ADDENDUM TO LOAN AGREEMENT
1. PARTIES
1.1 The parties to this agreement are ~
1.1.1 PSG Investment Bank Limited;
1.1.2 Caledon Casino Bid Company (Proprietary) Limited.
1.2 The parties agree as set out below.
2 INTERPRETATION
2.1 In this agreement, unless inconsistent with or otherwise indicated
by the context ~
2.1.1 the/this "AGREEMENT" means the agreement as set out in this document;
2.1.2 "BIDCO" means Caledon Casino Bid Company (Proprietary) Limited,
registration number 1996/010708/07, a private company duly
incorporated in accordance with the laws of the Republic of South
Africa;
2.1.3 the "LOAN AGREEMENT" means the loan agreement concluded between PSGIB
and Bidco on 12 April 2000, pursuant to which PSGIB INTER ALIA made
the principal loan to Bidco;
2.1.4 the "PRINCIPAL LOAN" means the principal loan as defined in the loan
agreement;
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2.1.5 "PSGIB" means PSG Investment Bank Limited, registration number
1998/17396/06, a public company duly incorporated in accordance with
the laws of the Republic of South Africa;
2.1.6 save where otherwise indicated, all expressions defined in the loan
agreement have the meanings assigned to them therein;
2.1.7 any reference to the singular includes the plural and VICE VERSA;
2.1.8 any reference to natural persons includes legal persons and VICE
VERSA;
2.1.9 any reference to gender includes the other genders.
2.2 The clause headings in this agreement have been inserted for
convenience only and shall not be taken into account in its
interpretation.
2.3 Words and expressions defined in any sub-clause shall, for the
purpose of the clause of which that sub-clause forms part, bear
the meaning assigned to such words and expressions in that sub-clause.
2.4 If any provision in a definition is a substantive provision conferring
rights or imposing obligations on any party, effect shall be given to
it as if it were a substantive clause in the body of the agreement,
notwithstanding that it is only contained in the interpretation clause.
2.5 If any period is referred to in this agreement by way of reference to a
number of days, the days shall be reckoned, subject to 2.6 below,
exclusively of the first and inclusively of the last day unless the
last day falls on a day which is not a business day, in which case the
day shall be the next succeeding business day.
2.6 If any period for which interest is to be calculated is referred to
in this agreement by way of a reference to a number of days, the
days shall be reckoned inclusively of the first and exclusively
of the last day.
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2.7 This agreement shall be governed by, construed and interpreted
in accordance with the law of the Republic of South Africa.
3 RECORDAL
3.1 The parties have concluded the loan agreement.
3.2 Pursuant to the loan agreement, PSGIB made the working capital
facility available to Bidco on the terms and conditions more fully
envisaged in the loan agreement.
3.3 Bidco did not require the working capital facility and
accordingly cancelled the working capital facility.
3.4 Bidco now requires further capital and the parties accordingly
wish to amend the loan agreement in the manner set out herein.
4 AMENDMENT OF DEFINITIONS
The parties hereby amend the definitions contained in the loan agreement
by the addition of the following new definition ~
"2.1.48 the "NEW INTEREST BASE RATE" means 12.10%
(Twelve, one zero PER CENTUM), nominal annual compounded monthly;".
5 AMENDMENT OF PARAGRAPH 7
The parties replace paragraph 7 of the loan agreement with the
following paragraph ~
7 THE STANDBY FACILITY AND THE RESERVE ACCOUNT
7.1 PSGIB hereby makes a standby facility available to Bidco on the terms
and conditions set out in this agreement. The amount of the
standby facility shall be R4 500 000,00 (four million five hundred
thousand Rand).
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7.2 Subject to 7.4 below Bidco shall, out of the cash available to it from
time to time, and with effect from [signature date] maintain a
debt service reserve which shall ~
7.2.1 be equal to R500 000,00 (five hundred thousand Rand) by 30 April 2001;
7.2.2 be equal to R1 000 000,00 (one million Rand) in total by 31 May 2001;
7.2.3 for the period from 30 June 2001 to 31 December 2001 be increased by
an amount of R1 000 000,00 (one million Rand) per month;
7.2.4 at all relevant times after 31 December 2001, be equal to at least the
total of the next 1 (one) repayment to be made by it in respect
of the principal loan and the next 1 (one) repayment to be made by it
in respect of the standby facility.
7.3 Subject to 7.4 below, Bidco shall cause the amount of the debt service
reserve which it will be obliged to maintain in terms of 7.2
above, to be deposited in an account maintained by it with a bank,
registered as such in terms of the Banks Act. The aforesaid account is
referred to herein as the "RESERVE ACCOUNT" and Bidco shall, forthwith
after it becomes obliged to establish the reserve account and to
deposit funds into it, request PSGIB to advise it whether PSGIB wishes
the reserve account to be maintained with PSGIB. PSGIB shall, within 2
(two) business days after receipt of Bidco's aforesaid request, in
writing advise Bidco whether it wishes the reserve account to be
opened with PSGIB or not. If ~
7.3.1 PSGIB advises Bidco that it requires Bidco to open the reserve account
with PSGIB, interest shall accrue, in respect of amounts held
from time to time in the reserve account, at a rate of interest equal
at least to the most favourable rate of interest paid by PSGIB to any
of its other customers in respect of a 6 (six) months call deposit
(the "PSGIB RATE"). Should the PSGIB rate be lower than an interest
rate that Bidco can obtain from another bank with a credit rating of
A1, PSGIB will be afforded the opportunity to pay a rate equal to the
higher rate. Should PSGIB not be prepared to pay the higher rate Bidco
will have the right to place the deposit with the other bank, subject
to the conditions in 7.3.2;
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7.3.2 PSGIB advises Bidco in writing that it does not require Bidco to open
the reserve account with it, Bidco shall, within 2 (two) business
days after receiving PSGIB's aforesaid written advice, open the
reserve account with a bank which has a credit rating of A1 (or an
equivalent rating), and shall, forthwith after it has opened that
account, deposit into that account the amounts which it is required to
deposit.
7.4 Bidco shall be entitled to elect not to maintain the reserve account but
instead to furnish to PSGIB an unconditional guarantee ~
7.4.1 by a bank with a credit rating of A (or an equivalent rating or
better);
7.4.2 for an amount equal from time to time to the reserves which Bidco is
obliged to maintain in terms of 7.2 above;
7.4.3 in such a form as PSGIB may in its reasonable discretion determine.
Bidco shall be entitled to exercise the election conferred on it
in terms of this paragraph 7.4 at any time whilst, in terms of 7.2 and
7.3 above it is obliged to maintain the reserve account. Bidco shall
not, however, be entitled either to refuse to establish the reserve
account or to withdraw any amounts deposited by it into the reserve
account unless and until it has caused the guarantee envisaged in this
paragraph 7.4 to be delivered to PSGIB.
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7.5 As and when Bidco wishes to draw-down any amounts against the standby
facility, it shall deliver a written notice to PSGIB ("A FACILITY
DRAW-DOWN NOTICE"), that notice to ~
7.5.1 set out the amount of the draw-down which Bidco wishes to make against
the standby facility;
7.5.2 specify a draw-down date which shall not be less than 3 (three)
business days after receipt by PSGIB of the facility draw-down
notice in question.
Bidco shall not be entitled to make draw-downs against the
standby facility more frequently than once in every calendar month,
and shall not be entitled to make draw-downs against the standby
facility at any time after 30 December 2001.
7.6 PSGIB shall advance the amount specified in any facility draw-down
notice, provided that the facility draw-down notice complies with
the requirements of 7.5 above, on the draw-down date stipulated in the
facility draw-down notice. All advances made by PSGIB to Bidco in
respect of the standby facility shall be paid by PSGIB into such a
bank account as Bidco may from time to time in writing specify.
7.7 All amounts drawn-down by Bidco against the standby facility shall
accrue interest from time to time at a rate equal to 3% (three
PER CENTUM) above the new interest base rate, expressed as a nominal
annual compounded monthly rate. All interest which accrues on the
standby facility prior to the date on which Bidco has drawn-down the
standby facility in full shall be capitalised.
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7.8 Notwithstanding anything to the contrary contained in this agreement,
PSGIB shall not be obliged to advance any further amounts on
account of the standby facility to Bidco once all amounts previously
advanced by it to Bidco in respect of the standby facility, excluding
any capitalised interest in respect of those amounts, reach or
exceed the maximum amount of the standby facility envisaged in
7.1 above.
7.9 If Bidco has, by 30 December 2001 ("THE EXPIRY DATE"), not made any
draw-downs against the standby facility ~
7.9.1 the standby facility shall, with effect from 31 December 2001 IPSO
FACTO terminate, and Bidco shall not, thereafter, be entitled to
draw-down any amounts against the standby facility;
7.9.2 no such a deemed cancellation of the standby facility shall, in any
manner whatsoever, entitle Bidco to receive repayment of any
commitment fee, as envisaged in 7.10 below, which it has paid to
PSGIB in respect of the standby facility.
7.10 Bidco shall, with effect from [signature date] and monthly in arrears,
pay a monthly commitment fee to PSGIB in respect of the undrawn
portion of the standby facility. That commitment fee shall ~
7.10.1 for so long as any portion of the standby facility remains undrawn,
be calculated on the 1st (first) day of each and every
calendar month;
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7.10.2 be calculated on the amount of R4 500 000,00 (four million five
hundred thousand Rand);
7.10.3 be equal to 40 (forty) basis points (nominal annual compounded
annually) on the amount of the undrawn facility on the date
on which the calculation is made;
7.10.4 exclude VAT.
If the commitment fee envisaged in this paragraph becomes payable for
a portion of a month only, the amount payable in respect of that
month shall be pro-rated.
7.11 Bidco's obligation to pay the commitment fee envisaged in 7.10 above
shall terminate ~
7.11.1 with effect from the date on which Bidco has drawn-down the standby
facility in full; or
7.11.2 with effect from the date on which the standby facility terminates by
virtue of the provisions of 7.9.1 above".
6 AMENDMENT OF PARAGRAPH 8
The parties hereby delete paragraph 8 of the loan agreement in its
entirety and hereby replace that paragraph with the following
paragraph ~
8 REPAYMENT OF CAPITAL AND INTEREST
8.1 For the purposes of this paragraph ~
8.1.1 the "FINAL PRINCIPAL DATE" means 30 June 2001;
8.1.2 the "FINAL FACILITY DATE" means 31 December 2001;
8.1.3 "THE PRINCIPAL OUTSTANDING" means the aggregate of all amounts
drawn-down, as at the final principal date, by Bidco on account
of the principal loan, together with all capitalised interest, as at
the final principal date, on those amounts;
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8.1.4 "THE FACILITY OUTSTANDING" means the aggregate of all amounts
drawn-down by Bidco, as at the final facility date, against the
standby facility together with all capitalised interest on the amount
of those draw-downs as at the final facility date.
8.2 Bidco shall repay ~
8.2.1 the principal outstanding to PSGIB in 10 (ten) equal semi-annual
payments, the first such payment to be made on the last day of
the 6th (sixth) month following upon the final principal date, and
subsequent payments to be made on the last day of each and every 6th
(sixth) month thereafter;
8.2.2 the facility outstanding to PSGIB in 10 (ten) equal semi-annual
instalments, the first payment to be made on the final facility
date and the subsequent payments to be made on the last day of each
and every 6th (sixth) month thereafter.
8.3 Bidco shall pay to PSGIB ~
8.3.1 on the last day of every 6th (sixth) month after the final principal
date, all interest which has accrued on the balance of the
principal outstanding during the immediately preceding 6 (six) months;
8.3.2 on the final facility date the interest which has accrued on the
facility outstanding up to the final facility date and each
subsequent payment to be made on the last day of each 6th (sixth)
month after the final facility date, such payment to be equal to the
interest which has accrued on the facility outstanding during the
immediately preceding 6 (six) months."
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7 AMENDMENT OF POSITIVE UNDERTAKINGS
The parties hereby amend the positive undertakings contained in
paragraph 10 of the loan agreement by the addition of the following
sub-paragraph
~
10.6 Bidco shall ~
10.6.1 ensure that it has spent the full amount of capital as
required by the Board in terms of the Board guarantee
by 31 May 2001;
10.6.2 apply to the Board to reduce the current Board guarantee
of R2 351 955,00 (two million three hundred and fifty one
thousand nine hundred and fifty five Rand) by an amount of
R2 000 000,00 (two million Rand), by no later than 15
June 2001."
8 AMENDMENT OF PHRASE
The parties hereby delete the reference to "THE WORKING CAPITAL
FACILITY" wherever it may appear in the loan agreement and replace
that reference with a reference to "THE STANDBY FACILITY" throughout
the loan agreement.
9 REMAINDER
Subject to the amendments contained herein, the loan agreement
shall continue to be of full force and effect.
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SIGNED at Caledon on 21, April 2001
AS WITNESS:
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/s/Xxxx Xxxxxx For: PSG INVESTMENT BANK LIMITED
/s/Xxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
(Name of witness in print) Duly authorised
SIGNED at Caledon on 21, April 2001
AS WITNESS:
------------
/s/Xxxx Xxxxxx For: CALEDON CASINO BID
COMPANY (PROPRIETARY) LIMITED
/s/Xxxx Xxxxxx /s/Xxxxx Xxxxxx
(Name of witness in print) Duly authorised
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