUARANTORS
/s/ Steven J Heilbron
For and on behalf of:
Deposit Manager Proprietary Limited
For and on behalf of:
Deposit Manager Proprietary Limited
Name:
Steven J. Heilbron
Name:
Office:
Director
Office:
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
4
SIGNATURE PAGE
THE GUARANTORS
/s/ Steven J Heilbron
For and on behalf of:
Cash Connect Capital Proprietary Limited
For and on behalf of:
Cash Connect Capital Proprietary Limited
Name:
Steven J. Heilbron
Name:
Office:
Director
Office:
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
5
SIGNATURE PAGE
THE GUARANTORS
/s/ Steven J Heilbron
For and on behalf of:
Main Street 1723 Proprietary Limited
For and on behalf of:
Main Street 1723 Proprietary Limited
Name:
Steven J. Heilbron
Name:
Office:
Director
Office:
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
6
SIGNATURE PAGE
THE GUARANTORS
/s/ Steven J Heilbron
For and on behalf of:
K2021477132 (South Africa) Proprietary
Limited
For and on behalf of:
K2021477132 (South Africa) Proprietary
Limited
Name:
Steven J. Heilbron
Name:
Office:
Director
Office:
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
7
SIGNATURE PAGE
THE GUARANTORS
/s/ Steven J Heilbron
For and on behalf of:
K2020263969 (South Africa) Proprietary
Limited
For and on behalf of:
K2020263969 (South Africa) Proprietary
Limited
Name:
Steven J. Heilbron
Name:
Office:
Director
Office:
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
8
SIGNATURE PAGE
THE ARRANGER
/s/ Kedy Mazibuko
 
/s/ Kayleigh Spurway
For and on behalf of:
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
For and on behalf of:
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
Name:
Kedy Mazibuko
Name:
Kayleigh Spurway
Office:
Authorised
Office:
Authorised
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
9
SIGNATURE PAGE
THE FACILITY AGENT
/s/ Kedy Mazibuko
 
/s/ Kayleigh Spurway
For and on behalf of:
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
For and on behalf of:
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
Name:
Kedy Mazibuko
Name:
Kayleigh Spurway
Office:
Authorised
Office:
Authorised
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
10
SIGNATURE PAGE
THE ORIGINAL TERM LENDER\
/s/ Kedy Mazibuko
 
/s/ Kayleigh Spurway
For and on behalf of:
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
For and on behalf of:
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
Name:
Kedy Mazibuko
Name:
Kayleigh Spurway
Office:
Authorised
Office:
Authorised
(who warrants his authority)
(who warrants his authority)
 
 
 
 
 
 
11
SIGNATURE PAGE
THE GBF LENDER
/s/ Walley Laurens
 
/s/ Gerard Jagga
For and on behalf of:
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
For and on behalf of:
FirstRand Bank Limited (acting through its
Rand Merchant Bank division)
Name:
Wally Laurens
Name:
Gerard Jagga
Office:
Authorised
Office:
Authorised
(who warrants his authority)
(who warrants his authority)