1
AMENDMENT AND RESTATEMENT
AGREEMENT
between
amongst others
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
(as
Term/RCF Borrower
)
FIRSTRAND BANK LIMITED
(ACTING THROUGH ITS RAND MERCHANT BANK DIVISION)
(as
)
and
BOWWOOD AND MAIN NO 408 (RF) PROPRIETARY LIMITED
(as
Debt Guarantor
)
Exhibit 10.51
ii
iii
ANNEXURES
1
1
PARTIES
1.1 The Parties to this Agreement are –
1.1.1 Lesaka Technologies Proprietary Limited, registration number 2002/031446/07 (as
Term/RCF
Borrower
);
1.1.2 the Parties listed in
The Obligors
) as original obligors (the
Original Obligors
);
1.1.3 Investec Bank Limited (acting through its Investment Banking division: Corporate Solutions)
("
Investec
") as original lender under the Senior Term Facilities and the Senior RCF;
1.1.4 FirstRand Bank Limited (acting through its Rand Merchant Bank division) ("
RMB
") as original
lender under the Senior Term Facilities and the Senior RCF (in this capacity, together with
Investec, the
Original Senior Lenders
);
1.1.5 RMB, as original lender under the Working Capital Facilities (in this capacity, the
Original WCF
Lender
);
1.1.6 FirstRand Bank Limited (acting through its WesBank division) as original lender under the
Wesbank Facility (in this capacity, as
WesBank
);
1.1.7 RMB, as agent of the other Finance Parties (in this capacity, as
Facility Agent
); and
1.1.8 Bowwood and Main No 408 (RF) Proprietary Limited, registration number 2024/200503/07, as
holder of security for the benefit of the Finance Parties (as
Debt Guarantor
).
1.2 The Parties agree as set out below.
2
INTERPRETATION
2.1
Definitions
In this Agreement, unless the context indicates a contrary intention, terms and expressions defined
in the Amended and Restated CTA have the same meaning and the following words and expressions
bear the meanings assigned to them and cognate expressions bear corresponding meanings -
2.1.1
Agreement
2.1.2
Amended and Restated CTA
Amended and Restated Common
Terms Agreement
" annexed hereto as
;
2.1.3
Amended and Restated Senior RCF Agreement
"
Amended and Restated Senior RCF Agreement
" annexed hereto as
Error! Reference source
not found.
;
2
2.1.4
Amended and Restated Senior Term Facility A Agreement
titled "
Amended and Restated Senior Term Facility A Agreement
" annexed hereto as
Error!
Reference source not found.
;
2.1.5
Amended and Restated Senior Term Facility B Agreement
titled "
Amended and Restated Senior Term Facility B Agreement
" annexed hereto as
Error!
Reference source not found.
;
2.1.6
Amendment and Restatement Documents
2.1.6.1 this Agreement;
2.1.6.2 the Amended and Restated CTA;
2.1.6.3 the Amended and Restated Senior RCF Agreement;
2.1.6.4 the Amended and Restated Senior Term Facility A Agreement; and
2.1.6.5 the Amended and Restated Senior Term Facility B Agreement,
and
Amendment and Restatement Document
, as the context requires, means any one of
them;
2.1.7
Amendment CP Documents
Amendment conditions precedent
);
2.1.8
Amendment Date
by clause
2.1.9
CP Longstop Date
writing on or before such date;
2.1.10
CTA
Common Terms Agreement
" concluded on
27 February 2025 between,
inter alios
, the Term/RCF Borrower, the Original Obligors, the
Original Senior Lenders, the Original WCF Lender, Wesbank, the Facility Agent and the Debt
Guarantor;
2.1.11
Original Finance Documents
2.1.11.1 the CTA;
2.1.11.2 the Senior RCF Agreement;
2.1.11.3 the Senior Term Facility A Agreement; and
2.1.11.4 the Senior Term Facility B Agreement;
3
2.1.12
Parties
Party
, as the context requires, means any
one of them;
2.1.13
Senior RCF Agreement
Senior RCF Agreement
"
concluded on or about 27 February 2025 between the Term/RCF Borrower, the Original Senior
Lenders and the Facility Agent;
2.1.14
Senior Term Facility A Agreement
Senior Term Facility
A Agreement
" concluded on or about 27 February 2025 between the Term/RCF Borrower, the
Original Senior Lenders and the Facility Agent;
2.1.15
Senior Term Facility B Agreement
Senior Term Facility
B Agreement
" concluded on or about 27 February 2025 between the Term/RCF Borrower, the
Original Senior Lenders and the Facility Agent; and
2.1.16
Signature Date
2.2
Construction
The provisions of clause 2.3 (
Construction
), clause 2.4 (
Third party rights
), clause 35 (
Notices
),
clause 36 (
Amendments and Waivers
), clause 38.6 (
Renunciation of Benefits
), clause 40
(
Jurisdiction
) and clause 41 (
Waiver of Immunity
) of the Amended and Restated CTA are
incorporated by reference herein, mutatis mutandis, as if repeated herein in full in this Agreement.
3
INTRODUCTION
The Parties have agreed to amend and restate the Original Finance Documents and wish to record in
writing their agreement in respect of this and the matters ancillary thereto.
4
SUSPENSIVE CONDITIONS
4.1 This Agreement is subject to the fulfilment (or waiver) of the suspensive condition that the Term/RCF
Borrower shall have delivered each of the Amendment CP Documents ("
Suspensive Condition
")
to the Facility Agent in form and substance satisfactory to it on or before the CP Longstop Date. The
Facility Agent shall notify the Term/RCF Borrower of the Suspensive Condition being fulfilled.
4.2 The Term/RCF Borrower shall use its best endeavours to procure the fulfilment of the Suspensive
Condition.
4.3 The Suspensive Condition is expressed to be solely for the benefit of the Finance Parties which may
(through the Facility Agent), by giving written notice to that effect to the Term/RCF Borrower on or
before the CP Longstop Date, waive the delivery of any of the Amendment CP Documents (or
postpone the date for fulfilment thereof). Such waiver shall not affect the Finance Parties or the
Facility Agent's rights in respect of any breach by the Term/RCF Borrower of clause
provision of this Agreement.
4
4.4 If the delivery of any of the Amendment CP Documents is not fulfilled for any reason whatsoever and
is not waived in terms of clause
4.4.1 this whole Agreement shall be of no force or effect;
4.4.2 the Parties shall be entitled to be restored as near as possible to the positions in which they
would have been, had this Agreement not been entered into;
4.4.3 no Party shall have any claim against any other in terms of this Agreement except for such
claims (if any) as may arise from a breach of this clause
Agreement by which the Parties remain bound.
4.5 Notwithstanding anything to the contrary contained in this Agreement, if the Facility Agent issues a
letter to the Term/RCF Borrower confirming the fulfilment, to the Facility Agent's satisfaction, deferral
and/or waiver of the Suspensive Condition on the mistaken belief that the delivery of all of the
Amendment CP Documents have been fulfilled or waived in accordance with this Agreement and it
is subsequently discovered that any such delivery has not been fulfilled or waived, then this
Agreement shall continue to be valid and enforceable in respect of the monies drawn down or
advanced and the Term/RCF Borrower shall procure that the delivery of such outstanding
Amendment CP Documents is fulfilled within 10 Business Days of being notified thereof in writing by
the Facility Agent, failing which the Facility Agent shall be entitled to demand repayment of all
amounts outstanding under the Finance Documents from the date on which such monies were
advanced, either immediately or within such period as the Facility Agent may stipulate in writing to
the Term/RCF Borrower.
5
AMENDMENT AND RESTATEMENT
With effect from the Amendment Date -
5.1 the CTA is hereby amended and restated, but not novated, in the form set out in
shall be read and construed for all purposes in accordance with the terms of the Amended and
Restated CTA;
5.2 the Senior RCF Agreement is hereby amended and restated, but not novated, in the form set out in
Error! Reference source not found.
in accordance with the terms of the Amended and Restated Senior RCF Agreement;
5.3 the Senior Term Facility A Agreement is hereby amended and restated, but not novated, in the form
set out in
Error! Reference source not found.
purposes in accordance with the terms of the Amended and Restated Senior Term Facility A
Agreement; and
5
5.4 the Senior Term Facility B Agreement is hereby amended and restated, but not novated, in the form
set out in
Error! Reference source not found.
purposes in accordance with the terms of the Amended and Restated Senior Term Facility B
Agreement.
6
SECURITY CONFIRMATIONS
6.1
Obligor confirmations
Each Obligor confirms that, notwithstanding the conclusion of this Agreement -
6.1.1 the guarantee contained in clause 20 (
Guarantee and Indemnity
) of the Amended and Restated
CTA remains in full force and effect provided that it shall also be construed with reference to
the obligations of the Obligors as amended and restated by this Agreement;
6.1.2 the subordination-related and other undertakings provided by them in the Subordination
Agreement remains in full force and effect provided that it shall also be construed with reference
to the obligations of the Obligors as amended and restated by this Agreement; and
6.1.3 each Security Document and the Counter-indemnity Agreement remains in full force and effect
provided that they shall also be construed with reference to the obligations of the Obligors as
amended and restated by this Agreement.
6.2
Debt Guarantor confirmations
The Debt Guarantor confirms that, notwithstanding the conclusion of this Agreement -
6.2.1 the Debt Guarantee remains in full force and effect provided that it shall also be construed with
references to the obligations of the Obligors as amended and restated by this Agreement; and
6.2.2 the obligations of the Obligors arising under the Amendment and Restatement Documents
(including this Agreement) are included in the Guaranteed Obligations (as such term has been
defined in the Debt Guarantee).
7
CONSENTS
7.1 The Parties hereby agree to the amendments to the Original Finance Documents as contemplated
in clause
Amendment and Restatement
).
7.2 The Parties hereby agree to the entry by each relevant party into each Amendment and Restatement
Document.
6
8
REPRESENTATIONS AND WARRANTIES
8.1 The representations and warranties set out in clause 21 (
Representations
) of the Amended and
Restated CTA are deemed to be made by each Obligor on the Signature Date and the Amendment
Date.
8.2 Each representation is made by reference to the circumstances existing at the Signature Date and
the Amendment Date.
9
AMENDMENTS AND WAIVERS
9.1
Required consents
9.1.1 Any term of this Agreement may be amended or waived only with the consent of the Finance
Parties and the Obligors and any such amendment or waiver will be binding on all Parties.
9.1.2 The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this clause
.
9.2
Amendments and Waivers
9.2.1 No amendment or waiver contemplated by this clause
) shall be
of any force or effect unless in writing and signed by or on behalf of all of the Parties.
9.2.2 An amendment or waiver which relates to the rights or obligations of the Facility Agent or the
Debt Guarantor (each in its capacity as such) may not be effected without the consent of the
Facility Agent or the Debt Guarantor (as applicable).
10
DESIGNATION AS A FINANCE DOCUMENT
Pursuant to clause 2.1.87.2 of the Amended and Restated CTA, this Agreement is a Finance Document.
11
PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal, invalid, unenforceable or inoperable
in any respect under any law of any jurisdiction, neither the legality, validity, enforceability or operation of
the remaining provisions nor the legality, validity, enforceability or operation of such provision under the
law of any other jurisdiction will in any way be affected or impaired. The term
inoperable
(
) shall include, without limitation, inoperable by way of suspension or cancellation.
12
COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this has the same effect as if the
signatures on the counterparts were on a single copy of this Agreement.
7
13
SOLE AGREEMENT
The Finance Documents constitute the sole record of the agreement between the Parties in regard to the
subject matter thereof.
14
NO IMPLIED TERMS
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not
recorded in this Agreement in regard to the subject matter hereof.
15
INDEPENDENT ADVICE
Each Party acknowledges that it has been free to secure independent legal and other advice as to the
nature and effect of all of the provisions of this Agreement and that it has either taken such independent
legal and other advice or dispensed with the necessity of doing so. Further, each Party acknowledges
that all of the provisions of this Agreement and the restrictions therein contained are part of the overall
intention of the Parties in connection with this Agreement.
16
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with this Agreement
is governed by South African law.
17
COSTS
All properly documented and agreed costs and expenses in relation to the negotiation, drafting,
preparation and implementation of this Agreement shall be borne and paid by the Borrower.
1
ANNEXURE
Term/RCF Borrower
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
Name of WCF Borrowers
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Cash Connect Management Solutions
Proprietary Limited
South Africa
2006/010530/07
2
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
3
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
4
Adumo (RF) Proprietary Limited
South Africa
2017/540380/07
5
Cash Connect Rentals Proprietary Limited
South Africa
2009/007139/07
6
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
7
Lesaka Alternative Digital Products
Proprietary Limited (previously named
"EasyPay Proprietary Limited")
South Africa
1983/008597/07
2
Name of Original Guarantors
Jurisdiction of
Incorporation /
formation
Registration number
(or equivalent, if any)
1
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
2
Lesaka Technologies, Inc.
State of Florida,
United States
P9700001098
3
Prism Holdings Proprietary Limited
South Africa
1998/018949/07
4
Lesaka Finance Holdings Proprietary Limited
(previously named "Net1 Finance Holdings
Proprietary Limited")
South Africa
1998/020801/07
5
Lesaka Alternative Digital Products
Proprietary Limited (previously named
"EasyPay Proprietary Limited")
South Africa
1983/008597/07
6
Prism Payment Technologies Proprietary
Limited
South Africa
1990/005062/07
7
Cash Connect Management Solutions
Proprietary Limited
South Africa
2006/010530/07
8
Deposit Manager Proprietary Limited
South Africa
2010/016889/07
9
Cash Connect Rentals Proprietary Limited
South Africa
2009/007139/07
10
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
11
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
12
GAAP Point-of-Sale Proprietary Limited
South Africa
1999/003571/07
13
Lesaka Payments Proprietary Limited
(previously named "Adumo Payments
Proprietary Limited")
South Africa
2015/427833/07
14
Adumo Payouts Proprietary Limited
South Africa
2005/010672/07
15
Lesaka Merchant Technologies Proprietary
Limited (previously named "Adumo
Technologies Proprietary Limited")
South Africa
2000/029811/07
16
Adumo Management Company Proprietary
Limited
South Africa
2021/147994/07
17
Adumo (RF) Proprietary Limited
South Africa
2017/540380/07
18
Ovobix (RF) Proprietary Limited
South Africa
2013/068120/07
19
Luxanio 227 Proprietary Limited
South Africa
2018/605739/07
20
K
2021477132 (South Africa) Proprietary
Limited
South Africa
2021/477132/07
3
21
EasyPay Cash Proprietary Limited
South Africa
2001/028826/07
22
Lesaka Utilities Proprietary Limited
(previously named "Recharger Proprietary
Limited")
South Africa
2022/218906/07
4
ANNEXURE
1
Amendment and Restatement Documents
1.1 An original of each of the Amendment and Restatement Documents -
1.1.1 this Agreement;
1.1.2 the Amended and Restated CTA;
1.1.3 the Amended and Restated Senior RCF Agreement;
1.1.4 the Amended and Restated Senior Term Facility A Agreement; and
1.1.5 the Amended and Restated Senior Term Facility B Agreement.
2
Legal Opinions
2.1 A legal opinion of Werksmans Inc, addressed to the Facility Agent for and on behalf of the Finance
Parties, substantially in the form distributed to the Original Senior Lenders prior to signing this
Agreement in respect of -
2.1.1 the legality, validity and enforceability of the Amendment and Restatement Documents;
2.1.2 the capacity, powers and authority of the Obligors and other Security Providers (other than
Holdco) which are party to the Amendment and Restatement Documents, to enter into and
perform their obligations under the Amendment and Restatement Documents and the due
execution of those documents.
3
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 Amendment
and Restatement Documents.
4
Other documents and evidence
A copy of any other authorisation or other document, opinion or assurance which the Facility Agent
considers to be necessary or desirable (if it has notified the Term/RCF Borrower accordingly) in
connection with the entry into and performance of the transactions contemplated by any Amendment and
Restatement Document or for the validity and enforceability of any Amendment and Restatement
Document.
5
ANNEXURE C - AMENDED AND RESTATED CTA
6
AMENDED AND RESTATED COMMON TERMS AGREEMENT
SENIOR TERM LOAN, REVOLVING LOAN AND WORKING CAPITAL FACILITIES
and
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
(as
Term/RCF Borrower
)
and
FIRSTRAND BANK LIMITED
(acting through its Rand Merchant Bank division)
(as
Facility Agent
)
and
BOWWOOD AND MAIN NO 408 (RF) PROPRIETARY LIMITED
(as
Debt Guarantor
)
ii
iii
ANNEXURES
4
5
PARTIES
5.1 The Parties to this Agreement are –
5.1.1 Lesaka Technologies, Inc. (
Holdco
);
5.1.2 Lesaka Technologies Proprietary Limited, registration number 2002/031446/07 (the
Term/RCF
Borrower
);
5.1.3 the Parties listed in Part I of Annexure A (
The Original Parties
) as general banking facility
borrowers (the
Original WCF Borrowers
);
5.1.4 the Parties listed in Part I of Annexure A (
The Original Parties
) as original guarantors (the
Original Guarantors
);
5.1.5 the Financial Institutions listed in Part II of Annexure A (
the Original Parties
), as original lenders
under the Senior Term Facilities and the Senior RCF (in this capacity, together with the Original
WCF Lender, the
Original Senior Lenders
);
5.1.6 FirstRand Bank Limited (acting through its Rand Merchant Bank division) as original lender
under Working Capital Facilities (in this capacity, the
Original WCF Lender
);
5.1.7 FirstRand Bank Limited (acting through its WesBank division) as original lender under the
WesBank Facility (in this capacity,
WesBank
);
5.1.8 FirstRand Bank Limited (acting through its Rand Merchant Bank division) as agent of the other
Finance Parties (the
Facility Agent
); and
5.1.9 Bowwood and Main No 408 (RF) Proprietary Limited, registration number 2024/200503/07, as
holder of security for the benefit of the Finance Parties (the
Debt Guarantor
).
5.2 The Parties agree as set out below.
6
INTERPRETATION
6.1 In this Agreement, unless the context indicates a contrary intention, the following words and
expressions bear the meanings assigned to them and cognate expressions bear corresponding
meanings –
5
6.1.1
Acceptable Bank
6.1.1.1 any of Absa Bank Limited, FirstRand Bank Limited, Investec Bank Limited, Nedbank
Limited and The Standard Bank of South Africa Limited;
6.1.1.2 a bank or financial institution which has an international rating for its long-term unsecured
and non-credit enhanced debt obligations of BBB- or higher by Standard & Poor's Ratings
Services or Baa3 or higher by Moody's Investor Services Limited, or a comparable rating
from an internationally recognised credit rating agency; or
6.1.1.3 any other bank or financial institution approved by the Facility Agent;
6.1.2
Accession Letter
means -
6.1.2.1 in relation to an Additional Guarantor, a document substantially in the form set out in Part
I of
6.1.2.2 in relation to an Additional WCF Borrower, a document substantially in the form set out in
Part II of
6.1.2.3 in relation to a Hedge Counterparty, a document substantially in the form set out in Part
III of
6.1.2.4 in relation to a WCF Lender, a document substantially in the form set out in Part IV of
6.1.3
Accession Letter (Recharger)
30 September 2025 in terms of which Recharger acceded to the Original Common Terms
Agreement, the Counter-indemnity Agreement, the Security Cession and Pledge and the
Subordination Agreement on the terms provided therein;
6.1.4
Acquisition GBF
Borrower on or about 30 September 2024, to enable the Term/RCF Borrower to acquire all of
the shares and claims in Adumo;
6.1.5
Additional Business Day
6.1.6
Additional Guarantor
with clause
6.1.7
Additional Obligor
6.1.8
Additional WCF Borrower
borrower under a Working Capital Facility on it becoming an Additional WCF Borrower in
accordance with clause
6
6.1.9
Adumo
private company with limited liability duly incorporated in accordance with the laws of South
Africa;
6.1.10
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;
6.1.11
Agreement
6.1.12
Amended and Restated Senior RCF Agreement
facility agreement of up to the Senior RCF Commitment, titled "
Amended and Restated Senior
RCF Agreement
" dated on or about the Signature Date, between the Original Senior RCF
Lenders, the Facility Agent and the Term/RCF Borrower (as borrower);
6.1.13
Amended and Restated Senior Term Facility A Agreement
loan facility agreement of up to Senior Term Facility A Commitment, titled "
Amended and
Restated Senior Term Facility A Agreement
", dated on or about the Signature Date, between
the Original Senior Term Facility A Lenders, the Facility Agent and the Term/RCF Borrower (as
borrower);
6.1.14
Amended and Restated Senior Term Facility B Agreement
term loan facility agreement of up to Senior Term Facility B Commitment, titled "
Amended and
Restated Senior Term Facility B Agreement
" dated on or about the Signature Date, between
the Original Senior Term Facility B Lenders, the Facility Agent and the Term/RCF Borrower (as
borrower);
6.1.15
Amendment and Restatement Agreement
Amendment
and Restatement Agreement
" concluded on or about the Signature Date between the Parties
in terms of which,
inter alia
, (i) the Original Common Terms Agreement is amended and
restated to be in the form of this Agreement, (ii) the Original Senior RCF Agreement is amended
and restated to be in the form of the Amended and Restated Senior RCF Agreement, (iii) the
Original Senior Term Facility A Agreement is amended and restated to be in the form of the
Amended and Restated Senior Term Facility A Agreement and (iv) the Original Senior Term
Facility B Agreement is amended and restated to be in the form of the Amended and Restated
Senior Term Facility B Agreement;
6.1.16
Amendment CP Documents
Restatement Agreement;
6.1.17
Amendment Date
Agreement;
7
12
121
1
TT
]R[R]T[T
RR
-
-´-
+=
6.1.18
Applicable Margin
, in relation to a Loan, has the meaning given to that term in the Senior
Facility Agreement relating to that Loan;
6.1.19
Auditors
in advance by the Facility Agent;
6.1.20
Availability Period
, in relation to the applicable Senior Term Facility or the Senior RCF, has
the meaning given to that term in the applicable Senior Facility Agreement;
6.1.21
Available Commitment
, in relation to the applicable Senior Term Facility or the Senior RCF,
means a Lender's Commitment under that Senior Facility minus -
6.1.21.1 the amount of its participation in any outstanding Loans under that Senior Facility; and
6.1.21.2 in relation to any proposed Utilisation, the amount of its participation in any Loans that are
due to be made under that Senior Facility on or before the proposed Utilisation Date;
6.1.22
Available Facility
, in relation to the applicable Senior Term Facility or the Senior RCF, means
the aggregate for the time being of each Lender's Available Commitment in respect of that
Senior Facility;
6.1.23
Base Rate
an Interest Period of a Term Rate Loan or Unpaid Sum which is less than a full period of three
months (a
Broken JIBAR Period
), the rate determined in accordance with the following
formula -
where -
R = the Base Rate;
R
1
would result in R
1
cent.;
R
2
T = the number of days in the Broken JIBAR Period;
T
1
1
Broken JIBAR Period;
8
T
2
2
Broken JIBAR Period;
6.1.24
Borrower
6.1.25
Break Costs
, in relation to any Senior Facility, has the meaning given to that term in the
applicable Senior Facility Agreement;
6.1.26
Break Gains
, in relation to any Senior Facility, has the meaning given to that term in the
applicable Senior Facility Agreement;
6.1.27
Business Day
6.1.27.1 a day (other than a Saturday, a Sunday or official public holiday) on which banks are open
for general business in Johannesburg; and
6.1.27.2 in relation to -
6.1.27.2.1 any date for payment or purchase of an amount relating to a Compounded Rate
Loan; or
6.1.27.2.2 the determination of the first day or the last day of an Interest Period for a
Compounded Rate Loan, or otherwise in relation to the determination of the length
of such an Interest Period),
which is an Additional Business Day;
6.1.28
Cash Connect Capital
2017/029430/07, a private company duly incorporated in accordance with the laws of South
Africa;
6.1.29
Cash Connect Capital RCF Agreement
concluded between
inter alios
Cash Connect Capital and RMB on or about 29 November 2022,
pursuant to which RMB agreed to make a revolving credit facility of R300,000,000 available to
Cash Connect Capital;
6.1.30
Cash Connect Capital RCF Finance Documents
in the Cash Connect Capital RCF Agreement;
6.1.31
Cash Connect Group Cession and Pledge
security provided by Cash Connect Capital, Cash Connect Management, Cash Connect
Rentals, Deposit Manager and Main Street 1723 to RMB as security for the obligations owing
to RMB on account of the Cash Connect Capital RCF Finance Documents and the Cash
Connect Management Finance Documents;
9
6.1.32
Cash Connect Management
Limited, registration number 2006/010530/07, a private company with limited liability duly
incorporated in accordance with the laws of South Africa;
6.1.33
Cash Connect Management Facilities Agreement
on or about 24 January 2022 between Cash Connect Management and RMB, pursuant to which
RMB made facilities of R1,050,000,000 available to Cash Connect Management;
6.1.34
Cash Connect Management Finance Documents
defined in the Cash Connect Management Facilities Agreement;
6.1.35
Cash Connect Management Release Agreement
agreements, dated on or about the Original Signature Date, pursuant to which RMB agrees to
release -
6.1.35.1 any all security held by it in relation to the Cash Connect Management Finance
Documents on the terms and on the conditions contained therein; and
6.1.35.2 Cash Connect Management, Cash Connect Rentals, Deposit Manager and Main Street
1723 from the Cash Connect Group Cession and Pledge;
6.1.36
Cash Connect Rentals
means Cash Connect Rentals Proprietary Limited, registration number
2009/007139/07, a private company with limited liability duly incorporated in accordance with
the laws of South Africa;
6.1.37
Central Bank Rate
6.1.38
Central Bank Rate Adjustment
Terms ;
6.1.39
Closing Date
6.1.40
Code
6.1.41
Commitment
WesBank Commitment or a WCF Commitment;
6.1.42
Companies Act
that act;
6.1.43
Compliance Certificate
(
Form of Compliance Certificate
) or otherwise in the agreed form;
6.1.44
Compounded Rate Interest Payment
10
6.1.44.1 is, or is scheduled to become, payable under any Finance Document; and
6.1.44.2 relates to a Compounded Rate Loan;
6.1.45
Compounded Rate Loan
a "Compounded Rate Loan" pursuant to clause
Rate Switch
);
6.1.46
Compounded Rate Supplement
6.1.46.1 is agreed in writing by the Term/RCF Borrower and the Facility Agent;
6.1.46.2 specifies the relevant terms which are expressed in this Agreement to be determined by
reference to Compounded Rate Terms; and
6.1.46.3 has been made available to the Term/RCF Borrower and each Finance Party;
6.1.47
Compounded Rate Terms
Compounded Rate Terms
)
or in any Compounded Rate Supplement;
6.1.48
Compounded Reference Rate
Period of a Compounded Rate Loan, the percentage rate per annum which is the aggregate of
-
6.1.48.1 the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day; and
6.1.48.2 the applicable Credit Adjustment Spread;
6.1.49
Compounding Methodology Supplement
Compounded RFR Rate or the Cumulative Compounded RFR Rate, a document which -
6.1.49.1 is agreed in writing by the Term/RCF Borrower and the Facility Agent;
6.1.49.2 specifies a calculation methodology for that rate; and
6.1.49.3 has been made available to the Term/RCF Borrower and each Finance Party;
6.1.50
Confidential Information
Group, the Finance Documents or a Senior Facility in the possession of a Finance Party in its
capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance
Party in relation to, or for the purpose of becoming a Finance Party under, the Finance
Documents or a Senior Facility from either -
6.1.50.1 any member of the Group or any of its advisers; or
6.1.50.2 another Finance Party, if the information was obtained by that Finance Party from any
member of the Group,
11
in whatever form, and includes information given orally and any document, electronic file or any
other way of representing or recording information which contains or is derived or copied from
such information but excludes information that -
6.1.50.2.1 is or becomes public information other than as a result of any breach by that Finance
Party of clause
6.1.50.2.2 is identified in writing at the time of delivery as non-confidential by any member of
the Group or any of its advisers; or
6.1.50.2.3 is known by that Finance Party before the date the information is disclosed to it in
accordance with clauses
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;
6.1.51
Confidentiality Undertaking
out in Annexure I (Form of Confidentiality Undertaking) or otherwise in the agreed form;
6.1.52
Control
6.1.52.1 the power (whether by way of ownership of shares, proxy, contract, agency or otherwise)
to -
6.1.52.1.1 cast, or control the casting of, more than 50.00 per cent. of the maximum number of
votes that might be cast at a general meeting of that person; or
6.1.52.1.2 appoint or remove all, or the majority, of the directors or other equivalent officers of
that person; or
6.1.52.1.3 give directions with respect to the operating and financial policies of that person with
which the directors or other equivalent officers of that person are obliged to comply;
and/or
6.1.52.2 the holding (beneficially or legally) of more than 50.00 per cent. of the issued share capital
of that person (excluding any part of that issued share capital that carries no right to
participate beyond a specified amount in a distribution of either profits or capital),
and
Controlled
shall be construed accordingly;
6.1.53
Control Event
Mandatory prepayment -
change of control or transfer of business
);
12
6.1.54
Counter-indemnity Agreement
Original Signature Date, given by the Obligors (on a joint and several basis) in favour of the
Debt Guarantor;
6.1.55
Covenant Group
time and any partnership, Joint Venture, trust, juristic person or other entity Controlled by the
Term/RCF Borrower or any of its Subsidiaries, but specifically excluding CPS;
6.1.56
CP Longstop Date
Agreement;
6.1.57
CPS
1997/013382/07, a private company duly incorporated in accordance with the laws of South
Africa, a company which is, as at the Original Signature Date, in liquidation;
6.1.58
Credit Adjustment Spread
6.1.58.1 the rate published for the relevant tenor as a credit adjustment spread for ZARONIA which
is notified by the Facility Agent or Lender (as applicable) to the Term/RCF Borrower; or
6.1.58.2 if such rate is not so published, the credit adjustment spread shall be determined in
accordance with the methodology specified in the Compounded Rate Terms;
6.1.59
Cumulative Compounded RFR Rate
Compounded Rate Loan, the percentage rate per annum determined by the Facility Agent (or
by any other Finance Party which agrees to determine that rate in place of the Facility Agent)
in accordance with the methodology set out in
Cumulative Compounded RFR
Rate
) or in any relevant Compounding Methodology Supplement which determination shall be
binding in the absence of manifest error;
6.1.60
Daily Non-Cumulative Compounded RFR Rate
during an Interest Period for a Compounded Rate Loan, the percentage rate per annum
determined by the Facility Agent (or by any other Finance Party which agrees to determine that
rate in place of the Facility Agent) in accordance with the methodology set out in
(
Daily Non-Cumulative Compounded RFR Rate
) or in any relevant Compounding Methodology
Supplement, which determination shall be binding in the absence of manifest error;
6.1.61
Daily Rate
6.1.62
Debt Guarantee
Signature Date, given by the Debt Guarantor in favour of the Finance Parties (other than the
Debt Guarantor) for the obligations of the Obligors owed to those Finance Parties under the
Finance Documents;
13
6.1.63
Debt Guarantor Management Agreement
administration of the Debt Guarantor, dated on or about the Original Signature Date, between
the Debt Guarantor and TMF Corporate Services (South Africa) Proprietary Limited;
6.1.64
Debt Guarantor Owner Trust
Owner Trust, Master's Reference number IT000064/2025(G);
6.1.65
Default
6.1.65.1 an Event of Default; or
6.1.65.2 any event or circumstance which (with the expiry of any applicable grace period, the giving
of notice, the making of any determination under the Finance Documents or any
combination of any of the foregoing) would be an Event of Default;
6.1.66
Deposit Manager
means Deposit Manager Proprietary Limited, registration number
2010/016889/07, a private company with limited liability duly incorporated in accordance with
the laws of South Africa;
6.1.67
Disruption Event
6.1.67.1 a material disruption to those payment or communications systems or to those financial
markets which are, in each case, required to operate in order for payments to be made in
connection with the Senior Facilities (or otherwise in order for the transactions
contemplated by the Finance Documents to be carried out) which disruption is not caused
by, and is beyond the control of, any of the Parties; or
6.1.67.2 the occurrence of any other event which results in a disruption (of a technical or systems-
related nature) to the treasury or payments operations of a Party preventing that, or any
other Party –
6.1.67.2.1 from performing its payment obligations under the Finance Documents; or
6.1.67.2.2 from communicating with other Parties in accordance with the terms of the Finance
Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party
whose operations are disrupted;
6.1.68
Dormant Subsidiary
6.1.68.1 which does not trade (for itself or as agent for any person); and
14
6.1.68.2 which does not own, legally or beneficially, assets (including indebtedness owed to it)
which in aggregate (together with all such other members of the Covenant Group which
are Dormant Subsidiaries) have a value of R10,000,000 or more (or its equivalent in other
currencies);
6.1.69
Environment
ecological systems of which they form part and the following media -
6.1.69.1 air (including, without limitation, air within natural or man-made structures, whether above
or below ground);
6.1.69.2 water (including, without limitation, territorial, coastal and inland waters, water under or
within land and water in drains and sewers); and
6.1.69.3 land (including, without limitation, land under water);
6.1.70
Environmental Claim
proceedings, formal notice or investigation by any authority in respect of any Environmental
Law or any authorisation held (or required to be held) under applicable Environmental Law;
6.1.71
Environmental Law
6.1.71.1 the pollution or protection of the Environment;
6.1.71.2 harm to or the protection of human health and safety; or
6.1.71.3 the generation, handling, transport, storage, burial, use, release, disposal, emission or
spillage of any Hazardous Substances which, alone or in combination with any other, is
capable of causing harm to the Environment, including, without limitation, any waste;
6.1.72
Environmental Matters
6.1.72.1 the pollution or protection of the Environment and/or human health and safety;
6.1.72.2 the use, treatment, storage, burial, disposal, transport or handling of Hazardous
Substances; or
6.1.72.3 Environmental Permits;
6.1.73
Environmental Permit
notification, report or assessment required under any Environmental Law for the operation of
the business of any member of the Group or in respect of any immovable properties owned or
used by any member of the Group;
6.1.74
Event of Default
Events of Default
);
15
6.1.75
Excluded Subsidiary
6.1.75.1 Cash Connect Capital;
6.1.75.2 K2020 Connect Proprietary Limited, registration number 2020/263969/07; and
6.1.75.3 any other Subsidiary of the Term/RCF Borrower which the Facility Agent has agreed in
writing will be designated as an Excluded Subsidiary;
6.1.76
Existing Finance Documents
has the meaning given to that term in the Lesaka Release
Agreement;
6.1.77
Existing Group Indebtedness
arising under the Existing Finance Documents;
6.1.78
Existing Security
6.1.79
Existing Security Discharge Date
Time" for that Existing Security as defined in the Lesaka Release Agreement;
6.1.80
Facility
6.1.81
FATCA
means -
6.1.81.1 sections 1471 to 1474 of the Code or any associated regulations;
6.1.81.2 any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental
agreement between the US and any other jurisdiction, which (in either case) facilitates the
implementation of any law or regulation referred to in clause
; or
6.1.81.3 any agreement pursuant to the implementation of any treaty, law or regulation referred to
in clauses
or any governmental or taxation authority in any other jurisdiction;
6.1.82
FATCA Deduction
Document required by FATCA;
6.1.83
FATCA Exempt Party
Deduction;
6.1.84
Fee Letter
about the Original Signature Date, between the Facility Agent and/or the Original Senior
Lenders (or any one of them) and the Term/RCF Borrower setting out any of the fees referred
to in clause
6.1.85
Final Discharge Date
16
6.1.85.1 the Senior Term Facility Outstandings, the Senior RCF Outstandings , the WesBank
Outstandings and the WCF Outstandings have been irrevocably and unconditionally paid
and discharged in full (whether or not as a result of enforcement);
6.1.85.2 all Treasury Transactions entered into under the Hedging Documents have been
terminated or closed-out, no party under a Hedging Document is under any obligation to
make any scheduled payments thereunder and the Hedge Counterparty Outstandings
have been irrevocably and unconditionally paid and discharged in full (whether or not as
a result of enforcement); and
6.1.85.3 no Finance Party has any commitment whatsoever to provide finance or any other form
of credit or financial accommodation to any person under any Finance Document,
as certified in writing by the Facility Agent (acting on the instructions of all the Lenders and the
Hedge Counterparties) within 5 Business Days of receipt of a request for confirmation from the
Term/RCF Borrower, if all the requirements above have in fact been met;
6.1.86
Final Maturity Date
, in relation to each Senior Term Facility or the Senior RCF, has the
meaning given to that term in the applicable Senior Term Facility Agreement or the Amended
and Restated Senior RCF Agreement, respectively;
6.1.87
Finance Document
6.1.87.1 this Agreement;
6.1.87.2 the Amendment and Restatement Agreement;
6.1.87.3 the Amended and Restated Senior Term Facility A Agreement;
6.1.87.4 the Amended and Restated Senior Term Facility B Agreement;
6.1.87.5 the Amended and Restated Senior RCF Agreement;
6.1.87.6 each WCF Document;
6.1.87.7 each WesBank Agreement;
6.1.87.8 the Lesaka Release Agreement;
6.1.87.9 the Cash Connect Management Release Agreement;
6.1.87.10 the Debt Guarantee;
6.1.87.11 the Counter-indemnity Agreement;
6.1.87.12 each Security Document;
17
6.1.87.13 each Security Structure Document;
6.1.87.14 each Fee Letter;
6.1.87.15 the Further Rights Letter;
6.1.87.16 the Accession Letter (Recharger);
6.1.87.17 any Hedging Document;
6.1.87.18 any Intercreditor Agreement;
6.1.87.19 any
Subordination Agreement;
6.1.87.20 any Transfer Certificate;
6.1.87.21 any Accession Letter;
6.1.87.22 any Resignation Letter;
6.1.87.23 each Utilisation Request;
6.1.87.24 each Compliance Certificate;
6.1.87.25 any Compounded Rate Supplement;
6.1.87.26 any Compounding Methodology Supplement;
6.1.87.27 each document amending any Finance Document referred to in this clause above; and
6.1.87.28 any other document designated as such by agreement between the Facility Agent and the
Term/RCF Borrower;
6.1.88
Finance Parties
Debt Guarantor (and
Finance Party
, as the context requires, means any of them);
6.1.89
Financial Indebtedness
6.1.89.1 moneys borrowed, credit provided and debit balances at financial institutions;
6.1.89.2 any amount raised by acceptance under any acceptance credit facility or dematerialised
equivalent;
6.1.89.3 any amount raised pursuant to any note purchase facility or the issue of bonds, notes,
debentures, loan stock or any similar instrument;
18
6.1.89.4 the amount of any liability in respect of any lease or hire purchase contract which would,
in accordance with IFRS, be treated as a finance or capital lease but excluding any
Relevant Operating Lease notwithstanding any change (or the implementation of any
change) to IFRS on or after 1 January 2019;
6.1.89.5 receivables sold or discounted (other than any receivables to the extent they are sold on
a non-recourse basis);
6.1.89.6 any amount raised under any other transaction (including any forward sale or purchase
agreement) having the commercial effect of a borrowing;
6.1.89.7 any Treasury Transaction (and, when calculating the value of that Treasury Transaction,
only the mark-to-market value (or, if any actual amount is due as a result of the termination
or close-out of that derivative transaction, that amount) shall be taken into account);
6.1.89.8 any amount raised by the issue of a share which by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable) is or may become
mandatorily redeemable or redeemable at the option of its holder (including upon the
occurrence of any default under the terms of issue of any such share);
6.1.89.9 any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or
documentary letter of credit or any other instrument issued by a bank or financial
institution; and
6.1.89.10 the amount of any liability in respect of any guarantee or indemnity for any of the items
referred to in clauses
6.1.90
Funding Rate
Rate Loan;
6.1.91
Further Rights Letter
Date, between, amongst others, the Term/RCF Borrower and each Original Senior Lender in
respect of the Original Senior Lenders' rights in relation to
inter alia
Term/RCF Borrower of the Senior Term Facility Loans, the Senior Term Facility Outstandings,
the Senior RCF Loans and the Senior RCF Outstandings under the Finance Documents, and
(ii) the right to quote in relation to any transactional banking requirements of Adumo and any of
its Subsidiaries;
6.1.92
GAAP
6.1.93
Group
means -
19
6.1.93.1 for the purposes of clauses
,
,
,
,
,
partnership, Joint Venture, trust, juristic person or other entity Controlled by Holdco and/or
any of its Subsidiaries ; and
6.1.93.2 for all other clauses in this Agreement which are not referred to in clause
, Holdco
and each of its Subsidiaries from time to time and any partnership, Joint Venture, trust,
juristic person or other entity Controlled by Holdco and/or any of its Subsidiaries but
specifically excluding CPS and its Subsidiaries;
6.1.94
Group Structure Chart
means the written group structure diagram attached hereto as
Annexure L (Group Structure Chart), or, if Holdco has delivered a further group structure
diagram pursuant to clause
, the most recently delivered group structure diagram;
6.1.95
Guarantor
not ceased to be a Guarantor in accordance with clause
6.1.96
Hazardous Substances
artificial substance (whether in the form of a solid, liquid, gas or vapour) which, alone or in
combination with other substances, is capable of causing harm or damage to the Environment
or human health;
6.1.97
Hedge Counterparty
Intercreditor Agreement and the Subordination Agreement as a provider of interest rate hedging
facilities to the Term/RCF Borrower under a Hedging Document;
6.1.98
Hedge Counterparty Outstandings
the aggregate of -
6.1.98.1 all actual outstanding amounts due and owing to that Hedge Counterparty under the
Hedging Documents; and
6.1.98.2 if the Treasury Transactions under those Hedging Documents are to be terminated or
closed-out at that time, all outstanding amounts owing to that Hedge Counterparty as a
result of that termination or close-out,
(including, without limitation, any claim for direct damages or restitution, any claim as a result
of any recovery by an Obligor, a Security Provider or another person of a payment or discharge
under the Finance Documents on the grounds of preference, and each amount which would be
included in any of the above but for any discharge, non-provability or unenforceability of a claim
in any insolvency or other proceedings);
20
6.1.99
Hedging Document
agreement, in each case, in the form required by clause
Hedging policy
), entered into
or to be entered into by the Term/RCF Borrower and a Hedge Counterparty for the purpose of
hedging the types of liabilities and/or risks in relation to the Senior Term Facilities which, at the
time that that master agreement, confirmation, schedule or other agreement (as the case may
be) is entered into, is required or permitted to be hedged by the terms of this Agreement;
6.1.100
Historic RFR
is no more than 3 RFR Banking Days before that RFR Banking Day;
6.1.101
Holdco Cession & Pledge
in securitatem debiti,
about the Original Signature Date, given in favour of the Debt Guarantor by Holdco over
inter
alia
6.1.101.1 its shares in and claims and related rights against the Term/RCF Borrower; and
6.1.101.2 its rights, title and interest in and to the Secured Account;
6.1.102
Holding Company
, in relation to a company or corporation, means any other company or
corporation in respect of which it is a Subsidiary;
6.1.103
IFRS
Standards Board from time to time, to the extent applicable to the relevant financial statements
or IFRS for small and medium enterprises, as applicable;
6.1.104
Indexed
changes in the US CPI since the Original Signature Date;
6.1.105
Insurance
of a member of the Group or under which it has a right to claim;
6.1.106
Intellectual Property Rights
6.1.106.1 any know-how, patent, trade mark, service mark, design, invention, trading or business
name, domain name, topographical or similar right;
6.1.106.2 any copyright, data base or other intellectual property right; or
6.1.106.3 any interest and rights to use (including by way of licence) in the above,
in each case whether registered or not, and includes any related application;
6.1.107
Intercreditor Agreement
between, amongst others, the Finance Parties;
21
6.1.108
Interest Payment Date
, in relation to a Senior Term Facility or the Senior RCF, has the
meaning given to that term in the applicable Senior Term Facility Agreement or the Amended
and Restated Senior RCF Agreement, respectively;
6.1.109
Interest Period
, in relation to a Senior Term Facility or the Senior RCF or Unpaid Sum in
relation thereto, has the meaning given to that term in the applicable Senior Term Facility
Agreement or the Amended and Restated Senior RCF Agreement, respectively;
6.1.110
Internally Generated Cash
Covenant Group in the ordinary course of business which -
6.1.110.1 excludes the proceeds of any Shareholder Contributions or Financial Indebtedness raised
by a member of the Covenant Group; and
6.1.110.2 includes any disposal proceeds generated through any disposals contemplated in
clause
6.1.111
Interpolated Screen Rate
same number of decimal places as the Screen Rate) which results from interpolating on a linear
basis between –
6.1.111.1 the Screen Rate for the longest period (for which the Screen Rate is available) which is
less than the Interest Period of that Term Rate Loan; and
6.1.111.2 the Screen Rate for the shortest period (for which the Screen Rate is available) which
exceeds the Interest Period of that Term Rate Loan,
each as of the Specified Time for ZAR;
6.1.112
Investec
company with limited liability duly incorporated in accordance with the laws of South Africa;
6.1.113
JIBAR
6.1.113.1 the applicable Screen Rate; or
6.1.113.2 (if no Screen Rate is available for the Interest Period of that Loan or Unpaid Sum) the
arithmetic mean of the rates (rounded upwards to four decimal places), as supplied to the
Facility Agent at its request, quoted by the Reference Banks to leading banks in the
Johannesburg interbank market,
as of 11h00 on the Quotation Day for the offering of deposits in Rand for a period comparable
to that Interest Period;
6.1.114
JIBAR Overnight Deposit Rate
22
6.1.114.1 the applicable Screen Rate; or
6.1.114.2 (if no Screen Rate is available) the arithmetic mean of the rates (rounded upwards to four
decimal places), as supplied to the Facility Agent at its request, quoted by the Reference
Banks to leading banks in the Johannesburg interbank market,
as of 11h00 on the Quotation Day for the offering of overnight deposits in Rand;
6.1.115
Joint Venture
undertaking, association, joint venture or partnership (whether an
en commandite
or any other partnership) or similar person, comprising an association of two or more persons
to undertake a business enterprise through a combination of assets and/or expertise but
specifically excluding any arrangement which comprises solely of a profit-sharing arrangement;
6.1.116
Kwande
means Kwande Group Proprietary Limited, registration number 2000/003245/07, a
private company with limited liability duly incorporated in accordance with the laws of South
Africa;
6.1.117
Lenders
6.1.117.1 the Senior Term Facility Lenders;
6.1.117.2 the Senior RCF Lenders;
6.1.117.3 WesBank; and
6.1.117.4 the WCF Lenders,
and
Lender
, as the context requires, means any of them;
6.1.118
Lesaka Release Agreement
inter alios
Holdco, the Term/RCF Borrower and the Facility Agent and persons who have provided the
Existing Group Indebtedness (other than the Financial Indebtedness relating to the Cash
Connect Management Finance Documents) to the Group, which
inter alia
6.1.118.1 the payment of the Existing Group Indebtedness; and
6.1.118.2 the release of the Existing Security;
6.1.119
Loan
means a loan made or to be made under a Senior Facility, or the principal amount
outstanding of that loan from time to time;
6.1.120
Longstop Date
23
6.1.121
Main Street 1723
means Main Street 1723 Proprietary Limited, registration number
2019/300711/07, a private company with limited liability duly incorporated in accordance with
the laws of South Africa;
6.1.122
Majority Lenders
6.1.122.1 if there is any Loan outstanding and no Default has occurred and is continuing, whose
share in the outstanding Loans then aggregate 66⅔ per cent. or more of the aggregate of
all the outstanding Loans of all of the Lenders;
6.1.122.2 if there is any Loan then outstanding and a Default has occurred and is continuing, whose
share in the outstanding Loans and whose undrawn Commitments then aggregate 66⅔
per cent or more of the aggregate of all the outstanding Loans and the undrawn
Commitments of all the Lenders;
6.1.122.3 if there is no Loan then outstanding, whose undrawn Commitments then aggregate 66⅔
per cent or more of the Total Commitments; or
6.1.122.4 if there is no Loan then outstanding and the Total Commitments have been reduced to
zero, whose Commitments aggregated 66⅔ per cent or more of the Total Commitments
immediately before the reduction;
6.1.123
Market Disruption Rate
6.1.124
Material Adverse Effect
opinion of the Facility Agent (acting on the instructions of the Majority Lenders), is reasonably
likely to have a material adverse effect on -
6.1.124.1 the business, operations or financial condition of any Obligor, Security Provider, the Group
taken as a whole and/or the Covenant Group taken as a whole;
6.1.124.2 the ability of an Obligor or Security Provider to perform its payment and/or other material
obligations under the Finance Documents; or
6.1.124.3 the validity or enforceability of the Finance Documents or the validity or enforceability of,
or the effectiveness or ranking of any Transaction Security granted or purported to be
granted pursuant to any of the Finance Documents or the rights or remedies of any
Finance Party under any of the Finance Documents;
6.1.125
Material Agreements
24
6.1.125.1 any contract which contributes more than 5% the total revenue of the Covenant Group
(other than the Excluded Subsidiaries) or which contributes more than 2.5% of the
Consolidated EBITDA (calculated with reference to the Holdco's most recently delivered
annual financial statements);
6.1.125.2 any other agreement that is material to the business of the Covenant Group (other than
the Excluded Subsidiaries) and for this purpose an agreement shall be considered to be
"material" if the termination of that agreement (whether voluntarily, by mutual agreement
or pursuant to a breach of the terms of that agreement by any party thereto) would have
a Material Adverse Effect; and
6.1.125.3 any other written agreement or document at any time designated a Material Agreement
by written agreement between the Term/RCF Borrower and the Facility Agent,
and the Material Contracts listed in Annexure M;
6.1.126
Material Group Company
, where used in clause
a Material Subsidiary;
6.1.127
Material Insurance Proceeds
prepayment - material disposal and insurance proceeds);
6.1.128
Material Subsidiary
Subsidiary of the Term/RCF Borrower or a Subsidiary of any other Obligor whose gross assets,
EBITDA (as defined in clause
gross assets, Consolidated EBITDA or total revenue of the Covenant Group (excluding the
Excluded Subsidiaries). For this purpose -
6.1.128.1 the gross assets, EBITDA or total revenue of a Subsidiary of the Term/RCF Borrower or
a Subsidiary of any other Obligor (other than an Excluded Subsidiary) will be determined
from its financial statements or management accounts (in each case, consolidated if it has
Subsidiaries) which were consolidated into the latest SEC Form and/or latest audited
consolidated financial statements or management accounts of the Term/RCF Borrower
(adjusted on a pro forma basis as contemplated in clause
statements), as applicable);
6.1.128.2 if a Subsidiary of the Term/RCF Borrower or a Subsidiary of any other Obligor becomes
a member of the Covenant Group (and is not an Excluded Subsidiary) after the date on
which the latest audited consolidated financial statements or management accounts of
the Term/RCF Borrower have been prepared, the gross assets, EBITDA or total revenue
of that Subsidiary will be determined from the latest SEC Form and/or the Term/RCF
Borrower's latest financial statements or management accounts (in each case,
consolidated if it has Subsidiaries);
25
6.1.128.3 the gross assets, Consolidated EBITDA or total revenue of the Covenant Group will be
determined from the latest SEC Form and/or the Term/RCF Borrower's latest audited
consolidated financial statements or management accounts (adjusted on a pro forma
basis as contemplated in clause
applicable);
6.1.128.4 the
EBITDA
disposed of) will be determined on the same basis as Consolidated EBITDA (as defined
in clause
will be construed as references to that Subsidiary, company or business; and
6.1.128.5 where financial statements and management accounts of a Subsidiary or the Term/RCF
Borrower or a Subsidiary of any other Obligor are available in respect of the same
accounting period, the financial statements shall be used for purposes of making the
necessary determinations.
6.1.129 Notwithstanding the above, each of the following companies will be a Material Subsidiary -
6.1.129.1.1 each Guarantor (other than Holdco);
6.1.129.1.2 any Subsidiary of the Term/RCF Borrower or any other Obligor which is party to a
Material Agreement;
6.1.130
Month
corresponding day in the next calendar month, except that -
6.1.130.1 other than where clause
6.1.130.1.1 (subject to clause
) if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in that calendar month
in which that period is to end if there is one, or if there is not, on the immediately
preceding Business Day;
6.1.130.1.2 if there is no numerically corresponding day in the calendar month in which that
period is to end, that period shall end on the last Business Day in that calendar
month; and
6.1.130.1.3 if an Interest Period begins on the last Business Day of a calendar month, that
Interest Period shall end on the last Business Day in the calendar month in which
that Interest Period is to end; and
6.1.130.2 in relation to an Interest Period for any Compounded Rate Loan (or, on and from the Rate
Switch Date, any other period for the accrual of commission or fees) the rules specified
as "Business Day Conventions" in the Compounded Rate Terms shall apply.
26
The above rules will only apply to the last Month of any period;
6.1.131
Obligors
Obligor
, as the context requires,
means any of them);
6.1.132
Mobikwik
Pvt Ltd) (Corporate Identity Number U64201HR2008PLC053766), a company registered under
the laws of India;
6.1.133
Original Common Terms Agreement
"
Common Terms Agreement
", dated on or about the Original Signature Date, between the
Parties, which agreement was subsequently amended and restated to be in the form of this
Agreement;
6.1.134
Original CP Documents
Conditions Precedent
);
6.1.135
Original Financial Statements
6.1.135.1 to Holdco, its audited consolidated financial statements for its financial year ended 30
June 2024;
6.1.135.2 the Term/RCF Borrower, its audited consolidated financial statements for the financial
year ended 30 June 2022;
6.1.135.3 Luxanio 227 Proprietary Limited, its audited financial statements for the financial year
ended 31 July 2022;
6.1.135.4 GAAP Point of Sale Proprietary Limited, its audited financial statements for the financial
year ended 30 September 2024;
6.1.135.5 each of Adumo, Lesaka Merchant Technologies Proprietary Limited (previously named
"Adumo Technologies Proprietary Limited"), Adumo Payouts Proprietary Limited, Adumo
Management Company Proprietary Limited and Lesaka Payments Proprietary Limited
(previously named "Adumo Payments Proprietary Limited"), its audited financial
statements for the financial year ended 30 September 2023;
6.1.135.6 each of Deposit Manager, Cash Connect Management, Lesaka Alternative Digital
Products Proprietary Limited (previously named "EasyPay Proprietary Limited"), Main
Street 1723, Prism Holdings Technologies Proprietary Limited, Lesaka Finance Holdings
Proprietary Limited (previously named "Net1 Finance Holdings Proprietary Limited"),
Cash Connect Rentals and EasyPay Financial Services Proprietary Limited its audited
financial statements for the financial year ended 30 June 2023;
27
6.1.135.7 each of Prism Payment Technologies Proprietary Limited, Easypay Cash Proprietary
Limited, K2021477132 (South Africa) Proprietary Limited, its audited financial statements
for the financial year ended 30 June 2022; and
6.1.135.8 Obovix (RF) Proprietary Limited, its audited financial statements for the financial year
ended 28 February 2018;
6.1.136
Original Obligors
Original Guarantors (and
Original Obligor
, as the context requires, means any of them);
6.1.137
Original Senior RCF Agreement
up to the Senior RCF Commitment, titled "
" dated on or about the
Original Signature Date, between the Original Senior RCF Lenders, the Facility Agent and the
Term/RCF Borrower (as borrower), which agreement was subsequently amended and restated
to be in the form of the Amended and Restated Senior RCF Agreement;
6.1.138
Original Senior RCF Lender
Commitment set opposite its name in Column 5 (Senior RCF Commitment) of the table in Part
II of
6.1.139
Original Senior Term Facility A Agreement
agreement of up to Senior Term Facility A Commitment, titled "
Senior Term Facility A
Agreement
", dated on or about the Original Signature Date, between the Original Senior Term
Facility A Lenders, the Facility Agent and the Term/RCF Borrower (as borrower), which
agreement was subsequently amended and restated to be in the form of the Amended and
Restated Senior Term Facility A Agreement;
6.1.140
Original Senior Term Facility A Lender
Senior Term Facility A Commitment set opposite its name in Column 3 (Senior Term Facility A
Commitment) of the table in Part II of
6.1.141
Original Senior Term Facility B Agreement
agreement of up to Senior Term Facility B Commitment, titled "
Senior Term Facility B
Agreement
" dated on or about the Original Signature Date, between the Original Senior Term
Facility B Lenders, the Facility Agent and the Term/RCF Borrower (as borrower), which
agreement was subsequently amended and restated to be in the form of the Amended and
Restated Senior Term Facility B Agreement;
6.1.142
Original Senior Term Facility B Lender
Senior Term Facility B Commitment set opposite its name in Column 4 (Senior Term Facility A
Commitment) of the table in Part II of
28
6.1.143
Original Senior Term Facility Lender
Senior Term Facility B Lender;
6.1.144
Original Signature Date
means
27 February 2025;
6.1.145
Original WCF Agreement
agreement/s, dated on or about the Original Signature Date, between the Original WCF Lender
(as lender), and various members of the Covenant Group (as borrowers and guarantors);
6.1.146
Original WCF Lender
6.1.147
Original Working Capital Facility
capital facility provided by the Original WCF Lender to the WCF Borrowers (or any one of them)
under any Original WCF Agreement;
6.1.148
Party
6.1.149
Permitted Acquisition
6.1.150
Permitted Cash Management Agreement
a member of the Covenant Group (other than an Excluded Subsidiary) and the Original WCF
Lender), but only for so long as it complies with the requirements of a Permitted Cash
Management Arrangement;
6.1.151
Permitted Cash Management Arrangement
concentration arrangement maintained with the Original WCF Lender which provides for the
aggregation of positive cash balances in bank accounts of Obligors (who are members of the
Covenant Group and for the avoidance of doubt excludes Holdco) held with the Original WCF
Lender and/or set off of such aggregate cash balances against bank accounts deficits of
Obligors(who are members of the Covenant Group and for the avoidance of doubt excludes
Holdco) held with the Original WCF Lender for the purposes of maximising the aggregate
interest earned of those Obligors (who are members of the Covenant Group and for the
avoidance of doubt excludes Holdco) and minimising the aggregate interest paid by those
Obligors (who are members of the Covenant Group and for the avoidance of doubt excludes
Holdco);
6.1.152
Permitted Disposal
6.1.153
Permitted Distribution
6.1.154
Permitted Encumbrance
6.1.155
Permitted Financial Indebtedness
(Financial Indebtedness);
29
6.1.156
Permitted Guarantee
guarantees);
6.1.157
Permitted Loan
6.1.158
Permitted Share Issue
(Share Capital);
6.1.159
Permitted Treasury Transaction
Transactions);
6.1.160
Quotation Day
, in relation to any period for which an interest rate is to be determined, means
the first day of that period or such other day as the Facility Agent determines is generally treated
as the rate fixing day by market practice in the Johannesburg interbank market;
6.1.161
Rate Switch Date
Term/RCF Borrower in writing;
6.1.162
Recharger
means Lesaka Utilities Proprietary Limited (previously named "Recharger
Proprietary Limited"), registration number 2022/218906/07, a private company with limited
liability duly incorporated in accordance with the laws of South Africa;
6.1.163
Reference Bank Rate
decimal places) as supplied to the Facility Agent at its request by the Reference Banks –
6.1.163.1 (other than where clause
Banks could borrow funds in the Relevant Market in ZAR and for the relevant period, were
it to do so by asking for and then accepting interbank offers for deposits in reasonable
market size in that currency and for that period; or
6.1.163.2 if different, as the rate (if any and applied to the relevant Reference Bank and the relevant
currency and period) which contributors to the Screen Rate are asked to submit to the
relevant administrator;
6.1.164
Reference Banks
Bank Limited, Investec Bank Limited, Nedbank Limited and The Standard Bank of South Africa
Limited, or such other banks as may be appointed by the Facility Agent in consultation with the
Term/RCF Borrower;
30
6.1.165
Refinancing
means the repayment, prepayment, cancellation or replacement, in full, of the
Senior Term Facility Loans and Senior Term Facility Outstandings and the Senior RCF Loans
and Senior RCF Outstandings funded, directly or indirectly, by way of the incurrence by Holdco,
the Term/RCF Borrower, any other Obligor and/or any other member of the Group of Financial
Indebtedness, and
Refinance
Refinanced
of this definition any Permitted Financial Indebtedness pursuant to clause
Indebtedness) shall, in relation to Holdco, be
excluded
extent that that Permitted Financial Indebtedness is not funded through the incurrence by any
member of the Group (or any Affiliate of a member of the Group) of Financial Indebtedness;
6.1.166
Refinancing Penalties
has the meaning given to that term in clause
Refinancing Penalties);
6.1.167
Relevant Market
6.1.167.1 subject to clause
6.1.167.2 on and from the Rate Switch Date, the market specified as such in the Compounded Rate
Terms ;
6.1.168
Relevant Nominating Body
authority or a group of them, or any working group or committee sponsored or chaired by, or
constituted at the request of, any of them;
6.1.169
Related Fund
first fund
), means a fund which is managed or advised
by the same investment manager or investment adviser as the first fund or, if it is managed by
a different investment manager or investment adviser, a fund whose investment manager or
investment adviser is an Affiliate of the investment manager or investment adviser of the first
fund;
6.1.170
Related Party
6.1.170.1 any shareholder of a member of the Group who is not a member of the Group; and
6.1.170.2 any Affiliate of any shareholder referred to in clause
other than, in each case, a Lender or an Affiliate of a Lender or any person who holds less than
5% of the issued shares of Holdco (itself and together with any of its Affiliates and any of its
Related Funds);
6.1.171
Remaining Distributable Balance
has the meaning given to this term in clause
(Remaining amount of Distributable Balance);
6.1.172
Replacement Benchmark
31
6.1.172.1 that is formally designated, nominated or recommended as the replacement for that
Screen Rate by:
6.1.172.1.1 the administrator of that Screen Rate; or
6.1.172.1.2 any Relevant Nominating Body,
provided that if the replacement for that Screen Rate has, at the relevant time, been
formally designated, nominated or recommended under both clauses
accordance with clause
6.1.172.2 in the opinion of the Parties, generally accepted in the international market or any relevant
domestic syndicated loan market, as the appropriate replacement for that Screen Rate;
or
6.1.172.3 in the opinion of the Parties, an appropriate replacement to that Screen Rate;
6.1.173
Repeating Representations
are made or deemed to be repeated under clause
and warranties);
6.1.174
Reporting Day
6.1.175
Reporting Time
Terms;
6.1.176
Representative
attorney, trustee or custodian;
6.1.177
Resignation Letter
Resignation Letter);
6.1.178
RFR
6.1.179
RFR Banking Day
6.1.180
RMB
6.1.181
Sanctioned Entity
6.1.181.1 a person, country or territory which is listed on a Sanctions List or is subject to Sanctions;
and
6.1.181.2 a person which is ordinarily resident in a country or territory which is listed on a Sanctions
List or is subject to Sanctions;
32
6.1.182
Sanctioned Transaction
purpose of financing or providing any credit, directly or indirectly, to -
6.1.182.1 a Sanctioned Entity; or
6.1.182.2 any other person or entity, if a member of the Group has actual knowledge that the person
or entity proposes to use the proceeds of the financing or credit for the purpose of
financing or providing any credit, directly or indirectly, to a Sanctioned Entity,
in each case to the extent that to do so is prohibited by, or would cause any breach of,
Sanctions;
6.1.183
Sanctions
restrictive measures imposed, administered or enforced from time to time by any Sanctions
Authority;
6.1.184
Sanctions Authority
6.1.184.1 the United Nations;
6.1.184.2 the European Union;
6.1.184.3 the Council of Europe (founded under the Treaty of London, 1946);
6.1.184.4 the government of the United States of America;
6.1.184.5 the government of the United Kingdom;
6.1.184.6 the government of the Republic of France; and
6.1.184.7 the government of Switzerland,
and any of their governmental authorities, including, without limitation, the Office of Foreign
Assets Control for the US Department of Treasury (
OFAC
), the US Department of Commerce,
the US State Department or the US Department of the Treasury, Her Majesty's Treasury (
HMT
)
and the French Ministry of Finance.
6.1.185
Sanctions List
6.1.185.1 the Specially Designated Nationals and Blocked Persons List maintained by OFAC;
6.1.185.2 the Consolidated List of Financial Sanctions Targets and the Investments Ban List
maintained by HMT,
33
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;
6.1.186
Screen Rate
6.1.186.1 for JIBAR, the Johannesburg Interbank Agreed Rate, polled and published by the South
African Futures Exchange (a division of the JSE Limited) for deposits in Rand for the
relevant period, as displayed on the Reuters Screen SAFEY Page alongside the caption
"
YLD"
6.1.186.2 for the JIBAR Overnight Deposit Rate, the SAFEX overnight call deposit rate, polled and
published by the South African Futures Exchange (a division of the JSE Limited) for
deposits in Rand, as displayed on the Reuters Screen SAFEY Page alongside the caption
"
SFXROD
" at the applicable time.
If the relevant page is replaced or the information service ceases to be available, the Facility
Agent (after consultation with the Term/RCF Borrower and the Lenders) may specify another
page or service displaying the appropriate rate;
6.1.187
Screen Rate Replacement Event
6.1.187.1 the methodology, formula or other means of determining the Screen Rate has, in the
opinion of the parties, materially changed;
6.1.187.2 the administrator of the Screen Rate or its supervisor publicly announces that such
administrator is insolvent;
6.1.187.3 information is published in any order, decree, notice, petition or filing, however described,
of or filed with a court, tribunal, exchange, regulatory authority or similar administrative,
regulatory or judicial body which reasonably confirms that the administrator of the Screen
Rate is insolvent,
provided that, in each case contemplated by clauses
, at that time there
is no successor administrator to continue to provide the Screen Rate;
6.1.187.4 the administrator of the Screen Rate publicly announces that it has ceased or will cease,
to provide the Screen Rate permanently or indefinitely and, at that time, there is no
successor administrator to continue to provide the Screen Rate;
6.1.187.5 the supervisor of the administrator of the Screen Rate publicly announces that the Screen
Rate has been or will be permanently or indefinitely discontinued;
34
6.1.187.6 the administrator of the Screen Rate or its supervisor announces that the Screen Rate
may no longer be used;
6.1.187.7 the administrator of the Screen Rate determines that the Screen Rate should be
calculated in accordance with its reduced submissions or other contingency or fallback
policies or arrangements and the circumstance(s) or event(s) leading to such
determination are not (in the opinion of the Facility Agent) relevant for the purposes of this
Agreement;
6.1.187.8 any Relevant Nominating Body formally designates, nominates or recommends a
replacement for a Screen Rate;
6.1.187.9 in the opinion of the Parties, the Screen Rate is otherwise no longer representative or
appropriate for the purposes of calculating interest under this Agreement;
6.1.187.10 a public statement or publication of information by the regulatory supervisor or competent
authority of the administrator of the Screen Rate, an insolvency official with jurisdiction
over the administrator for the Screen Rate, an authority with jurisdiction over the
administrator for the Screen Rate or a court or an entity with similar insolvency or authority
over the administrator for the Screen Rate is made or issued which states that the
administrator of the Screen Rate has ceased or will cease to provide the Screen Rate (for
any tenor) permanently or indefinitely and, at that time, there is no successor administrator
to continue to provide that Screen Rate;
6.1.187.11 a public statement or publication of information by the regulatory supervisor or competent
authority of the administrator of the Screen Rate announces that the Screen Rate (for any
tenor) is no longer or, as of a specified future date, will no longer be representative for
ZAR or of the underlying market or the economic reality that the Screen Rate is intended
to measure and/or that such representativeness will not be restored; or
6.1.187.12 the Screen Rate ceases to be permitted to be used as a benchmark or reference rate or
will be prohibited from being used or its use will be subject to restrictions or adverse
consequences;
6.1.188
SEC Form
6.1.188.1 quarterly reports filed with the United States Securities and Exchange Commission (
SEC
)
on Form 10-Q in respect of the first 3 quarters of each of Holdco's financial years and
which include unaudited condensed consolidated financial statements; and
6.1.188.2 annual reports filed with the SEC on Form 10-K in respect of each of Holdco's financial
year ends and which include audited consolidated financial statements;
35
6.1.189
Secured Account
Limited and secured in favour of the Debt Guarantor;
6.1.190
Security
6.1.190.1 a mortgage bond, notarial bond, cession in security, pledge, hypothec, lien, charge,
assignment or other security interest securing any obligation of any person or any other
agreement or arrangement having a similar effect but excluding statutory preferences;
6.1.190.2 any arrangement under which money or claims may be applied, set off or made subject
to a combination of accounts so as to effect discharge of any sum owed or payable to any
person; or
6.1.190.3 any other type of preferential agreement or arrangement (including title retention) having
an effect similar to the creation of a security interest;
6.1.191
Security Agreement
6.1.191.1 the Security Cession & Pledge;
6.1.191.2 the Holdco Cession & Pledge;
6.1.191.3 each other pledge or cession
in securitatem debiti
Obligors and Material Subsidiaries) of Annexure G (Transaction Security);
6.1.191.4 each security agreement referred to in clause
Material Subsidiaries) of Annexure G (Transaction Security) under the laws of the
jurisdiction of incorporation or formation of any Obligor who is incorporated or formed in a
jurisdiction other than South Africa; and
6.1.191.5 each security agreement entered, or required to be entered, into under clause
(Further Transaction Security);
6.1.192
Security Cession & Pledge
in securitatem debiti,
about the Original Signature Date, given in favour of the Debt Guarantor by each Obligor (other
than Holdco)) incorporated in, or having property situated in, South Africa over its rights, claims
and interest in and to its property stipulated in clauses
and Material Subsidiaries) of Annexure G (Transaction Security);
6.1.193
Security Document
6.1.193.1 any Security Agreement; or
6.1.193.2 any other document evidencing or creating any Security over any asset of any person to
secure any obligation of any Obligor to a Finance Party under the Finance Documents;
36
6.1.194
Security Provider
6.1.194.1 an Obligor;
6.1.194.2 Holdco; or
6.1.194.3 any other person party to a Security Document from time to time pursuant to which that
person provides Transaction Security for the benefit of the Finance Parties;
6.1.195
Security Structure Document
6.1.195.1 the memorandum of incorporation of the Debt Guarantor;
6.1.195.2 the Debt Guarantor Management Agreement; and
6.1.195.3 the trust deed by which the Debt Guarantor Owner Trust has been established (together
with the letters of authority issued by the Master of the High Court in favour of the trustees
of the Debt Guarantor Owner Trust);
6.1.196
Senior Facilities
Facilities (and
Senior Facility
, as the context requires, means any of them);
6.1.197
Senior Facility Agreements
Restated Senior RCF Agreement and the WCF Agreements (and
Senior Facility Agreement
,
as the context requires, means any of them);
6.1.198
Senior Facility Commitments
Commitments and the WCF Commitments (and
Senior Facility Commitment
, as the context
requires, means any of them);
6.1.199
Senior Facility Outstandings
Outstandings, the WCF Outstandings and the Hedge Counterparty Outstandings;
6.1.200
Senior RCF
RCF) made available under this Agreement and the Amended and Restated Senior RCF
Agreement;
37
6.1.201
Senior RCF Commitment
6.1.201.1 in relation to an Original Senior RCF Lender, the amount set opposite its name under the
heading "Senior RCF Commitment" in Part II of
amounts voluntarily repaid in relation to Senior Term Facility A and the amount of any
other Senior RCF Commitment transferred to it under this Agreement; and
6.1.201.2 in relation to any other Senior RCF Lender, the amount of any Senior RCF Commitment
transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement or the Amended
and Restated Senior RCF Agreement;
6.1.202
Senior RCF Lenders
6.1.202.1 any Original Senior RCF Lender; and
6.1.202.2 any bank, financial institution, trust, fund or other entity which becomes a Party as a Senior
RCF Lender after the Original Signature Date in accordance with clause
the Lenders);
in each case, which has not ceased to be a Party in accordance with the terms of this
Agreement (and
Senior RCF Lender
, as the context requires, means any of them);
6.1.203
Senior RCF Loan
6.1.204
Senior RCF Outstandings
aggregate of all amounts of loan principal, accrued interest, Break Costs, prepayment
penalties, fees and all other amounts outstanding in respect of the Senior RCF under the
Finance Documents (including, without limitation, any claim for damages or restitution, any
claim as a result of any recovery by an Obligor, a Security Provider or another person of a
payment or discharge under the Finance Documents on the grounds of preference, and each
amount which would be included in any of the above but for any discharge, non-provability or
unenforceability of a claim in any insolvency or other proceedings);
6.1.205
Senior Term Facility A
(Senior Term Facility A) made available under this Agreement and the Amended and Restated
Senior Term Facility A Agreement;
6.1.206
Senior Term Facility A Commitment
38
6.1.206.1 in relation to an Original Senior Term Facility A Lender, the amount set opposite its name
under the heading "Senior Term Facility A Commitment" in Part II of
Parties) and the amount of any other Senior Term Facility A Commitment transferred to it
under this Agreement; and
6.1.206.2 in relation to any other Senior Term Facility A Lender, the amount of any Senior Term
Facility A Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement or the Amended
and Restated Senior Term Facility A Agreement;
6.1.207
Senior Term Facility A Lenders
6.1.207.1 each Original Senior Term Facility A Lender; and
6.1.207.2 each bank, financial institution, trust, fund or other entity which becomes a Party as a
Senior Term Facility A Lender after the Original Signature Date in accordance with clause
in each case, which has not ceased to be a Party in accordance with the terms of this
Agreement (and
Senior Term Facility A Lender
, as the context requires, means any of them);
6.1.208
Senior Term Facility A Loan
6.1.209
Senior Term Facility A Outstandings
A Lender, the aggregate of all amounts of loan principal, accrued interest, Break Costs,
prepayment penalties, fees and all other amounts outstanding in respect of Senior Term Facility
A under the Finance Documents (including, without limitation, any claim for damages or
restitution, any claim as a result of any recovery by an Obligor, a Security Provider or another
person of a payment or discharge under the Finance Documents on the grounds of preference,
and each amount which would be included in any of the above but for any discharge, non-
provability or unenforceability of a claim in any insolvency or other proceedings);
6.1.210
Senior Term Facility B
(Senior Term Facility B) made available under this Agreement and the Amended and Restated
Senior Term Facility B Agreement;
6.1.211
Senior Term Facility B Commitment
6.1.211.1 in relation to an Original Senior Term Facility B Lender, the amount set opposite its name
under the heading "Senior Term Facility B Commitment" in Part II of
Parties) and the amount of any other Senior Term Facility B Commitment transferred to it
under this Agreement; and
39
6.1.211.2 in relation to any other Senior Term Facility B Lender, the amount of any Senior Term
Facility B Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement or the Amended
and Restated Senior Term Facility B Agreement;
6.1.212
Senior Term Facility B Lenders
6.1.212.1 each Original Senior Term Facility B Lender; and
6.1.212.2 each bank, financial institution, trust, fund or other entity which becomes a Party as a
Senior Term Facility B Lender after the Original Signature Date in accordance with clause
in each case, which has not ceased to be a Party in accordance with the terms of this
Agreement (and
Senior Term Facility B Lender
, as the context requires, means any of them);
6.1.213
Senior Term Facility B Loan
6.1.214
Senior Term Facility B Outstandings
B Lender, the aggregate of all amounts of loan principal, accrued interest, Break Costs,
prepayment penalties, fees and all other amounts outstanding in respect of Senior Term Facility
B under the Finance Documents (including, without limitation, any claim for damages or
restitution, any claim as a result of any recovery by an Obligor, a Security Provider or another
person of a payment or discharge under the Finance Documents on the grounds of preference,
and each amount which would be included in any of the above but for any discharge, non-
provability or unenforceability of a claim in any insolvency or other proceedings);
6.1.215
Senior Term Facilities
6.1.216
Senior Term Facility Agreements
Agreement and the Amended and Restated Senior Term Facility B Agreement;
6.1.217
Senior Term Facility Commitment
Senior Term Facility B Commitment;
6.1.218
Senior Term Facility Lenders
Facility B Lenders;
6.1.219
Senior Term Facility Loan
Loan;
6.1.220
Senior Term Facility Outstandings
Senior Term Facility B Outstandings, or either one of them, as the context may require;
40
6.1.221
Shareholder Claims
6.1.221.1 claims on shareholders loan account which that shareholder may have against that
person; and
6.1.221.2 claims arising from, or in connection with, the holding by that shareholder of shares of any
class in that person (including ordinary and/or preference shares) and including any rights
to dividends and other distributions of whatsoever nature that person;
6.1.222
Shareholder Contribution
6.1.222.1 the subscription price received by Holdco in respect of shares subscribed for in the share
capital of Holdco, provided such share issue is a Permitted Share Issue under
clause
6.1.222.2 the proceeds of loans advanced to Holdco by its direct shareholders where any Financial
Indebtedness arising as a result is Permitted Financial Indebtedness under clause
(Financial Indebtedness);
6.1.223
Signature Date
Parties, it is signed by the last Party to do so;
6.1.224
Subordination Agreement
amongst others, the Obligors, the Finance Parties, Holdco and any other relevant subordinated
creditors, pursuant to which, amongst others, the claims of the members of the Group and any
other relevant subordinated creditors against the Obligors and the Covenant Group are
subordinated in favour of all claims of the Finance Parties under the Finance Documents;
6.1.225
Subsidiary
6.1.225.1 a subsidiary as defined in the Companies Act (including any person who would, but for
not being a company under the Companies Act, qualify as a subsidiary as defined in the
Companies Act);
6.1.225.2 any partnership, Joint Venture, trust, juristic person or other entity Controlled by that
person;
6.1.226
Tax
(including any penalty or interest payable in connection with any failure to pay or any delay in
paying any of the same);
6.1.227
Term Rate Loan
Rate Loan;
41
6.1.228
Total Commitments
6.1.228.1 the Total Senior Term Facility Commitments;
6.1.228.2 the Total Senior RCF Commitments; and
6.1.228.3 the WesBank Commitment;
6.1.228.4 the Total WCF Commitments;
6.1.229
Total Senior RCF Commitments
6.1.230
Total Senior Term Facility Commitments
Commitments;
6.1.231
Total WCF Commitments
6.1.232
Transaction Security
of, amongst others, the Finance Parties pursuant to the Security Documents;
6.1.233
Transfer
6.1.234
Transfer Certificate
of Transfer Certificate) or otherwise in the agreed form;
6.1.235
Transfer Date
, in relation to a Transfer, means the later of -
6.1.235.1 the proposed Transfer Date specified in the Transfer Certificate; and
6.1.235.2 the date on which the Facility Agent executes the Transfer Certificate;
6.1.236
Treasury Transaction
protection against or to benefit from fluctuations in any rate, price, index or credit rating;
6.1.237
Unpaid Sum
Documents;
6.1.238
US
means the United States of America;
6.1.239
US CPI
U.S. City Average, 1982-84=100 published by the US Bureau of Labor Statistics;
6.1.240
Utilisation
6.1.241
Utilisation Date
to be made;
42
6.1.242
Utilisation Request
, in relation to a Senior Term Facility or the Senior RCF, has the meaning
given to that term in the applicable Senior Term Facility Agreement or the Amended and
Restated Senior RCF Agreement, as applicable;
6.1.243
VAT
means value added tax as provided for in the Value Added Tax Act, 1991, and any other
Tax of a similar nature in a jurisdiction other than South Africa;
6.1.244
VCP Investment Fund
means Value Capital Partners H4 QI Hedge Fund Portfolio;
6.1.245
VCP Investment Portfolios
means Sentinel Retirement Fund, the Standard Bank Group
Retirement Fund, FirstRand Group Retirement Fund, Eskom Pension and Provident Fund,
Telkom Retirement Fund, Old Mutual Life Assurance Company (South Africa) Limited (acting
through its Old Mutual Multi-Managers Division), Transnet Retirement Fund and such similar
funds that VCP Investment Manager may manage from time to time;
6.1.246
WCF Agreement
6.1.246.1 each Original WCF Agreement; or
6.1.246.2 any other facility agreement or facility letter entered into by one or more of the WCF
Borrowers (and, if applicable other members of the Covenant Group (other than an
Excluded Subsidiary)) and a WCF Lender to regulate the terms on which a Working
Capital Facility is to be provided;
6.1.247
WCF Borrower
6.1.248
WCF Commitment
6.1.248.1 direct facilities in an amount of up to R743,901,000.00, indirect facilities in an amount of
up to R57,700,000.00 as at the Original Signature Date (provided that direct facilities may
be reallocated as indirect facilities, but indirect facilities may not be reallocated as direct
facilities) and settlement lines in an amount of up to R326,000,00.00, in respect of general
banking facilities; and
6.1.248.2 the amount which any WCF Lender has agreed (whether or not subject to the satisfaction
of conditions precedent) to make available from time to time under a Working Capital
Facility concluded after the Original Signature Date,
to the extent not cancelled or reduced under the applicable WCF Agreement relating to the
applicable Working Capital Facility (subject to the provisions of clause
Indebtedness) and the other requirements of the Finance Documents);
6.1.249
WCF Document
43
6.1.249.1 a WCF Agreement; and
6.1.249.2 each document (including a document in electronic format only) entered into from time to
time between a WCF Lender and one or more of the WCF Borrowers (or, if applicable,
another member of the Covenant Group), which evidences a facility, financial instrument
or a financial service provided as part of a Working Capital Facility;
6.1.250
WCF Lenders
6.1.250.1 the Original WCF Lender; and
6.1.250.2 each other person which becomes a party to this Agreement and any Intercreditor
Agreement as a provider of a Working Capital Facility, to one or more of the WCF
Borrowers (and, if applicable other members of the Covenant Group (other than an
Excluded Subsidiary)),
and
WCF Lender
, as the context requires, means any of them
6.1.251
WCF Outstandings
Facility, the aggregate of the following amounts outstanding under that Working Capital Facility
-
6.1.251.1 the principal amount outstanding under each overdraft facility and on-demand short term
loan facility;
6.1.251.2 the face amount of each guarantee, bond, letter of credit and any similar instrument under
that Working Capital Facility;
6.1.251.3 the amount of the aggregate exposure (excluding interest and similar charges) of that
WCF Lender under each other type of accommodation provided under that Working
Capital Facility; and
6.1.251.4 all accrued interest and other amounts then due and payable under that WCF Agreement,
(including, without limitation, any claim for damages or restitution, any claim as a result of a
recovery by an Obligor or another person of a payment or discharge under that Working Capital
Facility on the grounds of preference, and each amount which would be included in any of the
above but for any discharge, non-provability or unenforceability of a claim in any insolvency or
other proceedings); and
6.1.252
WesBank
6.1.253
WesBank Agreement
44
6.1.253.1 written vehicle asset finance facility through WesBank's Asset Based Finance Division)
recorded in an instalment sale agreement and facility letter;
6.1.253.2 the full maintenance leasing facility through WesBank's Fleet Management and Leasing
Division) recorded in a master rental agreement and term sheet; and
6.1.253.3 any other facility letter or document to be concluded with WesBank from time to time,
all on the terms and subject to the conditions contained therein and concluded between
WesBank and certain Obligors;
6.1.254
WesBank Commitment
6.1.254.1 an amount equal to ZAR227,000,000; and
6.1.254.2 the amount which WesBank has agreed (whether or not subject to the satisfaction of
conditions precedent) to make available from time to time under a WesBank Agreement
concluded after the Original Signature Date,
to the extent not cancelled or reduced under the applicable WesBank Agreement relating to
the applicable WesBank Facility subject to the requirements of the Finance Documents);
6.1.255
WesBank Outstandings
the aggregate of the amounts outstanding under that WesBank Facility including without
limitation the principal amount, all accrued interest and other amounts then due and payable
under that WesBank Facility, (including, without limitation, any claim for damages or restitution,
any claim as a result of a recovery by an Obligor or another person of a payment or discharge
under that WesBank Facility on the grounds of preference, and each amount which would be
included in any of the above but for any discharge, non-provability or unenforceability of a claim
in any insolvency or other proceedings);
6.1.256
WesBank Facility
ZAR227,000,000 as at the Original Signature Date made available under the WesBank
Agreements; and
6.1.257
Working Capital Facility
6.1.257.1 the Original Working Capital Facility;
6.1.257.2 any other direct and indirect working capital facility, in each case for a maximum funding
commitment or facility exposure equal to the applicable WCF Commitment, provided by a
WCF Lender to one or more members of the Covenant Group (other than an Excluded
Subsidiary) (as borrowers), from time to time after the Closing Date.
45
6.2
Financial definitions
In this Agreement the following terms have the meanings set out below -
6.2.1
Cash
Agent) of cash in hand, or credit balances or amounts on deposit with an Acceptable Bank to
which a member of the Covenant Group (other than an Excluded Subsidiary) is alone (or
together with other members of the Covenant Group (other than an Excluded Subsidiary))
beneficially entitled if -
6.2.1.1 the cash is accessible and may be withdrawn in full by a member of the Covenant Group
(other than an Excluded Subsidiary) within 30 days;
6.2.1.2 access to and withdrawal of the cash is not contingent on the prior discharge of any
indebtedness of any person or the satisfaction of any other condition;
6.2.1.3 no Security exists over the cash or over claims in respect thereof (other than Security
arising under the Security Documents or any Security permitted pursuant to
clause
6.2.1.4 the cash is freely and (except as mentioned in clause
) immediately available
to be applied in repayment or prepayment of the Senior Facilities;
6.2.2
Cash Equivalents
6.2.2.1 certificates of deposit maturing within 90 days after the relevant date of calculation, issued
by an Acceptable Bank in South Africa;
6.2.2.2 investments accessible and which can be monetised within 90 days in a South African
money market collective investment scheme which -
6.2.2.2.1 is a money market collective investment scheme of Absa Bank Limited, FirstRand
Bank Limited, Investec Bank Limited, Nedbank Limited or The Standard Bank of
South Africa Limited or otherwise has an international credit rating of BBB- or higher
by Standard & Poor's Ratings Services or Baa3 or higher by Moody's Investor
Services Limited, or a comparable rating from an internationally recognised credit
rating agency; and
6.2.2.2.2 invests substantially all its assets in securities of the type described in clause
; or
6.2.2.3 any other debt security expressly approved by the Facility Agent in writing,
46
in each case, denominated in Rand or another currency approved by the Facility Agent in
writing, and to which any member of the Covenant Group (other than an Excluded Subsidiary)
is alone (or together with other members of the Covenant Group (other than an Excluded
Subsidiary)) beneficially entitled at that time and which is not issued or guaranteed by any
member of the Covenant Group or subject to any Security (other than Security arising under
the Security Documents);
6.2.3
Consolidated EBITDA
, in relation to any Measurement Period, means the aggregate of the
consolidated operating income of the Group, in each case, for that period, without taking any
account of the following items (without double counting) -
6.2.3.1 any Interest accrued as an obligation of any member of the Group, whether or not paid,
deferred or capitalised during that period;
6.2.3.2 any amount of Tax on profits, gains or income paid or payable by members of the Group
and any amount of any rebate or credit in respect of Tax on profits, gains or income
received or receivable by members of the Group;
6.2.3.3 any depreciation or amortisation whatsoever, and any charge for impairment or any
reversal in that period of any previous impairment charge in relation to the Group;
6.2.3.4 any loss against book value incurred by a member of the Group on the disposal of any
asset (other than trading stock) during that period;
6.2.3.5 any gain over book value arising in favour of a member of the Group on the disposal of
any asset (other than trading stock) during that period and any gain arising on any
revaluation of an asset during that period;
6.2.3.6 any unrealised gains or losses due to exchange rate movements which are reported
through the income statement in relation to the Group;
6.2.3.7 any unrealised gains or losses on any financial instrument (other than any financial
instrument which is accounted for on a hedge accounting basis) which are reported
through the income statement of the Group;
6.2.3.8 any stock based payment charges incurred by a member of the Group recognised on the
issuance of stock based awards to management and staff:
6.2.3.9 for each Measurement Period, any Transaction Costs to the extent that those costs are
accrued or paid during that period;
6.2.3.10 any income or expenses related to the Lesaka Employee Share Trust established and
registered in accordance with the laws of South Africa, with Master’s reference number
IT001901/2024(G) and
47
6.2.3.11 any Exceptional Items approved by the Facility Agent in writing,
6.2.4 and adjusted by -
6.2.4.1
including
(calculated on the same basis as Consolidated EBITDA) of a member of the Covenant
Group (or attributable to a business or assets) (other than any Excluded Subsidiaries)
acquired during that Measurement Period (and added back as if it was acquired at the
start of that relevant Measurement Period);
6.2.4.2
including
than Excluded Subsidiaries) through distributions by any associate or Investment (which
is not a member of the Covenant Group) in which any member of the Covenant Group
(other than an Excluded Subsidiary) has an ownership interest;
6.2.4.3
excluding
(calculated on the same basis as Consolidated EBITDA) attributable to any member of
the Group (or to any business or assets) disposed of during the Measurement Period (and
removed as if it was disposed of at the start of that relevant Measurement Period);
6.2.4.4
excluding
(calculated on the same basis as Consolidated EBITDA) attributable to any Excluded
Subsidiary or any other Subsidiary of Holdco which is not a member of the Covenant
Group during the Measurement Period;
6.2.4.5 for purposes of this Agreement, continuing to treat each Relevant Operating Lease as an
operating lease for accounting purposes, notwithstanding any change (or the
implementation of any change) to IFRS on or after 1 January 2019;
6.2.5
Exceptional Items
including material items of an unusual or non-recurring nature which represent gains or losses
arising on -
6.2.5.1 the restructuring of the activities of an entity and reversals of any provisions for the cost
of restructuring;
6.2.5.2 disposals, revaluations, provisions, write-downs or impairment of non-current assets or
any reversal of any provisions or write-down or impairment; and
6.2.5.3 disposals of assets associated with discontinued operations;
6.2.6
Interest
6.2.6.1 interest and amounts in the nature of interest accrued;
48
6.2.6.2 prepayment penalties or premiums incurred in repaying or prepaying any Financial
Indebtedness;
6.2.6.3 discount fees and acceptance fees payable or deducted in respect of any Financial
Indebtedness, including fees payable in respect of letters of credit and guarantees;
6.2.6.4 any net payment (or, if appropriate in the context, receipt) under any interest rate hedging
agreement or instrument (including the Hedging Documents), taking into account any
premiums payable;
6.2.6.5 any dividends on shares if those shares constitute Financial Indebtedness for purposes
of this Agreement; and
6.2.6.6 any other payments and deductions of similar effect (including the finance cost element
of finance leases),
and includes commitment and non-utilisation fees (including those payable under the Finance
Documents), but excludes facility agents' and front-end, management, arrangement and
participation fees with respect to any Financial Indebtedness (including those payable under
the Finance Documents);
6.2.7
Interest Cover Ratio
Consolidated EBITDA and the Kwande Distributions to Total Net Finance Costs for the
Measurement Period ending on that date;
6.2.8
Interest Receivable
, in relation to any Measurement Period, means all Interest received or
receivable by members of the Covenant Group (other than an Excluded Subsidiary) during that
period in respect of Cash deposits at banks and financial institutions and Cash Equivalents,
calculated on a consolidated basis (after deducting applicable withholding Tax);
6.2.9
Investment
directly or indirectly, shares of any class in its issued share capital or equivalent ownership
interest of such person;
6.2.10
Kwande Distributions
by Holdco from its investment in Kwande, limited to a maximum of USD10,000,000 (Indexed)
for each Measurement Period, to the extent that such amounts have been deposited into a
Secured Account;
6.2.11
Measurement Date
year;
6.2.12
Measurement Period
49
6.2.13
Net Debt to EBITDA Ratio
Borrowings on that Measurement Date to the sum of the Consolidated EBITDA and the Kwande
Distributions for the Measurement Period ending on that date;
6.2.14
Relevant Operating Lease
lease under IFRS prior to 1 January 2019, notwithstanding any change (or the implementation
of any change) to IFRS on or after 1 January 2019;
6.2.15
Total Borrowings
in respect of the Covenant Group (other than any Excluded Subsidiaries),
at any time, means the aggregate at that time of the Financial Indebtedness of the members of
the Covenant Group (other than any Excluded Subsidiaries) from sources external to the
Covenant Group calculated at its nominal or principal amount (or, if greater, the maximum
amount payable on repayment or redemption of the relevant liabilities at such time) together
with capitalised interest thereon at such time;
6.2.16
Total Finance Costs
, in relation to any Measurement Period, means all Interest accrued in
relation to Total Borrowings during such period as an obligation of any member of the Covenant
Group (other than an Excluded Subsidiary) whether or not paid or capitalised during or deferred
for payment after such period), calculated on a consolidated basis and taking into account
any
net payment or net receipt under any of the Hedging Documents entered into in connection
with the Senior Term Facilities;
6.2.17
Total Net Borrowings
time of all Cash and Cash Equivalents held by members of the Covenant Group (other than
any Excluded Subsidiaries);
6.2.18
Total Net Finance Costs
, in relation to any Measurement Period, means Total Finance Costs
for that period less Interest Receivable for that period, calculated on a consolidated basis;
6.2.19
Transaction Costs
registration and other Taxes incurred by the Term/RCF Borrower or any other member of the
Covenant Group in connection with (i) acquisitions, disposals or other corporate activity, and/or
(ii) the entry into of Finance Documents and limited to an aggregate maximum amount of
ZAR200,000,000 (or its equivalent in any other currency or currencies) or such other amount
agreed to in writing by the Facility Agent.
6.3
Construction
6.3.1 In this Agreement, unless inconsistent with the context, any reference to -
6.3.1.1 the
Facility Agent
, any
Finance Party
, any
Lender
, any
Obligor
, any
Party
, any
Security Provider
in title, permitted cessionaries and permitted transferees;
50
6.3.1.2 a document being in the
agreed form
agreed in writing by or on behalf of the Term/RCF Borrower and the Facility Agent or, if
not so agreed, is in form and substance satisfactory to the Facility Agent;
6.3.1.3 an
amendment
replacement, restatement or variation and
amend
6.3.1.4
assets
every description and whether present or future, actual or contingent;
6.3.1.5 an
authorisation
exemption, filing, notarisation, lodgement or registration;
6.3.1.6
authority
body, agency, department or any regulatory, self-regulatory or other authority;
6.3.1.7 a
disposal
or other alienation or disposal, whether voluntary or involuntary and whether pursuant to
a single transaction or a series of transactions, and
dispose
6.3.1.8
distribution
(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;
6.3.1.9 a
Finance Document
to any prohibition on amendments) all amendments (however fundamental) to that
Finance Document or other agreement or instrument, including any amendment providing
for any increase in the amount of a facility or any additional facility or replacement facility;
6.3.1.10 a
guarantee
Guarantee and Indemnity
)) any guarantee,
bond, letter of credit, indemnity or similar assurance against financial loss, or any
obligation, direct or indirect, actual or contingent, to purchase or assume any
indebtedness of any person or to make an investment in or loan to any person or to
purchase assets of any person, where, in each case, that obligation is assumed in order
to maintain or assist the ability of that person to meet any of its indebtedness;
51
6.3.1.11
indebtedness
payment or repayment of money, whether present or future, actual or contingent;
6.3.1.12
know your customer requirements
requests in order to meet its obligations under any applicable law or regulation to identify
a person who is (or is to become) its customer;
6.3.1.13 a
person
body (including a partnership, trust, fund, joint venture or consortium), government, state,
agency, organisation or other entity whether or not having separate legal personality;
6.3.1.14 a
regulation
or not having the force of law but, if not having the force of law, being of a type with which
any person to which it applies is accustomed to comply) of any governmental, inter-
governmental or supranational body, agency, department or regulatory, self-regulatory or
other authority;
6.3.1.15 a provision of law is a reference to that provision as extended, applied, amended or re-
enacted, and includes any subordinate legislation;
6.3.1.16 one gender includes a reference to the others; the singular includes the plural and
vice
versa
; natural persons include juristic persons and vice versa; and
6.3.1.17 a time of day is a reference to Johannesburg time.
6.3.2 Section, clause and Annexure headings are for ease of reference only, and do not in any way
affect the interpretation of a Finance Document.
6.3.3 Unless a contrary indication appears, a term used in any other Finance Document or in any
notice given under or in connection with any Finance Document has the same meaning in that
Finance Document or notice as in this Agreement.
6.3.4 A Default (other than an Event of Default) is
continuing
applicable remedy period expressly provided for in a Finance Document or waived in writing,
and an Event of Default is
continuing
6.3.5 If any provision in a definition is a substantive provision conferring rights or imposing obligations
on any Party, notwithstanding that it appears only in an interpretation clause, effect shall be
given to it as if it were a substantive provision of the relevant Finance Document.
6.3.6 A term defined in a particular clause of a Finance Document, unless it is clear from the clause
in question that application of the term is to be limited to the relevant clause, shall bear the
meaning ascribed to it for all purposes of the relevant Finance Document, notwithstanding that
that term has not been defined in any interpretation clause.
52
6.3.7 The Annexures to a Finance Document form an integral part thereof and a reference to a
clause
Annexure
is a reference to a clause of, or an annexure to, this Agreement.
6.3.8 Unless expressly otherwise provided in a Finance Document or inconsistent with the context,
any number of days prescribed in a Finance Document must be calculated by including the first
and excluding the last day, unless the day before that last day falls on a day that is not a
Business Day, in which case, the day before that last day will instead be the next Business
Day.
6.3.9 The rule of construction that, in the event of ambiguity, a contract shall be interpreted against
the party responsible for the drafting thereof, shall not apply in the interpretation of the Finance
Documents.
6.3.10 The use of the word
including
the meaning of the general wording preceding it, and the
eiusdem generis
applied in the interpretation of such general wording or such specific examples.
6.3.11 The expiry or termination of any Finance Documents shall not affect those provisions of the
Finance Documents that expressly provide that they will operate after any such expiry or
termination or which of necessity must continue to have effect after such expiry or termination,
notwithstanding that the clauses themselves do not expressly provide for this.
6.3.12 The Finance Documents shall to the extent permitted by applicable law be binding on and
enforceable by the administrators, trustees, permitted cessionaries, business rescue
practitioners or liquidators of the Parties as fully and effectually as if they had signed the
Finance Documents in the first instance and reference to any Party shall be deemed to include
such Party’s administrators, trustees, permitted cessionaries, business rescue practitioners or
liquidators, as the case may be.
6.3.13 Unless the contrary intention appears -
6.3.13.1 a reference to a Party will not include any person if it has ceased to be a Party under this
Agreement;
6.3.13.2 any obligation of an Obligor under the Finance Documents which is not a payment
obligation remains in force for so long as any payment obligation of an Obligor is or may
be or is capable of becoming outstanding under the Finance Documents; and
6.3.13.3 any obligation of an Obligor under the Finance Documents includes an obligation on that
Obligor not to contract or agree to do something or not to do something which would
breach that first obligation, unless such contract or agreement is conditional on the
approval of the Facility Agent (as required under any Finance Document).
53
6.4
Third party rights
6.4.1 Except as expressly provided for in this Agreement or in any other Finance Document, no
provision of any Finance Document constitutes a stipulation for the benefit of any person who
is not a party to that Finance Document.
6.4.2 Notwithstanding any term of any Finance Document, the consent of any person who is not a
party to that Finance Document is not required to rescind or vary that Finance Document at any
time except to the extent that the relevant variation or rescission (as the case may be) relates
directly to the right conferred upon any applicable third party under a stipulation for the benefit
of that party that has been accepted by that third party.
6.5
Currency Symbols and Definitions
Rand or R denotes the lawful currency of South Africa.
7
THE SENIOR FACILITIES
7.1
Senior Term Facility A
Subject to the terms of this Agreement and the Amended and Restated Senior Term Facility A
Agreement, the Senior Term Facility A Lenders make available to the Term/RCF Borrower a Rand-
denominated bullet term loan facility in an aggregate amount equal to the Senior Term Facility A
Commitments.
7.2
Senior Term Facility B
Subject to the terms of this Agreement and the Amended and Restated Senior Term Facility B
Agreement, the Senior Term Facility B Lenders make available to the Term/RCF Borrower a Rand-
denominated amortising term loan facility in an aggregate amount equal to the Senior Term Facility
B Commitments.
7.3
Senior RCF
Subject to the terms of this Agreement and the Amended and Restated Senior RCF Agreement, the
Senior RCF Lenders make available to the Term/RCF Borrower a Rand-denominated revolving
credit facility in an aggregate amount equal to the Total Senior RCF Commitments.
7.4
WesBank Facility
7.4.1 Subject to the terms of this Agreement and the WesBank Agreement, WesBank makes
available to certain of the Obligors in an aggregate amount of ZAR227,000,000 as set out in
that WesBank Agreement.
54
7.4.2 The WesBank Agreement may be supplemented or replaced with another WesBank Facility
concluded with WesBank, subject to clause
Financial Indebtedness
).
7.5
Working Capital Facility
7.5.1 Subject to the terms of this Agreement and the applicable WCF Agreement, the Original WCF
Lender makes available to the relevant WCF Borrowers general working capital facilities in an
aggregate amount equal to the WCF Commitments as set out in that WCF Agreement.
7.5.2 The Original Working Capital Facility may be supplemented or replaced with another Working
Capital Facility concluded with a WCF Lender, subject to clause
Financial
Indebtedness
).
7.6
Finance Parties' rights and obligations
7.6.1 The obligations of each Finance Party under the Finance Documents are separate and
independent. Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the Finance Documents.
No Finance Party is responsible for the obligations of any other Finance Party under the
Finance Documents.
7.6.2 The rights of each Finance Party under or in connection with the Finance Documents are
separate and independent rights and any debt arising under the Finance Documents to a
Finance Party from an Obligor is a separate and independent debt in respect of which a Finance
Party shall be entitled to enforce its rights in accordance with clause
. The rights of each
Finance Party include any debt owing to that Finance Party under the Finance Documents and,
for the avoidance of doubt, any part of a Loan or any other amount owed by an Obligor which
relates to a Finance Party’s participation in a Facility or its role under a Finance Document
(including any such amount payable to the Facility Agent on its behalf) is a debt owing to that
Finance Party by that Obligor.
7.6.3 A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce
its rights under the Finance Documents.
8
PURPOSE
8.1
Purpose
8.1.1 The Term/RCF Borrower shall apply all amounts borrowed by it under -
8.1.1.1 Senior Term Facility A towards refinancing the Existing Group Indebtedness and the Cash
Connect Management Finance Documents, funding Transaction Costs and for general
corporate purposes;
55
8.1.1.2 Senior Term Facility B towards refinancing the Existing Group Indebtedness, refinancing
the amounts payable in terms of the Acquisition GBF and for general corporate purposes;
and
8.1.1.3 the Senior RCF, towards general corporate (including capital expenditure) and working
capital purposes of the Covenant Group,
and for no other purpose whatsoever.
8.1.2 Each WCF Borrower shall apply all amounts utilised by it under a Working Capital Facility for
the purposes of funding the general corporate requirements of the Covenant Group (other than
the Excluded Subsidiaries).
8.1.3 Each Obligor which is a party to the WesBank Facility shall apply all amounts utilised by it under
that Facility for the purposes of financing vehicles required by the Covenant Group (other than
the Excluded Subsidiaries).
8.2
Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to
this Agreement and a Senior Facility Agreement.
9
CONDITIONS OF UTILISATION
9.1
Initial conditions precedent
9.1.1 It is recorded that the Original CP Documents were received in form and substance satisfactory
to the Lenders on the Closing Date.
9.1.2 The Amendment CP Documents must be fulfilled on or before the CP Longstop Date. If the
Amendment CP Documents are not fulfilled timeously by the CP Longstop Date -
9.1.2.1 this Agreement shall be of no force or effect; and
9.1.2.2 the Original Common Terms Agreement shall continue to govern the terms and conditions
common to some or all of the Finance Documents.
9.2
Further conditions precedent
Subject to the terms of this Agreement, a Lender will only be obliged to participate in a Loan or other
Utilisation under a Senior Facility if -
9.2.1 in the opinion of that Lender, on the date of the Utilisation Request and on the proposed
Utilisation Date -
9.2.1.1 the Representations are correct in all respects; and
56
9.2.1.2 no Default is continuing or would result from the proposed Loan; and
9.2.2 where the Utilisation is to be applied towards the refinancing of a portion of Existing Group
Indebtedness and/or the Financial Indebtedness owing under the Cash Connect Management
Finance Documents, the Lender is satisfied that the Covenant Group will discharge any interest
or costs which would be payable on the date that such Financial Indebtedness is settled.
9.3
Waiver or deferral of conditions precedent
Each condition precedent referred to in this clause
Facility Agent (acting on the instructions of all the Lenders) may, by notice to the Term/RCF
Borrower, waive or defer delivery of any condition precedent, in whole or in part, and subject to such
other conditions (if any) as it may determine.
9.4
Failure to close
If the Closing Date has not occurred by 16h00 on the Longstop Date (or such later date as may be
agreed in writing by the Facility Agent, acting on the instructions of all the Lenders), the Total
Commitments shall immediately, automatically and without a requirement for notice to be given to
any person, be cancelled and reduced to zero.
10
UTILISATION
10.1
Utilisations under a Senior Facility Agreement
Subject to the terms of this Agreement, a Borrower may utilise a Senior Facility under a Senior
Facility Agreement to which it is a party on the terms and conditions of the applicable Senior Facility
Agreement.
10.2
Automatic cancellation
The Commitments of each Lender under the Senior Term Facility or the Senior RCF which, at that
time, are unutilised, shall automatically be cancelled immediately at 11h00 on the last day of the
Availability Period for the Senior Term Facility or, as applicable, the Senior RCF.
11
REPAYMENT
Subject to the terms of this Agreement, each Borrower shall repay all Loans made to it under a Senior
Facility Agreement to which it is a party in full, in the amounts and on the dates specified in that Senior
Facility Agreement, and otherwise in accordance with the terms of that Senior Facility Agreement.
57
12
PREPAYMENT AND CANCELLATION
12.1
Mandatory prepayment - illegality
If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as
contemplated by this Agreement or to fund or maintain its participation in any Facility -
12.1.1 that Lender shall notify the Facility Agent as soon as reasonably practicable upon becoming
aware of that event;
12.1.2 upon the Facility Agent notifying the Term/RCF Borrower, the Commitments of that Lender will
be immediately cancelled; and
12.1.3 each Borrower shall repay that Lender's participation in the Loans (together with all other Senior
Facility Outstandings due to that Lender) on the last day of the Interest Period for each Loan
occurring after the Facility Agent has notified the Term/RCF Borrower (provided that if the last
day of any such Interest Period for a Loan falls on a day earlier than the tenth Business Day
after delivery of such notice, then the relevant Borrower shall make such repayment by no later
than such tenth Business Day) or, if earlier, the date specified by the Lender in the notice
delivered to the Facility Agent (being no earlier than the last day of any applicable grace period
permitted by law).
12.2
Mandatory prepayment - sanctions
12.2.1 If any member of the Group or any Security Provider -
12.2.1.1 is or becomes a Sanctioned Entity;
12.2.1.2 participates in any manner in any Sanctioned Transaction;
12.2.1.3 contravenes any Sanctions, or it is targeted under any Sanctions,
each Obligor shall notify the Facility Agent promptly upon becoming aware of that event (unless
that Obligor is aware that a notification has already been provided by another Obligor).
12.2.2 If any event contemplated by clause
12.2.2.1 upon the Facility Agent receiving a notice from an Obligor under clause
a similar notice from any Finance Party, it shall notify the Lenders as soon as reasonably
practicable;
12.2.2.2 a Lender shall not be obliged to fund any Utilisation;
58
12.2.2.3 if a Lender so requires, the Facility Agent shall immediately cancel the Commitments of
that Lender and declare the participation of that Lender in all outstanding Loans, together
with all other Senior Facility Outstandings due to that Lender due and payable, whereupon
the Commitments of that Lender will be cancelled immediately and all such outstanding
amounts will become due and payable on the last day of the Interest Period for each Loan
occurring after the Facility Agent has so notified the Term/RCF Borrower (provided that if
the last day of any such Interest Period for a Loan falls on a day earlier than the tenth
Business Day after delivery of such notice, then the Term/RCF Borrower shall procure
that such repayment is made by no later than such tenth Business Day) or, if earlier, the
date specified by the Facility Agent in that notice (being no earlier than the last day of any
applicable grace period permitted by law or other legal obligation of any Finance Party).
12.3
Mandatory prepayment - change of control or transfer of business
12.3.1 If at any time –
12.3.1.1 prior to the date on which the Net Debt to EBITDA Ratio has been less than 1.75x for two
consecutive Measurement Periods, VCP Investment Fund and VCP Investment
Portfolios, collectively, do not, or cease to, hold legally and beneficially, and have the right
to vote as they see fit 7.5% of the issued share capital of Holdco;
12.3.1.2 prior to the date on which the Net Debt to EBITDA Ratio has been less than 1.75x for two
consecutive Measurement Periods, VCP Investment Fund and VCP Investment Portfolios
collectively Dispose of 50% or more of the shares which they hold in Holdco as at the
Original Signature Date;
12.3.1.3 prior to the date on which the Net Debt to EBITDA Ratio has been less than 1.75x for two
consecutive Measurement Periods, VCP Investment Fund and VCP Investment Portfolios
cease to be able to appoint a director to the board of directors of Holdco;
12.3.1.4 if, without the prior written consent of the Facility Agent (acting on the instructions of the
Majority Lenders), 4 or more of Ali Mazanderani, Lincoln Mali, Daniel Smith, Steven
Heilbron, Naeem E. Kola, Martin Wright, George Roussos, Paul Kent and Basie Kok
cease to be employed by Holdco or any member of the Covenant Group during the period
from the Original Signature Date until the Discharge Date;
12.3.1.5 any person or group of persons directly or indirectly gains Control of Holdco;
12.3.1.6 the shares of common stock of Holdco are delisted from the NASDAQ stock market or the
trade in those shares is suspended for more than three trading days (other than by reason
of a general suspension of trading in securities by the NASDAQ stock market);
59
12.3.1.7 Holdco does not, or ceases to, hold legally and beneficially, and have the right to vote as
it sees fit, directly, 100% of the issued share capital of Term/RCF Borrower, or otherwise
ceases to Control the Term/RCF Borrower;
12.3.1.8 the Term/RCF Borrower does not, or ceases to, hold legally and beneficially, and have
the right to vote as it seems fit, directly or indirectly, 100% of the issued share capital of
any Obligor (other than Holdco), or otherwise ceases to Control any other Obligor (other
than Holdco);
12.3.1.9 there is one or more sales (whether in a single transaction or a series of related
transactions) over the term of this Agreement of assets of one or more members of the
Covenant Group associated with any operating division or business which, on a
cumulative basis taking account of each such asset's Rand contribution (direct or indirect)
to total assets or Consolidated EBITDA of the Group for the Measurement Period most
recently ended prior to its sale, aggregate more than 25% of total assets or Consolidated
EBITDA of the Covenant Group for the Measurement Period most recently ended,
(each a
Control Event
) the Term/RCF Borrower shall promptly notify the Facility Agent upon
becoming aware of that Control Event, and the following shall apply -
12.3.1.10 a Lender shall not be obliged to fund any Utilisation; and
12.3.1.11 if a Lender so requires by delivery of a notice to the Facility Agent to that effect within
30 Business Days of being notified by the Facility Agent that a Control Event has occurred,
the Facility Agent shall, by notice to the Term/RCF Borrower, immediately cancel the
Commitments of that Lender and declare the participation of that Lender in all outstanding
Loans, together with all other Senior Facility Outstandings due to that Lender due and
payable on the tenth Business Day following delivery of that notice, whereupon the
Available Commitments of that Lender (as well as any WCF Commitment and any
WesBank Commitment) will be cancelled immediately and all such outstanding amounts
will become due and payable by no later than such tenth Business Day.
12.4
Mandatory prepayment - material disposal and insurance proceeds
In this Agreement -
12.4.1
Excluded Insurance Proceeds
Covenant Group (other than an Excluded Subsidiary) -
12.4.1.1 which are, or are to be, applied to meet a third party liability claim or to cover operating
losses (including business interruption losses) in respect of which the relevant Insurance
claim was made;
60
12.4.1.2 which are in an amount per claim which is R30,000,000 or less and, when taken together
with the value of any other claims made by members of the Covenant Group (other than
any Excluded Subsidiaries) during the term of this Agreement except for those insurance
proceeds contemplated in clause
R30,000,000 or less; or
12.4.1.3 which, when taken together with the amount of Insurance Proceeds in respect of any other
claims made by members of the Covenant Group (other than any Excluded Subsidiaries)
during the term of this Agreement except for those proceeds contemplated in clause
of a resolution of the directors of the relevant member of the Covenant Group, adopted
and passed within 30 days of receipt of those Insurance Proceeds, they are to be or are
contractually committed to be applied (and are then so applied), within 90 days of the date
of receipt (or such longer period as the Facility Agent may agree in writing), in reinstating
or replacing (on a like for like basis) any asset, or in defraying the loss or liability to which
the claim relates;
12.4.2
Insurance Proceeds
maintained by or which may be claimed by a member of the Covenant Group (other than an
Excluded Subsidiary), after deducting the reasonable, properly evidenced costs and expenses
incurred by members of the Covenant Group (other than an Excluded Subsidiary ) to persons
who are not members of the Covenant Group directly in connection with the recovery of that
claim;
12.4.3
Material Insurance Proceeds
Proceeds; and
12.4.4
Mobikwik Disposal Proceeds
member of the Group following a Disposal by the Group of any shares and/or claims held
against Mobikwik and/or the Disposal of assets by Mobikwik and -
12.4.4.1 including the amount of any intercompany loan repaid by a person who ceases to be a
member of the Group to continuing members of the Group;
12.4.4.2 treating any amount owing by, or set off by, any purchaser of assets as consideration
received in cash;
12.4.4.3 treating consideration initially received in a form other than cash or such instruments, as
being received when and if that consideration is converted into cash or such instruments
or becomes readily so convertible on reasonable commercial terms;
12.4.4.4 after deducting Taxes (and amounts reserved in respect of Taxes) paid or payable as a
result of that disposal of those assets in Mobikwik; and
61
12.4.4.5 after deducting the properly evidenced costs and expenses incurred directly in connection
with that disposal of assets.
12.4.5 the Term/RCF Borrower must notify the Facility Agent within 10 Business Days of the receipt
of any Mobikwik Disposal Proceeds or Material Insurance Proceeds by a member of the Group.
12.4.6 If a member of the Group receives any Material Insurance Proceeds or Mobikwik Disposal
Proceeds, the Term/RCF Borrower shall offer to prepay the Senior Term Facility Loans and
other Senior Term Facility Outstandings and the Senior RCF Loans and other Senior RCF
Outstandings, and cancel Available Commitments under the Senior RCF, in an amount equal
to the balance of those Mobikwik Disposal Proceeds or Material Insurance Proceeds, and
procure that the Mobikwik Disposal Proceeds and Material Insurance Proceeds are applied to
discharge any payments and cancellations required to be made as a result of an acceptance
of any such offer, all in accordance with the requirements of clause
Priorities).
12.5
Voluntary prepayment
The Term/RCF Borrower may, if the Term/RCF Borrower has given the Facility Agent not less than
5 Business Days' prior notice, prepay any Senior Term Facility Loan, Senior RCF Loan or other
amount utilised under a Senior Term Facility or the Senior RCF at any time, in whole or in part. A
prepayment of part of a Senior Term Facility Loan or Senior RCF Loan must be in a minimum amount
of ZAR10,000,000 and an integral multiple of ZAR1,000,000 or such lesser amount as may be
outstanding under the Finance Documents (or such other amount as may be agreed by the Facility
Agent). The Borrower may, in its discretion, elect whether to prepay any Senior Term Facility Loan
or any Senior RCF Loan.
12.6
Voluntary cancellation
12.6.1 The Term/RCF Borrower may, by giving the Facility Agent not less than 10 Business Days'
prior notice (or such shorter period as the Facility Agent may agree in writing) cancel an
Available Facility under the Senior Term Facility, in whole or in part. A partial cancellation of
any such Available Facility must be in a minimum amount of ZAR10,000,000 and an integral
multiple of ZAR1,000,000 or, if less, the Available Facility applicable at that time.
12.6.2 Any partial cancellation of an Available Facility under this clause must be applied against the
Commitment of each Lender under the relevant Senior Facility
pro rata
.
12.6.3 A Working Capital Facility may be cancelled as provided in the WCF Documents.
12.6.4
A
WesBank Facility may be cancelled as provided in the WesBank Agreement.
12.7
Cancellation and prepayment of a single Lender on a change of costs
62
12.7.1 If -
12.7.1.1 any sum payable to any Lender by an Obligor is required to be increased under clause
12.7.1.2 any Lender claims indemnification from the Term/RCF Borrower or any other Obligor
under clause
the Term/RCF Borrower may, whilst the circumstance giving rise to the requirement for that
increase or indemnification continues, give the Facility Agent notice of cancellation of the
Commitments of that Lender and its intention to procure the repayment of that Lender's
participation in the Loans.
12.7.2 On receipt of a notice of cancellation referred to in clause
, the Commitments of
that Lender shall immediately be cancelled and reduced to zero.
12.7.3 On the last day of each Interest Period in relation to a Loan which ends after the Term/RCF
Borrower has given notice of cancellation and/or repayment under clause
earlier, subject to the payment of any Break Costs), each Borrower to which a Utilisation is
outstanding shall repay that Lender's participation in the relevant Utilisations together with all
other Senior Facility Outstandings owed to that Lender under the relevant Facilities.
12.8
Re-borrowing and reinstatement
12.8.1 No amount of a Senior Term Facility Loan paid, repaid or prepaid under this Agreement or the
Senior Term Facility Agreement may be re-borrowed under the Senior Term Facility
Agreement.
12.8.2 Unless a contrary indication appears in this Agreement, the amount of any Loan voluntarily
prepaid under the Senior RCF pursuant to clause
borrowed on the terms of the Amended and Restated Senior RCF Agreement.
12.8.3 Unless a contrary indication appears in this Agreement, the amount of any Loan paid, repaid
or prepaid under a Working Capital Facility, may be re-borrowed subject to and in accordance
with the terms of the relevant WCF Documents.
12.8.4 No amount of the Total Commitments cancelled under this Agreement or a Senior Facility
Agreement may be reinstated other than Total Senior RCF Commitments in accordance with
the provisions of clause
12.9
Application of partial prepayments
63
Any amount to be applied in prepayment of Senior Term Facility Loans (and other Senior Term
Facility Outstandings) or Senior RCF Loans (and other Senior RCF Outstandings) in accordance
with this Agreement or a Senior Facility Agreement -
12.9.1 in respect of a Senior Term Facility, shall be applied in or towards discharging the participation
of Lenders in Loans and other Senior Facility Outstandings under that Senior Term Facility in
each Lender's Pro Rata Share (and for purposes of determining its Pro Rata Share the
provisions of clause
mutatis mutandis
);
12.9.2 in respect of voluntary prepayments in relation to the Senior RCF, shall be applied in or towards
discharging the participation of Lenders in Loans and other Senior Facility Outstandings under
the Senior RCF
in each such Lender's Pro Rata Share (and for purposes of determining its Pro
Rata Share the provisions of clause
mutatis mutandis
);
12.9.3 in respect of any mandatory prepayment of Senior RCF, shall be applied in or towards
discharging the participation of Lenders in Loans and other Senior Facility Outstandings under
the Senior RCF and a cancellation of the RCF Commitments, in each such Lender's Pro Rata
Share (and for purposes of determining its Pro Rata Share the provisions of clause
above shall be applied
mutatis mutandis
); and
12.9.4 in respect of any mandatory prepayment of Senior RCF Loans made to the Lenders in
accordance with the provisions of clause
be applied in prepayment of the Lenders' participation in Loans and other Senior Facility
Outstandings under the Senior RCF and a cancellation of the RCF Commitments, in each such
Lender's Pro Rata Share (and for purposes of determining its Pro Rata Share the provisions of
clause
mutatis mutandis
),,
except, in respect of clauses
made to a particular Lender or Lenders under this clause
and Priorities).
12.10
Other provisions
12.10.1 If the Facility Agent receives any notice of prepayment or cancellation under this clause
a Senior Facility Agreement, or an offer of prepayment under clause
Offers), it shall forward a copy of that notice as soon as reasonably practicable to the Term/RCF
Borrower or the affected Finance Parties, as appropriate.
12.10.2 Any notice of prepayment or cancellation given by a Party under this clause
Facility Agreement, or an offer of prepayment under clause
shall be irrevocable and, unless a contrary indication appears in a Finance Document, shall
specify the date or dates upon which the relevant cancellation or prepayment is to be made
and the amount of that cancellation or prepayment.
64
12.10.3 Except as expressly otherwise provided in this clause
prepayment shall be made together with accrued interest on the amount prepaid, without
premium or penalty except for any Break Costs, Break Gains or applicable Refinancing
Penalties which arise, as a result of such prepayment or as may be otherwise provided in the
applicable Senior Facility Agreement.
12.10.4 No Borrower shall pay, repay or prepay all or any part of the Loans or cancel all or any part of
the Commitments except at the times and in the manner expressly provided for in this
Agreement and the applicable Senior Facility Agreement.
12.10.5 The Facility Agent may agree a shorter notice period for a voluntary prepayment or a voluntary
cancellation under a Senior Facility.
12.11
Refinancing
Subject to the Further Rights Letter, the Term/RCF Borrower may prepay (or procure the prepayment
of) any Senior Term Facility Loan and other Senior Term Facility Outstandings and/or any Senior
RCF Loan and other Senior RCF Outstandings from amounts raised under a Refinancing, on the
condition that all other Senior Term Facility Loans and other Senior Term Facility Outstandings and
Senior RCF Loans and other Senior RCF Outstandings are prepaid in full at the same time and the
Total Senior Term Facility Commitments and Total Senior RCF Commitments are cancelled and
reduced to zero.
13
PREPAYMENT OFFERS AND PRIORITIES
The provisions of this clause
prepayment of the Senior Term Facility Loans (and other Senior Term Facility Outstandings) and Senior
RCF Loans (and other Senior RCF Outstandings), and cancellation of Available Commitments under the
Senior RCF, pursuant to clauses
proceeds).
13.1
Initial Prepayment Offers
13.1.1 If a member of the Group receives any amount of Mobikwik Disposal Proceeds and/or a
member of the Covenant Group (other than an Excluded Subsidiary) receives any Material
Insurance Proceeds (the
Distributable Balance
), the Term/RCF Borrower, by way of a notice
(an
Initial Offer Notice
) delivered to the Facility Agent no later than 10 Business Days after
receipt of those Mobikwik Disposal Proceeds and/or Material Insurance Proceeds, shall offer
(an
Initial Prepayment Offer
) to -
13.1.1.1 pay and discharge the participation of each Lender in Senior Term Facility Loans (and
other Senior Term Facility Outstandings) that remain outstanding under the Senior Term
Facilities; and
65
13.1.1.2 pay and discharge the participation of each Lender in Senior RCF Loans (and other Senior
RCF Outstandings) that remain outstanding under the Senior RCF and/or cancel Available
Commitments in relation to the Senior RCF,
in each case, for an amount determined in accordance with clause
each such Lender, its
Distributable Share
), and such notice shall stipulate how the Term/RCF
Borrower intends to apply any remaining balance (or any part thereof), as contemplated in
clause
Remaining amount of Distributable Balance
).
13.1.2 Each Lender's
Distributable Share
13.1.2.1 the Distributable Balance will be deemed to be offered by the Term/RCF Borrower in
prepayment of all Senior Term Facility Loans (and other Senior Term Facility
Outstandings), and in prepayment and/or cancellation of all Senior RCF Loans (and other
Senior RCF Outstandings) and Available Commitment in relation to the Senior RCF, in
proportion to the Senior Term Facilities' and the Senior RCF's Senior Facility Pro Rata
Share (defined below);
13.1.2.2 in relation to the Senior Term Facility, a Lender's Distributable Share under the Senior
Term Facility (in respect of each such Lender, its
Pro Rata Share
) will be -
13.1.2.2.1 if at any relevant time there are no Senior Term Facility Outstandings under the
Senior Term Facility, its
pro rata
proportion
of the relevant Senior Facility Pro Rata
Share determined by applying that Lender's Commitment under the Senior Term
Facility to all the Commitments under the Senior Term Facility; or
13.1.2.2.2 at any other time, its
pro rata
proportion
of the relevant Senior Facility Pro Rata Share
determined by applying that Lender's Senior Term Facility Outstandings under that
Senior Term Facility to all the Senior Term Facility Outstandings under the Senior
Term Facility; and
13.1.2.3 in relation to the Senior RCF, a Senior RCF Lender's Distributable Share under the Senior
RCF (in respect of each such Lender, its
Pro Rata Share
) will be its
pro rata
proportion
of the relevant Senior Facility Pro Rata Share determined by applying that Lender's Senior
RCF Commitment to all the Total Senior RCF Commitments.
13.1.3 For purposes of this clause
,
Senior Facility Pro Rata Share
, at any relevant time, in
respect of the Senior Term Facility or the Senior RCF (a
Relevant Senior Facility
), means the
proportion (expressed as a percentage) borne by -
13.1.3.1 the aggregate amount, at that time, of (i) the Senior Facility Outstandings under the
Relevant Senior Facility, and (ii) the Available Commitment under the Relevant Senior
Facility; to
66
13.1.3.2 the aggregate amount, at that time, of (i) the Senior Facility Outstandings under all Senior
Term Facilities and the Senior RCF, and (ii) the Available Commitment under the Senior
RCF.
13.2
Acceptances and Additional Prepayment Offers
13.2.1 If a Lender wishes to accept an Initial Prepayment Offer or any part thereof, it must advise the
Facility Agent of its acceptance and provide to it the following details -
13.2.1.1 the amount of its available Distributable Share which it requires to be paid to it and/or, as
applicable, applied in cancellation of its Available Commitments under the Senior RCF
(an
Accepted Prepayment Amount
); and
13.2.1.2 the maximum amount (the
Additional Acceptances Limit
) of any additional part of the
Distributable Balance it would be prepared to accept (if any) in or towards payment and
discharge of its participation in Senior Term Facility Loans (and other Senior Term Facility
Outstandings) that remain outstanding under the Senior Term Facilities and Senior RCF
Loans (and other Senior RCF Outstandings) that remain outstanding under the Senior
RCF, in circumstances where one or more Lenders were to decline the applicable Initial
Prepayment Offers made to them,
13.2.2 by way of a notice delivered to the Facility Agent no later than 5 Business Days after receipt of
any applicable Initial Offer Notice (each such Lender which accepts any applicable Initial
Prepayment Offer for the amount of its Distributable Share or any part thereof, being a
Participating Lender
). If a Lender fails to advise the Facility Agent of its acceptance of an
Initial Prepayment Offer, as required under this clause, then it shall be deemed to have
accepted the Initial Prepayment Offer in full.
13.2.3 The Facility Agent will advise the Term/RCF Borrower and the Lenders, by way of a notice (an
Acceptances Confirmation
) delivered to each of them within 2 Business Days following expiry
of the 5 Business Day period within which any applicable Initial Prepayment Offers may be
accepted, of the following -
13.2.3.1 the Initial Prepayment Offers accepted (including offers that are deemed to have been
accepted) and declined and the aggregate amount of Distributable Shares for which Initial
Prepayment Offers have been declined (the
Declined Balance
); and
67
13.2.3.2 in relation to each Participating Lender, that portion of the Declined Balance allocable to
it (the
Additional Prepayment Amount
), being its Pro Rata Share (and for purposes of
determining its Pro Rata Share the provisions of clause
mutatis mutandis
except that (i) reference in that clause to Distributable Share shall be
deemed to be a reference to a Lender's Additional Prepayment Amount, (ii) reference in
that clause to Distributable Balance shall be deemed to be a reference to the amount of
the Declined Balance and
(iii)
it is assumed that the Senior Term Facility Outstandings,
Senior RCF Outstandings and Senior RCF Commitments of the Lenders declining the
Initial Prepayment Offer are nil) of the Declined Balance limited to its Additional
Acceptances Limit.
13.2.4 Upon delivery of an Acceptances Confirmation -
13.2.4.1 the Term/RCF Borrower will be irrevocably deemed to have offered (the
Additional
Prepayment Offer
) to pay and discharge to each Participating Lender (in addition to
amounts accepted by it pursuant to clause
) its participation in Senior Term
Facility Loans (and other Senior Term Facility Outstandings) that remain outstanding and
the Senior RCF Loans (and other Senior RCF Outstandings) that remain outstanding; and
13.2.4.2 each Participating Lender will be deemed to have accepted the Additional Prepayment
Offer,
13.2.5 in each case, for an amount equal to the Additional Prepayment Amount of each such Lender.
13.3
Application of payment
Following a receipt of any Mobikwik Disposal Proceeds and/or Material Insurance Proceeds and
delivery of an Acceptances Confirmation to the Term/RCF Borrower, the Term/RCF Borrower shall
pay to the Facility Agent, for the account of each Participating Lender, the Accepted Prepayment
Amount and the Additional Prepayment Amount (if any) of that Participating Lender, in full -
13.3.1 on the Interest Payment Date immediately following-
13.3.1.1 receipt of the Mobikwik Disposal Proceeds;
13.3.1.2 expiry of the 30-day period referred to in the definition of Excluded Insurance Proceeds in
clause
30-
Day Period
) if a resolution of the directors of the relevant member of the Covenant Group
has not been adopted and passed within the 30-Day Period; or
68
13.3.1.3 expiry of where a resolution of the directors of the relevant member of the Covenant Group
has been adopted and passed within the 30-Day Period, the 90-day period referred to in
the definitions of Excluded Insurance Proceeds in clause
material disposal and insurance proceeds) if the relevant Material Insurance Proceeds
have not been applied within that 90-day period; or
13.3.2 if an Event of Default is continuing, no later than the first Business Day following the date on
which the Facility Agent delivers an Acceptances Confirmation to the Term/RCF Borrower,
and in respect of any Participating Lender in relation to the Senior RCF, its Accepted Prepayment
Amount and the Additional Prepayment Amount (if any) shall be applied in the following order -
13.3.2.1 firstly, in prepayment of its participation in Senior RCF Loans and other Senior RCF
Outstandings, with a corresponding cancellation of RCF Commitments; and
13.3.2.2 secondly and without double counting, in cancellation of its Available Commitments under
the Senior RCF.
13.4
Remaining amount of Distributable Balance
If, after having implemented the provisions of clauses
, the full amount of any
Distributable Balance offered to Lenders is not required to be applied in or towards the payment,
repayment or prepayment of Senior Term Facility Loans and other Senior Term Facility Outstandings
and Senior RCF Loans and other Senior RCF Outstandings, any remaining balance (or any part
thereof) (the
Remaining Distributable Balance
) shall be available for application as follows -
13.4.1 it may be retained in the Covenant Group and used for the general operations of the members
of the Covenant Group; and
13.4.2 it may be used to make a distribution to Holdco subject to the requirements of clause
(Distributions).
14
RATE SWITCH
14.1
Switch to Compound Reference Rate
Subject to clause
Delayed switch for existing Term Rate Loans
), on and from the Rate Switch
Date -
14.1.1 use of the Compounded Reference Rate will replace the use of JIBAR for the calculation of
interest for Loans; and
14.1.2 any Loan or Unpaid Sum shall be a "Compounded Rate Loan" and clause 9.2 (
Calculation of
interest – Compounded Rate Loans
) of the Senior Term Facility Agreements and the Amended
and Restated Senior RCF Agreement (as applicable) shall apply to each Loan or Unpaid Sum.
69
14.2
Delayed switch for existing Term Rate Loans
If the Rate Switch Date falls before the last day of an Interest Period for a Term Rate Loan -
14.2.1 that Loan shall continue to be a Term Rate Loan for that Interest Period and clause 9.1
(
Calculation of interest – Term Rate Loan
) of the Senior Term Facility Agreements and the
Amended and Restated Senior RCF Agreement (as applicable) shall continue to apply to that
Loan for that Interest Period; and
14.2.2 any provision which is expressed to apply on and from the Rate Switch Date shall not apply in
relation to that Loan for that Interest Period; and
14.2.3 on and from the first day of the next Interest Period (if any) for that Loan -
14.2.3.1 that Loan shall be a "Compounded Rate Loan"; and
14.2.3.2 clause 9.2 (
Calculation of interest – Compounded Rate Loans
) of the Senior Term Facility
Agreements and the Amended and Restated Senior RCF Agreement (as applicable) shall
apply to that Loan.
14.3
Notifications by the Facility Agent
14.4 Prior to the occurrence of the Rate Switch Date, the Facility Agent shall promptly notify the Term/RCF
Borrower of the determination of a rate of interest under this Agreement.
14.5 The Facility Agent shall, promptly upon becoming aware of the occurrence of the Rate Switch Date,
notify the Term/RCF Borrower of that occurrence.
15
INTEREST AND INTEREST PERIODS
15.1
Calculation, accrual and payment
All interest on a Loan made to a Borrower under a Senior Facility Agreement shall be calculated,
accrue and be paid by that Borrower for the account of the Lenders under the relevant Senior Facility
in accordance with the terms of that Senior Facility Agreement.
15.2
Interest Periods
The Interest Periods which apply to a Loan or Unpaid Sum made to a Borrower under a Senior
Facility Agreement shall be governed by the terms of that Senior Facility Agreement.
16
CHANGES TO THE CALCULATION OF INTEREST
16.1
Unavailability of Screen Rate in respect of a Term Rate Loan prior to the Rate Switch Date
70
16.1.1
Interpolated Screen Rate
: If no Screen Rate is available for JIBAR for the Interest Period of a
Term Rate Loan, the applicable JIBAR shall be the Interpolated Screen Rate for a period equal
in length to the Interest Period of that Term Rate Loan.
16.1.2
Reference Bank Rate
: If no Screen Rate is available for JIBAR for (i) ZAR; or (ii) the Interest
Period of a Term Rate Loan under a Facility and it is not possible to calculate the Interpolated
Screen Rate the applicable JIBAR shall be the Reference Bank Rate as of the Specified Time
and for a period equal in length to the Interest Period of that Term Rate Loan.
16.1.3
Cost of funds
: If Clause
or the relevant Interest Period, there shall be no JIBAR for that Term Rate Loan and clause
Cost of funds
) shall apply to that Term Rate Loan for that Interest Period.
16.2
Calculation of Reference Bank Rate in respect of a Term Rate Loan
16.2.1 Subject to clause
, if JIBAR is to be determined on the basis of a Reference Bank Rate
but a Reference Bank does not supply a quotation by the Specified Time, the Reference Bank
Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.
16.2.2 If at or about noon on the Quotation Day, none or only one of the Reference Banks supplies a
quotation, there shall be no Reference Bank Rate for the relevant Interest Period.
16.3
Interest calculation if no RFR or Central Bank Rate in respect of Compounded Rate Loans
16.3.1 In the case of a Compounded Rate Loan, if the RFR for an RFR Banking Day during an Interest
Period cannot be determined, the fallbacks included in the definition of Daily Rate as set out in
the Compounded Rate Terms shall apply.
16.3.2 With effect from the Rate Switch Date, if -
16.3.2.1 if there is no applicable RFR or Central Bank Rate for the purposes of calculating the Daily
Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest
Period for a Compounded Rate Loan;
16.3.2.2 the Daily Rate cannot be calculated in accordance with the methodology set out in the
definition for “Daily Rate” in the Compounded Rate Terms; and
16.3.2.3 “
Cost of Funds will apply as a fallback
” is specified in the Compounded Rate Terms,
then clause
Cost of funds
) shall apply to that Loan for that Interest Period.
16.4
Market disruption
71
16.4.1 In the case of a Term Rate Loan, if a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each Lender's share of that Loan for the Interest
Period shall be the percentage rate per annum which is the sum of -
16.4.1.1 the Applicable Margin; and
16.4.1.2 the highest of the rates notified to the Facility Agent by the relevant Lenders as soon as
practicable and in any event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum the cost to those
Lenders of funding their participation in that Loan from whatever source(s) they may
reasonably select.
16.4.2 In this Agreement
Market Disruption Event
Senior RCF -
16.4.2.1 at or about noon on the Quotation Day for the relevant Interest Period the Screen Rate is
not available and none or only one of the Reference Banks supplies a rate to the Facility
Agent to determine JIBAR for the relevant Interest Period; or
16.4.2.2 before close of business in Johannesburg on the Quotation Day for the relevant Interest
Period, the Facility Agent receives notifications from one or more Lenders whose
aggregate participations in Loans under the applicable Facility exceed 30 per cent. of
aggregate principal amount of Loans outstanding under that Senior Facility that -
16.4.2.2.1 the cost to them of funding their participation in that Loan from whatever source they
may reasonably select would be in excess of JIBAR (provided that the relevant
Lenders must first consider funding available in the Johannesburg Interbank Market
prior to considering other sources of funding);
16.4.2.2.2 the cost to it or them of obtaining matching deposits in the Johannesburg interbank
market would be in excess of JIBAR for the relevant Interest Period; or
16.4.2.2.3 matching deposits will not be available to them in the Johannesburg interbank
market in the ordinary course of business to fund their participation in that Loan for
the relevant Interest Period.
16.4.3 In the case of a Compounded Rate Loan, if -
16.4.3.1 a Market Disruption Rate is specified in the Compounded Rate Terms; and
16.4.3.2 before the Reporting Time, the Facility Agent receives notifications from the Lenders or a
Lender determines that the cost of the Lender funding that Loan would be in excess of
the Market Disruption Rate,
72
then clause
Cost of Funds
) shall apply to that Loan for the relevant Interest Period.
16.5
Alternative basis of interest or funding prior to the Rate Switch Date
16.5.1 Without prejudice to the generality of clause
, if a Market Disruption Event occurs
and the Facility Agent or the Term/RCF Borrower so requires, the Facility Agent and the
Term/RCF Borrower shall enter into negotiations (for a period of not more than 30 days, or such
longer period as the Facility Agent may agree) with a view to agreeing a substitute basis for
determining the rate of interest.
16.5.2 Any alternative basis agreed pursuant to clause
the Lenders and the Term/RCF Borrower, be binding on all Parties.
16.6
Cost of Funds
16.6.1 If this clause
Calculation of
interest - Term Rate Loans
) of the Senior Term Facility Agreements and the Amended and
Restated Senior RCF Agreement (as applicable) nor clause 9.2 (
Calculation of interest -
Compounded Rate Loans
) of the Senior Term Facility Agreements and the Amended and
Restated Senior RCF Agreement (as applicable) shall apply to that Loan for that Interest Period
and, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest
Period shall be the percentage rate per annum which is the sum of -
16.6.1.1 the applicable Margin; and
16.6.1.2 the rate notified to the Facility Agent (acting on the instructions of the Majority Lenders),
as soon as practicable and in any event -
16.6.1.2.1 in relation to a Term Rate Loan, before the date on which interest is due to be paid
in respect of that Interest Period; or
16.6.1.2.2 in relation to a Compounded Rate Loan, by the Reporting Time,
to be that which expresses as a percentage rate per annum the cost to the relevant Lender
of funding its participation in that Loan from whatever source(s) it may reasonably select.
16.6.2 If this clause
Facility Agent and the Term/RCF Borrower shall enter into negotiations (for a period of not more
than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
16.6.3 Any alternative basis agreed pursuant to clause
of the Lenders and the Term/RCF Borrower, be binding on all Parties.
73
16.6.4 If this clause
Market Disruption
) and in relation to a
Compounded Rate Loan a Lender’s Funding Rate is less than the Market Disruption Rate, the
cost to that Lender of funding its participation in that Loan for that Interest Period shall be
deemed, for purposes of clause
16.6.5 If this clause
Borrower.
16.7
Replacement of Screen Rate
16.7.1 If a Screen Rate Replacement Event has occurred in relation to the Screen Rate, the Parties
shall enter into negotiations in good faith with a view to agreeing the use of a Replacement
Benchmark in place of that Screen Rate.
16.7.2 Any amendment or waiver which relates to providing for the use of a Replacement Benchmark
and -
16.7.2.1 aligning any provision of any Finance Document to the use of that Replacement
Benchmark;
16.7.2.2 enabling that Replacement Benchmark to be used for the calculation of interest under this
Agreement (including, without limitation, any consequential changes required to enable
that Replacement Benchmark to be used for the purposes of this Agreement);
16.7.2.3 implementing market conventions applicable to that Replacement Benchmark;
16.7.2.4 providing for appropriate fallback (and market disruption) provisions for that Replacement
Benchmark; or
16.7.2.5 adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any
transfer of economic value from one Party to another as a result of the application of that
Replacement Benchmark (and if any adjustment or method for calculating any adjustment
has been formally designated, nominated or recommended by the Relevant Nominating
Body, the adjustment shall be determined on the basis of that designation, nomination or
recommendation),
may be made with the consent of the Parties.
17
BREAK COSTS AND BREAK GAINS
17.1 Each Borrower shall, within 3 Business Days of demand by a Finance Party, pay to that Finance
Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being repaid or prepaid
on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
74
17.2 On the condition that no Event of Default is then continuing, a Senior Term Facility Lender or Senior
RCF Lender, as applicable, shall, within 10 Business Days of demand by the Term/RCF Borrower,
pay to the Term/RCF Borrower the amount of any Break Gains attributable to all or any part of the
participation of that Senior Term Facility Lender or Senior RCF Lender in a Loan being repaid or
prepaid on a day other than the last day of an Interest Period for that Loan.
17.3 Each Lender shall, as soon as reasonably practicable after a demand by the Facility Agent (made
following receipt by the Facility Agent of a written request from the Term/RCF Borrower to make
such demand), provide a certificate confirming the amount of its Break Costs or Break Gains (as
applicable) for any Interest Period in which they accrue.
18
FEES
18.1
Non-refundable Deal Structuring Fee
The Term/RCF Borrower shall pay to each Original Senior Lender a non-refundable deal structuring
fee in the amount and at the times agreed in a Fee Letter.
18.2
Commitment Fees
18.2.1 The Term/RCF Borrower must pay to the Facility Agent (for the account of each Senior RCF
Lender and each Senior Term Facility Lender, if applicable) a commitment fee computed at the
rate equal to 30% of the applicable Margin on that Senior Term Facility Lender's Available
Commitment or that Senior RCF Lender's Available Commitment (except ignoring for the
purpose of determining Available Commitment in this context the provisions of clause
of clause
the Availability Period applicable to that Senior Term Facility or the Senior RCF.
18.2.2 The accrued commitment fees accrue daily with effect from the Closing Date and are payable
on each Interest Payment Date which occurs during the relevant period during which
commitment fees apply, on the last day of the relevant Availability Period and, if cancelled in
full, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation
is effective.
18.3
Agency fee
The Term/RCF Borrower shall pay to the Facility Agent (for its own account) an agency fee in the
amount and at the times agreed in a Fee Letter.
18.4
Administration fee
75
The Term/RCF Borrower shall pay to TMF Corporate Services (South Africa) Proprietary Limited the
administration services fees in the amounts and at the times agreed in the letter by TMF Corporate
Services (South Africa) Proprietary Limited, dated 24 June 2024 (as amended from time to time, with
the approval of the Facility Agent).
19
TAX GROSS-UP AND INDEMNITIES
19.1
Definitions
19.1.1 In this Agreement -
19.1.2
Protected Party
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;
19.1.3
Tax Credit
19.1.4
Tax Deduction
under a Finance Document, other than a FATCA Deduction;
19.1.5
Tax Payment
under clause
19.1.6 Unless a contrary indication appears, in this clause
determines
determined
determination.
19.2
Tax gross-up
19.2.1 Each Obligor shall make all payments to be made by it free and clear of and without any Tax
Deduction, unless a Tax Deduction is required by law.
19.2.2 The Term/RCF Borrower shall promptly upon becoming aware that an Obligor must make a
Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify
the Facility Agent accordingly. Similarly, a Lender shall notify the Facility Agent, as soon as
reasonably practicable, on becoming so aware in respect of a payment payable to that Lender.
If the Facility Agent receives such notification from a Lender it shall notify the Term/RCF
Borrower and that Obligor.
19.2.3 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.
76
19.2.4 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.
19.2.5 Within thirty days of making either a Tax Deduction or any payment required in connection with
that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Facility Agent
for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid
to the relevant taxing authority.
19.3
Tax indemnity
19.3.1 Each Obligor shall (within three Business Days of demand by the Facility Agent) indemnify
each Protected Party against, and shall pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
19.3.2 Clause
19.3.2.1 with respect to any Tax assessed on a Finance Party - (A) under the law of the jurisdiction
in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions)
in which that Finance Party is treated as resident for tax purposes or (B) under the law of
the jurisdiction in which that Finance Party's facility office is located in respect of amounts
received or receivable in that jurisdiction, if that Tax is imposed on or calculated by
reference to the net income received or receivable (but not any sum deemed to be
received or receivable) by that Finance Party;
19.3.2.2 to the extent a loss, liability or cost is compensated for by an increased payment under
clause
Party.
19.3.3 A Protected Party making, or intending to make a claim under clause
, shall notify
the Facility Agent as soon as reasonably practicable of the event which will give, or has given,
rise to the claim, following which the Facility Agent shall notify the Term/RCF Borrower or
relevant Obligor of such claim.
19.3.4 A Protected Party shall, on receiving a payment from an Obligor under this clause
, notify
the Facility Agent.
19.4
Tax Credit
Subject to clause
Payment and the relevant Finance Party determines that -
77
19.4.1 a Tax Credit is attributable either to an increased payment of which that Tax Payment forms
part, or to that Tax Payment; and
19.4.2 that Finance Party has obtained, utilised and retained that Tax Credit,
the Finance Party shall pay an amount to that Obligor, as soon as reasonably practicable, which that
Finance Party determines will leave it (after that payment) in the same after-Tax position as it would
have been in had the Tax Payment not been required to be made by the Obligor.
19.5
Stamp taxes
Each Obligor shall (within three Business Days of demand) indemnify each Finance Party against,
and shall pay to the relevant Finance Party, any cost, loss or liability that the relevant Finance Party
incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any
Finance Document.
19.6
Value added tax
19.6.1 All amounts set out or expressed to be payable under a Finance Document by any Party to a
Finance Party which (in whole or in part) constitute the consideration for a supply or supplies
for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such
supply or supplies, and accordingly, subject to clause
, if VAT is or becomes
chargeable on any supply made by any Finance Party to any Party under a Finance Document,
that Party shall pay to the Finance Party (in addition to and at the same time as paying any
other consideration for such supply) an amount equal to the amount of such VAT (and such
Finance Party shall provide an appropriate VAT invoice to such Party as soon as reasonably
practicable).
19.6.2 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
Subject Party
) is required by the terms of any Finance Document to pay an
amount equal to the consideration for such supply to the Supplier (rather than being required
to reimburse the Recipient in respect of that consideration), such Party shall also pay to the
Supplier (in addition to and at the same time as paying such amount) an amount equal to the
amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to
any credit or repayment obtained by the Recipient from the relevant tax authority which the
Recipient reasonably determines is in respect of such VAT.
78
19.6.3 Notwithstanding anything to the contrary contained in this clause
Obligor irrevocably and unconditionally appoints the Facility Agent and each Lender as its
representative and agent to, in its name place and stead, and for and on its behalf, make
payment of all expenses referred to in clause
parties as is contemplated in clause
immediately due and recoverable from the relevant Obligor on demand.
19.6.4 Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for
any costs or expenses, that Party shall reimburse or indemnify (as the case may be) such
Finance Party for the full amount of such cost or expense, including such part thereof as
represents VAT, save to the extent that such Finance Party reasonably determines that it is
entitled to credit or repayment in respect of such VAT from the relevant tax authority.
19.7
FATCA Deduction
19.7.1 Each Party may make any FATCA Deduction it is required to make by FATCA, and any
payment required in connection with that FATCA Deduction, and no Party is required to
increase any payment in respect of which it makes such a FATCA Deduction or otherwise
compensate the recipient of the payment for that FATCA Deduction.
19.7.2 Each Party must, promptly on becoming aware that it must make a FATCA Deduction (or that
there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom
it is making the payment and, in addition, must notify the Term/RCF Borrower and the Facility
Agent, and the Facility Agent must promptly notify the other Finance Parties.
20
CHANGES IN COSTS
20.1
Increased costs
20.1.1 Subject to clause
, the Term/RCF Borrower shall, within three Business Days of a
demand by the Facility Agent, pay for the account of a Finance Party the amount of any
Increased Costs incurred by that Finance Party or any of its Affiliates as a result of -
20.1.1.1 the introduction of or any change in (or in the interpretation, administration or application
of) any law or regulation;
20.1.1.2 compliance with any law or regulation; or
20.1.1.3 compliance with any aspect of the Consolidated Basel Framework (including any national
regulation which implements the Consolidated Basel Framework) whether implemented
before or after the Original Signature Date,
79
including, without limitation, any such law or regulation (including the Consolidated Basel
Framework) concerning capital adequacy requirements, liquid asset holding requirements,
special deposit requirements, prudential limits, reserve assets or Tax.
20.1.2 In this Agreement -
20.1.3
Increased Costs
20.1.3.1 a reduction in the rate of return from a Senior Facility or on a Finance Party's (or its
Affiliate's) overall capital (including, without limitation, as a result of any reduction in the
rate of return on capital brought about by more capital being required to be allocated by
such Finance Party);
20.1.3.2 an additional or increased cost; or
20.1.3.3 a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is
attributable to that Finance Party having entered into its Commitment or funding or performing
its obligations under any Finance Document;
20.1.4
Basel IV
January 2016 entitled "Minimum Capital Market Requirements", (ii) in March 2016 entitled
"Revisions to the Standardised Approach for credit risk", (iii) in June 2016 entitled "Reducing
variation in credit risk-weighted assets – constraints on the use of internal model approaches",
and (iv) all other publications considered part of Basel IV, and in each case, as updated from
time to time, or any rules, regulations, guidance, interpretations or directives promulgated or
issued in connection therewith by any bank regulatory agency (whether or not having the force
of law but which are generally complied with);
20.1.5
Consolidated Basel Framework
20.1.5.1 the agreements on capital requirements, leverage ratio and liquidity standards contained
in Basel III - A global regulatory framework for more resilient banks and banking systems,
Basel III - International framework for liquidity risk measurement, standards and
monitoring and Guidance for national authorities operating the countercyclical capital
buffer published by the Basel Committee on Banking Supervision in December 2010, each
as amended, supplemented, restated or reformed;
20.1.5.2 the rules for global systemically important banks contained in Global systemically
important banks - assessment methodology and the additional loss absorbency
requirement - Rules text published by the Basel Committee on Banking Supervision in
November 2011, as amended, supplemented or restated; and
80
20.1.5.3 any revised principles or standards published by the Basel Committee on Banking
Supervision relating to any reforms of Basel III or other principles and standards
incorporated into the consolidated Basel Framework by the Basel Committee on Banking
Supervision relating to the regulation, supervision, governance and risk management of
the banking sector; and
20.1.5.4 any other guidance, standards or directives published by the Basel Committee on Banking
Supervision relating to Basel III, the Basel III reforms or Basel IV;
20.2
Increased Cost claims
20.2.1 A Finance Party intending to make a claim pursuant to clause
Agent, as soon as reasonably possible after becoming aware of the claim, of the event giving
rise to the claim, following which the Facility Agent shall notify the Term/RCF Borrower as soon
as reasonably practicable.
20.2.2 Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide
a certificate confirming the amount of its Increased Costs and setting out a calculation of the
amount of its Increased Cost (without having to provide details of the manner in which any
variable (including any figure or data) used in the calculation of its Increased Cost was
determined).
20.3
Exceptions
20.3.1 Clause
20.3.1.1 attributable to a Tax Deduction required by law to be made by an Obligor;
20.3.1.2 compensated for by clause
under that clause but was not so compensated solely because any of the exclusions in
that clause applied);
20.3.1.3 attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or
regulation; or
20.3.1.4 attributable to a FATCA Deduction required to be made by a Party.
20.3.2 In this clause
, a reference to a
Tax Deduction
in clause
21
OTHER INDEMNITIES
21.1
Currency indemnity
81
21.1.1 If any sum due from an Obligor under the Finance Documents (a
Sum
), or any order, judgment
or award given or made in relation to a Sum, has to be converted from the currency (the
First
Currency
) in which that Sum is payable into another currency (the
Second Currency
) for the
purpose of -
21.1.1.1 making or filing a claim or proof against that Obligor; or
21.1.1.2 obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration
proceedings,
21.1.2 that Obligor shall as an independent obligation, within three Business Days of demand,
indemnify each Finance Party to whom that Sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any discrepancy between (A) the rate of
exchange used to convert that Sum from the First Currency into the Second Currency and (B)
the rate or rates of exchange available to that person at the time of its receipt of that Sum.
21.1.3 Each Obligor waives any right it may have in any jurisdiction to pay any amount under the
Finance Documents in a currency or currency unit other than that in which it is expressed to be
payable.
21.2
Other indemnities
21.2.1 The Obligors shall, within three Business Days of demand, indemnify each Finance Party
against, and shall pay to each Finance Party, any properly evidenced cost or any loss or liability
(other than consequential damages or opportunity costs) incurred by that Finance Party as a
result of -
21.2.1.1 the occurrence of any Default;
21.2.1.2 any information produced or approved by Holdco or any member of the Covenant Group
under or in connection with the Finance Documents being misleading or deceptive in any
respect;
21.2.1.3 any enquiry, investigation, subpoena (or similar order) or litigation with respect to any
Obligor or other Security Provider, or with respect to the transactions contemplated or
financed under this Agreement;
21.2.1.4 a failure by an Obligor or other Security Provider to pay any amount due under a Finance
Document on its due date;
21.2.1.5 funding, or making arrangements to fund, its participation in a Loan requested by a
Borrower in a Utilisation Request but not made by reason of the operation of any one or
more of the provisions of this Agreement (other than by reason of gross negligence or
wilful default of that Finance Party alone); or
82
21.2.1.6 a Loan (or part of a Loan) not being prepaid in accordance with the terms of this
Agreement.
21.2.2 Each Obligor’s liability in each case includes any loss or expense on account of funds borrowed,
contracted for or utilised to fund any amount payable under any Finance Document or any
Loan.
21.3
Indemnity to the Facility Agent
21.3.1 Each Obligor hereby indemnifies the Facility Agent against, and shall pay to the Facility Agent
within three Business Days of demand, any cost, loss or liability (other than consequential
damages or opportunity costs) incurred by the Facility Agent as a result of -
21.3.1.1 investigating or taking any other action in connection with any event which it reasonably
believes is a Default; or
21.3.1.2 acting or relying on any notice, request or instruction which it reasonably believes to be
genuine, correct and appropriately authorised.
21.3.2 Each Obligor hereby indemnifies the Facility Agent against, and shall pay to the Facility Agent
within three Business Days of demand, any cost, loss or liability incurred by the Facility Agent
as a result of -
21.3.2.1 the taking, holding, protection or enforcement of any Transaction Security (or giving any
instructions to the Debt Guarantor in this regard);
21.3.2.2 any default by an Obligor in the performance of any of the obligations expressed to be
assumed by it under the Finance Documents; or
21.3.2.3 the performance of its functions or the exercise of the rights, powers, discretions and
remedies vested in the Facility Agent, in its capacity as such, by the Finance Documents
or by law, except for any such cost, loss or liability arising as a result of the gross
negligence or wilful default of the Facility Agent.
21.3.3 The Term/RCF Borrower shall reimburse to the Facility Agent all such out-of-pocket expenses
actually and reasonably incurred and properly evidenced within 5 Business Days of the Facility
Agent presenting the Term/RCF Borrower with a tax invoice in respect thereof.
21.4
Indemnity to the Debt Guarantor
Each Obligor hereby indemnifies the Debt Guarantor against, and shall pay to the Facility Agent for
the account of the Debt Guarantor, on demand, any cost, loss or liability (other than consequential
damages or opportunity costs) incurred by the Debt Guarantor as a result of -
83
21.4.1 acting or relying on any notice, request or instruction which it reasonably believes to be genuine,
correct and appropriately authorised (other than by reason of gross negligence or wilful default
of the Debt Guarantor);
21.4.2 the taking, holding or enforcement of any Transaction Security;
21.4.3 the performance of its functions or the exercise of the rights, in its capacity as such, under the
Finance Documents, except for any such cost, loss or liability arising as a result of the gross
negligence or wilful default of the Debt Guarantor;
21.4.4 any breach by an Obligor of its obligations under the Finance Documents.
22
MITIGATION BY THE LENDERS
22.1
Mitigation
22.1.1 Each Finance Party shall, in consultation with the Term/RCF Borrower, take all reasonable
steps to mitigate any circumstances which arise and which would result in any amount
becoming payable under or pursuant to, or cancelled pursuant to, any of clause
(Mandatory prepayment - Illegality), clause
(Changes in Costs).
22.1.2 Clause
Documents.
22.2
Limitation of liability
22.2.1 The Term/RCF Borrower hereby indemnifies each Finance Party against, and undertakes to
pay to it on demand, all costs and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under clause
22.2.2 A Finance Party is not obliged to take any steps under clause
that Finance Party (acting reasonably) -
22.2.2.1 any law or regulation would not allow or permit it; or
22.2.2.2 to do so might be prejudicial to it.
23
COSTS AND EXPENSES
23.1
Transaction expenses
23.1.1 The Term/RCF Borrower shall promptly on demand pay the Facility Agent the amount of all
costs and expenses (including legal fees) incurred by it in connection with the negotiation,
preparation, printing and execution of -
84
23.1.1.1 this Agreement, the other Finance Documents and any other documents referred to in this
Agreement (including all costs of registering or perfecting Transaction Security); and
23.1.1.2 any Finance Documents executed after the Original Signature Date.
23.1.2 For the avoidance of doubt the Term/RCF Borrower will be liable for the costs contemplated in
clause
executed or if the Facilities are not advanced or are withdrawn.
23.2
Amendment costs
23.2.1 If an Obligor requests an amendment, waiver or consent, the Term/RCF Borrower shall, within
three Business Days of demand, reimburse each Finance Party for the amount of all costs and
expenses (including legal fees) incurred by that Finance Party in relation to any such requested
amendment, waiver or consent.
23.2.2 If there is any change in law or any regulation which requires an amendment, waiver or consent
under the Finance Documents, the Term/RCF Borrower shall, within three Business Days of
demand, reimburse each Finance Party for the amount of all costs and expenses (including
legal fees) incurred by that Finance Party in connection with any such required amendment,
waiver or consent.
23.3
Enforcement costs
The Term/RCF Borrower shall, within three Business Days of demand, pay to each Finance Party
the amount of all costs and expenses (including legal fees on the scale as between attorney and
own client whether incurred before or after judgment) incurred by that Finance Party in connection
with the enforcement of, or the preservation of any rights under, any Finance Document.
24
GUARANTEE AND INDEMNITY
24.1
Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally, as a principal obligor and not
merely as a surety and on the basis of discrete obligations enforceable against it -
24.1.1 guarantees to each Finance Party punctual performance by each other Obligor of all that
Obligor's obligations under the Finance Documents;
24.1.2 undertakes with each Finance Party that whenever an Obligor does not pay any amount when
due under or in connection with any Finance Document, that Guarantor shall immediately on
demand pay that amount as if it were the principal obligor; and
85
24.1.3 agrees with each Finance Party that if any obligation guaranteed by it is or becomes
unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that
Finance Party immediately on demand against any cost, loss or liability it incurs as a result of
an Obligor not paying any amount which would, but for such unenforceability, invalidity or
illegality, have been payable by it under any Finance Document on the date when it would have
been due. The amount payable by a Guarantor under this indemnity will not exceed the amount
it would have had to pay under this clause
the basis of a guarantee.
24.2
Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by
any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in
whole or in part.
24.3
Reinstatement
If any payment by an Obligor or any discharge, release or arrangement given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for those obligations or otherwise)
is avoided or reduced for any reason (including, without limitation, as a result of insolvency, business
rescue proceedings, liquidation, winding-up or otherwise) -
24.3.1 the liability of each Obligor shall continue as if the payment, discharge, avoidance or reduction
had not occurred; and
24.3.2 each Finance Party shall be entitled to recover the value or amount of that security or payment
from each Obligor, as if the payment, discharge, avoidance or reduction had not occurred.
24.4
Waiver of defences
The obligations of each Guarantor under this clause
matter or thing which, but for this clause, would reduce, release or prejudice any of its obligations
under this clause
-
24.4.1 any time, waiver or consent granted to, or composition with, any Obligor or other person;
24.4.2 the release of any other Obligor or any other person under the terms of any composition or
arrangement with any creditor of any member of the Covenant Group;
24.4.3 the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to
perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor
or other person or any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the full value of any security;
86
24.4.4 any incapacity or lack of power, authority or legal personality of or dissolution or change in the
members or status of an Obligor or any other person;
24.4.5 any amendment, novation, supplement, extension, restatement (however fundamental and
whether or not more onerous) or replacement of any Finance Document or any other document
or security including without limitation any change in the purpose of, any extension of or any
increase in any facility or the addition of any new facility under any Finance Document or other
document or security;
24.4.6 any unenforceability, illegality, invalidity, suspension or cancellation of any obligation of any
person under this Agreement or any other Finance Document or any other document or
security;
24.4.7 any insolvency, liquidation, winding-up, business rescue or similar proceedings (including, but
not limited to, receipt of any distribution made under or in connection with those proceedings);
24.4.8 this Agreement or any other Finance Document not being executed by or binding against any
other Guarantor or any other party; or
24.4.9 any other fact or circumstance arising on which a Guarantor might otherwise be able to rely on
a defence based on prejudice, waiver or estoppel.
24.5
Guarantor intent
Without prejudice to the generality of clause
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.
24.6
Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or
agent on its behalf) to proceed against or enforce any other rights or security or claim payment from
any person before claiming from that Guarantor under this clause
. This waiver applies irrespective
of any law or any provision of a Finance Document to the contrary.
24.7
Deferral of Guarantors' rights
87
24.7.1 Until all amounts which may be or become payable by the Obligors under or in connection with
the Finance Documents have been irrevocably paid in full and unless the Facility Agent
otherwise directs, no Guarantor will exercise any rights which it may have by reason of
performance by it of its obligations under the Finance Documents or by reason of any amount
being payable, or liability arising, under this clause
24.7.1.1 to be indemnified by an Obligor;
24.7.1.2 to claim any contribution from any other guarantor of or provider of security for any
Obligor's obligations under the Finance Documents;
24.7.1.3 to take the benefit (in whole or in part and whether by way of subrogation, cession of
action or otherwise) of any rights of the Finance Parties under the Finance Documents or
of any other guarantee or security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party;
24.7.1.4 to bring legal or other proceedings for an order requiring any Obligor to make any
payment, or perform any obligation, in respect of which any Guarantor has given a
guarantee, undertaking or indemnity under clause
24.7.1.5 to exercise any right of set-off against any Obligor; and/or
24.7.1.6 to claim, rank, prove or vote as a creditor or shareholder of any Obligor in competition with
any Finance Party.
24.7.2 If a Guarantor receives any benefit, payment or distribution in relation to such rights, it shall
hold that benefit, payment or distribution to the extent necessary to enable all amounts which
may be or become payable to the Finance Parties by the Obligors under or in connection with
the Finance Documents to be repaid in full on trust for, or otherwise for the benefit of, the
Finance Parties and shall promptly pay or transfer the same to the Facility Agent or as the
Facility Agent may direct for application in accordance with clause
24.8
Release of Guarantors' right of contribution
If any Guarantor (a
Retiring Guarantor
) ceases to be a Guarantor in accordance with the terms of
this Agreement for the purpose of any sale or other disposal of that Retiring Guarantor then on the
date such Retiring Guarantor ceases to be a Guarantor -
24.8.1 that Retiring Guarantor is automatically released by each other Guarantor from any liability
(whether past, present or future and whether actual or contingent) to make a contribution to
any other Guarantor arising by reason of the performance by any other Guarantor of its
obligations under the Finance Documents; and
88
24.8.2 each other Guarantor waives any rights it may have by reason of the performance of its
obligations under the Finance Documents to take the benefit (in whole or in part and whether
by way of subrogation, cession of action or otherwise) of any rights of the Finance Parties under
any Finance Document or of any other security taken pursuant to, or in connection with, any
Finance Document where such rights or security are granted by or in relation to the assets of
the Retiring Guarantor.
24.9
Additional security
This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security
now or subsequently held by any Finance Party (which a Finance Party may release as it sees fit,
without prejudice to its rights hereunder).
25
REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this clause
on the Original Signature Date, the Signature Date and the Amendment Date. A reference in this clause
to "it" or "its" includes, unless the context otherwise requires, each Obligor. Any reference to a member of
the Covenant Group in this clause
save in relation to clauses
,
,
,
,
,
. 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.
25.1
Status
25.1.1 It is a limited liability company or corporation, duly incorporated and validly existing under the
laws of its jurisdiction of incorporation or formation.
25.1.2 It and each of its Subsidiaries (save for CPS and its Subsidiaries) has the power to own its
assets and carry on its business as it is being conducted.
25.2
Capacity, power and authority
25.2.1 It has the legal capacity and power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of, the Finance Documents to which it is or
will be a party and the transactions contemplated by those Finance Documents.
25.2.2 No limit on its powers will be exceeded as a result of the borrowing, grant of security or giving
of guarantees or indemnities contemplated by the Finance Documents to which it is a party.
25.3
Binding obligations
89
25.3.1 The obligations expressed to be assumed by it in each Finance Document to which it is a party
are legal, valid, binding and enforceable obligations enforceable against such Obligor in
accordance with its respective terms.
25.3.2 Each Finance Document to which it is a party is in the proper form for its enforcement in the
jurisdiction of its incorporation or formation.
25.4
Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated by, the Finance
Documents to which it is a party and the establishment of Transaction Security pursuant to the
Security Documents to which it is a party, do not and will not conflict with -
25.4.1 any law or regulation applicable to it;
25.4.2 its or any of its Subsidiaries' constitutional documents; or
25.4.3 any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its
Subsidiaries' assets or constitute a default or termination event (however described) under any
such agreement or instrument.
25.5
Authorisations
All authorisations required -
25.5.1 to enable it lawfully to enter into, exercise its rights and comply with its obligations under the
Finance Documents to which it is a party;
25.5.2 to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction
of incorporation or formation; and
25.5.3 for it and those of its Subsidiaries which are members of the Covenant Group to carry on their
respective businesses in the ordinary course and in all material respects as they are being
conducted,
have been obtained or effected and are in full force and effect.
25.6
No default
25.6.1 No Event of Default and, on the Original Signature Date, the Closing Date, the Signature Date,
the Amendment Date, the date of each Utilisation Request and each Utilisation Date, no Default
is continuing or is reasonably likely to result from the making of any Utilisation or the entry into,
the performance of, or any transaction contemplated by, any Finance Document to which it is
a party.
90
25.6.2 No other event or circumstance is outstanding which constitutes (or with the expiry of a grace
period, the giving of notice, the making of any determination, the satisfaction of any other
applicable condition or any combination of the foregoing, would constitute) a default or
termination event (however described) or an event resulting in an obligation to create security,
under any other agreement or instrument which is binding on it or any of its Subsidiaries which
are members of the Covenant Group or to which its (or any of its Subsidiaries' which are
members of the Covenant Group) assets are subject, to an extent or in a manner which has or
is reasonably likely to have a Material Adverse Effect.
25.7
Financial statements
Its audited financial statements most recently delivered to the Facility Agent -
25.7.1 have been prepared in accordance with IFRS in relation to the Covenant Group and GAAP in
relation to Holdco, consistently applied; and
25.7.2 give a true and fair view of its financial condition (consolidated, if applicable) as at the date to
which they were drawn up,
except, in each case, as disclosed to the contrary in those financial statements or as set out in
Annexure K (Disclosure Schedule).
25.8
Material adverse change
There has been no material adverse change in the business or financial condition of any Obligor, or
the business or consolidated financial condition of the Covenant Group since the date to which the
most recent audited financial statements (including management accounts and/or SEC Form)
delivered to the Facility Agent pursuant to clause
25.9
Assets
25.9.1 It and each of its Subsidiaries which are members of the Covenant Group owns or has leased
or licenced to it, and has all authorisations required under applicable law or regulations to use,
the assets necessary to carry on its business as presently conducted.
25.9.2 It is the sole legal and beneficial owner of the shares and other assets which are the subject
matter of the Security Documents to which it is a party.
91
25.10
Financial Indebtedness and Security
25.10.1 No member of the Covenant Group or Holdco has any Financial Indebtedness outstanding
other than Financial Indebtedness which constitutes Permitted Financial Indebtedness.
25.10.2 No Security exists over the whole or any part of the assets of any member of the Covenant
Group or Holdco, other than Security which constitutes a Permitted Encumbrance.
25.10.3 Subject to filing and registration required by law (where applicable) with the appropriate
statutory public register, each Security Document to which it is a party creates the security
interests which it purports to create, and the Transaction Security so established -
25.10.3.1 is valid and effective;
25.10.3.2 constitutes first priority Security of the type described, over the assets referred to, in the
relevant Security Document and those assets are not subject to any prior or
pari passu
Security in favour of any other person; and
25.10.3.3 is not subject to avoidance in the event of any winding-up, dissolution or administration
involving any Obligor.
25.11
Ranking
25.11.1 Its payment obligations under the Finance Documents rank at least
pari passu
of all its other unsecured and unsubordinated creditors, except for obligations mandatorily
preferred by law applying to companies generally.
25.11.2 The Transaction Security has or, upon the registration thereof with any applicable statutory
public registry (if required under applicable law), will have the ranking in priority which it is
expressed to have in the Transaction Security Documents in respect of the assets of the
Obligors which are the subject matter thereof, and those assets are not subject to any prior
ranking or
pari passu
25.12
Information
25.12.1 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date, all forecasts and projections
contained in any information supplied by or on behalf of Holdco, any other Obligor or any other
member of the Covenant Group to the Facility Agent or any other Finance Party under or in
connection with the Finance Documents were prepared on the basis of recent historical
information and assumptions which were fair and reasonable at that date and were not
misleading in any respect.
92
25.12.2 All other information supplied by or on behalf of Holdco, any other Obligor or any other member
of the Covenant Group to the Facility Agent or any other Finance Party under or in connection
with the Finance Documents is true, complete and accurate in all material respects as at the
date it was given and is not misleading in any respect.
25.12.3 No information has been given or withheld by any Obligor which, if disclosed, might result in
the information or projections referred to above being untrue or misleading in any respect.
25.13
Group Structure Chart
As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date, the
date of each Utilisation Request and each Utilisation Date, the Group Structure Chart is true,
complete and accurate in all respects and shows the following information -
25.13.1 Holdco and each member of the Group, including current name and company registration
number, its jurisdiction of incorporation or formation and/or its jurisdiction of establishment, a
list of direct and indirect shareholders and indicating if a company is a Dormant Subsidiary or
is not a company with limited liability; and
25.13.2 all minority interests in any member of the Covenant Group and any person in which any
member of the Covenant Group holds shares in its issued share capital or equivalent ownership
interest of such person.
25.14
Ownership of securities
25.14.1 All securities in the issued capital of each Guarantor (other than Holdco) are owned, directly or
indirectly, legally and beneficially, by the Term/RCF Borrower unless otherwise specified in the
Group Structure Chart.
25.14.2 Holdco directly owns, legally and beneficially, 100% of the issued share capital of the
Term/RCF Borrower.
25.14.3 There are no agreements in force which provide for the issue or allotment of, or grant any
person the right to call for the issue or allotment of, any share, debenture or loan capital of any
member of the Covenant Group (including any option or right of pre-emption or conversion).
25.14.4 No person has a right to obtain an order for the rectification of the securities register of a
member of the Covenant Group.
25.14.5 The shares of any member of the Covenant Group which are subject to the Transaction Security
are fully paid and not subject to any option to purchase or similar rights.
93
25.14.6 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date, the constitutional documents of
companies whose shares are subject to the Transaction Security do not restrict or inhibit any
transfer of those shares (whether pursuant to a right of pre-emption in favour of any party or
otherwise) on creation or enforcement of the Transaction Security (or if any such restriction
exists, all applicable consents, waivers or resolutions by shareholders and directors for the
purposes of authorising such a transfer have been obtained and are in full force and effect).
25.15
Other documents
25.15.1 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date, the documents delivered to the
Facility Agent by or on behalf of any Obligor under clause
genuine (or, in the case of copy documents, are true, complete and accurate copies of originals
which are genuine), are up-to-date and in full force and effect (or if a copy, the original is up-to-
date and in full force and effect) and have not been amended.
25.15.2 As at the date of their delivery, the documents delivered to the Facility Agent under this
Agreement by or on behalf of any Obligor after the Closing Date are genuine (or, in the case of
copy documents, are true, complete and accurate copies of originals which are genuine), are
up-to-date and in full force and effect (or, if a copy, the original is up-to-date and in full force
and effect) and have not been amended.
25.16
No proceedings pending or threatened
As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date and
the first Utilisation Date only-
25.16.1 except as disclosed in Annexure K (Disclosure Schedule), no litigation, arbitration, expert
determination, alternative dispute resolution or administrative proceedings of or before any
court, arbitral body, expert or agency are current, pending or, to the best of its knowledge,
threatened against any member of the Covenant Group or Holdco;
25.16.2 no dispute with any regulatory authority which is the subject of any administrative or statutory
proceedings of or before any court or agency is current, pending or, to the best of its knowledge,
threatened against any member of the Covenant Group or Holdco;
25.16.3 no labour disputes are current or, to the best of its knowledge and belief (having made due and
careful enquiry), threatened against any member of the Covenant Group or Holdco which have
or might reasonably be expected to have a Material Adverse Effect.
25.17
No breach of laws
94
25.17.1 It has not (and none of its Subsidiaries has) breached any law or regulation which is material
to the conduct of its business.
25.17.2 Each member of the Covenant Group which is required to comply with the National Credit Act,
No 34 of 2005 complies in all respects with that legislation.
25.18
Environmental matters
25.18.1 Each member of the Group is in compliance with clause
circumstances have occurred which would prevent such compliance, in a manner or to an
extent which has or might reasonably be expected to (a) have a Material Adverse Effect, or (b)
result in a financial liability for any Finance Party.
25.18.2 All Environmental Permits required for it and its Subsidiaries which are members of the Group
to carry on their respective businesses in the ordinary course have been obtained or effected
and are in full force and effect.
25.18.3 No Environmental Claim has been commenced, is outstanding or (to the best of its knowledge
and belief (having made due and careful enquiry)) is threatened against any member of the
Group where that claim has or might reasonably be expected, if determined against that
member of the Group, to have a Material Adverse Effect.
25.18.4 There are no Environmental Matters which might reasonably be expected to have a material
negative impact on the financial or trading position of any member of the Group.
25.18.5 Holdco and each other member of the Group has produced and provided to the Facility Agent
all materially relevant reports and information on Environmental Matters.
25.18.6 Holdco has provided to the Facility Agent all materially relevant reports and information on
Environmental Matters relating to members of the Group promptly upon receiving the same
25.19
Insurance
25.19.1 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date, there is no outstanding insured
loss or liability incurred by it or any member of the Group.
25.19.2 There has been no non-disclosure, misrepresentation or breach of any term of any material
Insurance taken out by it or any member of the Group which would entitle any insurer of that
insurance to repudiate, rescind or cancel it or to treat it as avoided in whole or in part, or
otherwise decline any valid claim under it by or on behalf of it or any member of the Group.
25.20
Intellectual Property Rights
95
25.20.1 It and each of its Subsidiaries which are members of the Covenant Group -
25.20.1.1 is the sole legal and beneficial owner of, or has licenced to it on normal commercial terms,
all the Intellectual Property Rights which are material in the conduct of its business and
which are required by it in order to carry on its business in all material respects as it is
being conducted;
25.20.1.2 has taken all formal or procedural actions (including payment of fees) required to maintain
those Intellectual Property Rights; and
25.20.1.3 does not, in carrying on its business, infringe any Intellectual Property Rights of any third
party in any respect which has a Material Adverse Effect.
25.20.2 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date, none of those Intellectual
Property Rights is being infringed, nor (to the best of its knowledge) is there any threatened
infringement of any of those Intellectual Property Rights, in any respect.
25.21
Insolvency and Financial Distress
25.21.1 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date, no -
25.21.1.1 corporate action, legal proceeding or other procedure or step described in clause
(Insolvency and business rescue proceedings); or
25.21.1.2 creditors' process described in clause
has been taken or threatened in relation to it or any other member of the Group and none of
the circumstances described in clause
the Group.
25.21.2 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date, neither it nor any member of the
Group is Financially Distressed (as defined in the Companies Act).
25.22
Taxes
25.22.1 It and each of its Subsidiaries which are members of the Group is not overdue in the filing of
any Tax returns (save as set out in Annexure K (Disclosure Schedule)) or in the payment of
any Tax (taking into account any extensions granted by any applicable Tax authority for the
filing of such returns) unless and only to the extent that -
25.22.1.1 such payment is being contested in good faith;
96
25.22.1.2 the amount under dispute is not in excess of 2% of the Consolidated EBITDA in aggregate
(calculated with reference to Holdco's most recently delivered annual financial
statements);
25.22.1.3 adequate reserves are being maintained for those Taxes and the costs required to contest
them which have been disclosed in its latest financial statements; and
25.22.1.4 such payment can be lawfully withheld.
25.22.2 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date, no claims or investigations by
any Tax authority are being or are reasonably likely to be made or conducted against it which
are reasonably likely to result in a liability of or claim against any member of the Group to pay
any amount of, or in respect of, Tax of more than 2% in aggregate of Consolidated EBITDA
(calculated with reference to Holdco's most recently delivered annual financial statements).
25.22.3 It is resident for Tax purposes only in its jurisdiction of incorporation or formation.
25.22.4 As at the Original Signature Date, the Closing Date, the Signature Date, the Amendment Date,
the date of each Utilisation Request and each Utilisation Date it is not required to make any
deduction for or on account of Tax from any payment it may make under any Finance
Document.
25.23
No filing or stamp taxes
Under the law of its jurisdiction of incorporation or formation it is not necessary that the Finance
Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that
any stamp, registration or similar tax (other than any securities transfer tax payable on any share
transaction or fees payable at the applicable public registry (if required in respect of the applicable
Security Document under applicable law)) be paid on or in relation to those Finance Documents or
the transactions contemplated by those Finance Documents.
25.24
Material Agreements
25.24.1 Each Material Agreement to which a member of the Covenant Group is a party validly exists
and is in full force and effect and no event or circumstance is continuing which constitutes a
breach or default under, and which entitles another party to call for a termination of, any Material
Agreement which is binding on the Term/RCF Borrower or any members of the Covenant
Group or to which its (or its Subsidiaries’ which are members of the Covenant Group) assets
are subject.
25.24.2 No member of the Covenant Group is in breach of any of its material obligations under any
Material Agreement.
97
25.24.3 There is no dispute between the parties to any Material Agreement to which any member of
the Covenant Group is a party which is reasonably likely to result in the termination of such
Material Agreement.
25.24.4 Save as permitted under the terms of the Finance Documents or save as otherwise disclosed
to the Facility Agent, there are no documents or agreements in existence which have the effect
of varying, amending or supplementing any Material Agreement to which any member of the
Covenant Group is a party.
25.25
Governing law and enforcement
25.25.1 The choice of South African law as the governing law of those Finance Documents which are
expressed to be governed by South African law will be recognised and enforced in its
jurisdiction of incorporation or formation.
25.25.2 Its -
25.25.2.1 submission under this Agreement to the jurisdiction of the High Court of South Africa
(Gauteng Local Division, Johannesburg) (or any successor to that division); and
25.25.2.2 agreement not to claim any immunity to which it or its assets may be entitled,
are legal, valid and binding under the laws of its jurisdiction of incorporation or formation.
25.25.3 Any judgment obtained in South Africa in relation to a Finance Document which is governed by
the laws of South Africa will be recognised and enforced in its jurisdiction of incorporation or
formation.
25.26
No adverse consequences
25.26.1 It is not necessary under the laws of the jurisdiction of incorporation or formation of that Obligor
that any Finance Party should be licensed, qualified or otherwise entitled to carry on business
in that jurisdiction -
25.26.1.1 in order to enable any Finance Party to enforce its rights under any Finance Document;
or
25.26.1.2 by reason of any Finance Party having entered into any Finance Document or the
performance by it of its obligations under any Finance Document.
25.26.2 No Finance Party is or will be deemed to be resident, domiciled or carrying on business in the
jurisdiction of incorporation or formation of an Obligor by reason only of the entry into,
performance and/or enforcement of any Finance Document.
25.27
No immunity
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25.27.1 The entry into by it of each Finance Document to which it is a party constitutes, and the exercise
by it of its rights and performance of its obligations under each Finance Document will constitute
private and commercial acts performed for private and commercial purposes.
25.27.2 In any proceedings taken in South Africa or in any other jurisdiction, it will not be entitled to
claim for itself or any of its assets immunity from suit, execution, attachment or other legal
process in relation to this Agreement or any other Finance Document.
25.28
Authorised signatories
Any person specified as its authorised signatory under Part I of
Conditions precedent
)
or clause
Information - miscellaneous
) is authorised to sign Utilisation Requests and other
communications under the Finance Documents on its behalf.
25.29
Anti-corruption laws and Sanctions
25.29.1 No member of the Group, Holdco nor any entity in which any member of the Group or Holdco
holds an investment-
25.29.1.1 is using nor will use the proceeds of any Senior Facility for the purpose of financing or
making funds available directly or indirectly to any person or entity which is currently a
Sanctioned Entity or as part of a Sanctioned Transaction, to the extent such financing or
provision of funds would currently be prohibited by Sanctions or would otherwise cause
any person to be in breach of Sanctions;
25.29.1.2 is contributing nor will contribute or otherwise make available the proceeds of any Senior
Facility to any other person or entity for the purpose of financing the activities of any
person or entity which is currently listed on a Sanctions List, to the extent such contribution
or provision of proceeds would currently be prohibited by Sanctions or would otherwise
cause any person to be in breach of Sanctions; or
25.29.1.3 to the best of its knowledge and belief -
25.29.1.3.1 has been nor is targeted under any Sanctions; or
25.29.1.3.2 has violated or is violating any applicable Sanctions.
25.29.2 Each member of the Group and Holdco has conducted its businesses in compliance with
applicable anti-corruption laws and has instituted and maintained policies and procedures
designed to promote and achieve compliance with such laws.
25.30
Guarantors
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25.30.1 As at the Closing Date, the date of each Utilisation Request and each Utilisation Date, each
Material Subsidiary, as at each relevant date, is or will be an Obligor.
25.30.2 As at the Closing Date, the date of each Utilisation Request and each Utilisation Date, the
aggregate contribution of the Guarantors who are members of the Covenant Group (calculated
on an unconsolidated basis and excluding all intra- Covenant Group items and investments in
Subsidiaries of any member of the Covenant Group) represents not less than 90% of the gross
assets, Consolidated EBITDA and total revenue of the Covenant Group, in each case, on each
relevant date.
25.31
Dormant Subsidiaries
As at the Closing Date, the date of each Utilisation Request and each Utilisation Date, each of the
companies listed in Annexure J (Dormant Subsidiaries) is a Dormant Subsidiary.
25.32
Times for making representations and warranties
25.32.1 Unless a representation and warranty is expressed to be given at a specific date (in which case
it shall not be deemed to be repeated on another date), each representation and warranty is
deemed to be repeated by -
25.32.1.1 each Obligor on the Closing Date, on the date of each Utilisation Request, on the date of
each Utilisation and on the first day of each Interest Period;
25.32.1.2 each Additional Obligor, on the day on which it becomes (or it is proposed that it becomes)
an Obligor, on the date of each Utilisation Request, on each Utilisation Date and on the
first day of each Interest Period.
25.32.2 When a representation and warranty is repeated, it is made with reference to the circumstances
existing at the time of repetition.
26
INFORMATION UNDERTAKINGS
The undertakings in this clause
amount is outstanding under the Finance Documents or any Commitment is in force.
26.1
Financial statements
The Term/RCF Borrower shall supply to the Facility Agent -
26.1.1 as soon as the same become available, but in any event within 12 Months after the last day of
each financial year of the Covenant Group for their financial years ending on 30 June 2024 and
30 June 2025 -
100
26.1.1.1 the Term/RCF Borrower's audited consolidated annual financial statements for that
financial year;
26.1.1.2 the audited financial statements (consolidated if appropriate) of each other Obligor (other
than Holdco) for that financial year; and
26.1.1.3 the Term/RCF Borrower's
pro forma
annual income statement, statement of cash flows
and balance sheet for that year that excludes the financial results and position of the
Excluded Subsidiaries, along with sufficient explanatory notes to understand any
exclusions;
26.1.2 as soon as the same become available, but in any event within 6 Months after the last day of
each financial year of the Covenant Group for their financial years ending on or after 30 June
2026 -
26.1.2.1 the Term/RCF Borrower's audited consolidated annual financial statements for that
financial year;
26.1.2.2 the audited financial statements (consolidated if appropriate) of each other Obligor (other
than Holdco) for that financial year; and
26.1.2.3 the Term/RCF Borrower's
pro forma
consolidated annual financial statements for that
financial year that excludes the financial results and position, to the extent included, of the
Excluded Subsidiaries over that period;
26.1.3 as soon as the same become available, but in any event within 120 days after the last day of
each financial year of Holdco -
26.1.3.1 Holdco's audited consolidated annual financial statements for that financial year; and
26.1.3.2 Holdco's
pro forma
excludes the financial results and position, to the extent included, of the Excluded
Subsidiaries and each other Subsidiary of Holdco which is not a member of the Covenant
Group, over the period;
26.1.4 as soon as the same become available, but in any event within 50 days after the end of each
quarter of each of its financial years, Holdco's most recent SEC Form, together with an
aggregation of the cashflow statement, income statement and balance sheets related to that
SEC Form and such other SEC Forms published prior to that SEC Form so as to enable a
measurement of the 12 month period ending on the date on which the last SEC Form was
published; and
26.1.5 as soon as the same become available, but in any event within 50 days after the last day of
each quarter of each financial year of the Covenant Group the Term/RCF Borrower’s -
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26.1.5.1 aggregated management accounts for that quarter (and to include cumulative
consolidated management accounts for the financial year of the Covenant Group to date);
26.1.5.2 pro forma aggregated management accounts for that quarter (and to include cumulative
consolidated management accounts for the financial year of the Covenant Group to date),
that excludes the financial results and position, to the extent included, of the Excluded
Subsidiaries over that period.
26.2
Requirements as to financial statements
26.2.1 The Term/RCF Borrower shall ensure that each set of financial statements, SEC Form and
management accounts delivered pursuant to clause
26.2.1.1 is certified by a director of the relevant company as fairly representing its financial
condition as at the date as to which those financial statements, SEC Form or management
accounts were drawn up;
26.2.1.2 comprises at least a balance sheet, profit and loss account and cashflow statement for
the financial period then ended, and (in the case of management accounts) for the
financial year to date and the period of 12 months ending on the last day of the half year
financial period;
26.2.1.3 is prepared using IFRS or GAAP (as applicable), accounting practices and financial
reference periods consistent with those applied in the preparation of the Original Financial
Statements unless, in relation to any set of financial statements, it notifies the Facility
Agent that there has been a change in IFRS or GAAP (as applicable), those accounting
practices or those reference periods; and
26.2.1.4 contains, in narrative form, commentary in reasonable detail on the financial results and
the financial position of the person to which those financial statements relate.
26.2.2 If the Term/RCF Borrower notifies the Facility Agent of any change in IFRS or GAAP (as
applicable), as contemplated by clause
, it shall procure that its Auditors (or, if
appropriate, the Auditors of the relevant member of the Covenant Group) deliver to the Facility
Agent –
26.2.2.1 a description of any change necessary for those financial statements to reflect IFRS or
GAAP (as applicable), the accounting practices and the reference periods as applied in
the preparation of the Original Financial Statements; and
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26.2.2.2 sufficient information, in form and substance reasonably required by the Facility Agent, to
enable the Lenders to determine whether clause
complied with and make an accurate comparison between the financial position indicated
in those financial statements and the Original Financial Statements.
26.2.3 Any reference in this Agreement to those financial statements shall be construed as a reference
to those financial statements as adjusted to reflect the basis upon which the Original Financial
Statements were prepared.
26.3
Compliance Certificate
26.3.1 The Term/RCF Borrower shall supply a Compliance Certificate to the Facility Agent with each
set of financial statements, SEC Form and management accounts delivered pursuant to
clause
26.3.2 Each Compliance Certificate shall, amongst others –
26.3.2.1 be signed by chief financial officer of the Group and at least one director of the Term/RCF
Borrower;
26.3.2.2 confirm that the Covenant Group is in compliance with the provisions of clause
26.3.2.3 set out (in reasonable detail) computations and calculations as to compliance with
clause
of determining compliance with clause
provided that the Compliance Certificate delivered together with the financial statements
pursuant to clause
, for the purposes of calculating Consolidated EBITDA -
26.3.2.3.1 all references to "Group" shall be replaced with references to "Covenant Group"; and
26.3.2.3.2 any and all costs of Holdco not already taken into account in calculating consolidated
operating income of the Term/RCF Borrower shall be deemed to be costs of the
Term/RCF Borrower;
26.3.2.4 include any adjustments required to reverse the effect of IFRS16 with regards to Relevant
Operating Leases for purposes of determining Consolidated EBITDA and Total
Borrowings;
26.3.2.5 confirm compliance with the requirements of clause
relevant Measurement Date; and
103
26.3.2.6 if requested in writing by the Facility Agent, be accompanied by a report from the Auditors
in the agreed form certifying that the adjustments contemplated in clause
represent an accurate reflection of the revised EBITDA, gross assets and revenue of the
Covenant Group, with such report by the Auditors being, in the absence of manifest error,
conclusive and binding on all Parties.
26.3.3 The Facility Agent may not deliver a notice pursuant to clause
during the period up to the Final Discharge Date, unless a Default is continuing or, in the
reasonable opinion of the Facility Agent, is likely to occur as a result of obtaining that
Compliance Certificate.
26.4
Board packs
If a Default has occurred and is continuing, the Term/RCF Borrower shall deliver to the Facility Agent
at the same time they are distributed to the relevant board of directors, copies of all board packs
submitted to the board of directors of an Obligor.
26.5
Insurance reports
The Term/RCF Borrower shall deliver to the Facility Agent annually, on or before 31 December in
any year (a reporting date), the following information, in form and substance satisfactory to the
Facility Agent -
26.5.1 a summary of each Insurance policy maintained by or on behalf of a member of the Group as
at the reporting date;
26.5.2 confirmation that all premiums due in respect of the Insurances of the Group for the full period
of the then current financial year have been paid in full; and
26.5.3 a summary of all material changes (if any) made to a contract or policy of insurance since the
previous reporting date or confirmation that there were no such changes.
26.6
Financial year-end
Without the express prior consent of the Facility Agent, an Obligor (other than Adumo and its
Subsidiaries) shall not change the date of its financial year end from 30 June and shall ensure that -
26.6.1 the financial year end of each member of the Covenant Group falls on the same date; and
26.6.2 the financial year end of Adumo and each of its Subsidiaries is changed to 30 June as soon as
reasonably possible but in any event by no later 30 June 2025
.
26.7
Auditors
104
26.7.1 Holdco must ensure that one of the firms named in or approved pursuant to the definition of
Auditors
statements.
26.7.2 If the Facility Agent wishes to discuss the financial position of any member of the Covenant
Group with the Auditors, the Facility Agent may notify the Term/RCF Borrower, stating the
questions or issues which the Facility Agent wishes to discuss with the Auditors. In this event,
the Term/RCF Borrower shall ensure that the Auditors are authorised (at the expense of the
Term/RCF Borrower) -
26.7.2.1 to discuss the financial position of each member of the Covenant Group with the Facility
Agent on request in writing from the Facility Agent; and
26.7.2.2 to disclose to the Facility Agent for the Finance Parties any information which the Facility
Agent may reasonably request in writing.
26.7.3 The Facility Agent may not give notice under clause
financial year of the Term/RCF Borrower, unless it reasonably believes that a Default is
continuing or may have occurred or may occur, and notifies the Term/RCF Borrower that it is
exercising its rights under this clause
26.8
Presentations
Once in every financial year of the Term/RCF Borrower if requested in writing by the Facility Agent,
or within 7 days following a request in writing by the Facility Agent if a Default is continuing, at least
the chief financial officer of the Group and a director of the Term/RCF Borrower must, if requested
to do so by the Facility Agent in writing, give a presentation (on a date and at a venue agreed with
the Facility Agent) to the Finance Parties as to -
26.8.1 the on-going business and financial performance of the Covenant Group; and
26.8.2 any other matter which a Finance Party may reasonably request in writing.
26.9
Notification of default
26.9.1 Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to
remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that
a notification has already been provided by another Obligor).
26.9.2 As soon as reasonably practical following a request in writing by the Facility Agent, the
Term/RCF Borrower shall supply to the Facility Agent a certificate signed by two of its directors
or senior officers on its behalf certifying that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it).
105
26.10
Information - miscellaneous
The Term/RCF Borrower shall supply to the Facility Agent (in sufficient copies for all the Lenders, if
the Facility Agent so requests in writing) -
26.10.1 at the same time as they are dispatched, copies of all documents dispatched by an Obligor to
its shareholders -
26.10.1.1 as required pursuant to the Companies Act (or applicable analogous legislation in that
Obligor's jurisdiction of incorporation or formation) or that Obligor's constitutional
documents; or
26.10.1.2 which contain information in respect of any Environmental Matters, matters relating to any
Material Agreement (including, in each case, the actual or potential withdrawal,
suspension, cancellation, revocation, other termination, amendment or renewal of any
Material Agreement) and matters which will, or is reasonably likely to, adversely affect the
Senior Facilities and/or any of the Finance Parties' rights under and in terms of the
Finance Documents (or any of them);
26.10.2 copies of all documents dispatched by an Obligor to its creditors generally (or any class of
them), in each case at the same time as they are dispatched;
26.10.3 promptly upon becoming aware of them, details and copies of any changes proposed to or
made to its constitutional documents or the constitutional documents of any Obligor, including
the filing of any Memorandum of Incorporation under the Companies Act, where such changes
do, or are reasonably likely to, adversely affect the interest of the Finance Parties;
26.10.4 promptly upon becoming aware of them, the details of any litigation, arbitration, administrative
proceedings, liquidation applications, winding up applications or business rescue applications
which are current, threatened or pending against it, any other member of the Covenant Group
(other than any Excluded Subsidiary) or Holdco, and, in the case of any litigation, arbitration or
administrative proceedings, involve liability in an aggregate amount which (together with any
other liability in respect of litigation, arbitration or administrative proceedings) is in excess of
R10,000,000 in aggregate (or its equivalent in another currency or currencies) or which, if
adversely determined, would or might reasonably be expected to have a Material Adverse
Effect;
26.10.5 promptly upon the implementation of any disposal or acquisition of any shares by a member of
the Group, a Group Structure Chart, in a substantially similar format to the Group Structure
Chart attached as Annexure L (Group Structure Chart);
26.10.6 within a reasonable time of receipt of written request, an up to date copy of the securities
register of any Obligor or any other member of the Covenant Group;
106
26.10.7 within a reasonable time of receipt of written request, such further information regarding
compliance by Holdco or any other member of the Group with Environmental Laws, as any
Finance Party (through the Facility Agent) may reasonably request in writing, including in
relation to financial provisioning by any member of the Group;
26.10.8 promptly on request, such further information regarding the actual or potential withdrawal,
suspension, cancellation, revocation, other termination, amendment or renewal of any Material
Agreement, as any Finance Party (through the Facility Agent) may reasonably request in
writing;
26.10.9 promptly upon receipt of information regarding CPS and its Subsidiaries, such further
information regarding CPS and its Subsidiaries as any Finance Party (through the Facility
Agent) may reasonably request in writing;
26.10.10 promptly, such further information regarding the financial condition, business and operations of
it, Holdco or any other member of the Covenant Group (other than an Excluded Subsidiary), or
regarding any asset subject to Transaction Security, as any Finance Party (through the Facility
Agent) may reasonably request in writing; or
26.10.11 promptly, notice of any change in authorised signatories in respect of the Finance Documents
of it or any other Obligor signed by a director or company secretary of it or such other Obligor
(as the case may be) accompanied by specimen signatures of any new authorised signatories
(and such additional information or documentation as the Facility Agent may require in order to
verify that any such signatory has been duly authorised).
26.11
Know your customer checks
26.11.1 If -
26.11.1.1 the introduction of or any change in (or in the interpretation, administration or application
of) any law or regulation made after the Original Signature Date;
26.11.1.2 any change in the status of any member of the Group after the Original Signature Date;
26.11.1.3 the on-going compliance with any know your customer or similar identification procedures;
or
26.11.1.4 a proposed Transfer by a Lender of any of its rights and obligations under this Agreement
to a party that is not a Lender prior to such Transfer,
107
obliges the Facility Agent or any Lender (or, in the case of clause
, any
prospective new Lender) to comply with know your customer or similar identification procedures
(whether in terms of the Financial Intelligence Centre Act, 2001 or otherwise) in circumstances
where the necessary information is not already available to it, a member of the Group shall
promptly upon the request in writing of the Facility Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by the Facility
Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event
described in clause
, on behalf of any prospective new Lender) in order for the
Facility Agent, such Lender or, in the case of the event described in clause
,
any prospective new Lender to carry out and be satisfied it has complied with all necessary
know your customer or other similar checks under all applicable laws and regulations pursuant
to the transactions contemplated in the Finance Documents.
26.11.2 Each Lender shall as soon as reasonably practicable following request in writing by the Facility
Agent, supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out
and be satisfied it has complied with all necessary know your customer or other similar checks
under all applicable laws and regulations pursuant to the transactions contemplated in the
Finance Documents.
26.11.3 Following the giving of any notice pursuant to clause
Agent or any Lender to comply with know your customer or similar identification procedures in
circumstances where the necessary information is not already available to it, the Term/RCF
Borrower shall promptly upon the request in writing of the Facility Agent or any Lender supply,
or procure the supply of, such 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.
26.12
FATCA Undertakings
26.12.1 Subject to clause
, each Party shall, within 10 Business Days of a reasonable request
in writing by another Party -
26.12.1.1 confirm in writing to that other Party whether it is -
26.12.1.1.1 a FATCA Exempt Party; or
26.12.1.1.2 not a FATCA Exempt Party; and
108
26.12.1.2 supply to that other Party such forms, documentation and other information relating to its
status under FATCA as that other Party reasonably requests for the purposes of that other
Party’s compliance with FATCA; and
26.12.1.3 supply to that other Party such forms, documentation and other information relating to its
status as that other Party reasonably requests for the purposes of that other Party's
compliance with any other law, regulation, or exchange of information regime.
26.12.2 If a Party confirms to another Party pursuant to clause
Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt
Party, that Party shall promptly notify that other Party in writing.
26.12.3 Clause
not oblige any other Party to do anything, which would or might in its reasonable opinion
constitute a breach of -
26.12.3.1 any law or regulation;
26.12.3.2 any fiduciary duty; or
26.12.3.3 any duty of confidentiality.
26.12.4 If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms,
documentation or other information requested in accordance with clause
(including, for the avoidance of doubt, where clause
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.
27
FINANCIAL COVENANTS
27.1
Undertakings in relation to financial condition
27.1.1 Net Debt to EBITDA Ratio
The Obligors shall ensure that the Net Debt to EBITDA Ratio in respect of any Measurement
Period specified in column 1 below shall not exceed the ratio set out in column 2 below opposite
that Measurement Period -
109
Measurement Period
[Column 1]
Ratio
[Column 2]
Each Measurement Period ending on or before 31 December
2025
3.25
Each Measurement Period ending after 31 December 2025 but
on or before 31 December 2026
3.00
Each Measurement Period ending after 31 December 2026 but
on or before 31 December 2027
2.50
Each Measurement Period ending after 31 December 2027
2.00
27.1.2 Interest Cover Ratio
The Obligors shall ensure that the Interest Cover Ratio in respect of any Measurement Period
specified in column 1 below is greater than the ratio set out in column 2 below opposite that
Measurement Period -
Measurement Period
[Column 1]
Ratio
[Column 2]
Each Measurement Period ending on or before 31 December
2025
1.75
Each Measurement Period ending after 31 December 2025 but
on or before 31 December 2026
2.00
Each Measurement Period ending after 31 December 2026
3.00
27.2
Basis of calculations
27.2.1 All the terms defined in clause
basis and (except as may be expressly included or excluded in the relevant definition, or as
stated below) in accordance with IFRS.
27.2.2 The financial undertakings in clauses
condition) (unless expressly otherwise stated) shall apply on each day during the term of this
Agreement.
27.2.3 Compliance (or otherwise) with the financial undertakings in clauses
, and
(Undertakings in relation to financial condition) as at each Measurement Date shall be verified
by reference to (i) the financial statements, SEC Form and management accounts of Holdco
and/or the Covenant Group delivered under clause
Measurement Date and (ii) the Compliance Certificate delivered pursuant to clause
(Compliance Certificate) in relation to that Measurement Date.
110
27.2.4 No item shall be deducted or credited more than once in any calculation.
27.2.5 Where an amount in any financial statements delivered pursuant to clause
Undertakings) is not denominated in Rand, it shall be converted into Rand at the rates specified
in those financial statements.
27.3
Equity cure
In this clause -
27.3.1
Cure Amount
a Shareholder Contribution to be applied in accordance with this clause; and
27.3.2
Cure Period
, in relation to a Measurement Period, means the period ending on the earlier of
the date on which the Term/RCF Borrower is required to deliver a Compliance Certificate in
respect of that Measurement Period and the date on which a Compliance Certificate is actually
delivered in respect of that Measurement Period.
27.3.3 If, as at a Measurement Date, the Term/RCF Borrower calculates that any requirement of
clauses
Relevant
Financial Undertaking
) is not met, the Term/RCF Borrower may treat (solely for the purpose
of measuring compliance with the Relevant Financial Undertaking under this clause, and not
for any other purpose) a Cure Amount received and paid to the Facility Agent (for the account
of the Senior Term Facility Lenders and Senior RCF Lenders) in accordance with clause
(Cure Amounts - mandatory prepayment) within the applicable Cure Period, by way of a
notional adjustment, as follows -
27.3.3.1 in relation to the Net Debt to EBITDA Ratio, as a reduction of Total Net Borrowings by an
equivalent amount at the relevant Measurement Date; and
27.3.3.2 in relation to the Interest Cover Ratio, as giving rise to a reduction in Total Net Finance
Costs in the amount by which Total Net Finance Costs would have been reduced if the
Senior Term Facility Loans and Senior RCF Loans had been repaid (
pro rata
Senior Term Facilities and the Senior RCF) in an amount equal to the Cure Amount on
the date which falls 12 months before the applicable Measurement Date.
111
27.3.4 Only so much of a Cure Amount as is required to ensure compliance with the Relevant Financial
Undertakings may be taken into account by way of the notional adjustments referred to in
clause
Finance Costs shall be recalculated, taking into account the relevant reduction resulting from
the operation of clause
which occurs during the 12 month-period ending on the applicable Measurement Date. In
respect of the relevant subsequent Measurement Dates where the Measurement Period ending
on that date includes a part of that 12 month-period (each such part of that Measurement
Period, for the purposes hereof, an
Overlapping Period
), the Total Net Finance Costs amount
for the full Measurement Period shall include those amounts for each Overlapping Period taking
into account any notional reduction allocable to that Overlapping Period under this clause.
27.3.5 Following payment of a Cure Amount to the Facility Agent, the Term/RCF Borrower shall, by
no later than the last day of the relevant Cure Period, deliver to the Facility Agent the
Compliance Certificate which the Term/RCF Borrower is required to deliver in terms of clause
, provided that such Compliance Certificate shall include the breach of the Relevant
Financial Covenant, the application of the Cure Amount within the Cure Period and reflect the
results of -
27.3.5.1 the calculations of all Relevant Financial Undertakings before the payment of the Cure
Amount in accordance with clause
application of clauses
; and
27.3.5.2 the recalculations of all Relevant Financial following the payment of the Cure Amount in
accordance with clause
of clauses
27.3.6 If, following payment to the Facility Agent of a Cure Amount and a recalculation of the Relevant
Financial Undertakings, as contemplated under clause
, the Relevant Financial
Undertakings are met, the requirements of clause
condition) will be deemed to have been satisfied, retrospectively on the relevant Measurement
Date, and any Default which arose under clause
original failure to comply shall be deemed to have been remedied.
27.3.7 The rights of the Term/RCF Borrower under this clause
restrictions -
27.3.7.1 a Cure Amount may not be raised and taken into account under this clause for two
consecutive Measurement Periods; and
27.3.7.2 no more than three Cure Amounts in total may be taken into account before the Final
Discharge Date for the purposes of this clause.
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27.4
Cure Amounts - mandatory prepayment
27.4.1 The Term/RCF Borrower shall apply all the proceeds of any Cure Amount received by it in or
towards payment, repayment or prepayment of the Loans and other Senior Facility
Outstandings under the Senior Term Facilities and the Senior RCF, promptly upon receipt and,
in any event, no later than the last day of the relevant Cure Period.
27.4.2 All amounts paid, repaid or prepaid under this clause shall be applied in the order of priority set
out in (and otherwise as required under) clause
28
GENERAL UNDERTAKINGS
Each Obligor is bound by the undertakings set out in this clause
Covenant Group (as applicable), provided that any undertaking in relation to the Covenant Group shall be
construed to exclude the Excluded Subsidiaries, save in relation to the undertakings contained in clauses
,
,
. The undertakings in this clause
Date for so long as any amount is outstanding under the Finance Documents or any Commitment is in
force.
28.1
Authorisations
Each Obligor shall (and the Obligors shall ensure that each other member of the Covenant Group
will) promptly -
28.1.1 obtain, comply with and do all that is necessary to maintain in full force and effect; and
28.1.2 supply copies to the Facility Agent of,
any authorisation required to enable it to -
28.1.3 perform its obligations under the Finance Documents to which it is a party and to ensure the
legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation or
formation of any such Finance Document; and
28.1.4 carry on its business in the ordinary course and in all material respects as it is being conducted.
28.2
Compliance with laws
Each Obligor shall (and the Obligors shall ensure that each other member of the Group) comply with
all laws, permits and licenses which are material to the conduct of its business (including in relation
to the making of loans available to individuals).
28.3
Pari passu ranking
Each Obligor must ensure that -
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28.3.1 its payment obligations under the Finance Documents at all times rank at least
pari passu
with
all its present and future unsecured unsubordinated payment obligations, except for obligations
mandatorily preferred by law applying to companies generally in its jurisdiction of incorporation
or formation or any other jurisdiction where it carries on business; and
28.3.2 the Security conferred by each Security Document to which it is a party constitutes the ranking
in priority which it is expressed to have in the Transaction Security Documents and Security of
the type described, over the assets referred to, in that Security Document and that those assets
are not subject to any prior or
pari passu
28.4
Negative pledge
28.4.1 No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group
will) create or permit to subsist any Security over any of its assets.
28.4.2 No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group
will) -
28.4.2.1 sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may
be leased to or re-acquired by an Obligor or any other member of the Covenant Group;
28.4.2.2 sell, transfer or otherwise dispose of any of its receivables on recourse terms;
28.4.2.3 enter into or permit to subsist any title retention arrangement;
28.4.2.4 enter into or permit to subsist any arrangement under which money or the benefit of a
bank or other account may be applied, set-off or made subject to a combination of
accounts; or
28.4.2.5 enter into or permit to subsist any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method
of raising Financial Indebtedness or of financing the acquisition of an asset.
28.4.3 Clauses
Permitted
Encumbrance
) -
28.4.3.1 any Existing Security, but only until the Existing Security Discharge Date in respect of that
Existing Security;
28.4.3.2 the Cash Connect Group Cession and Pledge, provided that no additional Security is
given after the Original Signature Date;
28.4.3.3 any Security given or purported to be given as Transaction Security;
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28.4.3.4 any lien arising by operation of law and in the ordinary course of trading, and not as a
result of any default or omission by any member of the Covenant Group;
28.4.3.5 any netting or set-off arrangement entered into by any member of the Covenant Group
(other than the Term/RCF Borrower) pursuant to a Permitted Cash Management
Agreement in the ordinary course of its banking arrangements for the purpose of netting
debit and credit balances and the cession in security of the loans created pursuant to such
Permitted Cash Management Agreement, but only so long as (i) such arrangement does
not permit credit balances of Obligors to be netted with debit balances of members of the
Group which are not Obligors, and (ii) such arrangement does not give rise to any Security
(other than such netting and set-off arrangements and the aforementioned cession) over
the assets of any member of the Covenant Group;
28.4.3.6 any netting of payments under a Permitted Treasury Transaction (including netting on a
close-out of a Permitted Treasury Transaction);
28.4.3.7 the cession of a bank account in favour of Nedbank Limited in relation to the guarantee
facility referred to in clause
28.4.3.8 a cession and pledge by a member of the Covenant Group of its shares in and claims
against an Excluded Subsidiary in relation to any Financial Indebtedness incurred by that
Excluded Subsidiary;
28.4.3.9 any Security arising under -
28.4.3.9.1 an instalment sale or a finance or capital lease of vehicles, plant, equipment or
computers; or
28.4.3.9.2 any retention of title, hire purchase or conditional sale arrangement or arrangements
having a similar effect in respect of goods supplied to a member of the Covenant
Group in the ordinary course of trading and on the supplier's standard or usual terms,
and not as a result of any default or omission by any member of the Covenant Group,
which, in each case, qualifies as Permitted Financial Indebtedness;
28.4.3.10 any Security arising as a result of a Permitted Disposal;
28.4.3.11 any cash Security in the maximum amount of ZAR5,000,000 granted to Nedbank Limited
in respect of the Permitted Financial Indebtedness envisaged in clause
28.4.3.12 any Security expressly permitted in writing by the Facility Agent.
28.5
Financial Indebtedness
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28.5.1 No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group
will) incur or allow to remain outstanding any Financial Indebtedness. This restriction does not
apply to the following items of Financial Indebtedness (in each case, a
Permitted Financial
Indebtedness
) -
28.5.1.1 any Existing Group Indebtedness, provided all such Existing Group Indebtedness is
discharged in full on the first Utilisation Date;
28.5.1.2 any Financial Indebtedness incurred under the Finance Documents (excluding a WCF
Document);
28.5.1.3 the Cash Connect Management Finance Documents, provided that all such Financial
Indebtedness is discharged in full on the first Utilisation Date;
28.5.1.4 the Financial Indebtedness owing by the Term/RCF Borrower to the sellers pursuant to
the Recharger Acquisition Agreement, provided that the Recharger Acquisition
Agreement is not amended without the prior written consent of the Facility Agent and as
further set out in clause
28.5.1.5 the Financial Indebtedness incurred by the Term/RCF Borrower, Lesaka Alternative
Digital Products Proprietary Limited (previously named "EasyPay Proprietary Limited")
and Prism Payment Technologies Proprietary in favour of Nedbank in an amount not
exceeding ZAR5,000,000 in aggregate at any time;
28.5.1.6 the Financial Indebtedness incurred by GAAP Point-Of-Sale Proprietary Limited in relation
to -
28.5.1.6.1 a facility agreement concluded with FirstRand Bank Limited, acting through its First
National Bank division and dated 23 May 2022, in respect of direct, credit card,
settlement and asset finance facilities, provided that such Financial Indebtedness
does not exceed ZAR16,500,000;
28.5.1.6.2 a facility agreement with The Standard Bank of South Africa Limited and dated 30
January 2025 in respect of fleet cards, provided that such Financial Indebtedness
does not exceed ZAR1,200,000;
28.5.1.7 the Financial Indebtedness incurred by Lesaka Payments Proprietary Limited (previously
named "Adumo Payments Proprietary Limited") in relation to -
28.5.1.7.1 a facility agreement with Nedbank Limited dated 13 July 2020 in respect of fleet
cards, provided that such Financial Indebtedness does not exceed ZAR150,000;
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28.5.1.7.2 a facility agreement with Nedbank Limited dated 7 December 2018 in respect of a
credit card facility, provided that such Financial Indebtedness does not exceed
ZAR1,800,010;
28.5.1.7.3 an overdraft facility with Capitec Bank Limited dated 17 October 2022, provided such
Financial Indebtedness does not exceed ZAR2,000,000;
28.5.1.7.4 a debit order facility with Capitec Bank Limited dated 28 December 2023, provided
that such Financial Indebtedness does not exceed ZAR30,000,000;
28.5.1.8 the Financial Indebtedness incurred by Adumo in relation to a facility agreement with
Nedbank Limited dated 12 April 2021 in respect of credit cards, provided that such
Financial Indebtedness does not exceed ZAR100,000;
28.5.1.9 the Financial Indebtedness incurred by Lesaka Merchant Technologies Proprietary
Limited (previously named "Adumo Technologies Proprietary Limited") in relation to:
28.5.1.9.1 a facility agreement with Nedbank Limited dated 13 February 2015 in respect of a
credit card facility, provided that such Financial Indebtedness does not exceed
ZAR200,000; and
28.5.1.9.2 a debit order facility with Nedbank Limited dated 20 August 2024, provided that such
Financial Indebtedness does not exceed ZAR5,000,000;
28.5.1.10 the Financial Indebtedness incurred by Adumo Management Company Proprietary
Limited in favour of Nedbank in an amount not exceeding ZAR1,500,000 in aggregate at
any time;
28.5.1.11 the Financial Indebtedness incurred by Adumo Payouts Proprietary Limited in relation to
a facility agreement with Nedbank Limited dated 13 August 2019, in respect of fleet cards,
provided that such Financial Indebtedness does not exceed ZAR50,000;
28.5.1.12 the indemnity provided by the Term/RCF Borrower in favour of Investec Bank Limited
(
Investec
) on or about 30 September 2024, pursuant to which the Term/RCF Borrower
indemnified Investec against any Tax claims relating to the preference shares which were
issued to Investec by Adumo;
28.5.1.13 any Financial Indebtedness incurred under a WCF Document, provided that –
28.5.1.13.1 the WCF Lender is or becomes party to this Agreement, the Intercreditor Agreement
and any Subordination Agreement before or on the date on which that WCF
Document is entered into;
117
28.5.1.13.2 the aggregate WCF Commitments in relation to the Covenant Group may not exceed
the amounts set out in the definition of "WCF Commitments";
without the express prior consent of the Facility Agent;
28.5.1.14 any Financial Indebtedness incurred under the WesBank Agreement;
28.5.1.15 any Financial Indebtedness arising under a Permitted Loan, a Permitted Guarantee or a
Permitted Treasury Transaction;
28.5.1.16 any Financial Indebtedness permitted under clause
extended to a member of the Covenant Group by a supplier, which -
28.5.1.16.1 is entered into in in the ordinary course of its day-to-day business of that member of
the Covenant Group; and
28.5.1.16.2 which does not have a term in excess of 120 days; and
28.5.1.17 any Financial Indebtedness expressly permitted in writing by the Facility Agent; or
28.5.1.18 any Financial Indebtedness of any member or members of the Covenant Group (other
than the Term/RCF Borrower) or Holdco not otherwise permitted by this clause above,
which together with the indebtedness incurred pursuant to clauses
does not at any time exceed ZAR50,000,000 (or its equivalent in another currency or
currencies), which member of the Covenant Group or Holdco may only incur Financial
Indebtedness under this clause
28.5.1.18.1 no Default is then continuing nor would result from such incurrence; and
28.5.1.18.2 the Term/RCF Borrower is in compliance with each of the financial undertakings set
out in clause
Undertakings in relation to financial condition
) immediately prior
to and (taking into account the amount of the proposed Financial Indebtedness if it
were to be incurred) immediately following such incurrence.
28.5.2 Holdco shall ensure that no member of the Covenant Group incurs any Financial Indebtedness
in respect of any loans advanced by any direct shareholder in Holdco unless such loans are
funded through Shareholder Contributions, and after being received by Holdco are paid to the
Term/RCF Borrower firstly, and thereafter by the Term/RCF Borrower to such member of the
Covenant Group by a payment or sequence of payments through the Group's capital structure
and otherwise, if relevant, comply with clause
28.6
Disposals
118
No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group will),
enter into a single transaction or a series of transactions (whether related or not) and whether
voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset. This restriction
does not apply to the following disposals which are (except for clause
) on arm's length terms
(each a
Permitted Disposal
) –
28.6.1 a disposal of trading stock for cash or for trade credit that is a Permitted Loan pursuant to
clause
28.6.2 a disposal of any asset by a member of the Covenant Group (the
disposing entity
) to another
member of the Covenant Group (other than an Excluded Subsidiary) (the
acquiring entity
)
incorporated in the same jurisdiction, but only if -
28.6.2.1 where the disposing entity is an Obligor, the acquiring entity must also be an Obligor (other
than Holdco);
28.6.2.2 if the relevant asset is subject to Transaction Security, the acquiring entity must provide
equivalent Security for the benefit of the Finance Parties (in form and substance
satisfactory to the Facility Agent) and the following shall be delivered to the Facility Agent
in respect thereof to the Facility Agent’s satisfaction -
28.6.2.2.1 legal opinions as to the capacity and authority of the relevant Obligor to grant such
Transaction Security and the enforceability of such Transaction Security; and
28.6.2.2.2 copies of all resolutions required to be passed in respect of the authorisation of the
granting of such Transaction Security; and
28.6.2.3 where the disposing entity is a Guarantor, the acquiring entity must also be a Guarantor
in the Covenant Group guaranteeing an amount at all times no less than that guaranteed
by the disposing entity;
28.6.3 a disposal of obsolete or redundant vehicles, plant and equipment for cash;
28.6.4 a disposal of assets (not being a business and not being shares, securities, interests in real
property or rights under any Finance Document) in exchange for other assets comparable or
superior as to type, value and quality and for a similar purpose (but, if the assets disposed of
were subject to Transaction Security, only if Transaction Security is established for the benefit
of the Finance Parties (in form and substance satisfactory to the Facility Agent) over any assets
so acquired) and the following shall be delivered to the Facility Agent in respect thereof to the
Facility Agent’s satisfaction -
28.6.4.1 legal opinions as to the capacity and authority of the relevant Obligor to grant such
Transaction Security and the enforceability of such Transaction Security; and
119
28.6.4.2 copies of all resolutions required to be passed in respect of the authorisation of the
granting of such Transaction Security;
28.6.5 a disposal of Cash Equivalents -
28.6.5.1 for Cash; or
28.6.5.2 in exchange for other Cash Equivalents,
but, if the Cash Equivalents disposed of were subject to Transaction Security, only if
Transaction Security is established for the benefit of the Finance Parties (in form and substance
satisfactory to the Facility Agent) over any Cash Equivalents so acquired;
28.6.6 a disposal arising as a result of a Permitted Encumbrance;
28.6.7 any other disposal expressly permitted in writing by the Facility Agent;
28.6.8 a disposal by the Term/RCF Borrower of any treasury shares which it holds in Holdco in order
to pay the purchase consideration (or a part thereof) in relation to a Permitted Acquisition
envisaged in clause
;
28.6.9 the disposal by Holdco to a member of the Covenant Group of Holdco's shares and claims in
Kwande, provided that the Term/RCF Borrower has provided the Facility Agent with at least 30
Business Days prior written notice thereof and the Facility Agent has notified the Term/RCF
Borrower that the Finance Parties are satisfied with the terms and conditions of that disposal
prior to the implementation thereof;
28.6.10 any disposal of Mobikwik provided that -
28.6.10.1 the consideration for such disposal consists only of cash;
28.6.10.2 no Default is then continuing or would result from such disposal; and
28.6.10.3 the provisions of clause
proceeds) are complied with;
28.6.11 any other disposal not referred to in this clause
length terms and for full market value and on the condition that -
28.6.11.1 no Default is then continuing nor would result from such disposal;
120
28.6.11.2 the aggregate book value (determined with reference to the most recent financial
statements, SEC Form or management accounts delivered to the Facility Agent) of assets
Disposed for the period commencing on the Original Signature Date and ending on the
Discharge Date does not exceed R60,000,000 (sixty million Rand) (excluding the
proceeds received on account of the Disposal of Mobikwik; and
28.6.11.3 the Term/RCF Borrower is in compliance with each of the financial undertakings set out
in clause
(taking into account the amount of the proposed disposal if it were to be implemented)
immediately following such disposal.
28.7
Change of business
The Obligors shall procure that no substantial change is made to the general nature of the business
of any member of the Covenant Group or the Covenant Group as a whole from that carried on at the
Original Signature Date.
28.8
Merger
No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group will)
enter into any amalgamation, demerger, merger, unbundling or corporate reconstruction. This
restriction does not apply to -
28.8.1 any transaction or combination of transactions which is required to be implemented or expressly
permitted by the terms of this Agreement; or
28.8.2 any other amalgamation, demerger, merger, unbundling or corporate reconstruction permitted
in writing by the Facility Agent.
28.9
Assets
Each Obligor shall (and the Obligors shall ensure that each member of the Covenant Group will)
maintain in good working order and condition (ordinary wear and tear excepted) all of its assets
necessary in the conduct of its business.
28.10
Acquisitions
No Obligor (other than Holdco) shall (and the Obligors shall ensure that no other member of the
Covenant Group will) acquire or subscribe for shares or other ownership interests in or equity
securities of any company or other person, acquire any business or incorporate any company or
other person. This restriction does not apply to the following transactions (each a
Permitted
Acquisition
) -
121
28.10.1 the acquisition by a member of the Covenant Group of an asset from another member of the
Covenant Group pursuant to a Permitted Disposal;
28.10.2 an acquisition of shares or equity securities pursuant to a Permitted Share Issue;
28.10.3 the acquisition of Cash Equivalents;
28.10.4 the incorporation of a company as a member of the Covenant Group, but only if -
28.10.4.1 it is incorporated in a jurisdiction in Africa as a limited liability company or if not
incorporated in a jurisdiction in Africa with limited liability, the Facility Agent has consented
to the incorporation of such company in the relevant jurisdiction;
28.10.4.2 the aggregate amount paid upon incorporation or establishment of that company to
capitalise it does not exceed R20,000 (or its equivalent in any other currency or
currencies);
28.10.4.3 no Default is continuing on, or would occur as a result of, the incorporation of that
company; and
28.10.4.4 the shares in the company, if held by an Obligor (other than Holdco), become subject to
Transaction Security, in form and substance satisfactory to the Facility Agent and the
following shall be delivered to the Facility Agent in respect thereof to the Facility Agent’s
satisfaction -
28.10.4.4.1 legal opinions as to the capacity and authority of the relevant Obligor to grant such
Transaction Security and the enforceability of such Transaction Security; and
28.10.4.4.2 copies of all resolutions required to be passed in respect of the authorisation of the
granting of such Transaction Security,
within 30 days of the date of its incorporation;
28.10.5 the acquisition of Recharger by the Term/RCF Borrower or Prism Holdings Proprietary Limited
(
Prism Holdings
) provided that -
28.10.5.1 no Default has occurred which is continuing;
28.10.5.2 the sale of shares agreement concluded between the Term/RCF Borrower, Holdco, Ninety
Nine Holdings Proprietary Limited and Imtiaz Dhooma on or about 19 November 2024
(the
Recharger Sale Agreement
) or any other agreement referred to therein is not
amended without the prior written consent of the Facility Agent;
122
28.10.5.3 the consideration payable by the Term/RCF Borrower or Prism Holdings to the sellers in
terms of the Recharger Sale Agreement shall not exceed ZAR507,000,000, of which
ZAR332,000,000 shall be payable in cash and the balance thereof by the delivery, to the
sellers, of ordinary shares in Holdco which, as at the Original Signature Date, are held by
the Term/RCF Borrower (and if Prism Holdings acquires the shares in Recharger, by the
Term /RCF Borrower making such payments on behalf of Prism Holdings and creation of
a corresponding loan account between the Term/RCF Borrower and Prism Holdings);
28.10.5.4 the Term/RCF Borrower shall (either on its own behalf or on behalf of Prism Holdings)
loan an amount not exceeding ZAR43,000,000 to discharge certain Financial
Indebtedness of Recharger on the date on which it acquires all of the shares in Recharger
(and if the Term/RCF Borrower advances the loan to Recharger on behalf of Prism
Holdings, a corresponding loan account shall be created between the Term/RCF Borrower
and Prism Holdings);
28.10.5.5 the cash consideration payable to the sellers in terms of the Recharger Acquisition
Agreement and the amount contributed to Recharger is funded by Internally Generated
Cash of the Covenant Group and/or is funded under the Senior Term Facilities (subject to
the conditions contained therein); and
28.10.5.6 Recharger shall become an Obligor withing 30 days of the date on which the Term/RCF
Borrower, or Prism Holdings (as applicable), acquires all of the shares in Recharger;
28.10.6 an acquisition for cash on arm's length terms from entities other than Related Parties, of (i) at
least the majority (or acquiring additional shares in which a member of the Covenant Group
already holds a majority) of the issued share capital and other equity securities of a limited
liability company, or any business or undertaking carried on as a going concern (a
Majority
Acquisition
) funded, in each case, by (A) Internally Generated Cash (B) proceeds under the
Facilities, (C) the transfer of treasury shares in Holdco held by the Term/RCF Borrower to the
applicable seller but only if -
28.10.6.1 the Term/RCF Borrower has given 10 Business Days' prior notice to the Facility Agent of
the intention to make such acquisition;
123
28.10.6.2 subject to clause
has generated positive earnings before interest, tax, depreciation, amortisation and
impairment charges and positive cash flows (calculated, in the case of earnings before
interest, tax, depreciation, amortisation and impairment charges, on a
pro forma
standalone basis and on substantially the same basis as Consolidated EBITDA, except
that references to the Term/RCF Borrower will be construed as references to that
Subsidiary, company or business), for the 12 month period ending on the most recent
month-end prior to the closing date for that acquisition (or, if not ascertainable, for the
financial year of that company, business or undertaking most recently ended prior to the
closing date for such acquisition);
28.10.6.3 the acquiring entity procures that Security for the benefit of the Finance Parties (and the
documents evidencing or creating that Security to be in form and substance satisfactory
to the Facility Agent) is provided by all shareholders (and not only the acquiring entity)
over all the issued shares in and claims against the company acquired and the following
shall be delivered to the Facility Agent in respect thereof to the Facility Agent’s satisfaction
-
28.10.6.3.1 legal opinions as to the capacity and authority of the relevant shareholders to grant
such Transaction Security and the enforceability of such Transaction Security; and
28.10.6.3.2 copies of all resolutions required to be passed in respect of the authorisation of the
granting of such Transaction Security;
28.10.6.3.3 the gross amount of consideration payable by any member of the Covenant Group
in relation to such acquisition, when taken together with the aggregate amount of
gross consideration applied in funding any other Majority Acquisitions under this
clause
, does not at any time exceed R500,000,000 (or its equivalent in
another currency or currencies) plus any amount which the Term/RCF Borrower was
entitled to Distribute to Holdco but that was not Distributed less the aggregate
amount paid in relation to any Minority Acquisitions (as defined in clause
funded out of Internally Generated Cash or the proceeds of the Facilities; and
28.10.6.4 the Term/RCF Borrower is in compliance with each of the financial undertakings set out
in clause
(taking into account the proposed acquisition if it were to be made) immediately following
the implementation of such acquisition;
28.10.6.5 no Default is continuing or would occur as a result of that acquisition; or
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28.10.7 an acquisition for cash on arm's length terms from entities other than Related Parties, of
Majority Acquisitions, funded by (A) Shareholder Contributions and/or (B) the transfer of
treasury shares in Holdco held by the Term/RCF Borrower to the applicable seller but only if -
28.10.7.1 the Term/RCF Borrower has given 10 Business Days' prior notice to the Facility Agent of
the intention to make such acquisition;
28.10.7.2 the applicable entity, business or undertaking to be acquired is congruent with the
Covenant Group's strategy;
28.10.7.3 the company, business or undertaking (as applicable) has generated positive earnings
before interest, tax, depreciation, amortisation and impairment charges and positive cash
flows (calculated, in the case of earnings before interest, tax, depreciation, amortisation
and impairment charges, on a
pro forma
standalone basis and on substantially the same
basis as Consolidated EBITDA, except that references to the Term/RCF Borrower will be
construed as references to that Subsidiary, company or business), for the 12 month period
ending on the most recent month-end prior to the closing date for that acquisition (or, if
not ascertainable, for the financial year of that company, business or undertaking most
recently ended prior to the closing date for such acquisition);
28.10.7.4 if the acquiring entity is an Obligor (or required to become an Obligor), it procures that
Security for the benefit of the Finance Parties (and the documents evidencing or creating
that Security to be in form and substance satisfactory to the Facility Agent) is provided by
all shareholders (and not only the acquiring entity) over all the issued shares in and claims
against the company acquired and the following shall be delivered to the Facility Agent in
respect thereof to the Facility Agent’s satisfaction -
28.10.7.4.1 legal opinions as to the capacity and authority of the relevant shareholders to grant
such Transaction Security and the enforceability of such Transaction Security; and
28.10.7.4.2 copies of all resolutions required to be passed in respect of the authorisation of the
granting of such Transaction Security;
28.10.7.5 the Term/RCF Borrower is in compliance with each of the financial undertakings set out
in clause
(taking into account the proposed acquisition if it were to be made) immediately following
the implementation of such acquisition;
28.10.7.6 no Default is continuing or would occur as a result of that acquisition;
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28.10.8 an acquisition for cash on arm's length terms from entities other than Related Parties, of a
Majority Acquisition if such entity has not generated positive earnings before interest, tax,
depreciation, amortisation and impairment charges or not generated positive cash flows
(calculated, in the case of earnings before interest, tax, depreciation, amortisation and
impairment charges, on a
pro forma
standalone basis and on substantially the same basis as
Consolidated EBITDA, except that references to the Term/RCF Borrower will be construed as
references to that Subsidiary, company or business), for the 12 month period ending on the
most recent month-end prior to the closing date for that acquisition (or, if not ascertainable, for
the financial year of that company, business or undertaking most recently ended prior to the
closing date for such acquisition), funded by (A) Shareholder Contributions or (B) Internally
Generated Cash of but only if -
28.10.8.1 the Term/RCF Borrower has given 10 Business Days' prior notice to the Facility Agent of
the intention to make such acquisition;
28.10.8.2 the applicable entity, business or undertaking to be acquired is congruent with the
Covenant Group's strategy;
28.10.8.3 the Term/RCF Borrower is in compliance with each of the financial undertakings set out
in clause
(taking into account the proposed acquisition if it were to be made) immediately following
the implementation of such acquisition;
28.10.8.4 the gross amount of consideration payable by any member of the Covenant Group in
relation to such acquisition, when taken together with the aggregate amount of gross
consideration applied in funding any other acquisitions under this clause
, does
not at any time exceed R100,000,000 (or its equivalent in another currency or currencies);
and
28.10.8.5 no Default is continuing or would occur as a result of that acquisition;
28.10.9 the acquisition by a member of the Covenant Group of 20% or more of the issued share capital
and other equity securities of a limited liability company but less than 50% of the issued share
capital and other equity securities of a limited liability company (a
Minority Acquisition
) -
28.10.9.1 funded out of -
28.10.9.1.1 either Internally Generated Cash or the proceeds of the Facilities, provided that the
requirements in clauses
,
,
,
of that Minority Acquisition
mutatis mutandis
; or
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28.10.9.1.2 Shareholder Contributions, provided that the requirements in clauses
,
,
,
Acquisition,
mutatis mutandis
;
28.10.9.2 the gross amount of consideration payable by any member of the Covenant Group in
relation to such acquisition, when taken together with the aggregate amount of gross
consideration applied in funding any other acquisitions under this clause
, does
not at any time exceed R300,000,000 (or its equivalent in another currency or currencies);
and
28.10.9.3 if the acquiring entity is an Obligor (or required to become an Obligor), it procures that
Security for the benefit of the Finance Parties (and the documents evidencing or creating
that Security to be in form and substance satisfactory to the Facility Agent) is provided by
the acquiring entity over the issued shares in and claims against the company acquired
and the following shall be delivered to the Facility Agent in respect thereof to the Facility
Agent’s satisfaction -
28.10.9.3.1 legal opinions as to the capacity and authority of the relevant member of the
Covenant Group to grant such Transaction Security and the enforceability of such
Transaction Security; and
28.10.9.3.2 copies of all resolutions required to be passed in respect of the authorisation of the
granting of such Transaction Security;
28.10.10 the acquisition by a member of the Covenant Group of Holdco's shares and claims in Kwande,
provided that the Term/RCF Borrower has provided the Facility Agent with at least 30 Business
Days prior written notice thereof and the Facility Agent has notified the Term/RCF Borrower
that the Finance Parties are satisfied with the terms and conditions of that acquisition prior to
the implementation thereof;
28.10.11 any acquisition expressly permitted in writing by the Facility Agent.
28.11
Joint Ventures
28.11.1 No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group
will) -
28.11.1.1 enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities,
partnership interest or other interest in any Joint Venture; or
28.11.1.2 transfer any assets to or lend to or guarantee or give an indemnity for or grant any security
interest for the obligations of a Joint Venture or maintain the solvency of, or provide
working capital to, any Joint Venture (or agree to do any of the foregoing).
127
28.12
Loans out
No Obligor (other than Holdco) shall (and the Obligors shall ensure that no other member of the
Covenant Group will) be a creditor in respect of any Financial Indebtedness. This restriction does
not apply to the following items (each a
Permitted Loan
) -
28.12.1 trade credit extended by a member of the Covenant Group (save for EasyPay Financial
Services Proprietary Limited and Lesaka Alternative Digital Products Proprietary Limited
(previously named "EasyPay Proprietary Limited")) to its customers -
28.12.1.1 on its standard terms (unless the terms of that trade credit are more favourable to it than
those standard terms);
28.12.1.2 in the ordinary course of its trading activities; and
28.12.1.3 which has a credit term of not more than 120 days;
28.12.2 loans provided by EasyPay Financial Services Proprietary Limited and Lesaka Alternative
Digital Products Proprietary Limited (previously named "EasyPay Proprietary Limited") to their
customers -
28.12.2.1 on their standard terms;
28.12.2.2 in the ordinary course of its trading activities; and
28.12.2.3 which has a credit term of not more than 12 Months;
28.12.3 the loan by the Term/RCF Borrower to Recharger in an amount not exceeding ZAR43,000,000
as envisaged in the Recharger Acquisition Agreement to be made on the date on which the
Term/RCF Borrower acquires all of the issued shares in Recharger and as further envisaged
in clause
, provided that such agreement is not amended without the prior written
consent of the Facility Agent;
28.12.4 loans provided by the Term/RCF Borrower to Holdco, which shall not exceed an aggregate of
the ZAR equivalent of USD10,000,000 (Indexed) in any Financial Year less (i) the amount of
any Kwande Distributions received in that Financial Year and (ii) the amount of any Distributions
made by the Term/RCF Borrower to Holdco in any Financial Year in accordance with clause
, provided that -
28.12.4.1 any and all Authorisations required by any regulatory authority (including without limitation
the Financial Surveillance Department of the South African Reserve Bank) to make such
loan has been obtained;
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28.12.4.2 no other amount due and payable under the Senior Facilities remains unpaid as at the
date on which the payment is proposed to be made;
28.12.4.3 no Default is then continuing or would result from that payment;
28.12.4.4 taking into account the amount of the proposed loan if it were to be made immediately
prior to and immediately following such payment each of the financial undertakings set
out in clause
prima
facie
evidenced by delivery to the Facility Agent of a certificate in the agreed form signed
the chief financial officer of the Group and at least one director of the Term/RCF Borrower
setting out (in reasonable detail) computations of such compliance (and which includes
pro forma
28.12.5 loans provided by -
28.12.5.1 one Obligor to another Obligor (other than Holdco); and/or
28.12.5.2 an Obligor to another member of the Covenant Group (which is not an Obligor in the
Covenant Group) or a third party, provided that the loans outstanding together with the
indebtedness incurred in accordance with clauses
ZAR50,000,000 at any time;
28.12.5.3 a member of the Covenant Group which is not an Obligor to another member of the
Covenant Group which is not an Obligor in the Covenant Group or an Excluded
Subsidiary, provided that the loans outstanding do not exceed ZAR50,000,000 at any
time;
28.12.6 any loan which is made pursuant to the Permitted Cash Management Arrangement;
28.12.7 loans or credit expressly permitted in writing by the Facility Agent;
28.12.8 loans or credit not otherwise permitted by this clause above provided by a member of the
Covenant Group to its customers, provided that it may only provide loans or credit under this
clause
28.12.8.1 if no Default is then continuing nor would result from such provision;
28.12.8.2 to persons that are not direct or indirect shareholders of Holdco and/or any related or
interrelated persons (as defined in the Companies Act) to any direct or indirect
shareholders of Holdco;
28.12.8.3 if such loan is not to a Sanctioned Entity and will not constitute a Sanctioned Transaction;
and
129
28.12.8.4 the Term/RCF Borrower is in compliance with each of the financial undertakings set out
in clause
(taking into account the amount of the proposed loan or credit if it were to be provided)
immediately following the advance of such loan or credit.
28.13
Third party guarantees
No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group will)
incur or allow to remain outstanding any guarantee or suretyship in respect of any obligation of any
person. This restriction does not apply to the following (in each case a
Permitted Guarantee
) -
28.13.1 any guarantee arising under the Finance Documents;
28.13.2 guarantees provided by Holdco to a seller in respect of an acquisition, provided that such
acquisition is a Permitted Acquisition contemplated in clause
,
,
,
, or
28.13.3 guarantees by Obligors in the Covenant Group in respect of the Permitted Financial
Indebtedness of other Obligors in the Covenant Group;
28.13.4 any guarantee required to be given to any municipality or utility provider, and made by a
member of the Covenant Group in the regular and ordinary course of business;
28.13.5 any guarantee provided by a member of the Covenant Group to a third party financier of an
Excluded Subsidiary, provided that the Facility Agent is satisfied that the liability of that member
of the Covenant Group is limited to the shares and claims held by that member of the Covenant
Group in the applicable Excluded Subsidiary;
28.13.6 any guarantee provided by the Term/RCF Borrower to RMB in connection with the guarantee
facility provided by RMB to Sandulela Technology Proprietary Limited, registration number
2002/021487/07, in terms of a working capital facility letter reference no:
CM/01/Sandulela/2025, as may be amended, varied, restated or replaced from time to time
(the
Facility Letter
), provided that the aggregate amount payable by the Term/RCF Borrower
in terms of that guarantee shall not exceed ZAR30,000,000, together with interest, costs and
expenses relating thereto as set out in the Facility Letter;
28.13.7 any guarantee given by a member of the Covenant Group in relation to the Financial
Indebtedness envisaged in clause
28.13.8 any suretyship and/or guarantee entered into pursuant to the Permitted Cash Management
Arrangement;
28.13.9 any guarantee expressly permitted in writing by the Facility Agent;
130
28.13.10 a guarantee (i) provided by an Obligor in the Covenant Group for the Financial Indebtedness
of another Obligor in the Covenant Group, or (ii) provided by an entity which is not an Obligor
in the Covenant Group for the Financial Indebtedness of another entity which is not an Obligor
in the Covenant Group , provided that the aggregate indebtedness pursuant to this clause and
clauses
R50,000,000 (or its equivalent in another currency or currencies), and the remainder of the
provisions of clause
mutatis mutandis
; and
28.13.11 the Facility Agent has, in relation to any guarantee or indemnity that replaces the guarantee or
indemnity that is in effect as at the Closing Date (the
Existing Guarantee/Indemnity
),
confirmed that it is satisfied with the form of the replacement guarantee or indemnity and such
form of guarantee or indemnity, as well as the Existing Guarantee/Indemnity, is not amended
or replaced without the express prior written consent of the Facility Agent.
28.14
Treasury Transactions
28.14.1 No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group
will) enter into any Treasury Transaction. This restriction does not apply to the following
Treasury Transactions (each a
Permitted Treasury Transaction
) -
28.14.1.1 the hedging transactions permitted to be implemented under clause
Policy), and documented by the Hedging Documents;
28.14.1.2 spot and forward delivery foreign exchange contracts entered into in the ordinary course
of business -
28.14.1.2.1 under a WCF Agreement; or
28.14.1.2.2 with any other financial institution, provided that no Security is provided to such
financial institution and the aggregate Financial Indebtedness incurred by the
members of the Covenant Group falls within the amounts set out in clause
28.14.1.3 any Treasury Transaction expressly permitted in writing by the Facility Agent.
28.14.2 The Term/RCF Borrower must ensure that all Transaction Interest Rate Hedge arrangements
contemplated by clause
requirements of that clause, and that those arrangements are not terminated, closed out, varied
or cancelled without the consent of the Facility Agent.
131
28.15
Hedging policy
28.15.1 The Term/RCF Borrower may enter into a suitable hedging policy in order to hedge its interest
rate obligations under the Senior Term Facilities in accordance with its internal policies and
procedures.
28.15.2 Any interest rate Treasury Transaction entered into pursuant to clause
Transaction
Interest Rate Hedge
), must comply with the following requirements -
28.15.2.1 a Transaction Interest Rate Hedge may be entered into only with a Lender or its Affiliate
which is or becomes a Hedge Counterparty in accordance with clause
Hedge Counterparties);
28.15.2.2 a Transaction Interest Rate Hedge may be entered into only pursuant to definitive Hedging
Documents which are based on the 2002 ISDA Master Agreement (the
Master
Agreement
);
28.15.2.3 copies of -
28.15.2.3.1 a resolution of the board of directors of each Obligor and Security Provider which is
a party to a Hedging Document, to the extent applicable -
28.15.2.3.1.1 approving the terms of, and the transactions contemplated by, the Hedging
Documents to which it is a party and resolving that it execute the Hedging
Documents to which it is a party;
28.15.2.3.1.2 authorising it, for all purposes required under sections 45 and/or 46 of the
Companies Act (as applicable), to provide the "
financial assistance
" and to
make any "
distribution
" that may arise as a result of its entry into the Hedging
Documents to which it is a party;
28.15.2.3.1.3 authorising a specified person or persons to execute the Hedging Documents
to which it is a party on its behalf; and
28.15.2.3.1.4 authorising a specified person or persons, on its behalf, to sign and/or despatch
all documents and notices to be signed and/or despatched by it under or in
connection with the Hedging Documents to which it is a party;
28.15.2.3.2 to the extent applicable, a special resolution duly passed by the holders of the issued
shares of each Obligor and Security Provider authorising it, for all purposes required
under section 45 of the Companies Act, to provide the "
financial assistance
" that
may arise as a result of its entry into the Hedging Documents to which it is a party;
132
28.15.2.4 a Transaction Interest Rate Hedge may not be entered into on a credit-linked or credit-
contingent basis; and
28.15.2.5 without the express prior consent of the Facility Agent, a Transaction Interest Rate Hedge
may not be entered into on the basis that the Term/RCF Borrower or another member of
the Covenant Group incurs any upfront fees, premium in relation to an interest rate cap in
excess of R20,000,000 (or such other amount as agreed with the Facility Agent) in
aggregate across all Transaction Interest Rate Hedges, commissions, costs or expenses
to the Hedge Counterparty (other than amounts reimbursed to the relevant Hedge
Counterparty in respect of the reasonable legal fees and expenses of that Hedge
Counterparty's legal representatives in connection with the negotiation and preparation of
the relevant Hedging Documents).
28.16
Arm's length transactions
No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group will)
enter into any transaction with any person, otherwise than on arm's-length terms and for full market
value, save for -
28.16.1 loans made or credit provided by members of the Covenant Group as permitted in terms of this
Agreement;
28.16.2 transactions between members of the Covenant Group concluded in the ordinary course of
business and, in circumstances where one or more of the parties to such transactions are not
wholly owned Subsidiaries of the Term/RCF Borrower, on arms' length terms.
28.17
Insurance
28.17.1 In this clause a
prudent owner
assets of a type and size, similar in all cases to those owned and operated by any member of
the Covenant Group in a similar location.
28.17.2 Each Obligor shall (and the Obligors shall ensure that each other member of the Covenant
Group will) ensure that its Insurances -
28.17.2.1 insure it for its insurable interest in respect of all risks which are required to be insured
against under any applicable law or regulation and which a prudent owner would insure
against;
28.17.2.2 insure it against losses arising from business interruption (if a prudent owner would do
so); and
28.17.2.3 in the case of any other asset or risk, provide cover up to a limit which a prudent owner
would buy.
133
28.17.3 Each Obligor shall (and the Obligors shall ensure that each other member of the Covenant
Group will) -
28.17.4 ensure that its Insurances are underwritten by an insurance company or underwriter which is
of international standing and is not a captive insurer which is a member of the Covenant Group;
and
28.17.5 ensure the terms of its Insurances are no less favourable than those which are generally
available to a prudent owner, and subject to no greater excess, deductible or retention than a
prudent owner of its assets and businesses would carry.
28.18
Insurances - Notice under the Short-Term Insurance Act
28.18.1 Each Obligor confirms, in respect of all Insurances required to be maintained by it under the
Finance Documents, that it is aware and fully appraised of the following choices it has under
section 43 of the Short-Term Insurance Act, 1998 (
Short-Term Insurance Act
) -
28.18.1.1 a choice of entering into a new policy contract, making available an existing policy contract
or using a combination of those options; and
28.18.1.2 a choice as to the identity of the insurer (if a new policy contract is to be entered into) and
the person (if any) who is to render services as intermediary in connection with the
transaction; and
28.18.1.3 subject to the provisions of this Agreement, a choice as to whether or not the value of the
relevant policy contracts will exceed the value of the interests of the Finance Parties.
28.18.2 This clause
of the Short-Term Insurance Act. Regardless of the sequence in which the Finance Documents
are executed, no benefits under any policy contract made available to the Finance Parties
under a Finance Document shall accrue to the Finance Parties before the Original Signature
Date.
28.18.3 Each Obligor confirms that it exercised its freedom of choice under section 43 of the Short-
Term Insurance Act and that it was not subject to any coercion or inducement as to the manner
in which that freedom of choice was exercised.
28.19
Intellectual Property Rights
28.19.1 Except as provided below, each Obligor shall (and the Obligors shall ensure that each other
member of the Covenant Group will) -
134
28.19.1.1 make any registration and pay any fee or other amount which is necessary to retain and
protect the Intellectual Property Rights which are material to the business of a member of
the Covenant Group;
28.19.1.2 record its interest in those Intellectual Property Rights;
28.19.1.3 take such steps as are necessary and commercially reasonable (including the institution
of legal proceedings) to prevent third parties infringing those Intellectual Property Rights;
28.19.1.4 not use or permit any such Intellectual Property Right to be used in a way which may, or
take or omit to take any action which may, adversely affect the existence or value of such
Intellectual Property Right; and
28.19.1.5 not grant any licence in respect of those Intellectual Property Rights, without the express
prior consent of the Facility Agent.
28.19.2 Clause
of the Covenant Group for so long as they remain members of the Covenant Group or to licence
arrangements entered into on normal commercial terms and in the ordinary course of its
business.
28.20
Environmental matters
28.20.1 Each Obligor shall (and the Obligors shall ensure that each other member of the Group will) -
28.20.1.1 comply with all Environmental Law to which it is subject in all material respects;
28.20.1.2 obtain, maintain and ensure compliance with all Environmental Permits that are required
to carry on its business in the ordinary course; and
28.20.2 implement procedures to monitor compliance with and to prevent liability under any
Environmental Law, including monitoring adequate financial provisioning as required in respect
thereof.
28.20.3 Each Obligor shall -
28.20.3.1 as soon as reasonably practicable and, in any event, within 30 days upon becoming aware
of the same, inform the Facility Agent in writing of any breach of Environmental Law by
any member of the Group, where the breach of Environmental Laws is material to the
conduct of the business of a member of the Group or is reasonably likely to result in any
liability for a Finance Party;
135
28.20.3.2 as soon as reasonably possible and, in any event, within 14 days upon becoming aware
of the same (or such longer period as the Facility Agent may agree) inform the Facility
Agent in writing of -
28.20.3.2.1 any Environmental Claim against it or any other member of the Group which is
current, pending or threatened; and
28.20.3.2.2 any facts or circumstances which are reasonably likely to result in any Environmental
Claim being commenced or threatened against it or any other member of the Group,
where the Environmental Claim is material to the conduct of the business of a member of
the Group or is reasonably likely to result in any liability for a Finance Party;
28.20.3.3 as soon as reasonably practicable following request by the Facility Agent, prepare and
deliver to the Facility Agent -
28.20.3.3.1 a written report, in form and substance satisfactory to the Facility Agent, in respect
of any such breach of Environmental Law or any actual or threatened Environmental
Claim; and
28.20.3.3.2 a corrective action plan in respect of any failure by a member of the Group to comply
with Environmental Laws (being a written plan, in form and substance satisfactory to
the Facility Agent, to remedy any actual or potential adverse consequences of any
such failure).
28.20.4 The Term/RCF Borrower hereby indemnifies each Finance Party and its officers, employees,
agents and delegates (together the
Indemnified Parties
) against any loss or liability suffered
or incurred by that Indemnified Party (except to the extent caused by such Indemnified Party's
own gross negligence or wilful default) which -
28.20.4.1 arises by virtue of any actual or alleged breach of any Environmental Law (whether by
any Obligor, an Indemnified Party or any other person); or
28.20.4.2 arises in connection with an Environmental Claim,
which relates to the Group, any assets of the Group or the operation of all or part of the business
of the Group (or, in each case, any member of the Group) and which would not have arisen if
the Finance Documents or any of them had not been executed by that Finance Party.
28.21
Share capital
28.21.1 No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group
will) -
136
28.21.1.1 redeem, purchase, defease, retire or repay any of its shares or share capital (or any
instrument convertible into shares or share capital) or resolve to do so;
28.21.1.2 issue any shares (or any instrument convertible into shares) which by their terms are
redeemable or carry any right to a return prior to the Final Discharge Date; or
28.21.1.3 issue any shares or share capital (or any instrument convertible into shares or share
capital) to any person.
28.21.2 Clauses
Permitted Share
Issue
) -
28.21.2.1 the issue of shares by a member of the Covenant Group which is not an Obligor to another
member of the Covenant Group, provided that those shares are issued to the existing
shareholders of that member of the Covenant Group;
28.21.2.2 the issue of shares by an Obligor or a member of the Group which is not an Obligor to
another Obligor, provided that if any shares in the Obligor issuing those shares are the
subject of Transaction Security, any further shares so issued become the subject of an
equivalent Security for the benefit of the Finance Parties on the same terms;
28.21.2.3 any issue of shares by Holdco provided that such issue does not lead to a Control Event;
28.21.2.4 an issue of shares to a person with the express prior consent of the Facility Agent.
28.22
Distributions
28.22.1 No Obligor (other than Holdco) shall (and the Obligors shall ensure that no other member of
the Covenant Group will) make any distribution. This restriction does not apply to the following
distributions (each a
Permitted Distribution
) -
28.22.1.1 any cash distribution by a member of the Covenant Group to its direct Holding Company
that is another member of the Covenant Group;
28.22.1.2 any cash distribution by a member of the Covenant Group to any of its minority
shareholders provided such distribution is in relation to a dividend declared
pro rata
between all shareholders of that member of the Covenant Group;
28.22.1.3 any other distribution made with the express prior consent of the Facility Agent.
28.22.2 The Term/RCF Borrower may make payment of a cash distribution to Holdco, -
137
28.22.2.1 which shall not exceed an aggregate of the ZAR equivalent of USD10,000,000 (Indexed)
in any Financial Year less (i) the amount of any Kwande Distributions received in that
Financial Year and (ii) the amount of any loans made by the Term/RCF Borrower to
Holdco in any Financial Year as permitted in terms of clause
, provided that -
28.22.2.1.1 any and all Authorisations required by any regulatory authority (including without
limitation the Financial Surveillance Department of the South African Reserve Bank)
to make such Distribution has been obtained;
28.22.2.1.2 no other amount due and payable under the Senior Facilities remains unpaid as at
the date on which the payment is proposed to be made;
28.22.2.1.3 no Default is then continuing or would result from that payment;
28.22.2.1.4 taking into account the amount of the proposed payment if it were to be made
immediately prior to and immediately following such payment each of the financial
undertakings set out in clause
has been met, as
prima facie
evidenced by delivery to the Facility Agent of a
certificate in the agreed form signed by the chief financial officer of the Group and at
least one director of the Term/RCF Borrower setting out (in reasonable detail)
computations of such compliance (and which includes
pro forma
into account the amount of the proposed payment); and
28.22.2.2 in addition to the cash distribution envisaged in clause
, if the following conditions
are met -
28.22.2.2.1 the Term/RCF Borrower has given 10 Business Days' prior notice to the Facility
Agent of the intention to make such payment;
28.22.2.2.2 a Compliance Certificate for the Measurement Period ending on the Measurement
Date immediately preceding the date on which that payment is proposed to be made
has been delivered to the Facility Agent;
28.22.2.2.3 taking into account the amount of the proposed payment if it were to be made -
28.22.2.2.3.1 immediately prior to and immediately following such payment -
28.22.2.2.3.1.1 the ratio of Total Borrowings immediately prior to and following such
payment to Consolidated EBITDA for the 12 Month period ending on the
most recent Measurement Date is less than 2.00; and
28.22.2.2.3.1.2 each of the financial undertakings set out in clause
relation to financial condition) has been met; and
138
28.22.2.2.3.2 for the next three Measurement Periods ending on the three Measurement
Dates immediately following that payment each of the financial undertakings
set out in clause
basis of reasonable assumptions) are forecast to be met,
in each case, as
prima facie
evidenced by delivery to the Facility Agent of a certificate
in the agreed form signed by the chief financial officer of the Group and at least one
director of the Term/RCF Borrower setting out (in reasonable detail) computations of
such compliance (and which includes
pro forma
amount of the proposed payment);
28.22.2.2.4 all amounts payable under clause
received in full by the relevant Lenders;
28.22.2.2.5 any and all Authorisations(including without limitation the Financial Surveillance
Department of the South African Reserve Bank) required by any regulatory authority
to make such Distribution has been obtained;
28.22.2.2.6 no other amount due and payable under the Senior Facilities remains unpaid as at
the date on which the payment is proposed to be made;
28.22.2.2.7 no Default is then continuing or would result from that payment;
28.22.2.2.8 that payment is not prohibited under any applicable law; and
28.22.2.2.9 no more than two such payments may be made during any financial year of the
Group.
28.23
Taxes
28.23.1 Each Obligor shall (and the Obligors shall ensure that each other member of the Group will)
pay and discharge all Taxes imposed upon it or its assets within the time period allowed without
incurring penalties unless and only to the extent that -
28.23.1.1 such payment is being contested in good faith;
28.23.1.2 the amount under dispute is not in excess of 2% in aggregate of Consolidated EBITDA
(calculated with reference to Holdco's most recently delivered annual financial
statements);
28.23.1.3 adequate reserves are being maintained for those Taxes and the costs required to contest
them which have been disclosed in its latest financial statements; and
28.23.1.4 such payment can be lawfully withheld.
139
28.23.2 No member of the Group may change its residence for Tax purposes.
28.24
Amendments to documents
28.24.1 No Obligor (other than Holdco) shall (and the Obligors shall ensure that no other member of
the Covenant Group will) -
28.24.1.1 amend its memorandum of incorporation or other constitutional documents;
28.24.1.2 amend or waive any term of any document delivered to the Facility Agent pursuant to
clause
without the express prior written consent of the Facility Agent or which are minor or
administrative in nature and will not adversely affect the interests of the Finance Parties.
28.24.2 The Term/RCF Borrower must promptly supply to the Facility Agent a copy of any amendment
to any of the documents referred to in clause
28.25
Access
28.25.1 Upon reasonable notice by the Facility Agent, each Obligor shall (and the Obligors shall ensure
that each other member of the Group will) allow any one or more representatives of the Finance
Parties and/or accountants or other professional advisers appointed by the Finance Parties to
have access during normal business hours to the premises, assets, books and records of that
member of the Group.
28.25.2 The Facility Agent may not give notice under clause
financial year, unless it reasonably believes that a Default is continuing or may have occurred
or may occur and notifies the Term/RCF Borrower that it is exercising its rights under this clause
28.26
Anti-corruption laws and Sanctions
28.26.1 No Obligor shall (and the Obligors shall ensure that no other member of the Group will) -
28.26.1.1 contravene any Sanctions;
28.26.1.2 at any time be a party to or participate in a Sanctioned Transaction in any manner; or
28.26.1.3 directly or indirectly use the proceeds of any Facility for any purpose which would breach
the Prevention and Combatting of Corrupt Activities Act, 2004, the United Kingdom
Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar
legislation in other jurisdictions.
28.26.2 Each Obligor shall (and Holdco shall ensure that each member of the Group will) -
140
28.26.2.1 take all reasonable steps to ensure that appropriate controls and safeguards are in place,
designed to prevent it or any other member of the Group from being or becoming involved
in a Sanctioned Transaction; and
28.26.2.2 conduct its businesses in compliance with applicable anti-corruption laws and maintain
policies and procedures designed to promote and achieve compliance with such laws.
28.27
Further Transaction Security
28.27.1 Each Additional Guarantor shall, immediately upon becoming an Additional Guarantor, execute
and deliver to the Debt Guarantor (on behalf of the Facility Agent) such Security Documents,
in form and substance satisfactory to the Facility Agent, as may be necessary to ensure that all
of the Transaction Security required under Annexure G (Transaction Security) from it is
established in favour of the Debt Guarantor over all of its assets.
28.27.2 If, after the Closing Date or the date upon which it became an Obligor, an Obligor (other than
Holdco) acquires any relevant assets (including any shares or ownership interests in and/or
claims against any person) over which it is required to establish Transaction Security pursuant
to Annexure G (Transaction Security), it shall execute and deliver to the Debt Guarantor such
Security Documents, in form and substance satisfactory to the Facility Agent, as may be
necessary to ensure that at all times such required effective first-ranking Transaction Security
is established in favour of the Debt Guarantor over those assets, within 10 Business Days of
being acquired (in respect of any such assets situated, or entity established, in South Africa) or
30 Business Days of being acquired (in respect of any such assets situated, or entity
established, in another jurisdiction).
141
28.27.3 If, at any time after the Closing Date, the aggregate of the gross assets, EBITDA (as defined in
clause
are members of the Covenant Group incorporated in a jurisdiction outside South Africa, and
who are not Obligors at that time, (the
Non-SA Subsidiaries
) equal or exceed 10% of
Consolidated EBITDA or 10% of the total assets or total revenue of the Covenant Group, as
evidenced by reference to the most recent Compliance Certificate, financial statements of any
such Subsidiary and the consolidated financial statements or management accounts of the
Covenant Group or SEC Form (as applicable), then the Term/RCF Borrower must procure that
the relevant member or members of the Covenant Group holding shares, equity securities and
other ownership interests in any such Non-SA Subsidiaries enter into Security Documents, in
form and substance satisfactory to the Facility Agent, in favour of the Debt Guarantor to
establish the Security equivalent to that described in clause 1.2 (South African Obligors and
Material Subsidiaries) of Annexure G (Transaction Security) over all its shares, equity securities
and other ownership interests it holds, from time to time, in any such Non-SA Subsidiary
(together with all its debt claims (on shareholder loan account or otherwise) against that Non-
SA Subsidiary), in relation only to so many of such Non-SA Subsidiaries as is required to ensure
that if the financial position of such Non-SA Subsidiaries were not taken into account in
calculating the gross assets, EBITDA or total revenue of all Non-SA Subsidiaries, the aggregate
of (i) the EBITDA of the Non-SA Subsidiaries would be less than 10%, of Consolidated EBITDA
and (ii) of the gross assets or total revenue of the Non-SA Subsidiaries would be less than 10%
of the Consolidated EBITDA, gross assets or total revenue of the Covenant Group. For this
purpose -
28.27.3.1 the EBITDA, gross assets or total revenue of a Non-SA Subsidiary of the Term/RCF
Borrower which is a member of the Covenant Group will be determined from its financial
statements or management accounts (in each case, consolidated if it has Subsidiaries)
which were consolidated into the latest audited consolidated financial statements or
management accounts of the Term/RCF Borrower or the SEC Form (adjusted on a pro
forma basis as contemplated in clause
applicable);
28.27.3.2 if a Non-SA Subsidiary of the Term/RCF Borrower becomes a member of the Covenant
Group after the date on which the latest audited consolidated financial statements or
management accounts of the Term/RCF Borrower or the SEC Form have been prepared,
the EBITDA, gross assets or total revenue of that Non-SA Subsidiary will be determined
from its latest financial statements or management accounts (in each case, consolidated
if it has Subsidiaries);
142
28.27.3.3 the Consolidated EBITDA, gross assets or total revenue of the Covenant Group will be
determined from the latest audited consolidated financial statements or management
accounts of the Term/RCF Borrower or the SEC Form (adjusted on a pro forma basis as
contemplated in clause
28.27.3.4 the
EBITDA
Consolidated EBITDA (as defined in clause
references to the Covenant Group will be construed as references to that Non-SA
Subsidiary; and
28.27.3.5 where financial statements and management accounts of a Non-SA Subsidiary or the
Term/RCF Borrower are available in respect of the same accounting period, the financial
statements shall be used for purposes of making the necessary determinations.
28.27.4 The Term/RCF Borrower must procure that the Security Documents required to be entered into
under this clause are entered into, and to the extent necessary registered at any applicable
statutory public register in any relevant jurisdiction, within 60 days of the date of delivery of a
Compliance Certificate, financial statements, SEC Form or management accounts, as
applicable.
28.27.5 Each Obligor shall (and shall procure that each other relevant member of the Covenant Group
which is its Subsidiary will) at its own expense, execute and do all such assurances, acts and
things as the Facility Agent may reasonably require -
28.27.5.1 for registering any Security Documents in any applicable statutory public register; or
28.27.5.2 for perfecting or protecting the Transaction Security intended to be afforded by the
Security Documents; and
28.27.5.3 if a Security Document has become enforceable, for facilitating the realisation of all or any
part of the assets which are subject to that Security Document and the exercise of all
powers, authorities and discretions vested in a Finance Party,
and in particular shall execute all transfers, cessions and releases of that Transaction Security,
whether to the Debt Guarantor or to its nominees and give all notices, orders and directions
which the Facility Agent may reasonably think expedient.
28.28
Ownership of Guarantors
The Term/RCF Borrower shall ensure that -
143
28.28.1 in relation to each Original Guarantor, unless otherwise permitted under this Agreement, the
percentage of the equity securities in the issued capital of any such Original Guarantor owned,
directly or indirectly, legally and beneficially, by the Term/RCF Borrower are equal to or greater
than those percentages stipulated in the Group Structure Chart unless otherwise agreed in
writing by the Facility Agent; and
28.28.2 in relation to each Additional Guarantor, unless otherwise permitted under this Agreement, the
percentage of the equity securities in the issued capital of any such Additional Guarantor
owned, directly or indirectly, legally and beneficially, by the Term/RCF Borrower are not less
than the percentage held by the Term/RCF Borrower at the time such Additional Guarantor
became a Guarantor pursuant to this Agreement.
28.29
Guarantor coverage
28.29.1 The Term/RCF Borrower shall ensure that, at all times after the Closing Date, the aggregate
contribution of the Guarantors (calculated on an unconsolidated basis and excluding all intra-
Covenant Group items and investments in Subsidiaries of any member of the Covenant Group)
represents not less than 90% of -
28.29.1.1 the Consolidated EBITDA of the Covenant Group;
28.29.1.2 gross assets of the Covenant Group; and
28.29.1.3 total revenue of the Covenant Group.
28.29.2 If, at any time after the Original Signature Date -
28.29.2.1 it is demonstrated by reference to the most recent Compliance Certificate, the financial
statements of any Subsidiary that is a member of the Covenant Group and the
consolidated financial statements or management accounts of the Covenant Group or the
SEC Form that any member of the Covenant Group is a Material Subsidiary; or
28.29.2.2 a member of the Covenant Group otherwise is or becomes a Material Subsidiary,
then the Term/RCF Borrower shall, subject to clause
Know your customer checks
) and
the prior written consent of the Facility Agent being obtained, promptly and in any event within
10 Business Days of the delivery of those financial statements, SEC Form or management
accounts procure that that Material Subsidiary becomes an Additional Guarantor in the manner
required by clause
Additional Guarantors
).
28.30
Dormant Subsidiaries
144
No Obligor shall (and each Obligor shall ensure no other member of the Group will) cause or permit
any member of the Covenant Group which is a Dormant Subsidiary to commence trading or cease
to satisfy the criteria for a Dormant Subsidiary unless such Dormant Subsidiary becomes an
Additional Guarantor in accordance with clause
Additional Guarantors
) if required to comply
with the requirements of clause
Guarantor coverage
).
28.31
Material Agreements
28.31.1 No Obligor shall (and the Obligors shall ensure that no other member of the Covenant Group
will) amend, vary or terminate any Material Agreement -
28.31.1.1 without the prior approval of the Facility Agent; or
28.31.1.2 unless such amendments are more favourable to the Covenant Group; or
28.31.1.3 unless such amendments are minor or administrative in nature and do not adversely
impact the interests of the Finance Parties in relation to the Finance Documents.
28.31.2 The Term/RCF Borrower shall promptly (or shall procure the prompt) supply to the Facility
Agent of the details and copies of any amendments or variations proposed to or (with the prior
approval of the Facility Agent in relation to only those Material Agreements referred to in
clause
approval of the Facility Agent in relation to only those Material Agreements referred to in
clause
28.32
EBITDA
Holdco and the Term/RCF Borrower shall ensure that, at all times, the Term/RCF Borrower's
earnings before interest, tax, depreciation, amortisation and impairment charges (calculated on the
same basis as EBITDA) is equal to at least 90% of Holdco's earnings before interest, tax,
depreciation, amortisation and impairment charges (calculated on the same basis as EBITDA) in any
financial year.
29
EVENTS OF DEFAULT
Each of the events or circumstances set out in this clause
Acceleration
)) is an Event
of Default. For the purposes of this clause
, any reference to a member of the Covenant Group shall be
deemed to exclude any Excluded Subsidiaries.
29.1
Non-payment
An Obligor does not pay on the due date any amount payable by it under a Finance Document, at
the place and in the currency in which it is expressed to be payable unless -
29.1.1 that failure to pay is caused by administrative or technical error or a Disruption Event; and
145
29.1.2 payment is made in full within 3 Business Days of its due date.
29.2
Financial covenants
Any requirement of clause
Financial Covenants
) is not satisfied, unless that breach -
29.2.1 is capable of remedy under clause
Equity cure
); and
29.2.2 is remedied, timeously and in full, in accordance with the requirements of that clause.
29.3
Other obligations
29.3.1 An Obligor or Security Provider fails to comply, timeously and in full, with any provision of a
Finance Document to which it is party (in respect of an Obligor only, other than those referred
to in clauses
29.3.2 No Event of Default under clause
and is remedied within 5 Business Days of the earlier of (A) the Facility Agent giving notice to
the Term/RCF Borrower and (B) the applicable failure to comply.
29.4
Misrepresentation
29.4.1 Any representation or statement made or deemed to be made by an Obligor or Security
Provider in the Finance Documents or any other document delivered by or on behalf of any
Obligor or Security Provider under or in connection with any Finance Document is or proves to
have been incorrect or misleading when made or deemed to be repeated.
29.4.2 No Event of Default under clause
misrepresentation is capable of remedy and is remedied w within 5 Business Days of the earlier
of (A) the Facility Agent giving notice to the Term/RCF Borrower and (B) the applicable failure
to comply.
29.5
Cross default and cross acceleration
29.5.1 Any of the following occurs in respect of a member of the Covenant Group or Security Provider
-
29.5.1.1 any of its Financial Indebtedness (or any amount payable in respect of its Financial
Indebtedness) is not paid when due (after the expiry of any originally applicable grace
period); or
29.5.1.2 any of its Financial Indebtedness -
146
29.5.1.2.1 is declared to be or otherwise becomes prematurely due and payable prior to its
stated maturity or, if the Financial Indebtedness arises under a guarantee, prior to
the stated maturity of the Financial Indebtedness which is the subject of the
guarantee; or
29.5.1.2.2 is placed on demand;
29.5.1.2.3 is capable of being declared by or on behalf of a creditor to be prematurely due and
payable or of being placed on demand;
29.5.1.2.4 is required to be mandatorily prepaid in full or is capable of being required to be
mandatorily prepaid in full (whether or not the event giving rise to such right has been
waived by the creditor); or
29.5.1.2.5 is terminated or closed out or is capable of being terminated or closed out,
in each case, as a result of an event of default or any provision having a similar effect
(howsoever described); or
29.5.1.3 any commitment of a provider of Financial Indebtedness to it is cancelled or suspended,
or is capable of being cancelled or suspended by such provider, in each case, as a result
of an event of default or any provision having a similar effect (howsoever described);
29.5.1.4 any creditor becomes entitled to declare any Financial Indebtedness of a Covenant Group
Member or a Security Provider due and payable prior to its specified maturity as a result
of an event of default (however described), mandatory prepayment event (however
described) or any provisions having a similar effect; or
29.5.1.5 any creditor of a Covenant Group Member or a Security Provider becomes entitled to
foreclose on any Security given to secure any of its Financial Indebtedness.
29.5.2 No Event of Default will occur under this clause
Indebtedness or commitment for Financial Indebtedness falling within clauses
or currencies).
29.6
Insolvency
29.6.1 A Material Group Company, Security Provider or any member of the Group is or is deemed for
the purposes of any applicable law to be insolvent or unable to pay its debts as they fall due,
admits its insolvency or its inability to pay its debts as they fall due, suspends making payments
on any of its debts or announces an intention to do so or, by reason of actual or anticipated
financial difficulties, commences negotiations with one or more of its creditors with a view to
the rescheduling, restructuring or compromise of any of its indebtedness.
147
29.6.2 A Material Group Company, Security Provider or any member of the Group is or is deemed for
the purposes of any applicable law to be "Financially Distressed" (as defined in the Companies
Act).
29.6.3 The value of the assets of a Material Group Company, Security Provider or any member of the
Group is less than its liabilities (taking into account contingent and prospective liabilities).
29.6.4 A moratorium is declared, instituted or takes effect in respect of any of the indebtedness of any
Material Group Company, Security Provider or any member of the Group (in which event the
ending of the moratorium will not remedy any Event of Default caused by that moratorium).
29.7
Insolvency and business rescue proceedings
29.7.1 Any corporate action, legal proceedings or other procedure or step (including an application to
court, proposal or convening of a meeting) is taken with a view to -
29.7.1.1 the suspension of payments, a moratorium of any indebtedness, liquidation, winding-up,
dissolution, administration, business rescue or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any Material Group Company,
Security Provider or any member of the Group;
29.7.1.2 a composition, compromise, assignment or arrangement with any creditor of a Material
Group Company, Security Provider or any member of the Group;
29.7.1.3 the appointment of a liquidator (other than in respect of a solvent liquidation of a member
of the Group which is not a member of the Covenant Group), receiver, administrative
receiver, administrator, compulsory manager, business rescue practitioner or other similar
officer in respect of any Material Group Company, Security Provider or any member of the
Group or any of their assets; or
29.7.1.4 enforcement of any Security over any assets of any Material Group Company, Security
Provider or any member of the Group,
or any analogous procedure or step is taken in any jurisdiction;
29.7.2 A meeting is proposed or convened by the directors of any Material Group Company, Security
Provider or any member of the Group, a resolution is proposed or passed, application is made
or an order is applied for or granted, to authorise the entry into or implementation of any
business rescue proceedings (or any similar proceedings) in respect of any Material Group
Company, Security Provider or any member of the Group, or any analogous procedure or step
is taken in any jurisdiction.
148
29.8
Creditors' process
Any expropriation, attachment, sequestration, implementation of any business rescue plan, distress
or execution affects any asset or assets of a member of the Covenant Group or a Security Provider.
No Event of Default will occur under this clause
29.8.1 the affected assets are not subject to any Transaction Security and the aggregate value of
those assets is less than R20,000,000 (twenty million Rand) (or its equivalent in another
currency or currencies); or
29.8.2 that expropriation, attachment, sequestration, implementation of any business rescue plan,
distress or execution is being contested in good faith and with due diligence and is discharged
or set aside within 14 days.
29.9
Legal proceedings
29.9.1 Any member of the Covenant Group or Holdco fails to discharge in full, within 5 Business Days
of the due date, any amount payable pursuant to a final judgment or order made or given by
any court or other authority of competent jurisdiction in any litigation, arbitration, administrative,
governmental, regulatory or other investigations, proceedings or enquiry (including any such
investigations, proceedings or enquiry by any competition authority, environmental authority,
tax authority or sector specific regulatory authority).
29.9.2 For the purposes of clause
-
29.9.2.1 which is not appealable or is appealable but in respect of which the period for the lodging
of an appeal has lapsed and the applicable member of the Covenant Group or Holdco has
failed to institute appeal proceedings; and
29.10 which is not capable of rescission or is capable of rescission but in respect of which the period for
applying for rescission has lapsed and the applicable member of the Covenant Group or Holdco has
failed to apply for rescission or has applied for rescission of such judgment or order and the
application for rescission has been denied.
29.11
Cessation of business
A Group Company or Security Provider suspends, ceases, or threatens to suspend or cease, to
carry on all or a substantial part of its business or to change the nature of its business from that
undertaken at the Original Signature Date.
29.12
Finance Documents
149
29.12.1 It is or becomes unlawful for a party (other than a Finance Party) to a Finance Document to
perform any of its obligations under the Finance Documents.
29.12.2 Any obligation of a party (other than a Finance Party) to a Finance Document, under a Finance
Document, for any reason, becomes unlawful or is not or ceases to be -
29.12.2.1 legal, valid or binding; or
29.12.2.2 enforceable or effective in accordance with its terms, or is alleged by a party to it (other
than a Finance Party) to be ineffective in accordance with its terms.
29.12.3 Any Transaction Security created or expressed to be created or evidenced by a Security
Document, or any subordination created under a Finance Document, for any reason, becomes
unlawful or is not or ceases to be -
29.12.3.1 legal, valid or binding; or
29.12.3.2 enforceable or effective, or is alleged by a party to it (other than a Finance Party) to be
ineffective, fails or ceases to establish the ranking and the priority of claims which it
purports to create.
29.12.4 A party (other than a Finance Party) to a Finance Document repudiates that Finance Document
or evidences an intention to repudiate a Finance Document.
29.13
Material adverse change
Any event or circumstance occurs which the Majority Lenders reasonably believe has or is
reasonably likely to have a Material Adverse Effect.
29.14
Audit qualification
The Auditors qualify the audited annual consolidated financial statements of Holdco or the audited
annual financial statements of any other Obligor.
29.15
Expropriation
29.15.1 The authority or ability of Holdco, any member of the Covenant Group or Security Provider to
conduct its business is wholly or substantially curtailed by any seizure, expropriation,
nationalisation, intervention, restriction or other action by or on behalf of any governmental,
regulatory or other authority or other person.
29.15.2 By the authority of any governmental, regulatory or other authority or other person -
29.15.2.1 the management of any member of the Covenant Group or any Security Provider is wholly
or substantially replaced; or
150
29.15.2.2 all or a majority of the shares of a member of the Covenant Group or a Security Provider
or the whole or any part of its assets or revenues is seized, expropriated or compulsorily
acquired.
29.16
Material Agreements
29.16.1 A member of the Covenant Group does not comply with any material provision of a Material
Agreement to which it is a party which would allow the counterparty to terminate (whether with
or without notice).
29.16.2 Any Material Agreement ceases to be in full force and effect by operation of law or by reason
of the default of any member of the Covenant Group.
29.17
Acceleration
If an Event of Default is continuing, the Facility Agent may, by notice to the Term/RCF Borrower and
without prejudice to any other rights or remedies which a Finance Party may have under any Finance
Document or at law -
29.17.1 cancel all or any part of the Total Commitments (whereupon they shall immediately be
cancelled);
29.17.2 declare that all or part of the Loans, together with accrued interest, all other Senior Term Facility
Outstandings under the Senior Term Facility and all other Senior RCF Outstandings under the
Senior RCF -
29.17.2.1 are immediately due and payable (whereupon they shall become immediately due and
payable); and/or
29.17.2.2 are payable on demand (whereupon they shall immediately become payable on demand
by the Facility Agent);
29.17.3 claim immediate payment of all or part of any Loans and other Senior Facility Outstandings
(whereupon they shall be immediately payable); and/or
29.17.4 exercise or direct the Debt Guarantor to exercise any or all of its rights, remedies, powers or
discretions under the Security Documents.
30
CHANGES TO THE LENDERS
30.1
Cessions and delegations by the Lenders
151
30.1.1 Subject to this clause
, a Lender (the
Existing Lender
) may cede and/or delegate (a
Transfer
) any or all of its rights and/or obligations under this Agreement, any Senior Facility
Agreement to which it is a party and/or under any other Finance Document to another bank or
financial institution or to a trust, fund or other entity which is regularly engaged in or established
for the purpose of making, purchasing or investing in loans, securities or other financial assets
(a
New Lender
), provided that an Existing Lender shall be required to Transfer a
pro rata
portion of its rights and obligations under each Senior Facility Agreement in relation to any
Transfer.
30.1.2 Each Obligor consents to any splitting of claims which may arise as a result of a Transfer
implemented under this Agreement.
30.2
Conditions of Transfer
30.2.1 The consent of the Term/RCF Borrower is not required for a Transfer by an Existing Lender if
-
30.2.1.1 the New Lender is another Lender or an Affiliate of a Lender;
30.2.1.2 the New Lender is a person identified in Annexure H (Acceptable Lenders); or
30.2.1.3 a Default is continuing.
30.2.2 Except as detailed above, the express consent of the Term/RCF Borrower is required for a
Transfer to a prospective New Lender. Where the consent of the Term/RCF Borrower to a
Transfer is required that consent must not be unreasonably withheld or delayed.
30.2.3 The Term/RCF Borrower will be deemed to have given its consent 10 Business Days after the
Existing Lender has requested it, unless consent is expressly refused by the Term/RCF
Borrower within that time.
30.2.4 A Transfer will only be effective if the procedure set out in clause
30.2.5 Each New Lender, by executing the relevant Transfer Certificate confirms, for the avoidance of
doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver
that has been approved by or on behalf of the requisite Lender or Lenders in accordance with
this Agreement on or prior to the date on which the Transfer becomes effective in accordance
with this Agreement and that it is bound by that decision to the same extent as the Existing
Lender would have been had it remained a Lender.
30.3
Limitation of responsibility of Existing Lenders
30.3.1 Unless expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for -
152
30.3.1.1 the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents
or any other documents;
30.3.1.2 the financial condition of any Obligor;
30.3.1.3 the performance and observance by any Obligor of its obligations under the Finance
Documents or any other documents; or
30.3.1.4 the accuracy of any statements (whether written or oral) made in or in connection with any
Finance Document or any other document,
and any representations or warranties implied by law are excluded.
30.3.2 Each New Lender confirms to the Existing Lender and the other Finance Parties that it -
30.3.2.1 has made (and shall continue to make) its own independent investigation and assessment
of the financial condition and affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied exclusively on any information
provided to it by the Existing Lender in connection with any Finance Document; and
30.3.2.2 will continue to make its own independent appraisal of the creditworthiness of each
Obligor and its related entities whilst any amount is or may be outstanding under the
Finance Documents or any Commitment is in force.
30.3.3 Nothing in any Finance Document obliges an Existing Lender to -
30.3.3.1 accept a re-Transfer from a New Lender of any of the rights and obligations Transferred
under this clause
; or
30.3.3.2 support any losses directly or indirectly incurred by the New Lender by reason of the non-
performance by any Obligor of its obligations under the Finance Documents or otherwise.
30.4
Procedure for transfer
30.4.1 Subject to the conditions set out in clause
clause
Certificate delivered to it by the Existing Lender and the New Lender. The Facility Agent shall,
subject to clause
, as soon as reasonably practicable after receipt by it of a duly
completed Transfer Certificate appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.
153
30.4.2 The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the
Existing Lender and the New Lender once it is satisfied it has complied with all necessary know
your customer or other similar checks under all applicable laws and regulations that apply to it
(if any) in relation to the transfer to such New Lender.
30.4.3 On the Transfer Date -
30.4.3.1 the Transfer shall take effect under the Finance Documents so that the rights and/or
obligations which are the subject of the Transfer shall be ceded and delegated by the
Existing Lender to the New Lender (being the
Transferred Rights and Obligations
);
30.4.3.2 each of the Obligors shall perform their obligations and exercise their rights in relation to
the Transferred Rights and Obligations in favour of or against the New Lender, as the
case may be;
30.4.3.3 the Facility Agent, the New Lender and other Lenders shall acquire the same rights and
assume the same obligations between themselves as they would have acquired and
assumed had the New Lender been an Original Senior Lender with the rights and/or
obligations comprising the Transferred Rights and Obligations;
30.4.3.4 the Existing Lender shall be released from further obligations to each other Lender under
the Finance Documents to the extent of the Transferred Rights and Obligations; and
30.4.3.5 the New Lender shall become a Party as a
Lender
.
30.5
Costs resulting from a change of Lender
If -
30.5.1 a Lender Transfers any of its rights or obligations under the Finance Documents; and
30.5.2 as a result of circumstances existing at the date the Transfer occurs, an Obligor would be
obliged to make a Tax Payment (as defined in clause
pay any Increased Cost (as defined in clause
then, unless the Transfer is made by a Lender in order to mitigate any circumstances giving rise to
the Tax Payment, Increased Cost or a right to be prepaid and/or cancelled by reason of illegality, the
Obligor need only pay that Tax Payment or Increased Cost to the same extent that it would have
been obliged to if the Transfer had not occurred.
154
30.6
Copy of Transfer Certificate to the Term/RCF Borrower
The Facility Agent shall send to the Term/RCF Borrower a copy of each Transfer Certificate executed
by it in accordance with clause
any such Transfer Certificate.
30.7
Accession of Hedge Counterparties
30.7.1 No person providing hedging arrangements to any Obligor shall be entitled to share in any
Transaction Security or to benefit from any guarantee or indemnity in respect of any amounts
which are or may become owing to it under those hedging arrangements, and no such amount
will be treated as Hedge Counterparty Outstandings, unless that person is or becomes party
(as Hedge Counterparty) to -
30.7.1.1 this Agreement;
30.7.1.2 the Intercreditor Agreement; and
30.7.1.3 the Subordination Agreement (to the extent one is entered into).
30.7.2 A person shall not become party to any Finance Document as a Hedge Counterparty (and no
amounts which are or may become owing to it will be treated as Hedge Counterparty
Outstandings for purposes of a Finance Document), unless -
30.7.2.1 the Facility Agent has consented to that person becoming a Hedge Counterparty (except
that this requirement will not apply to a person which is a Lender or an Affiliate of a
Lender);
30.7.2.2 as at the date of its proposed accession to this Agreement, the Hedging Documents to
which it is party comply with the terms of this Agreement; and
30.7.2.3 that person has executed and delivered to the Facility Agent an Accession Letter.
30.7.3 Subject to the requirements of this clause
, with effect from the date of acceptance by the
Facility Agent of an Accession Letter duly executed and delivered to the Facility Agent by a
person who proposes to accede to the Finance Documents as a Hedge Counterparty (or, if
later, the date specified in that Accession Letter), that person shall become party to this
Agreement, the Intercreditor Agreement, the Subordination Agreement (to the extent one is
entered into) and the other Finance Documents as a Hedge Counterparty and shall assume
the same obligations and become entitled to the same rights, as if it had been an original party
to those Finance Documents as a Hedge Counterparty.
30.8
Accession of WCF Lenders
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30.8.1 No person providing a Working Capital Facility to any Obligor shall be entitled to share in any
Transaction Security or to benefit from any guarantee or indemnity in respect of any amounts
which are or may become owing to it under that Working Capital Facility, and no such amount
will be treated as WCF Outstandings, unless that person is or becomes party (as WCF Lender)
to -
30.8.1.1 this Agreement;
30.8.1.2 the Intercreditor Agreement; and
30.8.1.3 the Subordination Agreement (to the extent one is entered into).
30.8.2 A person shall not become party to any Finance Document as a WCF Lender (and no amounts
which are or may become owing to it will be treated as WCF Outstandings for purposes of a
Finance Document), unless -
30.8.2.1 the Facility Agent has consented to that person becoming a WCF Lender (except that this
requirement will not apply to a person which is a Lender or an Affiliate of a Lender); and
30.8.2.2 that person has executed and delivered to the Facility Agent an Accession Letter.
30.8.3 Subject to the requirements of this clause
, with effect from the date of acceptance by the
Facility Agent of an Accession Letter duly executed and delivered to the Facility Agent by a
person who proposes to accede to the Finance Documents as a WCF Lender (or, if later, the
date specified in that Accession Letter), that person shall become party to this Agreement, the
Intercreditor Agreement, the Subordination Agreement (to the extent one is entered into) and
the other Finance Documents as a WCF Lender and shall assume the same obligations and
become entitled to the same rights, as if it had been an original party to those Finance
Documents as a WCF Lender.
31
CHANGES TO THE OBLIGORS
31.1
Transfers by the Obligors
No Obligor may cede any of its rights nor delegate any of its obligations under the Finance
Documents.
31.2
Additional WCF Borrower
31.2.1 Subject to compliance with the provisions of clause
Term/RCF Borrower may request that (i) any wholly-owned member of the Covenant Group
becomes an Additional WCF Borrower. That member of the Covenant Group shall become a
WCF Borrower if -
31.2.1.1 all the Lenders approve the addition of that member;
156
31.2.1.2 the Term/RCF Borrower delivers to the Facility Agent a duly completed and executed
Accession Letter;
31.2.1.3 the Term/RCF Borrower confirms that no Default is continuing or would occur as a result
of that member of the Covenant Group becoming an Additional WCF Borrower; and
31.2.1.4 the Facility Agent has received all of the documents and other evidence listed in Part II of
Conditions precedent
) in relation to the Additional WCF Borrower, each in
form and substance satisfactory to the Facility Agent.
31.2.2 The Facility Agent shall notify the Term/RCF Borrower and the Lenders as soon as reasonably
practicable upon being satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of
Conditions precedent
).
31.3
Additional Guarantors
31.3.1 If the Term/RCF Borrower -
31.3.1.1 requests that a member of the Covenant Group becomes an Additional Guarantor and if
the Lenders consent thereto; or
31.3.1.2 is required under this Agreement to ensure that any member of the Covenant Group
becomes an Additional Guarantor (including without limitation, if a member of the
Covenant Group becomes a WCF Borrower or a Material Subsidiary after the Original
Signature Date),
it must give not less than 10 Business Days' prior notice to the Facility Agent.
31.3.2 The Term RCF Borrower shall ensure that any member of the Covenant Group which becomes
a Material Subsidiary after the Original Signature Date becomes an Additional Guarantor by no
later than the date 10 Business Days after the date on which that entity becomes a Material
Subsidiary.
31.3.3 The Term/RCF Borrower must ensure that any such member of the Covenant Group (including
Adumo and its subsidiaries listed above, once they become members of the Covenant Group)
supplies to the Facility Agent all the documents and evidence set out in Part II of
(
Conditions Precedent
), in form and substance satisfactory to it.
31.3.4 The relevant member of the Covenant Group (subject to the Lenders' prior written consent in
circumstances where the Term/RCF Borrower has requested that such member of the
Covenant Group becomes a Guarantor to ensure that compliance with clause
31.3.4.1 will become an Additional Guarantor ;
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31.3.4.2 will accede and become bound as an Indemnifier under (and as defined in) the Counter-
indemnity Agreement;
31.3.4.3 if incorporated in South Africa, will accede and become bound as an Additional Cedent
under (and as defined in) the Security Cession & Pledge and will, to the extent relevant,
grant any other Security referred to in clause
Subsidiaries) of Annexure G (Transaction Security);
31.3.4.4 if incorporated in a jurisdiction other than South Africa, must grant such Security as may
be required in terms of clause
of Annexure G (Transaction Security) under the laws of its jurisdiction of incorporation or
formation,
31.3.5 on the date of the Accession Letter executed by it and provided that the Facility Agent is
satisfied that such entity become an Additional Guarantor.
31.4
Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary that the
Repeating Representations are true and correct in relation to it as at the date of delivery as if made
by reference to the facts and circumstances then existing.
31.5
Resignation of a Guarantor
31.5.1 The Term/RCF Borrower may request that a Guarantor (other than Holdco or a Borrower)
ceases to be a Guarantor and an Indemnifier under the Counter-indemnity Agreement, and be
released from any Security Document to which it is a party, by delivering to the Facility Agent
a Resignation Letter.
31.5.2 The Facility Agent shall accept a Resignation Letter and notify the Term/RCF Borrower and the
Lenders of its acceptance if -
31.5.2.1 no Default is continuing or would result from the acceptance of the Resignation Letter
(and the Term/RCF Borrower has confirmed this is the case); and
31.5.2.2 all the Lenders have consented to the Term/RCF Borrower's request.
32
FACILITY AGENT
32.1 Under the Intercreditor Agreement –
32.1.1 each Lender has appointed the Facility Agent to act as its facility agent under and in connection
with the Finance Documents;
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32.1.2 each Hedge Counterparty and WCF Lender has appointed the Facility Agent to act as its facility
agent under and in connection with the Finance Documents, other than the day-to-day
administration of the Hedging Documents and the WCF Documents,
32.1.3 WesBank has appointed the Facility Agent to act as its facility agent under and in connection
with the Finance, other than the day-to-day administration of the WesBank Agreements;
including, in respect of the Senior Term Facilities and the Senior RCF, the disbursement of Loans,
the receipt of amounts payable to the Lenders under the Finance Documents, any amendments of,
or waivers or consents under, the applicable Finance Documents, the receipt of documents and
information required to be delivered to the Lenders under the Finance Documents, the receipt of
notices from the Term/RCF Borrower to the Finance Parties (or any of them) under the Finance
Documents, and the giving of notices to the Term/RCF Borrower by the Finance Parties (or any of
them) under the Finance Documents (together, the
Agency Matters
).
32.2 A reference to the Facility Agent in any Finance Document, is a reference to the Facility Agent acting
in its capacity as such.
32.3 The Obligors –
32.3.1 may assume that the Facility Agent is duly authorised to represent the other Finance Parties in
all Agency Matters and that all actions taken by the Facility Agent in connection with an Agency
Matter are duly authorised; and
32.3.2 are not entitled nor obliged directly to deal with, or act on the instructions of, a Finance Party
other than the Facility Agent, unless expressly otherwise provided in a Finance Document.
32.4 A reference in a Finance Document to any action undertaken or required to be undertaken by the
Facility Agent in relation to an Agency Matter (including the exercise of any discretion under the
Finance Documents) is a reference to the Facility Agent acting as the duly authorised agent of the
Finance Parties.
32.5 An Obligor shall have no claim against the Facility Agent for the recovery of any losses or damages
which it may suffer as a result of anything which the Facility Agent does, or omits to do, in performing
its functions as the Facility Agent under the Finance Documents (unless such losses or damages
arise by reason of gross negligence or wilful default of the Facility Agent alone).
33
SHARING AMONG THE FINANCE PARTIES
33.1
Payments to Finance Parties
If a Finance Party (a
Recovering Finance Party
) receives or recovers any amount from an Obligor
other than in accordance with clause
Recovered Amount
) and applies
that amount to a payment due under the Finance Documents then -
159
33.1.1 the Recovering Finance Party shall, within 3 Business Days, notify details of the receipt or
recovery, to the Facility Agent;
33.1.2 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
Mechanics), without taking account of any Tax which would be imposed on the Facility Agent
in relation to the receipt, recovery or distribution; and
33.1.3 the Recovering Finance Party shall, within 3 Business Days of demand by the Facility Agent,
pay to the Facility Agent an amount (the
Sharing Payment
) equal to such receipt or recovery
less any amount which the Facility Agent determines may be retained by the Recovering
Finance Party as its share of any payment to be made.
33.2
Redistribution of payments
The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and
distribute it between the Finance Parties (other than the Recovering Finance Party) (the
Sharing
Finance Parties
) in accordance with the Intercreditor Agreement towards the obligations of that
Obligor to the Sharing Finance Parties.
33.3
Recovering Finance Party's rights
33.3.1 On a distribution by the Facility Agent under clause
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 that Obligor.
33.3.2 If and to the extent that the Recovering Finance Party is not able to rely on its rights under
clause
been paid by the relevant Obligor), the Obligors shall be liable to the Recovering Finance Party
for a debt equal to the Sharing Payment which is immediately due and payable.
33.4
Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes
repayable and is repaid by that Recovering Finance Party, then -
33.4.1 each Sharing Finance Party shall, upon request of the Facility Agent, pay to the Facility Agent
for the account of that Recovering Finance Party an amount equal to the appropriate part of its
share of the Sharing Payment (together with an amount as is necessary to reimburse that
Recovering Finance Party for its proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay) (the Redistributed Amount); and
160
33.4.2 as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to
the relevant Redistributed Amount will be treated as not having been paid by that Obligor.
33.5
Exceptions
33.5.1 This clause
making any payment pursuant to this clause, have a valid and enforceable claim against the
Obligors.
33.5.2 A Recovering Finance Party is not obliged to share with any other Finance Party any amount
which the Recovering Finance Party has received or recovered as a result of taking legal or
arbitration proceedings, if -
33.5.2.1 it notified that other Finance Party of the legal or arbitration proceedings; and
33.5.2.2 that other Finance Party had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable having received notice
and did not take separate legal or arbitration proceedings.
34
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will -
34.1 interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever
manner it thinks fit;
34.2 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
34.3 oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any
computations in respect of Tax.
35
FINANCE PARTY RIGHTS
Clauses
benefit of the Finance Parties only. The Obligors do not have any rights or benefits under those clauses.
36
PAYMENT MECHANICS
36.1
Payments to the Facility Agent
36.1.1 On each date on which an Obligor or a Lender is required to make a payment under a Finance
Document (other than a Hedging Document or a WCF Agreement or a WesBank Agreement),
that Obligor or Lender shall make the same available to the Facility Agent (unless a contrary
indication appears in a Finance Document) in Rand for value by no later than 12h00
(Johannesburg time) on the due date and in such funds specified by the Facility Agent.
161
36.1.2 All such payments shall be made to such account in South Africa with such bank as the Facility
Agent may specify by notice to the Term/RCF Borrower. Until otherwise notified by the Facility
Agent from time to time, its bank account details for these purposes are as follows -
Account Name - XXX
Bank - XXX
Account Number XXX
Branch Name - XXX
Branch Code - XXX
Reference - XXX
36.2
Distributions to an Obligor
The Facility Agent may (with the consent of the Obligor or in accordance with clause
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.
36.3
Clawback
36.3.1 Where a sum is to be paid to the Facility Agent under the Finance Documents for another Party,
the Facility Agent is not obliged to pay that sum to that other Party (or to enter into or perform
any related exchange contract) until it has been able to establish to its satisfaction that it has
actually received that sum.
36.3.2 If the Facility Agent pays an amount to another Party and it proves to be the case that the
Facility Agent had not actually received that amount, then the Party to whom that amount (or
the proceeds of any related exchange contract) was paid by the Facility Agent shall on demand
refund the same to the Facility Agent together with interest on that amount from the date of
payment to the date of receipt by the Facility Agent, calculated by the Facility Agent to reflect
its cost of funds.
36.4
No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall be calculated and be
made without (and free and clear of any deduction for) set-off or counterclaim (except, in relation to
a Hedging Document, as expressly otherwise permitted under clause
36.5
Partial payments
36.5.1 Subject to clause
payments as between the Senior Term Facility Lenders and Senior RCF Lenders, if the Facility
Agent receives a payment that is insufficient to discharge all the amounts then due and payable
by an Obligor under the Finance Documents, the Facility Agent shall apply that payment
towards the obligations of that Obligor under the Finance Documents in the following order -
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36.5.1.1
first
, in or towards payment
pro rata
Agent under the Finance Documents;
36.5.1.2
second
, in or towards payment
pro rata
commission due but unpaid under the Finance Documents (other than in respect of a
termination or a close-out of a Hedging Document);
36.5.1.3
third
, in or towards payment
pro rata
Documents and amounts payable under the Hedging Document in respect of a
termination or a close-out of a Hedging Document;
36.5.1.4
fourth
, in or towards payment
pro rata
Documents.
36.5.2 This clause
with clause
36.6
Business Days
36.6.1 If a payment under the Finance Documents is due on a day which is not a Business Day, the
due date for that payment will instead be the next Business Day in the same calendar month
(if there is one) or the preceding Business Day (if there is not).
36.6.2 During any extension of the due date for payment of any principal or Unpaid Sum under a
Senior Facility Agreement interest is payable on the principal or Unpaid Sum at the rate payable
on the original due date, subject to any provisions in a Senior Facility Agreement relating to the
accrual and payment of default interest.
36.7
Currency of account
36.7.1 Subject to the provisions of this clause below, Rand is the currency of account and payment
for any sum due from an Obligor under any Finance Document.
36.7.2 Each payment in respect of costs, expenses or Taxes shall be made in the currency in which
the costs, expenses or Taxes are incurred.
36.7.3 Any amount expressed to be payable in a currency other than Rand shall be paid in that other
currency.
36.8
Disruption to Payment Systems etc.
If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the
Facility Agent is notified by the Term/RCF Borrower that a Disruption Event has occurred -
163
36.8.1 the Facility Agent may, and shall if requested to do so by the Term/RCF Borrower, consult with
the Term/RCF Borrower with a view to agreeing with the Term/RCF Borrower such changes to
the operation or administration of the Facilities as the Facility Agent may deem necessary in
the circumstances;
36.8.2 the Facility Agent shall not be obliged to consult with the Term/RCF Borrower in relation to any
changes mentioned in clause
circumstances and, in any event, shall have no obligation to agree to such changes;
36.8.3 the Facility Agent shall consult with the Finance Parties in relation to any changes mentioned
in clause
do so in the circumstances;
36.8.4 any such changes agreed upon by the Facility Agent and the Term/RCF Borrower shall
(whether or not it is finally determined that a Disruption Event has occurred) be binding upon
the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance
Documents notwithstanding the provisions of clause
36.8.5 the Facility Agent shall not be liable for any damages, costs or losses whatsoever arising as a
result of its taking, or failing to take, any actions pursuant to or in connection with this clause
; and
36.8.6 the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to clause
37
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.
38
CALCULATIONS AND CERTIFICATES
38.1
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.
38.2
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.
164
38.3
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).
39
NOTICES
39.1
Communications in writing
Any communication to be made under or in connection with the Finance Documents shall be made
in writing and, unless otherwise stated, may be made by email or letter.
39.2
Addresses
The address and email address (and the department or officer, if any, for whose attention the
communication is to be made) of each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents is -
39.2.1 in the case of Holdco -
Address - President Place, Jan Smuts Ave &, Bolton Rd, Rosebank,
Johannesburg, 2196
Email address - XXX with a copy to XXX
For the attention of - Chief Financial Officer - Daniel Smith
39.2.2 the case of the Term/RCF Borrower -
Address - President Place, Jan Smuts Ave &, Bolton Rd, Rosebank,
Johannesburg, 2196
Email address - XXX with a copy to XXX
For the attention of - Chief Financial Officer - Daniel Smith
39.2.3 in the case of each other Obligor, the address and other details specified for the Term/RCF
Borrower in clause
39.2.4 in the case of the Facility Agent (in its capacity as such) -
Address - 1 Merchant Place - 16th Floor
cnr Fredman Drive and Rivonia Road
Sandton, 2196
Email address - XXX
165
For the attention of - Head of Transaction Management - Investment Banking Division
39.2.5 in the case of the Debt Guarantor -
Address - TMF Building
2 Conference Lane, Bridgewater One, Block 1, Bridgeways
Precinct, Century City, 7446
Email address - XXX
For the attention of - The Managing Director
39.2.6 in the case of each Original Senior Lender (in its capacity as such), the address and other
details specified opposite its name in Part II of
39.2.7 in the case of any other Lender or Obligor, those details notified in writing to the Facility Agent
on or before the date on which it becomes a Party,
or any substitute address or email address or department or officer as the Party may notify to the
Facility Agent (or the Facility Agent may notify to the other Parties, if a change is made by the Facility
Agent) by not less than five Business Days' notice.
39.3
Domicilia
39.3.1 Each Party chooses its physical address provided under or pursuant to clause
its
domicilium citandi et executandi
a Finance Document may be served.
39.3.2 Any Party may by written notice to the other Parties change its
domicilium
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 under clause
39.4
Delivery
39.4.1 Any communication or document made or delivered by one person to another under or in
connection with the Finance Documents will -
166
39.4.1.1 if by way of email, be deemed to have been received on the first Business Day following
the date of transmission;
39.4.1.2 if delivered by hand, be deemed to have been received at the time of delivery; and
39.4.1.3 if by way of courier service, be deemed to have been received on the seventh Business
Day following the date of such sending,
and provided, if a particular department or officer is specified as part of its address details under
clause
, if such communication or document is addressed to that department or
officer.
39.4.2 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).
39.5
Obligors
39.5.1 Subject to clause
, all communications under the Finance Documents to or from the
Term/RCF Borrower must be sent through the Facility Agent. In respect of a Hedging Document
-
39.5.2 this requirement applies to ordinary course settlement, valuation and rate reset notices, only if
a Default is continuing;
39.5.3 any communication in connection with a default or a termination notice must be copied to the
Facility Agent at the time it is given to any other Party.
39.5.4 Subject to clause
, all communications under the Finance Documents to or from an
Obligor (other than the Term/RCF Borrower) must be sent through the Term/RCF Borrower.
39.5.5 Each Obligor (other than the Term/RCF Borrower) by its execution of this Agreement or an
Accession Letter irrevocably appoints the Term/RCF Borrower (acting through one or more
authorised signatories) to act on its behalf as its agent in relation to the Finance Documents
and irrevocably authorises -
167
39.5.5.1 the Term/RCF Borrower on its behalf to supply all information concerning itself
contemplated by this Agreement to the Finance Parties and to give all notices, information
and instructions (including, in the case of a Borrower, Utilisation Requests) to execute on
its behalf all documents under or in connection with the Finance Documents (including
any Accession Letter), to make such agreements and to effect the relevant amendments,
supplements and variations capable of being given, made or effected by any Obligor
notwithstanding that they may affect the Obligor, without further reference to or the
consent of that Obligor; and
39.5.5.2 each Finance Party to give any notice, demand or other communication to that Obligor
pursuant to the Finance Documents to the Term/RCF Borrower,
and in each case the Obligor shall be bound as though the Obligor itself had given the notices,
information and instructions or executed or made the agreements or effected the amendments,
supplements or variations, or received the relevant notice, demand or other communication.
39.5.6 Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement,
variation, notice or other communication given or made by the Term/RCF Borrower or given to
the Term/RCF Borrower under any Finance Document on behalf of another Obligor or in
connection with any Finance Document (whether or not known to any other Obligor and
whether occurring before or after such other Obligor became an Obligor under any Finance
Document) shall be binding for all purposes on that Obligor as if that Obligor had expressly
made, given or concurred with it.
39.5.7 The respective liabilities of each of the Obligors under the Finance Documents shall not be in
any way affected by -
39.5.7.1 any actual or purported irregularity in any act done, or failure to act, by the Term/RCF
Borrower;
39.5.7.2 the Term/RCF Borrower acting (or purporting to act) in any respect outside any authority
conferred upon it by any Obligor; or
39.5.7.3 any actual or purported failure by, or inability of, the Term/RCF Borrower to inform any
Obligor of receipt by it of any notification under the Finance Documents.
39.5.8 In the event of any conflict between any notices or other communications of the Term/RCF
Borrower and any other Obligor, those of the Term/RCF Borrower shall prevail.
39.5.9 Any communication given to the Term/RCF Borrower in connection with a Finance Document
will be deemed to have been given also to the other Obligors.
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39.5.10 A Finance Party may assume that any communication made by the Term/RCF Borrower on
behalf of an Obligor is made with the knowledge and consent of that Obligor.
39.5.11 The Parties record that -
39.5.11.1 a WCF Lender shall be entitled to communicate and transact directly with any member of
the Covenant Group in respect of the day to day administration and operation of the
applicable Working Capital Facility;
39.5.11.2 a Hedge Counterparty shall be entitled to communicate and transact directly with any
member of the Covenant Group in respect of the day to day administration and operation
of the applicable Hedging Document to which it is a Party; and
39.5.11.3 WesBank shall be entitled to communicate and transact directly with any member of the
Covenant Group in respect of the day to day administration and operation of the applicable
WesBank Facility.
39.6
Notification of address and email address
Upon receipt of notification of an address or email address or change of address or email address
pursuant to clause
, or changing its own address or email address, the Facility Agent
shall notify the other Parties as soon as reasonably practicable.
39.7
Electronic communication
39.7.1 Any communication to be made between the Facility Agent and a Lender under or in connection
with the Finance Documents may be made by electronic mail or other electronic means, if the
Facility Agent and the relevant Lender -
39.7.1.1 agree that, unless and until notified to the contrary, this is to be an accepted form of
communication;
39.7.1.2 notify each other in writing of their electronic mail address and/or any other information
required to enable the sending and receipt of information by that means; and
39.7.1.3 notify each other of any change to their address or any other such information supplied
by them.
39.7.2 Any electronic communication made between the Facility Agent and a Lender will be effective
only when actually received in readable form and in the case of any electronic communication
made by a Lender to the Facility Agent only if it is addressed in such a manner as the Facility
Agent shall specify for this purpose.
39.8
English language
169
Any notice or other document given under or in connection with any Finance Document must be in
English.
40
AMENDMENTS AND WAIVERS
40.1 A term of the Finance Documents may be amended or waived only with the consent of the Facility
Agent (acting on the instructions of the applicable Finance Parties under the Intercreditor Agreement)
and the Obligors.
40.2 The Facility Agent may effect and execute, on behalf of any Finance Party, any amendment or waiver
permitted by this clause.
40.3 No amendment or waiver contemplated by this clause
writing and signed by or on behalf of the relevant Parties.
40.4 An amendment of any provision of clause
consent of or notice to any Obligor, provided that such amendment does not place any additional
obligation or liability on any Obligor.
40.5 Each Obligor agrees to any such amendment or waiver permitted by this clause
to by the Term/RCF Borrower. This includes any amendment or waiver which would, but for this
clause
, require the consent of all of the Obligors.
41
CONFIDENTIALITY
41.1
Confidential Information
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to
anyone, save to the extent permitted by clause
, and to ensure that all Confidential
Information is protected with security measures and a degree of care that would apply to its own
confidential information.
41.2
Disclosure of Confidential Information
Any Finance Party may disclose -
41.2.1 to any of its Affiliates and Related Funds and any of its or their officers, directors, employees,
professional advisers, auditors, partners and Representatives such Confidential Information as
that Finance Party shall consider appropriate if any person to whom the Confidential
Information is to be given pursuant to this clause
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;
170
41.2.2 to any other person -
41.2.2.1 to (or through) whom it Transfers (or may potentially Transfer) all or any of its rights and
obligations under this Agreement and to any of that person's Affiliates, Related Funds,
Representatives and professional advisers;
41.2.2.2 with (or through) whom it enters into (or may potentially enter into), whether directly or
indirectly, any sub-participation or other credit participation in relation to, or any other
transaction under which payments are to be made or may be made by reference to, one
or more Finance Documents and/or one or more Obligors and to any of that person's
Affiliates, Related Funds, Representatives and professional advisers;
41.2.2.3 appointed by any Finance Party or by a person to whom clauses
pursuant to the Finance Documents on its behalf;
41.2.2.4 who invests in or otherwise finances (or may potentially invest in or otherwise finance),
directly or indirectly, any transaction referred to in clauses
41.2.2.5 to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority, rating
agency or similar body, the rules of any relevant stock exchange or pursuant to any
applicable law or regulation;
41.2.2.6 to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitration, administrative or other investigations, proceedings or
disputes;
41.2.2.7 who is a Party; or
41.2.2.8 with the express prior consent of the Term/RCF Borrower,
41.2.3 in each case, such Confidential Information as that Finance Party shall consider appropriate if
-
41.2.3.1.1 in relation to clauses
,
, the person to whom the
Confidential Information is to be given has entered into a Confidentiality Undertaking
except that there shall be no requirement for a Confidentiality Undertaking if the
recipient is a professional adviser and is subject to professional obligations to
maintain the confidentiality of the Confidential Information;
171
41.2.3.1.2 in relation to clause
, the person to whom the Confidential Information
is to be given has entered into a Confidentiality Undertaking or is otherwise bound
by requirements of confidentiality in relation to the Confidential Information they
receive and is informed that some or all of such Confidential Information may be
price-sensitive information; and
41.2.3.1.3 in relation to clauses
,
, the person to whom the
Confidential Information is to be given is informed of its confidential nature and that
some or all of such Confidential Information may be price-sensitive information
except that there shall be no requirement to so inform if, in the opinion of that Finance
Party, it is not practicable so to do in the circumstances; and
41.2.4 to any rating agency (including its professional advisers) such Confidential Information as may
be required to be disclosed to enable such rating agency to carry out its normal rating activities
in relation to any Finance Party, the Finance Documents and/or the Obligors.
41.3
Entire agreement
This clause
the Finance Parties under the Finance Documents regarding Confidential Information and
supersedes any previous agreement, whether express or implied, regarding Confidential
Information.
41.4
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.
41.5
Notification of disclosure
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the
Term/RCF Borrower -
41.5.1 of the circumstances of any disclosure of Confidential Information made pursuant to clause
clause during the ordinary course of its supervisory or regulatory function; and
41.5.2 upon becoming aware that Confidential Information has been disclosed in breach of this clause
41.6
Continuing obligations
172
The obligations in this clause
on each Finance Party for a period of twelve months from the earlier of -
41.6.1 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
41.6.2 the date on which all amounts on which such Finance Party otherwise ceases to be a Finance
Party.
42
GENERAL PROVISIONS
42.1
Sole agreement
The Finance Documents constitute the sole record of the agreement between the Parties in regard
to the subject matter thereof.
42.2
No implied terms
No Party shall be bound by any express or implied term, representation, warranty, promise or the
like, not recorded in a Finance Document.
42.3
Rights and remedies
42.3.1 No failure to exercise, nor any delay in exercising, on the part of any Finance Party, any right
or remedy under the Finance Documents shall operate as a waiver, nor shall any single or
partial exercise of any right or remedy prevent any further or other exercise or the exercise of
any other right or remedy. The rights and remedies of each Finance Party under the Finance
Documents -
42.3.1.1 are cumulative and not exclusive of its rights under the general law;
42.3.1.2 may be exercised as often as the Finance Party requires; and
42.3.1.3 may be waived only in writing and specifically.
42.3.2 Delay in the exercise or non-exercise of any right is not a waiver of that right.
42.4
Extensions and waivers
173
No latitude, extension of time or other indulgence which may be given or allowed by any Party to
any other Party in respect of the performance of any obligation or enforcement of any right under a
Finance Document, and no single or partial exercise of any right by any Party, shall be construed to
be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any
of that Party’s rights under or in connection with a Finance Document or estop such Party from
enforcing, at any time and without notice, strict and punctual compliance with each and every
provision or term of a Finance Document.
42.5
Partial invalidity
If, at any time, any provision of a Finance Document is or becomes illegal, invalid, unenforceable or
inoperable in any respect under any law of any jurisdiction, neither the legality, validity, enforceability
or operation of the remaining provisions nor the legality, validity, enforceability or operation of such
provision under the law of any other jurisdiction will in any way be affected or impaired. The term
inoperable
cancellation.
42.6
Renunciation of benefits
Each Obligor renounces, to the extent permitted under applicable law, the benefits of each of the
legal exceptions of excussion, division, revision of accounts, no value received,
errore calculi
,
non
causa debiti
,
non numeratae pecuniae
meaning of each such legal exception and the effect of such renunciation.
42.7
Further assurances
Each Obligor must perform, or procure the performance, of all further things, and execute and deliver
(or procure the execution and delivery) of all further documents, as may be required by any
applicable law or regulation or as may be necessary or desirable to implement or give effect to this
Agreement and the other Finance Documents and the transactions contemplated therein.
42.8
Independent advice
Each Obligor acknowledges that it has been free to secure independent legal and other advice as
to the nature and effect of all of the provisions of the Finance Documents and that it has either taken
such independent legal and other advice or dispensed with the necessity of doing so. Further, each
Obligor acknowledges that all of the provisions of each Finance Document and the restrictions
therein contained are part of the overall intention of the Parties in connection with the Finance
Documents.
42.9
Counterparts
174
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.
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 a Finance Document or any non-contractual obligation arising
out of or in connection with a Finance Document) (a
dispute
).
44.2 The Parties agree that the courts of South Africa are the most appropriate and convenient courts to
settle disputes. The Parties agree not to argue to the contrary and waive objection to this court on
the grounds of inconvenient forum or otherwise in relation to proceedings in connection with any
Finance Document.
44.3 This clause
prevented from taking proceedings relating to a dispute in any other court with jurisdiction. To the
extent allowed by law, a Finance Party may take concurrent proceedings in any number of
jurisdictions.
45
WAIVER OF IMMUNITY
Each Obligor irrevocably and unconditionally -
45.1 agrees not to claim any immunity from suit, execution, attachment or other legal process brought by
a Finance Party against it in relation to a Finance Document, and to ensure that no such claim is
made on its behalf;
45.2 consents generally to the giving of any relief or the issue of any process in connection with those
proceedings; and
45.3 waives any right it may have to claim for itself or any of its assets immunity from suit, execution,
attachment or other legal process.
[SIGNATURE PAGES HAVE BEEN INTENTIONALLY OMMITTED]
175
ANNEXURE
Part I
The Original Obligors
Term/RCF Borrower
Jurisdiction of
Incorporation /
formation
Registration
number
(or equivalent, if
any)
1
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
Name of WCF Borrowers
Jurisdiction of
Incorporation /
formation
Registration
number
(or equivalent, if
any)
1
Cash Connect Management Solutions
Proprietary Limited
South Africa
2006/010530/07
2
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
3
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
4
Adumo (RF) Proprietary Limited
South Africa
2017/540380/07
5
Cash Connect Rentals Proprietary
Limited
South Africa
2009/007139/07
6
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
7
Lesaka Alternative Digital Products
Proprietary Limited (previously named
"EasyPay Proprietary Limited")
South Africa
1983/008597/07
176
Name of Original Guarantors
Jurisdiction of
Incorporation /
formation
Registration
number
(or equivalent, if
any)
1
Lesaka Technologies Proprietary Limited
South Africa
2002/031446/07
2
Lesaka Technologies, Inc.
State of Florida,
United States
P9700001098
3
Prism Holdings Proprietary Limited
South Africa
1998/018949/07
4
Lesaka Finance Holdings Proprietary
Limited (previously named "Net1 Finance
Holdings Proprietary Limited")
South Africa
1998/020801/07
5
Lesaka Alternative Digital Products
Proprietary Limited (previously named
"EasyPay Proprietary Limited")
South Africa
1983/008597/07
6
Prism Payment Technologies Proprietary
Limited
South Africa
1990/005062/07
7
Cash Connect Management Solutions
Proprietary Limited
South Africa
2006/010530/07
8
Deposit Manager Proprietary Limited
South Africa
2010/016889/07
9
Cash Connect Rentals Proprietary
Limited
South Africa
2009/007139/07
10
Main Street 1723 Proprietary Limited
South Africa
2019/300711/07
11
EasyPay Financial Services Proprietary
Limited
South Africa
1998/020799/07
12
GAAP Point-of-Sale Proprietary Limited
South Africa
1999/003571/07
13
Lesaka Payments Proprietary Limited
(previously named "Adumo Payments
Proprietary Limited")
South Africa
2015/427833/07
14
Adumo Payouts Proprietary Limited
South Africa
2005/010672/07
15
Lesaka Merchant Technologies
Proprietary Limited (previously named
"Adumo Technologies Proprietary
Limited")
South Africa
2000/029811/07
16
Adumo Management Company
Proprietary Limited
South Africa
2021/147994/07
17
Adumo (RF) Proprietary Limited
South Africa
2017/540380/07
1
8
Ovobix (RF) Proprietary Limited
South Africa
2013/068120/07
177
19
Luxanio 227 Proprietary Limited
South Africa
2018/605739/07
20
K2021477132 (South Africa) Proprietary
Limited
South Africa
2021/477132/07
21
EasyPay Cash Proprietary Limited
South Africa
2001/028826/07
22
Lesaka Utilities Proprietary Limited
(previously named "Recharger
Proprietary Limited")
South Africa
2022/218906/07
178
Part II
The Original Senior Lenders
under the Senior Term Facilities and Senior RCF
179
Original
Senior
Lenders
Address for Purposes of clause
(Notices)
Senior Term
Facility A
Commitment
Senior Term
Facility B
Commitment
Senior RCF
Commitment
[Column 1]
[Column 2]
[Column 3]
[Column 4]
[Column 5]
1
.
FirstRand
Bank Limited
(acting through
its Rand
Merchant Bank
division)
1 Merchant Place, 16th Floor
Cnr Fredman Drive and Rivonia Road
Sandton, 2196
Email
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
Att - Head of Transaction
Management - Investment
Banking
R1,609,245,740.62
R746,493,641.20
The amount of
voluntary
prepayments of
Senior Term
Facility A Loans
which were
made by that
Original Senior
Lender
180
2
Investec Bank
Limited (acting
through its
Investment
Banking
division:
Corporate
Solutions
100 Grayston Drive, Sandown, Sandton,
Johannesburg, 2196
Email- XXX
Attention: Head of Investment Banking
R546,493,641.20
R253,506,358.80
The amount of
voluntary
prepayments of
Senior Term
Facility A Loans
which were
made by that
Original Senior
Lender
R2,155,739,381.82
R1,000,000,000
1
ANNEXURE
Part I
Conditions Precedent to Initial Utilisation
1.
OBLIGORS AND SECURITY PROVIDERS
1.1 A copy of the constitutional documents of each Obligor and Security Provider.
1.2 A copy of a resolution of the board of directors of each Obligor and Security Provider which is a party
to a Finance Document, to the extent applicable -
1.2.1 approving the terms of, and the transactions contemplated by, the Finance Documents to which
it is a party and resolving that it execute the Finance Documents to which it is a party;
1.2.2 authorising it, for all purposes required under sections 45 and/or 46 of the Companies Act (as
applicable), to provide the "
financial assistance
" and to make any "
distribution
" that may arise
as a result of its entry into the Finance Documents to which it is a party;
1.2.3 authorising a specified person or persons to execute the Finance Documents to which it is a
party on its behalf; and
1.2.4 authorising a specified person or persons, on its behalf, to sign and/or despatch all documents
and notices to be signed and/or despatched by it under or in connection with the Finance
Documents to which it is a party.
1.3 To the extent applicable, a copy of a special resolution duly passed by the holders of the issued
shares of each Obligor and Security Provider authorising it, for all purposes required under section
45 of the Companies Act, to provide the "
financial assistance
" that may arise as a result of its entry
into the Finance Documents to which it is a party.
1.4 To the extent required by the Companies Act, any other applicable law or the constitutional
documents of an Obligor and Security Provider, a copy of a resolution duly passed by the holders of
the issued shares of that Obligor or Security Provider, approving the terms of, and the transactions
contemplated by, the Finance Documents to which that Obligor or Security Provider is a party.
1.5 A specimen of the signature of each person authorised by the resolution referred to in clause
1.6 A certificate of an authorised signatory of each Obligor and each other Security Provider -
1.6.1 confirming that borrowing, guaranteeing or securing, as appropriate, the Total Commitments
would not cause any borrowing, guaranteeing, securing or similar limit binding on it to be
exceeded; and
1.6.2 certifying that each copy document relating to it specified in this Part I of
complete and in full force and effect as at a date no earlier than the Closing Date.
1.6.3 no Default has occurred or is continuing or will result from the execution of the Finance
Documents;
1.6.4 the representations and warranties set out in clause
in all respects;
2
1.6.5 no event or series of events or circumstances has occurred or arisen which, in that entity’s
opinion, is likely to have a Material Adverse Effect;
1.6.6 no investigation, litigation, arbitration or administrative proceedings of or before any court,
arbitral body, competent competition authority or other regulatory authority or government
agency which, if adversely determined, will have or is reasonably likely to have a Material
Adverse Effect have, to the best of its knowledge and belief, been started or threatened against
it or any member of the Covenant Group; and
1.6.7 no event or circumstance has arisen, and there has been no change in circumstances, in
relation to any Environmental Matters since 30 June 2024.
1.7 In relation to Holdco -
1.7.1 a certificate as to the active status of Holdco from the Florida Department of State, in form and
substance satisfactory to the Facility Agent and its counsel; and
1.7.2 a solvency certificate signed by the chief financial officer or chief accounting officer of Holdco
in form and substance satisfactory to the Facility Agent.
2.
Legal opinions
2.1 A legal opinion of Werksmans Inc, legal advisers to the Finance Parties, addressed to the Facility
Agent for and on behalf of the Finance Parties, substantially in the form distributed to the Original
Senior Lenders prior to signing this Agreement in respect of the legality, validity and enforceability
of the Finance Documents.
2.2 A legal opinion of Webber Wentzel attorneys, legal advisers to the Obligors in South Africa,
addressed to the Facility Agent for and on behalf of the Finance Parties, substantially in the form
distributed to the Original Senior Lenders prior to signing this Agreement, in respect of the capacity,
powers and authority of the Obligors and other Security Providers which are party to the Finance
Documents, to enter into and perform their obligations under the Finance Documents and the due
execution of those documents.
2.3 A legal opinion of McDermott Will & Emery, LLP, legal advisers to the Finance Parties in the US] and
in the State of Florida addressed to the Facility Agent for and on behalf of the Finance Parties,
substantially in the form distributed to the Original Senior Lenders prior to signing this Agreement, in
respect of the capacity, powers and authority of Holdco to enter into and perform its obligations under
the Finance Documents and the due execution of those documents under Florida law.
3.
Finance Documents
3.1 An original of each of the following Finance Documents duly entered into by each Party to it -
3.1.1 the Original Common Terms Agreement;
3.1.2 the Original Senior Term Facility
A
Agreement;
3.1.3 the Original Senior Term Facility B Agreement;
3.1.4 the Original Senior RCF Agreement;
3.1.5 each WCF Agreement;
3.1.6 each WesBank Agreement;
3
3.1.7 the Lesaka Release Agreement;
3.1.8 the Cash Connect Management Release Agreement;
3.1.9 the Debt Guarantee;
3.1.10 the Counter-indemnity Agreement;
3.1.11 each Security Structure Document;
3.1.12 each Security Agreement;
3.1.13 the Fee Letters; and
3.1.14 the Further Rights Letter.
3.2 The following documents of title and related documents in relation to shares and other securities that
are subject to Transaction Security -
3.2.1 the original share certificates (or applicable certificates of title in respect of other securities);
3.2.2 an original securities transfer form duly executed by the relevant Obligor (undated and left blank
as to the transferee);
3.2.3 a resolution by the directors of each company the shares of which are subject to Transaction
Security, acknowledging the pledge and agreeing to give effect to any transfer of shares that
may occur as a result;
3.2.4 any waivers of pre-emptive rights which may be required in respect of any shares which are
subject to the Transaction Security; and
3.2.5 all other documents of title required to be provided under the Security Documents.
3.3 A copy of all notices required to be sent, acknowledgements required to be delivered and other
documents required to be executed under the Security Documents, duly executed by the persons
party thereto.
3.4 A copy of the securities register of Holdco, each other Obligor and each member of the Covenant
Group whose shares are subject to the Transaction Security.
4.
Regulatory authorisations
All regulatory approvals required for the implementation of the transactions contemplated by the Finance
Documents (including to the extent that any such approval is required to establish any Security under the
Security Documents).
5.
Credit Approval
The approval of the credit committee of each Original Lender of the grant of the Facilities to the Borrowers
under the Finance Documents.
4
6.
Know Your Customer Requirements
Such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on
behalf of any other Finance Party) to carry out and be satisfied that it has complied with all necessary
know your customer or similar identification procedures under applicable laws and regulations (including
the Financial Intelligence Centre Act, 2001) pursuant to the transactions contemplated in the Finance
Documents.
7.
Other documents and evidence
7.1 Evidence that the fees, costs and expenses then due from the Term/RCF Borrower pursuant to
clause
or will be paid by the first Utilisation Date.
7.2 A Compliance Certificate dated on or about the Closing Date which demonstrates that the Borrower
will comply with the provisions of clause
Financial Covenants were to be calculated as at the first Utilisation Date, taking into account the
amount of such Utilisations.
7.3 Evidence to the satisfaction of the Facility Agent that Cash Connect Management has paid any and
all interest which would be due and payable by it, on the first Utilisation Date, in terms of the Cash
Connect Management Facilities Agreement.
7.4 A copy of the Original Financial Statements.
7.5 Evidence that all required Insurances are in place.
7.6 A copy of any other authorisation or other document, opinion or assurance which the Facility Agent
considers to be necessary or desirable (if it has notified the Term/RCF Borrower accordingly) in
connection with the entry into and performance of the transactions contemplated by any Finance
Document or for the validity and enforceability of any Finance Document.
5
Part II
Conditions Precedent Required to be
Delivered by an Additional Obligor and/or in relation to further Transaction Security
1 An Accession Letter, duly executed by the Additional Obligor and the Term/RCF Borrower.
46 A copy of the constitutional documents of the Additional Obligor.
47 A copy of a resolution of the board of directors of the Additional Obligor -
47.1 approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance
Documents and resolving that it execute the Accession Letter;
47.2 in the case of an Additional Obligor, authorising it, for all purposes required under sections 45 and
46 of the Companies Act, to provide the "
financial assistance
" and to make any "
distribution
" that
may arise as a result of its entry into the Finance Documents to which it is a party (or, in the case of
any Additional Obligor incorporated in a jurisdiction other than South Africa, any equivalent
authorisations required under the laws of such jurisdiction);
47.3 authorising a specified person or persons to execute the Accession Letter on its behalf; and
47.4 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.
48 A copy of a special resolution duly passed by the holders of the issued shares of an Additional Obligor
authorising it, for all purposes required under section 45 of the Companies Act, to provide the "
financial
assistance
" that may arise as a result of its entry into the Finance Documents to which it is a party (or in
the case of any Additional Obligor incorporated in a jurisdiction other than South Africa, any equivalent
authorisations required under the laws of such jurisdiction).
49 To the extent required with reference to the constitutional documents of an Additional Obligor, a copy of
a resolution duly passed by the holders of the issued shares of that Additional Obligor, approving the
terms of, and the transactions contemplated by, the Finance Documents to which that Additional Obligor
is a party.
50 A specimen of the signature of each person authorised by the resolution referred to in clause
51 A certificate of the Additional Obligor (signed by a director) confirming that borrowing and/or guaranteeing,
as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit
binding on it to be exceeded.
52 A certificate of an authorised signatory of the Additional Obligor certifying that each copy document listed
in this Part II of
the date of the Accession Letter.
6
53 If available, the latest audited financial statements of the Additional Obligor.
54 Security Documents duly executed by the Additional Obligor in respect of all Transaction Security it is
required to provide in accordance with Annexure G (Transaction Security).
55 Security Documents duly executed by the relevant member of the Covenant Group in its capacity as
shareholder in the Additional Obligor in respect of all Transaction Security it is required to provide in
accordance with Annexure G (Transaction Security).
56 All documents required to procure registration of the notarial bonds set out in Annexure G (Transaction
Security), including a power of attorney in favour of the Finance Parties' conveyancer to pass and register
each such Security Document at the applicable statutory public register.
57 Evidence that each general notarial bond and deeds of hypothecations of trademarks, patents and
designs, in each case, referred to in Annexure G (Transaction Security), if so required by the Facility
Agent, has been lodged for registration at the applicable statutory public registry.
58 The following documents of title and related documents in relation to shares and other securities that are
subject to Transaction Security -
58.1 the original share certificates (or applicable certificates of title in respect of other securities);
58.2 an original securities transfer form duly executed by the relevant Obligor (undated and left blank as
to the transferee);
58.3 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
58.4 all other documents of title required to be provided under the Security Documents.
59 A copy of all notices required to be sent, acknowledgements required to be delivered and other documents
required to be executed under the Security Documents, duly executed by the persons party thereto.
60 A copy of the securities register of the Additional Obligor.
61 All necessary regulatory approvals to the satisfaction of the Facility Agent required for the accession of
the Additional Obligor as an Obligor.
62 A legal opinion of the legal advisers to the Finance Parties and the Facility Agent in South Africa.
63 A legal opinion of the legal advisers to the Obligors in South Africa.
64 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.
7
65 If the Additional Obligor is incorporated in a jurisdiction other than South Africa, a legal opinion of the legal
advisers to the Finance Parties in the jurisdiction in which the Additional Obligor is incorporated.
66 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.
8
ANNEXURE
To - [
Facility Agent
], as Facility Agent
[●]
[●]
From -
[
The Existing Lender
] (the
Existing Lender
) and [
the New Lender
]
New Lender
)
[●], 20
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Amended and Restated Common Terms Agreement, dated [●], 2026
(
the
Agreement)
1 We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same
meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
67 We refer to clause
68 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
69 The proposed Transfer Date is [●].
70 The address of the New Lender, email address and attention details for notices of the New Lender for the
purposes of clause
71 On and with effect from the Transfer Date the New Lender -
71.1 becomes party to the Agreement as a [Senior Term Facility Lender] [Senior RCF Lender];
71.2 becomes party to the Intercreditor Agreement;
71.3 undertakes to perform all the obligations expressed in the Agreement, the Intercreditor Agreement
and other applicable Finance Documents to be assumed by a Lender; and
71.4 agrees that it shall be bound by all the provisions of the Agreement, the Intercreditor Agreement and
other applicable Finance Documents as if it had been an original party to those Finance Documents
as a Lender.
72 The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in
clause
9
73 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.
74 This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are
governed by South African law.
75 This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer
Certificate.
[
EXISTING LENDER
]
By -
[
NEW LENDER
]
By -
[
FACILITY AGENT
]
By -
As Facility Agent and for and on behalf of each of the parties to the Agreement (other than the Existing Lender
and the New Lender) [and each of the parties to the Intercreditor Agreement (other than the Existing Lender
and the New Lender)].
Note - The execution of this Transfer Certificate may not transfer a proportionate share of the Existing
Lender's interest in security in all cases. It is the responsibility of the New Lender to ascertain whether any
other documents or other formalities are required to perfect a transfer of such a share in the Existing Lender's
security and, if so, to arrange for execution of those documents and completion of those formalities.
10
THE SCHEDULE
Commitment/rights and obligations to be transferred
[
insert relevant details, including applicable Commitment (or part) and participation in Loans
]
Part 1
Commitments
Senior Term Facility
A Commitment
Senior Term Facility
B Commitment
Senior RCF
Commitment
[●]
[●]
[●]
Part 2
Participations in Loans
Senior Term Facility A
Loan
Senior Term Facility B
Loan
Senior RCF Loans
[●]
[●]
[●]
Part 3
Administrative Details of the New Lender
[
Insert details of address for notices and payment details, etc.
]
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [●].
[
Facility Agent
]
By -
ANNEXURE
PART I - ADDITIONAL GUARANTOR
To - [
Facility Agent
], as Facility Agent
11
[●]
[●]
From -
And - [
SUBSIDIARY
]
[●], 20
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Amended and Restated Common Terms Agreement, dated [●], 2026
(
the
Agreement)
1 We refer to -
75.1 the Agreement; and
75.2 the Security Cession & Pledge (as defined in the Agreement).
76 This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession
Letter unless given a different meaning in this Accession Letter.
77 [
Subsidiary
] agrees, with effect from the date of this Accession Letter, to -
77.1 become an Additional Guarantor under the Agreement and to be bound by the terms of the
Agreement as an Additional Guarantor;
77.2 become an Indemnifier under (and as defined in) the Counter-indemnity Agreement and to be bound
by the terms of the Counter-indemnity Agreement as an Indemnifier; and
77.3 become an Additional Cedent under (and as defined in) the Security Cession & Pledge and to be
bound by the terms of the Security Cession & Pledge as an Additional Cedent,
pursuant to clause
78 [
Subsidiary
] (in its capacity as Additional Cedent) pledges to the Debt Guarantor all its Shares and
Investments (in each case, as defined in the Security Cession & Pledge) and cedes
in securitatem debiti
to the Debt Guarantor all its Secured Property (as defined in the Security Cession & Pledge), in each case
individually and collectively with all the other Secured Property (as defined in the Security Cession &
Pledge), as continuing general covering collateral security for the due, proper and timeous payment and
performance in full of all the Secured Obligations (as defined in the Security Cession & Pledge), on the
terms set out in the Security Cession & Pledge, which pledge and cession the Debt Guarantor (in its
capacity as Debt Guarantor under the Security Cession & Pledge) accepts. For the purposes hereof,
Secured Property
[
Subsidiary
].
12
79 With effect from the date of this Accession Letter the Security Cession & Pledge will be read and construed
for all purposes as if the Additional Cedent had been an original party in the capacity of Cedent (but so
that the Security created on this accession will be created on the date of this Accession Letter).
80 [
Subsidiary
] is a company duly incorporated under the laws of [
name of relevant jurisdiction
].
81 [
Subsidiary's
] administrative details are as follows -
Address - [●]
Email Address - [●]
Attention - [●]
82 All representations and warranties set out in clause
Accession Letter.
83 This Accession Letter is a Finance Document.
84 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.
85 This Accession Letter and any non-contractual obligations arising out of or in connection with it are
governed by South African law.
[●] PROPRIETARY LIMITED
[
SUBSIDIARY
]
By -
By -
13
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
Accepted by the Debt Guarantor -
For and on behalf of -
Bowwood and Main No 408 (RF)
Proprietary Limited
Name
-
Office
-
Date -
(who warrants his authority)
14
PART II - ADDITIONAL WCF BORROWER
To - [
Facility Agent
], as Facility Agent
[●]
[●]
From -
And - [
MEMBER OF THE COVENANT GROUP
]
[●], 20
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Amended and Restated Common Terms Agreement, dated [●], 2026
(
the
Agreement)
1 We refer to -
85.1 the Agreement; and
85.2 the Security Cession & Pledge (as defined in the Agreement).
86 This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession
Letter unless given a different meaning in this Accession Letter.
87 [
Subsidiary
] (
Additional WCF Borrower
) agrees, with effect from the date of this Accession Letter, to -
87.1 become an Additional WCF Borrower under the Agreement and to be bound by the terms of the
Agreement as an Additional WCF Borrower;
87.2 become a Borrower under (and as defined in) the WCF Agreement and to be bound by the terms of
the WCF Agreement as a Borrower (as defined in the WCF Agreement);
87.3 become an Indemnifier under (and as defined in) the Counter-indemnity Agreement and to be bound
by the terms of the Counter-indemnity Agreement as an Indemnifier; and
87.4 become an Additional Cedent under (and as defined in) the Security Cession & Pledge and to be
bound by the terms of the Security Cession & Pledge as an Additional Cedent,
pursuant to clause
15
88 The Additional WCF Borrower (in its capacity as Additional Cedent) pledges to the Debt Guarantor all its
Shares and Investments (in each case, as defined in the Security Cession & Pledge) and cedes
in
securitatem debiti
Pledge), in each case individually and collectively with all the other Secured Property (as defined in the
Security Cession & Pledge), as continuing general covering collateral security for the due, proper and
timeous payment and performance in full of all the Secured Obligations (as defined in the Security Cession
& Pledge), on the terms set out in the Security Cession & Pledge, which pledge and cession the Debt
Guarantor (in its capacity as Debt Guarantor under the Security Cession & Pledge) accepts. For the
purposes hereof,
Secured Property
& Pledge) of the Additional WCF Borrower.
89 With effect from the date of this Accession Letter the Security Cession & Pledge will be read and construed
for all purposes as if the Additional Cedent had been an original party in the capacity of Cedent (but so
that the Security created on this accession will be created on the date of this Accession Letter);
90 The Additional WCF Borrower is a company duly incorporated under the laws of South Africa.
91 The Additional WCF Borrower's administrative details are as follows -
Address - [●]
Email address -[●]
Attention - [●]
92 The Repeating Representations are correct on the date of this Accession Letter.
93 This Accession Letter is a Finance Document.
94 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.
95 This Accession Letter and any non-contractual obligations arising out of or in connection with it are
governed by South African law.
[
MEMBER OF THE COVENANT GROUP
]
[
MEMBER OF THE COVENANT GROUP
]
By -
By -
16
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
Accepted by the Debt Guarantor -
For and on behalf of -
Bowwood and Main No 408 (RF)
Proprietary Limited
Name
-
Office
-
Date -
(who warrants his authority)
17
PART III - HEDGE COUNTERPARTIES
To - [
Facility Agent
], as Facility Agent
[●]
[●]]
From -
[
HEDGE COUNTERPARTY
]
[●], 20[●]
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Amended and Restated Common Terms Agreement, dated [●], 2026
(
the
Agreement)
1. We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same
meaning in this Accession Letter unless given a different meaning in this Accession Letter.
2. [
Hedge Counterparty
] agrees, with effect from the date of this Accession Letter, to become a Hedge
Counterparty and to be bound by the terms of -
2.1 the Agreement; [and]
2.2 the Intercreditor Agreement[,][; and
2.3 the Subordination Agreement,]
as a Hedge Counterparty pursuant to clause
3. [
Hedge Counterparty
] is a company duly incorporated under the laws of [
name of relevant jurisdiction
].
4. [
Hedge Counterparty
] administrative details are as follows -
Address - [●]
Fax No - [●]
Attention - [●]
5. This Accession Letter may be executed in any number of counterparts. This has the same effect as if the
signatures on the counterparts were on a single copy of this Accession Letter.
6. This Accession Letter and any non-contractual obligations arising out of or in connection with it are
governed by South African law.
18
For and on behalf of -
[
Hedge Counterparty
]
For and on behalf of -
[
Hedge Counterparty
]
Name
-
Name -
Office
-
Office -
(who warrants his authority)
(who warrants his authority)
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
19
PART IV - WCF LENDERS
To - [
Facility Agent
], as Facility Agent
[●]
[●]
From -
[
WCF LENDER
]
[●], 20
Dear Sirs,
LESAKA TECHNOLOGIES PROPRIETARY LIMITED
Amended and Restated Common Terms Agreement, dated [●], 2026
(
the
Agreement)
7. We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same
meaning in this Accession Letter unless given a different meaning in this Accession Letter.
8. [
WCF Lender
] agrees, with effect from the date of this Accession Letter, to become a WCF Lender and
to be bound by the terms of -
8.1 the Agreement; [and]
8.2 the Intercreditor Agreement[,]/[; and
8.3 the Subordination Agreement,]
as a WCF Lender, pursuant to clause [
●
] (Accession of WCF Lenders) of the Agreement.
9. [
WCF Lender
] is a company duly incorporated under the laws of [
name of relevant jurisdiction
].
10. [
WCF Lender
] administrative details are as follows -
Address - [●]
Email address -[●]
Attention - [●]
11. 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.
12. This Accession Letter and any non-contractual obligations arising out of or in connection with it are
governed by South African law.
20
For and on behalf of -
[
WCF Lender
]
For and on behalf of -
[
WCF Lender
]
Name
-
Name -
Office
-
Office -
(who warrants his authority)
(who warrants his authority)
Accepted by the Facility Agent -
For and on behalf of -
[
Facility Agent
]
For and on behalf of -
[
Facility Agent
]
Name
-
Name -
Office
-
Office -
Date -
Date -
(who warrants his authority)
(who warrants his authority)
ANNEXURE
To - [
FACILITY AGENT
], as Facility Agent
[●]
[●]
From -
[●], 20[●]
Dear Sirs,
21
Lesaka Technologies Proprietary Limited
Amended and Restated Common Terms Agreement, dated [●], 2026
(
the
Agreement)
1 We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same
meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.
96 Pursuant to clause
from -
96.1 its obligations as a Guarantor under the Agreement; and
96.2 its obligations as an Indemnifier under the Counter-indemnity Agreement.
97 We confirm that -
97.1 no Default is continuing or would result from the acceptance of this request; and
97.2 [●].
98 This Resignation Letter and any non-contractual obligations arising out of or in connection with it are
governed by South African law.
Yours faithfully,
Signed -
…..........................................
…..........................................
Director
Director
[
Term/RCF Borrower
]
[
Term/RCF Borrower
]
1
22
ANNEXURE
To - [
FACILITY AGENT
], as Facility Agent
[●]
[●]
From -
[●], 20[●]
Dear Sirs,
Lesaka Technologies Proprietary Limited
Amended and Restated Common Terms Agreement, dated [●], 2026
(
the
Agreement)
1 We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the
same meaning when used in this Compliance Certificate unless given a different meaning in this
Compliance Certificate.
99 We confirm that as at [
relevant testing date
] (the
Test Date
) the following financial ratios referred to in
clause
Financial Covenant Ratio
As
Calculated
Covenant
Level
Compliance
[Y / N]
1.
Net Debt to EBITDA Ratio
[●]
[●]
[●]
2.
Interest Cover Ratio
[●]
[●]
[●]
100 We set out below calculations establishing the figures in clause
[●]
101 We confirm that the following companies were Material Subsidiaries at the Test Date -
[●]
102 We confirm that the [financial statements]/[management accounts]/[SEC Form] which this compliance
certificate accompanies fairly represents the financial condition of the Group as at the date as to which
those [financial statements]/[management accounts/[SEC Form] were drawn up.
103 [We confirm that no Default is continuing as at the Test Date.]
104
Cure Amount
23
105.1.2
104.1.1 [Details to be included as required in clauses
Mandatory Prepayment), and in particular the breach of the Relevant Financial Covenant, the
application of the Cure Amount within the Cure Period, and the results of -
104.1.1.1 the calculations of all Relevant Financial Undertakings before the payment of the Cure
Amount in accordance with clause
application of clauses
; and
104.1.1.2 the recalculations of all Relevant Financial Undertakings following the payment of the
Cure Amount in accordance with clause
and the application of clauses
]
105
Obligor coverage
105.1
[
The Obligors are in compliance with clause
][
Each of the following
persons are required to become an Additional Guarantor in order for the Obligors to comply with
clause
105.1.1 [●]; and
]
105.2
[
Each Material Subsidiary is a Guarantor.
][
The following persons are required to become an
Additional Guarantor such that each Material Subsidiary is a Guarantor.
]
106
Group Structure Chart
[Pursuant to clause
, the updated Group Structure Chart is attached hereto as [schedule 1].]
107
Non-SA Subsidiaries
[The aggregate of the gross assets, EBITDA (as defined in clause
) or total revenue of the Non-
SA Subsidiaries is [less than] 10% of the total assets, EBITDA or total revenue of the Covenant Group.]
108
Material Agreement
The following agreements constitute Material Agreements -
108.1.1 [●]; and
108.1.2 [●].
109
Litigation
2
24
[Pursuant to clause
, the litigation, arbitration, administrative proceeds, liquidation applications,
winding up applications or business rescue applies which are required to be disclosed are as follows -
109.1.1 [●]; and
109.1.2 [●].
13. [Please include any other obligations required under the Finance Documents].
[Yours faithfully,
Signed -
…..........................................
…..........................................
Director
Director
[Term/RCF Borrower]
[Term/RCF Borrower]
25
ANNEXURE
Each Obligor must enter into Security Documents in favour of the Debt Guarantor to establish the Security set
out below over the assets described below (except to the extent that any such asset is expressly excluded by
a Security Document from the Security created under that agreement or otherwise stipulated below) -
1
South African Obligors and Material Subsidiaries
109.2 A pledge and cession
in securitatem debiti
securities and other ownership interests it holds, from time to time, in any Affiliate, associate
company or another person (other than a Dormant Subsidiary), each incorporated or established in
South Africa, in which it is invested (including, in the case of the Term/RCF Borrower, all the shares,
securities and other ownership interests it holds, from time to time, in the relevant Obligors (other
than Holdco)), together with all its debt claims (on shareholder loan account or otherwise) against
any such person, save for any loans created pursuant to the Permitted Cash Management
Arrangement.
109.3 A cession
in securitatem debiti
respect of bank accounts maintained in its jurisdiction of incorporation (including all cash balances
standing to the credit of those bank accounts), insurance policies, book debts, Insurance Proceeds,
intellectual property, Disposal Proceeds and all cash and cash equivalents, from time to time.
109.4 A general notarial bond to be registered over the moveable assets of each Additional Obligor, it so
required by the Facility Agent.
109.5 A mortgage bond to be registered over the immoveable property of any Obligor, if such Obligor
acquired immoveable property valued at R10,000,000 (ten million Rand) or more.
110
Non-South African Obligors and Material Subsidiaries
110.1 Each member of the Covenant Group (other than an Excluded Subsidiary) holding shares, securities
and other ownership interests in an Obligor or Material Subsidiary incorporated in a jurisdiction other
than South Africa must enter into Security Documents, in form and substance satisfactory to the
Facility Agent, in favour of the Debt Guarantor to establish the Security equivalent to that described
in clause 1.2 (South African Obligors and Material Subsidiaries) above over all its shares, securities
and other ownership interests it holds, from time to time, in that Obligor or Material Subsidiary,
together with all its debt claims (on shareholder loan account or otherwise) against that Obligor or
Material Subsidiary.
26
110.2 In relation to any Obligor or Material Subsidiary incorporated in a jurisdiction other than South Africa,
Holdco must procure that such member of the Covenant Group enters into Security Documents, in
form and substance satisfactory to the Facility Agent, in favour of the Debt Guarantor to establish
the Security equivalent to that described in clause
Subsidiaries) above over its assets (except to the extent that any such asset is expressly excluded
by a Security Document from the Security created under that agreement).
111
Holdco
111.1 A pledge and cession
in securitatem debiti
by Holdco of its rights, title and interest in and to all of the
shares and claims it holds in the Term/RCF Borrower.
111.2 A cession
in securitatem debiti
27
ANNEXURE
1.
South African Banks
1.1 Absa Bank Limited
1.2 The Standard Bank of South Africa Limited
1.3 Investec Bank Limited
1.4 FirstRand Limited
1.5 Nedbank Group Limited
2.
Financial institutions
2.1 Aluwani Capital Partners
2.2 Ashburton Fund Managers Proprietary Limited
2.3 Futuregrowth Asset Management Proprietary Limited
2.4 Liberty Group Limited
2.5 Ninety One SA Proprietary Limited
2.6 Sanlam Life Insurance Limited
3.
Affiliates
Any affiliate, subsidiary or holding company of the banks or financial institutions listed in this Annexure,
and any fund or entity managed by any of them or any of their affiliates.
28
ANNEXURE
To - [
Insert name of Potential Purchaser/Purchaser’s agent/broker
]
[●]
[●]
[●], 20
Dear Sirs,
Lesaka Technologies Proprietary Limited
Amended and Restated Common Terms Agreement, dated [●], 2026
(
the
Agreement)
We understand that you are considering [
acquiring
] [
arranging the acquisition of
] an interest in the Senior
Facilities (the
Acquisition
). In consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows -
1.
CONFIDENTIALITY UNDERTAKING
You undertake (a) to keep the Confidential Information confidential and not to disclose it to anyone except
as provided for by clause 2 below and to ensure that the Confidential Information is protected with security
measures and a degree of care that would apply to your own confidential information, (b) to use the
Confidential Information only for the Permitted Purpose, (c) to use all reasonable endeavours to ensure
that any person to whom you pass any Confidential Information (unless disclosed under clause [
2.2 or
]
2.3 below) acknowledges and complies with the provisions of this letter as if that person were also a party
to it, and (d) not to make enquiries of any member of the Group or any of their officers, directors,
employees or professional advisers relating directly or indirectly to the Acquisition.
2.
PERMITTED DISCLOSURE
We agree that you may disclose Confidential Information -
2.1 to members of the Purchaser Group and their officers, directors, employees and professional
advisers to the extent necessary for the Permitted Purpose and to any auditors of members of the
Purchaser Group;
2.2 [
subject to the requirements of the Agreement, in accordance with the Permitted Purpose so long as
any prospective purchaser has delivered a letter to you in equivalent form to this letter
;]
2.3 subject to the requirements of the Agreement, to any person to (or through) whom you assign or
transfer (or may potentially assign or transfer) all or any of the rights, benefits and obligations which
you may acquire under the Agreement or with (or through) whom you enter into (or may potentially
enter into) any sub-participation in relation to, or any other transaction under which payments are to
be made by reference to, the Agreement or Holdco or any other member of the Group so long as
that person has delivered a letter to you in equivalent form to this letter; and
3
4
29
2.4 (i) where requested or required by any court of competent jurisdiction or any competent judicial,
governmental, supervisory or regulatory body, (ii) where required by the rules of any stock exchange
on which the shares or other securities of any member of the Purchaser Group are listed or (iii)
where required by the laws or regulations of any country with jurisdiction over the affairs of any
member of the Purchaser Group.
3.
NOTIFICATION OF REQUIRED OR UNAUTHORISED DISCLOSURE
You agree (to the extent permitted by law) to inform us of the full circumstances of any disclosure under
clause 2.4 or upon becoming aware that Confidential Information has been disclosed in breach of this
letter.
4.
RETURN OF COPIES
If we so request in writing, you shall return all Confidential Information supplied to you by us and destroy
or permanently erase all copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any Confidential Information destroys or
permanently erases such Confidential Information and any copies made by them, in each case save to
the extent that you or the recipients are required to retain any such Confidential Information by any
applicable law, rule or regulation or by any competent judicial, governmental, supervisory or regulatory
body or in accordance with internal policy, or where the Confidential Information has been disclosed under
clause 2 above.
5.
CONTINUING OBLIGATIONS
The obligations in this letter are continuing and, in particular, shall survive the termination of any
discussions or negotiations between you and us. Notwithstanding the previous sentence, the obligations
in this letter shall cease (a) if you become a party to or otherwise acquire (by assignment or sub-
participation) an interest, direct or indirect, in the Agreement or (b) 12 (twelve) months after you have
returned all Confidential Information supplied to you by us and destroyed or permanently erased all copies
of Confidential Information made by you (other than any such Confidential Information or copies which
have been disclosed under clause 2 above (other than sub-clause 2.4 above) or which, pursuant to clause
4 above, are not required to be returned or destroyed).
6.
NO REPRESENTATION, CONSEQUENCES OF BREACH, ETC.
You acknowledge and agree that -
6.1 neither we [
nor our principal
] nor any member of the Group nor any of our or their respective officers,
employees or advisers (each a
Relevant Person
) (i) make any representation or warranty, express
or implied, as to, or assume any responsibility for the accuracy, reliability or completeness of any of
the Confidential Information or any other information supplied by us or the assumptions on which it
is based or (ii) shall be under any obligation to update or correct any inaccuracy in the Confidential
Information or any other information supplied by us or be otherwise liable to you or any other person
in respect of the Confidential Information or any such information; and
6.2 we [
or our principal
] or members of the Group may be irreparably harmed by the breach of the terms
hereof and damages may not be an adequate remedy; each Relevant Person may be granted an
injunction or specific performance for any threatened or actual breach of the provisions of this letter
by you.
5
6
30
7.
SOLE AGREEMENT, NO IMPLIED TERMS, NO VARIATION, EXTENSIONS AND WAIVERS
7.1 This letter constitutes the sole record of the agreement between us and you (each, a
Party
, and
collectively the
Parties
) in regard to the subject matter hereof.
7.2 No Party shall be bound by any express or implied term, representation, warranty, promise or the
like, not recorded in this letter.
7.3 No addition to, variation or consensual cancellation of this letter and no extension of time, waiver or
relaxation or suspension of any of the provisions or terms hereof shall be of any force or effect unless
in writing and signed by or on behalf of all the Parties.
7.4 No latitude, extension of time or other indulgence which may be given or allowed by any Party to
any other Party in respect of the performance of any obligation hereunder or enforcement of any
right arising from this letter and no single or partial exercise of any right by any Party shall under any
circumstances be construed to be an implied consent by such Party or operate as a waiver or a
novation of, or otherwise affect any of that Party’s rights in terms of or arising from this letter or estop
such Party from enforcing, at any time and without notice, strict and punctual compliance with each
and every provision or term hereof.
8.
INSIDE INFORMATION
You acknowledge that some or all of the Confidential Information is or may be price-sensitive information
and that the use of such information may be regulated or prohibited by applicable legislation relating to
insider dealing and you undertake not to use any Confidential Information for any unlawful purpose.
9.
NATURE OF UNDERTAKINGS
The undertakings given by you under this letter are given to us and (without implying any fiduciary
obligations on our part) are also given by the benefit of [
our principal
] Holdco and each other member of
the Group.
10.
GOVERNING LAW AND JURISDICTION
This letter (including the agreement constituted by your acknowledgment of its terms) shall be governed
by and construed in accordance with the laws of South Africa and the parties submit to the non-exclusive
jurisdiction of the High Court of South Africa (Gauteng Local Division, Johannesburg) (or any successor
to that Division) in regard to all matters arising from this letter.
11.
DEFINITIONS
In this letter, terms defined in the Agreement shall, unless the context otherwise requires, have the same
meaning and the words and expressions set forth below shall bear the following meanings and cognate
expressions shall bear corresponding meanings -
7
31
Confidential Information
the Acquisition provided to you by us or any of our affiliates or advisers, in whatever form, and includes
information given orally and any document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information but excludes information that (a)
is or becomes public knowledge other than as a direct or indirect result of any breach of this letter or (b)
is known by you before the date the information is disclosed to you by us or any of our affiliates or advisers
or is lawfully obtained by you thereafter, other than from a source which is connected with the Group and
which, in either case, as far as you are aware, has not been obtained in violation of, and is not otherwise
subject to, any obligation of confidentiality;
Group
Holdco
Permitted Purpose
subject to the terms of this letter, passing on information to a prospective
purchaser for the purpose of
] considering and evaluating whether to enter into the Acquisition; and
Purchaser Group
Please acknowledge your agreement to the above by signing and returning the enclosed copy.
Yours faithfully
8
32
ANNEXURE
Name of Dormant Subsidiary
Jurisdiction of
Incorporation /
formation
Registration
number
(or equivalent, if
any)
1
Net1 Universal Electronic Technological
Solutions (Pty) Ltd
South Africa
2009/001034/07
2
Pros Software (Pty) Ltd
South Africa
2005/043662/07
3
Lizwe Administration Services
Proprietary Limited
South Africa
2017/484589/07
4
Uzalo Payment Logistics Proprietary
Limited
South Africa
2017/406347/07
5
SmartSwitch Eswatini Investments (Pty)
Ltd
Swaziland
R7/52203
6
SmartSwitch Tanzania Limited
Tanzania
60807
7
Evertrade 187 (Pty) Ltd
South Africa
2000/007099/07
8
Adumo Receipts (Pty) Ltd (previously
named Prodigi Africa (Pty) Ltd)
South Africa
2016/309815/07
9
Flickpay (Pty) Ltd
South Africa
2014/061617/07
10
Cash Paymaster Services (Pty) Ltd
South Africa
1998/000033/07
1
ANNEXURE
Status of Schedule
The Borrower and the Guarantors make the disclosures set out in this Schedule K (Disclosure Schedule) to the Agreement in terms of the Agreement to which this Schedule K
(Disclosure Schedule) is attached and with reference to the relevant clauses of such Agreement. A capitalised term used in this Schedule has the meaning ascribed thereto in the
relevant Agreement unless a different meaning is ascribed to such term in this Schedule
.
1.
FINANCIAL STATEMENTS (CLAUSE 21.7.2 and 22.1)
1.1.
Luxanio
”) for the financial year ending 30 June 2022 have not yet been completed.
1.2.
1.2.1
1.2.2
1.3.
1.3.1.
CCMS
”);
1.3.2.
CCR
”);
1.3.3.
Deposit Manager
”);
1.3.4.
EPC
”);
1.3.5.
EasyPay
”);
1.3.6.
EPFS
”);
1.3.7.
K2021477132
”);
2
1.3.8.
1.3.9.
1.3.10.
1.3.11.
1.3.12.
1.3.13.
Prism Payment Technologies
”);
2.
ASSETS (CLAUSE 21.9)
2.1.
TPPPs
”) and System Operators (“
SOs
”)
in terms of the National Payment System Act, 1998 commenced in November 2025. The renewal process has largely been completed and current TPPP and SO
certifications remain valid until 28 February 2026. Confirmation of certification renewal has been received for most entities, except for Lesaka Technologies Proprietary
Limited, Cash Connect Management Solutions Proprietary Limited, Main Street 1723 Proprietary Limited and Sandulela Technology Proprietary Limited. Confirmation
is expected to be received on or before end of February 2026.
2.2.
PCI DSS
”) recertification process for the relevant entities within Lesaka is currently underway, specifically Lesaka
Technologies Proprietary Limited (expiring February 2026) and Prism Payment Technologies Proprietary Limited (expiring March 2026), which is expected to be
concluded by March 2026. The PCI DSS certification for Adumo Online Proprietary Limited remains valid until December 2026; the PIC Pin Transaction Security
certification for Prism Payment Technologies Proprietary Limited remains valid until April 2027; and the PCI Point-to-Point Encryption certification for Adumo
Technologies Proprietary Limited remains valid until March 2028. In addition, Adumo Technologies Proprietary Limited has initiated a request to move the June 2026
PCI DSS recertification to October 2026 due to audit overlap and associated resource constraints arising from concurrent annual audits during the financial year-end
period. The PCI Pin recertification for Lesaka Technologi es Proprietary Limited, which expired in November 2025, will be done after the relevant changes come into
effect with the migration of netswitch into Prism Payment Technologies Proprietary, which is expected to be concluded by March 2026.
3.
GROUP STRUCTURE CHART (CLAUSE 20.13)
3
3.1.
4.
PROCEEDINGS PENDING OR THREATENED LITIGATION (CLAUSE 21.16.1)
4
Relevant Parties
Overview Description
Term/RCF Borrower
Black Sash Trust (First Applicant)
Freedom Under Law NPC
(Second Applicant) (“
FUL
”)
Cash Paymaster Services
Proprietary Limited (“
CPS
”) (Sixth
Respondent)
Term/RCF Borrower (Eleventh
Respondent)
and various other respondents and
amicus curiae
Case CCT: 48/2017
In the Constitutional Court of South Africa
FUL applies for CPS and Term/RCF Borrower to provide certain information relevant to the contract that was
concluded between CPS and the South African Social Security Agency.
The matter was heard in the Constitutional Court on 27 May 2025, and we are awaiting the ruling.
Finbond Mutual Bank (Applicant)
(“
Finbond
”) // Term/RCF Borrower
(Defendant)
Finbond is seeking payment in the amount of R1,359,165.12 from Term/RCF Borrower in refund of fees paid by
Finbond to Mastercard in the course of decommissioning the commercial relationship between Term/RCF
Borrower and Finbond. Term/RCF Borrower has paid an amount of R280,000.00 to Finbond in this regard. Informal
mediation proceedings took place during March 2025 but were unsuccessful. During the mediation, Term/RCF
Borrower offered a settlement amount of R800,000.00 to Finbond, which offer was rejected by Finbond. The parties
have agreed to settle the matter in the full and final amount of R1 000,000.00. An execution version of the
settlement has been circulated for final review and will be signed imminently.
D
eposit Manager
5
Relevant Parties
Overview Description
Zuph Logistics Proprietary Limited
(“
Zuph Logistics
”) // Deposit
Manager
On 8 December 2025, we received a letter of demand from DMI Attorneys acting for Zuph Logistics, a company
which previously provided logistics and warehousing services to Deposit Manager. Zuph Logistics claimed
payment of overdue invoices.
Mr Magintheren Mudaly who was employed by Deposit Manager for many years was in charge of procuring logistic
and warehousing service providers for the business. It was recently discovered that a business owned by him and
his wife, Zuph Logistics Proprietary Limited, has been the sole service provider in this regard since 2013. Zuph
Logistics was responsible for transporting and storing cash vaults manufactured by Deposit Manager. Upon this
discovery, Mr Mudaly was confronted and subsequently tendered his resignation.
Thereafter, Deposit Manager received the letter of demand demanding payment of the overdue invoices. The
outstanding amount was paid to the attorneys’ bank account.
However, Zuph Logistics were still in possession of a large number of the vaults which had to be collected from
their warehouse. Upon collection, Zuph Logistics concealed some of the vaults and hindered the attempts of
collection.
We instructed attorneys to draft and send a letter to DMI attorneys demanding they allow continued access to the
warehouse until Deposit Manager have collected all of the vaults together with confirmation that no further stock
will be moved without Deposit Manager’s consent.
to be unpaid. We received a second letter of demand in which the further amount of R1 592 750.00 has been
demanded.
The legal team is currently investigating the matter in order to properly respond to the letter of demand.
E
PFS
6
Relevant Parties
Overview Description
Furs Family Trust (“
Furs Family
Trust
”) (Plaintiff) // EPFS
(Defendant)
Case number: D7810/2024
A letter of demand was received from Cox Yeats representing the Furs Family Trust. The Furs Family Trust are
claiming damages in the amount of R4,870,440.59 from EPFS as reinstatement and repair costs in relation to a
premises which EPFS rented from the Furs Family Trust and vacated in 2022. We received a summons in this
matter on 10 July 2024. We intend to run pleadings in this matter. A rule 35(12) notice was served on behalf of
EPFS during August 2024 to request further documentation from the Furs Family Trust. The parties held a pre-
trial conference on 14 February 2025. Pleadings have closed. The next step in this matter (if any) is for Furs Family
Trust to request that the matter be set-down for pre-trial and a trial date. The Furs Family Trust have not taken any
such steps. As the defendant, we are not going to push for the matter to progress.
Mdungwazi Julius Mthombeni
(Applicant) // EPFS (Respondent)
Case number: 8852/2021
In the High Court of South Africa (Limpopo Division, Polokwane). The matter was withdrawn and only an order for
costs was made, on an unopposed party and party scale. A notice of intention to tax bill of costs was served on
14 August 2024, which will be dealt with by a cost consultant already appointed. We have not heard back from the
opposition with a taxation date yet. We requested an update on this matter from its attorneys on 3 December 2025,
and have been advised that there is no progress on the matter as yet. On 11 February 2026, the respondent
received a notice of set down for taxation to be heard on 24 March 2026.
EasyPay
God First Outreach Organisation
(NPC) (Plaintiff) // EasyPay
Defendant)
Case number: 2022-023213
In the High Court of South Africa (Gauteng Division, Pretoria). The Plaintiff is a client (receiver) of EasyPay. During
or about 6 April 2022, the Plaintiff received certain donations totaling R600,000.00 from donors. EasyPay
processed the transactions, but FNB flagged the transactions as being fraudulent and thus EasyPay did not settle
the Plaintiff. EasyPay admits to not paying the Plaintiff but denies that it has any liability towards the Plaintiff as it
acted according to its obligations under various card schemes rules and similar regulations. The matter has been
set down for hearing on 8 June 2027.
7
Relevant Parties
Overview Description
Centlec (SOC) Ltd (“
Centlec
”’) //
EasyPay Proprietary Limited
Centlec is a former customer of EasyPay. The contract between the parties expired and EasyPay is claiming
payment of (i) R1,577,862.39 from Centlec in respect of unutilised prepaid electricity refunds; and
(ii) R1,362,729.45 from Centlec in respect of unpaid commission. A letter of demand has been dispatched to
Centlec.
G
AAP Point of Sale Proprietary Limited (“GAAP PoS”)
8
Mustek East Africa Limited
(Plaintiff) (
“Mustek Kenya
”) //
GAAP PoS (Defendant)
Case number: E723/2025 – IN
(“
Mustek Kenya / GAAP
Dispute
”)
On or about 10 November 2025, Mustek East Africa Limited (“
Mustek Kenya
”), a company registered under the
laws of Kenya under company registration number C 104324, instituted court proceedings against GAAP PoS in
the High Court of Kenya at Nairobi, Milimani High Court by way of service of summons issued under case number
HCCOMM/E723/2025 (“
Summons
”). In terms of the Summons, Mustek is seeking to recover the following:
●
●
●
●
●
thereon;
●
●
Mustek Kenya is (almost) wholly-owned by Mustek South Africa Limited (“
Mustek South Africa
”). The register of
members of Mustek Kenya indicates that 1 share in Mustek Kenya is held by a deceased estate and the remaining
shares are held by Mustek South Africa . Mustek’s claim is premised on an unsigned agency agreement. Mustek
was instructed to act solely as an agent of GAAP PoS and not in the capacity of a business partner.
On 1 August 2016, Mustek and/or its Managing Director Mr Corne Crombrink (“
Mr Combrink
”), registered a
company under the laws of Kenya, named “GAAP Limited” (“
GAAP Limited
”) without the approval of GAAP PoS.
Mr Crombrink is the sole shareholder of GAAP Limited. On 19 September 2016, GAAP Limited filed an application
Mustek registered the “GAAP” trademark (“
GAAP Trademark
”) in Kenya without the approval or involvement of
9
Relevant Parties
Overview Description
GAAP PoS. On 4 May 2017 the GAAP trademark was accordingly registered in Kenya in the name of GAAP
Limited.
ENS (Kenya) (“
ENS Kenya
”), acting on behalf of GAAP PoS, entered an Appearance to Defend. GAAP PoS’s
Statement of Defence, Plea and Counterclaim, together with the witness statement and bundle of documents,
were filed and served on 19 December 2025.
In its counterclaim against Mustek Kenya, Mr Combrink and GAAP Limited GAAP PoS is seeking damages and
other appropriate claims under the laws of Kenya relation to the sale of certain competing software and hardware
products to the detriment of GAAP PoS and in breach of the agency agreement concluded orally between GAAP
PoS and Mustek. A portion of the total amount to be claimed under the counterclaim is subject to further
computation and is expected to exceed approximately ZAR13,000,000 (KESH102 899342,00). The additional
portion of the total amount to be claimed under the counterclaim will be computed by GAAP PoS based on accounts
and other documents to be delivered to GAAP PoS by Mustek Kenya and GAAP Limited, provided that GAAP PoS
is granted a court obliging Mustek Kenya and GAAP Limited to do so, and Mustek Kenya and GAAP Limited
comply with the order.
Current Status
The Plaintiff’s Reply to Defence and Defence to Counterclaim; and related papers including an application dated
22
nd
GAAP filed its Reply to Defence on 6 February 2026. The Deputy Registrar of the Court has referred this dispute
to Mediation. The parties are awaiting allocation of a Mediation commencement date.
M
ain Street 1723 Proprietary Limited
10
Relevant Parties
Overview Description
Mengesa Zamokuhle Monica
(“
Monica
”) // Main Street 1723
Proprietary Limited (“
Main Street
”)
A letter of demand was received from Nengwekhulu Attorneys, Inc. to the effect that their client is claiming the sum
of R50,000.00 from Main Street. Monica is one of Kazang’s merchants (customers) and instructed Kazang to make
payment of an amount of R50,000.00 into a bank account, the details of which were provided by Monica to Kazang.
It subsequently transpired that the bank details provided were incorrect and Monica is seeking reimbursement
from Kazang. Kazang has responded to the letter to deny liability and will contact to the incorrect payee to request
repayment of the amount.
Kazang has responded to the letter received from the attorneys and has to date not received a response. A letter
was sent to the incorrect payee to return the money erroneously paid to them and has to date not received payment
or a response.
N
orth City Wholesalers (Pty) Ltd
(“
North City Wholesalers
”) //
Main Street
Letter of demand received on 26 August 2025 regarding contractual dispute and alleged unauthorised
transactions.
Summary
:
Letter of demand received from attorneys acting for North City Wholesalers, alleging unauthorised
transactions totalling R1,898,085.50 following changes to the operational arrangements of a long-standing
agreement. The allegations include fraudulent transfers, use of funds for gaming purposes, and involvement of a
former Main Street employee (Lenny Govender), who has since been dismissed. The claimant asserts that Main
Street’s conduct and/or that of its employees caused the loss.
Main Street Management (led by Naeem Kola) had been in prior discussions with the claimant. A formal response
has not been issued at this stage. We acknowledged receipt of the letter and expressed intent to continue
discussions. All rights are reserved and no admission of liability has been made.
Next Steps:
Status:
Pre-litigation – active engagement pending
11
Relevant Parties
Overview Description
Homeboy Tavern (“
Homeboy
Tavern
“) // Main Street
A letter of demand was received from Sekhotla Attorneys on 26 August 2025 to the effect that their client is claiming
the sum of R296,000.00 from Main Street. Homeboy Tavern is one of Kazang’s merchants (customers). A now ex-
employee of Kazang, while still under Kazang’s employ, accessed the merchant’s account and transferred funds
out of the merchant’s account without authorisation, effectively defrauding the merchant.
Kazang’s fraud team carried out an investigation and determined that the value of the alleged fraud amounts to
R174,820, but that the alleged fraud occurred as a result of the omission and/or negligence and/or conduct on the
part of Homeboy Tavern, and that the fraud could have and would have been prevents had Homeboy Taven
exercised basic and reasonable password control of its account.
Kazang responded on 13 November 2025 indicating the aforementioned and that Homeboy Tavern failed to
mitigate its losses by putting reasonable safeguards in place to prevent fraud. Kazang denied responsibility for
Homeboy Tavern’s loss, submitting that Homeboy Tavern is liable for any loss suffered as a result of its own
negligence, omission and/or conduct.
Nevertheless, Kazang, in good faith, offered a settlement of R88,000 in full and final settlement of any and all
claims. The settlement offer was open for acceptance until 1 December 2025.
Sekhotla Attorney’s acknowledged receipt of Kazang’s letter on the same day (13 November 2025), but as of
15 January 2026, no response substantive has been received. Accordingly, the settlement offer has lapsed.
5.
BREACH OF LAWS (21.17)
5.1.
CIPC
”) in respect of a number of entities in the Term/RCF Borrower
Group. This constitutes a breach of the Companies Act, 2008. We are attending to updating the filings as matter of priority.
5.2.
This constitutes a breach of the Companies Act, 2008. We are attending to remedying this breach.
12
5.3.
contravention of section 52(5)(c) of the National Credit Act, 2005 (“NCA”). The NCR requested that EPFS provide written reasons for the delay together with an estimated
completion date within a specified timeframe. We have since responded to the NCR, setting out the reasons for the delay and confirming that the financial statements
will be finalised by 31 March 2026.
6.
INTELLECTUAL PROPERTY RIGHTS (21.20)
6.1.
the GAAP Trademark in Kenya without the approval or involvement of GAAP PoS. On 4 May 2017 the GAAP Trademark was accordingly registered in Kenya in the
name of GAAP Limited. GAAP PoS became aware of these facts on 12 December 2025 by virtue of a report submitted to it by ENS Kenya on that date.
6.2.
is being conducted.
7.
TAXES (CLAUSE 21.22)
7.1.
INCOME TAX
7.1.1.
7.1.1.1.
7.1.1.2.
7.1.1.3.
7.1.1.4.
7.1.1.5.
7.1.1.6.
13
7.1.1.7.
7.1.1.8.
7.1.1.9.
7.1.1.10.
1
ANNEXURE
1
ANNEXURE
1.
inter alia
and Lesaka Technologies Proprietary Limited on 28 October 2010, and all of its 13 addenda most
recently entered into on 31 October 2024;
2.
inter alia
Limited) and Lesaka Technologies Proprietary Limited on 25 March 2015;
3.
Sureswipe Proprietary Limited on 16 July 2018;
4.
and GAAP Point-of-Sale Proprietary limited on 9 December 2020;
5.
Mainstreet 1723 Proprietary Limited on 9 February 2021;
6.
Proprietary Limited on 1 April 2022;
7.
Technologies Proprietary Limited on 19 September 2024;
8.
Proprietary Limited on 19 September 2024;
9.
Proprietary Limited and Izi Group Proprietary Limited on 20 September 2024; and
10.
Proprietary Limited and Fidelity Cash Solutions Proprietary Limited on 23 September 2024.
2
ANNEXURE
3
Cost of funds as a fallback
Cost of funds will apply as a fallback.
Definitions
Additional Business Days:
An RFR Banking Day.
Business Day Conventions
(a)
If any period is expressed to accrue by reference to a Month
or any number of Months then, in respect of the last Month of
that period:
(i)
subject to paragraph
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;
(ii)
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
(iii)
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.
(b)
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).
Central Bank Rate:
The repurchase rate of the South African Reserve Bank as
published by the South African Reserve Bank from time to time.
C
entral Bank Rate
Adjustment:
None specified.
Credit Adjustment Spread:
The credit adjustment spread intended to place the Parties in the
same economic position as if JIBAR had not ceased, which is:
(a)
agreed in writing between the Borrower and the Facility
Agent (acting on the instructions of all the Lenders) by no
later than the date falling 10 (ten) Business Days prior to the
applicable Rate Switch Date; or
4
(b)
should the Borrower and the Facility Agent (acting on the
instructions of the Lenders) fail to agree a rate as
contemplated in paragraph (a) by the date falling 10 (ten)
Business Days prior to the Rate Switch Date, the credit
adjustment spread determined by the Facility Agent prior to
the Rate Switch Date using the methodology recommended
by the South African Reserve Bank (or any other person
which takes over the administration of ZARONIA) for such
purpose or such other methodology as may be generally
adopted in the Relevant Market, provided that if the credit
adjustment spread so determined is less than zero, the Credit
Adjustment Spread shall be deemed to be zero.
Daily Rate:
The
Daily Rate
(a)
the RFR for that RFR Banking Day;
(b)
if the RFR for that RFR Banking Day is not available, the
Historic RFR for that RFR Banking Day; or
(c)
if paragraph
RFR Banking Day is not available, the percentage rate per
annum which is the Central Bank Rate for that RFR Banking
Day; or
(d)
if paragraph
that RFR Banking Day is not available, the most recent
Central Bank Rate for a day which is no more than 5 (Five)
RFR Banking Days before that RFR Banking Day,
rounded, in either case, to three decimal places and if, in either
case, the aggregate of that rate and the applicable Credit
Adjustment Spread is less than zero, the Daily Rate shall be
deemed to be such a rate that the aggregate of the Daily Rate and
the applicable Credit Adjustment Spread is zero.
Lookback Period:
5 (Five) RFR Banking Days.
Market Disruption Rate:
(a)
the Cumulative Compounded RFR Rate for the Interest
Period of the relevant Loan; and
(b)
the Credit Adjustment Spread.
Relevant Market:
The ZAR overnight wholesale funding market.
Reporting Day:
The day which is the Lookback Period prior to the last day of the
Interest Period or, if that day is not a Business Day, the
immediately following Business Day.
R
FR:
The South African Rand overnight index average (ZARONIA)
administered by the South African Reserve Bank (or any other
person which takes over the administration of that rate) published
by the South African Reserve Bank (or any other person which
takes over the publication of that rate).
5
RFR Banking Day:
A day (other than a Saturday, a Sunday or official public holiday)
on which banks are open for general business in Johannesburg.
Reporting Times
Deadline for Lenders to
report market disruption in
accordance with Clause 11.4
(Market disruption)
Close of business in Johannesburg on the Reporting Day.
Deadline for Lenders to
report their cost of funds in
accordance with Clause 11.6
(Cost of funds)
Close of business on the date falling 2 Business Days after the
Reporting Day (or, if earlier, on the date falling 2 Business Days
before the date on which interest is due to be paid in respect of the
Interest Period for the relevant Loan).
6
ANNEXURE
The
Daily Non-Cumulative Compounded RFR Rate
i
" during an Interest Period
for a Compounded Rate Loan is the percentage rate per annum (without rounding, to the extent reasonably
practicable for the Lender performing the calculation, taking into account the capabilities of any software used
for that purpose) calculated as set out below:
where:
UCCDR
i
i
" ;
UCCDR
i-1
means, in relation to that RFR Banking Day “
i
" , the Unannualised Cumulative Compounded Daily
Rate for the immediately preceding RFR Banking Day (if any) during that Interest Period;
n
i
i
" up to, but excluding, the
following RFR Banking Day; and
the
Unannualised Cumulative Compounded Daily Rate
Cumulated RFR
Banking Day
) during that Interest Period is the result of the below calculation (without rounding, to the extent
reasonably practicable for the Lender performing the calculation, taking into account the capabilities of any
software used for that purpose).
where:
ACCDR
tn
i
means the number of calendar days from, and including, the first day of the Cumulation Period to, but
excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period;
Cumulation Period
to, and including, that Cumulated RFR Banking Day; and
the
Annualised Cumulative Compounded Daily Rate
rate per annum (rounded to four decimal places) calculated as set out below:
where:
7
d
0
means the number of RFR Banking Days in the Cumulation Period;
Cumulation Period
“
i
" means a series of whole numbers from one to
d
0
, each representing the relevant RFR Banking Day in
chronological order in the Cumulation Period;
DailyRate
i-LP
i
" in the Cumulation Period, the Daily Rate for the RFR Banking
Day which is the applicable Lookback Period prior to that RFR Banking Day “
i
" ;
n
i
i
" in the Cumulation Period, the number of calendar days from, and
including, that RFR Banking Day “
i
" up to, but excluding, the following RFR Banking Day; and
tn
i
8
ANNEXURE
The Cumulative Compounded RFR Rate for any Interest Period for a Compounded Rate Loan is the percentage
rate per annum (rounded to four decimal places) calculated as set out below:
where:
d
0
“
i
" means a series of whole numbers from one to d
0
, each representing the relevant RFR Banking Day in
chronological order during the Interest Period;
DailyRate
i-LP
i
" during the Interest Period, the Daily Rate for the RFR Banking
Day which is the applicable Lookback Period prior to that RFR Banking Day “
i
";
n
i
i
", the number of calendar days from, and including, that RFR Banking
Day “
i
" up to, but excluding, the following RFR Banking Day; and
d
9
ANNEXURE D - AMENDED AND RESTATED SENIOR RCF AGREEMENT
10
ANNEXURE E - AMENDED AND RESTATED SENIOR TERM FACILITY A AGREEMENT
ANNEXURE F - AMENDED AND RESTATED SENIOR TERM FACILITY B AGREEMENT