EXHIBIT 10.15
FACILITY
between
CASH PAYMASTER SERVICES EASTERN CAPE
(PROPRIETARY) LIMITED
(the "Borrower")
and
NEDBANK LIMITED
("the Bank")
or its successor in title
TABLE OF CONTENTS
1 INTERPRETATION 1
2 FACILITY 7
3 PURPOSE 7
4 DRAWDOWNS 7
5 REPAYMENT 9
6 INTEREST 10
7 PAYMENTS 10
8 TAXES 11
9 INCREASED COSTS 12
10 UNAVAILABILITY OF FACILITY 13
11 ALLOCATION OF PAYMENTS 14
12 EXCHANGE CONTROL APPROVAL 14
13 UNDERTAKINGS 15
14 WARRANTIES 16
15 INFORMATION 20
16 AUTHORISATION 21
17 NEGATIVE PLEDGE 21
18 DISPOSALS 21
19 INSURANCE 22
20 MAINTENANCE OF STATUS 22
21 DEFAULT 23
22 FEES 29
23 VAT 30
24 EVIDENCE AND CALCULATIONS 30
25 TRANSFER, CESSION AND ASSIGNMENT 31
26 SET-OFF 31
27 COSTS 31
28 WHOLE AGREEMENT 31
29 VARIATION OF TERMS 32
30 NO INDULGENCE 32
31 PRESCRIPTION 32
32 SEVERABILITY 32
33 RENUNCIATION OF BENEFITS 33
34 NOTICES 33
35 GOVERNING LAW 35
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FACILITY
between
CASH PAYMASTER SERVICES EASTERN CAPE
(PROPRIETARY) LIMITED
(the "Borrower')
and
NEDBANK LIMITED
("the Bank")
or its successor in title
IT IS AGREED AS FOLLOWS
1 INTERPRETATION
1.1 Definitions
In this Agreement:
1.1.1 "BUSINESS DAY" means a day (other than a Saturday or a Sunday) on
which banks are open for business in Johannesburg;
1.1.2 "COMPANY LAW" means the Company Law applicable in the Republic of
South Africa;
1.1.3 "DEFAULT" means an Event of Default or an event which, with the
giving of notice, lapse of time, determination of materiality or
fulfillment of any other applicable condition (or any combination of
the foregoing), would constitute an Event of
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Default between the parties hereto and as contemplated in this
Agreement;
1.1.4 "DEPARTMENT" means the Department of Social Welfare and Population
Development, Province of the Eastern Cape, being the governmental
body responsible for the payment of social grants to social grant
beneficiaries in the province of the Eastern Cape;
1.1.5 "DRAWDOWN DATE" means the date of the advance of a Loan.
1.1.6 "EFFECTIVE DATE" means the later of the date of this Agreement or
the date upon which the conditions precedent provided for in clause
4 are fulfilled;
1.1.7 "EVENT OF DEFAULT" means an event specified as such in this
Agreement;
1.1.8 "FACILITY" means the fluctuating term credit facility to be made
available to the Borrower by the Bank pursuant to the terms of this
Agreement;
1.1.9 "FACILITY OFFICE" means the office(s) notified by the Bank to the
Borrower by not less than two Business Days' notice as the office(s)
through which it will perform all or any of its obligations under
this Agreement from time to time;
1.1.10 "FINANCIAL INDEBTEDNESS" means any indebtedness in respect of:-
1.1.10.1 monies borrowed at banks and other financial institutions;
1.1.10.2 any debenture, bond, note, loan stock or other security but
excluding any xxxx or note drawn, accepted or issued by the
Borrower in the ordinary course of its business;
1.1.10.3 any acceptance credit;
1.1.10.4 receivables sold or discounted (otherwise than on a
non-recourse basis);
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1.1.10.5 the acquisition cost of any asset to the extent payable before
or after the time of acquisition or possession by the party
liable where the advance or deferred payment is arranged
primarily as a method of raising finance or financing the
acquisition of that asset;
1.1.10.6 any lease entered into primarily as a method of raising
finance or financing the acquisition of the asset leased;
1.1.10.7 any currency swap or interest swap, cap or collar arrangement
or any other derivative instrument except insofar as it has
been provided for in its financial statements from time to
time in accordance with Generally Accepted Accounting
Practice;
1.1.10.8 any amount raised under any other transaction having the
commercial effect of a borrowing or raising of money; or
1.1.10.9 any guarantee, indemnity or similar assurance against
financial loss of any person but excluding performance or
similar guarantees of a non-financial nature provided they
are/were given in the ordinary course of business.
1.1.11 "HOLDING COMPANY" means, in relation to a person, an entity of which
that person is a Subsidiary;
1.1.12 "INVOICE" means the weekly invoice generated by the Borrower on the
Invoice Date addressed to the Department and copied to the Bank,
reflecting daily payments made by the Borrower to social grant
beneficiaries on behalf of the Department from an Invoice Date to
the day preceding the next Invoice Date, both days inclusive;
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1.1.13 "INVOICE DATE" means each Monday following a drawdown by the
Borrower of a Loan or Loans, provided that if any such Monday does
not fall on a Business Day, then the next Business Day;
1.1.14 "LOAN" means the capital amount of each of the amounts drawn down
daily by the Borrower from time to time under this Agreement;
1.1.15 "MATERIAL ADVERSE EFFECT" means a material adverse change in the
business, property, operations, assets, condition (financial or
otherwise) of the Borrower and/or any sureties or guarantors, if
any, as the case may be, which change, in the reasonable opinion of
the bank, prevents or aggravates the Borrower's ability to perform
or observe, in the normal course, its obligations arising from or in
terms of the facility and/or prevents or aggravates the ability of
any sureties or guarantors, as the case may be, to perform or
observe, in the normal course, their obligations arising from or in
terms of a suretyship or guarantee, as the case may be, or the
validity and enforceability of the Facility or the rights and
remedies of the Bank thereunder;
1.1.16 "MATERIAL PORTION OF ITS ASSETS OR UNDERTAKING" means in aggregate
ten per cent (10%) or more of the book value of the Borrower's total
assets reflected in its most recent audited financial statements or
interim financial statement;
1.1.17 "PARTY" means a party to this Agreement, and shall include any
Subsidiary of Nedbank Limited with whom the Facility is placed in
terms of clause 25;
1.1.18 "RAND" or "ZAR" means the lawful currency for the time being of the
Republic of South Africa;
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1.1.19 "REPAYMENT DATE" means, in relation to the Loans made up to and
including the Invoice Date, the 7th (Seventh) Business Day
immediately following the Invoice Date, provided that the Bank, in
its sole and unfettered discretion, may allow such date to be
extended by a maximum of 2 (Two) Business Days ("THE EXTENDED
REPAYMENT PERIOD") following a request by the Borrower, without
prejudice to any rights which the Bank may have as a result of any
failure by the Borrower to pay any amount due as at such date;
1.1.20 "SECURITY INTEREST" means any mortgage, guarantee, suretyship,
pledge, lien, deed/s of cession, assignment, hypothecation or
security interest or any other agreement or arrangement having the
effect of conferring security;
1.1.21 "SUBSIDIARY" means an entity and "SUBSIDIARIES" means entities from
time to time of which a person has direct or indirect control or
owns directly or indirectly more than fifty per cent (50%) of the
share capital or similar right of ownership;
1.1.22 "TOTAL COMMITMENT" means the aggregate maximum sum of the Loans to
be made by the Bank to the Borrower in terms of this Agreement,
being ZAR 150,000,000 (One Hundred and Fifty Million South African
Rands), which amount excludes any interest.
1.2 CONSTRUCTION
1.2.1 In this Agreement, unless the contrary intention appears, a
reference to:
1.2.1.1 an "AMENDMENT" includes a supplement, novation or re-enactment
and "amended" is to be construed accordingly;
1.2.1.2 "ASSETS" includes present and future properties, revenues and
rights of every
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description;
1.2.1.3 an "AUTHORISATION" includes an authorisation, consent,
approval, resolution, licence, exemption, filing or
registration;
1.2.1.4 "CONTROL" means the power to direct the management and
policies of an entity, whether through the ownership of voting
capital, by contract or otherwise.
1.2.1.5 a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month, except that:
1.2.1.5.1 if there is no numerically corresponding day in the
month in which that period ends, that period shall end
on the last Business Day in that calendar month; or
1.2.1.5.2 if an Interest Period commences 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 it
is to end;
1.2.1.6 a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory.
self-regulatory or other authority or organisation;
1.2.1.6.1 a provision of law is a reference to that provision as
amended or re enacted:
1.2.1.6.2 a Clause or a Schedule is a reference to a clause of or
a schedule to this Agreement;
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1.2.1.6.3 a person includes its successors and assigns;
1.2.1.6.4 a document is a reference to a document as amended; and
1.2.1.6.5 a time of day is a reference to local time in the
Republic of South Africa.
1.2.1.7 The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
2 FACILITY
Subject to the terms of this Agreement, and with effect from the Effective
Date, the Bank agrees to make the Facility available to the Borrower, up to
an amount not exceeding the Total Commitment.
3 PURPOSE
The Borrower shall apply each Loan exclusively towards making social grant
payments on behalf of the Department in terms of its service level agreement
with the Department. Without affecting the obligations of the Borrower in any
way, the Bank is not bound to monitor or verify any application for a Loan.
4 DRAWDOWNS
4.1 MONTHLY FORECAST
The Borrower will provide the Bank with a written monthly forecast of the
daily drawdowns to be made by the Borrower at least three Business Days
prior to the first day of the month in question. The Bank will make funds
available for the Borrower to drawdown in terms of this Agreement on a
daily basis in accordance with the monthly forecast. Should the Borrower
wish to drawdown any funds in excess of the
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daily amounts set out in the monthly forecast, the Borrower shall deliver
a written request to the Bank for each such excess drawdown at least three
Business Days prior to the applicable Drawdown Date. Any written request
so delivered is irrevocable and at the sole discretion of the Bank.
Notwithstanding the aforegoing, in the event that:
4.1.1 money has been stolen from the Borrower and such money is
recoverable from the Borrower's insurers, whether self insurance
fund or external, as the case may be; or
4.1.2 money delivered to the Borrower has been damaged and will be
replaced by the South African Reserve Bank; or
4.1.3 the Borrower is aware of social grant beneficiaries who wish to
collect social grant payments to which they are entitled, but who
did not previously collect such payments;
and, as a consequence, the Borrower will require a Loan or Loans in excess
of the drawdown due in terms of the monthly forecast, then the Bank may,
but is not obliged to, agree in writing to allow such excess or excesses
to be drawn down in terms of this Agreement on short notice.
4.2 MAXIMUM
The Bank will not be obliged to pay any drawdown should the aggregate of
the Loans, and bank charges (taking into account the drawdown refused by
the Bank) exceed the Total Commitment.
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5 REPAYMENT
5.1 It is recorded that the Borrower will generate an Invoice on the Invoice
Date. A copy of each Invoice will be e-mailed and faxed to the Bank on the
Business Day immediately following the Invoice Date.
5.2 The Borrower shall repay each Loan on the Repayment Date relating thereto.
The Borrower shall procure that the Department pays the amounts due in
terms of each Invoice by the Department to the Borrower in terms of the
service level agreement between the Borrower and the Department into the
account designated for such payment by the Bank. It is recorded that,
until the Bank notifies the Borrower otherwise in writing, the account so
designated shall be the Borrower account held under account number
0000-000-000.
5.3 In the event that any Loan has not been repaid at the relevant Repayment
Date, or in the event that any amount due by the Borrower to the Bank in
terms of this Agreement is unpaid, then the Bank shall be entitled,
without prejudice to any other rights which may accrue to it in terms of
this Agreement, to refuse any further draw downs on the Facility until
such loan and interest have been repaid. The Bank may further demand the
return and redeposit of any such monies, and the Borrower shall comply
with such demand forthwith.
5.4 Any amounts that have been repaid can subsequently be redrawn, provided
that:
5.4.1 the conditions for drawdown of Loans as contemplated herein are met;
5.4.2 the Borrower is not in Default;
5.4.3 the Total Commitment is not exceeded; and
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5.4.4 the Borrower shall repay each Loan in full on the Repayment Date.
6 INTEREST
6.1 INTEREST RATE
Unless otherwise agreed upon in writing by the parties, the interest rate
payable by the Borrower on the amounts of the Loans outstanding from time
to time will be the Banks overnight call lending rate quoted by the
Nedbank treasury from time to time, and interest will be paid to the Bank
by the debiting of the Borrower's current account held at a branch of the
Bank.
6.2 DUE DATES
Interest will be calculated daily on the outstanding amounts of the Loans
and, except as otherwise provided in this Agreement, accrued interest on a
Loan will be payable by the Borrower on a monthly basis in line with the
interest cycle of the Aplitec Group on the Repayment Date of each Loan.
6.3 DEFAULT INTEREST
If the Borrower fails to pay any amount payable by it under this
Agreement, it shall, forthwith on demand by the Bank, pay interest on the
overdue amount from the Repayment Date up to the date of actual payment
(both days inclusive) at the Banks publicly quoted prime overdraft rate
from time to time.
7 PAYMENTS
7.1 PLACE
All payments due by the Borrower shall be paid to the Bank at such
Facility office or
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branch of the Bank in the Republic of South Africa as the Bank may notify
to the Borrower for this purpose.
7.2 CURRENCY
Any amounts payable in respect of this Agreement are payable in the
currency in which they are incurred, which for the purposes of this
Agreement is ZAR (South African Rand).
7.3 SET-OFF AND COUNTERCLAIM
All payments made by the Borrower under this Agreement shall be made
without set-off or counterclaim.
7.4 NON DAYS
7.4.1 If a payment under this Agreement is due on a day which is not a
Business Day, the Repayment Date for that payment shall instead be
the next Business Day in the same calendar month (if there is one)
or the preceding Business Day (if there is not)
7.4.2 During any extension of the Repayment Date for payment of any amount
under this Agreement as contemplated in clause 7.4.1 above, interest
shall be payable on that amount from the Repayment Date until the
Extended Repayment Date, both days included at the rate applicable
as at the original Repayment Date.
8 TAXES
8.1 All payments by the Borrower under this Agreement shall be made without
any deduction and free and clear of and without deduction for or on
account of any taxes, except to the extent that the Borrower is required
by law to make payment subject to
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any taxes. Subject to paragraph 8.2.1 below, if any tax or amounts in
respect of tax must be deducted, or any other deductions must be made,
from any amounts payable or paid by the Borrower under this Agreement, the
Borrower shall pay such additional amount as may be necessary to ensure
that the Bank receives a net amount equal to the full amount which it
would have received had payment not been made subject to tax or any other
deduction.
8.2 The Borrower shall:
8.2.1 pay when due all taxes required by law to be deducted or withheld by
it from any amount paid or payable under this Agreement;
8.2.2 within 15 (Fifteen) days of the payment being made deliver to the
Bank evidence satisfactory to the Bank (including all relevant tax
receipts) that the payment has been duty remitted to the appropriate
authority.
9 INCREASED COSTS
9.1 If, by reason of (i) any change in law or in its interpretation or
administration or (ii) compliance with any request from or requirement of
general application of any central bank or other fiscal, monetary or other
authority (including, without limitation, a request or requirement which
affects the manner in which the Bank is required to or does maintain
capital resources having regard to the Bank's obligations hereunder and to
amounts owing to it hereunder):
9.1.1 the Bank incurs a cost as a result of the Bank's having entered into
this Agreement or as a result of the Bank performing its obligations
under this Agreement and/or assuming or maintaining a commitment
under this Agreement
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and/or making one or more Loans hereunder;
9.1.2 the Bank is unable to obtain the rate of return on its capital which
it would have been able to obtain but for the Bank's having entered
into and/or performing its obligations and/or assuming or
maintaining a commitment under this Agreement;
9.1.3 there is any increase in the cost to the Bank of funding or
maintaining all or any of the Loans made or to be made by the Bank
hereunder; or
9.1.4 the Bank becomes liable to make any payment on account of tax or
otherwise (not being a tax imposed on the net income of the Bank's
Facility Office by the jurisdiction in which it is incorporated or
in which its Facility Office is located) on or calculated by
reference to the amount of the Loan made or to be made by the Bank
hereunder and/or to any sum received or receivable by it hereunder,
then the Bank shall notify the Borrower as soon as is reasonably possible
thereof, and the Borrower shall pay to the Bank amounts sufficient to
indemnify the Bank against, as the case may be (1) such cost, (2) such
reduction in such rate of return (or such proportion of such reduction as
is, in the reasonable opinion of the Bank, attributable to its obligations
hereunder), (3) such increased cost (or such proportion of such increased
cost as is, in the reasonable opinion of the Bank, attributable to its
funding or maintaining advances hereunder) or (4) such liability.
10 UNAVAILABILITY OF FACILITY
Should:
10.1 there be any change in legislation or in the departmental practice of any
authority, and in particular without limiting the generality of the
aforegoing any change in the
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Income Tax Act, 1962 (as amended) or the Banks Act, 1990 (as amended) or
any regulations made in terms thereof, or in the interpretation or
application of any such legislation or departmental practice, by any court
or competent official; or
10.2 there be any change in banking practice as it affects or is applied by the
Bank and any other financial institution registered as such in the
applicable jurisdiction; or
10.3 any other event occurs which is beyond the control of the Bank;
with the result the facility contemplated in this Agreement is no longer
made available, then the Bank shall notify the Borrower in writing that
the facility will no longer be made available to the Borrower, or will
only be made available to the Borrower on certain specified terms and
conditions, and the Borrower shall, within 5 (Five) days unless otherwise
agreed between the parties in writing of the dispatch of such notice
elect:
10.4 to utilise the facility under the specified terms and conditions; or
10.5 to forthwith settle all amounts owing to the Bank.
11 ALLOCATION OF PAYMENTS
The Bank will be entitled to allocate any payment made to the Bank by the
Borrower to any indebtedness of the Borrower to the Bank, and the Borrower
waives any rights it may have to name the debt to which payment is to be
allocated.
12 EXCHANGE CONTROL APPROVAL
Where applicable, the Borrower shall comply with the requirements of the
Exchange Control Regulations and will furnish proof of such compliance to
the Bank on request.
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13 UNDERTAKINGS
The Borrower undertakes:
13.1 to furnish the Bank with the audited annual financial statement of itself
and any guarantors and/or sureties (consolidated, if the Borrower or
guarantor and/or surety has Subsidiaries) and all other financial
information with which a shareholder is entitled to be furnished by the
Borrower or guarantor and/or surety, as soon as same are available, and in
any event within 120 (One Hundred and Twenty) days after the end of each
reporting period;
13.2 to maintain in full force and effect, all government, tax, monetary and
other approvals required to enable the Borrower to continue in its
business and affairs;
13.3 not to create a Security Interest over any of its assets, except for
existing Security Interests, without the prior written consent of the
Bank, which consent shall not be unreasonably withheld if the Security
Interests are in the normal course of business;
13.4 to immediately notify the Bank in writing, and provide details, of any
proposed amendment to the memorandum or articles of association of the
Borrower, or to those of any guarantor and/or surety which could have a
Material Adverse Effect on the ability of the Borrower or of any guarantor
and/or surety to meet the Borrowers obligations in terms hereof;
13.5 to, within 21 (Twenty One) Business Days from the Signature Date, deliver
to the Department, a letter, the content of which had been pre-approved by
the Bank, in which the Department is informed that the Borrower has ceded,
assigned and transferred, as security, all its rights, title and interest,
in and to and against the
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Department for payment of social grant payments made on behalf of the
Department to the Bank;
13.6 to promptly inform the Bank in writing of --
13.6.1 any occurrence of which it becomes aware which will or may adversely
affect the Borrower's ability to perform or observe its obligations
in terms of the facility; or
13.6.2 any restructuring, disposal of assets or other transaction which
could have a Material Adverse Effect on the ability of the Borrower
or of any guarantor and/or surety to meet the Borrowers obligations
in terms hereof;
13.6.3 any occurrence of which it becomes aware which will or may adversely
affect the ability of any surety and/or guarantor for the
obligations of the Borrower to the Bank to perform or observe its
obligations in terms of the deed of suretyship or guarantee; or
13.6.4 of any Event of Default,
forthwith upon becoming aware thereof, and, from time to time, if so
requested by the Bank to confirm to the Bank in writing that, save as
otherwise stated in such confirmation, no such Event of Default has
occurred or is continuing
13.7 to furnish to the Bank upon demand by the Bank, with such information as
the Bank may reasonably require.
14 WARRANTIES
14.1 The Borrower represents and warrants to the Bank (each warranty or
undertaking given by the Borrower in terms of this Agreement being a
separate warranty in no way limited or restricted by any other warranty or
representation, and being deemed
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to be a representation of fact inducing the Bank to enter into this
agreement) that:
14.1.1 the Bank shall at all times be and remain the sole funder to the
Borrower of pension disbursements or payments in the Eastern Cape;
14.1.2 it is a corporation duty registered and existing under the laws of
the Republic of South Africa, and it will maintain its corporate
existence at all times, and will not amalgamate, merge or
consolidate with any other person or entity which might have a
Material Adverse Effect on its ability to meet its obligations in
terms hereof;
14.1.3 it has full power to enter into and perform in terms of this
Agreement and has taken all necessary corporate and other actions to
authorize the borrowings hereunder;
14.1.4 the terms and conditions of this Agreement constitute legal, valid,
binding and enforceable obligations of the Borrower, and the
Borrower will ensure that its obligations in terms hereof will at
all times rank at least pari passu with all other indebtedness of
the Borrower of whatsoever nature;
14.1.5 no litigation, arbitration or administrative proceeding is presently
in progress or, to the knowledge of the Borrower, pending or
threatened against it, or any of its assets, which relates to the
facility contemplated in this Agreement or which would have a
Material Adverse Effect on the financial condition of the Borrower;
14.1.6 the execution by the Borrower of this Agreement constitutes, and its
exercise of its rights and performance of its obligations under this
Agreement, will constitute, private and commercial acts done and
performed for private and commercial
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purposes; and the Borrower will not be entitled to claim immunity
from suit, execution, attachment or other legal process in any
proceedings taken in the Republic of South Africa in relation to
this Agreement;
14.1.7 it is not a party to any agreement materially affecting, or which is
likely to have a Material Adverse Effect on, its financial
condition;
14.1.8 no Event of Default, or default of any other contractual obligation
or of any court order or judgement is outstanding or might result
from the Borrower entering into, and performing in terms of this
Agreement or from the making of a Loan, and, in particular, without
limiting the generality of the aforegoing, the Borrower is not in
default in respect of its obligations in respect of any other
borrowed monies;
14.1.9 no other event is outstanding which constitutes (or with the giving
of notice, lapse of time, determination of materiality or the
fulfilment of any other applicable condition or a combination of the
foregoing, might constitute) a default under any document which is
binding on it or its assets to an extent or in a manner which might
have a Material Adverse Effect on the financial condition of it or
the ability of the Borrower to perform its obligations under this
Agreement;
14.1.10 it has good title to all its assets which are reflected in its
financial statements or has not sold or otherwise disposed of any
such assets as reflected in its last audited financial balance
sheet;
14.1.11 its most recent audited annual financial statements, and the most
recent consolidated audited annual financial statements of Cash
Paymaster Services (Proprietary) Limited, fairly represent the
consolidated financial position of Cash
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Paymaster Services (Proprietary) Limited, the Borrower and its
Subsidiaries respectively, where applicable, and the consolidated
results of their operations of that financial year, and that the
said financial statements have been prepared in accordance with
generally accepted accounting principles in the Republic of South
Africa, consistently applied, and that neither Cash Paymaster
Services (Proprietary) Limited, nor the Borrower have significant
liabilities present or contingent, including, without limitation,
liabilities for taxes or material forward or long term commitments,
including off-balance sheet financing commitments or any potential
obligation to purchase in terms of a put option agreement which are
not disclosed or provided for in such financial statements;
14.1.12 there has been no material adverse change in the financial or other
condition of Cash Paymaster Services (Proprietary) Limited or the
Borrower since the date of their last audited financial statements;
14.1.13 all the information supplied by the Borrower and any surety in
connection with this Agreement is true, complete and accurate in all
material respects and the Borrower is not aware of any material
facts or circumstances that have not been disclosed to the Bank;
14.1.14 the Borrower has not ceded, assigned or transferred any of its book
debts or any rights in terms of its service level agreement with the
Department to any third party;
14.1.15 the Borrower will not make use of the facilities of any bank or
other financial institution other than the Bank during the course of
this Agreement for purposes of funding of pension disbursements or
payouts.
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14.2 The representations and warranties given by the Borrower are made on the
date of this Agreement and are deemed to be repeated by the Borrower at
each Drawdown Date, unless the Borrower notifies the Bank in writing
otherwise at the date of each drawdown with reference to the facts and
circumstances then existing.
14.3 The Borrower shall be deemed on the first day of each of its financial
years to represent and warrant that each of the representations and
warranties is true and accurate on such day and, in addition, that the
then latest accounts of the Borrower and its subsidiaries, delivered to
the Bank pursuant hereto, fairly represent the financial position of the
Borrower or the consolidated financial position of the Borrower and its
subsidiaries, as the case may be.
15 INFORMATION
The Borrower shall supply to the Bank :
15.1 all documents dispatched by the Borrower to its shareholders (or any class
of them) or by it to its creditors (or any class of them) at the same time
as they are dispatched to such shareholders or creditors;
15.2 promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current, threatened or
pending, and which might, if adversely determined, have a Material Adverse
Effect on the financial condition of the Borrower or on the ability of the
Borrower to perform its obligations under this Agreement;
15.3 promptly, such further information in the possession or control of the
Borrower regarding its financial condition and operations as the Bank may
reasonably request
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and should the financial information not be given as requested then the
Borrower shall be deemed to be in Default of this Agreement. Should the
information be given however, then the Bank shall be obliged to keep such
information confidential, provided that the Bank shall be entitled to
provide any such information to any Subsidiary of Nedbank Limited with
whom the Facility is placed in terms of clause 25; and
15.4 promptly, a written notification of any proposed amendment, variation or
material change to the service level agreement between the Borrower and
the Department.
16 AUTHORISATION
The Borrower shall promptly, if applicable, obtain, maintain and comply
with the terms of, and supply certified copies to the Bank of, any
authorization required under any law or regulation to enable it to perform
its obligations under, or for the validity or enforceability of, this
Agreement.
17 NEGATIVE PLEDGE
The Borrower shall not create, or permit to subsist, any Security Interest
over a material portion of its assets or undertaking. The provisions of
this clause shall not apply to any Security Interest created with the
written consent of the Bank.
18 DISPOSALS
The Borrower shall not either in a single transaction or in a series of
transactions whether related or not and whether voluntarily or
involuntarily dispose of a material portion of its assets or undertakings
without the prior written consent of the Bank.
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19 INSURANCE
19.1 The Borrower shall maintain insurance with financially sound and reputable
insurers with respect to its assets of an insurable nature against such
risks and in such amounts as are normally maintained by persons carrying
on the same or a similar class of business, and specifically against the
risks associated with the handling and transport of cash. Such insurance
policies:
19.1.1 shall be available for inspection by the Bank on demand at all
times; and
19.1.2 shall, on demand, be ceded and pledged to and in favour of the Bank
as security for the obligations of the Borrower in terms of this
Agreement, and the Banks interest shall be noted on the said
insurance policies.
19.2 Where the Borrower is self-insured, the Borrower shall ensure that at all
material times, sufficient finance is available to cover any risks
normally associated with the carrying on the same or similar class of
business and specifically against the risks associated with the handling
and transport of cash. In the event of the Borrower suffering losses of
more than R10 000 000.00 (Ten Million Rand) in aggregate in any 12
(Twelve) month period, as a result of theft or fraud, then the Bank will
be entitled to require the Borrower to take out insurance with a
recognized insurer agreed to by the Bank in respect of such risks and/or
make alternative arrangements to the satisfaction of the Borrower.
20 MAINTENANCE OF STATUS
The Borrower shall do all such things as are necessary to maintain its
corporate existence; and ensure that it has the right and is duly
qualified to conduct its business as it is
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conducted in all applicable jurisdictions.
21 DEFAULT
21.1 EVENTS OF DEFAULT
Each of the events set out in this clause 21 is an Event of Default
(whether or not caused by any reason whatsoever outside the control of the
Borrower or any other person).
21.2 NOTIFICATION OF DEFAULT
The Borrower shall notify the Bank of any Default (and the steps, if any,
being taken to remedy it) promptly upon its occurrence.
21.3 NON-PAYMENT
The Borrower fails to pay any amount due in terms of this Agreement on the
due date thereof.
21.4 INVOICE
The Borrower fails to generate an Invoice on the Invoice Date, or fails to
provide the Bank with a copy of the Invoice as provided for in clause 5.1.
21.5 BREACH OF OTHER OBLIGATIONS
The Borrower does not comply with any provision of this Agreement
(including, inter alia, a breach of any under-taking) (other than failure
to pay any amount due in terms of this Agreement as provided for in clause
21.3, or failure to generate an Invoice or provide the Bank with a copy of
an Invoice as provided for in clause 21.4) and, if that Default is capable
of remedy, does not remedy the failure within 3 (Three) Business
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Days of the date of the notice from the Bank requiring the Borrower to
remedy that default.
21.6 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with this Agreement or in any document delivered by or on
behalf of the Borrower under or in connection with this Agreement is
incorrect in any material respect when made or given or deemed to be made,
given or repeated.
21.7 CROSS-DEFAULT
21.7.1 Any Financial Indebtedness of the Borrower is not paid when due; or
21.7.2 An event of default howsoever described (or any event which, with
the giving of notice, lapse of time, determination of materiality or
fulfilment of any other applicable condition or any combination of
the foregoing, would constitute such an Event of Default) occurs
under any document relating to the Financial Indebtedness of the
Borrower; or
21.7.3 Any Financial Indebtedness of the Borrower becomes prematurely due
and payable and is not repaid in the notice period applicable
thereto or is placed on demand as a result of an event of default
(howsoever described) under the document relating to that Financial
Indebtedness; or
21.7.4 Any commitment for, or underwriting of, any Financial Indebtedness
of the Borrower is cancelled or suspended as a result of an event of
default (howsoever described) under the document relating to that
Financial Indebtedness; or
21.7.5 Any Security Interest securing Financial Indebtedness over any asset
of the
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Borrower becomes enforceable unless the Borrower, in good faith and
on notice to the Bank defends such enforcement.
21.8 INSOLVENCY
The Borrower is, or is deemed for the purposes of any law to be, unable to
pay its debts as they fall due or to be insolvent, or admits inability to
pay its debts as they fall due, where:
21.8.1 the Borrower suspends making payments on all or any class of its
debts or announces an intention to do so, or a moratorium is
declared in respect of any of its indebtedness; or
21.8.2 the Borrower, by reason of financial difficulties, begins
negotiations with one or more of its creditors with a view to the
readjustment or rescheduling of any of its indebtedness,
21.9 INSOLVENCY PROCEEDINGS
21.9.1 Any procedural step (including application, proposal or convening a
meeting) is taken with a view to a composition, assignment or
arrangement with any creditors of the Borrower; or
21.9.2 A meeting of the Borrower is convened for the purpose of considering
any resolution for (or to apply for) its winding-up or for its
administration or any such resolution is passed; or
21.9.3 Any person presents an application for the winding-up or for the
administration of the Borrower (except for any frivolous or
vexatious winding up application which the Borrower demonstrates is
being contested in good faith and by due process
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and for which an adequate reserve has been set aside to satisfy the
claim underlying such application) and in respect of which the
Borrower has not demonstrated to the Bank that it is taking steps to
contest such action in good faith within ten Business Days of
presentation of that application; or
21.9.4 An order for the winding-up or administration of the Borrower is
made; or
21.9.5 Any other procedural step (including an application, proposal or
convening a meeting) is taken with a view to the rehabilitation,
administration, custodianship, liquidation, winding- up or
dissolution of the Borrower or any other insolvency proceedings
involving the Borrower.
21.10 APPOINTMENT OF RECEIVERS AND MANAGERS
21.10.1 Any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator
or the like is appointed in respect of the Borrower or any part of
its assets; or
21.10.2 The directors of the Borrower request the appointment of a
liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the
like; or
21.10.3 Any other procedural step is taken to enforce any Security Interest
over any part of the assets of the Borrower unless the Borrower in
good faith and on notice to the Bank defends such enforcement.
21.11 CREDITORS PROCESS
Any attachment, sequestration, distress or execution affects any Material
portion of the Borrower's assets or undertaking and is not discharged
within 21 (Twenty One)
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days.
21.12 CESSATION OF BUSINESS
The Borrower ceases, or threatens to cease, to carry on all or a
substantial part of its business.
21.13 MANDATORY REPAYMENT
If there is a change in law which renders, will render or may have the
effect of rendering this Agreement or anything done or to be done pursuant
to this Agreement illegal, invalid or unenforceable and the parties in
good faith fail to rectify such illegality, invalidity or enforceability
(provided such illegality, invalidity or enforceability is capable of
being rectified), or do not agree upon alternative acceptable provisions,
within five Business Days (or such longer period as may be agreed between
the parties in writing) after receipt of notice from the Bank advising the
Borrower of the relevant change, then the Bank shall in addition to and
without. prejudice to any other rights it may have in terms of this
Agreement or in law, be entitled to call upon the Borrower to repay the
outstanding Loans together with all accrued interest thereon and all other
amounts due in terms of this Agreement, which amounts shall immediately
become due and payable.
21.14 MATERIAL ADVERSE EFFECT
Any event or series of events occurs which, in the reasonable opinion of
the Bank, might have a Material Adverse Effect on the financial condition
of the Borrower or on the ability of the Borrower to comply with its
obligations under this Agreement. For the purposes hereof:
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21.14.1 the fact that the service level agreement with the Department is not
concluded and executed to the satisfaction of the Bank on or before
31 January 2003 (or such later date as may be agreed upon by the
parties in writing); or
21.14.2 any change of any nature whatsoever in the authorised or issued
share capital from that at the date of this Agreement, or any change
in the shareholding of the Borrower from that at the date of this
Agreement which constitutes a change in control of the Borrower will
be deemed to be a Material Adverse Effect as contemplated herein;
will be deemed to be a material adverse change as contemplated herein.
21.15 CHANGE OF CONTROL
An Event of Default will occur during the existence of the Facility where
the Borrower is no longer a wholly owned Subsidiary of the Holding Company
which is the Holding Company of the Borrower as at the Effective Date.
21.16 ACCELERATION
At any time, whether or not there has been an Event of Default, the Bank
may, by notice to the Borrower (provided that the Bank will give the
Borrower 7 (seven) days written notice if there has not been an Event of
Default):
21.16.1 cancel the Facility; and/or
21.16.2 demand that all Loans made in terms of this Agreement, together with
accrued interest and all other amounts accrued under this Agreement,
be immediately due and payable, whereupon it shall become
immediately due and payable; and/or
21.16.3 set off the indebtedness of the Borrower to the Bank under or in
terms of or
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arising from the Facility against any and all amounts standing to
the credit of the Borrower in the books of the Bank and for the
purposes thereof, the parties hereby agree to the extent that any
such indebtedness is or such amounts are in a currency other than
Rands ("FOREIGN CURRENCY"), such indebtedness or amounts shall be
converted from such foreign currency to Rands at the spot
Rand/foreign currency rate quoted by the Bank on the date of
conversion;
21.16.4 demand reimbursement from the Borrower for all expenses incurred by
the Bank in recovering any amounts owed by the Borrower, which
reimbursement shall be payable by the Borrower upon such demand
inclusive of costs on a scale as between attorney and own client.
21.17 INDEMNITY
The Borrower hereby indemnifies the Bank against any loss o liability
which the Bank incurs as a consequence of the occurrence of any Default.
22 FEES
22.1 BANK CHARGES
The Bank shall be entitled to charge its normal transaction and bank
charges as levied by the Bank from time to time, which have been disclosed
to the Borrower, and the Borrower shall pay same in accordance with the
Bank's policy in this regard from time to time.
22.2 FACILITY FEE
The Borrower shall pay to the Bank a facility fee in the aggregate amount
of ZAR 500,000 (Five Hundred Thousand South African Rand), which amount
shall be
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payable monthly in advance in 12 (twelve) equal instalments, the first
instalment (for January 2003) falling due for payment on 1 January 2003
and each following instalment payable on or before the first day of each
succeeding month.
23 VAT
Any fee referred to in this Agreement is exclusive of any value added tax
or any other tax which might be chargeable in connection with that fee if
any value added tax ("VAT') or other tax is so chargeable, it shall be
paid by the Borrower at the same time as it pays the relevant fee. The
Bank will provide the required VAT invoices in respect of any VAT which
may be payable by the Borrower in terms hereof.
24 EVIDENCE AND CALCULATIONS
24.1 ACCOUNTS
Accounts maintained by the Bank in connection with this Agreement are
prima facie proof of the matters to which they relate.
24.2 CERTIFICATES AND DETERMINATIONS
A certificate signed by any Assistant General Manager of the Bank (whose
appointment need not be proved) shall be prima facie proof of all matters
stated therein, for all purposes in connection with this Agreement.
24.3 CALCULATIONS
Interest accrues from day to day and is calculated on the basis of the
actual number of days elapsed and a year of 365 (Three Hundred and Sixty
Five) days and will be compounded monthly in arrear.
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25 TRANSFER, CESSION AND ASSIGNMENT
The Borrower may not assign, transfer, novate or dispose of any of, or any
interest in, its rights or obligations under this Agreement. The Bank
reserves the right to place the Facility in whole or in part with any
Subsidiary of Nedbank Limited and to disclose to that subsidiary any
financial information which may be required to support such placing.
26 SET-OFF
Should the Borrower be in Default, the Bank may set-off any obligation
owed by the Borrower under this Agreement against any other obligation
(whether or not mature) owed by the Bank to the Borrower, regardless of
the place of payment, booking branch or currency of either obligation.
Nothing in this clause will be construed as creating a Security Interest.
27 COSTS
All costs and expenses which the Bank may incur in connection with the
enforcement or preservation of any of its rights under this Agreement
including, without limiting the generality of the aforegoing, legal costs
on an attorney and client scale, tracing fees and stamp duty, shall be
borne by the Borrower. All costs of drafting this Agreement shall be borne
by the Bank.
28 WHOLE AGREEMENT
This Agreement constitutes the whole of the agreement between the parties
hereto relating to the matters dealt with in this Agreement and save to
the extent otherwise provided herein, or save as recorded in writing and
signed by the parties, no undertaking, representation, term or condition
relating to the subject matter of this agreement not
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incorporated in this agreement shall be binding on any of the parties.
29 VARIATION OF TERMS
No variation or amendment of this Agreement shall be of any force or
effect unless reduced to writing and signed by the Borrower on the one
hand and the Bank on the other.
30 NO INDULGENCE
No indulgence or extension of time shown or allowed by the Bank to the
Borrower shall operate as an estoppel or waiver against the Bank. No
waiver of any of the terms and conditions of this Agreement will be
binding or effectual for any purpose unless in writing and signed by or on
behalf of the party giving the same. Any such waiver will be effective
only in the specific instance and for the purpose given. No failure or
delay on the part of either party hereto in exercising any right, power or
privilege hereunder will constitute or be deemed to be a waiver thereof,
nor will any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
31 PRESCRIPTION
The Borrower waives all rights under the prescription laws of the Republic
of South Africa.
32 SEVERABILITY
Any provision in this Agreement which is or may become illegal, invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability and
shall be treated pro non scripto and severed
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from the balance of this Agreement, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability
of such provision in any other jurisdiction.
33 RENUNCIATION OF BENEFITS
The Borrower expressly waives and renounces all the benefits from the
legal exceptions non numeratae pecuniae (the Borrower renounces the
benefit of the exception that the money was not actually paid to it), non
causa debiti (the Borrower renounces the benefit that there was no cause
for the obligation in respect of the indebtedness), errore calculi (the
Borrower waives the benefit of the legal exception that where there is an
element of accountancy, that errors of calculation occurred), revision of
accounts, no value received and all the other legal benefits and
exceptions (the Borrower renounces the benefits that, where there is more
than one debtor, e joint debtor is only liable for his pro rata share of
the debt, the right to require that the creditor proceeds against the
principal debtor first and thereafter against a surety, the benefit that a
suretyship must be apportioned among the sureties and that there was no
causa for the transaction), the meaning and effect of which exceptions the
Borrower declares itself to be fully acquainted.
34 NOTICES
34.1 GIVING OF NOTICES
A notices, copies of invoices, or other communications under or in
connection with this Agreement ("notices") shall be given in writing, and,
unless otherwise stated, may be made by letter or facsimile. Any such
notice will be deemed to be given as follows:
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34.1.1 if by letter, when delivered, or on actual receipt; and
34.1.2 if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-Business Day or after normal business hours in the place of receipt
will only be deemed to be given on the next Business Day at that place.
34.2 E-MAIL
Copies of invoices or other communications, save for formal notices in
terms of this agreement, may be communicated via e-mail to the addresses
contained in clause 34.3 below. The party sending the e-mail will be
obliged to prove the receipt of such e-mail by the party to which it was
dispatched.
34.3 ADDRESSES FOR NOTICES
The address, e-mail address and facsimile numbers of the Borrower are as
follows:
X/x Xxxx Xxxxxxxxx Xxxxxxxx (Xxxxxxxxxxx) Xxxxxxx
0 Xxxxx
Xxxxx Wing
President Place
Xxx Xxx Xxxxx Xxxxxx & Xxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxxxxx
E-mail address: xxxxx@xxx-0.xxx; xxxxxxxx@xxx-0.xxx;
xxxxxx@xxx-0.xxx; xxxxx@xxx-0.xxx
Fax: (000)0000000
Marked for Attention: The Financial Director
The address, e-mail address and facsimile numbers of the Bank are as
follows:
Nedbank Limited
Corporate & International Credit
Nedcor Sandton
000 Xxxxxxx Xxxx
Sandown
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2196
E-mail address: XxxxxXx@xxxxxx.xx.xx:
XxxxxxX@xxxxxx.xx.xx; XxxxxxxxX@xxxxxx.xx.xx;
XxxxxxxX@xxxxxx.xx.xx; XxxxxxX@xxxxxx.xx.xx;
XxxxX@xxxxxx.xx.xx
Xxxxxxx@xxxxxx.xx.xx
Facsimile: (011)294-1333
Marked for Attention: Assistant General Manager: Corporate and
International Credit
or such other addresses for notice as the Bank may notify to the Borrower
or vice versa, by not less than 5 (Five) Business Days' notice.
35 GOVERNING LAW
This Agreement is governed by the laws of the Republic of South Africa.
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SIGNATORIES
SIGNED AT _________________________________________ on this _______ day of
______________________________________ 2002.
For and on behalf of Cash Paymaster Services Eastern Cape (Proprietary) Limited
(who warrant that they are duly authorised hereto :
Name : ___________________________________ Name : _____________________________
Identity Number : ________________________ Identity Number : __________________
Designation : ____________________________ Designation : ______________________
Signature : ______________________________ Signature : ________________________
WITNESSES:
1. _______________________________________ 2. _________________________________
SIGNED AT ________________________________________________ on this ______ day of
_________________________ 2003
For and on behalf of NEDBANK LIMITED
(who warrant that they are duly authorised hereto) :
Name : ___________________________________ Name : _____________________________
Identity Number : ________________________ Identity Number : __________________
Designation : ____________________________ Designation : ______________________
Signature : ______________________________ Signature : ________________________
WITNESSES:
1. _______________________________________ 2. _________________________________
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